Madhya Pradesh High Court
Smt. Vilot vs Dalchandra on 9 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1 S.A.No.113/2013
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 9th OF JULY, 2025
SECOND APPEAL No. 113 of 2013
SMT. VILOT
Versus
DALCHANDRA AND OTHERS
__________________________________________________________________________________________________________________________________________________
Appearance:
Shri Madhur Bhargava - Advocate for the appellant.
Shri S.S.Kushwah- Government Advocate for the State.
__________________________________________________________________________________________________________________________________________________
JUDGMENT
This second appeal under Section 100 of C.P.C. has been filed against
the judgment and decree dated 24/11/2012 passed by Additional District
Judge, Pichhore, District Shivpuri in Civil Appeal No.6-A/2012 as well as
judgment and decree dated 16/12/2011 passed by Civil Judge, Class-II,
Pichhore, District Shivpuri in RCS No.24-A/2011.
2. Appellant is the plaintiff who has lost her case from both the Courts
below.
3. It is the case of appellant that in the year 1991 she had encroached upon
the land belonging to the true owner and since, then she is in open and hostile
possession and thus, she has acquired her title by way of adverse possession.
4. The plaint averments were denied by the defendants/true owner.
5. The Trial Court after framing the issues and recording evidence
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2 S.A.No.113/2013
dismissed the suit.
6. Being aggrieved by the judgment and decree passed by the Trial Court,
appellant filed an appeal which too has been dismissed by Appellate Court by
impugned judgment and decree.
7. Challenging the judgment and decree passed by the Courts below, it is
submitted by counsel for appellant that both the Courts below have failed to
consider the ocular evidence led by appellant in proper prospective. It is
submitted that appellant has successfully pleaded and proved that she is in
open and hostile possession of the land in dispute since 1991 and proposed
following substantial question of law:-
“i) Whether on the facts and material brought on record by the
plaintiff, the suit of the plaintiff filed for declaration of title and
permanent injunction ought to have been decreed as the defendant
no. 1 has failed to prove his possession or dispossession of the
plaintiff from the suit land and the learned court below has not
recorded any finding that the plaintiff is not in possession of the suit
land ?
ii) Whether the plaintiff being in continuous possession of the suit
land w.e.f. 28.6.91 openly, with hostility and against the
interest/rights of the defendant no. 1, has acquired title by adverse
possession ?
Whether the learned courts below have erred in not granting decree
of permanent injunction inspite of the fact that the plaintiff is in
actual physical possession of the suit land ?
iv) Whether learned courts below have erred in not considering the
case of permanent injunction pleaded and proved and have further
erred in dismissing the suit without framing any issue with respect
to settled possession and entitlement of the plaintiff for decree of
permanent injunction ?
v) Whether learned courts below have erred in dismissing the
application filed under order 26 rule 9 CPC to resolve the dispute of
situation of house over the land survey no. 292/2 area 0.418
hectare?
vi) Whether the judgement and decree passed by the learned Courts
below being based on non consideration of evidence and pleadings
and being based on wrong assumptions, are perverse and contrary to
law and record and therefore are not sustainable ?”
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3 S.A.No.113/2013
8. Heard the learned counsel for appellant.
9. Both the Courts below have given concurrent finding of fact to the
effect that the plaintiff is not in possession of the property in dispute. Finding
of possession is undisputedly a dispute question of fact which cannot be
interfered with in exercise of power under Section 100 of C.P.C. unless and
until those findings are shown to be perverse. Except ocular evidence, no
other evidence was produced by appellant to show that she was in cultivating
possession of land in dispute. If the plaintiff was in possession, then she must
be selling the crop in Krishi Upaj Mandi, but no receipt of sale of agricultural
produce was filed and proved by plaintiff.
10. It is well established principle of law that this Court in exercise of
power under Section 100 of C.P.C. cannot be interfered with the concurrent
finding of fact even if they found to be erroneous. Unless and until findings of
fact recorded by the Courts below are found to be perverse, then the same
cannot be interfered with.
11. Thus, counsel for appellants could not point out any perversity in the
concurrent findings of facts recorded by the Courts below. The Supreme
Court in the case of Damodar Lal v. Sohan Devi, reported in (2016) 3 SCC
78 has held as under :
“8. “Perversity” has been the subject-matter of umpteen
number of decisions of this Court. It has also been settled
by several decisions of this Court that the first appellate
court, under Section 96 of the Civil Procedure Code, 1908,
is the last court of facts unless the findings are based on
evidence or are perverse.
