Holding

The High Court was justified in overturning the lower appellate court’s findings as perverse, decreeing the suit in favour of the plaintiffs who had acquired title by continuous adverse possession, and rejecting the defendants’ unpleaded sub‑tenancy claim.

Summary

The plaintiffs claimed ownership of land by adverse possession, relying on an unstamped, unregistered sale deed dated 9 May 1931. The defendants denied the deed, asserted they had regained possession in 1957‑58, and pleaded that the plaintiffs were merely sub‑tenants (shikmi). The High Court, on appeal under Section 100 of the CPC, examined the evidence and found the defendants’ claims unsupported, noting admissions that the plaintiffs had been in possession since at least 1956 and that no revenue entries showed the defendants ever possessed the land. It held that the lower appellate court’s factual findings were perverse and contrary to the record, and that an unstamped deed, though inadmissible, could be used collaterally to show the nature of possession. Consequently, the suit was decreed in favour of the plaintiffs, establishing title by continuous adverse possession, and the defendants’ sub‑tenancy plea was rejected. The Supreme Court dismissed the appeal.

Issues considered

Can a High Court set aside findings of fact of a lower appellate court under Section 100 CPC when those findings are perverse and contrary to the evidence?
Did the plaintiffs acquire title to the land by continuous adverse possession?
Is the defendants’ plea of sub‑tenancy (shikmi) maintainable without a specific pleading in the written statement?
May an unstamped and unregistered sale deed be considered for collateral purposes to determine possession?
Is the receiver’s possession under Section 145 Cr.P.C. deemed to be on behalf of the defendants?

Legislation cited

Subjects

adverse possessionSection 100 CPCsub‑tenancyunstamped deedcollateral evidencereceiver under CrPCcontinuous possessionperverse findings

Judgment

A BONDAR SINGH AND ORS.
v.
NIHAL SINGH AND ORS.

MARCH 4, 2003

B [RC. LAHOTI AND ARUN KUMAR, JJ ]

Transfer of 'Property Act, 1882:

Adverse possession-Suit for declaration-Claim of ownership of land
C in dispute by adverse possession-Possession ofp!aintiffi claimed to be on the
basis of sale deed-Defendants denied possession of plaintiff and asserted
their possession-Evidence on record proving possession of plaintiffi-Suit
decreed-Dismissal of suit by lower appellate court-In second appeal suit
decreed by High Court-Plea of defendants at appellate stage that possession
D ofplaintiffi was as sub-tenant (shikmi)-However, best evidence to prove sub-
tenancy kept awizy from court, though available-On appeal, Held: evidence
on record proves continuous and uninterrupted possession of the plaintiffi-
Hence the plea of adverse possession established-Plea of plaintiffi being
sub-tenants is devoid of merit as the same is not proved in the facts of the
case.
E
Code of Civil Procedure:

Section J00-Second Appeal-Scope of-Held, iffindings ofsutordinate
courts on facts are contrary to evidence on record and are perverse, such
finding can be set aside by High Court.
F
Order VJJJ Rule 2-Specific plea-Absence of-Effect thereof-Held, in
the absence of a plea no amount of evidence led in relation thereto can be
looked into.

Evidence:
G
Unstamped and unregistered sale deed-Evidentiary value of-Held,
such document though not admissible in evidence, can be looked into for
collateral purpose.

'F' father of the appellants-defendants sold the land in question to
H 564
BONDAR SINGH v. NIHAL SINGH 565
J

