Holding

Under Section 100 CPC the High Court may entertain a second appeal only on substantial questions of law and cannot re‑appreciate pure factual issues; the defendant’s possession was permissive, not adverse, and he failed to prove a sale deed, so the plaintiff’s decree is restored.

Summary

Roop Singh, the plaintiff, owned 15.32 acres of agricultural land and sued Ram Singh for illegal possession. The defendant claimed he had purchased the land 14 years earlier, sought protection under Section 53A of the Transfer of Property Act, and alleged title by adverse possession. The trial court dismissed his pleadings and decreed in favour of the plaintiff; the first appellate court affirmed. The High Court, in a second appeal, set aside those findings, holding that the defendant’s long possession had ripened into a perfect title. The Supreme Court held that under Section 100 of the CPC a second appeal is limited to substantial questions of law and the High Court cannot re‑appreciate pure factual issues; the defendant’s possession was permissive (batai), not hostile, and he failed to produce any sale deed. Consequently, the High Court’s judgment was set aside and the lower court’s decree in favour of the plaintiff was restored.

Issues considered

Whether the High Court had jurisdiction under Section 100 CPC to interfere with factual findings in a second appeal.
Whether the defendant’s possession, obtained by batai, could be deemed adverse and give rise to title under Section 53A of the Transfer of Property Act or by adverse possession.
Whether the defendant proved the existence of a sale deed or agreement of sale in his favour.

Legislation cited

Code of Civil Procedure, 1908s. 100
Transfer of Property Act, 1882s. 53A

Subjects

second appealSection 100 CPCadverse possessionSection 53Abataiagricultural landpossessionsale deedjurisdiction

Judgment

ROOP SINGH (DEAD) THROUGH LRS.
v.
RAM SINGH (DEAD) THROUGH LRS.

MARCH 28, 2000

[M.B. SHAH AND DORAISWAMY RAJU, JJ.] B

Code of Civil Procedure, 1908 :

S. l 00-Second appeal-Jurisdiction of High Court-Agricultural land-
Illegal possession-Suit by owner for restoration of possession-Defendant C
contending purchase of land-Also claiming to have perfected title by adverse
possession-Trial Court decreed the suit-Appellate Court affirmed the de-
cree-High Court in seco11d appeal re-appreciating evidence and setti11g aside
findings of fact recorded by courts below-Held, s.100 does not confer any
jurisdiction on High Court to inter:fere with pure questions of facf...i.Land
having been given to defendaiit on batai, it is for him to establish hostile D
animus and possession adverse to the knowledge of the owner-Mere posses-
sion for a long time does not result in converting pennissive possession into
adverse possession-Adverse possession-Transfer of Property Act, 1882,
s.53A.
E
The appellant-plaintiff filed a suit against the respondent for
recovery of certain agrkulturnl land alleging that the latter was in
illegal possession thereof. The defendant denied that he was a trespasser
and contended inter alia that he had purchased the land 14 years prior to
the filing of the suit and had paid full sale consideration to the plaintiff;
that his possession was protected under Section 53A of the Transfer of · F
Property Act, 1882; that he acquired the title by adverse possession. The
trial court decreed the suit holding that the defendant did not make the
necessary pleading for getting protection under Section 53A of the Act;
that, even otherwise, defendant did not produce the so-called sale deed,
and that the defendant failed to prove adverse possession because he G
specifically pleaded that he had got possession of the land as a result of
contract with the plaintiff.

The appeal filed by the defendant was dismissed by the first
appellate court, inter alia, holding that the land had been given to the
defendant on 'batai'. The second appeal filed by the defendant was H
605
606 SUPREME COURT REPORTS (2000] 2 S.C.R.
A allowed by the High Court. Being aggrieved, the plaintiff filed the
present appeal.

It was contended for the appellant that the High Court failed to raise
and decide substantial question of law; and_ that the High Court erred in
re-appreciating the evidence considered by the trial court and the first
B appellate court; and arrived at a conclusion contrary to the evidence on
record.

