Himachal Pradesh High Court
________________________________________________ vs Todar on 7 January, 2025
Author: Sushil Kukreja
Bench: Sushil Kukreja
Neutral Citation No. ( 2025:HHC:1117 )
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
RSA No. 153 of 2013
Reserved on: 10.12.2024
Decided on: 07.01.2025
________________________________________________
Gurdev & others …Appellants.
Versus
Todar ...Respondent.
_________________________________________________
Coram
The Hon’ble Mr. Justice Sushil Kukreja, Judge.
1
Whether approved for reporting? Yes.
________________________________________________
For the appellants: Mr. K.D. Sood, Senior
Advocate, with Mr. Vivek
Thakur, Advocate.
For the respondent: Mr. G.R. Palsra, Advocate.
Sushil Kukreja, Judge
The present regular second appeal has been
maintained by appellants, who were defendants before the
learned Trial Court (hereinafter referred to as “the
defendants”) under Section 100 CPC against the judgment
and decree, passed by the learned Additional District Judge,
Mandi, dated 21.02.2013, in Civil Appeal No. 47 of 2011,
whereby the appeal preferred by the defendants against the
judgment and decree, dated 31.05.2011, passed by learned
1
Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:1117 )
Civil Judge (Junior Division), Chachiot at Gohar, District
Mandi, H.P., in Civil Suit No. 20 of 2006, was dismissed.
2. The key facts of the case can tersely be
summarized as under:
2(a). Respondent-Shri Todar, who was plaintiff before
the learned Trial Court (hereinafter referred to as “the
plaintiff”) filed a suit for declaration and injunction against the
defendants (appellants herein). The plaintiff averred that
land comprised in Khata No. 27, Khatauni No. 27, bearing
Khasra No. 347/134 (new), measuring 4-03-13 bighas,
situated in Mauza Chhol, H.B. No. 22, IllaquaBaniur, Tehsil
Chachiot, District Mandi, H.P. (hereinafter referred to as the
suit land) was recorded in the ownership and possession of
defendant No. 1-Sidhu Ram. As per the plaintiff, the revenue
entries were wrong, illegal and one Smt. Sukri widow of
Narangu, who was resident of village Tandi and Chhol, was
previous owner of the suit land. Smt. Sukri sold land
measuring 4-10-0 bigha out of the suit land to the plaintiff for
a sale consideration of Rs.9000/- and to this effect writing of
sale was executed by Smt. Sukri on 11.06.1985, in presence
of witnesses, i.e., the then President, Gram Panchayat
3 Neutral Citation No. ( 2025:HHC:1117 )
Nandi, Tehsil Chachiot. Smt. Sukri handed over the
possession of the suit land to the plaintiff and last installment
of balance sale consideration was paid by the plaintiff to Smt.
Sukri on 10.02.1986 in presence of witnesses. Thereafter,
the suit land remained in open, peaceful, continuous and
uninterrupted possession of the plaintiff for more than twelve
years and he has become owner of the same on the basis of
the said sale.
2(b). Smt. Sukri, behind the back of the plaintiff,
wrongly and illegally bequeathed the suit land in favour of
defendant No. 1, through alleged Will No. 46, dated
16.05.1995 and on 14.12.2004 Smt. Sukri died.
Subsequently, defendant No. 1, secretly got mutation of
inheritance attested in his name qua the suit land without the
knowledge of the plaintiff. Defendant No. 1, wrongly and
illegally, without any delivery of possession sold the suit land
to defendants No. 2 and 3, vide sale deed No. 135, dated
16.03.2006. The plaintiff further averred that the suit land
was sold to him by Smt. Sukri and possession of the same
also remained with him during the lifetime of Smt. Sukri,
therefore, he became owner of the suit land by way of
adverse possession.
4 Neutral Citation No. ( 2025:HHC:1117 )
2(c). As per the plaintiff, defendant No. 1 had no right,
title and interest over the suit land, as his name was
incorporated in the revenue record on the basis of wrong and
illegal Will. It was further contended that defendant No. 1
sold the suit land to defendants No. 2 and 3 without any
delivery of possession to them. The sale deed, whereby
defendant No. 1 sold the suit land to defendants No. 2 and 3,
is wrong, illegal, null and void and the same does not confer
any right, title and interest upon defendants No. 2 and 3 and
it is not binding upon the plaintiff.
2(d). The plaintiff also averred that during the third
week of March, 2006, the defendants started threatening to
forcibly dispossess the plaintiff from the suit land on the
basis of alleged Will and Sale deed and the plaintiff for the
first time came to know about the alleged Will, Sale deed and
revenue entries, which were appearing in the name of the
defendants. As per the plaintiff, since the third week of
March, 2006, the defendants started causing unlawful
interference in the peaceful possession and enjoyment of the
plaintiff. The plaintiff time and again asked the defendants to
admit his claim over the suit land, however the defendants
during the first week of April, 2006, finally declined his claim.
5 Neutral Citation No. ( 2025:HHC:1117 )
Lastly, the plaintiff prayed that his suit for declaration and
injunction be decreed.
