MANU/DE/6085/2023

Equivalent/Neutral Citation: 2023:DHC :6533

IN THE HIGH COURT OF DELHI

RSA 147/2023 and CM Appl. 40709-40712/2023
Decided On: 04.09.2023
Ashok Vs. Satnam Singh and Ors.
Hon'ble Judges/Coram:
Manmeet Pritam Singh Arora, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Karan Luthra and Naman Gowda, Advocates
For Respondents/Defendant: Davender Hora, Rishi Manchanda, Advocates and Party-in-
Person
JUDGMENT
Manmeet Pritam Singh Arora, J.
CM APPL. 40711-12/2023(for exemption)
Allowed, subject to all just exceptions.
Accordingly, the present application stands disposed of.
RSA 147/2023 & CM APPLs. 40709, 40710/2023
1 . The present second appeal impugns the judgment dated 28.04.2023 passed by the
ADJ-03, North West District, Rohini Courts, Delhi ('First Appellate Court') in RCA DJ No.
5238/2016, whereby the First Appellate Court dismissed the appeal and upheld the
judgment dated 21.09.2016 passed by the ACJ/ARC, North West District, Rohini Courts,
Delhi ('Trial Court').
1.1. The Appellant and Respondent Nos. 2 and 3 are defendants in the suit; and the
Respondent No. 1 is the plaintiff in the suit.
1.2. The suit was filed for possession and permanent injunction by the Respondent No.
1 stating that he purchased the plot no. D-23, Khasra No. 44/5, Budh Vihar-II, Village
Pooth Kalan, Delhi admeasuring 106 sq. yards ('suit property') on 30.07.2009 and the
defendants trespassed in a portion of the suit property to the extent of 10 sq. yards.
1.3. For the sake of convenience the parties are being referred to as per their rank and
status before the Trial Court.
Submissions of the counsel for the Appellant and Respondent No. 1:
2. The learned counsel for the Appellant states that the Trial Court failed to consider the
law settled by the Supreme Court in Anathula Sudhakar v. P. Buchi Reddy,
MANU/SC/7376/2008 : (2008) 4 SCC 594, to contend that since there was a dispute on
the title of the plaintiff it was incumbent upon the plaintiff to file the suit for declaration
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and the simplicitor suit for injunction is not maintainable.
2.1. He states that the First Appellate Court failed to appreciate that when the title of
the plaintiff with respect to the suit property was disputed by the defendants, who are
in possession of the suit property, the suit filed by the plaintiff seeking possession and
injunction, without seeking a declaration of title was not maintainable.
2.2. He states that the title documents dated 30.07.2009 i.e., the Agreement to Sell
('ATS'), General Power of Attorney ('GPA'), Special Power of Attorney ('SPA'), Affidavit,
etc. marked as Exhibit PWA/1 (Colly) relied upon by the plaintiff are unregistered and
therefore cannot confer any title on him.
3 . In reply, the learned counsel for the Respondent No. 1 states that the defendants
have failed to bring on record any evidence with respect to the alleged tenancy in their
favour.
3.1. He states that there is no rent agreement or rent receipt or proof of payment or
identity of the landlord placed on record by the defendants.
3.2. He states that the title of the plaintiff to the suit property has not been challenged
by the defendants and therefore, there is no error in the judgments of the Trial Court
and the First Appellate Court.
Findings and Analysis:
4. This Court has considered the submissions of the counsel for the parties and perused
the paper-book.
5. The Appellant and Respondent No. 2 are present in Court today and Respondent No.
3 was present before this Court on 09.08.2023. The present appeal is being contested
on behalf of Appellant, Respondent No. 2 and Respondent No. 3 (i.e., the defendants in
the suit).
Brief facts:
6. It is stated by the plaintiff that he purchased the suit property from one Sh. Subhash
Bhardwaj ('vendor') who executed ATS, GPA, SPA, affidavit, etc. in his favour, which
were duly notarised documents. The said documents were duly placed on record and
exhibited during trial. In addition, the chain of documents by which the suit property
devolved upon the said vendor were also filed before the Trial Court.
