Nazir Mohamed v. J. Kamala and Ors.
INDIRA BANERJEE, J.
1. These appeals are against a common judgment and order dated
06.11.2008 dismissing the Second Appeal being S.A. (MD) No.64 of
2000, filed by the Appellant, but allowing the Second Appeal being S.A.
(MD) No. 558 of 2000 filed by the Respondent, and setting aside t he
judgment and decree dated 17.09.1999 of the First Appellate Court in
A.S. No.16/1998, to the extent the First Appellate Court had declined
the Respondent’s claim to a decree of recovery of possession of the suit
premises. The High Court held that the Respondent, being the Plaintiff
in the suit was entitled to a declaration of title in respect of half portion
of the suit premises, recovery of possession of the said half p ortion of
the suit premises and also to recovery of income from the sai d half of
the suit property owned by the Respondent and/or charges for use,
enjoyment and/or occupation thereof.
2. The Appellant claims to be the owner of the suit premise s,
being the building and premises at Door No.4 in R.S. No.120/13 at Mela
Senia Street, Aduthurai, Tamil Nadu.
3. According to the Appellant, the Appellant’s father purchased
the suit premises for valuable consideration, by a registered deed of sale
dated 17.2.1938. The Appellant claims to have been in possession of the
suit premises, as owner, from the inception and not as tenant.
4. In 1994, the Respondent, hereinafter referred to as the
‘Respondent Plaintiff’, filed a suit being O.S. No.169/1994 in the Court
of the District Munsif, Valaingaiman at Kumbhakonam, claiming
declaration of ownership of the suit premises, a direction on the Appellant,
being the Defendant, to deliver possession of the suit premise s to the
Respondent Plaintiff, a decree for payment of Rs.900/- towards arrears
of rent/occupation charges in respect of the suit premises, and a decree
for payment of future profits.
5. In the plaint filed in the said suit, it has been alleged that the
said premises, which had been purchased by the Respondent Plaintiff’s
father, by a registered sale deed dated 17.9.1940, had originally been let
out to the Appellant’s father M. Abdul Aziz. After the death of
M. Abdul Aziz, the tenancy was attorned in the name of the Appellant,
who agreed to pay rent of Rs.25/- per month, and also the requis ite
Panchayat Tax.
773
6. Alleging that the Appellant had been trying to set up ti tle in
respect of the said premises, by applying for ‘Patta’ to the Tahsildar
Natham, and further alleging that the Appellant was in arrears of rent to
the tune of Rs.1225/- up to February, 1994, the Respondent Pl aintiff
filed the aforesaid suit.
7. In the suit, the Respondent Plaintiff inter alia claimed a decree
of Rs.900/- towards rent and/or occupation charges. The Respo ndent-
Plaintiff restricted his claim to arrears of rent and/or occupation charges
to three years, as the claim to rent and/or occupation cha rges for the
earlier period, had become barred by limitation, th ere being no
acknowledgement of liability by the Appellant-Defendant.
8. The Appellant-Defendant filed his written statement in the Suit,
denying title and/or ownership of the Respondent Plaintiff to the suit
premises and also contending that the Appellant-Defendant was not a
tenant. The Appellant-Defendant claimed absolute ownership of the suit
premises, which he claimed had been purchased by his father , by a
registered sale deed dated 17.2.1938, for valuable consideration.
9. The Appellant-Defendant further contended that t he suit
premises had all along, been assessed to tax in the name of the Appellant-
Defendant’s father, Abdul Aziz, and not in the name of the Respondent
Plaintiff or his father. The Appellant-Defendant claimed to have got the
suit premises from his father, under a registered De ed of Release
dated 14.3.1966. According to the Appellant-Defendant, he has, sinc e
1966, owned and enjoyed the suit premises, with absolute rights.
10. The learned District Munsif (Trial Court) framed the following
three issues for adjudication in the said suit :-
(i) Whether the Respondent Plaintiff was entitled to declaration
of title to the suit property and recovery of possession of the
suit property from the Defendant (the Appellant in this Appeal)
(ii) Whether the Defendant (the Appellant herein) was a te nant
at the suit property or not;
(iii) To what other relief was the Respondent Plaintiff entitled.
