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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.   1276  OF 2013  (Arising out of SLP (C) No. 29198 of 2010)

  Nasib Kaur and Ors.                                        … Appellants

Versus Col. Surat Singh (Deceased)  through L.Rs & Ors.                                     … Respondents

WITH

CIVIL APPEAL No.   1277  OF 2013  (Arising out of SLP (C) No. 29205 of 2010)

  Nasib Kaur and Ors.         …  Appellants

Versus Mrs. Dulari Singh and Ors.                           … Respondents

J U D G M E N T

A. K. PATNAIK, J.

Leave granted.

2. These are the appeals against the common judgment  

dated 11.11.2009 of the High Court of Punjab and Haryana

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in R.S.A. Nos. 2579 of 1997 and 2482 of 2008 by way of  

special leave under Article 136 of the Constitution.  

3. The facts very briefly are that Col. Surat Singh filed  

Civil Suit No. 735-T on 18.04.1987 for declaration that the  

plaintiff was the owner and was in possession of suit land.  

The plaintiff’s case in the suit was that while he was in  

joint holding of some land, he sold 2 bighas and 16 biswas  

of land out of his share without specifying any khasra nos.  

to Col. Girdhar Singh and his family members (defendant  

nos. 1 to 4) and thereafter defendant nos. 1 to 4 sold the  

land  in  pieces  to  defendant  nos.  5  to  8  in  the  suit  

specifying the khasra nos.  and mutation nos.  1120 and  

1174.  As the plaintiff did not sell the land specifying the  

khasra nos. to Col. Girdhar Singh and his son, they had no  

right  to  sell  specific  pieces of  land with  specific  khasra  

nos.  The plaintiff’s further case in the plaint was that the  

specific khasra nos. which had been mutated in favour of  

defendant nos. 3, 4 and 5 were not in accordance with the  

registered sale deed in favour of Col. Girdhar Singh and  

his  family  members.   Defendant  Nos.  1  to  4  did  not  

contest the suit, whereas defendant Nos. 5 to 8 appeared  

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and filed their written statements.  On the pleadings of the  

parties, the trial court framed issues and by its judgment  

and decree dated 20.02.2004 found that the areas of land  

sold under the sale deed dated 17.07.1978 by the plaintiff  

was less by        1 Biswas than the area in the mutation  

entries and similarly the area of land sold by the plaintiff  

as Attorney of Nanak Singh was less than the area shown  

in the mutation entries.  The trial court, therefore, ordered  

for  correction of the mutation entries,  but  directed that  

the corrections to be carried out would have no effect as  

regards the possession of the suit property, which has to  

continue as before and would be liable to be changed as  

and when any  partition  proceeding  is  effected  between  

the co-sharers.  Col. Surat Singh filed an appeal C.A. No.  

1721 on 20.03.2004 before the Additional District Judge,  

Patiala, but by judgment and decree dated 18.03.2008 the  

Additional District Judge, Patiala, dismissed the appeal.  

4. Col.  Surat  Singh  also  filed  Civil  Suit  No.  148-T  on  

09.03.1987  for  permanent  injunction  restraining  the  

defendants  from  raising  any  construction  on  the  suit  

property  or  alienating  the  same  in  any  manner  

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whatsoever.  The plaintiff’s case in the suit was that he  

sold 2 bighas and 16 biswas of land out of the joint holding  

of his own share without specifying any khasra nos. to one  

Col.  Girdhar  Singh and his  son  on  17.07.1978  and Col.  