6.1. It is the case of the plaintiff that the defendants are illegal occupants of area
measuring 10 sq. yards in the suit property which is specifically shown in red colour in
the site plan. It is stated that prior to the institution of the suit, criminal proceedings
were initiated by the parties against each other.
6.2. It is stated by the defendants in their written statement that they are not illegal
occupants in the disputed portion of the suit property but are residing therein with the
permission of the 'owner' of the suit property.
6.3. It is, further, stated by the defendants that they are tenants in the suit property
and have taken the disputed portion of the suit property on payment of rent. However,
pertinently no details of the 'owner' who granted the permission or the rent agreement
or the rate of rent or proof of payment of rent were disclosed in the written statement
or in the affidavit of evidence filed by the defendants. It was during the cross-
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examination of defendant no.1, i.e., as DW-1 that it was asserted by the defendants that
the owner of the suit property as per the defendants is Sh. Amar Singh.
7. The matter was set down for trial after framing of the following issues:
1. Whether the plaintiff has not approached the court with clean hands?(OPD)
2. Whether the suit of the plaintiff has been properly valued for the purposes of
court fees and jurisdiction? (OPP)
3 . Whether the plaintiff is entitled to the relief of possession, as prayed for?
(OPP)
4 . Whether the plaintiff is entitled to the relief of permanent injunction, as
prayed for? (OPP)
5. Relief.
7.1. The Trial Court after perusing the evidence and pleadings decided issue Nos. 3 and
4 in favour of the plaintiff. It held that the plaintiff had led the evidence on record to
prove his title to the suit property and was therefore entitled to recovery of possession
from the defendants. The findings of the Trial Court read as under:
"10. The onus to prove the same was upon the plaintiff. It was incumbent
upon him to prove his title over the suit property. In his examination in
chief the plaintiff/PW1 proved the manner in which he had purchased the plot of
which the suit property forms a part. He proved the complete chain of the
ownership since 1985, of the plot bearing no. D23,Budh Vihar, Phase II, as Ex.
PWA/1 (colly). He proved the site plan asEx.PWB/1.
He was cross examined by Ld. Counsel for defendants. In the entire cross
examination no suggestion was put that the petitioner is not the
owner or that the documents relied upon by him are forged. The
petitioner/PW1 denied the suggestion that the defendants are residing in the suit
property since 10-12 years back. No evidence has been led by the defendants to
suggest that they are living in the suit property since that long and the nature of
occupation.
1 1 . The previous owner Sh. Subhash Bhardwaj was examined asPW 2 who
deposed that he sold off the plot bearing no. D-23,Budh Vihar, Phase-II of
which the suit property forms a part, to the petitioner on 30.07.2009. His cross-
examination reveals that he was not confronted by the defendants if he was
their landlord. He categorically deposed that at the time of his purchasing and
selling of the suit property, the same was lying vacant. He deposed that he had
no knowledge about the defendants entering in a suit property.
12. Thus the plaintiff by proving the documents showing his ownership
over the suit property had discharged his onus. After that the onus was
upon the defendant to show that he has a better title over the suit property or
as he has contended that he was a tenant therein. No evidence has been led
by the defendant to show his title in the suit property. He has
miserably failed to prove the factum of his being a tenant in the suit
property as averred by him. As has come in the evidence of defendant no. 2,
the owner of the suit property is stated to be one Sh. Amar Singh though she

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 denied having seen any document of ownership in his favour. She stated in her
evidence that said Sh. Amar Singh never executed any document in favour of
the defendants regarding the property in question. The said fact was not even
mentioned in the WS. DW2 stated in her cross examination that the plot
in question was purchased by Sh. Subhash Bhardwaj from Amar Singh
who later on sold it of to Sh. Subhash Bhardwaj. It is worthwhile to
mention that in their WS the defendant have denied having knowledge about
having any deal between the plaintiff and Sh. Subhash. In their WS the
defendants have stated that they are living in the suit property with the
permission of its "owner" but have not mentioned as to who as per them is the
owner. DW2 admitted that she is having no document in her favour for
permission to reside in the suit property.
