Madhya Pradesh High Court
Mukesh Jain vs Shri Mandar Jain on 24 January, 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
th
ON THE 24 OF JANUARY, 2024
SECOND APPEAL No. 1177 OF 2013
BETWEEN:-
MUKESH JAIN S/O SHRI MANDAR JAIN,
AGED ABOUT 45 YEARS, P.G. COLLEGE
ROAD BAIL BAZAAR (MADHYA PRADESH)
.....APPELLANT
(BY SMT. SHOBHANA SHARMA- ADVOCATE)
AND
SHRI MANDAR JAIN S/O SHRI
SUMERCHAND JAIN, AGED ABOUT 65
YEARS, VILL KUNDA TAH CHOURAI
(MADHYA PRADESH)
RAJESH JAIN S/O SHRI MANDAR
JAIN, AGED ABOUT 48 YEARS, VILL.
KUNDA, TEH. CHOURAI (MADHYA
PRADESH) .
MEENA BAI W/O SHRI RAJESH JAIN,
AGED ABOUT 40 YEARS, VILL.
KUNDA, TEH. CHOURAI (MADHYA
PRADESH)
COLLECTOR / DISTRICT
MAGISTRATE THE STATE OF
MADHYA PRADESH SAGAR
(MADHYA PRADESH)
SANJAY JAIN S/O SHRI MANDAR
JAIN, AGED ABOUT 42 YEARS, R/O
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 2/1/2024
12:50:33 PM
2
P.G. COLLEGE, BAIL BAZAAR
ROAD, CHHINDWARA (MADHYA
PRADESH)
.....RESPONDENTS
(BY BHANU PRATAP YADAV - ADVOCATE FOR RESPONDENTS 1, 2, 3 & 5
AND SHRI ANAND SHUKLA - PANEL LAWYER FOR STATE)
_______________________________________________________________
This appeal coming on for admission this day, the court passed the
following:
JUDGEMENT
This second appeal has been filed under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 10.10.2013 passed by Additional District Judge, Amarwada, District Chhindwara (M.P.) in Civil Appeal No.17-A/2012, arising out of the judgment and decree dated 28.06.2012 passed in Civil Suit No.47-A/12.
2. Brief facts of the case are that appellant/plaintiff has filed the civil suit for declaration of ownership and for declaration of partition order dated 22.06.2007 as void. By alleging that the plaintiff has purchased the land situated at village Kunda Khasra No.341/2 area 0.023 hect. Khasra No.341 area 6.07 hect. and khasra No.345/2 area 1.703 hect. by his own income and he is in possession of the same. Khasra No.341/3 area 0.607 hect. and khasra No.345/2 area 1.703 hect. was purchased in the name of plaintiff/appellant and respondent No.2 and 5 jointly and plot of khasra No.160/3 area 0.016 situated at village Chourai in which 1/3 share of appellant. The respondent No.1 to 3 Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 2/1/2024 12:50:33 PM 3 were made the application for partition of ancestral land before the Tehsildar, in which the land which was purchased by the appellant was also partitioned vide order dated 22.06.2007 which is void, therefore, he has filed the suit for declaration of ownership and for declaration that the partition order dated 22.06.2007 be declared void.
3. Learned trial Court vide judgment dated 10.10.2013 passed in Civil No.17-A/2012 dismissed the suit filed by appellant and appeal preferred against the said judgment by appellant/plaintiff was also dismissed vide judgment dated 28.06.2012 passed in Civil Suit No.47-A/12 by Civil Judge Class-II Chourai, District Chhindwara.
4. Learned counsel for the appellant/plaintiff submits that Courts below have wrongly held that the suit property is not self acquired property of appellant/plaintiff and they wrongly held that the suit property is ancestral property and it is wrongly clubbed with ancestral property. It is also submitted that Appellate Court has not returned any findings with respect to limitation. Further, Ex.D/2 and D/3 are not registered documents and, therefore, they are inadmissible in evidence. 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.
Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 2/1/2024 12:50:33 PM 4
5. Learned counsel for the respondent after referring to Para-17 of judgment of the trial Court, submits that concurrent findings of Courts below are as per law and they have been given after taking into consideration overall evidence on record and no interference is required. Hence, the appeal be dismissed.
6. I have heard learned counsel for the parties and have perused the 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 the appellant/plaintiff.
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 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"Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 2/1/2024 12:50:33 PM 5
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 CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 2/1/2024 12:50:33 PM 6 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 examine the entire relevant evidence on record and if it refuses to consider important evidence having Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 2/1/2024 12:50:33 PM 7 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.
12. The second situation in which interference with findings of fact is permissible is where a finding has Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 2/1/2024 12:50:33 PM 8 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 plaint reveals that plaintiffs have filed present suit primarily on two grounds that suit property is self acquired property and plaintiff No.2 is of unsound mind and partition order dated 22.06.2007 is illegal and has been effected after playing fraud on plaintiffs.
12. It is correct that Exhibit D/1 and D/2 are not registered documents but from Exhibit P/1 to P/7, it is evident that Revenue Court has effected partition between plaintiffs and their brothers etc. Further, order with respect to partition has been passed on 22.06.2007. Present suit has been filed on 14.2.2011. Therefore, it is clearly time barred.
13. Further, there is nothing on record to show that plaintiff No.2 is of unsound mind, especially, that plaintiff No.2 was of unsound mind on 22.06.2007. There is nothing on record to show that partition dated 22.06.2007 has been effected after playing fraud on plaintiffs. The sale deed Exhibits P/8, P/9 and P/10 have been executed between 1986 to 1988 and in none of sale Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 2/1/2024 12:50:33 PM 9 deed, age of plaintiff Mukesh is mentioned. Admittedly, when property was purchased vide above sale deeds, there was joint family of plaintiffs as well as defendants. From evidence on record, it is also not proved that suit property is self acquired property of plaintiff No.1. Further no such facts are mentioned in application under Section 178 MPLRC (Exhibit P/2).
14. 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.
15. 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 counsel for the appellant/plaintiff has failed to show that how the findings of facts recorded by the Courts below are illegal, perverse and based on no Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 2/1/2024 12:50:33 PM 10 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.
16. 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 peal is dismissed in limine.
17. A copy of this order along with record be sent back to the Courts below for information and its compliance.
(ACHAL KUMAR PALIWAL JUDGE sm Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 2/1/2024 12:50:33 PM