BAKHTIY AR HUSSAIN (DEAD) THR. LRS. versus HAFIZ KHAN AND ORS.

Citation: [2007] 10 S.C.R. 266 · Decided: 24-09-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

A 
BAKHTIY AR 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 of the permission, defendants 
acquired Bhumiswami Right under Land Revenue Code-High Court 
setting aside the decree answering the substantial question of law in 
D affirmative-On appeal, held : Substantial question of law was 
wrongly formulated, as the same did not arise out of the issue involved 
i.e. adverse possession-Second appeal is maintainable only when 
)..___. 
substantial question of law 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 [PASAYA T, J.] 
Court, the Court 
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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 
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 
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] 
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] 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 497-
498of2001. 
From the Judgment and Order dated 1.7.1999 of the High Court 
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of Madhya Pradesh, Bench at Gwalior in Second Appeal No. 180 of 
1993. 
B.S. Banthia for the Appellant. 
S.S. Khanduja for the Respondents. 
The Judgment of the Court was delivered by 
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DR. ARIJIT P ASAY AT, 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 
A 
B 
c 
D 
E 
F 
G 
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 p

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