Madhya Pradesh High Court
Jaynarayan Sagar vs Ramveer Singh Kushwah on 28 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:13793
1 SA-86-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 28 th OF APRIL, 2026
SECOND APPEAL No. 86 of 2017
JAYNARAYAN SAGAR
Versus
RAMVEER SINGH KUSHWAH AND OTHERS
Appearance:
Shri Utkarsh Tikhe - Advocate for appellant.
None for respondent Nos. 1 and 2.
Shri C.P. Singh - Govt. Advocate for respondent No. 3 / State.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against judgment and decree dated 10/01/2017 passed by Second Additional District Judge, Dabra, District Gwalior in Regular Civil Appeal No. 15A/2015, as well as judgment and decree dated 28/02/2015 passed by Additional Judge to the Court of First Civil Judge, Class-I, Dabra, District Gwalior in Civil Suit No. 18A/2010.
2. Appellant is Defendant No. 1 who has lost his case from both the Courts below.
3. The facts necessary for disposal of present appeal, in short, are that it is the case of plaintiff that he is the owner and in possession of Survey No. 167 area 0.94 hectares, Survey No. 81 area 0.30 hectare, Survey No. 109 area 1.58 hectares, Survey No. 154 area 3.02 hectares and Survey No. 155 area 3.13 hectares, total 8.97 hectares, situated in Village Maharajpur, Tehsil Dabra, District Gwalior. Plaintiff had purchased Survey No. 167 area 0.94 hectare from Defendant No. 2 Latora by registered sale deed dated 13/02/2009. Similarly, Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:13793 2 SA-86-2017 Survey No. 81 area 0.30 hectare and Survey No. 109 area 1.58 hectares, total area 1.88 hectares were purchased by plaintiff by registered sale deed dated 25/03/2009 executed by Shailendra Kumar. 7/8th part of Survey No. 154 area 3.02 hectares and Survey No. 155 area 3.13 hectares was purchased from Sattar, Mani Khan, Razzak Khan, Dildar Khan, sons of Nawab Khan, Fariyadi Bano, and Islam Khan by a registered sale deed dated 02/03/2009, and remaining area, i.e., 0.76 hectares, was purchased by registered sale deed dated 25/03/2009 from Punne Khan. Possession of all the properties was received by plaintiff, and since then, he is in possession. Mutation was also done in favor of plaintiff, and Bhu- Adhikar and Rin Pustika were also issued. It was also the case of plaintiff that he is in possession and is earning his livelihood from the land in dispute. Since the land is very fertile and the prices have also escalated, therefore, intentions of Defendant Nos. 1 and 2 have become dishonest, and they are of the view that plaintiff must shift to somewhere else after alienating his property. It was pleaded that sometimes prior to institution of suit, when plaintiff was cultivating his land, then Defendant Nos. 1 and 2 came on the spot and instructed the plaintiff to leave his possession and insisted that they would carry out the cultivation. Defendant Nos. 1 and 2 also provided a copy of order dated 25/06/2010 passed by Tehsildar. Thereafter, plaintiff contacted his counsel and preferred an appeal against the order dated 25/06/2010 passed by Tehsildar in Case No. 926/09-10/B-121, and accordingly, execution of order dated 25/06/2010 has been stayed by S.D.O., Dabra. Again on 02/11/2010, Defendant Nos. 1 and 2 tried to dispossess the plaintiff, and when plaintiff informed them that the order of Tehsildar has been stayed, then they were ready to pick up a quarrel. However, on persuasion by the villagers, they left the place by extending a threat that they will certainly take possession of the land. Accordingly, suit was filed for declaration that plaintiff is Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:13793 3 SA-86-2017 the owner and in possession of Survey Nos. 167, 81, 109, 154, and 155, total area 8.97 hectares, situated in Village Maharajpur, Tehsil Dabra, District Gwalior, and Defendant Nos. 1 and 2 be restrained from dispossesing the plaintiff either by themselves or through their agents.
Thus, in nutshell, it was the case of plaintiff that he is the owner and in possession of property in dispute by virtue of sale deeds executed by their original owners.
4. Appellant/Defendant No. 1 filed his written statement and denied the plaint averments. It was denied that plaintiff has purchased the property in dispute from their respective owners. It was claimed that Defendant No. 1 is in possession of property in dispute. It was further claimed that since the mutation order was passed behind his back, therefore, it is not bindindg on him. In special plea, it was pleaded that Defendant No. 1 had taken Survey Nos. 81 and 109 on oral lease from their real owner Shailendra Kumar Gupta on a premium of Rs. 1,50,000/-. It was claimed that since May 2005, Defendant No. 1 is in possession of Survey Nos. 81 and 109. Similarly, in respect of Survey Nos. 154 and 155, it was claimed that the said land was given on oral lease in the month of May 2005 on a premium of Rs. 3,00,000/- by their original owners Sattar Khan, Mani Khan, Razzak Khan, Dildar Khan, Fariyadi Bano, Islam Khan and Punne Khan. In respect of Survey No. 167, it was claimed that Latora had granted oral lease on a premium of Rs. 1,00,000/-.
