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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NO. 2719  OF 2008

[Arising out of SLP(C) No. 6609 of 2006]

PAPPAYAMMAL ... APPELLANT(S)

:VERSUS:

PALANISWAMY AND ANR. ... RESPONDENT(S)

O R D E R

1. Leave granted.

2. This appeal is directed against a judgment and order dated 29.4.2005 passed

by a  learned Single  Judge of  the  High  Court  of  Judicature  at  Madras in Second

Appeal No. 1722/1993, dismissing the second appeal preferred by the appellant herein

from a judgment  and  decree  dated  17.9.1993  passed in  A.S.  No.  105/1993  by  the

Additional  Subordinate  Judge,  Erode  affirming  the  judgment  and  decree  dated

28.2.1991 passed by the First Additional District Munsif,  Erode in O.S. No.2784 of

1981.  

3. The relationship between the parties is not in dispute.  They are descendants

of Ramanna Gounder. Kuppanna Gounder, who was his son, by reason of two deeds

of sale dated 14.12.1932 (Ext. B.1) and 19.7.1934 (Ext. B.2), purchased the properties

in suit  which were described as Item Nos. 1 & 2 in the Schedule appended to the

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Plaint.  Kuppanna Gounder had two wives, Muthammal and Sellammal. Duraisamy

Gounder was born through his first wife Muthammal. The appellant herein (who was

the plaintiff  in the original suit) is the daughter-in-law of the said Muthammal, her

husband being Duraisamy Gounder. The said Kuppanna Gounder died on 30.7.1939.

Sellammal - the second wife of Kuppanna Gounder was the original defendant No.2.

She  died  on  28.6.1995  leaving  behind  her  son  Palanisamy,  who  was  arrayed  as

defendant No.1 in the suit and a daughter Rukmani. After the death of Sellammal,

Rukmani, who was impleaded as respondent herein was claiming her right, title and

interest in the suit property by reason of a Will purported to have been executed by

Sellammal in her favour on 10.6.1983.

4. Indisputably,  on or  about  30th July,  1956,  a  partition  took place between

Ramanna Gounder, grandfather of Duraisamy Gounder, and Palanisamy as also his

paternal uncles.  Sellammal was not a party to the said partition which took place on

30th July, 1956. The suit properties were not included in the said partition.   

5. The  contention  of  the  respondents  in  the  said  suit   was  that  the  suit

properties  were  given  by  way  of  a  family  settlement  in  favour  of  Sellammal  by

Kupanna Gounder for her maintenance during her life time as she was married at a

very young age.

6. It  is  stated that  although the  purported settlement was  made in  the  year

1939,  the  Patta  was  changed  in  the  name  of  Sallammal  only  in  the  year  1971.

Appellant filed a suit for partition claiming half  share in the suit properties.  Her

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admitted case is that the properties in suit were purchased by Kupanna Gounder and,

thus, the same  were his self-acquired properties. In view of rival contentions of the

parties in the said suit, as noticed hereinbefore, issues were framed, which inter alia,

were:  

1.  Whether the suit properties were given to the 2nd defendant as per family

arrangement as maintenance?

2.  Whether D-2  had made her rights  over the  suit  properties fructify  by

adverse possession and removal of possession?       

7. Both the  aforementioned issues  were decided  in favour  of  the  defendants

both by the learned Trial Judge as also the First Appellate Court.  

8. In the second appeal preferred by the appellant herein, the only substantial

question of law which was raised reads as under:

“Whether the finding of the Courts below, that the second respondent

proved  her  hostile  title  coupled  with  exclusive  possession  and

enjoyment to the knowledge of the appellant, is correct in law or not?

9. Appellant herein in the said second appeal filed an application for adduction

of additional evidence in terms of Order 41 Rule 27 of the Code of Civil Procedure

(CPC) for bringing on records four items of documents which are as under:

“1.  Certified  copy of  the  statement  of  Chellammal,  the  deceased,  2nd

respondent  herein,  before  the   Land  Acquisition  Officer  dated

29.3.1954.

2. Certified copy of Award No. 18/54 dated 29.3.1954 on the file of the

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special  Deputy  Collector,  Land  Acquisition,  Lower  Bhavani  Project,

Erode.  

3.  Certified  copy  of  the  Irrigation  permit  issued  by  the  Executive

Engineer, I.B.R. Canal Division, Erode, in permit N.A/2192 in respect of

S.F. No. 707/A.

4.  Certified  copy  of  irrigation  permitted  issued  by  the  Executive

Engineer, I.B.R. Canal Division, Erode, in permit No. A/2193 in respect

of S.F. No. 707 B.1.”

10. Indisputably, the said application was resisted by the  respondents herein.

They filed their counter affidavit to the said application.  By reason of the impugned

judgment,  the  High  Court  although  answered  the  substantial  question  of  law

formulated therein in favour of the appellant, it refused to allow the appellant herein

to adduce additional evidence as prayed for in his application dated 10.9.1997.   

