Madhya Pradesh High Court
Vasudev vs Smt. Jamnabai on 9 May, 2025
NEUTRAL CITATION NO.2025:MPHC-IND:12321 1 SA No.1394/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
SECOND APPEAL No.1394 of 2019
VASUDEV AND ANOTHER
...Appellants
and
SMT.JAMNABAI AND OTHERS
...Respondents
Reserved on 30.04.2025
Pronounced on 09.05.2025
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Appearance:
Shri R.S. Chhabra, learned Senior Advocate assisted by Shri Nitin
Phadke, learned counsel for the appellants.
Shri Ajay Bagadia, learned Senior Advocate assisted by Shri M.A.
Mansoori, learned counsel for respondents No.1, 2, 4 and Legal
Representatives of respondents No.5 and 6.
Shri Jayesh Yadav, learned Panel Lawyer for respondent No.3 / State.
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JUDGMENT
Assailing the judgment and decree dated 02.05.2019 passed in Regular Civil Appeal No.18/2016 on the file of the learned 27th Additional District Judge, Indore dismissing the appeal and confirmed the judgment and decree dated 04.05.2016 in Civil Suit No.126-A/2015 on the file of the XVI Civil Judge, Class-II, Indore, the present second appeal is filed by the appellants / defendants No.1 and 2.
Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19NEUTRAL CITATION NO.2025:MPHC-IND:12321 2 SA No.1394/2019
02. For sake of convenience, the parties are hereinafter referred to as they are arrayed before the trial Court in Civil Suit No.126-A/2015.
03. The respondents No.1 and 2 - herein / plaintiffs No.1 and 2 filed a Civil Suit No.126-A/2015 in respect of agricultural land bearing survey No.307 area 12.41 acres situated at Village Kanadia, Tehsil and District Indore and the house located in Village Kanadia, Indore seeking for declaration declaring that the husband of plaintiff No.1 and father of plaintiff No.2 (Ramprasad) and the defendant No.1 (Vasudev) are the co- owners of the disputed land and the house located in Kanadia, Indore each having 1/2 share and sought relief of partition, possession and permanent injunction restraining the defendants No.1 and 2 from selling, transferring or alienating the subject property.
04. The averments in the plaint are as under : plaintiff No.1 (Jamnabai) is the wife of Ramprasad and plaintiff No.2 (Mangilal) is the son of Ramprasad and the defendant No.1 (Vasudev) are the sons of Bhagwansingh. After death of Bhgwansingh, the mutation of the disputed land took place in the names of Ramprasad and Vasudev and later, the land in survey No.307/01 registered in the name of defendant No.2 (Jaswant) and the land in survey No.307/02 registered in the name of defendant No.1 (Vasudev).
(i). After the death of Bhagwansingh, the mutation of the disputed land was carried out in the names of Ramprasad and Vasudev. Ramprasad was an alcoholic in habit of excessive drinking and not considering the consequences of his actions, defendant No.1 (Vasudev) would often beat him and treat him disrespectfully, the plaintiff No.1 (Jamnabai) took her husband (Ramprasad) to her father's Village Naharkheda, Tehsil Sanwer and every year they used to go to Kanadia to collect the food-grains, 5 or 6 years ago, the plaintiffs are living in Kanadia and they requested the Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 3 SA No.1394/2019 defendant No.1 for partition of the disputed land and house into half of the share. On 26.01.2008, a public notice was issued in "Dainik Bhaskar Newspaper", Indore on behalf of unknown party that the defendant No.1 (Vasudev) was attempting to sell the land in survey No.307/02 and information regarding partition was not made in between them, later, the plaintiffs requested the defendants for possession of the property, the plaintiffs obtained certified copies of the Khasras (land records) for the disputed land from Tehsil covering the years 1973-74 to 1994-95. On 30.01.2008, they came to know that the land in survey No.307/01 was registered in the name of defendant No.2 (Jaswant) and land in survey No.307/02 was registered in the name of defendant No.1 (Vasudev), further informed that the name of the Ramprasad was removed, again plaintiffs issued a public notice on 'Agniban Newspaper', the defendants' names are illegally registered on the disputed land and no partition took place on the land and house between Ramprasad and defendant No.1 (Vasudev), if the defendants transfer or alienate the disputed land, it is not binding on them and therefore, they filed a suit for permanent injunction, declaration, partition and possession of the disputed land as prayed in the plaint.
05. Written statement filed by the defendants No.1 and 2, they denied all the averments made in the plaint. It is averred that the name of defendant No.2 (Jaswant) mutated in the revenue records in 1981 with the consent of Ramprasad during his life-time, further averred that the plaintiffs have no right to raise objections after 27 years, further averred that Ramprasad was adopted by his maternal grand-mother (Kanchanbai) at the age of 6 or 7 years old and she gave him around 40 bighas of land, later it was sold and shifted to Kanadia from Achlukhedi. Further averred that the Ramprasad and defendant No.1 jointly invested some money and purchased 16 bighas of land in the Village of Upadinatha, later defendant No.1 and Ramprasad Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 4 SA No.1394/2019 partitioned 1.927 hectares of land, the name of defendant No.2 was mutated in the revenue records. The partition was done with the consent of Ramprasad in the year 1981, further averred that in the year 1990, Ramprasad wanted to sell the land in Upadinatha and defendant No.1 agreed to sell the land situated in Upadinatha subject to remove his name from the disputed land, accordingly, Ramprasad's name was removed from the land in Kanadia and defendant No.1 has given written consent to sell the land situated at Upadinatha, based on written consent, Tehsil Court issued order on 14.04.1990 in Case No.3-A/6-A/1989-90 in which Ramprasad agreed to remove his name with his consent. Since then the plaintiffs have no claim on the disputed land and defendants are the sole owners of the disputed land, further averred that the suit filed by the plaintiffs is barred by the limitation and the suit of the plaintiffs is liable to be dismissed.
