Madhya Pradesh High Court
Chain Singh Kirar vs Jai Kumar Jain on 21 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:1523 (1)
S.A. No. 2614 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 21st OF JANUARY, 2025
SECOND APPEAL No. 2614 of 2024
CHAIN SINGH KIRAR
Versus
JAI KUMAR JAIN AND ANOTHER
Appearance:
Ms. Kritka Mohta, Advocate for appellant.
Shri Rishikesh Bohare, Advocate for respondent no.1.
Shri S.S.Kushwaha, Government Advocate for respondent no.2/State.
JUDGMENT
This Second Appeal, under Section 100 of CPC, has been filed against
the judgment and decree dated 19/09/2024 passed by IV District Judge, Guna
(M.P.) in RCA No.150/2023 thereby affirming the judgment and decree dated
28.10.2023 passed by I Additional Judge to the Court of I Civil Judge, Junior
Division, Guna in RCSA No.274/2021.
2. Appellant is defendant. Plaintiff/respondent filed a suit for declaration of
title, vacant possession and permanent injunction alleging that plaintiff is
owner and in possession of Survey No.880/2/?k area 0.393 hectare, situated at
Nathukhedi, Nayapura, behind Kamla Garaje, Guna. A plot of 1500 sq. ft.
situated on one part of this land is the property in dispute. The boundaries of
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 1/25/2025
4:07:32 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1523 (2)
S.A. No. 2614 of 2024
the disputed plot are as under:-
On eastern side : land of Dr. Mangal
On Western side : Public Road
On northern side : house/land of Srivastava
on sourthern side : house of owners of Kisan Palace
It was claimed that property was inherited by the plaintiff from his father and
thus it is his ancestral property. It was claimed that defendant no.1/appellant
has constructed a Kachha hut of bricks and also started parking his vehicle
thereby challenging the title of plaintiff. When plaintiff talked to defendant
no.1, then he started quarreling with him and abused him filthily and claimed
that he had purchased the plot. He claimed that if plaintiff has any guts then he
can get it vacated and also claimed that on the basis of muscle power, he would
remain in possession of the plot in question. Thereafter, temporary construction
was also raised by defendant no.1 by installing an Iron Gate and fencing.
Plaintiff approached the Police, but no action was taken, and accordingly suit
was filed for declaration of title to the effect that he is the owner of 1500 square
feet of land forming part of Survey No. 880/2/?k and also for vacant possession
as well as mesne profits.
3. Defendant No.1 filed his written statement and denied the plaint
averments. It was alleged that defendant no.1 had entered into an oral
agreement to purchase with plaintiff and his brother Ajay Kumar Jain and an
amount of Rs.3,00,000/- was given by defendant no.1 to plaintiff by way of
advance. Plaintiff had also handed over vacant possession of plot to defendant
no.1 and had also assured that he would execute the sale deed. At the time of
oral agreement, one Radhavallabh Kirar was also present, but lateron owing to
ill health, he expired. Defendant no.1 had requested plaintiff to execute the sale
deed, but the same was not done. Thus, defendant no.1 claimed his title on the
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 1/25/2025
4:07:32 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1523 (3)
S.A. No. 2614 of 2024
basis of oral agreement to sell.
4. The trial Court, by judgment and decree dated 28/10/2023 passed in
RCSA No. 274/2021, decreed the suit and held that respondent no.1/plaintiff is
the owner of plot admeasuring 1500 sq. ft. forming part of Survey No.880/2/?k
situated at Village and Tahsil Nathukhedi, Nayapura, in front of Kamla Garage,
Guna and decree for possession was also passed against appellant/defendant.
The appellant was also permanently restrained from interfering with the
peaceful possession of plaintiff. Being aggrieved by the judgment and decree
passed by the trial Court, appellant preferred an appeal, which too has been
dismissed by judgment and decree dated 19/09/2024 passed by IV District
Judge, Guna in RCA No.150/2023.
5. Challenging the judgment and decree passed by the Courts below, it is
submitted by counsel for appellant that since appellant had entered into an oral
agreement to purchase the land in dispute and had also paid Rs.3,00,000/- to
the plaintiff, therefore, he has become the owner, and proposed the following
substantial questions of law:-
“i) Whether the impugned judgments and decrees passed by
both the courts below suffer from the perversity of finding and
misreading of evidence ?
ii) Whether the learned courts below have erred in
dismissing the appeal by holding that appellant is not the
owner of suit property and the dismissal is bad in law ?
iii) Whether the findings of learned courts below are
perverse as the findings are based on false pleadings and
suppression of material facts ?
iv) Whether the oral sale deed of the disputed immovable
property for value Rs.3 lakhs valid in law ?
v) Whether the learned courts below have wrongly denied
ownership of the appellant on the basis of oral agreementSignature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 1/25/2025
4:07:32 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1523 (4)S.A. No. 2614 of 2024
which has been duly corroborated by oral/documentary
evidence ?
vi) Whether possession on the basis of oral agreement can
be claimed if no suit of specific performance has been filed or
is time barred ?
vii) Any other substantial question of law which deems fit
by this Hon’ble Court.”
