2023:HHC:7993 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.85 of 2024 Decided on: 23.04.2026 Mangal Singh & others .Appellants Versus Onkar Dei & others ...Respondents Coram Hon’ble Mr. Justice Romesh Verma, Judge Whether approved for reporting? Yes. For the appellants: Mr. Naresh Kumar Verma, Advocate. For the respondents: Mr. Sanjay Jaswal, Advocate, for respondent No.1. None for respondents No. 2 and 3. Romesh Verma, Judge(oral) The present appeal arises out of judgment and decree as passed by learned Additional District Judge (II), Kangra at Dharamshala, Camp at Jawali, District Kangra, H.P., dated 20.10.2022, whereby the appeal preferred by the defendants/appellants has been ordered to be dismissed and the judgment and decree as passed by learned Civil Judge (Junior Division), Jawali, District Kangra, H.P., dated 28.02.2017 has been affirmed, whereby the suit filed by the plaintiff/respondent for possession was decreed. 2. Brief facts of the case are that the respondent Chatro filed a suit for possession by way of ejectment/dispossession of 2 the defendants from the land comprised in Khata No.110 min, Khatauni No.287, Khasra Nos.655, 1105 and 1109, plots-3, land measuring 0-12-59 Hms, situated in Mohal Ghar, Mouza Harsar, Tehsil Jawali, Distt. Kangra, H.P. It has been averred in the plaint that earlier the suit land was in possession of the plaintiff, but the land in question was under settlement operation and the defendants, in collusion and connivance with the settlement authorities, got themselves recorded as Kabiz over the suit land against the factual position existing on the spot that too behind the back of the plaintiff. As per jamabandi for the year 1977-1978, the suit land is in possession of the plaintiff. The suit land remained in possession of the plaintiff until November 2002, during which time he was deriving all kinds of benefits from the same. The defendants under the garb of wrong entry of being Kabiz have illegally trespassed on the suit land in the last week of November 2002 and forcibly and unlawfully took possession of it. The possession of the defendants over the suit land is void, wrong, illegal, unauthorized and of a trespasser. Therefore, the suit was filed by the plaintiff/respondent for possession by way of ejectment/dispossession from the suit land. 3. The suit was contested by the defendant Dayalu by filing a written statement. Preliminary objections with respect to maintainability, cause of action, estoppel, valuation etc. were 3 taken. On merits, it was averred that, in fact, the plaintiffs and defendants are real brothers and earlier the suit land along with other land owned and possessed by the father of the parties to the suit, namely, Khithu @ Situ. After the death of the father of the parties to the suit, the suit land along with other land has been inherited by the parties to the suit. During the recent consolidation operation, the land owned by the parties to the suit, which was inherited by them from their father, was got partitioned and the suit land came in the share of the plaintiff, but remained in the possession of the defendants. The plaintiff in October 1976 asked the defendants to vacate the suit land or exchange it with him, however, the defendants did not vacate the same. It was further averred that as per mutual understanding and with the intervention of local villagers, the defendants gave land measuring 9 marlas in Khasra No.654, which was adjoining to the residential house of the plaintiff. The plaintiff thereafter despite of the knowledge since October 1976 never asked the defendant to vacate the suit land. Consequently, the present suit has been filed at a belated stage. Furthermore, it was averred that the suit land is in possession of the defendants since October, 1976. The defendants have become the owner of the suit land by way of adverse possession, and that the plaintiff has 4 got no right, title or interest over the same. All the averments as made in the plaint were refuted and denied. 4. Learned trial Court framed the issues on 14.12.2009 in the following manner: 1. Whether the plaintiff is entitled for a decree of possession, as claimed? OPP. 2. Whether the suit is not maintainable? OPD. 3. Whether the plaintiff has not approached this court with clean hands? OPD. 4. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD. 5. Whether the plaintiff has no cause of action? OPD. 6. Whether the suit is barred by law of limitation? OPD. 7. Whether the defendants have became owner of the suit land by way of adverse possession? OPD. 8. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. 9. Whether the defendant is entitled for special costs? OPD. 10. Relief. 5. Learned trial Court directed both the parties to adduce evidence in support of their contentions and finally vide its judgment dated 28.02.2017, the suit filed by the plaintiff for possession was decreed and it was ordered that the plaintiff is entitled to recover possession of land comprised in Khata No.110 min, Khatauni No.287, Khasra Nos.655, 1105 and 1109 plots-3, 5 land measuring 0-12-59 Hms, situated in Mohal Ghar, Mauza Harsar, Tehsil Jawali, District Kangra, H.P. from the defendants along with costs. 6. Feeling dissatisfied by the judgment and decree as passed by learned trial Court, dated 28.02.2017, the defendants/appellants preferred an appeal under Section 96 of Civil Procedure Code before the learned Additional District Judge (II), Kangra at Dharamshala, Camp at Jawali, District Kangra, H.P. on 31.05.2017. Learned first appellate Court vide its judgment and decree dated 20.10.2022 dismissed the appeal as preferred by the defendants/appellants. 7. Still feeling aggrieved, the present regular second appeal has been filed by the defendants/appellants. 