NASIB KAUR AND ORS.versusCOL SURAT SINGH (DECEASED) THROUGH L.RS & ORS.

                        [2013] 1 S.C.R. 984


A                     NASIB KAUR AND ORS.
                                  v.
     COL SURAT SINGH (DECEASED) THROUGH L.RS &
                           ORS.
           (Civil Appeal No. 1276 of 2013 etc.)
B
                       FEBRUARY 12, 2013.
           [A.K. PATNAIK AND H. L. GOKHALE, JJ.]

        Code of Civil Procedure, 1908:
c
        s. 100 - Second appeal - Substantial question of Jaw -
  Suits for declaration and permanent injunction - Decreed by
  High Court reversing the finding of first appellate court - Held:
  Evidence on record has established that defendants were in
D lawful possession of suit iand by virtue of sale deeds and
  plaintiff had not been able to establish that he was owner
  thereof and, consequently, entitled to declaration of his title,
  recovery of possession and injunction - Therefore, the first
  appellate court had decided the core issue against the plaintiff
E and no substantial question of law arose for decision in case
  by High Court u/s 100 -Judgment and decree of High Court
  set aside.

       The respondent in C.A No. 1276 sold some lands,
  which were further sold by the vendee to the contesting
F defendants/appellants. The respondent filed a suit
  against original vendee and his transferees, for
  declaration that he was the owner and in possession of
  the suit land. The trial court protected the possession of
  the contesting defendants till the partition was effected.
G The appeal of the respondent was dismissed. The
  respondent filed another suit for permanent injunction
  restraining the defendants from raising any construction
  on the suit land and alienating the same. The trial court
  dismissed the suit. The first appellate court dismissed the
H                             984
    NASIB KAUR AND ORS. v. COL. SURAT SINGH                985
           (DECEASED) THROUGH L.RS
 appeal of the plaintiff. The second appeals filed by the         A
 wife of the plaintiff were allowed by High Court.

       In the instant appeals filed by the contesting
 defendants, it was contended for the appellants that the
 first appellate court had concurred with the findings that       8
 the appellants had purchased the suit property and were
 in possession thereof and as there was no substantial
 question of law in the case, the High Court erred in
 reversing the concurrent findings of the courts below.

     Allowing the appeals, the Court                              c
       HELD: In the instant case, the core issue was
  whether the plaintiff was the owner of the suit property .
. The findings of the first appellate court in the two cases
  show that in the suit for declaration of title, the plaintiff   D
  had not been able to produce any evidence to prove his
  ownership and possession over the suit land; and in the
  suit for injunction, the first appellate court had held that
  the plaintiff had admitted in plaint that the predecessor-
  in-interest of the defendants, had purchased the land from      E
  the plaintiff and the joint owner. Thus, the evidence on
  record has established that the appellants were in lawful
  possession of the suit land by virtue of the two sale
  deeds and the plaintiff had not been able to establish that
  he was the owner thereof and, consequently, entitled to         F
  declaration of his title, recovery of possession and
  injunction. Therefore, the first appellate court had
  decided the core issue against the plaintiff and no
  substantial question of law arose for decision in case by
  the High Court u/s 100, CPC. The impugned common                G
 judgment and decree of the High Court is set aside. [para
  10, 12 and 13] [993-D-F; 994-A-B; 995-D, F-G]

   lshwar Dass Jain vs. Sohan Lal 1999 (5) Suppl.
          =
 SCR 24 (2000) 1 SCC 434; Achintya Kumar Saha vs.
                                                                  H
    986      SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A Nanee Printers and Others 2004 (2) SCR 28 = (2004) 12 SCC
  368 - cited.
                          Case Law Reference:
          1999 (5) Suppl. SCR 24 cited                      para
B
          2004 (2) SCR 28             cited                 para

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1276 of 2013.

c       From the Judgment & Order dated 11.11.2009 of the High
    Court of Punjab & Haryana at Chandigarh in Regular Second
    Appeal No. 2579 of 1997.
                                 WITH
D C.A. No. 1277 of 2013.

        M.L. Saggar, Seeraj Baggar, Rajinder Mathur for the
    Appellants.

          R.B.S. Chahal, Jyotika Kalra for the Respondents.
E
          The Judgment of the Court was delivered by

          A.K. PATNAIK, J. 1. Leave granted.

      2. These are the appeals against the common judgment
F dated 11.11.2009 of the High Court of Punjab and Haryana in
  R.S.A. Nos. 2579 of 1997 and 2482 of 2008 by way of special
  leave under Article 136 of the Constitution.