06. The defendant No.3 (State) is a formal party has not filed written statement.
07. The defendants No.4 to 6 admitted the facts mentioned in the plaint and have expressed no objection (defendants No.4 to 6 are the daughters of Ramprasad).
08. Based on the pleadings of both the parties and the documents, the learned trial Court framed the following issues :
1. Whether, the defendants illegally get their names registered on the land in survey No.307 measuring 12.41 acres ?
2. Whether, the plaintiffs entitled to obtain permanent injunction against the defendants restraining from selling, transferring or alienating the disputed land either by themselves or through others ?
3. Whether, the plaintiffs entitled to seek partition of the disputed land, house and court-yard in Kanadia, in the ratio of 1/2-1/2 based on metes and bounds ?
4. Whether, the plaintiffs entitled to take possession of the disputed land from the defendants ?
5. Whether, the plaintiffs entitled to interim relief until they obtained possession of the disputed land ?Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19
NEUTRAL CITATION NO.2025:MPHC-IND:12321 5 SA No.1394/2019
6. Whether, the suit presented by the plaintiffs any hindrance due to non-joinder of necessary parties ?
7. Whether, the suit presented within the prescribed time limit ?
8. Whether, the plaintiffs properly valued the suit and paid the proper court-fees?
9. To what relief and costs."
09. During the course of trial, PW-1 (Mangilal), PW-2 (Takhatsingh) and PW-3 (Vikramsingh) were examined and Exs.P-1 to 10 were marked on behalf of the plaintiffs. DW-1 (Vasudev), DW-2 (Shankarlal), DW-3 (Rajaram) and DW-4 (Ramchandra) were examined and Exs.D-1 to 16 were marked on behalf of the defendants.
10. According to the learned trial Court, issue No.1 certified / proved, issue No.2 yes, against the defendants No.1 and 2, Issues No.3, 5 and 6, No. Issues No.4 yes, after a proper partition in accordance with law. Issue No.7 yes. Issue No.8, valuation of the suit is correct, but court-fees paid by them is insufficient. Issue No.9, decreed the suit as per Para 25 of the judgment.
11. The learned trial Court came to a conclusion that the mutation of defendant No.2 (Jaswant) in land survey No.307/01 measuring 1.927 hectares and the removal of Ramprasad's name from the disputed land in 1990 do not appear to have been carried out in accordance with the legal procedure, the defendants' names are illegally registered / mutated in the revenue records of disputed land in survey No.307 measuring 12.41 acres. Further observed that the transfer of disputed land in favour of defendant No.2 is not valid and removal of Ramprasad's name from the disputed land in 1990 was not carried out in accordance with legal procedure and it cannot be concluded that Ramprasad's right in the disputed land was terminated, further observed that the plaintiffs are entitled for separate possession after division of the disputed property. Further observed that the present suit is filed within limitation and decreed the suit that the plaintiffs No.1 and 2 along with defendants No.4 to 6 jointly owned half of the Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 6 SA No.1394/2019 disputed land in survey No.307 measuring 12.41 acres (5.022 hectares) as co-owners with defendant No.1, further observed that the defendants No.1 and 2 are permanently prohibited from transferring or alienating the disputed land until proper division of the disputed land effected and finally the plaintiffs are entitled to take possession of legitimate share of 1/10 each, accordingly, the learned trial Court vide judgment dated 04.05.2016 in Civil Suit No.126-A/2015, decreed the suit.
12. Aggrieved by the judgment and decree of the learned trial Court, the appellants / defendants No.1 and 2 preferred the Regular Civil Appeal No.18/2016 on the file of the learned 27th Additional District Judge, Indore.
13. During the pendency of the first appeal, the appellants / defendants filed an application under Order XLI Rule 27 of CPC to receive the additional documents, which was accepted by learned first appellate Court and sent the documents to the learned trial Court with a direction to take the documents presented by appellants / defendants No.1 and 2 on record, after considering the additional evidence from both the parties, forwarded the same to the learned first appellate Court. In compliance to the order the learned first appellate Court dated 04.01.2019, the learned trial Court received the documents and examined two witnesses and sent the record to the learned first appellate Court, those documents marked as Exs.D-17 to D-24 on behalf of the appellants / defendants.
14. The First Appellate Court being final fact-finding Court, upon comprehensively re-valued and re-appreciated the pleading of the parties and the entire evidence on record came to a conclusion that the plaintiffs / respondents established their case and mutation took place in the names of defendants No.1 and 2 on the disputed property in the revenue records are not in accordance with law, appellants / defendants failed to give any proper explanation that why no independent witnesses were present at the time of Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 7 SA No.1394/2019 consent letter (Ex.D-5) dated 17.06.1990 was executed by the Ramprasad, appellants / defendants attempted to prove through document (Ex.D-5) that Ramprasad relinquished his right over the disputed land in the year 1990, it is evident from the examination of the witnesses on behalf of the respondents are not proved, the Ex.D-5 shows that the stamps were purchased in January, 1990 and documents were executed in June, further observed that the evidence of witnesses were inconsistent and after considering the evidence on record, the plaintiffs have successfully proved their case and judgment of learned trial Court in Civil Suit No.126-A/2015 dated 04.05.2016 is hereby upheld, accordingly, dismissed the appeal.
