Madhya Pradesh High Court
Ashok Kumar vs Municipal Corporation, Gwalior on 18 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 S.A. No. 67 of 2012
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 18th OF JUNE, 2025
SECOND APPEAL No. 67 of 2012
ASHOK KUMAR
Versus
MUNICIPAL CORPORATION, GWALIOR AND OTHERS
Appearance:
Shri N.K. Gupta, Senior Advocate with Shri Saket Sharma, Advocate for
the appellant.
Shri Dhirendra Singh Chouhan, Advocate for respondent No.1.
Shri Dilip Awasthi, Government Advocate for respondent Nos. 2 and
3/State.
JUDGMENT
This second appeal, under Section 100 of CPC, has been filed against the
judgment and decree dated 20.12.2011 passed by First Additional District
Judge, Gwalior in Civil Appeal No. 5A/2011, as well as, judgment and decree
dated 25.10.2010 passed by Second Civil Judge Class-II, Gwalior in Civil Suit
No.124-A/2009.
2. Appellant is legal representative of original plaintiff Shyamlal Bajpai.
Plaintiff has lost his case from both the courts below.
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3. Facts necessary for disposal of present appeal, in short, are that original
plaintiff Shyamlal Bajpai filed a suit for declaration of title and permanent
injunction. The suit was filed on 17.04.1999. It was his case that the disputed
house is in his ownership and possession and is situated near Mari Mata
Mandir, Lashkar, Gwalior, whose municipal number is 22/1134. The aforesaid
property was purchased by him by registered sale deed dated 20.08.1968
executed by its vendors Gotu Ram and Ganpat Ram, both sons of Kaluram
Maratha, and since then plaintiff and his family members are residing in the
said house. The name of plaintiff was also recorded in the record of Municipal
Corporation by order dated 09.03.1981. After taking building permission, as
well as, permission from Town and Country Planning and Ceiling Department,
original plaintiff constructed a house. The house is situated in Survey No. 195.
Plaintiff is in possession of the property in dispute for last 30 years and he is in
peaceful possession without any objection by the respondents. Thus, it was
pleaded that even otherwise plaintiff has perfected his title by way of adverse
possession. On 16.04.1999, officers of the Revenue Department and Municipal
Corporation came to the spot and extended a threat to demolish the house. The
aforesaid act of the Authorities is illegal. The property in dispute is in the
ownership of plaintiff and defendants have no right or title over the same.
Accordingly, suit for declaration of title and permanent injunction was filed.
During the pendency of suit, original plaintiff expired and therefore present
appellant was substituted on the basis of Will.
4. Defendant No. 1 filed its written statement and denied plaint averments.
Defendant Nos. 2 and 3 also filed written statement and denied plaint
averments. It was pleaded that the property in dispute is a Government
property. It was pleaded that ad valorem court fee has not been paid and the
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suit has not been properly valued. The property in dispute is a government
nazul land and plaintiff has failed to prove as to how he has acquired title in the
property in dispute.
5. The trial Court after framing issues dismissed the suit by judgment and
decree dated 15.07.2003. Being aggrieved by the said judgment and decree
passed by the trial court, plaintiff/appellant preferred an appeal which was
registered as Civil Appeal No. 39A of 2003. VIII Additional District Judge,
Gwalior by his judgment dated 27.01.2004 allowed the appeal and remanded
the matter back to the trial court and directed to decide the suit afresh after
calling the demarcation report. Thereafter, the trial Court by judgment and
decree dated 21.10.2007 decreed the suit partially and possession of appellant
was found and it was directed that without following due procedure of law, he
shall not be dispossessed. Being aggrieved by the said judgment and decree,
appellant preferred RCA No. 1A of 2008, which was once again allowed by
Seventh Additional District Judge, Gwalior by judgment and decree dated
21.07.2008 and the matter was once again remanded back to the trial Court to
call for fresh demarcation report after giving information to all the owners of
adjoining survey numbers. It was also observed that if permanent marks are not
available, then railway line can be treated as permanent mark and it was
directed that it should be decided as to whether the property in dispute is
situated in Survey No. 195 or 219. After remand, the trial court dismissed the
suit by judgment and decree dated 25.10.2010. Being aggrieved by the said
judgment and decree, appellant filed regular civil appeal, which too has been
dismissed by impugned judgment and decree dated 20.12.2011 passed by First
Additional District Judge, Gwalior in Regular Civil Appeal No. 5A/2011.
6. Challenging the judgment and decree passed by the Courts below, it is
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submitted by counsel for appellant that subsequent demarcation report cannot
be accepted for the reason that details and areas of all different Khasra numbers
were not mentioned. Even it was not clear as to whether the place which was
treated as permanent mark i.e. Railway line, was situated in which khasra
number, and thus proposed the following substantial questions of law:-
"1. Whether the demarcation report as submitted before the learned
trial court was without compliance of Section 129 of the M.P. Land
Revenue Code and the learned trial court erred in considering the
report and judgment and decree passed by the learned trial court on
the basis of that report is vitiated and liable to be set aside?
2. Whether the both the learned courts below erred in not considering
the relevant piece of evidence of Shivnarayan Dubey, Revenue
Inspector, who in his statement in para 7 has stated that in the
Seemankan report well is not shown while in the map well was there
and in para 8 it is stated that the survey Nos. 195 and 219 were not
measured / demarcated by him, in spite of that the learned courts
below erred in relying upon the report submitted by the Revenue
Authority?
3. Whether the report submitted by the revenue authority was without
compliance of judgment and decree dated 31/7/2008 and order dated
25/2/2009 passed by the learned trial court?
4. Whether the finding of non-joinder of necessary party given by the
learned trial court is without any basis and without framing issues,
hence, the same is vitiated and liable to be set aside?
5. Whether both the learned courts below erred in not granting
injunction in favour of plaintiff as the plaintiff was in settled
possession of the land?"
7. Heard learned counsel for the appellant.
8. The finding with regard to possession is necessarily a finding of fact.
From the report, it appears that the demarcation was done on multiple
occasions. The Courts below have given concurrent finding of fact that
demarcation report clearly shows that the property in dispute is situated in
Survey No. 219 and not 195. It is well-established principle of law that even if
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a finding of fact given by the Courts below is erroneous, still it cannot be
interfered with by the High Court in exercise of power under Section 100 of
CPC. The 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
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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
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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]
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)
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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 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."
9. Thus, it is clear that the concurrent findings of fact recorded by both the
Courts below cannot be interfered with by this Court in exercise of power under
Section 100 of CPC unless they are shown to be perverse. The evidence led by
parties was appreciated by both the Courts below. The matter was remanded
back twice.
10. Under these circumstances, this Court is of considered opinion that in
absence of any perversity in the finding of fact that the house in question is
situated in Survey No. 219 and not 195, this Court is of considered opinion that
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no substantial question of law arises in the present appeal. No other argument is
advanced in respect of other proposed Substantial Questions of Law.
11. Accordingly, judgment and decree dated 20.12.2011 passed by First
Additional District Judge, Gwalior in Civil Appeal No. 5A/2011, as well as,
judgment and decree dated 25.10.2010 passed by Second Civil Judge Class-II,
Gwalior in Civil Suit No.124-A/2009 are hereby affirmed.
12. Appeal fails and is hereby dismissed.
13. The interim order dated 16.07.2012 is hereby vacated.
(G.S. Ahluwalia)
Judge
(and)
