Rajasthan High Court

Smt.Mohini And Ors vs Smt.Gopali And Ors on 29 July, 2022

Bench: Sudesh Bansal

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

               S.B. Civil Second Appeal No. 448/1996

    1. Smt. Mohini W/o Late Chothmal.
    2. Rambabu son of Late Chothmal residents of Gali Gulji
    Dhabhai, Gangori Bazar, Jaipur
                                                       ----Appellants-Defendants
                                        Versus
    1.Smt.Gopali @ Shyanti Devi D/o Prabhu Narayan W/o Tulsi Ram
    Brahmin, R/o Gali Gulji Dhabai, Gangori Bazar, Jaipur
                                                          -----Plaintiff-respondent
    2. Santosh D/o Late Chothmal
    3. Billo @ Rekha D/o Late Chothmal
    4. Smt. Madhu D/o Late Chothmal
    R/o Gulji Dhabai ki Gali, Gangori Bazar, Jaipur
                                      ----Defendant-Proforma Respondents


    For Appellant(s)          :    Mr. R.K Daga with
                                   Mr. Prashant Daga and
                                   Mr. Rahul Singh
    For Respondent(s)         :    Mr. M.M. Ranjan, Sr. Advocate with
                                   Mr. Aman Pareek and
                                   Mr. Daulat Sharma



               HON'BLE MR. JUSTICE SUDESH BANSAL

                                    Judgment
   Reserved On:                                                     July 04, 2022

   Pronounced On:                                                   July 29th, 2022

   BY THE COURT

Reportable

1. This civil second appeal arises out of a civil Suit for eviction

and possession bearing Civil Suit No.513/64 titled as Smt. Gopali

@ Shanti Devi Vs. Sh. Chothmal & Anr. led way back on 09-12-

1964, decreed vide judgment dated 30.07.1994 in favour of

plaintiff-respondent No.1 and against the legal representatives of

deceased defendant No.1. The legal representatives of defendant

(2 of 34) [CSA-448/1996]

No.1, preferred First Appeal No.14/1994, wherein the judgment

and decree dated 30.07.1994 has been affirmed vide judgment

dated 03-10-1996 passed by the Court of Additional District Judge

No.7, Jaipur City, Jaipur. This second appeal has been preferred by

two legal representatives of deceased defendant No.1- Chothmal

and his other legal representatives have been impleaded as

respondent Nos.2, 3 and 4 as proforma respondents. The civil suit

has been decreed in favour of respondent No.1-plaintiff and

against legal representatives of deceased defendant No.1

(appellants and respondent Nos.2, 3 and 4) in following manner:-

"दावा वाददनी ववरुद्ध प्रव प्रतिवादी गण 1 /1 लगाय प्रति 1/5 से वादग्रस्त सेम्पव प्रति

एफ ज़ी एच से कबा प्राप्राप प्राप्ति करन करने बा करने ब प्रति 50.20 रु वसेसूल करन सेहहि प्रति मय

खच्चा द डिकिक्री वकया ा जा प्रतिा हिा है। दायरी दावा ददनादिनांक 09.12.1964 से प्रतिा प्राप्राप प्राप्ति

कबा वादग्रस्त मकान वादनी कवादनी को उपरवादनी कोक्त प्रव प्रति वादीगण से 5 /- रु

माससेक किक्री दर से हिज़्चा इस्तमाेमालल ददलाया ा जा प्रतिा हिा है। वाकई कबा

सेदिनांभलान हि प्रतिेतु प्रव प्रतिवादीगण कवादनी को दवादनी को माहि का सेमय ददया ा जा प्रतिा हिा है। खच्चा

द डिकिक्री वनयमानेतुसेार करने बनाया ा जाव।"

2. Heard counsel for both parties and perused the record as a

whole.

3. The co-ordinate bench of this Court vide order dated

14.05.1997, framed substantial questions of law for consideration

in the instant second appeal.

It appears that while formulating the substantial questions of

law, some inadvertent error occurred in mentioning the reference

of status of parties in the present appeal with context to their

status before the trial court, therefore, the substantial questions

of law are being narrated with the correction as required:-

(3 of 34) [CSA-448/1996]

"(I)Whether the findings recorded by the trial court on the question of title to suit property in its judgment and decree dated 30th July, 1994 which is based on the decision of the Civil Court, Jaipur decided on 21st February, 1905 in the suit title Gagnabux Vs.Exhibit A-8 is open to challenged in the present appeal by the defendant-appellant on the plea of adverse possession?

(II)Whether it is open to the Appellant to challenge the impugned order dated 3rd October, 1996 of the First Appellate Court, particularly when the question with regard to the title to suit property having been derived by the plaintiffs-respondents (inadvertently referred as defendants-respondents) on the basis of duly executed gift deed in favour of the said plaintiff (inadvertently referred as defendant) vide Exhibit A-2 has though dealt with by the trial court in its order dated 30th July,1994, has not been dealt with at all by the First appellate Court in its impugned order under challenge?

(III)Whether the findings recorded by the trial court on the question of gift deed which is the basis on which the plaintiff-respondent (inadvertently referred as defendant-

respondent) is claiming title over the suit property can be said to be perverse and without any evidence in its support, particularly when the First Appellate court has not dealt with the said question at all in its impugned order under challenge?

(IV)Whether the defendant-appellant (inadvertently referred as plaintiff-appellant) can be said it to have derived his title over the

(4 of 34) [CSA-448/1996]

suit property on the plea of adverse possession as against plaintiff-respondent o(inadvertently referred as defendant-respondent) who has established his right, title and interest over the said property by virtue Exhibit A-2 which is gift deed?

(V)Whether the findings recorded by the court below on the question of adverse possession of the appellant can be said to be perverse?"

