Supreme Court of India
DHARMARAJAN AND OTHERSversusVALLIAMMALAND ORS.
- Citation
- 2007 INSC 1261
- Decided
- 11 December 2007
- Disposal
- Appeal(s) allowed
- Bench
- H K SEMA
Holding
The Supreme Court held that the High Court erred in interfering with the first appellate court’s findings as no substantial question of law was raised and re‑appreciation of evidence is impermissible in a second appeal, thereby restoring the appellate court’s judgment.
Summary
The plaintiff Muthuswamy Gounder sued for declaration and injunction claiming title to a land parcel based on a sale deed and alleged adverse possession of over 60 years. The defendants claimed ownership through purchase from members of the Iyer family and argued that the alleged occupants, K and her foster son DO, were merely permissive tenants, not adverse possessors. The trial court decreed in favour of the plaintiff, but the first appellate court reversed, holding the plaintiff failed to prove adverse possession and limiting relief in the defendants' suit to a declaration of title. The High Court, on second appeal under Section 100 CPC, re‑appreciated the evidence, framed five questions of law, and set aside the appellate judgment, finding a new case of long possession and Natham rights. The Supreme Court held that the High Court exceeded its jurisdiction: the questions were not substantial questions of law, re‑appreciation of evidence is barred in a second appeal, and the adverse possession claim was unproved. Consequently, the High Court judgment was set aside and the first appellate court’s decision restored.
Issues considered
- Whether the High Court could entertain a second appeal under Section 100 CPC when the matters raised are not substantial questions of law.
- Whether the questions framed by the High Court constitute substantial questions of law arising from the pleadings.
- Whether re‑appreciation of evidence is permissible in a second appeal under Section 100 CPC.
- Whether the plaintiff proved the elements of adverse possession, including openness, hostility, and tacking of possession.
- Whether the High Court correctly inferred a new cause of action based on unpleaded facts such as Natham ownership.
Legislation cited
Subjects
Section 100 CPCsecond appealsubstantial question of lawre‑appreciation of evidenceadverse possessiondeclaration of titleinjunctionNathamporamboke
Judgment
A DHARMARAJAN AND OTHERS
v.
VALLIAMMALAND ORS. t
DECEMBER 11, 2007
B (H.K. SEMA AND V. S. SIRPURKAR, JJ.)
Code of Civil Procedure, 1908 - s. l 00 - Second appeal -
Re-appreciation of evidence - High Court set aside judgment of
first appellate court on basis of non-existent substantial questions
c of law and accepting an entirely new case based on un-pleaded
facts and non-existe,nt rights - Held: High Court erred in law -
Judgment of first appellate court restored. ff
I
One 'M' filed a suit being O.S. No. 555 of 1981 for
D declaration and injunction against the ap\lellants in respect of
certain landed property on the ground that 'K', who had put up
a thatched shed in the suit property, had perfected her title to
A.
the same by adverse possession and after her demise, her foster
son 'DO', the husband of respondent No.1, derived title and
E continued in possession as a legal heir and later sold the suit
property to the plaintiff. It was stated that the plaintiff and his
predecessor had acquired title by adverse possession for more
than 60 years.
The case of defendants-appellants was that they had
F purchased the property from members of one Iyer family under
,_
sale deeds dated 15.7.1980 and 19.9.1980. They claimed that
since 'K' was a maid servant in the service of Iyer family, she
was permitted to stay on the suit property and after her demise,
'DO' started working as servant, and he too was permitted as
G
such to stay in the suit property; and that after the purchase,
appellants were paying the taxes and 'DO' was staying in the
property with their permission. Defendant-appellant no.I also
filed a suit being O.S. No.280 of 1982 for declaration of title +.
H 50
.
1
DHARMARAJAN AND OTHERS v. VALLIAMMAL 51
AND ORS.
against respondent no.1, the wife of 'DO' and their daughter in A
respect of eastern half portion of suit property in O.S. No.555
of 1981.
Trial Court by a common judgment decreed the suitfiled
by 'M' and dismissed the other suit filed by appellant no.1. The B
first appellate court dismissed suit filed by 'M' and decreed the
suit filed by appellant no.1 only to the extent of the decree of
declaration of title. 'M' and respondent no.1 filed two separate
second appeals which were allowed by the High Court.