15. Aggrieved by and dis-satisfied with the judgments and decrees of learned trial Court and learned First Appellate Court, the appellants / defendants filed this second appeal.
16. This second appeal was admitted on 16.11.2022 on the following substantial questions of law framed by this Court :-
"(i). Whether, the Courts below have committed any error in passing the impugned decrees without considering the applicability of the bar contained in the provisions of Section 34 of the Specific Relief Act on account of failure of the plaintiffs to raise any challenge in respect of the order in order Ex.D-22 dated 24.04.1990 ?
(ii). Whether, the findings recorded by the Courts below on the question of limitation are illegal and perverse on account of failure to consider the provisions of Article 58 and Article 100 of the Schedule appended to the Limitation Act, 1963 ?
17. Shri R.S. Chhabra, learned Senior Counsel assisted by Shri Nitin Phadke, learned counsel for appellants / defendants No.1 and 2 submitted that the Ramprasad and Vasudev are the sons of Bhagwansingh, after death of their father, the mutation of the disputed land took place in the names of Ramprasad and Vasudev, deceased Ramprasad was adopted at the age of 6 or 7 years by his maternal grand-mother and during her life-time, she has given 40 bighas of agricultural land at Village Achlukhedi to him and later, Ramprasad sold the agricultural land, Vasudev contributed some money to Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 8 SA No.1394/2019 purchase 16 bighas of land in Upadinatha and Khasra entries were made under Ex.D-4, further submitted that from onwards Ramprasad used to enjoy the said property at Upadinatha, the disputed land in Village of Kanadia with the consent of Ramprasad, the defendants' names were mutated in the revenue records in Case No.3-A/6-A/1989-90, on the application submitted by Ramprasad, his name was removed from the revenue records, further submitted that Ramprasad was alive at the time of mutation, if he has not given any consent he would have raised objection, questioned the revenue proceedings and he would have challenged the same before the revenue authority and even after the death of Ramprasad, his legal heirs i.e. plaintiffs / respondents would have challenged the mutation proceedings issued by revenue authority in Ex.D-22 dated 24.04.1990, after lapse of 18 years, they have filed the present suit with the oblique motive behind them claiming the share in the suit property without any locus. Further submitted that Ex.D-22 dated 24.04.1990 mutation proceedings issued by revenue authority is in force, the plaintiffs neither challenged the validity of the document (Ex.D-5) in the suit nor they have sought any declaration in respect of Exs.D-5 and D-22. Further submitted that the order of Ex.D-22 was based on the consent given by late Ramprasad and the plaintiffs have not raised any dispute in respect of order of Ex.D-22 dated 24.04.1990 and without seeking any declaratory relief, a bar of proviso to Section 34 of Specific Relief Act. During the pendency of the first appeal, the appellants / defendants filed an application under Order XLI Rule 27 of CPC to take the documents on record, the learned first appellate Court allowed the application and sent to the learned trial Court with a direction "to take the documents presented by the appellants and record the evidence, if necessary, from both the parties and send back the record to the appellate Court". In compliance, the learned trial Court received the documents on Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 9 SA No.1394/2019 record, two witnesses were examined and forwarded the record to the learned first appellate Court, further submitted that learned first appellate Court without appreciating the evidence and documents marked as Exs.D- 17 to D-24 committed grave error in dismissing the appeal, the plaintiffs did not ask for cancellation of orders of the revenue authority and therefore, the suit is not maintainable under Section 34 of the Specific Relief Act, further submitted that the mutation entry is not simply for physical purpose and in fact mutation creates Bhu-swami rights in the land.
(ii). Further submitted that on the plain reading of the Articles 58 and 100 schedule of Limitation Act, 1963, it is made clear that the suit for recovery of possession and declaration should be filed within a period of 12 years, the present suit is filed by the plaintiffs on 13.02.2008 after lapse of 18 years is barred by limitation, the suit is not maintainable in accordance with Articles 58 and 100 of the Act, 1963, further submitted that the Ramprasad and defendant No.1 (Vasudev) invested the money and purchased 16 bighas of agricultural land in Village Upadinatha, Ramprasad expressed his intention to sell the land and Vasudev agreed the said proposal and Ramprasad sold the land in Upadinatha and he was advised to remove his name from the land in survey No.307/02 in the Village of Kanadia, accordingly, he has given consent letter under Ex.D-5 dated 17.06.1990, further submitted that the findings recorded by Courts below are erroneous and committed grave error and it would be perverse and needs interference by this Court and to set aside the judgments and decrees passed by the Courts below, further submitted that he prays to allow the appeal and set aside the judgments and decrees of the Courts below.
