Madhya Pradesh High Court
Layak Mirza vs Tahsildar on 21 May, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 21 st OF MAY, 2024
SECOND APPEAL No. 2980 of 2022
BETWEEN:-
1. LAYAK MIRZA S/O LATE MIRZA SADIQ ALI, AGED
ABOUT 63 YEARS, R/O LOHARA, TAHSIL
BARGHAT, DISTRICT SEONI (MADHYA PRADESH)
2. SABIK MIRZA S/O LATE MIRZA SADIQ ALI, AGED
ABOUT 54 YEARS, R/O LOHARA, TAHSIL
BARGHAT, DISTRICT SEONI (MADHYA PRADESH)
3. DAFIQ MIRZA S/O LATE MIRZA SADIQ ALI BEG,
AGED ABOUT 59 YEARS, R/O LOHARA, TAHSIL
BARGHAT, DISTRICT SEONI (MADHYA PRADESH)
4. MIRZA TEJAK ALI BEG S/O LATE HAJIK ALI BEG,
AGED ABOUT 58 YEARS, R/O DIWANJIPURA
CHHINDWARA TAHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
5. GASIQ MIRZA S/O MIRZA HAJIK ALI BEG, AGED
ABOUT 40 YEARS, R/O DIWANJIPURA
CHHINDWARA TAHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
6. MAHAZAVIN BANO W/O MUBIN AHMED, AGED
ABOUT 52 YEARS, R/O DEVIPURA PUSAD
DISTRICT YAVATMAL (MAHARASHTRA)
7. NAZNIN W/O AKHTAR KHAN, AGED ABOUT 64
YEAR S , R/O GONA POST BANDOL DISTRICT
SEONI (MADHYA PRADESH)
8. TUVIN BANO W/O MUHIBBURREHMAN, AGED
ABOUT 66 YEARS, R/O CHAMANPURI AMARVATI
(MAHARASHTRA)
.....APPELLANTS
(BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)
AND
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 5/24/2024
10:11:09 AM
2
1. TAHSILDAR TAHSIL OFFICE CHHINDWARA
CHHINDWARA (MADHYA PRADESH)
2. COLLECTOR COLLECTORATE OFFICE DISTRICT
CHHINDWARA (MADHYA PRADESH)
3. SECRETARY REVENUE DEPARTMENT MADHYA
PRADESH BHOPAL (MADHYA PRADESH)
4. STATE OF MADHYA PRADESH THROUGH
C O L L E C T O R CHHINDWARA DISTRICT
CHHINDWARA (MADHYA PRADESH)
5. TEHSILDAR TAHSIL OFFICE MOHKHED DISTRICT
CHHINDWARA (MADHYA PRADESH)
6. SARPANCH GRAM PANCHAYAT
KHUNAJHIRKALA TAHSIL MOHKHED DISTRICT
CHHINDWARA (MADHYA PRADESH)
7. SMT. SHAHIDA MIRZA W/O SHAVAQ MIRZA,
AGED ABOUT 70 YEARS, R/O LOHARA POST
KHOOT TAHSIL BARGHAT DISTRICT SEONI
(MADHYA PRADESH)
8. MOHAMMAD ALI S/O SHAVAQ MIRZA, AGED
ABOUT 54 YEARS, R/O LOHARA POST KHOOT
TAHSIL BARGHAT DISTRICT SEONI (MADHYA
PRADESH)
9. SHOUQAT ALI S/O SHAVAQ MIRZA, AGED ABOUT
50 YEARS, R/O LOHARA POST KHOOT TAHSIL
BARGHAT DISTRICT SEONI (MADHYA PRADESH)
10. SMT. JAHIN W/O ABDUL REHMAN, AGED ABOUT
48 YEARS, R/O VILLAGE DAHEGAON
(MAHARASHTRA)
11. SMT. SHAHEEN W/O JHULFEQUAR ALI, AGED
ABOUT 46 YEARS, R/O VILLAGE KAMTHI
(MAHARASHTRA)
12. SMT. NASREEN W/O AZAD, AGED ABOUT 44
Y E A R S , R/O VILLAGE DAHEGAON
(MAHARASHTRA)
13. MIRZA NASHIK ALI BEG S/O WASIK ALI BEG,
AGED ABOUT 69 YEARS, R/O BEHIND TRIBAL
MUSEUM CHAKKAR ROAD CHHINDWARA
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 5/24/2024
10:11:09 AM
3
(MADHYA PRADESH)
14. MUS. SHAHIDA MIRZA W/O MIRZA TARIK ALI
BEG, AGED ABOUT 62 YEARS, R/O BEHIND
TRIBAL MUSEUM CHAKKAR ROAD
CHHINDWARA (MADHYA PRADESH)
15. MU ZAREEN MIRZA D/O MIRZA TARIK ALI BEG
R/O BEHIND TRIBAL MUSEUM CHAKKAR ROAD
CHHINDWARA (MADHYA PRADESH)
16. GAJFAR MIRZA S/O TARIK ALI BEG, AGED ABOUT
33 YEARS, R/O BEHIND TRIBAL MUSEUM
CHAKKAR ROAD CHHINDWARA (MADHYA
PRADESH)
17. MUJFAR MIRZA S/O TARIK ALI BEG, AGED
ABOUT 32 YEARS, R/O BEHIND TRIBAL MUSEUM
CHAKKAR ROAD CHHINDWARA (MADHYA
PRADESH)
