2026:HHC:28020 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 04 of 2025 Date of decision: 03.07.2026. Poonam ...Appellant. Versus Sagli Ram & another ...Respondents. Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the appellant : Mr. T.S. Chauhan, Sr. Advocate with Mr. Surya Chauhan, Advocate. For the respondents : Mr. Gaurav Sharma, Advocate, for respondent No.1. Mr. Ashwani Kaundal, Advocate, for respondent No.2. Romesh Verma, Judge (Oral): The instant appeal arises out of judgment and decree, as passed by the learned Additional District Judge-II, Una, District Una, H.P. dated 31.05.2024, whereby the appeal as filed by the appellant/defendant No.2 came to be dismissed and the judgment and decree, as passed by the learned Civil Judge, Court No. (III), Una, District Una, H.P. dated 07.09.2022 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- was affirmed whereby, the suit as filed by the plaintiff for specific performance of contract was decreed. 2. The facts as emerge in the present case are that the plaintiff filed a suit for possession through specific performance of contract for execution and registration of sale deed of land measuring 00-07-20 hectares being ½ share out of land measuring 00-14-40 hectares, comprised in Khewat No. 434, Khatauni No. 497, Khasra No. 379, as entered in jamabandi for the year 2008-09, situated in Mohal Jhalera, Tehsil and District Una, H.P. on the basis of agreement to sell dated 17.08.2009 executed by defendant No.1 in favour of the plaintiff. 3. As per the case, as set up by the plaintiff, defendant No.1 being owner in possession of land measuring 00-07-20 hectares, being ½ share out of land measuring 00-14-40 hectares comprised in Khewat No. 434, Khatauni No. 497, Khasra No. 379, as entered in jamabandi for the year 2008-09, situated in Mohal Jhalera, Tehsil and District Una, H.P. entered into a written agreement to sell the suit land with the plaintiff for a total sale consideration of Rs. 67,500/-. Defendant No.1 also executed a registered General Power of Attorney dated 17.08.2009, in favour of the plaintiff on the -3- same day regarding the suit land. The agreement to sell as well as power of attorney was written by one Dinesh Kumar at the instance and in the presence of defendant No.1 as well as plaintiff, which was duly read over and explained to her in local vernacular dialect and after admitting the same to be true and correct, defendant No.1 had put her right thumb impression on the agreement and power of attorney and also in the register of deed writer. Thereafter plaintiff also appended his signatures on the agreement to sell as well as power of attorney and thereafter the marginal witnesses signed the same. As per case of the plaintiff, it was agreed that defendant No.1 will not cancel the GPA in any manner and in case she refused to execute the sale deed in favour of the plaintiff as per agreement, in that event, the plaintiff shall have every right to enforce the agreement through the Court. 4. As per plaintiff, after the execution of the agreement, he had been requesting defendant No.1 to execute the sale deed in his favour, however, defendant No. I had been putting off the request of the plaintiff either on one pretext or the other. Thereafter, the plaintiff was constrained to serve a legal notice upon defendant No.1 dated 16.08.2012, requesting her to pay obeisance to the agreement in question and to perform her part -4- of contract. As per case of the plaintiff, he collected the latest revenue record of the suit land from village Patwari. However, the plaintiff got stunned to find out that the suit land had already been alienated by defendant No. 1 in favour of defendant No. 2 through registered sale deed dated 05.06.2012 and mutation No. 556 had also been sanctioned in the revenue record in his favour. It is the case of the plaintiff that the alleged sale deed executed by defendant No.1 in favour of defendant No.2 as well as subsequent revenue entries are collusive, without consideration being a sham-transaction, illegal, unwarranted, null and void, ineffective having no adverse effect upon the rights of plaintiff qua the suit land. 5. As per plaintiff, he was always ready and willing to perform his part of agreement and to bear the costs of registration of sale deed. However, on coming to know about the alleged sale deed executed by defendant No.1 in favour of defendant No. 2, the plaintiff approached them to get cancel the said sale deed and further to admit his claim but the defendants did not give any weight to the request of the plaintiff. Further, the plaintiff requested defendant No. 2 not to pose unwarranted threats of further alienation of the suit land to some other person but defendant No. 2 refused to do so. -5- Therefore, it was prayed that a decree for possession through specific performance of contract and execution of registered sale deed of land measuring 00-07-20 hectares being ½ share out of land measuring 00-14-40 hectares, comprised in Khewat No. 434, Khatauni No. 497, bearing Khasra No. 379, as entered in Jamabandi for the year 2008-09, situated in Mahal Jhalera, Tehsil Una, Distt Una, H.P. on the basis of agreement to sell dated 17-08-2009 executed by the defendant No. 1 in favour of the plaintiff be passed in his favour and against the defendants. 