Suit for possession is to be filed with in 12 years when the defendant claimed possession as of it's owner - in the absence of proof of tenancy and in the absence of proof of prior possession , the suit is liable to be dismissed eventhough title is proved by the plaintiff , even though there was no specific plea of adverse possession specifically and directly in the defence pleadings by the defendant as the suit is barred under sec.3 of limitation Act due to lack of proof of earlier possession before filing the suit.
the
registered deed of conveyance by which the Respondent
Plaintiff’s father had purchased his portion of the suit premises
from Rajagopala Pattar (Exhibit P1), the registered documents
by which Rajagopala Pattar had acquired the suit premises in a
Court Auction (Exhibits P2 and P3) and the registered deed of
conveyance executed on 17.02.1938 being Exhibit D1 by which
7
the Appellant-Defendant’s father M. Abdul Aziz had purchased
his portion of the suit premises, examined the extent of the
rights of the respective vendors of the Appellant-Defendant’s
father and the Respondent-Plaintiff’s father and/or their
predecessors-in-interest. the AppellantDefendant’s father had only purchased a portion of the suit
premises, not the entire suit premises, and the other portion
had been purchased by the Respondent-Plaintiff’s father.
The
First Appellate Court, therefore, held that the RespondentPlaintiff was entitled to a declaration in respect of the said
portion of the suit premises, purchased by his father.
the
Appellant-Defendant’s family had been residing in the suit
property since 1940, and that the Respondent-Plaintiff had not
produced any rent agreement or receipts or any tax receipts in
respect of the suit premises to show that the RespondentPlaintiff or his father or any other family member had ever paid
any taxes in respect of the suit premises.
The First Appellate Court concurred with the finding of the
Trial Court, that the Respondent-Plaintiff had failed to establish
that the said premises had been rented out to M. Abdul Aziz
father of the Appellant-Defendant. On the other hand, the Appellant had been in possession of and had been enjoying the
suit premises for a long time.
The First Appellate Court passed a fair and just order,
holding that the Respondent-plaintiff, being the owner of a
portion of the said premises, was entitled to declaration of title in respect of the said portion of the suit property owned by him,
but not to recovery of possession, since the defendant being the
Appellant herein had been enjoying the suit property for a long
time as no landlord tenant relationship not proved.- The High Court held that the Respondent
Plaintiff was entitled to recovery of half of the plaint scheduled
property, after identifying the same with the help of an
Advocate Commissioner, at the time of the execution of the
decree. In all other respects, the decree of the First Appellate
Court was confirmed. = Apex court held that In the facts and circumstances of this case, where the
Appellant-Defendant was owner of only a portion of the suit
property but has admittedly been in possession of the entire suit
property, and the Appellant-Defendant has, in his written
statement, claimed to be in continuous possession for years as
owner, the defence of the Appellant in his written statement
was, in effect and substance, of adverse possession even
though ownership by adverse possession had not been pleaded
in so many words.A person claiming a decree of possession has to establish
his entitlement to get such possession and also establish that
his claim is not barred by the laws of limitation. He must show
that he had possession before the alleged trespasser got
possession.The presumption that possession
must be deemed to follow title, arises only where there is no
definite proof of possession by anyone else.Section 3 of the
Limitation Act bars the institution of any suit after expiry of the
period of limitation prescribed in the said Act. The Court is
obliged to dismiss a suit filed after expiry of the period of , even though the plea of limitation may not have been
taken in defence55. In the absence of any whisper in the plaint as to the date
on which the Appellant-Defendant and/or his Predecessor-ininterest took possession of the suit property and in the absence
of any whisper to show that the relief of decree for possession
was within limitation,when the Appellant-Defendant had pleaded that he had been
in complete possession of the suit premises, as owner, with
absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28
years as on the date of institution of the suit,the High Court could not have reversed
the finding of the First Appellate Court, and allowed the
Respondent-Plaintiff the relief of recovery of possession
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2843-2844 OF 2010
Nazir Mohamed ..…Appellant
versus
J. Kamala And Ors. …..Respondents
J U D G M E N T
Indira Banerjee, J.