18. MIRZA WASIK ALI S/O MIRZA WASIK ALI BEG,
AGED ABOUT 66 YEARS, R/O BEHIND TRIBAL
MUSEUM CHAKKAR ROAD CHHINDWARA
(MADHYA PRADESH)
19. TAHIR MIRZA S/O ARIF MIRZA, AGED ABOUT 38
Y E A R S , R/O LOHARA, TAHSIL BARGHAT,
DISTRICT SEONI (MADHYA PRADESH)
20. SEHNAAZ MIRZA D/O SHARIF MIRZA, AGED
ABOUT 36 YEARS, R/O LOHARA, TAHSIL
BARGHAT, DISTRICT SEONI (MADHYA PRADESH)
21. MUS. AASHIFA JAHAN BEGUM W/O SHARIQ
MIRZA, AGED ABOUT 66 YEARS, R/O LOHARA,
TAHSIL BARGHAT, DISTRICT SEONI (MADHYA
PRADESH)
22. MOHAMMAD AKHBAR PASHA S/O MOHAMMAD
ANWAR PASHA, AGED ABOUT 79 YEARS, R/O
PASHA CAMPUS CHIKHLA MINES TAHSIL
TUMSAR DISTRICT BHANDARA (MAHARASHTRA)
23. MOHAMMAD ATHAR PASHA S/O MOHAMMAD
AKWAR PASHA, AGED ABOUT 49 YEARS, R/O 19/A
REDCROSS ROAD OPPOSITE PARMANAND
APATMENTS SADAR GANDHI CHOWK NAGPUR
TAHSIL AND DISTRICT NAGPUR
(MAHARASHTRA)
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 5/24/2024
10:11:09 AM
4
.....RESPONDENTS
( BY SHRI SHAILENDRA MISHRA - P.L. APPEARING ON BEHALF OF
ADVOCATE GENERAL)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 28/10/2022 passed by
IInd Additional District Judge, Chhindwara (MP) in RCA No.79-A of 2018,
arising out of judgment and decree dated 25.08.2018 passed in C.S.No.70-A of
2014, by IVth Civil Judge, Class I, Chhindwara.
2. Brief facts of the case are that plaintiff filed a suit for declaration of
title and for recovery of possession and for mense profit and mandatory
injunction on the ground the suit property was owned by ancestors of plaintiffs
and plaintiffs have inherited the same from their ancestors. Therefore, plaintiffs
are owner of the suit property later on suit land was recorded in grass
head/name of state. Plaintiff came to know about above entries in the year 2011.
Thereafter, present suit has been filed.
3. Learned counsel for the appellant submit that name of Mirza
Mohammad Ali Beg grand father of plaintiff was recorded in revenue records
as owner. But later on suit land was recorded in grass head/in the name of state
without informing plaintiffs/their ancestors. After recording land in grass head/in
the name of state, State started granting lease of the same to other persons.
Defendants have filed written statements but they have not adduced any
evidence in rebuttal. It is also urged that Appellate Court has made out a new
case which was neither pleaded by plaintiffs nor by defendants. It is also urged
that no notification issued under Section 3 in M.P.Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Act,1950 has been filed on record.
Learned counsel for the appellant also submits that plaintiffs are in possession
of part of the suit property. On above grounds, it is urged that in the instant
appeal, substantial question of law as mentioned in the appeal memo, arises for
determination. Therefore, appeal be admitted for final hearing.
4. Heard. Perused record of the case.
5. Learned trial Court vide judgment dated 25.08.2018 passed in RCS
No.70-A/2011 dismissed plaintiff's suit and appellate Court vide judgement
dated 28.10.2022 passed in RCA No.79-A/2018 dismissed appeal filed by the
plaintiff and affirmed trial Courts findings.