8. It is contended by Mr. Naresh K. Verma, learned counsel for the appellants, that the judgments and decrees as passed by learned Courts below are erroneous and not sustainable in the eyes of law. He has submitted that the defendants perfected their title by acquiring it by virtue of adverse possession, therefore, the suit for possession filed by the plaintiff ought to have been rejected. To the similar extent, he further submitted that the defendants have been able to establish that there was an exchange between the parties. 6 Therefore, on the basis of exchange, corrections were carried out in the revenue records, showing the defendants as Kabiz in the possessory column. 9. On the other hand, Mr.Sanjay Jaswal, learned counsel for the defendants/respondents has defended the judgments and decrees as passed by learned Courts below. He has submitted that both the Courts have rightly appreciated the oral as well as documentary evidence placed on record and decreed the suit filed by the plaintiff. He further submitted that there are concurrent findings of fact, therefore, in view of mandate as laid down by Hon’ble Supreme Court, no interference is called for in the regular second appeal by invoking provisions of Section 100 of Code of Civil Procedure. 10. I have heard learned counsel for the parties and have gone through the record minutely. 11. With the consent of learned counsel for the parties, the appeal is taken up for hearing at the admission stage. 12. The respondents/plaintiff has filed a suit for possession of title and in order to substantiate his case, the plaintiff has placed on record the copy of jamabandi for the year 1977-1978 (Ext. P-3), which shows the suit land is recorded in the ownership and possession of the parties. Missal Haqiyat Bandobast Jadid for the year 1984-1985 has been placed on 7 record as Ext. P-2. Further, in the jamabadi for the year 2002- 2003, the possession of the defendants has been shown without any authority. The defendants have not placed on record any order by the Competent authority for making such a change abruptly, that too, behind the back of the plaintiff. 13. Learned counsel for the respondent/plaintiff has vehemently argued that the abrupt change of entry with respect to the possession of the defendants in the revenue records was carried out by the defendants in connivance with the revenue officials, that too, behind the back of the defendants and without passing any order by the competent Court of law. Therefore, no reliance can be placed on the revenue record, on which the defendants have placed reliance. 14. The next contention as raised by the learned counsel for the appellant is that by virtue of the exchange, the defendants have become the owner of the suit land. It is the case of the defendants that in lieu of exchange of Khasra No.654 which was owned and possessed by the defendants, the plaintiff has given the suit land to them. Perusal of Ext. P-4 reveals that Khasra No.654 is still being shown in the name of the present defendants meaning thereby the stand which is being taken by the defendants that Khasra No.654 was given in exchange to the plaintiff is factually incorrect as no necessary correction has been 8 made in the revenue record. Even otherwise, the defendants have not been able to place on record any written document to show that the exchange took place between the parties. In view of the provision of Transfer of Property Act, the story as projected with respect to the exchange and in absence of any documentary as well as oral evidence the case as set up by the defendants that the suit land was given to him by virtue of exchange in lieu of Khasra No.654 is not sustainable. 15. The next leg of argument of learned counsel for the appellants is that the defendants became owners-in-possession of the suit land by virtue of adverse possession. He submits that the defendants are in possession of the suit land from October 1976. Therefore, being in continuous and uninterrupted possession, the defendants have perfected their title by virtue of adverse possession. By raising the plea of adverse possession, the defendants have admitted the title of the plaintiff. 16. The Hon’ble Apex Court in various decisions have repeatedly held that mere possession however long it may be does not necessarily mean that it is adverse to the true owner. In order to acquire the title by adverse possession, the said possession has to be in denial to the true owner’s title. The animus possidendi is well known ingredient to acquire the title of adverse possession. Mere possession does not ripen into 9 possessory title until and unless it is proved that it is adverse to the true owner and to the knowledge of the title holder. 17. Further, 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 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. 10 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 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 11 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 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 12 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 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 13 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 Konati 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 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: 14 "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 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 15 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 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 16 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. 18. 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. The defendants in order to establish their case and to get the relief of adverse possession were required to place on record clear evidence showing the precise date, month and year when the adverse possession commenced and remained so 17 peacefully, openly and continuous to the knowledge of the true owner. 