3(a). Defendant No. 1, by filing separate written
statement, contested the suit of the plaintiff. In the written
statement, preliminary objection viz., maintainability, locus
standi, want of valid cause of action etc. were raised and on
merits defendant No. 1 averred that Smt. Sukri was the
previous owner of the suit land. The replying defendant
denied that Smt. Sukri ever sold land measuring 4-10-0
bigha to the plaintiff and to this effect any writing of sale was
executed and possession of the suit land was handed over to
the plaintiff. It was further averred by the replying defendant
that Smt. Sukri never sold any piece of land to the plaintiff,
therefore, there was no question of sale consideration, last
installment and handing over the possession etc.
3(b), As per defendant No. 1, copy of writing is fake,
fictitious and forged one. Since no sale was ever made by
Smt. Sukri in favour of the plaintiff, therefore, no question of
possession and becoming of owner of the suit land arise.
Defendant No. 1 also averred that Smt. Sukri died on
14.12.2004 and she had validly, legally and rightly
6 Neutral Citation No. ( 2025:HHC:1117 )
bequeathed the suit land in his favour, through registered
Will No. 46, dated 16.05.1995, and to this effect mutation
was openly attested in his favour, thus the plaintiff has no
right, title and interest over the suit land in any manner. The
replying defendant also denied that he had sold the suit land
to defendants No. 2 and 3 without delivery of possession, as
alleged. He has averred that previously Smt. Sukri was
owner-in-possession of the suit land and subsequent to her
death, the suit land came in his possession and after the
sale, the same came in exclusive possession of defendants
No. 2 and 3. As per defendant No. 1, the plaintiff took two
contradictory pleas, i.e., he became owner of the suit land by
way of alleged sale and conversely he also alleged that he
became owner by way of adverse possession and he cannot
be allowed to do so, as per the provision of law.
3(c). Defendant No. 1 further averred that Will was
right and legal one and his name has rightly been
incorporated in the revenue record and he had rightly sold
the suit land to defendants No. 2 and 3 with delivery of
possession. As per defendant No. 1, the plaintiff was never
owner and not in possession of the suit land, thus there was
7 Neutral Citation No. ( 2025:HHC:1117 )
no question of declaring him owner-in-possession of the suit
land.
4(a). Defendants No. 2 and 3 filed a joint written
statement, wherein they averred that previously the suit land
was recorded in the ownership and possession of defendant
No. 1 and to this effect revenue entries were correct. It was
further averred that previously Smt. Sukri was owner-in-
possession of the suit land and the plaintiff was neither
owner nor in possession of the suit land. Defendant No. 1
legally sold and delivered the possession of the suit land to
them and thereafter they became bonafide purchasers. The
replying defendants denied the possession of the plaintiff
over the suit land and averred that they are in exclusive
possession over the same.
4(b). Defendants No. 2 and 3 averred that the plaintiff
never remained in possession of the suit land, therefore,
there is no question of interference, threatening and
dislodging. The plaintiff had no right, title and interest over
the suit land. Lastly, the replying defendants prayed for
dismissal of the suit filed by the plaintiff.
8 Neutral Citation No. ( 2025:HHC:1117 )
5. The plaintiff filed replication to the written
statements filed by defendant No. 1 and defendants No. 2 &
3, wherein the claims of the defendants were denied and the
averments made in the plaint were reiterated. The plaintiff
averred that he had purchased the suit land from Smt. Sukri
through an unregistered writing of sale, dated 11.06.1985,
and in case the same is not valid, then he had become
owner of the suit land by way of adverse possession on the
basis of above unregistered writing of sale, as he remained
in open, peaceful continuous and uninterrupted possession
of the suit land.
6. On 12.10.2006, on the basis of the pleadings of
the parties following issues were framed by the leaned Trial
Court for determination and adjudication:
“1. Whether Smt. Shukri Devi widow of Narangu
has sold the suit land to theplaintiff vide
writing dated 11.6.1985 for sale consideration
of Rs.9000/- and possession of suit land was
also handed over to the plaintiff by Smt.
Shukri Devi as alleged? OPP
2. Whether Smt. Shukri Devi has wrongly and
illegally bequeathed the suit land in favour of
defendant No. 1 vide Will No. 46 dated
16.5.1995 behind the back of the plaintiff as
alleged? OPP
3. Whether the defendant No. 1 on the basis of
wrong revenue entry of the suit land has
wrongly and illegally sold the suit land vide
sale deed No. 135 dated 16.3.2006 to
9 Neutral Citation No. ( 2025:HHC:1117 )defendant No. 2 and 3 without delivery of
possession as alleged? OPD
4. Whether the plaintiff is entitled for relief of
permanent prohibitory injunction as alleged?
OPP
5. If issue No. 1 is not proved then whether the
plaintiff is in open, peaceful continuous and
uninterrupted possession of the suit land on
the strength of unregistered sale deed dated
11.6.1985 and the plaintiff has become owner
of the suit land by way of adverse
possession as alleged? OPP
6. Whether the suit of the plaintiff is not
maintainable? OPD
7. Whether the plaintiff has no locus standing
to file the present suit? OPD
8. Whether the plaintiff has no enforceable
cause of action to file the present suit? OPD
9. Relief.”
7. The learned Trial Court, after partly deciding
issue No. 1 in favour of the plaintiff, issue No. 3 to 5 in favour
of the plaintiff (issues No. 2 and 6 to 8 were not pressed),
decreed the suit of the plaintiff.