6. The plaintiff also prayed the consequential relief for passing of the decree for declaration to the effect that the sale deed dated 05.06.2012 executed by defendant No. 1 in favour of defendant No. 2 as well as sanctioning of mutation No. 556 and subsequent revenue entries qua the suit land in the name defendant No. 2 being illegal, null and void, ineffective and not binding on the rights of the plaintiff. Further, decree for permanent injunction was also sought restraining defendant No. 2 from interfering in any manner, taking possession forcibly by ousting the plaintiff, alienating in any manner the suit land to any third person or encumbering the suit land or changing the existing nature and character by way of raising any sort of construction over the suit land in any other manner. In -6- alternative, decree for recovery of Rs. 67,500/- alongwith interest @ 24% per annum was sought against the defendants by way of damages and costs. 7. The suit came to be resisted by the defendants. Defendant No.1 resisted the suit by raising various preliminary objections with respect to cause of action, estoppel and limitation etc. On merits, para-2 of the plaint was partly admitted. It was stated that in the first week of August 2009 defendant No.1, who is an illiterate, poor and pardanashi lady, was in need of money for family function and for that purpose she requested the plaintiff to arrange a loan amount for her from somewhere and the plaintiff assured her to do so very shortly. After about two weeks, the plaintiff came to the house of the defendant No.1 at about 11:30 am and asked her to accompany him to Tehsil Office Una for preparation of documents for taking the loan and accordingly the defendant No.1 accompanied him to Tehsil Office Una, where the plaintiff got some papers prepared from the deed writer and on his asking, the defendant No.1 appended her thumb impressions on 8 to 10 papers, stamp papers and 2-3 registers. Thereafter the plaintiff took her in one room where her photographs were taken along with plaintiff and two other persons, one of them is -7- resident of village Jhalera Tehsil and District Una and thereafter she was asked to append her finger prints on a paper. The defendant No.1 appended her thumb impressions in good faith and belief. However, the same was done at the instance of plaintiff and her co-villager Surjit Singh under the belief and impression that these documents are being prepared for grant of loan. It is the case of defendant No.1 that in April 2012, the plaintiff came to her house and demanded the loan amount for depositing the same in the bank under the pretext that he is her surety for the loan and that she has not returned the same till date. Defendant No.1 promised to arrange the amount within two months and accordingly she sold the suit land to defendant No.2 vide registered sale deed on 05.06.2012 and out of the sale consideration, she paid Rs. 65,000/- to the plaintiff being principal and interest amount. It was stated that no question of execution of the agreement to sell or power of attorney arises as the said documents are wrong, false and incorrect and are result of fraud and misrepresentation. 8. Defendant No.1 refuted the averments as made in the plaint and prayed for dismissal of the suit as filed by the plaintiff. He stated that defendant No.1 being the absolute owner of the suit land was fully competent to execute the sale -8- deed in favour of defendant No.2 and the plaintiff is estopped by his act and conduct to file the suit. 9. Defendant No.2 filed her separate written statement by denying all the averments as made in the plaint. It was stated that she is bonafide purchaser of the suit land and she was not aware about any agreement purported to have been executed between the plaintiff and defendant No.1. After the purchase, the possession of the suit land had been delivered to defendant No.2 and thereafter she became the owner of the suit land. Therefore, it was prayed that being a bonafide purchaser the suit as instituted by the plaintiff is liable to be rejected. 10. The learned trial Court on 13.12.2013, framed the issues in the following manner:- “1. Whether the plaintiff and defendant No.1 entered into agreement to sell dated 17.08.2009? OPP 2. Whether the plaintiff is entitled for possession through specific performance of the agreement to sell dated 17.08.2009, as prayed for? OPP 3. Whether the plaintiff is entitled for consequential relief of declaration, as prayed for? OPP 4. Whether the plaintiff is entitled for permanent injunction against defendant No.2, as prayed for? OPP -9- 5. Whether in the alternative plaintiff is entitled for recovery of Rs.67,500/- along with interest @ 24% per annum as well as damages and cost of litigation, as prayed for? OPP 6. Whether the agreement to sell dated 17.08.2019 is result of fraud, misrepresentation, misleading and having no binding effect on the rights of the defendant No.1? OPD-1 7. Whether the plaintiff has no cause of action? OPD-1 8. Whether the plaintiff is estopped by his own act and conduct? OPD-1 9. Whether the plaintiff has concealed material facts, as alleged? OPD-1 10. Whether defendant Non.2 is bonafide purchaser? OPD-2 11. Relief? 