3. Before dealing with the substantial questions of law, the

checkered history of the present case as per material available on

record may be recapitulated as under:-

Back History of Case

(I) Initially, respondent No.1 plaintiff instituted civil suit

No.513/1964 on 09.12.1964 for eviction on the ground of default

and denial of title, in alternative, pleadings and prayer for

possession and mesne profits, based on title, were also made. The

contesting party, who is defendant No.1 denied his possession in

suit property in the capacity of tenant but claimed his possession

as owner. The suit initially dismissed on merits vide judgment

dated 16.09.1969. On filing first appeal, the suit for possession

based on title was decreed against defendant No.1 vide judgment

and decree dated 03.11.1980. The legal representatives of

defendant No.1, preferred second appeal No.61/1981 and at the

stage of second appeal, an application under Order 6 Rule 17 CPC

seeking amendment in the written statement was filed on

26.07.1990. By way of amendment, the legal representatives of

defendant No.1 sought to add the plea of acquiring title of suit

property by way of adverse possession. The High Court, while

deciding the second appeal vide its judgment dated 13.12.1990,

(5 of 34) [CSA-448/1996]

observed that since the factum of oral tenancy of defendant No.1

in the suit property is not proved, the real question of controversy

between parties, is regarding adverse possession. The High Court

granted the application for amendment and allowed to add the

plea of adverse possession, claimed by defendant.

Consequentially, the decree for possession dated 03.11.1980 was

set aside and after allowing the amendment in written statement,

the Civil Suit No.513/1964 was remanded to the trial court (Munsif

West), Jaipur City, Jaipur with direction that the trial court will

frame additional issues as might arise on account of amended

written statement and then would allow the parties to adduced

additional evidence on the additional issues, and thereafter, the

trial court would decide the original Civil Suit No.513/64 afresh, in

accordance with law.

(II) After the remand, the trial court framed additional issues

No.7A and 7B relating to plea of defendant No.1 to acquire title of

suit property by way of adverse possession, as per the

amendments made in the written statement and allowed parties to

adduce their respective evidence. Thereafter, the trial court, while

deciding the suit afresh, decided the issue No.4, relating to

ownership of suit property in plaintiff's favour. The additional

issues No.7A and 7B, regarding claiming of adverse possession by

the legal representatives of defendant No.1, have been decided

against them and finally the decree for possession along with

mesne profits has been passed in favour of respondent-plaintiff

vide judgment dated 30.07.1994.

                                              (6 of 34)                  [CSA-448/1996]


(III)     The legal representatives of defendant No.1, filed first

appeal. The first appeal has been dismissed on merits vide

judgment dated 03.10.1996, affirming the decree for possession

and mesne profits. The first appellate court too declined to accept

the plea of adverse possession claimed by the legal

representatives of defendant No.1. Hence this second appeal has

been preferred, wherein the aforementioned substantial questions

of law have been framed for consideration.

Facts of Case

(A) The present civil suit was led by respondent No.1-plaintiff

namely, Smt. Gopali Devi against the defendant No.1 Chouthmal

(now deceased and represented through appellants and

respondents No.2, 3 and 4) and defendant No.2 Sh. Prabhu

Narain, who happens to be father of plaintiff. Plaintiff came out

with a case that her father, Prabhu Narain, defendant No.2 was

owner of the house property comprising haveli of two chowks

situated at Rasta Raja Shyodas Ji, Purani Basti, Jaipur marked as

A.B.C.D. in yellow and pink colour in the site plan appended with

plaint. It was alleged that part of the house property, comprising

back chowk, Taj, gokha, Khamghar and tin shed kitchen with

khamchabutari marked as E.F.G.H. and shown with yellow colour,

were gifted by her father Prabhu Narain to the plaintiff by way of

gift deed dated 19.01.1964 registered on 04.02.1964. It was

alleged that at that point of time, defendant No.1 Chothmal was in

possession of house property marked as F.G.H. as tenant of

defendant No.2, therefore, symbolic possession of tenanted

portion and actual possession of remaining portion was handed

over to the plaintiff.

(7 of 34) [CSA-448/1996]

NOTE- In the present suit, the suit property comprises only

part of haveli marked as F.G.H. including Khamghar, tin shed

kitchen and Khamchabutari along with back chowk, taj and gokha,

which was in possession of the defendant No.1 Chothmal. Other

parts of the haveli are not included in suit property.

(B) Plaintiff averred in the plaint that Chothmal, defendant No.1

was tenant of her father Prabhu Narain, defendant No.2 in the

house portion marked as F.G.H. on a monthly rent of Rs.15/- per

month w.e.f 02.03.1958 and he paid rent only up to 01.12.1963.

His tenancy was an oral tenancy and the defendant No.1 was

intimated orally about the gift deed made by defendant No.2 in

favour of plaintiff and as such by operation of law, defendant No.1

became tenant of plaintiff.

tenant in the suit property, on the ground of default in payment of

rent and denial of title.

(D) It is important to note that in alternative to the prayer for

eviction on the ground of default and denial of title, the plaintiff

prayed for possession of the suit property on the basis of title, in

case the tenancy of defendant No.1 is held not proved.

(E) In relation to the alternative case for possession based on

title of the suit property, it was stated in the plaint that ancestors

of defendant No.2 Prabhu narain, were the owners of the whole

property, comprising two chowks and marked as A.B.C.D., which

includes the suit property marked as F.G.H. of Khamghar, tin shed

kitchen with khamchabutari along with back chowk, taj and gokha.

There had been a prior litigation between Gangabakhs, father of

defendant No.2 and one Chander son of Dalu. This previous

(8 of 34) [CSA-448/1996]

litigation claiming absolute right over the property, was decided in

favour of Gangabaksh and against Chander vide judgment and

decree dated 01.07.1908 and through this judgment and decree

dated 01.07.1908, a declaratory decree in favour of Gangabaksh,

was passed conferring ownership and title of the property into

Gangabaksh. It was pleaded that thereafter, there was a

compromise between Gangabaksh and Chander, and latter

executed a rent note in favour of Gangabaksh on Miti Ashad Budi

5 Samvat-1967. After death of Chander, his widow Mst. Gaura

remained in possession of suit property as tenant and she

executed a rent note on 02.03.1943 in favour of defendant No.2.

As per plaint, Mst. Gaura vacated the suit property in the year

1954 and thereafter, defendant No.2 Prabhu Narain let out the suit

property to defendant No.1, Chothmal on monthly rent of Rs.5/-

w.e.f 02.03.1958. The defendant No.1 Chothmal did not pay rent

after 01.12.1963 and hence committed default. Further, the

defendant No.1 denied his status as tenant in the suit property but

claimed ownership qua the defendant No.2 as well as the plaintiff,

hence a prayer for eviction on the ground of default and denial of

title has been made. Alternative, in case oral tenancy of defendant

No.1 is not proved, plaintiff pleaded and prayed for decree of

possession against defendant No.1 on the basis of his title.

