Basantibai Bewa And Others vs Radheshyam

Alok Awasthi, J

Heard on the question of admission.

This Second appeal under Section 100 of Civil Procedure Code (for brevity, CPC), 1908 has been filed by the appellant against the judgment and decree dated 11.03.2025, passed by the Ist District Judge, District Badwani in Regular Civil Appeal No. 11/2024, confirming the Judgment and decree dated 11.04.2023, passed by learned First Civil Judge, Junior Division, District Badwani in Civil Suit No. RCS-A/22/2019 wherein the Trial Court has decreed the plaintiff/respondent suit for declaring the plaintiff/respondent as owner of the suit property.

3 . Necessary facts for disposal of this appeal, in brief are that the respondent/plaintiff was allotted Plot No. 12 admeasuring 5400 sq. ft. at Village Aavali by the Land Acquisition and Rehabilitation Officer after his residential house was acquired by the Government, treating him as a displaced person. In the year 2008, the respondent/plaintiff raised construction on a portion of the western side of the plot, leaving the remaining eastern portion vacant. Subsequently, during the year 2009–10, further construction was raised on the eastern portion of the plot.

4 . The appellants/defendants are close relatives of the respondent/plaintiff. According to the respondent/plaintiff, the appellants/defendants were permitted to occupy the eastern portion of the house in April 2018 only for the purpose of performing the marriage ceremony of appellant/defendant No. 2, on the assurance that possession would be handed back after the ceremony. However, despite the marriage being solemnized on 14.04.2018, the appellants/defendants allegedly failed to vacate the premises.

5 . The respondent/plaintiff claimed that the said permission was a license which was revoked by legal notice dated 25.06.2019. As the appellants/defendants did not vacate the disputed portion even thereafter, the respondent/plaintiff instituted a civil suit seeking possession of the disputed house along with compensation.

6 . The appellants/defendants contested the suit by denying the allegation of permissive possession and pleaded that the respondent/plaintiff had, due to financial need, sold the eastern portion of the plot to the husband of appellant/defendant No. 1 under an agreement to sale dated 10.02.2009 for a consideration of Rs. 90,000/-. It was further pleaded that after execution of the said agreement, the purchaser constructed a tin shed and remained in possession along with his family. After his death in the year 2013, the appellants/defendants continued in possession, raised permanent construction, obtained electricity connection in their own names, and resided peacefully without objection for several years.

It was further pleaded that the suit filed by the respondent/plaintiff was barred by limitation, undervalued, and not maintainable, and that the respondent/plaintiff had no right to seek possession after remaining silent for several years despite the appellants’ open and continuous possession.

8 . The learned Trial Court, by judgment dated 11.04.2023, partially decreed the suit in favour of the respondent/plaintiff. Aggrieved thereby, the appellants/defendants preferred a first appeal, Civil Regular Appeal No. 11/2024. The First Appellate Court, by judgment dated 11.03.2025, dismissed the appeal, held the agreement dated 10.02.2009 to be inadmissible for want of registration and proper stamping, and affirmed the findings of the Trial Court.

Being aggrieved by the concurrent findings and judgments passed by the Courts below, the appellants/defendants have preferred the present Second Appeal.

Learned counsel for the appellant submitted that the findings of the learned Courts below were incorrect in the eyes of law and facts. He has also argued that the Court below committed a legal error in dismissing the appeal by ignoring the fact that the appellant had constructed a house after notarizing the plot, believing that the appellant was a close relative, and he had been residing in the same house since 2008 till date. The appellant has already obtained an electricity connection at the claimed house, and electricity is only available upon submission of a deed of ownership to the Electricity Department. The appellant's electricity connection is quite old, and the lower court erred in dismissing the appeal by ignoring this fact. On the aforesaid grounds, learned counsel has requested to allow the second appeal and set aside the impugned order of learned Appellate Court.

Heard learned counsel for the appellant and perused the record.

12 . The Second Appeal is filed under the provisions of Section 100 of CPC which provides that Second Appeal is entertainable by the High Court if it is satisfied that the case involves a substantial question of law. Section 101 of Code Of Civil Procedure, 1908-Section provides that no second appeal shall lie except on the ground mentioned in section 100 of CPC.

13 . At the outset the question of entertaining the second appeal is required to be considered. On this aspect the Hon'ble Supreme Court in the case of Municipal Committee, Hoshiarpur Vs. Punjab SEB, reported in (2010) 13 SCC 216 has held as under:-

“16. Thus, it is evident from the above that the right to appeal is a creation of statute and it cannot be created by acquiescence of the parties or by the order of the court. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature and conferring a court or authority with jurisdiction, is a legislative function. Thus, being a substantive statutory right, it has to be regulated in accordance with the law in force, ensuring full compliance with the conditions mentioned in the provision that creates it. Therefore, the court has no power to enlarge the scope of those grounds mentioned in the statutory provisions. A second appeal cannot be decided merely on equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The Court cannot entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second appeal; on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under the provisions of Section 100 CPC. It is the obligation on the court to further clear the intent of the legislature and not to frustrate it by ignoring the same. (Vide Santosh Hazari v . Purshottam Tiwari; Sarjas Rai v . Bakshi Inderjit Singh; Manicka Poosali v . Anjalai Ammal; Sugani v. Rameshwar Das ; Hero Vinoth v. Seshammal; P. Chandrasekharan v. S. Kanakarajan ; Kashmir Singh v. Harnam Singh; V. Ramaswamy v. Ramachandran and Bhag Singh v. Jaskirat Singh.)