18. Shri Ajay Bagadia, learned Senior Counsel assisted by Shri M.A. Mansoori, learned counsel for respondents submitted his arguments that the findings of the Courts below are well reasoned, the issues framed by Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 10 SA No.1394/2019 learned trial Court have been properly assessed and decreed the suit, further submitted that the appellants failed to prove their case by producing the material evidence on record, which clearly indicates that the plaintiffs denied the signatures in Ex.D-5 and no evidence adduced by the defendants to prove the Ex.D-5 executed by Ramprasad, further submitted that the plaintiffs are not aware of the partition proceedings and from the date of their knowledge, they have filed a suit within 03 years, accordingly, the suit is maintainable. Further submitted that Bhagwansingh had two sons namely Ramprasad and Vasudev, both the sons have half of the share in the suit property situated at Village Kanadia, Indore. Further submitted that the revenue entries do not confer any right or title over the suit property in question, the parties to the suit are the owners and entitled to claim of half of the portion of the land in dispute, Section 34 of the Specific Relief Act and Articles 58 and 100 of the Limitation Act are not coming in the way of maintainability of the suit from the date of knowledge, the plaintiffs filed a suit within 03 years. Further submitted that the concurrent findings of the Courts below are true appreciation do not call for any interference by this Court, he prays to dismiss the appeal and upheld the judgments and decrees of both the Courts below.
19. This Court making serious endeavour recapitulate the legal position with the hope that the Courts would keep in mind the legal position before interfering in a case of concurrent findings of fact arrived at by the learned trial Court and upheld by the First Appellate Court.
20. Section 100 of Code of Civil Procedure, 1908 (for short 'CPC') corresponding to Section 584 of the old CPC, 1882. The Section 100 (prior to 1976 amendment) reads as under :-
"100. Second Appeal - (1) "Save where otherwise provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 11 SA No.1394/2019 passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;(c) a substantial error or defect in the procedure provided by this Court or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this Section from an appellate decree passed ex parte.
21. A reference of series of cases decided by the Privy Council and Hon'ble Apex Court true import, scope and ambit of Section 100 of CPC.
22. The cases decided prior to 1976 amendment both by the Privy Council and Supreme Court dealing with scope of Section 100 CPC.
23. The Privy Council, in the case of Luchman Vs. Puna1 observed that second appeal can lie only on one or other grounds specified in the present Section.
24. The Privy Council, in another case Pratap Chunder Vs. Mohandranath2, the limitation as to the power of the Court imposed by Sections 100 and 101 in a second appeal ought to be attended to, and appellant ought not to be allowed to question the finding of First Appellate Court under matter of fact.
25. In the case of Durga Chowdharani Vs. Jawahar Singh 3, the Privy Council held that High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross or inexcusable the error may 'seems to be'. The clear declaration of law was made in the said judgment as early as 1891 this judgment was followed in the case of Ramratan Shukul Vs. Mussumat Nandu4 Privy Council and many others. The Court observed :-
1. (1989) 16 CAL 753 (PC)
2. (1890) ILR 17 CAL 291 (PC)
3. (1891) CAL 23 (PC)
4. (1892) 19 CAL 249 (252) Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 12 SA No.1394/2019 "It has now been conclusively settled that the third Court...
cannot entertain an appeal upon question as to the soundness of findings of fact by second Court, if there is any evidence to be considered, the decision of the second Court, however, unsatisfactorily it might be if examined must stand final."
26. The Amendment Act of 1976 has introduced drastic changes in the scope and ambit of Section 100 CPC. A second appeal under Section 100 CPC is now confined to cases, where the question of law is involved and such question must be a substantial one. Section 100, as amended, read as under :-
"100. Second Appeal. - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
Cases decided after 1976 Amendment.
27. In the case of Bholaram Vs. Amirchand5, a three Judges Bench of the Hon'ble Apex 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 Courts below were perverse and were given in utter disregard of important materials on the record particularly misconstruction of the rent note. Even, if accepts the main reason given by
5. AIR 1981 SC 1209 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 13 SA No.1394/2019 the High Court utmost that could be said was that the findings of facts by the Courts below were wrong or grossly inexcusable but, that by itself would not entitle the High Courts to interfere in the absence of a clear error of law.
28. The Hon'ble Apex Court determines the same issue in Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor6. 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 the such duly framed substantial question of law.
29. 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.
30. In Thiagarajan Vs. Venugopalaswamy B Koil7, the Hon'ble Apex Court held that 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 is not proper. It is the obligation of the Courts of law to further clear intendment of the legislature and not frustrate, it by excluding the same. The Hon'ble Apex Court in a catena of decisions held that where the findings of fact by the lower appellate court are based on evidence, the High Court in the second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that the another view was possible.
6. AIR 1999 SC 684
7. AIR 2004 SC 1913 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 14 SA No.1394/2019
31. Whether, the concurrent findings of fact recorded by Courts below warrants any interference by High Court by exercising its jurisdiction under Section 100 of CPC?
32. The Hon'ble Apex Court in Kulwant Kaur and others Vs. Gurdial Singh Mann (dead) by LRs and others8 has held as under :-
"Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second 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 stands 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 dealt 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".
33. In the light of the above catena of decisions, the question arises is as to whether the concurrent findings of fact recorded by the Courts below warrants any interference by this Court while exercising its jurisdiction under Section 100 CPC.
