Madhya Pradesh High Court
Smt.Saryu Devi vs Om Prakash on 19 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 19th OF JUNE, 2025
SECOND APPEAL No. 110 of 2007
SMT. SARJU DEVI
Versus
OM PRAKASH AND OTHERS
Appearance:
Mr. Anil Kumar Jain - Advocate for the appellant.
Mr. Sanjay Singh - Advocate for the respondents.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against a
judgment and decree dated 23-12-2006, passed by Additional District Judge
Gohad, District Bhind in Civil Appeal No. 48A/2006, as well as judgment
and decree dated 11-10-2006, passed by Civil Judge, Class-I, Gohad, District
Bhind in Civil Suit No. 15-A/2005.
2. The facts necessary for disposal of the present appeal in short are
that respondents No. 1 to 6 filed a civil suit for declaration of title and
permanent injunction on the ground that they are the residents of Ward Nos.
14 and 15, Sati Bazar, Gohad, District Bhind. They are agriculturists by
profession and they are having agricultural equipments like tractor-trolley,
cultivator, etc. A public hand pump has been installed by the government on
the street and plaintiffs and other residents of the colony are using the pump
for fetching water. Public street is situated in front of the house of the
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plaintiff, which is marked as A, B and by red colour in the plaint map. The
plaintiffs are using the said street and they also use it for themselves as well
as for taking their agricultural equipments. Small functions are also
organized on the street. On the southern side of the street, house of the
defendant is situated. The defendant wants to construct a projection in order
to narrow down the street, and for discharging waste water, she wants to
open a drain, as a result the public use of the street is getting obstructed and
the plaintiffs are also facing difficulty to take the agriculture equipments
from the said street. The construction, which according to the plaintiff is
illegal, was shown in the plaint map. It was pleaded that the defendant has no
right or title to raise the construction. The defendants has got the property by
Will from her father. Chhaviram, who is the father of the defendant, had
purchased the property from Khunnilal and by registered sale deed dated 07-
11-1967, and had constructed a house after getting building permission from
Municipal Council, Gohad in Case No. 2/68x3/3. A sanction to construct the
platform and a tin shed over it was not granted on account of narrow public
street and this fact is specifically mentioned in the order. Chhaviram had
prayed for construction of a platform admeasuring 6ft. x 2in., which was
specifically rejected by the Municipal Council. Since the street is a public
street, therefore, no one can open a door, projection, platform, drain, etc.
towards the same. Whatsoever rights from Khunnilal and Bhagatlal
(vendors), who sold the property to Chhaviram, were acquired by Chhaviram
by a registered sale deed dated 07-11-1967, only the same rights were
transferred to the defendant by virtue of Will executed by Chhaviram in her
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favour. Defendant has constructed a platform as well as a shop over it
illegally on 01-05-1997 and has also opened one door, two ventilators and a
drain on 15-8-1997. A complaint was also made. The SDM had directed the
police to stop the construction, and accordingly the police went to the spot
and got the construction stopped. Thus, it was the case of the plaintiff that the
defendant has constructed a door, window, ventilator, projection, drain
towards the public street, which is contrary to law, and the said construction
is without any permission from the municipal council, and accordingly, suit
was filed for declaration that the defendant has no right or title to construct
projection as well as to construct any door, window, ventilator, drain and
platform on the public street, and it was also prayed that whatever illegal
construction has been carried out by the defendant is liable to be removed
and permanent injunction was sought that the defendant be permanently
restrained from raising any construction towards the public street and the
public hand pump.
3. Defendant filed a written statement as well as counterclaim. She
admitted that the hand pump is a public hand pump and the street in question
is a public street. The pleading of the plaintiff that the house of the defendant
is situated on the southern side of the street was also admitted. It was claimed
that the projection has been constructed after due permission from the
municipal council. It was claimed that projection has been constructed at a
sufficient height. It was claimed that the pleading regarding discharge of
waste water towards the hand pump has been wrongly made. It was further
pleaded that projection, drain, door, etc. were already existing. No
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obstruction has been created in the use of public streets by the plaintiffs. The
plaintiffs are in a position to take their agricultural equipments very easily.