11. By a judgment and decree dated 22.1.1998, the Trial Court
dismissed the said suit, holding that the Respondent Plaintiff had failed
to prove that the suit property had been purchased by his father. All the
three issues were decided against the Respondent Plaintiff.
NAZIR MOHAMED v. J. KAMALA AND ORS.
[INDIRA BANERJEE, J.]
12. The Trial Court found that the Respondent Plaintiff had not
been able to produce any rent agreement, rent receipts or any other oral
or documentary evidence to establish that the Appellant was a tenant at
the said premises. The Trial Court held that the Respondent Plaintiff
was not entitled to any relief in the said suit.
13. Being aggrieved by the said judgment and decree
dated 22.1.1998 passed by the Trial Court, the Respondent Plaint iff
appealed to the Subordinate Court at Kumbhakonam, hereinafter referred
to as the ‘First Appellate Court’.
14. By a judgment and order dated 17.9.1999, the First Appellate
Court allowed the said appeal, and set aside the said judgment and order
dated 22.1.1998 of the Trial Court , holding that the Respondent Plaintiff
was entitled to declaration of title over half portion of the suit premises
and also to recovery of income, if any, from the said half portion of the
suit premises owned by the Respondent Plaintiff and/or charges for use,
occupation and/or enjoyment thereof, but not to recovery of possession.
15. The claim of the Respondent Plaintiff in the suit was based on
the assertion that one Rajagopala Pattar, who had purchased t he suit
premises in a Court Auction, had sold the said premises to the Respondent
Plaintiff’s father in 1940.
16. The First Appellate Court analyzed the oral evidence adduced
on behalf of the parties, scrutinized and examined the docume ntary
evidence on record, including in particular the regist ered deed of
conveyance by which the Respondent Plaintiff’s father had purchased
his portion of the suit premises from Rajagopala Pattar (Exhibit P1), the
registered documents by which Rajagopala Pattar had acquired the suit
premises in a Court Auction (Exhibits P2 and P3) and the reg istered
deed of conveyance executed on 17.02.1938 being Exhibit D1 by which
the Appellant-Defendant’s father M. Abdul Aziz had purchased his portion
of the suit premises, examined the extent of the rights of the respective
vendors of the Appellant-Defendant’s father and the Respondent-
Plaintiff’s father and/or their predecessors-in-interes t, and concluded
that the Appellant-Defendant’s father had only purchased a p ortion of
the suit premises, not the entire suit premises, and the other portion had
been purchased by the Respondent-Plaintiff’s father. The First Appellate
Court, therefore, held that the Respondent-Plaintiff was ent itled to a
declaration in respect of the said portion of the suit premises, purchased
by his father.
775
17. The First Appellate Court also took note of the fact t hat the
Appellant-Defendant’s family had been residing in the suit property since
1940, and that the Respondent-Plaintiff had not produced any rent
agreement or receipts or any tax receipts in respect of the suit premises
to show that the Respondent-Plaintiff or his father or any other f amily
member had ever paid any taxes in respect of the suit premises.
18. The First Appellate Court concurred with the finding of the
Trial Court, that the Respondent-Plaintiff had failed to establish that the
said premises had been rented out to M. Abdul Aziz f ather of the
Appellant-Defendant. On the other hand, the Appellant had been in
possession of and had been enjoying the suit premises for a long time .
The First Appellate Court thus found the Appellant liable to pay “backage
income” in respect of the portion of the suit property, of which the
Respondent Plaintiff was the owner.
19. The First Appellate Court, in effect, held that the Ap pellant
was liable to make over to the Respondent Plaintiff, income if any, derived
from the said portion of the suit premises which was own ed by the
Respondent Plaintiff and/or pay charges for use, occ upation and
enjoyment of the portion of the suit premises owned by the Respondent
Plaintiff.
20. The First Appellate Court, however, held that the Respondent
Plaintiff was not entitled to recovery of possession since the Respondent
Plaintiff had failed to establish landlord-tenant relationship between the
Respondent Plaintiff and the Appellant defendant, and that in any case
the Appellant had been in possession of the suit premises for a long time.