(F) The defendant No.1 Chothmal submitted his written

statement on 16.04.1965. Defendant No.1 Chothmal admitted his

possession over the suit property but categorically denied that he

was/is a tenant in the suit property marked as F.G.H. On the

contrary, defendant No.1 asserted his own ownership since time of

his ancestors. It is worthy to notice that in his written statement

(9 of 34) [CSA-448/1996]

submitted on 16.04.1965, defendant No.1 has nowhere disclosed

and detailed out as to how and on what basis he claims the

ownership of the suit property.

It is further important to notice that the defendant No.1

moved an application dated 26.07.1990 under Order 6 Rule 17

CPC, to amend the written statement at the stage of second

appeal. In the amendment application, the defendant No.1 sought

to amend and add the facts that his father namely, Laddu was

adopted by Chander and Mst. Gaura and according to that

pedigree table, the defendant No.1 is grandson of Chander and

Mst. Gaura. The defendant No.1 also prayed to add the plea of

adverse possession qua the plaintiff. The High Court, while

deciding the second appeal vide judgment dated 13.12.1990,

observed that in backdrop of facts where it is not established that

suit property was let out to defendant No.1 on 02.03.1958 but

plaintiff's predecessors were declared owner by virtue of the

previous judgment dated 01.07.1908, the claim of the defendant

No.1 to acquire the title by way of adverse possession assumes

importance. Accordingly, the High Court allowed the amendment

application and permitted defendant No.1 to amend his written

statement. Consequentially, the suit was remanded back to the

trial court for deciding afresh after framing additional issues and

allowing parties to adduce evidence on the amended pleadings

relating to the claim of defendant No.1 to acquire title by way of

adverse possession.

(G) The defendant No.2 namely, Prabhu Narain submitted his

written statement in support of plaintiff's case.

(10 of 34) [CSA-448/1996]

(H) Learned trial court, as per rival pleadings of plaintiff and

defendant No.1 settled issues. Issue No.1 pertains to execution of

gift deed dated 29.01.1964 by defendant No.2 in favour of plaintiff

and regarding relationship of landlord and tenant of plaintiff and

defendant No.1. Issue No.2 is regarding default. Issue No.3 is

regarding claiming eviction decree on the ground of denial of title.

Issue No.4 is regarding ownership of plaintiff of the suit property

and consequentially whether plaintiff is entitled for the decree of

possession against defendant No.1. Issue No.5 is for claim of

mesne profits. Issue No.6 relates to valuation of the suit property

and court fee. Issue No.7A, additionally framed after allowing the

amendment in written statement, is regarding the plea of

defendant to claim that they have acquired the title over the suit

property by way of adverse possession having continuous

possession for 12 years prior to institution of the suit. Issue No.7B

pertains to the prove of pedigree of defendant No.1 being

cognates and agnates of late Chander and Mst. Gaura, as claimed

by way of amendment in the written statement. Issue No.7 is of

relief.

(I) Learned trial court, decided issue No.1, 2 and 3 against

plaintiff holding that it is not proved that the suit property was let

out by defendant No.2 orally on 02.03.1958 to defendant No.1, as

pleaded in the plaint. The trial court while deciding issue No.1 has

held that the execution of the gift deed dated 29.01.1964 by

defendant No.2 in favour of plaintiff is proved. It may be noted

that the gift deed has not been questioned by the defendant nor

has been challenged. Issue No.4 has been held in favour of

plaintiff and the plaintiff has been held to be owner of the suit

(11 of 34) [CSA-448/1996]

property, fundamentally on the basis of declaratory decree dated

01.07.1908, passed in favour of predecessors of plaintiff Sh.

Gangabaksh. The claim of ownership by defendant No.1 in

rebuttal of issue No.4, has been disbelieved/declined. While

deciding Issue No.7Aand 7B, the trial court has observed that

defendant No.1 could not proved the pedigrees to show his status

as grand-son of Chander and Mst. Gaura. The theory of adoption

of Sh. Laddu father of defendant No.1, to Chander and Mst. Gaura

was held to be afterthought, which was added by way of

amendment in the written statement after 25 years and there was

not evidence to prove adoption, hence, not proved. The

possession of defendant No.1 is in continuity to the possession of

Chander and Mst. Gaura. The trial court found that defendant No.1

came in possession of suit property after death of Mst. Gaura in

the year 1956, hence his claim to have independent possession for

continuous 12 years prior to institution of the suit in the year

1964, is not proved and accordingly, the plea of defendant to

claim acquiring of the title by virtue of adverse possession, was

declined. The issues No.7A & 7B decided against the defendant

No.1. Issues No.5 & 6 were decided in plaintiff's favour. Finally, the

learned trial court decreed the respondent No.1-plaintiff's suit for

possession along with mesne profits vide judgment and decree

dated 30.07.1994.

(J) The legal representatives of deceased defendant No.1

challenged the judgment and decree for possession and mesne

profits dated 30.07.1994, by way of filing first appeal. The first

appellate court has re-heard and re-considered the whole matter

and observed that as far as issues relating to relationship of

(12 of 34) [CSA-448/1996]

landlord and tenant, are concerned they have been adjudicated

against the plaintiff in previous judgments dated 16.09.1969 &

03.11.1980 and the High Court, while remanding the suit after

allowing the amendment in the written statement vide judgment

dated 13.12.1980, has not disturbed the findings of issues No.1,2

and 3. However, after remand, the trial court has again decided

the issue No.1 to 3 on merits against plaintiff and passed decree

for possession on the basis of title. This decree is under challenge

in the first appeal, therefore, the issues fall for consideration are

confined to the findings passed by the trial court in relation to the

issues No.4, 7A and 7B. The first appellate court too declined to

accept the plea of adverse title of the defendant-appellant and

treating the plaintiff as owner of the suit property on the basis of

previous judgment dated 01.07.1908, affirmed the decree for

possession and mesne profits and dismissed the first appeal on

merits vide judgment dated 03.10.1996.

