Rasu and Ors. Vs Keshav Ram

¶1

2026:HHC:7497

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

RSA No. 150/2021 Decided on: 11.03.2026

¶4

Rasu & ors. ..…Appellants Versus Keshav Ram …..Respondent

¶5

Coram

¶6

The Hon’ble Mr. Justice Romesh Verma, Judge.

¶7

Whether approved for reporting ?¹ Yes

¶8

For the appellants: Mr. Aryan Manta, Advocate, vice Mr. Rakesh Manta, Advocate. For the respondent: Mr. V S. Chauhan, Sr. Advocate with Mr. Vikas Shyam, Advocate.

¶9

Romesh Verma, Judge

¶10

The present appeal arises out of the judgment and decree, dated 08.07.2021 as passed by the learned District Judge (Forests), Shimla, H.P. in C. A. No. 08/2019, whereby the appeal preferred by the present appellants/defendants has been ordered to be dismissed and the judgment and decree dated 19.09.2016, as passed by the learned Civil Judge (Jr. Div.), Court No.2, Rohru, District Shimla, H.P.

¶11

1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

¶12

2

¶13

have been affirmed whereby the suit filed by the plaintiff/ respondent for possession of the suit land was decreed.

¶14

2 Brief facts of the case are that the

¶15

plaintiff/respondent filed a suit in the Court of learned Civil Judge (Junior Division), Court No.2, Rohru, on 18.11.2011 for possession of the suit land. It was averred in the plaint that late Jamku, son of Late Jamalu, was the recorded owner in possession of the land bearing Khasra No. 1042, area measuring 2-06 along with other pieces of land as the same was purchased by the deceased from one late Liaqui Ram, resident of Village Kindari. After the death of late Sh. Jamku, necessary mutation of inheritance was attested in favour of the plaintiff along with other co-sharers and the same is reflected in the jamabandi for the year 2004-05.

¶16

3 It has been averred in the plaint that after purchase of the suit land, the predecessor-in-interest of the plaintiff became exclusive owner in possession of the suit property. Earlier, suit land was shown as Khasra No. 1042, during settlement operation, Khasra Nos. 1463, 1464 and 1465 have also been shown to be part of the original Khasra number 1042. It has been further averred that till his death, i.e. during the month of April, 2010, Jamku remained owner

¶17

in possession of the suit land and the revenue entries shown

¶18

3

¶19

by the settlement staff is wrong and contrary to the spot. After the death of Jamku, the defendants at the back of the plaintiff forcibly and un-authorizedly took possession of the suit land on the basis of the wrong revenue entries. When wrong entries were detected, the predecessor-in-interest of the defendants, Balku, was requested to hand over the possession, he refused to do so. Therefore, under such circumstances, suit for possession was filed by the plaintiff seeking decree for vacant possession of the land bearing Khasra Nos. 1463, 1464 and 1465 measuring 00-07-27 hectares comprised in Khata Khatoni No. 192/452, situated in Chak Jharkot, Tehsil Chirgaon, Distt. Shimla, H.P. with further prayer that defendants be directed to demolish temporary structure as raised over the suit land.

¶20

4 The suit was contested by the

¶21

defendants/appellants by raising preliminary objections qua maintainability, cause of action, estoppel, locus standi, etc. On merits, it was averred that the suit land never remained in possession of Liaqui Ram. In the year 1954, defendants’ grandfather, namely, Sh. Nesru had taken Rs.40/- from Liaqui Ram for marriage of Jamku. Thereafter, in the year 1958, the amount was refunded to Liaqui Ram from joint fund of the family as the original defendant and father of the

¶22

4

¶23

plaintiff were real brothers and family was joint. The defendants specifically refuted claim of the plaintiff that Jamku became exclusive owner in possession of the suit property and on the contrary it was stated that Jamku never remained in possession of the suit land. Plea was taken by the defendants that the suit land is in continuous possession of the defendants till date and the possession of the defendants is open, long, continuous and without interruption to the knowledge of the plaintiff, hence they have acquired title with efflux of time and defendants have become owner by way of adverse possession.

¶24

5 Further, it has been averred in the written statement that in order to avoid any conflict between the family members, the plaintiff’s father and the original defendant entered into family settlement on 25.12.1958 and in the family settlement, suit land fell to the share of the defendants and the separate possession of the suit land was handed over to the defendants on the spot in pursuance to such family arrangement. Entries showing the plaintiff and other co-sharers to be owners of the suit land are wrong, illegal, baseless and contrary to the spot . Therefore, denying the title of the plaintiff, the defendants set up the

¶25

5

¶26

plea of adverse possession and prayed for dismissal of the suit filed by the plaintiff.

