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Balkishan and ors. Vs. Nagarpalika, Morena and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 297 of 1973
Judge
Reported inAIR1986MP70
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100
AppellantBalkishan and ors.
RespondentNagarpalika, Morena and anr.
Appellant AdvocateN.K. Jain, Adv.
Respondent AdvocateK.N. Gupta and ;Swamisaran, Advs.
DispositionAppeal dismissed
Cases ReferredBrahmanand Puri v. Nekipuri
Excerpt:
- - 7. for interference in second appeal this court is required to be satisfied that the case involves a substantial question of law. these devices have created confusion in the mind of the public and they fail to accept the legitimate scope and the result is unnecessarily large number of second appeals. 10. this is a suit for declaration filed by the plaintiffs and they are required to prove their title, if they fail, they cannot get the benefit on account of the weakness in the case of the defendant brahmanand puri v. nekipuri, air 1965 sc 1506. 11. while rejecting the other submissions of shri jain, i would like to observe that the adequacy or sufficiency of evidence to sustain a conclusion of fact is not a matter of law......the commissionerand giving opportunity to the parties foradducing evidence, dismissed the suit. onappeal, the district court maintained thedecree and judgment passed by the trial courtappellants now, challenge the judgment anddecree passed by the 1st appellate court, inthis second appeal.5. shri n.k. jain, the learned counsel for the appellants has, on the face of the concurrent finding of fact, submitted that the impugned judgment is based upon assumptions. he further submitted that the courts below have held the c d line to be the dividing line between survey nos. 878 and 880 while the case of the plaintiffs was that portion c d e f of the plaint map was part of plot no. 878. his grievance is that the evidence of the plaintiff was not discussed and the first appellate court.....
Judgment:

Ram Pal Singh, J.

1. These elevenappellants/plaintiffs have preferred this appealunder Section 100 of the Civil P.C. against thejudgment and decree passed by the FirstAdditional District Judge, Morena, dated 5-7-1973 in Civil Appeal No. 37-A/71.

2. Present appellants and respondent Nos. 2, 3 and deceased Maniram filed a suit against respondent No. 1 Nagarpalika, Morena, for declaration and permanent injunction, in the Court of Civil Judge, Class II, Morena. Plaintiffs averred in their plaint that the suit land shown as C D E F by red lines in the plaint map, belonged to them as it was part of survey number 878. Plaint map contains three plots, survey Nos. 878, 879 and 880. Accordingto the plaintiffs, the C D E F red marked portion is part of survey No. 878 and respondent No. 1 auctioned this portion. Plaintiffs, after serving notice under Section 200 of the Municipalities Act, filed the suit.

3. Respondent/defendant No. 1 denied the case of plaintiffs and claimed that the area shown in red lines as C D E F in the plaint map belongs to the Nagarpalika. According to their written statement, the C.D. line is a pukka foundation as they got the possession of the land measuring 435' X (sic)9' X 37' of previous survey Nos. 93 and 94/2 which has now been renumbered as survey No. 880. In the written-statement, respondent No. 1 further averred that the forefather of plaintiffs. Hardayal, received compensation of the suit land from the respondent No. 1 and, thus, if plaintiffs had any rights, they are extinguished now.

4. The trial Court decreed the suit on 31-1-1965 but on appeal, the first appellate Court,by its judgment dated 11-10-1968, remandedthe case back to the trial Court with thedirection to appoint a Commissioner for doingthe measurements of the suit land and recordthe evidence, if any. Revenue Inspector wasappointed Commissioner by the trial Courtand he tendered his report on 12-1-1971. Thetrial Court, after examining the Commissionerand giving opportunity to the parties foradducing evidence, dismissed the suit. Onappeal, the District Court maintained thedecree and judgment passed by the trial CourtAppellants now, challenge the judgment anddecree passed by the 1st appellate Court, inthis second appeal.

