Madhya Pradesh High Court
Daulat Bai vs Gajendra Singh on 16 March, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:10003
1 SA-95-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 16th OF MARCH, 2026
SECOND APPEAL No. 95 of 2010
DAULAT BAI AND OTHERS
Versus
GAJENDRA SINGH AND OTHERS
Appearance:
Mr. Ram Krishna Upadhyay - Advocate for appellants.
Mr. Rohit Bansal - Advocate for respondent No. 1.
JUDGMENT
This Second Appeal under Section 100 of CPC has been filed against
judgment and decree dated 19/01/2010 passed by Second Additional District
Judge (Fast Track Court), Ganj Basoda, District Vidisha in Regular Civil
Appeal No. 24A/2009, by which judgment and decree dated 03/11/2007
passed by First Civil Judge, Class-II, Ganj Basoda, District Vidisha in Civil
Suit No. 78A/2006 has been reversed and the counter-claim filed by
Respondent No. 1 – Gajendra Singh is decreed.
2. Present appeal has been filed by appellants, who were co-defendants
before the Trial Court.
3. Plaintiff – Dashrath Singh died during the pendency of suit, and
accordingly, his legal representatives were brought on record. Similarly,
Defendant No. 2 – Man Singh also died during the pendency of civil suit, and
his legal representatives were also brought on record. Present appellants are
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the legal representatives of original Defendant No. 2 – Man Singh.
4. The facts necessary for disposal of present appeal, in short, are that
Dashrath Singh filed a suit for declaration of title and possession in respect
of Survey No. 89 min, area 4.100 hectares situated in Village Uhar, Tehsil
Basoda, against Gajendra Singh and Man Singh. It was his case that plaintiff
Dashrath Singh had purchased the disputed property from Defendant No. 2 –
Man Singh by a registered sale deed dated 29/11/1987, and since then,
original plaintiff was in possession. Original plaintiff made an application for
mutation of his name. Since there was an escalation in the price of disputed
property, therefore, intention of Defendant No. 2 became dishonest.
Accordingly, he filed an objection in the mutation proceedings. However,
said objection was dismissed. Similarly, Defendant No. 1 – Gajendra Singh
had also filed a civil suit for declaration of his title which was registered as
214A/1984, and temporary injunction order was passed restraining the
revenue authorities from mutating the name of plaintiff. The suit filed by
Gajendra Singh was dismissed by judgment and decree dated 25/04/1988
against which Gajendra Singh / Respondent No. 1 preferred an appeal before
the Court of Additional District Judge, Basoda, which too was dismissed by
judgment and decree dated 20/11/1992 in Civil Appeal No. 240A/1988.
Respondent No. 1 – Gajendra Singh challenged the judgment and decree
passed by the lower Appellate Court before the High Court. An interim order
was passed and taking advantage of the interim order, Respondent No. 1 –
Gajendra Singh forcibly took possession of the property in dispute on
01/07/1993. The appeal filed by Respondent No. 1 – Gajendra Singh was
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dismissed by holding that original plaintiff Dashrath Singh is the owner of
the property in dispute and Respondent No. 1 – Gajendra Singh is an
encroacher, but his possession was protected by directing the original
plaintiff to recover possession by following procedure of law. Thereafter,
plaintiff requested Defendant No. 1 – Gajendra Singh to leave the possession,
but he did not do that. Accordingly, original plaintiff Dashrath Singh filed
Civil Suit No. 151A/1995 on 08/11/1995 for recovery of possession before
the Civil Judge, Class-II which was dismissed on account of non-appearance
of plaintiff on 10/05/1999. Accordingly, it was pleaded that a cause of action
has arisen on 01/07/1993 when Defendant No. 1 had forcibly and illegally
taken possession from original plaintiff, and new suit was filed for
declaration of title as well as for possession primarily against Defendant No.
1 – Gajendra Singh. In paragraph 10 of the plaint, it was claimed that original
plaintiff Dashrath Singh has not claimed any relief against Defendant No. 2 –
Man Singh. Mesne profits from Defendant No. 1 – Gajendra Singh were also
sought at the rate of Rs. 5,000/- per annum.
5. Defendant No. 1/Respondent No. 1 – Gajendra Singh filed his
written statement as well as counter-claim. It was denied that plaintiff was
ever in possession of the property in dispute. The sale deed executed by Man
Singh in favor of original plaintiff Dashrath Singh was also denied on the
ground that Gajendra Singh had already acquired Bhumiswami rights,
therefore, Man Singh had no right in the suit property. It was further pleaded
that the High Court, by judgment dated 07/12/1998 passed in Second Appeal
No. 11/1993, has protected the possession of Defendant No. 1 – Gajendra
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Singh qua original plaintiff. Even otherwise, Defendant No. 1 – Gajendra
Singh is in possession of the property in dispute from the year 1975, and
thus, he has perfected his title by way of adverse possession. A counter-claim
was also filed for declaration that Defendant No. 1 – Gajendra Singh has
perfected his title by way of adverse possession. Dashrath Singh had filed
Civil Suit No. 151/1995 for delivery of possession, but the said suit was
dismissed on account of non-appearance of plaintiff, and therefore, the suit
in hand is not maintainable.
6. Defendant No. 2 – Man Singh also filed his written statement and
claimed that Dashrath Singh had obtained a sale deed without making
payment of any consideration amount. It was further claimed that plaintiffs
were never in possession of the property in dispute, and it was prayed that no
decree be passed in favor of plaintiffs as the sale deed was executed without
any consideration amount and possession should also not be given to
plaintiffs, and it was prayed that Defendant No. 1 may be directed to hand
over the possession of property in dispute to Defendant No. 2 and mesne
profits at the rate of Rs. 20,000/- per year was also sought.
7. It is made clear that in fact, Defendant No. 2 had claimed a relief
against Defendant No. 1, but no counter-claim was filed.
8. Defendant No. 3 – State also filed its written statement in a usual
manner and denied the plaint averments.
9. The Trial Court framed issues, including as to whether the suit filed
by plaintiff Dashrath Singh is maintainable in the light of dismissal of Civil
Suit No. 151A/1995. The issue pertaining to the maintainability of the suit
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was decided as a preliminary issue, and by order dated 21/10/2005, suit filed
by plaintiff Dashrath Singh was dismissed as not maintainable. However, it
was held that counter-claim shall continue, and thus, the suit proceeded only
for the purposes of counter-claim. The Trial Court, after recording evidence,
dismissed the counter-claim filed by Defendant No. 1 – Gajendra Singh.
