Madhya Pradesh High Court
Malkhan Singh Lodhi vs Smt. Janki Lodhi on 13 February, 2019
Equivalent citations: AIRONLINE 2019 MP 1003
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THE HIGH COURT OF MADHYA PRADESH
SA 2133/2018
Malkhan Singh Lodhi & Anr. vs. Smt. Janki Lodhi & Ors.
Gwalior, dtd.13/02/2019
Shri V. K. Bhardwaj, Senior Counsel with Shri Rohit Batham, counsel
for the appellants.
Shri Ankur Maheshwari, counsel for the respondent No.1.
This Second Appeal under Section 100 of CPC has been filed against the
judgment and decree dated 06th August, 2018, passed by Additional Judge to
the Court of First Additional District Judge, Datia in Regular Civil Appeal
No.01-A of 2018, thereby affirming the judgment and decree dated 21 st
December, 2017 passed by Additional Judge to the Court of First Civil Judge,
Class-I, Datia in Civil Suit No. 93A of 2014.
The respondent Nos.1 to 4/plaintiffs had instituted a civil suit for
declaration of title and permanent injunction in respect of survey No.13 ad-
measuring 1.392 hectares, situated at Mouza Kamrari, Tahsil & District Datia
and after settlement, it has been renumbered as Survey No.81, ad-measuring
1.400 hectares. The land in dispute was belonging to the ancestors of the
plaintiffs, namely, Ramdas, Bhairo and Ramrani, having their respective
shares. It was pleaded that in the year 1996-97 the name of the father of the
defendants No.1 and 2/ appellants was mutated in the revenue records without
any basis. Thereafter, an application was filed before the SDO, Datia. An
enquiry was conducted and it was found that the plaintiffs are in possession of
the land and by mistake, during the settlement the names of the plaintiffs were
not entered. Therefore, vide order dated 3rd July, 2013, the SDO directed the
Patwari to mutate the names of the plaintiffs in Khasra Panchsala of the year
2003-04. It was further pleaded that the appellants/defendants No.1 and 2 are
trying to take forcibly possession, therefore, a FIR was lodged at Police Station
Jigna on 11/11/2013 in Crime No.152/2013 for offence under Sections 447,
511, 294, 506-B of IPC and a criminal case is pending before the Court of
JMFC, Datia bearing Criminal Case No.1789/2013. It was further pleaded that
the order dated 03rd July, 2013 passed by the SDO, was challenged by the
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defendants before the Additional Collector and the appeal of the defendants
was allowed by order dated 31st May, 2014 on the ground that the SDO has no
authority to correct the entries and if the rights of the parties are affected
because of entry in the revenue records, then they have remedy of filing a civil
suit. Accordingly, the suit was filed.
The defendants No.1 and 2/appellants filed their written statements and
pleaded that they are owners and are in possession of the suit property and they
have got the land in succession from their father. It was further pleaded that the
father of the appellants, namely, Manohar Singh, was in possession of the suit
land for the last 40 years and accordingly, he applied for mutation of his name
in the revenue records. The husband of the plaintiff No.1, namely, Dhaniram,
father of the plaintiff No.4, namely, Bhairo Singh, Smt. Ramrani, mother of
plaintiffs No.2 and 3 and plaintiffs No. 2 and 3 were the parties in the
application and an order was passed in favour of the father of the appellants/
defendants No.1 and 2 on 15th September, 1995.
The trial Court after framing the issues and recording the evidence of the
parties, decreed the suit by judgment and decree dated 21 st December, 2017
passed in Civil Suit No.93-A of 2014 and it was declared that the respondents
No.1 to 4/ plaintiffs are the owners and in possession of the land in dispute and
the appellants/defendants No.1 and 2 were restrained from interfering with the
peaceful possession of the plaintiffs/respondents No.1 to 4.
Being aggrieved by the judgment and decree dated 21 st December, 2017
passed by the trial Court, the appellants filed an appeal, which too has been
dismissed by Additional Judge to the Court of First Additional District Judge,
Datia in Regular Civil Appeal No.01-A of 2018.