¶27

6 The plaintiff filed replication to the written statement filed by the defendants and all the averments as made in the plaint were reiterated.

¶28

7 The learned trial court on 16.05.2012 framed the following issues:-

¶29

1. Whether a decree for vacant possession of the land comprised in Khasra No. 1463, 1464 and 1465 Kita 3 measuring 00-07-27 hectares comprised in K.K. No.192/452 situated in Chak Jharkot be passed in favour of the plaintiff and against the defendants as the same will be for the benefit of all the coowners, as prayed for? OPP.

¶30

2. Whether the defendant be directed to demolish the temporary structure so raised over the land in suit at his costs and in case he fails to do so the cost of the same to be incurred in the said process may also be recovered from the defendant, as prayed for? OPP.

¶31

3. Whether the suit is not maintainable, as alleged? OPD.

¶32

4. Whether no cause of action has accrued in favour of plaintiff, as alleged? OPD.

¶33

5. Whether the plaintiff is estopped by his own acts, conduct, deeds and acquiescence to file the present suit, as alleged? OPD.

¶34

6

¶35

6. Whether plaintiff has no locus standi

¶36

to file the present suit, as alleged? OPD.

¶37

7. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPP.

¶38

8. Whether the defendants had become owner of the suit land by way of adverse possession, as alleged? OPD.

¶39

9. Relief.

¶40

8 The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial court vide its judgment and decree dated 19.09.2016 decreed the suit of the plaintiff/respondent for possession and it was held that the plaintiff is having valid, legal title to the suit land and hence he is entitled to the possession of the same. Further, the appellants/defendants were directed to remove the temporary structure created on the suit land at their own cost and in case they failed to do so, the cost of the same was ordered to be recovered from them.

¶41

9 The defendants, feeling dissatisfied by the judgment and decree, dated 19.09.2016, as passed by the learned trial court, preferred an appeal before the learned first Appellate Court on 13.06.2019, which came to be dismissed vide judgment and decree dated 08.07.2021.

¶42

7

¶43

10 Now, aggrieved by the aforesaid judgments and decrees, the appellants/defendants have preferred the present regular second appeal, in which notices were issued to the respondent/plaintiff on 04.09.2021 and pursuant to that learned counsel for the respondent put in appearance and thereafter the case was listed for admission hearing.

¶44

11 It is contended by Mr. Aryan Manta, Advocate, vice Mr. Rakesh Manta, appearing for the defendants/ appellants that the judgments and decrees as passed by the learned courts below are perverse and without any evidence. He submits that the learned courts below have not appreciated the oral as well as documentary evidence on record and has erred in decreeing the suit filed by the plaintiff/respondent for possession. He further submits that the learned courts below have misconstrued and misinterpreted documentary evidence placed on record, whereby the defendants/appellants were able to establish plea of adverse possession over the suit land.

¶45

12 On the other hand, Mr. Virender Singh Chauhan, learned Senior Advocate, duly assisted by Mr. Ajay Singh Kashyap, Advocate, appearing for the plaintiff/respondent, has defended the judgments and decrees passed by the learned courts below. He submits that the case as set up by

¶46

8

¶47

the plaintiff is supported by cogent and authentic evidence placed on record, therefore, findings as returned by the courts below are legal, valid and sustainable and do not call for any interference. He further submits that the findings as returned by the learned courts below are finding of fact, therefore, no question of law much less substantial question of law arises in the instant appeal and the same deserves to be dismissed.

¶48

13 I have heard the learned counsel for the parties and have also gone through the material available on record.

¶49

14 With the consent of the parties, the case is heard finally at the admission stage.

¶50

15 It is the case of the plaintiff/respondent that his predecessor-in-interest, Jamku, was the owner of the suit property and for that purpose, he has placed on record a copy of jamabandi for the year 2004-05, which shows Jamku to be owner of the suit property comprised in Khasra Nos.1463, 1464 and 1465. Further, copy of the mutation, has also been exhibited as Ext.PW1/C, whereby Jamku has been shown to be owner of the suit land. Ext. PW1/D is copy of the jabamandi for the year 1980-81, which also reflects Jamku to be owner in possession of the suit property.

¶51

9

¶52

16 The controversy between the parties arose

¶53

when in the column of the possession, the defendants were entered as per jamabandi for the year 2004-05, wherein original defendant, namely, Balku, son of Jamlu, was shown to be in possession of the suit land.

¶54

17 The plaintiff has primarily based his case on the basis of the title and it is the case of the plaintiff that in the the month of April 2010 when his predecessor-in-interest expired, the defendants illegally tresspassed over the suit land and took its forcible possession.

