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CASE NO.: Appeal (civil)  4535-4536 of 2001

PETITIONER: Dharmarajan & Others

RESPONDENT: Valliammal & Others

DATE OF JUDGMENT: 11/12/2007

BENCH: H.K. Sema & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

V.S. SIRPURKAR, J.

1.      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 judgment passed by District Munsiff,  Bhawani whereby the District Munsiff had 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.   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/D1 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 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 property.  Before this sale deed  dated 10.10.1980, 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 of Rs.50/-.  It was further asserted that  defendants 1 to 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  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.1 herein) 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 other appellants claimed the other  half of the property on the plea that 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 of Karuppayee, Doraiswamy started working as a servant of  Venugopala Iyer and as such he was in occupation of the thatched salai

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(house) with the permission of Venugopala Iyer.  It was claimed that the  property stood in the name of Venugopala Iyer in Kavundapady  Panchayat.  In short it was contended that the present appellants were  owners of the property 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 herein stoutly denied the right of ownership on the part of  Doraiswamy 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, the Appellant No.1 Dharamrajan claimed half of the property  whereas the rest of the appellants claimed the other half of the property  being purchasers from the members of Iyer family. 4.      The Appellant No.1 Dharamarajan also filed a suit being OS 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 of Doraiswamy.  It must be stated here that Doraiswamy had by  then expired.  This was also a suit for declaration of title of Dharamrajan.   In this suit it was claimed that the property originally belonged to the father  of Krishnasamy 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 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 of Kandasamy Iyer.  An  injunction was also claimed against the defendants.  Valliammal and  Palaniammal firstly claimed that one suit was already filed against  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  Gounder, the plaintiff in OS No.555 of 1981.  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 of Kandasamy Iyer and  Venkatasubramia Iyer.  It was, therefore, pleaded that the vendors of the  plaintiff- Appellant No.1 herein were not entitled to the suit property and  they were never in possession of the same.  It was claimed that the suit  property was a poramboke 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 Doraiswamy was the husband of the first  defendant Valliammal 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  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. 5.      The Trial Court decreed the Suit No.555 of 1981 and dismissed Suit  No.280 of 1982 filed by the appellant no.1 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 decree of declaration of title.  However, since  the plaintiff therein (the appellant herein) had not terminated the licence of  Valliammal and Palaniammal in respect of the suit property that relief was  denied to the appellant No.1 herein and the suit succeeded only partly.  As  stated earlier, the plaintiff Muthuswamy Gounder filed Second Appeal  No.2236 of 1986 while Valliammal filed Second Appeal  No.2235 of 1986  which appeals have been allowed by the learned Single Judge of the High

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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 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, 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 the 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 his title vide a Sale Deed from Doraiswamy who  himself had continued to be in adverse possession after Karupayee  Ammal.  In 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 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 of  Karupayee Ammal and Doraiswamy adverse.  Learned counsel, therefore,  pleaded that once that plea was rejected, there was no question of  decreeing the suit and the suit should have been straightaway dismissed  as was done by the appellate court. Instead the High Court had found  entirely different theory by trying to re-appreciate the evidence even  regarding 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 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 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.   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 Court were as follows: "(1)    Whether the admitted long possession of the original  owner Karupayee and that of Doraiswamy 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  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? (4)     Whether Ex.A-8 is not admissible in evidence? And (5)     Whether lower appellate court is justified in decreeing  the suit for declaration, having found that the defendants are in  possession and having refused to grant injunction in favour of  the plaintiff?"

In our opinion none of these questions could be said to be either 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 not be said to be adverse possession  as throughout it was the case of the appellant Dharmarajan that it was a

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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 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 even the legal relationship of Doraiswamy 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 allegedly constructed by Karupayee Ammal.  There was no  question of the tacking of possession as there is ample evidence on record  to suggest that Doraiswamy also was in the service of Iyer family and that  he was permitted to stay after Karupayee Ammal.   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 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 the admissibility of Exhibit A-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 since the document itself was 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. 9.      It must be remembered that plaintiff Muthuswamy Gounder had  claimed the title and possession in respect of the suit property by virtue of  Exhibit A-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 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 regarding the  ownership of Doraiswamy was based solely on the plea of his adverse  possession.  Once that 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 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 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 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 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, from nowhere, found out that  it was an unoccupied Natham and Karupayee Ammal has entered the  possession and was 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 an

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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 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 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. 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 Dharamrajan had produced Exhibit 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 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 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 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 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 has given a finding that the suit  property was not the subject matter of Exhibit A-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 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 of Venugopala  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 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 Venugopala 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 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 Brahmin family never asserted title over the suit  property and the defendants only with a view to harass the  plaintiff has gone and taken sale deeds from the members of  the Brahmin family in the year 1980 knowing fully well that all  along the family never asserted title and had never been in  possession of the suit property."

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In our opinion these findings are entirely erroneous and the High 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 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 of Karupayee Ammal and thereafter of  Doraiswamy 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 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 Doraiswamy.  Learned counsel relied  upon the judgment of the Madras High Court in The Executive Officer,  Kadathur Town Panchayat, Harur Taluk, Dharamapuri District vs. I.V.  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 the ownership rights.  We are afraid the judgment is  being read too broadly.  No such proposition of law 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 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.1 of Schedule C property which  was not divided.  All the lengthy discussion by the High Court over that  issue was not only uncalled for but the High Court has gravely erred in  setting aside the finding of the appellate 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 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 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  formulated were neither the questions of law nor substantial questions of  law.  This is apart from the fact that in the present case the High Court has  completely gone astray 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 of law  has been reiterated.  Thus, the judgment suffers from error of law. 15.     Learned counsel for the respondent lastly suggested that  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 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. 16.     Once the suit of Muthuswamy Gounder fails, then the other suit filed  by Dharamrajan being OS 280 of 1982 in respect of the Eastern half  portion of the suit property must succeed.  The appellate court has rightly  granted the declaration in that suit and has also restricted the relief only to  the declaration since Dharmrajan and the other defendants had not  terminated or revoked the licence of Doraiswamy or his wife Valliammal or  daughter Palaniammal.  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 passed a valid title to him with

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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 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.