Challenging the judgment and decree passed by the Courts below, it is
submitted by the learned Senior Counsel for the appellants that the suit was
barred by limitation as the plaintiffs had not sought the relief for quashment of
order dated 15/06/1995 Ex.D.1, order dated 26/12/1995 Ex.D2 and order dated
06/05/2013 Ex.D3. It is submitted that once the names of the appellants were
recorded in the revenue records, then no decree can be granted in favour of the
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respondents No.1 to 4/ plaintiffs, until and unless the revenue entries are set
aside. Furthermore, the plaintiffs were aware of the revenue entries made in
the year 1995, whereas the civil suit was filed on 25 th July, 2014. Thus, the suit
is barred by limitation. To buttress his contention, the learned Senior Counsel
for the appellants has relied upon the judgment passed by the Division Bench
of this Court in the case of Vishwanath Singh Beharisingh Thakur vs. The
State of Madhya Pradesh, reported in AIR 1968 MP 212 (V 55 C 56).
Per contra, it is submitted by the counsel for the respondents No.1 to 4/
plaintiffs that the plaintiffs were in possession of the land in dispute. The
moment they came to know about the mutation of name of father of the
appellants/defendants which was done in a clandestine manner, then an
application was immediately filed before the Court of SDO, Datia, who set
aside the mutation of the name of the father of the appellants. Thereafter, the
appellants/defendants No.1 and 2 had filed an appeal before the Court of Addl.
Collector and the said appeal was allowed by the Additional Collector by order
dated 31st May, 2014. (Ex.XVI-16) and an observation was made that since the
rights of the parties are involved in the present case, therefore, only the Civil
Court has jurisdiction to adjudicate upon the rights of the parties and thus, the
plaintiffs had filed the suit for declaration of their title. It is further submitted
that it is well-established principle of law that the revenue entries are not the
documents of title and nobody can claim title over the property merely on the
basis of the revenue entries. It is further submitted that mere adverse entry in
the revenue records would not give rise to a cause of action. The cause of
action to sue accrues only when right asserted in suit is infringed or there is
threat to infringe that right. In the present case, the cause of action arose when
wrong entries in the revenue records were discovered for the first time, then
the suit was filed within the period of limitation. So far as the question of
correctness of the revenue entries is concerned, the matter is pending before
the Additional Commissioner, Gwalior. It is further submitted that so far as the
question of possession is concerned, it is a disputed question of fact and where
concurrent findings have been recorded by the Courts below, this Court in
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exercise of powers under Section 100 of CPC may not interfere with the
findings of fact.
Heard the learned counsel for the parties.
The Supreme Court in the case of Daya Singh and Another vs.
Gurdev Singh (Dead) by LRs and others, reported in (2010) 2 SCC 194 has
held as under:-
''14. In support of the contention that the suit was filed within the
period of limitation, the learned senior counsel appearing for the
plaintiffs/appellants before us submitted that there could be no
right to sue until there is an accrual of the right asserted in the suit
and its infringement or at least a clear and unequivocal threat to
infringe that right by the defendant against whom the suit is
instituted. In support of this contention the learned senior counsel
strongly relied on a decision of the Privy Council reported in AIR
1930 PC 270 [Mt.Bolo vs. Mt. Koklan and others]. In this
decision their Lordships of the Privy Council observed as
follows :-
"There can be no right to sue until there is an accrual of the
right asserted in the suit and its infringement or at least a
clear and unequivocal threat to infringe that right by the
defendant against whom the suit is instituted."
15. A similar view was reiterated in the case of C. Mohammad
Yunus vs. Syed Unnissa and Others [AIR 1961 SC 808] in which
this Court observed :
"the period of 6 years prescribed by Article 120 has to be
computed from the date when the right to sue accrued and
there could be no right to sue until there is an accrual of the
right asserted in the suit and its infringement or at least a
clear and unequivocal threat to infringe that right."
