Madhya Pradesh High Court
Kamlabai vs Mangilal on 5 April, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
1 SA-2973-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
SECOND APPEAL No. 2973 of 2022
KAMLABAI
Versus
MANGILAL AND OTHERS
Appearance:
Shri Amish Sanghvi, learned counsel for the appellant.
Shri Onkar Singh Sisodiya, learned counsel appearing through V.C. for
the respondent [r-1].
Heard on : 13.03.2025
Pronounced on : 05.04.2025
ORDER
The appellant has preferred the present Second Appeal under Section
100 of CPC being aggrieved by the Judgment and Decree dated 23.04.2022,
passed in Civil Regular Appeal No. 06/2017, passed by learned Second
Additional Judge to the Court of First District Judge, Badnawar, District
Dhar whereby appeal filed by the appellant has been dismissed by affirming
the Judgment and Decree passed by the Learned First Civil Judge Class-l,
Badnawar, District Dhar in Civil Original Suit No. 19A/2015, dated
10.02.2017.
2. Facts of the case in brief are that the appeal arises out of a suit
filed by the respondent No. 1/plaintiff for possession and mandatory
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
2 SA-2973-2022
injunction in respect of land bearing survey no. 297 area 0.063 hectare
situated at village Takrawada, Tehsil Badnawar, District Dhar. The suit was
based on the averments that the suit land was of the ownership of the
respondent No. 1/plaintiff but the defendants had constructed a shanty
(झोपड ) on a portion of land admeasuring 12 feetX10 feet comprised in the
suit land. It was averred that the plaintiff had made a complaint in this regard
to the police authorities which had proved futile and this had necessitated
filing of the present suit.
3. The suit was contested by the defendant No. 2/appellant by filing
written statement denying the plaint averments. It was stated that the plaintiff
had no title in respect of the suit land as he had given the suit land in
exchange to one Geetabai W/o Dhansingh. Subsequently, in a family
partition the suit land had fallen to the share of Dilip S/o Dhansingh and
thereafter, the aforesaid land was given by Dilip to the appellant/defendant
No. 2.
It is also contended that the suit was suffered from non-joinder and
misjoinder, therefore, it is not maintainable. The said house has already
constructed been over the suit land. The suit land was in the possession of
Geetabai and it was obtained in a family partition to Dilip and Dilip Singh
has given that suit land to Kamlabai. Since then Kamlabai is in possession of
suit land. Hence, the suit was filed on false grounds.
4. In view of the pleadings, trial Court has framed seven issues and
after appreciating evidence, decreed the suit in favour of plaintiff/respondent
against which defendant/appellant has filed first appeal before Appellate
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
3 SA-2973-2022
Court/First District District Badnawar wherein after consideration, appeal of
appellants was dismissed and order of learned trial Court was affirmed.
5. Being crestfallen by the judgment/decree of Appellate Court this
second appeal has been filed.
6. Learned counsel for the appellants expostulated that the learned
courts below have committed a grave illegality in not considering that the
suit filed by the respondent No. 1/plaintiff for the relief of mandatory
injunction was not tenable in the absence of relief of declaration. Learned
Courts below have also failed to consider the title of the appellant in the suit
land. They have ignored the defence set up by the appellant/defendant No. 2
on the ground of non-filing of counter claim without considering the settled
law that the plaintiff can succeed only on the basis of his evidence. The suit
land was in the possession of appellant/respondent No. 1 and the suit filed by
the plaintiff/respondent No. 1 for mandatory injunction without seeking the
relief of declaration was not legally maintainable. On these grounds, learned
trial court and the appellate court erred in allowing the suit. Therefore, he
prayed for setting aside the impugned orders and allow his petition.
7. Per contra, it is submitted by counsel for respondent that both the
Courts below after considering the evidence and material on record in toto
have given concurrent findings of fact that the appellants has failed to prove
their case. In this case, as no perverse finding was given by the Courts
below and no substantial question of law is involved in this appeal, the
appeal may be dismissed in limine.
8. Heard learned counsel for the parties and perused the record.
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
4 SA-2973-2022
9. The Second Appeal is filed under the provisions of Section 100
of CPC which provides that Second Appeal is entertainable by the High
Court if it is satisfied that the case involves a substantial question of law.