       3. The facts very briefly are that Col. Surat Singh filed Civil
  Suit No. 735-T on 18.04.1987 for declaration that the plaintiff
G was the owner and was in possession of suit land. The plaintiffs
  case in the suit was that while he was in joint holding of some
  land, he sold 2 bighas and 16 biswas of land out of his share
  without specifying any khasra nos. to Col. Girdhar Singh and
  his family members (defendant nos. 1 to 4) and thereafter
H
   NASIB KAUR AND ORS. v. COL. SURAT SINGH                    987
  (DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]
defendant nos. 1 to 4 sold the land in pieces to defendant nos.       A
5 to 8 in the suit specifying the khasra nos. and mutation nos.
1120 and 1174. As the plaintiff did not sell the land specifying
the khasra nos. to Col. Girdhar Singh and his son, they had no
right to sell specific pieces of land with specific khasra nos. The
plaintiff's further case in the plaint was that the specific khasra   B
nos. which had been mutated in favour of defendant nos. 3, 4
and 5 were not in accordance with the registered sale deed in
favour of Col. Girdhar Singh and his family members.
Defendant Nos. 1 to 4 did not contest the suit, whereas
defendant Nos. 5 to 8 appeared and filed their written                c
statements. On the pleadings of the parties, the trial court
framed issues and by its judgment and decree dated
20.02.2004 found that the areas of land sold under the sale
deed dated 17.07.1978 by the plaintiff was less by 1 Biswas
than the area in the mutation entries and similarly the area of       D
land sold by the plaintiff as Attorney of Nanak Singh was less
than the area shown in the mutation entries. The trial court,
therefore, ordered for correction of the mutation entries, but
directed that the corrections to be carried out would have no
effect as regards the possession of the suit property, which has      E
to continue as before and would be liable to be changed as
and when any partition proceeding is effected between the co-
sharers. Col. Surat Singh filed an appeal C.A. No. 1721 on
20.03.2004 before the Additional District Judge, Patiala, but
by judgment and decree dated 18.03.2008 the Additional
District Judge, Patiala, dismissed the appeal.                        F

      4. Col. Surat Singh also filed Civil Suit No. 148-T on
09.03.1987 for permanent injunction restraining the defendants
from raising any construction on the suit property or alienating
the same in any manner whatsoever. The plaintiff's case in the        G
suit was that he sold 2 bighas and 16 biswas of land out of the
joint holding of his own share without specifying any khasra nos.
to one Col. Girdhar Singh and his son on 17.07.1978 and Col.
Girdhar Singh has thus become a co-sharer to the extent of 2
bighas and 16 biswas in his joint holding of the property. Col.       H
    988      SUPREME COURT REPORTS                   [2013] 1 S.C.R.


A Girdhar Singh, however, did not file any partition proceedings
  seeking partition of his share out of the joint holding. Thereafter,
  Col. Girdhar Singh sold the share to the extent of 2 bighas and
  16 biswas of land to the defendants in February, 1987 and the
  defendants are now threatening to raise a new construction near
B the farm house of the plaintiff in a place of their choice on the
  plea that they had purchased the land without specific khasra
  nos. from Col. Girdhar Singh. The defendants contested the suit
  by filing a written statement and their plea in the written
  statement inter alia was that their predecessor-in-interest (Col.
c Girdhar Singh and his son) had purchased the suit property
  from the plaintiff and his uncle, Nanak Singh, vide sale deeds
  dated 17.07.1978 and 19.07.1979 and the plaintiff has himself
  delivered possession of the property purchased by their
  predecessor-in-interest without khasra nos. Their further plea
D in the written statement was that Col. Girdhar Singh had
  constructed his kothi and quarters and planted Eucalyptus trees
  on the suit property and the plaintiff has not raised any objection
  and the plaintiff was, therefore, estopped by his act and conduct
  from filing the suit. On the pleadings of the parties, the trial court
  framed issues and in its judgment and decree dated
E 18.08.1998 held that the plaintiff has sold 4 bighas and 16
  biswas of land to Col. Girdhar Singh and others which is in .
  possession of the defendants and hence the plaintiff was not
  entitled to injunction. Aggrieved, Col. Surat Singh filed an
  appeal C.A. No. 16-T/1989-90 before the learned District
F Judge, Patiala, but by judgment and decree dated 16.05.1997,
  the Additional District Judge, Patiala, dismissed the appeal.

