Rabindranath Panigrahi vs. Surendra Sahu

2025 INSC 333
NON-REPORTABLE


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO. OF 2025
(Arising out of SLP(C)No.19182 of 2022)


RABINDRANATH PANIGRAHI …APPELLANT

Versus

SURENDRA SAHU …RESPONDENT




J U D G M E N T




SANJAY KAROL J.

Leave Granted.

2. The present appeal is directed against the judgment and
th
order dated 20 June 2022 of the High Court of Orissa at Cuttack
passed in RSA No.131 of 2011 (Second Appeal), whereby the
Signature Not Verified
Digitally signed by
NEETU KHAJURIA concurrent findings returned by the Courts below vide judgments
Date: 2025.03.06
19:09:15 IST
Reason:
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th 1
dated 12 October 2007 by Civil Judge (Senior Division),
th 2 st
Berhampur and dated 29 January 2011 by 1 Addl. District
Judge, Berhampur (District Ganjam), were overturned.

3. The brief facts giving rise to the present appeal are as
under:


3.1 The dispute inter se the parties is one between the
3
septuagenarian landlord-appellant and octogenarian
4
tenant-respondent over two shop rooms situated in the
compound of bungalow known as ‘ Madhu Mandir ’, Main
Road, Berhampur, covered under Khata No.293 and Plot
No.1325 (hereinafter referred to as ‘the suit premises’),
originally owned by one Late Smt. Ashalata Devi.

3.2 The plaintiff claims that he is the adopted son of
Smt. Ashalata Devi, and, as such, after her death the plaintiff
inherited all her properties, including the suit premises.



3.3 As per the plaintiff, the suit premises were leased
out to the defendant in 1974. The monthly rent for the shops
was fixed at Rs.1,000/- per month with further agreement
that the defendant would bear the electricity and other

1
Hereinafter referred to as “The Trial Court”
2
Hereinafter, “First Appellate Court”
3
Hereinafter referred to as “plaintiff”
4
Hereinafter referred to as “defendant”
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charges as per consumption and use. Since the defendant
was an old acquaintance and had worked as a family
servant, the plaintiff leased the suit premises without
executing a formal lease deed. The defendant, however,
denies the said relationship of landlord-tenant as also the
status of the plaintiff being the adopted son of Smt. Ashalata
Devi, thereby becoming the sole owner of the suit property.

3.4 It is contended by the plaintiff that from July 2001
onwards, the defendant stopped paying the rent, thereby
becoming a defaulter. Consequently, the plaintiff issued a
th
notice dated 27 January 2003 under Section 106 of the
Transfer of Property Act, 1882, terminating the defendant’s
th
tenancy w.e.f. 28 February 2003 and directing him to
st
vacate the suit premises by 1 March 2003.

th
3.5 The defendant, however, vide his reply dated 24
February 2003, refused to vacate the premises, claiming that
he had perfected his title over the suit premises by way of
adverse possession and asserted that he had acquired the suit
premises from the plaintiff’s adoptive mother (Smt.
Ashalata Devi) by virtue of an oral gift.

3.6 Hence, the plaintiff filed a suit for eviction and
recovery of arrears of rent and damages being C.S.No.276
of 2003 before the learned Civil Judge (Senior Division),
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Berhampur. After appreciating the oral and documentary
evidence, the Trial Court decreed the suit in favour of the
th
plaintiff vide judgment dated 12 October 2007, recording
the following findings :

(i) The plaintiff, being the legally adopted son of
Smt. Ashalata Devi acquired absolute ownership
of the suit premises upon her demise.
(ii) The defendant failed to establish any
rightful claim over the suit premises as -
(a) no right, title or interest over any
immovable property can be passed or
acquired by way of an oral gift;
(b) the defendant’s possession was
permissive by nature and, therefore, could
not be construed as an adverse possession;
and
(c) no positive evidence of adverse
possession was adduced by the defendant.
(iii) There existed a relationship of landlord
and tenant between the plaintiff and defendant
and the defendant occupied the suit premises as
a tenant since 1974.
(iv) Even in the absence of conclusive
proof of a landlord-tenant relationship, the
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defendant is liable to be evicted since he failed
to prove his title over the premises, whereas the
plaintiff has substantiated his title.

The Trial Court, therefore, directed the defendant to
handover vacant possession of the suit premises to the
plaintiff within two months and to pay arrears of rent and
damages for his unauthorized use and occupation of the suit
premises.

