Madhya Pradesh High Court
Babulal vs Premchand on 16 October, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:30520
1 S.A. No.1213/2025
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE JAI KUMAR PILLAI
SECOND APPEAL No. 1213 of 2025
BABULAL AND OTHERS
Versus
PREMCHAND AND OTHERS
Appearance:
Shri Shyam Dhar Shukla - Advocate for the
appellants/defendants.
Reserved on : 09/10/2025
Delivered on : 16/10/2025
==================================================
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 17-10-2025
10:43:52
NEUTRAL CITATION NO. 2025:MPHC-IND:30520
2 S.A. No.1213/2025
JUDGMENT
Heard on the question of admission
This Second Appeal under Section 100 of CPC has been filed by
the appellant/defendant being aggrieved by the judgment and decree
dated 17/04/2025 passed by Ist District Judge, Dhar, District-Dhar (M.P.)
in RCA No.11/2021, whereby the judgment and decree dated 10/01/2019
passed by Additional Judge Class-1 of 1st Civil Judge, Class-1, Dhar,
District-Dhar (M.P.) in RCS-A No.33/2018, was partly affirmed.
Facts of the case, in short are as under :-
2. The respondents/plaintiffs had filed a civil suit seeking declaration,
partition, separate possession and permanent injunction in respect of the
land situated in Village-Chillur Tehsil and District-Dhar, survey
No.145/1, area 0.727 hectare, Lagan 5.75, survey No.146/1, area 1.979
hectare, Lagan 15.65, survey No.160/1, area 0.265 hectare, Lagan 2.01,
survey No.176/1, area 0.221 hectare, Lagan 1.69, total survey number
four, total area 3.192 hectare and total Lagan 25.1 (which will be referred
to as the disputed land for convenience hereinafter).
3. The respondents/plaintiffs contended that the respondents/plaintiffs
were the sons and daughters of the late Mangilal's first wife, Sitabai,
while Defendants No.1 to 5 were the sons and daughters of Rambhabai,
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the late Mangilal's maternal wife. The disputed land was owned by the
late Mangilal. After his death, both the plaintiffs and the defendants
became joint owners and possessors of the property. Previously, the
appellants' father, Mangilal, had been named in the Revenue Records for
the disputed land. However, the defendants, in collusion with Revenue
Officials had illegally removed his name from the records. The grand-
mothers also had a one-fifth share each in the disputed land. On March
3rd, 2018, the appellants came to know that the respondents were
attempting to sell the disputed land based on the aforementioned illegal
entry, thus they filed the civil suit.
4. The appellants/defendants failed to appear before the Trial Court
despite due service of summons and was therefore, proceeded ex-parte.
Consequently, no written statement was filed on their behalf and the
matter was adjudicated in their absence.
5. The learned Trial Court after considering the material placed on
record and evaluating the evidence of both parties dismissed the suit.
Being aggrieved by this judgement and decree, the respondents/plaintiffs
preferred an appeal before the learned First Appellate Court which after
due consideration, partly allowed the appeal and held the
respondents/plaintiffs the land-owners and joint possessors of 1/7th share,
including appellants/defendants No.1 to 5, in the disputed land
comprising Survey No.145/1 (area 0.727 hectare), Survey No.146/1 (area
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1.979 hectare), Survey No.160/1 (area 0.265 hectare) and Survey
No.176/1 (area 0.221 hectare), totaling 4 survey numbers and a total area
of 3.192 hectares.
6. Being aggrieved by which, the appellants/defendants preferred the
present Second Appeal proposing the following substantial questions of
law :-
"1. Whether the judgement and decree of the subordinate
appellate court is perverse in law and facts?
2. Whether such facts and documents be admitted in evidence
which have not been pleaded in the plaint?
3. Whether the learned trial court was not right to draw a
presumption against respondents No. 1 and 2 under Section
114 of the Evidence Act?
4. Whether the learned subordinate appellate court has not
erred in accepting the evidence of PW-2 Dhapubai and PW-3
Jamnabai as relevant under Section 60 of the Indian Evidence
Act?"
7. The learned counsel for the appellants contented that the judgment
and decree passed by the First Appellate Court are contrary to law and the
material available on record, and therefore liable to be set aside. It is
contended that the First Appellate Court erred in partially allowing the
suit of Respondents No.1 and 2 without properly appreciating the
pleadings, oral evidence, and documentary material. The appellants argue
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that respondents No.1 and 2 failed to produce any proof showing that
their names were ever recorded in the Revenue Records or that the
appellants had caused their deletion. Despite the absence of such
evidence, the First Appellate Court erroneously accepted their claim and
set-aside the Trial Court's well-reasoned judgment, which had rightly
dismissed the suit. It is further submitted that the First Appellate Court
wrongly relied on documents not pleaded in the plaint and admitted them
in evidence in violation of established procedural principles.
8. It is further submitted by learned counsel for the appellants that the
documents filed by respondents No.1 and 2, namely Exhibit P/10 (Aadhar
Card), Exhibit P/11 (Election Card), and Exhibit P/12 (Family Card),
clearly reflected their residence at Morgaon and not at Village-Chilur,
thereby disproving their claim of ownership or possession of the disputed
land. The counsel asserts that the First Appellate Court failed to consider
this discrepancy and passed its order without affording the appellants an
opportunity to present evidence or cross-examine the witnesses. The
counsel for the appellants stated that the Trial Court was justified in
drawing an adverse presumption against respondents No.1 and 2 under
Section 114 of the Evidence Act, 1872 for lack of supporting evidence.