       5. Aggrieved by the judgments and decrees passed by the
  Additional District Judge, Patiala, dismissing the two civil
G appeals, the wife of the plaintiff, Smt. Dulari Singh, filed second
  appeals R.S.A. nos. 2579 of 1997 and 2482 of 2008 before
  the High Court and by the impugned common judgment, the
  High Court allowed the appeals and set aside the judgments
  and decrees of the trial court and the first appellate court in the
H two suits and decreed the suit of the plaintiff for possession qua
    NASIB KAUR AND ORS. v. COL. SURAT SINGH                      989
   (DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]
 land measuring 17 karams X 45 karams after declaring the                A
·plaintiff to be the owner of the said property. The High Court
 has also held that the plaintiff was entitled for relief of permanent
 injunction restraining the defendants from raising any
 construction in the said property or alienating the said property.
 Aggrieved, the defendants nos. 5 to 8 in Civil Suit No.735-T/           B
 18.04.1987 and the .legal heirs of defendants nos. 1 and 2 and
 the other defendants in Civil Suit No. 148-T/09.03.1987 have
 filed these appeals.

     6. Learned counsel appearing for the appellants submitted C
that in both the suits, the trial court recorded findings that the •
appellants had purchased the suit property from Col. Girdhar
Singh and his family members to whom the plaintiff had himself
delivered possession of the suit property in the years 1978 and
1979 at the time of execution of the two sale deeds and hence
the appellants were in possession of the suit properties and D
the first appellate court had also concurred with those findings
and dismissed the First Appeals of the respondents but the High
Court reversed the judgments of the trial court and the first
appellate court. He submitted that the High Court's jurisdiction
under Section 100 of the Code of Civil Procedure, 1908, (for E
short the 'the CPC') was limited to only deciding substantial
questions of law which arise in a case and in this case there
was no substantial question of law which arose for decision and,
therefore, the findings of the first appellate court affirming the
findings of the trial court could not have been disturbed by the F
High Court.

      7. Learned counsel for the respondents, on the other hand,
 submitted that this Court has held in lshwar Dass Jain vs Sohan
 Lal [(2000) 1 sec 434] that when material evidence is not               G
 considered, which if considered, would have led to an opposite
 conclusion, a substantial question of law arises for decision
 which the High Court can decide in a Second Appeal under
 Section 100 C.P.C. He submitted that the High Court had,
 therefore, framed a substantial question of law in the impugned         H
    990      SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A judgment: whether the courts below have failed to consider the
  material evidence on record. He submitted that the core issue
   in this case is the very identity of the land sold by the plaintiff
  as Attorney of Nanak Singh and the trial court and the High
   Court had not addressed this core issue and hence a substantial
B question of law had arisen for decision by the High Court. He
  relied on Achintya Kumar Saha vs. Nanee Printers and Others
  [(2004) 12 SCC 368] in support of this submisson. He
  submitted that the High Court answered the aforesaid
  substantial question of law in favour of the respondents after
c considering the material evidence led in the suit. He submitted
  lhat the High Court found on the basis of the evidence that was
  adduced in the suit by the parties that Col. Surat Singh
  (plaintiff), as Attorney on behalf of Nanak Singh, had sold two
  bighas of land with regard to specific khasra nos. i.e. 167 min
  (1-10) and 166 min (0-10) by sale deed Ex.PW-7/2 and the
0
  appellants by virtue of the sale deed in their favour took
  possession of the portion marked EHGF in the site plan
  Ex.PW-9/A whereas the portion sold was in the western side
  of portion marked ABCD as the said portion was owned by
  Nanak Singh. He submitted that the High Court has held in the
E impugned judgment that the portion on the eastern side, i.e.,
  marked with letters EHGF belongs to the plaintiff Col. Surat
  Singh and has accordingly declared that the land measuring
  17 karams X 45 karams as depicted with letters EHGF in site
  plan Ex.PW-9/A was owned by plaintiff Col. Surat Singh and
F the plaintiff was entitled to the relief of permanent injunction
  restraining the defendant from raising any construction in the
  aforesaid suit property or alienating the aforesaid suit property.

        8. We find that in Civil Suit No. 735-T/18.04.1987, plaintiff
G Col. Surat Singh had prayed for declaration, injunction and
  possession and the suit was partly decreed for correction of
  some mutation entries but the trial court clearly held that it would
  in no manner have any effect upon the possession of the parties
  to the suit which may be determined and finalized as and when
H partition proceedings are taken up and decided. Against the
   NASIB KAUR AND ORS. v. COL. SURAT SINGH                     991
  (DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]
decree of the trial court, the plaintiff filed first appeal C.A. No.   A
1721 on 20.03.2004 and the Additional District Judge held by
its judgment and decree dated 18.03.2008 that the trial court
is right in coming to the conclusion that plaintiff had not
produced cogent evidence that he was the owner of the suit
property. Relevant extract from para 29 of the judgment of the         B
first appellate court which records the aforesaid findings and
discusses the evidence in support of the finding is quoted
herein below:

    "It was incumbent upon the plaintiff to produce on record,         C
    the revenue record relating to the suit property, so as to
    ascertain the share of the plaintiff, as alleged by him. The
    perusal of jamabandi Ex.PW-4/1 for the year 1978-79;
    jamabandi Ex.PW-7N for the year 1978-79; jamabandi
    Ex.PW-4/1 show that these pertain only to land measuring
    29 bighas 5 biswas, which is recorded to be the                    D
    ownernship of Col. Surat Singh and other co sharers and
    in possession of one Baghel Singh. Jamabandi Ex.DW7/
    V pertains to land measuring 29 bighas 5 biswas + 9
    bighas 12 biswas + 0-4 biswas which is recorded to be
    the ownership of Col. Surat Singh and other co-sharers and         E
    only land measuring 9 bighas 12 biswas comprised in
    khasra No.165(3-1), 166(3-0), 167(1-16) and 168(1-15) is
    recorded in exclusive possession of Col. Surat Singh. The
    trial court has rightly held that other than the said revenue
    record no jamabandi of the suit land has been produced             F
    by the plaintiff. It has further rightly held that as per sanad
    takseem Ex.PW7/A the land has been partitioned between
    different co-sharers, which is mentioned as 72 bighas 8
    biswas of which 15 bighas 12 biswas fell to the share of
    Col. Surat Singh. But even when the plaintiff has filed the        G
    present suit for declaring his to be owner in possession
    of the suit property, he did not bring forth on file any
    revenue record pertaining to the suit property except
    jamabandies Ex.PW4/1 and Ex.PW7N pertaining to the
    year 1978-79 which are in complete and do not depict the           H
    992       SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A         entire property of Col. Surat Singh as a co-sharer along
          with other co-sharers. Trial court has rightly held that extent
          of ownership and possession of the plaintiff as alleged by
          him was to be proved by him, by brining on record
          documents from which he drew his title over the suit
B         property. But no revenue record in the form of jamabandi
          has been produced on record, so as to prove the extent
          of ownership and possession of the plaintiff, so in the
          absence of any documentary proof regarding ownership
          of the suit property and the revenue record produced by
c         the plaintiff being incomplete and relating to the year 1978-
          79, whereas the present suit was filed in 1987, copy of the
          sanad Takseem Ex.PW7/A depicting the share of Col.
          Surat Singh, are not sufficient to establish the extent of the
          property of which Col. Surat Sigh was the owner. Though,
          Sanad Takseem Ex.PW7/A was prepared on 30.8.92, but
D
          no revenue record after the preparation of the sanad
          takseem has been produced, so as to prove that the
          possession has been delivered and partition had been
          duly acted upon."

E       9. We find that in Civil Suit No. 148-T/9-3-1987, the plaintiff
  Col. Surat Singh had prayed for permanent injunction
  restraining the defendant from raising any construction or
  alienating in any manner whatsoever on the suit property and
  on the basis of the pleadings of the parties one of the issues
F framed was whether the defendants are owners and are in
  possession of the property purchased by them from Col.
  Girdhar Singh and others but by order dated 08.08.1990 the
  trial court deleted this issue and finally by judgment dated
  08.08.1990 dismissed the suit. The plaintiff thereafter filed Civil
G Appeal No.16 on 19.09.1990 and contended before the
  Additional District Judge inter alia that the trial court was not
  right in deleting Issue No.2 by order dated 08.08.1990 at the
  stage when the parties had already led their evidence on that
  issue and the decision on this issue was necessary for deciding
H
   NASIB KAUR ANQ ORS. v. COL. SURAT SINGH                   993
  (DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]

the suit itself but the Additional District Judge rejected this      A
contention of the plaintiff with the following reasons:

     "The simple prayer of the plaintiff made in the suit is that
     the defendants be restrained from raising construction over
     the suit land, or alienating the same. He has admitted in       8
     his plaint and replication that the predecessor-in-interest
     of the defendants; namely, Girdhar Singh, purchased the
     land from him and Nanak Singh, while the same was still
     joint. Naturally the defendants will become co-sharers in
     the land after purchasing the same from Girdhar Singh, as       C
     they would step into his shoes. In these circumstances,
     there was no necessity for framing an issue that the
     defendants are the owners of the suit land."