20. In the present case, the perusal of the written statement would show that the pleadings are lacking in that regard. In case the evidence of the defendant is seen, Inder Pal, son of Shri Dalayu has entered the witness box and an affidavit has been filed in order to substantiate the case of adverse possession. In the affidavit, it has been submitted that since 1976 his father was in possession of the suit property and thereafter an exchange took place between the parties. That the plaintiff did not vacate the suit land and it remained under the possession of the father of the Inder Pal. That after the death of his father, the land in question is being possessed by the said witness. The essential ingredients for acquiring title by way of adverse possession has neither been pleaded nor proved except the bald statement, which has been made by the defendants. The plea of adverse possession is always taken against true owner and once it is established that the plaintiff/respondent is title holder then the natural consequences of the same would be that the decree for possession has to be passed in favour of the plaintiff on the basis of ownership/title. 21. Learned courts below have concurrently held that the defendants/appellants have failed to plead and prove the plea of 18 exchange and adverse possession. Neither the defendants could establish the exchange by filing any document nor the plea of adverse possession has been established. 22. The findings of facts as recorded by learned Courts below do not call for any interference especially in view of the judgment as passed by Hon’ble Supreme 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.” 23. Similarly, the Hon’ble Apex Court in Kshitish Chandra Purkait vs. Santosh Kumar Purkait and others (1997) 5 SCC 438 has held as under: 19 “10. We would only add that (a) it is the duty cast upon the High Court to formulate 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 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.” 20 24. 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 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 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.” 25. In Naresh and others vs. Hemant and others, (2022) 18 SCC 802, the Hon’ble Supreme Court held as under: 21 “10. The High Court invoked the presumption without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW-1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal. 2. The High Court therefore manifestly erred by interfering with the concurrent findings on facts by two courts below in exercise of powers under Section 100, Civil Procedure Code, a jurisdiction confined to substantial questions of law only. Merely because the High Court may have been of the opinion that the inferences and conclusions on the evidence were erroneous, and that another conclusion to its satisfaction could be drawn, cannot be justification for the High Court to have interfered. 12. In Madamanchi Ramappa v. Muthaluru Bojappa, (1964) 2 SCR 673, this court with regard 22 to the scope for interference in a second appeal with facts under Section 100 of the Civil Procedure Code observed as follows: “12. ….The admissibility of evidence is no doubt a point of law, but once it is shown that the evidence on which courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the court of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. 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 s. 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 23 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.” 13. Though precedents abound on this settled principle of law, we do not consider it necessary to burden our discussion unnecessarily except to rely further on Gurdev Kaur v. Kaki, (2007) 1 SCC 546, holding as follows: “71. The fact that, in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 CPC have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a 24 decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. xxxx 73. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be, and they added a note of warning that no court in India has power to add to, or enlarge, the grounds specified in Section 100. xxxx 81. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention. 25 82. In view of the clear legislative mandate crystallised by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.” 14. The order of the High Court interfering with concurrent findings of facts by two courts is, therefore, held to be unsustainable in exercise of the powers under Section 100 of the Civil Procedure Code. The order of the High Court is consequently set aside. The orders dated 06.03.1998 and 13.06.2002 of the Trial Court and the First Appellate Court are restored. The suit of the plaintiffs is dismissed. The present appeal is allowed.” 26. In Brij Narayan Shukla (dead )through legal representatives vs. Sudesh Kumar Alias Suresh Kumar (dead) through Legal Representatives and others, (2024) 2 SCC 590, the Hon’ble Supeme Court held as under: “10.2 The High Court was hearing the Second Appeal under section 100 of Code of Civil Procedure, 1908 and it having reappreciated the findings to disturb findings of fact, committed an error.” 26 27. 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 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 27 100 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.” 28. No other point was raised by the learned counsel for the parties. 29. Both the Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record. No question of law much less substantial question of law arises in the present case. 30. In view of above, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of. ( Romesh Verma ) Judge 23rd April, 2026 (vt)