11. The learned trial Court directed the respective parties to adduce evidence in support of their contentions and vide its judgment and decree dated 07.09.2022 decreed the suit as filed by the plaintiff by passing a decree for specific performance of contract in favour of the plaintiff and against defendant No.1 for execution and registration of sale deed of land measuring 00-07-20 hectares being ½ share out of land measuring 00-14-40 hectares, comprised in Khewat No. 434, Khatauni No. 497, Khasra No. 379, as entered in jamabandi for -10- the year 2008-09, situated in Mohal Jhalera, Tehsil and District Una, H.P. on the basis of agreement to sell dated 17.08.2009. Further, by passing a decree for declaration to the effect that the sale deed having been executed by defendant No.1 in favour of defendant No.2 as well as mutation No. 556 and subsequent revenue entries in the name of defendant No.2 as owner are illegal, null and void. Further, the learned trial Court passed decree for permanent injunction, restraining defendant No.2 from interfering in any manner, taking possession forcibly, by ousting the plaintiff and alienating the suit property in any manner to any third person. 12. Feeling dissatisfied, defendant No.2 Poonam filed an appeal under Section 96 of CPC before the learned Additional District Judge-II, Una on 12.12.2022 and the learned Additional District Judge-II, Una vide its judgment and decree dated 31.05.2024 dismissed the appeal as filed by defendant No.2 and affirmed the findings as returned by the learned trial Court. 13. Still feeling aggrieved, defendant No.2 has approached this Court by filing the instant regular second appeal under Section 100 of the CPC. -11- 14. It is contended by the learned counsel for the appellant that the impugned judgments and decrees as passed by the learned courts below are erroneous and liable to be quashed and set aside. He submits that the learned courts below have not adjudicated the real point of controversy and have not discussed and appreciated the oral as well as documentary evidence placed on record by the parties. He would submit that after accepting the present appeal, the suit as filed by the plaintiff deserves to be rejected. 15. On the other hand, learned counsels for the defendants have defended the impugned judgments and decrees as passed by the learned courts below. They submit that the learned courts below have rightly passed the judgments and decrees and there is no illegality, perversity and jurisdictional error. They submit that while invoking the provisions of Section 100 of the CPC, this Court will not interfere in the concurrent findings of fact and the present appeal being devoid of merit deserves to be rejected. 16. With the consent of the parties, the present appeal is finally heard on admission stage on the following substantial question of law:- “Whether the judgments and decrees as passed by the learned courts below are erroneous and liable to -12- be quashed and set aside on account of misconstruction and misappreciation of the oral as well as documentary evidence placed on record? 17. I have heard learned counsel for the parties and have also gone through the record carefully. 18. Plaintiff approached the learned trial Court for grant of decree of possession through specific performance of the contract and for execution of registered sale deed qua the suit land on the basis of agreement to sell dated 17.08.2009. Further, decree for declaration was sought that the sale deed executed by defendant No.1 in favour of defendant No.2 be declared as null and void and not binding on the rights of the plaintiff. It is the case of the plaintiff that defendant No.1 being owner in possession of the suit land entered into a written agreement to sell with the plaintiff for a total sale consideration of Rs. 67,500/-. Defendant No.1 received the entire sale consideration and she also executed a registered power of attorney in favour of the plaintiff on the same day i.e. 17.08.2009 and received the full and final amount of the sale consideration. 19. In pursuance to agreement to sell, the plaintiff requested defendant No.1 to execute the sale deed on various occasions but she failed to accede to the request of the plaintiff. -13- Thereafter, the plaintiff served a legal notice dated 16.08.2012 upon defendant No.1 and requested her to pay obeisance to the agreement in question and fulfill the terms and conditions of the agreement to sell and execute sale deed. The plaintiff collected the latest revenue record from village Patwari and it is only then he came to know that the suit land has already been alienated by defendant No.1 in favour of defendant No.2, through registered sale deed dated 05.06.2012 and mutation No. 556 was also sanctioned on the basis of the sale deed. Therefore, the plaintiff sought decree of specific performance of the contract and for registration and execution of the sale deed as per agreement to sell dated 17.08.2009 as executed by defendant No. 1 in favour of plaintiff and decree of permanent prohibitory injunction. 