These appeals are against a common judgment and order
dated 06.11.2008 dismissing the Second Appeal being S.A. (MD)
No.64 of 2000, filed by the Appellant, but allowing the Second
Appeal being S.A. (MD) No.558 of 2000 filed by the Respondent,
and setting aside the judgment and decree dated 17.09.1999 of
the First Appellate Court in A.S. No.16/1998, to the extent the
First Appellate Court had declined the Respondent’s claim to a
decree of recovery of possession of the suit premises. The High
2
Court held that the Respondent, being the Plaintiff in the suit
was entitled to a declaration of title in respect of half portion of
the suit premises, recovery of possession of the said half portion
of the suit premises and also to recovery of income from the
said half of the suit property owned by the Respondent and/or
charges for use, enjoyment and/or occupation thereof.
2. The Appellant claims to be the owner of the suit premises,
being the building and premises at Door No.4 in R.S. No.120/13
at Mela Senia Street, Aduthurai, Tamil Nadu.
3. According to the Appellant, the Appellant’s father
purchased the suit premises for valuable consideration, by a
registered deed of sale dated 17.2.1938. The Appellant claims
to have been in possession of the suit premises, as owner, from
the inception and not as tenant.
4. In 1994, the Respondent, hereinafter referred to as the
‘Respondent Plaintiff’, filed a suit being O.S. No.169/1994 in the
Court of the District Munsif, Valaingaiman at Kumbhakonam,
claiming declaration of ownership of the suit premises, a
direction on the Appellant, being the Defendant, to deliver
possession of the suit premises to the Respondent Plaintiff, a
3
decree for payment of Rs.900/- towards arrears of
rent/occupation charges in respect of the suit premises, and a
decree for payment of future profits.
5. In the plaint filed in the said suit, it has been alleged that
the said premises, which had been purchased by the
Respondent Plaintiff’s father, by a registered sale deed dated
17.9.1940, had originally been let out to the Appellant’s father
M. Abdul Aziz. After the death of M. Abdul Aziz, the tenancy
was attorned in the name of the Appellant, who agreed to pay
rent of Rs.25/- per month, and also the requisite Panchayat Tax.
6. Alleging that the Appellant had been trying to set up title
in respect of the said premises, by applying for ‘Patta’ to the
Tahsildar Natham, and further alleging that the Appellant was in
arrears of rent to the tune of Rs.1225/- up to February, 1994, the
Respondent Plaintiff filed the aforesaid suit.
7. In the suit, the Respondent Plaintiff inter alia claimed a
decree of Rs.900/- towards rent and/or occupation charges. The
Respondent Plaintiff restricted his claim to arrears of rent and/or
occupation charges to three years, as the claim to rent and/or
occupation charges for the earlier period, had become barred by
4
limitation, there being no acknowledgement of liability by the
Appellant-Defendant.
8. The Appellant-Defendant filed his written statement in the
Suit, denying title and/or ownership of the Respondent Plaintiff
to the suit premises and also contending that the AppellantDefendant was not a tenant. The Appellant-Defendant claimed
absolute ownership of the suit premises, which he claimed had
been purchased by his father, by a registered sale deed dated
17.2.1938, for valuable consideration.
9. The Appellant-Defendant further contended that the suit
premises had all along, been assessed to tax in the name of the
Appellant-Defendant’s father, Abdul Aziz, and not in the name of
the Respondent Plaintiff or his father. The Appellant-Defendant
claimed to have got the suit premises from his father, under a
registered Deed of Release dated 14.3.1966. According to the
Appellant-Defendant, he has, since 1966, owned and enjoyed
the suit premises, with absolute rights.
10. The learned District Munsif (Trial Court) framed the
following three issues for adjudication in the said suit :-
(i) Whether the Respondent Plaintiff was entitled to
declaration of title to the suit property and recovery
5
of possession of the suit property from the Defendant
(the Appellant in this Appeal)
(ii) Whether the Defendant (the Appellant herein) was a
tenant at the suit property or not;
(iii) To what other relief was the Respondent Plaintiff
entitled.
11. By a judgment and decree dated 22.1.1998, the Trial Court
dismissed the said suit, holding that the Respondent Plaintiff
had failed to prove that the suit property had been purchased
by his father. All the three issues were decided against the
Respondent Plaintiff.
12. The Trial Court found that the Respondent Plaintiff had not
been able to produce any rent agreement, rent receipts or any
other oral or documentary evidence to establish that the
Appellant was a tenant at the said premises. The Trial Court
held that the Respondent Plaintiff was not entitled to any relief
in the said suit.
13. Being aggrieved by the said judgment and decree dated
22.1.1998 passed by the Trial Court, the Respondent Plaintiff
appealed to the Subordinate Court at Kumbhakonam,
hereinafter referred to as the ‘First Appellate Court’.
