Uttarakhand High Court
Smt. Leela Joshi & Ors. ... vs Smt. Kusum Bhatt on 8 August, 2025
2025:UHC:6995
Judgment Reserved on: 01.08.2025
Judgment Pronounced on:08.08.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
JUSTICE SHRI SUBHASH UPADHYAY
Second Appeal No.160 of 2024
Smt. Leela Joshi & Ors. ...Appellants/Defendants
Versus
Smt. Kusum Bhatt ...Respondent/ Plaintiff
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Presence:-
Mr. Karmanya Pandey, Advocate for the appellants.
Mr. Siddhartha Singh and Mr. H.M. Bhatia, Advocates for the respondent.
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Hon'ble SUBHASH UPADHYAY, J.
The present second appeal has been
preferred against judgment and decree dated
22.11.2024 passed by learned First Additional District
Judge, Haldwani, Nanital in Civil Appeal No.12 of 2023,
"Smt. Leela Joshi & Others Vs. Smt. Kusum Bhatt",
whereby the first appeal filed by the
appellants/defendants was dismissed and the judgment
and order dated 09.05.2023 passed by the learned
Senior Civil Judge, Haldwani in Civil Suit No.15 of 2012,
"Ramesh Chandra Mungali (deceased) through legal
representative Kusum Bhatt Vs. Chandrashekhar Joshi
(deceased) through legal representatives Leela Joshi &
Others" was affirmed.
2. Suit No.15 of 2012 for mandatory injunction
2025:UHC:6995
was filed on 12.03.2012 by Shri Ramesh Chandra
Mungali against Shri Chandrashekhar Joshi before the
Civil Judge (Senior Divisoin), Haldwani, District Nainital.
During the pendency of suit Shri Ramesh Chandra
Mungali died and on the basis of registered Will dated
18.04.2012 executed by him in favour of Kusum Bhatt
(the real niece of Ramesh Chandra Mungali), suit was
contested by her. The defendant - Chandrashekhar
Joshi also died during the pendency of suit and
appellants/defendants being their legal heirs contested
the suit.
3. The respondent/plaintiff had contended in the
plaint that he is the owner of the property, details of
which were provided in the plaint and the
appellants/defendants was inducted in the premises as
a licensee in the year 1975. Repeated requests were
made by the respondent/plaintiff to the
appellants/defendants to vacate the premises and the
appellants/defendants always requested for further
time and when the premises was not vacated then the
suit for mandatory injunction was filed.
4. Appellants/defendants denied the claim and
contended that the property was nazool land and the
appellants/defendants Shri Chandrashekhar Joshi was
occupying the premises on his own right, as owner
thereof, since 1967 and earlier Suit No.83 of 2001 filed
by the plaintiff was dismissed on similar ground, as
such, the subsequent suit is barred by principle of res
2025:UHC:6995
judicata. It was also contended that suit of the
respondent/plaintiff is barred by Section 60 of the
Indian Easement Act, 1882. It was further contended
that the land being nazool land, the State was a
necessary party and the Will dated 18.04.2012 was a
forged document as it was not proved.
5. Learned Trial Court framed various issues and
after taking into consideration pleadings of the parties
and on the basis of the evidences led by them recorded
finding that the land was not nazool land as the
respondent/plaintiff was able to show their title and
possession over the land on the basis of Sale Deed
dated 02.10.1888.
6. Learned Trial Court also took note of the fact
that late Shri Chandrashekhar Joshi (predecessor of the
appellants/defendants), on the one hand, had
contended that he was in occupation of the nazool land
and, on the other hand, on an affidavit filed in support
of an application for recording his name in Nagarpalika
had contended that he got the property through gift
deed. Furthermore, late Shri Chandrashekhar Joshi
took another plea that as construction of permanent
nature was made by him without any objection from
the respondent/plaintiff, as such, suit filed by the
respondent/plaintiff was barred by Section 60 of the
Indian Easement Act, 1882 and now, the
respondent/plaintiff cannot revoke the license.
2025:UHC:6995
7. Learned Trial Court, on the basis of the
evidences led by the parties, recorded a finding that, in
fact, action of the appellants/defendants in raising the
construction was objected and, as such, suit is not
barred by Section 60 of the Indian Easement Act, 1882.
8. Learned Trial Court also recorded a finding
that the registered Will dated 18.04.2012 was proved
by respondent/plaintiff (Kusum Bhatt), and as there
was no challenge to the original Sale Deed dated
02.10.1888 and as the name of the respondent/plaintiff
was recorded in the records, as such,
respondent/plaintiff was the owner of the suit property.