11. The  High  Court  opined  that  the  appellant  had  failed  to  show  that  due

diligence was exercised by her to collect the relevant records even during the trial of

the suit.   It  was  noticed that the suit  was filed in the year 1981.  The Trial  Court

delivered its judgment in 1991. The First Appellate Court delivered its judgment in

1993 and the second appeal was filed in the same year. The High Court opined that no

ground had been shown by the appellant for filing the said application under Order

41 Rule 27 of CPC only on or about 9.9.1997 i.e. after a period of four years. It was

furthermore held that the Court could pronounce the judgment even without the said

additional documents.

12. Mr. Balaji, learned counsel appearing on behalf of the appellant, in support

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of  this  appeal,  would  submit  that  Item  No.1  of  the  application  for  adduction  of

additional  evidence  contains  a  statement  of  Sellammal  (since  deceased)  that  the

properties in the suit  were joint family properties and if that be so, the appellant and

her  husband  Duraisamy  Gounder  had  coparcernary  interest  therein.   It  was

furthermore urged that the very fact that the first  respondent  as also the original

defendant No.2 had raised the contention of acquiring the indefeasible title in the suit

property by prescription goes to show that the appellant had title in the suit property.

Reliance in this behalf has been placed in  P.T. Munichikkanna Reddy and Ors. vs.

Revamma and Ors., [2007 (6) SCC 59].       

13. Mr. Viswanatha Shetty, learned senior counsel appearing on behalf  of the

respondents, on the other hand, would submit that keeping in view the fact that the

only substantial question of law formulated in the second appeal by the High Court

related to question of adverse possession, no case has been made out for interference

with  the  impugned judgment.   It  was   furthermore submitted  that  the  purported

statement made by Sellammal, should have been brought on record during her life

time so as to enable her to deny or explain the same. It was furthermore submitted

that other documents mentioned in the said application for adduction of additional

evidence were not relevant for the purpose of determination of the issues.    

14. The High Court while exercising its power under Section 100 of CPC has a

limited jurisdiction.   

15. Before proceeding to hear out the second appeal, a substantial question of

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law must  be  formulated,  subject  to  the  exceptions  contained in  sub-section  (5)  of

Section 100 of CPC.  Determination of the second appeal must be kept confined to the

question so formulated.   

16. We have noticed hereinbefore that both the issues which were framed by the

learned Trial Judge were decided against the appellant. Even if it was held that the

original defendant No.2 was not entitled to claim any right, title and interest in the

suit property by adverse possession or otherwise, she has been held to be entitled to

claim her right, title and interest on the basis of the settlement and as a maintenance

holder, which fructified in absolute ownership in terms of sub-section (1) of Section 14

of the Hindu Succession Act, 1956.  

17. It is beyond any doubt or dispute that both the Courts below have arrived at

a finding of fact that a family settlement by way of maintenance was arrived at by the

aforementioned Kuppanna Gounder in favour of Sellammal, as far back as in 1939.

The Courts below have also noticed the subsequent dealings of the said properties by

Sellammal as  also  the  fact  that  in  the  deed of  partition  dated 30.7.1956,  the said

properties had not been mentioned to arrive at the finding that the contentions raised

by the said defendant was acceptable. The said finding of fact is a concurrent one.   

18. Our attention has, furthermore, been drawn to the fact that even at a later

stage, one of the properties had been sold by her exclusively, and in the said deed of

sale Duraiswamy Gounder was an attesting witness. If that be so, indisputably she had

a  right  to  deal  with  the  said  properties  as  if  she  was  the  owner  thereof.  It  was

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furthermore not the case of the appellant that the properties in suit were just family

properties. According to the appellant herself, the same were self-acquired properties

of late Kupanna Gounder.   

19. Even while executing the deed dated 4.9.1962, Duraisamy Gounder had not

settled the properties in suit in favour of his wife, the plaintiff-appellant herein, which

also go to show that he never laid any claim over the said properties.  

20. The concurrent  finding  of  fact  arrived at  by  the  two Courts  below were

binding on the High Court. As a matter of fact, as noticed hereinbefore,  the High

Court had not formulated any substantial question of law so as to enable it to decide

the second appeal on the first issue viz. the inherited right of the original defendant

No.2 in the suit properties. Even then, assuming that the appellant's application for

adduction of additional evidence under Order 41 Rule 21 of the CPC, should have

been entertained by the High Court at the stage of second appeal, in our opinion, the

same would have ended in futility as no substantial question of law was formulated by

the High Court to interfere with the said findings of fact.   

21. Furthermore,  the  High  Court  proceeded  to  determine  the  substantial

question of law formulated in the second appeal in favour of the appellant on the

premise that the original defendant No.2 herself having claimed the right, title and

interest in the properties in terms of oral settlement by way of maintenance, which

according to her, had fructified in an absolute ownership in terms of sub-section (1) of

Section 14 of the Hindu Succession Act,  1956, could not have claimed prescriptive

right over the said properties.

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22. For the reasons aforementioned, there is no merit in this  appeal  which is

dismissed accordingly.  However,  in the facts and circumstances  of  this  case,  there

shall be no order as to costs.

..........................J (S.B. SINHA)

..........................J   (LOKESHWAR SINGH PANTA) NEW DELHI, APRIL 9, 2008.