14. By a judgment and order dated 17.9.1999, the First
6
Appellate Court allowed the said appeal, and set aside the said
judgment and order dated 22.1.1998 of the Trial Court , holding
that the Respondent Plaintiff was entitled to declaration of title
over half portion of the suit premises and also to recovery of
income, if any, from the said half portion of the suit premises
owned by the Respondent Plaintiff and/or charges for use,
occupation and/or enjoyment thereof, but not to recovery of
possession.
15. The claim of the Respondent Plaintiff in the suit was based
on the assertion that one Rajagopala Pattar, who had purchased
the suit premises in a Court Auction, had sold the said premises
to the Respondent Plaintiff’s father in 1940.
16. The First Appellate Court analyzed the oral evidence
adduced on behalf of the parties, scrutinized and examined the
documentary evidence on record, including in particular the
registered deed of conveyance by which the Respondent
Plaintiff’s father had purchased his portion of the suit premises
from Rajagopala Pattar (Exhibit P1), the registered documents
by which Rajagopala Pattar had acquired the suit premises in a
Court Auction (Exhibits P2 and P3) and the registered deed of
conveyance executed on 17.02.1938 being Exhibit D1 by which
7
the Appellant-Defendant’s father M. Abdul Aziz had purchased
his portion of the suit premises, examined the extent of the
rights of the respective vendors of the Appellant-Defendant’s
father and the Respondent-Plaintiff’s father and/or their
predecessors-in-interest, and concluded that the AppellantDefendant’s father had only purchased a portion of the suit
premises, not the entire suit premises, and the other portion
had been purchased by the Respondent-Plaintiff’s father. The
First Appellate Court, therefore, held that the RespondentPlaintiff was entitled to a declaration in respect of the said
portion of the suit premises, purchased by his father.
17. The First Appellate Court also took note of the fact that the
Appellant-Defendant’s family had been residing in the suit
property since 1940, and that the Respondent-Plaintiff had not
produced any rent agreement or receipts or any tax receipts in
respect of the suit premises to show that the RespondentPlaintiff or his father or any other family member had ever paid
any taxes in respect of the suit premises.
18. The First Appellate Court concurred with the finding of the
Trial Court, that the Respondent-Plaintiff had failed to establish
that the said premises had been rented out to M. Abdul Aziz
father of the Appellant-Defendant. On the other hand, the
8
Appellant had been in possession of and had been enjoying the
suit premises for a long time. The First Appellate Court thus
found the Appellant liable to pay “backage income” in respect of
the portion of the suit property, of which the Respondent
Plaintiff was the owner.
19. The First Appellate Court, in effect, held that the Appellant
was liable to make over to the Respondent Plaintiff, income if
any, derived from the said portion of the suit premises which
was owned by the Respondent Plaintiff and/or pay charges for
use, occupation and enjoyment of the portion of the suit
premises owned by the Respondent Plaintiff.
20. The First Appellate Court, however, held that the
Respondent Plaintiff was not entitled to recovery of possession
since the Respondent Plaintiff had failed to establish landlordtenant relationship between the Respondent Plaintiff and the
Appellant defendant, and that in any case the Appellant had
been in possession of the suit premises for a long time.
21. The First Appellate Court passed a fair and just order,
holding that the Respondent-plaintiff, being the owner of a
portion of the said premises, was entitled to declaration of title
9
in respect of the said portion of the suit property owned by him,
but not to recovery of possession, since the defendant being the
Appellant herein had been enjoying the suit property for a long
time. In effect and substance, the First Appellate Court found
that the relief of recovery of possession was barred by delay
and/or in other words the laws of limitation, although this has
not clearly been stated in the judgment and order of the First
Appellate Court.
22. Being purportedly aggrieved by the reversal of the
judgment and decree of the Trial Court, dismissing the said suit,
the Appellant-Defendant filed a Second Appeal being S.A. No.
64/2000 in the Madras High Court, against the judgment of the
First Appellate Court. The Respondent Plaintiff also filed Second
Appeal No.558 of 2000 in the Madras High Court, against the
same judgment and decree dated 17.9.1999, to the extent the
Respondent Plaintiff had been denied the relief of delivery of
possession in respect of his half share in the suit premises.
