IMPORTANT POINTS
1. Under Section 100 of the CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC.
2. Once it is admitted by implication that plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land.

JUDGMENT

Shah, J.-This appeal is directed against the judgment and decree dated September 29, 1988 passed by the High Court of Madhya Pradesh at Indore in Second Appeal No. 255 of 1977, whereby the High Court allowed the Second Appeal of respondent-defendant and set-aside the judgment and decree for possession of the suit land.

2. It is the case of the appellant-plaintiff Roop Singh (since deceased) that he owned 15.32 acres of agricultural land bearing Survey No. 106 in village Shivana of Tehsil Bhikangao. As the land was in illegal possession of the respondent Ram Singh (original defendant - since deceased), a notice dated 7.6.1966 was issued by the appellant calling upon the respondent to restore the possession of the suit land. The respondent did not hand over the possession of the land. Hence the plaintiff filed Civil Suit No. 10A/1969 before the Civil Judge, Bhikangaon (MP) for possession of the suit land with mesne profit @ Rs. 500/- per year. The defendant denied the contention that he was trespasser and submitted that 14 years prior to the date of institution of the suit he had purchased the suit land for a consideration of Rs. 611/- and had paid full sale consideration to the plaintiff and since then he was in possession of the suit land. He contended that his possession is protected under Section 53A of the Transfer of Property Act. He also pleaded that he has acquired the title by adverse possession. In the alternative, he pleaded that he has made improvements in the suit land and if order for restoring the possession is passed, plaintiff should be directed to pay the cost of improvements. By judgment and decree dated 30.7.1971, the Civil Judge passed decree in favour of the plaintiff. But the Additional District Judge in Appeal No. 46A/71 allowed the appeal and remanded the matter to the Trial Court for disposal after framing necessary issues. The Trial Court inter alia decided following two issues:-

"Whether the plaintiff had made a written contract for the sale of the disputed land in 1955 or near about it with the defendant or his deceased brother Manohar Singh and delivered the possession of the disputed land to the defendant after receiving the consideration of Rs. 611/- of the disputed land?

Whether the defendant had acquired the title of the disputed land by adverse possession?"

3. After appreciating the evidence, the Court arrived at the conclusion that the defendant has not made all the pleadings which are necessary for getting protection under Section 53-A of the Transfer of Property Act. The Court also held that even if pleadings are presumed, defendant has failed to prove the said contention as so-called sale-deed was not produced on record and it was alleged that the said document was with the brother of the defendant who had expired because of snake bite and the document was lost. Therefore, Court held that the statement of the defendant was not sufficient to establish the so-called sale. For the adverse possession, the Court arrived at the conclusion that defendant has failed to prove adverse possession because he has specifically pleaded that he got possession of the suit land as a result of contract with the plaintiff. Hence, defendant s entry on the suit land was permissive and the permissive possession would become adverse only if hostile title is asserted and proved by overt acts. The Trial Court, therefore, decreed the suit of the plaintiff by judgment and decree dated 15.3.1976.

4. Civil Appeal No. 20A of 1976 filed by the respondents was dismissed by the Additional District Judge, Bargon on 24th March, 1977. The appellate Court considered the contention of the defendant for the alleged sale of the suit land and arrived at the conclusion that the defendant has neither produced on record the so-called letter nor document executed in his favour by the plaintiff, nor he has taken it as a ground in his pleading that he had lost the said document, nor he has prayed for production of secondary evidence.