5. Shri N.K. Jain, the learned counsel for the appellants has, on the face of the concurrent finding of fact, submitted that the impugned judgment is based upon assumptions. He further submitted that the Courts below have held the C D line to be the dividing line between survey Nos. 878 and 880 while the case of the plaintiffs was that portion C D E F of the plaint map was part of plot No. 878. His grievance is that the evidence of the plaintiff was not discussed and the first appellate Court should have remanded the case back to the trial Court. Shri Jain also submitted that the Commissioner has not started the measurements from a fixed point. Inter alia he maintained that neither Ex.P. 1 and Ex.P. 4 nor the statement of D.W. 4 RafiqAhmad in para 11 have been taken into account by the Courts below.

6. I was persuaded by Shri Jain to examine the evidence on record and also the statements of the witnesses of both the parties. Assuming every submission of Shri Jain to be true, this Court cannot go on the grounds howsoever gross the error might seem to be. This Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. It has always been recognised that the sufficiency or adequacy of evidence to support a finding of facts is a matter for decision of the Court of facts and cannot be agitated in second appeal.

7. For interference in second appeal this Court is required to be satisfied that the case involves a substantial question of law. That is why the High Court on such satisfaction is required to formulate the substantial questions of law. In dealing with the second appeal it has been devised and successfully adopted, several concepts such as mixed question of law and fact, that the case has not been properly approached by the Courts below. These devices have created confusion in the mind of the public and they fail to accept the legitimate scope and the result is unnecessarily large number of second appeals. As early as in 1890, in the case of Mt. Durga Chaudharain, the Privy Council emphatically declared that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, howsoever, gross or inexcusable the error may seem to be. The limits prescribed in Section 100 of the Civil P.C. should not be contravened by interfering with concerned findings of simple question of fact and on ground of insufficiency of evidence. It is necessary to remember that what is administered in Courts is justice according to law and considerations of equity and fair play, however important they may be must yield to clear and express provisions of law.

8. In the light of the abovenoted settled principles I shall now examine the submission of Shri Jain. In para 19 of the impugned judgment the Commissioner's report has exhaustively been discussed and I am of the opinion that it has rightly been rejected. To issue a commission under the provisions ofOrder 26, Rule 1 of the Code of Civil Procedure is a matter of judicial discretion. This discretion is gsed in favour of cause of justice. The Courts very, jealously guard the grounds fcr which the commissions are to be issued. The grounds on which the report of the Commissioner has been thrown out are based on just grounds. The appellants did not care to even file objections against the Commissioner's report. At this stage, it seems that the appellants are on fishing expedition and want to demolish the concurrent findings on any available ground.

9. When this Court agreed with the view of the lower appellate Court on evidence, it need not restate effect of the evidence or reiterate reasons given by the Courts below. Expression of general agreement with reasons given would ordinarily, suffice.

10. This is a suit for declaration filed by the plaintiffs and they are required to prove their title, if they fail, they cannot get the benefit on account of the weakness in the case of the defendant Brahmanand Puri v. Nekipuri, AIR 1965 SC 1506.

11. While rejecting the other submissions of Shri Jain, I would like to observe that the adequacy or sufficiency of evidence to sustain a conclusion of fact is not a matter of law. The admissibility of evidence or otherwise is no doubt a point of law but, once it is shown that the evidence on which Courts of fact have acted was admissible or relevant, it is not open to a party, feeling aggrieved by the findings recorded by Courts of fact to contend before this Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of facts and cannot be agitated in second appeal. AIR 1963 SC 1633, Ramappa's case. Hence, if according to the finding of Court of facts C D line of the plaint map has been held to be the dividing line between survey Nos. 878 and 880, it has to be held that this question is not a question of law or a mixed question of law and fact and hence cannot be looked into by this Court. As urged by Shri Jain, I do not think that old matter needs any more consideration by the Courts of fact. I, therefore, feel that the prayer for remanding the case back to the firstappellate Court must be rejected.

12. The upshot of the above discussion is that this appeal is dismissed with costs throughout to the respondent. Counsel fee Rs. 150/- if certified.


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