Daulat Bai vs Gajendra Singh on 16 March, 2026

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    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.

    SPONSORED

    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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    2 SA-95-2010
    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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    6 SA-95-2010
    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)

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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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    15 SA-95-2010
    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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    16 SA-95-2010
    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.
    It was the case of Dashrath Singh that the property in dispute was sold to him

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    17 SA-95-2010
    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
    07/12/1999 passed by the High Court in Second Appeal No. 11/1993, it is

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    18 SA-95-2010
    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 peaceful

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    19 SA-95-2010
    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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    21 SA-95-2010
    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
    requirements. The primary and most important of them all is that the
    appeal should pose a substantial question of law. The sort of question

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    25 SA-95-2010
    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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    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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    28 SA-95-2010
    AKS

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