9. In Krishnan v. Backiam, it has been held at para 11 that:
(SCC pp. 192-93)
“11. It may be mentioned that the first appellate court under
Section 96 CPC is the last court of facts. The High Court in
second appeal under Section 100 CPC cannot interfere with
the findings of fact recorded by the first appellate court
under Section 96 CPC. No doubt the findings of fact of theSignature Not Verified
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4 S.A.No.113/2013first appellate court can be challenged in second appeal on
the ground that the said findings are based on no evidence
or are perverse, but even in that case a question of law has
to be formulated and framed by the High Court to that
effect.”
10. In Gurvachan Kaur v. Salikram, at para 10, this
principle has been reiterated: (SCC p. 532)
“10. It is settled law that in exercise of power under Section
100 of the Code of Civil Procedure, the High Court cannot
interfere with the finding of fact recorded by the first
appellate court which is the final court of fact, unless the
same is found to be perverse. This being the position, it
must be held that the High Court4 was not justified in
reversing the finding of fact recorded by the first appellate
court on the issues of existence of landlord-tenant
relationship between the plaintiff and the defendant and
default committed by the latter in payment of rent.”
12. The Supreme Court in the case of Pakeerappa Rai v. Seethamma
Hengsu, reported in (2001) 9 SCC 521 has held as under :
“2…. But the High Court in exercise of power under
Section 100 CPC cannot interfere with the erroneous
finding of fact howsoever gross the error seems to be. We,
therefore, do not find any merit in the contention of the
learned counsel for the appellant.”
13. The Supreme Court in the case of Randhir Kaur v. Prithvi Pal Singh,
reported in (2019) 17 SCC 71 has held as under :
“15. A perusal of the aforesaid judgments would show that
the jurisdiction in second appeal is not to interfere with the
findings of fact on the ground that findings are erroneous,
however, gross or inexcusable the error may seem to be. The
findings of fact will also include the findings on the basis of
documentary evidence. The jurisdiction to interfere in the
second appeal is only where there is an error in law or
procedure and not merely an error on a question of fact.
16. In view of the above, we find that the High Court could
not interfere with the findings of fact recorded after
appreciation of evidence merely because the High Court
thought that another view would be a better view. The
learned first appellate court has considered the absence of
clause in the first power of attorney to purchase land on
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5 S.A.No.113/2013behalf of the plaintiff; the fact that the plaintiff has not
appeared as witness.
17. A perusal of the findings recorded show that the learned
first appellate court has returned a finding that the plaintiff
was ready and willing to perform the contract and that the
defendants cannot take plea that they were not aware that
Dhanwant Singh was power-of-attorney holder. Therefore,
the findings recorded by the first appellate court cannot be
said to be contrary to law which may confer jurisdiction on
the High Court to interfere with the findings of fact recorded
by the first appellate court.
18. The learned counsel for the respondents have not raised
any argument that the first appellate court has failed to
determine some material issue of law which may confer
jurisdiction on the High Court to interfere with the findings
of fact nor is there any substantial error or defect in the
procedure provided by the Code of Civil Procedure or by
any other law for the time being in force which may possibly
have produced error or defect in the decision on merits.
Therefore, the High Court was not within its jurisdiction to
interfere with the findings of fact only for the reason that the
plaintiff has failed to prove power of attorney in favour of
Dhanwant Singh.”
14. The Supreme Court in the case of Gurdev Kaur v. Kaki, reported in
(2007) 1 SCC 546 has held as under :
“46. In Bholaram v. Ameerchand a three-Judge Bench of this
Court reiterated the statement of law. The High Court,
however, seems to have justified its interference in second
appeal mainly on the ground that the judgments of the courts
below were perverse and were given in utter disregard of the
important materials on the record particularly
misconstruction of the rent note. Even if we accept the main
reason given by the High Court the utmost that could be said
was that the findings of fact by the courts below were wrong
or grossly inexcusable but that by itself would not entitle the
High Court to interfere in the absence of a clear error of law.
47. In Kshitish Chandra Purkait v. Santosh Kumar Purkait a
three-Judge Bench of this Court held: (a) that the High Court
should be satisfied that the case involved a substantial
question of law and not mere question of law; (b) reasons for
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6 S.A.No.113/2013it has the duty to formulate the substantial questions of law
and to put the opposite party on notice and give fair and
proper opportunity to meet the point. The Court also held
that it is the duty cast upon the High Court to formulate
substantial question of law involved in the case even at the
initial stage.