20. Defendant No.1 filed detailed written statement and denied all the averments as made in the plaint. As per defence set up by defendant No.1, it was her case that in the first week of August 2009, she being an illiterate, poor and pardanashi lady was in need of money for family function and for that purpose, she requested the plaintiff, who is their family friend, to arrange the loan amount for her and the plaintiff assured her to do so very shortly. After two weeks, the plaintiff came to the -14- house of defendant No.1 and asked her to accompany him to the Tehsil Office, Una for preparation of documents for taking loan and accordingly defendant No.1 accompanied him to Tehsil Office Una, where the plaintiff got some papers prepared from the deed writer and on the asking of plaintiff, defendant No.1 appended her thumb impressions on 8 to 10 papers, stamp papers and two three registers. Thereafter, the plaintiff took her in one room, where her photographs were taken along with the plaintiff and two other persons, one of them is resident of village Jhalera Tehsil and District Una. Thereafter, she was asked to append her finger prints on papers and she did all this and appended her thumb impressions in good faith and bonafide manner. The plaintiff told defendant No.1 that these documents have been prepared as per the bank instructions and loan amount would be sanctioned in her favour. Thereafter, defendant No.1 was made to sit outside the Tehsil Office for about two hours and the plaintiff came and handed over Rs. 65,000/- being principal and interest. 21. In April, 2012, the plaintiff came to the house of defendant No.1 and demanded the loan amount for depositing the same in the bank under the pretext that he is her surety for the loan and that she has not returned the same till date. -15- Therefore, on that account, defendant No.1 promised to arrange the same within two months and accordingly, she sold the suit land to defendant No.2 on 05.06.2012 vide registered sale deed and out of the sale consideration, she paid Rs. 65,000/- to the plaintiff being principal and interest amount. She denied that the agreement to sell and power of attorney was executed by her in favour of the plaintiff. She stated that the documents are wrong and false and are the result of fraud and misrepresentation and have no binding effect upon the rights of the plaintiff. 22. Defendant No.2 denied the case as set up by the plaintiff. She submits that she is bonafide purchaser of the suit land and she was not aware of any such agreement and she is not bound by the agreement to sell as entered between the plaintiff and defendant No.1. It was stated by defendant No.2 that in pursuance to the sale deed, the possession of the suit land has been handed over to her and she became the owner of the suit land. 23. In order to substantiate his case, plaintiff examined PW-1, Dinesh Kumar, who in his deposition has stated that he was working as deed writer in Tehsil Complex Una. On 17.08.2009, Ext. PW-1/A was written by him and the same was -16- prepared at the instance of the parties. After accepting the same to be correct, the same was duly signed by Sagli Ram plaintiff and defendant No.1 appended her thumb impression on the same. He stated that the same was also duly signed by all the witnesses. He stated that Ext. PW-1/B power of attorney was also executed on the very same day and was signed by Sagli Ram plaintiff and Poonam, defendant No.1, appended her thumb impression on the same after acknowledging the same to be correct. 24. PW-2 is the statement of Lakhvinder Singh. He brought the record pertaining to Ext. PW-1/B. 25. PW-3 is the statement of Tirath Ram. In his deposition he has stated that the agreement to sell Ext. PW-1/A and GPA Ext. PW-1/B were prepared in his presence and he is witness to the same. He stated that Ext. PW-1/A was duly signed by him in red encircle mark ‘A’ and in Ext. PW-1/B his signatures are at mark ‘B’. He stated that Ext. PW-1/A and Ext. PW-1/B were prepared on the asking of the parties. Sagli Ram plaintiff appended his signatures on the same and Poonam appended her thumb impression on the same. He stated that he along with another person Surjit Singh also appended their signatures over the same. -17- 26. PW-4 Surjit Singh in his deposition has stated that the suit land is owned by defendant No.1. Since she was in need of money, she requested PW-4 to get the deal done for selling of the suit land. He got the deal done for selling the suit land for a total sale consideration of Rs. 67,500/-. She had received the entire sale consideration amount on 17.08.2009 and agreement to sell and power of attorney was executed by her in favour of the plaintiff. The deed writer prepared the documents and the same were duly read over to the parties and after accepting the same to be correct and after understanding its contents by the parties, they appended their signatures on the same and Poonam after admitting the contents of the same to be correct appended her thumb impression over the same. In para-3 of his statement, PW-4 has stated that after execution of agreement to sell, about fifteen days thereafter, Sarvan Singh and his wife defendant No.2 came to his house and stated that the land which has been sold by defendant No.1 to Sagli Ram is adjoining to their land and after asking Sagli Ram the said land be sold to them. On this, he stated that they may talk to the plaintiff directly. In the cross-examination not even a single suggestion was put to PW-4 by defendant No.2 with respect to the fact that she along with her husband went to this witness -18- and asked him to sell the land to them. The said deposition of PW-4 remained unrebutted in the cross-examination as conducted by defendants No. 1 and 2. 