Madhya Pradesh High Court
Ku. Ishwari Achhra vs Ashok Shukla on 25 April, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
SECOND APPEAL No. 484 of 2010
BETWEEN:-
1. KU. ISHWARI ACHHRA D/O LATE
SHRI MURLIDHAR, AGED ABOUT
35 YEARS, HOSPITAL CHOWK
SATNA TEHSIL RAGHURAJNAGTAR
DISTT (MADHYA PRADESH)
2. KU. SUNITA ACHHRA D/O LATE
MURLIDHAR, AGED ABOUT 30
YEARS, HOSPITAL CHOWK, TAH.
RAGHURAJNAGAR, DISTT. SATNA
(MADHYA PRADESH)
3. RAJKUMAR SINDHI S/O LATE
MURLIDHAR, AGED ABOUT 53
YEARS, HOSPITAL CHOWK, TAH.
RAGHURAJNAGAR, DISTT. SATNA
(MADHYA PRADESH)
4. TARA SINDHI D/O LATE MURLIDHAR,
AGED ABOUT 45 YEARS, HOSPITAL
CHOWK, TAH. RAGHURAJNAGAR,
DISTT. SATNA (MADHYA PRADESH)
5. GOPI SINDHI S/O LATE MURLIDHAR,
AGED ABOUT 48 YEARS, HOSPITAL
CHOWK, TAH. RAGHURAJNAGAR,
DISTT. SATNA (MADHYA PRADESH)
6. ISHWARLAL SINDHI S/O LATE
MURLIDHAR SINDHI, AGED ABOUT
56 YEARS, HOSPITAL CHOWK, TAH.
RAGHURAJNAGAR, DISTT. SATNA
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI AKHILESH KUMAR JAIN - ADVOCATE)
Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 5/2/2024
12:33:23 PM
2
AND
1. ASHOK SHUKLA S/O SHRI
LALMANI SHUKLA, AGED ABOUT
50 YEARS, BHAMANGAWA REWA
ROAD TEHSIL RAGHURAJ NAGAR
DISTT (MADHYA PRADESH)
2. ARUN KUMAR SHUKLA S/O
LALMANI SHUKLA, AGED ABOUT
46 YEARS, BHAMANGAWA REWA
ROAD TAH. RAGHURAJNAGAR,
SATNA (MADHYA PRADESH)
3. RAJESH KUMAR SHUKLA S/O
LALMANI SHUKLA, AGED ABOUT
43 YEARS, BHAMANGAWA REWA
ROAD TAH. RAGHURAJNAGAR,
SATNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PANKAJ DUBEY - ADVOCATE )
---------------------------------------------------------------------------------------------------
RESERVED ON : 02.04.2024.
PRONOUNCED ON : 25.04.2024
_______________________________________________________________
This appeal having been heard and reserved for orders, coming on for
pronouncement on this day, the court passed the following:-
ORDER
This second appeal has been filed under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 26.08.2009 passed by 6 th Additional District Judge, Satna (MP) in Regular Civil Appeal No.31(A)/2009, arising out of judgment and decree dated 28.09.2005 passed by IInd Civil Judge, Class-I in Civil Suit No.11-A/2002.
2. Brief facts of the case are that plaintiffs filed a suit for declaration of title and permanent injunction with respect to Survey No.193/1 on the ground that Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/2/2024 12:33:23 PM 3 defendants have illegally made construction over part of above survey number. Plaintiffs are owner and in possession of Survey No.193/1. Murlidhar and Jitumal purchased Survey No.193/1 including other survey numbers vide sale deed dated 26.10.56 and therein, Jitumal had three-fourth share, whereas, Murlidhar had one-fourth share. In partition between Jitumal and Murlidhar, Survey No.193/1, as shown in map attached with the plaint came to the share of plaintiffs.
3. Learned counsel for the appellant submits that Murlidhar and Jitumal jointly purchased property and therein, Murlidhar had one-fourth share. In the instant case, Survey No.193/1 is disputed. Plaintiffs are LRs of Murlildhar. In partition between Murlidhar and Jitumal, Murlidhar got eastern part of Survey No.193/1. Cause of action accrued, when defendants encroached/made construction over plaintiffs share.
