Madhya Pradesh High Court
Manu @ Hari Prasad Batham vs Smt. Sitadevi Patel on 27 March, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
SECOND APPEAL No. 3103 OF 2024
MANU @ HARI PRASAD BATHAM AND OTHERS
Versus
SMT.SITADEVI PATEL AND OTHERS
Appearance:
Shri Arpan Shrivastava - Advocate for appellants.
________________________________________________________
RESERVED ON : 13/03/2025
PRONOUNCED ON : 27/03/2025
______________________________________________________________
This appeal having heard and reserved for order, coming on for
pronouncement on this day, the court passed the following:
ORDER
This second appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 04.10.2024 passed by 18 th
Additional District Judge, Jabalpur District - Jabalpur in RCA No.125-A/2023
arising out of the judgment and decree dated 07.02.2023 passed in Regular Civil
Suit No.139-A/2016.
2. Briefly, facts relevant for disposal of present appeal are that plaintiffs filed
suit for declaration mandatory injunction etc. on the ground that plaintiffs are
owner of suit property and defendants are residing in suit property as tenant.
Plaintiff's father/husband Nirpat Singh Patel purchased suit property from
Savitri Bai and Naresh Kumar vide registered sale deed dated 31.08.1978. After
purchase of property, some houses were built on part of the land and part of land
was left vacant. Part of suit property, in which defendants are residing as tenant,
has been shown in blue ink in the map attached with plaint. Defendants have
started construction on vacant land and this part of land has been shown with A,
B, C, D, E & F in red ink in map attached with plaint. This property is suit
property/disputed property in the case.
3. Learned counsel for the appellants submits that on the one hand, plaintiffs
claimed that present appellants are their tenant and the property was let out, them
on rent. However, the trial court rejected their contention since no admissible
evidence was brought on record by the plaintiffs. The plaintiffs are
completely silent on the point, as to how appellants came into possession over the
suit property. It is urged that the plaintiffs have completely failed to establish
their possession over the suit property and meaning thereby that at the time of
purchase, plaintiff did not receive actual possession of the suit property. Thus the
aforesaid sale is not complete in accordance with law. Thus no legal right has
accrued in favour of plaintiff because at no point of time, plaintiffs ever remained
in possession. Thus merely only the basis of tax receipt, no legal right stands
accrued in favour of plaintiffs with regard to suit property.
4. Learned counsel for the appellants also submits that bare perusal of Ex.P-1
to Ex.P-7 i.e. alleged sale-deed dated 31.08.1978 and documentary evidence
Ex.D/1 to D/14 clearly reveal that name of Jodha Dheemer was recorded against
the suit property. Thus burden lies on the plaintiff as to how the seller, whose
name is mentioned in alleged sale deed 31.08.1978, was competent to sale the
land. Since plaintiff has failed to discharge their burden and has not approached
court with clean hands, under these circumstances, legally no decree can be
passed in their favour. It is also urged that both trial Court and appellate Court
have committed manifest error of law in decreeing the plaintiff's suit by ignoring
the pleadings of the plaint and granted a relief which not at all set up by the
plaintiff in pleading. Therefore, the impugned judgment and decree, with respect
to granting relief of recovery of possession is suffering from perversity and is
liable to be set aside.
5. Admittedly, the suit property is a house situated under the limits
Municipality of Jabalpur District, definitely the valuation of suit property is much
higher than the value assessed by the plaintiff in the suit and no proper court fees
has been paid. Appellant raised objection in this regard, but both trial Court and
appellate Court have grossly erred in dealing with objection with regard to
valuation of suit and court fees as paid by the plaintiffs. The plaintiffs have failed
to establish their possession at any point of time over the suit property. Plaintiff's
claimed that suit property was purchased in year 1978 and suit was instituted on
09.02.2016. Under these circumstances, suit filed by the plaintiff and the claim
set up by the plaintiff is apparently barred by limitation and not at all
maintainable, but this legal aspect has been completed ignored by trial Court and
appellate Court.
6. Learned counsel for the appellants further submits that plaintiffs have
failed to prove their case and failed to discharge their initial burden to get decree
in their favour, but despite that trial Court and appellate Court have committed
serious error of law and facts in passing impugned judgment and decree in favour
of plaintiffs. The courts below have completely erred in disbelieving the
defendant version and the ample admissible evidence led by the defendant to
establish their possession has been overlooked by the trial Court and appellate
Court without assigning any cogent reason. Thus both the impugned judgment
and decree are bad in law and unsustainable in as much as the same suffer from
perversity. It is also urged that substantial questions of law as mentioned in
appeal memo arise for determination. Hence, appeal be admitted for final
hearing.
7. Heard. Perused record of the case.
8. Learned trial Court vide judgment dated 07.02.2023 passed in RCS No.139-
A/2016 decreed plaintiff's suit and Appellate Court vide judgment dated
04.10.2024 passed in RCA No.125-A/2023 dismissed appellant's/defendant's
appeal and affirmed trial court's findings.
