The main legal point established in the judgment is that to constitute a substantial question of law in a second appeal, there must be a legal question emerging from sustainable findings of fact recorded by the lower courts.

JUDGMENT :

This second appeal has been filed by the appellant/defendant No.2 being aggrieved by the judgment and decree dated 27.11.2017, passed by the Additional District Judge, Beohari District Shahdol (MP) in Regular Civil Appeal 111-A/2008 whereby the judgment and decree dated 29.06.2007 passed by the Civil Judge Class II, Beohari, District Shahdol (MP) in Civil Suit No. 25-A/2007 has been affirmed.

2. The respondents/plaintiffs filed a civil suit stating that they are the owners of suit land bearing Khasra No. 188/2, admeasuring 3.83 acres situated at Gram Papodh, Tehsil Beohari District Shahdol. Their names were recorded in the revenue record till 1990-1991 and they were in possession of the suit property till June 1994. It was further contended that the appellant/defendant No. 2 has forcefully dispossessed respondents/plaintiffs from the suit land in July 1998 and therefore, mutation of suit property in the name of appellant/defendant No.2 vide Mutation Register No. 192 on 24.06.1991 be declared as null and void. Hence, they filed a civil suit for declaration of title, recovery of possession and mesne profit against the appellant/defendant.

3. In the written statement, appellant/defendant No.2 claimed that the suit property was his ancestral land. He has been in possession of suit land and acquired Bhumiswami rights by way of adverse possession. His father gave land to the father of the respondents/plaintiffs as security against mortgage amount, which was released by giving some other land to the respondents/plaintiffs.

4. The trial Court found that appellant/defendant No.2 failed to prove that the suit land has been given on mortgage and there is no document to establish the Bhumiswami rights of father of the appellant/defendant No.2. On the contrary, as per the findings recorded by the learned trial Court, rin pustika (Exhibit P/1) prepared on the basis of the gift deed and (Exhibit P/3) prove that suit property was not gifted to the respondents/plaintiffs. The trial Court also held that the appellant/defendant No. 2 has failed to prove that he was in possession of suit property for more than 12 years. Hence, the suit was decreed in favour of the respondents/plaintiffs.

5. Aforesaid findings were affirmed by the first appellate Court holding that the suit property was neither the ancestral property of the appellant/defendant No.2 nor it was mortgaged by his ancestors with the father of the respondents/plaintiffs. No document was produced by the appellant/defendant No.2 in support of his contentions. Thus, the appeal filed by the appellant/defendant No. 2 against the judgment of the trial Court was dismissed.

6. This second appeal has been filed by the appellant/defendant No.2 on the grounds that from the evidence on record, it is proved that suit property was in possession of appellant/defendant No.2 since long, hence, he acquired Bhumiswami rights over the suit land on the basis of adverse possession. He further contended that the suit filed by respondents/plaintiffs was time barred.

7. The following substantial questions of law have been proposed by the appellant in the present second appeal:

(i) Whether court below is perverse in holding that the suit land is the ancestral property of the plaintiff?

(ii) Whether the defendants being in possession ever since, have even other acquired title to the suit land by virtue of adverse possession?

(iii) Whether the plaintiffs’ suit for declaration of the title and recovery of possession was barred by limitation?

8. It was admitted by the appellant/defendant No.2 that suit land was ancestral property of the respondents/plaintiffs. But the appellant/defendant No.2 pleaded that the suit land was mortgaged by Gajraj with Rambali and at the time of release of the property, neither Rajbali nor Ramnaresh were the possession holder of the suit property. However, neither any document has been filed by the appellant/defendant to prove the above transaction nor this fact is corroborated by the o