In the instant appeals, it was contended that the first c
appellate court was the final court of facts and yet even without
discussing the appellate court judgment, the High Court re-
appreciated the evidence and upset the well considered judgment
of the appellate court; that an entirely new case which was not
even pleaded was found out by the High Court and on that basis D
> decree was passed; and that the case regarding adverse
possession was very rightly held not proved by the first appellate
court and moreover the plea regarding adverse possession was
a confused plea inasmuch as it was not even pleaded as to
against whom was the possession of 'K' and 'DO' adverse. E
Allowing the appeals, the Court
HELD: 1.1. The High Court has gone into a dangerous
area of appreciation of evidence, that too on the basis of non
""'· existent substantial questions of law. None of the five questions F
framed by the High Court could be said to be either question of
law or a substantial question of law arising out of the pleadings
of the parties. (60-D] [61-A] [Para 8]
1.2. The first question of law, as mentioned in the judgment, G
could not and did not arise for the simple reason that the plea
-l
of adverse possession has been rightly found against the plaintiff
'M'. K's possession, even if presumed to be in a valid possession
in law, could not be said to be adverse possession as throughout
it was the case of appellant no.I that it was a permissive H
52 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.
A possession and that she was permitted to stay on the land
f-
belonging to the members of the Iyer family. Secondly, it has
nowhere come as to against whom was her possession adverse.
In order to substantiate the plea of adverse possession, the
possession has to be open and adverse to the owner of the
B property in question. The evidence did not show this openness
and adverse nature because it is not even certain as to against
whom the adverse possession was pleaded on the part of 'K'.
Further, even the legal relationship of 'DO' and 'K' is neither
pleaded nor proved. All that is pleaded is that after K's demise
c 'DO' as her foster son continued in the thatched shed allegedly
constructed by 'K'. There was no question of the tacking of
possession as there is ample evidence on record to suggest that
'DO' also was in the service of Iyer family and that he was
permitted to stay after 'K'. Besides, his legal heirship was also
D not decisively proved. This Court, therefore, does not see as to
how the first substantial question of law came to be framed.
This is apart from the fact that ultimately High Court has not "-
granted the relief to the respondents on the basis of the finding
of this question. On the other hand the High Court has gone into
E entirely different consideration based on reappreciation of
evidence. (61-A to G] [Para 8]
1.3. The second and third questions are not the questions
of law at all. They are regarding appreciation of evidence. The
fourth question is regarding the admissibility of Exhibit A-8.
F There is no question of admissibility as the High Court has found ~
that Exhibit A-8 was not admissible in evidence since the
Tehsildar who had issued that certificate was not examined.
Even the fifth question was a clear cut question of fact and was,
therefore, impermissible in the second appeal. [Para 8]
G (61-G, HJ [62-A]
1.3. Plaintiff 'M' claimed title and possession in respect of
the suit property by virtue of Exhibit A-1, a sale deed dated
10.10.1980, and prior to that he had also obtained the mortgage
H in respect of this property from 'DO'. It was, therefore,
DHARMARAJAN AND OTHERS v. VALLIAMMAL 53
AND ORS.
imperative on his part to prove a valid title of 'DO'. The High A
Court has rightly not accepted the case of adverse possession
though it has given a confused finding about it. However, the
pleadings indicate that the only plea regarding the ownership of
'DO' was based solely on the plea of his adverse possession.
Once that position is clear, the High Court could not have gone B
into any other aspect which was not even pleaded in the plaint
since the burden was entirely on the plaintiff 'M', his being a
- '
prior suit. [62-B to D] [Para 9]
1.5. The High Court has given a finding that 'K' was in
possession of the land for 50 years or so and thereafter her c
foster son 'DO' continued and, therefore, the possession of 'K'
and 'DO' could be tacked together and that the appellate court
was wrong in treating the possession of 'K' and subsequently by
'DO' as distinct and separate. All these findings are of no use
whatsoever for the simple reason that the theory of adverse D
possession had already failed. Even the High Court has observed
that it is not as if the plaintiff is claiming the right only by
adverse possession. [62-FG] [Para 9]
2.1. The High Court has also held that the suit property E
was a village Natham and, therefore, the person who first
occupied the same and was residing therein is entitled to title.
The High Court has, without any basis, held that it was an
unoccupied Natham and 'K' had entered the possession and
was residing there by putting up a house and fencing the property
F
and that she would be entitled to declaration of her occupancy
rights or title because the Government is not claiming it as a
poramboke or its vesting with the Government. There is no
basis for this finding of the High Court. There is no pleading
about this. There is not even an iota of evidence in the village
records in favour of either 'K' or 'DO' and their so-called rights. G
The High Court has thus found out an entirely differept case.