9. Therefore, question arises as to when this Court can interfere with the
findings of facts arrived at by the Courts below. In this connection, I would like to
refer to the law laid down by the Hon'ble Apex Court in the case of Chandrabhan
(Deceased) through Lrs. And Others vs. Saraswati and Others reported in AIR
2022 SC 4601, wherein Hon'ble Apex Court in para 33(iii) has held as under:-
"33 (iii) The general rule is that the High Court will not
interfere with findings of facts arrived at by the courts
below. But it is not an absolute rule. Some of the well -
recognized exceptions are where (i) the courts below
have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong inferences
from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof.
When we refer to "decision" based on no evidence", it
not only refers to cases where there is a total dearth of
evidence, but also refers to any case, where the
evidence, taken as a whole, is not reasonably capable of
supporting the finding".
10. Similarly in the case of Gurnam Singh (Dead) by legal representatives and
Others vs. Lehna Singh (Dead) by legal representatives, Hon'ble Apex Court has
held as under:-
""13.1.......However, in Second Appeal under Section
100 of the CPC, the High Court, by impugned judgment
and order has interfered with the Judgment and Decree
passed by the First Appellate Court. While interfering with
the judgment and order passed by the first Appellate Court,
it appears that while upsetting the judgment and decree
passed by the First Appellate Court, the High Court has
again appreciated the entire evidence on record, which in
exercise of powers under Section 100 CPC is not
permissible. While passing the impugned judgment and
order, it appears that High Court has not at all appreciated
the fact that the High Court was deciding the Second
Appeal under Section 100 of the CPC and not first appeal
under Section 96 of
the CPC. As per the law laid down by this Court in a
catena of decisions, the jurisdiction of High Court to
entertain second appeal under Section 100 CPC after
the 1976 Amendment, is confined only when the second
appeal involves a substantial question of law. The
existence of 'a substantial question of law' is a sine qua
non for the exercise of the jurisdiction under Section
100 of the CPC. As observed and held by this Court in
the case of Kondiba Dagadu Kadam (Supra), in a
second appeal under Section 100 of the CPC, the High
Court cannot substitute its own opinion for that of the
First Appellate Court, unless it finds that the
conclusions drawn by the lower Court were erroneous
being:
(i) Contrary to the mandatory provisions of the
applicable law; OR
(ii) Contrary to the law as pronounced by the Apex
Court; OR
(iii) Based on inadmissible evidence or no evidence
It is further observed by this Court in the aforesaid decision
that if First Appellate Court has exercised its discretion in a
judicial manner, its decision cannot be recorded as suffering
from an error either of law or of procedure requiring
interference in second appeal. It is further observed that the
Trial Court could have decided differently is not a question
of law justifying interference
in second appeal".
11. In this connection, Ishwar Dass Jain (Dead) through Lrs vs.
Sohan Lal (Dead) by LRs reported in (2000) 1 Supreme Court Cases 434
may also be referred to. Paras 11 and 12 of the said judgment is relevant
and is under:-
"11. There are two situations in which interference
with findings of fact is permissible. The first one is
when material or relevant evidence is not considered
which, if considered would have led to an opposite
conclusion. This principle has been laid down in a
series of judgments of this Court in relation to section
100 CPC after the 1976 amendment. In Dilbagrai
Punjabi vs. Sharad Chandra [1988 Supple. SCC 710],
while dealing with a Second Appeal of 1978 decided
by the Madhya Pradesh High Court on 20.8.81,
L.M.Sharma, J.(as he then was) observed that "The
Court (the first appellate Court) is under a duty to
examine the entire relevant evidence on record and if it
refuses to consider important evidence having direct
bearing on the disputed issue and the error which
arises as of a magnitude that it gives birth to a
substantial question of law, the High Court is fully
authorised to set aside the finding. This is the situation
in the present case."
In that case, an admission by the defendant-tenant in
the reply notice in regard to the plaintiff's title and the
description of the plaintiff as `owner' of the property
signed by the defendant were not considered by the
first appellate Court while holding that the plaintiff had
not proved his title. The High Court interfered with the
finding on the ground of non-consideration of vital
evidence and this Court affirmed the said decision.
That was upheld. In Jagdish Singh vs. Nathu Singh
[1992 (1) SCC 647], with reference to a Second
Appeal of 1978 disposed of on 5.4.1991.
Venkatachaliah, J. (as he then was) held:
"where the findings by the Court of facts is vitiated by
non-consideration of relevant evidence or by an
essentially erroneous approach to the matter, the High
Court is not precluded from recording proper
findings."
Again in Sundra Naicka Vadiyar vs. Ramaswami Ayyar
[1995 Suppl. (4) SCC 534], it was held that where
certain vital documents for deciding the question of
possession were ignored - such as a compromise, an
order of the revenue Court - reliance on oral evidence
was unjustified. In yet another case in Mehrunissa vs.