(K) It may be relevant to note here that the suit property

marked as F.G.H., is part of the house property (haveli) marked as

A.B.C.D. in the site map appended with the plaint. The

predecessor of plaintiff, Gangabaksh was declared as owner of the

whole house property and the suit property F.G.H. is only a part. It

has come on record that in the portion of house property

comprising front chowk, one person namely, Chuthan Lal was

tenant, against whom suit was filed and same was decreed

(Ex.A3) has vacated and handed over the possession to the father

of plaintiff. The suit property in the present suit is the part of the

house property (haveli) including chowk of back portion.

(13 of 34) [CSA-448/1996]

4. With the backdrop of aforementioned facts, it stands clear

that the impugned decree for possession and mesne profits has

been passed in favour of respondent No.1-plaintiff, based on the

ownership of predecessors of plaintiff namely Gangabaksh and the

plea of legal representatives of defendant No.1 to acquire the title

of suit property by way of adverse possession has not been

accepted. Therefore, in the present case the substantial questions

of law are required to be examined in the backdrop of such factual

matrix.

Objection about passing decree for possession in eviction suit

5. Counsel for appellants apart from making his submissions on

substantial questions of law framed in the present appeal, has

raised an additional argument that respondent No.1-plaintiff filed

suit for eviction and arrears of rent and therein an alternative

prayer for possession and mesne profit based on title of plaintiff

was made. He submits that in the civil suit for eviction and arrears

of rent, the decree for possession based on title could not be

passed. In support of his contention, he has placed reliance on

judgments passed in case of Rajendra Tiwary Vs. Basudeo

Prasad [(2002) 1 SCC 90] and Tribhuvanshaker Vs.

Amrutlal [(2014) 2 SCC 788].

6. In order to deal with such an additional argument raised first

time during final arguments at the stage of second appeal, at the

outset it may be observed that such arguments does not arise out

of pleadings of both parties nor any such objection was raised

either before the trial Court or before the first Appellate Court.

Even at the time of admission of this second appeal for hearing,

no such substantial question of law has been framed. This is an

(14 of 34) [CSA-448/1996]

admitted fact that in pleadings of plaint that plaintiff has pleaded

and prayed for passing the decree for possession and mesne profit

based on title of plaintiff, in case, defendant No.1 is not proved to

be his tenant in the suit property. There is an averment in

pleadings of plaint to show how the title of suit property vests in

plaintiff. The plaintiff had disclosed in the plaint that his

predecessor namely Gangabaksh was owner of the property and

reference of the judgment and decree dated 01.07.1908 passed in

favour of Gangabaksh was given in the plaint. Gangabaksh

happened to be grandfather of plaintiff. It was pleaded that

plaintiff's father has gifted the portion of property to plaintiff

through gift deed dated 29.01.1964 registered on 04.02.1964. In

the written statement, defendant No.1 claimed his own ownership

over the suit property and denied his status as tenant of plaintiff.

In the first written statement filed by defendant No.1 on

16.04.1965, defendant No.1 asserted his own ownership over the

suit property since time of his ancestors but no details were given

and later on by way of an application for amendment dated

26.07.1990, the defendant No.1 has prayed to amend the written

statement by seeking to add additional facts that he has acquired

title of suit property by virtue of adverse possession and

simultaneously claimed his possession through Late Chander and

Mst. Gaura with the background that the father of defendant No.1

namely Laddulal was adopted by Chander and Mst. Gaura,

therefore, the defendant No.1 claimed himself to be grandson of

Mst. Gaura. The amendment application was moved by appellants

at the stage of their previous second appeal No.61/1981 before

the High Court. The High Court, while hearing the application for

(15 of 34) [CSA-448/1996]

seeking amendment in written statement along with second

appeal itself observed in its final order dated 13.12.1990 that

since it is not established that the suit property was let out to

defendant No.1 orally on 02.03.1958 and ownership of suit

property vests with the predecessors of plaintiff Gangabaksh,

therefore, the proposed amendment of defendants for taking a

plea of acquiring the adverse possession assumes importance.

Accordingly, the High Court vide its judgment dated 13.12.1990,

allowed the application for amendment and permitted the

appellant-defendant No.1 to amend his written statement taking a

plea of acquiring title by way of adverse possession and remanded

the suit back to the trial Court for deciding afresh after framing

additional issues and after allowing parties to adduce additional

evidence on the amended pleadings.

7. Therefore, after the remand, the present suit was virtually

remained as a suit for possession with mesne profit and in defense

the plea of the defendant No.1 to acquire the title by way of

adverse possession was to be decided. In such circumstances, the

present suit was not confined within the scope of the Rajasthan

Rent Control Act, 1950 on the ground of default and denial of title.

8. Appellants-defendants right from beginning is well aware

that the present suit is a suit for possession and mesne profit

based on title and they have taken their defense in the written

statement accordingly. As per rival pleadings of both parties

specific issue No.4 was framed as under:-

"Whether plaintiff is owner of F.G.H. property and in case tenancy of defendant is not proved, plaintiff is entitled for the decree for possession of houses F.G.H. on the basis of her title?"

(16 of 34) [CSA-448/1996]

9. Thereafter, in the amended written statement, the defendant

No.1 has added pleadings claiming to acquire the title by way of

adverse possession and accordingly the issue No.7-A was

additionally framed which reads as under:-

"Whether the predecessor of defendants namely Mst. Gaura has been in possession of the suit property since prior to 1951 and the defendants were in continuous possession from 12 years before filing of the suit, therefore, the title of defendants has become absolute over the suit by virtue of adverse possession?"

10. Appellants-defendants have adduced their evidence to show

their ownership and to prove their plea to acquire the ownership

of suit property by way of adverse possession. Thereafter, the trial

Court as well as the first Appellate Court has appreciated the

evidence of both parties on the issue of ownership of the suit

property and issue No.4 has been adjudicated in favour of plaintiff

and issue No.7-A has been decided against defendants. It may be

noticed that although after the remand of suit by the High Court

vide judgment dated 13.12.1990, when issues related to tenancy

have already been decided against the plaintiff by both Courts in

their previous judgments dated 16.09.1969 and 03.11.1980 and

the High Court did not upset findings of those issues and

remanded the matter, mainly due to allowing the amendment in

the written statement, permitting the defendant to take the plea

of adverse possession, the trial Court was not required to decide

the issues No.1 to 3 relating to grounds of eviction afresh. Be that

as it may, if after the remand the trial Court decided these issues

No.1 to 3 afresh in the judgment dated 30.07.1994, the first

Appellate Court has clarified this situation in its judgment dated

03.10.1996. The first Appellate Court, placing reliance on the

(17 of 34) [CSA-448/1996]

judgment of the Hon'ble Supreme Court in case of Mohan Lal Vs.

Anandibai [AIR 1971 SC 2177] has observed that findings of

both Court on issues No.1 and 2 relating to relationship of landlord

and tenant were not set aside by the High Court while remanding

the suit, therefore, those findings have attained finality. Therefore,

in the backdrop of such factual matrix, the present suit may not

be treated as a suit for eviction within the scope of Rajasthan Rent

Control Act, 1950 only.

11. The judgment of the Hon'ble Supreme Court delivered in

case of Rajendra Tiwary (supra) is referred in the subsequent

judgment of Tribhuvanshankar (supra) relied upon by counsel

for appellants and proposition of law has been set-forth as under:-

"On a seemly analysis of the principle stated in the aforesaid authorities, it is quite vivid that there is a difference in exercise of jurisdiction when the civil court deals with a lis relating to eviction brought before it under the provisions of Transfer of Property Act and under any special enactment pertaining to eviction on specified grounds. Needless to say, this court has cautiously added that if alternative relief is permissible within the ambit of the Act, the position would be different. That apart, the Court can decide the issue of title if a tenant disputes the same and the only purpose is to see whether the denial of title of the landlord by the tenant is bona fide in the circumstances of the case. We respectfully concur with the aforesaid view and we have no hesitation in holding that the dictum laid down in Bhagwati Prasad (supra) and Bishwanath Agarwalla (supra) are distinguishable, for in the said cases the suits were filed under the Transfer of Property Act where the equitable relief under Order VII Rule 7 could be granted."

12. It may be noted that eviction suit under the provisions of

Rajasthan Premises (Control of Rent and Eviction), Act, 1950 are

filed before the civil court and there is no embargo to plead and

pray an alternative prayer for possession based on title. The Full

(18 of 34) [CSA-448/1996]

Bench of Rajasthan High Court, in case of Smt. Pushpa Sharma

Vs. Gopal Lal Rawat [AIR 1986 Rajasthan 187] considered

this aspect that in the eviction suit preferred on the ground of set

forth under Section 13 of the Rajasthan Rent Control Act, 1950, a

decree for possession can be granted in favour of plaintiff on the

basis of his title. Following two issues were referred to be

adjudicated by the Full Bench:-

"(i) Whether in a suit based on the relationship between the landlord and tenant, making prayer for eviction on the grounds set forth under Section 13 of the Rajasthan Premises (Control of Rent and Eviction), Act, 1955, a decree for possession can be granted in favour of the plaintiff on the basis of his title?,

(ii) Whether when the present issue is framed mentioning the allegations of the title of the plaintiff also, the defendant asserts his own title and denied the plaintiff's and both the parties led evidence, can it be said that no prejudice is caused to the defendant if the decree for possession is based on proof of the title of the plaintiff?"

After discussing the scheme of Act of 1950 and the scope of

pleadings of parties, both questions were answered as under:-

"Our answer therefore to the questions referred is: (1) In a suit based on the relationship between the landlord and tenant, making prayer for eviction on the grounds set forth under S.13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, a decree for possession can be granted in favour of the plaintiff on the basis of his title.

(2) When any issue is framed on the basis of allegation of title of the plaintiff and the defendant asserts his own title and denies the plaintiff's title and both the parties lead evidence without raising any objection, question of prejudice caused to the defendant may be seen if decree for possession is to be granted on proof of title of plaintiff."

13. Thus, after the aforesaid discussion, the first argument

raised by appellants seems to be preposterous and does not give

(19 of 34) [CSA-448/1996]

rise to any substantial question of law in the present second

appeal.

Discussion on Substantial questions of law

14. Substantial questions of law No.I and V:-

(I)Whether the findings recorded by the trial court on the question of title to suit property in its judgment and decree dated 30th July, 1994 which is based on the decision of the Civil Court, Jaipur decided on 21st February, 1905 in the suit title Gagnabux Vs.Exhibit A-8 is open to challenged in the present appeal by the defendant-appellant on the plea of adverse possession?

(V)Whether the findings recorded by the court below on the question of adverse possession of the appellant can be said to be perverse?"

15. The substantial questions of law No.I and V are interlinked

and can be dealt with simultaneously. In order to answer these

questions of law, the very basis of appellants-defendants to claim

acquiring of his ownership over the suit property by virtue of

adverse possession has to be seen. Plaintiff in the plaint has

pleaded that property, (Haveli) marked as A.B.C.D. is of

possession and ownership of her father-defendant No.2 Prabhu

Narain who gifted the suit property, houses E.F.G.H. along with

outer chowk, Taj and Gokha to her through gift deed dated

29.01.1964 registered on 04.02.1964. It was further pleaded that

Gangabaksh who was father of defendant No.2 has succeeded in

the civil suit claiming his right and ownership over the properties

against one Chander Son of Dalu and the suit was decreed vide

judgment dated 01.07.1908. The judgment and decree dated

01.07.1908 has been tendered in evidence and available on record

as Ex.A2. The first Appellate Court has clearly observed that this

(20 of 34) [CSA-448/1996]

judgment is declaratory decree affirming the ownership of the

property to plaintiff's predecessor namely Gangabaksh.

Defendants have not disputed passing of this judgment and

decree. This judgment and decree was passed against Chander

son of Dalu. It has come on record that Mst. Gaura was wife of

Chander. The contention of defendants is that since his father

Laddulal went in adoption to Chander and Mst. Gaura, he becomes

their grandson and as such by virtue of their long possession, the

possession has become adverse to the plaintiff. Thus, the

defendant No.1 claims to acquire the ownership of the suit

property by virtue of his long possession since time of his

grandfather and grandmother Chander and Mst. Gaura. Therefore,

while making such contention, the defendant No.1 has not

disputed the ownership of the property in favour of plaintiff's

predecessor Gangabaksh through judgment and decree dated

01.07.1908. The issue falls for consideration is whether the

possession of defendant No.1 has become adverse to plaintiff.

