Smt. Chandra Kali Dead Thr. Smt. Saroj ... vs Ravendra Jain
2025 Latest Caselaw 3249 MP

Madhya Pradesh High Court

Smt. Chandra Kali Dead Thr. Smt. Saroj ... vs Ravendra Jain on 24 January, 2025

Author: Sanjay Dwivedi

Bench: Sanjay Dwivedi

                                                     1




       IN THE HIGH COURT OF MADHYA PRADESH
                                        AT JABALPUR
                                              BEFORE
                 HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                            ON THE 24th OF JANUARY, 2025
                          SECOND APPEAL NO.978 OF 2019
     SMT. CHANDRA KALI (DEAD) THR. SMT. SAROJ JAIN AND OTHERS
                               Versus
                   RAVENDRA JAIN AND OTHERS
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Appearance :
        Shri Dhananjay Shukla - Advocate for the appellants.
        Shri Alok Agnihotri - Government Advocate for the respondents-State.
---------------------------------------------------------------------------------------------------------------
Reserved on           : 04/11/2024
Pronounced on : 24/01/2025
                                            JUDGMENT

This appeal is filed under Section 100 of CPC assailing the judgment and decree passed by the Court below in Regular Civil Appeal No.135/2017 decided vide order dated 09.01.2019 affirming the findings given by the trial Court while passing the judgment and decree dated 04.02.2017 in Civil Suit No.165-A/2015.

2. A suit was filed by the plaintiffs/appellants for declaration of title seeking declaration that the sale deed dated 11.05.2006 be declared void and also sought decree of permanent injunction against the defendant. The suit was dismissed on the ground that the plaintiffs failed to prove

their case. An appeal was preferred against the said judgment and decree which also got dismissed by the appellate Court.

3. The suit property was a land situated in Mauja Bela, Tahsil Raghurajnagar, District Satna belonging to Araji No.348/4, area measuring 0.10 acres and a house situated over the said land.

4. Plaintiffs/appellants claimed that they are the owner and occupant of the suit property and original owner late Ram Kumar Jain was the husband of plaintiff No.1 and father of remaining plaintiffs. As per the plaintiffs, Ram Kumar Jain died on 21.08.2014 in the suit house and at the time of death of the original owner late Ram Kumar Jain, plaintiffs were residing in the suit property along with him.

4.1 The defendant No.1 is the nephew of late Ram Kumar Jain, who purchased the suit property by a registered sale deed dated 11.05.2006 from late Ram Kumar Jain whereas plaintiffs have alleged that late Ram Kumar Jain has never executed the sale deed and never sold the suit property to the defendant/respondent. As per the plaintiffs, they have never been informed by late Ram Kumar Jain about the said sale deed and the consideration of the said sale deed was never given to the plaintiffs by late Ram Kumar Jain.

4.2. On the other hand, as per the plaintiffs, they came to know about the sale deed only after the death of Ram Kumar Jain and when defendant tried to dispossess them and gave threat of dispossession, then only plaintiffs enquired about the sale from the Office of Deputy Registrar and thereafter they came to know that the defendant fraudulently got the sale

deed executed taking undue advantage of mental status of late Ram Kumar Jain and also of his bad habit of intoxication. As such, it is claimed that the sale deed dated 11.05.2006 was fabricated and fraudulently got executed. It was never executed for any consideration and as such, the same be declared void and illegal.

5. Learned counsel for the plaintiffs/appellants has placed reliance on the Supreme Court pronouncement in Prasad and others vs. V. Govindaswami Mudaliar and others (1982) 1 SCC 185 and the decisions of this Court in Sujan Aingh vs. Lalsahab and another (1993) JLJ 552, Smt. Dayawantibai Lodhi vs. Smt. Sarula Bai Lodhi and others (2006) 4 MPLJ 346 and Bhailal and others vs. Ram Kumar and others (2203) 4 MPLJ 303. However, facts of the aforesaid cases are not applicable to this case for the reason that it is not a case in which Court has dismissed the appeal on the ground that interference under Section 100 of CPC against the concurrent finding of fact cannot be made by the High Court but it is being dismissed on the ground that the finding given by both the Courts cannot be said to be perverse and both the Courts have properly appreciated the evidence and learned counsel for the appellants failed to substantiate any perversity in the said finding.

6. The defendant No.1 opposed the said stand of the plaintiffs and took a stand that late Ram Kumar Jain executed the sale deed as he was facing financial crunch and was in dire need of money for his own treatment and after discussion, he agreed to purchase the said property and whatever amount was fixed by late Ram Kumar Jain, was paid to him and also got his name mutated over the said property.

7. During the life time of Ram Kumar Jain, his first wife namely Siya Bai expired and sale deed was executed in the knowledge of daughters of Ram Kumar Jain. Even after execution of sale deed, considering the relations between them, Ram Kumar Jain was allowed to occupy the house on a rent of Rs.500/- but after his death and due to hike in price of suit property, the plaintiffs took a somersault and filed a suit.