3.7 Being dissatisfied with the judgment of the Trial
Court, the defendant preferred a Regular First Appeal No.
5 st
04 of 2010 before the learned 1 Addl. District Judge,
th
Berhampur (District Ganjam). By judgment dated 29
January 2011, the First Appellate Court affirmed the
findings of the Court below and dismissed the appeal with
costs, and observed that :-

“6. … Admittedly Ashalata Devi was the owner of the
suit house. The plaintiff claiming to be the adopted son
of the Ashalata Devi has filed the suit for eviction against
the defendant. The learned trial court relying upon the
oral and number of contemporaneous documentary
evidence has held that the plaintiff is the adopted son of
the said Ashalata Devi and that after the death of said
Ashalata Devi the plaintiff has acquired title to the suit
property. The aforesaid findings of the trial court have
not been challenged by the appellant. Therefore, the sole
point that needs to be considered in this appeal is

5
Previously numbered as R.F.A. No. 76 of 2007
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whether the defendant has acquired title to the suit shop
house by adverse possession. It appears that right from
the beginning the defendant pleaded that he occupied the
suit premises with permission of Ashalata Devi in the
year 1974. It is settled position of law that permissive
possession cannot be construed as adverse possession
and possession being with permission cannot become
adverse unless hostile animus was expressed at any
particular time to the knowledge of the owner. In support
of such proposition of law, the learned trial court had
referred several judgments of the Hon'ble Apex Court
and of our own High Court. In the written statement
there is no plea as to when the defendant exhibited
hostile animus in possessing the suit property.
Admittedly Ashalata Devi, has not transferred the suit
premises in favour of the defendant by way of any
registered gift deed. In absence of such registered gift
deed the possession of the defendant over the suit
premises is held to be permissive. It is the settled
position of law that mere possession for howsoever
length of time does not result in converting the
permissive possession into adverse possession. Mere
payment of electricity dues in the name of the real owner
for over statutory period cannot prove adverse
possession of the defendant over the suit premises. It
appears that the learned trial court has gone in the
evidence adduced by the defendant in detail and after
considering the evidence on record, found it as a fact that
the possession of the defendant over the suit premises
was not adverse for the statutory period. In my view that
the learned Civil Judge (SD), Berhampur has come to the
right conclusion that the defendant has failed to prove
his title over the suit premises by way of adverse
possession. Sinec the defendant has been in illegal
possession of the suit premises without payment of rent
rightly the learned trial court has held that the defendant
is liable to pay the arrear rent and damages. Hence, there
is no reason for this Court to interfere with the impugned
judgment and decree."


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3.8 Aggrieved by the dismissal of the First Appeal, the
defendant preferred a Second Appeal under Section 100 of
6
the Civil Procedure Code, 1908 , being RSA No.131 of
2011 before the High Court of Orissa at Cuttack, which was
allowed vide the impugned judgment. The High Court
framed the following substantial questions of law for its
consideration :

“1) Whether the learned Trial Court has committed gross
illegality in coming to the conclusion that the Appellant-
Defendant was the tenant under the Plaintiff by raising a
presumption from surrounding circumstance and
surmising that under such circumstances even a rustic
man can say that the Defendant must have occupied the
shop room in question as a tenant, in absence of any
material to that effect?

2) Whether the learned Lower Appellate Court has not
discharged its duty as required under law being the final
Court of fact, by dealing with all issues raised in the suit
and not addressing itself to the same?"


The High Court, while reversing the concurrent findings of
the lower Courts, held that the relationship of landlord and
tenant cannot be sustained. Given that such a conclusion had
been arrived at upon appreciation of not direct evidence but
surrounding circumstances, it was further concluded in Para
15 as under :


6
For short, "CPC"
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“15. Adverting to the case at hand, here the Plaintiff had
filed the suit for eviction. It was filed before the forum
which did not lack inherent jurisdiction to pass a decree
for delivery of possession. It showed the intention of the
Plaintiff to act and to take back the possession. The
settled position of law is that once a suit for recovery of
possession against the Defendant who claims to be in
adverse possession is filed, the period of limitation for
perfecting title by adverse possession comes to a
grinding halt. This being the statement of law, the filing
of the present suit for eviction would certainly arrest the
running of the period of adverse possession by the
Defendant. Be it ingeminated that if by the date of
present suit, the Defendant had already perfected title by
adverse possession that would stand on a different
footing. The substantial questions of law are thus
answered against the reliefs sought for by the Plaintiff as
against the Defendant within the ambit and purview of
the present suit in the form it has been laid. The Plaintiff
thus in the present suit is not entitled to a decree for
eviction as well as arrear rent and damage as allowed by
the Courts below.

In our view of the aforesaid analysis, the Courts below
should have dismissed the suit for eviction, arrear of rent
and damage leaving the Plaintiff to come up in another
suit claiming title and recovery of possession, is so
advised. In our view of the matter, while setting aside the
judgments and decrees passed by the Courts below in
decreeing his suit. On the anvil of the settled law as
discussed; the Plaintiff is, however, permitted to institute
a suit as entitled under law for title and recovery of
possession and such other reliefs as the law permit
within a period of three months from today.”



4. We have heard Mr. Yasobant Das, learned Senior Counsel
appearing for the plaintiff-appellant and Mr. S Debabrata Reddy,
learned counsel appearing for the defendant-respondent. We
have also perused the material on record.
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5. The only question that arises for our consideration is
whether, in the facts and circumstances of the case, the High
Court was justified in overturning concurrent findings of the Trial
Court as well as the First Appellate Court in Second Appeal.