48. This Court had occasion to determine the same issue in
Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor.
The Court stated that the High Court can exercise its
jurisdiction under Section 100 CPC 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.
49. A mere look at the said provision shows that the High
Court can exercise its jurisdiction under Section 100 CPC
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. The
impugned judgment shows that no such procedure was
followed by the learned Single Judge. It is held by a catena
of judgments by this Court, some of them being, Kshitish
Chandra Purkait v. Santosh Kumar Purkait and Sheel
Chand v. Prakash Chand that the judgment rendered by the
High Court under Section 100 CPC without following the
aforesaid procedure cannot be sustained. On this short
ground alone, this appeal is required to be allowed.
50. In Kanai Lal Garari v. Murari Ganguly this Court has
observed that it is mandatory to formulate the substantial
question of law while entertaining the appeal in absence of
which the judgment is to be set aside. In Panchugopal
Barua v. Umesh Chandra Goswami and Santosh Hazari v.
Purushottam Tiwari the Court reiterated the statement of law
that the High Court cannot proceed to hear a second appeal
without formulating the substantial question of law. These
judgments have been referred to in the later judgment of K.
Raj v. Muthamma. A statement of law has been reiterated
regarding the scope and interference of the Court in second
appeal under Section 100 of the Code of Civil Procedure.
51. Again in Santosh Hazari v. Purushottam Tiwari another
three-Judge Bench of this Court correctly delineated theSignature Not Verified
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7 S.A.No.113/2013scope of Section 100 CPC. The Court observed that an
obligation is cast on the appellant to precisely state in the
memorandum of appeal the substantial question of law
involved in the appeal and which the appellant proposes to
urge before the Court. In the said judgment, it was further
mentioned that the High Court must be satisfied that a
substantial question of law is involved in the case and such
question has then to be formulated by the High Court.
According to the Court the word substantial, as qualifying
“question of law”, means–of having substance, essential,
real, of sound worth, important or considerable. It is to be
understood as something in contradistinction with–
technical, of no substance or consequence, or academic
merely. However, it is clear that the legislature has chosen
not to qualify the scope of “substantial question of law” by
suffixing the words “of general importance” as has been
done in many other provisions such as Section 109 of the
Code and Article 133(1)(a) of the Constitution.
52. In Kamti Devi v. Poshi Ram the Court came to the
conclusion that the finding thus reached by the first appellate
court cannot be interfered with in a second appeal as no
substantial question of law would have flowed out of such a
finding.
53. In Thiagarajan v. Sri Venugopalaswamy B. Koil this
Court has held that the High Court in its jurisdiction under
Section 100 CPC was not justified in interfering with the
findings of fact. The Court observed that to say the least the
approach of the High Court was not proper. It is the
obligation of the courts of law to further the clear
intendment of the legislature and not frustrate it by
excluding the same. This Court in a catena of decisions held
that where findings of fact by the lower appellate court are
based on evidence, the High Court in second appeal cannot
substitute its own findings on reappreciation of evidence
merely on the ground that another view was possible.
54. In the same case, this Court observed that in a case
where special leave petition was filed against a judgment of
the High Court interfering with findings of fact of the lower
appellate court. This Court observed that to say the least the
approach of the High Court was not proper. It is the
obligation of the courts of law to further the clear
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8 S.A.No.113/2013excluding the same. This Court further observed that the
High Court in second appeal cannot substitute its own
findings on reappreciation of evidence merely on the ground
that another view was possible.
55. This Court again reminded the High Court in Commr.,
HRCE v. P. Shanmugama 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 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.
57. Again, in Madhavan Nair v. Bhaskar Pillai this Court
observed that the High Court was not justified in interfering
with the concurrent findings of fact. This Court observed
that it is well settled that even if the first appellate court
commits an error in recording a finding of fact, that itself
will not be a ground for the High Court to upset the same.
58. Again, in Harjeet Singh v. Amrik Singh this Court with
anguish has mentioned that the High Court has no
jurisdiction to interfere with the findings of fact arrived at by
the first appellate court. In this case, the findings of the trial
court and the lower appellate court regarding readiness and
willingness to perform their part of contract was set aside by
the High Court in its jurisdiction under Section 100 CPC.
This Court, while setting aside the judgment of the High
Court, observed that the High Court was not justified in
interfering with the concurrent findings of fact arrived at by
the courts below.