Allowing the appeal, this Court

HELD : 1.1. Under Section 100 of the CPC jurisdiction of the High
C . Court to entertain a second appeal is confined only to such appeals- which
;.
involve substantial question of law and it does not confer any jurisdiction
on the High Court to interfere with pure question of fact. That apart, at
the time of disposing of the matter the High Court not even notice that
question of law formulated by it at the time of admissio.n of the second
appeal as there is no reference of it in the impugned judgment. (610-D-E]
D
1.2. Even with regard to appreciation of evidence, the High Court
materially erred in considering the evidence of witnesses for holding that
defendant had been in possession for 15-16 years from the date of the suit
and that possession being not permissive and adverse to the title of the
E plaintiff, would ripen into perfect title. This finding is quite contrary to
the evidence of the witnesses and the finding given by both the courts
below who after appreciating the evidence of witnesses have specifically
arrived at the conclusion that the witnesses have nowhere stated that
defendant asserted his hostile title. (611-C-D]

F 1.3. The fact finding courts after appreciating the evidence held that
the defendant entered into possession of the premises as a bataidar, that is
to say, as a tenant, and his possession was permissive and there was no
pleading or proof as to when it became adverse and hostile. These findings
recorded by· two courts below were based on proper appreciation of
evidence and material on record and there was no perversity, illegality or
G irregularity in those findings. If the defendant got the possession of suit
land .as a lessee or under a batai agreement then, from the permissive
possession, it is for him to establish by cogent and convincing evidence to
show hostile animus and possession adverse to the knowledge of the real
owner. Mere possession for a long time does not result in converting
H permissive possession into adverse possession. The High Court ought not to
ROOP SINGH (DEAD) TIJROUGH LRS. v. RAM SINGH (DEAD) TIJROUGH LRS. (SHAH, J.J 607
have interferred with the findings of fact recorded by both the courts A
below. [610-E-H)

Thakur Kislum Singh (Dead) v. Arvind Kumar, [1994) 6 SCC 591 and
Mohan I.Al v. Mirza Abdul Gaffar and Am:, [1996) 1 SCC 639, relied on.

2. The High Court has ignored the finding of fact to the effect that the B
defendant has failed to prove the so-called agreement of sale in his favour•.
He has not produced on record any sale-deed or any letter executed by th.e
-~
plaintiff in favour of the defendant or his brother. The appellate court has
observed that defendant has not led the evidence of the persons in whose
presence the said document was executed. There being no document on
record, the alleged contents of the deed could not have been considered by C
referring to the oral say of the defendant. (611-A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4430 of
1996.

From the Judgment and Order dated 29.9.88 of the Madhya Pradesh D
High Court in S.A. No. 255 of 1977.

Dhruv Mehta, S.K. Mehta, Ms. Shobha and Anil K. Sharma for the
Appellant.
Vivek Gambhir and S.K. Gambhir for the Respondent.
E
The Judgment of the Court was delivered by

SHAH, J. This appeal is directed against the judgment and decree
dated September 29, 1988 passed by the High Court of Madhya Pradesh at
Indore in Second Appeal No.255 of 1977, whereby the High Court allowed
the Second Appeal of respondent-defendant and set-aside the judgment and F
decree for possession of the· suit land.

It is the case of the appellant-plaintiff Roop Singh (since deceased) that
he owned 15.32 acres of agricultural land bearing Survey No.106 in village
Shivana of Tehsil Bhikangaon. As the land was in illegal possession of the
respondent Ram Singh (original defendant - since deceased), a notice dated G
07.6.1966 was issued by the appellant calling upon the respondent to restore
the possession of the suit land. The respondent did not hand over the
possession of the land. Hence the plaintiff filed Civil Suit No.IOA/1969
before the Civil Judge, Bhikangaon (MP) for possession of the suit land with
mesne profit @ Rs.500 per year. The defendant denied the co~tention ihat H
608 SUPREME COURT REPORTS [2000] 2 S.C.R.
A he was trespasser and submitted that 14 years prior to the date of institution
of the suit he had purchased the suit land for a consideration of Rs.611 and
had paid full sale consideration to the plaintiff and since then he was in
possession of the suit land. He contended that his possession is protected
under Section 53A of the Transfer of Property Act. He also pleaded that he
B has acquired the title by adverse possession. In the alternative, he pleaded
that he has made improvements in the suit. land and if order for restoring
the possession is passed, plaintiff should be directed to pay the cost of
improvements. By judgment and decree dated 30.7.1971, the Civil Judge
passed decree in favour of the plaintiff . But the Additional District Judge
in Appeal No.46A/71 allowed the appeal and remanded the matter to the
c Trial Court for disposal after framing necessary issues. The Trial Court inter
alia decided following two issues: -

"Whether the plaintiff had made a w1jtten contract for the sale
of the disputed land in 1955 or near about it with the defendant or
D his deceased brother Manohar Singh and delivered the possession of
the disputed land to the defendant after receiving the consideration
of Rs.611 of the disputed land?