10. Being aggrieved by judgment and decree passed by the Trial
Court, Defendant No. 1 – Gajendra Singh preferred an appeal, which has
been allowed by the lower Appellate Court by impugned judgment and
decree.
11. This Court, by order dated 05/03/2010, framed the following
substantial question of law:
“(i) Whether the learned lower appellate Judge is justified in
granting the decree on counter claim in favour of
defendant/resondent No. 1 on the basis of adverse possession
despite interruption due to various inter se litigations?
(ii) Whether the counter claim vis a vis co-defendant is tenable
and the decree on counter claim is sustainable against co-
defendant?
(iii) Whether reversal of the judgment and decree by the lower
appellate court is sustainable in law without meeting out the
reasons assigned by the learned trial Judge?”
12. Heard learned counsel for parties.
13. As already pointed out, initially Gajendra Singh preferred a suit for
declaration of his title against Dashrath Singh and Man Singh which was
registered as Civil Suit No. 214A/1984. It was the case of Defendant No. 1 –
Gajendra Singh that Defendant No. 2 – Man Singh had leased out the
disputed property to him and now he has acquired Bhumiswami rights. It was
pleaded that Man Singh had no right to sell the suit property to original
plaintiff Dashrath Singh. The said suit was dismissed by Civil Judge, Class-
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II, Ganj Basoda, District Vidisha by judgment and decree dated 23/04/1988
(Exhibit D-9), and it was held that Defendant No. 1 – Gajendra Singh has
failed to prove that he had acquired any Bhumiswami rights. Judgment and
decree passed by the Trial Court was challenged by Defendant No. 1 –
Gajendra Singh by filing Civil Appeal No. 240A/1988, which too was
dismissed by Additional District Judge, Basoda by judgment and decree
dated 20/11/1992. Thereafter, Second Appeal No. 11/1993 was filed by
Gajendra Singh, which was finally disposed of by this Court by judgment
dated 07/12/1999 (Exhibit D-10) with following observations:
“19. Coming to the facts of the present case, it can be noticed that
plaintiff/appellant was found in peaceful possession of the suit land
and his possession was also found recorded in some of the khasra
entries. This position was also admitted by original owner
defendant/respondent Maan Singh. In our opinion, therefore, appellant
can be held to be in settled possession of suit land. Our conclusions
are:
(a) The finding returned by the Court below on the question
relating to the defendant no. 2 being in possession of the land in
dispute is based on an appraisal of evidence on the record and
does not appear to be vitiated in law;
(b) The Ist substantial question of law as framed is, therefore,
decided in favour of the defendant and against the
plaintiff/appellant; and
(c) So far as the 2nd substantial question of law as framed is
concerned, we are clearly of the opinion that since the plaintiff
was in settled possession, his possession had to be protected,
even against a rightful owner, until and unless he is evicted by
any lawful order or by due process of law.”
Thus, it is clear that in the second appeal filed by Defendant No. 1 –
Gajendra Singh, it was decided by the High Court that Defendant No. 1 –
Gajendra Singh, who was plaintiff in Civil Suit No. 214A/1984, is in settled
possession and his possession has to be protected even against a rightful
owner until and unless he is evicted by any lawful order or by due process of
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law, and accordingly, appeal filed by Defendant No. 1 – Gajendra Singh was
allowed and judgment and decree passed by the Trial Court was modified to
the extent that the suit of plaintiff Gajendra Singh, who is Defendant No. 1 in
the present litigation, shall stand decreed only for a decree for permanent
injunction restraining the defendant from dispossessing the plaintiff from the
land in dispute, otherwise than in accordance with law. Thus, the possession
of Defendant No. 1 – Gajendra Singh was found even by the High Court by
its judgment dated 07/12/1999 passed in Second Appeal No. 11/1993.
14. Thereafter, original plaintiff Dashrath Singh filed a suit, which was
dismissed on account of his absence. Admittedly, Dashrath Singh did not file
any application for restoration of the said suit and filed a new suit, which was
dismissed as not maintainable by the Trial Court by order dated 21/10/2005.
Since said order is not under challenge, therefore, this Court is not required
to adjudicate the correctness of the order, but it is observed that even
otherwise, in lieu of Order IX Rule 9 CPC, a fresh suit is not maintainable.
15. Be that whatever it may be. Crux of the matter is that the suit filed
by Dashrath Singh was dismissed as not maintainable, and the said order has
attained finality. The proceedings were kept pending only for the purposes of
consideration of counter-claim filed by Defendant No. 1 – Gajendra Singh.
16. In the year 1999, there was already an adjudication by the High
Court that Defendant No. 1 – Gajendra Singh is in settled possession of the
property in dispute, and he cannot be dispossessed without following due
procedure of law. The suit filed by Dashrath Singh, pleading inter alia that he
was dispossessed by Gajendra Singh in the year 1993, has already been
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dismissed, therefore, the said contention cannot be taken note of. If the
judgment passed by the Trial Court in Civil Suit No. 214A/1984 (Exhibit D-
9) is considered, then it is clear that in paragraph 12 of the said judgment, it
was observed that Defendant No. 1 – Gajendra Singh is in possession of the
property in dispute from the year 1978-79. The relevant findings recorded by
the Trial Court in Civil Suit No. 214A/1984 (Exhibit D-9) read as under:
"12/ वाद मांक 3 : -
इस वाद के संबंध म वाद क कथन है क दशरथ िसंह ने अ ... ऊपर दान
कया था। जसम भी उसका (वाद ) का ह क जा माना गया। ितवाद ने दावा करने के
बारे म अनिभ ता कट क है । दश पी० 1 के खसरे से सन 78-79 म तहसील
के आदे शानुसार वाद का क जा अं कत होना दिशत होता है । वाद क ओर से करण ं ०
34ए/82 आदे श दनांक 19-3-82 क ितिल प क फोटो कॉपी तुत क गई है । जसके
अनुसार दशरथ िसंह अ थाई िनषेधा ा का आवेदन िनर त कया गया है । वाद का यह
कथन है क वाद का यह वाद 34ए/82 िनर त हो गया है । इसके खंडन म ितवाद क
ओर से कोई सा य न होने से वाद के इस कथन पर अ व ास करने का कोई कारण नह ं
है । वाद का वाद त भूिम पर क जा होने से ह यह मा णत नह ं होता है क वाद
वाद त भूिम का मौ सी का तकार था। अतः वाद मांक 3 उपरो ानुसार िन णत
कया जाता है ।”
Thus, it is clear that Defendant No. 1 – Gajendra Singh, is in
possession of the property in dispute from the year 1978-79, and that finding
was upheld by the High Court by its judgment and decree dated 07/12/1999
passed in Second Appeal No. 11/1993 (Exhibit D-10). The Civil Court, by
judgment dated 23/04/1988, passed in Civil Suit No. 214A/1984 (Exhibit D-
9), had held that Defendant No. 1 – Gajendra Singh has failed to prove his
title, but he was found to be in possession.