Visham Kumari [1998 (2) SCC 295] arising out of
Second appeal of 1988 decided on 15.1.1996, it was
held by Venkataswami, J. that a finding arrived at by
ignoring the second notice issued by the landlady and
without noticing that the suit was not based on earlier
notices, was vitiated finding. This was in Second
Appeal of 1988 decided on 15.1.1996.
12. The second situation in which interference with
findings of fact is permissible is where a finding has
been arrived at by the appellate Court by placing
reliance on inadmissible evidence which if it was
omitted, an opposite conclusion was possible. In Sri
Chand Gupta vs. Gulzar Singh [1992 (1) SCC 143], it
was held that the High Court was right in interfering in
Second Appeal where the lower appellate Court relied
upon an admission of a third party treating it as
binding on the defendant. The admission was
inadmissible as against the defendant. This was also a
Second Appeal of 1981 disposed of on 24.9.1985".
12. Now facts and evidence of the case would be examined in the light of
aforesaid legal parameters.
13. From averments of both the parties as well as oral/documentary evidence
available on record, it is not in dispute that original owner of suit property was
Jodha. Sale-deed (Ex.P/5) dated 17.05.1961 reveals that Jodha sold suit property
to one Naranjan Singh. From sale-deeds (Ex.P/1, P/4, P/5, P/6A and P/7), it is
evident that Jodha had sold suit property in his lifetime. Plaintiff's father/husband
had purchased the same from Savitri Bai and Naresh Kumar, vide sale deed dated
31.08.1978 (Ex.P/1).
14. Further, perusal of written statement filed by appellants/defendants reveals
that they have claimed suit property on the ground that they are successors of
Jodha but no genealogical tree has been mentioned in the written statement and in
the depositions of witnesses as to how appellants/defendants inherited suit property
from Jodha and how they are related to Jodha.
15. Primary contention of learned counsel for the appellants/defendants is that
plaintiff's suit is time barred because plaintiffs have never been in possession of
suit property. It is also so because it is not established that defendants are residing
as plaintiff's tenant in the suit property. With respect to aforesaid submissions,
perusal of plaint reveal that in plaint as well as map attached to plaint, suit
property has been mentioned/shown in two parts. One part has been shown in map
with blue ink and another part has been shown in red ink. As per plaint averments,
defendants are residing in part, which has been shown in blue ink in map whereas
the part of which, recovery of possession has been sought, has been shown in red
ink in the map. In plaint averments are that on aforesaid part of property shown in
red ink, defendants have made construction on and after 04.02.2016.
16. With respect to aforesaid submissions, this Court has examined and taken
into consideration evidence, both oral as well as documentary adduced by both the
parties in the light of plaint averments and has discussed and considered the same.
17. Hence, after considering and examining the evidence available on record,
accordingly, in this Court's considered opinion, it cannot be said that plaintiff's suit
is time barred or plaintiffs/their ancestors were not in possession of suit property as
shown in red ink in the map attached in plaint. Further, from evidence available on
record, it cannot be said that appellants are owner of disputed property and they
inherited it from Jodha. Further, it is also well settled that vacant/open land is
presumed to be in possession of owner of the land unless and until, contrary is
proved. In the instant case also, disputed property was initially open land.
18. Hence, if pleadings and evidence adduced by the parties and the impugned
judgment passed by the first appellate court/trial court is considered, in the light
of above legal principles/legal provisions reiterated in aforesaid judgments, then, in
this Court's considered opinion, the findings of facts recorded by the first
appellate court/trial court are not liable to be interfered with in the instant case
and it cannot be said that first appellate court/trial court has ignored any material
evidence or has acted on no evidence or first appellate court/trial court has
drawn wrong inferences from the proved facts etc. Further, it cannot be said that
evidence taken as a whole, is not reasonably capable of supporting the findings. It
can also be not said that the findings of first appellate court/trial court are based
on inadmissible evidence.
19. A perusal of the impugned judgment and decree passed by the first
appellate court/trial court reveals that it is well reasoned and has been passed
after due consideration of oral as well as documentary evidence on record. Learned
counsel for the appellant has failed to show that how the findings of facts recorded
by the first appellate court/trial court are illegal, perverse and based on no
evidence etc. The learned first appellate court/trial court has legally and rightly
dealt with the issues involved in the matter and has recorded correct findings of
fact.
20. For the reasons aforesaid, I find no merit in the instant second appeal.
Findings recorded by the first appellate court/trial court are fully justified by the
evidence on record. Findings recorded by the first appellate court/trial court are
not based on misreading or mis-appreciation of evidence nor it is shown to be
illegal or perverse in any manner so as to call for interference in second appeal. No
question of law, much less substantial question of law, arises for adjudication in the
instant appeal. Hence, appeal is dismissed in limine.
21. A copy of this order along with record be sent back to the first appellate
court/trial court for information and its compliance.
(ACHAL KUMAR PALIWAL)
JUDGE
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