Sia Nand Deceased through Lrs Lakhan Kumar and Others Vs Om Parkash and Others

For the appellants: Mr. Ashok Kumar, Advocate, vice Mr. Karan Singh Kanwar, Advocate. For the respondents: Mr. R. K. Gautam, Sr. Advocate with Mr. Sahil Dixit, Advocate.

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Romesh Verma, Judge (Oral)

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The present appeal arises out of the judgment and decree, dated 28.12.2017, as passed by the learned Additional District Judge, Sirmaur, whereby the appeal preferred by the present appellants/defendants, has been dismissed and the judgment and decree dated 14.06.2016, as passed by the learned Civil Judge (Sr. Div.), Court No.1, Paonta Sahib, District Sirmaur, H.P., partly decreeing the

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

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suit of the plaintiffs for joint possession of the suit land, has been affirmed.

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2 Brief facts of the case are that the

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plaintiffs/respondents, filed a suit against the defendants/appellants for possession on the basis of title of the land comprised in Khata Khatauni no. 95/153 Khasra Nos. 1323/36 measuring 3-2 Bighas, 1329/48 measuring 4- 18 Bighas, 1342/81 measuring 1-1 Bigha, 1347/124 measuring 4-16 Bighas, 1353/137 measuring 1-15 Bighas, 1361/160 measuring 2-11 Bighas and 1368/205 measuring 0-13 Bighas, Kita 7 total measuring 18-16 Bighas situated in Mauza Manpur Dewra, Tehsil Paonta Sahib and recovery of mesne profits amounting to Rs.1,00,000/-. As per averments, as made in the plaint, late Mallu Ram along with plaintiffs No.1 and 2, Om Prakash and Manish Kumar was co-sharer to the extent of land measuring 18-16 Bighas in the total land measuring 88-16 Bighas, comprised in Khata Khatauni Nos. 74/131 to 135 situated in Mauza Manpur Deora, Tehsil Paonta Sahib as per Jamabandi for the year 1993-94. Late Mallu Ram filed an application for partition, titled as Mallu Ram vs. Teli Ram etc., for separating his share before the AC I^st Grade Paonta Sahib, which came to be allowed on

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6.8.2001. In the said partition, Mallu Ram and his sons i.e. plaintiff Nos. 1 and 2 were allotted land comprised in Khasra Nos. 36/3 measuring 3-2 Bighas, 48/5 measuring 4-18 Bighas, 81/8 measuring 1-1 Bighas, 124/5 measuring 4-16 Bighas, 137/4 measuring 1-15 Bighas, 160/2 measuring 2- 11 Bighas and 205/1 measuring 0-13 Bighas, Kitta 7 total measuring 18-16 Bighas situated in Mauza Manpur Deora. The instrument of partition was framed on 8.10.2001 and in pursuance to the partition order and instrument of partition, possession of the land, allotted to Mallu Ram and plaintiff Nos. 1 and 2, was delivered to them on 16.5.2005 by means of warrant of possession. The possession of the above said land was delivered to the plaintiffs and their predecessor-ininterest with the help of Police. Since the defendants were not interested to part with the possession of the said land, they at the time of delivery of possession tried to obstruct the revenue officials in executing the warrant of possession and even they threw stones on the plaintiffs and Mallu Ram, for which the defendants are facing criminal trial.

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3 It was averred in the plaint that after attestation of mutation of partition, the suit land was allotted to plaintiff Nos. 1 and 2 and Mallu Ram. After the delivery of possession

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to Mallu and plaintiffs No. 1 and 2, they had sown crops of ‘Chari’ and ‘Bajra’ in the suit land, however in the month of June 2005, the defendants destroyed the aforesaid crops and occupied the suit land.

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4 It is the case of the plaintiffs that the defendants are trespassers over the suit land and are bound to deliver the possession of the suit land to the plaintiffs. The defendants have forcibly occupied the suit land and have used usufructs/profits out of the suit land to the tune of Rs.1,00,000/- in a year. Hence, the suit, as aforesaid.