Sh. Chander Pratap Singh, the witness to the execution of documents between
the plaintiff and Sh. Subhash Bhardwaj, while confirming his attestation,
deposed to the effect that of the time of execution of such documents, the suit
property was vacant. His testimony lends weight to the averments of the plaintiff
that the suit property was entered upon by the defendants on 02/08/2010 which
is corroborated by notice u/s 91 Cr.P.C given by police officials of PS Vijay Vihar
which is Mark PW C/1.
13. The name of Amar Singh which the defendants have mentioned in
their cross examination is not mentioned in their WS. It had cropped
up for the first time in the cross examination of the defendants. The
said Sh. Amar Singh who DW2 stated to have known the whereabouts
was never summoned as a witness by the defendants. As such the
contentions of the defendants that they have been permitted to reside in the suit
property by said Sh. Amar Singh cannot be relied upon. Even if the defendants
claim to be tenant in the suit property, they were required to atleast state the
rate of rent, to whom it was or is being paid etc. but no such details have even
been averred in their WS or deposed in evidence.
14. The previous owner PW3/Sh. Subhash Bhardwaj denied the suit property
being occupied by the defendant at the time of its sale to the plaintiff. He
deposed that prior to him the suit property was owned by Ms. Shakuntala Devi
and initially by Master Dayanand Solanki. The complete chain of the suit
property has been filed on record and name of any Sh. Amar Singh does not
figure anywhere. As such the submission of the defendants that they have been
permitted by said Sh. Amar Singh in the absence of his testimony to this effect
seems an improvement when Sh. Subhash Bhardwaj had denied the averments
of the defendants.
Defendants in their cross-examination admit the plaintiff to be the
owner of the property of which the suit property forms a part, the fact
which they denied in their WS. No averments have been made by them
regarding their status under the ownership of plaintiff, leave alone proving it.
As such both the issues are decided against the defendants.
15. In view of the above, the defendants have miserably failed to show any
right, title or interest in the suit property. Their occupation of the suit property is
thus held to be illegal."
(Emphasis Supplied)
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8. The Trial Court thus, vide impugned judgment dated 21.09.2016 returned following
critical conclusions:
(i) The Trial Court held that the plaintiff has produced before it documentary
evidence which was duly proved and evidenced his title to the suit property.
The Trial Court relied upon the evidence of the vendor Sh. Subhash Bhardwaj,
who was examined as PW-3 and the witness to the title documents Sh. Chander
Pratap Singh i.e., PW-2 to arrive at the aforesaid finding.
(ii) The Trial Court while returning the said finding duly considered the
admission of the defendants in their cross examination that Sh. Subhash
Bhardwaj i.e., the vendor is the owner of the suit property.
(iii) The Trial Court held that the oral plea of the defendants with respect to the
initial ownership of one Sh. Amar Singh was raised for the first time in the
cross examination; without the said plea being substantiated with any
documentary or oral evidence.
(iv) The Trial Court held that there is no evidence on record to hold that some
Sh. Amar Singh owns the suit property as his name finds no mention in the
documents on record.
(v) The Trial Court held that the defendants have failed to place on record any
documents evidencing their right to occupy the disputed portion as a tenant. It
held that the defendant had failed to prove their rightful possession of the
disputed portion. The Trial Court concluded that the occupation of the disputed
portion by the defendants was illegal.