17. Once Defendant No. 1 – Gajendra Singh was found to be in
possession from 1978-79, then whether it can be said that he had perfected
his title by way of adverse possession qua original plaintiff Dashrath Singh?
18. The first question for consideration is that what are the principles
governing the claim of adverse possession? The Supreme Court in the case
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of Government of Kerala v. Joseph , reported in (2023) 17 SCC 400 , has held
as under:
“29. The principle of adverse possession has been defined by the Privy
Council in Perry v. Clissold [Perry v. Clissold, 1907 AC 73 (PC)] in
the following terms : (AC p. 79)“It cannot be disputed that a person in possession of land in
the assumed character of the owner and exercising
peaceably the ordinary rights of ownership has a perfectly
good title against all the world but the rightful owner. And
if the rightful owner does not come forward and assert his
title by process of law within the period prescribed by the
provisions of the Statute of Limitations applicable to the
case, his right is forever extinguished, and the possessory
owner acquires an absolute title.”
30. Before proceeding to do so, it is essential to take note of the law
governing such a claim. After a perusal and consideration of various
judgments rendered by this Court, the following principles can be
observed.
31. Possession must be open, clear, continuous and hostile to the claim
or possession of the other party; all three classic requirements must
coexist–nec vi i.e. adequate in continuity; nec clam i.e. adequate in
publicity; and nec precario i.e. adverse to a competitor, in denial of
title and knowledge:
31.1. In Radhamoni Debi v. Collector of Khulna [Radhamoni Debi v.
Collector of Khulna, 1900 SCC OnLine PC 4 : (1899-1900) 27 IA
136] , the Privy Council held that : (SCC OnLine PC)
“… the possession required must be adequate in continuity,
in publicity, and in extent to show that it is possession
adverse to the competitor.”
31.2. Further, the Council in Chandra Nandy v. Baijnath Jugal Kishore
[Chandra Nandy v. Baijnath Jugal Kishore, 1934 SCC OnLine PC 63 :
(1934-35) 62 IA 40 : AIR 1935 PC 36] observed : (SCC OnLine PC)
“…’… It is sufficient that the possession should be overt
and without any attempt at concealment, so that the person
against whom time is running out, if he exercises due
vigilance, to be aware of what is happening.”
[Ed. : As observed in Secy. of State for India in Council v. Debendra
Lal Khan, 1933 SCC OnLine PC 65 : (1933-34) 61 IA 78 : 1934 All
LJ 153]
31.3. A Bench of three Judges of this Court in Parsinni v. Sukhi
[Parsinni v. Sukhi, (1993) 4 SCC 375] held that : (SCC p. 379, para 5)Signature Not Verified
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“5. … Party claiming adverse possession must prove that
his possession must be “nec vi, nec clam, nec precario” i.e.
peaceful, open and continuous. The possession must be
adequate, in continuity, in publicity and in extent to show
that their possession is adverse to the true owner.”
31.4. In Karnataka Board of Wakf v. Union of India [Karnataka Board
of Wakf v. Union of India, (2004) 10 SCC 779] (two-Judge Bench) it
was held : (SCC p. 785, para 11)“11. … It is a well-settled principle that a party claiming
adverse possession must prove that his possession is “nec
vi, nec clam, nec precario”, that is, peaceful, open and
continuous. The possession must be adequate in continuity,
in publicity and in extent to show that their possession is
adverse to the true owner. It must start with a wrongful
disposition of the rightful owner and be actual, visible,
exclusive, hostile and continued over the statutory period.”
This case was relied on in M. Venkatesh v. BDA [M. Venkatesh v.
BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387] (three-Judge
Bench), Ravinder Kaur Grewal v. Manjit Kaur [Ravinder Kaur Grewal
v. Manjit Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] (three-
Judge Bench).
31.5. This Court in a recent case of M. Siddiq (Ram Janmabhumi
Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5
J.) v. Suresh Das, (2020) 1 SCC 1] (five-Judge Bench) reiterated this
principle as under : (SCC p. 703, para 1143)
“1143. A person who sets up a plea of adverse possession
must establish both possession which is peaceful, open and
continuous possession which meets the requirement of
being nec vi, nec clam and nec precario. To substantiate a
plea of adverse possession, the character of the possession
must be adequate in continuity and in the public because
the possession has to be to the knowledge of the true owner
in order for it to be adverse. These requirements have to be
duly established first by adequate pleadings and second by
leading sufficient evidence.”
32. The person claiming adverse possession must show clear and
cogent evidence to substantiate such claim. This Court in Kishan
Singh v. Arvind Kumar [Kishan Singh v. Arvind Kumar, (1994) 6
SCC 591] (two-Judge Bench) held that : (SCC p. 594, para 5)
“5. … A possession of a co-owner or of a licensee or of an
agent or a permissive possession to become adverse must
be established by cogent and convincing evidence to show
hostile animus and possession adverse to the knowledge of
real owner. Mere possession for howsoever length of time
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does not result in converting the permissive possession into
adverse possession.”
(emphasis supplied)
Reference may also be made to M. Siddiq [M. Siddiq (Ram
Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] .
33. Mere possession over a property for a long period of time does not
grant the right of adverse possession on its own. In Gaya Parshad
Dikshit v. Nirmal Chander [Gaya Parshad Dikshit v. Nirmal Chander,
(1984) 2 SCC 286] (two-Judge Bench), this Court observed : (SCC p.
287, para 1)
“1. … It is not merely unauthorised possession on
termination of his licence that enables the licensee to claim
title by adverse possession but there must be some overt act
on the part of the licensee to show that he is claiming
adverse title. It is possible that the licensor may not file an
action for the purpose of recovering possession of the
premises from the licensee after terminating his licence but
that by itself cannot enable the licensee to claim title by
adverse possession. There must be some overt act on the
part of the licensee indicating assertion of hostile title. Mere
continuance of unauthorised possession even for a period of
more than 12 years is not enough.”