-~ -
[62-G, H] [63-A to CJ [Para 9]
2.2. The High Court has also erred in holding that a
continuous possession independently by the person in possession H
54 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.
A will definitely entitle him to the property in view of the fact that
the property is only a Natharit and not a poramboke. This was
not a case pleaded in the plaint at all. In fact excepting the plea
of adverse possession, no other plea has been raised. Similarly,
the High Court erred in going into the question of identity of
B suit property without there being any pleading.
[63-C to E] [Para 9]
3. Defendant-appellant no.1 produced Exhibit B-6, a
Judgment, to show that the land belonged to the Iyer family
C under whom the defendants claimed title. There is a receipt
(Exhibit B-3) on record of the house tax paid by the Iyer family
which is long prior to the suit. There is also a certificate (Exhibit
B-5) to show that house was registered in the name of one of
the members of the Iyer family for a period even prior to 1977.
D The appellate court had accepted this documentary evidence.
This concludes the matter and in the absence of any revenue
records in favour of either 'K' or 'DO', there was no question
of their title over the land. The High Court has gravely erred in
interfering with a well considered judgment and findings of fact
E of the appellate court.
[63-F] [64-F] [65-B] [Paras 10, 11]
4. In the absence of pleadings, the High Court ~ravely
erred in fmding out an entirely new case on the basis of unpleaded
fads and non existent rights. As regards the suggestion of
F respondent that this was a Natham and the parties had proceeded
on that basis and, therefore, the long standing possession of 'K'
anti thereafter of 'l)O' would clothe them with the ownership; in
the first place that it was a Natham was not pleaded. Secondly,
there is nothing to suggest that this long standing possession
G could clothe the 'K' and 'DO' with the ownership rights.
That was neither a case pleaded nor proved. Again there was
nothing in the shape of revenue records in favour of 'K' and
'PO'. Thus, the judgment suffers from error of law. [Paras 12
and 14] ·[65-C, DJ [66-D]
H
- -~-
DHARMARAJAN AND OTHERS v. VALLIAMMAL 55
AND ORS. [SIRPURKAR, J.]
Gurudev Kaur and Ors. v. Kaki and Ors. (2007) 1 SCC 546 A
- relied on.
The Executive Officer, Kadathur Town Panchayat, Harur
Taluk, Dharamapuri Districi v. I V Swaminatha and Ors. (2004)
3 L.W. 278 - referred to. B
0
5. Once the suit of 'M' fails, the other suit filed by
defendant-appellant no.1 being OS 280 of 1982 in respect of the
Eastern half portion of the suit property must succeed. The first
appellate court has rightly granted the declaration in that suit
and has also restricted the relief only to the declaration since c
defendant-appellant no.1 and the other defendants had not
terminated or revoked the licence of 'DO' or his wife respondent
No.1 or the daughter. The first appellate court had also correctly
held that appellant in AS No.10/1995 in OS No.280/1982 had
established title of his vendors and further that his vendors has D
).
passed a valid title to him with respect to the suit property under
Exhibits B-12 and B-13. The appellate court was right in holding
that defendant no.1 and other defendants were not entitled to
the injunction prayed for. [Para 16J (66-G, HJ [67-A, BJ
E
CNILAPPELLATE JURISDICTION : Civil Appeal Nos. 4535-
4536 of 2001.
From the Judgment and Order dated 25.06.1999 of the High
-., Court of Madras in Second Appeal Nos. 2235 & 2236 of 1986.
F
F.R. Kumar (for M/s. Parekh and Co.) for the Appellants.
P. Krishnamoorthy, R. Nedumaran and Sunil Kumar Singh, for
the Respondents.
The Judgment of the Court was delivered by G
V.S. SIRPURKAR, J. I. A common judgment passed by
Madras High Court allowing two Second Appeals is in challenge before
us. The Single Judge of the Madras High Court set aside the appellate
judgment, again a common one allowing appeals against the common
H
J-
56 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.
A judgment passed by District Munsiff, Bhawani whereby the District
Munsiffhad decreed the suit filed by one Muthuswami Gounder and
dismissed the other suit filed by Dharmarajan, the appellant herein. A
short history of the case would be essential.
B 2. K. Muthuswami Gounder filed a suit registered as O.S. No.555
of 1991 for declaration and injunction alleging that he had purchased
suit property Survey No.324/Dl under a Sale Deed dated 10.10.1980
from one Doraiswamy who was in possession and enjoyment of the
property. The said Doraswamy was claimed to be a foster son of one
C Karupayee who had expired in the year 1961 and who was claimed
to be in possession and enjoyment of the suit property wherein she
had put up a thatched shed and was residing for more than 30 years.
