IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.38 of 2025

Reserved on:24.02.2026

Decided on: 27.02.2026

Prem Singh@ Durga Dass ….Appellant

Versus

Chaman Lal ...Respondent

Coram

Hon’ble Mr. Justice Romesh Verma, Judge

Whether approved for reporting?

For the appellant: Mr. H.S. Rangra, Advocate.

For the respondent:Mr. Ajay Chandel, Advocate.

Romesh Verma, Judge

The present regular second appeal arises out of

judgment and decree as passed by the learned Additional District

Judge, Sarkaghat, District Mandi, H.P. dated 6

th

November, 2024,

whereby the appeal preferred by the present appellant has been

ordered to be dismissed and the judgment and decree as passed

by learned Civil Judge, Court No.2, Sarkaghat, District Mandi,

H.P. dated 22

nd

June, 2022 has been affirmed.

2. Brief facts of the case are that the plaintiff/respondent

Chaman Lal filed a suit for possession against the

defendant/appellant in the Court of learned Civil Judge, Court

No.2, Sarkaghat, District Mandi, H.P. on 19.01.2013. It was stated

in the plaint that the suit land comprised in Khata/Khatauni

2

No.53/60, containing Khasra No.897/118, land measuring 00-00-

68 Hectares, situated in village Balhra illaqua Hatli Sub Tehsil

Baldwara, District Mandi, H.P. is exclusively owned and

possessed by the plaintiff. It was stated that the plaintiff and his

brother jointly constructed the house over the suit land in 1992-

1993. Further, it has been averred that the plaintiff and his

brother, namely, Jagtar Singh gave the house situated over the

suit land to the defendant, who happens to be their real brother

and he is BAMS doctor for doing practice for some time. Further,

it has been stated that after some time the defendant got a

government job but surprisingly he did not vacate the house

situated over the suit land being owned by the plaintiff with an

intention to grab the house of the plaintiff. The plaintiff and his

brother Jagtar Singh are residing in village Balhra in their parental

house, whereas the disputed house is situated just adjacent to

the road. Though, a request was made to the defendant to vacate

the house in question, however, he did not pay any heed and

refused to the same. Therefore, under such circumstances, the

plaintiff filed a suit for vacant possession of the suit property.

3. The suit was contested by the defendant by taking

various objections such as limitation, valuation, court fee,

jurisdiction, cause of action, estoppel and maintainability etc. The

3

defendant refuted the revenue entires showing the plaintiff to be

owner-in-possession of the suit land in the revenue records. He

submitted that he had constructed the house over the suit land in

the year 1990-1991 and since then he is residing in the said

house as a owner. He further averred that he came in possession

of the house on 15.07.1990 and started the construction of his

house over the suit land. He raised a plea that the possession

over the suit land by the defendant is open, hostile, naked and in

the knowledge of the plaintiff since 15.07.1990. Therefore, he has

become owner of the suit property by virtue of adverse

possession. It was also stated that ejectment proceedings under

Section 163 of the Himachal Pradesh Revenue Act were initiated

against the plaintiff for his ejectment from the suit land. The

Assistant Collector 1

st

Grade passed the eviction order against

the plaintiff, however, feeling dissatisfied, the plaintiff preferred an

appeal before the Sub Divisional Collector, Sarkaghat. It was

submitted that said appeal was dismissed and thereafter the

plaintiff preferred a revision before the Divisional Commissioner,

Mandi against the order of Sub Divisional Collector, Sarkaghat.

The Divisional Commissioner, Mandi, accepted the revision and

proprietary right qua the suit land was conferred on the plaintiff on

paying market value of the suit land. He submitted that the order

4

of conferment of proprietary right on the plaintiff by the Divisional

Commissioner, Mandi, is bad in the eyes of law and without any

jurisdiction.

4. The plaintiff filed the replication to the written

statement and all the averments as made in the plaint were

reiterated.

