Madhya Pradesh High Court
Hariram vs Ramsewak Died Through Lrs (1A) Kanchan ... on 21 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 SA. No. 370 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 21st OF JANUARY, 2025
SECOND APPEAL No. 370 of 2024
HARIRAM
Versus
RAMSEWAK DIED THROUGH LRS (1A) KANCHAN BAI AND OTHERS
Appearance:
Shri Rishikesh Bohare- Advocate for appellant.
Shri S.S. Kushwaha- Government Advocate for respondent/State.
JUDGMENT
This Second Appeal, under Section 100 of CPC has been filed against the
judgment and decree dated 17.01.2024 passed by First District Judge, Mungaoli,
District Ashok Nagar (M.P.) in RCA No.15/2022 as well as against judgment and
decree dated 30.06.2022 passed by Civil Judge, Senior Division, Mungaoli,
District Ashok Nagar (M.P.) in Civil Suit No.79A/2012.
2. The facts necessary for disposal of present appeal, in short, are that the
respondent filed a suit for declaration of title and permanent injunction as well as
for declaration of sale deed dated 08.11.2006 as null and void to the extent of his
share.
3. Undisputed facts are that plaintiff, namely, Ramsewak who is being
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represented by his legal representatives as respondents No.1(a) to 1(e), appellant
Hariram and late Ashok Kumar were real brothers.
4. It is the case of the plaintiff that plaintiff, defendant No.1 and late Ashok
Kumar were residing jointly. The disputed land was jointly purchased about 30-35
years back from defendant No.4 for consideration of amount of Rs.1,00,000/-. It
was alleged that for purchasing the said property, the house which was joint
property situated on Station Road was alienated. Defendant No.4, after receiving
the full consideration amount, handed over the possession to plaintiff, defendant
No.1 and late Ashok Kumar. Thereafter, a mutual partition took place and plaintiff
was given a part of land/out of Khasra No.136/1 and accordingly he constructed a
house over 40x90 sq.ft. of land and is residing in the same. Adjoining to the house
of plaintiff, houses of defendants are situated. On southern side of the house,
plaintiff had dug a well and on the remaining land plaintiff, defendant No.1 and
late Ashok Kumar were jointly carrying out agricultural activities. Since
defendant No.1 was a government employee and was posted at Datia, therefore,
plaintiff was giving money to him by going to Datia. When defendant No.4 fell ill
then he stated that he would come and execute the sale deed in respect of disputed
property. The houses of the plaintiff and defendants are situated over the disputed
land, however, defendant No.1 without knowledge and consent of plaintiff got the
sale deed executed in his name on 08.11.2006 and also got his name mutated.
When the plaintiff came to know about such mutation then he preferred an appeal.
It was pleaded that the land in question is a joint hindu family property in which
the plaintiff has 1 / 4 share and thus it was claimed that sale deed dated
08.11.2006 executed by defendant No.4 in favour of defendant No.1 is void to the
extent of share of plaintiff. It was further alleged that defendant No.1 is trying to
dispossess the plaintiff from the disputed land and house. Thus, the suit was filed.
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5. Defendants No.1 to 3 admitted the relationship of the parties but claimed
that defendant No.1 had never resided jointly with his siblings. Even at the time
of purchase of property, plaintiff was not residing jointly. Defendant No.1 has got
the sale deed executed on 08.11.2006 after making payment of consideration
amount of Rs.1,83,000/-. The house of plaintiff is not situated on the disputed
property. The suit has been filed belatedly and it is beyond the period of
limitation. Defendants No.2 and 3 have been wrongly impleaded as defendants
and therefore the suit suffers from misjoinder of parties.
6. Defendant No.4 has expired and defendants No.4(a) to 4(d) are the legal
representatives of defendant No.4. Since they did not appear before the Trial
Court, therefore, they were proceeded ex parte.
7. The Trial Court, after recording the evidence of parties, came to the
conclusion that house of plaintiff is situated over the land in dispute in which he is
residing. He has 1/4 share in Khasra No.136/1 area 1.264 hectare and Khasra
No.137/4 area 0.475 hectare and accordingly he is entitled to get his name
mutated in the revenue records and is also entitled for getting the property
partitioned. However, it was held that the plaintiff has failed to prove that any
prior partition had taken place between the parties. The permanent injunction was
also issued against the defendants thereby restraining them from interfering with
the peaceful possession of the plaintiff on the disputed property.
8. Being aggrieved by aforesaid judgment and decree passed by the Trial
Court, appellant preferred an appeal which too has been dismissed by First
District Judge, Mungaoli, District Ashok Nagar (M.P.) in RCA No.15/2022.