It was also recorded by the learned Trial Court that the
earlier Suit No.83 of 2001 was dismissed on the ground
of non-payment of requisite Court fee and as the said
suit was not contested on merit, as such, the
subsequent suit was not barred by principle of res
judicata. The civil appeal filed by the
appellants/defendants was dismissed and the Appellate
Court while dismissing the appeal held that the finding
of the fact recorded by the Trial Court was based on
correct appreciation of facts and was on the basis of
the evidences led by the parties before it, and their was
no perversity.
9. Learned Appellate Court took into
consideration the law laid down by the Hon'ble Apex
Court in the case of Sant Lal Jain Vs. Avtar
Singh 1985 (2) SCC 332 and concluded that the suit
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for mandatory injunction was maintainable. The other
finding recorded against the appellants/defendants that
they were the licensee and the land was not nazool
land was also affirmed on appreciation of evidence.
10. The contrary and self-destructive stand taken
by the appellants/defendants of contending himself
sometimes as an occupier of the suit land, sometimes
claiming to be owner of the land on the basis of gift
deed and sometimes claiming to be a licensee was also
considered and, as such, on the basis of the evidences
adduced by the parties, the Appellate Court came to
the conclusion that, in fact, the appellants/respondents
was a licensee and, as such, had to vacate the
premises on the basis of the license being revoked by
the true owner.
11. The Hon'ble Apex Court in the case of Maria
Margarida Sequeira Fernandes & Ors Vs. Erasmo
Jack De Sequeira (D) Tr.Lrs.& Ors reported in AIR
2012 SC 1727 while considering the importance of
pleadings has held as hereunder:-
"58. In Bell Atlantic [167 L Ed 2d 929 : 127 S
Ct 1955 : 550 US 544 (2007)] the Court has
observed that factual allegations must be enough to
raise a right to relief above the speculative level. The
pleadings must contain something more than a
statement of facts that merely create a suspicion of a
legally cognizable right of action.
59. In Ashcroft [173 L Ed 2d 868 : 129 S Ct
1937 : 556 US 662 (2009)] the majority Judges of
the US Supreme Court observed as under:
"Threadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements, do not suffice. Although for the
purposes of a motion to dismiss we must take
2025:UHC:6995
all of the factual allegations in the complaint as
true, we are not bound to accept as true a legal
conclusion couched as a factual allegation ...
only a complaint that states a plausible claim
for relief survives a motion to dismiss."
60. The aforementioned two decisions of the
US Supreme Court re-emphasised and reiterated the
importance of pleadings.
61. In civil cases, pleadings are extremely
important for ascertaining the title and possession of
the property in question.
62. Possession is an incidence of ownership
and can be transferred by the owner of an
immovable property to another such as in a
mortgage or lease. A licensee holds possession on
behalf of the owner.
63. Possession is important when there are no
title documents and other relevant records before the
court, but, once the documents and records of title
come before the court, it is the title which has to be
looked at first and due weightage be given to it.
Possession cannot be considered in vacuum.
64. There is a presumption that possession of
a person, other than the owner, if at all it is to be
called possession, is permissive on behalf of the title-
holder. Further, possession of the past is one thing,
and the right to remain or continue in future is
another thing. It is the latter which is usually more in
controversy than the former, and it is the latter
which has seen much abuse and misuse before the
courts."
12. The Hon'ble Apex Court in the case of
Ramachandra Reddy(Dead) Thr. LRs. & Ors. Vs.
Ramulu Ammal (Dead) Thr. LRs. reported in 2024
SCC Online SC 3301, has held as under:-
16. The above conclusion apart, it was also to be
demonstrated by the High Court that the reversal of
concurrent findings by the Courts below was
justified. The jurisdiction to interfere in findings
where the Courts below have been ad idem, is
limited and such limitation is well expounded. We
may only refer to a few authorities.
16.1 Dalveer Bhandari J. in Gurdev
Kaur v. Kaki referred to various earlier judgments in
the following manner-
2025:UHC:6995
"55. This Court again reminded the High Court
in Commr., HRCE v. P. Shanmugama [(2005) 9
SCC 232] that the High Court has no jurisdiction
in second appeal to interfere with the finding of
facts.
