Madhya Pradesh High Court
Kachru vs Dhuliya on 6 October, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 6 th OF OCTOBER, 2025
SECOND APPEAL No. 696 of 2024
KACHRU AND OTHERS
Versus
DHULIYA AND OTHERS
Appearance:
Shri Yashpal Rathore - Advocate for the appellants.
ORDER
1. Records of the Court of first instance and the first Appellate Court have
been received.
2. Heard on admission.
3. Plaintiff Dhuliya (respondent no. 1) had filed a civil suit for permanent
injunction in respect of disputed property bearing Survey no. 62 admeasuring
0.74 Hector situated at village - Petlawad alleging interference in his possession,
against Kacharu and other defendants.
4. The Court of first instance, vide judgment dated 30/11/2022 passed in
RCS no. 16-A of 2017 granted permanent injunction restraining the defendants to
interfere in the possession of plaintiff over disputed property. Kacharu and Badri
preferred an appeal assailing the judgment and decree of the Court of first
instance. The first Appellate Court i.e. District Judge, Petlawad, District - Jhabua,
vide impugned judgment and decree dated 04/12/2023 passed in RCA no. 82 of
2023, affirmed the judgment and decree of the Court of first instance and
dismissed the appeal. Thus, present second appeal is filed feeling aggrieved by
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concurrent findings of the Court of first instance as well as the first Appellate
Court.
5. Learned counsel for the appellants, in addition to the facts and grounds
mentioned in the appeal memo, contends that the plaintiff did not plead that he
has received the possession of the suit property through Panchanama and
possessions receipt [ Ex-P/3 and Ex. P/4]. The execution of Ex-P/3 and Ex-P/4
was not proved by examining any witness of the Panchanama and the receipt.
These documents should have been ignored by the Court of first instance as well
as the first Appellate Court with regard to possession of the plaintiff over the suit
property, but the Court of first instance as well as the first Appellate Court
erroneously relied on these documents and concluded that the plaintiff is in
possession of the suit property. Learned counsel referred to the substantial
questions of law proposed in appeal memo as under :
i) Whether the courts below have erred in granting decree of permanent
injunction overlooking the orders of Revenue Court, which proves that
plaintiff is not in possession?
ii) Whether in document Ex-D/2 khasra entry of the year 1988-89, defendants'
possession was recorded and Ex-D/3 and D/4 also proves defendants'
possession, therefore, learned courts below were not justified in granting
decree of permanent injunction?
iii) Whether considering the fact that appellants and respondents are of one
family, therefore, if partition is not proved, then status of parties would be of
co-owner and no injunction can be issued against co-owner, learned courts
below have committed grave error of law in decreeing plaintiff's suit?
iv) Whether in absence of any proof regarding that when plaintiff has received
the possession of suit land, learned courts below have erred in presuming the
plaintiff 's possession ?
v) Whether judgment and decree passed by learned courts below are illegal as
it is based on misreading of the defendants' documents and statement of
defendants' witnesses?
6. Learned counsel requests that present appeal be heard on these
questions of law.
7. Heard learned counsel for the appellant and perused the records.
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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:
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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 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.
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12. The High Court therefore manifestly erred by interfering with the
concurrent 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 s. 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 Court of first instance in para 14 to 22 of the judgement
has considered the oral and documentary evidence on record and gave reasoned
finding that plaintiff Dhulya is in possession of suit land. The defendant had
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interfered with possession of the plaintiff on the suit land.
11. The first appellate Court re-appreciated the evidence on record and
dealt with all the contentions raised in the appeal memo. The first appellate Court
considering the revenue entries and the oral evidence on record concluded that the
Court of first instance had committed no error in finding that the plaintiff was in
possession over the suit land at the time of filing of the suit. The first appellate
Court further concluded that the Court of first instance did not commit any error
in granting relief of permanent injunction in favour of the plaintiff.
12. Consequently, the Court of first instance and first Appellate Court
have not committed any error in granting permanent injunction restraining the
defendants to interfere in the possession of plaintiff over disputed property. There
is neither impropriety nor perversity in the findings of the first Appellate Court in
affirming the judgment and decree passed by the Court of First Instance.
Therefore, no case is made out to interfere in the concurrent findings of the Court
of first instance and the first Appellate Court.
13. 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.
14. Records of the Court of first instance as well as first Appellate Court
be remitted alongwith copy of this judgment after necessary formalities.
.C.as per rules
(SANJEEV S KALGAONKAR)
JUDGE
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amol