Section 101 of CPC provides that no second appeal shall lie except on the
ground mentioned in section 100 of CPC.
10. At the outset the question of entertaining the second appeal is
required to be considered. On this aspect the Hon’ble Supreme Court in the
case of Municipal Committee, Hoshiarpur Vs. Punjab SEB, reported in
(2010) 13 SCC 216 has held as under:-
“16. Thus, it is evident from the above that the
right to appeal is a creation of statute and it cannot be
created by acquiescence of the parties or by the order of
the court. Jurisdiction cannot be conferred by mere
acceptance, acquiescence, consent or by any other
means as it can be conferred only by the legislature and
conferring a court or authority with jurisdiction, is a
legislative function. Thus, being a substantive statutory
right, it has to be regulated in accordance with the law
in force, ensuring full compliance with the conditions
mentioned in the provision that creates it. Therefore,
the court has no power to enlarge the scope of those
grounds mentioned in the statutory provisions. A second
appeal cannot be decided merely on equitable groundsSignature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:92915 SA-2973-2022
as it lies only on a substantial question of law, which is
something distinct from a substantial question of fact.
The Court cannot entertain a second appeal unless a
substantial question of law is involved, as the second
appeal does not lie on the ground of erroneous findings
of fact based on an appreciation of the relevant
evidence. The existence of a substantial question of law
is a condition precedent for entertaining the second
appeal; on failure to do so, the judgment cannot be
maintained. The existence of a substantial question of
law is a sine qua non for the exercise of jurisdiction
under the provisions of Section 100 CPC. It is the
obligation on the court to further clear the intent of the
legislature and not to frustrate it by ignoring the same.
(Vide Santosh Hazari v. Purshottam Tiwari; Sarjas Rai
v. Bakshi Inderjit Singh; Manicka Poosali v. Anjalai
Ammal; Sugani v. Rameshwar Das; Hero Vinoth v.
Seshammal; P. Chandrasekharan v. S. Kanakarajan;
Kashmir Singh v. Harnam Singh; V. Ramaswamy v.
Ramachandran and Bhag Singh v. Jaskirat Singh.)
17. In Mahindra & Mahindra Ltd. v. Union of
India this Court observed :
“12. … it is not every question of law that could
be permitted to be raised in the second appeal. TheSignature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:92916 SA-2973-2022
parameters within which a new legal plea could be
permitted to be raised, are specifically stated in
subsection (5) of Section 100 CPC. Under the proviso,
the Court should be ‘satisfied’ that the case involves a
‘substantial question of law’ and not a mere ‘question of
law’. The reason for permitting the substantial question
of law to be raised, should be ‘recorded’ by the Court. It
is implicit therefrom that on compliance of the above,
the opposite party should be afforded a fair or proper
opportunity to meet the same. It is not any legal plea
that would be alleged at the stage of second appeal. It
should be a substantial question of law. The reasons for
permitting the plea to be raised should also be
recorded.” [Kshitish Chandra Purkait v. Santosh Kumar
Purkait, (1997) 5 SCC 438, pp. 445- 46, para 10].
18. In Madamanchi Ramappa v. Muthaluru
Bojjappa this Court observed: (AIR pp. 1637-38, para
12):
“12. … Therefore, whenever this Court is
satisfied that in dealing with a second appeal, the High
Court has, either unwittingly and in a casual manner, ordeliberately as in this case, contravened the limits
prescribed by Section 100, it becomes the duty of this
Court to intervene and give effect to the said provisions.
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
7 SA-2973-2022
It may be that in some cases, the High Court dealing
with the second appeal is inclined to take the view that
what it regards to be justice or equity of the case has not
been served by the findings of fact recorded by courts
of fact; but on such occasions it is necessary to
remember that what is administered in courts is justice
according to law and considerations of fair play and
equity however important they may be, must yield to
clear and express provisions of the law. If in reaching
its decisions in second appeals, the High Court
contravenes the express provisions of Section 100, it
would inevitably introduce in such decisions an element
of disconcerting unpredictability which is usually
associated with gambling; and that is a reproach which
judicial process must constantly and scrupulously
endeavour to avoid.”
19. In Jai Singh v. Shakuntala (SCC pp. 637-38,
para 6) this Court held as under:
“6. … 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 verySignature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:92918 SA-2973-2022
exceptional circumstances and upon proper
circumspection.”
