# Shantisaran & Ors v. Sadiq Hasan @ Nibbar & Ors

- **Citation:** (2022) 6 ILRA 1180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-06
- **Case number:** Second Appeal No. 169 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shantisaran-ors-v-sadiq-hasan-nibbar-ors-48640
- **Pages:** 9

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Section 100 - Scope - Interference
when permissible - second appeal would
be
maintainable
only
on
substantial
question of law & it does not lie on
question of facts or of law - existence of
"a substantial question of law" is a sine
qua non for the exercise of the jurisdiction
under Section 100 CPC - There are two
situations in which interference with
findings of fact is permissible - first one is
when material or relevant evidence is not
considered which, if considered, would
have led to an opposite conclusion -
second situation is where a finding has
been arrived at by placing reliance on
inadmissible evidence which if it was
omitted, an opposite conclusion was
possible. In either of the above situations,
a substantial question of law can arise
(Para 26)

B. Civil Law - Adverse Possession - for
claiming title on the basis of adverse
possession, it should be nec vi vec, nec
precario, i.e., the possession adverse to
the competitor - Whatever may be the
intention of a person acquiring title by
adverse
possession,
his
adverse
possession cannot commence unless he
obtains required possession with animus -
claim of adverse possession being a
hostile assertion involving expressly or
impliedly a denial of title of the real
owner, the burden is always on the person
who asserts such a claim to prove by clear
and
unequivocal
evidence
that
his
possession was hostile to the real owner
(Para 23)

C. Civil Law - Evidence - civil suit - Burden
of proof - initial burden of proof lies on the
plaintiff to prove his claim, but when the
plaintiff has discharged his burden by
proving that his ownership and possession
of the land, the onus shifts on the
defendant to prove his possession and
how he acquired it - when both the parties
have led evidence, the question of burden
of proof poses its importance and logical
conclusion can be drawn on the basis of
the entire evidence placed on record by
both the parties (Para 25)

Suit for permanent Injunction - Plaintiff averred
that
taking
advantage
of
his
absence,
defendants were trying to interfere in his
possession - defendant pleaded that the plaintiff
had not been residing in the village for the past
about 50 years - the site came in possession of
the answering defendants & that they were in
possession of the land in dispute - Appellate
court
framed
the
issue
as
to
whether
defendants proved their right over the land in
dispute through adverse possession? - first
appellate court recorded a finding that the
disputed land was in use and possession of the
plaintiff till time he shifted to Balrampur City -
possession of the defendants in absence of the
plaintiff casually and occasionally cannot be
6 All. Shantisaran & Ors. Vs. Sadiq Hasan @ Nibbar & Ors.
1181
recognized as adverse to plaintiff due to want of
his knowledge - it is not defendants case that
they entered into possession of the land in a
hostile manner in the knowledge of the plaintiff
- defendants failed to plead and prove as to
when did they enter into possession of the land
and what was the nature of their possession -
defendants failed to prove by clear and
unequivocal evidence that their possession is
hostile to real owner, i.e. plaintiff - Held -
findings of the First Appellate Court are based
upon a thorough and proper examination and
scrutiny of the entire evidence available on
record and same cannot said to be perverse, so
as to warrant interference under Section 100 of
the Civil Procedure Code (Para 17, 18, 21, 25)

Dismissed. (E-5)

List of Cases cited:

## Text

1180 INDIAN LAW REPORTS ALLAHABAD SERIES
to her and she is a destitute and has no
source of income and therefore she is
entitled to get the maintenance from the
husband.

19. In view of the forgoing
discussion, the Criminal Revision No. 176
of 2012 filed by the husband/Narendra
Kumar is dismissed.
----------
(2022)06ILR A1180
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.06.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Second Appeal No. 169 of 2022

Shantisaran & Ors. ...Appellants
Versus
Sadiq Hasan @ Nibbar & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Dinesh Kumar Mishra, Sri Dinesh Kr.
Chaudhary