8. Feeling aggrieved and dissatisfied, the
defendants approached the learned Additional District Judge,
Mandi, District Mandi, H.P., by filing an appeal under Section
96 of CPC read with Section 21 of the H.P. Courts Act, 1976,
but the same was dismissed, hence the instant appeal,
which has been admitted for hearing on the following
substantial questions of law:
10 Neutral Citation No. ( 2025:HHC:1117 )
“1. Whether the findings of the Court below are
perverse, based on misreading of oral and
documentary evidence as also the pleadings
of the parties and drawing of wrong
inferences from the facts proved on record,
particularly, deed Ext. PW-2/A, sale deed PD
and the Will PA/
2. Whether the court below has relied upon
inadmissible oral and documentary evidence,
particularly, Ext. PW-2/A which was an
unregistered document admittedly creating
interests of more than Rs.100/- in immovable
property and could not be made the basis for
holding the plaintiff the owner of the property
much less by way of adverse possession?
3. Whether the appellants were bonafide
purchaser for consideration having bought
the property for consideration of
Rs.1,76,000/-, more particularly, when Ext.
PW-2/A did not confer any title on the
plaintiff?
4. Whether the suit of the plaintiff was
maintainable when the plaintiff was entitled
to no relief in the absence of prayer of
specific performance of the agreement being
sought?
5. Whether the findings that the plaintiff
become owner by way of adverse possession
is sustainable and the suit on the plea of
adverse possession was maintainable at the
instance of the plaintiff?
6. Whether in view of the contradictory pleas of
the plaintiff of ownership and adverse
possession, the reliance placed on the report
Ext. PW-5/A is sustainable when the
document Ext. PW-2/A was proved to be
forged and fictitious document?”
9. The learned counsel for the appellants
contended that the claim of the plaintiff of adverse
possession could not have been founded on the basis of
11 Neutral Citation No. ( 2025:HHC:1117 )inadmissible oral and documentary evidence, particularly,
Ex. PW-2/A, which was an unregistered document, creating
interest in immovable property of more than Rs.100/-. He
further contended that the relief of declaration and injunction
could not have been granted to the plaintiff without seeking
specific performance of the alleged agreement of sale. He
also contended that defendants No. 2 and 3, being bona fide
purchasers for consideration, were put in possession over
the suit property, having purchased the same from defendant
No. 1 on the basis of valid sale deeds, Ex. PD and Ex. PE,
and the same having not been challenged, prevail over the
unregistered document, Ex. PW-2/A.
10. On the other hand, the learned counsel for the
plaintiff/respondent contended that the plaintiff has filed the
suit against the defendants claiming ownership of the suit
land by way of adverse possession on the strength of the
sale deed Ex. PW-2/A, which can be read for collateral
purpose, as the same having not been registered. He further
contended that the plaintiff had been able to prove that he is
in possession of the suit land since 11.06.1985 and for the
same a suit has been filed on 18.04.2006, therefore, the
12 Neutral Citation No. ( 2025:HHC:1117 )plaintiff has perfected his title over the suit land by way of
adverse possession.
11. I have heard the learned counsel for the
appellants, learned counsel for the respondent and has
meticulously examined the entire records.
12. Before adverting to the merits of the case, it would
be apposite to have a look into the legal position.As far as
interference in the second appeal is concerned, the Hon’ble
Apex Court, in a catena of decisions, has held that the scope
of interference in the second appeal is very limitedwhen
there are concurrent findings recorded by the Courts below.
A very strong case is required to be established by the
appellant. The second appeal can only be admitted on
substantial questions of law. In the case of Kondiba Dagadu
Kadam vs. Savitribai Sopan Gurjar, reported in (1999) 3
SCC 722, it has been held by Hon’ble Supreme Court as
under: 3
“3. After the amendment a second appeal can be filed
only if a substantial question of law is involved in
the case. The memorandum of appeal must
precisely state the substantial question of law
involved and the High Court is obliged to satisfy
itself regarding the existence of such a question. If
satisfied, the High Court has to formulate the
substantial question of law involved in the case. The
appeal is required to be heard on the question so
formulated. However, the respondent at the time of
the hearing of the appeal has a right to argue that
13 Neutral Citation No. ( 2025:HHC:1117 )the case in the Court did not involve any substantial
question of law. The proviso to the section
acknowledges the powers of the High Court to hear
the appeal on a substantial point of law, though not
formulated by it with the object of ensuring that no
injustice is done to the litigant where such a
question was not formulated at the time of
admission either by mistake or by inadvertence.
… … … … … … … …
5. It is not within the domain of the High Court to
investigate the grounds on which findings were
arrived at, by the last court of fact, being the first
appellate court. It is true that the lower appellate
court should not ordinarily reject witnesses
accepted by the trial court in respect of credibility
but even where it has rejected the witnesses
accepted by the trial court, the same is no ground
for interference in second appeal when it is found
that the appellate court had given satisfactory
reasons for doing so. In a case where from a given
set of circumstances two inferences are possible,
one drawn by the lower appellate court is binding on
the High Court in second appeal. Adopting any other
approach is not permissible. 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 tower appellate court were
erroneous being contrary to the mandatory
provisions of law applicable of its settled position on
the basis of pronouncements made by the apex
Court, or was based upon in inadmissible evidence
or arrived at without evidence.
