Madhya Pradesh High Court
Mohammad Khan vs Smt. Guddo on 21 January, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:2923
1 SA-441-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 21st OF JANUARY, 2025
SECOND APPEAL No. 441 of 2022
MOHAMMAD KHAN
Versus
SMT. GUDDO AND OTHERS
Appearance:
Shri Pradeep Naveriya - Advocate for the appellant.
Shri Satyapal Chadhar - Government Advocate for the respondent/State.
ORDER
This second appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, against the judgment and decree dated 12.01.2022 passed
by learned 5th District Judge, Chhatarpur, in Regular Civil Appeal No. 18-
A/2020, arising out of the judgment and decree dated 06.11.2017 passed in
Civil Suit No.25-A/2016.
2. Brief facts of the case are that respondents No. 1, 2 and 3/plaintiffs filed a
suit for declaration of title and permanent injunction and for declaring sale
deed dated 28.05.2014 null and void to the extent of plaintiffs interest on the
ground that suit property was their father’s property and defendants got their
name mutated on the suit property after death of father fraudulently. Each
plaintiff has 1/5th share in the suit property.
3. Learned counsel for the appellant submits that plaintiffs as well
defendants No. 2 and 3 are real brother and sisters, whereas defendant No. 1
is mother of plaintiffs as well as defendant No. 2 and 3. Original owner of
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suit property was Sukai Khan father of plaintiff and defendants No. 2 and 3.
After death of Sukai Khan, suit property was mutated in the name of
defendants. Thereafter, mother of defendants No. 2 and 3 sold her share of
present appellant vide sale deed dated 28.05.2014. Learned counsel for the
appellant, after referring to plaintiff’s evidence, especially para 7 of PW-2,
submits that during his life time, father of plaintiffs had given share to the
plaintiffs and therefore, plaintiffs have no share in the suit property. On
above grounds, it is urged that in the instant appeal, substantial question of
laws as mentioned in the appeal memo, arise for determination. Therefore,
appeal be admitted for final hearing.
4 . Heard. Perused record of the case.
5 . Learned trial Court vide judgment dated 06.11.2017 passed in Civil Suit
No.25-A/2016 decreed’s plaintiff suit and appellate Court vide judgment
dated 12.01.2022 passed in Regular Civil Appeal No. 18-A/2020 dismissed
defendants appeal and affirmed trial Court findings.
6 . Therefore, question arises as to when this Court can interfere with the
findings of facts arrived at by the first appellate court/trial court. 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
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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.”
7. 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 onlywhen the second appeal involves a substantial question of law. The
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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”.
8. 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
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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:
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“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 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
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Appeal of 1981 disposed of on 24.9.1985″.
9 . Now facts and evidence of the case would be examined and
analyzed in the light of aforesaid principle of law. Admittedly,
original owner of the suit property was Sukai Khan. Plaintiffs and
defendants No. 2 and 3 are real brother and sister and defendant
No. 1 is mother of plaintiffs as well as defendants No. 2 and 3. It is
also evident from the plaint as well as record of the case that after
death of Sukai Khan, whole of the property, which was in the
name of Sukai Khan, was mutated in the name of defendants. It is
correct that Kaliya (PW-2) (plaintiff No.3) has admitted in para 7
of her cross-examination that during his lifetime, her father had
given her share/their share to them. Each of them were given 1/5
share by her father.
10. But from record of the case, it is evident that there is nothing
on record to show that any part of the suit property, as mentioned
in the plaint, leave alone 1/5 share, was given by Sukai Khan to
plaintiff Kaliya etc. Further, there is no evidence on record to
show that any money was given to plaintiffs in lieu of their share
in the suit property or anything else was given in lieu of their
share in the suit property. Further, defendant/appellant
Mohammad Khan (DW-1) has stated in para 1 of his examination-
in-chief that after death of their father, plaintiffs had come and
they had told defendants that they do not need anything in the
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property as at the time of their marriage, their father had given
property corresponding to their share. They only need share in
survay No. 392/2, 420 and 424 and remaining properties may be
mutated in the name of defendants. On account of above, after
death of Sukai Khan, defendants with the consent of plaintiffs, got
mutated name of plaintiffs as well as defendants over survay
No.392/2, 420 and 424 equally. Remaining numbers were mutated
in the name of defendants with the consent of plaintiffs. In view
of aforesaid testimony of appellant, it cannot be said that during
his lifetime, father of plaintiffs had partitioned the property and
had given 1/5th share to each of the plaintiffs. Further, in para 14,
appellant Mohammad Khan has admitted in his cross-examination
that it is correct that till today disputed property has not been
partitioned. Again defendant Tajub Khan has admitted in
examination-in-chief itself that disputed property is of the
ownership of plaintiffs as well as defendants and it has not been
partitioned till today.
11. Hence, if testimony of PW-1, PW-2 and defendant/appellant
Mohammad Khan and defendant Tajub Khan are read and
assessed cumulatively, then, it cannot be said that plaintiffs’ father
had given plaintiff’s share in the suit property in his lifetime or
anything else in lieu of plaintiffs’ share in the suit property in his
life time. Therefore, findings recorded by the trial Court as well as
First Appellate Court cannot be said to be perverse or against
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evidence on record.
12. Hence, 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 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 first
appellate court/trial court are based on inadmissible evidence.
13. A perusal of the impugned judgment and decree passed by the
first appellate court/trial court reveals that 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 has recorded correct findings of fact.
14. For the reasons aforesaid, I find no merit in the instant second
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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.
15. 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
L.R.
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RANA
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