MPHC010617942017_1_2023-07-25

1

IN

THE

HIGH

COURT

OF

MADHYA

PRADESH

A T J A B A L P U R

BEFORE

HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA

SECOND APPEAL No.

1735

of 20

17

BETWEEN:

-

1.

SMT. SHAKUNTALA W/O. LATE SHRI

BALKISHAN MUNDA, AGED ABOUT 52

YEARS.

2.

VIKRAM S/O. LATE S

HIR BALKISHAN

MUNDA, AGED ABOUT 28 YEARS,

BOTH ARE RESIDENT OF VILLAGE

CHAUPRAKHURD, JABALPUR NAKA,

DISTRICT DAMOH (MADHYA PRADESH)

.....APPELLANTS

(BY SHRI

ABHIJEET AWASTHI

-

ADVOCATE )

AND

1.

SMT. KAMARJAHAN W/O. ASGAR ALI

KHAN (DEA

D), THROUGH LRs:

-

(A) KASIM KHAN S/O. ASGAR ALI

(B) AZAM KAHN S/O. ASGAR ALI

(C) ASLAM KHAN S/O. ASGAR ALI

(D) NAGMA D/O. ASGAR ALI

ALL ARE RESIDENT OF VILLAGE

–

AAM

CHAUPRA, DISTRICT DAMOH (MADHYA

PRADESH)

2.

THE STAE OF MADHYA PRADESH,

THROUGH THE

COLLECTOR DAMOH

(MADHYA PRADESH)

.....RESPONDENTS

(

NONE FOR THE RESPONDENTS

)

2

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Reserved on :

1

7

-

0

7

-

2023

Pronounced on :

25

-

0

7

-

2023

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This appeal having been heard and reserved for order, coming on for pronouncement this day, the court pronounced the following

:

JUDGMENT

The

a

ppellants

as

plaintiffs

have preferred present

Second A

ppeal under

Section 100 of C

.

P

.

C

.

being aggrieved

and dissatisfied

by the judgment and

decree dated

21.8.2017

passed by

Second Additional

District Judge

, Damoh

(MP) in

Civil Appeal No.

1

14/17

, whereby

the judgment and decree passed by

the trial court has been affirmed.

2.

The relevant facts leading to the filing of this appeal as emerging from the case made out by the appellants are narrated in a nutshell for a better understanding and determination o f the disputes between the parties are that

the

p

laintiffs

as appellants

presented the suit for permanent injunction to restrain the respondents/defendants from interfering with the peaceful possession of the m

over Khasra No. 62/7 situated at Village Choup ara Khurd, Tahsil and District Damoh.

The facts which are undisputed between the parties are that the consolidated Khasra No. 62/5 (hereinafter to be referred as ‘suit property’) was owned by late Mohan M unda , who was survived by his two sons namely Karela l and Balkishan. Subsequently upon death of Mohan M unda , the land bearing Khasra No. 62/5 was recorded jointly in the name of Karelal, Balkishan and their mother Smt. Puttri Bai. Although

during

the lifetime of Putri Bai and

Balkishan, they executed a sale

deed to transfer 2/3 rd of their share in favour of 3

Karella. Subsequently, Karelal sold 4.60 acres of the land in his possession to Balkishan, whi ch

led to creation of Khasra No. 62/6; whereas Khasra No. 62/5 remained in the name of Karelal.

So far as Kha

sra No. 62/7 is concerned, the

same was jointly recorded in the name of Karelal and Balishan. After the death of Balkishan, the name of appellant/plaintiff was recorded as legal heir of Balkishan.

So far as Khasra Nos. 62/5 and 62/6 are concerned, there is

no

dispute between the parties. However, the parties are at logger heads with respect to Khasra No. 62/7 admeasuring 2.79 acres. The portion of the land, which was in possession of Karelal has already been sold out by him. However, in order to create cont roversy in relation to the portion owned and occupied by the plaintiff, there is controversy as Karelal in collussion with Revenue Officers proceeded to include the portion of Khasra No.62/7 into Khasra No. 62/5 in order to facilitate the transfer of prope rty adverse to the plaintiff.

Karelal

executed sale deed in the name of Sardar Darshan Singh for transferring portion of Khasra No. 62/5; whereas the entire Khasra No. 62/5 was already sol d

by

Karelal and it is portion belonging to plaintiff, which was bei ng transferred. Due to execution of sale deed in favour of Sardar Darshan Singh, the revenue authorities created Khasra No. 62/160. Accordingly, the plaintiff s

went up to the

Board of Revenue to get this order set aside. Such application of the plaintiff w as allowed by Board of Revenue;

vide order dated 23/04/1993. (Ex

.

P/1)

.