13. In the case of Laxmidevamma vs. Ranganath,
reported in (2015) 4 SCC 264, the Apex Court has held that
the concurrent findings of fact cannot be upset by the High
Court unless the findings so recorded are shown to be
perverse. The relevant portion of the judgment (supra) is as
under:-
“16. Based on oral and documentary evidence, both
the courts below have recorded concurrent
findings of fact that plaintiffs have established
their right in ‘A’ schedule property. In the light of
concurrent findings of fact, no substantial
questions of law arose in the High Court and
there was no substantial ground for re-
appreciation of evidence. While so, the High
Court proceeded to observe that the first plaintiff
14 Neutral Citation No. ( 2025:HHC:1117 )has earmarked the ‘A’ schedule property for road
and that she could not have full fledged right and
on that premise proceeded to hold that
declaration to plaintiffs’ right cannot be granted.
In exercise of jurisdiction under Section 100
C.P.C., concurrent findings of fact cannot be
upset by the High Court unless the findings so
recorded are shown to be perverse. In our
considered view, the High Court did not keep in
view that the concurrent findings recorded by the
courts below, are based on oral and documentary
evidence and the judgment of the High Court
cannot be sustained.”
14. The Hon’ble Apex Court in case of Adiveppa &
Others vs. Bhimappa & Others (2017) 9 SCC 586 has
held that unless the findings of facts, though concurrent, are
found to be extremely perverse so as to affect the judicial
conscious of a judge, they would be binding on the Appellate
Court. The relevant portion of the judgment (supra) is as
under:
“14. Here is a case where two Courts below, on
appreciating the entire evidence, have come to a
conclusion that the Plaintiffs failed to prove their
case in relation to both the suit properties. The
concurrent findings of facts recorded by the two
Courts, which do not involve any question of law
much less substantial question of law, are
binding on this Court.
15. It is more so when these findings are neither
against the pleadings nor against the evidence
and nor contrary to any provision of law. They are
also not perverse to the extent that no such
findings could ever be recorded by any judicial
person. In other words, unless the findings of
facts, though concurrent, are found to be
extremely perverse so as to affect the judicial
conscious of a judge, they would be binding on
the Appellate Court.”
15. From the above decisions, it is clear that this Court
is not required to re-open concurrent findings of fact in
second appeal in the absence of any perversity.
15 Neutral Citation No. ( 2025:HHC:1117 )
16. In the case on hand, in order prove its case, the
plaintiff himself appeared in the witness-box as PW-1. In
support of his case he examined PW-2 Shri Nokh Singh, the
then Pradhan Gram Panchayat Nandi, PW-3 Shri Sevku @
Gurdas, PW-4 Shri Lal Singh and PW-5 Shri Tulsi Ram,
Field Kanungo.
17. On the other hand, defendant Shri Sidhu Ram
appeared in the witness-box as DW-1 and he also examined
one Shri Gurdev as DW-2 in support of his case.
18. The case of the plaintiff is that he has become
owner of the suit land by way of adverse possession on the
basis of the sale deed, Ex. PW-2/A, stated to have been
executed by Smt. Sukri in his favour on 11.06.1985. As per
the plaintiff, he purchased the suit land from Smt. Sukri on
11.06.1985 for Rs.9000/- and in this respect a writing was
prepared, which was scribed by Pradhan Shri Nokh Singh in
presence of witnesses Kamala Ram, Gurdass and Thanku
and since then he is in possession of the suit land and has
perfected his title by way of adverse possession. The further
case of the plaintiff is that the alleged Will executed by Smt.
Sukri in favour of defendant No. 1, on the basis of mutation
16 Neutral Citation No. ( 2025:HHC:1117 )
of inheritance, attested in his (defendant No. 1), name, is null
and void and is not binding upon him. The further case of
the plaintiff is that defendant No. 1 had wrongly and illegally
sold the suit land to defendants No. 2 and 3 without any
delivery of possession, which is also null and void and not
binding upon his rights.
19. Plaintiff-Shri Todar, while appearing in the
witness-box as PW-1, stated that on 11.06.1985 he
purchased the suit land from Smt. Sukri for Rs.9000/- and he
had paid Rs.2500/- and Rs.600/- earlier and paid Rs.2000/-
on 11.06.1985 to Smt. Sukri. The plaintiff further deposed
that a writing (Mark X), which was scribed by Pradhan Shri
Nokh Singh at the instance of Smt. Sukri, was prepared, in
presence of witnesses Kamala Ram, Gurdass and Thanku.