predecessor-in-interest of the respondents-plaintiffs. Plaintiffs filed a suit A
in 1972 claiming to have entered into possession of the land on the basis
of an unregistered and unstamped sale deed dated 9.5.1931 by father of
defendants to their predecessor-in-interest, and had been in possession
since then and as such they had become owners by adverse possession. In
the written statement defendants denied the sale of the land and the
possession of the plaintiffs. They took the plea that their father was in B
possession of the land till his death and after his death their mother had
given possession of the land to predecessor-in-interest of the plaintiffs for
the purpose of cultivation; that they had taken back possession of the land
from him in 1957-58; that after the death of their father the land had been
mutated in their names in the revenue records; and that there was no C
question of adverse possession by the. plaintiffs as the land was actually
in their possession. They claimed that the receiver appointed with respect
to the suit land in proceedings under Section 145 Cr.P.C. was on their
behalf. During trial, defendants had not produced their mother and the
eldest son of 'F' for evidence even though the eldest son was arrayed as
defendant in the suit. D
In a previous litigation a notice (Exbt. P.6) in 1956 was issued on
behalf of the defendants addressed to the predecessor-in-interest of the
plaintiffs calling upon him to hand over the possession of the suit land in
question herein, kl them. Thereafter an application was filed in 1956 by E
the defendants before the Revenue authorities wherein they admitted that
the land in question was in possession of the plaintiffs since the life time
of their father and that the land was being cultivated by the plaintiffs.
They had prayed in the said application that the plaintiffs be declared
trespassers. In that application, the plaintiffs had denied the allegation of
being trespassers and claimed to be in possession of the land in their own F
right on the strength of sale deed dated 9.5.1931 executed by father of the
defendants to their predecessor. Therein the eldest son of 'F' had admitted
that plaintiffs were in possession for the last 26 to 27 years. Relying on
the said admission the Revenue authorities dismissed the application and
the appeal against the same was also dismissed in 1962.
G
Trial court decreed the suit. Appeal against the trial court judgment
was allowed. In second appeal High Court decreed the suit holding that
the finding recorded by the Appellate Court was based on surmises and
conjectures and was contrary to the evidence on record and the law and
it came to a definite finding that predecessor-in-interest of the plaintiffs H
566 SUPREME COURT REPORTS (2003] 2 S.C.R.
'·
A came in possession of the suit land in 1931 and continued to be in
possession thereof till the date the present suit was filed in 1972. High
Court also found that defendants did not care to file even a single revenue
entry for the period between 1956 and 1962 that they had been recorded
in possession of the suit land.

B The appellants-defendants at the appellate stage took the plea that
the plaintiffs had been in possession of the suit land for a brief period after
the death of their father, as 'shikmi' i.e. sub-tenant. However, the date of
creation of alleged sub-lease was not stated.

C In appeal to this Court, appellant-defendants contended that the
question of possession is a question offact and High Court while exercising
power under Section 100 C.P.C. had no jurisdiction to upset the fi11dings
on this question.

Dismissing the appeal, the Court
D HELD: I. If the findings of the subordinate courts on facts are
contrary to evidence on record and are perverse, such finding can be set
aside by the High Court in appeal under Section 100 C.P.C. High Court
cannot shut its eyes to perverse findings of the courts below. In the present
case, the findings of fact arrived by the lower appellate court were contrary
E to evidence on record and, therefore perverse, and the High Court was
fully justified in setting aside the same resulting in the appeal being allowed
and suit being decreed. (570-C-D)

2. I. Under the law, a sale deed is required to be properly stamped
and· registered before it can convey title to the vendee. However, a
F document like the sale deed in the present case, even though not admissible
in evidence, can be looked into for collateral purposes. In the present case,
the collateral purpose to be seen is the nature of possession of the plaintiffs
over the suit land. The sale deed in question shows that initial possession
of the plaintiffs over the suit land was not illegal or unauthorized. Father
G of defendants never disputed plaintiffs' title or possession of the suit land
during his lifetime. There is other reliable evidence on record which
establishes that the plaintiffs have been in continuous possession of the
land in question. The notice (Exbt. P.6) is an admission on the partof the
defendants that the plaintiffs were in possession of the suit land at least
on the date of the notice i.e. 16th April, 1956. In application following the
H notice, the defendants admit that the land in question was in possession
BONDAR SINGH v. NIHAL SINGH 567
of the plaintiffs since the lifetime of their father, and that the land was A
being cultivated by the plaintiffs. The judgments of the revenu~ authorities
establish that at least till 1962 the plaintiffs were in possession of the suit
land. They also totally nullify the assertion of the defendants in their
written statement in the present suit that they had taken possession of the
suit land in 1957-58. 1571-A-B-C; 571-Fl
B
2.2. Regarding the plea of the defendants that they had taken
possession of the land in suit from the plaintiffs somewhere in the year
1957, High Court has aptly remarked that the defendants were required
"to open their mouth befo~e the revenue authorities if not in 1957 at least
in the year 1962 to show to the revenue authorities that theyhad obtairoi:d C
possession." (573-C)

2.3. The claim of the defendants regarding taking possession of suit
land from plaintiffs in 1957-58 having been found to be false, it follows
that the defendants never came into possession of the suit land. Defendants
started asserting their title to the suit land since at least 1956 when they D
issued the notice Exhibit P.6 while the plaintiffs have been denying their
title to the suit land and were setting up their own title to the same. This
lends support to the plea of adverse possession set up by the plaintiffs. It
will be seen from this clear and clinching evidence on record that the
plaintiffs were in continuous and uninterrupted possession of the suit land
since 1931 and they had been setting up a hostile title thereto as against E
the defendants. The defendants were asserting their title to the land since
1956. They had however, failed to get possession of the suit land. The plea
of adverse possession raised by the plaintiff is thus clearly established.
157l~H; 572-A-B)

F
3.1. The plea of sub tenancy (shikmi) was never taken in the written .
statement the way it has been put forth in the instant appeal. The written
statement is totally vague and lacking in material particulars on this
aspect. There is nothing to support the plea except some alleged revenue
entries. In the absence of a plea no amount of evidence led in relation
thereto can be looked into. Therefore, in the absence of a clear plea G
regarding sub-tenancy (shikmi) the defendants cannot be allowed to build
up a case of sub-tenancy (shikmi). Had the defendants taken such a plea
it would have found place as an issue in the suit. (572-C-D-EJ

3.2. The alleged revenue entries relied upon by the defendants do
not support the plea of the defendants that the plaintiffs' possession of H
568 SUPREME COURT REPORTS [2003] 2 S.C.R.

A the land was as 'shikmi' tenants. The mother of the defendants was alive -......
at the relevant time and her evidence on this point would have been the
best evidence. She could have been produced in evidence in support of this
plea. Apart from this, even the eldest brother of the defendants was not
examined as a witness, even though he was arrayed as a defendant in the
B suit. The best evidence in relation to the plea of 'shikmi,' though available,
was kept away from the court. Hence the claim that the argument that
the plaintiffs were 'shikmi' tenants in the suit land is wholly devoid of any
merit. [572-E-F; 573-B)

4. Receiver's possession of suit land in proceedings under Section 145
C · Cr.P.C. could not be said to be on behalf of the defendants. The plaintiffs
had become bhoomiswami with respect to the suit land prior to the
appointment of the receiver. [573-F)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7579 of 1999.

D From the Judgment and Order dated 16.1I.I998 of the Madhya Pradesh
High Court in C.S.A. No. 305 of 1980.

U.N. Bachawat, A.P. Dhamija, Mrs. Pratibha Jain, PradeepAggarwal,
Ms. Anjali Doshi, Ms. Ruchi Kohli, Alok Bachawat, L.P. Singh and Sushi!
Kumar Jain for the Appellants.

E A.K. Chitale, M. Mannan and Niraj Sharma, for the Respondent.

P.C. Sen and S.K. Agnihotri for State of M.P.

