Madhya Pradesh High Court
Abdul Karim (Deceased) Through Legal ... vs Mo. Iqbal on 17 April, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
SECOND APPEAL No. 1451 of 2021
ABDUL KARIM (DECEASED) THROUGH LEGAL HEIRS SMT.
JANNAT BEE AND OTHERS
Versus
MO. IQBAL
Appearance:
Shri Nilesh Agrawal - advocate for the appellant.
JUDGMENT
RESERVED ON : 28.3.2025
PRONOUNCED ON : 17.4.2025
Heard on the question of admission.
2. This Second appeal under Section 100 of Civil Procedure Code
(for brevity, CPC) has been filed by the appellant against the Judgment &
Decree dated 08-01-2021, passed in Civil Regular\Appeal No. 17/2015, by
the Learned Third Additional District Judge, Mhow, dismissing the Civil
Regular Appeal filed by Appellant/Defendant arising out of the Judgment &
Decree dated 31-08-2015, passed in Original Civil Suit No. 19A/2007 by the
Learned First Civil Judge, Class I, Mhow Dist. Indore.
3. The facts necessary for disposal of the present appeal in brief are
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that Respondent/Plaintiff has filed a suit for Declaration, Perpetual Injunction &
Mandatory Injunction for the grant of possession with respect to suit property
bearing 1/3rd Northern portion of House No. 1430, Kayasth Mohallah,
Mhow,Dist. Indore. Appellant and Respondent are relatives. Whole House No.
1430, Kayasth Mohallah, Mhow, was originally belonging to Grandfather of both
the parties i.e. Late Shri Ilahibaksh. Ilahibaksh had two daughters and 6 sons
namely Abdul Karim, Abdul Rehman, Abdul Khalik, Abdul Razzak, Noor
Mohammad and Abdul Sattar. Ilahibaksh, his wife and his two daughters and
Sons namely Abdul Khalik, Abdul Razzak, Noor Mohammad and Abdul Karim
had expired. Earlier tenant Nasir S/o Gulam Rasool was in occupation of the suit
premises, who has died during the pendency of the suit and thereafter his legal
heirs had vacated the said premise in favour of appellant, since then, present
appellants are residing in the suit property and hence they are in possession.
Plaintiff pleaded that, House No. 1430, Kayasth Mohallah, Mhow, was originally
belonging to his Grandfather i.e. Late Shri Ilahibaksh. After the demise of
Ilahibaksh, oral partition took place between the parties, wherein the house was
divided into three parts. Northern portion of the house was given in the share of
Abdul Rehman, Centre portion of the house was given in the share of Abdul
Karim and Southern portion of the house was given in the share of Abdul Sattar.
Abdul Rehman has conveyed the Northern portion of the said house i.e. the suit
property vide Hibba dated 16-08-1998 and later on a memorandum was also
notarized to that effect. Thereby, he became the owner of the suit property. He
also got his name mutated in the land record of Cantonment Board, Mhow. Nasir
was tenant in the suit property and Defendant Abdul Karim with malafide
intention filed an eviction suit against Nasir and after the demise of Nasir, his
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legal representatives entered into a compromise with appellant and handed over
the possession of the suit property to the appellants, which is illegal. Thus, a suit
for Declaration, Perpetual Injunction & Mandatory Injunction for the grant of
possession was filed by the Respondent/plaintiff.
4. Appellant/Defendant contested the said suit before the trial court and
denied all the pleadings of the plaintiff and further pleaded that, no any partition
of the suit property after the demise of Ilahibaksh even took place and plaintiff
has got his name mutated in the land record of Cantonement Board at the back of
defendants without giving any information or notice thereof. As no any partition
ever took place so no any question of Hibba arises. Hibba is an unregistered
document which does not confer any title in favour of Plaintiff. It was further
pleaded by the defendants that, the suit filed by the plaintiff suffers from the
infirmities of non-joinder of parties as all the legal heirs has not been impleaded
as a necessary party in the present suit and plaintiff has never received any rent
from the tenant Nasir. in light of the aforementioned facts and ground defendant
pleaded that, plaintiff has no right in the suit property and prayed for dismissal of
the said suit. It was further pleaded by the defendants that, the suit property was
occupied by a Tennant against whom an eviction suit was filed by the Defendant,
wherein a judgment and decree has been passed by Learned Fourth Additional
District Judge, Mhow on 18-05-2012 and the possession of the suit property was
provided to appellant from the said tenant as the appellant was the owner and
possessor thereof. In light of the judgment and decree so passed by the Learned
Appellate court, suit preferred by the plaintiff deserves to be quashed at
threshold.
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5. On the basis of pleadings, issues were framed by the learned trial court
and evidence was led by both the parties, before the learned trial court.
Thereafter, hearing both the parties Learned Trial court passed the impugned
judgment and decree dated 31-08-2015, and Allowed the suit filed by
Plaintiff/Respondent. Being aggrieved by the aforesaid judgment and decree
Civil Regular Appeal was preferred by the appellant before learned appellate
court below which was registered as F.A. No. 17A/2015, which was dismissed by
the Learned Third Additional District Judge, Mhow, vide impugned Judgment &
Decree dated 08-01-2021.
6. Learned counsel for the appellant submitted that both the learned Lower
courts had erred in not considering that, Plaintiff was required to prove the
partition of house no. 1430 and thereafter Hibba in his favour, but not a single
document or oral evidence with respect to partition has been lead by the Plaintiff.