16. In this regard, counsel for respondents has placed reliance

upon the judgment of the Hon'ble Supreme Court delivered in

case of Brijesh Kumar Vs. Shardabai [(2019) 9 SCC 369] to

show the law regarding adverse possession. Para 13 of the

judgment reads as under:-

"13. Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner as held in M.Venkatesh (supra). The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of

(21 of 34) [CSA-448/1996]

his possession, the factum of possession known and hostile to the other parties, continuous possession over 12 years which was open and undisturbed. The respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the respondent to establish possession as a fact coupled with that it was open, hostile and continuous to the knowledge of the true owner. The respondent-plaintiff failed to discharge the onus. Reference may also be made to Chatti Konati Rao & Ors. vs. Palle Venkata Subba Rao, on adverse possession observing as follows:

"15. Animus possidendi as it well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, durationof possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in hi favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law by a blended one of fact and law."

17. The conception of adverse possession fundamentally

contemplates a hostile possession by which there is a denial of

title of true owner. By virtue of remaining in possession, the

possessor takes an adverse instance to the title of true owner. In

fact, he disputes the same. Therefore, when defendants have

taken resort to the defense of acquiring the title of suit property

by way of adverse possession, they cannot dispute the ownership

of plaintiff and plaintiff's predecessor Gangabaksh but it is

(22 of 34) [CSA-448/1996]

incumbent for defendants to show that their possession had

become adverse to the ownership of plaintiff.

18. In this regard, defendant No.1 could not prove his

relationship, nexus or continuity of possession over the suit

property since time of Chander and Mst. Gaura. It appears from

record that initially when first written statement was filed by

defendant No.1 on 16.04.1965, defendant No.1 did not take the

plea of adverse possession rather asserted his ownership over the

suit property since time of his predecessors. Even in rebuttal to

the issue No.4, defendant No.1 produced documents of Khasra

settlement (Ex.A8), map settlement (Ex.A9) and one witness

DW14 to prove his own exclusive ownership but these documents

do not confer any title of the suit property and the trial Court as

well as the first Appellate Court declined to accept the title of

defendants. The title suit property was found to be vested with the

plaintiff. Firstly, on the basis of judgment and decree dated

01.07.1908 passed in favour of plaintiff's predecessor Gangabaksh

and further on the basis of registered gift deed dated 29.01.1964

(Ex.1) made in favour of plaintiff by her father.

19. When defendant No.1 miserably failed to show his title over

the suit property in counter to plaintiff's ownership, it appears that

then after expiry of near about 25 years, the defendant No.1

sought to add the defense of acquiring the title by way of adverse

possession in his written statement by way of moving an

application under Order 6 Rule 17 CPC on 26.07.1990. By way of

amendment, defendant No.1 tried to show his nexus and

relationship with Late Chander and Mst. Gaura and took a plea

that his father Laddulal was adopted to Chander and Mst. Gaura.

(23 of 34) [CSA-448/1996]

Such plea of adoption, added in the written statement after 25

years is without any details and even no specific date of adoption

nor any evidence of ceremony of adoption. Both Courts have

observed that there is no evidence at all on record to prove

adoption of Laddulal, the father of defendant No.1 to Chander and

Mst. Gaura. In absence of proof of adoption, the defendant No.1

has failed to show his possession over the suit property in

continuity to the possession of Chander and Mst. Gaura being their

grandson. The possession of defendant No.1 over the suit property

has been treated as independent and he came in possession after

death of Mst. Gaura. It has come on record, though not very

specifically, that Mst. Gaura died in the year 1956. Thereafter, the

defendant No.1 came in possession over the suit property.

Accordingly, the possession of defendant No.1 over the suit

property from 1956, does not complete the 12 years at the time of

institution of the present suit on 09.12.1964 and therefore, the

plea of defendant No.1 to acquire title of suit property by adverse

possession has rightly been not accepted by both Courts.

20. Counsel for appellants has argued that plaintiff's father

Prabhu Narayan defendant No.2 instituted a civil suit for eviction

against Mst. Gaura which was dismissed with liberty to file a suit

for possession based on title vide judgment (Ex.A10) but no suit

for possession was filed. Learned counsel argued that plaintiff

could not prove that Chander executed rent note in favour of

Gangabaksh and Mst. Gaura written any rent note in favour of

Prabhu Narayan. Mst. Gaura was in possession of the suit property

prior to 1951. Hence, the suit instituted on 09.12.1964 has

become barred by limitation for the possession. Such arguments is

(24 of 34) [CSA-448/1996]

of no help and advantage to appellants in absence of showing any

nexus or his relationship as successor of Mst. Gaura. The

possession of defendant No.1 over the suit property is

independent and separate. Defendant No.1 cannot be allowed to

take advantage to claim continuity of his possession, linking the

same with Mst. Gaura and Chander, on the basis of an absurd plea

of adoption of his father Laddulal to Chander and Mst. Gaura.

More so when theory of adoption was added in written statement

by way of amendment after 25 years and neither there is any

details of adoption nor any evidence on record. Both Courts below

have rightly declined to accept the plea of adverse possession of

defendant No.1 on this aspect and has decided issue No.7A and

7B against defendant.

21. Such factual matrix on record clearly goes to show that plea

of claiming the acquiring of title by way of adverse possession by

defendant No.1 has rightly been declined by both Courts. Findings

of issues No.4, 7A and 7B are concurrent and based on

appreciation of evidence by both Courts below. Neither there is

any perversity in such fact findings nor some are based on

misreading/ non-reading of evidence. Therefore, when the

defendant No.1 miserably failed to prove his plea of adverse

possession, qua the plaintiff, two Court below have not committed

any illegality in passing the decree for possession in favour of

plaintiff on the basis of his title. Accordingly, both substantial

questions of law No.1 and 5 are answered in negative and against

appellant.

22. Substantial questions of law No. II, III and IV:-

(25 of 34) [CSA-448/1996]

(III)Whether the findings recorded by the trial court on the question of gift deed which is the basis on which the plaintiff-respondent (inadvertently referred as defendant-

(IV)Whether the defendant-appellant (inadvertently referred as plaintiff-appellant) can be said it to have derived his title over the suit property on the plea of adverse possession as against plaintiff-respondent o(inadvertently referred as defendant-respondent) who has established his right, title and interest over the said property by virtue Exhibit A-2 which is gift deed?

23. Substantial questions of law No.II, III and IV are related to

findings with regard to the gift deed of suit property executed and

registered in favour of plaintiff and its effect qua defendant No.1.

Hence, are being considered jointly.