27. PW-5 plaintiff in his statement reiterated all the averments as made in the plaint. He has stated that defendant No.1 agreed to sell the suit land to the plaintiff for a total sale consideration of Rs. 67,500/- and that agreement to sell was executed inter-se the parties and on the same day, power of attorney was also executed by defendant No.1 in favour of the plaintiff. PW-5 stated that he requested defendant No.1 to execute the sale deed, however, on one pretext or the other, defendant No.1 has failed to do the same. Thereafter, the plaintiff was constrained to issue a legal notice to defendant No.1 for execution of sale deed but the same was never replied nor the sale deed was executed in his favour. He stated that he came to know from the revenue record that defendant No.1 had fraudulently sold the suit land to defendant No.2. 28. The learned trial Court passed a decree for specific performance of agreement in favour of the plaintiff by setting aside the sale deed which was executed by defendant No.1 in favour of defendant No.2. Interestingly, defendant No.1 did not assail the said findings before the learned First Appellate Court -19- and it is only defendant No.2 who had challenged the said findings before the learned First Appellate Court. Meaning thereby, defendant No.1 has accepted the judgment and decree as passed by the learned trial Court and also accepted the passing of decree for specific performance of contract in favour of the plaintiff. In view of the fact that the findings were accepted by defendant No.1 coupled with the oral as well as documentary evidence placed on record, the plaintiff has been able to establish the execution of agreement to sell in his favour. The deed writer and the witnesses to the agreement to sell Ext. PW-1/A have categorically stated that the agreement to sell was duly executed by defendant No.1 in favour of the plaintiff and she had received the total sale consideration of Rs. 67,500/- from the plaintiff. 29. The contention has been raised by the learned counsel for the appellant that the appellant being the bonafide purchaser, no decree for specific performance could have been passed against her. The testimony and deposition of PW-4 makes it apparently clear that after execution of the agreement to sell, thereafter after fifteen days, defendant No.2 along with her husband went to the house of PW-4 and requested him that the land which was sold by defendant No.1 to the plaintiff be -20- given to them. On this, PW-4 has stated that they may talk the plaintiff directly. The statement of PW-4 remained unchallenged as no suggestion had been put to PW-4 by the counsel of defendant No.2 with respect to the fact that defendant No.2 and her husband never went to the house of PW-4. The sum and substance of the observation is that defendant No.2 was well aware about the execution of the agreement to sell inter-se the plaintiff and defendant No.1. 30. Even otherwise, defendant No.1 in her cross- examination has stated that she had told to defendant No.2 about the money as given by Sagli Ram which clearly demonstrates that the fact of execution of agreement to sell was duly within the knowledge of defendant No.2. Therefore, the plea which has been taken by defendant No.2 that she is the bonafide purchaser does not hold good. Statements of PW-4 and DW-1 falsify the case of defendant No.2. 31. The provisions of Section 19 (b) of the Specific Performance Act read as follows:- “(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract.” -21- 32. In order to apply Section 19 (b), certain pre- requisition conditions of the same are that subsequent transfer must be for consideration and not gratuitous and secondly the same must be made in good faith without notice to the original contract. In the present case perusal of written statement as well as oral evidence clearly shows that defendant No. 2 has failed to establish, plead and prove that the sale consideration amount was paid to defendant No.1. Similarly, the admission as made on the part of PW-4 and defendant No.1 reveals that defendant No.2 was well aware about the execution of the agreement to sell in favour of the plaintiff. Therefore, the ingredient of Section 19 (b) of the Act has not been made out by defendant No.2. 