He has further deposed that the remaining amount of
Rs.3900/- was to be paid to Smt. Sukri Devi in the month of
Magh and she assured to get the mutation done in his
favour. On 10.02.1986 he paid Rs.3900/- and to this effect a
writing was made on the back side of Mark-X by Ward
Member Lal Singh in presence of witnesses Tankhu Ram,
Khima Ram and Devnu and Smt. Sukri Devi affixed her
thumb impression thereon and the witnesses appended their
17 Neutral Citation No. ( 2025:HHC:1117 )
signatures. The plaintiff also deposed that he was put in
possession of the suit land on 11.06.1985 and since then his
possession was open, continuous and uninterrupted and to
the knowledge of the owner of the suit land. Smt. Sukri died
in the year 2004. He has deposed that Smt. Sukri wrongly
executed Will in favour of defendant Sidhu and defendant
Sidhu got wrongly attested the mutation of the suit land in his
favour on the basis of the Will.As per the plaintiff, neither
Sukri Devi nor the defendants remained in possession of the
suit land after 11.06.1985. He deposed that defendant
Sidhu, on the basis of wrong revenue record got executed
the sale deed of the suit land in favour of the defendants No.
2 and 3, that too without delivering possession of the suit
land and the defendants, on the basis of wrong revenue
record are threatening the plaintiff to dispossess him from
the suit Land.
20. Shri Nokh Singh, the then Pradhan Gram
Panchayat Nandi, while appearing in the witness-box as PW-
2, deposed that he knew the parties and had also seen the
suit land. As per this witness, Smt. Sukri Devi sold the suit
land to plaintiff-Todar and he scribed the sale deed at the
instance of Smt. Sukri Devi on 11.06.1985, in presence of
18 Neutral Citation No. ( 2025:HHC:1117 )
witnesses Tankhu Ram, Kamala Ram and Gurdass. He
further deposed that sale deed, Mark-X, is now Ex PW-2/A.
The plaintiff purchased the suit land for Rs.9000/- and out of
Rs.9000/- a sum of Rs.5100/- was already paid and balance
amount of Rs.3900/- was paid in the month of Magh. He has
stated that Smt. Sukri Devi put the plaintiff in possession of
the suit land on 11.06.1985 and since then the plaintiff is in
possession of the same and he has become owner thereof.
This witness also stated that Patwari and Kanungo also
visited the spot and they found the possession of the plaintiff.
The defendants were called on the spot, but they did not
come. The defendants never remained in possession of the
suit land. As per this witness, contents of Ex.PW-2/A were
explained to Smt. Sukri Devi by him and thereafter she put
her thumb impression over the same. Subsequently,
witnesses Kamala Ram, Gurdass, Tankhu and he had put
signatures, which are Mark-B to Mark-E, respectively.
21. PW-3-Shri Sewku @ Gurdass stated that on
11.06.1985 Ex. PW-2/A was executed in his and in presence
of Kamala Ram, Tankhu Ram and plaintiff-Todar made
payment of Rs.2000/- to Smt. Sukri Devi and balance
amount of Rs.3900/- was to be paid in the month of Magh.
19 Neutral Citation No. ( 2025:HHC:1117 )
He has further deposed that Ex. PW-2/A was scribed by Shri
Nokh Singh and its contents were readover and explained to
Smt. Sukri Devi and after understanding the same correct,
she put her thumb impression thereon, which is Mark-A.
Subsequently, all the above witness, including him,
appended their signatures on Ex. PW-2/A. As per this
witness, Smt. Sukri Devi put the plaintiff in possession over
the suit landon 11.06.1985 itself and on 13.07.2006 Patwari
and Kanungo visited the spot and the defendant were called,
but they did not come, and at that time the plaintiff was found
cultivating possession over the suit land.
22. Shri Lal Singh, who appeared in the witness-box
as PW-4, deposed that he knew the parties to the suit and
had also seen the suit land. As per this witness, Smt. Sukri
Devi sold land measuring four bighas and some biswansi to
the plaintiff and to this effect document, Ex. PW-2/A, was
executed, which was scribed by Shri Nokh Singh, Pradhan.
He has further deposed that the plaintiff had already paid
some amount to Smt. Sukri Devi and balance amount of
Rs.39000/- was to be paid later on. Considering the
contents of Ex.PW-2/A correct, Smt. Sukri Devi put her
thumb impression over the same and thereafter the
20 Neutral Citation No. ( 2025:HHC:1117 )
witnesses also put their signatures thereon. He stated that
Mark-Y, qua receiving the payment of Rs. 3900/-, on Ex.
PW-2/A was written by him. He has also stated that contents
of Mark-Y were explained to Smt. Sukri Devi and
subsequently she put her thumb impression on it and
witnesses also signed the same. As per this witness,
Patwari and Kanungo also visited the spot in presence of
village people and they found the plaintiff in cultivating
possession of the suit land.
23. Shri Tulsi Ram, Field Kanungo, who appeared in
the witness-box as PW-5, stated that as per Tehsildar
Chachiot Order No. 1277, dated 30.06.2006, he alongwith
Patwari went to the spot and both the parties were called on
the spot, but the defendants did not come. He further stated
that he recorded the statements of the people present and
also prepared his report, Ex.PW-5/A, which he submitted to
Tehsildar, Chachiot. The plaintiff was found in cultivating
possession over the suit land. All the plaintiff’s witnesses
were cross-examined at length by the learned counsel for the
defendants, however, nothing favourable could be elicited
from their lengthy cross-examination.
21 Neutral Citation No. ( 2025:HHC:1117 )
24. On the other hand, defendant No. 1-Sidhu Ram
appeared in the witness-box as DW-1 and deposed that Smt.