4. Learned counsel for the appellants, after referring to averments made by defendants in their written statement, submits that defendants have taken inconsistent plea i.e. on one hand, they have pleaded acquisition of title on the basis of adverse possession and on the other hand, they have also stated that they acquired property on the basis of sale deed. Courts below have wrongly held that defendants acquired title on the basis of adverse possession. In this connection, learned counsel for the appellant has relied upon S.M. Karim Vs. Mst. Bibi Sakina, AIR 1964 SC 1254. With respect to inconsistent plea, learned counsel for the appellants has also relied upon Narasamma and Others Vs. A. Krishnappa (Dead) Through Legal Representatives (2020) 15 SCC 218. In sale deed (Ex.D/83), plaintiff is not a party. Trial Court has wrongly relied upon Ex.D/83. Learned counsel for the appellants, after referring to depositions of plaintiff witnesses, submits that plaintiff witnesses have not admitted defendants possession since 1960-61 and they have admitted defendants possession since 1985-86. Plaintiff has filed present suit on 09.12.1986. Therefore, it cannot be said that plaintiffs suit is time barred. On above grounds, it is urged that in the Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/2/2024 12:33:23 PM 4 instant appeal, substantial question of law as mentioned in the appeal memo, arises for determination. Therefore, appeal be admitted for final hearing.
5. Learned counsel for the respondents, after referring to averments of written statement as well as Ex.D/1 & D/41, submits that Courts below have rightly dismissed plaintiffs suit and appeal. It is also urged that scope of second appeal is very limited, especially, when there are concurrent findings of Courts below. In this connection, learned counsel for the respondents has relied upon Gurudev Kaur and Others Vs. Kaki and Others (2007) 1 SCC 546, Gurnam Singh (Dead) By Legal Representatives And Others Vs. Lehna Singh (Dead) by Legal Representatives (2019) 7 SCC 641 and Ishwar Dass Jain (Dead) Through LRs Vs. Sohan Lal (Dead) By LRS (2000) 1 SCC 434. Hence, appeal filed by appellants be dismissed.
6. I have heard learned counsel for the parties and perused the record of the case.
7. Learned trial Court vide judgment dated 28.09.2005 passed in RCS No.11- A/2002 dismissed plaintiffs suit and appellate Court vide judgement dated 26.08.2009 passed in RCA No.31-A/2009 dismissed plaintiffs appeal and affirmed trial Court's findings.
8. Therefore, question arises as to when this Court can interfere with the findings of facts arrived at by the Courts below. In this connection, I would like to refer to the law laid down by the Hon'ble Apex Court in the case of Chandrabhan (Deceased) through Lrs. And Others vs. Saraswati and Others reported in AIR 2022 SC 4601, wherein Hon'ble Apex Court in para 33(iii) has held as under:-
"33 (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well - recognized exceptions are where (i) the courts below have ignored material evidence or Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/2/2024 12:33:23 PM 5 acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision"
based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding".
9. Similarly in the case of Gurnam Singh (Dead) by legal representatives and Others vs. Lehna Singh (Dead) by legal representatives, Hon'ble Apex Court has held as under:-
""13.1.......However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the Judgment and Decree passed by the First Appellate Court. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/2/2024 12:33:23 PM 6 CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; OR
(ii) Contrary to the law as pronounced by the Apex Court; OR
(iii) Based on inadmissible evidence or no evidence It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal".
10. In this connection, Ishwar Dass Jain (Dead) through Lrs vs. Sohan Lal (Dead) by LRs reported in (2000) 1 Supreme Court Cases 434 may also be referred to. Paras 11 and 12 of the said judgment is relevant and is under:-
"11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to section 100 CPC after the 1976 amendment. In Dilbagrai Punjabi vs. Sharad Chandra [1988 Supple. SCC 710], while dealing with a Second Appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.81, L.M.Sharma, J.(as he then was) observed that "The Court (the first appellate Court) is under a duty to Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/2/2024 12:33:23 PM 7 examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case."
In that case, an admission by the defendant-tenant in the reply notice in regard to the plaintiff's title and the description of the plaintiff as `owner' of the property signed by the defendant were not considered by the first appellate Court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh vs. Nathu Singh [1992 (1) SCC 647], with reference to a Second Appeal of 1978 disposed of on 5.4.1991. Venkatachaliah, J. (as he then was) held:
"where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."