It is claimed that after Karuapyee her foster son who was none else
but his sister's son obtained the possession and enjoyed the said suit
D property. Before this sale deed dated 10.l 0.1980, he had executed a
Mortgage Deed in respect of the suit property in favour of the plaintiff
Muthuswami Gounder dated 15.6.1980. It was further claimed that
Doraiswamy was permitted to occupy the suit property as tenant on
monthly rent ofRs.50/-. It was further asserted that defendants 1 to
E 7, i.e., the present appellants had also wanted to purchase the property
from Doraiswamy but having failed, they were falsely claiming certain
rights in the suit property by creating some false documents and that
they had no right, title or possession. It was claimed that the plaintiff
and his predecessor, namely, Doraiswamy had acquired the title by
F adverse possession for more than 60 years. It is on this basis that
Muthuswamy Gounder claimed a decree for declaration of his ownership
as also for the injunction against the present appellants.
3. As against this, the present appellants claimed that this property
in fact belonged to first defendant therein, (the appellant no.I herein)
G in so far as the Eastern half of the property was concerned since it was
purchased by the first defendant from one Venkataramana Iyer. It was
claimed that the suit property originally belonged to one K.V.
Krishnasamy and others and they were throughout in possession and
enjoyment of the suit property and were paying house tax also. The
H
DHARMARAJAN AND OTHERS v. VALLIAMMAL 57
AND ORS. [SIRPURKAR, J.]
other appellants claimed the other half of the property on the plea that A
they had purchased the same from the other co-sharer Venugopal Iyer
who had inherited the property from K.V. Krishnasamy and others. It
was claimed that Karuppayee was working as a maid servant under
one Venugopala Iyer and it was he who had permitted her to put up
the thatched shed in the suit property and after the death ofKaruppayee, B
Doraiswamy started working as a servant ofVenugopala Iyer and as
such he was in occupation of the thatched salai (house) with the
permission ofVenugopala Iyer. It was claimed that the property stood
in the name ofVenugopala Iyer in Kavundapady Panchayat. In short
it was contended that the present appellants were owners of the property C
which they had purchased on 15.7.1980 and 27.8.1980 vide different
sale deeds. It was further claimed that after the purchase of the suit
property, the present appellants who were the defendants in Suit No.555
of 1981 were paying the taxes and Doraiswamy was staying in the
property with their permission. The original defendants, the appellants D
herein stoutly denied the right of ownership on the part ofDoraiswamy
to transfer the property in favour of the plaintiff. They also denied that
Karuppayee and after her Doraiswamy were in independent possession
of the property. They also denied that Karuppayee or, as the case may
be Doraiswamy, had perfected their title by adverse possession. Thus, E
the Appellant No. I Dharamrajan claimed half of the property whereas
the rest of the appellants claimed the other half of the property being
purchasers from the members oflyer family.
4. The Appellant No. I Dharamarajan also filed a suit being OS p
No.280 of 1982 in respect of the Eastern one half portion of the suit
property of which he claimed the ownership through the sale deed in
the earlier suit. This suit was filed against Valliammal and Palaniammal,
who were the legal heirs ofDoraiswamy. It must be stated here that
Doraiswamy had by then expired. This was also a suit for declaration G
of title ofDharamrajan. In this suit it was claimed that the property
originally belonged to the father ofKrishnasamy Iyer, Kandsamy Iyer
and the father of one Vengugopala Iyer. In the family arrangement the
suit property was allotted to the father of Kandasamy Iyer and
Venkatasubramania Iyer, the son of Krishnasamy Iyer and the first H
58 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.
A appellant Dharamarajan had purchased the suit property from -;
Venkataramana Iyer on 15.7.1990 who was none else but the son of
Krishnaswami Iyer, both of whom were the heirs ofKandasamy Iyer.
An injunction was also claimed against the defendants. Valliammal and
Palaniarnmal firstly claimed that one suit w~s already filed against
B Doraiswamy being OS No.531 of 1981 and the said suit was dismissed.