34. The undisputed facts in this case are that the plaintiff No.1 (Jamnabai) is the wife of Ramprasad and plaintiff No.2 (Mangilal) is the son of Ramprasad. The defendant No.1 (Vasudev) and Ramprasad are the sons of Bhagwansingh. After death of Bhagwansingh, the mutation of the disputed land took place in the names of Ramprasad and Vasudev and later, the land in survey No.307/01 registered in the name of defendant No.2 (Jaswant) and the land in survey No.307/02 registered in the name of defendant No.1 (Vasudev), defendants No.4 to 6 are the daughters of
8. 2001 (4) SCC 262 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 15 SA No.1394/2019 Ramprasad and they are supporting the case of the plaintiffs and not contested the matter. Further undisputed facts that the Ramprasad had given consent to defendant No.1 under Ex.D-5 for property situated in Kanadia, Indore, accordingly, the learned revenue authorities made enquiries and issued proceedings on 14.04.1990 in case No.3-A/6-A/1989-90 (Ex.D-22). It is undisputed facts that during the life-time of Ramprasad, he did not raise the objections about the mutation in favour of the defendants and after death of Ramprasad in 1992, the plaintiffs did not challenge the mutation proceedings of revenue authorities till filing of the suit. It is undisputed facts that the present suit is filed on 13.02.2008 by the plaintiffs after lapse of 18 years. It is undisputed facts that during life-time of Ramprasad, he has given a written consent dated 17.06.1990 (Ex.D-5), the plaintiffs neither filed rejoinder nor sent the document (Ex.D-5) to the expert opinion that the signature or thumb impression of Ramprasad on (Ex.D-5) are not that of himself. Further it is undisputed facts that Ramprasad and Vasudev mutually divided the disputed land under 1.927 hectares in the name of defendant No.2 and subsequently, Ramprasad sold the land in Upadinatha and removed his name from land records situated in Kanadia and PW-3 one of the attesting witness of the Ex.D-5, he did not say that the signature in Ex.D-5 is not that of Ramprasad or he has not signed in his presence, therefore, Ex.D-5 is presumed to be true and it is undisputed facts that the plaintiffs's counsel did not suggest the PW-3 that the signature on Ex.D-5 is not that of Ramprasad.
35. In view of the above admitted facts, this Court should also be categorical as to issue of the perversity vis-a-vis a concept of justice needless to say, however, the perversity itself is a substantial question worth adjudication is required to examine by this Court as to any perversity.
Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19NEUTRAL CITATION NO.2025:MPHC-IND:12321 16 SA No.1394/2019
36. Since the above substantial questions of law are framed are interrelated with each other, they are being dealt together.
37. Admittedly, Ramprasad and Vasudev are the sons of Bhagwansingh. After the death of Bhagwansingh, both sons succeeded the properties and mutated their names in the revenue records, Ramprasad was adopted by his grand-mother and 40 bighas of land was given to him in Achlukhedi, Tehsil Dewas. In 1980, the 40 bighas of land was sold by Ramprasad and used the sale proceeds to jointly purchase the 16 bighas of land at Village Upadinatha along with Vasudev, who contributed the money to purchase the property. In 1981, the family partition made, defendant No.2 (Jaswant) got 1.927 hectares of land in the suit property. In 1990, Vasudev consented to the sale of land at Village Upadinatha on being assured that his son's name would be mutated in the place of Ramprasad in the suit property. On 24.04.1990, the names of defendants No.1 and 2 mutated in the revenue records on the suit land with the consent of Ramprasad in revenue case No.3-A/6-A/1989-90 vide order of the Naib Tehsildar, on 17.06.1990 agreement / consent was issued by Ramprasad waiving the rights in suit property in favour of Vasudev and Jaswant. In 1992, Ramprasad died, if he has not given consent (Ex.D-5), he would have raised the objection against the proceedings issued by Naib Tehsildar dated 24.04.1990 (Ex.D-22), therefore, it is presumed that he has issued consent letter (Ex.D-5) dated 17.06.1990, the proceedings issued by Naib Tehsildar dated 24.04.1990 and after his death in 1992, the plaintiffs did not raise objections till 2008 after lapse of 18 years, filed the suit is not maintainable under Section 34 of the Specific Relief Act as the plaintiffs have not asked for cancellation of the order of Naib Tehsildar dated 24.04.1990 (Ex.D-22) on the account of failure of the plaintiffs to raise any challenge in respect of order dated Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 17 SA No.1394/2019 24.04.1990 (Ex.D-22), Section 34 of the Specific Relief Act reads as follows :
"34. Discretion of court as to declaration of status or right. -- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
38. The judgment in the case of Akkamma and Ors. vs. Vemavathi and Ors.9. Para 22 reads as follows :
"22. The prohibition or bar contained in the proviso to Section 34 of the 1963 Act determines the maintainability of a suit and that issue has to be tested on the basis the plaint is framed. If the plaint contains claims for declaratory relief as also consequential relief in the form of injunction that would insulate a suit from an attack on maintainability on the sole ground of bar mandated in the proviso to the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be dismissed on merit so far as plea for consequential relief is concerned but not on maintainability question invoking the proviso to Section 34 of the 1963 Act..."
39. In view of the judgment of Hon'ble Apex Court, the plaintiffs have not asked for any relief along with declaration of the suit and consequential relief of cancellation of mutation proceedings dated 24.04.1990 (Ex.D-22), in the absence of seeking relief of cancellation of mutation proceedings issued by Naib Tehsildar dated 24.04.1990 in favour of defendants No.1 and 2, the suit is bar under Section 34 of the Specific Relief Act, 1963 and the suit is not maintainable.
40. The decision of Full Bench of co-ordinate Bench of this Court at Principle Seat, Jabalpur in WP No.3499/2022 along with other connected matters dated 14.02.202510. Para 31 reads as follows:
9. (2021) 18 SCC 371 10. WP No.3499/2022 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 18 SA No.1394/2019 "31. A private person can only get Bhumiswami Rights in terms of Section 158 and he shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under M.P.L.R.C. Therefore, Bhumiswami rights are the best rights a private person can get on agricultural lands in the State of Madhya Pradesh and upon being mutated as Bhumiswami of the land, a person will enjoy all the rights as narrated above under the M.P.L.R.C., it will be subject to certain restrictions as laid down in various provisions of M.P.L.R.C., as narrated above. Therefore, this Court discards the argument that mutation entries are purely for fiscal purpose only because in the State of Madhya Pradesh, as per the scheme of M.P.L.R.C., mutation entry brings along with it various other rights and interests in the land including most importantly, the right to transfer the land."
