Madhya Pradesh High Court
Sitaram Died Thr. Lrs 1) Rajeev Rastogi ... vs Regd.Vidhichand Dharmshala Trust on 17 November, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:29373
1 SA-624-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 17th OF NOVEMBER, 2025
SECOND APPEAL No. 624 of 2005
SITARAM DIED THR. LRS 1) RAJEEV RASTOGI S/O SITARAM
RASTOGI DIED THR. LRS 1A) SMT. SHIKHA RASTOGI AND
OTHERS
Versus
REGD.VIDHICHAND DHARMSHALA TRUST AND OTHERS
Appearance:
Shri Anil Kumar Jain - Advocate for the appellants.
Shri Saket Sharma - Advocate for the respondent.
ORDER
This second appeal under Section 100 of C.P.C. has been filed against
judgment and decree dated 18/03/2005 passed by VIIIth Additional District
Judge, Gwalior in Civil Appeal No.17-A/2005 as well as judgment and
decree dated 24/12/2004 passed by Vth Civil Judge, Class-II, Gwalior in
Civil Suit No.11-A/2004.
2. The facts necessary for disposal of present appeal, in short, are that
respondent filed a suit for eviction as well as for recovery of rent against
appellants Sitaram and Satyaprakash. Sitaram and Satyaprakash have died
during the pendency of this appeal.
3. On 23/09/2009, a statement was made by counsel for appellants that
appellant No.2 Satyaprakash has expired, accordingly, I.A.No.19038/2009
was filed for deleting the name of Satyaprakash. Ultimately, in compliance
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of order dated 30/06/2010, the name of appellant No.2 Satyaprakash was
deleted. The legal representatives of appellant No.1 were brought on record
and the present appeal is being prosecuted by legal representatives of
appellant No.1-Sitaram.
4. A suit was filed by respondent on the ground that trust is a public
trust registered under M.P. Public Trusts Act, and it is a charitable trust and
accordingly, it was prayed that plaintiff/respondent is entitled for exemption
as provided under Section 3 of M.P. Accommodation Control Act (in short,
the Act). It was further pleaded that the entire income of trust is spent to meet
out education, medical as well as for providing assistance to old and infirm
persons. Thus, it was the case of plaintiff/respondent that the entire income
of trust is being used for public purposes.
5. It was the case of plaintiff that by issuing a notice, tenancy of
appellants has been terminated, but in spite of service of notice, the vacant
possession of property has not been given. Defendant No.1/Appellant No.1
filed his written statement and did not dispute that plaintiff/respondent is a
charitable trust. In fact, nothing was mentioned in his written statement to
deny that plaintiff/respondent is not entitled for exemption as provided under
Section 3 of the Act.
6. Defendant No.2 Satyaprakash filed his written statement and in that
written statement, he claimed that respondent/plaintiff is not entitled for
exemption under Section 3 of the Act.
7. The Trial Court after framing issues, recorded the evidence of the
parties and decreed the suit.
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8. Being aggrieved by the judgment and decree passed by the Trial
Court, the appellants preferred an appeal which too was dismissed by the
Appellate Court.
9. This appeal was admitted on the following substantial question of
law:-
"Whether, both the Courts below erred in giving benefit of the
exemption to the plaintiff ?"
10. Challenging the judgments and decrees passed by the Courts
below, it is submitted by counsel for appellants that since the respondent-
trust has failed to prove that its entire income was being used for its
purposes, therefore, the Courts below have wrongly held that it was
exempted under Section 3 of the Act.
11. Per contra, counsel for respondent-trust has suppored the findings
recorded by the Courts below.
