RSA/320/2022 on 31 July 2026

1. Whether the plaintiff and proforma defendants No.5 to 8 are owner in possession of the suit land to the extent of 1/2 share each and revenue entries contrary to this fact are illegal, wrong, null and void? OPP

2. Whether the plaintiff is entitled for relief of permanent prohibitory injunction? OPP.

3. Whether the present suit is not maintainable in the present form? OPD.

4. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD.

5. Whether the present suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 5(a) Whether suit of the plaintiff is within limitation, as claimed? OPP. 5(b) Whether suit of the plaintiff is barred by limitation, as alleged? OPD.

6. Relief

The learned trial court directed the respective parties to adduce evidence in support of their contentions to corroborate their respective case. The learned trial court vide its judgment and decree dated 24.12.2018 dismissed the suit of the plaintiff.

Feeling dissatisfied by the judgment and decree, dated 24.12.2018, plaintiff/appellant preferred an appeal before the learned first appellate Court on 03.01.2019, which came to be dismissed vide judgment and decree dated 15.09.2022.

Still feeling aggrieved by the aforesaid judgments and decrees, the plaintiff/appellant has preferred the present regular second appeal.

With the consent of the parties, the instant appeal is finally heard at admission stage on the following substantial question of law:- Whether the impugned judgments and decrees are the result of complete misreading, interpretation as well as mis-appreciation of law laid down by the Hon’ble Apex Court?

It is contended by Mr. Sanket Sankhyan, learned counsel for the plaintiff/appellant that the impugned judgments and decrees, as passed by the learned courts below, are erroneous and thus, liable to be quashed and set aside. He has submitted that the learned Courts below have not appreciated the real point of controversy and have mis- interpreted and mis-construed the oral as well as documentary evidence, as a result of which, great prejudice has been caused to the plaintiff. He has contended that the suit filed by the plaintiff is very much within period of limitation and findings as rendered by the learned Courts below to this effect are contrary to the provisions of law. He has further submitted that the plaintiff has been able to establish that being legal heir of late Balbir Singh, she is entitled for ½ share of the suit land along with Tulsi Ram and the entries which have been incorporated in favour of defendants are illegal, wrong, null and void and not binding on the rights of the plaintiff. He has submitted that after accepting the instant appeal, the suit as filed by the plaintiff, deserves to be decreed.

On the other hand, Mr. Vinod Thakur, learned counsel for respondents No. 1 to 3, has defended the impugned judgments and decrees as passed by the learned courts below. He has submitted that the learned Courts below after taking into consideration the oral as well as documentary evidence have righty come to the conclusion that the suit, as instituted by the plaintiff, is hopelessly time barred and she has got no right, title or interest qua the share of the defendants over the suit land. He has submitted

that this Court while invoking provisions of Section 100 of CPC will not interfere with the concurrent findings of fact, as rendered by the learned Courts below and, thus, prayed for dismissal of the instant appeal.

I have heard the learned counsel for the parties and have also gone through the material available on the case file.

The plaintiff/appellant had approached the learned trial court primarily on the ground that the mutation No.185, attested on 13.4.1987 B.K. qua the suit land to the extent of 1/3rd share in the name of Udham Singh is wrong and illegal as the same was not based on any order of competent court of law and was without jurisdiction as the suit land could only be transferred by way of registered sale deed, gift deed etc. As per the plaintiff, being real successor of late Balbir Singh, she along with proforma defendants is entitled to get the estate of Hari Singh in equal shares along with Tulsi Ram instead of 1/3rd share. The defendants never remained in actual physical possession of the suit land and they started threatening the plaintiff that they would raise construction over the suit land and cut valuable trees standing thereon. Since late Sh. Hari Singh was granted land by the then King vide file No.62/1976 Bikrami on 11 Ashad Samwat 1976 on payment of Rs.126 and 13 Annas i.e. Rs.125 and 12 Anna as Najrana and Rs.1 and 1 Anna as Muphad and after delivery of possession of suit land and after his death, it is his sons Tulsi Ram and Balbir Singh, who are entitled to inherit the suit land in equal shares.

It is the case of the plaintiff that after death of Balbir Singh, who had executed a registered will in favour of the plaintiff and necessary mutation was also attested, she is entitled to be declared as owner to the extent of ½ share of the suit land.