41. Another decision cited by the appellants' counsel in the case of State of Madhya Pradesh Vs. Ram Singh11. Para 13 reads as follows :
"13. Apart from this plaintiff has not challenged the order dated 5- 11-1971 passed by SDO dismissing his application filed under Section 57(2) of the Code by plaintiff. In the case of Jugraj Singh v. Jaswant Singh, AIR 1971 SC 761, the Apex Court in Para 11 has held as under :--
"11. In these circumstances, we are satisfied that there was proper execution of the document and registration. It is hardly necessary in view of our decision to say anything more about this case. We are also satisfied that the appellants were not entitled to a declaration. We have reproduced the paragraph in which the reliefs were asked in the plaint. It will be noticed that they neither asked for the cancellation of the order of the Collector nor for any injunction, two of the reliefs which they were entitled to ask in the case in addition to the declaration. Such a suit would be hit by Section 42 of the Specific Relief Act and we would be quite in a position to deny from the declaration without these specific reliefs. Indeed they had only to ask for the setting aside of the order."
42. In the present case also, it is noticed that the plaintiffs have not asked for cancellation of order of the Naib Tehsildar dated 24.04.1990 (Ex.D-22) and therefore, I have observed that Section 34 of the Act, 1963 requires prayer for declaration as well as consequential relief of declaring the mutation proceedings issued by Naib Tehsildar dated 24.04.1990 (Ex.D-22) null and void. In the absence of specific prayers, the suit of the plaintiffs is not maintainable under Section 34 of the Specific Relief Act, 1963, the
11. 2005 RN 195 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 19 SA No.1394/2019 substantial questions of the law, the point No.1 is hereby answered accordingly.
43. The learned trial Court dealt issue No.7, the suit is presented within the prescribed time limit, Ramprasad and Vasudev are the co-owners of the land, after death of the Ramprasad, the plaintiffs are the successive legal heirs of Ramprasad under Section 8 of Hindu Succession Act, 1956. The defendants No.4 to 6 are the daughters of the Ramprasad, further observed that the learned Courts below that the consent letter under Ex.D-5 issued by Ramprasad is ambiguous and it cannot be assumed that the plaintiffs are aware of Ramprasad's name being removed from the land records based on consent letter given by him. Further observed that the plaintiffs are aware of transfer of subject land in the names of defendants No.1 and 2 in the year 2008 and issued paper publication from the date of knowledge, the present suit is filed within the limitation. The claim remains within the permissible time frame, the learned counsel for the appellants contended that while pending the first appeal, they moved an application under Order XLI Rule 27 of CPC to receive the additional documents on record and examined the same, learned first appellate Court allowed the application and transmitted to the learned trial Court with a direction to receive the documents and examined the witnesses on either side and sent the record to the learned first appellate Court, in compliance, those documents marked as Exs.D-17 to D- 24 and two witnesses were examined and forwarded the same to the learned appellate Court, on perusal of Exs.D-17 to D-24 and the evidence, Ex.D-17, the application filed by Vasudev before the Tehsildar dated 24.04.1990 seeking mutation of subject land in the revenue records. The affidavit filed by Ramprasad under Ex.D-19 dated 11.04.1990 that he has no objection to mutate the subject land in the name of Vasudev in the revenue records. Ex.D-18, mutation orders issued by Tehsildar dated 24.04.1990. Ex.D-20, Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 20 SA No.1394/2019 statement of Ramprasad before the Tehsildar that he has no objection to mutate the name of Vasudev in the subject land. Ex.D-21, statement of Vasudev before Tehsildar stated that to mutate the disputed land in his name in the revenue records, Ex.D-22, the order of Tehsildar dated 24.04.1990. Ex.D-23, the order of Tehsildar to Patwari. Ex.D-24, notice issued by the Tehsildar. In spite of having material evidence, the first appellate Court has not examined in detail and simply disbelieve those documents of the authority and without appreciating the evidence coupled with the documents, PW-1 did not deny the signature of Ex.D-5 and in the cross- examination, PW-1 stated that it is true that in 1990 his father Ramprasad's name was removed from the revenue records and no appeal is filed against it. Further deposed that he has no knowledge regarding Ex.D-5. Learned trial Court observed that consent letter Ex.D-5 is an ambiguous, unclear as there was no mentioning about the property, one of the attesting witness Rajaram examined as DW-3 one of the attesting witness of the Ex.D-5, he did not say that the signature in Ex.D-5 is not that of Ramprasad or he has not signed in his presence, therefore, Ex.D-5 is presumed to be true and it is undisputed facts that the plaintiffs's counsel did not suggest the PW-3 that the signature on Ex.D-5 is not that of Ramprasad. Further observed that PW-1 stated that it is true that in 1990 his father Ramprasad's name was removed from the revenue records and no appeal is filed against it, the limitation accrued from the knowledge of the proceedings under Ex.D-22, the suit is filed for partition and others reliefs by issuing paper publication from 'Dainik Bhaskar' on 26.01.2008 and to save the limitation filed the suit On perusal of Ex.D-5 and evidence of PW-1 (Mangilal) admits in cross- examination of Para 11 that Ramprasad and Vasudev, both have signed for the sale of land of Upadinatha and therefore, he has given consent to mutate the name in the subject land in favour of defendant No.1 (Vasudev) situated Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 21 SA No.1394/2019 at Kanadia, accordingly, the defendants' name were mutated in revenue records, as per Section 117 of the MPLRC provides that each entries carries a presumption of correctness until the contrary is proved, further under Section 257 of the MPLRC bars the jurisdiction