In the case of C. Mohammad Yunus (supra), this Court held
that the cause of action for the purposes of Article 58 of the
Act accrues only when the right asserted in the suit is
infringed or there is atleast a clear and unequivocal threat to
infringe that right. Therefore, the mere existence of an
adverse entry into the revenue record cannot give rise to
cause of action.
16. Keeping these principles in mind, let us consider the admitted
facts of the case. In para 16 of the plaint, it has been clearly
averred that the right to sue accrued when such right was
infringed by the defendants about a week back when the plaintiffs
had for the first time come to know about the wrong entries in the
record of rights and when the defendants had refused to admit the
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claim of the plaintiffs. Admittedly, the suit was filed on 21st of
August, 1990. According to the averments made by the plaintiffs
in their plaint, as noted hereinabove, if this statement is accepted,
the question of holding that the suit was barred by limitation
could not arise at all. Accordingly, we are of the view that the
right to sue accrues when a clear and unequivocal threat to
infringe that right by the defendants when they refused to admit
the claim of the appellants, i.e. only seven days before filing of
the suit. Therefore, we are of the view that within three years
from the date of infringement as noted in Paragraph 16 of the
plaint, the suit was filed. Therefore, the suit which was filed for
declaration on 21st of August, 1990, in our view, cannot be held
to be barred by limitation.
17. Therefore, the courts below including the High Court had
proceeded entirely on a wrong footing that the cause of action
arose on the date of entering into the compromise and, therefore,
the suit was barred by limitation, whether or not the compromise
decree was acted upon and whether delivery of possession had
taken place has to be decided by the trial court before it could
come to a proper conclusion that the suit was barred by
limitation.''
Thus, it is clear that mere wrong entry in the revenue record would not
give rise to the cause of action but the cause of action would arise only when
the wrong entry in the revenue record is discovered for the first time when the
right asserted in the suit is infringed or there is threat to infringe that right. In
the present case, it is the case of the plaintiffs that when they came to know
about the entries in the revenue record, therefore, they moved an application
before the SDO for mutation of their names. An enquiry was got done by the
SDO, Datia. Thereafter, the Additional Tahsildar, Circle Barsie, Datia gave a
report that the plaintiffs are in possession of the land in dispute and during
settlement proceedings, the names of the plaintiffs were mistakenly not
recorded. Thus, it is clear that the mutation of the name of the father of the
appellants was already under challenge before the revenue authorities and the
Additional Collector has also observed that since the question of title is
involved in the matter, therefore, the same can be adjudicated by the Civil
Court only. It is well-established principle of law that the revenue entries are
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not the documents of title. The revenue entries are made for fiscal purpose
only.
The Supreme Court in the case of Smt. Bhimabai Mahadeo
Kambekar (Dead) Th. LR Vs. Arthur Import and Export Company &
Others, by judgment dated 31st January 2019 passed in CIVIL APPEAL
No.1330 OF 2019 (Arising out of S.L.P.(c) No.9394 of 2012) has held as
under:-
''7. The law on the question of mutation in the revenue records
pertaining to any land and what is its legal value while deciding the
rights of the parties is fairly well settled by a series of decisions of
this Court.
8. This Court has consistently held that mutation of a land in the
revenue records does not create or extinguish the title over such
land nor it has any presumptive value on the title. It only enables
the person in whose favour mutation is ordered to pay the land
revenue in question. (See Sawarni(Smt.) vs. Inder Kaur, (1996) 6
SCC 223, Balwant Singh & Anr. Vs. Daulat Singh(dead) by
L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs.
State of Karnataka & Ors., (2009) 5 SCC 591).''
Thus, it is clear that the person in whose favour mutation has been
ordered, is required to pay land revenue in question. However, the mutation of
a land in the revenue records does not create or extinguish the title over such
land nor it has any presumptive value on the title.
