Madhya Pradesh High Court
Ramlal vs Dipali on 8 April, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:9607
1 SA-577-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
SECOND APPEAL No. 577 of 2024
RAMLAL AND OTHERS
Versus
DIPALI AND OTHERS
Appearance:
Shri Yash Pal Rathore, learned counsel for the appellant.
Shri Shashikant Bhati, learned Panel Lawyer for the respondent/State[r-3].
Heard on : 28.02.2025
Pronounced on : 08.04.2025
JUDGMENT
With consent of both the parties, the appeal is heard at motion stage.
2. This Second appeal under Section 100 of Civil Procedure Code (for
brevity, CPC) has been filed by the appellant against the impugned judgment
and decree dated 08.12.2023 passed by the learned Principal District Judge,
District Alirajpur in Civil Appeal No. 4A/2022 confirming the Judgment and
decree dated 30.03.2022 passed by learned Additional Judge to the Court of
First Civil Judge, Junior Division, District Alirajpur in Civil Suit No.
1A/2017 whereby the learned trial Court dismissed the plaintiff's suit for
declaration, partition, possession and permanent injunction.
3. The facts necessary for disposal of the present appeal in brief are
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that as per plaintiff's case, the suit property originally belonged to Devji
grandfather of the respondent/plaintiff. It is averred that late Ghanshyam was
married with one Kiran in the year 2000 and further blessed with one
daughter child in the year 2002 named Dipali, who is plaintiff of this case.
After death of Ghanshyam, Dipali started to reside alongwith her mother
Kiran with her grandmother/Ladkibai. Further, Kiran was married to another
person. It is submitted that Devji in his life time made a formal partition of
his land bearing Survey No. 907 area 1.060 hectare. He has given one part to
Ghanshyam, father of Dipali. As per plaint, Ramlal, Tulsiram, Radheshyam
are the brothers of Ghanshyam. It is alleged that when the defendants /
appellants tried to alienate the share of plaintiff in the disputed property by
mutated it in the name of Jashodabhai, then, Dipali/plaintiff filed a suit in
this regard. It is also alleged that since Dipali is sole daughter of Late
Ghanshyam and Late Ghanshyam was the son of Late Deviji, Dipali is
entitled to get her share. Only because of her mother married with another
person, she cannot be eschewed to obtain her share from her late father's
ancestral property.
4. Defendants in their reply submitted that the suit was not properly
filed by Ladkibai as she has not been appointed guardian of Dipali as per
Guardian and Wards Act, 1890. It is further alleged that Ghanshyam was
expired on 24.07.2004 in Alirajpur but plaintiff mentioned date of death as
07.07.2004 in Khargone. On the basis of this statement, they have made
forged death certificate of Ghanshyam, hence, proceeding under Section 340
of Cr.P.C. Should be conducted against them. Further, it is stated that
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plaintiff was living with her mother not with her grandmother. It is also
contended that Ghanshyam has executed a will in the name of Radheshyam,
brother of Ghanshyam, so Radheshyam is the owner of Ghanshyam's
property. Again, it is submitted that sisters of Ghanshyam, namely Munnibai,
Jashodabai and Mithhibai have also not been made party in the case,
therefore, suit is not maintainable.
5. On the basis of these averments, 8 issues have been framed by the
learned trial Court and after appreciation of evidence, the trial Court has
found that Dipali is entitled for 1/4 share in the suit property. Further, having
arrayed the sisters of Late Ghanshyam i.e. Munnibai, Jashodabai and
Mithhibai as necessary party of the suit, the learned trial Court finally
adjudicated 1/7 share of plaintiff/Dipali. Being aggrieved by the judgment,
an appeal has been preferred before Principal District Judge, District
Alirajpur wherein after consideration, the appeal of appellants was dismissed
and order of learned trial Court was affirmed with modification that the said
decree would be treated as preliminary decree.
6. Being crestfallen by the judgment/decree of Appellate Court this
second appeal has been filed.
7. Challenging the judgment and decrees passed by the Courts below,
it is submitted by the Counsel for the appellants/defendants that the trial
Court as well as Appellate Court have not framed issues as per the averments
made by defendants and defendants had proved issues through their
documents and evidence in the case. The Courts below have neither properly
analysed nor drew proper conclusions from the written and oral evidence in
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the case and whatever conclusions it did and drew is entirely perverse. They
have also committed a grave error by not considering the disputed house as
an inherited property. The respondents/plaintiff in this case, had made a fake
fabricated documents regarding the death certificate of Ghanshyam in
Khargone to grab the property, on which the learned trial Court as well as
Appellate Court made a grave mistake by not considering it as a criminal act,
whereas under Section 340 of Cr.P.C., the order was to be passed. Further it
is contended that the respondent/plaintiff Ladkibai as the guardian of the
minor Deepali, whereas Ladkibai should have been considered the guardian
of the minor Deepali only after she was appointed as the guardian by the
Hon'ble High Court, for which the suit as not maintainable. Hence counsel
prayed that the appeal be admitted and impugned orders be set aside.