59. In H.P. Pyarejan v. Dasappa delivered on 6-2-2006, this
Court found serious infirmity in the judgment of the High
Court. This Court observed that it suffers from the vice of
exercise of jurisdiction which did not vest in the High Court.
Under Section 100 of the Code (as amended in 1976) the
jurisdiction of the Court to interfere with the judgments of
the courts below is confined to hearing of substantial
questions of law. Interference with the finding of fact by the
High Court is not warranted if it invokes reappreciation of
evidence. This Court found that the impugned judgment of
the High Court was vulnerable and needed to be set aside.”
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9 S.A.No.113/2013
15. The Supreme Court in the case of Municipal Committee, Hoshiarpur
v. Punjab SEB, reported in (2010) 13 SCC 216 has held as under :
“16. Thus, it is evident from the above that the right to
appeal is a creation of statute and it cannot be created by
acquiescence of the parties or by the order of the court.
Jurisdiction cannot be conferred by mere acceptance,
acquiescence, consent or by any other means as it can be
conferred only by the legislature and conferring a court or
authority with jurisdiction, is a legislative function. Thus,
being a substantive statutory right, it has to be regulated in
accordance with the law in force, ensuring full compliance
with the conditions mentioned in the provision that creates
it. Therefore, the court has no power to enlarge the scope of
those grounds mentioned in the statutory provisions. A
second appeal cannot be decided merely on equitable
grounds as it lies only on a substantial question of law,
which is something distinct from a substantial question of
fact. The court cannot entertain a second appeal unless a
substantial question of law is involved, as the second appeal
does not lie on the ground of erroneous findings of fact
based on an appreciation of the relevant evidence. The
existence of a substantial question of law is a condition
precedent for entertaining the second appeal; on failure to do
so, the judgment cannot be maintained. The existence of a
substantial question of law is a sine qua non for the exercise
of jurisdiction under the provisions of Section 100 CPC. It is
the obligation on the court to further clear the intent of the
legislature and not to frustrate it by ignoring the same. (Vide
Santosh Hazari v. Purshottam Tiwari; Sarjas Rai v. Bakshi
Inderjit Singh; Manicka Poosali v. Anjalai Ammal; Sugani v.
Rameshwar Das; Hero Vinoth v. Seshammal; P.
Chandrasekharan v. S. Kanakarajan; Kashmir Singh v.
Harnam Singh; V. Ramaswamy v. Ramachandran and Bhag
Singh v. Jaskirat Singh.)
17. In Mahindra & Mahindra Ltd. v. Union of India this
Court observed*:
“12. … it is not every question of law that could be
permitted to be raised in the second appeal. The parameters
within which a new legal plea could be permitted to be
raised, are specifically stated in sub-section (5) of Section
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10 S.A.No.113/2013that the case involves a ‘substantial question of law’ and not
a mere ‘question of law’. The reason for permitting the
substantial question of law to be raised, should be ‘recorded’
by the Court. It is implicit therefrom that on compliance of
the above, the opposite party should be afforded a fair or
proper opportunity to meet the same. It is not any legal plea
that would be alleged at the stage of second appeal. It should
be a substantial question of law. The reasons for permitting
the plea to be raised should also be recorded.” [Kshitish
Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC
438, pp. 445-46, para 10]
18. In Madamanchi Ramappa v. Muthaluru Bojjappa this
Court observed : (AIR pp. 1637-38, para 12)
“12. … Therefore, whenever this Court is satisfied that in
dealing with a second appeal, the High Court has, either
unwittingly and in a casual manner, or deliberately as in this
case, contravened the limits prescribed by Section 100, it
becomes the duty of this Court to intervene and give effect
to the said provisions. It may be that in some cases, the High
Court dealing with the second appeal is inclined to take the
view that what it regards to be justice or equity of the case
has not been served by the findings of fact recorded by
courts of fact; but on such occasions it is necessary to
remember that what is administered in courts is justice
according to law and considerations of fair play and equity
however important they may be, must yield to clear and
express provisions of the law. If in reaching its decisions in
second appeals, the High Court contravenes the express
provisions of Section 100, it would inevitably introduce in
such decisions an element of disconcerting unpredictability
which is usually associated with gambling; and that is a
reproach which judicial process must constantly and
scrupulously endeavour to avoid.”
19. In Jai Singh v. Shakuntala this Court held as under :
(SCC pp. 637-38, para 6)
“6. … it is only in very exceptional cases and on extreme
perversity that the authority to examine the same in extenso
stands permissible — it is a rarity rather than a regularity
and thus in fine it can be safely concluded that while there is
no prohibition as such, but the power to scrutiny can only be
had in very exceptional circumstances and upon proper
circumspection.”