(emphasis supplied)
Reference may also be made to Arvind Kumar [Kishan Singh v.
Arvind Kumar, (1994) 6 SCC 591] ; Mallikarjunaiah v. Nanjaiah
[Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756 : (2020) 2 SCC
(Civ) 424] (two-Judge Bench); Uttam Chand [Uttam Chand v. Nathu
Ram, (2020) 11 SCC 263 : (2021) 1 SCC (Civ) 520].
34. Such clear and continuous possession must be accompanied by
animus possidendi — the intention to possess or in other words, the
intention to dispossess the rightful owner.
34.1. In Karnataka Board of Wakf [Karnataka Board of Wakf v. Union
of India, (2004) 10 SCC 779] it was observed : (SCC p. 785, para 11)
“11. … Physical fact of exclusive possession and the
animus possidendi to hold as owner in exclusion to the
actual owner are the most important factors that are to be
accounted in cases of this nature.”
34.2.Annakili v. A. Vedanayagam [Annakili v. A. Vedanayagam,
(2007) 14 SCC 308] (two-Judge Bench) also shed light on this
principle as under : (SCC p. 316, para 24)
“24. Claim by adverse possession has two elements : (1) the
possession of the defendant should become adverse to the
plaintiff; and (2) the defendant must continue to remain in
possession for a period of 12 years thereafter. Animus
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possidendi as is well known is a requisite ingredient of
adverse possession. It is now a well-settled principle of law
that mere possession of the land would not ripen into
possessory title for the said purpose. Possessor must have
animus possidendi and hold the land adverse to the title of
the true owner. For the said purpose, not only animus
possidendi must be shown to exist, but the same must be
shown to exist at the commencement of the possession.”
(emphasis supplied)
34.3. In Des Raj v. Bhagat Ram [Des Raj v. Bhagat Ram, (2007) 9
SCC 641] (two-Judge Bench) this Court observed : (SCC p. 648, para
21)
“21. In a case of this nature, where long and continuous
possession of the respondent-plaintiff stands admitted, the
only question which arose for consideration by the courts
below was as to whether the plaintiff had been in
possession of the properties in hostile declaration of his
title vis-à-vis his co-owners and they were in know
thereof.”
34.4. This Court in L.N. Aswathama v. P. Prakash [L.N. Aswathama
v. P. Prakash, (2009) 13 SCC 229 : (2009) 5 SCC (Civ) 72] (two-
Judge Bench) had observed that permissive possession or possession
in the absence of animus possidendi would not constitute the claim of
adverse possession.
34.5. It was also held in Chatti Konati Rao v. Palle Venkata Subba Rao
[Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 :
(2012) 1 SCC (Civ) 452] (two-Judge Bench) : (SCC p. 322, para 15)
“15. Animus possidendi as is well known is a requisite
ingredient of adverse possession. Mere possession does not
ripen into possessory title until the possessor holds the
property adverse to the title of the true owner for the said
purpose. The person who claims adverse possession is
required to establish the date on which he came in
possession, nature of possession, the factum of possession,
knowledge to the true owner, duration of possession and
that possession was open and undisturbed.”
(emphasis supplied)
Referring to the above judgment in Subba Rao [Chatti Konati Rao v.
Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ)
452] this Court has reiterated the cardinality of the presence of animus
possidendi in a case concerning adverse possession in Brijesh Kumar
v. Shardabai [Brijesh Kumar v. Shardabai, (2019) 9 SCC 369 : (2019)
4 SCC (Civ) 509] (two-Judge Bench).
35. Such a plea is available not only as a defence when title is
questioned, but is also available as a claim to a person who has
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perfected his title.
36. The prior position of law as set out in Gurdwara Sahib v. Gram
Panchayat Village Sirthala [Gurdwara Sahib v. Gram Panchayat
Village Sirthala, (2014) 1 SCC 669 : (2014) 1 SCC (Civ) 630] (two-
Judge Bench) was that the plea of adverse possession can be used only
as a shield by the defendant and not as a sword by the plaintiff.
However, the position was changed later by the decision of this
Hon’ble Court in Ravinder Kaur [Ravinder Kaur Grewal v. Manjit
Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] which had held
that : (Ravinder Kaur case [Ravinder Kaur Grewal v. Manjit Kaur,
(2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] , SCC p. 777, para 62)
“62. … title or interest is acquired it can be used as a sword
by the plaintiff as well as a shield by the defendant within
ken of Article 65 of the Act and any person who has
perfected title by way of adverse possession, can file a suit
for restoration of possession in case of dispossession.”
The position in Ravinder Kaur [Ravinder Kaur Grewal v. Manjit Kaur,
(2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] was followed in
Narasamma v. A. Krishnappa [Narasamma v. A. Krishnappa, (2020)
15 SCC 218] (three-Judge Bench).
37. Mere passing of an ejectment order does not cause a break in
possession neither causes his dispossession. In Balkrishan v.
Satyaprakash [Balkrishan v. Satyaprakash, (2001) 2 SCC 498] (two-
Judge Bench) this Court held : (SCC p. 502, para 11)
“11. … Mere passing of an order of ejectment against a
person claiming to be in adverse possession neither causes
his dispossession nor discontinuation of his possession
which alone breaks the continuity of possession.”
38. When the land subject of proceedings wherein adverse possession
has been claimed, belongs to the Government, the court is duty-bound
to act with greater seriousness, effectiveness, care and circumspection
as it may lead to destruction of a right/title of the State to immovable
property.
38.1. In State of Rajasthan v. Harphool Singh [State of Rajasthan
v. Harphool Singh, (2000) 5 SCC 652] (two-Judge Bench) it was
held : (SCC p. 660, para 12)
“12. So far as the question of perfection of title by
adverse possession and that too in respect of public
property is concerned, the question requires to be
considered more seriously and effectively for the reason
that it ultimately involves destruction of right/title of the
State to immovable property and conferring upon a
third-party encroacher title where he had none.”
38.2. Further, in Mandal Revenue Officer v. Goundla Venkaiah
[Mandal Revenue Officer v. Goundla Venkaiah, (2010) 2 SCC 461
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: (2010) 1 SCC (Civ) 466 : (2010) 1 SCC (Cri) 1501] (two-Judge
Bench) it was stated : (SCC p. 483, para 47)
“47. … It is our considered view that where an
encroacher, illegal occupant or land grabber of public
property raises a plea that he has perfected title by
adverse possession, the court is duty-bound to act with
greater seriousness, care and circumspection. Any laxity
in this regard may result in destruction of right/title of
the State to immovable property and give an upper hand
to the encroachers, unauthorised occupants or land
grabbers.”