Girdhar Singh has thus become a co-sharer to the extent  

of  2  bighas  and  16  biswas  in  his  joint  holding  of  the  

property.   Col.  Girdhar  Singh,  however,  did not  file  any  

partition proceedings seeking partition of his share out of  

the joint holding.  Thereafter, Col. Girdhar Singh sold the  

share to the extent of 2 bighas and 16 biswas of land to  

the defendants in February, 1987 and the defendants are  

now threatening to raise a new construction near the farm  

house of the plaintiff in a place of their choice on the plea  

that they had purchased the land without specific khasra  

nos. from Col. Girdhar Singh.  The defendants contested  

the suit by filing a written statement and their plea in the  

written statement inter alia was that their predecessor-in-

interest (Col.  Girdhar Singh and his son) had purchased  

the suit property from the plaintiff and his uncle, Nanak  

Singh, vide sale deeds dated 17.07.1978 and 19.07.1979  

and the plaintiff has himself delivered possession of the  

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property  purchased  by  their  predecessor-in-interest  

without  khasra  nos.   Their  further  plea  in  the  written  

statement was that Col. Girdhar Singh had constructed his  

kothi  and quarters and planted Eucalyptus trees on the  

suit property and the plaintiff has not raised any objection  

and the plaintiff was, therefore, estopped by his act and  

conduct  from  filing  the  suit.   On  the  pleadings  of  the  

parties, the trial court framed issues and in its judgment  

and decree dated 18.08.1998 held that the plaintiff  has  

sold 4 bighas and 16 biswas of land to Col. Girdhar Singh  

and others which is in possession of the defendants and  

hence  the  plaintiff  was  not  entitled  to  injunction.  

Aggrieved, Col. Surat Singh filed an appeal C.A. No. 16-

T/1989-90 before the learned District Judge, Patiala,  but  

by judgment and decree dated 16.05.1997, the Additional  

District Judge, Patiala, dismissed the appeal.   

5. Aggrieved by the judgments and decrees passed by  

the Additional  District  Judge, Patiala,  dismissing the two  

civil appeals, the wife of the plaintiff, Smt. Dulari Singh,  

filed second appeals R.S.A. nos. 2579 of 1997 and 2482 of  

2008 before the High Court and by the impugned common  

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judgment,  the  High  Court  allowed  the  appeals  and  set  

aside the judgments and decrees of the trial court and the  

first appellate court in the two suits and decreed the suit  

of  the  plaintiff  for  possession  qua  land  measuring  17  

karams X 45 karams after declaring the plaintiff to be the  

owner of the said property. The High Court has also held  

that  the  plaintiff  was  entitled  for  relief  of  permanent  

injunction  restraining  the  defendants  from  raising  any  

construction  in  the  said  property  or  alienating  the  said  

property.  Aggrieved, the defendants nos. 5 to 8 in Civil  

Suit  No.735-T/18.04.1987  and  the  legal  heirs  of  

defendants nos. 1 and 2 and the other defendants in Civil  

Suit No. 148-T/09.03.1987 have filed these appeals.

6. Learned  counsel  appearing  for  the  appellants  

submitted that in both the suits, the trial court recorded  

findings  that  the  appellants  had  purchased  the  suit  

property from Col. Girdhar Singh and his family members  

to whom the plaintiff had himself delivered possession of  

the suit property in the years 1978 and 1979 at the time  

of  execution  of  the  two  sale  deeds  and  hence  the  

appellants were in possession of the suit properties and  

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the  first  appellate  court  had  also  concurred  with  those  

findings  and  dismissed  the  First  Appeals  of  the  

respondents but the High Court reversed the judgments of  

the trial court and the first appellate court.  He submitted  

that the High Court’s jurisdiction under Section 100 of the  

Code of  Civil  Procedure,  1908,  (for  short  the ‘the CPC’)  

was limited to only deciding substantial questions of law  

which  arise  in  a  case  and  in  this  case  there  was  no  

substantial question of law which arose for decision and,  

therefore, the findings of the first appellate court affirming  

the  findings  of  the  trial  court  could  not  have  been  

disturbed by the High Court.

7. Learned counsel  for  the respondents,  on the other  

hand, submitted that this Court has held in  Ishwar Dass  

Jain vs  Sohan Lal [(2000) 1 SCC 434] that when material  

evidence  is  not  considered,  which  if  considered,  would  

have led to an opposite conclusion, a substantial question  

of law arises for decision which the High Court can decide  

in  a  Second  Appeal  under  Section  100  C.P.C.   He  

submitted that  the High Court had,  therefore,  framed a  

substantial  question  of  law  in  the  impugned  judgment:  

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whether  the  courts  below  have  failed  to  consider  the  

material evidence on record.  He submitted that the core  

issue in this case is the very identity of the land sold by  

the plaintiff as Attorney of Nanak Singh and the trial court  

and the High Court had not addressed this core issue and  

hence a substantial question of law had arisen for decision  

by the High Court.  He relied on Achintya Kumar Saha vs.  