Further Hon’ble Apex Court endorsing its another
judgment pen down as under:
23. In Kulwant Kaur v. Gurdial Singh Mann
(SCC pp. 278-79, para 34) this Court observed as under:
“34. Admittedly, Section 100 has introduced a
definite restriction on to the exercise of jurisdiction in a
second appeal so far as the High Court is concerned.
Needless to record that the Code of Civil Procedure
(Amendment) Act, 1976 introduced such an embargo
for such definite objectives and since we are not
required to further probe on that score, we are not
detailing out, but the fact remains that while it is true
that in a second appeal a finding of fact, even if
erroneous, will generally not be disturbed but where it is
found that the findings stand vitiated on wrong test and
on the basis of assumptions and conjectures and
resultantly there is an element of perversity involved
therein, the High Court in our view will be within its
jurisdiction to deal with the issue. This is, however,
only in the event such a fact is brought to light by the
High Court explicitly and the judgment should also be
categorical as to the issue of perversity vis-à-vis theSignature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:92919 SA-2973-2022
concept of justice. Needless to say however, that
perversity itself is a substantial question worth
adjudication — what is required is a categorical finding
on the part of the High Court as to perversity.
… The requirements stand specified in Section
103 and nothing short of it will bring it within the ambit
of Section 100 since the issue of perversity will also
come within the ambit of substantial question of law as
noticed above. The legality of finding of fact cannot but
be termed to be a question of law. We reiterate
however, that there must be a definite finding to that
effect in the judgment of the High Court so as to make
it evident that Section 100 of the Code stands complied
with.”
10. In view of the aforesaid principle settled by Hon’ble Apex
Court, every question of law could not be permitted to be raised in Second
Appeal, there ought to be substantial question of law for entertaining such
appeal and such appeal is entertainable in very exceptional cases and on
extreme perversity. It is a rarity rather then regularity but where it is found
that the findings stand vitiated on wrong test and on the basis of assumptions
and conjectures and resultantly there is an element of perversity involved
therein, then Second Appeal should be entertained. In other words, perversity
itself is a substantial question worth adjudication. Here in this appeal, it is to
be seen as to whether any perversity was committed by the Courts below and
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
10 SA-2973-2022
as to whether any substantial question of law is involved in this Second
Appeal?
11. So far as the ‘perversity’ is concerned, the Supreme Court in the
case of Damodar Lal Vs. Sohan Devi and others reported in (2016) SCC 78
has held as under :
“8. ‘Perversity’ has been the subject matter of umpteen
number of decisions of this Court. It has also been settled by
several decisions of this Court that the first appellate court, under
Section 96 of The Civil Procedure Code, 1908, is the last court of
facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam and another [2207 INSC 908], it
has been held at paragraph-11 that:
“11. It may be mentioned that the first appellate court
under Section 96 CPC is the last court of facts. The High Court in
second appeal under Section 100 CPC cannot interfere with the
findings of fact recorded by the first appellate court under Section
96 CPC. No doubt the findings of fact of the first appellate court
can be challenged in second appeal on the ground that the said
findings are based on no evidence or are perverse, but even in that
case a question of law has to be formulated and framed by the
High Court to that effect. …”
10. In Gurvachan Kaur vs. Salikram (Dead) through Lrs.
[2010 (15) SCC 530] this principle has been reiterated:
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
11 SA-2973-2022
“It is settled law that in exercise of power under Section
100 of the Code of Civil Procedure, the High Court cannot
interfere with the finding of fact recorded by the first appellate
court which is the final court of fact, unless the same is found to
be perverse. This being the position, it must be held that the High
Court was not justified in reversing the finding of fact recorded by
the first appellate court on the issues of existence of landlord-
tenant relationship between the plaintiff and defendant and default
committed by the latter in payment of rent.”
12. Hon’ble Apex Court in the case of Pakeerappa Rai Vs. Seethamma
Hengsu Dead by L.R.s and others reported in (2001) 9 SCC 521 has again
held as under :
” 2…But the High Court in exercise of power under Section
100 CPC cannot interfere with the erroneous finding of fact
howsoever the gross error seems to be….”
