“Findings of Perversity Are in Themselves Perverse”: Supreme Court Restores Eviction Decree, Sets Aside Orissa High Court's Reversal of Concurrent Findings
Kiran Raj
The Supreme Court has set aside the judgment of the Orissa High Court, which had overturned concurrent findings of the trial court and the first appellate court in a property dispute. The court held that the High Court erred in interfering with factual findings that had attained finality. It directed the tenant to vacate the premises within three months and clear all outstanding dues before handing over possession.
The bench comprising Justice Sanjay Karol and Justice Prashant Kumar Mishra recorded that the High Court had exceeded its jurisdiction under Section 100 of the Code of Civil Procedure, 1908, by reappreciating factual findings in a second appeal. The court observed that substantial questions of law had not been correctly framed and that the lower courts’ findings on ownership and tenancy could not have been disturbed in the second appeal.
The dispute arose over two shop rooms situated in the compound of a bungalow known as ‘Madhu Mandir’ on Main Road, Berhampur, Odisha. The appellant, claiming to be the legally adopted son of the original owner, sought eviction of the respondent, alleging non-payment of rent and unauthorized possession. The respondent, in contrast, denied the existence of a landlord-tenant relationship and asserted ownership over the property through adverse possession and an alleged oral gift.
The appellant claimed that the respondent had been a tenant since 1974, paying ₹1,000 per month, along with electricity and other charges. However, from July 2001 onwards, the respondent allegedly defaulted on rent payments. A notice under Section 106 of the Transfer of Property Act, 1882, was issued on January 27, 2003, terminating the tenancy with effect from February 28, 2003. The respondent refused to vacate, contending that he had perfected his title by adverse possession.
The appellant filed a suit for eviction, arrears of rent, and damages before the Civil Judge (Senior Division), Berhampur. The trial court decreed the suit in favor of the appellant on October 12, 2007, holding that the respondent had failed to establish any valid claim over the property. The trial court found:
"The plaintiff, being the legally adopted son of Smt. Ashalata Devi, acquired absolute ownership of the suit premises upon her demise. The defendant failed to establish any rightful claim over the suit premises as (a) no right, title or interest over any immovable property can be passed or acquired by way of an oral gift; (b) the defendant’s possession was permissive by nature and, therefore, could not be construed as an adverse possession; and (c) no positive evidence of adverse possession was adduced by the defendant."
The trial court directed the respondent to vacate the premises within two months and pay arrears of rent and damages for unauthorized occupation.
The respondent challenged the decree in Regular First Appeal No. 04 of 2010 before the 1st Additional District Judge, Berhampur, which was dismissed on January 29, 2011. The first appellate court recorded:
"The learned trial court, relying upon oral and documentary evidence, has held that the plaintiff is the adopted son of Ashalata Devi and acquired title to the suit property upon her demise. The aforesaid findings of the trial court have not been challenged by the appellant. The sole point for consideration in this appeal is whether the defendant has acquired title to the suit shop house by adverse possession."
The first appellate court held that permissive possession cannot be converted into adverse possession without hostile animus being exhibited to the knowledge of the true owner. It recorded that mere payment of electricity charges for a statutory period was insufficient to establish adverse possession.
Aggrieved, the respondent filed a second appeal before the Orissa High Court under Section 100 CPC, which was allowed on June 20, 2022. The High Court framed two substantial questions of law:
- Whether the trial court erred in concluding that the appellant was a tenant based on presumptions rather than direct evidence.
- Whether the first appellate court failed to discharge its duty as the final court of fact by not addressing all issues raised in the suit.
The High Court held that the appellant's claim of a landlord-tenant relationship was based on surrounding circumstances rather than conclusive proof. It concluded:
"The plaintiff is not entitled to a decree for eviction as well as arrears of rent and damages as allowed by the courts below."
The High Court directed that the appellant could file a fresh suit for title and recovery of possession.
The Supreme Court examined whether the High Court was justified in interfering with the concurrent findings of the lower courts. It recorded that the scope of a second appeal under Section 100 CPC is well-settled and referred to Santosh Hazari v. Purushottam Tiwari, Gurdev Kaur v. Kaki, and Jaichand v. Sahnulal. The judgment states:
"To state that, under Section 100 CPC, a High Court is not to disturb findings of fact, would be now like stating the obvious."
The court further recorded that substantial questions of law must involve debatable legal issues rather than factual disputes. It cited Hero Vinoth v. Seshammal and Nazir Mohamed v. J. Kamala, stating:
"To be ‘substantial,’ a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way."
Applying this test, the court held that the High Court’s first question merely questioned a factual conclusion drawn by the trial court and did not involve any legal interpretation. On the second question, the court recorded:
"Both the courts below held the relationship of landlord and tenant to be proved between the parties. This, in our view, is a finding of fact which could not be disturbed by the Court in the Second Appeal, as it was not open for the Court to examine the evidence assuming First Appeal jurisdiction, unless the findings returned were perverse. In the present facts, the findings of perversity, in our view, are in themselves perverse."
The court found that the respondent had failed to prove adverse possession and that the appellant’s ownership claim had attained finality.
The Supreme Court set aside the judgment of the High Court and restored the eviction decree. It directed:
"The tenant is hereby directed to hand over vacant and peaceful possession of the subject premises within a period of three months from the date of this judgment. The tenant is further directed to clear all arrears, be it rent, utilities, or otherwise, within the same timeframe. It is to be ensured that as on the date of handing over possession, all dues, statutory and/or contractual, arising out of the tenancy, shall be duly cleared."
The court also directed that its order be communicated to the Registrar General of the Orissa High Court for further action.
Case Title: Rabindranath Panigrahi v. Surendra Sahu
Neutral Citation: 2025 INSC 333
Case Number: SLP(C) No. 19182 of 2022
Bench: Justice Sanjay Karol & Justice Prashant Kumar Mishra
[Read/Download order]