In the present case, it is the claim of the appellants that the name of the
father of the appellants was recorded in the year 1995, however, they have not
filed any document to show that the land revenue was ever paid by the father
of the appellants. Furthermore, the declaration of title is not dependent upon
the revenue entries, but the revenue entries are to be made on the basis of title
adjudicated by the Civil Court. Thus, this Court is of the considered opinion
that the question of authenticity and correctness of the revenue entries is
already sub judice before the revenue authorities and once the Additional
Collector while deciding the appeal of the appellants had already observed that
as the question of title is involved in the matter and the same can be
adjudicated by the Civil Court only, this Court is of the considered opinion
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that it was not necessary for the plaintiffs to seek for setting aside the revenue
orders i.e. order dated 15/06/1995 Ex.D.1, order dated 26/12/1995 Ex. D2
and order dated 06/05/2013 Ex. D3. So far as the question of possession is
concerned, it is well-established principle of law that the question of title is a
disputed question of fact and the concurrent findings of facts recorded by the
Courts below cannot be set aside while exercising the power under Section
100 of CPC.
The Supreme Court in the case of Damodar Lal Vs. Sohan Devi and
others reported in (2016) 3 SCC 78 has held as under :
"8. "Perversity" has been the subject-matter of umpteen
number of decisions of this Court. It has also been settled
by several decisions of this Court that the first appellate
court, under Section 96 of the Civil Procedure Code, 1908,
is the last court of facts unless the findings are based on
evidence or are perverse.
9. In Krishnan v. Backiam, (2007) 12 SCC 190 it has been
held at para 11 that: (SCC pp. 192-93)
"11. It may be mentioned that the first appellate court
under Section 96 CPC is the last court of facts. The
High Court in second appeal under Section 100 CPC
cannot interfere with the findings of fact recorded by the
first appellate court under Section 96 CPC. No doubt the
findings of fact of the first appellate court can be
challenged in second appeal on the ground that the said
findings are based on no evidence or are perverse, but
even in that case a question of law has to be formulated
and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram, (2010) 15 SCC 530
at para 10, this principle has been reiterated: (SCC p.
532)
"10. It is settled law that in exercise of power
under Section 100 of the Code of Civil Procedure,
the High Court cannot interfere with the finding of
fact recorded by the first appellate court which is
the final court of fact, unless the same is found to
be perverse. This being the position, it must be
held that the High Court was not justified in
reversing the finding of fact recorded by the first
appellate court on the issues of existence of
landlord-tenant relationship between the plaintiff
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and the defendant and default committed by the
latter in payment of rent."
The Supreme Court in the case of Pakeerappa Rai Vs. Seethamma
Hengsu Dead by L.R.s and others reported in (2001) 9 SCC 521 has held as
under :-
"2.......... But the High Court in exercise of power under
Section 100 CPC cannot interfere with the erroneous
finding of fact howsoever gross the error seems to
be......."
The Supreme Court in the case of Gurdev Kaur and Others Vs. Kaki
and Others, reported in (2007) 1 SCC 546 has held as under :-
"46. In Bholaram v. Ameerchand (1981) 2 SCC 414 a
three-Judge Bench of this Court reiterated the statement of
law. The High Court, however, seems to have justified its
interference in second appeal mainly on the ground that the
judgments of the courts below were perverse and were
given in utter disregard of the important materials on the
record particularly misconstruction of the rent note. Even if
we accept the main reason given by the High Court the
utmost that could be said was that the findings of fact by the
courts below were wrong or grossly inexcusable but that by
itself would not entitle the High Court to interfere in the
absence of a clear error of law.
47. In Kshitish Chandra Purkait v. Santosh Kumar Purkait
(1997) 5 SCC 438 a three-Judge Bench of this Court held:
(a) that the High Court should be satisfied that the case
involved a substantial question of law and not mere question
of law; (b) reasons for permitting the plea to be raised
should also be recorded; (c) it has the duty to formulate the
substantial questions of law and to put the opposite party on
notice and give fair and proper opportunity to meet the
point. The Court also held that it is the duty cast upon the
High Court to formulate substantial question of law involved
in the case even at the initial stage.
48. This Court had occasion to determine the same issue in
Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor
(1999) 2 SCC 471. The Court stated that the High Court can
exercise its jurisdiction under Section 100 CPC only on the
basis of substantial questions of law which are to be framed
at the time of admission of the second appeal and the second
appeal has to be heard and decided only on the basis of such
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duly framed substantial questions of law.
