Dismissed

Badruddin and Others v. Jaitun Bibi and Others

Chhattisgarh HC19 Aug 2016SA/531/2007

Case brief

AI extract

What is this about?

In a second appeal under Section 100 CPC, the High Court of Chhattisgarh dismissed the appeal. The court held that the concurrent finding of fact below regarding the identity of a deceased defendant's son was based on evidence and was not perverse, invoking Supreme Court precedents on factual findings.

What did the court decide?

The second appeal was dismissed at the motion stage.

Badruddin and Others Vs Jaitun Bibi and Others — Partition | Chhattisgarh HC (2016)

¶1

NAFR

¶2

HIGH COURT OF CHHATTISGARH, BILASPUR

¶3

SA No. 531 of 2007

¶4

Badruddin S/o Gulabuddin, Aged About 54 Years, Caste – Mohammedan,

¶5

Alimuddin, S/o Gulabuddin, Aged about 49 years,

¶6

Nejamuddin S/o Gulabuddin, Aged about 45 years,

¶7

Jabad Ali, S/o Mohammed Ali, Aged about 66 years,

¶8

Nafiz @ Nafiluddin @ Vakeel, S/o Mohammed Ali, Aged about 45 years,

¶9

Mu. Chaiya D/o Mohammed Ali, W/o Gulab, Aged about 40 years,

¶10

All residents of Village – Sonpur, Police Station & Tahsil – Surajpur, District – Surguja (Chhattisgarh) (Defendants)

¶11

---- Appellants

¶12

Versus

¶13

Jaitun Bibi D/o Amirjan, Aged About 44 Years, W/o Jibrail,

¶14

Masina D/o Amirjan, W/o Sultan, Aged about 39 years,

¶15

Najiram, D/o Amirjan, W/o Abbas Miyan, Aged about 37 years,

¶16

Mohammed Intkhab Kasidi, S/o Hafijulla, Aged about 23 years,

¶17

Rasida, Wd/o Late Jafaruddin, Aged about 34 years,

¶18

Mahemuddin, S/o Jafaruddin, Aged about 13 years,

¶19

Gulam, S/o Late Jafaruddin, Aged about 11 years,

¶20

Chari @ Abdul Mazid, S/o Late Jafruddin, Aged about 9 years,

¶21

Hasina D/o Late Jafruddin, Aged about 7 years,

¶22

Matina, D/o Late Jafruddin, Aged about 5 years,

¶23

Savina D/o Late Jafruddin, Aged about 3 years,

¶24

Sl. No.6 to 11 are minor through Guardian mother Rasida Wd/o Jafruddin, (Plaintiff No.5)

¶25

Plaintiffs No. 1 to 11 are R/o Village – Sonpur, Tahsil – Surajpur, District – Surguja (C.G.)

¶26

Hafijan Bivi, Ex. Wd/o Hafijulla, Present W/o Rahmat Ali, Aged about 39 years, Caste Mohammedan

¶27

Rasidan D/o Hasan Mohammed, W/o Yar Mohammed, Aged about 54 years, Caste Mohammedan, R/o Village - Navapara Merhli, P.S. Premnagar, Tah. Surajpur Distt Sarguja (C.G.)

¶28

Takdeeran @ Chhauwa D/o Hasan Mohammed, W/o Nijamuddin, Aged about 44 years, Caste – Mohammedan

¶29

S.A. No. 531 of 2007

¶30

¶31

Basiran, D/o Hasan Mohammed, W/o Hamid Ali, Aged about 39 years, Caste Mohammedan, R/o Datima, Police Station Jainagar, Tahsil Surajpur, District – Surguja (C.G.)

¶32

Mu. Noorjahan @ Kutiya D/o Mohammed Ali, W/o Gafoor Mohammed, Aged about 45 years, Caste Mohammedan, R/o Village – Sonpur, Tahsil Surajpur, District Surguja (C.G.)

¶33

Mu. Sabiran @ Ladiya, D/o Mohammed Ali, W/o Mahimuddin, Aged about 48 years, Caste Mohammedan, R/o Village – Dhapna (Sohagpur), Tahsil Surajpur, District Surguja (C.G.)

¶34

State of Chhattisgarh, Through : The Collector, Surguja, Ambikapur (C.G.)

¶35

Respondents No.1 to 6, 8 to 12, 15 are plaintiffs and respondents No.7,13 14, 16 to 18 are defendants.

¶36

---- Respondents

¶37

------------------------------------------ For Appellants	----------------------------------------------- : Shri J.K. Shastri, Advocate
For Respondents No.1 to 17	: Shri Manoj Paranjpe, Advocate
For the State ------------------------------------------	: Smt. Ashtha Shukla, P.L. -----------------------------------------------

¶38

Hon'ble Shri Justice Sanjay K. Agrawal

¶39

Order on Board

¶40

19/08/2016

¶41

Heard.

¶42

This is defendants' Second Appeal filed under Section 100 of the Code of Civil Procedure (hereinafter referred to as the 'CPC').

¶43

The suit was filed by the plaintiffs who are the successors of Amir Jan and Amir Jan was son of Potan Miyan. Amir Jan, Hasan Mohammad, Gulabuddin and Mohammad Ali were in joint possession and the plaintiffs are entitled for ½ share in the suit

¶44

S.A. No. 531 of 2007

¶45

¶46

property. The Trial Court decreed the suit and granted decree for declaration. Defendants preferred first appeal which was dismissed by the First Appellate Court against which this Second Appeal has been preferred.

¶47

Shri J.K. Shastri, learned counsel for the appellants, would submit that the concurrent findings recorded by two Courts below holding Amir Jan to be the son of Potan Miyan is perverse and no decree for declaration could have been granted in absence of relief for partition and possession.

¶48

The two Courts below on appreciation of oral and documentary evidence available on record have concurrently held that Amir Jan was son of Potan Miyan, it is concurrent finding of fact based on evidence available record. It is neither perverse nor contrary to record.

¶49

The trial Court and First Appellate Court have not committed any legal error in granting decree for declaration in favour of the plaintiffs in which I do not find any perversity or illegality in the impugned order. No other points were raised.

¶50

Recently, the Supreme Court in the case of Vishwanath Agrawal, S/o Sitaram Agrawal Vs. Sarla Vishwanath Agrawal¹ , has held that High Court should not disturb the concurrent finding of

1 (2012) 7 SCC 288

S.A. No. 531 of 2007

fact, unless finding recorded is perverse being based on no evidence. Para-36 & 37 of report as under:-

¶55

“36. In Major Singh Vs. Rattan Singh² it has been observed that when the Courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the Courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.

¶56

In Vidhyadhan Vs. Manikrao³ it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdictions under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decisions of this Court in Abdul Raheem V. Karnataka Electricity Board⁴ .

¶57

Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the Courts below is based on evidence available on record

¶58