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2007(8) Supreme 462
Supreme Court of india
(From Madras High Court)
H.K. Sema & V.S. Sirpurkar, JJ.
Dharmarajan & Others — Petitioners
versus
Valliammal & Others — Respondents
Appeal (civil) 4535-4536 of 2001
Decided on : 11-12-2007
(b)Code of Civil Procedure, 1908 – Section 100 – High Court would have jurisdiction of interfering only in a case where substantial questions of law are involved and those questions are clearly formulated in the Memorandum of Appeal – Instantly, the questions formulated were neither the questions of law nor substantial questions of law; apart from the fact that in the present case the High Court has completely gone astray inasmuch as it is not even realized that it was a case which was not even pleaded – Impugned judgment not sustainable. (Para 14)
(2007) 1 SCC 546 – Relied upon.
(c)Code of Civil Procedure, 1908 – Section 97 – The first appellate court rightly held, by a well reasoned order, that question of adverse possession of Doraiswamy does not arise and consequently dismissed the suit of Muthuswamy Gounder – The appellate court has rightly granted the declaration in the suit filed by Dharamrajan and has also restricted the relief only to the declaration since the defendants had not terminated or revoked the licence of Doraiswamy or his wife or daughter. (Paras 14 and 16)
(d)Code of Civil Procedure, 1908 – Section 100 – The question of possessory title not raised at any stage before the courts below cannot be raised in the Supreme Court. (Para 15)
Facts of the case :
1.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/D1 under a Sale Deed dated 10.10.1980 from one Doraiswamy who was in possession and enjoyment of the property and 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.
2.It is claimed that after Karuapyee her foster son Doraiswamy obtained the possession and enjoyed the said suit property. Before this sale deed dated 10.10.1980, he had executed a Mortgage Deed in respect of the suit property in favour of the plaintiff Muthuswami Gounder dated 15.6.1980.
3.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 of his ownership as also for the injunction against the present appellants.
4.As against this, the present appellants claimed that this property belonged to first defendant therein, (the appellant no.1 herein) in so far as the Eastern half of the 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.
5.It was contended by the appellants that they were owners of the 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 of the 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.
6.The Appellant No.1 Dharamarajan also filed a suit being OS No.280 of 1982 in respect of the Eastern one half portion of the suit property of which 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 of Doraiswamy. This was also a suit for declaration of title of Dharamrajan. An injunction was also claimed against the defendants.
7.The Trial Court decreed the Suit No.555 of 1981 and dismissed Suit No.280 of 1982 filed by the appellant no.1 in respect of the half of the suit property.
8.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 of title.
9.The plaintiff Muthuswamy Gounder filed Second Appeal No.2236 of 1986 while Valliammal filed Second Appeal No.2235 of 1986 which appeals have been allowed by the learned Single Judge of the High Court.
Findings of the Court:
In the absence of pleadings, the High Court gravely erred in finding out an entirely new case on the basis of unpleaded facts and non existent rights.
Result : Appeals allowed with costs.
JUDGMENT
V.S. SIRPURKAR, J.—
1.A common judgment passed by Madras High Court allowing two Second Appeals is in challenge before us. The Single Judge of the Madras High Court set aside the appellate judgment, again a common one allowing appeals against the common judgment passed by District Munsiff, Bhawani whereby the District Munsiff had decreed the suit filed by one Muthuswami Gounder and dismissed the other suit filed by Dharmarajan, the appellant herein. A short history of the 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/D1 under a Sale Deed dated 10.10.1980 from one Doraiswamy who was in possession and enjoyment of the 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 10.10.1980, he had executed a Mortgage Deed in respect of the suit property in favour of the 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 of Rs.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 of his 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.1 herein) in so far as the Eastern half of the 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 of the 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 of Karuppayee, Doraiswamy started working as a servant of Venugopala Iyer and as such he was in occupation of the thatched salai (house) with the permission of Venugopala Iyer. It was claimed that the property stood in the name of Venugopala Iyer in Kavundapady Panchayat. In short it was contended that the present appellants were owners of the 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 of the 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 of ownership on the part of Doraiswamy to transfer the property in favour of the plaintiff. They also denied that Karuppayee and after her Doraiswamy were in independent possession of the property. They also denied that Karuppayee or, as the case may be Doraiswamy, had perfected their title by adverse possession. Thus, the A
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