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5 The suit came to be contested by the defendants by filing written statements. Defendants No. 21 and 24 contested the suit by filing written statement, wherein preliminary objections qua maintainability, suppression of material facts, estoppel, cause of action, etc. were raised. On merits, it was averred that defendant No.21 Rangi Lal purchased 2 Bighas of land from one Sugni Devi D/o Janak Raj, resident of Manpur Deora, Tehsil Paonta Sahib, District Sirmour, H.P. for a sum of Rs.25,000/- and after receiving amount, Sugni Devi executed a registered sale deed on 23.12.1997 in favour of Rangi Lal and since then, defendant No. 21 is cultivating the land as owner and the plaintiffs have

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no concern with the share/land of defendant No. 21. Similarly Darshan Lal defendant No. 24 also purchased 4 Bighas of land from Batna Ram and Sunita Devi D/o Sh. Yanu R/o Village Manpur Deora, Teh. Paonta Sahib, through their GPA Mallu Ram S/o Sh. Kartar Singh R/o Village Manpur Deora, Teh. Paonta Sahib on 23.05.1995 for a sum of Rs. 35,000/- and after receiving the sale consideration amount, Batna Ram and Sunita Devi delivered the possession of the land and since then Darshan and his brother are coming in possession on the above said land. Defendants No. 21 and 24 prayed for dismissal of the suit.

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6 Defendant No.26, Ravinder Kaur, filed separate written statement and she prayed for dismissal of the suit, as filed by the plaintiffs, being not maintainable. It was averred that all the owners of the suit land are cultivating the suit land from time of their ancestors.

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7 Separate written statement came to be filed by defendants No. 1 to 13 and 15 to 19, wherein after raising preliminary objections qua maintainability, estoppel etc, it was averred that in view of pendency of the partition appeal before the Divisional Commissioner, Shimla, suit, as filed by the plaintiffs, is not maintainable. It was specifically denied

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that possession of the suit land was delivered to the plaintiffs and their predecessor in any manner. The alleged mutation was never attested and sanctioned in presence of the defendants and the revenue entries on the basis of mutation are fraudulent, collusive against the actual possession on the spot, thus, the same are not binding on the rights of the defendants. It was averred that the suit land

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is still joint inter se the parties , therefore, no relief can be granted to the plaintiffs in the attending facts and circumstances.

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8 The plaintiffs filed replications to the written statements, wherein the contents of the plaint were reiterated.

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9 On the pleadings of the parties, the learned trial court on 3.10.2013 and 29.04.2014 framed the following issues:-

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Whether plaintiffs are entitled for the possession of the suit land on the basis of title, as prayed for?...OPP

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Whether the plaintiffs are entitled for the recovery of mesne profits from the defendants to the tune of Rs.1,00,000/- with mesne profits till possession is delivered, as alleged? ....OPP

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Whether the suit is not maintainable? ....OPD

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Whether the plaintiffs have no cause of action to file the present suit? .....OPD

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Whether the plaintiffs are estopped by their act, conduct to file the present suit? ....OPD

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5-A Whether the defendants No. 21 and 24 are bonafide purchaser, as alleged? ....OPD 21 & 24.

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6 Whether the suit is bad for non joinder of necessary parties? ....OPD

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7 Relief.

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10 The learned trial court directed the respective

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parties to adduce evidence in support of their contentions to corroborate their respective case. The learned trial court vide its judgment and decree dated 14.06.2016 partly decreed the suit of the plaintiffs against defendants No. 1 to 20 and 22 for joint possession of the suit land along with defendants No. 23 and 25 as per their shares recorded in jamabandi, Ext. PW2/B on the strength of title as co-owners.

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11 Feeling dissatisfied by the judgment and decree, dated 14.06.2016, the defendants preferred an appeal before the learned first appellate Court on 07.12.2016, which came to be dismissed vide judgment and decree dated 28.12.2017.

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12 Still feeling aggrieved by the aforesaid judgments and decrees, the defendants have preferred the present

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regular second appeal, which was admitted by this Court on 27.06.2018 on the following substantial question of law:-

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Whether on account of mis-appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record, the findings recorded by both the Courts below are erroneous and as such, the judgment and decree impugned in the main appeal being perverse is vitiated and not legally sustainable?

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13 It is contended by Mr. Ashok Kumar, learned vice counsel for the appellants/defendants that the impugned judgments and decrees, as passed by the learned courts below, are erroneous and, thus, liable to be quashed and set aside. He has submitted that the plaintiffs have failed to corroborate or substantiate their case before the learned courts below, therefore, no relief could have been granted to them by either of the Courts below. He has further submitted that the suit for possession, as instituted by the plaintiffs, was neither maintainable nor it was competent, therefore, he has prayed that after accepting the instant appeal, suit, as filed by the plaintiffs, deserves to be dismissed.