13. Further in this context, Hon’ble Supreme Court, in the case of
Gurdev Kaur vs. Kaki reported in (2007) 1 SCC 546, has held as under :-
“46. In Bholaram v. Amirchand (1981) 2 SCC 414 a three-
Judge Bench of this Court reiterated the statement of law. The
High Court, however, seems to have justified its interference in
second appeal mainly on the ground that the judgments of the
courts below were perverse and were given in utter disregard ofSignature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:929112 SA-2973-2022
the important materials on the record particularly misconstruction
of the rent note. Even if we accept the main reason given by the
High Court the utmost that could be said was that the findings of
fact by the courts below were wrong or grossly inexcusable but
that by itself would not entitle the High Court to interfere in the
absence of a clear error of law.
47. In Kshitish Chandra Purkait v. Santosh Kumar
Purkait [(1997) 5 SCC 438], a three judge Bench of this Court
held: (a) that the High Court should be satisfied that the case
involved a substantial question of law and not mere question of
law; (b) reasons for permitting the plea to be raised should also be
recorded; (c) it has the duty to formulate the substantial questions
of law and to put the opposite party on notice and give fair and
proper opportunity to meet the point. The Court also held that it is
the duty cast upon the High Court to formulate substantial
question of law involved in the case even at the initial stage.
48. This Court had occasion to determine the same issue
in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor (1999)2 SCC 471. The Court stated that the High Court can exercise its
jurisdiction under Section 100 C.P.C. only on the basis of
substantial questions of law which are to be framed at the time of
admission of the second appeal and the second appeal has to be
heard and decided only on the basis of the such duly framed
substantial questions of law.
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
13 SA-2973-2022
49. A mere look at the said provision shows that the High
Court can exercise its jurisdiction under Section 100 C.P.C. only
on the basis of substantial questions of law which are to be framed
at the time of admission of the second appeal and the second
appeal has to be heard and decided only on the basis of such duly
framed substantial questions of law. The impugned judgment
shows that no such procedure was followed by the learned Single
Judge. It is held by a catena of judgments by this Court, some of
them being, Kshitish Chandra Purkait v. Santosh Kumar
Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash
Chand (1998) 6 SCC 683 that the judgment rendered by the High
Court under Section 100 C.P.C. without following the aforesaid
procedure cannot be sustained. On this short ground alone, this
appeal is required to be allowed.
50. In Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC 35
the Court has observed that it is mandatory to formulate the
substantial question of law while entertaining the appeal in
absence of which the judgment is to be set aside. In Panchugopal
Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and
Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 the
Court reiterated the statement of law that the High Court cannot
proceed to hear a second appeal without formulating the
substantial question of law. These judgments have been referred to
in the later judgment of K. Raj and Anr. v. Muthamma (2001) 6Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
14 SA-2973-2022
SCC 279. A statement of law has been reiterated regarding the
scope and interference of the Court in second appeal under Section
100 of the Code of Civil Procedure.
51. Again in Santosh Hazari v. Purushottam
Tiwari (deceased) by Lrs. (2001) 3 SCC 179, another three-Judge
Bench of this Court correctly delineated the scope of Section
100 C.P.C.. The Court observed that an obligation is cast on the
appellant to precisely state in the memorandum of appeal the
substantial question of law involved in the appeal and which the
appellant proposes to urge before the Court. In the said judgment,
it was further mentioned that the High Court must be satisfied that
a substantial question of law is involved in the case and such
question has then to be formulated by the High Court. According
to the Court the word substantial, as qualifying “question of law”,
means of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as something in
contradistinction with technical, of no substance or consequence,
or academic merely. However, it is clear that the legislature has
chosen not to qualify the scope of “substantial question of law” by
suffixing the words “of general importance” as has been done in
many other provisions such as Section 109 of the Code of Article
133(1) (a) of the Constitution.
52. In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5
SCC 311 the Court came to the conclusion that the finding thus
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
15 SA-2973-2022
reached by the first appellate court cannot be interfered with in a
second appeal as no substantial question of law would have
flowed out of such a finding.