Thus, it is clear from the written statement of Defendant No. 1 that the ownership of original owners, from whom plaintiff had purchased the property, was not disputed by Defendant No. 1. It was the case of Defendant No. 1 that in the month of May 2005, oral lease was granted by original owners of the land in dispute and since then he is in possession.
Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:13793 4 SA-86-2017
5. The Trial Court, after framing issues and recording evidence, decreed the suit.
6. Being aggrieved by judgment and decree passed by the Trial Court, appellant/Defendant No. 1 preferred an appeal which too has been dismissed by the First Appellate Court.
7. Challenging the judgments and decrees passed by the Courts below, it is submitted by counsel for appellant that plaintiff has failed to prove that he is in possession or he was ever placed in possession of the property in dispute. In fact, Defendant No. 1 is in possession of property in dispute. It is further submitted that both the Courts below have rejected the evidence of Defendant No. 1 on flimsy grounds.
8. Heard learned counsel for appellant.
9. As already pointed out, there is no dispute with regard to the ownership of persons from whom the plaintiff had purchased the property, however, it is the case of Defendant No. 1 that he was granted oral lease in the month of May 2005 by the original owners.
10. Section 106 of Transfer of Property Act reads as under:
"[106. Duration of certain leases in absence of written contract or local usage.--(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:13793 5 SA-86-2017 on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.]"
11. Section 107 of Transfer of Property Act readas as under:
"107. Leases how made.--A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
[All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
[Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:] Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.]"
12. It is not the case of Defendant No. 1 that lease was from year to year terminable on the part of either lessor or lessee by six months' notice. Section 107 of Transfer of Property Act specifically provides that if lease is for a period of more than one year, then it is required to be registered. Since it is not the case of Defendant No. 1 that lease was from year to year terminable on the part of either lessor or lessee, then the same cannot be leased out to Defendant No. 1 by oral agreement accompanied by delivery of possession.
13. Furthermore, both the Courts below have given a specific finding of fact that Defendant No. 1 has failed to prove that he is in possession of property in dispute since May 2005. Both the Courts below have given a finding that even otherwise Defendant No. 1 has failed to prove that he was ever granted oral lease.
14. As already pointed out, in view of Section 107 of Transfer of Property Act, there cannot be an oral lease in respect of immovable property for a period of Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:13793 6 SA-86-2017 more than one year, and since it is not the case of Defendant No. 1 that lease was from year to year terminable at the behest of lessor or lessee, then even the presumption under Section 106 of Transfer of Property Act cannot be applied.
15. Since the question of possession is a disputed question of fact and both the Courts below have come to a conclusion that Defendant No. 1/appellant is not in possession of property in dispute, then unless and until the concurrent findings of fact recorded by Courts below are shown to be perverse, the same cannot be interfered with. Even an erroneous findings of fact cannot be interfered with in exercise of power under Section 100 of CPC. The Supreme Court in the case of Angadi Chandranna Vs. Shankar and Others decided on 22/04/2025 in Civil Appeal No.5401/2025 {Arising out of SLP (C) No.6799 of 2022 }, has held as under:-
"12. Before delving into the facts of the case, this court in Jaichand (supra) expressed its anguish at the High Court for not understanding the scope of Section 100 CPC, which limits intervention only to cases where a substantial question of law exists, and clarified that the High Court can go into the findings of facts under Section 103 CPC only under certain circumstances, as stated in the following passages:
"23. We are thoroughly disappointed with the manner in which the High Court framed the so-called substantial question of law. By any stretch of imagination, it cannot be termed even a question of law far from being a substantial question of law. How many times the Apex Court should keep explaining the scope of a second appeal Under Section 100 of the Code of Civil Procedure and how a substantial question of law should be framed? We may once again explain the well-settled principles governing the scope of a second appeal Under Section 100 of the Code of Civil Procedure.
24. In Navaneethammal v. Arjuna Chetty reported in MANU/SC/2077/1996 : 1998: INSC: 349 : AIR 1996 S.C. 3521, it was held by this Court that the High Court should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate Court.
25. In Kshitish Chandra Purkait v. Santosh Kumar Purkait reported in MANU/SC/0647/1997 : 1997:INSC:487 : (1997) 5 S.C.C. 438), this Court held that in the Second Appeal, the High Court should be satisfied that the case Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:13793 7 SA-86-2017 involves a substantial question of law and not mere question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor reported in MANU/SC/0058/1999 : 1999 (2) S.C.C. 471, this Court held: Keeping in view the amendment made in 1976, the High Court can exercise its jurisdiction Under Section 100, Code of Civil Procedure only on the basis of substantial questions of law which are to be framed at the time of admission of the Second Appeal and the Second Appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court Under Section 100 Code of Civil Procedure without following the aforesaid procedure cannot be sustained.