¶55

18 As regards the defendants/appellants, their defence in the instant case is primarily based on the adverse possession. In the written statement, plea of adverse possession has been set up by the defendants and apart from that, plea has also been taken that the suit land was given to the defendants in the family partition, which took place between the family members of the parties on 25.12.1958, thereafter they are in possession of the suit land.

¶56

19 It has been alleged by the defendants/appellants that the suit land never remained in possession of Liaqui Ram. In the year 1954, Nesru, grandfather of the original defendant, had taken Rs.40/- from Liaqui Ram as money was required for the marriage of Jamku and due to such reason

¶57

10

¶58

in the revenue record name of Liaqui Ram exists. Thereafter, in the year 1958, the amount was refunded to Liaqui Ram from joint family funds.

¶59

20 In common parlance, once the defendants/appellants have set up plea of adverse possession, it is presumed that the defendants have accepted title of the plaintiff/respondent. However, the defendants/respondents have set up their title on the basis of the family partition alleged to have taken place between the family members on 25.12.1958.

¶60

21 As noticed above, the defendants/respondents have tried to project their case on the basis of the ownership by alleging that in the family partition, the suit land was given to them in the year 1958 and the defendants were put in possession in the said year itself, however, from the perusal of the revenue record, said story as projected in the written statement is falsified since the defendants have relied primarily on the copy of missal haquiat bandobast jadid, which is based upon the record prepared during the settlement operation. On the one hand, plea has been set up that they are in possession of the suit land since 1958 and on the other hand, they are relying upon the record prepared during the recent settlement.

¶61

11

¶62

22 The Hon’ble Supreme Court in its catena of decisions has categorically held that the plea of title and adverse possession is mutually destructive and inconsistent and the latter does not begin to operate until the former is renounced.

¶63

23 The Hon’ble Supreme Court in Narasamma and others vs. A. Krishnappa (dead) through Legal

¶64

Representatives, (2020) 15 SCC 218, has held as under:-

¶65

“33. In Karnataka Board of Wakf case case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that “….the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.”

¶66

24 This Court also in case titled as Surinder Prasad

¶67

and another vs. Madhur Green and another, 2019(1) Civil Court Case, 182 has held as under:

¶68

“9. At the outset, it may be observed that the defendants had even raised the plea of adverse possession and obviously they acknowledged and attorned to the title of the plaintiff. It is more than settled that whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The pleas on title and

¶69

12

¶70

adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.”

¶71

25 In order to establish adverse possession, the defendants/appellants have examined Roshan Lal as DW1, who, in his examination-in-chief tendered an affidavit Ext.DW1/A, wherein in para 3 thereof he has stated that on 25.12.1958 in a family partition the suit land was given to his father and thereafter he along with other defendants is in peaceful possession of the suit property. However, in para 4 thereof, he has taken contrary stand, whereby he has stated that the defendants are residing over the suit land for the last 30 years. Neither the ingredients of the adverse possession have been spelt out nor the same have been tried to be proved. In his cross-examination, there is an admission on the part of DW1 that Jamku is owner in possession of the suit land.

¶72

26 DW2, Negi Ram, has also tendered his affidavit, Ext. DW2/A in his examination-in-chief. In para 2 of his affidavit, he has submitted that the defendants are owners in possession of the suit property for the last more than 30 years in a peaceful manner. Except this, there is no

¶73

13

¶74

averment qua plea of adverse possession as raised by the defendants.

¶75

27 Nagru Ram appeared in the witness box as DW3, who has also tendered in evidence his affidavit, Ext. DW3/A, wherein he has deposed on the same and similar lines as having been deposed by DW2 Negi Ram.

¶76

28 DW4 Lakhi Raj while tendering his affidavit, Ext. DW4/A in his examination-in-chief has also stated on the same lines as has been stated by DW2 and DW3.

¶77

29 None of the defendants’ witnesses has stated that on which date, the defendants/appellants came in possession of the suit land and whether their alleged hostile possession was in the knowledge of the true owner and whether the said possession was uninterrupted, hostile and what is continuity of the said possession. Said ingredients as required to acquire ownership have neither been pleaded nor proved by the defendants/appellants. 30 Moreover, in order to prove ingredients of adverse possession, the Hon’ble Supreme Court has held that in order to prove ownership on the basis of the adverse possession, said plea has to be specifically pleaded and proved.