21. The First Appellate Court passed a fair and just order, holding
that the Respondent-plaintiff, being the owner of a portion of the said
premises, was entitled to declaration of title in respect of the said portion
of the suit property owned by him, but not to recovery of possession,
since the defendant being the Appellant herein had been enjoying the
suit property for a long time. In effect and substance, the First Appellate
Court found that the relief of recovery of possession was barr ed by
delay and/or in other words the laws of limitation, although this has not
clearly been stated in the judgment and order of the First Appellate Court.
22. Being purportedly aggrieved by the reversal of the judgment
and decree of the Trial Court, dismissing the said suit, the Appellant-
Defendant filed a Second Appeal being S.A. No. 64/2000 in the Madras
NAZIR MOHAMED v. J. KAMALA AND ORS.
[INDIRA BANERJEE, J.]
High Court, against the judgment of the First Appellate Court . The
Respondent Plaintiff also filed Second Appeal No.558 of 2000 in the
Madras High Court, against the same judgment and dec ree dated
17.9.1999, to the extent the Respondent Plaintiff had been denied the
relief of delivery of possession in respect of his half shar e in the suit
premises.
23. By the judgment and order of the High Court under appeal
before this Court, the Second Appeal No. 64 of 2000 fil ed by the
Appellant-Defendant has been dismissed, the Second Appeal No.559 of
2000 filed by the Respondent Plaintiff has been allowed and the judgment
and decree of the First Appellate Court set aside, to the e xtent the
Respondent Plaintiff had been denied the relief of recovery of possession
in respect of half of the suit premises. The High Court held that the
Respondent Plaintiff was entitled to recovery of half of the plaint
scheduled property, after identifying the same with the help of an
Advocate Commissioner, at the time of the execution of the decree. In
all other respects, the decree of the First Appellate Court was confirmed.
24. Section 100 of the Civil Procedure Code (CPC) which provides
for a Second Appeal, as amended by the Civil Procedu re Code
(Amendment) Act, 104 of 1976, with effect from 1.2.1977,provides as
follows:-
“100. Second Appeal. - (1) Save as otherwise expressly provided
in the body of this Code or by any other law for the time being in
force, an appeal shall lie to the High Court from every decree
passed in appeal by any Court subordinate to the High Court, if
the High Court is satisfied that the case involves a subst antial
question of law.
(2) An appeal may lie under this section from an appellate decree
passed ex parte.
(3) In an appeal under this section, the memorandum of appeal
shall precisely state the substantial question of law involved in the
appeal.
(4) Where the High Court is satisfied that a substantial qu estion
of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and
the respondent shall, at the hearing of the appeal, be allowed to
argue that the case does not involve such question:
777
Provided that nothing in this sub-section shall be deemed to take
away or abridge the power of the Court to hear, for reasons to be
recorded, the appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves such
question.]”
25. A second appeal, or for that matter, any appeal is not a matter
of right. The right of appeal is conferred by statute. A second a ppeal
only lies on a substantial question of law. If statute confers a limited right
of appeal, the Court cannot expand the scope of the appeal. It was not
open to the Respondent-Plaintiff to re-agitate facts or to call upon the
High Court to reanalyze or re-appreciate evidence in a Second Appeal.
26. Section 100 of the CPC, as amended, restricts the right o f
second appeal, to only those cases, where a substantial question of law
is involved. The existence of a “substantial question of law” is the sine
qua non for the exercise of jurisdiction under Section 100 of the CPC.
27. The High Court framed the following Questions of law:-
“1. Whether the Lower Appellate Court is right in refusing the
relief of possession especially when the Lower Appellate Court
granted relief of mesne profits till delivery of possession.?
2. Whether the Lower Appellate Court is right in holding that the
plaintiff is entitled to a declaration in respect of half of the suit
property overlooking the pleadings and the documents of title
in the instant case?”
28. On behalf of the Appellant-Defendant, it has strenuously been
contended, and in our view, with considerable force, that there was no
question of law involved in either of the second appeals, far less any
substantial question of law, to warrant inference of the H igh Court in
Second Appeal No. 64 of 2000.
