Madhya Pradesh High Court
Bahadur Singh vs Bunty Singh @ Nihal Singh on 22 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:1452
1 SA. No. 737 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 22nd OF JANUARY, 2025
SECOND APPEAL No. 737 of 2022
BAHADUR SINGH
Versus
BUNTY SINGH @ NIHAL SINGH AND OTHERS
Appearance:
Shri N.K. Gupta- Senior Advocate with Ms. Rashi Kushwah- Advocate for
appellant.
JUDGMENT
This Second Appeal, under Section 100 of CPC, has been filed against
the judgment and decree dated 24.01.2022 passed by Additional Judge to the
Court of First Additional District Judge, Gohad, District Bhind (M.P.) in RCA
No.24/2017 as well as judgment and decree dated 24.03.2017 (wrongly
mentioned in the judgment as 24/03/2016) passed by III Civil Judge Class II,
Gohad, District Bhind (M.P.) in Civil Suit No.94A/2015 by which the suit filed
by appellant for declaration that respondent No.1 Banti Singh @ Nihal Singh
has died a civil death has been dismissed.
2. Facts necessary for disposal of present appeal, in short, are that appellant
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preferred a civil suit claiming that cousin brother of plaintiff was Rambharosi
Kaurav. Banti @ Nihal Singh was the solitary legal representative of
Rambharosi Kaurav. Cousin brother of appellant, namely, Rambharosi expired
in the year 1986. Wife of defendant No.1 died during the lifetime of defendant
No.1. Defendant No.1 was issueless and he was solitary legal representative of
his father. Defendant No.1 was of loose character and he was in the habit of
consuming liquor and gambling. Defendant No.1 has approximately 25 Bighas
of land in village Kanchanpur, Pargana Gohad. On 10.01.2002, defendant No.1
executed an agreement to sell after receiving complete consideration amount
and possession of land was also given to plaintiff. It was pleaded that since
thereafter appellant is in possession of the land in dispute. It was further
pleaded that on 01.01.2005 defendant No.1 left the village and now his
whereabouts are not known and accordingly it has to be presumed that
defendant No.1 has died a civil death. It was claimed that plaintiff is also legal
representative of defendant no.1. When plaintiff went to get his name mutated
in the revenue records then it was suggested to him to obtain decree of
declaration that defendant No.1 has died a civil death. Accordingly, suit was
filed.
3. The trial court after recording evidence dismissed the suit by holding that
appellant has failed to prove that defendant No.1- Banti @ Nihal Singh has
died a civil death. Being aggrieved by the said judgment and decree passed by
trial court appellant preferred an appeal which too has been dismissed by
judgment and decree dated 24.01.2022 passed by Additional Judge to the Court
of First Additional District Judge, Gohad, District Bhind (M.P.).
4. Challenging the judgment and decree passed by the Courts below, it is
submitted by counsel for appellant that in order to prove civil death of a person,
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it is not necessary to prove the actual date on which the person went missing. It
is further submitted that although appellant had claimed that agreement to sell
was executed by defendant No.1 after receiving entire consideration amount
and possession was also delivered to him but he submits that he will not press
the aforesaid fact and would confine his claim only on the basis of civil death
of defendant No.1. Appellant has proposed the following substantial questions
of law:
I. Whether the impugned judgments & decrees can be considered as
lawful even when both the learned courts below failed to gone
through the oral and documentary evidence available on record?
II. Whether the statements on oath of the plaintiffs can be disbelieved
without any reason?
III. Any other substantial question of law which this Hon'ble Court
may deems fit may kindly be framed?
5. Heard learned counsel for appellant.
6. By relying upon the judgment of Supreme Court in the case of LIC of
India Vs. Anuradha reported in (2004) 10 SCC 131, it is submitted by counsel
for appellant that it is not necessary for the appellant to prove the exact date on
which the deceased went missing. If it is claimed that the deceased went
missing in a particular year, then it would be the starting point for calculating
the period of seven years as mentioned in Section 108 of Evidence Act.
7. This Court is unable to convince itself that even the year in which a
person went missing is sufficient to calculate the period of seven years. If a
person leaves his house on 01st of January of a year or if he leaves of his house
on 31st December of the same year, then it will be projected that the person was
seen for the last time in that particular year and he went missing thereafter but
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there will be a gap of one year. However, in a case, if it is proved that a person
went missing in a particular month of the year, then that will not make much
difference and in that case the date may not be relevant. Furthermore, Supreme
Court in the case of Anuradha (supra) has held that if an issue arises as to the
date or time of death, the same shall have to be determined on evidence, direct
or circumstantial, and not by assumption or presumption. The burden of proof
would lie on the person who makes assertion of death having taken place at a
given date or time in order to succeed in his claim. Rarely, it may be
permissible to proceed on the premise that death had occurred on any given
date before which said period of seven years' was shown to have elapsed.
8. Both the Courts below have given concurrent findings of fact. Appellant
has failed to prove that deceased has died a civil death. Since appellant has
given up his claim on the basis of agreement to sell, thus, it is clear that
appellant was never placed in possession from the date of so called agreement
to sell. It is not the case of appellant that after defendant No.1 went missing, his
land is lying barren and although appellant had claimed that he was in
possession of land by virtue of agreement to sell, but on account of the fact that
said pleading was given up during the course of arguments, it is clear that
somebody must be looking after the land. Who was looking after the land and
whether the land was lying barren, could have been the best circumstances to
appreciate the evidence led by the appellant. Furthermore, the appellant had
claimed that agreement to sell was executed and full consideration amount was
paid and possession was also given to him. The agreement to sell has been
placed on record as Ex.P-2. The aforesaid agreement was executed on
10.01.2002. The aforesaid agreement contains all the ingredients of sale.
Therefore, execution of such agreement to sell on stamp paper of Rs.30/- is not
admissible. Furthermore, according to appellant, defendant No.1 went missing
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from 01.01.2005. Agreement to sell was executed in the year 2002. Why
appellant did not make an attempt to get the sale deed executed? Defendant
No.1 is son of cousin brother of plaintiff. Furthermore plaintiff has not clarified
that how he would be entitled to inherit the property of defendant No.1.
9. It is well established principle of law that this Court in exercise of power
under Section 100 of CPC. cannot interfere with the findings of fact until and
unless they are show to be perverse. Even erroneous finding of fact cannot be
interfered with in exercise of power under Section 100 of CPC. Supreme Court
in the case of Dinesh Kumar Vs. 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."
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(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.
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
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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)
"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
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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."
10. As no perversity could be pointed out by the counsel for appellant, this
Court is of considered opinion that no substantial question of law arises in the
present appeal.
11. Accordingly, the judgment and decree dated 24.01.2022 passed by
Additional Judge to the Court of First Additional District Judge, Gohad,
District Bhind (M.P.) in RCA No.24/2017 as well as judgment and decree dated
24.03.2017 passed by III Civil Judge Class II, Gohad, District Bhind (M.P.) in
Civil Suit No.94A/2015 are hereby affirmed.
12. Appeal fails and is hereby dismissed in limine.
(G.S. Ahluwalia)
Judge
(and)