Sukri Devi was his grandmother and he used to reside with
her who expired in the year 2004. Smt. Sukri Devi had
executed a Will of her movable and immovable property in
his name and mutation of the suit land was attested in his
favour, on the basis of that Will. He has further deposed that
after the mutation, he became owner and subsequently he
sold the suit land in favour of defendants No. 2 and 3
alongwith its possession. As per this witness, the plaintiff
neither remained in possession over the suit land nor Smt.
Sukri executed any sale deed of the suit land in favour of the
plaintiff and she never received money in lieu thereof. He
further deposed that Ex.PW-2/A is forged one and in his
presence Patwari and Kanungo neither visited the spot nor
he was called on the spot.
25. Shri Gur Dev, who appeared in the witness-box
as DW-2, deposed that he alongwith Mohan purchased land,
measuring 4-3-13 bighas, through sale deed from defendant
No. 1 for Rs.1,79,000/- alongwith its possession. He further
deposed that they were owners in cultivating possession of
the suit land and they used to pay the revenue. He also
22 Neutral Citation No. ( 2025:HHC:1117 )
stated that the plaintiff had filed a false suit just to grab the
suit land. In cross examination, he stated that no person
from the village was present on the spot, when possession of
the suit land was delivered to them, except defendant No. 1-
Sidhu.
26. The perusal of jamabandi for the year 2002-03,
Ex. PA, shows that khasra No. 347/134 was owned and
possessed by late Smt. Sukri widow of Narangu and its
remark column No. 12 shows that vide mutation No. 135,
dated 20.06.2005, the property owned by Smt. Sukri was
devolved upon defendant No. 1 by way of testamentary
succession. Ex. PD is the copy of alleged sale deed
executed by defendant No. 1 in favour of defendants No. 2
and 3 with respect to the sale of khasra No. 347/134,
khatauni No. 27/27 measuring 4-3-13 bighas.
27. Ex.PE is the Will allegedly executed on
16.05.1995 by late Smt. Sukri in favour of defendant No. 1,
being her grandson, bequeathing her property. Ex. PF is the
death certificate of Smt. Sukri, wherein it has been
mentioned that she had died on 14.12.2004.
23 Neutral Citation No. ( 2025:HHC:1117 )
28. As per the report of the Kanungo, Ex. PW-5/A,
the suit land was found to be in the joint cultivation of the
plaintiff alongwith his brother Shri Ram Singh @ Dyalu. The
perusal of Ex. PW-2/A clearly shows that Smt. Sukri had sold
her land in mauza Chhol measuring 4-10-0 bighas in favour
of the plaintiff on receiving the consideration of Rs.9000/- in
various installments and on 11.06.1985 she had handed over
the possession of the above mentioned land in favour of the
plaintiff.
29. The learned counsel for the appellants
vehemently argued that the alleged sale deed, Ex.PW-2/A,
which is an unregistered document is not admissible in
evidence and no reliance can be placed upon the same and
the entire approach of the learned Courts below by placing
reliance upon the same is erroneous, thus liable to be set-
aside.
30. At this stage, it would be relevant to note that
Section 17 of the Registration Act specifies the documents,
whose registration is compulsory. Under clause (b) of sub-
section (1) thereof, other non-testamentary instruments
which purport or operate to create, declare, assign, limit or
24 Neutral Citation No. ( 2025:HHC:1117 )
extinguish whether in present or in future, any right, title or
interest whether vested or contingent, of the value of one
hundred rupees and upwards, to or in immovable property,
are included. A sale deed purporting to convey right and title
in the property undoubtedly falls in this category of
instruments. Section 49 of the Registration Act lays down the
effect of non- registration of documents required to be
registered. For proper and better appreciation, this provision
is reproduced hereunder:
“49. Effect of non-registration of documents required to
be registered.-“No document required by Section 17
or by any provisions of the Transfer of Property Act,
1882 to be registered shall-
(a) affect any immovable property comprised therein; or
(b) confer any power to adopt; or
(c) be received as evidence of any transaction affecting
such property or conferring such power, unless it has
been registered.
Provided that an unregistered document affecting
immovable property and required by this Act, or the
Transfer of Property Act, 1882 to be registered may
be received as evidence of a contract in a suit for
specific performance under Chapter II of the Specific
Relief Act, 1877 or as evidence of any collateral
transaction not required to be effected by registered
instrument.”
31. The proviso to Section 49 of the Registration Act,
which is relevant for the present purpose, carved out an
exception to the rule contained in the main provision as
regards the effect of an unregistered document requiring
registration and receiving of such document as evidence of
25 Neutral Citation No. ( 2025:HHC:1117 )
any transaction. The proviso permits such document to be
received as evidence under two contingencies, namely (1) as
a piece of evidence of a contract in a suit for specific
performance in Chapter II of the Specific Relief Act, 1877
and (2) as evidence of any collateral transaction not required
to be effected by registered document.
32. The proviso to Section 49 of the Registration Act
is a subject matter of debate and discussion in various
judgements of the Apex Court. In K.B. Saha & Sons Pvt.
