Santosh Raghuwanshi vs Rajesh Singh
2025 Latest Caselaw 7482 MP

Madhya Pradesh High Court

Santosh Raghuwanshi vs Rajesh Singh on 3 April, 2025

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

                          NEUTRAL CITATION NO. 2025:MPHC-GWL:7852


                                                               1                        SA.No. 1419 of 2022

                                IN THE         HIGH COURT                OF MADHYA PRADESH
                                                        AT G WA L I O R
                                                              BEFORE
                                         HON'BLE SHRI JUSTICE G. S. AHLUWALIA

                                                   ON THE 3rd OF APRIL, 2025

                                               SECOND APPEAL No. 1419 of 2022
                                           SANTOSH RAGHUWANSHI AND OTHERS
                                                         Versus
                                               RAJESH SINGH AND OTHERS


                          Appearance:
                          Shri Ashish Gupta - Advocate for appellants.
                          Shri Ram Krishna Upadhyaya- Advocate for respondents.



                                                               ORDER

This Second Appeal, under Section 100 of CPC, has been filed against judgment and decree dated 09.03.2022 passed by II Additional Judge to the Court of I District Judge, Basoda, District Vidisha (M.P.) in RCA No.100009/2016 arising out of the judgment and decree dated 10.12.2015 passed by II Civil Judge Class- I, Ganjbasoda, District Vidisha (M.P.) in RCSA No.97/2015.

2. The present appeal has been filed by the plaintiffs who have lost their case from both the courts below.

3. Plaintiffs filed a suit for declaration of title and permanent injunction pleading inter alia that Neelam Singh Raghuvanshi was the father of plaintiffs No.1 to 5 and husband of plaintiff no.6. He had 1/2 share in lands situated in village Bhiyakhedi and in village Nateran. Father of plaintiffs No.1 to 5 filed an application for partition of lands situated in village Bhiyakhedi and Nateran which

NEUTRAL CITATION NO. 2025:MPHC-GWL:7852

was registered as Case No./A27/119/10. It was alleged that defendants without there being any title have got the name of Neelam Singh Raghuvanshi deleted from the aforesaid land and got their names mutated by obtaining an order dated 11.04.2011. After the aforesaid order, Neelam Singh went in depression and became the victim of serious ailment, as a result he died about a year back. It was the claim of the appellants that being legal representatives of Neelam Singh they are entitled to get their title declared. It was further alleged that order dated 11.04.2011 passed by Tahsildar in case No.123/A27/2009-10 is null and void to the extent of rights of plaintiffs. It is further submitted that now the defendants are also denying the title of the plaintiffs in respect of land situated in village Nateran and accordingly the suit was filed for declaration of title as well as for declaration that order dated 11.04.2011 passed by Tahsildar, Nateran in Case No. 123/A27/2009-10 is null and void to the extent of share of plaintiffs and it was also prayed that plaintiffs are entitled to get their names mutated in the revenue records.

4. Defendants No.1 to 3 filed their written statement and it was claimed that about 25 years back an oral partition had taken place between Neelam Singh and Gajraj Singh and after the oral partition, Neelam Singh got the land situated in village Bhairobag. Therefore, after the oral partition Neelam Singh had lost all his title in respect of land situated in village Nateran and Bhiyakhedi. Neelam Singh had filed an application for partition of land situated in village Bhiyakhedi and Nateran which was dismissed by order dated 11.04.2011 after recording evidence of parties. It was also pleaded that Natthu Singh was father of Neelam Singh and Gajraj Singh. Natthu Singh were three brothers, namely, Natthu Singh, Deewan Singh and Munshilal. They had lands in village Bhiyakhedi, Nateran and Bhairobag. Natthu Singh, in a partition amongst his brothers, got the land situated in Bhairobag, Nateran and Bhiyakhedi. Later on, an oral partition took place