Again in Sundra Naicka Vadiyar vs. Ramaswami Ayyar [1995 Suppl. (4) SCC 534], it was held that where certain vital documents for deciding the question of possession were ignored - such as a compromise, an order of the revenue Court -
reliance on oral evidence was unjustified. In yet another case in Mehrunissa vs. Visham Kumari [1998 (2) SCC 295] arising out of Second appeal of 1988 decided on 15.1.1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated finding. This was in Second Appeal of 1988 decided on 15.1.1996.
Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/2/2024 12:33:23 PM 812. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta vs. Gulzar Singh [1992 (1) SCC 143], it was held that the High Court was right in interfering in Second Appeal where the lower appellate Court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a Second Appeal of 1981 disposed of on 24.9.1985".
11. I have gone through the submissions made by learned counsel for the parties and pronouncements relied upon as well pleadings of the parties and evidence adduced by them and has examined and assessed them conjointly/minutely.
12. Perusal of plaint filed by plaintiffs reveal that they have filed instant suit on 09.12.1986. Admittedly, in the instant case, part of 193/1 as shown in map attached with plaint with red ink is disputed property.
13. If evidence adduced by both the parties, both documentary as well as oral, including para-18 of plaintiff witness Sunita's deposition and Ex.D/11 is assessed and examined, then, it is clearly established that house has been constructed in the year, 1960-61 and thereafter, it was leased out to Income Tax Commissioner. Hence, it cannot be said that respondents/defendants started construction in the year 1985-86.
14. Perusal of paras-13 to 18 & 23 of first appellate Court judgment reveal that it has discussed and taken into consideration complete evidence on record and had returned findings thereafter. It cannot be said that findings recorded by First Appellate Court in para-23 are against Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/2/2024 12:33:23 PM 9 evidence or they have been returned overlooking only material evidence on record.
15. Thus, admittedly, plaintiffs have not filed suit for possession within 12 years. Hence, findings recorded by the Courts below that plaintiffs suit is time barred cannot be said to be perversed or illegal. As plaintiffs has failed to prove its suit, therefore, it cannot take benefit of any weaknesses in defendants case, including inconsistent plea, if any, by defendants.
16. Further, as in the instant case it is clearly established that house has been constructed in the year 1960-61and there is nothing on record to show that it has been constructed with the permission of plaintiffs. Therefore, it cannot be said that Courts below have wrongly held that defendants acquired title on the basis of adverse possession.
17. I have also gone through para-24 of the appellate Court judgment, in this Court's considered opinion, appellate Court has rightly dismissed plaintiffs application under Order 26 Rule 9 CPC.
18. Hence, in the facts and circumstances of the case, principles laid down in S.M. Karim (Supra) and Narasamma (Supra) does not help appellants in any way.
19. Thus, if pleadings and evidence adduced by the parties and the impugned judgment passed by the first appellate court/trial court is considered, in the light of above legal principles/legal provisions reiterated in aforesaid judgments, then, in this Court's considered opinion, the findings of facts recorded by the first appellate court/trial court are not liable to be interfered with in the instant case and it cannot be said that first appellate court/trial court has ignored any material evidence or has acted on no evidence or first appellate court/trial court has drawn wrong inferences from proved facts etc. Further, it cannot be said that evidence taken as a Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/2/2024 12:33:23 PM 10 whole, is not reasonably capable of supporting the findings. It can also be not said that the findings of first appellate court/trial court are based on inadmissible evidence.
20. A perusal of the impugned judgments and decree passed by the first appellate court/trial court reveals it is well reasoned and has been passed after due consideration of oral as well as documentary evidence on record. Learned counsel for the appellant has failed to show that how the findings of facts recorded by the first appellate court/trial court are illegal, perverse and based on no evidence etc. The learned first appellate court/trial court has legally and rightly dealt with the issues involved in the matter and have recorded correct findings of fact.
21. For the reasons aforesaid, I find no merit in the instant second appeal. Findings recorded by the first appellate court/trial court are fully justified by the evidence on record. Findings recorded by the first appellate court/trial court are not based on misreading or mis-appreciation of evidence nor it is shown to be illegal or perverse in any manner so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in the instant appeal. Hence, appeal is dismissed in limine.
22. A copy of this order along with record be sent back to the first appellate court/trial court for information and its compliance.
(ACHAL KUMAR PALIWAL) JUDGE vai Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 5/2/2024 12:33:23 PM