53. In Thiagarajan v. Sri Venugopalaswamy B. Koil [(2004)
5 SCC 762], this Court has held that the High Court in its
jurisdiction under Section 100 C.P.C. was not justified in
interfering with the findings of fact. The Court observed that to
say the least the approach of the High Court was not proper. It is
the obligation of the Courts of law to further the clear intendment
of the legislature and not frustrate it by excluding the same. This
Court in a catena of decisions held that where findings of fact by
the lower appellate Court are based on evidence, the High Court in
second appeal cannot substitute its own findings on reappreciation
of evidence merely on the ground that another view was possible.
54. In the same case, this Court observed that in a case
where special leave petition was filed against a judgment of the
High Court interfering with findings of fact of the lower Appellate
Court. This Court observed that to say the least the approach of
the High Court was not proper. It is the obligation of the Courts of
law to further the clear intendment of the legislature and not
frustrate it by excluding the same. This Court further observed that
the High Court in second appeal cannot substitute its own findings
on reappreciation of evidence merely on the ground that another
view was possible.
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
16 SA-2973-2022
55. This Court again reminded the High Court
in Commissioner, Hindu Religious & Charitable Endowments v.
P. Shanmugama [(2005) 9 SCC 232] that the High Court has no
jurisdiction in second appeal to interfere with the finding of facts.
56. Again, this Court in the case of State of Kerala v. Mohd.
Kunhi [(2005) 10 SCC 139] has reiterated the same principle that
the High Court is not justified in interfering with the concurrent
findings of fact. This Court observed that, in doing so, the High
Court has gone beyond the scope of Section 100 of the Code of
Civil Procedure.
57. Again, in the case of Madhavan Nair v. Bhaskar Pillai
[(2005) 10 SCC 553], this Court observed that the High Court was
not justified in interfering with the concurrent findings of fact.
This Court observed that it is well settled that even if the first
appellate court commits an error in recording a finding of fact, that
itself will not be a ground for the High Court to upset the same.
58. Again, in the case of Harjeet Singh v. Amrik Singh
[(2005) 12 SCC 270], this Court with anguish has mentioned that
the High Court has no jurisdiction to interfere with the findings of
fact arrived at by the first appellate court. In this case, the findings
of the Trial Court and the lower Appellate Court regarding
readiness and willingness to perform their part of contract was set
aside by the High Court in its jurisdiction under Section
100 C.P.C.. This Court, while setting aside the judgment of the
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
17 SA-2973-2022
High Court, observed that the High Court was not justified in
interfering with the concurrent findings of fact arrived at by the
Courts below.
59. In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC 496]
delivered on 6.2.2006, this Court found serious infirmity in the
judgment of the High Court. This Court observed that it suffers
from the vice of exercise of jurisdiction which did not vest in the
High Court. Under Section 100 of the Code (as amended in 1976)
the jurisdiction of the Court to interfere with the judgments of the
Courts below is confined to hearing of substantial questions of
law. Interference with the finding of fact by the High Court is not
warranted if it invokes reappreciation of evidence. This Court
found that the impugned judgment of the High Court was
vulnerable and needed to be set aside.
14. With regard to fact findings of trial Court as well as the
appellate Court in order to frame substantial question law in second appeal,
the following view of the Hon’ble Apex Court rendered in the case of
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar; (1999) 3 SCC 722, is
condign to quote here under:-
“5. It is not within the domain of the High Court to
investigate the grounds on which the findings were arrived at, by
the last court of fact, being the first appellate court. It is true thatSignature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:929118 SA-2973-2022
the lower appellate court should not ordinarily reject witnesses
accepted by the trial court in respect of credibility but even where
it has rejected the witnesses accepted by the trial court, the same is
no ground for interference in second appeal when it is found that
the appellate court has given satisfactory reasons for doing so. In a
case where from a given set of circumstances two inferences are
possible, one drawn by the lower appellate court is binding on the
High Court in second appeal. Adopting any other approach is not
permissible. The High Court cannot substitute its opinion for the
opinion of the first appellate court unless it is found that the
conclusions drawn by the lower appellate court were erroneous
being contrary to the mandatory provisions of law applicable or its
settled position on the basis of pronouncements made by the Apex
Court, or was based upon inadmissible evidence or arrived at
without evidence.
6. If the question of law termed as a substantial question
stands already decided by a larger Bench of the High Court
concerned or by the Privy Council or by the Federal Court or by
the Supreme Court, its merely wrong application on the facts of
the case would not be termed to be a substantial question of law.