Nanee Printers and Others [(2004) 12 SCC 368] in support  

of  this  submisson.   He  submitted  that  the  High  Court  

answered  the  aforesaid  substantial  question  of  law  in  

favour of the respondents after considering the material  

evidence led in the suit.  He submitted that the High Court  

found on the basis of the evidence that was adduced in  

the suit by the parties that Col. Surat Singh (plaintiff), as  

Attorney on behalf of Nanak Singh, had sold two bighas of  

land with regard to specific khasra nos. i.e. 167 min (1-10)  

and  166  min  (0-10)  by  sale  deed  Ex.PW-7/2  and  the  

appellants by virtue of the sale deed in their favour took  

possession of the portion marked EHGF in the site plan  

Ex.PW-9/A whereas the portion sold was in  the western  

side  of  portion  marked  ABCD  as  the  said  portion  was  

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owned by Nanak Singh.  He submitted that the High Court  

has held in the impugned judgment that the portion on the  

eastern side, i.e., marked with letters EHGF belongs to the  

plaintiff Col. Surat Singh and has accordingly declared that  

the land measuring 17 karams X 45 karams as depicted  

with letters  EHGF in site plan Ex.PW-9/A was owned by  

plaintiff Col. Surat Singh and the plaintiff was entitled to  

the  relief  of  permanent  injunction  restraining  the  

defendant from raising any construction in the aforesaid  

suit property or alienating the aforesaid suit property.

8. We  find  that  in  Civil  Suit  No.  735-T/18.04.1987,  

plaintiff  Col.  Surat  Singh  had  prayed  for  declaration,  

injunction and possession and the suit was partly decreed  

for correction of some mutation entries but the trial court  

clearly held that it would in no manner have any effect  

upon the possession of the parties to the suit which may  

be  determined  and  finalized  as  and  when  partition  

proceedings  are  taken  up  and  decided.   Against  the  

decree of the trial court, the plaintiff filed first appeal C.A.  

No. 1721 on 20.03.2004 and the Additional District Judge  

held by its  judgment and decree dated 18.03.2008 that  

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the trial  court  is  right  in  coming to the conclusion that  

plaintiff  had not produced cogent evidence that he was  

the owner of the suit property.  Relevant extract from para  

29  of  the  judgment  of  the  first  appellate  court  which  

records the aforesaid findings and discusses the evidence  

in support of the finding is quoted hereinbelow:

“It  was  incumbent  upon  the  plaintiff  to  produce  on  record,  the  revenue  record  relating  to  the  suit  property,  so  as  to  ascertain the share of the plaintiff, as alleged  by him.  The perusal of jamabandi Ex.PW-4/1  for  the  year  1978-79;  jamabandi  Ex.PW-7/V  for  the  year  1978-79;  jamabandi  Ex.PW-4/1  show  that  these  pertain  only  to  land  measuring  29  bighas  5  biswas,  which  is  recorded to be the ownernship of Col. Surat  Singh and other co sharers and in possession  of  one Baghel  Singh.   Jamabandi  Ex.DW7/V  pertains  to  land  measuring  29  bighas  5  biswas + 9 bighas 12 biswas + 0-4 biswas  which is recorded to be the ownership of Col.  Surat  Singh  and  other  co-sharers  and  only  land  measuring  9  bighas  12  biswas  comprised  in  khasra  No.165(3-1),  166(3-0),  167(1-16)  and  168(1-15)  is  recorded  in  exclusive possession of Col. Surat Singh.  The  trial court has rightly held that other than the  said revenue record no jamabandi of the suit  land has been produced by the plaintiff.   It  has  further  rightly  held  that  as  per  sanad  takseem  Ex.PW7/A  the  land  has  been  partitioned  between  different  co-sharers,  which is mentioned as 72 bighas 8 biswas of  which 15 bighas 12 biswas fell to the share of  Col. Surat Singh.  But even when the plaintiff  