Whether the defendant had acquired the title of the disputed
land by adverse possession?"
E
After appreciating the evidence, the Court arrived at the conclusion
that the defendant has not made all the pleadings which are necessary for
getting protection under Section 53-A of the Transfer of Property Act. The
Court also held that even if pleadings are presumed, defendant has failed to
prove the said contention as so-called sale-deed was not produced on record
F
and it was ~lleged that the said document was with the brother of the
defendant who had expired because of snake bite and the document was lost.
Therefore, Court held that the ·statement of the defendant was not sufficient
to establish the so-called sale. For the adverse possession, the Court arrived
at the conclusion that defendant has failed to prove adverse possession
G because he has specifically pleaded that he got possession of the suit land
as a result of contract with the plaintiff. Hence, defendant's entry on the suit
land was permissive and the permissive possession would become adverse .
only if hostile title is asserted and proved by overt acts. The Trial Court,
therefore, decreed the suit of the plaintiff by jud_gment and decree dated
H 15.3:1976.
ROOP SINGH (DEAD) THROUGH LRS. 1: RAM SINGH (DEAD) THROUGH LRS. (SHAH. J.] 609 ~
.Civil Appeal No.20A of 1976 filed by the respondents was dismissed A
~ by the Addl. District Judge, Bargon on 24th March, 1977. The appellate
court considered the contention of the defendant for the alleged sale of the
suit land and arrived at the conclusion that the defendant has neither
produced on record the so-called letter nor document executed in his favour
by the plaintiff, nor he has taken it as a ground in his pleading that he had B
lost the said document, nor he has prayed for production of secondary
evidence. The Court further appreciated the contention of the defendant with
regard to the alleged. sale by observing that even the so-called witnesses, in
whose presence the talks for sale took place, namely, Gulab Singh and Dhyan
Singh, were not examined by the defendant to prove that contract. As agitjnst C
this, it was found that plaintiff had handed over the land to the defendant
in the year 1957-58 for batai (half share) only for two years and the
defendant had not restored the land. The Court arrived at the conclusion that
this fact is borne out by Ex.Pl Khasra for the Samvat Year 2014-15. The
Court further considered that in the Khasra for the Samvat Year 2015-16 in
D
remarks column there is no reference of any agreement of sale. The Court
also referred to khatauni, Pl produced by the plaintiff which mentioned that -
disputed land stood in the name of defendant not as an owner. The Court
appreciated and accepted the evidence of plaintiff that he has neither sold
the land nor did he execute any document in favour of the defendant. After
considering the evidence on record, the court observed that from the E
deposition of the witnesses examined by the defendant it can be stated that
he was in possession of the suit land since 1956-57, but there is no evidence
about the sale in his favour and held that plaintiff had given this land to
defendant on batai for two years i.e. for Samvat Year 2014-15 and 2015-
16 and thereafter defendant had been continuously in unauthorised posses- F
sion. But from this fact, it can not be held that defendant had acquired title
by adverse possession.

Against the said judgment and decree, the defendant preferred Second
Appeal No. 255 of 1977 before the High Court of Madhya Pradesh. The G
High Court allowed the said appeal and set-aside the judgment and decree
passed in favour of the plaintiff. That judgment and decree is challenged by
the plaintiff by filing this appeal.

The learned counsel appearing on behalf of the appellant vehemently
H
610 SUPREME COURT REPORTS [2000) 2 S.C.R.
A submitted that the judgment and decree passed by the High Court is, on the
face of it, illegal and .erroneous as the High Court has failed to raise and
decide substantial question ·of law. She submitted that High Court has re-
appreciated the evidence considered by the appellate court and the trial court
and arrived at a conclusion which is contrary to the evidence on record. As
·B against this learned counsel for the respondent submitted that the High Court
passed the judgment and decree after framing the substantial question of law
and in any case High Court rightly held that the defendant has perfected his
title over the suit land by ·occupying the same for 'more than 12 years. He
submitted that the High Court rightly observed that the settled legal position
C was that .as ~oon as the posses~ion of the premises is handed over pursuant
to an agreement to sale, adverse possession commences from that date and,
therefore, defend_ant has perfected his title by remaining in possession of the
suit land continuously for more than 12 years as an owner.

