Madhya Pradesh High Court
Smt. Sukhiyabai vs Prem Singh on 20 June, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:12964
1 SA-226-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20 th OF JUNE, 2025
SECOND APPEAL No. 226 of 2023
SMT. SUKHIYABAI
Versus
PREM SINGH AND OTHERS
Appearance:
Mr. K.N. Gupta - Senior Advocate assisted by Ms. Sushani Dhariwal -
Advocate for the appellant.
Mr. Dilip Awasthi - Govt. Advocate for respondent No. 9/State.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against the
judgment and decree dated 30.11.2022 passed by Principal District Judge,
Shivpuri in Regular Civil Appeal No.28A/2019 as well as judgment and decree
dated 14.03.2019 passed by Third Civil Judge, Junior Division, Shivpuri in
Regular Civil Suit No.2500068A-2015.
2. The appellant is the plaintiff who has lost her case from both the courts
below.
3. The facts necessary for disposal of the present appeal in short are that the
plaintiff/appellant filed a civil suit for declaration of title and possession in respect
of Survey No.42 area 2.247 hectares, Survey No. 43 area 0.073 hectares, and
Survey No. 59/1 area 1.579 hectares to the extent of 1/9th share being the legal
representative and a permanent injunction was also sought that the defendants be
restrained from alienating the 1/9th share of the property.
4. It is the case of the plaintiff that plaintiff and defendants are sons and
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daughter of late Kamarlal Kushwaha. Kamarlal Kushwaha died on 04.06.2003.
Kamarlal Kushwaha had purchased Survey No. 42 area 2.247 hectares, Survey
No. 43 area 0.073 hectares out of his own self-earned money. However, the sale
deed was executed in the name of his minor son Prem Singh – defendant No. 1.
Similarly, Kamarlal Kushwaha had purchased Survey No. 59/1 area 1.579
hectares out of his own self-acquired earning in the name of defendant No. 2 –
Gopiram. On the basis of the sale deeds executed in favour of defendant No.1 –
Prem Singh and defendant No.2 – Gopiram, the names of defendants No. 1 and 2
were recorded in the revenue records. At the time of execution of the sale deeds,
defendant No. 1 was aged about 7 years and defendant No. 2 was aged about 5
years. After the death of Kamarlal, land in dispute was being cultivated by
defendants No. 1 and 2 on behalf of the plaintiff and other defendants. Earlier, the
defendants No. 1 and 2 were giving her share in the proceeds of the agricultural
produce. Since there was no dispute between the plaintiff and defendants No. 1
and 2, therefore, nothing in writing was mentioned about the grant of share in the
crops. Dispute arose when defendants No. 1 to 4 tried to dispose of another land
situated in Villages – Chhawani and Rajpura, and from thereafter, defendants No.
1 and 2 have stopped giving the share in the crop to the plaintiff. By order dated
29.09.2005, defendant No. 2 has got the revenue records amended and the word
“minor” has been deleted, whereas defendant No. 1 is still recorded in the revenue
record as a minor. It is the case of the plaintiff that after the death of Kamarlal, the
property in dispute became the ancestral property of plaintiff and defendants No. 1
to 8 and, therefore, each and every heir has equal share in the property in dispute.
However, defendants No. 1 and 2, with dishonest intention, are denying the title
and share of the plaintiff, and for the last two to three years, have also not given
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the share in the crop to the plaintiff. The disputed property is situated in Village –
Chhawani and the residence of the plaintiff is situated near the disputed
agricultural land. She used to frequently visit the disputed land. On 25.04.2014,
when she went along with her younger brother-in-law (devar) – Virendra, and Ram
Singh Kushwaha, then she found that the wheat crop was lying harvested. When
the plaintiff demanded her share in the crop from defendants No. 1 and 2, then
they got annoyed and were ready to pick up the quarrel and openly threatened that
plaintiff has no share in the property and she would not be given any share in the
crop and she can do whatever she wants. They also scolded that they would
alienate the property in few days, as a result quarrel would come to an end.
Accordingly, it was prayed that since defendants No. 1 to 8 as well as the plaintiff
have equal share in the property, therefore, in case if the suit property is disposed
of by defendants No. 1 and 2, then it would cause irreparable loss to the plaintiff.