33. As per submission as made by learned counsel for defendant No.2 that the suit as instituted by the plaintiff is time barred on account of the fact that Ext. PW-1/A was executed between the parties on 17.08.2009 and the legal notice was issued to defendant No.1 on 16.08.2012 is not sustainable. From the perusal of Ext. PW1/A, it is clear that there is no stipulation or time frame was given in the same for the execution of the sale deed. As per mandate of Section 54 of the Limitation Act, the period for filing the suit for specific -22- performance shall be from the date when the plaintiff got the knowledge of notice for the performance has been refused. In the present case as per agreement to sell, Ext. PW-1/A, no date had been prescribed for the execution of the sale deed. The plaintiff issued legal notice dated 16.08.2012, which was neither replied nor the sale deed was executed in favour by the plaintiff. Therefore, the limitation under the provisions of Section 54 of the Limitation Act will start from the said date. Therefore, the contention as made by the learned counsel for the appellant that the suit was time barred is not sustainable. 34. As far as the plea of learned counsel for the appellant that application which was filed by the appellant under the provisions of Order 41 Rule 27 of CPC has been wrongly rejected is to be dealt with in consonance with the provisions of Order 41 Rule 27, which read as follows:- “27 . Production of additional evidence in Appellate Court— (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his -23- knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission”. 35. In the present case, the application which was filed by defendant No.2 for placing on record copy of sale deed dated 05.06.2012 of suit land executed by defendant No.1 in her favour came to be dismissed by the First Appellate Court. It is not the case of the defendant No.2 that said fact was not within her knowledge as the said document pertains prior to institution of the suit and there are no averments qua the same either in the written statement or in the pleadings. Therefore, the learned First Appellate Court has rightly came to the conclusion that the parameters as laid down for allowing the application filed under Order 41 Rule 27 CPC have not been made out by the appellant. In order to avail the benefit of seeking production of additional evidence, the same shall establish that notwithstanding the exercise of due diligence, -24- such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. In the present case, defendant No. 2/appellant has failed to make out her case within the purview of the provisions of Order 41 Rule 27 CPC. Therefore, the learned First Appellate Court has rightly rejected the application for additional evidence. 36. This Court is of the considered opinion that in view of the fact that the statements of PW-4 and defendant No.1 (DW1) have been made duly on the basis of record that defendant No.2 was well aware about the execution of the agreement to sell, therefore, she cannot be held bonafide purchaser and the judgment and decree as passed by the learned trial Court as affirmed by the First Appellate Court by passing the decree for specific performance and by setting aside the sale deed in favour of defendant No.2 are legal and valid. The learned courts below have rightly taken into consideration the oral as well as documentary evidence placed on record and this Court does not see any infirmity in the same. 37. The Hon’ble Supreme Court in Navaneethammal vs. Arjuna Chetty AIR 1996 SC 3521, has enumerated the scope of Section 100 of CPC, which reads as under: -25- “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.” 38. 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 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 -26- 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.” 39. 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 -27- 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.” 40. In Naresh and others vs. Hemant and others, (2022) 18 SCC 802, the Hon’ble Supreme Court held as under:- “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. -28- 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 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 -29- 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 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 -30- 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 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 -31- 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. 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, -32- 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.” 41. 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 Supreme 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.” 42. 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 -33- 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 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 -34- also, the impugned judgment and order passed by the High Court is unsustainable.” 43. The learned Courts below have taken into consideration the oral as well as documentary evidence placed on record and rightly decreed the suit as filed by the plaintiff. The learned Courts below have not committed any error and the same is not outcome of any illegality or jurisdictional error. 44. No other point urged by the learned counsel for the parties. 45. The substantial question of law is answered accordingly. 46. In view of above discussions, the present appeal being devoid of any merit is dismissed. Pending applications, if any, also stand disposed of. (Romesh Verma) Judge 3rd July, 2026. (kck)