Dujiyabai And Others vs Rayatibai And Others

@JUDGEMENTTAG- JUDGEMENT

Avanindra Kumar Singh, J

This second appeal u/s 100 CPC has been filed by appellants/plaintiffs against judgment and decree dated 21.12.2022 passed in RCA No.36/2019 [Mst.Dujiya Bai and others Vs. Rayati Bai and others] by First District Judge, Lakhnadon whereby the appeal preferred by appellants/plaintiffs have been dismissed and judgment and decree passed by the First Civil Judge Class-I, Lakhnadon, District Seoni in Civil Suit No.12-A/2016 [Dujiya Bai and others Vs. Rayati Bai and others} dismissing the suit of the appellants/plaintiffs for declaration, partition, separate possession and permanent injunction in respect of suit properties mentioned in paragraph 2A of the impugned judgment has been affirmed.

Learned counsel for the appellant submitted that the sole question in this case is whether the Hindu Succession Act, 1956 would apply or the parties would be governed by customary rights prevailing in ‘Gond’ tribe.

On perusal of judgment of the trial Court as well as first appellate Court it is reflected that there is no issue on this aspect whether the parties would be governed by Hindu Law or ‘Gond’ tribe. But, the appellants/plaintiffs have pleaded that they are governed by Hindu Law. Since no question was framed on this issue whether parties were governed by Hindu Law and other issues if they have been wrongly framed, then the appellants should have requested the Courts to frame necessary issue. In fact, on perusal of order- sheet dated 05.10.2016 of the trial Court it is seen that when the issues were framed both the parties did not object on the questions that were framed. Therefore, wrong framing of issue, especially the one whether parties are governed by Hindu law or Tribal law, is immaterial at this stage.

Even otherwise, the Plaintiff Witness No.1 (Dujiya bai) in paragraph 7 of her cross-examination has stated that it is true that on the disputed lands the name and possession of the defendants is continuing. In paragraph 8 thereof she also deposed that it is true that during lifetime itself the partition of disputed lands was got recorded in the revenue records. This statement has been in reference to Mangal, who was predecessor and owner in possession of the suit property. In paragraph 9 of cross-examination she has stated that on suit property she does not have any right.

From the aforesaid analysis it is clear that there is nothing on record where evaluation of pleadings and evidence by both the courts can be interfered with. Both the courts have recorded findings on meticulous appreciation of evidence on record.

Even otherwise, the jurisdiction of this Court to interfere with the findings of fact under Section 100 of the Code of Civil Procedure is well defined by catena of decisions of the Supreme Court. This Court cannot interfere with the finding of fact until or unless the same is perverse or contrary to material on record. [See: Narayan Rajendran and Anr. v. Lekshmy Sarojini and Others, (2009) 5 SCC 264, Hafazat Hussain v. Abdul Majeed and Others, (2001) 7 SCC 189, Union of India v. Ibrahim Uddin and Antoher, (2012) 8 SCC 148, D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC 158 Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288, Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao Bhilare, (2013) 7 SCC 173 and Laxmidevamma and Others v. Ranganath and Others, (2015) 4 SCC 264] The concurrent findings of fact recorded by the courts below are based on meticulous appreciation of evidence on record which by no stretch of imagination can be said either to be perverse or based on no evidence.

In the result, the appeal is dismissed at admission stage since no substantial question of law arise.