Madhya Pradesh High Court
Gendiya Dead Through Lrs Chhogalal vs Phulkibai @ Gulkabai Late Thr Lrs ... on 10 October, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
SECOND APPEAL No. 1151 of 2022
BETWEEN:-
GENDIYA DEAD THROUGH LRS CHHOGALAL S/O GENDIYA,
AGED ABOUT 46 YEARS, OCCUPATION: AGRICULTURIST
NEEMGARH TEHSIL MAHESHWAR (MADHYA PRADESH)
.....APPELLANT
(SHRI NITIN SINGH BHATI, ADVOCATE FOR APPELLANT)
AND
PHULKIBAI @ GULKABAI LATE THR LRS RAJARAM S/O
LATE MANGIYA BHIL, AGED ABOUT 55 YEARS, OCCUPATION:
1.
AGRICULTURIST NEEMGARH TEHSIL MAHESHWAR
(MADHYA PRADESH)
PHULKIBAI @ GULKABAI DEAD THR. LRS. JHAPRIYA @
JHAMRIYA S/O LATE MANGIYA BHILL, AGED ABOUT 50
2.
YEARS, OCCUPATION: AGRICULTURIST NEEMGARH TEHSIL
MAHESHWAR (MADHYA PRADESH)
PHULKIBAI @ GULKABAI DEAD THR. LRS. NANURAM S/O
LATE MANGIYA BHIL, AGED ABOUT 48 YEARS, OCCUPATION:
3.
AGRICULTURIST NEEMGARH TEHSIL MAHESHWAR
(MADHYA PRADESH)
PHULKIBAI @ GULKABAI DEAD THR. LRS. RAMU S/O LATE
MANGIYA BHIL, AGED ABOUT 46 YEARS, OCCUPATION:
4.
AGRICULTURIST NEEMGARH TEHSIL MAHESHWAR
(MADHYA PRADESH)
PHULKIBAI @ GULKABAI DEAD THR. LRS. VIKRAM S/O
LATE MANGIYA BHIL, AGED ABOUT 38 YEARS, OCCUPATION:
5.
AGRICULTURIST NEEMGARH TEHSIL MAHESHWAR
(MADHYA PRADESH)
PHULKIBAI @ GULKABAI DEAD THR. LRS. GENABAI D/O
LATE MANGIYA BHIL, AGED ABOUT 40 YEARS, OCCUPATION:
6.
AGRICULTURIST NEEMGARH TEHSIL MAHESHWAR
(MADHYA PRADESH)
7. STATE OF M.P. THROUGH COLLECTOR KHARGONE
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 11-10-
2023 11:16:00
2
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI MAYANK MISHRA, ADVOCATE FOR RESPONDENT NO.7/STATE)
Reserved on : 05.10.2023
Pronounced on: 10.10.2023
_______________________________________________________
This second appeal having been heard and reserved for
orders, coming on for pronouncement this day, Justice Achal
Kumar Paliwal pronounced the following:
ORDER
This second appeal filed under Section 100 of Code of Civil Procedure, 1908, against the judgment and decree dated 17.02.2022 passed by fourth Additional District Judge, Mandleshwar (MP) in Civil Appeal No.12/2022 arising out of the judgment and decree dated 29.09.2015 passed in Civil Suit No.50- A/2012.
(2) The brief facts of the case are that appellant/plaintiff filed suit for declaration, recovery of possession and permanent injunction on the ground that he inherited the suit properties from his father and the suit properties are their ancestral (parental) properties. Families of plaintiff - Gendia and defendant - Mangia are not related in any way and there is no relationship between them. When plaintiff became mature i.e. on attaining the age of 30-35 years, he leased out properties to defendant vide oral agreement. In 2012, when plaintiff told defendant that he will cultivate the agricultural lands himself, then, defendant informed him that he has no right over the suit property and the same had Signature Not Verified Signed by: ARUN NAIR Signing time: 11-10- 2023 11:16:00 3 thereafter it has become defendants' properties. Thereafter plaintiff took out the copies of revenue papers relating to suit properties and came to know that the defendants have illegally got mutated the suit properties in their name. On the basis of above averments, the plaintiff filed suit for declaration, recovery of possession and permanent injunction against the defendants.
(3) Learned trial Court vide judgment dated 29.09.2015 dismissed the suit filed by plaintiff and held that plaintiff has failed to prove that the suit properties belong to him and held that plaintiff is not entitled to recover possession of suit property and also held that the defendants are in possession of the suit property for approximately 40 years, therefore, plaintiff's suit is time barred.
(4) Against this, plaintiff filed an appeal and the said appeal No.50-A/2012 was also dismissed by appellate Court vide judgment dated 17.02.2022 and affirmed the findings of the trial Court. Against this, the plaintiff has filed the second appeal.
(5) Learned counsel for the appellant/plaintiff has submitted that the suit properties are plaintiff's ancestral properties and he has inherited the same from his father. The revenue entries do not confer any title. In khasra Ex.P/1 to Ex.P/14 (from 1962 to 1963 to 1978 to 1979), plaintiff is mentioned as owner and in possession of the suit properties. No document with respect to partition between plaintiff's father and the defendant has been filed and there is no evidence on record to show that on what basis/grounds, defendants name has been entered/mutated in the revenue records.
Signature Not Verified Signed by: ARUN NAIR Signing time: 11-10- 2023 11:16:00 4The courts below have wrongly held that the suit is time barred.
(6) I have heard learned counsel for the appellant/plaintiff 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" 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 Signature Not Verified Signed by: ARUN NAIR Signing time: 11-10- 2023 11:16:00 5 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 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 Signature Not Verified Signed by: ARUN NAIR Signing time: 11-10- 2023 11:16:00 6 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 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 Signature Not Verified Signed by: ARUN NAIR Signing time: 11-10- 2023 11:16:00 7 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 and the High Court could interfere with such a 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) From pleadings of appellant/plaintiff in his plaint and the evidence adduced by the plaintiff himself, especially the statement of plaintiff himself and the documentary evidence Ex.P/1 to Ex.P/15, it is evident that at the time of filing of the civil suit the appellant was about 75 years of age and he was not in possession of suit properties since approximately 40 years prior to the institution of suit and plaintiff's possession has only been recorded in Khasras up-to 1978 to 1979 on survey numbers, as mentioned in the plaint but thereafter survey numbers mentioned in the plaint have been divided and new survey numbers have come into Signature Not Verified Signed by: ARUN NAIR Signing time: 11-10- 2023 11:16:00 8 existence. The appellant/plaintiff has not filed any documents, with respect to defendant's mutation etc on suit properties to show that how/when the defendants' names got mutated over the suit properties and survey number got divided. Thus plaintiff has not produced any record relating to mutation proceedings/division of survey numbers etc. (12) 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 considered 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.
(13) A perusal of the impugned judgments and decree passed by the Courts below reveal 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 evidence etc. The learned Courts below have legally and rightly dealt with the issues involved in the matter and have recorded correct findings of Signature Not Verified Signed by: ARUN NAIR Signing time: 11-10- 2023 11:16:00 9 facts.
(14) For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent findings recorded by the Courts below in favour of defendant 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 second appeal. Accordingly, the appeal is dismissed in limine.
(15) A copy of this order along with record be sent back to the courts below for information and its compliance.
(ACHAL KUMAR PALIWAL) JUDGE Arun/-
Signature Not Verified Signed by: ARUN NAIR Signing time: 11-10- 2023 11:16:00