The Judgment of the Court was dtlivered by

F ARUN KUMAR, J. This appeal is directed against the judgment and
decree dated 16th November, 1998 passed by the Indore Bench of the High
Court of Madhya Pradesh. As a result of the decision of the High Court the
suit filed by the plaintiffs/respondent was decreed. The plaintiffs had filed a
suit for declaration that they had become owners of the lands in suit by
adverse possession and for injunction to restrain the defendants from interfering
G with the plaintiffs' possession of the suit lands. The trial Court had decreed
the suit, however, the appeal filed by the defendants against the trial court
judgment was allowed by the Additional District Judge, Dhar, M.P. and the
suit was ordered to be dismissed. Further an appeal filed by the plaintiffs
against the said judgment of the Additional District Judge was allowed by the
H High Court and the suit was finally decreed.
BONDAR SINGH v. NIHAL SINGH [ARUN KUMAR, J.] 569
Briefly the facts are that the plaintiffs (respondents herein) claim title A
to the land in suit on the basis of the plea that they had become its owners
by adverse possession. The land was owned by one Fakir Chand predecessor
.. in interest of the appellants herein (defendants in the suit). Fakir Chand sold
the land to Tola Singh, predecessor in interest of the plaintiffs by an unstamped
and unregistered sale deed dated 9.5.1931. The plaintiffs claim to have entered B
into possession of the land on the basis of the said sale deed and they claim
to be continuously in possession since then. The defendants tried to dispossess
the plaintiffs which led to the present suit being filed by them on 15.4.1972.
In the written statement filed by the defendants they denied the sale of land
by their father Fakir Chand to Tola Singh. They denied possession of the
plaintiffs of the suit land. They also took the plea that the alleged sale deed C
was false, fictitious and without consideration. According to the defendants,
their father was in possession of the lands till his death. After the death of
their father, their mother had given possession of the land to Tola Singh for
purpose of cultivation in order to earn some money for supporting her family.
According to the defendants they had taken back possession of the land from
Tola Singh in the year 1957-58. They also pleaded that after the death of D
Fakir Chand, the land had been mutated in their names in the revenue records
to the knowledge of the plaintiffs. The plea of adverse possession was denied
by stating that actually the defendants were in possession of the land and
there was no question of adverse possession of the land by the plaintiffs qua
the~t~ E
The main question for consideration in the present suit is as to whether
the plaintiffs were in hostile continuous possession of the suit lands by virtue
of which they had perfected their title to the land by adverse possession. Both
parties claim to be in possession of the suit land. While considering the above
question, the Court will also have to look into the plea raised by the learned F
counsel for the appellants/defendants that the plaintiffs had come in possession
of the suit land for a brief period after the death of Fakir Chand, father of the
defendant as "Shikmi" that is sub-tenants. The plea of sub-tenancy was as
such not raised in the written statement nor any issue was framed by the trial
Court in this connection. No particulars of alleged sub-lease were given. Not G
even date of creation of alleged sub-lease was stated. The defendants have
tried to build an argument based on plea of sub tenancy (shikmi) at appellate
stage. In support of this plea they rely on certain entries in the revenue
records. Since this plea pre-supposes possession of the plaintiffs, the defendants
took the stand that they had taken back the possession of the land from the
defendants. H
570 SUPREME COURT REPORTS [2003] 2 S.C.R.

A Before we proceed further it is necessary to notice a preliminary
argument raised by the learned counsel for the appellants. It was contended
that the CJ.Ue~tion of possession· is a question of fact and the High Court while
exercising power under Section 100 of the Code of Civil Procedure, had no
jurisdiction to upset the findings on this question recorded by the lower
•
appellate Court. An appeal under Section 100 C.P.C. can be entertained by
B the High Court only on a substantial question of law. There can be no quarrel
with this legal proposition. The scope of powers of High Court under Section
JOO C.P.C is a matter of settled law. The learned counsel for the appellant
cited several judgments in support of his contention. We do not consider it
-
necessary to discuss these decisions .because so far as the question of powers
C of High Courts under Section 100 C.P.C. is concerned, it needs no discussion.
If the findings of the subordinate courts on facts are contrary to evidence on
record and are perverse, such finding can be set aside by the High Court in
appeal under Section 100 C.P.C. A High Court cannot shut its eyes to perverse
findings of the courts below. Jn the present case the findings of fact arrived
at by the lower appellate court were contrary to evidence on record and,
D therefore, perverse and the High Court was fully justified in setting aside the
same resulting in the appeal being allowed and suit being decreed.