Counsel for the Respondents:
Sri A.Z. Siddiqui

A. Civil Law - Code of Civil Procedure,
1908 - Section 100 - Scope - Interference
when permissible - second appeal would
be
maintainable
only
on
substantial
question of law & it does not lie on
question of facts or of law - existence of
"a substantial question of law" is a sine
qua non for the exercise of the jurisdiction
under Section 100 CPC - There are two
situations in which interference with
findings of fact is permissible - first one is
when material or relevant evidence is not
considered which, if considered, would
have led to an opposite conclusion -
second situation is where a finding has
been arrived at by placing reliance on
inadmissible evidence which if it was
omitted, an opposite conclusion was
possible. In either of the above situations,
a substantial question of law can arise
(Para 26)

B. Civil Law - Adverse Possession - for
claiming title on the basis of adverse
possession, it should be nec vi vec, nec
precario, i.e., the possession adverse to
the competitor - Whatever may be the
intention of a person acquiring title by
adverse
possession,
his
adverse
possession cannot commence unless he
obtains required possession with animus -
claim of adverse possession being a
hostile assertion involving expressly or
impliedly a denial of title of the real
owner, the burden is always on the person
who asserts such a claim to prove by clear
and
unequivocal
evidence
that
his
possession was hostile to the real owner
(Para 23)

C. Civil Law - Evidence - civil suit - Burden
of proof - initial burden of proof lies on the
plaintiff to prove his claim, but when the
plaintiff has discharged his burden by
proving that his ownership and possession
of the land, the onus shifts on the
defendant to prove his possession and
how he acquired it - when both the parties
have led evidence, the question of burden
of proof poses its importance and logical
conclusion can be drawn on the basis of
the entire evidence placed on record by
both the parties (Para 25)

Suit for permanent Injunction - Plaintiff averred
that
taking
advantage
of
his
absence,
defendants were trying to interfere in his
possession - defendant pleaded that the plaintiff
had not been residing in the village for the past
about 50 years - the site came in possession of
the answering defendants & that they were in
possession of the land in dispute - Appellate
court
framed
the
issue
as
to
whether
defendants proved their right over the land in
dispute through adverse possession? - first
appellate court recorded a finding that the
disputed land was in use and possession of the
plaintiff till time he shifted to Balrampur City -
possession of the defendants in absence of the
plaintiff casually and occasionally cannot be
6 All. Shantisaran & Ors. Vs. Sadiq Hasan @ Nibbar & Ors.
1181
recognized as adverse to plaintiff due to want of
his knowledge - it is not defendants case that
they entered into possession of the land in a
hostile manner in the knowledge of the plaintiff
- defendants failed to plead and prove as to
when did they enter into possession of the land
and what was the nature of their possession -
defendants failed to prove by clear and
unequivocal evidence that their possession is
hostile to real owner, i.e. plaintiff - Held -
findings of the First Appellate Court are based
upon a thorough and proper examination and
scrutiny of the entire evidence available on
record and same cannot said to be perverse, so
as to warrant interference under Section 100 of
the Civil Procedure Code (Para 17, 18, 21, 25)

Dismissed. (E-5)

List of Cases cited:

1. P. Lakshmi Reddy Vs L. Lakshmi Reddy, AIR
1957 314

2. Annasaheb Bapusaheb Patil & ors. Vs Balwant
@ Babasaheb Patil (dead) by L.Rs. Etc., AIR
1995 SC 895

3. Vishwanath Bapurao Sabale Vs Shalinibai
Nagappa Sabale & ors., (2009) 12 SCC 101

4. S. Subramanian Vs S. Ramasamy, (2019) 6
SCC 46

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Dinesh Kumar Mishra,
Advocate, the learned counsel for the
appellants and Sri A.Z. Siddiqui, Advocate
who has filed a caveat on behalf of the
plaintiff - respondent no. 1.

2. By means of instant second appeal
filed under Section 100 of the Code of
Civil Procedure, the appellants have
challenged the validity of the judgment and
decree dated 30.04.2022 passed by the
learned District Judge, Balrampur in Civil
Appeal No. 19 of 2018 filed under Section
96 of the Code, whereby the first appeal
filed against the judgment and decree dated
24.07.2018 passed by the learned Civil
Judge (Junior Division), Balrampur in
Regular Suit No. 98 of 1987, has been
allowed and the judgment and decree of
dismissal of suit passed by the learned trial
court has been set aside and reversed and
the suit has been decreed.