23. By the judgment and order of the High Court under appeal
before this Court, the Second Appeal No. 64 of 2000 filed by the
Appellant-Defendant has been dismissed, the Second Appeal
No.559 of 2000 filed by the Respondent Plaintiff has been
10
allowed and the judgment and decree of the First Appellate
Court set aside, to the extent the Respondent Plaintiff had been
denied the relief of recovery of possession in respect of half of
the suit premises. The High Court held that the Respondent
Plaintiff was entitled to recovery of half of the plaint scheduled
property, after identifying the same with the help of an
Advocate Commissioner, at the time of the execution of the
decree. In all other respects, the decree of the First Appellate
Court was confirmed.
24. Section 100 of the Civil Procedure Code (CPC) which
provides for a Second Appeal, as amended by the Civil
Procedure Code (Amendment) Act, 104 of 1976, with effect
from 1.2.1977,provides as follows:-
“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 passed in appeal by any Court
subordinate to the High Court, if the High Court is satisfied
that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate
decree passed ex parte.
(3) In an appeal under this section, the memorandum of
appeal shall precisely state the substantial question of
law involved in the appeal.
11
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing of the
appeal, be allowed to argue that the case does not involve
such question:
Provided that nothing in this sub-section shall be deemed
to take away or abridge the power of the Court to hear,
for reasons to be recorded, the appeal on any other
substantial question of law, not formulated by it, if it is
satisfied that the case involves such question.]”
25. A second appeal, or for that matter, any appeal is not a
matter of right. The right of appeal is conferred by statute. A
second appeal only lies on a substantial question of law. If
statute confers a limited right of appeal, the Court cannot
expand the scope of the appeal. It was not open to the
Respondent-Plaintiff to re-agitate facts or to call upon the High
Court to reanalyze or re-appreciate evidence in a Second
Appeal.
26. Section 100 of the CPC, as amended, restricts the right of
second appeal, to only those cases, where a substantial
question of law is involved. The existence of a “substantial
12
question of law” is the sine qua non for the exercise of
jurisdiction under Section 100 of the CPC.
27. The High Court framed the following Questions of law:-
“1. Whether the Lower Appellate Court is right in
refusing the relief of possession especially when the
Lower Appellate Court granted relief of mesne profits
till delivery of possession.?
2. Whether the Lower Appellate Court is right in holding
that the plaintiff is entitled to a declaration in respect
of half of the suit property overlooking the pleadings
and the documents of title in the instant case?”
28. On behalf of the Appellant-Defendant, it has strenuously
been contended, and in our view, with considerable force, that
there was no question of law involved in either of the second
appeals, far less any substantial question of law, to warrant
inference of the High Court in Second Appeal No. 64 of 2000.
29. The principles for deciding when a question of law
becomes a substantial question of law, have been enunciated
by a Constitution Bench of this Court in Sir Chunilal v. Mehta
& Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.1
, where this
Court held:-
”The proper test for determining whether a question of
law raised in the case is substantial would, in our opinion,
1. AIR 1962 SC 1314
13
be whether it is of general public importance or whether
it directly and substantially affects the rights of the
parties and if so whether it is either an open question in
the sense that it is not finally settled by this Court or by
the Privy Council or by the Federal Court or is not free
from difficulty or calls for discussion of alternative views.
If the question is settled by the highest court or the
general principles to be applied in determining the
question are well settled and there is a mere question of
applying those principles or that the plea raised is
palpably absurd the question would not be a substantial
question of law.”
30. In Hero Vinoth v. Seshammal2
, this Court referred to
and relied upon Chunilal v. Mehta and Sons (supra) and other
judgments and summarised the tests to find out whether a
given set of questions of law were mere questions of law or
substantial questions of law.
31. The relevant paragraphs of the judgment of this Court in
Hero Vinoth (supra) are set out hereinbelow:-
“21. The phrase ”substantial question of law”, as
occurring in the amended Section 100 CPC is not defined
in the Code. The word substantial, as qualifying ”question
of law”, means of having substance, essential, real, of
sound worth, important or considerable. It is to be
understood as something in contradistinction withtechnical, of no substance or consequence, or academic
merely. However, it is clear that the legislature has
chosen not to qualify the scope of “substantial question of
law” by suffixing the words ”of general importance” as
has been done in many other provisions such as Section
109 of the Code or Article 133(1)(a) of the Constitution.
The substantial question of law on which a second appeal
2(2006) 5 SCC 545
14
shall be heard need not necessarily be a substantial
question of law of general importance. In Guran Ditta v.
Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] the
phrase substantial question of law as it was employed in
the last clause of the then existing Section 100 CPC (since
omitted by the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not
mean a substantial question of general importance but a
substantial question of law which was involved in the
case. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR
1962 SC 1314] the Constitution Bench expressed
agreement with the following view taken by a Full Bench
of the Madras High Court in Rimmalapudi Subba Rao v.
Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222
(FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR
1962 SC 1314] , SCR p. 557)
“When a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
length and discuss alternative views, then the question
would be a substantial question of law. On the other hand
if the question was practically covered by the decision of
the highest court or if the general principles to be applied
in determining the question are well settled and the only
question was of applying those principles to the particular
fact of the case it would not be a substantial question of
law.”
32. 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.
33. To be a question of law “involved in the case”, there must
be first, a foundation for it laid in the pleadings, and the
15
question should emerge from the sustainable findings of fact,
arrived at by Courts of facts, and it must be necessary to decide
that question of law for a just and proper decision of the case.
34. Where no such question of law, nor even a mixed question
of law and fact was urged before the Trial Court or the First
Appellate Court, as in this case, a second appeal cannot be
entertained, as held by this Court in Panchagopal Barua v.
Vinesh Chandra Goswami3
.
35. Whether a question of law is a substantial one and
whether such question is involved in the case or not, would
depend on the facts and circumstances of each case. The
paramount overall consideration is the need for striking a
judicious balance between the indispensable obligation to do
justice at all stages and the impelling necessity of avoiding
prolongation in the life of any lis. This proposition finds support
from Santosh Hazari v. Purushottam Tiwari4
.
36. In a Second Appeal, the jurisdiction of the High Court being
confined to substantial question of law, a finding of fact is not
open to challenge in second appeal, even if the appreciation of
3. AIR 1997 SC 1047
4(2001) 3 SCC 179
16
evidence is palpably erroneous and the finding of fact incorrect
as held in Ramchandra v. Ramalingam5
. An entirely new
point, raised for the first time, before the High Court, is not a
question involved in the case, unless it goes to the root of the
matter.
37. The principles relating to Section 100 CPC relevant for this
case may be summarised thus :
(i) An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of
the terms of a document is a question of law.
Construction of a document, involving the application
of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a
document or wrong application of a principle of law in
construing a document, it gives rise to a question of
law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material
bearing on the decision of the case (that is, a
question, answer to which affects the rights of parties
to the suit) will be a substantial question of law, if it is
not covered by any specific provisions of law or
settled legal principle emerging from binding
precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a
contrary situation, where the legal position is clear,
either on account of express provisions of law or
binding precedents, but the Court below has decided
the matter, either ignoring or acting contrary to such
legal principle. In the second type of cases, the
substantial question of law arises not because the law
is still debatable, but because the decision rendered
5 AIR 1963 SC 302
17
on a material question, violates the settled position of
law.
(iv) The general rule is, that High Court will not interfere
with the concurrent findings of the Courts below. But
it is not an absolute rule. Some of the well-recognised
exceptions are where (i) the courts below have
ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from
proved facts by applying the law erroneously; or (iii)
the courts have wrongly cast the burden of proof. A
decision based on no evidence, does not refer only to
cases where there is a total dearth of evidence, but
also refers to case, where the evidence, taken as a
whole, is not reasonably capable of supporting the
finding.
38. With the greatest of respect to the High Court, neither of
the two questions framed by the High Court is a question of law,
far less a substantial question of law. There was no controversy
before the High Court with regard to interpretation or legal
effect of any document nor any wrong application of a principle
of law, in construing a document, or otherwise, which might
have given rise to a question of law. There was no debatable
issue before the High Court which was not covered by settled
principles of law and/or precedents.
39. It is nobody’s case that the decision rendered by the First
Appellate Court on any material question, violated any settled
question of law or was vitiated by perversity. It is nobody’s case
that the evidence taken as a whole does not reasonably support
18
the finding of the First Appellate Court, or that the First
Appellate Court interpreted the evidence on record in an absurd
and/or capricious manner. It is also nobody’s case that the First
Appellate Court arrived at its decision ignoring or acting
contrary to any settled legal principle.
40. The First Appellate Court examined the evidence on record
at length, and arrived at a reasoned conclusion, that the
Appellant-Defendant was owner of a part of the suit premises
and the Respondent-Plaintiff was owner of the other part of the
suit premises. This finding is based on cogent and binding
documents of title, including the registered deeds of
conveyance by which the respective predecessors-in-interest of
the Appellant-Defendant and Respondent-Plaintiff had acquired
title over the suit premises. There was no erroneous inference
from any proved fact. Nor had the burden of proof erroneously
been shifted.