Ltd. vs. Development Consultant Ltd.,(2008) 8 SCC 564,
the Hon’ble Supreme Court has considered the true meaning
and purport of “collateral fact/collateral purpose” with
reference to the decided case law. The question that arose
before the Supreme Court was, whether the memorandum of
agreement whereunder the suit property was leased out was
admissible in evidence, as the same was not registered. In
paragraph 34 the Hon’ble Supreme Court culled out the
following principles:
“34.From the principles laid down in the various
decisions of this Court and the High Courts, as
referred to hereinabove, it is evident that:-
1. A document required to be registered is not
admissible into evidence under Section 49 of the
Registration Act.
26 Neutral Citation No. ( 2025:HHC:1117 )
2. Such unregistered document can however be
used as an evidence of collateral purpose as
provided in the Proviso to Section 49 of the
Registration Act.
3. A collateral transaction must be independent of,
or divisible from, the transaction to effect which
the law required registration.
4. A collateral transaction must be a transaction not
itself required to be effected by a registered
document, that is, a transaction creating, etc. any
right, title or interest in immoveable property of
the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for
want of registration, none of its terms can be
admitted in evidence and that to use a document
for the purpose of providing an important clause
would not be using it as a collateral purpose.”
33. In Bondar Singh & Others vs. Nihal Singh &
Others,(2003) 4 SCC161, a suit was instituted with a prayer
to grant declaration that plaintiffs had become owners of the
suit land by way of adverse possession and also for
injunction to restrain the defendants from interfering with the
possession of plaintiffs on the suit land. The claim of
possession was traceable to an unregistered sale deed
dated 09.05.1931. The Hon’ble Supreme Court considered
the issue whether the unregistered sale deed can be looked
in to assess the possession claim. On thoroughly analyzing
the evidence on record, the Hon’ble Supreme Court
observed that:
“5………….However, legal position is clear law
that a document like the sale deed in the present
case, even though not admissible in evidence,
can be looked into for collateral purposes. In the
present case the collateral purpose to be seen is
27 Neutral Citation No. ( 2025:HHC:1117 )the nature of possession of the plaintiffs over the
suit land. The sale deed in question at least
shows that initial possession of the plaintiffs over
the suit land was not illegal or unauthorized….”.
34. Needless to state that a transfer of immovable
property by way of sale can only be by a deed of
conveyance/sale deed. In the absence of a deed of
conveyance/sale deed (duly stamped and registered as
required by law), no right, title or interest in an immovable
property can be transferred. However, as observed by the
Hon’ble Supreme Court in the aforesaid decisions, although
the unregistered sale deed is not sufficient to prove the title
of any person, it can be still read in evidence for the
collateral purposes. Hence, having regard to the principles
delineated in the above decisions with reference to
admissibility of an unregistered sale deed, it is necessary to
consider the issue in this case. As observed earlier, the
perusal of Ex. PW-2/A clearly shows that by means of this
document, Smt. Sukri had sold the suit land in favour of the
plaintiff and also handed over possession of the same, thus,
document, Ex. PW-2/A, though unregistered can be looked
into for collateral purpose i.e., for the purpose of the nature
of possession of the plaintiff over the suit land. This
document, alongwith the statements of witnesses of the
28 Neutral Citation No. ( 2025:HHC:1117 )
plaintiff, clearly shows that the plaintiff was put in possession
of the suit land on 11.06.1985 and it further shows that initial
possession of the plaintiffs over the suit land was not illegal
or unauthorized.Thus, the plaintiff has been able to show his
possession over the suit land from 11.06.1985.
35. Now, the question, which arises for consideration
is as to whether the possession of the plaintiff over the suit
land from 11.06.1985 was actual, exclusive, open,
uninterrupted and hostile to the true owner for a period
exceeding twelve years and whether the plaintiff had
perfected his title over the suit land by way of adverse
possession.
36. Before proceeding to decide this question, it is
essential to take note of the law governing the claim of
adverse possession. Adverse possession is not a right
conferred by any statute. It is a common law concept,
wherein upon extinguishment of rights by virtue of lapse in
the period of limitation within which a person has to institute
a suit, the other person gets a right of adverse possession.
The law in respect of adverse possessionis now well
settled. It should be nec vi, nec clamandnecprecario. A
29 Neutral Citation No. ( 2025:HHC:1117 )
person to claim adverse possession should be in possession
of the property which should be adequate in continuity,
adequate in publicity, adverse to competitor in denial of title
and to his knowledge.The Hon’ble Supreme Court in its
various judgments has held that the possession must be
open, clear, continuous and hostile to the claim or
possession of the other party. All the three classic
requirements must coexist- nec vi, i.e., adequate in
continuity; nec clam, i.e., adequate in publicity; and nec
precario, i.e., adverse to a competitor, in denial of title and
knowledge. In Karnataka Board of Wakf v. Govt. of India
(2004) 10 SCC 779, the Hon’ble Supreme Courtobserved as
under:
“11……………………… It is a well-settled principle
that a party claiming adverse possession must
prove that his possession is “nec vi, nec clam,
nec precario”, that is, peaceful, open and
continuous. The possession must be adequate in
continuity, in publicity and in extent to show that
their possession is adverse to the true owner. It
must start with a wrongful disposition of the
rightful owner and be actual, visible, exclusive,
hostile and continued over the statutory
period…………………………”
37. In T. Anjanappa & others vs. Somalingappa and
another 2006 (7) SCC 570, the pre-conditions for taking plea
of adverse possession has been summarized as under:
“20. It is well-recognised proposition in law that
mere possession however long does not
necessarily mean that it is adverse to the true
30 Neutral Citation No. ( 2025:HHC:1117 )owner. Adverse possession really means the
hostile possession which is expressly or
impliedly in denial of title of the true owner and in
order to constitute adverse possession the
possession proved must be adequate in
continuity, in publicity and in extent to as to show
that it is adverse to the true owner. The classical
requirements of acquisition of title by adverese
possession are that such possession in denial of
the true owner’s title must be peaceful, open and
continuous. The possession must be open and
hostile enough to be capable of being known by
the parties interested in the property, though it is
not necessary that there should be evidence of
the adverse possessor actually informing the real
owner of the former’s hostile action.”