3. The aforesaid suit had been filed by
Late Amir Hasan, the predecessor in
interest of the respondent no. 1 and 2,
pleading that the house and other structures
existing on the land shown in the map
forming a part of the plaint belong to the
plaintiffs and the remains of the structures
are still lying on the aforesaid land, which
is an abadi land and the land continues to
be in possession of the plaintiff. Some
Bamboo, Mango, Shisham and Neem trees
had also been planted on the aforesaid land
by the plaintiff, which are still existing
thereon. Three huts were existing on the
land in dispute, which were being used by
the plaintiff's father and were in his
possession. The defendants cut down and
sold away some bamboos from the
plaintiff's land and the plaintiff had lodged
a first information report in police station-
Maharajganj
complaining
about
the
aforesaid offence. At the time of filing of
the suit the plaintiff was aged about 90
years and he used to reside in the
Balrampur City and he used to visit the
land in question occasionally. Taking
advantage of the plaintiff's absence, the
defendants were trying to interfere in the
possession of the plaintiff over the land in
question and for this reason he filed a suit
claiming permanent injunction.

4. The defendant nos. 3, 5 to 12 and
14 filed a written statement, inter alia,
stating that the description of the land in
question given at the foot of the plaint is
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
not correct and the defendants gave a site
plan of the land in question, which
according to them was correct. They
pleaded that the plaintiff had not been
residing in the village for the past about 50
years. When he used to reside in the
village, a hut of the plaintiff existed on the
land in question and when he started
cultivation through other persons his hut
also fell down and the site thereof came in
possession of the answering defendants.
The defendants stated that they were in
possession of the land in dispute, therefore,
the suit for permanent injunction was not
maintainable.

5. During pendency of the suit, the
plaintiff Amir Hasan died and his sons - the
Respondents no. 1 and 2 in this Second
Appeal, were substituted as plaintiffs in his
place.

6. The following issues had been
framed by the learned trial Court: -

1- Whether the plaintiff is the
owner and in possession of the land in
dispute, if yes, then whether the plaintiff is
entitled to get the decree of perpetual
injunction as

2- Whether the trees etc. existing
on the land in disputed had been planted by
the plaintiff, if yes, then its effect?

3- Whether the plaintiff is entitled
to any other relief?

7. The plaintiff as well as the
defendants had led evidence and after
considering the entire evidence placed by
the parties, the learned Civil Judge (Junior
Division), Balrampur decided the suit
holding that the plaintiffs could not prove
their possession and ownership over the
land in dispute. The plaint does not
mention any boundaries of the land in
question and the land cannot be identified
by its description given in the plaint. The
learned Civil Judge (Junior Division),
Balrampur dismissed the suit filed by the
plaintiffs for the aforesaid reasons.

8.

The
substituted
plaintiffs
challenged the aforesaid judgment and
decree dated 24.07.2018 by filing an appeal
under Section 96 of the Civil Procedure
Code in the court of the learned District
Judge, Balrampur and the aforesaid appeal
has been allowed by means of the judgment
and decree dated 30.04.2022. The aforesaid
judgment and decree dated 30-04-2022 has
been challenged by the instant second
appeal only the defendant no. 2, 6/1 and 14
and rest of the defendants have been
arrayed as proforma respondents in the
Second Appeal.

9. While deciding the first appeal, the
learned
appellate
court
framed
the
following two points for determination in
the appeal: -

(i) Whether the disputed land is
owned and possessed by the plaintiff?

(ii) Whether the defendants have
proved their right over the land in dispute
through adverse possession?

10. The learned District Judge has
held that the plaintiff has stated that the
disputed land is owned and possessed by
the plaintiff, the construction existing on
the land were raised by the plaintiff and
that he had planted the trees and bamboos
on the said land. The defendants pleaded
that the plaintiff was in possession over the
land about 50 years ago and hut of the
plaintiff existed there but the same has been
destroyed and the land in question came
6 All. Shantisaran & Ors. Vs. Sadiq Hasan @ Nibbar & Ors.
1183
into possession of the defendants. The trees
and bamboos existing on the land have
been claimed to be planted by the
defendants.