9. The judgment of the Trial Court was challenged in appeal by the defendants and the
First Appellate Court as well after perusing the record and the evidence on record has
returned the finding that the defendants have themselves admitted the plaintiff's
ownership of the suit property. The relevant findings of the Appellate Court read as
under:
"8. Perusal of the record shows that in the present matter, the plaintiff has
alleged that he had purchased the suit property from one Sh. Shubhash
Bhardwaj vide documents i.e. GPA, Agreement to Sell, Affidavit etc on
30.07.2009. Further, the plaintiff had alleged that the defendants were illegal
occupants over the suit property. Perusal of the WS filed by the defendants
shows that the defendants had taken this stand that they were residing in the
suit property with the permission of its owner. Further, the defendants had
stated that they had no knowledge about any such deal between the plaintiff and
Sh. Subhash.
9. In the present matter, the Ld. Trial Court has observed that the plaintiff had
succeeded to prove his title over the suit property on the basis of the documents
which are Ex. PW-A/1. As per these documents, one Sh. Daya Nand had sold
the property to Smt. Shakuntala Devi on 06.11.1995 vide GPA, Agreement to
Sell, Affidavit and Receipt. Thereafter Smt. Shakuntala Devi sold the property to
Sh. Subhash Bhardwaj on 30.01.2008 vide similar documents and Sh. Subhash
Bhardwaj sold this property to the plaintiff vide similar documents dt.
30.07.2009. The defendants have taken this objection in the appeal that no title
passes in the favour of the plaintiff as the documents are unregistered.
However, the defendants have not placed on record any other documents to
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 show that the plaintiff is not the owner of the suit property. Further, as pointed
out by the Ld. Counsel for the plaintiff, the defendants have admitted in their
cross examination that the plaintiff is the owner of the suit property. Reference
can be made to the statement of the DW-1/Ashok wherein he has
clearly admitted that:-
"The previous owner Sh. Amar Singh sold the property in question to
Sh. Subhash Bhardwaj and the plaintiff purchased it from Sh. Subhash
Bhardwaj".
10. Further, DW-2/Smt. Rajmati (defendant no. 2) also admitted in her
cross examination that the plaintiff was the owner of the suit
property. She stated:-
"The said Sh. Amar Singh never executed any document in our favour
of the property in question.... this plot was purchased by Sh. Subhash
Bhardwaj from Sh. Amar Singh. It is correct that the plot in question
was purchased by plaintiff from Sh. Subhash Bhardwaj. It is correct that
I have no document in my favour giving permission for residing in the
suit property".
11. Hence, as the defendants have themselves admitted the plaintiff's
ownership over the suit property, they are estopped from challenging
his title over the suit property."
(Emphasis supplied)
1 0 . The First Appellate Court upheld the findings of the Trial Court as regards the
ownership of the plaintiff on issue Nos. 3 and 4 after perusing the cross-examination of
DW-1 i.e., Sh. Ashok and DW-2 i.e., Sh. Rajmati. The Courts below concluded that the
defendants did not dispute the ownership of the vendor Sh. Subhash Bhardwaj, who has
sold the suit property to the plaintiff.
11. This Court is of the opinion that a perusal of the judgments of the Trial Court and
the First Appellate Court shows that in the facts of this case both the parties went to
trial with full knowledge that the plaintiff was claiming possession on the basis of his
title. The plaintiff led detailed evidence and placed on record and proved the documents
Ex. PWA/1 (Colly) through which he claimed title in the suit property. He examined the
vendor Sh. Subhash Bhardwaj as PW-3 and the witness to the transfer documents Sh.
Chander Pratap Singh as PW-2.
1 2 . As noted hereinabove, the Trial Court and the First Appellate Court have after
perusing the evidence led by the plaintiff and the evidence led by defendant Nos. 1 and
2 recorded that the plaintiff has proved his title with respect to the suit property. This is
also for the reason that the defendants in their cross-examination admitted the title of
the vendor Sh. Subhash Bhardwaj.
