# Shri Devi Dayal v. Nagar Mahapalika Kanpur

- **Citation:** (2026) 2 ILRA 1222
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-25
- **Case number:** Second Appeal No. 777 of 1981
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-devi-dayal-v-nagar-mahapalika-kanpur-54149
- **Pages:** 7

## Text

1222 INDIAN LAW REPORTS ALLAHABAD SERIES
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(2026) 2 ILRA 1222
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2026

BEFORE

THE HON'BLE SAURABH SHYAM SHAMSHERY, J.

Second Appeal No. 777 of 1981

Shri Devi Dayal ...Appellant
Versus
Nagar Mahapalika Kanpur ...Respondent

Issues for Consideration
(i) Whether the findings of the courts below that the plaintiff was a licencee and thereafter a trespasser, and
not a tenant or asami, suffered from any illegality warranting interference in second appeal under Section 100
CPC;
(ii) Whether the questions framed by the appellant constituted "substantial questions of law" within the
meaning of Section 100 CPC.

Headnotes
Civil Procedure Code, 1908 - Section 100 - Second Appeal - Substantial question of law -
Scope:

Held: A second appeal is maintainable only on a substantial question of law. A question of law must be
debatable, not settled- must have material bearing on the rights of the parties. Questions not arising from
pleadings or based on findings of fact-cannot be treated as substantial questions of law. [Paras 16, 25, 28]

Civil Procedure Code, 1908 - Second Appeal - Concurrent findings of fact - Interference:

Held: The High Court will not interfere with concurrent findings of fact recorded by the courts below unless
such findings are perverse, based on no evidence- suffer from misapplication of law. Where findings are based
on appreciation of evidence, no interference is warranted. [Paras 29]

Property/Tenancy Law - Licencee vis-à-vis tenant - Proof of tenancy:

Held: Mere payment of lagan and production of receipts without any document of lease or tenancy does not
establish tenancy rights. Where possession was initially permissive for a limited period. Such possession is that
of a licencee. Thereafter, if continued, it becomes that of a trespasser. [Paras 4, 26]

Pleadings - Proof - Evidence beyond pleadings:

Held: No evidence can be led beyond pleadings. Where the plaintiff's case was based on tenancy and not on
status as 'asami'. Such plea cannot be subsequently relied upon to claim rights. Findings must be confined to
pleadings. [Paras 25, 27]

Admission - Nature - Order XII Rule 6 CPC:
2 All. Sri Devi Dayal Vs. Nagar Mahapalika Kanpur
1223
Held: An admission must be clear, unequivocal and unconditional to be acted upon. Observations in pleadings
or findings which do not amount to such admission- cannot confer any right upon the plaintiff. [Para 27]

Second Appeal - Re-framing of questions of law - Validity:

Held: Questions framed by the appellant not properly worded- not arising from pleadings or findings of fact-do
not constitute substantial questions of law. Such questions cannot be considered for adjudication in second
appeal. [Paras 12-13, 25]

Civil Procedure Code, 1908 - Second Appeal - Result:

Held: In the absence of any substantial question of law, concurrent findings that the plaintiff was only a
licensee for a limited period, thereafter a trespasser, the second appeal was liable to be dismissed. [Paras 2830]

Second appeal dismissed. (E-14)

Case Law Cited
Chandrabhan (Dead) through LRs v. Saraswati, 2022 SCC OnLine SC 1273 - relied on; Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179 - referred to; Srinivas Raghwendrarao Desai v. V. Kumar
Vamanrao @ Alok, 2024 INSC 165 - relied on; Rabindranath Panigrahi v. Surendra Sahu, 2025 INSC
333 - relied on; Murthy v. C. Saradambal, (2022) 3 SCC 209 - relied on; Hero Vinoth v. Seshammal,
(2006) 5 SCC 545 - relied on.

List of Acts / Statutes
Code of Civil Procedure, 1908; Specific Relief Act, 1963

List of Keywords
Second appeal; Substantial question of law; Concurrent findings; Licencee; Tenant; Trespasser; Lagan
receipts; Pleadings; Admission; Interference.

Case Arising From
Judgment dated 29.05.1976 passed by Trial Court in Suit No. 2154 of 1971 and judgment dated 18.12.1980
passed by Second Additional Civil Judge, Kanpur in Civil Appeal No. 275 of 1976.