11. After examining the statement of
the witnesses, the learned Appellate Court
held that all the witnesses examined on
behalf of the plaintiff, namely, P.W.1 Jamal
Ahmad,
P.W.2
Sadiq
Hasan,
P.W.3
Ramhet, P.W.4 Mohammad Ali, P.W.5
Shamshulla and P.W.6 Sagir Ahmad had
supported the plaint version and all of them
have specifically stated that the disputed
land along with construction and trees
existing over it, is owned and possessed by
the plaintiff. No material contradiction
arose during examination of the plaintiff's
witnesses. The learned First Appellate
Court further observed that the defendants'
witnesses, namely, D.W. 1, Shanti Saran
(the Appellant No. 1 in the Second Appeal)
in para 4 D.W. 2 Ganga Prasad in para 5,
D.W. 3 Rajendra Prasad in para 4 and 5,
D.W. 4 Nanake in para 7 and D.W. 5 Salik
Ram in paras 4 and 5 of their respective
affidavits filed as their examination-inchief, had categorically stated that the hut
on the land in question had been
constructed
by
the
plaintiff
and
subsequently the plaintiff left the village
and started cultivation on his field through
other persons.

12. The learned court below came to a
conclusion that on the basis of the evidence
led by both the parties, it appears that the
dispute arose because of absence of the
plaintiff from the village for a long period
of time through which period the plaintiff
used to visit the village casually and
occasionally while residing at Balrampur
City. In such circumstances, the land in
dispute would have been used by the
defendants casually and occasionally in
absence of the plaintiff or his legal
representatives/ successors after his demise.
The First Appellate Court has recorded in
the judgment under challenge that D.W. 4,
Nanake has stated in his cross examination
that he has been told by his father that the
disputed land / property was owned and
possessed by the plaintiff, Late Amir Hasan
during his life time and the cowshed etc.
existing on the said land was constructed
by him.

13. The learned First Appellate Court
has held that the law is well settled that
when the both the parties have led
evidence, the burden to proof looses its
significance, the court has to draw a
conclusion on the basis of the entire
evidence placed on record by both the
parties. The evidence adduced by both the
parties is sufficient to prove that the
disputed land was in use and possession of
the plaintiff till the time he shifted to
Balrampur City.

14. The learned court below held that
lodging of first information report by the
plaintiff in the year 1987 regarding theft of
bamboo planted on the land in dispute
shows that the plaintiff had reacted against
the interference by the defendants upon his
land and that possession of the defendants
in absence of the plaintiff casually and
occasionally cannot be recognized as
adverse to plaintiff due to want of his
knowledge. The defendants have failed to
prove by clear and unequivocal evidence
that their possession is hostile to real
owner, i.e. plaintiff.

15. The learned court below held that
the trial court has failed to appreciate the
evidence of the parties correctly and it had
dismissed the suit filed by the plaintiff
wrongly and that the suit deserves to be
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
decreed, as the plaintiff's possession and
ownership over the disputed land has been
established by the evidence available on the
record. The learned first Appellate Court
allowed the appeal and decreed the suit on
the basis of the aforesaid findings.

16. Assailing the correctness of the
aforesaid judgment and decree passed by
the learned First Appellate Court, Sri.
Dinesh Kumar Mishra, the learned counsel
for the defendant - appellants, has firstly
submitted that the judgment of the learned
First Appellate Court is not sustainable in
the eyes of law for the reason that the First
Appellate Court has given its own finding
of facts without setting aside the finding
recorded by the learned trial court.

17. It is settled law that the powers of
First Appellate Court are co-extensive with
that of the trial court while deciding the
suit. A perusal of the judgment passed by
the first appellate court indicates that the
court has formulated two point for
determination - (1) whether the disputed
land is owned and possessed by the
plaintiff and (2) whether the defendants
have proved their right over the land in
dispute through adverse possession. The
first Appellate Court has proceeded to
examine the entire evidence available on
record and after examination of the entire
evidence, the learned first appellate court
has came to a conclusion that the learned
trial court has failed to appreciate the
evidence led by the parties correctly and
has wrongly dismissed the suit filed by the
plaintiff. The first appellate court has
recorded a finding that the disputed land
was in use and possession of the plaintiff
till time he shifted to Balrampur City and
use of the land by the defendants in
absence of the plaintiff cannot be treated as
hostile possession of the defendants and it
may not be recognized as possession
adverse to the plaintiff due to want of his
knowledge.