13. The defendants herein are admittedly not setting up any case for rival title to the
suit property and are in fact only claiming to be tenants in the suit property, even
though they have not placed on record any document evidencing their tenancy. The
defendants have neither identified their landlord nor placed on record any documentary
evidence of tenancy or proof of payment of rent. Therefore, the suit filed for the relief
of possession against the defendants, who admittedly do not claim any rival title of
ownership, would be maintainable.

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14. Even before this Court, during the arguments the defendants have not disputed the
ownership of Sh. Subhash Bhardwaj who sold the property to the plaintiff. The chain of
title documents on which reliance has been placed by the plaintiff begins from 1985.
14.1. The title transfer documents in favour of Ms. Shakuntala Devi are dated
06.11.1985, who is stated to have transferred the right, title and interest in favour of
Sh. Subhash Bhardwaj on 30.01.2008 and the plaintiff has acquired the said right, title
and interest from Mr. Subhash on 30.07.2009.
14.2. The plaintiff is therefore, deriving his title from Ms. Shakuntala Devi in whose
favour the documents are dated 06.11.1985 and the said documents are admissible in
evidence. The chain of title documents and the title documents of the plaintiff were duly
tendered and admitted in evidence without any objection being raised by the defendants
at the relevant stage during trial. Therefore, in view of Section 36 of the Indian Stamp
Act, 1899, these documents cannot be questioned at this stage for the first time.
15. The plaintiff has filed the suit for recovery of possession and is relying upon the
title documents not for invoking the provisions of Section 53 A of the Transfer of
Property Act, 1872. The title documents in favour of the plaintiff evidences that he has a
better title than the defendants to the suit property; and therefore, the suit filed by the
plaintiff for recovery of the possession from the defendants has been rightly held to be
maintainable. In this regard, it would be relevant to refer to the judgment of a
Coordinate Bench of this Court in Arbinder Singh Kohli & Anr. vs. Gobind Kaur Kohli
MANU/DE/2335/2018, wherein similar circumstances after considering the judgment of
the Supreme Court in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana
MANU/SC/1222/2011 : (2012) 1 SCC 656, the learned Single Judge held that a suit for
possession filed by the plaintiff on the basis of an unregistered agreement to sale was
maintainable. The relevant portion of judgment reads as under:
"11. Shri Malhotra further urged that the Agreement to Sell does not confer any
title upon the Plaintiff. The consideration was paid from the joint family funds as
admittedly, the Plaintiff did not have any source of income. He relied on the
cross-examination of the Plaintiff to the effect that she had no source of income.
He further submitted that along with the Agreement to Sell, which was executed
by Shri Suresh Chand Kapoor in favour of the Plaintiff, on 17 May, 2002, a
Power of Attorney was executed by Shri Gautam Kapoor in favour of Defendant
No. 2, the daughter-in-law. In the said Power of Attorney, it is recorded that
possession is also being given to the daughter-in-law. Though the said Power of
Attorney has been subsequently cancelled, the Defendants also have a Power of
Attorney from the original owners, i.e. the the Balharas, who were the original
Bhumidars of the suit property. He submits that a mere Agreement to Sell which
is not registered, cannot confer any title on the Plaintiff in view of the judgment
of the Supreme Court in Suraj Lamp and Industries Pvt. Ltd. v. State of
Haryana, MANU/SC/1222/2011 : (2012) 1 SCC 656 (hereinafter, 'Suraj Lamps').
12. In the absence of registration, the Plaintiff is not entitled to any rights in the
suit property, in view of Section 17 and 17(1-A) of the Registration Act and
Section 53A of the Transfer of Property Act. He further submits that Power of
Attorney which is registered transfers the title in favour of the daughter-in-law
as it also has the right to sell in her favour. He further submits that the
Agreement to Sell merely permits the Plaintiff to seek specific performance and
nothing more.

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 xxx xxx xxx xxx
40. The Plaintiff herein, is not seeking protection of her possession under
Section 53A of the TPA in the present case. She, having purchased the property
through various documents namely, Agreement to Sell, Will, letter of possession
and receipt, is seeking to evict her son and daughter-in-law who she had
permitted to stay with her in the suit property. The Plaintiff only needs to
establish a better title than the Defendants and not an absolute title.