12. Heard the learned counsel for the parties.
13. Appellants/defendants examined Sitaram Rastogi as D.W.1
whereas plaintiff examined Rajeev Garg as P.W.1. At the cost of repetition,
it is once again clarified that Sitaram had not stated anything about the
exemption clause. Although, Satyaprakash had stated that
plaintiff/respondent is not entitled for exemption as provided under Section 3
of the Act, but he did not enter in the witness box. When a specific question
was put to Shri Jain that as to why defendant No.2 Satyaprakash did not
enter in the witness box, then it was submitted by Shri Jain that Satyaprakash
had expired, and his sons have deposed, but fairly conceded that evidence of
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sons of Satyaprakash are not on record. In fact, submission made by Shri
Jain that Satyaprakash had expired during the pendency of the suit is false. In
fact, Satyaprakash had expired on 15/09/2009, i.e., during the pendency of
this appeal and on the application filed by appellants, the name of appellant
No.2 Satyaprakash was deleted from the array of cause title of this appeal.
Thus, the fact is that Shri Rajeev Garg examined himself as P.W.1 whereas
Sitaram was examined as D.W.1.
14. Shri Rajeev Garg (P.W.1) has stated that he does not have any
information as to whether the entire income of trust is being spent for
education, medical as well as for the benefit of old and infirm persons.
However, he fairly stated that entire expenses are audited every year and
audit is done by Shri N.K.Jain, Chartered Accountant. The trust is the
registered trust. It was further stated that shop was let out to Parmatmasharan
Rastogi-father of the appellants/defendants No.1 and 2.
15. Sitaram (D.W.1) in paragraph 14 of his cross-examination,
admitted that the trust is a public charitable trust. In the same paragraph, he
stated that trust was constituted by Kanhaiya Lal, but he claimed that since
all five brothers had not given their consent for the constitution of trust,
therefore, trust was not legally constituted. He further stated that he had not
seen the accounts of trust. Although, he claimed that the entire income of
plaintiff-trust is not being spent for charitable purposes, but he admitted that
he is not in possession of any document to show that the entire income of
trust is not being spent for public purposes. He also stated that he has not
filed any application for production of books of accounts of public trust. He
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also admitted that he did not visit the office of Registrar, Public Trust, to find
out as to whether the entire income of plaintiff-trust is being spent for public
purposes or not. He further clarified that out of his personal knowledge, he is
claiming that entire income is not being spent for charitable and public
purposes. As already pointed out, Sitaram had not raised any defence in his
written statement, and he has specifically stated that in his cross-
examination, plaintiff-trust is a charitable trust. Although, Sitaram had tried
to claim that trust was not properly constituted, but admittedly, the property
was taken on rent by father of Sitaram from trust. After having taken the
property on rent, the defendants cannot challenge the title of trust.
16. So far as Satyaprakash is concerned, Satyaprakash in his separate
written statement had claimed that the trust is not entitled for exemption
under Section 3 of the Act, but at the very same time, Satyaprakash did not
enter in the witness box. Any pleading without there being any evidence is
not admissible, similarly, any evidence without there being any pleading also
not admissible.
17. Division Bench of this Court in the case of Scindia Devasthan
Regd. Charitable Trust Vs. Praveen Kumar Nigam and Others reported in
2013 (4) MPLJ 679 has held as under:-
"28. Apart this, in the case of Regd. Vidhichand Dharamshala
Trust (supra), the Single Judge by giving some further and
additional interpretation to the decision of the Apex Court
announced in the matter of Betihai (supra), contrary to it's
principle and spirit has stated that "thus, it is clear that a registered
public trust would be able to avail the benefit of exemption so
long as it's income it utilized for the trust itself. In a suit for
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eviction if it is established that the entire income of the trust is not
utilized for the trust itself, the plaintiff would no more be entitled
to seek the benefit of exemption". The aforesaid later part of this
cited case of Regd. Vidhichand (supra), being contrary to the law
laid down by the Apex Court could not be said to be a correct
view. In such premises, the law laid down by the single Judge in
the matter of Boolchand (supra), and in the matter of Regd.
Vidhichand (supra), being not correct, is hereby overruled."
18. Thus, it is clear that whether or not, entire income of the trust is
being spent for its purposes is or not a sine qua non for adjudicating that
whether trust is entitled for exemption under Section 3 of the Act or not.
19. At this stage, it is submitted by counsel for appellants that during
the pendency of this appeal, respondent-trust was dissolved and the said
order has been assailed by respondent/plaintiff by filing W.P.No.4997/2007.