18. While deciding the issue no. 1 as
to whether the plaintiff is owner and in
possession of the land in dispute, the
learned trial court had held that the plaintiff
could not prove his possession and
ownership on the land in dispute, which
had not been sufficiently described in the
plaint. After examining the entire evidence
available on record, the learned first
Appellate Court held that the trial court has
failed to appreciate evidence of the parties
correctly and that the evidence adduced by
the parties is sufficient to prove that the
disputed land was in regular use and
occupation of the plaintiff till he shifted to
Balrampur City and that the defendants
could not prove their title by adverse
possession, and thus the learned First
Appellate Court has in fact reversed the
finding of the learned trial court and
therefore, there is no force in the
submission of the learned Counsel for the
appellants that the learned first Appellate
Court has allowed the appeal without
reversing the finding of the facts recorded
by the trial court and it does not give rise to
any substantial question of law.

19. The second submission of the
learned counsel for the appellants is that the
first Appellate Court has erred in law in
allowing the appeal only on the basis of the
statement of D.W. 4, Nanake, without
considering the evidence of the plaintiff's
witnesses, who were four in number.

20. As has already been observed that
in the preceding paragraphs, the learned
First Appellate Court had referred to the
statements of the witnesses of the plaintiff,
namely, P.W. 1 Jamal Ahmad, P.W. 2
6 All. Shantisaran & Ors. Vs. Sadiq Hasan @ Nibbar & Ors.
1185
Sadiq Hasan, P.W. 3 Ramhet, P.W. 4
Mohammad Ali, P.W. 5 Shamshulla and
P.W. 6 Sagir Ahmad and has also referred
to
the
specific
paragraphs
of
the
examination in chief of the defendants'
witnesses, namely, D.W. 1 Shanti Saran,
D.W. 2 Ganga Prasad, D.W. 3 Rajendra
Prasad, D.W. 4 Nanake and D.W. 5 Salik
Ram and all of them had stated that they
had been informed by their ancestors
regarding the hut constructed by the
plaintiff Amir Hasan prior to 70-80 years.
Therefore, I find myself unable to accept
the submission of learned counsel for the
appellants that the judgment of the learned
first appellate court is based only on the
statements of D.W. 4 Nanake.

21. The learned counsel for the
appellants next submitted that the First
Appellate Court erred in law in allowing
the appeal without deciding the point of
possession of contesting respondents /
plaintiffs. However, as has been noticed in
the previous paragraphs of this judgment,
the learned First Appellate Court has
thoroughly examined the statements of the
witnesses produced by the plaintiff as well
as by the defendants and after examining
the entire evidence available on record, it
has held that the disputed land was in
regular use and occupation of the plaintiff
till he shifted to Balrampur City and
occasional use of the land in question by
the defendants cannot be treated as hostile
possession of the defendants and that the
plaintiff was in possession of the land in
dispute and the defendants could not show
that they dispossessed the plaintiff and
entered into the possession of land in
dispute.

22. The defendants pleaded that the
land
in
question
was
originally
in
possession of the plaintiff and when he
started living in Balrampur City, the land
came into possession of the defendants, but
they did not plead as to how this transfer of
possession took place. It is not the case of
the defendants that the plaintiff had handed
over possession of the land to the
defendants and it is also not their case that
they entered into possession of the land in a
hostile manner in the knowledge of the
plaintiff. Therefore, the defendants have
not set up a case of adverse possession also.

23. The learned first Appellate Court
has relied upon the decisions of the Hon'ble
Supreme Court in P. Lakshmi Reddy
versus L. Lakshmi Reddy, AIR 1957 314
wherein it was laid down that for claiming
title on the basis of adverse possession, it
should be nec vi vec, nec precario, i.e., the
possession adverse to the competitor.
Whatever may be the intention of a person
acquiring title by adverse possession, his
adverse possession can not commence
unless he obtains required possession with
animus.. The learned first Appellate Court
also relied upon Annasaheb Bapusaheb
Patil and others versus Balwant alias
Babasaheb Patil (dead) by L.Rs. Etc.,
AIR 1995 SC 895, in which it was held
that the claim of adverse possession being a
hostile assertion involving expressly or
impliedly a denial of title of the real owner,
the burden is always on the person who
asserts such a claim to prove by cledar and
unequivocal evidence that his possession
was hostile to the real owner.

