Madhya Pradesh High Court
Decd.Hussain Khan Thru.Lrs.Rasid Khan vs Shaukat Kha on 27 October, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:30872
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 27TH OF OCTOBER, 2025
SECOND APPEAL NO. 224 OF 2017
HUSSAIN KHAN (DECEASED) THROUGH L.Rs. & OTHERS
Versus
SHAUKAT KHA AND ANOTHER
Appearance:
Shri Anurag Vyas, advocate for the appellants.
ORDER
Heard on admission.
2. Record of the Court of first instance and first appellate Court has been
received.
3. This second appeal is filed feeling aggrieved by the concurrent findings
of the Court of first instance and the first appellate Court regarding dismissal
of the suit for permanent injunction filed by appellant/plaintiff Hussain Khan.
4. Hussain Khan had filed suit for permanent injunction on a dilapidated
house (khandhar) situated in village Kesur of District Dhar claiming that he is
title holder of the portion of the dilapidated house admeasuring 204 sq.ft.
Defendants had put some wooden strips and drum on 11.2.2021 and
interfered with his possession over the disputed Khandhar. The Court of first
instance vide impugned judgment dated 22.10.2013 passed in RCS No.
37A/2012 dismissed the suit for permanent injunction on the ground that the
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plaintiff had failed to establish his possession over the disputed property. The
plaintiff Hussain Khan preferred first appeal assailing the impugned judgment
and decree of the trial Court.
5. The I Additional District Judge Dhar vide impugned judgment and
decree dated 11.3.2016 passed in RCA No. 57A/2014 rejected the appeal and
affirmed the judgment and decree of the trial Court. The present second
appeal is filed feeling aggrieved by the concurrent findings of the Court of
first instance and first Appellate Court.
6. Learned counsel for the appellant in addition to the facts and grounds
mentioned in the appeal memo contends that the Court of first instance and
the first appellate Court committed gross error in rejecting the documentary
evidence regarding payment of property tax and the certificate issued by the
Gram Panchayat. Both the Courts did not consider the defect of non-
production of sale deed by defendants, therefore, the impugned judgment
suffer from perversity. Learned counsel proposes following substantial
questions of law as stated in the memo of appeal:
I. Whether the learned courts below were justified in dismissing the
suit filed by the appellant on the ground that he has failed to prove
his title over the suit property despite the admission of respondent
No. 1 that his father has purchased the suit property and his
admission about the ownership of the appellant over the suit
property?
II. Whether learned courts below were justified in dismissing the
suit of appellant on the ground of improper valuation of the suit and
in adequate court fees paid over it. Where is the appellant has sought
relief of permanent injunction and not any declaratory relief?
III. Whether, the findings recorded by learned Courts below are
perverse to the evidence available on record and sustainable under
the eyes of law?
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7. Heard learned counsel for the appellant. Perused the record.
8. In the matter of Chandrabhan v. Saraswati, reported in (2022) 20 SCC
199, the Apex Court held as under:-
22. It is well settled that a second appeal under Section 100 of the Civil Procedure
Code, 1908 ("CPC") can only be entertained on a substantial question of law. In
H.P. Pyarejan v. Dasappa, (2006) 2 SCC 496, this Court held :
"16. In our opinion, therefore, the judgment of the High Court suffers
from serious infirmities. It suffers from the vice of exercise of
jurisdiction which did not vest in the High Court under the law. Under
Section 100 of the Code (as amended in 1976) the jurisdiction of the
High Court to interfere with the judgments of the courts below is
confined to hearing on substantial questions of law. Interference with
finding of fact by the High Court is not warranted if it involves re-
appreciation of evidence (see Panchugopal Barua v. Umesh Chandra
Goswami, (1997) 4 SCC 713 and Kshitish Chandra Purkait v. Santosh
Kumar Purkait, (1997) 5 SCC 438). The High Court has not even
discussed any evidence. No basic finding of fact recorded by the courts
below has been reversed much less any reason assigned for taking a view
contrary to that taken by the courts below. The finding on the question of
readiness and willingness to perform the contract which is a mixed
question of law and fact has been upset. It is statutorily provided by
Section 16(1)(c) of the Act that to succeed in a suit for specific
performance of a contract the plaintiff shall aver and prove that he has
performed and has always been ready and willing to perform the
essential terms of the contract which were to be performed by him other
than the terms the performance of which has been prevented or waived
by the defendant."
23. In Ram Prasad Rajak v. Nand Kumar & Bros. [Ram Prasad Rajak v. Nand
Kumar & Bros., (1998) 6 SCC 748], this Court held that : (SCC p. 751, para 7)
"7. ... Once the proceeding in the High Court is treated as a second
appeal under Section 100CPC, the restrictions prescribed in the said
Section would come into play. The High Court could and ought to have
dealt with the matter as a second appeal and found out whether a
substantial question of law arose for consideration. Unless there was a
substantial question of law, the High Court had no jurisdiction to
entertain the second appeal and consider the merits."
24. In Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438, this
Court held that existence of substantial question of law was the sine qua non for
the exercise of jurisdiction under Section 100CPC.
*******
32. The principles relating to Section 100 CPC relevant for this case may be
summarised thus:
32.1. 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
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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.
32.2. The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A 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.
32.3. 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.