6. Therefore, question arises as to when this Court can interfere with the
findings of facts arrived at by the first appellate court/trial court. In this
connection, I would like to refer to the law laid down by the Hon'ble Apex
Court in the case of Chandrabhan (Deceased) through Lrs. And Others vs.
Saraswati and Others reported in AIR 2022 SC 4601, wherein Hon'ble
Apex Court in para 33(iii) has held as under:-
" 3 3 (iii) The general rule is that the High Court will not
interfere with findings of facts arrived at by the courts below.
But it is not an absolute rule. Some of the well - recognized
exceptions are where (i) the courts below have ignored
material evidence or acted on no evidence; (ii) the courts have
drawn wrong inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden of
proof. When we refer to "decision" based on no evidence", it
not only refers to cases where there is a total dearth of
evidence, but also refers to any case, where the evidence,
taken as a whole, is not reasonably capable of supporting the
finding."
7. Similarly in the case of Gurnam Singh (Dead) by legal
representatives and Others vs. Lehna Singh (Dead) by legal representatives,
Hon'ble Apex Court has held as under:-
"13.1.......However, in Second Appeal under Section 100 of
the CPC, the High Court, by impugned judgment and order has
interfered with the Judgment and Decree passed by the First
Appellate Court. While interfering with the judgment and order
passed by the first Appellate Court, it appears that while
upsetting the judgment and decree passed by the First
Appellate Court, the High Court has again appreciated the
entire evidence on record, which in exercise of powers under
Section 100 CPC is not permissible. While passing the
impugned judgment and order, it appears that High Court has
not at all appreciated the fact that the High Court was deciding
the Second Appeal under Section 100 of the CPC and not first
appeal under Section 96 of the CPC. As per the law laid down
by this Court in a catena of decisions, the jurisdiction of High
Court to entertain second appeal under Section 100 CPC after
the 1976 Amendment, is confined only when the second appeal
involves a substantial question of law. The existence of 'a
substantial question of law' is a sine qua non for the exercise
of the jurisdiction under Section 100 of the CPC. As observed
and held by this Court in the case of Kondiba Dagadu Kadam
(Supra), in a second appeal under Section 100 of the CPC, the
High Court cannot substitute its own opinion for that of the
First Appellate Court, unless it finds that the conclusions
drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions
of the applicable law; OR
(ii) Contrary to the law as pronounced by
the Apex Court; OR
(iii) Based on inadmissible evidence or no
evidence
It is further observed by this Court in the aforesaid decision that
if First Appellate Court has exercised its discretion in a judicial
manner, its decision cannot be recorded as suffering from an
error either of law or of procedure requiring interference in
second appeal. It is further observed that the Trial Court could
have decided differently is not a question of law justifying
interference in second appeal".
8. In this connection, Ishwar Dass Jain (Dead) through Lrs vs. Sohan Lal
(Dead) by LRs reported in (2000) 1 Supreme Court Cases 434 may also be
referred to. Paras 11 and 12 of the said judgment is relevant and is under:-
"11. There are two situations in which interference with
findings of fact is permissible. The first one is when material
or relevant evidence is not considered which, if considered
would have led to an opposite conclusion. This principle has
been laid down in a series of judgments of this Court in
relation to section 100 CPC after the 1976 amendment. In
Dilbagrai Punjabi vs. Sharad Chandra [1988 Supple. SCC
710], while dealing with a Second Appeal of 1978 decided by
the Madhya Pradesh High Court on 20.8.81, L.M.Sharma, J.(as
he then was) observed that "The Court (the first appellate
Court) is under a duty to examine the entire relevant evidence
on record and if it refuses to consider important evidence
having direct bearing on the disputed issue and the error which
arises as of a magnitude that it gives birth to a substantial
question of law, the High Court is fully authorised to set aside
the finding. This is the situation in the present case."
In that case, an admission by the defendant-tenant in the
reply notice in regard to the plaintiff's title and the description
of the plaintiff as `owner' of the property signed by the
defendant were not considered by the first appellate Court
while holding that the plaintiff had not proved his title. The
High Court interfered with the finding on the ground of non-
consideration of vital evidence and this Court affirmed the said
decision. That was upheld. In Jagdish Singh vs. Nathu Singh
[1992 (1) SCC 647], with reference to a Second Appeal of
1978 disposed of on 5.4.1991. Venkatachaliah, J. (as he then
was) held:
"where the findings by the Court of facts is vitiated by non-
consideration of relevant evidence or by an essentially
erroneous approach to the matter, the High Court is not
precluded from recording proper findings."