24. In Vishwanath Bapurao Sabale
versus Shalinibai Nagappa Sabale and
others, (2009) 12 SCC 101, the Hon'ble
Supreme Court held that: -

"20. ... Once he proved his title
the
onus
was
on
Laxmibai
and
consequently upon the appellant to prove
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
that they started possessing adversely to
the interest of Shivappa. For the purpose of
arriving at a finding as to whether the
appellant and Laxmibai perfected their title
by adverse possession, the relationship of
the parties may have to be taken into
consideration.

* * *

23. Furthermore for claiming title
by adverse possession, it was necessary for
the plaintiff to plead and prove animus
possidendi.
A
peaceful,
open
and
continuous
possession
being
the
ingredients of the principle of adverse
possession as contained in the maxim nec
vi, nec clam, nec precario, long possession
by itself would not be sufficient to prove
adverse possession.

24. In P.T. Munichikkanna Reddy
v. Revamma (2007) 6 SCC 23, this Court
held: (SCC pp. 71-72, para 23)

"23. It is important to appreciate
the question of intention as it would have
appeared to the paper-owner. The issue is
that intention of the adverse user gets
communicated to the paper-owner of the
property. This is where the law gives
importance to hostility and openness as
pertinent qualities of manner of possession.
It follows that the possession of the adverse
possessor must be hostile enough to give
rise to a reasonable notice and opportunity
to the paper-owner."

(emphasis in original)"

25. The learned first Appellate Court
has held that the law is settled that when
both the parties have led evidence, the
question of burden of proof poses its
importance and logical conclusion can be
drawn on the basis of the entire evidence.
The law in this regard is that the initial
burden of proof lies on the plaintiff to
prove his claim, but when the plaintiff has
discharged his burden by proving that his
ownership and possession of the land, the
onus shifts on the defendant to prove his
possession and how he acquired it. In the
present case, the plaintiff's witnesses as
well as those of the defendants. had stated
that
originally
the
plaintiff
was
in
possession of the land. Although the
defendant / appellant had disputed the
plaintiff's claim, they failed to plead and
prove as to when did they enter into
possession of the land and what was the
nature of their possession. In these
circumstances, the suit was rightly decreed
by the learned first Appellate Court and
there is no illegality in it.

26. The scope of interference in a
Second Appeal is well settled and it has
been reiterated by the Hon'ble Supreme
Court
in
S.
Subramanian
v.
S.
Ramasamy, (2019) 6 SCC 46 in the
following words: -

"7.3. As per a catena of the
decisions of this Court, while deciding the
second appeal under Section 100 CPC, the
High Court is not required to reappreciate
the entire evidence on record and to come
to its own conclusion and the High Court
cannot set aside the findings of facts
recorded by both the courts below when the
findings recorded by both the courts below
were on appreciation of evidence. That is
exactly what is done by the High Court in
the present case while deciding the second
appeals, which is not permissible under the
law.

7.4.
Even
otherwise,
it
is
required to be noted that as per a catena
6 All. Shantisaran & Ors. Vs. Sadiq Hasan @ Nibbar & Ors.
1187
of the decisions of this Court and even as
provided under Section 100 CPC, the
second appeal would be maintainable only
on substantial question of law. The second
appeal does not lie on question of facts or
of law. The existence of "a substantial
question of law" is a sine qua non for the
exercise of the jurisdiction under Section
100 CPC. As observed and held by this
Court in Kondiba Dagadu Kadam3, in a
second appeal under Section 100 CPC, the
High Court cannot substitute its own
opinion for that of the first appellate
court, unless it finds that the conclusions
drawn by the lower court were erroneous
being:

(i) Contrary to the mandatory
provisions of the applicable law;

OR

(ii) Contrary to the law as
pronounced by the Apex Court;

OR

(iii)
Based
on
inadmissible
evidence or no evidence.

It is further observed by this
Court in the aforesaid decision that if the
first appellate court has exercised its
discretion in a judicial manner, its
decision cannot be recorded as suffering
from an error either of law or of
procedure
requiring
interference
in
second appeal. It is further observed that
the trial court could have decided
differently is not a question of law
justifying interference in second appeal.