8. Per contra, it is submitted by counsel for respondents that both the
Courts below after considering the evidence and material on record in toto
have given concurrent findings of fact that the appellant/plaintiff has failed
to prove their case. There is no fake and forged documents submitted by the
respondents. In this case, as no perverse finding was given by the Courts
below and no substantial question of law is involved in this appeal, the
appeal may be dismissed in limine.
9. Heard learned counsel for the parties and perused the record.
10. The Second Appeal is filed under the provisions of Section 100 of
CPC which provides that Second Appeal is entertainable by the High Court
if it is satisfied that the case involves a substantial question of law. Section
101 of CPC provides that no second appeal shall lie except on the ground
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mentioned in section 100 of CPC.
11. At the outset the question of entertaining the second appeal is
required to be considered. On this aspect the Hon'ble Supreme Court in the
case of Municipal Committee, Hoshiarpur Vs. Punjab SEB, reported in
(2010) 13 SCC 216 has held as under:-
"16. Thus, it is evident from the above that the right to
appeal is a creation of statute and it cannot be created
by acquiescence of the parties or by the order of the
court. Jurisdiction cannot be conferred by mere
acceptance, acquiescence, consent or by any other
means as it can be conferred only by the legislature and
conferring a court or authority with jurisdiction, is a
legislative function. Thus, being a substantive statutory
right, it has to be regulated in accordance with the law
in force, ensuring full compliance with the conditions
mentioned in the provision that creates it. Therefore,
the court has no power to enlarge the scope of those
grounds mentioned in the statutory provisions. A second
appeal cannot be decided merely on equitable grounds
as it lies only on a substantial question of law, which is
something distinct from a substantial question of fact.
The Court cannot entertain a second appeal unless a
substantial question of law is involved, as the second
appeal does not lie on the ground of erroneous findings
of fact based on an appreciation of the relevant
evidence. The existence of a substantial question of law
is a condition precedent for entertaining the second
appeal; on failure to do so, the judgment cannot be
maintained. The existence of a substantial question of
law is a sine qua non for the exercise of jurisdiction
under the provisions of Section 100 CPC. It is the
obligation on the court to further clear the intent of the
legislature and not to frustrate it by ignoring the same.
(Vide Santosh Hazari v. Purshottam Tiwari; Sarjas Rai
v. Bakshi Inderjit Singh; Manicka Poosali v. Anjalai
Ammal; Sugani v. Rameshwar Das; Hero Vinoth v.
Seshammal; P. Chandrasekharan v. S. Kanakarajan;
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Kashmir Singh v. Harnam Singh; V. Ramaswamy v.
Ramachandran and Bhag Singh v. Jaskirat Singh.)
17. In Mahindra & Mahindra Ltd. v. Union of India ,
this Court observed*:
"12. ... it is not every question of law that
could be permitted to be raised in the second
appeal. The parameters within which a new
legal plea could be permitted to be raised, are
specifically stated in subsection (5) of
Section 100 CPC. Under the proviso, the
Court should be 'satisfied' that the case
involves a 'substantial question of law' and
not a mere 'question of law'. The reason for
permitting the substantial question of law to
be raised, should be 'recorded' by the Court.
It is implicit therefrom that on compliance of
the above, the opposite party should be
afforded a fair or proper opportunity to meet
the same. It is not any legal plea that would
be alleged at the stage of second appeal. It
should be a substantial question of law. The
reasons for permitting the plea to be raised
should also be recorded." [Kshitish Chandra
Purkait v. Santosh Kumar Purkait, (1997) 5
SCC 438, pp. 445- 46, para 10].
