Shobharam S/O Tarachand vs Durgashankar S/O Ramlal & Ors

This is a Second Appeal filed by the plaintiff against the judgment and decree dated 02.03.2016 passed by the First Civil Judge, Class-I, Neemuch and judgment dated 24.05.2017 passed by the Additional District Judge, Neemuch; whereby civil suit and First Appeal both have been dismissed.

Undisputed facts are as under :-

(I) The suit land is survey No.14 area 0.99 hectare old number 23/2 situated at Gram Khokhriya Viran, Tehsil & District Neemuch (here-in-after referred as "suit land").

(ii) Father of plaintiff Tarachand and father of defendants No.1,2,3,7 & 8 Ramlal were real brothers.

(iii) The suit land is recorded in the name of Ramlal and after his death the same has been mutated in the name of respondents No.1 to 4.

(iv) The defendant No.1 has sold 1/2 part of the suit land vide registered sale deed to defendant No.9.

(v) Defendant No.3 has sold 1/2 part of the suit land to defendant No.5.

The plaintiff filed the suit for declaration of title, partition and permanent injunction to the extent of 1/2 part of the suit land. According to the plaintiff, the suit land was originally belonging to the father of Ramlal and Tarachand and after his death it remained into joint ownership and possession between them and after their death the plaintiff and defendants No.1,2,3,7 & 8 became the joint owner. Since the life time of their fathers plaintiff and defendants are in the joint possession. Since Ramlal defendant No.1 was elder brother, therefore, in revenue record the suit land was recorded in his name but as per the partition on the spot the plaintiff is in possession over 1/2 part of the suit land and he is cultivating the same. The defendant No.1 has got mutated his name in the revenue records in collusion with the revenue authorities and sold the share of the plaintiff to the defendants, hence, the cause of action accrued for filing the suit.

The defendants No.1 to 4 filed the written statement refuting the averments made in the plaint by submitting that they are exclusive owner of the suit land in which neither the plaintiff nor his father had any share. The plaintiff tried to get mutated the name of his wife but the Tehsildar has dismissed the application. Hence, the suit be dismissed. The Trial Court framed four issues for adjudication. The plaintiff and defendants examined their witnesses. Vide judgment dated 02.03.2016 the Trial Court has dismissed the suit as plaintiff has failed to prove that the suit land is the ancestral land for which he is having 1/2 share. Being aggrieved by the judgment and decree plaintiff preferred the First Appeal that too has been dismissed vide judgment dated 24.05.2017, hence, the present Second Appeal before this Court.

I have heard Shri J.B.Dave, learned counsel for the appellant and perused the record.

Shri Dave, learned counsel has proposed following substantial question of law in this appeal :-

(अ) क्या प्रकरण के तथ्यों एवं परिस्थितियों में उभयपक्ष के परिवार की प्राचीन परम्पराओं पर विचार ना करने में विद्वान अधिनस्थ न्यायालयों ने कानूनी त्रुटि की है?

(ब) क्या प्रकरण के तथ्यों एवं परिस्थितियों में प्रकरण में आयी साक्ष्य से दाविया भूमि पैतृक है इसके बावजूद नही मानने में विद्वान अधिनस्थ न्यायालयों ने कानूनी त्रुटि की है?

(स) क्या प्रकरण के तथ्यों एवं परिस्थितियों पटवारी के मौके कब्जे की रिपोर्ट प्रदर्श पी-5 जिसको प्रतिवादी द्वारा चेलेन्ज नही किया गया है इसके बावजूद रिपोर्ट के आधार से दाविया भूमि पर 1/2 भाग पर वादी का कब्जा 40-50 वर्षो से होते चला आ रहा है, नहीं मानने में विद्वान अधिनस्थ न्यायालयों ने कानूनी त्रुटि की है?