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has filed the present suit for declaring his to  be owner in possession of the suit property,  he  did  not  bring  forth  on  file  any  revenue  record pertaining to the suit property except  jamabandies  Ex.PW4/1  and  Ex.PW7/V  pertaining to the year 1978-79 which are in  complete  and  do  not  depict  the  entire  property of  Col.  Surat  Singh as a  co-sharer  along with other co-sharers.  Trial court has  rightly  held  that  extent  of  ownership  and  possession of the plaintiff as alleged by him  was  to  be  proved  by  him,  by  brining  on  record  documents  from  which  he  drew  his  title over the suit property.  But no revenue  record  in  the  form  of  jamabandi  has  been  produced on record, so as to prove the extent  of ownership and possession of the plaintiff,  so in the absence of any documentary proof  regarding ownership of the suit property and  the revenue record produced by the plaintiff  being  incomplete  and  relating  to  the  year  1978-79, whereas the present suit was filed  in  1987,  copy  of  the  sanad  Takseem  Ex.PW7/A  depicting  the  share  of  Col.  Surat  Singh,  are  not  sufficient  to  establish  the  extent  of  the  property  of  which  Col.  Surat  Sigh was the owner.  Though, Sanad Takseem  Ex.PW7/A  was  prepared on  30.8.92,  but  no  revenue record after the preparation of the  sanad takseem has been produced, so as to  prove that the possession has been delivered  and partition had been duly acted upon.”  

9. We  find  that  in  Civil  Suit  No.  148-T/9-3-1987,  the  

plaintiff  Col.  Surat  Singh  had  prayed  for  permanent  

injunction  restraining  the  defendant  from  raising  any  

construction or alienating in any manner whatsoever on  

the suit property and on the basis of the pleadings of the  

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parties  one  of  the  issues  framed  was  whether  the  

defendants  are  owners  and  are  in  possession  of  the  

property purchased by them from Col. Girdhar Singh and  

others  but  by  order  dated  08.08.1990  the  trial  court  

deleted  this  issue  and  finally  by  judgment  dated  

08.08.1990  dismissed  the  suit.   The  plaintiff  thereafter  

filed  Civil  Appeal  No.16  on  19.09.1990  and  contended  

before the Additional District Judge inter alia that the trial  

court was not right in deleting Issue No.2 by order dated  

08.08.1990 at the stage when the parties had already led  

their evidence on that issue and the decision on this issue  

was  necessary  for  deciding  the  suit  itself  but  the  

Additional  District  Judge  rejected  this  contention  of  the  

plaintiff with the following reasons:  

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

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framing an issue that the defendants are the  owners of the suit land.”

10. The aforesaid discussion of the findings of the first  

appellate court in the two cases shows that in the suit for  

declaration  of  title,  the  plaintiff  had  not  been  able  to  

produce any evidence to  prove his  ownership  over  and  

possession over the suit land.  Moreover, in the suit for  

injunction,  the  first  appellate  court  had  held  that  the  

plaintiff had admitted in plaint that Col. Girdhar Singh, the  

predecessor-in-interest of the defendants, had purchased  

the land from him and Nanak Singh while the same was  

joint  and hence there was no necessity  for  framing the  

issue (issue No.2) that the defendants are owners and are  

in possession of the suit land.  We find on a reading of the  

sale deed dated 17.07.1978 (Ex.PW7/1) executed by the  

plaintiff  that  possession of  land measuring  2  bighas 16  

biswas out of the share of the plaintiff was handed over to  

Col. Girdhar Singh and his family members and it is not in  

dispute that Col.  Girdhar Singh and his family members  

thereafter sold this land to the appellants.  We also find on  

a reading of the sale deed dated 19.07.1979 (Ex.PW7/2)  

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executed by the plaintiff as Attorney of Nanak Singh that  

the possession of the land measuring 2 bighas out of the  

share of Nanak Singh was also given to Col. Girdhar Singh  

and his family members and it is not in dispute that Col.  

