Madhya Pradesh High Court
Kuman Bannatwala vs Subham Bannatwala on 17 April, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:17925
1 SA-2671-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 17 th OF APRIL, 2025
SECOND APPEAL No. 2671 of 2024
KUMAN BANNATWALA
Versus
SUBHAM BANNATWALA
Appearance:
Shri Dharmendra Kumar Kaurab - Advocate for the appellant.
Shri Surya Pratap Singh Rai - Advocate for respondent.
JUDGMENT
The present Second appeal under Section 100 of Civil Procedure Code has
been filed against the judgment and decree dated 31st August 2024 passed by
IIIrd Additional District Judge, Burhanpur, M.P., whereby learned Additional
District Judge, Burhanpur who has dismissed the appeal and confirmed the
judgment of the trial court dated 01.02.2023 passed in RCS A/74/2017. The
appellant has lost in both the courts.
2. Learned First Civil Judge, Junior Division, Burhanpur decreed the suit in
RCS A/74/2017 (Subham Bannatwala Vs. Kuman Bannatwala) vide its judgment
and decree dated 01.2.2023, which was filed for getting the vacant possession of
the suit property alongwith arrears of rent and mense profit for the rented suit
premises.
3. In the trial court it was an admitted fact between the parties that the
plaintiff is nephew of the defendant and it is also agreed that suit property situated
in Burhanpur City, Plot No.57/1 of Nazul Block No.41, which is mentioned in
detail in Para-1 of its judgment was orally partitioned between Madangopalji
Bannatwala, i.e. father of the defendant and plaintiff. Regarding that partition
Yaaddast/Ishmariti Patra, dated 6.2.2012 was executed.
4. On an appeal by the defendant, learned IIIrd Additional District Judge,
Burhanpur in RCA No.35/2023, vide its judgment and decree dated 31st of August
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2024 dismissed the appeal.
5. At the time of arguments, it was submitted that as there was no partition,
therefore, Madangopalji Bannatwala, i.e. father of the defendant and grand-father
of the plaintiff had no right to make a Will dated 5.9.2012. It was also submitted
that First Appellate Court wrongly dismissed the application of the appellant -
defendant under Order 41, Rule 27 of CPC and an application under Order 6, Rule
17 of CPC. First Appellate Court also erred in admitting an unregistered agreement
as a Rent Agreement whereas validity of the same is more than one year in
perpetuity, therefore, registration of the same was required.
6. Considered the arguments and perused the record.
7. On perusal of the record especially agreement (Ex.P-7), it is seen that
suit property was already settled between Kuman Bannatwala and father of
defendant, i.e. Krishnadas Bannatwala. Regarding rejection of applications under
Order 6, Rule 17 of CPC and under Order 41, Rule 27 of CPC filed before the
First Appellate court, it is seen that new pleadings were sought to be impleaded for
the first time and in application under Order 6, Rule 17 of CPC, it is not
mentioned as to why these pleadings could not be impleaded earlier. Therefore,
the application under Order 6, Rule 17 of CPC and the application under Order 41,
Rule 27 of CPC have rightly been dismissed by the First Appellate Court by a
reasoned order as depicted in Para-18 to Para 32 of the impugned judgment of the
First Appellate Court which cannot be interfered with at the stage of second
appeal.
8. On perusal of pleadings of both the parties, issues framed and evidence
led by the parties, this court is of the view that both the courts have considered all
factual and legal position and there is nothing by way of any substantial question
of law on which this appeal can be admitted.
9. At the time of arguments, it was also stated that the suit property had
interest of other family members but any party which is not impleaded in the suit,
needless to say that any judgment would not be applicable against said particular
party and that party is always free to proceed as per law. It was also submitted that
proper issues were not framed by the trial court. In this regard, if objection as
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taken against the issue and no request was made or issues were not challenged
before the competent court then after fighting out the whole suit and loosing the
same, taking of objection regarding issue now in second appeal is nothing but it is
an afterthought. Even otherwise, in the First Appellate Court, the plaintiff sought
to amend his pleadings. Meaning thereby, that if he had something extra to say
which he failed to say in his Written Statement, and when he did not put his entire
case before the trial court, then it was his fault, for which, trial cannot be reopened
unless specific pleadings or arguments is made as to why these pleadings were not
made or raised before the trial court.
10. Even otherwise, the jurisdiction of this Court to interfere with the
findings of fact under Section 100 of the Code of Civil Procedure is well defined
by catena of decisions of the Supreme Court. This Court cannot interfere with the
finding of fact until or unless the same is perverse or contrary to material on
record. [See: Narayan Rajendran and Anr. v. Lekshmy Sarojini and Others, (2009)
5 SCC 264, Hafazat Hussain v. Abdul Majeed and Others, (2001) 7 SCC 189,
Union of India v. Ibrahim Uddin and Antoher, (2012) 8 SCC 148, D.R. Rathna
Murthy v. Ramappa, (2011) 1 SCC 158 Vishwanath Agrawal v. Sarla Vishnath
Agrawal, (2012) 7 SCC 288, Vanchala Bai Raghunath Ithape v. Shankar Rao Babu
Rao Bhilare, (2013) 7 SCC 173 and Laxmidevamma and Others v. Ranganath and
Others, (2015) 4 SCC 264] The concurrent findings of fact recorded by the courts
below are based on meticulous appreciation of evidence on record which by no
stretch of imagination can be said either to be perverse or based on no evidence.
11. For the reasons discussed above, this appeal has no merit and is
accordingly dismissed.
(AVANINDRA KUMAR SINGH)
JUDGE
bks