41. The second question of law, that is, the question of
whether the First Appellate Court was right in holding that the
plaintiff was entitled to a declaration of title in respect of half of
the suit property, has, as observed above, been decided in
favour of the Respondent Plaintiff, based on pleadings and
evidence. The conclusion of the First Appellate Court, of the
19
entitlement of the Respondent Plaintiff to a declaration in
respect of his half share in the suit property does not warrant
interference in a second appeal.
42. The first question framed by the High Court, that is, the
question of whether the Lower Court /Appellate Court was right
in refusing the Respondent Plaintiff relief of possession, when
the Appellate Court had granted mesne profits to the
Respondent Plaintiff, is based on the erroneous factual premises
that the First Appellate Court had granted mesne profits to the
Respondent Plaintiff, which the First Appellate Court had not
done.
43. The first question is not at all a question of law, far less
any substantial question of law involved in the case. The High
Court held:-
“8. Substantial Question of law No. 1:-
After declaring one half right in respect of the plaint
schedule property, the learned first appellate Judge has
refused the relief for recovery of possession on the
ground that the defendants have produced the
documents to show that they are in possession and
enjoyment of the property (Ex.B9 to B.32). There is no
pleadings in the written statement filed by the defendant
that he has prescribed title by way of adverse possession
in respect of the entire plaint schedule property. The
learned first appellate Judge at one place has rejected the
relief of delivery of recovery of possession in respect of
the suit property has granted mesne profit for three years
prior to the institution of the suit. Both the above said
20
findings are diametrically opposite to each other. Once
the recovery of possession is denied, then there is no
question of granting any mesne profit arises. After
declaring one half right in the plaint schedule property in
favour of the plaintiff, the learned appellate Judge ought
to have granted recovery of possession also in respect of
one half share in the plaint schedule property. Both the
courts below have concurrently held that there is not
landlord-tenancy relationship between the plaintiff and
the defendant. Under such circumstances, there is no
question of mesne profit arises in this case. So far as the
refusal of the relief of recovery of possession in respect of
the half of the plaint schedule property by the learned
first appellate Judge, warrants interference from this
Court. Substantial Question of Law No.1 is answered
accordingly.
9. In fine, the Second Appeal No.558 of 2000 is
allowed and the decree and judgment of the learned first
appellate Judge in A.S. No.16/1998 on the file of the Court
of Subordinate Judge, Kumbakonam is set aside in respect
of dismissal of the suit for recovery of possession in
respect of half of the plaint schedule property. The
plaintiff is entitled to recover half of the plaint schedule
property after identifying the same with the help of an
Advocate Commission at the time of execution of the
decree In other respects, the decree of the learned first
appellate Judge in A.S. No.16/1998 on the file of the Court
of Subordinate Judge, Kumbakonam is hereby confirmed.
Second Appeal No. 64 of 2000 is dismissed. No costs.
Consequently, connected miscellaneous petition is
closed.”
44. The High Court, with greatest of respect, has patently
erred in its conclusion that there was contradiction in the
findings of the First Appellate Court, in that the First Appellate
Court had declined the Respondent Plaintiff the relief of delivery
21
of possession of the suit property but had granted the
Respondent Plaintiff mesne profits for three years, prior to the
institution of the suit.
45. ‘Mesne profits’ are profits which a person in wrongful
possession of property might have derived, but would not
include profits due to improvements. There is no finding of the
Appellant-Defendant being in wrongful possession of any part of
the suit premises either by the Trial Court or by the First
Appellate Court. The First Appellate Court has, nowhere used
the expression ‘mesne profit’. What the High Court granted to
the Respondent-Plaintiff was in the nature of reimbursement of
profit derived by the Appellant by use, occupation and
enjoyment of the Respondent-Plaintiff’s portion of the suit
premises and/or in other words reimbursement of income from
the said portion of the suit premises or charges for use,
occupation and enjoyment thereof.
46. A decree of possession does not automatically follow a
decree of declaration of title and ownership over property. It is
well settled that, where a Plaintiff wants to establish that the
Defendant’s original possession was permissive, it is for the
Plaintiff to prove this allegation and if he fails to do so, it may be
presumed that possession was adverse, unless there is
22
evidence to the contrary.