of Civil Court with reference to revenue entries, it is undisputed facts that the mutation of the year 1990 Ex.D-22 never challenged by Ramprasad during his life-time and his heirs after his death till 2008, in spite of having knowledge about the Ex.D-5 and Exs.D-17 to 24 have not considered to be valid document by first appellate Court despite Exs.D-17 to 24 are being certified copies of documents and Ex.D-22 is an order of Naib Tehsildar deleting the name of Ramprasad and it also carries the signature of the Ramprasad, there was no rebuttal by documentary and oral evidence adduced by the legal heirs of Ramprasad and similarly, no steps have been taken by the plaintiffs to state that the Exs.D-5, D-19 and D-20 are not submitted by the Ramprasad and the signatures are not that of Ramprasad that the proceedings issued by revenue officers i.e. Naib Tehsildarr under Ex.D-22 cannot be doubted till the contrary is proved. Admittedly, as per Exs.D-1 to D-3 and D-7 to D-12 the Ramprasad received the property from his maternal grand-mother and he sold the said land is mentioned in Paras 10 and 22 of the judgment of learned trial Court in exercise of jurisdiction under Section 100 CPC, the concurrent findings of fact cannot be upset by this Court unless the findings so recorded are shown to be perverse, after having carefully perused the evidence and the findings of Courts below as well as law laid down on the point, has arrived at conclusion that there is a total mis-appreciation, mis- construction of evidence, be it ocular or documentary, adduced on record by respective parties, the findings written by the Courts below are erroneous and perverse, it sees valid reason to interfere the concurrent findings of fact recorded by both the Courts below.
Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19NEUTRAL CITATION NO.2025:MPHC-IND:12321 22 SA No.1394/2019
44. Considering the above factual aspects, the learned counsel for the appellants cited a decision in the case of Kulwant Kaur and Ors. Vs. Gurudial Singh Mann12. Para 34 reads as follows as stated (supra) :
"34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second 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 stands 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 dealt 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. In this context reference be had to Section 103 of the Code which reads as below:
103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal-
(a) which has not been determined by the lower Appellate Court or by both 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 the Section 100.
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, but 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."
45. Another decision in the case of Hansa Industries (P) Ltd. and Ors. Vs. Kidarsons Industries (P) Ltd.13. Para 13 reads as follows:
12. (2001) 4 SCC 262
13. (2006) 8 SCC 531 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 23 SA No.1394/2019 "13. This Court held that courts have leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The principles were concretized and succinctly reduced to the following propositions :-
"10. (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing.
Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
(emphasis in original)
46. In view of the above judgments, the learned Courts below committed grave perversity in contrary to the admitted documentary and oral evidence on record before the learned first appellate Court. In written statement, Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 24 SA No.1394/2019 defendants pleaded that the consent given by Ramprasad under Ex.D-5 the disputed land mutated in their names, admittedly, the plaintiffs have not filed any rejoinder denying the execution of Exs.D-5, D-19 and D-20, they have not taken any steps to send those documents to the experts with admitted signature to prove that the signatures of above documents are not that of Ramprasad. Merely denial of signature in the above documents by them is not acceptable unless and until Ramprasad has given consent, the Naib Tehsildar would not have issued the proceedings under Ex.D-22 dated 24.04.1990 and those proceedings were not challenged by them. Article 58 of the Limitation Act, 1963 reads as follows :
"Description Period of limitation Time from which
of suit period begins to run
To obtain Three years When the right to sue
any other first accrues"
declaration
Article 100 of the Limitation Act, 1963 reads as follows :
"Description Period of limitation Time from which
of suit period begins to run
To alter or set aside One year The date of the final decision
any decision or order or order by the court or the
of a civil Court in any date of the act or order of the
proceeding other than officer, as the case may be.
a suit or any act or order
of an officer of Government
in his official capacity.
47. The present suit is filed beyond the period of limitation, the learned Courts below have committed error in holding that the suit filed by them within limitation, the findings of Courts below appears to be a perverse in respect of finding of fact and in collection or evaluation of evidence is a legitimate ground for interference in second appeal, thus this Court Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 25 SA No.1394/2019 interfering the findings of the Courts below, which are not in accordance with law, dismissed the appeal by learned first appellate Court and upheld the judgment of learned trial Court. On perusal of judgment of learned trial Court is baseless and Exs.17 to D-24 are not placed before the learned trial Court and those documents were placed before the first appellate Court, out of which Exs.D-17, D-19 and D-20 submitted by Ramprasad before the Naib Tehsildar on the basis of which Naib Tehsildar issued proceedings in Ex.D-22 dated 24.04.1990, the learned First Appellate Court has not discussed the above documents. The expression of perverse has been defined in Stroud's judicial dictionary of words and phrases, fourth edition perverse - A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence, the learned trial Court and the appellate Court have not given proper findings by evaluating the evidence and documents and their findings are treated to be a perverse.
