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SUPREME COURT OF INDIA
J. CHELAMESWAR, ABHAY MANOHAR SAPRE, JJ.
Syeda Rahimunnisa – Appellants
VERSUS
Malan Bi (Dead) by L.Rs. & Anr. Etc. – Respondents
CIVIL APPEAL Nos. 2875-2879 OF 2010
Decided On : 03-10-2016
(2001) 3 SCC 179; (2004) 5 SCC 762 – Relied upon
(b) Code of Civil procedure, 1908 – Section 100 – Concurrent finding of facts by trial court and first appellate court – Binding ion the High Court hearing second appeal. (Para 28)
(c) Code of Civil procedure, 1908 – Section 100 – Findings of trial court and first appellate court not perverse – Not in conflict with any provision of law governing the issue – Also not against the pleadings or evidence – High Court in second appeal ought not have interfered. (Para 29)
(d) Code of Civil procedure, 1908 – Section 100 – High Court formulating questions – Not answering the questions formulated – Setting aside judgment/decree of the two courts below – Remanding the matter to trial court for de novo trial – In absence of any such pleading by any party remand to trial court beyond jurisdiction of High Court. (Para 31)
(e) Code of Civil procedure, 1908 – Section 100 – No party complaining about trial being unsatisfactory causing prejudice – No party praying for remand so as to enable them to adduce additional evidence – Remand order not justified. (Para 32)
(f) Code of Civil procedure, 1908 – Section 100 – Jurisdiction of High Court confined to questions framed – Instantly, High Court not framing any question on remand – Remand order beyond jurisdiction. (Para 33)
(g) Adverse possession – Respondents claiming title by adverse possession qua State – Not claiming title on the strength of any grant or Lease Deed or Patta etc. issued by the State in their favour – Respondents were required to prove adverse possession by evidence – It is a question of fact – Courts below concurrently holding that respondents were not able to establish their title – Such concurrent finding of fact binding on High Court. (Para 37, 39)
Facts of the case:
The two appellants – Smt. Syeda Rahimunnisa and Syed Hyder Hussaini are wife and husband whereas the respondent no. 1(a) to 1(f) are the legal heirs of one late Haji Mian being mother, wife, sons and daughters respectively.
The dispute between the two aforementioned families relates to the ownership and possession of portion of land (which is a part of entire area classified as Government Burial Poramboke) situated in Kurnool (AP) bearing S.No.35/5 renumbered as 35/5-C1/A-1 (hereinafter called “the suit-land”).
In all five suits were filed, two by the appellants and three by the respondents.
The trial judge dismissed the three civil suits filed by the respondents, whereas decreed the appellants’ two civil suits.
The respondents filed five appeals before the II Additional District Judge, Kurnool. By five separate judgments, the first appellate court dismissed all the five appeals and affirmed the judgment and decree of the trial judge.
The respondents filed five Second appeals before the High Court. The High Court allowed the appeals and while setting aside the two courts judgment/decree remanded the cases to the trial court for fresh trial on merits by permitting the parties to amend the pleadings, to frame additional issues and to adduce the evidence.
Finding of the Court:
The reasoning and the conclusion arrived at by the High Court is not legally sustainable.
Result: Appeal allowed.
JUDGMENT :
Abhay Manohar Sapre, J.
1. These appeals by special leave are filed by the appellant-defendant against the common judgment dated 21.08.2008 of the High Court of Judicature, Andhra Pradesh at Hyderabad in S.A. Nos. 1151 of 1998, 76, 167, 168 and 169 of 1999 whereby the learned Single Judge of the High Court allowed the appeals filed by the respondents-plaintiffs, in consequence, set aside the decree and common judgment dated 15.10.1998 of the Court of Additional District Judge, Kurnool in A.S. Nos.56, 57, 58 59 and 60 of 1997 dismissing the first appeals filed by the respondents herein.
2. Facts of the case need mention, in brief, infra to appreciate the controversy involved in the appeals.
3. These appeals involve a short point. However, in order to appreciate the point, it is necessary to mention the relevant facts infra.
4. The two appellants – Smt. Syeda Rahimunnisa and Syed Hyder Hussaini are wife and husband whereas the respondent no. 1(a) to 1(f) are the legal heirs of one late Haji Mian being mother, wife, sons and daughters respectively.
5. The dispute between the two aforementioned families relates to the ownership and possession of portion of land (which is a part of entire area classified as Government Burial Poramboke) situated in Kurnool (AP) bearing S.No.35/5 renumbered as 35/5-C1/A-1 (hereinafter called “the suit-land”).
6. The appellants filed two civil suits being O.S.No. 77 of 1994 and O.S.No 65 of 1995 against Haji Mian and others. The present respondent nos.1(a) to 1(f) who were later added as party defendants are legal representatives of Haji Mian.
7. So far as O.S. No 77 of 94 is concerned, the appellants (plaintiffs) claimed therein eviction of the respondents from the suit-land. It was alleged that appellant no. 1 being the owner of the suit-land had inducted respondent no.1 (defendant no.1) as her tenant on a monthly rent of Rs.150/- for a period of three years on the strength of lease deed dated 01.06.1982. It was alleged that contrary to lease conditions and without appellants’ consent, the respondent no.1 erected four huts and sublet to defendant nos.2 to 6 on monthly rent. It was also alleged that respondents denied appellants’ title.
8. So far as O.S. no. 65 of 1995 is concerned, the appellants (plaintiffs) claimed therein money decree of Rs.5400/- towards damages for use and occupation of the suit-land for the period (01.07.1989 to 31.07.1992) i.e. 36 months and further at the rate of Rs.1507/- per month for preceding three years ending on 30.06.1992 against the respondents.
9. So far as the respondents are concerned, they filed three civil suits being O.S. No. 53 of 1993, O.S.No. 69 of 1994 and O.S.No. 71 of 1994 against the appellants in the Court of Principal Subordinate Judge, Kurnool.
10. So far as O.S.No.53 of 1993 is concerned, the respondents (plaintiffs) filed a suit against appellant No.1 and State of A.P. for a declaration that respondents are the owners of the suit-land and also they are entitled to claim permanent injunction against the appellants from interfering in their possession over the suit-land. The respondents in substance claimed title over the suit-land by adverse possession against the Government alleging that their predecessor were in possession of the suit-land for the last 100 years and on their death, respondents continued to remain in possession throughout and has, therefore, perfected their title by being in adverse possession to the exclusion of all, including the Government as owners.
11. So far as second suit being O.S.No. 69 of 1994 is concerned, it was filed by the respondents against the appellant no.1 and APEB to challenge the notice dated 07.06.1990 issued by APEB for disconnecting the electric supply to the respondents’ structure. A relief of permanent injunction restraining the defendants (APEB) from giving effect to the notice was also prayed.
12. So far as the third suit being O.S.No. 71 of 1994 is concerned, the respondents filed this suit against the Mu
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