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14 On the other hand, Mr. R. K. Gautam, learned

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Senior Advocate, duly assisted by Mr. Sahil Dixit, Advocate, for the plaintiffs/respondents No. 1 to 5, has defended the impugned judgments and decrees as passed by the learned courts below. He has submitted that the learned Courts below have rightly thrashed entire oral as well as documentary evidence and there is no illegality or perversity in the impugned judgments and decrees. He has also submitted that this Court while invoking provisions of Section 100 of CPC will not interfere with the concurrent findings of fact, as rendered by the learned Courts below and, thus, has prayed for dismissal of the instant appeal.

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15 I have heard the learned counsel for the parties and have also gone through the material available on the case file.

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16 The case, as set up by the plaintiffs before the learned trial Court is that predecessor-in-interest of the plaintiffs, Mallu Ram, had filed an application for partition of the suit land before the A.C. I^st Grade, Paonta Sahib, which was allowed on 6.8.2001. In the said partition, late Mallu Ram and his sons i.e. plaintiff Nos. 1 and 2 were allotted the suit land measuring 18-16 Bighas situated in Mauza Manpur

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Deora. In pursuance to the partition order and instrument of partition, possession of the suit land was delivered to them on 16.5.2005 through warrant of possession. It is the case of the plaintiffs that defendants are trespassers over the suit land and they have forcibly occupied the suit land and have used usufructs/profits out of the suit land to the tune of Rs.1,00,000/- in a year. Thus, plaintiffs/respondents filed a suit against the defendants/appellants for possession on the basis of title and recovery of mesne profits amounting to Rs.1,00,000/-.

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17 Even though, the defendants have filed separate written statements, however sum and substance therein is that all the defendants have refuted the claim of the plaintiffs in toto and in one voice, they have averred that the suit land is still joint inter se the parties and entire story, as has been projected by the plaintiffs, is wrong and incorrect and the suit has been filed just to harass them.

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18 In order to corroborate their case, plaintiff No.1 entered into the witness as PW1 and tendered in evidence his affidavit, Ext. PW1/A, wherein he reiterated the averments as made in the plaint. He has stated in his affidavit that after passing of the partition order and framing of instrument of

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partition, suit land was allotted to plaintiffs No. 1 and 2 and their predecessor in interest on 16.05.2005. The defendants are head strong persons and have no regard for law. They destroyed ‘Chari’ and ‘Bajra’ crops and forcibly occupied the suit land in the month of June 2005. In his crossexamination, nothing could be extracted favourable by the defendants.

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19 PW2 Paramjeet Singh, deposed that he remained posted as Patwari at the relevant time. He proved on record rapat No. 714, dated 16.05.2005, Ext.PW1/C, to be correct as per the record brought by him. In his cross-examination, he stated that as per record, possession of the suit land was given to the respective parties and they obtained the possession on the spot.

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20 PW3 Mohi Ram Chauhan, deposed that he was working as Naib Tehsildar from August 2012 to July 2014. He proved on record Takhmeena Paidawar, Ext. PW3/A, having been signed by him, to be correct as per record brought by him.

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21 In order to rebut the case of the plaintiffs, defendant No.1 appeared in the witness box as DW1 and tendered in evidence his affidavit, Ext. DW1/A, wherein he

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stated that the plaintiffs have not approached the Court with clean hands as the revenue appeal is pending before the competent court of law. He stated that the suit land is joint inter se the parties and no partition has been effected inter se the parties.

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22 DW2 Gulzari Lal tendered in evidence his affidavit, Ext. DW2/A, wherein he stated that he purchased land measuring 1-0 Bigha out of the suit land from Inder Singh vide sale deed dated 06.07.1987, land measuring 2- 10 Bighas, out of the suit land from Tara Devi vide sale deed, dated 09.06.1994 and land measuring 3-0 Bighas, from Malu Ram vide sale deed, dated. 21.03.2003. He stated that on the basis of aforesaid sale deeds he is only owner in possession of land measuring 6-10 Bighas, out of the suit land. He has not encroached any land belonging to the plaintiffs, nor any land of the plaintiffs is in his possession.

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23 In his cross-examination, he admitted that application for partition was filed by Mallu Ram. He admitted that partition was accepted. He denied the suggestion that he has got no right, title or interest over the suit land.