NEUTRAL CITATION NO. 2025:MPHC-GWL:7852

between Neelam Singh and Gajraj Singh and the land situated in village Nateran and Bhiyakhedi went to the share of Gajraj Singh whereas land situated in Bhairobag went to the share of Neelam Singh. It is submitted that after oral partition Neelam Singh was in possession of land situated in Bhairobag whereas after the death of Gajraj Singh defendants are in possession of the land situated in village Nateran and Bhiyakhedi. It was further pleaded that Neelam Singh during his lifetime had also alienated land situated in village Bhairobag to Dharu Singh, Mahendra Singh, Kalyan Singh. It was submitted that out of the entire land which was received by Neelam Singh, he has already alienated 11.778 hectares of land and now 12 bigha of land situated in village Bhairobag is still with Neelam Singh and the plaintiffs are in possession of the same.

5. The Trial Court, after framing issues and recording evidence, dismissed the suit by holding that an oral partition had taken place between Neelam Singh and Gajraj Singh.

6. Being aggrieved by the judgment and decree passed by the Trial Court, appellants preferred an appeal which too has been dismissed by impugned judgment and decree dated 09.03.2022 passed by II Additional Judge to the Court of I District Judge, Basoda, District Vidisha (M.P.) in RCA No.100009/2016.

7. Challenging the judgment and decree passed by courts below, it is submitted by counsel for appellants that Tahsildar has no jurisdiction to partition the land. Secondly, the findings recorded by the courts below with regard to oral partition between Neelam Singh and Gajraj Singh are not based on evidence but they are based on surmises and conjectures and proposed the following substantial questions of law:

2.1 Whether the learned court below has mistaken in interpreting the law and the provisions of section 178 of MP Land revenue Code, by holding the direction given by the Tahsildar of deleting the name of applicant from the records of land in question?

NEUTRAL CITATION NO. 2025:MPHC-GWL:7852

2.2 Whether the learned Tahsildar has misinterpreted the language of section 178 of MPLRC by deciding the title of the property, which otherwise cannot be adjudicated under his jurisdiction?

2.3. When the khasra entries continued to reflect in the joint names but if one party without any documentary proof, substantially asserts about the old partition, then as per section 101 and 103 of the Evidence Act, the burden of proof of the facts, rests on the party who wishes the court to believe in existence of such 'old partition' or on the party who denies it?

2.4 Whether as per Law, if one of the joint account holders of undivided Hindu family (HUF) claims the joint ancestral property on the ground of adverse possession, can it be allowed and decreed or should it be dismissed on the ground that the 'ouster-Possession of one Co-heirs is considered as possession of all'?

2.5 Whether the courts below have dismissed the suit of the plaintiff by misreading and misinterpreting the oral and documentary evidence on record?

8. Per contra, counsel for respondents has supported the findings recorded by the courts below. Neelam Singh, father of plaintiffs, had filed an application under Section 178 of M.P. Land Revenue Code which was registered as Case No.123/A27/2009-10 village Nateran and by order dated 11.04.2011, the application was rejected on the ground that an oral partition has already taken place between the parties.

9. Heard learned counsel for the parties.

10. Although during the course of arguments, counsel for appellants tried to demolish the aforesaid findings of oral partition recorded by Tahsildar on the ground of jurisdiction but he fairly conceded that Tahsildar has jurisdiction to partition of holdings under Section 178 of M.P. Land Revenue Code. Thus, it is clear that the contention of counsel for appellants that Tahsildar has no jurisdiction to entertain an application for partition is misconceived and is hereby

NEUTRAL CITATION NO. 2025:MPHC-GWL:7852

rejected.

11. The next question for consideration is as to whether finding given by both the courts below that an oral partition had already taken place about 25-30 years back and land situated in village Bhiyakhedi and Nateran went to the share of Gajraj Singh and the land situated in village Bhairobag went to the share of Neelam Singh is correct or not?

