DHARMARAJAN AND OTHERS v. VALLIAMMALAND ORS

Citation: [2007] 13 S.C.R. 50

Court: Supreme Court of India

Bench: H.K. SEMA, V.S. SIRPURKAR

Case summary

DHARMARAJAN AND OTHERS v. VALLIAMMALAND ORS.pdf

Judgment text

DHARMARAJAN AND OTHERS v. t VALLIAMMALAND ORS. DECEMBER 11, 2007 (H. K. SEMA AND V. S. SIRPURKAR, JJ. ) Code of Civil Procedure, 1908 - s. l 00 - Second appeal - Re-appreciation of evidence - High Court set aside judgment of first appellate court on basis ofnon-existent substantial questions of law and accepting an entirely new case based on un-pleaded facts and non-existe,nt rights - Held: High Court erred in law ff Judgment offirst appellate court restored. I One 'M' filed a suit being O. S. No. 555 of 1981 for declaration and injunction against the ap\lellants in respect of certain landed property on the ground that 'K', who had put up a thatched shed in the suit property, had perfected her title to A. the same by adverse possession and after her demise, her foster son 'DO', the husband of respondent No. 1, derived title and continued in possession as a legal heir and later sold the suit property to the plaintiff.

It was stated that the plaintiff and his predecessor had acquired title by adverse possession for more than 60 years. The case of defendants-appellants was that they had purchased the property from members of one Iyer family under ,_ sale deeds dated 15. 7. 1980 and 19. 9. 1980. They claimed that since 'K' was a maid servant in the service of Iyer family, she was permitted to stay on the suit property and after her demise, 'DO' started working as servant, and he too was permitted as such to stay in the suit property; and that after the purchase, appellants were paying the taxes and 'DO' was staying in the property with their permission. Defendant-appellant no. I also filed a suit being O. S. No. 280 of 1982 for declaration of title +. . DHARMARAJANAND OTHERS v. VALLIAMMAL 51 AND ORS. against respondent no. 1, the wife of 'DO' and their daughter in respect of eastern half portion of suit property in O. S. No. 555 of 1981.

Trial Court by a common judgment decreed the suitfiled by 'M' and dismissed the other suit filed by appellant no. 1. The first appellate court dismissed suit filed by 'M' and decreed the suit filed by appellant no. 1 only to the extent of the decree of declaration of title. 'M' and respondent no. 1 filed two separate second appeals which were allowed by the High Court.

In the instant appeals, it was contended that the first appellate court was the final court of facts and yet even without discussing the appellate court judgment, the High Court reappreciated the evidence and upset the well considered judgment of the appellate court; that an entirely new case which was not even pleaded was found out by the High Court and on that basis > decree was passed; and that the case regarding adverse possession was very rightly held not proved by the first appellate court and moreover the plea regarding adverse possession was a confused plea inasmuch as it was not even pleaded as to against whom was the possession of 'K' and 'DO' adverse. Allowing the appeals, the Court HELD: 1. 1. 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.

None of the five questions framed by the High Court could be said to be either question of law or a substantial question of law arising out of the pleadings of the parties. (60-D] [61-A] [Para 8] 1. 2. The first question of law, as mentioned in the judgment, could not and did not arise for the simple reason that the plea of adverse possession has been rightly found against the plaintiff -l 'M'. K'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 appellant no. I that it was a permissive possession and that she was permitted to stay on the land fbelonging to the members of the Iyer family. Secondly, it has nowhere come as to against whom was her possession adverse. 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 'K'. Further, even the legal relationship of 'DO' and 'K' is neither pleaded nor proved. All that is pleaded is that after K's demise 'DO' as her foster son continued in the thatched shed allegedly constructed by 'K'. There was no question of the tacking of possession as there is ample evidence on record to suggest that 'DO' also was in the service of Iyer family and that he was permitted to stay after 'K'. Besides, his legal heirship was also not decisively proved. This Court, therefore, does not 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.

(61-A to G] [Para 8] 1. 3. 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. ~ 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. Even the fifth question was a clear cut question of fact and was, therefore, impermissible in the second appeal. [Para 8] (61-G, HJ [62-A] 1. 3. Plaintiff 'M' claimed title and possession in respect of the suit property by virtue of Exhibit A-1, a sale deed dated 10. 10. 1980, and prior to that he had also obtained the mortgage in respect of this property from 'DO'. It was, therefore, AND ORS. imperative on his part to prove a valid title of 'DO'. The High Court has rightly not accepted the case of adverse possession though it has given a confused finding about it.

