Madhya Pradesh High Court

Smt. Sukhiyabai vs Prem Singh on 20 June, 2025

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

         NEUTRAL CITATION NO. 2025:MPHC-GWL:12964




                                                                 1                                    SA-226-2023
                              IN     THE       HIGH COURT OF MADHYA PRADESH
                                                     AT GWALIOR
                                                            BEFORE
                                             HON'BLE SHRI JUSTICE G. S. AHLUWALIA
                                                      ON THE 20 th OF JUNE, 2025
                                                   SECOND APPEAL No. 226 of 2023
                                                         SMT. SUKHIYABAI
                                                               Versus
                                                      PREM SINGH AND OTHERS
                           Appearance:
                                  Mr. K.N. Gupta - Senior Advocate assisted by Ms. Sushani Dhariwal -
                           Advocate for the appellant.
                                  Mr. Dilip Awasthi - Govt. Advocate for respondent No. 9/State.

                                                                JUDGMENT

This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 30.11.2022 passed by Principal District Judge, Shivpuri in Regular Civil Appeal No.28A/2019 as well as judgment and decree dated 14.03.2019 passed by Third Civil Judge, Junior Division, Shivpuri in Regular Civil Suit No.2500068A-2015.

2. The appellant is the plaintiff who has lost her case from both the courts below.

3. The facts necessary for disposal of the present appeal in short are that the plaintiff/appellant filed a civil suit for declaration of title and possession in respect of Survey No.42 area 2.247 hectares, Survey No. 43 area 0.073 hectares, and Survey No. 59/1 area 1.579 hectares to the extent of 1/9th share being the legal representative and a permanent injunction was also sought that the defendants be restrained from alienating the 1/9th share of the property.

4. It is the case of the plaintiff that plaintiff and defendants are sons and

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2 SA-226-2023 daughter of late Kamarlal Kushwaha. Kamarlal Kushwaha died on 04.06.2003. Kamarlal Kushwaha had purchased Survey No. 42 area 2.247 hectares, Survey No. 43 area 0.073 hectares out of his own self-earned money. However, the sale deed was executed in the name of his minor son Prem Singh - defendant No. 1. Similarly, Kamarlal Kushwaha had purchased Survey No. 59/1 area 1.579 hectares out of his own self-acquired earning in the name of defendant No. 2 - Gopiram. On the basis of the sale deeds executed in favour of defendant No.1 - Prem Singh and defendant No.2 - Gopiram, the names of defendants No. 1 and 2 were recorded in the revenue records. At the time of execution of the sale deeds, defendant No. 1 was aged about 7 years and defendant No. 2 was aged about 5 years. After the death of Kamarlal, land in dispute was being cultivated by defendants No. 1 and 2 on behalf of the plaintiff and other defendants. Earlier, the

defendants No. 1 and 2 were giving her share in the proceeds of the agricultural produce. Since there was no dispute between the plaintiff and defendants No. 1 and 2, therefore, nothing in writing was mentioned about the grant of share in the crops. Dispute arose when defendants No. 1 to 4 tried to dispose of another land situated in Villages - Chhawani and Rajpura, and from thereafter, defendants No. 1 and 2 have stopped giving the share in the crop to the plaintiff. By order dated 29.09.2005, defendant No. 2 has got the revenue records amended and the word "minor" has been deleted, whereas defendant No. 1 is still recorded in the revenue record as a minor. It is the case of the plaintiff that after the death of Kamarlal, the property in dispute became the ancestral property of plaintiff and defendants No. 1 to 8 and, therefore, each and every heir has equal share in the property in dispute. However, defendants No. 1 and 2, with dishonest intention, are denying the title and share of the plaintiff, and for the last two to three years, have also not given

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3 SA-226-2023 the share in the crop to the plaintiff. The disputed property is situated in Village - Chhawani and the residence of the plaintiff is situated near the disputed agricultural land. She used to frequently visit the disputed land. On 25.04.2014, when she went along with her younger brother-in-law (devar) - Virendra, and Ram Singh Kushwaha, then she found that the wheat crop was lying harvested. When the plaintiff demanded her share in the crop from defendants No. 1 and 2, then they got annoyed and were ready to pick up the quarrel and openly threatened that plaintiff has no share in the property and she would not be given any share in the crop and she can do whatever she wants. They also scolded that they would alienate the property in few days, as a result quarrel would come to an end. Accordingly, it was prayed that since defendants No. 1 to 8 as well as the plaintiff have equal share in the property, therefore, in case if the suit property is disposed of by defendants No. 1 and 2, then it would cause irreparable loss to the plaintiff.