47. The Appellant-Defendant has in his written statement in
the suit, denied the title and ownership of the RespondentPlaintiff to the suit property. The Appellant-Defendant has
asserted that the Appellant-Defendant is the owner of the suit
property and has been in possession and in occupation of the
suit premises as owner from the very inception.
48. In our considered opinion, the High Court erred in law in
proceeding to allow possession to the Respondent-Plaintiff on
the ground that the Appellant-Defendant had not taken the
defence of adverse possession, ignoring the well established
principle that the Plaintiff’s claim to reliefs is to be decided on
the strength of the Plaintiff’s case and not the weakness, if any,
in the opponent’s case, as propounded by the Privy Council in
Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC 201.
49. From the pleadings filed by the Appellant-Defendant, it is
patently clear that the Appellant-Defendant claimed the right of
ownership of the suit property on the basis of a deed of
conveyance, executed over 75 years ago. The AppellantDefendant has claimed continuous possession since the year
1966 on the strength of a deed of release executed by his
23
father. In other words, the Appellant-Defendant has claimed to
be in possession of the suit premises, as owner, for almost 28
years prior to the institution of suit.
50. In the facts and circumstances of this case, where the
Appellant-Defendant was owner of only a portion of the suit
property but has admittedly been in possession of the entire suit
property, and the Appellant-Defendant has, in his written
statement, claimed to be in continuous possession for years as
owner, the defence of the Appellant in his written statement
was, in effect and substance, of adverse possession even
though ownership by adverse possession had not been pleaded
in so many words. It is, however not necessary for this Court to
examine the question of whether the Appellant-Defendant was
entitled to claim title by adverse possession or not.
51. A person claiming a decree of possession has to establish
his entitlement to get such possession and also establish that
his claim is not barred by the laws of limitation. He must show
that he had possession before the alleged trespasser got
possession.
52. The maxim “possession follows title” is limited in its
application to property, which having regard to its nature, does
24
not admit to actual and exclusive occupation, as in the case of
open spaces accessible to all. The presumption that possession
must be deemed to follow title, arises only where there is no
definite proof of possession by anyone else. In this case it is
admitted that the Appellant-Defendant is in possession and not
the Respondent Plaintiff.
53. A suit for recovery of possession of immovable property is
governed by the Limitation Act, 1963. Section 3 of the
Limitation Act bars the institution of any suit after expiry of the
period of limitation prescribed in the said Act. The Court is
obliged to dismiss a suit filed after expiry of the period of
limitation, even though the plea of limitation may not have been
taken in defence.
54. The period of limitation for suits for recovery of immovable
property is prescribed in Part V of the Schedule to the Limitation
Act, 1963, and in particular Articles 64 and 65 thereof set out
hereinbelow for convenience:-
“PART V.— Suits Relating to Immovable Property..
Description of suit Period of
Limitation
Time from which period
begins to run
……….
64. For possession of immovable property
based on previous possession and not on title,
Twelve years.
The date of
dispossession.
25
when the plaintiff while in possession of the
property has been dispossessed.
65. For possession of immovable property or
any interest therein based on title;
Explanation.- For the purposes of this article -
(a) where the suit is by a remainderman, a
reversioner (other than a landlord) or a devisee,
the possession of the defendant shall be deemed
to become adverse only when the estate of the
remainderman, reversioner or devisee, as the
case may be, falls into possession;
(b) where the suit is by a Hindu or Muslim
entitled to the possession of immovable property
on the death of a Hindu or Muslim female, the
possession of the defendant shall be deemed to
become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in
execution of a decree when the judgment-debtor
was out of possession at the date of the sale, the
purchaser shall be deemed to be a
representative of the judgment-debtor who was
out of possession
Twelve years. When the possession of
the defendant becomes
adverse to the plaintiff.
55. In the absence of any whisper in the plaint as to the date
on which the Appellant-Defendant and/or his Predecessor-ininterest took possession of the suit property and in the absence
of any whisper to show that the relief of decree for possession
was within limitation, the High Court could not have reversed
the finding of the First Appellate Court, and allowed the
Respondent-Plaintiff the relief of recovery of possession, more
so when the Appellant-Defendant had pleaded that he had been
in complete possession of the suit premises, as owner, with
absolute rights, ever since 1966, when his father had executed
26
a Deed of Release in his favour and/or in other words for over 28
years as on the date of institution of the suit.