However, the pleadings indicate that the only plea regarding the ownership of 'DO' 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 since the burden was entirely on the plaintiff 'M', his being a - ' prior suit. [62-B to D] [Para 9] 1. 5. The High Court has given a finding that 'K' was in possession of the land for 50 years or so and thereafter her foster son 'DO' continued and, therefore, the possession of 'K' and 'DO' could be tacked together and that the appellate court was wrong in treating the possession of 'K' and subsequently by 'DO' 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. [62-FG] [Para 9] 2. 1.

The High Court has also held that the suit 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, without any basis, held that it was an unoccupied Natham and 'K' had 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. There is no basis for this finding of the High Court. There is no pleading about this. There is not even an iota of evidence in the village records in favour of either 'K' or 'DO' and their so-called rights. The High Court has thus found out an entirely differept case. -~ - [62-G, H] [63-A to CJ [Para 9] 2. 2.

The High Court has also erred in holding that 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 Natharit and not a poramboke. 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. Similarly, the High Court erred in going into the question of identity of suit property without there being any pleading. [63-C to E] [Para 9] 3. Defendant-appellant no. 1 produced Exhibit B-6, a Judgment, to show that the land belonged to the Iyer family under whom the defendants claimed title. 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 one of the members of the Iyer family for a period even prior to 1977. The appellate court had accepted this documentary evidence.

This concludes the matter and in the absence of any revenue records in favour of either 'K' or 'DO', there was no question of their title over the land. The High Court has gravely erred in interfering with a well considered judgment and findings of fact of the appellate court. [63-F] [64-F] [65-B] [Paras 10, 11] 4. In the absence of pleadings, the High Court ~ravely erred in fmding out an entirely new case on the basis of unpleaded fads and non existent rights. As regards the suggestion of respondent that this was a Natham and the parties had proceeded on that basis and, therefore, the long standing possession of 'K' anti thereafter of 'l)O' 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 'K' and 'DO' 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 'K' and 'PO'. Thus, the judgment suffers from error of law. [Paras 12 and 14] ·[65-C, DJ [66-D] - -~- Gurudev Kaur and Ors. v. Kaki and Ors. (2007) 1 SCC 546 - relied on. The Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharamapuri Districi v. I V Swaminatha and Ors. (2004) 3 L. W. 278 - referred to. 0 5. Once the suit of 'M' fails, the other suit filed by defendant-appellant no. 1 being OS 280 of 1982 in respect of the Eastern half portion of the suit property must succeed. The first appellate court has rightly granted the declaration in that suit and has also restricted the relief only to the declaration since defendant-appellant no. 1 and the other defendants had not terminated or revoked the licence of 'DO' or his wife respondent No. 1 or the daughter. 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 respect to the suit property under Exhibits B-12 and B-13. The appellate court was right in holding that defendant no. 1 and other defendants were not entitled to the injunction prayed for. [Para 16J (66-G, HJ [67-A, BJ CNILAPPELLATE JURISDICTION : Civil Appeal Nos. 4535- 4536 of 2001. From the Judgment and Order dated 25. 06. 1999 of the High -. , Court of Madras in Second Appeal Nos. 2235 & 2236 of 1986. F. R. Kumar (for M/s. Parekh and Co. ) for the Appellants. P. Krishnamoorthy, R. Nedumaran and Sunil Kumar Singh, for the Respondents. The Judgment of the Court was delivered by V. S. SIRPURKAR, J. I. A common judgment passed by Madras High Court allowing two Second Appeals is in challenge before us.

