Madhya Pradesh High Court
Ramswarup vs Deepti Shukla on 29 February, 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. 216 of 2021
BETWEEN:-
RAMSWARUP S/O SHRI MANIK LAL, AGED
ABOUT 46 YEARS, OCCUPATION: BUSINESS
30-C (GURUKUL) SECTOR -C KASTURBA
NAGAR BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI R.K. VERMA - SENIOR ADVOCATE WITH SHRI VIJAY SHUKLA
AND SHRI RAMMURTI TIWARAI - ADVOCATE)
AND
1. DEEPTI SHUKLA D/O SHARI
KAILASH NARAYAN SHUKLA, AGED
ABOUT 37 YEARS, A/02 AKRUTI
GARDEN NEHRU NAGAR (MADHYA
PRADESH)
2. DEVESH SHUKLA, S/O SHRI
KAILASH NARAYAN SHUKLA.
OCCUPATION: NOT MANTION
RESIDENT OF A/02, AKRUTI
GARDEN, NEHRU NAGAR, BHOPAL,
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANJAY AGRAWAL - SENIOR
ADVOCATE WITH MS. NEERJA AGRAWAL -
ADVOCATE)
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Signature Not Verified
Signed by: VAISHALI
AGRAWAL
Signing time: 2/29/2024
7:51:17 PM
2
RESERVED ON : 29.01.2024.
PRONOUNCED ON : 29.02.2024
_______________________________________________________________
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 23.01.2021 passed by 14th Additional District Judge, Bhopal (MP) in regular Civil Appeal 173/2018 , arising out of the judgment and decree dated 30.08.2018 passed in Civil Suit No.23-a/2017.
2. Brief facts of the case are that plaintiff filed a suit for permanent injunction as well as for damages on the ground that plaintiff is owner and in possession of plot No.18, part of Survey No.25/2, 25/3, 26/1 and on south side of this plot, there is plot No.17. Defendant intends to encroach upon plaintiff's plot and dispossess him. It is also pleaded in the plaint that defendant have damaged plaintiff's wall.
3. Learned trial Court vide judgment dated 30.08.2018 passed in RCS No.23-A/2007 dismissed the suit filed by plaintiff's and counter claim was also dismissed Appellate Court vide judgment dated 23.01.2021 passed in Civil Appeal No.173/2018 dismissed the appeal filed by plaintiff.
4. Learned counsel Senior counsel for the plaintiff submits that defendant is owner of plot No.17 and plaintiff is owner of plot No.18 and both plot are adjacent to each other. Defendant has encroached upon part of plaintiff's plot No.18. Defendant's counter claim was dismissed but no appeal has been filed on behalf of the defendant. No area is mentioned in defendant's sale deed. Learned Senior counsel for the appellant also submits that in the instant case, as dispute Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 2/29/2024 7:51:17 PM 3 is with regard to boundaries of the property, therefore, commission should have been issued for demarcation of property in question. In this connection, learned Senior counsel has relied upon Jaswant Vs. Deen Dayal reported in 2011(2) M.P.L.J. 576. On above grounds, it is urged that in the instant appeal, substantial question of law as mentioned in the appeal memo arise. Therefore, appeal be admitted for final hearing.
5. Learned Senior counsel for the respondents/defendants submits that defendant No.1 had purchased plot prior to that of plaintiff and their property has already been demarcated. Area as mentioned in sale deed of plaintiff is infact not available on the ground and area available on ground is less than that mentioned in plaintiff's sale deed. There is concurrent findings of fact. Therefore, no interference is required in the same. Hence, appellant's appeal be dismissed.
6. I have heard learned Senior counsel for the parties and perused records of Courts below.
7. It is apparent from records of Courts below that it is a case of concurrent findings of facts i.e. both the Courts below have dismissed the suit/appeal filed by appellant/plaintiff and counter claim filed by defendant was also dismissed.
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:-
Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 2/29/2024 7:51:17 PM 4"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 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 Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 2/29/2024 7:51:17 PM 5 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 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 Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 2/29/2024 7:51:17 PM 6 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 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 Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 2/29/2024 7:51:17 PM 7 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.
12. 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. Perusal of submissions made by learned Senior counsels as well as record of the case reveals that plaintiff has filed present suit for permanent injunction as well as for damages on the ground that defendant has damaged one wall of plaintiff's plot and they also dig 10 feet plinth inside plot of plaintiff and took possession thereof. But in the plaint, no relief for recovery of possession of encroached part has been sought.
12. Evidently, plaintiff is owner of plot No.18, whereas, defendant is owner of plot No.17 and there is no dispute with respect to above. Evidently, plot No.17 and 18 are adjacent to each other. From document Ex.C/1 to Ex.C/17, it is apparent that on the spot remaining actual area is less than mentioned in plaintiff's sale deed. Defendant's sale-deed is prior in time to that of plaintiff i.e. plaintiff has purchased plot after defendant had already purchased the plot and defendant's plot number is 17, whereas plaintiff plot number is 18, i.e. last plot.
Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 2/29/2024 7:51:17 PM 8In Ex.P/4, it is not clearly mentioned that appellant was handed over possession of plot No.18 after actually measuring the area.
13. In the fact and circumstances of the case, especially, issue involved in the case, admitted facts and relief claimed, there is no requirement for any demarcation. Therefore, law laid down in Jaswant (Supra) does not help appellant in any way.
14. Perusal of trial Court judgment, especially para Nos. 9 and 10, reveal that trial Court has discussed the evidence on record and has thereafter, returned findings.
15. In view of overall facts and circumstances of the case, in this Court's considered opinion, no interference is required in the findings recorded by the Courts below.
16. If pleadings of the parties and evidence adduced by the parties and the impugned judgments passed by the Courts below are considered, in light of the above legal principles/legal provisions reiterated in aforesaid judgments, then, in this Court's consider opinion, the findings of facts concurrently recorded by the Courts below are not liable to be interfered with in the instant case and it cannot be said that Courts below have ignored any material evidence or has acted on no evidence or Courts have drawn wrong inferences from the proved facts etc. Further, it cannot be said that evidence taken as a whole, is not reasonably capable of supporting the findings. It can also be not said that the findings of Courts below are based on inadmissible evidence.
17. A perusal of the impugned judgments and decree passed by the Courts below reveals that they are well reasoned and have been passed after due consideration of oral as well as documentary evidence on record. Learned Senior counsel for the appellant/defendant has failed to show that how the Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 2/29/2024 7:51:17 PM 9 findings of facts recorded by the Courts below are illegal, perverse and based on no evidence etc. The learned Courts below have legally and rightly dealt with the issues involved in the matter and have recorded correct findings of fact.
18. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent findings recorded by the Courts below are fully justified by the evidence on record. Concurrent findings recorded by the Courts below 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, it is dismissed in limine.
19. A copy of this order along with record be sent back to the Courts below for information and its compliance.
(ACHAL KUMAR PALIWAL) JUDGE vai Signature Not Verified Signed by: VAISHALI AGRAWAL Signing time: 2/29/2024 7:51:17 PM