5. The learned Civil Judge, Court No.2, Sarkaghat,

District Mandi, H.P. framed the following issues in the matter:

“1. Whether plaintiff is entitled for

possession, as prayed for? OPP

1A. Whether defendant has become the

owner of the suit land by way of adverse

possession, as prayed for? OPD

2. Whether suit is not maintainable in

present form, as alleged? OPD

3. Whether the plaintiff has no cause of

action and locus standi to file the present suit, as

alleged? OPD

4. Whether the plaintiff is estopped by his

own act, conduct and acquiescence to file the

present suit, as alleged? OPD

5. Whether the suit of the plaintiff is not

within limitation, as alleged? OPD

6. Relief.”

6. The parties were directed to adduce evidence in

support of their contentions and finally vide its judgment and

5

decree dated 22

nd

June 2022, learned Civil Judge, Court No.2,

Sarkaghat, District Mandi, decreed the suit filed by the plaintiff.

7. Feeling aggrieved, the defendant preferred an appeal

in the Court of learned Additional District Judge, Sarkaghat,

District Mandi, H.P. on 22.07.2022. Learned appellate Court vide

its judgment and decree dated 6

th

November, 2024 dismissed the

appeal as preferred by the defendant and affirmed the judgment

and decree as passed by the learned trial Court.

8. Feeling dissatisfied, the defendant/appellant is before

this Court by filing the present regular second appeal.

9. It is contended by learned counsel for the appellant

that Courts below have erred by decreeing the suit as filed by the

plaintiff. He further submits that the defendant has matured his

title by way of adverse possession. Therefore, no relief could

have been granted to the plaintiff. It has further been contended

that the order of conferment of proprietary right on the plaintiff by

the Divisional Commissioner, Mandi is bad in the eyes of law and

the conferment of the proprietary right could not have been

granted to the present respondent/plaintiff.

10. On the other hand, the judgments and decrees as

passed by the Courts below have been supported by Mr. Ajay

Chandel, learned counsel for the respondent. He has specifically

6

submitted that the plea of ownership and adverse possession is

mutually destructive and no relief can be granted to the

defendant. He has submitted that being owner of the suit property

which was being illegally occupied by the defendant/appellant the

Courts below has rightly passed the decree of vacant possession

in favour of the plaintiff.

11. I have heard learned counsel for the parties and

perused the case file. With the consent of parties, the appeal is

taken up for final disposal at the admission stage.

12. From the perusal of the case file, it reveals that the

defendant has set up the plea in the written statement that he has

raised the construction of the house over the suit land and he is

residing over the same and by virtue of adverse possession he

has become owner of the suit property..

13. Plaintiff Chaman Lal entered into the witness box in

order to depose in support of his case and submitted that eviction

proceedings were initiated against him for encroaching over the

Government land. He submitted that an order of eviction was

passed against him by Tehsildar Sarkaghat and thereafter, the

appeal was also dismissed by Sub Divisional Collector,

Sarkaghat. He stated that Divisional Commissioner, Mandi,

conferred proprietary right on him and thereafter he constructed

7

the house over the suit land regarding which case for illegal

encroachment was filed against him. He submitted that the

defendant is his younger brother and that he wanted to open a

clinic that is why he gave the house to the defendant on the

undertaking that the defendant shall vacate the house once he

got the job with the Government. He stated that after getting the

Government job, the defendant did not vacate the house and

when he was asked to do so he flatly refused. He specifically

denied that the house was constructed by the defendant. He

further denied that the defendant is living in the house in dispute

after its construction since 15.07.1990. He further denied that the

house was got constructed through a mason, namely, Lalman by

the defendant.

14. In order to rebut the evidence, as led by the plaintiff,

the defendant examined four witnesses. DW-1 Roop Lal stated

that the defendant had purchased some portion of the suit land

from one Shri Shakti Chand, who delivered the possession of the

land to the defendant. He stated that when the construction of the

house was going on then the Patwari and Kanungo visited the

suit land and took the measurements. He stated that the plaintiff

never possessed the suit land as suit land was in the possession

of Shakti Chand prior to the construction of the house and

8

thereafter it is in the possession of the defendant. In the cross-

examination, he stated that he does not know the khasra number

of the suit land.

15. The defendant examined himself as DW-2, wherein

he stated the facts as enumerated in the written statement. He

stated that he raised the construction of the house over the suit

land and he is residing there. In the cross-examination, he stated

that he came to know about the ownership of the Government

qua the suit land when he started the construction of his house.

He stated that he is not aware about encroachment proceedings

qua the suit land before the Sub Divisional Collector, Sarkaghat

and Divisional Commissioner Mandi. He stated that he raised the

construction of the house over the suit land in the year 1990. He

stated that he got constructed his house from mason, namely,

Lalman. He further stated that he can produce the registered sale

deed regarding the same.

16. The defendant examined DW-3 Lalman in order to

support his case, who has stated that the defendant is in

possession of the suit land till date and the plaintiff never

remained in the possession of the suit land. He further submitted

that the house in dispute was constructed by the defendant as the

defendant gave him Rs.25,000/- for the construction of the house.

9

However, he stated that he cannot produce any document in this

regard.

17. The defendant examined Som Dutt as DW-4. He

stated that he remained Patwari and his office was situated just

adjoining to the suit land. He stated that the house in dispute was

constructed by defendant and Lalman was the mason. He has

admitted that during his service period he started the

encroachment proceedings against the plaintiff. He admitted that

the case of illegal encroachment was registered against the

plaintiff and at that time the house was already constructed there.

18. The plaintiff has placed on record copy of jamabandi

Ext. PW-1/A, which shows that he is owner-in-possession of the

suit land. It has come on record that eviction proceedings under

Section 163 of H.P. Land Revenue Act were initiated against the

plaintiff and the same were affirmed by the Assistant Collector,

Sarkaghat on 19.08.1992. However, revision petition preferred

before the Divisional Commissioner, Mandi, was allowed and vide

its order dated 10.05.1994 proprietary right qua the suit land was

conferred on the plaintiff subject to the payment of market value

of the suit land. Therefore, the plaintiff has been able to establish

his title. The Divisional Commissioner, Mandi conferred

proprietary right on the plaintiff subject to payment of market

10

value, which was paid by him and subsequently necessary

mutation was attested in favour of the plaintiff on 23.11.1994. The

plaintiff had filed a suit for vacant possession on the basis of title.

The defendant had set up the plea of adverse possession,

however, from the perusal of the case file, it reveals that

necessary ingredients of adverse possession as required under

the law are missing. Specific issue qua the adverse possession

i.e. issue No.1A was framed by learned trial Court and the said

issue was answered against the defendant.

19. The question whether the defendant had proved his

adverse possession over the suit land has concurrently been

answered in negative by both the Courts. In order to prove the

adverse possession, it was incumbent upon the defendant to

have proved the date and period, when the possession became

adverse and thereafter uninterrupted continuity thereof with

requisite hostile animus for continuous 12 years was also

required to be proved. The Courts below have come to the

conclusion that the possession of the defendant is permissive and

the plaintiff is entitled for vacant possession. It is settled position

of law that permissive possession cannot be construed as

adverse possession and possession being permissive cannot

become adverse unless hostile animus was expressed at any

11

particular time to the knowledge of owner. It is the settled position

of law that mere possession for howsoever length of time does

not result in converting the permissive possession into adverse

possession. By merely raising a plea of adverse possession no

right can be conferred upon the said party. Qua this issue there

are concurrent findings of fact by both the Court which does not

call for any interference.

20. The Hon’ble Supreme Court has laid down the

exposition of law qua adverse possession in the following

manner:

(i)In T. Anjanappa and others vs.

