Surendra Kumar vs State of Madhya Pradesh

Heard on admission and perused the records.

This second appeal has been filed under Section 100 of Code of Civil Procedure, 1908 by the plaintiffs/appellants being aggrieved by the judgment and decree dated 22.3.2011 passed by 4th Additional District Judge, Chhatarpur by affirming the original judgment and decree dated 28.6.2010 in Civil Suit No.125-A/2009 passed by the Civil Judge, ClassII Laundi District Chhatarpur.

The plaintiffs/appellants'' case in nut shell is that the agricultural land being Khasra Nos. 440/1, 472/1, 473/1. 475, 496, 499/1, 500/1, 624, 626, 855, 885, 890, 891, 893, 901, 902, 894, 923, 1074/2, 1527/2, 1853, 1854/1, 1855/1, 2224 total area admeasuring 18.90 acres situated at village Shilp Tehsil Tourihar Distt. Chhatarpur were owned and possessed by the grand father of the plaintiff Shri Shambhu Singh @ Madhav Singh.

The plaintiffs/appellants had filed a suit for declaration of title over half part of the aforesaid suit land and for permanent injunction.

The respondents denied the pleadings of the plaint and they submitted that the disputed land belongs to their uncle late Shambhu Singh. He was bachelor. Shambhu Singh had half share of the suit land and after his death the said property inherited to the respondents. They cultivated the suit lands since 32-33 years.

The learned trial court after thorough appreciation of evidence has found that the plaintiffs/respondents failed to prove their title and possession over the suit land. Hence the trial court dismissed the suit.

Learned first appellate court after elaborating the evidence has also come to the conclusion that the plaintiffs/appellants failed to prove their title and possession over the suit property. Their evidence was contradictory with the documents produced by the defendants/respondents in their support.

This court finds that the findings recorded by the learned trial Court are based upon proper appreciation of facts and not perverse or against the record. Findings are purely based on facts.

This Court finds no substantial question involved in this appeal. However, application of principles settled by High Court or general principles would not amount to substantial question of law. Unless finding recorded by trial Court by ignoring evidence on record or erroneous and perverse as held in the case of Venkatesh Construction Company Vs. Karnataka Vidyut Kakhar [AIR 2016 SC 553] and Syeda Rahimunnisa Vs. Malan Bi & Anr. [(2016) 10 SCC 315] which reads as under-

"to constitute substantial question of law there must be pleading regarding question of law involved in the matter and such legal question should emerge from sustainable findings of fact recorded by courts of fact recorded by courts below. Substantial question of law means question of law having substance, essential, real, of sound worth or considerable. Fairly arguable question of law, where there is room for difference of opinion on it or where court thought is necessary to deal with that question at some length and discuss alternative views then such question would be substantial question of law."

In the case of Damodar Lal Vs. Sohan Devi & Ors [(2016) 3 SCC 78), Hon''ble Apex Court has held that the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law.

In the aforesaid cases, the Hon''ble Apex Court relying on the principle laid down in case of Kulwant Kaur Vs. Gurdial Singh Mann [(2001) 4 SCC 262 ] has held 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-?-vis the 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. In this context reference be had to Section 103 of the Code which reads as below:

"103. Power of High Court to determine issues of fact - In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."

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."

In the light of the above principles laid down by the Hon''ble Supreme Court, it is not proper and legally justified to interfere with the concurrent findings of fact arrived at by learned Trial Court and the First Appellate Court on pure question of fact.

Keeping in view the concurrent findings recorded by the Courts below, which are based on proper appreciation and assessment of evidence on record, I do not find any substantial question of law arising for adjudication in the present appeal. The appeal is accordingly dismissed.