56. Again, this Court in State of
Kerala v. Mohd. Kunhi [(2005) 10 SCC 139] has
reiterated the same principle that the High Court
is not justified in interfering with the concurrent
findings of fact. This Court observed that, in doing
so, the High Court has gone beyond the scope of
Section 100 of the Code of Civil Procedure.
...
73. The Judicial Committee of the Privy Council
as early as in 1890 stated that there is no
jurisdiction to entertain a second appeal on the
ground of an erroneous finding of fact, however
gross or inexcusable the error may seem to be,
and they added a note of warning that no court in
India has power to add to, or enlarge, the grounds
specified in Section 100.
...
81. Despite repeated declarations of law by the
judgments of this Court and the Privy Council for
over a century, still the scope of Section 100 has
not been correctly appreciated and applied by the
High Courts in a large number of cases. In the
facts and circumstances of this case the High
Court interfered with the pure findings of fact
even after the amendment of Section 100 CPC in
1976. The High Court would not have been
justified in interfering with the concurrent findings
of fact in this case even prior to the amendment
of Section 100 CPC. The judgment of the High
Court is clearly against the provisions of Section
100 and in no uncertain terms clearly violates the
legislative intention."
(Emphasis supplied)
16.2 A Bench of three learned Judges in V.
Ramachandra Ayyar v. Ramalingam Chettiar [1962
SCC Online SC 155], as recently followed in Nazir
Mohammed v. J. Kamala [(2020) 19 SCC 57],
observed:--
"11. It is well known that as early as 1890, the
Privy Council had occasion to consider this aspect
of the matter in Mussummai Durga
Choudhrain v. Jawahir Singh Choudhri [(1889-90)
17 IA 122]. In that case, it was urged before the
Privy Council, relying upon the decision of the
Calcutta and Allahabad High Courts in Futtehma
2025:UHC:6995
Begum v. Mohamed Ausur [ILR 9 Cal 309]
and Nivath Singh v. Bhikki Singh [ILR 7 All 649]
respectively, that the High Court would be within
its jurisdiction in holding that where the lower
appellate court has clearly misapprehended what
the evidence before it was, and has been led to
discard or not give sufficient weight to other
evidence to which it is not entitled, the High Court
can interfere under Section 100. This contention
was rejected by the Privy Council and it was
observed that an erroneous finding of fact is a
different thing from an error or defect in
procedure, and that there is no jurisdiction to
entertain a second appeal on the ground of an
erroneous finding of fact, however gross or
inexcusable the error may seem to be. Their
Lordships added that nothing can be clearer than
the declaration in the Code of Civil Procedure that
no second appeal will lie except on the grounds
specified in Section 584 (corresponding to Section
100 of the present Code), and they uttered a word
of warning that no court in India or elsewhere has
power to add to or enlarge those grounds. Since
1890, this decision has been treated as a leading
decision on the question about the jurisdiction of
the High Court in dealing with questions of facts in
second appeals."
13. Recently in the case of Rabindranath
Panigrahi Vs. Surendra Sahu reported in 2025 SCC
Online SC 504 the Hon'ble Apex Court in paragraph
no.6 held as under:-
"6. The principles governing the scope of Second
Appeal under Section 100 CPC are well-settled. To
state that, under Section 100 CPC a High Court is not
to disturb findings of fact, would be now like stating
the obvious. [See : Santosh Hazari v. Purushottam
Tiwari (2001) 3 SCC 179; Gurdev Kaur v. Kaki
(2007) 1 SCC 546; State Bank of India v. S.N.
Goyal(2008) 8 SCC9215; and Suresh Lataruji
Ramteke v. Sau. Sumanbai Pandurang Petkar (2023)
SCC Online SC 1210] Yet recently, this Court
lamented that despite numerous judgments spelling
out the scope of this power, the High Court
repeatedly falls in error. [See
: Jaichand v. Sahnulal(2024) SCC OnLine SC 3864]."
14. The scope of interference in a second appeal
2025:UHC:6995
against the concurrent finding of fact is thus limited
and the concurrent finding of fact can be disturbed in a
second appeal if any substantial question of law is
involved. In view of the discussion made above the
Court is of the opinion that the learned Courts below
have recorded concurrent finding of facts against the
appellants/defendants of being a licensee on the basis
of the pleadings and on the basis of the evidences
adduced before it.
15. The present second appeal does not involve
any substantial question of law and, as such, the
second appeal is liable to be dismissed and the same is
dismissed.
(Subhash Upadhyay, J.)
08.08.2025
Sukhbant
SUKHBANT
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Date: 2025.08.08 15:13:24 +05'30'