Somalingappa and another, (2006) 7 SCC 570, the

Hon’ble Supreme Court held as under:

“12.The concept of adverse possession

contemplates a hostile possession i.e. a

possession which is expressly or impliedly in

denial of the title of the true owner. Possession to

be adverse must be possession by a person who

does not acknowledge the other's rights but

denies them. The principle of law is firmly

established that a person who bases his title on

adverse possession must show by clear and

unequivocal evidence that his possession was

hostile to the real owner and amounted to denial

of his title to the property claimed. For deciding

whether the alleged acts of a person constituted

adverse possession, the animus of the person

12

doing those acts is the most crucial factor.

Adverse possession is commenced in wrong and

is aimed against right. A person is said to hold the

property adversely to the real owner when that

person in denial of the owner's right excluded him

from the enjoyment of his property.

13. Possession to be adverse must be

possession by a person who does not

acknowledge the other's rights but denies them.

“24.It is a matter of fundamental

principle of law that where possession can

be referred to a lawful title, it will not be

considered to be adverse. It is on the basis

of this principle that it has been laid down

that since the possession of one co- owner

can be referred to his status as co-owner, it

cannot be considered adverse to other co-

owner.

14. Adverse possession is that form of

possession or occupancy of land which is

inconsistent with the title of the rightful owner and

tends to extinguish that person's title. Possession

is not held to he adverse if it can be referred to a

lawful title. The person setting up adverse

possession may have been holding under the

rightful Owner's title e.g. trustees, guardians,

bailiffs or agents. Such persons cannot set up

adverse possession.

"Adverse possession" means a hostile

possession which is expressly or impliedly in

denial of title of the true owner. Under Article 65

of the Limitation Act, burden is on the

13

defendants to prove affirmatively. A person who

bases his title on adverse possession must

show by clear and unequivocal evidence i.e.

possession was hostile to the real owner and

amounted to a denial of his title to the property

claimed. In deciding whether the acts, alleged

by a person, constitute adverse possession,

regard must be had to the animus of the person

doing those acts which must be ascertained

from the facts and circumstances of each case.

The person who bases his title on adverse

possession, therefore, must show by clear and

unequivocal evidence i.e. possession was

hostile to the real owner and amounted to a

denial of his title to the property claimed.

Where possession could be referred to a

lawful title, it will not be considered to be

adverse. The reason being that a person

whose possession can be referred to a lawful

title will not be permitted to show that his

possession was hostile to another's title. One

who holds possession on behalf of another

does not by mere denial of that other's title

make his possession adverse so as to give

himself the benefit of the statute of limitation.

Therefore, a person who enters into possession

having a lawful title, cannot divest another of

that title by pretending that he had no title at all.

15. An occupation of reality is inconsistent with

the right of the true owner. Where a person

possesses property in a manner in which he is not

entitled to possess it, and without anything to show

14

that he possesses it otherwise than an owner (that

is, with the intention of excluding all persons from

it, including the rightful owner), he is in adverse

possession of it. Thus, if A is in possession of a

field of B's, he is in adverse possession of it unless

there is something to show that his possession is

consistent with a recognition of B's title. (See Ward

v. Carttar (1866) LR 1 Eq.29). Adverse possession

is of two kinds, according as it was adverse from

the beginning, or has become so subsequently.

Thus, if a mere trespasser takes possession of A's

property, and retains it against him, his possession

is adverse ab initio. But if A grants a lease of land

to B, or B obtains possession of the land as A's

bailiff, or guardian, or trustee, his possession can

only become adverse by some change in his

position. Adverse possession not only entitled the

adverse possessor, like every other possessor, to

be protected in his possession against all who

cannot show a better title, but also, if the adverse

possessor remains in possession for a certain

period of time produces the effect either of barring

the right of the true owner, and thus converting the

possessor into the owner, or of depriving the true

owner of his right of action to recover his property

and this although the true owner is ignorant of the

adverse possessor being in occupation.

16. xxx xxx xxx

17. According to Pollock, "In common speech

a man is said to be in possession of anything of

which he has the apparent control or from the use

15

of which he has the apparent powers of excluding

others".

