Holding

The substantial question of law was wrongly formulated; an appeal under Section 100 CPC is maintainable only if a genuine substantial question of law arises, which was absent in this case.

Summary

Bakhtiyar Hussain, claiming to be the bhumiswami of certain lands, sued Hafiz Khan and others for declaration of title and injunction after they took possession in 1970, asserting they had acquired title by adverse possession. The trial court and the first appellate court held the defendants were in permissible possession with the plaintiff's permission, not adverse, and decreed possession to the plaintiff. The defendants appealed under Section 100 of the CPC, framing a substantial question of law on whether their permission‑based possession gave them bhumiswami rights under Section 168 of the Madhya Pradesh Land Revenue Code. The High Court answered that the defendants were occupancy tenants under Section 169 and dismissed the eviction suit. The Supreme Court held that the substantial question of law was wrongly formulated because the issues concerned only adverse possession, not lease or bhumiswami rights, and that an appeal under Section 100 CPC is maintainable only if a genuine substantial question of law arises. Consequently, the Supreme Court set aside the High Court judgment and remitted the matter for reconsideration.

Issues considered

Whether the defendants acquired any bhumiswami rights under Section 168 of the Madhya Pradesh Land Revenue Code by cultivating the land with the plaintiff's permission.
Whether the appeal under Section 100 of the Code of Civil Procedure is maintainable when the alleged substantial question of law does not arise from the factual issues.
Whether the defendants' possession constitutes adverse possession or permissible possession.

Legislation cited

Code of Civil Procedure, 1908s. 100
Madhya Pradesh Land Revenue Codes. 168, s. 169

Subjects

adverse possessionbhumiswamileaseSection 100 CPCsubstantial question of lawland revenue codecivil appeal

Judgment

A BAKHTIYAR HUSSAIN (DEAD) THR. LRS. ·/-
v.
HAFIZ KHAN AND ORS.

SEPTEMBER 24, 2007
B
[DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.]

Code of Civil Procedure, 1908-s.100-Title suit-Defendants
claiming to have perfected their title by adverse possession-Suit "'
c decreed on the finding that possession was permissible-Affirmed by
First Appellate Court-Second appeal-Substantial question of law
was formulated as to whether by virtue ofthe permission, defendants
acquired Bhumiswami Right under Land Revenue Code-High Court
setting aside the decree answering the substantial question oflaw in
D affirmative-On appeal, held : Substantial question of law was
wronglyformulated, as the same did not arise out ofthe issue involved
i.e. adverse possession-Second appeal is maintainable only when )..___.

substantial question oflaw is involved-Matter remitted to High Court
to consider whether any substantial question of law arose-Madhya
E Pradesh Land Revenue Code-ss. 168 and 169.
The suit of the appellant-plaintiffwas decreed and affirmed by
First Appellate Court on the ground that defendants-respondents
\vere in the permissible possession of the land in question and hence
cannot be said to have perfected their title by adverse possession.
F In Second Appeal, substantial question of law was interalia
formulated as to whether the defendants had acquired Bhumiswami
rights u/s 168 of Madhya Pradesh Land Revenue Code. High Court
held that the defendants had acquired the right of occupancy tenant
and, therefore, no decree for eviction could be passed.
G In appeal to this Court appellant contended that High Court
could not have decided the case relying on rights u/s 168 of the Code
as no issue had been formulated in that regard.
Partly allowing the appeal and remitting the matter to High
H 266
BAKHTIYAR HUSSAIN (DEAD) THR. LRS. v. HAFIZ 267
KHAN [PASAYAT, J.]
Court, the Court A
-}-
HELD: 1. It was nobody's case that the position related to
possession of the defendants byway oflease or otherwise. The basic
issue related to adverse possession. There was no issue even
relating to any lease having being executed. The High Court held
B
that once it is concluded that the suit lands were cultivated with the
permission of the Bhumiswami then considering the language of
Section 168 of the Madhya Pradesh Land Revenue Code, that lease
means transfer of right to enjoy any land made for a certain time,
the question has to be considered accordingly. Section 169 of the
Code has different parameters as compared to Section 168. There c
was no material evidence led in that regard. However, the substantial
question oflaw formulated did not arise out of the orders of the courts
below. In the circumstances, the impugned judgment cannot be
maintained. [Paras 6, 7 and 8] (269-B, E, F; 271-E-F]
D
2. An appeal under Section 100 CPC is maintainable only if
substantial question oflaw is involved. High Court to re-hear the
,..\
matter and consider whether any substantial question oflaw arises
which needs adjudication and thereafter to decide the appeal in
accordance with law. [Para 8] (271-F-G]
E
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 497-
498of2001.
From the Judgment and Order dated 1.7.1999 of the High Court
>-
of Madhya Pradesh, Bench at Gwalior in Second Appeal No. 180 of
1993. F