29. The principles for deciding when a question of law becomes a
substantial question of law, have been enunciated by a Constitution Bench
of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. &
Mfg. Co. Ltd. 1, where this Court held:-
“The proper test for determining whether a question o f law
raised in the case is substantial would, in our opi nion, be
whether it is of general public importance or whether it directly
1 AIR 1962 SC 1314
NAZIR MOHAMED v. J. KAMALA AND ORS.
[INDIRA BANERJEE, J.]
and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not
finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or cal ls for
discussion of alternative views. If the question is settled by
the highest court or the general principles to be a pplied in
determining the question are well settled and there is a me re
question of applying those principles or that the pl ea raised
is palpably absurd the question would not be a subs tantial
question of law.”
30. In Hero Vinoth v. Seshammal 2, this Court referred to and
relied upon Chunilal v. Mehta and Sons (supra) and other judgments
and summarised the tests to find out whether a given set of questions of
law were mere questions of law or substantial questions of law.
31. The relevant paragraphs of the judgment of this Court in Hero
Vinoth (supra) are set out hereinbelow:-
“21. The phrase “substantial question of law”, as occurrin g
in the amended Section 100 CPC is not defined in the Code.
The word substantial, as qualifying “question of law”, means
of having substance, essential, real, of sound worth, important
or considerable. It is to be understood as somethin g in
contradistinction with-technical, of no substance o r
consequence, or academic merely. However, it is clear that
the legislature has chosen not to qualify the scope of
“substantial question of law” by suffixing the word s “of
general importance” as has been done in many other
provisions such as Section 109 of the Code or Article 133(1)(a)
of the Constitution. The substantial question of law on whi ch
a second appeal shall be heard need not necessarily be a
substantial question of law of general importance. In Guran
Ditta v. Ram Ditta [(1927-28) 5I 5 IA 235 : AIR 1928 PC 172]
the phrase substantial question of law as it was emplo yed in
the last clause of the then existing Section 100 CP C (since
omitted by the Amendment Act, 1973) came up for
consideration and their Lordships held that it did not mean a
substantial question of general importance but a sub stantial
2 (2006) 5 SCC 545
779
question of law which was involved in the case. In Sir Chunilal
case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the
Constitution Bench expressed agreement with the fol lowing
view taken by a Full Bench of the Madras High Court in
Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Ma d
969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [ 1962
Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557)
“When a question of law is fairly arguable, where t here is
room for difference of opinion on it or where the Court thought
it necessary to deal with that question at some len gth and
discuss alternative views, then the question would be a
substantial question of law. On the other hand if the question
was practically covered by the decision of the highest court
or if the general principles to be applied in determinin g the
question are well settled and the only question was of ap plying
those principles to the particular fact of the case it woul d not
be a substantial question of law.”
32. To be “substantial”, a question of law must be debatable, not
previously settled by the law of the land or any binding precedent, and
must have a material bearing on the decision of the case and/or the
rights of the parties before it, if answered either way.
33. To be a question of law “involved in the case”, there must be
first, a foundation for it laid in the pleadings, and the que stion should
emerge from the sustainable findings of fact, arrived at by Courts of
facts, and it must be necessary to decide that question of law for a just
and proper decision of the case.
34. Where no such question of law, nor even a mixed question of
law and fact was urged before the Trial Court or the Fi rst Appellate
Court, as in this case, a second appeal cannot be entertained, as held by
this Court in Panchagopal Barua v. Vinesh Chandra Goswami 3.
35. Whether a question of law is a substantial one and wheth er
such question is involved in the case or not, would depend on the facts
and circumstances of each case. The paramount overall considerati on
is the need for striking a judicious balance between the ind ispensable
obligation to do justice at all stages and the impelling necessity of avoiding
3 AIR 1997 SC 1047
NAZIR MOHAMED v. J. KAMALA AND ORS.
[INDIRA BANERJEE, J.]
prolongation in the life of any lis. This proposition finds support from
Santosh Hazari v. Purushottam Tiwari 4.