Despite

of such order, the Revenue Authorities did not correct the record, which resulted into execution of sale deed for Khasra No. 62/160 in favour of respondent s /defendant s . Therea fter, the defendant s

tried to take forceful

possession of the land occupied by the plaintiff s . Accordingly, a suit for permanent injunction as filed due to cause of action which arose on 04/10/2011.

3

.

The

original

defendant

Smt. Kamarjahan

filed h

er

writ

ten statement

denying the plaint allegations

and

stated

that

Mohan Munda in his life time had

sold some part of his land Khasra No. 62/5 Rakba 13.69 acre and on this land 4

only the house of Karelal, Balkishan and others were constructed and road is also con structed on this land and Khasra No. 62/7 Rakba 2.79 acre is also made out from Khasra No. 62/5 and presently there is no open land is available.

The

respondent

/defendant No.1 produce

d

DW/7 Mohd. Saleem, who claimed that

he was revenue inspector in the y

ear 1981 to 1985 and thereafter 1987 to 19 9 0 at Damoh and he had done the demarcation of the land copies were given to Karelal, Balkishan and one copy has submitted in the Tahsil Court. He has further stated that there is no land remains in Khara No. 62/7 because Mohan Munda earlier sold so many lands to different persons. However, during cross - examination, he admitted that there is no record of demarcation is available in Tahsil and the demarcation Panchnama also does not contain the signature of Balkishan

and Putti Bai as well as Karelal. He has also not produced any sale deed executed by Mohan Munda. He has also admitted that he h as already retired long back.

4

.

Learned trial court having heard learned counsel for the parties and on the strength of the material and evidence on record has dismissed the suit filed by the plaintiffs vide judgment and decree dated 22.12.2016. Being aggrieved, the appellants preferred first appeal before the lower appellate court which was also dismissed.

5

.

Learned counse

l for the appellants has argued before this Court that learned both the courts have committed an error by not appreciating that the revenue records categorically reflects that Khasra No. 62/7 Rakba 2.79 acre and order of SDO for merger the Khasra No. 62/7 into 62/5 was also set aside by learned Revenue Board on 24/03/1993.

L

earned both the

courts below have

erroneously given the findings

that there

is no land remains in Khara No. 62/7

on the basis of evidence of DW/7 Mohd. Salee m , Retired Revenue Inspector,

who admitted in the cross

-

examination that he did not bring any records and the report of demarcation also not contain the signature of appellants father 5

Balkishan and Karelal. He has also not produced any document in order to substantiate his statement t hat Mohan Munda sold this land to so many persons.

L

earned lower courts have committed an error by not appreciating the facts that the Board of Revenue set - aside the order of SDO and given the finding that the mutation of Sardar Darshan Singh is also ille gal and the learned Board also diluted the new created Khasra No. 62/160.

L

earned lower courts have

committed error by not appreciating that

K

arelal had sold the land to the

respondent No.1

-

Smt. Kamar Jahan from the Khasra No. 62/5 and he is trying to inte rfere in the peaceful possession of Khasra No. 62/7, which belongs to appellant and respondent No.1 has no relation on the land bearing Khasra No.

62/7.

L

earned lower courts ought to have considered that the respondent No.1 has executed the sale deed from

Sardar Darshan Singh of Khasra No. 62/160, the mutation of Sardar Darshan Singh in Khasra No. 62/5 and existence of Khasra No. 62/160 was set aside or diluted by learned Board of Revenue by order dated 23/04/2023 and the same was not challenged by any par ty, it attains finality so there is no prima facie right of respondent No.1 to interfere in the peaceful possession of appellant on her Khasra No. 62/7.

Hence, prayed that

the present appeal be allowed by setting the impugned judgments and decree passed b y learned both the courts below.

6

.

None appeared on behalf of the respondents.

7

.

I have bestowed my anxious consideration on contentions raised by learned counsel for the appellants and perused the record

and the judgments of

both the courts belo

w

.

8

.

This

Second

appeal has been admitted vide order

of this court

dated

13.12.2017

on the

following Substantial Question

of law :

-

6

“

Whether

both the Courts below are justified in

giving the findings

contrary to

the revenue which

has also been affirmed

by the Board of Revenue

?

”

9

.

Learned

trial Court has framed issues no. 1 and 2 relating to Khasra no.

62/7 having new number 62/7 to the effect that whether defendant no. 1 is in illegal possession of the land of the plaintiffs of this Khasra number.

The trial

court has not found the issues proved and accordingly disproved. Learned lower appellate Court in its paragraphs no. 19 and 21 of the judgment has discussed this and has affirmed the finding of the trial Court. Learned lower appellate court has d iscussed the evidence of plaintiff Shakuntala and has held that plaintiff Shakuntala could not establish by her evidence that at the time of filing of the suit for permanent injunction how much land remained in Khasra no.