The defendant has raised the construction in place of the old construction
after giving due information to the municipal council. All the constructions
have been raised in place of the old construction. No obstruction has been
created. A counterclaim was sought claiming that the plaintiffs Premlata and
Kamla Devi have also encroached upon the public street and have raised a
construction around 14-06-1995 without taking permission from the
municipal council. Plaintiff Premlata has constructed a shop whereas
Plaintiff Kamala has constructed a platform after encroaching upon the
public street. A complaint was also made by the defendant. It was further
pleaded that on 14-06-1995, the plaintiff has installed four water taps and on
account of discharge of water, the public street always remains dirty thereby
creating obstruction in the smooth utilization of the said public street.
Accordingly, it was prayed that the construction raised by plaintiffs Premlata
and Kamala Devi may be directed to be removed and all the four water taps
should be disconnected and a permanent injection should also be issued
against the plaintiffs to the effect that they shall not carry out any
construction and should not install any tap, and should not obstruct the public
street.
4. The trial court, after framing issues and recording evidence, decreed
the suit and directed the defendant to remove the projection within a period
of two months. It was also directed that the defendant has no right to open
door, window, ventilator towards the public street and the defendant was also
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directed not to construct any platform towards the public street, and the
counterclaim filed by the defendant was dismissed.
5. Being aggrieved by the said judgment and decree passed by the trial
court, defendant / appellant filed an appeal, and by the impugned judgment
and decree passed by the appellate court, the appeal filed by the defendant
has been dismissed.
6. Challenging the judgment and decree passed by the courts below, it
is submitted by counsel for the appellant that the suit filed by the plaintiff
was not in accordance with the provisions of Order 1 Rule 8 CPC, and the
counterclaim was wrongly dismissed on the grounds of non-payment of
court fees, and proposed the following substantial questions of law:-
"(i) Whether the courts below were justified in rejecting the
counter claim of the defendant - appellant on the ground that
proper valuation and proper court fee was not paid on the counter
claim when it was not decided that what should be the valuation
and the court fee on the counter claim and without giving an
opportunity to deposit the court fee, if any, the rejection on the
ground was illegal?
(ii) Whether the courts below have erred in law in rejecting
the counter claim when it was duly proved by the evidence that the
plaintiff Premlata and Kamla Devi have made encroachments by
raising chabutara and shop over the part of public lane and this
encroachment was unauthorized and illegal and rejecting the
counter claim without considering the evidence though produced
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and taken on record is erroneous and contrary to law?
(iii) Whether the suit filed by the plaintiffs without adopting
the procedure under Order 1 Rule 8 CPC and filing the suit in
representative capacity, the suit as filed in the personal capacity of
the plaintiffs for declaration of rights regarding the public lane was
not maintainable?
(iv) Whether the courts below have erred in law in holding
that the projection was unauthorized when it does not cause any
hindrance because it is 11 ft. high from the ground floor and no
inconvenience was caused to general public by erection of that
projection which was constructed with the permission of the
municipality and the same was not taken on record?
(v) Whether the courts below were justified in passing the
decree for closing of the door, window, ventilators and drain
opening towards the public lane when no case for creating public
nuisance was neither pleaded nor proved by the plaintiffs, hence
the decree passed regarding the same was unjustified and contrary
to law?
(vi) Whether the courts below were justified in passing the
decree for permanent injunction which was vague and no specific
rights were declared in respect of the plaintiffs or other persons
regarding using of the lane nor the suit was filed on behalf of
public regarding the suit lane, hence the suit itself which was not
filed for declaration of public rights could be decreed without
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proper pleadings and the procedure followed regarding it?"
7. Heard the learned counsel for the appellant on the question of
admission.
8. From the plaint, it is clear that in order to claim that the street is a
public street, it was pleaded that it is being used by various persons, but it
was never claimed by the plaintiff that the suit is being filed on behalf of the
residents or for their benefits. In the entire suit, the personal grievances were
pleaded. Although the defendant has raised an objection with regard to
maintainability of the suit in the light of the provisions of Order 1 Rule 8
CPC, but no issue was framed in that regard. The defendant never requested
the trial court to frame an issue with regard to maintainability of the suit.