12. The defendants had specifically taken a stand that Neelam Singh has alienated the property situated in village Bhairobag. By sale-deed dated 05.06.1985 (Ex.D-5), Neelam Singh and Gajraj Singh had jointly alienated the land situated in village Bhairobag to Ram Singh. Similarly, by sale deed dated 24.07.1987, Neelam Singh and Gajraj Singh had jointly alienated the land situated in village Bhairobag to Shankar Singh. Thus, it is clear that till 24.07.1987, the lands were joint and therefore, by executing joint sale deeds Neelam Singh and Gajraj Singh had sold certain pieces of lands situated in Bhairobag to Ram Singh and Shankar Singh. Thereafter, by sale deed dated 13.07.1989 Ex.D-2, Neelam Singh all alone alienated a piece of land situated in village Bhairobag to Mahendra Singh. Similarly, by sale-deed dated 19.08.1991 Neelam Singh all alone alienated another piece of land situated in village Bhairobag to Dharu Singh. By sale deed dated 13.08.1991, again Neelam Singh by his own alienated another piece of land situated in village Bhairobag to Kalyan Singh. Thus, it is clear that till 1987, the lands were joint and thereafter it appears that a family partition took place between the parties and from the year 1989 onwards Neelam Singh had alienated the land situated in village Bhairobag to different persons by executing sale deeds on his own. Thus, the contention of defendants/respondents that an oral partition had taken place about 25 years back is supported by documentary evidence and conduct of Neelam Singh.

13. Even if the plaint is considered, then it is clear that plaintiffs did not

NEUTRAL CITATION NO. 2025:MPHC-GWL:7852

disclose that who was the original owner of the property and how much property was left by their father. In paragraph 1, it was merely mentioned that Neelam Singh was the son of Natthu Singh and Neelam Singh has one half share in land situated in village Bhiyakhedi and Nateran. What was the total land left by Natthu Singh has not been clarified. This vague plaint was filed with a dishonest intention to exclude the property got by Neelam Singh situated in village Bhiyakhedi. Therefore, it is clear that plaintiffs had not approached the Court with clean hands.

14. Be that whatever it may be.

15. Once this Court has come to a conclusion that till the year 1987, the lands were joint and later on sometime in the year 1987-89, lands were partitioned and thereafter Neelam Singh started alienating the land situated in village Bhairobag on his own, this Court is of considered opinion that the concurrent findings of fact recorded by the courts below with regard to oral partition between Neelam Singh and his brother Gajraj Singh is based on sound appreciation of evidence. Even otherwise, it is well established principle of law that this Court, in exercise of powers under Section 100 of CPC, cannot interfere with the concurrent findings of fact even if they are erroneous.

16. The Supreme Court in the case of Dinesh Kumar v. Yusuf Ali reported in (2010) 12 SCC 740 has held as under:-

13. A second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is the obligation on the court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.

14. In Ram Prasad Rajak v. Nand Kumar & Bros. [(1998) 6 SCC 748 : AIR 1998 SC 2730] , this Court held that existence of the substantial question of law is a sine qua non for the exercise of jurisdiction under Section 100 of the Code and entering into the question as to whether the need of the landlord was bona fide or not,

NEUTRAL CITATION NO. 2025:MPHC-GWL:7852

was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record.

15. There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law" and "substantial question of law". Question means anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the realm of jurisprudence, has been explained as under:

"A question of fact is one capable of being answered by way of demonstration--a question of opinion is one that cannot be so answered. The answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong."

(Vide Salmond on Jurisprudence, 12th Edn., p. 69, cited in Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [(1994) 1 SCC 682], at SCC p. 705, para 34.)

16. In RBI v. Ramakrishna Govind Morey [(1976) 1 SCC 803 :

AIR 1976 SC 830] this Court held that whether the trial court should not have exercised its jurisdiction differently, is not a question of law or a substantial question of law and, therefore, the second appeal cannot be entertained by the High Court on this ground.