39. A plea of adverse possession must be pleaded with proper
particulars, such as, when the possession became adverse. The
court is not to travel beyond pleading to give any relief, in other
words, the plea must stand on its own two feet.
39.1. This Court has held this in V. Rajeshwari v. T.C.
Saravanabava [V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC
551] (two-Judge Bench) : (SCC p. 556, para 12)
“12. … A plea not properly raised in the pleadings or in
issues at the stage of the trial, would not be permitted to
be raised for the first time at the stage of appeal.”
39.2. It has also been held in State of Uttarakhand v. Mandir Sri
Laxman Sidh Maharaj [State of Uttarakhand v. Mandir Sri
Laxman Sidh Maharaj, (2017) 9 SCC 579 : (2017) 4 SCC (Civ)
671] (two-Judge Bench) : (SCC p. 584, para 24)
“24. … The courts below also should have seen that
courts can grant only that relief which is claimed by the
plaintiff in the plaint and such relief can be granted only
on the pleadings but not beyond it. In other words,
courts cannot travel beyond the pleadings for granting
any relief.”
Mandir Sri Laxman Sidh Maharaj [State of Uttarakhand v. Mandir
Sri Laxman Sidh Maharaj, (2017) 9 SCC 579 : (2017) 4 SCC
(Civ) 671] was relied on in Dharampal v. Punjab Wakf Board
[Dharampal v. Punjab Wakf Board, (2018) 11 SCC 449 : (2018) 5
SCC (Civ) 148] (two-Judge Bench) on the same principle.
40. Claim of independent title and adverse possession at the same
time amounts to contradictory pleas.
40.1.Annasaheb Bapusaheb Patil v. Balwant [Annasaheb
Bapusaheb Patil v. Balwant, (1995) 2 SCC 543] (three-Judge
Bench) elaborated this principle as : (SCC p. 554, para 15)
“15. Where possession can be referred to a lawful title,
it will not be considered to be adverse. The reason being
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that a person whose possession can be referred to a
lawful title will not be permitted to show that his
possession was hostile to another’s title. One who holds
possession on behalf of another, does not by mere
denial of that other’s title make his possession adverse
so as to give himself the benefit of the statute of
limitation. Therefore, a person who enters into
possession having a lawful title, cannot divest another
of that title by pretending that he had no title at all.”
40.2. This principle was upheld in Mohan Lal v. Mirza Abdul
Gaffar [Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639]
(two-Judge Bench) : (SCC pp. 640-41, para 4)
“4. As regards the first plea, it is inconsistent with the
second plea. Having come into possession under the
agreement, he must disclaim his right thereunder and
plead and prove assertion of his independent hostile
adverse possession to the knowledge of the transferor or
his successor in title or interest and that the latter had
acquiesced to his illegal possession during the entire
period of 12 years i.e. up to completing the period of
his title by prescription nec vi, nec clam, nec precario.
Since the appellant’s claim is founded on Section 53-A,
it goes without saying that he admits by implication that
he came into possession of the land lawfully under the
agreement and continued to remain in possession till
date of the suit. Thereby the plea of adverse possession
is not available to the appellant.”
The Court in Uttam Chand [Uttam Chand v. Nathu Ram, (2020)
11 SCC 263 : (2021) 1 SCC (Civ) 520] has reiterated this principle
of adverse possession.
41. Burden of proof rests on the person claiming adverse
possession.
41.1. This Court in P.T. Munichikkanna Reddy v. Revamma [P.T.
Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59] (two-Judge
Bench), held that initially the burden lay on the landowner to
prove his title and title. Thereafter it shifts on the other party to
prove title by adverse possession. It was observed : (SCC pp. 74-
75, para 34)
“34. The law in this behalf has undergone a change. In
terms of Articles 142 and 144 of the Limitation Act,
1908, the burden of proof was on the plaintiff to show
within 12 years from the date of institution of the suit
that he had title and possession of the land, whereas in
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terms of Articles 64 and 65 of the Limitation Act, 1963,
the legal position has underwent complete change
insofar as the onus is concerned : once a party proves its
title, the onus of proof would be on the other party to
prove claims of title by adverse possession.”
41.2. The Court reiterated this principle in Janata Dal Party v.
Indian National Congress [Janata Dal Party v. Indian National
Congress, (2014) 16 SCC 731 : (2015) 3 SCC (Civ) 767] (two-
Judge Bench) : (SCC p. 736, para 17)
“17. … the entire burden of proving that the possession
is adverse to that of the plaintiffs, is on the defendant.”
42. The State cannot claim the land of its citizens by way of
adverse possession as it is a welfare State. [State of Haryana v.
Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011) 10
SCC 404 : (2012) 3 SCC (Civ) 769] (two-Judge Bench)]”
19. If the facts of this case are considered, then it is clear that initially
Defendant No. 1 – Gajendra Singh had filed Civil Suit No. 214A/1984. The
question of title was answered against Defendant No. 1 – Gajendra Singh, but
his possession was found from the year 1978-79. Litigation started by
Gajendra Singh against Dashrath Singh and Man Singh in the year 1984
came to an end in the year 1999 when Second Appeal No. 11/1993 was
decided by the High Court on 07/12/1999. Thus, it is clear that a suit filed by
Defendant No. 1 – Gajendra Singh was pending between the parties.
Therefore, even if he was in possession, it cannot be said that his possession
was open and hostile to the true owner.
20. Undisputedly, original plaintiff Dashrath Singh filed a suit for
possession in the year 1995, which was dismissed on account of his absence
on 10/05/1999, and thereafter, he filed a fresh suit on 04/02/2000, and the
said suit has been dismissed as not maintainable by order dated 21/10/2005.
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by Man Singh, and Man Singh, in his written statement, had challenged the
sale deed executed by him in favor of Dashrath Singh on the ground that it
was obtained by fraud without making payment of consideration amount, but
at the cost of repetition, it is held that since no counter-claim was filed by
Man Singh in the present suit, therefore, the claim of Man Singh that the sale
deed executed in favor of Dashrath Singh was without any consideration and
was a result of fraud cannot be accepted. Furthermore, the cause of action for
filing a suit by Defendant No. 1 – Gajendra Singh in the year 1984 was that
Man Singh had executed a sale deed in favor of Dashrath Singh and they
were trying to interfere with the possession of Defendant No. 1 – Gajendra
Singh. Even at that time, Man Singh did not challenge the sale deed executed
in favor of Dashrath Singh. Therefore, it is clear that Man Singh had
executed a sale deed in favor of Dashrath Singh and now he cannot take a U-
turn to claim that he is the owner of the land in dispute and he had already
lost all his rights and titles after the execution of sale deed in favor of
Dashrath Singh.