8. The trial Court framed as many as six issues including the issue of limitation but finally found that the suit was within limitation but other facts and issues framed were decided against the plaintiffs holding that the plaintiffs failed to prove their case and as such, the suit was dismissed. The trial Court appreciated the facts and also the evidence adduced by the parties and observed that the sale deed executed by late Ram Kumar Jain in favour of defendant cannot be said to be illegal and fabricated only on the ground that the plaintiffs were not aware of the fact about any consideration and was not given by late Ram Kumar Jain to them. As per the trial Court, that could not have been the only reason for declaring the sale deed illegal but at the same time, the second wife of late Ram Kumar Jain namely Chandrakali was also one of the plaintiffs who could be aware of the fact of consideration but she was not brought in the witness box and not examined by the plaintiffs and as such, the best evidence available with the plaintiffs could not be brought in the Court. It is also observed by the trial Court that plaintiffs failed to adduce any evidence so as to establish that late Ram Kumar Jain had executed the sale deed under the influence of intoxication and in absence of any such evidence, the registered sale deed cannot be said to be illegal.

9. The appellate Court has also re-appreciated the evidence adduced during the trial and also observed that though there was some inconsistencies in the statements of witnesses adduced by the defendant but those inconsistencies were not so material and it was practically possible because statements of witnesses were being recorded after 11 years from the date of execution of sale deed and those inconsistencies do not make the sale deed illegal. The other aspects have also been considered by the appellate Court and found that the findings given by the trial Court on the basis of evidence available, cannot be said to be perverse and also dismissed the appeal.

10. During the course of submissions, learned counsel for the appellants was trying to influence the Court only on the basis of statements of defendant witnesses who were not consistent about payment of consideration of sale but only on that account, the sale deed cannot be said to be illegal because both the Courts have appreciated the evidence and given the findings and that concurrent findings of both the Courts below cannot be said to be perverse in any manner. The plaintiffs had to prove their case but cannot take benefit of the weakness of defendant's case. Chandrakali, the second wife of late Ram Kumar Jain could have stated about the consideration despite filing the suit and was alive during the trial but she was not brought in the witness box and as such, the Court has rightly observed that the best evidence was not produced in the Court which makes the case of the plaintiffs weak.

11. In view of the law laid down by the Supreme Court and the High Courts consistently about the scope of interference in the second appeal

under Section 100 of CPC against the concurrent finding of fact, I do not find that there is any substantial question of law involved in this second appeal.

12. Considering the aforesaid, since the finding given by both the Courts below are concurrent finding of fact and during the course of arguments, learned counsel for the appellants has also failed to establish any perversity in the judgment and decree passed by both the Courts below and taking into account the law laid down by the Supreme Court consistently holding that the jurisdiction of this Court to interfere with the concurrent finding of fact under Section 100 of the Code of Civil Procedure is very limited, until the finding is either perverse or based on no evidence, this Court cannot interfere with the concurrent finding of fact until and unless the same is perverse or contrary to material on record. [See: Sugani (Mst.) v. Rameshwar Das (2006) 11 SCC 587, Gurdev Kaur vs. Kaki (2007) 1 SCC 546, Prakash Kumar v. State of Gujrat (2004) 5 SCC 140, Thiagarajan v. Sri Venugopalaswamy B. Koil (2004) 5 SCC 762 and Narayanan Rajendran v. Lekshmy Sarojini (2009) 5 SCC 264].

13. It is equally well settled that this Court in exercise of power under Section 100 of the Code of Civil Procedure cannot reappreciate the evidence. [See: Thimmaiah v. Ningamma (2000) 7 SCC 409]. It is also well settled that where on appreciation of evidence, even if two views are possible, this Court in exercise of powers under Section 100 of the Code of Civil Procedure would not interfere. [See: Kondiba Dagadu Kadam v. Savitribai Sopan Guzar (1999) 3 SCC 722 and Veerayee Ammal v.

Seeni Ammal (2002) 1 SCC 134]. It has further been held by the Supreme Court that interference with a question of fact is not permissible. [See: Basayya I. Mathad v. Rudrayya S. Mathad (2008) 3 SCC 120]. In S. Appadurai Nadar v. A. Chokalinga Nadar (2007) 12 SCC 774. At the same time, it has been held by the Supreme Court that in exercise of power under Section 100 of the Code of Civil Procedure, the Courts should be slow in reversing the finding of fact. The finding of fact even if erroneous would not be disturbed in second appeal unless the finding is shown to be perverse and based on surmises and conjectures. [See: Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, Hafazat Hussain v. Abdul Majeed (2001) 7 SCC 189 and Bharath Matha v. R. Vijay Rengandathan (2010) 11 SCC 483].

14. With the aforesaid observations, I do not find any substance in the appeal as the same does not involve any substantial question of law. The appeal is, accordingly, dismissed.

(SANJAY DWIVEDI) JUDGE PK

PARITOSH

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH

2.5.4.20=43c946b45c8a66c03b68676e788802a41cc03b5b956 7caf9c2c3b981b8cb6596, postalCode=482001, st=Madhya

KUMAR Pradesh, serialNumber=678DC301994B496012A9643D92E6C6335F11A 93DA54F2DFB6E44B8B7A45044FC, cn=PARITOSH KUMAR Date: 2025.01.24 18:31:46 +05'30'