36. In a Second Appeal, the jurisdiction of the High Court being
confined to substantial question of law, a finding of fact is not open to
challenge in second appeal, even if the appreciation of evidence is
palpably erroneous and the finding of fact incorrec t as held in
Ramchandra v. Ramalingam 5. An entirely new point, raised for the
first time, before the High Court, is not a question involved in the case,
unless it goes to the root of the matter.
37. The principles relating to Section 100 CPC relevant for t his
case may be summarised thus :
(i) An inference of fact from the recitals or content s of a
document is a question of fact, but the legal effect of the
terms of a document is a question of law. Construction of a
document, involving the application of any principle of law, is
also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law.
A question of law having a material bearing on the decision
of the case (that is, a question, answer to which affects the
rights of parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of law or
settled legal principle emerging from binding precedents, and,
involves a debatable legal issue.
(iii) A substantial question of law will also arise in a c ontrary
situation, where the legal position is clear, either on account
of express provisions of law or binding precedents, but the
Court below has decided the matter, either ignoring or acting
contrary to such legal principle. In the second type of cases,
the substantial question of law arises not because the law is
still debatable, but because the decision rendered on a material
question, violates the settled position of law.
4 (2001) 3 SCC 179
5 AIR 1963 SC 302
781
(iv) The general rule is, that High Court will not interfere w ith
the concurrent findings of the Courts below. But it is not an
absolute rule. Some of the well-recognised exceptions ar e
where (i) the courts below have ignored material evidence
or acted on no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law erroneously;
or (iii) the courts have wrongly cast the burden of proof. A
decision based on no evidence, does not refer only to cases
where there is a total dearth of evidence, but also refers to
case, where the evidence, taken as a whole, is not reasonably
capable of supporting the finding.
38. With the greatest of respect to the High Court, neither of the
two questions framed by the High Court is a question of law, far less a
substantial question of law. There was no controversy before the High
Court with regard to interpretation or legal effect of any document nor
any wrong application of a principle of law, in construing a document, or
otherwise, which might have given rise to a question of law. There was
no debatable issue before the High Court which was not cover ed by
settled principles of law and/or precedents.
39. It is nobody’s case that the decision rendered by the Fir st
Appellate Court on any material question, violated any settled question
of law or was vitiated by perversity. It is nobody’s case that the evidence
taken as a whole does not reasonably support the finding of the First
Appellate Court, or that the First Appellate Court interpreted the evidence
on record in an absurd and/or capricious manner. It is also no body’s
case that the First Appellate Court arrived at its decisi on ignoring or
acting contrary to any settled legal principle.
40. The First Appellate Court examined the evidence on record at
length, and arrived at a reasoned conclusion, that the Appellant-Defendant
was owner of a part of the suit premises and the Respondent- Plaintiff
was owner of the other part of the suit premises. This finding i s based
on cogent and binding documents of title, including the registered deeds
of conveyance by which the respective predecessors-in-intere st of the
Appellant-Defendant and Respondent-Plaintiff had acquired title over
the suit premises. There was no erroneous inference from any proved
fact. Nor had the burden of proof erroneously been shifted.
41. The second question of law, that is, the question of whether
the First Appellate Court was right in holding that the plaintiff was entitled
NAZIR MOHAMED v. J. KAMALA AND ORS.
[INDIRA BANERJEE, J.]
to a declaration of title in respect of half of the suit p roperty, has, as
observed above, been decided in favour of the Respondent Plaintif f,
based on pleadings and evidence. The conclusion of the First Appellate
Court, of the entitlement of the Respondent Plaintiff to a declaration in
respect of his half share in the suit property does not warrant interference
in a second appeal.
42. The first question framed by the High Court, that is, the question
of whether the Lower Court /Appellate Court was right in refusing the
Respondent Plaintiff relief of possession, when the Appellate Court had
granted mesne profits to the Respondent Plaintiff, is based on the
erroneous factual premises that the First Appellate Court had gr anted
mesne profits to the Respondent Plaintiff, which the First Appellate Court
had not done.
43. The first question is not at all a question of law, far less any
substantial question of law involved in the case. The High Court held:-
“8. Substantial Question of law No. 1:-
After declaring one half right in respect of the plaint sc hedule
property, the learned first appellate Judge has ref used the
relief for recovery of possession on the ground tha t the
defendants have produced the documents to show that they
are in possession and enjoyment of the property (Ex .B9 to
B.32). There is no pleadings in the written statement filed b y
the defendant that he has prescribed title by way of adv erse
possession in respect of the entire plaint schedule p roperty.