The main question as we have already noted is the question of continuous
possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931
E by Fakir Chand, father of the defendants in ~avour of Tola Singh, the
predecessor interest of the plaintiff, is an admitted document in the sense its
executio.n is not in dispute. The only defence set up against said document
is that it is unstamped and unregistered and therefore it cannot convey title
to the land in favour of plaintiffs. Under the law a sale deed is required to
be properly stamped and registered before it can convey title to the vendee.
F However, legal position is clear law that a document like the sale deed in the
present case, even though not admissible in evidence, can be looked into for
collateral purposes. In the present case the collateral purpose to be seen is the
nature of possession of the plaintiffs over the suit land. The sale deed in
question at least shows that initial possession of the plaintiffs over the suit
G land was not illegal or unauthorized. It is significant to note that the sale deed
is dated 9.5.1931 and Fakir Chand died somewhere in the year 1949-50.
During his lifetime Fakir Chand never disputed plaintiffs' title or possession
of the suit land. There is other reliable evidence on record which establishes
that the plaintiffs have been in continuous possession of the land in question.
There is a.notice dated 16.4.1956 Exhibit P.6. The notice was issued on
H · behalf i>f the defendants and is addressed to the predecessor in interest of the
BONDAR SINGH v. NIHAL SINGH [ARUN KUMAR. J.] 571
plaintiffs. By the notice the defendants called upon the plaintiffs to hand over A
possessio_n of the suit land to them. According to the notice, the plaintiffs
were trespassers on the suit land and were liable to hand over its possession

-· to the defendants. This notice is an admission on the part of the defendants
that the plaintiffs were in possession of the suit land at least on the date of
the notice i.e. 16th April, 1956. The notice was followed by an application B
dated 8th May, 1956 (Exhibit P.3). filed by the defendants under Section 58

- of the Madhya Bharat Land Revenue and Tenancy Act, 1950 before the
revenue authorities. In the said application the defendants admit that the land
in question was in possession of the plaintiffs since the lifetime of their
father. It is further admitted that the land was being cultivated by the plaintiffs.
It was prayed in the said application that the plaintiffs be declared trespassers C
over the suit land and possession of the land be given to the defendants. In
their reply to the application, the present plaintiffs denied the allegation that
they were trespassers on the suit land, they refer to the sale deed of 9.5.193 I
by Fakir Chand in favour of their predecessor. Thus the plaintiffs were all
along asserting that they were in possession of the land in their own right.
The Tehsildar vide hj_s order dated 3rd October, I 959 dismissed the said D
application of the defe'Oaants. He relied on an admission on the part of
Poonam Chand, eldest son of Fakir. Chand that the present plaintiffs were in
possession for the last 26-27 years. Relying on the said statement the revenue
authorities held that since possession of the present plaintiffs was continuing
for last 26-27 years they could not be dispossessed from the suit land. The E
application of the defendants was dismissed. The defendant filed an appeal
against the said order which was also dismissed on 6. 8.1962. A copy of the
order of the TehsiJdar is Exhibit P.8 while a copy of the order of the appellate
authority i.e. S.D.O. is Exhibit P.9. These judgments of the revenue authorities
establish that at least till I 962 the plaintiffs were in possession of the suit
land. They also totally nullify the assertion of the defendants in their written F
statement in the present suit that they had taken possession of the suit land
in I 957-58. If they had taken possession of the suit land in 1957-58 why
· were they pursuing the matter before the revenue authority till 1962 when the
appeal was contested before the S.D.O. and the decision of the S.D.O. was
given on 6.8.1962? G
Itappears that having failed to obtain possession of the suit land through
lawful means, the defendants tried to dispossess the plaintiffs forcibly which
led to the present suit being filed on 15.4.1972. The claim of the defendants
regarding taking possession of suit land from plaintiffs in 1957-58 having
been found to be false, it follows that the defendants never came into H
572 SUPREME COURT REPORTS (2003] 2 S.C.R.