Where a point of law has not been pleaded or is found to be
arising between the parties in the absence of any factual format, a
litigant should not be allowed to raise that question as a substantial
question of law in second appeal. The mere appreciation of theSignature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:929119 SA-2973-2022
facts, the documentary evidence or the meaning of entries and the
contents of the document cannot be held to be raising a substantial
question of law. But where it is found that the first appellate court
has assumed jurisdiction which did not vest in it, the same can be
adjudicated in the second appeal, treating it as a substantial
question of law. Where the first appellate court is shown to have
exercised its discretion in a judicial manner, it cannot be termed to
be an error either of law or of procedure requiring interference in
second appeal. This Court in Reserve Bank of India v.
Ramkrishna Govind Morey [AIR 1976 SC 830]held that whether
the trial court should not have exercised its jurisdiction differently
is not a question of law justifying interference”
15. In this regard, in the case of Laxmidevamma v. Ranganath; (2015)
4 SCC 264, again the Apex court has held as under:-
“16. Based on oral and documentary evidence, both the courts
below have recorded concurrent findings of fact that the plain-tiffs
have established their right in A schedule property. In the light of
the concurrent findings of fact, no substantial questions of law
arose in the High Court and there was no substantial ground for
reappreciation of evidence. While so, the High Court proceeded to
observe that the first plaintiff has earmarked the A schedule
property for road and that she could not have full-fledged right and
on that premise proceeded to hold that declaration to the plaintiffs’
right cannot be granted. In exercise of jurisdiction under Section
100 CPC, concurrent findings of fact cannot be upset by the High
Court unless the findings so recorded are shown to be perverse. In
our considered view, the High Court did not keep in view that the
concurrent findings recorded by the courts below, are based on
oral and documentary evidence and the judgment of the HighSignature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:929120 SA-2973-2022
Court cannot be sustained.”
16. So also the Hon’ble Apex Court in case of Adiveppa & Others Vs.
Bhimappa & Others; (2017) 9 SCC 586 has held as under:-
“17. Here is a case where two Courts below, on appreciating the
entire evidence, have come to a conclusion that the Plaintiffs
failed to prove their case in relation to both the suit properties. The
concurrent findings of facts recorded by the two Courts, which do
not involve any question of law much less substantial question of
law, are binding on this Court.
18. It is more so when these findings are neither against the
pleadings nor against the evidence and nor contrary to any
provision of law. They are also not perverse to the extent that no
such findings could ever be recorded by any judicial person. In
other words, unless the findings of facts, though concurrent, are
found to be extremely perverse so as to affect the judicial
conscious of a judge, they would be binding on the Appellate
Court.”
17. In view of the aforesaid law, the fact of this appeal has been
examined In this case, appellant has relied upon the exchange of property
deed but they have not filed any document with regard to the registered deed
whereas as per Section 118 of Transfer of Property Act, 1882 (hereinafter
referred to as “T.P. Act“), the exchange of property can only be transferred
in the manner provided for transfer of such property by sale. So far as the
sale of property is concerned, as per Section 54 of T.P. Act, the sale of
immovable property having value of more than Rs.100/- can be done by only
registered deed. Since appellant has not produced any document with regard
to the registered deed, the trial court as well as Appellate Court have not
believed the story of such exchange. Actually, the Appellate Court has
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
NEUTRAL CITATION NO. 2025:MPHC-IND:9291
21 SA-2973-2022
decreed the plaintiffs/respondent case after due appreciation of oral as well
as documentary evidence available on record. The findings recorded by trial
court and first appellate court are concurrent findings of facts. The
appellant/defendant failed to show as to how the findings of facts recorded
by trial court and first appellate court are illegal, perverse and based on no
evidence.
18. In upshot of the aforesaid proposition of law, having examined the
facts and circumstances of the case in this second appeal, this Court is of the
considered opinion that no perverse finding was rendered by the trial Court
as well as the appellate Court, therefore, no substantial question of law arises
in this case. Both the Courts have recorded the concurrent findings.
Accordingly, this Court is of the view that concurrent findings of trial Court
as well as appellate Court do not warrant any interference and in the result
thereof, this Second Appeal is hereby dismissed.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 4/5/2025
5:57:12 PM
[ad_1]
Source link