6. Heard, learned counsel for the appellant.
7. Even if appellant/defendant no.1 had entered into an oral agreement to
sell, still that would not transfer the title. The Supreme Court in the case of
Munishamappa Vs. M. Rama Reddy and others decided on 2/11/2023 in
Civil Appeal No.10327 of 2011 has held that agreement to sell is not a
conveyance and it does not transfer ownership rights or confers any title. The
Supreme Court in the case of Ghanshyam Vs. Yogendra Rathi decided on
2/6/2023 in Civil Appeal No. 7527-7528/2012 has held that agreement to sell
is neither a document of title nor a deed of transfer of property by sale therefore
it does not confer title over the property. However, if the intending purchaser
has been placed in possession by virtue of agreement to sell, then he can seek
protection of his possession in the light of section 53A of the Transfer of
Property Act. Neither the appellant has proposed any substantial question of
law claiming protection of his possession over the property in dispute by virtue
of part performance of oral agreement to sell, nor any argument was raised in
that regard. Further, the appellant/defendant no.1 did not file counter claim for
specific performance of contract.
8. Furthermore, both the Courts below have given concurrent findings of
fact that appellant has failed to prove an agreement to sell. Even otherwise,
appellant is not entitled for protection of his possession by virtue of agreement
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 1/25/2025
4:07:32 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1523 (5)
S.A. No. 2614 of 2024
to sell as he has not shown his readiness to perform his part of contract. It is
well established principle of law that even if findings recorded by the Courts
below are erroneous still the same cannot be interfered with in exercise of
power under Section 100 of CPC. The second appeal can be entertained only if
any substantial question of law arises. The Supreme Court in the case of
Dinesh Kumar v. Yusuf Ali reported in (2010) 12 SCC 740 has held as under:-
13. A second appeal does not lie on the ground of erroneous
findings of facts based on appreciation of the relevant evidence.
The High Court should not entertain a second appeal unless it
raises a substantial question of law. It is the obligation on the court
of law to further the clear intendment of the legislature and not to
frustrate it by ignoring the same.
14. In Ram Prasad Rajak v. Nand Kumar & Bros. [(1998) 6 SCC
748 : AIR 1998 SC 2730] , this Court held that existence of the
substantial question of law is a sine qua non for the exercise of
jurisdiction under Section 100 of the Code and entering into the
question as to whether the need of the landlord was bona fide or
not, was beyond the jurisdiction of the High Court as the issue can
be decided only by appreciating the evidence on record.
15. There may be a question, which may be a “question of fact”,
“question of law”, “mixed question of fact and law” and
“substantial question of law”. Question means anything inquired;
an issue to be decided. The “question of fact” is whether a
particular factual situation exists or not. A question of fact, in the
realm of jurisprudence, has been explained as under:
“A question of fact is one capable of being answered by
way of demonstration–a question of opinion is one that
cannot be so answered. The answer to it is a matter of
speculation which cannot be proved by any available
evidence to be right or wrong.”
(Vide Salmond on Jurisprudence, 12th Edn., p. 69, cited in Gadakh
Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [(1994) 1 SCC
682] , at SCC p. 705, para 34.)
16. In RBI v. Ramakrishna Govind Morey [(1976) 1 SCC 803 :
AIR 1976 SC 830] this Court held that whether the trial court
should not have exercised its jurisdiction differently, is not aSignature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 1/25/2025
4:07:32 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1523 (6)S.A. No. 2614 of 2024
question of law or a substantial question of law and, therefore, the
second appeal cannot be entertained by the High Court on this
ground.
17. In Kulwant Kaur v. Gurdial Singh Mann [(2001) 4 SCC 262]
this Court held that the question whether the lower court’s finding
is perverse may come within the ambit of substantial question of
law. However, there must be a clear finding in the judgment of the
High Court as to perversity in order to show compliance with the
provisions of Section 100 CPC. Thus, this Court rejected the
proposition that scrutiny of evidence is totally prohibited in the
second appeal.