Accordingly, appellants have also filed I.A.No.13024/2009 in that regard. In
this application, it is specifically mentioned by appellants that against the
order of dissolution W.P.No.4997/2007 is pending, and interim order dated
26/07/2007 is in force and the effect and operation of order dated 19/12/2006
and 12/03/2007 passed by Registrar Public Trust, Gwalior has been stayed.
Accordingly, file of W.P.No.4997/2007 was called, and it was found that by
order dated 26/10/2007, effect and operation of orders Annexure P-1 i.e. 19-
12-2006 and Annexure P-2 12/03/2007 passed by Registrar Public Trust,
Gwalior have been stayed. From the order sheets of the writ petition, it is
clear that the said interim order is still in force and has not been vacated so
far. Therefore, it is clear that the order of dissolution of public trust-
respondent has been kept in abeyance and furthermore by order dated
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12/03/2007 passed by Registrar Public Trust, respondent-trust was not
dissolved, but the managing trustees were directed to be removed with a
direction that new board of trustees be elected. Therefore, it is clear that
plaintiff/respondent is still in existence and even by order dated 12/03/2007,
the trust was not dissolved, but only Board of trustees was directed to be
substituted by new Board of trustees.
20. In view of specific admission made by Sitaram (D.W.1) in
paragraph 14 of his cross-examination as well as judgment passed by
Division Bench of this Court in the case of Scindia Devasthan Regd.
Charitable Trust (supra) , it is clear that plaintiff-trust was entitled for
exemption as provided under Section 3 of the Act, accordingly, the
substantial question of law is answered in negative.
21. It is well established principle of law that this Court in exercise of
power under Section 100 of CPC can interfere with concurrent finding of
fact only when they are shown to be perverse. Even an erroneous finding of
fact cannot interfere with by this Court in exercise of power under Section
100 of C.P.C.
22. The Supreme Court in the case of Angadi Chandranna Vs. Shankar
and Others decided on 22/04/2025 in Civil Appeal No.5401/2025 {Arising
out of SLP (C) No.6799 of 2022 }, has held as under:-
"12. Before delving into the facts of the case, this court in
Jaichand (supra) expressed its anguish at the High Court for not
understanding the scope of Section 100 CPC, which limits
intervention only to cases where a substantial question of law
exists, and clarified that the High Court can go into the findings of
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facts under Section 103 CPC only under certain circumstances, as
stated in the following passages:
"23. We are thoroughly disappointed with the manner
in which the High Court framed the so-called
substantial question of law. By any stretch of
imagination, it cannot be termed even a question of law
far from being a substantial question of law. How many
times the Apex Court should keep explaining the scope
of a second appeal Under Section 100 of the Code of
Civil Procedure and how a substantial question of law
should be framed? We may once again explain the well-
settled principles governing the scope of a second
appeal Under Section 100 of the Code of Civil
Procedure.
24. In Navaneethammal v. Arjuna Chetty reported in
MANU/SC/2077/1996 : 1998: INSC: 349 : AIR 1996
S.C. 3521, it was held by this Court that the High Court
should not reappreciate the evidence to reach another
possible view in order to set aside the findings of fact
arrived at by the first appellate Court.
25. In Kshitish Chandra Purkait v. Santosh Kumar
Purkait reported in MANU/SC/0647/1997 :
1997:INSC:487 : (1997) 5 S.C.C. 438), this Court held
that in the Second Appeal, the High Court should be
satisfied that the case involves a substantial question of
law and not mere question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao
Marnor reported in MANU/SC/0058/1999 : 1999 (2)
S.C.C. 471, this Court held: Keeping in view the
amendment made in 1976, the High Court can exercise
its jurisdiction Under Section 100, Code of Civil
Procedure only on the basis of substantial questions of
law which are to be framed at the time of admission of
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the Second Appeal and the Second Appeal has to be
heard and decided only on the basis of such duly
framed substantial questions of law. A judgment
rendered by the High Court Under Section 100 Code of
Civil Procedure without following the aforesaid
procedure cannot be sustained.