9. The Supreme Court in case of Naresh and others Vs. Hemant and
others reported in (2022) SCC 802 held as under:-
11. The High Court invoked the presumption without proper consideration and
appreciation of the facts considered and dealt with by two courts holding by
reasoned conclusions why the presumption stood rebutted on the facts. The High
Court also committed an error of record by holding that there was no evidence that
Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the
admission of PW1 in his evidence. The fact that mutation also was done in the name
of Trimbakrao Ingole alone which remain unchallenged at any time was also not
noticed. The conclusion of the High Court that improper appreciation of evidence
amounted to perversity is completely unsustainable. No finding has been arrived at
that any evidence had been admitted contrary to the law or that a finding was based
on no evidence only in which circumstance the High Court could have interfered in
the second appeal.
12. The High Court therefore manifestly erred by interfering with the concurrent
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findings on facts by two courts below in exercise of powers under Section 100, Civil
Procedure Code, a jurisdiction confined to substantial questions of law only. Merely
because the High Court may have been of the opinion that the inferences and
conclusions on the evidence were erroneous, and that another conclusion to its
satisfaction could be drawn, cannot be justification for the High Court to have
interfered.
13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2 SCR 673, this court
with regard to the scope for interference in a second appeal with facts under Section
100 of the Civil Procedure Code observed as follows:
"12. ....The admissibility of evidence is no doubt a point of law, but once it is
shown that the evidence on which courts of fact have acted was admissible and
relevant, it is not open to a party feeling aggrieved by the findings recorded by
the courts of fact to contend before the High Court in second appeal that the said
evidence is not sufficient to justify the findings of fact in question. It has been
always recognised that the sufficiency or adequacy of evidence to support a
finding of fact is a matter for decision of the court of facts and cannot be
agitated in a second appeal. Sometimes, this position is expressed by saying that
like all questions of fact, sufficiency or adequacy of evidence in support of a
case is also left to the jury for its verdict. This position has always been accepted
without dissent and it can be stated without any doubt that it enunciates what can
be properly characterised as an elementary proposition. Therefore, whenever this
Court is satisfied that in dealing with a second appeal, the High Court has, either
unwittingly and in a casual manner, or deliberately as in this case, contravened
the limits prescribed by Section 100, it becomes the duty of this Court to
intervene and give effect to the said provisions. It may be that in some cases, the
High Court dealing with the second appeal is inclined to take the view that what
it regards to be justice or equity of the case has not been served by the findings
of fact recorded by courts of fact; but on such occasions it is necessary to
remember that what is administered in courts is justice according to law and
considerations of fair play and equity however important they may be, must
yield to clear and express provisions of the law. If in reaching its decisions in
second appeals, the High Court contravenes the express provisions of section
100, it would inevitably introduce in such decisions an element of disconcerting
unpredictability which is usually associated with gambling; and that is a
reproach which judicial process must constantly and scrupulously endeavour to
avoid."
10. The material on record is examined in the light of aforestated
proposition of law. The plaintiff claimed that he is owner of dilapidated house
admeasuring 12 x 17= 204 square feet. He is in possession of the disputed
property. The defendant specifically denied title of plaintiff and claimed title
and possession over the property in para 3 of the written statement. Therefore,
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the plaintiff was under obligation to establish his possession over the disputed
property.
11. The plaintiff has relied on evidence of himself as PW1, his nephew
Ishak PW2, Babu Khan PW3 and Phool Singh PW4. Plaintiff had further
filed property tax receipts of Gram Panchayat, Kesur dated 15.03.2008
Exhibit P2 and dated 11.01.2012 Exhibit P1 and a certificate issued by the
Sarpanch Phool Singh PW4. The defendant examined himself as PW1,
Sarpanch Geeta Bai, PW2, Kale Khan PW3 and Yusuf Shah PW4 to establish
his possession over the disputed property.
12. The Court of first instance meticulously appreciated the evidence in
para 6 to 30 of the judgment. The first appeal court in Para 11 to Para 33 of
the impugned judgment re-appreciated the evidence on record. Both the
Courts, on appreciation of the evidence, concluded that the plaintiff had failed
to establish his possession over the disputed property.
13. The material on record reveals that both the parties did not file any
document to substantiate their title over the disputed property. The property
tax receipt merely shows receipt of the property tax and the name of the
depositor of property tax. The property tax receipts are meant for fiscal
purposes. No inference can be drawn with regard to title over the property
merely on the basis of stray tax receipts. Both the courts have properly
appreciated the evidentiary value of these tax receipts. Similarly, the
certificates issued by Sarpanch Phool Singh PW4 in favour of the plaintiff
and the evidence of erstwhile Sarpanch Geeta Bai DW2 in favour of the
defendant also failed to establish title of the concerned party. Therefore, the
relief of injunction was to be considered based on previous possession.
Apparently, the plaintiff was not in physical possession of the disputed
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property for considerably long period of almost 40 years before filing of the
suit. Plaintiff attempted to show his constructive possession through his
nephew Ishak Khan. But, the possession of Ishak Khan PW2 over the
dilapidated house on behalf of plaintiff was also not established.
14. The concurrent findings of the court of first instance and the first
appellate court are based on proper appreciation of evidence on record. The
findings of the court of first instance and first appellate court cannot be said
to be against the weight of evidence on record or in ignorance of any material
evidence on record. There is neither impropriety nor perversity in the
concurrent findings. Therefore, no case is made out to interfere in concurrent
finding of facts.
15. In view of the above discussion, this Court is of the considered opinion
that the appellants have failed to make out any perversity and substantial
reason for admission of present second appeal. No substantial question of law
is made out for consideration. Therefore, present second appeal is dismissed.
16. Both the parties shall bear their own cost.
17. Record of the Court of first instance as well as first Appellate Court be
remitted alongwith copy of this order after necessary formalities.
C.C.as per rules.
( SANJEEV S KALGAONKAR)
JUDGE
BDJ