5. Defendants No. 1, 2 and 4 filed their written statement and claimed that
defendants No. 3 and 4 had already attained majority at the time of execution of
the sale deed and it was also claimed that defendants No. 3 and 4 were having
their own individual income. After attaining majority, defendants No. 1 and 2 are
cultivating the land for their own livelihood. No other person except defendants
No. 1 and 2 are the owners of Survey Nos. 59/1 and Survey No. 42. Plaintiff is
residing in her matrimonial house after marriage and defendants No. 1 and 2 are
in the exclusive possession of the disputed land and the plaintiff has never visited
the disputed property. It was further claimed that Survey Nos. 42 and 59/1 are in
exclusive ownership of defendants No. 1 and 2 and they are cultivating the same
for the last 22-24 years peacefully. Survey No. 42 area 2.247 hectares and Survey
No. 43 area 0.073 hectares were purchased by defendant No. 1 – Prem Singh by
registered sale deed dated 16.05.1978 from his own income. Kamarlal had no
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right or title in the said property. Similarly, defendant No. 2 had purchased Survey
No. 59/1 area 1.579 hectares by registered sale deed dated 16.05.1978 and said
land was also purchased by defendant No. 2 out of his own personal earnings.
Father of the plaintiff and defendants No. 1 to 8 had never disclosed that the
disputed properties were purchased by him. It was further claimed that in view of
the provisions of Benami Transaction (Prohibition) Act, the plaintiff has no right
to dispute the ownership of defendants No. 1 and 2.
6. Defendant No. 3 filed his written statement and claimed that Survey No.
42 and Survey No. 59/1 are in the ownership of defendants No. 1 and 2. Aforesaid
land was not the ancestral property. All the brothers and sisters have started living
separately during the lifetime of their father and the property was partitioned and
the cash amount was given to the sisters. All the persons are engaged in their
business and agricultural activities. The title and right of the plaintiff was also
denied.
7. Defendants No. 7 and 8 filed their written statement and claimed that
property in dispute was purchased by Kamarlal in the name of his minor sons. The
property in dispute is the ancestral property. Defendants No. 1 and 2 have not
given the share in the crop for the last four to five years and now they are denying
the title of the plaintiff and defendants No. 7 and 8 also. Thus, it was claimed that
after the death of Kamarlal, every legal representative has 1/9th share in the
property.
8. Defendants No. 5 and 6 filed their written statement and claimed that
Kamarlal was not the Karta of the Joint Hindu Family property. At the time of
execution of the sale deed, i.e., in the year 1978, defendants No. 3 and 4 had
attained majority. Defendants No. 3 and 4 had purchased the property in the name
of defendants No. 1 and 2 out of their self-acquired earning. Nobody except
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defendants Nos. 1 and 2 has any share or title in the land in dispute. Defendants
No. 1 and 2 are exclusively cultivating the land. Nobody had ever demanded any
share in the crop nor ever given by defendants No. 1 and 2 to anybody.
9. Thus, it is clear that defendants No. 7 and 8 supported the claim of the
plaintiff, whereas defendants No. 3, 4, 5 and 6 supported the case of defendants
No. 1 and 2.
10. The trial Court, after framing issues and recording evidence, dismissed
the suit by holding that the plaintiff has failed to prove that in the year 1978, the
property was Joint Hindu Family property and also failed to prove that Kamarlal
Kushwaha was the Karta of the Joint Hindu Family. The trial Court also held that
the plaintiff has failed to prove that Survey Nos. 42, 43, and 59/1 were the Joint
Hindu Family property. It was also held that a partition had taken place between
the plaintiff and defendants No. 1 to 8 during the lifetime of their father Kamarlal.
It was also held that the plaintiff has failed to prove that defendants No. 1 and 2
are trying to alienate Survey Nos. 42, 43, and 59/1, and thus, it was held that the
plaintiff has failed to prove that she has 1/9th share in the property.
11. Being aggrieved by the judgment and decree passed by the trial Court,
the appellant preferred an appeal, which was dismissed by the impugned judgment
and decree passed by the appellate court.