The said fact has been specifically and vehemently refuted by the defendants in their written statement. It is the case of the defendants that the suit is hopelessly time barred as mutation No. 185 Ext. PW1/X-I was attested in the year 1929 in favour of Udham Singh. Therefore, the suit which has been filed after elapse of about 80 years is hopelessly time barred. It is the case of the defendants that the mutation, which was attested, categorically reveals and shows that the suit land to the extent of 1/3rd share was transferred by Hari Singh in favour of Udham Singh. It is further case of the defendants that even if it is presumed that on the basis of the Will, necessary mutation was attested in favour of the plaintiff on 28.10.1999, even then, the suit has been filed after elapse of more than 11 years.

Perusal of the revenue entries clearly show that vide mutation No. 185, Ext. PW1/X-1, Udham Singh was conferred ownership of the suit land to the extent of 1/3rd share which was owned by late Hari singh and mutation was attested in the year 1929. Neither Hari Singh or for that matter nor Tulsi Ram or Balbir Singh ever challenged the said mutation, which was attested in favour of Udham Singh. Even son of late Balbir Singh did not challenge the said mutation and it is only daughter-in-law of Balbir Singh, who has come forward to file suit challenging share of the respective parties.

It is the case of the plaintiff that the suit land, which was owned by Hari singh has to be apportioned between Tulsi Ram and Balbir Singh in equal shares i.e. ½th share each.

From the records, it is clear that since 1929 till 2011 no steps were taken either by Tulsi Ram or Balbir Singh or their sons to challenge the said mutation. As rightly held by the learned Courts below, the suit is hopelessly time barred. Even otherwise mutation was attested in favour of the plaintiff on 28.10.1999, whereas the limitation to challenge the mutation attested in the year 1929 was three years, therefore, at the most, the plaintiff could have assailed the said mutation within three years after execution and attestation of the Will in her favour, however she has failed to do so for more than 11 years, therefore, the findings as rendered by the Courts below on the point of limitation are legally valid and do not call for any interference.

As regards second submission of learned counsel for the appellant that since the land was transferred in the name of Udham Singh vide mutation No.185 as per Section 17 of the Registration Act, izadinama, if any, was required to be registered as per the provisions of the said Act, it would be noticed that on the basis of izadinama, 1/3rd share was transferred in the name of Udham Singh by attesting mutation in the year 1929. Admittedly prior to December 1970, provisions of Transfer of Property Act were not applicable in the State of Himachal Pradesh. In view of the fact that the plaintiff has failed to establish and corroborate that at the time when mutation, Ext. PW1/X-1 was attested and 1/3rd share was transferred to Udham Singh, value of the suit land was more than Rs. 100/-.

It has come on record that late Hari Singh was granted land by the then King for a total sum of Rs.125/-. Even if, the case of the plaintiff has to be accepted, since value of the entire suit land was more than Rs. 100/-, therefore, izadinama, if any, was required to be registered under the provisions of Registration Act, however, the plaintiff has failed to establish that value of 1/3rd share which was transferred in favour of Udham Singh was more than Rs.100/-.

The plaintiff/appellant has not been able to establish the said fact, therefore said contention as raised by the learned counsel for the appellant does not hold good and needs rejection.

This Court is of the considered opinion that the learned Courts below have rightly determined and adjudicated the point in controversy and since there are concurrent findings of fact, as rendered by the learned Courts below, therefore, this Court is in agreement with the same.

The Hon’ble Supreme Court in catena of judgments has held that the first appellate court is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 of CPC can interfere with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand.

The Hon’ble Supreme Court while dealing with scope of interference under Section 100 of CPC in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under: “18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

" 19. 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 of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach

is not permissible. The High Court will, however, interfere where 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 by ignoring material evidence.

20. to 22 xx xx xx xx

23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving 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 court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

The Hon’ble Supreme Court in Annamalai vs. Vasanthi, 2025 INSC 1267, has held as follows:- “16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here.

17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A-

2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction.

18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfil his obligation and accept performance when the time for performance arrives.”

No other point was urged by the learned counsel for the parties.

Both the Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record and this Court does not find any illegality or perversity in the impugned judgments and decrees, as concurrently passed by the learned Courts below, and the same are upheld. The substantial question of law is answered accordingly.

31 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.

31st July, 2026

(Romesh Verma) (pankaj)

Judge