18. In Sheel Chand v. Prakash Chand [(1998) 6 SCC 683 : AIR
1998 SC 3063] , this Court held that question of reappreciation of
evidence and framing the substantial question as to whether the
findings relating to the factual matrix by the court below could
vitiate due to irrelevant consideration and not under law, being
question of fact cannot be framed.
19. In Rajappa Hanamantha Ranoji v. Mahadev Channabasappa
[(2000) 6 SCC 120] this Court held that it is not permissible for the
High Court to decide the second appeal by reappreciating the
evidence as if it was deciding the first appeal unless it comes to the
conclusion that the findings recorded by the court below were
perverse.
20. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC
1428] this Court held that it is permissible to interfere even on
question of fact but it has to be done only in exceptional
circumstances. The Court observed as under : (SCC pp. 637-38,
para 6)
“6. … While scrutiny of evidence does not stand out to
be totally prohibited in the matter of exercise of jurisdiction
in the second appeal and that would in our view be too
broad a proposition and too rigid an interpretation of law
not worthy of acceptance but that does not also clothe the
superior courts within jurisdiction to intervene and interfere
in any and every matter–it is only in very exceptional
cases and on extreme perversity that the authority to
examine the same in extenso stands permissible–it is a
rarity rather than a regularity and thus in fine it can be
safely concluded that while there is no prohibition as such,
but the power to scrutiny can only be had in very
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 1/25/2025
4:07:32 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1523 (7)
S.A. No. 2614 of 2024
exceptional circumstances and upon proper
circumspection.”
21. In P. Chandrasekharan v. S. Kanakarajan [(2007) 5 SCC 669]
this Court reiterated the principle that interference in the second
appeal is permissible only when the findings are based on
misreading of evidence or are so perverse that no person of
ordinary prudence could take the said view. More so, the Court
must be conscious that intervention is permissible provided the
case involves a substantial question of law which is altogether
different from the question of law. Interpretation of a document
which goes to the root of title of a party may give rise to a
substantial question of law.
22. In Shakuntala Chandrakant Shreshti v. Prabhakar Maruti
Garvali [(2007) 11 SCC 668 : (2008) 1 SCC (L&S) 964] this Court
considered the scope of appeal under Section 30 of the Workmen’s
Compensation Act, 1923 and held as under : (SCC pp. 679-80,
paras 39-40 & 42)
“39. Section 30 of the said Act postulates an appeal
directly to the High Court if a substantial question of law is
involved in the appeal.
40. A jurisdictional question will involve a substantial
question of law. A finding of fact arrived at without there
being any evidence would also give rise to a substantial
question of law. …
***
42. A question of law would arise when the same is not
dependent upon examination of evidence, which may not
require any fresh investigation of fact. A question of law
would, however, arise when the finding is perverse in the
sense that no legal evidence was brought on record or
jurisdictional facts were not brought on record.”
Similar view has been reiterated by this Court in Anathula
Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594] .
23. In Rishi Kumar Govil v. Maqsoodan [(2007) 4 SCC 465] this
Court while dealing with the provisions of Section 21(1)(a) of the
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972 and Rule 16 of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972, held that the bona fide
personal need of the landlord is a question of fact and should not
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 1/25/2025
4:07:32 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:1523 (8)
S.A. No. 2614 of 2024
be normally interfered with.
24. There is no prohibition to entertain a second appeal even on
question of fact provided the Court is satisfied that the findings of
the courts below were vitiated by non-consideration of relevant
evidence or by showing erroneous approach to the matter.
[Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR
1992 SC 1604] , Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353]
, Satya Gupta v. Brijesh Kumar [(1998) 6 SCC 423] , Ragavendra
Kumar v. Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000
SC 534] and Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC
285] ]
25 [Ed. : Para 25 corrected vide Official Corrigendum No.
F.3/Ed.B.J./68/2010 dated 9-7-2010.] . Thus, the law on the
subject emerges to the effect that second appeal under Section 100
CPC is maintainable basically on a substantial question of law and
not on facts. However, if the High Court comes to the conclusion
that the findings of fact recorded by the courts below are perverse
being based on no evidence or based on irrelevant material, the
appeal can be entertained and it is permissible for the Court to
reappreciate the evidence. The landlord is the best judge of his
need, however, it should be real, genuine and the need may not be
a pretext to evict the tenant only for increasing the rent.”
9. As no substantial question of law arises, accordingly, the appeal fails and
is hereby dismissed.
(G.S.Ahluwalia)
Judge
(and)
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 1/25/2025
4:07:32 PM