38. In Annakili vs. A. Vedanayagam& others, AIR
2008 SC 346,the Hon’ble Supreme Court pointed out that a
claim of adverse possession has two elements (i) the
possession of the defendant becomes adverse to the
plaintiff; and (ii) the defendant must continue to remain in
possession for a period of 12 years thereafter. “Animus
possidendi” is held to be a requisite ingredient of adverse
possession, well known in law. The relevant portion of the
judgment (supra) is as under:
“22………………It is now a well settled principle of
law that mere possession of the land would not
ripen into possessor title for the said purpose.
Possessor must have animus possidendi and
hold the land adverse to the title of the true
owner. For the said purpose, not only animus
possidendi must be shown to exist, but the same
must be shown to exist at the commencement of
the possession. He must continue in said
capacity for the period prescribed under the
Limitation Act. Mere long possession, it is trite,
for a period of more than 12 years without
anything more do not ripen into a title.”
31 Neutral Citation No. ( 2025:HHC:1117 )
39. In Ravinder Kaur Grewal v. Manjit Kaur (2019)
8 SCC 729, a three-Judges Bench of the Hon’ble Supreme
Court reaffirmed the long-standing right of
adversepossession, meaning thereby that even a suit can be
filed to claim titleon the basis of adverse possession. Some
decisions of the SupremeCourt to the contrary were over-
ruled by this judgment.The relevant portion of the judgment
(supra) is as under:
“51. The statute does not define adverse possession,
it is a common law concept, the period of which
has been prescribed statutorily under the law of
limitation Article 65 as 12 years. Law of limitation
does not define the concept of adverse
possession nor anywhere contains a provision
that the plaintiff cannot sue based on adverse
possession. It only deals with limitation to sue
and extinguishment of rights. There may be a
case where a person who has perfected his title
by virtue of adverse possession is sought to be
ousted or has been dispossessed by a forceful
entry by the owner or by some other person, his
right to obtain possession can be resisted only
when the person who is seeking to protect his
possession, is able to show that he has also
perfected his title by adverse possession for
requisite period against such a plaintiff his title by
adverse possession to question alienation and
attempt of dispossession.
52. … … … … … …
53. Law of adverse possession does not qualify only
a defendant for the acquisition of title by way of
adverse possession, it may be perfected by a
person who is filing a suit. It only restricts a right
of the owner to recover possession before the
period of limitation fixed for the extinction of his
rights expires. Once right is extinguished another
person acquires prescriptive right which cannot
be defeated by re-entry by the owner or
subsequent acknowledgment of his rights. In
such a case suit can be filed by a person whose
right is sought to be defeated.”
32 Neutral Citation No. ( 2025:HHC:1117 )
40. Thus, a suit can be filed by a person who has
perfected his title by adverse possession to question
alienation and attempt of dispossession. Law of adverse
possession does not entitle only the defendant for acquisition
of title by way of adverse possession, but it may be perfected
by a person who is filing a suit.
41. In the instant case, the suit property was purchased
by the plaintiff by way of an unregistered sale deedfrom
Smt. Sukri on 11.06.1985 for Rs.9000/-. From the statements
of the plaintiff’s witnesses and also from the material
documents, i.e.Ex.PW-2/A and report of field Kanoongo, Ex.
PW-5/A, the plaintiff has clearly proved that he has been in
peaceful and physical possession of the suit land since
11.06.1985 to the knowledge of the defendants and he had
been setting up a hostile title thereto as against the
defendants..The deposition of the plaintiff’s witnesses in
respect of plaintiff being in possession of the property
continuously since he purchased the property with adequate
publicity, adverse to the defendants could not be impeached
in their cross-examination.The plea of adverse possession
raised by the plaintiff is thus clearly established.In other
33 Neutral Citation No. ( 2025:HHC:1117 )
words the plaintiff has perfected his title by way of adverse
possession
42. In view of what has been discussed above, no
perversity or illegality has been committed by the Courts
below in decreeing the suit of the plaintiff. In nutshell, no
question of law much less any substantial question of law is
involved in the present appeal. Therefore, having regard to
the aforesaid facts and circumstances, the present second
appeal cannot be entertained in light of the settled legal
position that scope of second appeal under Section 100 of
Code of Civil Procedure is very limited. Therefore, the
present Second Appeal deserves to be dismissed and
accordingly stands dismissed with no order as to costs.
Pending applications, if any, shall also stand(s),
disposed of.
( Sushil Kukreja )
Judge
7thJanuary, 2025
(virender)