When the defendant herself went ahead with the trial, knowingly well that no
issue under Order 1 Rule 8 CPC has been framed, it can be held that since
the parties were prosecuting their suit knowingly well about the issues which
have been framed, then now, it cannot be said that the entire trial was vitiated
on account of non-framing of issue under Order 1 Rule 8 CPC. The
provisions of Order 1 Rule 8 CPC will apply only if the suit is filed in a
representative capacity. As already pointed out, the plaintiffs / respondents
have claimed that the public street is being used by the others in order to
show that it is not a private land but it is a public street. It was nowhere
claimed in the suit or in the plaint that the construction raised by the
defendant is causing hindrance to others also and they are also aggrieved by
it. If the other persons are not aggrieved by the construction raised by the
defendant, then the suit cannot be said to be a suit in a representative
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capacity. Therefore, this court is of the considered opinion that merely
because the leave was not sought under Order 1 Rule 8 CPC, that by itself
would not vitiate the suit merely because the suit has been filed in respect of
a public street.
9. Furthermore, it is clear from the memo of appeal, which was filed
before the appellate court, that the ground with regard to non-compliance of
provisions of Order 1 Rule 8 CPC was not raised. Thus, it is clear that the
defendant had waived the aforesaid ground which was taken by her in her
written statement. Thus, although the defendant had raised an objection with
regard to maintainability of the suit in absence of leave to file suit under
Order 1 Rule 8 CPC, but did not raise any objection with regard to non-
framing of issue in that regard, and also did not raise any ground before the
appellate court, under these circumstances, this court is of the considered
opinion that in fact the provisions of Order 1 Rule 8 CPC are not applicable
under the facts and circumstances of the case.
10. So far as the dismissal of counterclaim is concerned, the solitary
ground which was raised by counsel for the appellant is that before
dismissing the counterclaim on the ground of improper valuation, the court
below should have granted an opportunity to properly value the counterclaim
and to pay the court fee accordingly. However, from paragraph 14 of the
impugned judgment passed by the trial court, it is clear that the trial court had
also considered the evidence led by the defendant in support of her
counterclaim. The defendant, in her affidavit filed under Order 18 Rule 4
CPC, had merely said that the plaintiffs have encroached upon six feet of
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public street and her two witnesses, namely Janki Prasad Kurasiya (DW-2),
and Visambhar Singh Tomar (DW-2) have not uttered a single word in
respect of the alleged encroachment done by the plaintiffs. Even the
defendant did not produce any documentary evidence in support of her
counterclaim. Thus, it is clear that the counterclaim was dismissed not only
on the ground of improper valuation but was also dismissed on the merits.
Counsel for the appellant has not challenged the findings recorded by the
trial court with regard to failure on the part of the appellant to lead evidence
in support of her counterclaim.
11. Smt. Sarju Devi (DW-1) had categorically admitted in paragraph
11 of her cross-examination that she has constructed the projection without
any permission. It was claimed that the projection was constructed for
protection of door, window, etc. Thus, it is clear that even the defendant /
appellant had admitted that certain constructions have been raised by her
without any permission. The defendant did not produce any document to
show that any building permission was given by the Municipal Council
either to her or to her father to construct platform, door, window, projection
towards the public street. It is a well established principle of law that this
Court, in exercise of power under Section 100 of CPC, cannot interfere with
the concurrent findings of fact unless and until they are shown to be
perverse. Even the erroneous concurrent findings of fact cannot be interfered
with by this Court.
12. The Supreme Court in the case of Dinesh Kumar v. Yusuf Ali
reported in (2010) 12 SCC 740 has held as under:-
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"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 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
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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]
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] .
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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 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."
13. No perversity could be pointed out by the counsel for the
appellant. Even otherwise, this Court has considered the merits of the case
and has found that the findings of fact recorded by the Courts below are in
accordance with law and record.
14. Accordingly, it is held that no substantial question of law arises in
the present appeal.
15. As a consequence, thereof, the judgment and decree dated 23-12-
2006, passed by Additional District Judge Gohad, District Bhind in Civil
Appeal No. 48A/2006, as well as judgment and decree dated 11-10-2006,
passed by Civil Judge, Class-I, Gohad, District Bhind in Civil Suit No. 15-
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A/2005 are hereby affirmed. Interim order dated 05-02-2007 is hereby
vacated.
16. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