7.5. When a substantial question
of law can be said to have arisen, has
been dealt with and considered by this
Court in Ishwar Dass Jain4. In the
aforesaid
decision,
this
Court
has
specifically observed and held: (SCC p.
437)

"Under Section 100 CPC, after
the 1976 Amendment, it is essential for the
High Court to formulate a substantial
question of law and it is not permissible to
reverse the judgment of the first appellate
court without doing so. There are two
situations in which interference with
findings of fact is permissible. The first
one is when material or relevant evidence
is not considered which, if considered,
would have led to an opposite conclusion.
The second situation in which interference
with findings of fact is permissible is
where a finding has been arrived at by the
appellate court by placing reliance on
inadmissible evidence which if it was
omitted, an opposite conclusion was
possible. In either of the above situations,
a substantial question of law can arise."

27. The findings of the learned First
Appellate Court are based upon a thorough
and proper examination and scrutiny of the
entire evidence available on record and, in
any case, the same cannot said to be
perverse, so as to warrant interference by
this Court in exercise of its powers under
Section 100 of the Civil Procedure Code.
All the submissions made by the learned
Counsel for the defendants / appellants do
not give rise to any substantial question of
law. I find no good ground for admission
of the appeal.

28. Accordingly, the second appeal is
dismissed at the admission stage.

29. However, there will be no order
as to costs.
----------
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)06ILR A1188
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.06.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Second Appeal No. 470 of 2003

Jagdish Narain Tandon ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Manoj Misra, Sri Anjani Kumar Mishra,
Sri Ashwani K. Mishra, Sri O.P. Lohia, Sri
Raghuvansh Misra, Sri Rahul Agarwal, Sri
Vageesh Pandey, Sri Vrindavan Mishra

Counsel for the Respondents:
S.C., Sri Narendra Mohan, Sri Anil Sharma
(Senior Adv.), Sri R.M. Saggi, Sri P.K. Giri
(Addl. C.S.C.)

A. Civil Law - Indian Trust Act, 1882 -
Charitable and Religious Trusts Act, 1920 -
Charitable
Endowment
Act,
1890
-
'Tandon Trust' created in the memory of
the grandparents of the Authors of the
Trust - By judicial order, High court held
that the 'Tandon Trust' was not a
charitable and religious trust - there was
no
element
of
charity in
the
deed
created/executed by the Author of the
Trust - thus the provisions of Charitable
and
Endowments
Act,
1890
&
and
Charitable and Religious Trusts Act, 1920
not applicable - Notification of 1972 will
have no bearing upon the status of the
trust - judicial order of High Court will
prevail
over
the
Administrative
Notification issued by the State - Once,
the declaration was there, neither the
defendants nor the Courts below had the
right to disregard it (Para 61, 62, 64, 65)

B. Civil Law - 'Judgment in rem', meaning
of - judgment in personam refers to a
judgment
against
a
person
as
distinguished judgment against a thing,
right or status and judgment in rem refers
to judgment that determines the status or
conditions of property which operates
directly
on
the
property
itself
-
A
declaration of the status is always in rem
and not in personam - The relief of
declaration is for the world to know about
the status of the person in favour of whom
the declaration has been made - In the
present case, the Court while decreeing
the Suit of K.N. Shivpuri declared the
status of the 'Tandon Trust', not being a
charitable and a religious trust covered
under the Act of 1920 - declaration made
by the Court as to the status of the trust is
to the world at large and not to any
particular party in a suit, as it affects
people at large - judgment rendered in
second
appeal
was
binding
on
the
defendants-respondents even though they
were not the party, as the said judgment
was in rem (51, 52 53, 54, 55)

Allowed. (E-5)

List of Cases cited:

1. Natha Singh & anr. Vs Heet Singh & ors. AIR
1980 All 358

2. Booz-Allen & Hamilton Inc Vs SBI Home
Finance Ltd. & ors. 2011 (5) SCC 532

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Anil Sharma, learned
Senior Counsel, assisted by Sri R.M. Saggi,
learned counsel for the appellant and Sri
P.K.
Giri,
learned
Additional
Chief
Standing Counsel for the respondents.

2. This case has a long chequered
history. A brief narration of the case is
necessary for better appreciation of the
case, which are as under:-

3. On 06th June, 1946, Baijnath
Tandon, Kedarnath Tandon and Rajnath