Again in Sundra Naicka Vadiyar vs. Ramaswami Ayyar
[1995 Suppl. (4) SCC 534], it was held that where certain
vital documents for deciding the question of possession were
ignored - such as a compromise, an order of the revenue Court
- reliance on oral evidence was unjustified. In yet another case
in Mehrunissa vs. Visham Kumari [1998 (2) SCC 295] arising
out of Second appeal of 1988 decided on 15.1.1996, it was
held by Venkataswami, J. that a finding arrived at by ignoring
the second notice issued by the landlady and without noticing
that the suit was not based on earlier notices, was vitiated
finding. This was in Second Appeal of 1988 decided on
15.1.1996.
12. The second situation in which interference with findings of
fact is permissible is where a finding has been arrived at by
the appellate Court by placing reliance on inadmissible
evidence which if it was omitted, an opposite conclusion was
possible. In Sri Chand Gupta vs. Gulzar Singh [1992 (1) SCC
143], it was held that the High Court was right in interfering in
Second Appeal where the lower appellate Court relied upon
an admission of a third party treating it as binding on the
defendant. The admission was inadmissible as against the
defendant. This was also a Second Appeal of 1981 disposed
of on 24.9.1985".
9. Perusal of plaint averments reveal that plaintiffs have filed present suit
for declaration of title, recovery of possession, permanent injunction and for
mense profit for survey numbers mentioned in para 3 to 7 on the ground that
plaintiffs ancestors were owner and thereafter plaintiffs have inherited suit
property.
10. Perusal of para 17(a) of plaint reveals that plaintiffs have sought relief
of declaration of title and no declaration with respect to possession i.e. that suit
property or any part of suit property is in possession of plaintiffs has been
sought therein. Instead, in pare 17(b) of plaint, plaintiffs have sought recovery
of land 285.62 acre as mentioned in para 7 of plaint. Further, in para 17(d) of
plaint, plaintiffs have sought relief of means profits with respect to whole of the
agricultural land.
11. Further, perusal of revenue records, comprising khasra etc., reveal
that on various survey numbers, as mentioned in plaint, other persons are
recorded in possession. There is no specific pleading in plaint that plaintiffs are
in possession of suit property or any part thereof, mentioning specific survey
number/numbers. Further, no specific date of dispossession has been
mentioned in the plaint as to when plaintiffs were dispossessed and whether
plaintiffs were dispossessed from whole of the suit property or any part of the
suit property, if so, then, specific survey number/numbers and area thereof.
This aspect has been dealt by trial court in para 25 of appellate court has also
dealt with above aspect of matter in para 40 of the appellate Court judgment. It
is also evident from record of the case, that persons in actual possessions of
suit property has not been joined as defendants in the instant suit. Thus, present
suit is not maintainable and it cannot be said that plaintiff's suit is within
limitations.
12. Therefore, no interference is required in the findings recorded by
Courts below especially with respect to absence of pleadings and evidence
pertaining to date of dispossession and on the point of limitation and non
joinder of necessary party etc. Therefore, other submissions of learned counsel
for the appellant need not required to be discussed, in view of discussion in the
forgoing paras.
13. If pleadings and evidence adduced by the parties and the impugned
judgment passed by the first appellate court/trial court is considered, in the
light of above legal principles/legal provisions reiterated in aforesaid judgments,
then, in this Court's considered opinion, the findings of facts recorded by the
first appellate court/trial court are not liable to be interfered with in the
instant case and it cannot be said that first appellate court/trial court has
ignored any material evidence or has acted on no evidence or first appellate
court/trial court has drawn wrong inferences from the proved facts etc.
Further, it cannot be said that evidence taken as a whole, is not reasonably
capable of supporting the findings. It can also be not said that the findings of
first appellate court/trial court are based on inadmissible evidence.
14. A perusal of the impugned judgment and decree passed by the first
appellate court/trial court reveals that it is well reasoned and has been passed
after due consideration of oral as well as documentary evidence on record.
Learned counsel for the appellant has failed to show that how the findings of
facts recorded by the first appellate court/trial court are illegal, perverse and
based on no evidence etc. The learned first appellate court/trial court has
legally and rightly dealt with the issues involved in the matter and has recorded
correct findings of fact.
15. For the reasons aforesaid, I find no merit in the instant second
appeal. Findings recorded by the first appellate court/trial court are fully
justified by the evidence on record. Findings recorded by the first appellate
court/trial court are not based on misreading or mis-appreciation of evidence
nor it is shown to be illegal or perverse in any manner so as to call for
interference in second appeal. No question of law, much less substantial
question of law, arises for adjudication in the instant appeal. Hence, appeal is
dismissed in limine.
16. A copy of this order along with record be sent back to the first
appellate court/trial court for information and its compliance.
(ACHAL KUMAR PALIWAL)
JUDGE
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