IMPORTANT POINT
Interference with the concurrent findings of the courts below by the High Court under Section 100 Civil Procedure Code must be avoided unless warranted by compelling reasons.

Headnote:(i) Civil Procedure Code, 1908-Section 100-Second Appeal-Scope -Interference with concurrent findings of courts below by High Court-Must be avoided unless warranted by compelling reasons-High Court not expected to reappreciate evidence just to replace findings of lower courts.
       Held, the lower Appellate Court has fairly appreciated the evidence in the above background and has reached the conclusion that the suit was not barred by Limitation. Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the First Appellate Court was based on no material. (Para 16)
       (ii) Limitation Act, 1908-Art. 139 (Art. 67 of new Limitation Act, 1963)-Date on which tenancy is determined will be the date from which period of limitation would begin to run for purpose of Article 139. (Para 17)
       (iii) LEASE-Suit for declaration of title and recovery of possession-Defendant s case that he surrendered suit property after expiry of lease and thereafter re-entered and continued in possession in his own right-This case not accepted by trial court as well as by appellate court-For the first time, while replying to notice by vendor of plaintiff, defendant set up a hostile title-Suit having been filed within five years therefrom-Not barred by limitation. (Para 19)

JUDGMENT

K. Venkataswami, J.-The plaintiff who filed a suit on 13.6.1962 for declaration of her title to the suit property and for recovery of possession is the appellant herein. The suit property is an extent of 1.13 acre out of 3.39 acres in Survey No. 330/2 in Ulli Village, Gudiyatham Taluk, North Arcot District, Tamil Nadu. It was purchased by the plaintiff under registered sale deed dated 21.3.1957 from one Mohd. Ghouse. The respondent herein who was the defendant in the suit admittedly was let in to possession of the suit property along with the balance of above-mentioned Survey No. 330/2 as a tenant under a registered lease deed dated 1.4.1935. The vendor of the plaintiff after the sale issued a notice to the defendant on 16.4.1957 intimating the fact of sale to the plaintiff. The defendant in his reply dated 27.4.1957 denied his status as lessee and his liability to pay rent. He set up title in himself to the suit property. The plaintiff on his part issued a notice on 10.5.1957 intimating the defendant about her purchase and calling upon him to pay rent in future as a lessee. As defendant set up title in himself, the plaintiff was obliged to file the suit as stated above.

2. The suit was resisted on the ground that after the expiry of the registered lease, he surrendered possession of the suit property to the then landlord and thereafter, since it was under nobody s occupation, he entered possession in his own right and not as a lessee and he has not even paid rent to anybody after the expiration of lease. Further it was alleged that he has prescribed title by adverse possession and the plaintiff s suit for recovery of possession was barred by limitation. The Trial Court framed as many as six issues and after examining three witnesses on the side of the plaintiff and five witnesses on the side of the defendant and after perusing 13 documents filed on the side of the plaintiff and 21 documents filed on the side of the defendant, it found that the plea of surrender was not established and defendant did not prescribe title by adverse possession. Accepting the case of the plaintiff, the trial court decreed the suit declaring that the plaintiff was entitled to the suit property and directed the defendant to surrender possession without any let or hindrance.

3. The defendant aggrieved by the decree against him preferred an appeal to the learned Subordinate Judge, Tirupattur. Unfortunately, on account of certain lapses, the High Court was compelled to remand the matter to the Appellate Court on three occasions. Finally the First Appellate Court by its detailed judgment on 9.9.1976 confirmed the decree of the Trial Court and dismissed the appeal preferred by the defendant.

4. Still aggrieved, the defendant preferred second appeal No. 1801/76 in the Madras High Court. The learned Single Judge of the Madras High Court found that the Courts below failed to come to correct conclusion on the basis of the evidence both oral and documentary placed before them and in a way gone into the evidence onceover and reversed the findings rendered by the Courts below and consequently allowed the Second Appeal, dismissed the suit filed by the plaintiff.

5. Aggrieved by the judgment of the High Court, the present appeal has been filed by the plaintiff-appellant by Special Leave.

6. Mr. K. Rajendra Chowdary, learned counsel appearing for the appellant submitted that the High Court exceeded its jurisdiction under Section 100 CPC in reversing the concurrent findings of the Courts below. He also submitted that the High Court went wrong in placing the onus of proof regarding the character of possession of the suit land by the defendant, on the plaintiff when admittedly the defendant was let into the possession as a tenant under a registered lease deed of the year 1935. The High Court, according to the learned counsel ought not to have discussed the issue of adverse possession with reference to Article 139 of the old Limitation Act, 19

Click Here to Read the rest of this document

1996 Supreme(SC) 1405

IMPORTANT POINTInterference with the concurrent findings of the courts below by the High Court under Section 100 Civil Procedure Code must be avoided unless warranted by compelling reasons.

IMPORTANT POINT
Interference with the concurrent findings of the courts below by the High Court under Section 100 Civil Procedure Code must be avoided unless warranted by compelling reasons.