      10. The aforesaid discussion of the findings of the first
appellate court in the two cases shows that in the suit for          D
declaration of title, the plaintiff had not been able to produce
any evidence to prove his ow.nership over and possession over
the suit land. Moreover, in the suit for injunction, the first
appellate court had held that the plaintiff had admitted in plaint
that Col. Girdhar Singh, the predecessor-in-interest of the          E
defendants, had purchased the land from him and Nanak Singh
while the same was joint and hence there was no necessity for
framing the issue (issue No.2) that the defendants are owners
and are in possession of the suit larid. We find on a reading of
the sale deed dated 17.07.1978 (Ex.PW7/1) executed by the            F
plaintiff that possession of land measuring 2 bighas 16 biswas
out of the share of the plaintiff was handed over to Col. Girdhar
Singh and his family members and it is not in dispute that Col.
Girdhar Singh and his family members thereafter sold this land
to the appellants. We also find on a reading of the sale deed        G
dated 19.07.1979 (Ex.PW7/2) executed by the plaintiff as
Attorney of Nanak Singh that the possession of the land
measuring 2 bighas out of the share of Nanak Singh was also
given to Col. Girdhar Singh and his family members and it is
not in dispute that Col. Girdhar Singh and his family members        H
    994      SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A thereafter sold this land to the appellants in 1987. Thus, the
  appellants were in lawful possession of the said areas of land
  by virtue of the two sale deeds and the plaintiff had not been
  able to establish that he was the owner of the suit land and
  consequently he is entitled to declaration of his title, recovery
B of possession and injunction.

       11. The plaintiff, however, contended in the second appeal
  before the High Court that material evidence had not been
  taken into consideration by the first appellate court and the High
C Court has framed the following substantial question of law:

          "Whether the Courts below have failed to consider the
          material evidence on record?"

          Having framed the substantial question of law, the High
o Court should have pointed out in the impugned judgment the
  material evidence which had not been considered by the first
  appellate court, which if considered, would have established
  ownership of the plaintiff to the suit property. Instead of pointing
  out the material evidence which has not been considered by
E the first appellate court, the High court has made its own
  assessment of the entire evidence as if it was the first appellate
  court and held that the plaintiff was the owner of the suit property
  and was entitled to possession of 17 karams X 45 karams of
  land depicted in letters EHGF in the site plan Ex.PW-9/A and
  that he was also entitled to the relief of permanent injunction
F restraining the plaintiff from raising any construction in the said
  property or alienating the said property. The High Court has
  itself noticed in the impugned judgment that the land depicted
  in the site plan Ex.PW-9/A as EHGF was delivered to Col.
  Girdhar Singh and his family members at the time of execution
G of the sale deed by the plaintiff as Attorney of Nanak Singh on
  19.07.1979 and the appellants had taken possession of the
  aforesaid land from Col. Girdhar Singh and his family members
  in 1987. The appellants were, thus, in legal possession of the
  suit property and the High Court in exercise of its powers under
H
   NASIB KAUR AND ORS. v. COL. SURAT SINGH                    995
  (DECEASED) THROUGH L.RS [A.K. PATNAIK, J.]
Section 100 CPC could not have reversed the findings of the           A
trial court and the first appellate court and decreed the suits for
declaration of title and for recovery of possession and injunction
in favour of the respondents so as to adversely affect such legal
possession of the appellants.
                                                                      B
      12. In Achintya Kumar Saha vs. Nanee Printers and
Others (supra) cited by learned counsel for the respondents,
this Court found that the main issue around which the entire
case revolved was whether the agreement dated 05.07.1976
was a licence or a tenancy and though this issue was before
the trial court and the agreement was held to be a licence, the       C
lower appellate court had not adjudicated upon this issue and
this Court held that when the core issue is not adjudicated upon,
it raises a substantial question of law under section 100 CPC.
In the present case, the core issue was whether the plaintiff was
the owner of the suit property and the first appellate court has      D
held in C.A. No. 1721 on 20.03.2004 that the plaintiff has not
been able to prove his ownership over the suit property and has
further held in C.A. No.16-T filed on 19.09.1990 that the
plaintiff's own admitted case in the plaint is that the appellants
had purchased the suit property from Col. Girdhar Singh and           E
his family members and were in possession of the same and
hence the plaintiff was not entitled to declaration of his title,
recovery of possession and injunction. In this case, therefore,
the first appellate court had decided the core issue against the
plaintiff and no substantial question of law arose for decision       F
in this case by the High Court under Section 100, CPC.

     13. In the result, these appeals are allowed and the
impugned common judgment and decree of the High Court is
set aside. Considering, however, the peculiar facts and               G
circumstances of the case, the parties shall bear their own
costs.

R.P.                                            Appeals allowed.