Doraiswamy had expired on 18.5.1981 and since Valliammal and
Palaniammal were the legal heirs of Doraiswamy, the suit was not
maintainable against them. Both these ladies claimed that they were in
possession of the suit property as the tenants under Muthuswami
C Gounder, the plaintiff in OS No.555of1981. They denied the ownership
of the Iyer family on the suit property and claimed that it was false to
allege that the suit property was ever allotted to the father ofKandasamy
Iyer and Venkatasubramia Iyer. It was, therefore, pleaded that the
vendors of the plaintiff-Appellant No. I herein were not entitled to the
D suit property and they were never in possession of the same. It was
claimed that the suit property was a pora."llboke land and it was
throughout in possession of Karuppayee Ammal who had perfected
title to the same by adverse possession. It was only Karuppayee who
had put up thatched salai in the suit property and her successor
E Doraiswamy was the husband of the first defendant Valliarnmal and
father of Palaniammal and after the death of Karuppayee Ammal he
continued to be in possession of the suit property as the heir of
Karuppayee Ammal. Karuppayye Ammal had died 20 years ago and
after he death Doraiswamy had mortgaged the suit property to
F Muthuswamy Gounder on 10.10.1980 and thereafter the Doraiswamy
and defendants 1 and 2 continued to be in possession of the suit
property as tenants of Muthuswamy and on that count the suit was
liable to be dismissed.
G 5. The Trial Court decreed the Suit No.555 of 1981 and
dismissed Suit No.280 of 1982 filed by the appellant no. I in respect
of the half of the suit property. Two appeals came to be filed which
were allowed whereby the Appellate Court dismissed Suit No.555 of
1981 and decreed Suit No.280 of 1982 only to the extent of the
H decree of declaration of title. However, since the plaintiff therein (the
DHARMARAJAN AND OTHERS v. VALLIAMMAL 59
AND ORS. [SIRPURKAR, J.]
appellant herein) had not terminated the licence ofValliammal and A
Palaniammal in respect of the suit property that relief was denied to the
appellant No. I hereiri and the suit succeeded only partly. As stated
earlier, the plaintiffMuthuswamy Gounder filed Second Appeal No.2236
of 1986 while Valliammal filed Second Appeal No.2235of1986
which appeals have been allowed by the learned Single Judge of the B
High Court and that is how the parties are before us in the present two
appeals.
6. Learned counsel appearing for the appellant seriously criticized
the High Court judgment firstly that the High Court had entered into C
a prohibited arena of re-appreciation of evidence. It was contended
that the appellate court was the final court of facts and yet even
without discussing the appellate court judgment, considering the
approach thereof, the High Court had re-appreciated the evidence and
had upset the well considered judgment of the appellate court. Secondly, D
_;
the learned counsel urged that an entirely new case which was not
even pleaded by the plaintiff in Suit No.555 of 1981 was found out
by •he High Court and on that basis chose to decree the said suit
which was dismissed by the appellate court. It was further pointed out
that the sole plea raised in the plaint was that the plaintiff had derived E
his title vide a Sale Deed from Doraiswamy who himself had continued
to be in adverse possession after Karupayee Ammal. lri short the basis
of the plea of plaintiff was his valid title. Learned counsel was at pains
to point out that the case regarding adverse possession was very
'\ rightly held not proved by the appellate court and indeed there could F
not be any adverse possession since the adverse nature of possession
was not proved at all. Learned counsel pointed out that the plea
regarding adverse possession was a confused plea inasmuch as it was
not even pleaded as to against whom was the possession ofKarupayee
Ammal and Doraiswamy adverse. Learned counsel, therefore, pleaded G
that once that plea was rejected, there was no question of decreeing
-t the suit and the suit should have been straightaway dismissed as was
done by the appellate court. lristead the High Court had found entirely
different theory by trying to re-appreciate the evidence even regarding
H
f-
60 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.
A the boundaries of the plot and the identification thereof which was
nobody's case.
7. As against this the learned counsel for the respondent supported
the judgment and suggested that though the plea of adverse possession
B was not proved, still what was transferred by Doraiswamy was a
possessory title. Learned counsel tried to urge that Karupayee Ammal
continued on the land and she became the owner of the land in question
because of her long possession over natham poramboke and hence
Doraiswamy who continued ·after her demise would inherit the same
C . rights, he being her legal representative. It is these rights which he had
transferred in favour of Muthuswami Gounder and, therefore
Muthuswamy Gounder had a better title as against the present appellant
Dharamrajan who merely claimed a Sale Deed from non-existent
owner.
D 8. A glance at the High Court judgment suggests that the High
Court has gone into a dangerous area of appreciation of evidence, that
too on the basis of non existent substantial questions of law. The five
questions of law framed by the High Comt were as follows:
E "(I) Whether the admitted long possession of the original owner
Karupayee and that ofDoraiswamy who claims title through
her cannot be tacked together in law for the purpose of
adverse possession?