5. Defendants No. 1, 2 and 4 filed their written statement and claimed that defendants No. 3 and 4 had already attained majority at the time of execution of the sale deed and it was also claimed that defendants No. 3 and 4 were having their own individual income. After attaining majority, defendants No. 1 and 2 are cultivating the land for their own livelihood. No other person except defendants No. 1 and 2 are the owners of Survey Nos. 59/1 and Survey No. 42. Plaintiff is residing in her matrimonial house after marriage and defendants No. 1 and 2 are in the exclusive possession of the disputed land and the plaintiff has never visited the disputed property. It was further claimed that Survey Nos. 42 and 59/1 are in exclusive ownership of defendants No. 1 and 2 and they are cultivating the same for the last 22-24 years peacefully. Survey No. 42 area 2.247 hectares and Survey

No. 43 area 0.073 hectares were purchased by defendant No. 1 - Prem Singh by registered sale deed dated 16.05.1978 from his own income. Kamarlal had no

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4 SA-226-2023 right or title in the said property. Similarly, defendant No. 2 had purchased Survey No. 59/1 area 1.579 hectares by registered sale deed dated 16.05.1978 and said land was also purchased by defendant No. 2 out of his own personal earnings. Father of the plaintiff and defendants No. 1 to 8 had never disclosed that the disputed properties were purchased by him. It was further claimed that in view of the provisions of Benami Transaction (Prohibition) Act, the plaintiff has no right to dispute the ownership of defendants No. 1 and 2.

6. Defendant No. 3 filed his written statement and claimed that Survey No. 42 and Survey No. 59/1 are in the ownership of defendants No. 1 and 2. Aforesaid land was not the ancestral property. All the brothers and sisters have started living separately during the lifetime of their father and the property was partitioned and the cash amount was given to the sisters. All the persons are engaged in their business and agricultural activities. The title and right of the plaintiff was also denied.

7. Defendants No. 7 and 8 filed their written statement and claimed that property in dispute was purchased by Kamarlal in the name of his minor sons. The property in dispute is the ancestral property. Defendants No. 1 and 2 have not given the share in the crop for the last four to five years and now they are denying the title of the plaintiff and defendants No. 7 and 8 also. Thus, it was claimed that after the death of Kamarlal, every legal representative has 1/9th share in the property.

8. Defendants No. 5 and 6 filed their written statement and claimed that Kamarlal was not the Karta of the Joint Hindu Family property. At the time of execution of the sale deed, i.e., in the year 1978, defendants No. 3 and 4 had attained majority. Defendants No. 3 and 4 had purchased the property in the name of defendants No. 1 and 2 out of their self-acquired earning. Nobody except

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5 SA-226-2023

defendants Nos. 1 and 2 has any share or title in the land in dispute. Defendants No. 1 and 2 are exclusively cultivating the land. Nobody had ever demanded any share in the crop nor ever given by defendants No. 1 and 2 to anybody.

9. Thus, it is clear that defendants No. 7 and 8 supported the claim of the plaintiff, whereas defendants No. 3, 4, 5 and 6 supported the case of defendants No. 1 and 2.

10. The trial Court, after framing issues and recording evidence, dismissed the suit by holding that the plaintiff has failed to prove that in the year 1978, the property was Joint Hindu Family property and also failed to prove that Kamarlal Kushwaha was the Karta of the Joint Hindu Family. The trial Court also held that the plaintiff has failed to prove that Survey Nos. 42, 43, and 59/1 were the Joint Hindu Family property. It was also held that a partition had taken place between the plaintiff and defendants No. 1 to 8 during the lifetime of their father Kamarlal. It was also held that the plaintiff has failed to prove that defendants No. 1 and 2 are trying to alienate Survey Nos. 42, 43, and 59/1, and thus, it was held that the plaintiff has failed to prove that she has 1/9th share in the property.

11. Being aggrieved by the judgment and decree passed by the trial Court, the appellant preferred an appeal, which was dismissed by the impugned judgment and decree passed by the appellate court.