6. The principles governing the scope of Second Appeal
under Section 100 CPC are well-settled. To state that, under
Section 100 CPC a High Court is not to disturb findings of fact,
would be now like stating the obvious. [See: Santosh Hazari v.
7 8
Purushottam Tiwari ; Gurdev Kaur v. Kaki ; State Bank of
9
India v. S.N. Goyal ; and Suresh Lataruji Ramteke v. Sau.
10
Sumanbai Pandurang Petkar ] Yet recently, this Court
lamented that despite numerous judgments spelling out the scope
of this power, the High Court repeatedly falls in error. [See:
11
Jaichand v. Sahnulal ] The present is another such case.

7. In the present case, the questions as framed by the High
Court, in our view, do not meet the criteria to be substantial
questions of law. For a question to be substantial, reference can
be made to the discussion made in, amongst a host of other

7
(2001) 3 SCC 179
8
(2007) 1 SCC 546
9
(2008) 8 SCC 9215
10
2023 SCC OnLine SC 1210
11
2024 SCC OnLine SC 3864
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12
judgments, Hero Vinoth v. Seshammal , wherein it was held as
under :

12
(2006) 5 SCC 545
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13
In Nazir Mohamed v. J. Kamala , it was observed that :-

“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.”


14
[See: P. Kishore Kumar v. Vittal K. Patkar ; and Ramachandra
15
Reddy v. Ramulu Ammal ]

8. Applying the above discussion to the questions framed in
the impugned judgment, the first one questions the conclusion
arrived at by the Trial Court on the basis of appreciation of facts
and does not involve any interpretation of law whatsoever. It
pertains to the said relationship between the parties being proved
on the basis of surrounding circumstances.

9. Insofar as the second question is concerned, i.e., the
requirement of the First Appellate Court to associate itself with
all the questions framed by the Trial Court, we find this question
to have been decided by this Court in Murthy v. C.
16
Saradambal , wherein it was held :

"60. Before parting with this case, we would like to
reiterate that in this case, the High Court has dealt with

13
(2020) 19 SCC 57
14
2023 SCC OnLine SC 1483
15
2024 SCC OnLine SC 3301
16
(2022) 3 SCC 209
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the judgment of the learned trial Judge in a shortcut
method, bereft of all reasoning while reversing the
judgment of the trial court both on facts as well as law.
It is trite that the appellate Court has jurisdiction to
reverse, affirm or modify the findings and the judgment
of the trial court. However, while reversing or modifying
the judgment of a trial court, it is the duty of the appellate
Court to reflect in its judgment, conscious application of
mind on the findings recorded supported by reasons, on
all issues dealt with, as well as the contentions put forth,
and pressed by the parties for decision of the appellate
Court. No doubt, when the appellate Court affirms the
judgment of a trial court, the reasoning need not to be
elaborate although reappreciation of the evidence and
reconsideration of the judgment of the trial court are
necessary concomitants. But while reversing a judgment
of a trial court, the appellate Court must be more
conscious of its duty in assigning the reasons for doing
so."


In confirming the judgment of the Trial Court, we find the First
Appellate Court to have, although, in short, considered the
evidence on record, its application to the questions framed by the
Court below and returned its findings accordingly.

10. Additionally, we find that both the Courts below held the
relationship of landlord and tenant to be proved between the
parties. This, in our view, is a finding of fact which could not be
disturbed by the Court in the Second Appeal, as it was not open
for the Court to examine the evidence assuming First Appeal
jurisdiction, unless the findings returned were perverse. In the
present facts, the findings of perversity, in our view, are in
themselves perverse. This we say so for two reasons : One, that
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the defendant has been unable to prove his ownership of the
subject matter property by way of adverse possession,
establishing open, continuous and hostile possession; and two,
that the plaintiff’s ownership that he claims to have devolved
upon him by virtue of being the adopted son of Smt. Ashalata
Devi (original owner) has nowhere been challenged and, as such,
has attained finality.

11. Hence, it can be concluded that the first substantial
question of law is unjustified as it is entirely a question of fact
and, therefore, not open to adjudication. On the second aspect
too, interference by the High Court in the circumstances was
unwarranted.


12. Consequently, the judgment of the High Court is set aside.
The tenant is hereby directed to handover vacant and peaceful
possession of the subject premises within a period of three
months from the date of this judgment. The tenant is further
directed to clear all arrears, be it rent, utilities or otherwise,
within the same timeframe. It is to be ensured that as on the date
of handing over of possession, all dues, statutory and/or
contractual, arising out of the tenancy, shall be duly cleared. The
Registry is directed to communicate a copy of this order to the
Registrar General, High Court of Orissa, who shall further
communicate the same to the concerned parties.
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13. The appeal is allowed as aforesaid. Pending
application(s), if any, shall stand disposed of.


……………………………………J.
(SANJAY KAROL)



………………….…………………J.
(PRASHANT KUMAR MISHRA)
New Delhi;
March 6, 2025.














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