21. Under these circumstances, although it is held that since the
litigation was going on between the parties, therefore, possession of
Defendant No. 1 – Gajendra Singh cannot be said to be open and hostile from
the year 1978-79 to the knowledge of the true owner, but since the suit filed
by true owner, namely Dashrath Singh, for recovery of possession has
already been dismissed, therefore, possession of Defendant No. 1 – Gajendra
Singh has to be protected, and in the light of judgment and decree dated
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once again reiterated that unless and until Defendant No. 1 – Gajendra Singh
is dispossessed in accordance with law, no one can disturb his possession.
22. Now the only question for consideration is as to whether any other
suit can be filed by the legal representatives of Dashrath Singh for recovery
of possession?
23. As already held, suit filed by Dashrath Singh for recovery of
possession has already been dismissed as not maintainable under Order IX
Rule 9 CPC, therefore, even the legal representatives of original plaintiff
Dashrath Singh cannot institute any suit for delivery of possession.
Therefore, it has to be held that now Gajendra Singh cannot be dispossessed,
and for the purposes of this appeal, it is held that under the peculiar facts and
circumstances of the case, it can be said that Defendant No. 1 – Gajendra
Singh has perfected his title by way of adverse possession.
24. The principle of adverse possession is primarily based on the
question of limitation. Article 65 of the Limitation Act provides that the suit
after 12 years of the possession when it became adverse will not be
maintainable. Therefore, the principle of adverse possession is primarily a
bar of limitation against the true owner which extinguishes his remedy of
filing a suit for recovery of possession. Under these circumstances, it is held
that although litigations were going on between the parties and in stricto
sensu it cannot be said that Defendant No. 1 – Gajendra Singh had perfected
his title by way of adverse possession, but it is held that in view of the
peculiar facts and circumstances of the case, the legal representatives of
original plaintiff Dashrath Singh cannot interfere with the peacefulSignature Not Verified
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possession of Defendant No. 1 – Gajendra Singh, and all the legal remedies,
which were available to original plaintiff Dashrath Singh, have become
barred by time.
25. Accordingly, the substantial question of law is answered against
the appellants.
Substantial Question of Law No. (ii)
26. Aforesaid substantial question of law does not arise in the present
case. The suit was filed by Dashrath Singh. The land was already sold by
Defendant No. 2 in favor of plaintiff and a decree was passed by the High
Court against original plaintiff Dashrath Singh as well as Defendant No. 2 –
Man Singh vide judgment and decree dated 07/12/1998 passed in Second
Appeal No. 11/1993 (Exhibit P-10) and possession of Defendant No. 1 –
Gajendra Singh was protected against any coercive actin and it was decreed
that his possession shall not disturb except in accordance with law. The
counter-claim was primarily against the true owner/plaintiff Dashrath Singh.
Even the suit was filed by Dashrath Singh against Defendant No. 1 only, and
Defendant No. 2 was only a formal party, and no relief was claimed against
him. As already held that Man Singh had already sold the property to
Dashrath Singh, and he did not file any counter-claim against Dashrath
Singh, thereby claiming the said sale deed as null and void, therefore, for all
practical purposes, the counter-claim was against plaintiff Dashrath Singh
and not against Defendant No. 2 – Man Singh. Therefore, substantial
question of law No. (ii) does not arise in the present case, and accordingly it
is answered against the appellants.
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Substantial Question of Law No. (iii)
27. So far as substantial question of law No. (iii) is concerned, it is
primarily a question of fact, and no question of law much less substantial
question of law is involved. The Supreme Court in the case of Angadi
Chandranna Vs. Shankar and Others decided on 22/04/2025 in Civil Appeal
No.5401/2025 {Arising out of SLP (C) No.6799 of 2022 }, has held as
under:-
“12. Before delving into the facts of the case, this court in Jaichand
(supra) expressed its anguish at the High Court for not understanding
the scope of Section 100 CPC, which limits intervention only to cases
where a substantial question of law exists, and clarified that the High
Court can go into the findings of facts under Section 103 CPC only
under certain circumstances, as stated in the following passages:
“23. We are thoroughly disappointed with the manner in
which the High Court framed the so-called substantial
question of law. By any stretch of imagination, it cannot be
termed even a question of law far from being a substantial
question of law. How many times the Apex Court should
keep explaining the scope of a second appeal Under Section
100 of the Code of Civil Procedure and how a substantial
question of law should be framed? We may once again
explain the well-settled principles governing the scope of a
second appeal Under Section 100 of the Code of Civil
Procedure.
24. In Navaneethammal v. Arjuna Chetty reported in
MANU/SC/2077/1996 : 1998: INSC: 349 : AIR 1996 S.C.
3521, it was held by this Court that the High Court should
not reappreciate the evidence to reach another possible
view in order to set aside the findings of fact arrived at by
the first appellate Court.
25. In Kshitish Chandra Purkait v. Santosh Kumar Purkait
reported in MANU/SC/0647/1997 : 1997:INSC:487 :
(1997) 5 S.C.C. 438), this Court held that in the Second
Appeal, the High Court should be satisfied that the case
involves a substantial question of law and not mere
question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao
Marnor reported in MANU/SC/0058/1999 : 1999 (2)
S.C.C. 471, this Court held: Keeping in view the
amendment made in 1976, the High Court can exercise its
jurisdiction Under Section 100, Code of Civil Procedure
only on the basis of substantial questions of law which are
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to be framed at the time of admission of the Second Appeal
and the Second Appeal has to be heard and decided only on
the basis of such duly framed substantial questions of law.
A judgment rendered by the High Court Under Section 100
Code of Civil Procedure without following the aforesaid
procedure cannot be sustained.
27. This Court in Kondira Dagadu Kadam v. Savitribai
Sopan Gujar reported in MANU/SC/0278/1999 :
1999:INSC:192 : AIR 1999 S.C. 2213 held: 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.