It is to be reiterated that under Section 100 of the CPC jurisdiction of
D
the High Court to entertain a second appeal is confined only to such appeals
Which involve substantial question of law and it does not confer any
jurisdiction on the High Court to interfere with pure questions of fact while
exercising its jurisdiction under Section 100 CPC. That apart, at the time of
disposing of the matter the High Court did not even notice the question of
E law formulated by it at the time of admission of the second appeal as there
is no reference of it in the impugned judgment. Further, fact findings courts
after appreciating evidence held that defendant entered into the possession.
of the premises as a batai, that is to say, as a tenant and his possession was
permissive and there was no pleading or proof as to when it became adverse
F and hostile. These findings recorded by two courts below were based on
proper appreciation of evidence and material on record and there was no
perversity, illegality or irregularity in those findings. If the defendant got the
possession of suit land as a lessee or under a batai agreement then from the
permissive possession it is for him to establish by cogent and convincing
G evidence to show hostile animus and possession adverse to the knowledge
:_- - of the real owner. Mere possession for a long time does not result in
converting permissive possession into adverse possession. Re: Thakur Kishan
Singh (Dead) v. Arvind Kumar, [1994) 6 SCC 591). Hence, the High Court
ought not to have interfered with the findings of fact recorded by both the
H courts below.
ROOP SINGH (DEAD) THROUGH LRS. >: RAM SINGH (DEAD) THROUGH LRS. [SHAH, J.] 611
It also appears that the High Court has ignored the finding of fact to A
the effect that defendant has failed to prove the so-called agreement to sale
in his favour. He has not produced on record the said sale-deed or a letter
executed by the plaintiff in favour of the defendant or his brother. The
Appellate Court has further observed that defendant has not led the evidence
of the witnesses in whose presence the said document was executed. In our B
view, there being no document on record, the alleged contents of the deed
could not have been considered by referring to the oral say of the defendant.

Further, even with regard to appreciation of evidence the High Court
materially erred in considering the evidence of Anoop Singh for holding that
defendant had been in possession for 15-16 years from the date of the suit c
and that possession being not permissive and adverse to the title of the
plaintiff, would ripen into perfect title. This finding is quite contrary to the
evidence of Anoop Singh and the finding given by both the coUrts below
who after appreciating the evidence of witnesses have specifically arrived at
the conclusion that the witnesses have nowhere stated that defendant asserted D
his hostile title. From the deposition of the said witnesses and the revenue
records, the Courts arrived at the conclusion that since 1956-57 the defendant
was in possession but that possession was as a bataidar. As the suit was
filed on 04.2.1969, it cannot be said that defendant has perfected his title
by adverse possession. In the written statement, the defendant has only E
asserted that about 14 years ago plaintiff gave this land by executing the
sale agreement for Rs.611; the sale deed was written in presence of two
persons of the same village and hence since 1955 defendant is in possession
of the land as an owner/purchaser. Therefore, he has become owner of the
suit property by adverse possession. Except this bare evidence, there is no
other evidence on record to establish that defendant got possession of the F
property by purchasing the same. As against this, the revenue record clearly
establishes th.at plaintiff was the owner of the property and that he had
handed over the possession of the suit land to the defendant for cultivation
as bataidar. It appears that the High Court materially erred in not referring
to the evidence of plaintiff who has specifically deposed that in the year G
1956- 57 he had given the suit land to the defendant for two years on batai.
It is also to be stated that plea of adverse possession and retaining the
possession by operation of Section 53-A of the Transfer of Property Act are
inconsistent with each other. Once it is admitted by implication that plaintiff
came into possession of the land lawfully under the agreement and continued H
612 SUPREME COURT REPORTS [2000] 2 S.C.R.
A to remain in possession till the date of the suit, the plea of adverse possession
would not be available to the defendant unless it has been asserted and
-
pointed
/
out hostile animus
.-
of retaining possession as an owner after getting -.
in possession of the land. Re: Mohan Lal v. Mirza Abdul Gaffar and Anr.,
[1996] 1 sec 639.
B In the result, the impugned judgment and decree passed by the High
Court in Second Appeal No.255 of 1977 requires to be set aside and is
hereby set aside. The appeal is allowed and the judgment and decree passed
by the Appellate Court in Civil Appeal No. 20-A of 1976- is restored. The
parties shall bear their respective costs.
c
Ordered accordingly.

R.P. Appeal allowed. · ·