(2) Whether the burden is not on the plaintiff who is out of
F possession to prove that he has got valid title in the suit
properties as laid down by this Court?
(3) Whether non-examination of the vendors of the plaintiff is
not fatal to the case of the plaintiff?
G (4) Whether Ex.A-8 is not admissible in evidence? And
(5) Whether lower appellate court is jastified in decreeing the
suit for declaration, having found that the defendants are in
possession and having refused to grant injunction in favour
H of the plaintiff?"
DHARMARAJANANDOTHERSv.VALLIAMMAL 61
AND ORS. [SIRPURKAR, J.]
In our opinion none of these questions could be said to be either A
question of law or a substantial question of law arising out of the
pleadings of the parties. The first referred question of law could not and
did not arise for the simple reason that the plea of adverse possession
has been rightly found against the plaintiff. Karupayee Ammal's
possession, even if presumed to be in a valid possession in law, could B
not be said to be adverse possession as throughout it was the case of
the appellant Dharmarajan that it was a permissive possession and that
she was permitted to stay on the land belonging to the members of the
Iyer family. Secondly it has nowhere come as to against whom was her
possession adverse. Was it adverse against the Government or against C
the Iyer family? In order to substantiate the plea of adverse possession,
the possession has to be open and adverse to the owner of the property
in question. The evidence did not show this openness and adverse
nature because it is not even certain as to against whom the adverse
possession was pleaded on the part of Karupayee Ammal. Further D
.l even the legal relationship ofDoraiswamy and Karupayee Ammal is
not pleaded or proved. All that is pleaded is that after Karupayee
Ammal's demise Doraiswamy as her foster son continued in the thatched
shed aliegedly constructed by Karupayee Ammal. There was no
question of the tacking of possession as there is ample evidence on E
record to suggest that Doraiswamy also was in the service of Iyer
family and that he was permitted to stay after Karupayee Arnmal.
Further his legal heirship was also not decisively proved. We do not,
therefore, see as to how the first substantial question of law came to
.,
be framed. This is apart from the fact that ultimately High Court has F
not granted the relief to the respondents on the basis of the finding of
this question. On the other hand the High Court has gone into entirely
different consideration based on reappreciation of evidence. [The
second and third questions are not the questions of law at all. They are
regarding appreciation of evidence. The fourth question is regarding G
the admissibility ofExhibitA-8. In our opinion there is no question of
admissibility as the High Court has found that Exhibit A-8 was not
admissible in evidence since the Tehsildar who had issued that certificate
.was not examined. Therefore, there will be no question of admissibility
H
62 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.
A since the document itself W<:!s not proved. Again the finding of the High
Court goes against the respondent herein. Even the fifth question was
a clear cut question of fact and was, therefore, impermissible in the
Second Appeal.
B 9. lt must be remembered that plaintiffMuthuswamy Gounder
had claimed the title and possession in respect of the suit property by
virtue ofExhibitA-1, Sale Deed dated 10.10.1980 and before which
he had also obtained the mortgage in respect of this property from
Doraiswamy. It was, therefore, imperative on the part of the plaintiff
C to prove a valid title on the part of the Doraiswamy. The High Court
has rightly not accepted the case of adverse possession though it has
given a confused finding about it. However, one look at pleadings
suggests that the only plea regarqing the ownership ofDoraiswruhy
was based solely on the plea of his adverse possession. Once that
D position is clear, the High Court could not have gone into any other
aspect which was not even pleaded in the plaint. Instead of discussing
the evidence of the plaintiff since the burden was entirely on the plaintiff •·
Muthuswamy Gounder, his being a prior suit, the High Court'went on
to discuss the evidence on the part of defendant Dharamrajan who
E was the purchaser of the Eastern half of the suit property under Exhibit
B-12 and B-13 and the other defendants 2 to 5 who had purchased
the Western half of the suit property under Exhibit B-1 and B-2.
Thereafter the High Court has given a finding that Karupayee Ammal
was in possession of the land for 50 years or so and thereafter her
p foster son Doraiswamy continued and, therefore, the possession of
Karupayee Ammal and Doraiswamy could be tacked together and
that the appellate court was wrong in treating the possession of
Karupayee Ammal and subsequently by Doraiswamy as distinct and
separate. All these findings are of no use whatsoever for the simple
G reason that the theory of adverse possession had already failed. Even
the High Court has observed that it is not as if the plaintiff is claiming
the right only by adverse possession. Further the High Court found out
that the property wac; a village Natham and, t'1erefore, the person who
first occupied the same and v:as residing therein is entitled to title. TI1e
f-I High Court has, from nowhere, found out that it was an unoccupied
,, DHARMARAJAN AND OTHERS v. VALLIAMMAL 63
AND ORS. [SIRPURKAR, J.]