¶78

14

¶79

31 It has to be established by the party,

¶80

who claims title on the basis of the adverse possession that on what date the party came into possession of the suit property. It has to be established by the defendants what was the nature of their possession over the suit land and whether said factum of possession was well within the knowledge of the true owner i.e. plaintiff/respondent. The defendants/appellants were required to prove how long is their possession on the suit land; whether the same is continuous or not; and whether the possession on the suit land was open, hostile and undisturbed.

¶81

32 The Hon’ble Supreme Court has laid down the exposition of law qua adverse possession in the following manner:

¶82

(i) In T. Anjanappa and others vs. Somalingappa and another, (2006) 7 SCC 570 , the Hon’ble Supreme Court held as under:

¶83

“12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly

¶84

15

¶85

established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property. 13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them.

¶86

“24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co- owner can be referred to his status as co-owner, it cannot be considered adverse to other coowner.

¶87

14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to he adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful Owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession.

¶88

16

¶89

"Adverse possession" means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.

¶90

Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being 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

¶91

17

¶92

another of that title by pretending that he had no title at all.

¶93

15. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq.29). Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is

¶94

18

¶95

ignorant of the adverse possessor being in occupation.

¶96

16. xxx xxx xxx

¶97

17. According to Pollock, "In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others".

¶98

18 & 19

¶99

xxx xxx xxx

¶100

20. It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.”

¶101

(ii) In Chatti Konatri Rao and others vs.

¶102

Palle Venkata Subba Rao, (2010) 14 SCC 316

¶103

the Hon’ble Apex Court further held as under:

¶104

19

¶105

“13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. Paragraph 11 of the judgment which is relevant for the purpose reads as follows:

¶106

"11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a wellsettled 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. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567) 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

¶107

20

¶108

in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma

¶109

14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the

¶110

21

¶111

defendant must continue to remain in possession for a period of 12 years thereafter.

¶112

15. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds 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 possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.”

¶113

33 The essential ingredients, which have been laid down by the Hon’ble Supreme Court, in the present case, have neither been spelt out nor proved by the defendants/appellants. The learned courts below have rightly held that the defendants/appellants though have taken plea of adverse possession, but the grounds to prove the same have not been established.

¶114

22

¶115

34 The learned courts below have rightly come to the conclusion that the defendants have failed to establish their title on the basis of adverse possession, therefore, the findings as returned by the learned courts below are legal, valid and sustainable and do not call for any interference.

¶116

35 As regards the plea raised by the defendants qua the family partition, except the oral testimony, no evidence has been placed on record to establish that in the family partition, the suit land was given to the predecessor in interest of the defendants. No document has been placed on record to establish the family partition, therefore, the findings qua the same as rendered by the learned courts below are also sustainable and do not call for any interference.

¶117

36 The Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interference with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand.

¶118

23

¶119

37 The Hon’ble Supreme Court while dealing with

¶120

scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under:

¶121

18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that :

¶122

24

¶123

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is 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."

¶124

19. 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 of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where 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

¶125

25

¶126

was based upon inadmissible evidence or arrived at by ignoring material evidence.

¶127

20. to 22 xx xx xx xx 23. 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.”

¶128

38 The Hon’ble Supreme Court in Annamalai vs.

¶129

Vasanthi, 2025 INSC 1267 , has held as follows:-

¶130

“16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s)

¶131

26

¶132

under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here.

¶133

17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A-2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to

¶134

27

¶135

interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction.

¶136

18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfil his obligation and accept performance when the time for performance arrives.”

¶137

39 As observed above, the Hon’ble Apex Court has repeatedly held that the scope of interference under Section 100 CPC is limited and the interference will be in those cases where the judgments are perverse and based on no evidence.

¶138

40 On perusal of the impugned judgments and decrees, this court is of the opinion that the same are valid, legal and sustainable in the eyes of law and no interference of

¶139

28

¶140

any kind is required in the same. No question of law much less the substantial question of law arises in the present case.

¶141

41 No other point raised by the learned counsel for the appellants.

¶142

42 In view of aforesaid discussions and for the reasons stated hereinabove, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

¶143

11^th March, 2026 (Romesh Verma) (pankaj) Judge

Rasu and Ors. v. Keshav Ram

Case brief

What is this about?

What did the court decide?

Rasu and Ors. v. Keshav Ram

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Netar Singh Vs Special Land Acquisition Officer and Others

Dharam Dass deleted through Lr'S and Others Vs Inder Singh

Kamla Devi Vs Special Land Acquisition Officer and Others

Karam Chand Vs Raftar Thakur and Anr.

Hspebl and Others Vs Raghuvir Singh and Others

Hpsebl and Another Vs Kanta Devi and Others