http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  5472-5475 of 2001

PETITIONER: Kannan (dead) by Lrs and others

RESPONDENT: V.S. Pandurangam (dead) by Lrs & others

DATE OF JUDGMENT: 27/11/2007

BENCH: A.K. Mathur & Markandey Katju

JUDGMENT: JUDGMENT

CIVIL APPEAL NOS. 5472-5475 OF 2001

O R D E R

1.      These appeals are directed against the impugned judgment of  the Madras High Court dated 17.8.2000 in Second Appeal Nos.  1601-04/1986.  

2.      Heard learned counsel for the parties and perused the record.

3.      The respondent in these appeals, Pandurangan filed a suit  being Original Suit No. 807 of 1982 (OS No. 135 of 1982 at  Cuddalore) which was decreed on 20.8.1984 by the trial court.  In  that suit the plaintiff alleged that he is the owner of the property in  question, and he prayed for declaration of his title and for a decree  of possession against the defendant.

4.      Against the judgment and decree of the trial court the  appellant herein filed an appeal which was allowed by the  Additional Sub-ordinate Judge, Cuddalore on 30.12.1985.  The  First Appellate Court set aside the judgment of the trial court and  allowed the appeal and dismissed the plaintiff’s suit, holding that  the defendant had acquired title by adverse possession over the  property in dispute.

5.      Against the aforesaid decision the plaintiff (respondent  herein), filed a second appeal which was allowed by the High  Court by the impugned judgment dated 17.8.2000.

6.      The High Court relying on several decisions held that the  ingredients of adverse possession (nec vi, nec clam, nec precario  vide P. Lakshmi Reddy vs. L. Lakshmi Reddy AIR 1957 SC  314,  Suraj Mal and Another vs. Ram Singh and Others AIR  1986 SC 1889,  Achal Reddi vs. Ramakrishna Reddiar and  Others AIR 1990 SC 553, etc.) have not been satisfied by the  defendant and hence the plaintiff’s suit deserves to be decreed,  since admittedly the plaintiff was the owner of the property in  dispute.

7.      Learned counsel for the appellant has submitted that no  substantial question of law was framed by the High Court as  required by Section 100 (4) C.P.C.  Hence he submitted that the  impugned judgment of the High Court deserves to be set aside.

8.      It is true that in this case no substantial question of law has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

been formulated by the High Court.  However, in our opinion,  merely because no substantial question of law has been formulated  by the High Court that does not mean that the judgment of the  High Court automatically becomes a nullity or that it must  necessarily be set aside by this Court on that ground alone.  The  appellant before us must also show prejudice to him on this  account.

9.      Learned counsel for the appellant has shown us several  decisions of this Court where the judgments of the High Court in  Second Appeal were set aside on the ground that no substantial  question of law had been framed by the High Court as required by  Second 100 (4) C.P.C.  In our opinion these decisions cannot be  said to have laid down any absolute proposition of law that  whenever a second appeal is decided by the High Court without  formulating a substantial question of law that judgment must  necessarily be set aside.   In our opinion, the judgment of the High  Court should not be set aside on this ground alone if no prejudice  had been caused to the appellant before us on this account.

10.     In the present case both the parties knew that the question  involved was whether the defendant (appellant) in this case had  been able to prove his title by adverse possession.   Hence the non- framing of a substantial question of law in this case did not  prejudice the appellant at all before the High Court.  

11.     By a series of decisions of this Court it has been settled that  omission to frame an issue as required under Order XIV Rule 1  C.P.C. would not vitiate the trial in a suit where the parties went to  trial fully knowing the rival case and led evidence in support of  their respective contentions and to refute the contentions of the  other side  vide Nedunuri Kameswaramma vs. Sampati Subba  Rao AIR 1963 SC 884.

12.     In Sayeda Akhtar vs. Abdul Ahad AIR 2003 SC 2985 it  was held by this Court that even if no specific issue has been  framed but if the parties were aware of that issue and have led  evidence on it, the Appellate Court should not interfere with the  findings of the trial court.  A similar view was taken in Kali  Prasad Agarwalla and others vs. M/s Bharat Coking Coal  Limited and others 1989 Supp (1) SCC 628 (vide paragraph 19)  and in Shaikh Mahamad Umarsaheb vs. Kadalaskar Hasham  Karimsab and others AIR 1970 SC 61( vide paragraph 9) as well  as in several other decisions.

13.     In the present case, the parties knew well that the question of  adverse possession has been pleaded by the defendant appellant  and evidence was led on this issue.  Hence no prejudice has been  caused to the appellant by non-framing of a substantial question of  law by the High Court.  In our opinion, the ratio of the decisions on  Order XIV Rule 1 C.P.C.  will also apply when a judgment of the  High Court is challenged on the ground that a substantial question  of law was not formulated by the High Court as required by  Section 100 (4) C.P.C.  In our opinion, this Court should not take  an over technical  view of the matter to declare that every  judgment of the High Court in Second Appeal would be illegal and  void, merely because no substantial question of law was  formulated by the High Court.  Such an over technical view would  only result in remitting the matter to the High Court for a fresh  decision, and thereafter the matter may again come up before us in  appeal.  The judiciary is already overburdened with heavy arrears,  and we should not take a view which would add to the arrears.   

14.     In our opinion, the judgment of the High Court should only  be set aside on the ground of non compliance with Section 100(4)  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

if some prejudice has been caused to the appellant before us by not  formulating such a substantial question of law.

15.     In the present case, we agree with the view taken by the High  Court that the defendant appellant has not been able to establish  that the ingredients of plea of adverse possession (nec vi, nec clam,  nec precario) had been established by the defendant-appellant.   Hence there is no force in these appeals which are accordingly  dismissed.  No costs.

16.     Normally, we grant six months’ time to the tenant to vacate  the residential premises but looking to the fact that the appellants  have been in possession of the suit premises for a long time,  therefore, as a special case we grant to the appellants time till  31.12.2008 to vacate and hand over vacant physical possession of  the suit premises subject to the appellants’ filing the usual  undertaking before this Court within a period of eight weeks from  today.