56. As held by the Privy Council in Peri v. Chrishold reported
in (1907) PC 73, it cannot be disputed that a person in
possession of land in the assumed character of owner and
exercising peaceably the ordinary rights of ownership has a
perfectly good title against all the world but the rightful
owner...and if the rightful owner does not come forward and
assert his right of possession by law, within the period
prescribed by the provisions of the statute of limitation
applicable to the case, his right is forever distinguished, and the
possessory owner acquires an absolute title.
57. The condition precedent for entertaining and deciding a
second appeal being the existence of a substantial question of
law, whenever a question is framed by the High Court, the High
Court will have to show that the question is one of law and not
just a question of facts, it also has to show that the question is a
substantial question of law.
58. In Kondiba Dagadu Kadam v. Savitribai Sopan
Gujar6
, this Court held:
6 (1999) 3 SCC 722
27
“After the amendment a second appeal can be filed only if a
substantial question of law is involved in the case. The
memorandum of appeal must precisely state the substantial
question of law involved and the High Court is obliged to
satisfy itself regarding the existence of such a question. If
satisfied, the High Court has to formulate the substantial
question of law involved in the case. The appeal is required
to be heard on the question so formulated. However, the
respondent at the time of the hearing of the appeal has a
right to argue that the case in the court did not involve any
substantial question of law. The proviso to the section
acknowledges the powers of the High Court to hear the
appeal on a substantial point of law, though not formulated
by it with the object of ensuring that no injustice is done to
the litigant where such a question was not formulated at the
time of admission either by mistake or by inadvertence”
“It has been noticed time and again that without insisting
for the statement of such a substantial question of law in the
memorandum of appeal and formulating the same at the
time of admission, the High Courts have been issuing notices
and generally deciding the second appeals without adhering
to the procedure prescribed under Section 100 of the Code of
Civil Procedure. It has further been found in a number of
cases that no efforts are made to distinguish between a
question of law and a substantial question of law. In exercise
of the powers under this section the findings of fact of the
first appellate court are found to have been disturbed. It has
to be kept in mind that the right of appeal is neither a
natural nor an inherent right attached to the litigation. Being
a substantive statutory right, it has to be regulated in
accordance with law in force at the relevant time. The
conditions mentioned in the section must be strictly fulfilled
before a second appeal can be maintained and no court has
the power to add to or enlarge those grounds. The second
appeal cannot be decided on merely equitable grounds. The
concurrent findings of facts howsoever erroneous cannot be
disturbed by the High Court in exercise of the powers under
this section. The substantial question of law has to be
distinguished from a substantial question of fact.”
“If the question of law termed as a substantial question
28
stands already decided by a larger Bench of the High Court
concerned or by the Privy Council or by the Federal Court or
by the Supreme Court, its merely wrong application on the
facts of the case would not be termed to be a substantial
question of law. Where a point of law has not been pleaded
or is found to be arising between the parties in the absence
of any factual format, a litigant should not be allowed to
raise that question as a substantial question of law in second
appeal. The mere appreciation of the facts, the documentary
evidence or the meaning of entries and the contents of the
document cannot be held to be raising a substantial question
of law. But where it is found that the first appellate court has
assumed jurisdiction which did not vest in it, the same can
be adjudicated in the second appeal, treating it as a
substantial question of law. Where the first appellate court is
shown to have exercised its discretion in a judicial manner, it
cannot be termed to be an error either of law or of procedure
requiring interference in second appeal.”
59. When no substantial question of law is formulated, but a
Second Appeal is decided by the High Court, the judgment of
the High Court is vitiated in law, as held by this Court in
Biswanath Ghosh v. Gobinda Ghose7
. Formulation of
substantial question of law is mandatory and the mere reference
to the ground mentioned in Memorandum of Second Appeal can
not satisfy the mandate of Section 100 of the CPC.
60. The judgment and order of the High Court under appeal
does not discuss or decide any question of law involved in the
case, not to speak of substantial question of law.
7 AIR 2014 SC 152
29
61. Just as this Court has time and again deprecated the
practice of dismissing a second appeal with a non-speaking
order only recording that the case did not involve any
substantial question of law, the High Court cannot also allow a
second appeal, without discussing the question of law, which
the High Court has done.
62. For the reasons discussed above, the appeals are allowed.
The judgment and order of the High Court under appeal is set
aside to the extent Second Appeal No.558 of 2000 has been
allowed and the judgment and decree of the First Appellate
Court is restored.
.................................J.
[ Navin Sinha ]
..................................J.
[ Indira Banerjee ]
AUGUST 27, 2020
NEW DELHI