The Single Judge ofthe Madras High Court set aside the appellate judgment, again a common one allowing appeals against the common J- judgment passed by District Munsiff, Bhawani whereby the District Munsiffhad decreed the suit filed by one Muthuswami Gounder and dismissed the other suit filed by Dharmarajan, the appellant herein. A short history ofthe 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/Dl under a Sale Deed dated 10. 10. 1980 from one Doraiswamy who was in possession and enjoyment ofthe 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. l0. 1980, he had executed a Mortgage Deed in respect ofthe suit property in favour ofthe 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 ofRs. 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 ofhis 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. I herein) in so far as the Eastern half ofthe 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 ofthe 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 ofKaruppayee, Doraiswamy started working as a servant ofVenugopala Iyer and as such he was in occupation of the thatched salai (house) with the permission ofVenugopala Iyer. It was claimed that the property stood in the name ofVenugopala Iyer in Kavundapady Panchayat. In short it was contended that the present appellants were owners ofthe 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 ofthe 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 ofownership on the part ofDoraiswamy to transfer the property in favour ofthe plaintiff. They also denied that Karuppayee and after her Doraiswamy were in independent possession ofthe property. They also denied that Karuppayee or, as the case may be Doraiswamy, had perfected their title by adverse possession. Thus, the Appellant No. I Dharamrajan claimed half ofthe property whereas the rest ofthe appellants claimed the other halfofthe property being purchasers from the members oflyer family. 4. The Appellant No. I Dharamarajan also filed a suit being OS p No. 280 of 1982 in respect ofthe Eastern one half portion of the suit property ofwhich 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 ofDoraiswamy. It must be stated here that Doraiswamy had by then expired.

This was also a suit for declaration oftitle ofDharamrajan. In this suit it was claimed that the property originally belonged to the father ofKrishnasamy Iyer, Kandsamy Iyer and the father ofone 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 ofKandasamy Iyer. An injunction was also claimed against the defendants. Valliammal and Palaniarnmal firstly claimed that one suit w~s 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 plaintiffin OS No. 555of1981. They denied the ownership ofthe Iyer family on the suit property and claimed that it was false to allege that the suit property was ever allotted to the father ofKandasamy Iyer and Venkatasubramia Iyer. It was, therefore, pleaded that the vendors ofthe plaintiff-Appellant No. I 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 pora. "llboke 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 Valliarnmal 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. I 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 oftitle.

However, since the plaintiff therein (the DHARMARAJANAND OTHERS v. VALLIAMMAL 59 appellant herein) had not terminated the licence ofValliammal and Palaniammal in respect ofthe suit property that reliefwas denied to the appellant No. I hereiri and the suit succeeded only partly. As stated earlier, the plaintiffMuthuswamy Gounder filed SecondAppeal No. 2236 of 1986 while Valliammal filed Second Appeal No. 2235of1986 which appeals have been allowed by the learned Single Judge of the High 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 ofthe 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 •he 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 plaintiffhad derived his title vide a Sale Deed from Doraiswamy who himselfhad continued to be in adverse possession after Karupayee Ammal. lri short the basis ofthe plea ofplaintiffwas 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 ofpossession 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 ofKarupayee Ammal and Doraiswamy adverse. Learned counsel, therefore, pleaded that once that plea was rejected, there was no question of decreeing -t the suit and the suit should have been straightaway dismissed as was done by the appellate court. lristead the High Court had found entirely different theory by trying to re-appreciate the evidence even regarding f- 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 ofadverse 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 ofthe 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 ofappreciation ofevidence, that too on the basis ofnon existent substantial questions of law.

The five questions of law framed by the High Comt were as follows: "(I) Whether the admitted long possession ofthe original owner Karupayee and that ofDoraiswamy 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 ofthe vendors ofthe plaintiffis not fatal to the case ofthe plaintiff? (4) Whether Ex. A-8 is not admissible in evidence? And (5) Whether lower appellate court is jastified in decreeing the suit for declaration, having found that the defendants are in possession and having refused to grant injunction in favour ofthe plaintiff? " DHARMARAJANANDOTHERSv. VALLIAMMAL 61 In our opinion none ofthese questions could be said to be either question of law or a substantial question of law arising out of the pleadings ofthe parties.

The first referred question oflaw could not and did not arise for the simple reason that the plea ofadverse possession has been rightly found against the plaintiff. Karupayee Ammal's possession, even ifpresumed 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 permissive possession and that she was permitted to stay on the land belonging to the members ofthe 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 ofadverse possession, the possession has to be open and adverse to the owner ofthe 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 ofDoraiswamy and Karupayee Ammal is . l 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 aliegedly constructed by Karupayee Ammal. There was no question of the tacking ofpossession 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 Arnmal. 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 reliefto the respondents on the basis ofthe 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 ofExhibitA-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 ofadmissibility since the document itselfW t or his wife Valliammal or daughter Palaniammal. The First Appellate Court had also correctly held that appellant in AS No. I011995 in OS No. 28011982 had established title ofhis vendors and further that his vendors has passed a valid title to him with 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 ofthe First Appellate Court is restored. B. B. B.

Appeals allowed.