The learned first appellate Judge at one place has re jected
the relief of delivery of recovery of possession in r espect of
the suit property has granted mesne profit for thre e years
prior to the institution of the suit. Both the above said finding s
are diametrically opposite to each other. Once the rec overy
of possession is denied, then there is no question of granting
any mesne profit arises. After declaring one half right in the
plaint schedule property in favour of the plaintiff, the l earned
appellate Judge ought to have granted recovery of possessi on
also in respect of one half share in the plaint sch edule
property. Both the courts below have concurrently he ld that
there is not landlord-tenancy relationship between the plaint iff
and the defendant. Under such circumstances, there is no
question of mesne profit arises in this case. So fa r as the
783
refusal of the relief of recovery of possession in respect of
the half of the plaint schedule property by the lear ned first
appellate Judge, warrants interference from this Co urt.
Substantial Question of Law No.1 is answered accordin gly.
9. In fine, the Second Appeal No.558 of 2000 is allowed and
the decree and judgment of the learned first appellate Jud ge
in A.S. No.16/1998 on the file of the Court of Subo rdinate
Judge, Kumbakonam is set aside in respect of dismis sal of
the suit for recovery of possession in respect of ha lf of the
plaint schedule property. The plaintiff is entitled to recover
half of the plaint schedule property after identifying t he same
with the help of an Advocate Commission at the time of
execution of the decree In other respects, the decr ee of the
learned first appellate Judge in A.S. No.16/1998 on the file
of the Court of Subordinate Judge, Kumbakonam is he reby
confirmed. Second Appeal No. 64 of 2000 is dismissed . No
costs. Consequently, connected miscellaneous petiti on is
closed.”
44. The High Court, with greatest of respect, has patently e rred
in its conclusion that there was contradiction in the findings of the First
Appellate Court, in that the First Appellate Court had declined the
Respondent Plaintiff the relief of delivery of possession of the suit property
but had granted the Respondent Plaintiff mesne profits for three years,
prior to the institution of the suit.
45. ‘Mesne profits’ are profits which a person in w rongful
possession of property might have derived, but would not include profits
due to improvements. There is no finding of the Appellant- Defendant
being in wrongful possession of any part of the suit premises either by
the Trial Court or by the First Appellate Court. The First Appellate Court
has, nowhere used the expression ‘mesne profit’. What the High Court
granted to the Respondent-Plaintiff was in the nature of reimbursement
of profit derived by the Appellant by use, occupation and enjoyment of
the Respondent-Plaintiff’s portion of the suit premises and/or in other
words reimbursement of income from the said portion of the suit premises
or charges for use, occupation and enjoyment thereof.
46. A decree of possession does not automatically follow a decree
of declaration of title and ownership over property. It is well settled that,
where a Plaintiff wants to establish that the Defen dant’s original
NAZIR MOHAMED v. J. KAMALA AND ORS.
[INDIRA BANERJEE, J.]
possession was permissive, it is for the Plaintiff to prove this allegation
and if he fails to do so, it may be presumed that possession was adverse,
unless there is evidence to the contrary.
47. The Appellant-Defendant has in his written statement in the
suit, denied the title and ownership of the Respondent-Plaintiff to the
suit property. The Appellant-Defendant has asserted that the Appellant-
Defendant is the owner of the suit property and has been in possession
and in occupation of the suit premises as owner from the very inception.
48. In our considered opinion, the High Court erred in law in
proceeding to allow possession to the Respondent-Plaintiff on the ground
that the Appellant-Defendant had not taken the defence of adverse
possession, ignoring the well established principle that the Plaintiff’s claim
to reliefs is to be decided on the strength of the Plaintiff’s case and not
the weakness, if any, in the opponent’s case, as propounded by the Privy
Council in Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC
201.