Girdhar Singh and his family members thereafter sold this  

land to the appellants in 1987.  Thus, the appellants were  

in lawful possession of the said areas of land by virtue of  

the two sale deeds and the plaintiff had not been able to  

establish  that  he  was  the  owner  of  the  suit  land  and  

consequently  he  is  entitled  to  declaration  of  his  title,  

recovery of possession and injunction.   

11.    The  plaintiff,  however,  contended  in  the  second  

appeal before the High Court that material evidence had  

not  been taken into consideration by the first  appellate  

court  and  the  High  Court  has  framed  the  following  

substantial question of law:

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

Having framed the substantial question of law, the High  

Court should have pointed out in the impugned judgment  

the material evidence which had not been considered by  

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the first appellate court, which if considered, would have  

established ownership of the plaintiff to the suit property.  

Instead of pointing out the material  evidence which has  

not been considered by the first appellate court, the High  

court has made its own assessment of the entire evidence  

as  if  it  was  the  first  appellate  court  and  held  that  the  

plaintiff  was  the  owner  of  the  suit  property  and  was  

entitled to possession of 17 karams X 45 karams of land  

depicted in letters EHGF in the site plan Ex.PW-9/A and  

that  he  was  also  entitled  to  the  relief  of  permanent  

injunction  restraining  the  plaintiff  from  raising  any  

construction  in  the  said  property  or  alienating  the  said  

property.   The  High  Court  has  itself  noticed  in  the  

impugned judgment that the land depicted in the site plan  

Ex.PW-9/A as EHGF was delivered to Col.  Girdhar  Singh  

and his family members at the time of execution of the  

sale deed by the plaintiff as Attorney of Nanak Singh on  

19.07.1979 and the appellants  had taken possession of  

the aforesaid land from Col. Girdhar Singh and his family  

members  in  1987.   The  appellants  were,  thus,  in  legal  

possession  of  the  suit  property  and  the  High  Court  in  

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exercise of its powers under Section 100 CPC could not  

have reversed the findings of the trial court and the first  

appellate court and decreed the suits  for  declaration of  

title  and  for  recovery  of  possession  and  injunction  in  

favour of the respondents so as to adversely affect such  

legal possession of the appellants.  

12.    In  Achintya Kumar Saha vs.  Nanee Printers and  

Others  (supra)  cited  by  learned  counsel  for  the  

respondents, this Court found that the main issue around  

which  the  entire  case  revolved  was  whether  the  

agreement dated 05.07.1976 was a licence or a tenancy  

and though this issue was before the trial court and the  

agreement was held to be a licence, the lower appellate  

court had not adjudicated upon this issue and this Court  

held that when the core issue is not adjudicated upon, it  

raises  a  substantial  question  of  law  under  section  100  

CPC.  In the present case, the core issue was whether the  

plaintiff was the owner of the suit property and the first  

appellate court has held in C.A. No. 1721 on 20.03.2004  

that the plaintiff has not been able to prove his ownership  

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over the suit property and has further held in C.A. No.16-T  

filed on 19.09.1990 that the plaintiff’s own admitted case  

in the plaint is that the appellants had purchased the suit  

property from Col. Girdhar Singh and his family members  

and were in possession of the same and hence the plaintiff  

was  not  entitled  to  declaration  of  his  title,  recovery  of  

possession and injunction.  In this case, therefore, the first  

appellate  court  had  decided the  core  issue against  the  

plaintiff  and  no  substantial  question  of  law  arose  for  

decision in this case by the High Court under Section 100,  

CPC.     

13. In  the  result,  these  appeals  are  allowed  and  the  

impugned  common  judgment  and  decree  of  the  High  

Court  is  set  aside.   Considering,  however,  the  peculiar  

facts and circumstances of the case, the parties shall bear  

their own costs.

.……………………….J.                                                            (A. K. Patnaik)

………………………..J.                                                            (H. L. Gokhale) New Delhi, February 12, 2013.    

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