Hence, it is submitted that the First Appellate Court committed a serious
error in interfering with the findings of the Trial Court and that the
impugned judgment and decree deserve to be set-aside.
NEUTRAL CITATION NO. 2025:MPHC-IND:30520
Analysis and Conclusion :-
9. Heard learned counsel for appellants/defendants at length and
perused the entire records available.
10. It is settled law that section 100 CPC confers jurisdiction on the
High Court to entertain a second appeal only when it is satisfied that the
case involves a substantial question of law. In Suresh Lataruji Ramteke
vs. Sumanbai Pandurang Petkar & Ors, (2023) 17 SCC 624 (2-Judge
Bench) the scope of interference by a High Court in a second appeal has
been enunciated by the Hon'ble Apex Court as follows :
"12. The jurisprudence on Section 100 CPC is rich and varied.
Time and again this Court in numerous judgments has laid
down, distilled and further clarified the requirements that must
necessarily be met in order for a second appeal as laid down
therein, to be maintainable, and thereafter be adjudicated
upon. Considering the fact that numerous cases are filed before
this Court which hinge on the application of this provision, we
find it necessary to reiterate the principles.
"13. The requirement, most fundamental under this section is
the presence and framing of a "substantial question of law". In
other words, the existence of such a question is sine qua non
for exercise of this jurisdiction. [Panchugopal Barua v.
Umesh Chandra Goswami, (1997) 4 SCC 713 (two-Judge
Bench)]
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"15. In Santosh Hazari v. Purushottam Tiwari [Santosh
Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 a Bench of
three Judges, held as under in regard to what constitutes a
substantial question of law:
(a) Not previously settled by law of land or a binding
precedent;
(b) Material bearing on the decision of case; and
(c) New point raised for the first time before the High Court is
not a question involved in the case unless it goes to the root of
the matter. Therefore, it will depend on facts of each case."
11. This Court has carefully examined the judgment of the learned
Trial Court dated 19/02/2021 and finds that the learned Trial Court after
considering the evidence on record had rightly observed that in the
Khasra Panchshala for the years 1996-2001 and 2002-2006 (Exhibits
P/9, P/14, and P/15), the names of the plaintiffs and other co-owners were
recorded over the disputed land. The Khasra entries for the year 2009-
2013 (Exhibit P/16) reflected the names of Rambhabai and Defendants
Nos.1 and 3. It was also established that the land had been partitioned
between 2006 and 2009, however, the respondents failed to produce any
documentary proof relating to such partition or transfer of title. The Trial
Court had therefore, drawn an adverse inference under Section 114 of the
Indian Evidence Act, 1872 against the respondents and held that they
failed to substantiate their claim as heirs of the late Mangilal. The First
Appellate Court consequently found that the respondents did not possess
any lawful title or possession over the disputed land.
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12. This Court is of the considered opinion that the documents
produced by the respondents, including the certified copies of Khasra
records (Exhibits P-9, P-15, and P-16), the plaint and orders in Civil Suit
No. 55A/2015 (Exhibits P-6, P-7, and P-8), and the identity and family
documents (Exhibits P-10 to P-12), established that the respondents were
the children of the late Mangilal. The oral evidence of witnesses
Jamnabai (PW-2) and Dhapubai (PW-3), who were sisters of the late
Mangilal, further corroborated that the respondents were born to Mangilal
and his wife Sitabai. The learned Trial Court, however, erred in not
appreciating that under Sections 59 and 60 of the Indian Evidence Act,
1872 facts such as marriage and parentage may be proved by direct oral
evidence and the testimony of such close relatives is legally relevant. The
absence of cross-examination of these witnesses by the defendants further
strengthened the respondents' claim. Accordingly, this Court finds that
both the oral and documentary evidence sufficiently proved the
respondents' relationship to the late Mangilal.
13. This Court further finds that based on the entire material on record,
the respondents being the children of the late Mangilal through his wife
Sitabai, were entitled to succeed to his estate under Section 8 of the
Hindu Succession Act, 1956. Consequently, the respondents along with
the appellants were entitled to equal shares in the disputed property, each
holding a 1/7th share. The principle laid down by the Hon'ble Supreme
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Court in Neelavathi and Others v. M. Natarajan and Others, AIR
1980 SC 691, applies in this case, holding that the possession of one co-
owner amounts to joint possession for all co-owners. Therefore, even if
the respondents were not in actual possession, they were in constructive
and joint possession with the appellants. The learned Trial Court,
therefore, erred in not determining the respondents' rightful title and
share in the disputed land.
14. Thus, in view of the aforesaid discussion and upon due
consideration of material available on record and considering the law laid
down by the Hon'ble Apex Court, this Court does not find any illegality
in the judgment and decree of the First Appellate Court partly allowing
the appeal of respondents/plaintiffs.
15. Resultantly in absence of any substantial question of law, this
Second Appeal fails and is hereby dismissed.
16. Pending applications, if any, shall also stands disposed off
accordingly.
(Jai Kumar Pillai)
Judge
Aiyer*
PS