Appearance for Parties
For the Appellant: Sri P.D. Kaushik, Sri R.C. Sinha, Sri Yadvesh Yadav
For the Respondents: Sri Lalji Sinha, Sri Ramesh Upadhyay, Sri Shashi Shekhar Mishra

(Delivered by Hon'ble Saurabh Shyam Shamshery, J.)

1. This is a plaintiffs's Second Appeal, filed against the judgment dated 29.5.1976, whereby a
suit filed by him was dismissed and appeal thereof was also rejected by the First Appellate Court
by a judgment dated 18.12.1980.

2. The plaintiffs/appellant has filed a Suit bearing No.2154 of 1971, for permanent injunction
against the defendants nos. 1 and 2 (Respondent nos.1 and 2) restraining them from cutting down
the crops and also from disturbing his possession over the disputed plots.

3. The appellant/plaintiff has set up a case that he was a tenant in the agricultural plots (plots
in suit) of Nagar Mahapalika, Kanpur (defendant no.1), the owner.
1224 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Later on, admittedly, suit land was transferred to Kanpur Development Authority. Plaintiff's
claim was basically based on an averment that suit land was orally given to him as a tenant by
Defendant No.1 for agriculture and his possession continued thereafter for many years and he paid
Lagan also, and receipts thereof were issued, though admittedly except receipts, plaintiffs has not
brought on record any document, such as lease (Patta) that he was the tenant of agricultural plots.

5.Per contra, the defendants have mentioned in their Written Statement that plaintiff was a
licensee for one fasli year and subsequently he was in possession of land in suit as trespasser. Para
14 of Written Statement being relevant is mentioned hereinafter:

14. That the plaintiff is a trespasser and is not entitled to claim any injunction. The
plaintiff has no right to claim any interest over the land in dispute. The suit is barred by section 41
of the Specific relief Act.

6. The learned Trial Court framed 9 issues and issue no.2 being most relevant is mentioned
hereinafter:-

" Whether the plaintiff is the tenant of the plots in suit as alleged by him or whether the
plaintiff is licencee as alleged by the Nagar Palika in paragraph no. 14 of Written Statement"

7. Learned Trial Court vide judgment dated 29.5.1976 dismissed the suit with a cost and
returned a finding that plaintiffs came into possession in the disputed plots with permission of
defendant no.1, for only one year, therefore, plaintiffs' was a licencee of the defendant no.1 and not
a tenant.

8. The plaintiffs/appellant being aggrieved by the judgment dated judgment dated 29.5.1976
filed a First Appeal before Second Additional Civil Judge, Kanpur bearing No.275 of 1976, which
was dismissed vide judgment dated 18.12.1980 and finding returned by learned Trial Court that
plaintiffs/appellants were tenant of defendant was upheld. It was also specifically held that
plaintiffs/appellant does not claim himself to be Sirdar, Bhumidhar or Asami, though it was noted
that in some of the revenue records in regard to some portion of the land in suit, plaintiffs' were
shown as Asami though admittedly it was not the case of the appellant.

9. The best case would be that defendant has given his land in suit as a licencee in the year
1372 Fasli for cultivation for only one year, though a finding returned that plaintiffs could be an
Asami of defendant for one year, but even said rights were not continued. Otherwise, the First
Appellate Court was of the view that such observation would not be sufficient to prove that
plaintiffs became Asami and finally First Appellate Court has declared that plaintiffs' were neither
tenant nor Asami of the land in suit and plaintiffs' possession of disputed land would only be of a
tresspasser.

10. The judgment dated 18.12.1980 passed by the First Appellate Court is under challenge by
way of present Second Appeal Second, filed in the year 1981, i.e., pending for last 45 years.
2 All. Sri Devi Dayal Vs. Nagar Mahapalika Kanpur
1225

11. A co-ordinate Bench of this Court has admitted, the present Second Appeal vide an order
dated 9.9.1981 on substantial questions of law as formulated in paragraph nos.1 and 2 of the
Appendix annexed to the memo of appeal.

12. In above background, Court perused the appendix of Appeal and substantial questions of
law framed at Serial Nos.1 and 2 are reproduced hereinafter:

"SUBSTANTIAL QUESTIONS OF LAW

1. Because admittedly the plaintiff was asami and the learned courts below have
committed material illegality on the face of the record in not decreeing the suit even after
recording the finding that the plaintiff had been conferred asami rights over the plots in dispute by
the defendants themselves.