49. A mere look at the said provision shows that the High
Court can exercise its jurisdiction under Section 100 CPC
only on the basis of substantial questions of law which are to
be framed at the time of admission of 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. The
impugned judgment shows that no such procedure was
followed by the learned Single Judge. It is held by a catena
of judgments by this Court, some of them being, Kshitish
Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC
438 and Sheel Chand v. Prakash Chand (1998) 6 SCC 683
that the judgment rendered by the High Court under Section
100 CPC without following the aforesaid procedure cannot
be sustained. On this short ground alone, this appeal is
required to be allowed.
50. In Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC 35
this Court has observed that it is mandatory to formulate the
substantial question of law while entertaining the appeal in
absence of which the judgment is to be set aside. In
Panchugopal Barua v. Umesh Chandra Goswami (1997) 4
SCC 713 and Santosh Hazari v. Purushottam Tiwari (2001) 3
SCC 179 the Court reiterated the statement of law that the
High Court cannot proceed to hear a second appeal without
formulating the substantial question of law. These judgments
have been referred to in the later judgment of K. Raj v.
Muthamma. A statement of law has been reiterated regarding
the scope and interference of the Court in second appeal
under Section 100 of the Code of Civil Procedure.
51. Again in Santosh Hazari v. Purushottam Tiwari (2001) 3
SCC 179 another three-Judge Bench of this Court correctly
delineated the scope of Section 100 CPC. The Court observed
that an obligation is cast on the appellant to precisely state in
the memorandum of appeal the substantial question of law
involved in the appeal and which the appellant proposes to
urge before the Court. In the said judgment, it was further
mentioned that the High Court must be satisfied that a
substantial question of law is involved in the case and such
question has then to be formulated by the High Court.
According to the Court the word substantial, as qualifying
"question of law", means--of having substance, essential,
real, of sound worth, important or considerable. It is to be
understood as something in contradistinction with--
technical, of no substance or consequence, or academic
merely. However, it is clear that the legislature has chosen
not to qualify the scope of "substantial question of law" by
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suffixing the words "of general importance" as has been done
in many other provisions such as Section 109 of the Code and
Article 133(1)(a) of the Constitution.
52. In Kamti Devi v. Poshi Ram (2001) 5 SCC 311 the Court
came to the conclusion that the finding thus reached by the
first appellate court cannot be interfered with in a second
appeal as no substantial question of law would have flowed
out of such a finding.
53. In Thiagarajan v. Sri Venugopalaswamy B. Koil (2004) 5
SCC 762 this Court has held that the High Court in its
jurisdiction under Section 100 CPC was not justified in
interfering with the findings of fact. The Court observed that
to say the least the approach of the High Court was not
proper. It is the obligation of the courts of law to further the
clear intendment of the legislature and not frustrate it by
excluding the same. This Court in a catena of decisions held
that where findings of fact by the lower appellate court are
based on evidence, the High Court in second appeal cannot
substitute its own findings on re-appreciation of evidence
merely on the ground that another view was possible.
54. In the same case, this Court observed that in a case where
special leave petition was filed against a judgment of the
High Court interfering with findings of fact of the lower
appellate court. This Court observed that to say the least the
approach of the High Court was not proper. It is the
obligation of the courts of law to further the clear intendment
of the legislature and not frustrate it by excluding the same.
This Court further observed that the High Court in second
appeal cannot substitute its own findings on re-appreciation
of evidence merely on the ground that another view was
possible.
55. This Court again reminded the High Court in Commr.,
HRCE v. P. Shanmugama (2005) 9 SCC 232 that the High
Court has no jurisdiction in second appeal to interfere with
the finding of facts.
56. Again, this Court in State of Kerala v. Mohd. Kunhi
(2005) 10 SCC 139 has reiterated the same principle that the
High Court is not justified in interfering with the concurrent
findings of fact. This Court observed that, in doing so, the
High Court has gone beyond the scope of Section 100 of the
Code of Civil Procedure.