27. This Court in Kondira Dagadu Kadam v. Savitribai
Sopan Gujar reported in MANU/SC/0278/1999 :
1999:INSC:192 : AIR 1999 S.C. 2213 held: The High
Court cannot substitute its opinion for the opinion of the
first appellate Court unless it is found that the
conclusions drawn by the lower appellate Court were
erroneous being contrary to the mandatory provisions of
law applicable or its settled position on the basis of
pronouncements made by the Apex Court, or was based
upon inadmissible evidence or arrived at without
evidence.
28. It is thus clear that Under Section 100, Code of Civil
Procedure, the High Court cannot interfere with the
findings of fact arrived at by the first Appellate Court
which is the final Court of facts except in such cases
where such findings were erroneous being contrary to
the mandatory provisions of law, or its settled position
on the basis of the pronouncement made by the Apex
Court or based upon inadmissible evidence or without
evidence.
29. The High Court in the Second Appeal can interfere
with the findings of the trial Court on the ground of
failure on the part of the trial as well as the first
appellate Court, as the case may be, when such findings
are either recorded without proper construction of the
documents or failure to follow the decisions of this
Court and acted on assumption not supported by
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evidence. Under Section 103, Code of Civil Procedure,
the High Court has got power to determine the issue of
fact. The Section lays down: Power of High Court to
determine issue of fact: In any Second Appeal, the High
Court may, if the evidence on the record is sufficient to
determine any issue necessary for the disposal of the
appeal,- (a) Which has not been determined by the
lower Appellate Court or both by the Court of first
instance and the lower Appellate Court, or (b) Which
has been wrongly determined by such Court or Courts
by reason of a decision on such question of law as is
referred to in Section 100.
30. In Bhagwan Sharma v. Bani Ghosh reported in
MANU/SC/0094/1993 : AIR 1993 S.C. 398, this Court
held: The High Court was certainly entitled to go into
the question as to whether the findings of fact recorded
by the first appellate court which was the final court of
fact were vitiated in the eye of law on account of non-
consideration of admissible evidence of vital nature.
But, after setting aside the findings of fact on that
ground the Court had either to remand the matter to the
first appellate Court for a rehearing of the first appeal
and decision in accordance with law after taking into
consideration the entire relevant evidence on the
records, or in the alternative to decide the case finally in
accordance with the provisions of Section 103(b). ...... If
in an appropriate case the High Court decides to follow
the second course, it must hear the parties fully with
reference to the entire evidence on the records relevant
to the issue in question and this is possible if only a
proper paper book is prepared for hearing of facts and
notice is given to the parties. The grounds which may be
available in support of a plea that the finding of fact by
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the court below is vitiated in law does not by itself lead
to the further conclusion that a contrary finding has to
be finally arrived at on the disputed issue. On a
reappraisal of the entire evidence the ultimate
conclusion may go in favour of either party and it
cannot be prejudged.
31. In the case of Hero Vinoth v. Seshammal reported
in MANU/SC/2774/2006 : 2006:INSC:305 : (2006) 5
SCC 545 this Court explained the concept in the
following words: It must be tested whether the question
is of general public importance or whether it directly
and substantially affects the rights of the parties. Or
whether it is not finally decided, or not free from
difficulty or calls for discussion of alternative views. If
the question is settled by the highest court or the general
principles to be applied in determining the question are
well settled and there is a mere question of applying
those principles or that the plea raised is palpably
absurd the question would not be a substantial question
of law.
32. It is not that the High Courts are not well-versed
with the principles governing Section 100 of the Code
of Civil Procedure. It is only the casual and callous
approach on the part of the courts to apply the correct
principles of law to the facts of the case that leads to
passing of vulnerable orders like the one on hand."
12.1. In the present case, in our view, the so-called substantial
question of law framed by the High Court does not qualify to be a
substantial question of law, rather the exercise of the High Court is
a venture into the findings of the First Appellant Court by re-
appreciation of evidence. It is settled law that the High Court can
go into the findings of facts only if the First Appellate Court has
failed to look into the law or evidence or considered inadmissible
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evidence or without evidence. Section 103 permits the High Court
to go into the facts only when the courts below have not
determined or rendered any finding on a crucial fact, despite
evidence already available on record or after deciding the
substantial question of law, the facts of a particular case demand
re-determination. For the second limb of Section 103 to apply,
there must first be a decision on the substantial question of law, to
which the facts must be applied, to determine the issue in dispute.