17. In Kulwant Kaur v. Gurdial Singh Mann [(2001) 4 SCC 262] this Court held that the question whether the lower court's finding is perverse may come within the ambit of substantial question of law. However, there must be a clear finding in the judgment of the High Court as to perversity in order to show compliance with the provisions of Section 100 CPC. Thus, this Court rejected the proposition that scrutiny of evidence is totally prohibited in the second appeal.

18. In Sheel Chand v. Prakash Chand [(1998) 6 SCC 683 : AIR 1998 SC 3063] , this Court held that question of reappreciation of evidence and framing the substantial question as to whether the findings relating to the factual matrix by the court below could vitiate due to irrelevant consideration and not under law, being question of fact cannot be framed.

NEUTRAL CITATION NO. 2025:MPHC-GWL:7852

19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa [(2000) 6 SCC 120] this Court held that it is not permissible for the High Court to decide the second appeal by reappreciating the evidence as if it was deciding the first appeal unless it comes to the conclusion that the findings recorded by the court below were perverse.

20. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC 1428] this Court held that it is permissible to interfere even on question of fact but it has to be done only in exceptional circumstances. The Court observed as under : (SCC pp. 637-38, para

6) "6. ... While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would in our view be too broad a proposition and too rigid an interpretation of law not worthy of acceptance but that does not also clothe the superior courts within jurisdiction to intervene and interfere in any and every matter--it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible--it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection."

21. In P. Chandrasekharan v. S. Kanakarajan [(2007) 5 SCC 669] this Court reiterated the principle that interference in the second appeal is permissible only when the findings are based on misreading of evidence or are so perverse that no person of ordinary prudence could take the said view. More so, the Court must be conscious that intervention is permissible provided the case involves a substantial question of law which is altogether different from the question of law. Interpretation of a document which goes to the root of title of a party may give rise to a substantial question of law.

22. In Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali [(2007) 11 SCC 668 : (2008) 1 SCC (L&S) 964] this Court considered the scope of appeal under Section 30 of the Workmen's Compensation Act, 1923 and held as under : (SCC pp. 679-80, paras 39-40 & 42)

NEUTRAL CITATION NO. 2025:MPHC-GWL:7852

"39. Section 30 of the said Act postulates an appeal directly to the High Court if a substantial question of law is involved in the appeal.

40. A jurisdictional question will involve a substantial question of law. A finding of fact arrived at without there being any evidence would also give rise to a substantial question of law. ...

***

42. A question of law would arise when the same is not dependent upon examination of evidence, which may not require any fresh investigation of fact. A question of law would, however, arise when the finding is perverse in the sense that no legal evidence was brought on record or jurisdictional facts were not brought on record."

Similar view has been reiterated by this Court in Anathula Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594] .

23. In Rishi Kumar Govil v. Maqsoodan [(2007) 4 SCC 465] this Court while dealing with the provisions of Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and Rule 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, held that the bona fide personal need of the landlord is a question of fact and should not be normally interfered with.

24. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter. [Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] , Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353] , Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423] , Ragavendra Kumar v. Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000 SC 534] and Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285] ] 25 [Ed. : Para 25 corrected vide Official Corrigendum No. F.3/Ed.B.J./68/2010 dated 9-7-2010.] . Thus, the law on the subject emerges to the effect that second appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the

NEUTRAL CITATION NO. 2025:MPHC-GWL:7852

findings of fact recorded by the courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to reappreciate the evidence. The landlord is the best judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent."

17. Even otherwise, in this case, this Court has elaborately considered the evidence led by the parties and has found that the findings recorded by courts below are just and proper. Accordingly, no substantial question of law arises in the present appeal.

18. Ex. Consequenti, judgment and decree dated 09.03.2022 passed by II Additional Judge to the Court of I District Judge, Basoda, District Vidisha (M.P.) in RCA No.100009/2016 and judgment and decree dated 10.12.2015 passed by II Civil Judge Class- I, Ganjbasoda, District Vidisha (M.P.) in RCSA No.97/2015 are hereby affirmed.

19. Appeal fails and is hereby dismissed.

(G.S. Ahluwalia) Judge pd