In Mahindra & Mahindra Ltd. v. Union of India, AIR 1979 SC 798, this Court observed :

“12. … it is not every question of law that could be permitted to be raised in the second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in subsection (5) of Section 100 CPC. Under the proviso, the Court should be ‘satisfied’ that the case involves a ‘substantial question of law’ and not a mere ‘question of law’. The reason for permitting the substantial question of law to be raised, should be ‘recorded’ by the Court. It is implicit therefrom that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not any legal plea that would be alleged at the stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded.” [Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438, pp. 445- 46, para 10].

In Madamanchi Ramappa v. Muthaluru Bojjappa, AIR 1963 SC 1633, this Court observed:-

“12 . … Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Section 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.”

In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court held as under:

“6. … it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible - it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection.”

Further Hon'ble Apex Court endorsing its another judgment pen down as under:

In Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs & Ors., AIR 2001 SC 1273, this Court observed as under:-

“34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication — what is required is a categorical finding on the part of the High Court as to perversity.

… The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with.”

In view of the aforesaid principle settled by Hon'ble Apex Court, every question of law could not be permitted to be raised in Second Appeal, there ought to be substantial question of law for entertaining such appeal and such appeal is entertainable in very exceptional cases and on extreme perversity. It is a rarity rather then regularity but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, then Second Appeal should be entertained. In other words, perversity itself is a substantial question worth adjudication. Here in this appeal, it is to be seen as to whether any perversity was committed by the Courts below and as to whether any substantial question of law is involved in this Second Appeal?

So far as the 'perversity' is concerned, the Supreme Court in the case of Damodar Lal Vs. Sohan Devi and others reported in (2016) SCC 78 has held as under :-

"8. ‘Perversity’ has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.

In Krishnan v. Backiam and another [2207 INSC 908], it has been held at paragraph-11 that:

“11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. …”

In Gurvachan Kaur vs. Salikram (Dead) through Lrs. [ 2010 (15) SCC 530] this principle has been reiterated:

"It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and defendant and default committed by the latter in payment of rent."

Hon'ble Apex Court in the case of Pakeerappa Rai Vs. Seethamma Hengsu Dead by L.R.s and others reported in (2001) 9 SCC 521 has again held as under :

" 2...But the High Court in exercise of power under Section 100 CPC cannot interfere with the erroneous finding of fact howsoever the gross error seems to be...."

Further in this context, Hon'ble Supreme Court, in the case of Gurdev Kaur vs. Kaki reported in (2007) 1 SCC 546, has held as under :.

" 46. In Bholaram v. Amirchand (1981) 2 SCC 414 a three- Judge Bench of this Court reiterated the statement of law. The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.

In Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438], a three judge Bench of this Court held: (a) that the High Court should be satisfied that the case involved a substantial question of law and not mere question of law; (b) reasons for permitting the plea to be raised should also be recorded; (c) it has the duty to formulate the substantial questions of law and to put the opposite party on notice and give fair and proper opportunity to meet the point. The Court also held that it is the duty cast upon the High Court to formulate substantial question of law involved in the case even at the initial stage.

This Court had occasion to determine the same issue in Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor (1999) 2 SCC 471. The Court stated that the High Court can exercise its jurisdiction under Section 100 C.P.C. only on the basis of substantial questions of law which are 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 the such duly framed substantial questions of law.

A mere look at the said provision shows that the High Court can exercise its jurisdiction under Section 100 C.P.C. only on the basis of substantial questions of law which are 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. The impugned judgment shows that no such procedure was followed by the learned Single Judge. It is held by a catena of judgments by this Court, some of them being, Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438 and Sheel Chand v. Prakash Chand (1998) 6 SCC 683 that the judgment rendered by the High Court under Section 100 C.P.C. without following the aforesaid procedure cannot be sustained. On this short ground alone, this appeal is required to be allowed.

In Kanai Lal Garari v. Murari Ganguly (1999) 6 SCC 35 the Court has observed that it is mandatory to formulate the substantial question of law while entertaining the appeal in absence of which the judgment is to be set aside. In Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 713 and Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 the Court reiterated the statement of law that the High Court cannot proceed to hear a second appeal without formulating the substantial question of law. These judgments have been referred to in the later judgment of K. Raj and Anr. v. Muthamma (2001) 6 SCC 279. A statement of law has been reiterated regarding the scope and interference of the Court in second appeal under Section 100 of the Code of Civil Procedure.