B.S. Banthia for the Appellant.
S.S. Khanduja for the Respondents.
The Judgment of the Court was delivered by G
-~ DR. ARIJIT P ASAYAT, J. 1. Challenge in these appeals is to the
judgment of a learned Single Judge of the Madhya Pradesh High Court
in Second Appeal No.180of1993. The appellant-plaintiff filed a suit
for declaration of his title and permanent injunction in respect of the lands. H
268 SUPREME COURT REPORTS [2007] 10 S.C.R.

A The plaintiff claimed to be bhumiswami of the land. According to him,
-./-
deceased Nannu Khan and his son Hafiz Khan-respondent No. I forcibly
secured the possession of the land on 1. 7.1970 and deprived him of his
rights over the lands. According to him, the defendants had no right or
interest to continue their possession over the suit lands. Therefore, the
B suit was filed. The defendants filed a joint statement and denied title of
the plaintiff and pleaded that the plaintiffs right over the suit land had
extinguished as they had perfected their title by adverse possession.
Plaintiff used to reside in Bhopal for more than 20 years and the defendants
are in possession of the suit lands openly to the knowledge of the plaintiff
C from 1962. Since their possession over the land was for more than 12
years, the suit is barred by limitation. The trial Court held that the
possession of the defendants is not adverse but they are in permissible
possession of the suit lands. Therefore, it was held that the plaintiff is
entitled for a decree of possession. The first Appellate Court found that
D the defendants are in possession of the suit lands with the permission of
the plaintiff. It was also held that the defendants have failed to prove
their adverse possession. Accordingly, the judgment and decree of the
trial Court were affirmed.
2. Respondents filed Second Appeal in terms of Section 100 of the
E Code of Civil Procedure, 1908 (in short the 'CPC'). The following
question stated to be a substantial question of law was formulated for
adjudication:
"Whether the finding that the defendants were cultivating the lands
p with the permission of the plaintiffs for more than six years from
the date of filing of the suit, the defendants have acquired any
Bhumiswami rights under Section 168 of the M.P. Land Revenue
Code?"
3. According to the· High Court the only question which remained
G in the case was whether the possession of the defendants was by way of
lease or otherwise. Analyzing the evidence on record it was held that
the defendants had acquired the right of occupancy tenant and, therefore,
no decree for eviction can be passed.
H 4. According to learned counsel for the appellant no issue relating
BAKHTIYARHUSSAIN (DEAD) THR. LRS. v. HAFIZ 269
KHAN [PASAYAT ,J.]
to any use of rights or any rights under Section 168 of the M.P. Land A
-).-
Revenue Code (in short the 'Code') was formulated.
5. An entirely new case has been made out in the Court. Learned
counsel for the respondent submitted that in view of the findings recorded,
the conclusions of the High Court cannot be faulted.
B
6. It is to be noted that the High Court has come to a conclusion
that respondent No. I was son of the deceased and, therefore, was
Bhumiswami under Section 169 of the Code. But, it is to be noted that it
was nobody's case that the position related to possession of the
defendants by way of lease or otherwise. The issues framed were as
follows:
c
1. Whether the plaintiff has title on the suit lands.
2. Whether the defendants have dis-possessed the plaintiff on
1. 7.1970 and have taken illegal possession.
3. Whether the plaintiff is entitled to claim compensation and if D
so, what rate .
....... ~
4. Whether the defendants on the basis of the principle of adverse
possession have acquired title of the suit lands.
5. Relief and costs. E
7. As would be seen from the above the basic issue was Issue No.4
which relates to adverse possession. There was no issue even relating to
any lease having been executed. The High Court held that once it is
concluded that the suit lands were cultivated with the permission of the
Bhumiswami then considering the language of Section 168 of the Code, F
that lease means transfer of right to enjoy any land made for a certain
time, the question has to be considered accordingly. Sections 168 and
169 of the Code are read as follows:
"Lease- Except in cases provided for in sub-section (2), no
G
Bhumiswami shall lease any land comprised in his holding for more
than one year during any consecutive period of three years:
Provided that nothing in this sub-section shall apply to the lease
of any land-
(i) made by Bhumiswan1i who is a member of a registered Co- H
270 SUPREME COURT REPORTS [2007] 10 S.C.R.

