IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2407 OF 2002

Azrath Bivi and Anr.                 ...Appellant(s)

Versus

Chinnathambi (Dead) Thru. LRs.         ...Respondent(s)

O  R  D  E  R

Heard learned counsel for the parties.

The  plaintiffs  filed  a  suit  for  recovery  of  

possession  of  the  property  described  in  Schedule  ‘A’  

appended to the plaint.  They further prayed for grant of  

permanent  injunction  against  the  defendants  restraining  

them, their men and agents  from in any manner interfering  

with  their  possession  and  enjoyment  of  the  property  

described in Schedule A and B appended to the plaint and  

from constructing a new building thereon.  In short, the  

plaintiffs' case was that the suit property belonged to  

one  Sheik  Maracair  of  Pudupattinam  village,  who  died  

issueless  and  his  property  devolved  upon  his  sister  

Kathija Bivi, who executed a settlement deed in favour of  

her son Sultan Maracair.  Sultan Maracair transferred the  

property to the plaintiffs by oral hiba on 5th May, 1968.  

The validity of oral hiba became the subject matter of  

consideration in OS No.49/1968 filed in the Court of Sub-

ordinate Judge, Mayuram, who recorded a finding that hiba  

was  valid.   The  said  finding  was  upheld  by  the  lower  

appellate Court.   

....2/-

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During his life time, Sheikh Maracair constructed a  

shed  in  the  suit  property  and  let  out  the  same  to  

defendant No.1 on a monthly rent of Rs.20/- for a tea  

shop,  who, in  turn, entered  into some  arrangement with  

defendant  No.2  for  maintaining  the  tea  shop.  Defendant  

No.1 continued to occupy the tea shop even after execution  

of settlement deed by Kathija Bivi in favour of her son,  

Sultan  Maracair,  and  transfer  of  the  property  by  the  

latter in favour of  the plaintiffs by means of oral hiba.  

Defendant  No.1  defaulted  in  payment  of  rent  for  four  

years,  which  necessitated  filing  of  the  suit  by  the  

plaintiffs  for  possession  and  grant  of  permanent  

injunction.  Upon service of summons, defendant No.1 filed  

written statement in which he denied that Sheikh Maracair  

was the owner of the property and, after his death, his  

sister Kathija Bivi inherited the same.  He pleaded that  

Khatija Bivi was neither the owner of the property nor she  

was in possession thereof and the settlement deed executed  

by  her  was  invalid.   Defendant  No.1  also  denied  the  

assertion  contained  in  the  plaint  that  Sheikh  Maracair  

gave  him  the  property  for  running  a  tea  shop.   The  

transfer of property by Sultan Maracair in favour of the  

plaintiffs by oral hiba was also disputed.  According to  

defendant  No.1,  the  suit  property  was  a  Government  

property and he was occupying the same for the last thirty  

years.  He claimed title in the suit property by way of  

adverse possession.  The plaintiffs filed a reply to the  

written submission in paragraph (4) whereof it was stated  

that defendant No.1 renewed and executed a rent deed dated  

5th January, 1970.  Defendant No.1 filed two additional  

written statements but did not deny this averment.  On the

....3/-

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pleadings of the parties, one additional issue was framed  

on 20th November, 1980, and seven additional issues were  

framed  on  6th December,  1986.   Thereafter  the  parties  

adduced their respective evidence.  Upon consideration of  

the entire matter, the Trial Court decreed the suit. The  

appeal preferred by the defendant No.1 was dismissed by  

the  lower  appellate  Court  which  concurred  with  the  

findings recorded by the trial Court on all the issues.

Defendant No.1 challenged the judgments and decrees  

of the trial Court and lower appellate Court by filing  

second  appeal.  The High  Court framed  four substantial  

questions  of  law  and  upon  reappraisal  of  evidence,  

reversed the findings rendered by the Trial Court as well  

as  the  lower  appellate  Court  as  if  it  was  exercising  

powers of the first appellate court.  The High Court held  

that the approach adopted by the Trial Court and the lower  

appellate  Court  was  erroneous.   Hence,  this  appeal  by  

special leave.

Learned  counsel  appearing  on  behalf  of  the  

appellants  submitted  that  the  findings  recorded  by  the  

trial Court on various issues were based on comprehensive  

evaluation and appreciation of the pleadings and evidence  

of the parties and as those findings were confirmed by the  

lower appellate Court, the High Court was not justified in  

interfering  with  the  same  without  having  come  to  the  

conclusion that the findings of the fact were perverse.   

Learned counsel for the respondent supported the  

impugned judgment by arguing that the findings recorded by  

the trial Court on the issues of ownership of the suit  

property  and  landlord-tenant  relationship  between  the  

parties  were  ex facie  erroneous.  However, he could not

....4/-

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show that the findings recorded by the Trial Court and  

upheld by the lower appellate Court were perverse in any  

manner.

We have gone into the judgments rendered by the  

Trial Court as well as the lower appellate Court and the  

High Court.  In our view, the findings recorded by the  

Trial Court as well as the lower appellate court did not  

suffer from any error what to say of same being perverse.  

Therefore, the High Court was not justified in reversing  

the concurrent judgments and decreed of the courts below.

Accordingly,  the  appeal  is  allowed,  impugned  

judgment is set aside and the judgment and decree passed  

by the Trial Court as confirmed by the lower appellate  

Court is restored.

No costs.

......................J.            [B.N. AGRAWAL]

......................J.            [G.S. SINGHVI]

......................J.            [DR. MUKUNDAKAM SHARMA]

New Delhi, September 16, 2009.