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24 DW3 Rangi Lal also tendered in evidence his affidavit, Ext. DW3/A, wherein he reiterated the averments

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as made in the written statement. He stated that he purchased 2 Bighas of land from one Sugni Devi for a sum of Rs.25,000/- vide registered sale deed, dated 23.12.1997. He further stated that apart from above land, Prithvi Singh also sold land measuring 4 Bighas to him and others for an amount of Rs.11,000/- and thereafter the same is in his possession. Similarly Darshan Lal also purchased 4 Bighas of land from Batna Ram and Sunita Devi through their GPA Mallu Ram on 23.05.1995 for a sum of Rs. 35,000/-. In his cross-examination, he denied the suggestion that he is deposing falsely.

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25 DW4, Ravinder Kaur, deposed that she had purchased the land measuring 3-13 Bighas from the plaintiffs and other co-sharers and the land measuring 1 Bigha from Jagat Ram through registered sale deeds, dated 25.7.2006 and 8.11.2006 respectively.

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26 In order to corroborate their case, the plaintiffs have placed on record, Ext. PW1/C, copy of Rapat No. 714, which clinches entire controversy inter se the parties. As per the same, suit land was partitioned and after partition, the suit land was allotted and delivered to the plaintiffs and their predecessors-in-interest. On the strength of this

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document, it can be gathered and safely held that the plaintiffs on the basis of the title have filed the suit.

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27 The case, as set up by the defendants that the suit land is joint inter se the parties is falsified on perusal of the aforesaid document. Though a stand is being tried to be taken that revenue appeal is pending before the Divisional Commissioner, Shimla, however perusal of order, dated 19.08.2011, Ext. PA, shows that the said appeal stood dismissed by the learned Divisional Commissioner, Shimla. Therefore, the suit, as instituted by the plaintiffs is very much maintainable and they have got cause of action to file the same against the defendants. The learned trial court has rightly come to the conclusion that defendants No. 1 to 20 and 22 have got no legal right over the suit land and their possession, if any, is that of the trespassers.

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28 The defendants have failed to establish their title over the suit land, therefore, the learned Courts below have rightly come to the conclusion that the defendants are without any title, therefore, they cannot be permitted to retain possession of the suit land, which has been allotted to the plaintiffs in the partition proceedings.

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29 Perusal of the defence as set up by the defendants would show that defendants No. 23 and 25 are in possession of the suit land as co-owners, on the other hand, defendants No. 21 and 24 have got no right, title or interest over the suit land as admittedly they are not in possession of the same. Defendants No. 21 and 24 are purchasers of the suit land on the strength of sale deeds, Ext. DW3/D and Ext. DW3/E. Therefore, on the basis of oral as well as documentary evidence, suit of the of the plaintiffs has rightly been decreed for joint possession against defendants No. 1 to 20 and 22 along with defendants No. 23 and 25. The said findings of fact have been affirmed by the learned first appellate court and such findings of fact do not call for any interference as the same are based on appreciation of oral as well as documentary evidence placed on record.

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30 The learned first appellate court has come to the conclusion that defendants No. 21 and 24 are not in possession of the suit land, therefore, the suit against them was dismissed, however these defendants chose not to file any appeal against those findings. Both the Courts below have concurrently and rightly relied upon Ext. PW1/C and revenue entries, Ext. PW2/B and the said documents have

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not been rebutted by the defendants. Presumption of truth is

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attached to these documents, unless and until said documents are rebutted by some cogent and convincing evidence, thus, the defendants cannot be granted any leverage.

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31 The Hon’ble Supreme Court in catena of judgments has held that the first appellate Court is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interfere 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.

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32 The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth

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(minor) vs. Seshammal, (2006) 5 SCC 545 has held as under:

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“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

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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 : "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.

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" 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

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

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20. to 22 xx xx xx xx

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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

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and impelling necessity of avoiding prolongation in the life of any lis.”

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33 The Hon’ble Supreme Court in Annamalai vs.

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

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“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) 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.

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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-

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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 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.

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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.”

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34 No other point was urged by the learned counsel for the parties.

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35 Both the Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record and this Court does

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not find any illegality or perversity in the impugned judgments and decrees, as passed by the learned Courts below, and the same are upheld. The substantial question of law is answered accordingly.

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36 In view of above, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of.

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07^th July, 2026 (Romesh Verma) (pankaj) Judge

Sia Nand Deceased through Lrs Lakhan Kumar and Others v. Om Parkash and Others

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Sia Nand Deceased through Lrs Lakhan Kumar and Others v. Om Parkash and Others

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