12. Challenging the judgments and decrees passed by the courts below, it is submitted by counsel for the appellant that earlier the plaintiff as well as defendant No. 8 had jointly filed a suit for declaration of title and permanent injunction in respect of Survey No. 81/221 area 0.082 hectares, Survey Nos. 88 total area 0.853 hectares situated in Village - Rajpura and Survey Nos. 2, 3, 4, 11, 12, 13, 14, 15, 16, 18, 19 min 1 and 20 min 1 and Survey No. 80 total area 2.577 hectares

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6 SA-226-2023 situated in Village - Chhawani, Tahsil and District - Shivpuri and claimed that Kamarlal Kushwaha had 1/2 share in the said property. It was the claim of the plaintiff and defendant No. 8 that after the death of Kamarlal Kushwaha, the plaintiffs therein and defendants No. 1 to 7 therein are the owner and in possession of share of Kamarlal in the aforesaid land. It was the case of the plaintiff and defendant No. 8 that partition has not taken place amongst the plaintiffs and defendants No. 1 to 7 therein. Accordingly, it was prayed that the plaintiff - Sukhiya Bai and defendant No. 8 - Smt. Puniya Bai be declared as owner and in possession of 1/9th share in Survey Nos. 2, 3, 4, 11, 12, 13, 14, 15, 16, 18, 19 min 1, 20 min 1, situated in Village - Chhawani, and Survey Nos. 81/221 and 88 situated in Village - Rajpura, and the defendants therein, who are defendants No. 1 to 7 in the present suit be directed to get the property partitioned and not to alienate the same to anyone. It is admitted position that the said suit was dismissed, and judgment and decree passed in Civil Suit No. 63A/2011 has attained finality.

It is submitted by counsel for the appellant that neither the provisions of Benami Transaction (Prohibition) Act would apply nor the judgment passed in Civil Suit No. 63A/2011 would be a decree under Order 2 Rule 2 CPC, thereby making this suit non-maintainable and proposed the following substantial questions of law:-

" (i) Whether, while passing the impugned judgment and decree, the court below rightly consider the document Ex P/1 to Ex P/5. By this document, it is automatically proof that property is ancestor and Kamarlal Kushwaha is head of the Joint Hindu family and he purchased property from his self earn money and at that time defendant no 1& 2 are minor.

(ii) Whether while passing the impugned judgment and decree court below rightly consider the document Ex P/6 and Ex P/7 same is judgment and decree of Civil court and on the basis aforesaid document, mutation has been recorded by Ex P/18 & Ex P/19 of equal

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7 SA-226-2023 share of plaintiff and defendant.

(iii) Whether while passing the impugned judgment and decree court below the rightly consider the provision of transfer of property Act because at the time of execution of sale deed in the year 1978 defendant no. 1&2 are minor so it is a Benami Transaction.

(iv) Whether court below have rightly disbelieve the oral evidence of PW 3 same is uncrossed.

(v) Whether first Appellate Court has rightly rejected the application Under Section 51 CPC filed by Defendant no. 3."

12. Heard learned counsel for the appellant.

13. Admittedly, the plaintiff as well as defendant No. 8 had filed a civil suit for declaration of title and permanent injunction, which was registered as Civil Suit No. 63A/2011. It is the case of the appellant himself that the said suit was dismissed. The copy of plaint of Civil Suit No. 63A/2011 has been filed as Exhibit D-4 and in paragraph 4(a) it was specifically admitted by the plaintiff that Kamarlal, during his lifetime, had given separate share to defendants No. 1 to 4. Thus, the plaintiff / appellant had admitted partition of property in her previously instituted suit. Further, in the previously instituted suit, the plaintiff / appellant could have claimed her share in the property which is the subject matter of this suit, but admittedly, the property which is the subject matter of this suit, was not included in the property which was the subject matter of the earlier suit.

14. Explanation IV of Section 11 of CPC reads as under:-

"Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit"

Thus, even otherwise, the suit filed by the appellant is barred by the principle of constructive res judicata .

15. Under these circumstances, this Court is of the considered opinion that no illegality was committed by the courts below by dismissing the suit as well as

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8 SA-226-2023 appeal filed by the appellant.

16. It is well-established principle of law that in exercise of power under Section 100 of CPC, this Court cannot interfere with the concurrent findings of fact even if they are found to be erroneous. 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 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

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9 SA-226-2023 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] 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."

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10 SA-226-2023 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 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."

17. Considering the totality of the facts and circumstances of the case, the judgment and decree dated 30.11.2022 passed by Principal District Judge, Shivpuri in Regular Civil Appeal No.28A/2019 as well as judgment and decree dated 14.03.2019 passed by Third Civil Judge, Junior Division, Shivpuri in Regular Civil Suit No.2500068A-2015 are hereby affirmed.