The courts have not considered the fact that, to prove the oral partition, plaintiff
was duty bound to plead and prove the date of oral partition and in whose
presence it was done, but the same has neither been pleaded by the plaintiff nor
proved in his evidence.That, Both the learned Lower courts had erred in not
considering the law that no pleadings could have been proved by either party
without leading cogent evidence. Merely family arrangements cannot be treated
as family partition, i.e. due to big family people residing separately cannot be the
basis to presume that, partition has taken place. If partition took place, then
plaintiff should have pleaded and proved the consequence of the other properties
owned by Ilahbaksh, that how they were parted. Once the oral partition has not
been proved in accordance with law, then even if any hibba in favour of Plaintiff
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by Abdul Rehman is assumed to be proved, then also it does not enlarge any
benefit to the plaintiff. Hibba Ex. P/2, has not been proved by the plaintiff in
accordance of the provisions of Indian Evidence Act. as per the settled proposition
of law, any property situated within the vicinity of cantonment board cannot be
transferred vide unregistered hibba. there is no any endorsement of partition or
hibba in the land record of Cantonment Board, Mhow (Ex. P/1), even then courts
below have erred in recording the findings thereof. The judgment and decree
passed by the courts below suffers from infirmity and perversity on account of
mis-appreciation and non-appreciation of material pieces of evidence, thus liable
to be set aside.
7. Notice has not been issued and the matter is considered at admission
stage.
8. Heard learned counsel for the appellant and perused the record.
9. 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 mentioned in
section 100 of CPC.
10. 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
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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 ; Kashmir Singh v. Harnam Singh ; V. Ramaswamy v.
Ramachandran and Bhag Singh v. Jaskirat Singh .)
1 7 . 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].
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1 8 . I n 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 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 where it is found that the findings
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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."
11. 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 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?
12. 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
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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 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."
13. Hon'ble Apex Court in the case of Pakeerappa Rai Vs. Seethamma Hengsu
Dead by L.R.s and others reported in (2001) 9 SCC 521 has again held as under :
" 2...But the High Court in exercise of power under Section 100 CPC
cannot interfere with the erroneous finding of fact howsoever the gross
error seems to be...."
14. With regard to fact findings of trial Court as well as the appellate Court in
order to frame substantial question law in second appeal, the following view of
the Hon'ble Apex Court rendered in the case of Kondiba Dagadu Kadam v.
Savitribai Sopan Gujar; (1999) 3 SCC 722, is condign to quote here under:-
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"5. It is not within the domain of the High Court to investigate the
grounds on which the findings were arrived at, by the last court of fact,
being the first appellate court. It is true that the lower appellate court
should not ordinarily reject witnesses accepted by the trial court in
respect of credibility but even where it has rejected the witnesses
accepted by the trial court, the same is no ground for interference in
second appeal when it is found that the appellate court has given
satisfactory reasons for doing so. In a case where from a given set of
circumstances two inferences are possible, one drawn by the lower
appellate court is binding on the High Court in second appeal.
Adopting any other approach is not permissible. The High Court
cannot substitute its opinion for the opinion of the first appellate court
unless it is found that the conclusions drawn by the lower appellate
court were erroneous being contrary to the mandatory provisions of
law applicable or its settled position on the basis of pronouncements
made by the Apex Court, or was based upon inadmissible evidence or
arrived at without evidence.
6. If the question of law termed as a substantial question stands already
decided by a larger Bench of the High Court concerned or by the Privy
Council or by the Federal Court or by the Supreme Court, its merely
wrong application on the facts of the case would not be termed to be a
substantial question of law. Where a point of law has not been pleaded
or is found to be arising between the parties in the absence of any
factual format, a litigant should not be allowed to raise that question as
a substantial question of law in second appeal. The mere appreciation
of the facts, the documentary evidence or the meaning of entries and
the contents of the document cannot be held to be raising a substantial
question of law. But where it is found that the first appellate court has
assumed jurisdiction which did not vest in it, the same can be
adjudicated in the second appeal, treating it as a substantial question of
law. Where the first appellate court is shown to have exercised its
discretion in a judicial manner, it cannot be termed to be an error
either of law or of procedure requiring interference in second appeal.
This Court in Reserve Bank of India v. Ramkrishna Govind Morey
[AIR 1976 SC 830]held that whether the trial court should not have
exercised its jurisdiction differently is not a question of law justifying
interference"
15. 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
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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."
16. 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 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."
17. In view of the aforesaid pronouncements the material available in second
appeal is scrutinized.
18. In this case, the learned Trial Court after having discussed the oral and
documentary evidence available on record, adjudged that the said suit house was
originally owned by Ilahibaksh and after his demise it came into ownership of
three brothers namely Abdul Rehman, Abdul Karim and Abdul Sattar. The
defendant himself admitted that he has obtained middle part of the house. So far
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as the decision of eviction suit is concerned, since, the eviction suit can be filed
by any of the owner, the finding regarding conviction in favour of one co-owner
does not effect the title of other co-owner and it would not be binding on the title
suit. This view has been acknowledged by the both Courts below after proper
appreciation of evidence.
19. Under these conditions, the learned Trial Court considered the evidence
with regard to partition and Hiba and accordingly decreed the suit of one third of
disputed house. The first Appellate Court has also examined the evidence and
therefore, affirmed the findings of learned Trial Court. As such both Courts have
recorded concurrent findings of the fact that the plaintiff established his right in
disputed property. Accordingly, the finding of learned Trial Court is not suffering
from any pervercity, impropriety or illegality.
20. In purview 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 finding was rendered by the trial Court as
well as the appellate Court, therefore, no substantial question of law arises in this
case. Both the Courts have recorded the concurrent findings. Accordingly, this
Court is of the view that concurrent findings of trial Court as well as appellate
Court do not warrant any interference and in the result thereof, this Second
Appeal is hereby dismissed.
(PREM NARAYAN SINGH)
JUDGE
VD
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