18. In Madamanchi Ramappa v. Muthaluru Bojjappa
this Court observed: (AIR pp. 1637-38, para 12):
"12. ... Therefore, whenever this Court is
satisfied that in dealing with a second appeal,
the High Court has, either unwittingly and in
a casual manner, or deliberately as in this
case, contravened the limits prescribed by
Section 100, it becomes the duty of this Court
to intervene and give effect to the said
provisions. It may be that in some cases, the
High Court dealing with the second appeal is
inclined to take the view that what it regards
to be justice or equity of the case has not
been served by the findings of fact recorded
by courts of fact; but on such occasions it is
necessary to remember that what is
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administered in courts is justice according to
law and considerations of fair play and equity
however important they may be, must yield
to clear and express provisions of the law. If
in reaching its decisions in second appeals,
the High Court contravenes the express
provisions of Section 100, it would inevitably
introduce in such decisions an element of
disconcerting unpredictability which is
usually associated with gambling; and that is
a reproach which judicial process must
constantly and scrupulously endeavour to
avoid."
19. In Jai Singh v. Shakuntala (SCC pp. 637-38, para
6) this Court held as under:
"6. ... 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."
Further Hon'ble Apex Court endorsing its another
judgment pen down as under:
23. In Kulwant Kaur v. Gurdial Singh Mann (SCC pp.
278-79, para 34) this Court observed as under:
"34. Admittedly, Section 100 has introduced
a definite restriction on to the exercise of
jurisdiction in a second appeal so far as the
High Court is concerned. Needless to record
that the Code of Civil Procedure
(Amendment) Act, 1976 introduced such an
embargo for such definite objectives and
since we are not required to further probe on
that score, we are not detailing out, but the
fact remains that while it is true that in a
second appeal a finding of fact, even if
erroneous, will generally not be disturbed but
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where it is found that the findings stand
vitiated on wrong test and on the basis of
assumptions and conjectures and resultantly
there is an element of perversity involved
therein, the High Court in our view will be
within its jurisdiction to deal with the issue.
This is, however, only in the event such a
fact is brought to light by the High Court
explicitly and the judgment should also be
categorical as to the issue of perversity vis-à-
vis the concept of justice. Needless to say
however, that perversity itself is a substantial
question worth adjudication -- what is
required is a categorical finding on the part of
the High Court as to perversity.
.....The requirements stand specified in
Section 103 and nothing short of it will bring
it within the ambit of Section 100 since the
issue of perversity will also come within the
ambit of substantial question of law as
noticed above. The legality of finding of fact
cannot but be termed to be a question of law.
We reiterate however, that there must be a
definite finding to that effect in the judgment
of the High Court so as to make it evident
that Section 100 of the Code stands complied
with."
12. In view of the aforesaid principle settled by Hon'ble Apex Court,
every question of law could not be permitted to be raised in Second Appeal,
there ought to be substantial question of law for entertaining such appeal and
such appeal is entertainable in very exceptional cases and on extreme
perversity. It is a rarity rather then regularity but where it is found that the
findings stand vitiated on wrong test and on the basis of assumptions and
conjectures and resultantly there is an element of perversity involved therein,
then Second Appeal should be entertained. In other words, perversity itself is
a substantial question worth adjudication. Here in this appeal, it is to be seen
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as to whether any perversity was committed by the Courts below and as to
whether any substantial question of law is involved in this Second Appeal?
13. So far as the 'perversity' is concerned, the Supreme Court in the
case of Damodar Lal Vs. Sohan Devi and others reported in (2016) SCC 78
has held as under :
"8. 'Perversity' has been the subject matter of umpteen
number of decisions of this Court. It has also been
settled by several decisions of this Court that the first
appellate court, under Section 96 of The Civil
Procedure Code, 1908, is the last court of facts unless
the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam and another [2207 INSC 908], it has
been held at paragraph-11 that:
"11. It may be mentioned that the first appellate court
under Section 96 CPC is the last court of facts. The
High Court in second appeal under Section 100 CPC
cannot interfere with the findings of fact recorded by
the first appellate court under Section 96 CPC. No
doubt the findings of fact of the first appellate court can
be challenged in second appeal on the ground that the
said findings are based on no evidence or are perverse,
but even in that case a question of law has to be
formulated and framed by the High Court to that effect.
..."
10. In Gurvachan Kaur vs. Salikram (Dead) through Lrs. [2010
(15) SCC 530] this principle has been reiterated:
"It is settled law that in exercise of power under Section
100 of the Code of Civil Procedure, the High Court
cannot interfere with the finding of fact recorded by the
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first appellate court which is the final court of fact,
unless the same is found to be perverse. This being the
position, it must be held that the High Court was not
justified in reversing the finding of fact recorded by the
first appellate court on the issues of existence of
landlord-tenant relationship between the plaintiff and
defendant and default committed by the latter in
payment of rent."