Again in Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. (2001) 3 SCC 179, another three-Judge Bench of this Court correctly delineated the scope of Section 100 C.P.C.. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court 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 of Article 133(1) (a) of the Constitution.

In Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001) 5 SCC 311 the Court came to the conclusion that the finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding.

In Thiagarajan v. Sri Venugopalaswamy B. Koil [(2004) 5 SCC 762], this Court has held that the High Court in its jurisdiction under Section 100 C.P.C. was not justified in interfering with the findings of fact. The Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.

In the same case, this Court observed that in a case where special leave petition was filed against a judgment of the High Court interfering with findings of fact of the lower Appellate Court. This Court observed that to say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court further observed that the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible.

This Court again reminded the High Court in Commissioner, Hindu Religious & Charitable Endowments v. P. Shanmugama [(2005) 9 SCC 232] that the High Court has no jurisdiction in second appeal to interfere with the finding of facts.

Again, this Court in the case of State of Kerala v. Mohd. Kunhi [(2005) 10 SCC 139] has reiterated the same principle that the High Court is not justified in interfering with the concurrent findings of fact. This Court observed that, in doing so, the High Court has gone beyond the scope of Section 100 of the Code of Civil Procedure.

Again, in the case of Madhavan Nair v. Bhaskar Pillai [(2005) 10 SCC 553], this Court observed that the High Court was not justified in interfering with the concurrent findings of fact. This Court observed that it is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.

Again, in the case of Harjeet Singh v. Amrik Singh [(2005) 12 SCC 270], this Court with anguish has mentioned that the High Court has no jurisdiction to interfere with the findings of fact arrived at by the first appellate court. In this case, the findings of the Trial Court and the lower Appellate Court regarding readiness and willingness to perform their part of contract was set aside by the High Court in its jurisdiction under Section 100 C.P.C.. This Court, while setting aside the judgment of the High Court, observed that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the Courts below.

In the case of H. P. Pyarejan v. Dasappa [(2006) 2 SCC 496] delivered on 6.2.2006, this Court found serious infirmity in the judgment of the High Court. This Court observed that it suffers from the vice of exercise of jurisdiction which did not vest in the High Court. Under Section 100 of the Code (as amended in 1976) the jurisdiction of the Court to interfere with the judgments of the Courts below is confined to hearing of substantial questions of law. Interference with the finding of fact by the High Court is not warranted if it invokes reappreciation of evidence. This Court found that the impugned judgment of the High Court was vulnerable and needed to be set aside.

With regard to fact findings of trial Court as well as the appellate Court in order to frame substantial question law in second appeal, the following view of the Hon'ble Apex Court rendered in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar; (1999) 3 SCC 722, is condign to quote here under:-

"5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. 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.

If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey [AIR 1976 SC 830]held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference"

In this regard, in the case of Laxmidevamma v. Ranganath; (2015) 4 SCC 264, again the Apex court has held as under:-

"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plain-tiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."

So also the Hon'ble Apex Court in case of Adiveppa & Others Vs. Bhimappa & Others; (2017) 9 SCC 586 has held as under:-

"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.

It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."

20 . In the present case, learned trial Court has found that the respondent/plaintiff is the owner of the disputed house. The defendants have not acquired any ownership rights over the disputed property. The respondent/plaintiff licensed the disputed property to the defendants for use on 01.04.2018, and the license was subsequently revoked by a notice dated 25.06.2019. Therefore, the petitioners/defendants' current possession of the disputed site would be illegal, and the respondent is entitled to obtain possession of the disputed property from the defendants by way of an injunction, but is not entitled to compensation @ Rs.10,000/- per month. Learned first Appellate Court has also affirmed the findings of the learned Trial Court, recorded on the relevant issues.

The learned Trial Court as well as the learned Appellate Court have discussed the oral and documentary evidence in proper perspective of law and thereafter as per the concurrent findings, it is conclusively established that the respondent/plaintiff is the lawful owner of the disputed property and that the appellants/defendants were permitted to occupy the same merely as licensees. Upon revocation of the licence by legal notice dated 25.06.2019, the appellants/defendants were under a legal obligation to hand over vacant possession. Their continued occupation thereafter is unauthorized and illegal.

The respondent/plaintiff, having instituted the suit promptly after revocation of the licence, is entitled to recovery of possession by way of mandatory injunction, the suit being within limitation and properly valued in accordance with Section 7(iv)(d) of the Court Fees Act, 1870. However, in the absence of cogent evidence establishing actual monetary loss or mesne profits, the claim for compensation at the rate of Rs. 10,000/- per month is unsustainable.

23 . The learned Appellate Court has also considered the whole evidence of the case and after that, affirmed the findings of the learned Trial Court. Hence, the concurrent findings of the facts recorded by the two Courts, do not involved any question of law much less substantial question of law. The concurrent finding has also binding effect over this Court.

Accordingly, this Court is of the view that concurrent findings of trial Court as well as Appellate Court do not warrant any interference and in the result thereof, this Second Appeal is hereby dismissed.