24. It may be noticed that plaintiff has pleaded in the plaint that

her father Prabhu Narayan gifted the property marked as E.F.G.H.

with outer chowk, Taj and gokha through gift deed dated

29.01.1964 registered on 04.02.1964. It has already been

discussed hereinabove that plaintiff's grandfather i.e. father of

(26 of 34) [CSA-448/1996]

defendant No.2 namely Gangabaksh was the owner of entire

Haveli marked as A.B.C.D. on the basis of judgment and decree

dated 01.07.1908. The gift deed executed by plaintiff's father has

been produced as Ex.1. The defendant No.1 has neither

questioned the execution of gift deed nor challenge the same.

Plaintiff by his own evidence and evidence of his witnesses has

proved the execution of gift deed in his favour. The trial Court in

its judgment dated 30.07.1994, while deciding the issue No.1 has

categorically recorded the finding in relation to gift deed in favour

of plaintiff. The relevant portion of judgment dated 30.07.1994 of

the trial Court reads as under:-

"जहा तक बक्शी्नामा एबबज़.1 का प्रशन हन वह प्रप्रभ प्रभु ना नारायण यण दा नारा

अपनशी प प्रभुतशी वाब वादिनशी कन हक़ मह बकया जाना ना सा साकय ना सन बख्बशी प्रमाबणत हन औ नार

उना सन प्रबतवा वादिशी क की औ नार ना सन ना सा साकय मह या अया अनय अन्यथा गनप्रभशी नार रूप ना सन आकनबपत प्रभशी

नहीं बकया गया ह।न अततः अलावा बक्शी्नामा ्नष तनक की वाब वादिनशी कन

बवरुद्ध बनबणित क की जातशी हन । "

25. Such findings passed by the trial Court in its judgment dated

30.07.1994 have not been challenged by defendant No.1 in the

first appeal. In absence of any challenge to findings on gift deed

or in absence of questioning the gift deed by defendant No.1,

there was no occasion in the first appeal to give any findings with

regard to gift deed. Yet the first Appellate Court has observed that

it is proved on record that plaintiff became the owner of the suit

property and concurred with findings of the trial Court. Thus, it

may not be said that first appellate court did not consider the gift

deed of plaintiff.

It may be noticed that here the appellant-defendant No.1

claiming title over the suit property by way of adverse possession,

(27 of 34) [CSA-448/1996]

hence, the factum of execution of gift deed of the suit property to

plaintiff by her father through registered gift deed is not in

question at all. In fact the defendant No.1 to prove his plea of

acquiring the title of suit property by way of adverse possession

by adducing his own and independent evidence but he remained

miserably failed to prove the same.

26. Counsel for appellants-defendants in his argument has not

raised any doubt about the execution of gift deed in favour of

plaintiff but has vehemently argued that to Court below have

passed self contradictory finding as if defendant No.1 was not

treated as grandson of Chander and Mst. Gaura, the judgment and

decree dated 01.07.1908 passed against Chander and in favour of

Gangabaksh could not have been held binding upon the defendant

No.1 to treat the plaintiff's predecessor Gangabaksh as owner on

the basis of this judgment. In support of his arguments, counsel

for appellants has resorted to Sections 40, 41 & 42 of the

Evidence Act to contend that since defendant No.1 or his

predecessor was not party in the judgment and decree dated

01.07.1908, the same have no effect of res judicata upon

defendant No.1. Reliance has also been placed upon judgment

passed in case of State of Bihar Vs. Sri Radha Krishna Singh

[AIR 1983 SC 684, Gopalkrishna Gupthan Vs. Ammalu

Ammal [AIR 1972 Kerala 196] and Maharaja Sir Kesho

Prasad Singh Bahadur Vs. Bahuria Mt. Bhagjogna Kuer [AIR

1937 Privy Council 69].

27. The proposition of law set forth in aforementioned judgments

of Hon'ble Supreme Court, Kerala High Court and Privy Council in

context to Section 40, 41, 42 and 43 of the Evidence Act is not at

(28 of 34) [CSA-448/1996]

all in dispute. The Hon'ble Supreme Court in State of Bihar Vs.

Radha Krishna Singh (Supra) in para 122 and 133 the Hon'ble

Supreme Court has observed as under:-

"122. It is also well settled that a judgment in rem like judgments passed in probate, insolvency, matrimonial or guardianship or other similar proceedings, is admissible in all cases whether such judgments are inter partes or not. In the instant case, however, all the documents consisting of judgments filed are not judgments in rem and therefore, the question of their admissibility on that basis does not arise. As mentioned earlier, the judgments filed as Exhibits in the instant case, are judgments in personam and, therefore, they do not fulfil the conditions mentioned in S.41 of the Evidence Act.

133. The cumulative effect of the decisions cited above on this point clearly is that under the Evidence Act a judgment which is not inter partes is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject matter of the suit. In these circumstances, therefore, it is not open to the plaintiffs-respondents to derive any support from some of the judgments which they have filed in order to support their title and relationship in which neither the plaintiffs nor the defendants were parties. Indeed, if the judgments are used for the limited purpose mentioned above, they do not take us anywhere so as to prove the plaintiff's case."

28. The proposition of law nowhere in dispute and there cannot

be any disagreement or dissent opinion to such proposition of law.

The issue is whether appellants are entitled to take resort to such

proposition of law in the present case. The judgment dated

01.07.1908, certainly is not judgment in rem but it is judgment in

personam and further same does not relates to the matter of

public nature but it is in relation to the dispute of the private

property between the private persons. Thus, obviously judgments

is out of the scope of Section 41 and 42 of the Evidence Act,

(29 of 34) [CSA-448/1996]

however, same is covered under Section 40 or at least under

Section 43 of the Evidence Act and is admissible against

appellants-defendants. It is undisputed that judgment dated

01.07.1908 was passed in the litigation between plaintiff's

predecessor Gangabaksh and one Sh. Chander. It is also not

disputed that judgment is in relation to the property in question

including the suit property and title was conferred to Gangabaksh

by way of passing a declaratory decree. It is not in dispute that

the judgment dated 01.07.1908 was passed in favour of

Gangabaksh, who is grandfather of plaintiff and against one

Chander. It is the case of defendant No.1 himself that he is

successor and grandson of Chander and Mst. Gaura and the father

of defendant No.1 Laddulal went in adoption to Chander and Mst.

