1. Suit for possession and mesne profits — Plaintiff claimed ownership of flat — Defendants claimed tenant possession — Decree for half share. (Para 1 , 2 )
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2026 Supreme(Online)(Raj) 20287
HIGH COURT OF RAJASTHAN
Chandra Prakash Shrimali, J
Surendra Kumar – Appellant
Versus
Sunil Kumar – Respondent
S.B. Civil Second Appeal No. 115/2026
Advocates:
For the Appellants/Petitioners: Abhishek Sharma
For the Respondents: Pradeep Mathur
For the Appellants/Petitioners: Abhishek Sharma
For the Respondents: Pradeep Mathur
In a second appeal under Section 100 CPC, the High Court must satisfy itself of the existence of a substantial question of law and formulate such question before granting interim relief or deciding the appeal on its merits.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100, 101 and Order 42 - Registration Act, 1908 - Section 17 and 49 - Second Appeal - Substantial question of law - Admissibility of unregistered documents to prove title - The court formulated substantial questions of law regarding whether the courts below erred in treating an unregistered document (Exhibit-1) as proof of title without considering registration requirements under Section 17 and 49 of the Registration Act, and whether the execution of said document was duly proved in accordance with law. (Para 13)
(B) Second Appeal - Scope and Jurisdiction - High Court acquires jurisdiction to deal with a second appeal on merits only when it frames a substantial question of law as required under Section 100 CPC; such a question must be real, substantial, debatable, and have a material bearing on the decision of the case. (Paras 10, 11)
Facts of the case:
The respondent-plaintiff filed a suit for possession and mesne profits of a first-floor flat in Rangeri Building, Chhipabarod, claiming ownership. The appellants-defendants contested the suit, asserting lawful possession as tenants and disputing the plaintiff's title. The trial and first appellate courts decreed the suit in favor of the plaintiff based on Exhibit-1. The appellants challenged these findings, arguing that Exhibit-1 is unregistered and its execution was not proved.
Findings of Court:
The court found that the appeal prima facie involves substantial questions of law concerning the legality of relying on an unregistered document to establish property title and the failure to prove the document's execution according to law.
Issues: Whether the lower courts erred in law by accepting an unregistered document as proof of title and whether the document was legally proved.
Ratio Decidendi: The High Court is mandated to formulate a substantial question of law under Section 100(4) of the CPC before it can grant interim relief or hear the appeal on merits. A question is 'substantial' if it is debatable, not previously settled by binding precedent, and material to the rights of the parties.
Result: Substantial questions of law formulated and notice issued to respondents.
Legal Category Hierarchy
-
practice and procedure
- appeal
- evidence
- code of civil procedure
- property law
Table of Contents
2. Appellants argued unregistered document wrongly used to prove title — Execution and contents not proved — Interim protection also sought. (Para 3 , 4 )
3. Court must first determine whether appeal involves substantial question of law before considering interim relief, as per Section 100 CPC. (Para 8 , 9 , 11 , 12 )
4. High Court cannot grant interim order in second appeal without first framing substantial question of law under Section 100(4) CPC. (Para 11 , 12 )
5. Substantial questions of law formulated — Notice issued to unserved respondents — Stay application to be considered on next date. (Para 13 , 14 , 15 , 16 )
6. What is the jurisdictional requirement under Section 100 CPC before a High Court can hear a second appeal on merits?
The High Court must first satisfy itself that a substantial question of law is involved, formulate that question, and only then proceed further. (Para 9 , 11 , 12 )
7. Can the High Court grant interim relief in a second appeal without first framing a substantial question of law?
No, the High Court cannot grant an interim order in a second appeal without first satisfying itself as to the existence of a substantial question of law and formulating it. (Para 11 , 12 )
8. What constitutes a 'substantial question of law' within the meaning of Section 100 CPC?
A question that is real, substantial, debatable, not previously settled, and has a material bearing on the rights of parties and the case decision. (Para 10 )
9. Is an unregistered document admissible to prove title without proper proof of execution?
The court raised this as a substantial question of law — whether the document required registration and whether mere exhibition proves execution. (Para 13 )
Order
| 1. | Arguments Concluded On: | 25.09.2026 |
| 2. | Order Reserved On: | 25.09.2026 |
| 3. | Full Order/Operative Part Pronounced: | Full Order |
| 4. | Pronounced On: | 01.10.2026 |
1. The present Civil Second Appeal has been filed under Section 100, 101 read with Order 42 of the Code of Civil Procedure, 1908, against the impugned judgment and decree dated 29.01.2026, passed by Additional District Judge, Chhabra, District Baran (Rajasthan) in Civil Appeal No. 01/2017 titled as “Surendra Kumar & Ors. Vs. Sunil Kumar & Ors.”, whereby the learned First Appellate Court dismissed the appeal filed by the appellants/defendants and affirmed the judgment and decree dated 03.12.2016, passed by learned Senior Civil Judge, Chhabra, District Baran in Civil Suit No. 111/1995 (original Suit No. 42/1990) titled as “Sunil Kumar Vs. Surendra Kumar & Ors.”, by which the learned Trial Court had decreed the suit for possession filed by the respondent/plaintiff.
2. Learned counsel appearing for the appellants submits that the respondent-plaintiff instituted a suit for possession and mesne profits in respect of the first-floor flat situated in Rangeri Building, Chhipabarod, claiming himself to be the owner thereof. It was pleaded that, on the occasion of the marriage of his sister in November, 1984, the marriage party (Barat) had stayed in the said premises and after the marriage party (Barat) had left, the appellants-defendants forcibly took possession thereof. Accordingly, the suit was instituted on 10.07.1990, seeking possession of the suit premises along with mesne profits. Learned counsel further submits that the appellants-defendants contested the suit by asserting that their possession over the suit premises was lawful, being in the capacity of tenants, and also disputed the title of the respondent-plaintiff. The learned trial Court, however, decreed the suit for possession to the extent of the respondent-plaintiff’s one-half share. The said judgment and decree has been affirmed by the learned first Appellate Court vide the impugned judgment and decree dated 29.01.2026.
3. Learned counsel appearing for the appellants submits that learned trial Court as well as the learned first Appellate Court have erred in law in placing reliance upon Exhibit-1 for the purpose of establishing the title of the respondent-plaintiff, notwithstanding the fact that the said document is unregistered and neither its execution nor its contents were duly proved in accordance with law.
4. It is further submitted that the appellants have a prima facie case and that, during pendency of the present appeal, they would suffer prejudice if the decree is executed. Learned counsel, therefore, prays for interim protection and submits that the stay application may also be considered.
5. Learned counsel for the appellants has relied upon the following judgments in support of his submissions;
1. D Prabhavathamma and Ors. Vs D Kavitha ; Civil Revision petition no. 261/2023.
2. I.T.C. Ltd Vs Adarsh Co-op. Housing Society Ltd. 2012 DNJ (SC) 925.
6. Mr. Pradeep Mathur, learned counsel puts in appearance on behalf of respondent No.1, submits that no substantial question of law arises for consideration in the present appeal and, therefore, the appeal deserves to be dismissed.
7. Heard learned counsel for the appellants as well as learned counsel appearing for the respondent No.1, and perused the material available on record.
8. At this stage, this Court is not required to examine the rival contentions on merits. The limited question is whether the appeal involves substantial question(s) of law within the meaning of Section 100 CPC.
9. At this stage, it would be apposite to refer to the provisions of Section 100 of the Code of Civil Procedure, which delineate the scope of jurisdiction of the High Court in a second appeal.
"100. Second appeal.—
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree
