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CASE NO.: Appeal (civil)  3398 of 2000

PETITIONER: Vishwanatha Achari                                               

RESPONDENT: Kanakasabapathy                                                  

DATE OF JUDGMENT: 26/07/2005

BENCH: ARIJIT PASAYAT & H. K. SEMA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

This appeal is directed against the judgment rendered by a  learned Single Judge of the Madras High Court dismissing the second  appeal filed by the appellant on the ground that there was no challenge  to the finding recorded by the First Appellate Court regarding adverse  possession.   

A brief reference to the factual aspects would suffice.  

A suit was filed by the respondents for declaration of title, and  the suit was numbered as O.S. No.59/88.  Written statement was filed by  the appellant who was the defendant.  The trial Court framed the  following issues:

a.      Whether the disputed property belongs to the  plaintiff? b.      Whether the suit is maintainable? c.      What remedy/relief the plaintiff is entitled  to?

The trial Court dismissed the suit. The plaintiff (respondent  herein) preferred an appeal and by judgment and order dated 11.9.1991  learned Additional District Judge, Ramnad, Madurai allowed the appeal.  One of the major conclusions of the First Appellate Court was that the  plaintiff had perfected title by adverse possession.  The appellant  filed the second appeal taking the stand that no such issue was framed  by the trial Court and, therefore, the defendant had no opportunity to  adduce evidence on this question.  The High Court as noted above,  dismissed the second appeal summarily on the ground that the First  Appellate Court’s observations regarding adverse possession were not  questioned and no ground was taken in the second appeal.

There is no appearance on behalf of the respondent in spite of  the notice.

 Learned counsel submitted that the High Court has clearly  fallen in error by observing that there was no challenge to the finding  regarding adverse possession.  He has referred to the memorandum of  appeal in this regard.

We find that the High Court has clearly erred in holding that  there was no challenge by the appellant in the second appeal to the  conclusions regarding adverse possession.   As a matter of fact, a

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question of law in this regard was formulated, as required under  Section 100(4) of the Code of Civil Procedure, 1908 (in short ’CPC’).

It appears from the memorandum of appeal that in the ground no.8  it was specifically stated as follows:

"the Appellate Court below had erred in passing  issues other than those framed by the Trial Court  thereby depriving appellant to tender evidence and  documents on the new issues apart from the illegality  and infirmity attached herewith."

A question was also formulated i.e. whether the lower Appellate  Court is justified in dealing with issues other than those framed by  the Trial Court and deciding the same in favour of the plaintiff  depriving the defendant the opportunity to counter to plaintiff’s  evidence. It has been clearly stated that there was no issue framed  regarding the adverse possession. The lower Appellate Court was not  justified in deciding issues which were not framed.  The High Court  seems to have taken a view that there was no direct reference to the  issue of adverse possession. But that is really of no consequence when  the specific stand of the appellant was that there was no issue framed  relating to adverse possession and, therefore, the First Appellate  Court should not have recorded any finding on that regard. The Trial  Court had not specifically framed any issue relating to adverse  possession.  Under Section 107 of the CPC, the Appellate Court has  power to frame issue other than those framed by the trial Court.  But  here again the requirement is to refer them for trial.   Consequentially, the defendant would have got opportunity to adduce  evidence in that regard.   

Above being the position, the conclusions of the High Court do  not appear to be correct, the judgment cannot be maintained and is  accordingly set aside. The matter is remitted to the High Court for  fresh consideration.  It is made clear that we have not expressed any  opinion on the merits of the case.   

The appeal is disposed of accordingly without any order as to  costs.