2. Because the plaintiff's suit should have been decreed on the admissions made by the
defendants themselves and the defendants were stopped from challenging the tenancy rights of the
plaintiff on the facts and circumstances of the present case."

13. Court finds that the word used in the above referred questions of law are not in proper
format, since it starts with the word 'Because' whereas it ought to have started with 'Whether'.

14. Sri R.C.Sinha, learned counsel for the appellants submitted that though above referred
substantial questions of law are not happily worded, still it can be reformulated.

15. None appears on behalf of contesting respondents, therefore, Court proceeds to consider as
to whether above referred substantial questions of law are in fact substantial questions of law or
not.

16. Before I proceed to consider above referred issue, I take note of a judgment passed by
Supreme Court in the case of Chandrabhan (deceased) through Lrs. And others Vs. Saraswati
& ors, 2022 SCC OnLine SC 1273, wherein law in regard to what would be the substantial
question of law for purpose of a Second Appeal was discussed and relevant part of it is reproduced
hereinafter:

"31. 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
circumstances 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
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari [Santosh Hazari
v.Purushottam Tiwari, (2001) 3 SCC 179] .)

32. The principles relating to Section 100 CPC relevant for this case may be summarised
thus:

32.1. An inference of fact from the recitals or contents of a document is a question of fact.
But the legal effect of the terms of a document is a question of law. Construction of a document
involving the application of any principle of law, is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a principle of law in construing a
document, it gives rise to a question of law.

32.2.The High Court should be satisfied that the case involves a substantial question of
law, and not a mere question of law. A question of law having a material bearing on the decision of
the case (that is, a question, answer to which affects the rights of parties to the suit) will be a
substantial question of law, if it is not covered by any specific provisions of law or settled legal
principle emerging from binding precedents and involves a debatable legal issue. A substantial
question of law will also arise in a contrary situation, where the legal position is clear, either on
account of express provisions of law or binding precedents, but the court below has decided the
matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the
substantial question of law arises not because the law is still debatable, but because the decision
rendered on a material question, violates the settled position of law.

32.3.The general rule is that the High Court will not interfere with findings of facts
arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised
exceptions are where (i) the courts below have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no
evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any
case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

33.In this case, it cannot be said that the first appellate court acted on no evidence. The
respondents in their second appeal before the High Court did not advert to any material evidence
that had been ignored by the first appellate court. The respondents also could not show that any
wrong inference had been drawn by the first appellate court from proved facts by applying the law
erroneously.'

17. Original records of this case are before this Court.

18. In the plaint filed by the plaintiffs/appellants, he has claimed himself to be tenant of 'land
in suit' and that Nagar Mahapalika Kanpur was owner and that it was let to plaintiff for agricultural
purpose for yearly Lagan basis.

19. Plaintiff has not placed their case by virtue of letting and payment of Lagan, he became
Asami of land in suit.
2 All. Sri Devi Dayal Vs. Nagar Mahapalika Kanpur
1227

20. In the aforesaid circumstances, Court takes note of Written Statement filed on behalf of
Nagar Mahapalika, Kanpur Nagar i.e. defendant no.1 wherein it was categorically denied that
plaintiffs were tenant of said defendant and in the additional plea it was also stated that suit land
was acquired for development scheme of Kanpur Nagar as per land acquisition award dated
20.4.1946, as such right title and interest of the land in suit exclusively vests with defendant.

21. The defendant has given land in suit as a licenscee in 1372 Fasli for cultivation for only
one year, for which plaintiff/appellant has paid rent, but plaintiff was subsequently in possession of
land in suit in an illegal manner as trespasser.

22. Defendant has not accepted that plaintiffs were Asami in Written Statement.

23. Learned Trial Court has dismissed the suit by returning a specific finding that plaintiffs
were licencee of defendants for one fasli year and thereafter his status was of a trespasser liable to
be evicted.

24. Aforesaid findings were upheld by First Appellate Court, though an issue of Asami was
considered, though said issue was beyond pleadings that plaintiff was Asami only for Fasli Year
1372 and subsequent nature of possession was only trespasser.

25. After taking note of aforesaid concurrent findings returned by learned Trial Court and the
First Appellate Court, questions of law formulated by the appellants and admitted by this Court
could not be considered as substantial questions of law, since plaintiff has never declared himself to
be an Asami. His case was that he was a tenant and has never disputed ownership of defendants,
therefore, it was not a case of admission of defendants that plaintiff was a Asami.