9. Challenging the judgment and decree passed by the courts below, it is
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submitted by counsel for appellant that appellant had purchased the property by
registered sale deed dated 08.11.2006 after making payment of consideration
amount of Rs.1,83,000/-. It is submitted that consideration amount was paid out
of his own personal income. The property was never joint property and proposed
the following substantial questions of law:-
i- Whether as per the law learned courts below have passed the
judgment decree by exceeding the jurisdiction?
ii- Whether learned courts below erred in law in shifting the
burden of prove upon the defendant while it is trite law that plaintiff
will have to prove his case?
iii- Learned courts below have committed grave error in ignoring
the admission of plaintiff evidence which says that disputed property
was purchased by the defendant by his own income earned through
his business?
iv- Whether judgment and decree passed by the learned courts
below are bad in law and deserves to be set aside?
v- Whether findings of learned courts below are perverse and
against the record?
10. Heard learned counsel for appellant.
11. Appellant, in his written statement, had claimed that the plaintiff had
separated himself from the family of defendants No.1 and 2 about 30 years back
and was residing separately. It was pleaded that the amount of consideration was
paid by appellant/defendant No.1 from his own income and the property in
dispute was not purchased out of the income derived from the joint property. Sale
deed dated 08.11.2006 has been placed on record as Ex.P-25. From the said sale
deed, it is clear that it was specifically mentioned that the entire consideration
amount of Rs.50,000/- was already received by the seller/defendant No.4 about 10
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years back and possession was also delivered and ultimately sale deed was
executed on 08.11.2006. Defendant No.1 Hariram had admitted in his cross-
examination that earlier the plaintiff, Ashok Kumar as well as defendant No.1
were residing jointly in the house situated in front of the house of Vinodi Lal and
the said house was alienated jointly by all the three brothers and their father. In
paragraph 10, he admitted that at present appellant/defendant No.1 is running a
sawmill and is also in the business of gelatin and leather. It was alleged that he is
running sawmill for the last 20 years whereas plaintiff was in the business of
timber for the last 40 years. However, he denied that during his minority it was
plaintiff -Ramsewak who was bearing the expenses of defendant No.1 and his late
brother Ashok Kumar. He further admitted that at the time of execution of Sale
deed dated 08.11.2006 Ex.P-25 no money was given by him to the vendor and he
was also not in a position to disclose that when and where money was paid to
defendant No.4. He further admitted that he never went to Datia or Gwalior to
make payment of consideration amount to defendant No.4- Balram Rana @
Balwant Singh.
12. Now, the only question for consideration is as to whether it was defendant
No.1/appellant who had paid entire consideration amount out of his personal
income or it was purchased out of the proceeds of joint hindu family property?
13. Appellant has filed IA. No.910/2024 under Order XLI Rule 27 of CPC. In
this application, it is mentioned that appellant was independently carrying out
timber work from 1990 and thereafter he extended his business and purchased the
sawmill from one Kasturi Bai on 07.12.1994. Thus, in the evidence, it was the
case of appellant that he purchased the sawmill in the year 1994 but at the same
time it was the case of appellant that plaintiff was in the timber business for the
last 40 years. In the written statement as well as in the evidence, appellant never
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claimed that prior to purchasing the sawmill he was in the business of timber.
However, such claim has been made for the first time in his application filed
under Order XLI Rule 27 of CPC. Therefore, it is clear that appellant had no
independent source of income prior to purchase of his sawmill. Furthermore, in
cross-examination, appellant has admitted that appellant, plaintiff as well as late
Ashok Kumar were residing in a house situated in front of house of Vinodi Lal
and it was jointly sold by them and their father. When the said property was sold
has not been clarified by appellant. It is the specific case of plaintiff that the sale
proceeds of the said house were utilized for purchasing the property in question.
The sale deed Ex.P-25 was executed on 08.11.2006 and according to such sale
deed the consideration amount was already paid to the vendor about 10 years
back and possession was also delivered by vendor about ten years back. Appellant
was not in a position to disclose the dates on which the consideration amount was
paid by him to the vendor. Both the courts below have given concurrent finding of
fact that property in dispute is a joint hindu family property because it was
purchased out of the proceeds of joint hindu family property.
14. At this stage, it is submitted by counsel for appellant that since plaintiff has
not impleaded sisters as defendants, therefore, the suit is bad in law on account of
non-joinder of necessary parties. However, it was fairly conceded that appellant
never raised this objection at any point of time and he is raising this objection for
the first time during the course of arguments. It was also submitted by counsel for
appellant that sisters have now filed their suit for claiming their share in property.
Under these circumstances, where the objection with regard to non-joinder of
necessary party was never raised and sisters have also now filed suit for claiming
their share, in the considered opinion of this Court, no substantial question of law
arises in the present appeal.
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15. Furthermore, it is well established principle of law that even if the findings
recorded by courts below are erroneous, still the same cannot be interfered with in
exercise of powers under Section 100 CPC unless and until those findings are
shown to be perverse. 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, 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
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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.
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]
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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)
"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
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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
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."
16. As no substantial question of law arises in the present appeal, accordingly,
appeal fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
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