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11 S.A.No.113/2013
20. While dealing with the issue, this Court in Leela Soni v.
Rajesh Goyal observed as under : (SCC p. 502, paras 20-22)
“20. There can be no doubt that the jurisdiction of the High
Court under Section 100 of the Code of Civil Procedure
(CPC) is confined to the framing of substantial questions of
law involved in the second appeal and to decide the same.
Section 101 CPC provides that no second appeal shall lie
except on the grounds mentioned in Section 100 CPC. Thus
it is clear that no second appeal can be entertained by the
High Court on questions of fact, much less can it interfere in
the findings of fact recorded by the lower appellate court.
This is so, not only when it is possible for the High Court to
take a different view of the matter but also when the High
Court finds that conclusions on questions of fact recorded by
the first appellate court are erroneous.
21. It will be apt to refer to Section 103 CPC which enables
the High Court to determine the issues of fact:
***
22. The section, noted above, authorises the High Court to
determine any issue which is necessary for the disposal of
the second appeal provided the evidence on record is
sufficient, in any of the following two situations : (1) when
that issue has not been determined both by the trial court as
well as the lower appellate court or by the lower appellate
court; or (2) when both the trial court as well as the appellate
court or the lower appellate court have wrongly determined
any issue on a substantial question of law which can
properly be the subject-matter of second appeal under
Section 100 CPC.”
21. In Jadu Gopal Chakravarty v. Pannalal Bhowmick the
question arose as to whether the compromise decree had
been obtained by fraud. This Court held that though it is a
question of fact, but because none of the courts below had
pointedly addressed the question of whether the compromise
in the case was obtained by perpetrating fraud on the court,
the High Court was justified in exercising its powers under
Section 103 CPC to go into the question. (See also Achintya
Kumar Saha v. Nanee Printers.)
22. In Bhagwan Sharma v. Bani Ghosh this Court held that
in case the High Court exercises its jurisdiction under
Section 103 CPC, in view of the fact that the findings of fact
recorded by the courts below stood vitiated on account of
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12 S.A.No.113/2013
non-consideration of additional evidence of a vital nature,
the Court may itself finally decide the case in accordance
with Section 103(b) CPC and the Court must hear the parties
fully with reference to the entire evidence on record with
relevance to the question after giving notice to all the
parties. The Court further held as under : (Bhagwan Sharma
case, SCC p. 499, para 5)
“5. … 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, as has been done in the impugned judgment.”
23. In Kulwant Kaur v. Gurdial Singh Mann this Court
observed as under : (SCC pp. 278-79, para 34)
“34. Admittedly, Section 100 has introduced a definite
restriction on to the exercise of jurisdiction in a second
appeal so far as the High Court is concerned. Needless to
record that the Code of Civil Procedure (Amendment) Act,
1976 introduced such an embargo for such definite
objectives and since we are not required to further probe on
that score, we are not detailing out, but the fact remains that
while it is true that in a second appeal a finding of fact, even
if erroneous, will generally not be disturbed but where it is
found that the findings stand vitiated on wrong test and on
the basis of assumptions and conjectures and resultantly
there is an element of perversity involved therein, the High
Court in our view will be within its jurisdiction to deal with
the issue. This is, however, only in the event such a fact is
brought to light by the High Court explicitly and the
judgment should also be categorical as to the issue of
perversity vis-à-vis the concept of justice. Needless to say
however, that perversity itself is a substantial question worth
adjudication — what is required is a categorical finding on
the part of the High Court as to perversity. …
The requirements stand specified in Section 103 and nothing
short of it will bring it within the ambit of Section 100 since
the issue of perversity will also come within the ambit of
substantial question of law as noticed above. The legality of
finding of fact cannot but be termed to be a question of law.
We reiterate however, that there must be a definite finding to
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13 S.A.No.113/2013
that effect in the judgment of the High Court so as to make it
evident that Section 100 of the Code stands complied with.”
16. As no substantial question of law arises in the present appeal,
accordingly, judgment and decree dated 24/11/2012 passed by Additional
District Judge, Pichhore, District Shivpuri in Civil Appeal No.6-A/2012 as
well as judgment and decree dated 16/12/2011 passed by Civil Judge, Class-
II, Pichhore, District Shivpuri in RCS No.24-A/2011 are hereby affirmed.
17. Accordingly, this second appeal fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
PjS/-
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