49. From the pleadings filed by the Appellant-Defendant, it i s
patently clear that the Appellant-Defendant claimed the right of ownership
of the suit property on the basis of a deed of conveyance, executed over
75 years ago. The Appellant-Defendant has claimed c ontinuous
possession since the year 1966 on the strength of a deed of re lease
executed by his father. In other words, the Appellant-Defendan t has
claimed to be in possession of the suit premises, as owner, for almost 28
years prior to the institution of suit.
50. In the facts and circumstances of this case, wh ere the
Appellant-Defendant was owner of only a portion of the suit pro perty
but has admittedly been in possession of the entire suit property, and the
Appellant-Defendant has, in his written statement, clai med to be in
continuous possession for years as owner, the defence of the Appellant
in his written statement was, in effect and substan ce, of adverse
possession even though ownership by adverse possession had not been
pleaded in so many words. It is, however not necessary for this Court to
examine the question of whether the Appellant-Defendant was entitled
to claim title by adverse possession or not.
51. A person claiming a decree of possession has to establish his
entitlement to get such possession and also establish that his claim is not
barred by the laws of limitation. He must show that he had possessi on
before the alleged trespasser got possession.
785
52. The maxim “possession follows title” is limited in its application
to property, which having regard to its nature, does not admit to actual
and exclusive occupation, as in the case of open spaces accessible to
all. The presumption that possession must be deemed to fol low title,
arises only where there is no definite proof of possession b y anyone
else. In this case it is admitted that the Appellant-Defendant is in possession
and not the Respondent Plaintiff.
53. A suit for recovery of possession of immovable property is
governed by the Limitation Act, 1963. Section 3 of the Limitation Act
bars the institution of any suit after expiry of the peri od of limitation
prescribed in the said Act. The Court is obliged to dismi ss a suit filed
after expiry of the period of limitation, even though the plea of limitation
may not have been taken in defence.
54. The period of limitation for suits for recovery of immovable
property is prescribed in Part V of the Schedule to the Limit ation Act,
1963, and in particular Articles 64 and 65 thereof set out hereinbelow for
convenience:-
“PART V.— Suits Relating to Immovable Property ..
Description of suit Period of
Limitation
Time from which period begins
to run
……….
64. For possession of immovable property based on previous
possession and not on title, when the plaintiff while in possession
of the property has been dispossessed.
Twelve years. The date of dispossession.
65. For possession of immovable property or any interest therein
based on title;
Explanation.- For the purposes of this article -
(a) where the suit is by a remainderman, a reversio ner (other
than a landlord) or a devisee, the possession of th e defendant
shall be deemed to become adverse only when the estate of the
remainderman, reversioner or devisee, as the case m ay be, falls
into possession;
(b) where the suit is by a Hindu or Muslim entitled to the
possession of immovable property on the death of a Hindu or
Muslim female, the possession o f the defendant shall be deemed
to become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in e xecution of a
decree when the judgment-debtor was out of possessi on at the
date of the sale, the purchaser shall be deemed to be a
representative of the judgment -debtor who was out of possession
Twelve years. When the possession of the
defendant becomes adverse to
the plaintiff.
55. In the absence of any whisper in the plaint as to the date on
which the Appellant-Defendant and/or his Predecessor-in-interest took
possession of the suit property and in the absence of any w hisper to
show that the relief of decree for possession was within limitation, the
NAZIR MOHAMED v. J. KAMALA AND ORS.
[INDIRA BANERJEE, J.]
High Court could not have reversed the finding of the First A ppellate
Court, and allowed the Respondent-Plaintiff the relief of recove ry of
possession, more so when the Appellant-Defendant had pleaded that he
had been in complete possession of the suit premises, as owner, with
absolute rights, ever since 1966, when his father had executed a D eed
of Release in his favour and/or in other words for over 28 years as on
the date of institution of the suit.
56. As held by the Privy Council in Peri v. Chrishold reported in
(1907) PC 73, it cannot be disputed that a person in possession of land in
the assumed character of owner and exercising peaceably the ordinary
rights of ownership has a perfectly good title against all the world but the
rightful owner...and if the rightful owner does not come forward a nd
assert his right of possession by law, within the period prescribed by the
provisions of the statute of limitation applicable to the case, his right is
forever distinguished, and the possessory owner acquires an a bsolute
title.