(द) क्या प्रकरण के तथ्यों एवं परिस्थितियों में प्रतिवादी 9 श्यामूबाई ने कथन किये है कि आधी जमीन पर बंटवारे के बाद वादी काबिज है, पूर्व में बंटवारा होना सिद्ध किया है, इस पर विचार ना करने में विद्वान अधिनस्थ न्यायालयों ने कानूनी त्रुटि की है?

(इ) क्या प्रकरण के तथ्यों एवं परिस्थितियों में प्रदर्श पी- 4 से प्रदर्श पी- 8 पर विचार ना करने में विद्वान अधिनस्थ न्यायालयों ने कानूनी त्रुटि है?

(फ) क्या प्रकरण के तथ्यों एवं परिस्थितियों में दाविया भूमि का 40-50 वर्षो पूर्व वादी के पिता ताराचंद और प्रतिवादी के पिता रामलाल के बीच बंटवारा होना सिद्ध होते हुए उसे नहीं मानने में विद्वान अधिनस्थ न्यायालयों ने कानूनी त्रुटि की है?

(ग) क्या प्रकरण में प्रस्तुत मौखिक व दस्तावेजी साक्ष्य के विपरीत निष्कर्ष देने में विद्वान अधिनस्थ न्यायालयो ने कानूनी त्रुटि की है?

(घ) क्या विद्वान अधिनस्थ न्यायालयो का निर्णय एवं डिक्री विधि विधान के विपरीत है?

Shri Dave, learned counsel submits that the learned court below did not consider Ex.P/5 and the admission made by the defendant's witness that the plaintiff is in possession over the 1/2 part of the suit land. Ex.P/5 is a Panchanama prepared by the Revenue Inspector in which the possession of the plaintiff was found. The defendant's witness admitted the possession of the plaintiff. Hence, the findings recorded by the Trial Court as well as First Appellate Court are perverse and the appeal is liable to be admitted on any of the question of law.

Heard and peruse the record.

The plaintiff came up with the plea that the suit land is the ancestral land was jointly owned by Ramlal and Tarachand and after their death he along with defendants No.1 to 4 are in joint possession and the partition had been done on the spot. Undisputedly the entire land is recorded in the name of defendant No.1. The plaintiff has not filed any documentary evidence to show that the land was ever jointly recorded in his name along with the defendants. He has not filed any document to show that the name of plaintiff's father and defendant's father were recorded as joint owner and after their death name of plaintiff and defendants were mutated, therefore, the plaintiff has not produced any oral as well as documentary evidence to prove that the property is a coparcener property in which he is having equal share with the defendants. It has also come on record that the plaintiff's mother and brother Shambhulal are alive but they were not impleaded either plaintiff or defendant. Plaintiff is claiming exclusive 1/2 part of right and title by way of succession as a son of Tarachand which is also not permissible if the suit land is the ancestral land jointly owned by Tarachand and Ramlal then the plaintiff alone cannot claim exclusive 1/2 share in it. The plaintiff has also failed to prove the factum of oral partition between the plaintiffs and defendants, therefore, in absence of any documentary evidence in respect of the ownership over the property the Trial Court as well as First Appellate Court both have rightly denied the decree of 1/2 share. Any report given by the Revenue Inspector does not confer any right and title of the plaintiff. The defendants have not admitted 1/2 share of the plaintiff in the suit land. There is no specific admission by the defendant in the evidence in respect of the 1/2 share of the plaintiff in the suit land.

In second appeal the High Court can interfere with the judgment and decree passed by the subordinate Courts only on a question of law much less substantial question of law. The finding of fact recorded by the Courts below are not liable to be interfered with unless the same are perverse.

The apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar : (1999) 3 SCC 722, has held as under:

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 that 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.

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 the 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.

In case of Laxmidevamma v. Ranganath : (2015) 4 SCC 264, again the apex court has held as under:

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 High Court cannot be sustained.

Recently, the 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.

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."

In view of the above, this appeal does not involve any question of law much less substantial question of law. Accordingly, the appeal fails and is hereby dismissed.

No order as to costs.