57. Again, in Madhavan Nair v. Bhaskar Pillai (2005) 10
SCC 553 this Court observed that the High Court was not
justified in interfering with the concurrent findings of fact.
This Court observed that it is well settled that even if the first
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appellate court commits an error in recording a finding of
fact, that itself will not be a ground for the High Court to
upset the same.
58. Again, in Harjeet Singh v. Amrik Singh (2005) 12 SCC
270 this Court with anguish has mentioned that the High
Court has no jurisdiction to interfere with the findings of fact
arrived at by the first appellate court. In this case, the findings
of the trial court and the lower appellate court regarding
readiness and willingness to perform their part of contract
was set aside by the High Court in its jurisdiction under
Section 100 CPC. This Court, while setting aside the
judgment of the High Court, observed that the High Court
was not justified in interfering with the concurrent findings of
fact arrived at by the courts below.
59. In H.P. Pyarejan v. Dasappa 92006) 2 SCC 496 delivered
on 6-2-2006, this Court found serious infirmity in the
judgment of the High Court. This Court observed that it
suffers from the vice of exercise of jurisdiction which did not
vest in the High Court. Under Section 100 of the Code (as
amended in 1976) the jurisdiction of the Court to interfere
with the judgments of the courts below is confined to hearing
of substantial questions of law. Interference with the finding
of fact by the High Court is not warranted if it invokes re-
appreciation of evidence. This Court found that the impugned
judgment of the High Court was vulnerable and needed to be
set aside."
The Supreme Court in the case of Municipal Committee, Hoshiarpur
Vs. Punjab SEB and Others, reported in (2010) 13 SCC 216 has held as
under:-
"16. Thus, it is evident from the above that the right to appeal
is a creation of statute and it cannot be created by
acquiescence of the parties or by the order of the court.
Jurisdiction cannot be conferred by mere acceptance,
acquiescence, consent or by any other means as it can be
conferred only by the legislature and conferring a court or
authority with jurisdiction, is a legislative function. Thus,
being a substantive statutory right, it has to be regulated in
accordance with the law in force, ensuring full compliance
with the conditions mentioned in the provision that creates it.
Therefore, the court has no power to enlarge the scope of
those grounds mentioned in the statutory provisions. A second
appeal cannot be decided merely on equitable grounds as it
lies only on a substantial question of law, which is something
distinct from a substantial question of fact. The court cannot
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entertain a second appeal unless a substantial question of law
is involved, as the second appeal does not lie on the ground of
erroneous findings of fact based on an appreciation of the
relevant evidence. The existence of a substantial question of
law is a condition precedent for entertaining the second
appeal; on failure to do so, the judgment cannot be
maintained. The existence of a substantial question of law is a
sine qua non for the exercise of jurisdiction under the
provisions of Section 100 CPC. It is the obligation on the
court to further clear the intent of the legislature and not to
frustrate it by ignoring the same. (Vide Santosh Hazari v.
Purshottam Tiwari; Sarjas Rai v. Bakshi Inderjit Singh;
Manicka Poosali v. Anjalai Ammal; Sugani v. Rameshwar
Das; Hero Vinoth v. Seshammal; P. Chandrasekharan v. S.
Kanakarajan; Kashmir Singh v. Harnam Singh; V.
Ramaswamy v. Ramachandran and Bhag Singh v. Jaskirat
Singh.)
17. In Mahindra & Mahindra Ltd. v. Union of India
(1979) 2 SCC 529 this Court observed*:
"12. ... it is not every question of law that could be
permitted to be raised in the second appeal. The
parameters within which a new legal plea could be
permitted to be raised, are specifically stated in sub-
section (5) of Section 100 CPC. Under the proviso, the
Court should be 'satisfied' that the case involves a
'substantial question of law' and not a mere 'question
of law'. The reason for permitting the substantial
question of law to be raised, should be 'recorded' by
the Court. It is implicit therefrom that on compliance
of the above, the opposite party should be afforded a
fair or proper opportunity to meet the same. It is not
any legal plea that would be alleged at the stage of
second appeal. It should be a substantial question of
law. The reasons for permitting the plea to be raised
should also be recorded." [Kshitish Chandra Purkait v.