57. The condition precedent for entertaining and deciding a second
appeal being the existence of a substantial question of law, whenever a
question is framed by the High Court, the High Court will have to show
that the question is one of law and not just a question of facts, it also has
to show that the question is a substantial question of law.
58. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar 6,
this Court held:
“After the amendment a second appeal can be filed only if a
substantial question of law is involved in the case . The
memorandum of appeal must precisely state the substa ntial
question of law involved and the High Court is obli ged to
satisfy itself regarding the existence of such a qu estion. If
satisfied, the High Court has to formulate the subs tantial
question of law involved in the case. The appeal is r equired
to be heard on the question so formulated. However, the
respondent at the time of the hearing of the appeal has a
right to argue that the case in the court did not i nvolve any
substantial question of law. The proviso to the sec tion
acknowledges the powers of the High Court to hear the appeal
on a substantial point of law, though not formulate d by it
6 (1999) 3 SCC 722
787
with the object of ensuring that no injustice is do ne to the
litigant where such a question was not formulated at the time
of admission either by mistake or by inadvertence”
“It has been noticed time and again that without insisting
for the statement of such a substantial question of law in th e
memorandum of appeal and formulating the same at the time
of admission, the High Courts have been issuing notices and
generally deciding the second appeals without adher ing to
the procedure prescribed under Section 100 of the Co de of
Civil Procedure. It has further been found in a num ber of
cases that no efforts are made to distinguish between a question
of law and a substantial question of law. In exercise of the
powers under this section the findings of fact of t he first
appellate court are found to have been disturbed. It has to b e
kept in mind that the right of appeal is neither a natural nor
an inherent right attached to the litigation. Being a substantiv e
statutory right, it has to be regulated in accordance with law
in force at the relevant time. The conditions mentioned in the
section must be strictly fulfilled before a second ap peal can
be maintained and no court has the power to add to or enlarge
those grounds. The second appeal cannot be decided on
merely equitable grounds. The concurrent findings o f facts
howsoever erroneous cannot be disturbed by the High Court
in exercise of the powers under this section. The subs tantial
question of law has to be distinguished from a subs tantial
question of fact.”
“If the question of law termed as a substantial question stands
already decided by a larger Bench of the High Court
concerned or by the Privy Council or by the Federal C ourt
or by the Supreme Court, its merely wrong application on th e
facts of the case would not be termed to be a subst antial
question of law. Where a point of law has not been pleade d
or is found to be arising between the parties in the a bsence
of any factual format, a litigant should not be all owed to
raise that question as a substantial question of law in sec ond
appeal. The mere appreciation of the facts, the document ary
evidence or the meaning of entries and the contents of the
document cannot be held to be raising a substantial question
NAZIR MOHAMED v. J. KAMALA AND ORS.
[INDIRA BANERJEE, J.]
of law. But where it is found that the first appellate cour t has
assumed jurisdiction which did not vest in it, the same can be
adjudicated in the second appeal, treating it as a substan tial
question of law. Where the first appellate court is sh own to
have exercised its discretion in a judicial manner, i t cannot
be termed to be an error either of law or of procedure requiring
interference in second appeal.”
59. When no substantial question of law is formulated, but a Second
Appeal is decided by the High Court, the judgment of the High Court is
vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda
Ghose 7. Formulation of substantial question of law is mandatory and the
mere reference to the ground mentioned in Memorandum of Second
Appeal can not satisfy the mandate of Section 100 of the CPC.
60. The judgment and order of the High Court under appeal does
not discuss or decide any question of law involved in the case, not to
speak of substantial question of law.
61. Just as this Court has time and again deprecated the practice
of dismissing a second appeal with a non-speaking order only recording
that the case did not involve any substantial question of law, the High
Court cannot also allow a second appeal, without discussing the question
of law, which the High Court has done.
62. For the reasons discussed above, the appeals are allowed.
The judgment and order of the High Court under appeal is set aside to
the extent Second Appeal No.558 of 2000 has been allowed and the
judgment and decree of the First Appellate Court is restored.
Kalpana K. Tripathy Appeals allowed.
7 AIR 2014 SC 152