26. It was an observation of First Appellate Court only on basis that defendant has let out land
in suit to plaintiff for a short period of 1372 Fasli and not thereafter. Otherwise also, plaintiff has
not placed on record any document which could be considered as a lease, therefore, only on basis
of Lagan receipts, plaintiff cannot be considered to be a tenant. Their possession at best can be
termed as licencee for a particular period and thereafter his possession was as a trespasser,
therefore, Court finds that above referred two questions of law are not substantial questions of law.

27. It was not a case of admission by defendant that plaintiff was a Asami. It is also well
settled that no evidence could be led beyond pleadings. (See Srinivas Raghwendrarao Desai
(Dead) By Lrs. Vs. V. Kumar Vamanrao @ Alok and Ors. 2024 INSC 165). Otherwise also,
admission if any at behest of defendant is not an 'admission' as required under Order 12 Rule 6
Code of Civil Procedure,1908 as it should be clear, unambiguous, unequivocal and unconditional,
which is not the case in hand and First Appellate Court has dealt with the issue in detail and there is
no illegality that a finding was returned that plaintiff was a licencee only.

28. Court also examined above referred questions of law at the anvil of Chandrabhan (Supra)
and finds that above referred two questions of law are not substantial questions of law, which could
be considered in present second appeals.
1228 INDIAN LAW REPORTS ALLAHABAD SERIES

29. Court also takes note of a judgment passed by Supreme Court in the case of
Rabindranath Panigrahi Vs. Surendra Sahu, 2025 INSC 333, and is of view that in the facts
and circumstances of present case, no circumstances exist to overturn concurrent findings returned
by learned Trial Court as well as by First Appellate Court (also see Murthy & Ors. Vs. C.
Saradambal & Ors, (2022) 3 SCC 209 and Hero Vinoth (Minor) Vs. Sheshammal, 2006 (5)
SCC 545 ).

30. Present Second Appeal is accordingly dismissed. Interim order, if any, stands vacated.
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(2026) 2 ILRA 1228
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 934 of 2025

Irfan Quraishi ...Appellant
Versus
U.P. State Industrial Development Authority Ltd. & Anr. ...Respondents

Issue for Consideration
Matter pertains to whether the trial court was justified in rejecting the plaint at the threshold under O. VII R.
11 CPC on the grounds of absence of cause of action, bar of law, and insufficiency of court fees, based solely
on the averments contained in the plaint.

Headnotes
Code of Civil Procedure, 1908 - ss. 80, 96, O. 7 R. 11, O. 39 R. 1, 2, O. 41 R. 11 - Specific Relief
Act, 1963 - ss. 38, 41 - Registration Act, 1908 - ss. 17, 49 - Rejection of plaint - Oral Agreement -
Immovable property - Insufficient court fees - Barred under Law - Maintainability - The plaintiff -
appellant instituted a civil suit seeking reliefs of permanent injunction to protect his alleged
possession over the disputed industrial plot and mandatory injunction directing defendant No.2
to complete formalities for execution of sale deed in his favour, asserting that he had entered
into an oral agreement with the predecessor-in-interest (father of defendant No.2) for purchase
of the property for a consideration of ₹70 lakhs, out of which substantial amounts were allegedly
paid partly through demand drafts and partly in cash, and that possession was delivered to him
in part performance, however, after the death of the original owner, the defendant, despite
assurances, refused to execute the sale deed, leading to institution of the suit, which was
opposed by the defendants through an application under O. VII R. 11 CPC contending inter alia
absence of any written agreement, lack of cause of action, bar of law, non-joinder of necessary
parties, and insufficiency of court fees, whereupon the trial court allowed the said application
and rejected the plaint at the threshold, giving rise to the instant first appeal.

Held:. It is apparent that the reliefs claimed by the plaintiff were legally unenforceable and plaintiff's suit was
clearly barred by law - Even assuming that the defect relating to payment of court fees was curable, since the
suit itself was barred by law, the trial court committed no error in allowing the defendant's application under
O. 7 R. 11(d) CPC and rejecting the plaint at the threshold - The impugned order does not warrant any
interference by High Court in exercise of its appellate jurisdiction - Accordingly, appeal dismissed at the