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2025 Supreme(Online)(MP) 2536
HIGH COURT OF MADHYA PRADESH
SHRI JUSTICE PREM NARAYAN SINGH, J
Kamlabai – Appellant
Versus
Mangilal – Respondent
SA 2973/2022
Shri Amish Sanghvi, Shri Onkar Singh Sisodiya
A second appeal under Section 100 CPC requires a substantial question of law; mere erroneous findings of fact do not suffice.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second appeal against concurrent findings of fact - The appellant challenged the dismissal of his appeal regarding possession and mandatory injunction over land, asserting lack of title by the plaintiff and procedural errors by the lower courts. The courts affirmed the plaintiff's ownership based on evidence. (Paras 1-4, 10-18)
(B) Substantial Question of Law - The court emphasized that a second appeal can only be entertained if it involves a substantial question of law, not merely erroneous findings of fact. (Paras 9, 10)
(C) Perversity - The court reiterated that findings of fact by the first appellate court cannot be disturbed unless shown to be perverse. (Paras 10-18)
Facts of the case:
The appeal arose from a suit for possession and mandatory injunction regarding land claimed by the plaintiff, with the defendant asserting prior ownership through exchange and family partition.
Findings of Court:
The trial and appellate courts found in favor of the plaintiff, establishing ownership and rejecting the defendant's claims.
Issues: The main issues were the plaintiff's title to the land and the procedural validity of the suit without a declaration of title.
Ratio Decidendi: The court held that the second appeal lacked a substantial question of law and that the findings of fact were not perverse.
Result: Second appeal dismissed.
ORDER
The appellant has preferred the present Second Appeal under Section 100 of CPC being aggrieved by the Judgment and Decree dated 23.04.2022, passed in Civil Regular Appeal No. 06/2017, passed by learned Second Additional Judge to the Court of First District Judge, Badnawar, District Dhar whereby appeal filed by the appellant has been dismissed by affirming the Judgment and Decree passed by the Learned First Civil Judge Class-l, Badnawar, District Dhar in Civil Original Suit No. 19A/2015, dated 10.02.2017.
2. Facts of the case in brief are that the appeal arises out of a suit filed by the respondent No. 1/plaintiff for possession and mandatory injunction in respect of land bearing survey no. 297 area 0.063 hectare situated at village Takrawada, Tehsil Badnawar, District Dhar. The suit was based on the averments that the suit land was of the ownership of the respondent No. 1/plaintiff but the defendants had constructed a shanty 
on a portion of land admeasuring 12 feetX10 feet comprised in the suit land. It was averred that the plaintiff had made a complaint in this regard to the police authorities which had proved futile and this had necessitated filing of the present suit.
3. The suit was contested by the defendant No. 2/appellant by filing written statement denying the plaint averments. It was stated that the plaintiff had no title in respect of the suit land as he had given the suit land in exchange to one Geetabai W/o Dhansingh. Subsequently, in a family partition the suit land had fallen to the share of Dilip S/o Dhansingh and thereafter, the aforesaid land was given by Dilip to the appellant/defendant No. 2.
It is also contended that the suit was suffered from non-joinder and misjoinder, therefore, it is not maintainable. The said house has already constructed been over the suit land. The suit land was in the possession of Geetabai and it was obtained in a family partition to Dilip and Dilip Singh has given that suit land to Kamlabai. Since then Kamlabai is in possession of suit land. Hence, the suit was filed on false grounds.
4. In view of the pleadings, trial Court has framed seven issues and after appreciating evidence, decreed the suit in favour of plaintiff/respondent against which defendant/appellant has filed first appeal before Appellate Court/First District District Badnawar wherein after consideration, appeal of appellants was dismissed and order of learned trial Court was affirmed.
5. Being crestfallen by the judgment/decree of Appellate Court this second appeal has been filed.
6. Learned counsel for the appellants expostulated that the learned courts below have committed a grave illegality in not considering that the suit filed by the respondent No. 1/plaintiff for the relief of mandatory injunction was not tenable in the absence of relief of declaration. Learned Courts below have also failed to consider the title of the appellant in the suit land. They have ignored the defence set up by the appellant/defendant No. 2 on the ground of non-filing of counter claim without considering the settled law that the plaintiff can succeed only on the basis of his evidence. The suit land was in the possession of appellant/respondent No. 1 and the suit filed by the plaintiff/respondent No. 1 for mandatory injunction without seeking the relief of declaration was not legally maintainable. On these grounds, learned trial court and the appellate court erred in allowing the suit. Therefore, he prayed for setting aside the impugned orders and allow his petition.
7. Per contra, it is submitted by counsel for respondent that both the Courts below after considering the evidence and material on record in toto have given concurrent findings of fact that the appellants has failed to prove their case. In this case, as no perverse finding was given by the Courts below and no substantial question of law is involved in this appeal, the appeal may be dismissed in limine.
8. Heard learned counsel for the parties and perused the record.
9. The Sec