Natham and Karupayee Ammal has entered the possession and was A
residing there by putting up a house and fencing the property and that
she would be entitled to declaration of her occupancy rights or title
because the Government is not claiming it as a poramboke or its
vesting with the Government. We fail to follow any basis for this finding
of the High Court. There is no pleading about this. There is not even B
an iota of evidence in the village records in favour of either Karupayee
Ammal or Doraiswamy and their so-called rights. There is a Gram
Panchayat in the village and we are certain that there would have been
some evidence in the shape of revenue records in favour of either of
these two, had the case of uninterrupted possession of Karupayee c
Ammal on village Natham for 50 years, was true. The High Court has
found out an entirely different case. The High Court has lastly held that
a continuous possession independently by the person in possession will
definitely entitle him to the property in view of the fact that the property
is only a Natham and not a poramboke. We are afraid this was not D
a case pleaded in the plaint at all. In fact excepting the plea of adverse
possession, no other plea has been raised. Therefore, the High Court
has clearly erred in this aspect. Similarly the High Court in para 13
went into the question of identity of suit property without there being
any pleading and a long and unnecessary discussion. E
10. There was a previous litigation in OS No.49 of 1963 before
the Subordinate Judge, Erode which was the suit for partition and
separate possession filed by one Venugopal Iyer against Venkataramana
Iyer and his sons. The appellant Dhararnrajan had produced Exhibit F
B-6, the Judgment which showed that the Brahmin family under whom
the present defendants claimed title was represented by four brothers
representing four branches and they were Ramaswamy Iyer,
Venkatasubba Iyer, Krishnaswamy Iyer and Subramaniya Iyer. There
was a partition between these four brothers and as per the Agreement G
Krishnaswamy Iyer and Subramania Iyer were allotted the property
jointly as against their shares, Ramaswamy Iyer and Venkatasubba
--+ Iyer were dealing separately their respective shares. It was Subramania
Iyer's son Venugopal Iyer who was the plaintiff in the said suit while
H
64 SUPREME COURT REPORTS [2007) 13 (Addi.) S.C.R.
A Venkataramana Iyer and his sons who were the descendants of
Krishnaswamy Iyer were the main defendants therein. The High Court
has gone through this judgment and has recorded that ultimately the
partition was granted only in respect of Survey No.361/D of
Kavundapadi village which was Plaint "A" Schedule and the backyard
B of the house which was Plaint "B" Schedule and in other aspects the
suit was dismissed. What the High Court has failed to see is that there
is a mention of the property in the suit in this litigation. The High Court
ultimately gave a finding that the suit property was not the subject
matter as it was lying South of Kattabomman Street and this property
C was not, therefore, partitioned in the said suit. In its enthusiasm the
High Court has given a finding that the house was extended further
south to the East West Kattabomman Street and, therefore, the vendors
of the defendants (Dharamrajan and others) had not chosen to deal
with suit property even as early as 1957. Ultimately the High Court
D has given a finding that the suit property was not the subject matter of
ExhibitA-11 partitioned in the year 1957.
11. It was pointed out by the learned counsel appearing on
behalf of the appellant that there is a definite mention in Suit OS No.49
E of 1963 of the suit property. As if this was not sufficient, the learned
counsel has also pointed out that the suit property was registered in the
name ofVenugopala Iyer in Kavundapadi Panchayat and he has also
paid house tax to the Panchayat for the suit property. There is a
receipt (Exhibit B-3) on record of the house tax paid by the Iyer family
F which is long prior to the suit. There is also a certificate (Exhibit B-
5) to show that house was registered in the name ofVenugopala Iyer
for a period even prior to 1977. The appellate court had accepted this
documentary evidence. In our opinion that would be the end of the
matter and in the absence of any revenue records in favour of either
G Karupayee Ammal or Doraiswamy, there was no question of their title
over the land. The High Court has, in para 24, recorded:
"The question of adverse possession does not actually arise
because the Brahrnin fami:y never asserted title over the suit
property and the defendants only with a view to harass the
H
DHARMARAJAN AND OTHERS V. VALLIAMMAL 65
AND ORS. [SIRPURKAR, J.]
plaintiff has gone and taken sale deeds from the members of the A
Brahmin family i11 the year 1980 knowing fully well that all along
the family never asserted title and had never been in possession
of the suit property."