48. Another decision in the case of Karewwa and Ors. Vs. Hussensab Khansaheb Wajantri and Ors.14. Para 3 reads as follows :
"3......Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is Incorrect. We, therefore, do not find any merit in the contention."
49. In the light of the above decisions, the signature of Ramprasad in Exs.D-5, D-18 and D-19 have been duly proved and issued proceedings under Ex.D-22 by Naib Tehsildar dated 24.04.1990, the observations of the first appellate Court on the basis of mere denial of the signature of Ramprasad by PW-1 and PW-2 is not enough to believe that the Ex.D-5 has not issued by the Ramprasad, if the Ex.D-5 was not given by Ramprasad he
14. (2002) 10 SCC 315 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 26 SA No.1394/2019 would have disputed the proceeding under Ex.D-22 dated 24.04.1990 during his life-time and after his death in 1992, the legal heirs of Ramprasad would have claimed the share in the property in dispute and till 2008 the legal heirs of Ramprasad have not challenged the mutation proceedings of revenue authorities under Ex.D-22, filed the suit after lapse of 18 years, the findings recorded by the Courts below are illegal and perverse in contrary to the Articles 58 and 100 of the Act, 1963, the suit has to be filed within 03 years, the present suit is filed for recovery of possession, the suit has to be filed within 12 years, the plaintiffs neither filed the suit either before 03 years or 12 years and Articles 58 and 100 of the Act, 1963 should apply to the present facts of this case and there is no rebuttal by documentary and oral evidence that the certified copies of the order of Naib Tehsildar dated 24.04.1990 are to be treated false in the absence material evidence, the proceedings of Tehsildar is in force and holds good. Learned first appellate Court in Para 23 of the judgment observed "even if it is assumed that the signatures were of Ramprasad, no independent witnesses regarding Exs.D-5 and D-17 to D-22 have been examined by defendants / appellants. The lower appellate Court erred in observing that the defendants have been unable to assign the reasons for mutation, which are not required to be proved." Exs.D-1 to 3 and D-7 to D- 12 demonstrate facts that Ramprasad received the share in the property of maternal grand-mother and he sold the said land, this has been negated by the learned trial Court contrary to the evidence on record in its judgment in Para 10 and in Para 22 of lower appellate Court . Therefore, in view of the consent given by Ramprasad, he neither raised objections during his life- time nor his legal heirs i.e. plaintiffs did not raise objections for the last 18 years from the date of his death, they filed the suit after 18 years, the learned Courts below have not properly appreciated the evidence and have Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 27 SA No.1394/2019 committed error, the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Accordingly, the suit is not maintainable under Section 34 of the Specific Relief Act, the plaintiffs have not asked for cancellation of order of Naib Tehsildar dated 24.04.1990 (Ex.D-22), the suit filed by the plaintiffs beyond the limitation under Articles 58 and 100 of the Limitation Act, they have to file the suit within 03 years from the date of proceedings of Naib Tehsildar, when the plaintiffs seeks for recovery of possession of subject land they have to file the suit within 12 years. In the present case, the plaintiffs are failed to file the suit within limitation. Therefore, the findings of Courts below are perverse and inadequacy of evidence and the learned Courts below has given a different reading of evidence and given findings, which are perverse and contrary to the law. In such circumstances, the suit filed by the plaintiffs is beyond limitation, the plaintiffs could be said to be trial the suit property and recovery of possession is not permissible under law. In such circumstances, the period of limitation would be 03 years, the present suit is filed after 18 years and findings of learned Courts below are not proper and perverse and it sees valid reason to interfere the concurrent findings of fact recorded by both the Court below.
50. Therefore, the learned Courts below have decided the matter by ignoring the legal principles, the Apex Court's judgments cited (supra) and the findings written by the Courts below are erroneous and shows the perversity. When the findings of the learned trial Court are manifestly perverse and contrary to the law, the interference by this Court is mandatory and needs interference by this Court.
51. In view of the foregoing discussions, the suit filed by the plaintiffs is not permissible being contrary to the law and disentitled the decree of declaration and possession as per the Section 34 of Specific Relief Act, the Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19 NEUTRAL CITATION NO.2025:MPHC-IND:12321 28 SA No.1394/2019 prayer for declaration that the proceedings issued by the Naib Tehsildar dated 24.04.1990 declared to be void is required, the suit filed by the plaintiffs is hit by Article 58 and Article 100 of the schedule appended to the Limitation Act, 1963. The findings of the learned Courts below are illegal and perverse on account of failure to consider the articles of limitation and the Courts below without appreciating the additional evidence recorded by the learned appellate Court and the judgment and decree passed by the learned trial Court are illegal and inoperative and without the jurisdiction and therefore, a nullity and needs interference by this Court as there is absolute perversity and illegality in concurrent findings of the Courts below, accordingly, the judgment of first appellate Court is set aside and consequently, the judgment of learned trial Court is also set aside.
52. In the result, the second appeal succeeds and is hereby allowed. The judgment and decree passed by lower appellate Court dated 02.05.2019 in Civil Appeal No.18/2016 is hereby set aside and consequently, the judgment and decree passed by the learned trial Court dated 04.05.2016 in Civil Suit No.126-A/2015 is also hereby set aside.
53. Having regard to the facts of this case, it is directed that the parties shall bear their own costs.
54. All the pending applications, if any, stand disposed off.
(DUPPALA VENKATA RAMANA, J) Anushree Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 09-05-2025 17:14:19