14. In this regard, in the case of Laxmidevamma v. Ranganath; (2015)
4 SCC 264, again the Apex court has held as under:-
"16. Based on oral and documentary evidence, both the
courts below have recorded concurrent findings of fact
that the plain-tiffs have established their right in A
schedule property. In the light of the concurrent
findings of fact, no substantial questions of law arose in
the High Court and there was no substantial ground for
reappreciation of evidence. While so, the High Court
proceeded to observe that the first plaintiff has
earmarked the A schedule property for road and that she
could not have full-fledged right and on that premise
proceeded to hold that declaration to the plaintiffs' right
cannot be granted. In exercise of jurisdiction under
Section 100 CPC, concurrent findings of fact cannot be
upset by the High Court unless the findings so recorded
are shown to be perverse. In our considered view, the
High Court did not keep in view that the concurrent
findings recorded by the courts below, are based on oral
and documentary evidence and the judgment of the
High Court cannot be sustained."
15. So also the Hon'ble Apex Court in case of Adiveppa & Others Vs.
Bhimappa & Others; (2017) 9 SCC 586 has held as under:-
"17. Here is a case where two Courts below, on
appreciating the entire evidence, have come to a
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conclusion that the Plaintiffs failed to prove their case
in relation to both the suit properties. The concurrent
findings of facts recorded by the two Courts, which do
not involve any question of law much less substantial
question of law, are binding on this Court.
18. It is more so when these findings are neither
against the pleadings nor against the evidence and nor
contrary to any provision of law. They are also not
perverse to the extent that no such findings could ever
be recorded by any judicial person. In other words,
unless the findings of facts, though concurrent, are
found to be extremely perverse so as to affect the
judicial conscious of a judge, they would be binding on
the Appellate Court."
16. In view of the aforesaid pronouncements the material available
regarding this second appeal is examined. In adjudicating this appeal the
moot question is as to whether the said decree for 1/7 share of
respondent/Dipali was correct in the eyes of law and facts.
17. In view of the findings of both Courts below, it emerged that the
trial Court after arraying the sisters as party and considering all facts,
declared 1/7 share of Dipali. Learned trial Court, after considering all the
facts and circumstances of the case, found that since Dipali is the sole
daughter of Late Ghanshyam who is brother of Ramlal, Tulsiram &
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Radheshyam and (sisters) Munnibai, Jashodabai & Mithhibai, she is entitled
for her share Therefore, 1/7 share of plaintiff/Dipali, learned Appellate Court
after considering all facts of the case, affirmed the decree with a
modification that said decree should be preliminary decree.
18. So far as the will of the suit property made by late Ghanshyam is
concerned, appellants/defendants are unable to produce any concrete
evidence to prove that will in accordance with Section 68 of Evidence Act.
Moreover, the said will (Ex.D-2) contains suspicious circumstances. In this
context, the following excerpt of Hon'ble Apex Court rendered in Sushila
Devi Vs. Pandit Krishna Kumar Mishra, AIR 1971 SC 2236 is condign to
quote here :-
"5........If the bequest made in a will appears to be
unnatural then the court has to scrutinise the evidence in
support of the execution of the will with a greater
degree of care than usual....."
19. In this case, the said will is looking suspicious because fluid has
been used over the will at three places during its execution and in this regard,
no cogent explanation has been assigned during the evidence. As such,
learned trial Court as well as learned Appellate Court, after proper evaluation
of evidence, recorded that said deed of will was not proved executed in
favour of brother Radheshyam by late Ghanshyam. Since said Will has not
been proved, respondent/plaintiff is entitled for her 1/7 share in the suit
property bearing Khasra No. 907 Area 1.060 hectare land.
20. In so far as proceeding under Section 340 of Cr.P.C. is concerned,
the said variation in date and place of death of Ghanshyam is having no
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importance in this case because death of Ghanshyam is undisputedly
established. Hence, in this regard, findings of learned trial Court as well as
learned Appellate Court does not warrant any interference.
21. In upshot of the aforesaid proposition of law, having examined the
facts and circumstances of the case in this second appeal, this Court is of the
considered opinion that no perverse findings were rendered by the learned
Appellate Court, therefore, no substantial question of law arises in this case.
Learned trial Court has recorded the findings in favour of plaintiff which has
been correctly modified by the learned Appellate Court adjudicating that the
decree should be treated as preliminary decree and respondent/plaintiff is
entitled for mesne profit after paying the appropriate Court fee. Accordingly,
this Court is of the view that findings of learned Appellate Court doesn't
warrant any interference and in the result thereof, this Second Appeal is
hereby dismissed.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