18 & 19 xxx xxx xxx

20. It is well recognized proposition in law that

mere possession however long does not

necessarily means that it is adverse to the true

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 so as to show that it is adverse to the

true owner. The classical requirements of

acquisition of title by adverse 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.”

(ii)In Chatti Konatri Rao and others vs. Palle

Venkata Subba Rao, (2010) 14 SCC 316 , the

Hon’ble Apex Court further held as under:

“13. What facts are required to prove adverse

possession have succinctly been enunciated by

this Court in the case of Karnataka Board of Wakf

vs. Government of India and Ors. (2004) 10 SCC

779. It has also been observed that a person

16

pleading adverse possession has no equities in

his favour and since such a person is trying to

defeat the rights of the true owner, it is for him to

clearly plead and establish necessary facts to

establish his adverse possession. Paragraph 11 of

the judgment which is relevant for the purpose

reads as follows:

"11. In the eye of the law, an owner would

be deemed to be in possession of a

property so long as there is no intrusion.

Non-use of the property by the owner even

for a long time won't affect his title. But the

position will be altered when another

person takes possession of the property

and asserts a right over it. Adverse

possession is a hostile possession by

clearly asserting hostile title in denial of the

title of the true owner. 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.

(See S.M. Karim v. Bibi Sakina AIR 1964

SC 1254, Parsinni v. Sukhi (1993) 4 SCC

375 and D.N. Venkatarayappa v. State of

17

Karnataka (1997) 7 SCC 567) Physical

fact of exclusive possession and the

animus possidendi to hold as owner in

exclusion to the actual owner are the most

important factors that are to be accounted

in cases of this nature. Plea of adverse

possession is not a pure question of law

but a blended one of fact and law.

Therefore, a person who claims adverse

possession should show: (a) on what date

he came into possession, (b) what was the

nature of his possession, (c) whether the

factum of possession was known to the

other party, (d) how long his possession

has continued, and (e) his possession was

open and undisturbed. A person pleading

adverse possession has no equities in his

favour. Since he is trying to defeat the

rights of the true owner, it is for him to

clearly plead and establish all facts

necessary to establish his adverse

possession. [Mahesh Chand Sharma (Dr.)

v. Raj Kumari Sharma

14. In view of the several authorities of this Court,

few whereof have been referred above, what can

safely be said that mere possession however long

does not necessarily mean that it is adverse to the

true owner. It means hostile possession which is

expressly or impliedly in denial of the title of the

true owner and in order to constitute adverse

possession the possession must be adequate in

continuity, in publicity and in extent so as to show

18

that it is adverse to the true owner. The

possession must be open and hostile enough so

that it is known by the parties interested in the

property. The plaintiff is bound to prove his title as

also possession within 12 years and once the

plaintiff proves his title, the burden shifts on the

defendant to establish that he has perfected his

title by adverse possession. Claim by adverse

possession has two basic elements i.e. the

possession of the defendant should be adverse to

the plaintiff and the defendant must continue to

remain in possession for a period of 12 years

thereafter.

15. Animus possidendi as is well known a

requisite ingredient of adverse possession. Mere

possession does not ripen into possessory title

until possessor holds property adverse to the title

of the true owner for the said purpose. The person

who claims adverse possession is required to

establish the date on which he came in

possession, nature of possession, the factum of

possession, knowledge to the true owner, duration

of possession and possession was open and

undisturbed. A person pleading adverse

possession has no equities in his favour as he is

trying to defeat the rights of the true owner and,

hence, it is for him to clearly plead and establish

all facts necessary to establish adverse

possession. The courts always take unkind view

towards statutes of limitation overriding property

rights. Plea of adverse possession is not a pure

question of law but a blended one of fact and law.”

19

21. The Hon’ble Supreme Court in its various decisions

has held that when there are concurrent findings of fact, the High

Courts should not interfere in those findings until and unless

those are perverse or without any evidence. In the present case

plea as set up by the defendant was required to be proved by the

defendant, however, he has failed to do so. Therefore, no relief

can be granted to him in the absence of such plea.

