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SUPREME COURT OF INDIA
R.K. AGRAWAL, ABHAY MANOHAR SAPRE, JJ.
Sri Shivaji Balaram Haibatti – Appellant(s)
VERSUS
Sri Avinash Maruthi Pawar – Respondent(s)
CIVIL APPEAL No. 19421 OF 2017 (ARISING OUT OF SLP (C) No.22894/2014)
Decided On : 20-11-2017
(b) Code of Civil Procedure, 1908 – Section 100 – High Court not framing any substantial question of law on adverse findings of the courts below – Those findings attaining finality – High Court framing general question of law as to whether the findings of the two Courts below were contrary to the pleadings and evidence – Respondent not raising such pleading – No occasion for trial court to frame such question – High court wrongly holding that the respondent was in possession of the suit shop as tenant of the appellant's predecessor-in-title – High Court should have examined legality of findings of the courts below – Instead, it framing question de hors pleadings – Without jurisdiction. (Para 23, 26, 27, 28)
(c) Code of Civil Procedure, 1908 – Section 100 – High Court holding respondent to be in occupation of suit shop as tenant – Contrary to pleadings and evidence – Impugned judgment not sustainable. (Para 31, 32)
Facts of the case;
One Vithal Dhopeshwarkar was the owner of the suit shop along with the land over which the suit shop is built and some adjoining land. He sold the land and the suit shop to the appellant vide registered sale deed. The respondent (defendant) was in possession of the suit shop even prior to its purchase by the appellant from Vithal Dhopeshwarkar.
The appellant filed a civil suit against the respondent claiming possession of the suit shop from the respondent.
The Trial Court decreed the appellant's suit.
The First Appellate Court dismissed the appeal and affirmed the judgment/decree of the Trial Court.
The High Court, by impugned judgment, allowed the Second Appeal and while setting aside of the judgments and decrees of two Courts below dismissed the appellant's suit.
Finding of the court:
Impugned judgment is not sustainable.
Result: Appeal allowed.
JUDGMENT
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed by the plaintiff against the final judgment and order dated 04.04.2014 passed by the High Court of Karnataka, Bench at Dharwad in Regular Second Appeal No.213/2007(INJ.) whereby the High Court allowed the appeal filed by the respondent herein and set aside the judgments and decrees of the Trial Court and First Appellate Court.
3. In order to appreciate the issues involved in the appeal, it is necessary to state few relevant facts.
4. The appellant is the plaintiff whereas the respondent is the defendant in the civil suit out of which this appeal arises.
5. The dispute involved in the appeal relates to a shop measuring 9 ft. 9 inch North and 5 ft. East West situated out of land bearing CTS 1590/A-4 in the City of Belgaum (as detailed in plaint) (hereinafter referred to as "suit shop").
6. One Vithal Dhopeshwarkar was the owner of the suit shop along with the land over which the suit shop is built and some adjoining land. He sold the land and the suit shop to the appellant vide registered sale deed dated 20.09.1997 (Annexure P-6). The respondent (defendant) was in possession of the suit shop even prior to its purchase by the appellant from Vithal Dhopeshwarkar.
7. On 08.06.1999, the appellant filed a civil suit being O.S. No.115/1999 against the respondent in the Court of Civil Judge, Sr Division, Belgaum claiming possession of the suit shop from the respondent. The suit was founded on the allegations, inter alia, that the appellant is the owner of the suit shop having purchased the same vide registered sale deed dated 20.09.1997 from Vithal Dhopeshwarkar. It was alleged that the respondent was in possession of the suit shop without any right, title and interest of any nature.
8. In other words, according to the appellant, the respondent, since inception, was in illegal possession of the suit shop. The appellant, on purchase of the suit shop, therefore, requested the respondent to vacate the suit shop but he failed to vacate and hence the appellant became entitled to claim possession of the suit shop from the respondent on the strength of his ownership over the suit shop. A relief of mesne profits at the rate of Rs.2500/- per month was also claimed.
9. The respondent filed written statement. He denied the appellant's title and claimed that he has been in possession of the suit shop since “time immemorial” and much prior to the appellant's purchasing the suit shop. The respondent also raised a plea that he has perfected his title by virtue of adverse possession over the suit shop against the predecessor-in-title of the appellant and the appellant.
10. The Trial Court framed the issues. Parties led evidence. By judgment/decree dated 03.11.2003 in O.S. No.115 of 2003, the Trial Court decreed the appellant's suit. The Trial Court held that the appellant is the owner of the suit shop, that the respondent failed to prove his adverse possession over the suit shop, that the respondent has been in illegal possession of the suit shop and that the appellant is entitled to claim eviction of the respondent from the suit shop and also entitled to claim mesne profits at the rate of Rs.2000/-p.m. for a period of three years and the cost of Rs.5000/-. The Trial Court accordingly passed decree for possession and mesne profits against the respondent.
11. The respondent, felt aggrieved, filed first appeal before the Ist Additional District Judge, Belgaum being Regular Appeal No.58/2003. By judgment/decree dated 11.12.2006, the First Appellate Court dismissed the appeal and affirmed the judgment/decree of the Trial Court.
12. The respondent, felt aggrieved, filed Second Appeal in the High Court of Karnataka (Dharwad Bench) being S.A. No. 213/2007 under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). The High Court, by impugned judgment, allowed the Second Appeal and while setting aside of the judgments and decrees of two Courts below d
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