In our opinion these findings are entirely erroneous and the High
B
Court has gravely erred in interfering with a well considered judgment
and findings of fact of the appellate court who has accepted the case
of the defendant and has chosen to hold that the plaintiff in OS No.555
of 1981 was not able to discharge the burden at all.
12. In the absence of pleadings, the High Court gravely erred in c
finding out an entirely new case on the basis of unpleaded facts and
non existent rights. Learned counsel for the respondent tried to suggest
that this was a Natham and the parties had proceeded on that basis
and, therefore, the long standing possession ofKarupayee Ammal and
thereafter of Doraiswamy would clothe them with the ownership. In D
,, the first place that it was a Natham was not pleaded. Secondly, there
is nothing to suggest that this long standing possession could clothe the
Karupayee Ammal and Doraiswamy with the ownership rights. That
was neither.a case pleaded nor proved. Again there was nothing in the
shape of revenue records in favour of Karupayee Ammal and E
Doraiswamy. Learned counsel relied upon the judgment of the Madras
High Court in The Executive Officer, Kadathur Town Panchayat,
Harur Taluk, Dharamapuri District vs. IV Swaminatha & Ors.
[(2004) 3 L.W. 278] delivered by the Division Bench thereof in support
of his contention that a long possession over Gram Natham ripens into F
the ownership rights. We are afraid the judgment is being read too
broadly. No such proposition oflaw emerges from that judgment.
13. On the other hand the appellate court has rightly relied on
the tax receipts and the entry in the name of Venugopala Iyer in G
respect of the suit land in Survey No.324 Ward No.4. The appellte
court had also correctly held that the suit property was mentioned in
-)
Exhibits B-6 and B-7 as also in the decree in OS 49 of 1963 in Item
No. I of Schedule C property which was not divided. All the lengthy
discussion by the High Court over that issue was not only uncalled for H
66 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.
A but the High Court has gravely erred in setting aside the fmding of the
appeilate court that the suit property was the property of Item No.I
of Schedule C in Exhibit B-7.
14. This Court has, time and again, explained the scope of
B Section 100 CPC, more particularly in Gurudev Kaur & Others vs.
Kaki and Others [(2007) 1 SCC 546) where it was held that even
before the 1976 amendment the scope of such interference under
Section 100 drastically curtailed and narrowed down. It is specifically
held that the High Court would have jurisdiction of interfering only in
C a case where substantial questions of law are involved and those
questions are clearly formulated in the Memorandum of Appeal. We
have already shown that the questions fommlated were neither the
questions oflaw nor substantial questions oflaw. This is apart from the
fact that in the present case the High Court has completely gone astray
D inasmuch as it is not even realized that it was a case which was not
even pleaded. In Gurudev Kaur s case the above mentioned position
.~
stated by us in respect of substantial question oflaw has been reiterated.
Thus, the judgment suffers from error of law.
15. Learned counsel for the respondent lastly suggested that
E Doraiswamy had transferred the possessory title and, therefore, the
plaintiff in OS No.555 of 1981 was justified in filing the suit against the
present defendants. This was not even the case pleaded. On the other
hand what was pleaded was adverse possession alone. This is apart
from the fact that all through the plaintiff claimed a title and ownership
F from Doraiswamy, who according to the plaintiff, had both ownership
and the title to the suit property. The term possessory title was not
even whispered anywhere. We are, therefore, unable to accept the
contention of the learned counsel on behalf of the respondent.
G 16. Once the suit ofMuthuswamy Gounder fails, then the other
suit filed by Dharamrajan being OS 280 of 1982 in respect of the
Eastern ~alf portion of the suit property must succeed. The appellate
court has rightly gnnted the declaration in that suit and has also restricted
the relief only to the declaration since Dhanmajan and the other
H defendmts had not terminated or revoked the licence ofDoraiswamy
~-
/
DHARMARAJAN AND OTHERS v. VALLIAMMAL 67
AND ORS. [SIRPURKAR, J.]
->t or his wife Valliammal or daughter Palaniammal. The First Appellate A
Court had also correctly held that appellant in AS No. I 011995 in OS
No. 28011982 had established title of his vendors and further that his
vendors has passed a valid title to him with respect to the suit property
under Exhibits B-12 and B-13. We also accept the judgment of the
appellate court that Dharamrajan and other defendants were not entitled B
to the injunction prayed for.
17. In the result the appeals succeed with costs. The judgment
of the High Court is set aside and that of the First Appellate Court is
restored. c
B.B.B. Appeals allowed.
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