28. It is thus clear that Under Section 100, Code of Civil
Procedure, the High Court cannot interfere with the
findings of fact arrived at by the first Appellate Court
which is the final Court of facts except in such cases where
such findings were erroneous being contrary to the
mandatory provisions of law, or its settled position on the
basis of the pronouncement made by the Apex Court or
based upon inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere with
the findings of the trial Court on the ground of failure on
the part of the trial as well as the first appellate Court, as the
case may be, when such findings are either recorded
without proper construction of the documents or failure to
follow the decisions of this Court and acted on assumption
not supported by evidence. Under Section 103, Code of
Civil Procedure, the High Court has got power to determine
the issue of fact. The Section lays down: Power of High
Court to determine issue of fact: In any Second Appeal, the
High Court may, if the evidence on the record is sufficient
to determine any issue necessary for the disposal of the
appeal,- (a) Which has not been determined by the lower
Appellate Court or both by 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.
30. In Bhagwan Sharma v. Bani Ghosh reported in
MANU/SC/0094/1993 : AIR 1993 S.C. 398, this Court
held: The High Court was certainly entitled to go into the
question as to whether the findings of fact recorded by the
first appellate court which was the final court of fact were
vitiated in the eye of law on account of non-consideration
of admissible evidence of vital nature. But, after setting
aside the findings of fact on that ground the Court had
either to remand the matter to the first appellate Court for a
rehearing of the first appeal and decision in accordance
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with law after taking into consideration the entire relevant
evidence on the records, or in the alternative to decide the
case finally in accordance with the provisions of Section
103(b). …… If in an appropriate case the High Court
decides to follow the second course, it must hear the parties
fully with reference to the entire evidence on the records
relevant to the issue in question and this is possible if only
a proper paper book is prepared for hearing of facts and
notice is given to the parties. The grounds which may be
available in support of a plea that the finding of fact by the
court below is vitiated in law does not by itself lead to the
further conclusion that a contrary finding has to be finally
arrived at on the disputed issue. On a reappraisal of the
entire evidence the ultimate conclusion may go in favour of
either party and it cannot be prejudged.
31. In the case of Hero Vinoth v. Seshammal reported in
MANU/SC/2774/2006 : 2006:INSC:305 : (2006) 5 SCC
545 this Court explained the concept in the following
words: It must be tested whether the question is of general
public importance or whether it directly and substantially
affects the rights of the parties. Or whether it is not finally
decided, or not free from difficulty or calls for discussion of
alternative views. If the question is settled by the highest
court or the general principles to be applied in determining
the question are well settled and there is a mere question of
applying those principles or that the plea raised is palpably
absurd the question would not be a substantial question of
law.
32. It is not that the High Courts are not well-versed with
the principles governing Section 100 of the Code of Civil
Procedure. It is only the casual and callous approach on the
part of the courts to apply the correct principles of law to
the facts of the case that leads to passing of vulnerable
orders like the one on hand.”
12.1. In the present case, in our view, the so-called substantial question
of law framed by the High Court does not qualify to be a substantial
question of law, rather the exercise of the High Court is a venture into
the findings of the First Appellant Court by re-appreciation of
evidence. It is settled law that the High Court can go into the findings
of facts only if the First Appellate Court has failed to look into the law
or evidence or considered inadmissible evidence or without evidence.
Section 103 permits the High Court to go into the facts only when the
courts below have not determined or rendered any finding on a crucial
fact, despite evidence already available on record or after deciding the
substantial question of law, the facts of a particular case demand re-
determination. For the second limb of Section 103 to apply, there must
first be a decision on the substantial question of law, to which the facts
must be applied, to determine the issue in dispute. When the First
Appellate Court in exercise of its jurisdiction has considered the entire
evidence and rendered a finding, the High Court cannot re-appreciate
the evidence just because another view is possible, when the view
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taken by the First Appellate Court is plausible and does not suffer
from vice in law. When the determination of the High Court is only by
way of re-appreciation of the existing evidence, without there being
any legal question to be answered, it would be axiomatic that not even
a question of law is involved, much less a substantial one. It will be
useful to refer to another judgment of this Court in Chandrabhan
(Deceased) through L.Rs & Ors. v. Saraswati & Ors.11, wherein it
was held as follows:
“33. The principles relating to Section 100 of the Code of Civil
Procedure relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the
terms of a document is a question of law. Construction of a
document involving the application of any principle of law,
is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material
bearing on the decision of the case (that is, a question,
answer to which affects the rights of parties to the suit) will
be a substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle
emerging from binding precedents and involves a debatable
legal issue. A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either
on account of express provisions of law or binding
precedents, but the court below has decided the matter,
either ignoring or acting contrary to such legal principle. In
the second type of cases, the substantial question of law
arises not because the law is still debatable, but because the
decision rendered on a material question, violates the
settled position of law.
(iii) The general Rule is that the High Court will
not interfere with findings of facts arrived at by
the courts below. But it is not an absolute rule.
Some of the well-recognised exceptions are
where (i) the courts below have ignored material
evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts
by applying the law erroneously; or (iii) the
courts have wrongly cast the burden of proof.
When we refer to “decision based on no
evidence”, it not only refers to cases where
there is a total dearth of evidence, but also refers
to any case, where the evidence, taken as a
whole, is not reasonably capable of supporting
the finding.
34. In this case, it cannot be said that the First Appellate
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Court acted on no evidence. The Respondents in their
Second Appeal before the High Court did not advert to any
material evidence that had been ignored by the First
Appellate Court. The Respondents also could not show that
any wrong inference had been drawn by the First Appellate
Court from proved facts by applying the law erroneously.
35. In this case, as observed above, evidence had been
adduced on behalf of the Original Plaintiff as well as the
Defendants. The First Appellate Court analysed the
evidence carefully and in effect found that the Trial Court
had erred in its analysis of evidence and given undue
importance to discrepancies and inconsistencies, which
were not really material, overlooking the time gap of 34
years that had elapsed since the date of the adoption. There
was no such infirmity in the reasoning of the First
Appellate Court which called for interference.
36. Right of appeal is not automatic. Right of appeal is
conferred by statute. When statute confers a limited right of
appeal restricted only to cases which involve substantial
questions of law, it is not open to this Court to sit in appeal
over the factual findings arrived at by the First Appellate
Court.”