Santosh Kumar Purkait, (1997) 5 SCC 438, pp. 445-
46, para 10]
18. In Madamanchi Ramappa v. Muthaluru Bojjappa AIR
1963 SC 1633 this Court observed: (AIR pp. 1637-38, para
12)
"12. ... 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
13
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."
19. In Jai Singh v. Shakuntala (2002) 3 SCC 634 this Court
held as under: (SCC pp. 637-38, para 6)
"6. ... it is only in very exceptional cases and on extreme
perversity that the authority to examine the same in
extenso stands permissible -- it is a rarity rather than a
regularity and thus in fine it can be safely concluded that
while there is no prohibition as such, but the power to
scrutiny can only be had in very exceptional circumstances
and upon proper circumspection."
20. While dealing with the issue, this Court in Leela Soni v.
Rajesh Goyal (2001) 7 SCC 494 observed as under: (SCC p.
502, paras 20-22)
"20. There can be no doubt that the jurisdiction of the High
Court under Section 100 of the Code of Civil Procedure
(CPC) is confined to the framing of substantial questions of
law involved in the second appeal and to decide the same.
Section 101 CPC provides that no second appeal shall lie
except on the grounds mentioned in Section 100 CPC. Thus
it is clear that no second appeal can be entertained by the
High Court on questions of fact, much less can it interfere
in the findings of fact recorded by the lower appellate
court. This is so, not only when it is possible for the High
Court to take a different view of the matter but also when
the High Court finds that conclusions on questions of fact
recorded by the first appellate court are erroneous.
21. It will be apt to refer to Section 103 CPC which
enables the High Court to determine the issues of fact:
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***
22. The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as the lower appellate court or by the lower appellate court; or (2) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Section 100 CPC."
21. In Jadu Gopal Chakravarty v. Pannalal Bhowmick the question arose as to whether the compromise decree had been obtained by fraud. This Court held that though it is a question of fact, but because none of the courts below had pointedly addressed the question of whether the compromise in the case was obtained by perpetrating fraud on the court, the High Court was justified in exercising its powers under Section 103 CPC to go into the question. (See also Achintya Kumar Saha v. Nanee Printers.)
22. In Bhagwan Sharma v. Bani Ghosh AIR 1993 SC 398 this Court held that in case the High Court exercises its jurisdiction under Section 103 CPC, in view of the fact that the findings of fact recorded by the courts below stood vitiated on account of non-consideration of additional evidence of a vital nature, the Court may itself finally decide the case in accordance with Section 103(b) CPC and the Court must hear the parties fully with reference to the entire evidence on record with relevance to the question after giving notice to all the parties. The Court further held as under: (Bhagwan Sharma case, SCC p. 499, para 5) "5. ... The grounds which may be available in support of a plea that the finding of fact by 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, as has been done in the impugned judgment."
23. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262 this Court observed as under: (SCC pp. 278-79, para
34) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second 15 appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. ...
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
In Second Appeal, the re-appreciation of evidence and interference with the findings of fact is not permissible. This Court can interfere with the concurrent findings of fact, only when a Substantial Question of law arises. If the Courts below have neither ignored any material fact, nor has considered any inadmissible evidence, then this Court cannot interfere with the concurrent findings of fact.
No other argument is advanced.
Accordingly, this Court is of the considered opinion that no substantial question of law arises in the present appeal. Resultantly, the judgment and decree dated 06th August, 2018 passed by Additional Judge to the Court of First Additional District Judge, Datia in Regular Civil Appeal No.01-A of 2018 and 16 the judgment and decree dated 21st December, 2017 passed by First Civil Judge, Class-I, Datia in Civil Suit No. 93-A of 2014 are affirmed.
Appeal fails and is hereby dismissed in limine.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2019.02.18 16:50:43 +05'30'