Suraj Lamps (Supra) clearly holds that though sales by Agreement to Sell, Will,
etc, are not legally valid modes of transfer, they are permitted to get the
transactions already entered into, regularised. Thus to this extent, Suraj Lamps
(Supra), completely protects the Plaintiff's rights. The Plaintiff has taken steps to
get the General Power of Attorney in favour of Defendant No. 2 cancelled and
get a new Power of Attorney executed in favour of her husband. The parties
who have purchased properties by means of Agreement to Sell/Will are entitled
to obtain and seek specific performance. Suraj Lamps (Supra) also recognises
that on the basis of such documents, even mutations made by the municipal or
revenue authorities need not to be disturbed. A General Power of Attorney given
amongst family members is also recognised by Suraj Lamps (Supra)."
(Emphasis Supplied)
15.1. The Supreme Court in Suraj Lamp (supra) held as under:
"25. It has been submitted that making declaration that GPA sales and
SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create
hardship to a large number of persons who have entered into such transactions
and they should be given sufficient time to regularize the transactions by
obtaining deeds of conveyance. It is also submitted that this decision should be
made applicable prospectively to avoid hardship.
26. We have merely drawn attention to and reiterated the well-settled legal
position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that
such transactions cannot be treated as completed transfers or conveyances.
They can continue to be treated as existing agreement of sale. Nothing
prevents affected parties from getting registered Deeds of Conveyance
to complete their title. The said 'SA/GPA/WILL transactions' may also
be used to obtain specific performance or to defend possession under
Section 53A of Transfer of Property Act. If they are entered before this day,
they may be relied upon to apply for regularization of allotments/leases by
Development Authorities. We make it clear that if the documents relating to
'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other
developmental authorities or by the Municipal or revenue authorities to effect
mutation, they need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in any way affect
the validity of sale agreements and powers of attorney executed in genuine
transactions. For example, a person may give a power of attorney to his spouse,
sons, daughter, brother, sister or a relative to manage his affairs or to execute a
deed of conveyance. A person may enter into a development agreement with a
land developer or builder for developing the land either by forming plots or by
constructing apartment buildings and in that behalf execute an agreement of
sale and grant a Power of Attorney empowering the developer to execute
agreements of sale or conveyances in regard to individual plots of land or
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 undivided shares in land relating to apartments in favor of prospective
purchasers. In several States, the execution of such development agreements
and powers of attorney are already regulated by law and subjected to specific
stamp duty. Our observations regarding 'SA/GPA/WILL transactions' are not
intended to apply to such bonafide/genuine transactions."
(Emphasis Supplied)
16. In view of the fact that the defendants are admittedly not claiming any rights of title
to the suit property; they have failed to prove their right to remain in the disputed
portion of the suit property and considering the fact that the plaintiff has proved with
documentary evidence a better title in this suit property; the Trial Court has rightly
decreed the suit for possession.
1 7 . In view of the concurrent findings returned by the Trial Court and the First
Appellate Court, there cannot be any dispute that the Respondent No. 1 herein has a
better title to the property than the Respondent. The documents relied upon are dated
1985 and the requirement for compulsory registration of the agreement to sell was
introduced in 2001.