Gaura. Defendant No.1, after seeking amendment in the written

statement specifically deriving his title and possession over the

suit property, connecting himself in the pe degree of Sh. Chander

and Mst. Gaura. The defendant No.1 cannot allow to approbate

and reprobate as once he himself claims his right and possession

over the suit property through Chander alleging himself to be his

descendant and grandson, it is not permissible for him to contend

that the judgment dated 01.07.1908 passed against Chander

cannot be held applicable and binding upon him. Defendant No.1

is estopped by his own admission in this reference. It is a different

thing that in evidence, defendant No.1 could not prove the factum

of adoption of his father Laddulal to Sh. Chander and Mst. Gaura,

therefore, he remained fail to prove the claim of his adverse

possession, in continuity and being descendant of Sh. Chander

and Mst. Gaura. Similar arguments and and same judgments of

(30 of 34) [CSA-448/1996]

Hon'ble the Supreme Court, Kerala High Court and Privy Council

were referred by counsel for appellant-defendant No.1 before the

courts below also. Both Courts below have not accepted his

argument and rightly observed that in view of admission of

defendant No.1, claiming his right over suit property through

Chander, he is bound by the judgment dated 01.07.1908 passed

against Chander and in favour of Gangabaksh. Further defendant

No.1 although tried to establish his own ownership over the suit

property by producing documents Ex.A8 and A9 (Khasra

settlement and Map) but through these documents he could not

establish his ownership and issue No.4 was decided in favour of

plaintiff. Thereafter, defendant No.1 has sought amendment in the

written statement taking a plea of adverse possession after 25

years at the stage of his previous second appeal. Meaning thereby,

defendant No.1 does not dispute the title of plaintiff over the suit

property rather claims to acquire his title by way of having

adverse possession for more than 12 years over the suit property

qua the plaintiff. Thus, once defendant has taken a plea of adverse

possession, he cannot argue vice versa just to bring the title of

plaintiff over the suit property under clouds. Moreover, when the

title of plaintiff finds support with the judgment dated 01.07.1908

passed in favour of predecessor of plaintiff Gangabaksh. In this

manner, arguments advanced by counsel for appellants taking

pretext of Section 40 to 43 with support of judgments referred

hereinabove is of no consequence and does not stand for any

benefit of appellants. It may also be noticed that Courts below

have also relied upon the fact that in another portion of the

property (Haveli including front Chowk), plaintiff's father Prabhu

(31 of 34) [CSA-448/1996]

Narain had filed suit against one another person namely Chuttan

Lal which was decided in his favour vide judgment dated

31.01.1961 (Ex.A3). In this judgment also, plaintiff's father was

treated as owner of the property.

29. Therefore, judgment and decree passed by Courts below are

infallible and appellants-defendants can succeed in this second

appeal only on proving his plea of acquiring the title by way of

adverse possession. As has been discussed in foregoing

paragraphs that the possession of defendant No.1 is an

independent and separate possession and he came in possession

over the suit property after death of Mst. Gaura in 1956,

therefore, his claim for adverse possession over the suit property

does not become absolute as the suit for possession has been

instituted on 09.12.1964 before the completion of period of 12

years from the date of possession of defendant No.1. The outcome

of the discussion is that the substantial questions of law No.2, 3

and 4 are liable to be answered in negative and against appellants

and same is accordingly answered.

30. Counsel for appellants has submitted the written submissions

apart from making his oral submissions. No other arguments

except dealt with hereinabove have been raised and further no

other substantial questions of law except discussed hereinabove

have been raised and proposed.

31. The Hon'ble Supreme Court in case of Umerkhan Vs.

Bismillabi Shaikh & Ors. [(2011) 9 SCC 684] has observed

that if a second appeal is admitted on substantial questions of law,

while hearing the second appeal finally, the court can re-frame the

substantial question of law or can frame new substantial question

(32 of 34) [CSA-448/1996]

of law or even can hold that the question of law as already framed

do not fall within the purview of substantial question of law but

the High Court cannot exercise its jurisdiction under section 100

CPC, without formation/involvement of substantial question of law.

32. The Hon'ble Supreme Court in umpteen number of cases has

discussed the scope of High Court for interference in concurrent

findings of the trial Court and first Appellate Court under Section

100 of CPC.

33. The Supreme Court recently in case of Thulasidhara Vs.

Narayanappa [(2019) 6 SCC 409] has held as under:-

"The jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. The question framed by the High Court in this case cannot be said to be a substantial question of law at all.

In the present case the trial Court as well as the first appellate court, gave cogent reasons on appreciation of evidence on record, including the partition deed and sale deeds and thereafter held that the plaintiff is not entitled to the declaration that he has become the owner of the land. While interfering with the judgment and decree passed by both the courts below, the High Court has again reappreciated the entire evidence on record, which in exercise of powers under Section 100 CPC, not permissible. Under the circumstances, the High Court has committed a grave/manifest error in quashing and setting aside the findings recorded by both the courts below, which were on appreciation of evidence on record. The High Court has exceeded in its jurisdiction while exercising the powers under Section 100 CPC. Even otherwise, on merits also, the impugned judgment and order passed by the High Court allowing the appeal and consequently decreeing the suit, is not sustainable."

(33 of 34) [CSA-448/1996]

34. In another judgment of Gurnam Singh Vs. Lehna Singh

[(2019) 7 SCC 641] has held as under:-

"Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law."

35. The Hon'ble Supreme Court in C.Doddanarayana Reddy

Vs. C.Jayarama Reddy [(2020) 4 SCC 659], while discussing

the jurisdiction of the High Court to interfere with the finding of

fact under Section 100 CPC has held that though the High Court

could have taken different view acting as the trial Court but once,

two Courts below have returned finding which is not based upon

any misreading of material documents, nor against any provision

of law neither could it be said that any judge acting judicially and

reasonably could have reach such a findings, then, the Court

cannot be said to have erred. Relying upon the previous judgment

the Supreme Court has held as under:-

"Recently in another judgment reported as State of Rajasthan v. Shiv Dayal, it was held that a

(34 of 34) [CSA-448/1996]

concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

36. The upshot of discussion is that the instant second appeal is

not liable to succeed and same deserves to be dismissed and

hereby dismissed. There is no order as to costs.