A possession of the suit land. Another significant conclusion which follows
from these facts is that the defendants started asserting their title to the suit
land since at least 1956 when they issued the notice Exhibit P.6 while the
plaintiffs have been denying their title to the suit land and were setting up
their own title to the same. This lends support to the plea of adverse possession
B set up by. the plaintiffs. It will be seen from this clear and clinching evidence
on record that the plaintiffs were in continuous and uninterrupted possession
of the suit land since 1931 and they had been setting up a hostile title thereto
as against the defendants. The defendants were asserting their title to the land
since 1956. They had however failed to get possession of the suit land. The
plea 'of adverse possession raised by the plaintiff is thus clearly established.
c As regards the plea of sub tenancy (shikmi) argued on behalf of the
defendants by their learned counsel, first we may note that this plea was
never taken in the written statement the way it has been put forth now. The
written statement is totally vague and lacking in material particulars on this
aspect. There is nothing to support this plea except some alleged revenue
D entries. It is settled law that in the absence of a plea no amount of evidence
Jed in relation thereto can be looked into. Therefore, in the absence of a clear
plea regarding sub tenancy (shikmi) the defendants cannot be allowed to
build up a case of sub tenancy (shikmi). Had the defendants taken such a plea
it would have found place as an issue in the suit. We have perused the issues
E framed in the suit. There is no issue on the point.

The alleged revenue entries relied upon by defendants do not support
the plea of the defendants that the plaintiffs' possession of the land was as
shikmi tenants. A significant point which militates against the argument that
the plaintiffs were shikmi tenants on the suit land is that the mother of the
p defendants is said to have inducted the plaintiffs as sub-tenants. The mother
of the defendants was alive at the relevant time and her evidence on this
point would have been the best evidence. She could have been produced in
evidence in support of this plea. The defendants, rather than producing her
in evidence, created a drama by moving an application for examining their
mother as a witness on commission. The trial Court passed an order appointing
G a Commissioner to record her evidence on commission. However, when the
Commissioner went to record the evidence of the mother, it was represented
to him that she was totally deaf and dumb and therefore, the Commissioner
returned without recording her statement. The plaintiffs thereafter moved an
application that the mother of the defendan~was completely hale and hearty
H and in order to avoid her being cross-examined by the counsel for the plaintiffs
BONDAR SINGH v. NIHAL SINGH [ARUN KUMAR, J.) 573
she was purposely not produced as a witness. Apart from this, even Puran A
Chand, the eldest brother of the defendants was not examined as a witness.
The defendants were said to be very young at the time of death of their
father. Punain Chand is the eldest son of Fakir Chand. He was also kept away
from the court in these proceedings even though he was arrayed as a defendant
in the suit. The written statement filed by the defendants was a joint written B

- statement by all the defendants except Punam Chand. Punam Chand did not
file a written statement. The best evidence in relation to the plea of shikmi,
though available, was kept away from the court. It follows from the above
that the argument that the plaintiffs were shikmi tenants in the suit land is
wholly devoid of any merit. The same has therefore to be rejected.

Regarding the plea of the defendants that they had taken possession of
c
the land in suit from the plaintiffs somewhere in the year 1957, the High
Court has aptly remarked that the defendants were required "to open their
mouth before the revenue authorities if not in 1957 at leas~ in the year I 962
to show to the revenue authorities that they had obtained possession." The
· High Court has further found after scrutinizing the record that the defendants D
did not care to file even a single revenue entry for the period between 1956
and 1962 that they had been recorded in possession of the suit lands. Therefore,
the High Court concluded that the finding recorded by the lower appellate
Court was based on surmises and conjecture and was contrary to the evidence
on record and the law. The High Court came to a definite finding that Tola E
Singh predecessor in interest of the plaintiffs came in possession of the suit
land in the year 1931 and continued to be in possession thereof till the date
the present suit was filed in' 1972.

The defendants have tried to take advantage of the fact that a receiver
had been appointed with respect to the suit land in proceedings under Section p
145 of the Code of Criminal Procedure. According to the defendants the
possession of the receiver was on their behalf. This is not correct. The plaintiffs
had becoine bhoomiswami with respect to the suit land prior to the appointment
of the receiver. Therefore, receiver's possession could riot be said to be on
behalf of the defendants.
G
The result of the above discussion is that there is no merit in this
appeal. The stand taken by the defendants/appellants is totally untenable. The
appeal is dismissed leaving the parties to bear their respective costs.

K.K.T. Appeal dismissed
H