12. Challenging the judgments and decrees passed by the courts below, it is
submitted by counsel for the appellant that earlier the plaintiff as well as defendant
No. 8 had jointly filed a suit for declaration of title and permanent injunction in
respect of Survey No. 81/221 area 0.082 hectares, Survey Nos. 88 total area 0.853
hectares situated in Village – Rajpura and Survey Nos. 2, 3, 4, 11, 12, 13, 14, 15,
16, 18, 19 min 1 and 20 min 1 and Survey No. 80 total area 2.577 hectares
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situated in Village – Chhawani, Tahsil and District – Shivpuri and claimed that
Kamarlal Kushwaha had 1/2 share in the said property. It was the claim of the
plaintiff and defendant No. 8 that after the death of Kamarlal Kushwaha, the
plaintiffs therein and defendants No. 1 to 7 therein are the owner and in
possession of share of Kamarlal in the aforesaid land. It was the case of the
plaintiff and defendant No. 8 that partition has not taken place amongst the
plaintiffs and defendants No. 1 to 7 therein. Accordingly, it was prayed that the
plaintiff – Sukhiya Bai and defendant No. 8 – Smt. Puniya Bai be declared as
owner and in possession of 1/9th share in Survey Nos. 2, 3, 4, 11, 12, 13, 14, 15,
16, 18, 19 min 1, 20 min 1, situated in Village – Chhawani, and Survey Nos.
81/221 and 88 situated in Village – Rajpura, and the defendants therein, who are
defendants No. 1 to 7 in the present suit be directed to get the property partitioned
and not to alienate the same to anyone. It is admitted position that the said suit
was dismissed, and judgment and decree passed in Civil Suit No. 63A/2011 has
attained finality.
It is submitted by counsel for the appellant that neither the provisions of
Benami Transaction (Prohibition) Act would apply nor the judgment passed in
Civil Suit No. 63A/2011 would be a decree under Order 2 Rule 2 CPC, thereby
making this suit non-maintainable and proposed the following substantial
questions of law:-
” (i) Whether, while passing the impugned judgment and decree, the
court below rightly consider the document Ex P/1 to Ex P/5. By this
document, it is automatically proof that property is ancestor and
Kamarlal Kushwaha is head of the Joint Hindu family and he
purchased property from his self earn money and at that time defendant
no 1& 2 are minor.
(ii) Whether while passing the impugned judgment and decree court
below rightly consider the document Ex P/6 and Ex P/7 same is
judgment and decree of Civil court and on the basis aforesaid
document, mutation has been recorded by Ex P/18 & Ex P/19 of equalSignature Not Verified
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share of plaintiff and defendant.
(iii) Whether while passing the impugned judgment and decree court
below the rightly consider the provision of transfer of property Act
because at the time of execution of sale deed in the year 1978 defendant
no. 1&2 are minor so it is a Benami Transaction.
(iv) Whether court below have rightly disbelieve the oral evidence of
PW 3 same is uncrossed.
(v) Whether first Appellate Court has rightly rejected the application
Under Section 51 CPC filed by Defendant no. 3.”
12. Heard learned counsel for the appellant.
13. Admittedly, the plaintiff as well as defendant No. 8 had filed a civil suit
for declaration of title and permanent injunction, which was registered as Civil
Suit No. 63A/2011. It is the case of the appellant himself that the said suit was
dismissed. The copy of plaint of Civil Suit No. 63A/2011 has been filed as Exhibit
D-4 and in paragraph 4(a) it was specifically admitted by the plaintiff that
Kamarlal, during his lifetime, had given separate share to defendants No. 1 to 4.
Thus, the plaintiff / appellant had admitted partition of property in her previously
instituted suit. Further, in the previously instituted suit, the plaintiff / appellant
could have claimed her share in the property which is the subject matter of this
suit, but admittedly, the property which is the subject matter of this suit, was not
included in the property which was the subject matter of the earlier suit.
14. Explanation IV of Section 11 of CPC reads as under:-
“Any matter which might and ought to have been made ground of
defence or attack in such former suit shall be deemed to have been a
matter directly and substantially in issue in such suit”
Thus, even otherwise, the suit filed by the appellant is barred by the
principle of constructive res judicata .
15. Under these circumstances, this Court is of the considered opinion that
no illegality was committed by the courts below by dismissing the suit as well as
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appeal filed by the appellant.
16. It is well-established principle of law that in exercise of power under
Section 100 of CPC, this Court cannot interfere with the concurrent findings of
fact even if they are found to be erroneous. 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 a 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
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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 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.”
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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 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.”
17. Considering the totality of the facts and circumstances of the case,
the judgment and decree dated 30.11.2022 passed by Principal District Judge,
Shivpuri in Regular Civil Appeal No.28A/2019 as well as judgment and decree
dated 14.03.2019 passed by Third Civil Judge, Junior Division, Shivpuri in
Regular Civil Suit No.2500068A-2015 are hereby affirmed.
18. The appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
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Signature Not Verified
Signed by: ALOK KUMAR
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