A operative Fanning Society to such Society;
(ii) held by a Bhumiswami for non-agricultural purposes.
Explanation.-."For the purposes of this section-
(a) "lease" means a transfer of a right to enjoy any land, made for
B a certain time, expressed or implied in consideration of price paid
or promised or of money or any other thing of value to be given
periodically to the transferer by the transferee who accepts the
transfer on such terms;
(b} any arrangement whereby a person cultivates any land of a
c Bhumiswami with bullocks belonging to or procured by such giving
a specified share of the produce of the land to the Bhumiswami
shall be deemed to be a lease;
(c) the grant of a right merely to cut grass or to graze cattle or to
D grow 'Singhara' or to propagate or collect lac, pluck or collect
tendu leaves shall not be deemed to be a lease of the land.
(2) A Bhumiswami who is-
(i) a widow ; or
E (ii) an unmarried woman ; or
(iii) a married woman who has been deserted by her husband ; or
(iv) a minor; or
(v) a person subject to physical or mental disability due to old age
F or otherwise ; or
(vi) a person detained or imprisoned under any process oflaw;
or
(vii) a person in the service of Armed Forces of the Union; or
G (viii) a public, charitable or religious institution;
)-
(ix} a local authority or a Co-operative Society; may lease the
whole or any part of his holding:
Provided that where a holding is held jointly by more than one
H person the provisions of this sub-section shall not be applicable
BAKHTIYARHUSSAIN(DEAD)THR.LRS. v. HAFIZ 271
KHAN [PASAYAT ,J.]
unless all such persons belong to any one or more of the classes A
aforesaid:
Provided further that any lease made in pursuance of this sub-
section shall cease to be in force after one year of the determination
· of the disability by death or otherwise.
B
(3) xx xx xx
. (4) Where a lease is granted in pursuance of sub-section (2) the
lessee shall hold the land on such terms and conditions as may be
agreed upon between him and the Bhumiswami and may be ejected
by an order of a Sub-Divisional Officer on the application of the C
Bhumiswami on the ground of contravention of any material term
or condition of the lease or on the lease ceasing to be in force.
(5) Where on the coming into force of his Code any land is held
on lease from a Bhumiswami who belongs to any one or more of D
the classes mentioned in sub-section (2), such lease shall, on the
coming into force of this Code be deemed to be a lease granted in
pursuance of sub-section (2).
169. Unauthorised Lessees.-If a Bhumiswami leases out for any
period whatsoever any land comprised in his holding in E
contravention of section 168, the rights of an occupancy tenant shall
thereupon accrue to the lessee in such land."
8. Section 169 has different parameters as compared to Section 168.
There was no material evidence led in that regard. However, the substantial
question of law formulated did not arise out of the orders of the courts F
below. In the circumstances, the impugned judgment cannot be maintained
and is set aside. We request the High Court to re-hear the matter and
consider whether any substantial question of law arises which needs
adjudication and thereafter to decide the appeal in accordance with law.
Needless to say an appeal under Section 100 of CPC is maintainable only G
if substantial question of law is involved.
9. The appeals are allowed to the aforesaid extent with no order as
to costs.
K.K.T. Appeals partly allowed. H