22. Interestingly, the defendant has set up the plea that

he has been in possession of the suit land since 15.07.1990 and

he had constructed the house in dispute in 1991 which is totally

contrary to the record as placed on the case file. On the one hand

he has set-up the plea that after purchasing the land he has

constructed the house and on the other hand he has set up the

plea of adverse possession.

23. The plea of title and adverse possession are mutually

destructive as has been held by the Hon’ble Apex Court in

Narasamma and others vs. A. Krishnappa (dead) through

Legal Representatives, (2020) 15 SCC 218:

“33.In Karnataka Board of Wakf case case, it

has been clearly set out that a plaintiff filing a title

20

over the property must specifically plead it. When

such a plea of adverse possession is projected, it is

inherent in the nature of it that someone else is the

owner of the property. In that context, it was

observed in para 12 that “….the pleas on title and

adverse possession are mutually inconsistent and

the latter does not begin to operate until the former

is renounced.”

24. This Court also in case titled as Surinder Prasad

and another vs. Madhur Green and another, 2019(1) Civil

Court Case, 182 held as under:

“9. At the outset, it may be observed that the

defendants had even raised the plea of adverse

possession and obviously they acknowledged and

attorned to the title of the plaintiff. It is more than

settled that whenever the plea of adverse

possession is projected, inherent in the plea is

that someone else was the owner of the property.

The pleas on title and adverse possession are

mutually inconsistent and the latter does not begin

to operate until the former is renounced.”

25. The defendant has not placed on record in to show

and substantiate his plea that he purchased the portion of the suit

land from Shri Shakti Chand and thereafter he raised the

construction over the suit land. Record reveals that earlier the suit

land was in the ownership of the Government. Therefore, the plea

of purchase by the defendant from Shri Shakti Chand is

21

demolished. The plea of the defendant that the Divisional

Commissioner could not have conferred proprietary right on the

plaintiff cannot be accepted in the absence of any challenge or

counter claim in the present proceedings. The suit had been filed

by the plaintiff for vacant possession and in the absence of any

counter claim challenging the order of Divisional Commissioner

no relief can be granted to the defendant. Learned Courts below

have concurrently come to the conclusion that on the basis of title

the plaintiff is entitled for vacant possession of the suit property

which is in illegal possession of the defendant. The defendant has

failed to prove his title over the suit property. Therefore, the

judgments and decrees of vacant possession as passed by the

learned trial Court and affirmed by the first appellate Court are

legal, valid and perfect and not call for any interference by this

Court that too in regular second appeal.

26. In the present case, there are concurrent findings of

fact rendered by the learned Courts below and the scope of

interference in the concurrent findings of fact, as per the various

judgments of the Hon’ble Apex Court, is very narrow and limited.

The Hon’ble Apex Court has held in its various decisions that the

High Court cannot re-appreciate the evidence to substitute its

22

own view for a plausible finding of fact arrived at by the first

appellate court.

27. Reference in this regard is made to the judgment of

the Hon’ble Apex Court in Navaneethammal vs. Arjuna Chetty

AIR 1996 SC 3521, wherein it has been held as under:

“10. This Court, time without number, pointed out

that interference with the concurrent findings of the

courts below by the High Court under Section 100

CPC must be avoided unless warranted by

compelling reasons. In any case, the High Court is

not expected to re-appreciating the evidence just to

replace the findings for the lower courts.

20. In our considered view the lower Appellate

Court has fairly appreciated the evidence in the

above background and has reached the conclusion

that the suit was not barred by Limitation. Even

assuming that another view is possible on a re-

appreciation of the same evidence, that should not

have been done by the High Court as it cannot be

said that the view taken by the First Appellate Court

was based on no material.”

28. Similarly, the Hon’ble Apex Court in Kshitish

Chandra Purkait vs. Santosh Kumar Purkait and others

(1997) 5 SCC 438 has held as under:

“10. We would only add that (a) it is the duty cast

upon the High Court to formalate the substantial

question of law involved in the case even at the

initial stage; and (b) that in (exceptional) cases, at a

later point of time, when the Court exercises its

jurisdiction under the proviso to sub-section (5) of

23

Section 100 C.P.C in formulating the substantial

question of law, the opposite party should be put on

notice thereon and should be given a fair or proper

opportunity to meet the point. Proceeding to hear

the appeal without formulating the substantial

question of law involved in the appeal is illegal and

is an abnegation or abdication of the duty cast on

Court; and even after the formulation of the

substantial question of law, if a fair or proper

opportunity is not afforded to the opposite side, it will

amount to denial of natural justice. The above

parameters within which the High Court has to

exercise its jurisdiction under Section 100 CPC

should always be borne in mind. We are sorry to

state that the above aspects are seldom borne in

mind in many cases and second appeals are

entertained and/or disposed of, without conforming

to the above discipline.

11. The guidelines to determine as to what is a

"substantial question of law" within the meaning of

Section 100 CPC, have been laid down by this Court

in a Constitution Bench decision in Chunilal V.

Mehta and Sons Ltd. v. Century Spg. and Mfg. Co.

Ltd There is also a later decision of this Court in

Mahindra and Mahindra Ltd. v. Union of India3. It is

unnecessary to deal at length with that aspect any

further.”

29. In Kondiba Dagadu Kadam vs. Savitribai Sopan

Gujar and others, AIR 1999 SC 2213, the Hon’ble Supreme

Court has held as under:

“5. It is not within the domain of the High court to

investigate the grounds on which the findings were

24

arrived at, by the last court of fact, being the first

appellate Court. It is true that the lower appellat

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 has 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 lower appellate Court

were erroneous being contrary to the mandatory

provisions of law applicable or its settled position on

the basis of pronouncements made by the apex

Court, or was based upon inadmissible evidence or

arrived at without evidence.”

30. In Civil Apepal No.5131 of 2025, titled as R.

Nagaraj (dead) through LRs and another vs. Rajmani and

others, the Hon’ble Supreme Court held as under”

“7. By the impugned judgment and order and without

answering anything on the substantial questions of

law framed/formulated, absolutely in a casual

manner, the High Court has allowed the Second

Appeal and has set aside the concurrent findings

recorded by both the courts below and thereafter

has remanded the matter to the learned trial Court

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permitting the original plaintiff to amend the plaint

and pray for fixation of the boundary.

9. Having heard learned counsel for the respective

parties and having gone through the impugned

judgment and order passed by the High Court, we

are constrained to observe that the manner in which

the High Court has dealt with the Second Appeal

under Section 100 of the CPC is not appreciable at

all. From the impugned judgment and order passed

by the High Court, it appears that the High Court has

exercised the powers as if the High Court was

deciding the Writ Petition under Article 226 of the

Constitution of India. The High Court has not

appreciated at all that the High Court was deciding

the Second Appeal under Section 100 of the CPC

and that too against the concurrent findings of fact

by both the courts below, which were, as such, on

appreciation of evidence on record. Under the

circumstances, the impugned judgment and order

passed by the High Court is unsustainable.

11. At the cost of repetition, it is observed that the

High Court was dealing with the Second Appeal

under Section 100 CPC and the concurrent findings

recorded by both the courts below which were on

appreciation of evidence on record. Neither at the

stage of deciding the suit nor even before the first

Appellate Court even such a prayer was made to

amend the plaint, which is now permitted by the

High Court, despite the fact that earlier in the suit

during the course of trial, the plaint was amended.

Under the circumstances also, the impugned

judgment and order passed by the High Court is

unsustainable.”

26

31. In the present case, the findings as rendered by the

Courts below are findings of fact which do not call for any

interference. There is no question of law much less any

substantial question of law.

32. Consequently, the present appeal being devoid of

any merit deserves to be dismissed and the same is accordingly

dismissed along with pending application(s), if any.

( Romesh Verma )

Judge

February 27, 2026

(vt)