18. In this regard, it would be instructive to refer to the judgement of the Coordinate
Bench of this Court in Ramesh Chand v. Suresh Chand & Anr. MANU/DE/1690/2012 :
ILR(2012) V DELHI 48, wherein the Court held that the right of possession of an
immovable property arises even by having a better title or a better entitlement/right to
the possession than the person who is in actual physical possession. The relevant
paragraph of the said judgment reads as under:
"12. In view of the aforesaid facts and the validity of the documents, being the
power of attorney and the Will dated 16.5.1996, the respondent No. 1/plaintiff
would though not be the classical owner of the suit property as would an owner
be under a duly registered sale deed, but surely he would have better
rights/entitlement of possession of the suit property than the
appellant/defendant No. 1. In fact, I would go to the extent saying that by virtue
of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps &
Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has
already died, the respondent No .1/plaintiff becomes an owner of the property
by virtue of the registered Will dated 16.5.1996. A right to possession of an
immovable property arises not only from a complete ownership right in
the property but having a better title or a better entitlement/right to
the possession of the property than qua the person who is in actual
physical possession thereof."
(Emphasis Supplied)
19. In the opinion of this Court, the First Appellate Court has properly appreciated the
evidence on record and the findings arrived at are correct and do not merit any
interference by this Court.
20. The reliance placed by the counsel for the Appellant on the judgment of Anathula
Sudhakar (supra) to contend that the suit of the plaintiff was not maintainable is
incorrect as in the present case, the plaintiff has not filed a mere suit for permanent
injunction but had filed a suit for possession and permanent injunction. Further, as
discussed hereinabove, the plaintiff proved his better title to the suit property and the
defendants as well during evidence admitted the title of the plaintiff. The findings of the

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Trial Court and the First Appellate Court in this matter as regards the title of the plaintiff
is duly recognised even in the said judgment of the Supreme Court at paragraph 21(d)
which reads as under:
"(d) Where there are necessary pleadings regarding title, and appropriate issue
relating to title on which parties lead evidence, if the matter involved is simple
and straightforward, the court may decide upon the issue regarding title, even
in a suit for injunction. But such cases, are the exception to the normal rule
that question of title will not be decided in suits for injunction. But persons
having clear title and possession suing for injunction, should not be driven to
the costlier and more cumbersome remedy of a suit for declaration, merely
because some meddler vexatiously or wrongfully makes a claim or tries to
encroach upon his property. The court should use its discretion carefully to
identify cases where it will enquire into title and cases where it will refer to the
plaintiff to a more comprehensive declaratory suit, depending upon the facts of
the case."
21. The arguments raised by the Appellant do not raise any question of law much less a
substantial question of law and the grounds merely challenge the finding of facts.
22. In this regard, it would be appropriate to refer to the case of Nazir Mohamed v. J.
Kamal and others MANU/SC/0619/2020 : (2020) 19 SCC 57 wherein the Supreme Court
observed that second appeal only lies on a substantial question of law and the party
cannot agitate facts or call upon the High Court to reappreciate the evidence in a second
appeal. The operative portion to this aspect reads as under:
"22. A second appeal, or for that matter, any appeal is not a matter of right. the
right of appeal is conferred by statute. A second appeal only lies on a substantial
question of law. If statute confers a limited right of appeal, the court cannot
expand the scope of the appeal. It was not open to the respondent-
plaintiff to reagitate facts or to call upon the High Court to reanalyze
or reappreciate evidence in a second appeal.
23. Section 100 CPC, as amended, restricts the right of second appeal, to Only
those cases, where a substantial question of law is involved. The existence of a
"substantial question of law" is the sine qua non for the exercise of jurisdiction
under Section 100 Cr.
xxx xxxxxx
28. To be "substantial", a question of law must be debatable, not previously
settled by the law of the land or any binding precedent, and must have a
material bearing on the decision of the case and/or the rights of the parties
before it, if answered either way.
29. To be a question of law "involved in the case, there must be first, a
foundation for it laid in the pleadings, and the question should emerge
from the sustainable findings of fact, arrived at by courts of facts, and
it must be necessary to decide that question of law for a just and
proper decision of the case."
(Emphasis Supplied)
23. In these circumstances, the findings of the Trial Court and First Appellate Court do

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not merit any interference. No substantial question of law arises in this matter. This
appeal is, accordingly, dismissed. Pending applications are also disposed of.
© Manupatra Information Solutions Pvt. Ltd.

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