When the First Appellate Court in exercise of its jurisdiction has
considered the entire evidence and rendered a finding, the High
Court cannot re-appreciate the evidence just because another view
is possible, when the view taken by the First Appellate Court is
plausible and does not suffer from vice in law. When the
determination of the High Court is only by way of re-appreciation
of the existing evidence, without there being any legal question to
be answered, it would be axiomatic that not even a question of law
is involved, much less a substantial one. It will be useful to refer
to another judgment of this Court in Chandrabhan (Deceased)
through L.Rs & Ors. v. Saraswati & Ors.11, wherein it was held as
follows:
"33. The principles relating to Section 100 of the Code
of Civil Procedure relevant for this case may be
summarised thus:
(i) An inference of fact from the recitals or
contents of a document is a question of fact.
But the legal effect of the terms of a
document is a question of law. Construction
of a document involving the application of
any principle of law, is also a question of law.
Therefore, when there is misconstruction of a
document or wrong application of a principle
of law in construing a document, it gives rise
to a question of law.
(ii) The High Court should be satisfied that
the case involves a substantial question of
law, and not a mere question of law. A
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question of law having a material bearing on
the decision of the case (that is, a question,
answer to which affects the rights of parties
to the suit) will be a substantial question of
law, if it is not covered by any specific
provisions of law or settled legal principle
emerging from binding precedents and
involves a debatable legal issue. A substantial
question of law will also arise in a contrary
situation, where the legal position is clear,
either on account of express provisions of
law or binding precedents, but the court
below has decided the matter, either ignoring
or acting contrary to such legal principle. In
the second type of cases, the substantial
question of law arises not because the law is
still debatable, but because the decision
rendered on a material question, violates the
settled position of law.
(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-recognised
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.
34. In this case, it cannot be said that the First Appellate
Court acted on no evidence. The Respondents in their
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Second Appeal before the High Court did not advert to
any material evidence that had been ignored by the First
Appellate Court. The Respondents also could not show
that any wrong inference had been drawn by the First
Appellate Court from proved facts by applying the law
erroneously.
35. In this case, as observed above, evidence had been
adduced on behalf of the Original Plaintiff as well as
the Defendants. The First Appellate Court analysed the
evidence carefully and in effect found that the Trial
Court had erred in its analysis of evidence and given
undue importance to discrepancies and inconsistencies,
which were not really material, overlooking the time
gap of 34 years that had elapsed since the date of the
adoption. There was no such infirmity in the reasoning
of the First Appellate Court which called for
interference.
36. Right of appeal is not automatic. Right of appeal is
conferred by statute. When statute confers a limited
right of appeal restricted only to cases which involve
substantial questions of law, it is not open to this Court
to sit in appeal over the factual findings arrived at by the
First Appellate Court."
12.2. In the present case, the First Appellate Court analyzed the
entire oral evidence adduced by both parties, as well as the
documentary evidence relied upon by either side, and dismissed
the suit. The authority to re-consider the evidence is available only
to the First Appellate Court under Section 96 and not to the High
Court in exercise of its authority under Section 100, unless the
case falls under the exceptional circumstances provided under
Section 103. While so, the re-appreciation of the entire evidence,
including the contents of the exhibits, reliance on and wrongful
identification of a different property and treating the same to be
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the suit property actually in dispute to prescribe another view
without any substantial question of law, only illustrate the
callousness of the High Court in applying the settled principles.
Therefore, the High Court erred in setting aside the judgment and
decree of the First Appellate Court."
23. As consequence, judgment and decree dated 18/03/2005 passed by
VIIIth Additional District Judge, Gwalior in Civil Appeal No.17-A/2005 as
well as judgment and decree dated 24/12/2004 passed by Vth Civil Judge,
Class-II, Gwalior in Civil Suit No.11-A/2004 are hereby affirmed.
24. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
PjS/-