12.2. In the present case, the First Appellate Court analyzed the entire
oral evidence adduced by both parties, as well as the documentary
evidence relied upon by either side, and dismissed the suit. The
authority to re-consider the evidence is available only to the First
Appellate Court under Section 96 and not to the High Court in
exercise of its authority under Section 100, unless the case falls under
the exceptional circumstances provided under Section 103. While so,
the re-appreciation of the entire evidence, including the contents of the
exhibits, reliance on and wrongful identification of a different property
and treating the same to be the suit property actually in dispute to
prescribe another view without any substantial question of law, only
illustrate the callousness of the High Court in applying the settled
principles. Therefore, the High Court erred in setting aside the
judgment and decree of the First Appellate Court.”
The Supreme Court in the case of Joseph (supra) has held as under:
“Consideration by this Court
16. In deciding the present dispute, this Court must examine the same
from two angles. One, whether the judgment impugned, arising out of
second appeal meets the established criteria for second appeal or not?;
and two, whether the respondents herein are entitled to the relief of
adverse possession or is the claim so made, barred by the Kerala Land
Conservancy Act, 1957?
17. For an appeal to be maintainable under Section 100, Code of Civil
Procedure (“CPC” for brevity) it must fulfil certain well-established
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that qualifies this criterion has been time and again reiterated by this
Court. We may only refer to Santosh Hazari v. Purushottam Tiwari
[Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] (three-
Judge Bench) wherein this Court observed as follows : (SCC pp. 186-
88, paras 12 & 14)
“12. The phrase “substantial question of law”, as occurring
in the amended Section 100 is not defined in the Code. The
word substantial, as qualifying “question of law”, means —
of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as
something in contradistinction with — technical, of no
substance or consequence, or academic merely. However,
it is clear that the legislature has chosen not to qualify the
scope of “substantial question of law” by suffixing the
words “of general importance” as has been done in many
other provisions such as Section 109 of the Code or Article
133(1)(a) of the Constitution. The substantial question of
law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general
importance.
***
14. A point of law which admits of no two opinions may be
a proposition of law but cannot be a substantial question of
law. To be “substantial” a question of law must be
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on the
decision of the case, if answered either way, insofar as the
rights of the parties before it are concerned. To be a
question of law “involving in the case” there must be first a
foundation for it laid in the pleadings and the question
should emerge from the sustainable findings of fact arrived
at by court of facts and it must be necessary to decide that
question of law for a just and proper decision of the case.
An entirely new point raised for the first time before the
High Court is not a question involved in the case unless it
goes to the root of the matter. It will, therefore, depend on
the facts and circumstance of each case whether a question
of law is a substantial one and involved in the case, or not;
the paramount overall consideration being the need for
striking a judicious balance between the indispensable
obligation to do justice at all stages and impelling necessity
of avoiding prolongation in the life of any lis.”
(emphasis supplied)
The principles laid down herein stood recently reiterated in
Chandrabhan v. Saraswati [Chandrabhan v. Saraswati, (2022) 20 SCC
199 : 2022 SCC OnLine SC 1273] (two-Judge Bench).
18. A perusal of the judgment impugned [Joseph v. State of Kerala,
2009 SCC OnLine Ker 3592] does not reflect any question of law,
either substantial or “involving in the case” to have been framed by the
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26 SA-95-2010
court in the second appeal. The Section 100CPC jurisdiction is not
akin to the jurisdiction conferred under Section 96CPC wherein it is
open for the court to consider both questions of fact and law. This
jurisdiction is exercisable only when the court is convinced that the
dispute at hand involves a substantial question of law, and proceeding
under this jurisdiction sans framing questions of such nature renders
the proceedings to be “patently illegal”. Umerkhan v. Bismillabi
[Umerkhan v. Bismillabi, (2011) 9 SCC 684 : (2011) 4 SCC (Civ)
823] (two-Judge Bench)
19. Recently, a Bench of two learned Judges in Singaram v.
Ramanathan [Singaram v. Ramanathan, (2023) 17 SCC 422] held as
under : (SCC para 11)
“11. This is undoubtedly subject to various well known
exceptions which, however, cannot permit the second
appellate court to interfere with the findings of fact as a
matter of course. Such restrictions are placed on the High
Court in order [Ramanathan v. Singaram, 2018 SCC
OnLine Mad 14000] that there is finality to litigation at a
particular level in the hierarchy of Courts. The limitation
on the exercise of power by the High Court in the second
appeal interfering with the judgment of the first appellate
court is premised on high public policy. This limitation is
sought to be secured by insisting upon the requirement that
a second appeal is considered only when there is a
substantial question of law. Therefore, the existence of
substantial question of law and the judgment which
revolves around answering the substantial questions of law
are not mere formalities. They are meant to be adhered to.”
(emphasis supplied)
20. In view of the principles laid down in the abovestated judgments,
the impugned judgment [Joseph v. State of Kerala, 2009 SCC OnLine
Ker 3592] must be faulted with for not complying with the well-
established contours of Section 100CPC.”
28. Even otherwise, this Court has elaborately considered the case of
the parties.
29. Furthermore, it is not out of place to mention here that appellants
had also filed a civil suit No. 114A/2009 for declaration of title as well as
possession against Defendant No. 1 – Gajendra Singh and the LRs of
Dashrath Singh, primarily for declaration that the sale deed dated 29/11/1977
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NEUTRAL CITATION NO. 2026:MPHC-GWL:10003
27 SA-95-2010
executed by Man Singh in favor of Dashrath Singh is null and void as well as
for recovery of possession from Defendant No. 1 – Gajendra Singh. The said
civil suit was dismissed by the Third Civil Judge, Class-II, Ganj Basoda,
District Vidisha by judgment and decree dated 03/09/2012. Being aggrieved
by said judgment and decree, appellants preferred Civil Appeal No.
14A/2013 which was also dismissed by the Second Additional District
Judge, Ganj Basoda, District Vidisha by judgment and decree dated
08/05/2013. The judgments passed by the Trial Court as well as the
Appellate Court were challenged by appellants by filing Second Appeal No.
282/2013, which has been dismissed by this Court by judgment dated
29/01/2026, and thus, it is held that appellants have also lost all their
remedies for declaration of sale deed dated 29/11/1977 executed by Man
Singh in favor of Dashrath Singh as null and void.
30. Under these circumstances, this Court is of considered opinion that
all the three substantial questions of law are to be answered against the
appellants, and therefore, they are answered in Negative.
31. No other argument is advanced by counsel for appellants.
32. As no case is made out for interference, accordingly, judgment and
decree dated 19/01/2010 passed by Second Additional District Judge (Fast
Track Court), Ganj Basoda, District Vidisha in Regular Civil Appeal No.
24A/2009, is hereby affirmed.
33. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
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AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 24-03-2026
05:27:16 PM