27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar reported in MANU/SC/0278/1999 :
1999:INSC:192 : AIR 1999 S.C. 2213 held: The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
28. It is thus clear that Under Section 100, Code of Civil Procedure, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Under Section 103, Code of Civil Procedure, the High Court has got power to determine the issue of fact. The Section lays down: Power of High Court to determine issue of fact: In any Second Appeal, the High Court may, if the evidence on the record is sufficient to determine any issue necessary for the disposal of the appeal,- (a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.
30. In Bhagwan Sharma v. Bani Ghosh reported in MANU/SC/0094/1993 : AIR 1993 S.C. 398, this Court Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:13793 8 SA-86-2017 held: The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate Court for a rehearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103(b). ...... If in an appropriate case the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged.
31. In the case of Hero Vinoth v. Seshammal reported in MANU/SC/2774/2006 : 2006:INSC:305 : (2006) 5 SCC 545 this Court explained the concept in the following words: It must be tested whether the question is of general public importance or whether it directly and substantially affects the rights of the parties. Or whether it is not finally decided, or not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.
32. It is not that the High Courts are not well-versed with the principles governing Section 100 of the Code of Civil Procedure. It is only the casual and callous approach on the part of the courts to apply the correct principles of law to the facts of the case that leads to passing of vulnerable orders like the one on hand."
12.1. In the present case, in our view, the so-called substantial question of law framed by the High Court does not qualify to be a substantial question of law, rather the exercise of the High Court is a venture into the findings of the First Appellant Court by re-appreciation of evidence. It is settled law that the High Court can go into the findings of facts only if the First Appellate Court has failed to look into the law or evidence or considered inadmissible evidence or without evidence. Section 103 permits the High Court to go into the facts only when the courts below have not determined or rendered any finding on a crucial Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:13793 9 SA-86-2017 fact, despite evidence already available on record or after deciding the substantial question of law, the facts of a particular case demand re- determination. For the second limb of Section 103 to apply, there must first be a decision on the substantial question of law, to which the facts must be applied, to determine the issue in dispute. When the First Appellate Court in exercise of its jurisdiction has considered the entire evidence and rendered a finding, the High Court cannot re-appreciate the evidence just because another view is possible, when the view taken by the First Appellate Court is plausible and does not suffer from vice in law. When the determination of the High Court is only by way of re-appreciation of the existing evidence, without there being any legal question to be answered, it would be axiomatic that not even a question of law is involved, much less a substantial one. It will be useful to refer to another judgment of this Court in Chandrabhan (Deceased) through L.Rs & Ors. v. Saraswati & Ors.11, wherein it was held as follows:
"33. The principles relating to Section 100 of the Code of Civil Procedure relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general Rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule.
Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.
Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PMNEUTRAL CITATION NO. 2026:MPHC-GWL:13793 10 SA-86-2017 When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
34. In this case, it cannot be said that the First Appellate Court acted on no evidence. The Respondents in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court. The Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously.
35. In this case, as observed above, evidence had been adduced on behalf of the Original Plaintiff as well as the Defendants. The First Appellate Court analysed the evidence carefully and in effect found that the Trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption. There was no such infirmity in the reasoning of the First Appellate Court which called for interference.
36. Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court."
12.2. In the present case, the First Appellate Court analyzed the entire oral evidence adduced by both parties, as well as the documentary evidence relied upon by either side, and dismissed the suit. The authority to re-consider the evidence is available only to the First Appellate Court under Section 96 and not to the High Court in exercise of its authority under Section 100, unless the case falls under the exceptional circumstances provided under Section 103. While so, the re-appreciation of the entire evidence, including the contents of the exhibits, reliance on and wrongful identification of a different property and treating the same to be the suit property actually in dispute to prescribe another view without any substantial question of law, only illustrate the callousness of the High Court in applying the settled principles. Therefore, the High Court erred in setting aside the judgment and decree of the First Appellate Court."
16. As no substantial question of law arises in the present appeal, accordingly, no interference is called for.
1 7 . Ex consequenti , judgment and decree dated 10/01/2017 passed by Second Additional District Judge, Dabra, District Gwalior in Regular Civil Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PM NEUTRAL CITATION NO. 2026:MPHC-GWL:13793 11 SA-86-2017 Appeal No. 15A/2015, as well as judgment and decree dated 28/02/2015 passed by Additional Judge to the Court of First Civil Judge, Class-I, Dabra, District Gwalior in Civil Suit No. 18A/2010 are hereby affirmed.
18. Appeal fails and is hereby dismissed in limine.
(G. S. AHLUWALIA) JUDGE AKS Signature Not Verified Signed by: ALOK KUMAR Signing time: 30-04-2026 03:27:25 PM