62/7. Learned

lower appellate cou

rt further in para 21 while discussing the evidence of Smt. Neelam Yadav (PW - 2) has held that she too has failed to establish whether plaintiff Shakuntala

was in possession of the suit land bearing Khasra no. 62/7. She also could not throw any light how m uch land of Khasra no. 62/7 remained. Per contra, the defendants in their evidence have established that they had purchased the land from Khasra no. 62/5 not from Khasra no. 62/7 and after purchasing the land from Khasra no. 62/5 new number 62/160 (ka)

cam

e into existence. The finding given by both the courts below are finding of fact. The courts below by elaborate evidence have given their findings that the plaintiff s

have failed to establish

what was the total area of Khasra no. 62/7 remained at the time of filing of the suit and whom the land was sold. It is settled law that the concurrent finding given by the courts below cannot be interfered with by this Court under Section 100 of CPC. The question of law is not a substantial question of law because the

finding given by the Revenue

Board, is not binding on the Civil Court even otherwise the finding given by any other Court is to be seen on the basis of the evidence led in that case. The 7

finding given by one court cannot operate and bind on other Court. T he finding given by the Revenue Court/ Board cannot bind the Civil Court. Therefore, no substantial question of law is made out in this case.

10

.

In

(1999) 3 SCC 722 titled Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others , Hon’ble Supreme Cour t held that 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. In a case where from a given set of circumstances two inferences are possi ble, one drawn by the lower appellate court is binding on the High Court in second appeal, unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of applicable law or contrary to

the law as pronounced by the apex court or was based upon inadmissible evidence or arrived at without evidence. The above was reiterated in (2019) 6 SCC 46 titled S. Subramanian vs. S. Ramasamy and others , wherein it was inter - alia held that High court is

not required to re

-

appreciate the

entire evidence on record and to come to its own finding when the findings recorded by the Courts below, more particularly the first appellate court are on appreciation of evidence. Similar view has also been adopted in 2 012 (2) Shim.

LC 869, titled Maro (dead) through L.R. Paramjeet Kaur (Smt.) wife of Shri Om Prakash vs. Khillo wife of Tirath Ram .

11

.

From perusal of the record, it is found that there are concurrent findings of the Courts below against the appellant s . This Court would not examine correctness of findings of facts in exercise of appellate Power in Second Appeal.

Since this Court does not find any the impugned decisions are not being contrary to law or that decision having failed to determine some materi al issue of law. Further that this Court does not find any substantial error or defect in procedure provided by the Court or any other law for the time being in force, 8

which may possibly have produced error or defect in the decision of the case upon the me rit.

12

.

In respect of exercise of jurisdiction under Section 100 of Code of Civil Procedure, Hon ’ble Apex Court in Gurnam Singh vs. Lehna Singh, reported in (2019) 7 SCC 641 held as under :

-

"13.1. 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 fo r 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 eithe r 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.

1

3

.

From perusal of the record, I find that the

judgments and decree passed

by the Courts below are well reasoned and passed after due appreciation of oral as well as documentary evidence on record. The learned counsel for the appellant s

has failed to show that how the findings of facts recorded by the

9

Courts below are illegal, perverse and based on no evidence. Learned both the courts below have legally and rightly dealt with the issue involved in the matter with regard to the property in dispute.

14

.

It is not out of place to mention here that the ap pellants having lost in both the courts below have filed the present second appeal.

The Supreme Court

taking into consideration the principles of law in the cases of Thiagarajan v.

Sri Venugopalaswamy B. Koil [(2004) 5 SCC 762],

Commissioner, Hindu

Religi

ous & Charitable Endowments v. P. Shanmugama [(2005) 9 SCC 232], State of Kerala v. Mohd. Kunhi [(2005) 10 SCC 139]

and

Madhavan

Nair v. Bhaskar Pillai [(2005) 10 SCC 553],

has observed that the High Court

has no jurisdiction in second appeal to interfe re with the findings of fact.

Recently, in another judgment reported as State of Rajasthan vs. Shiv Dayal (2019) 8 SCC 637 , it has been held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded

de

-

hors the pleadi

ngs or it

was based on no evidence or based on misreading of the material on records and documents.

15

.

For the reasons aforesaid, I find no merit in the instant second appeal.

Concurrent finding recorded by the courts below is fully justified by the evi dence on record. Accordingly, the appeal is dismissed .

Consequently, interim

order

, if any passed earlier, stands vacated.

Decree be drawn accordingly.

Parties shall bear their own costs.

16

.

A copy of this order along with record be sent back to the courts below for information and its compliance.

(ARUN KUMAR SHARMA)

JUDGE

JP/

-