Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Mad) 49137

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.B.Balaji, J
Abdul Kalam – Appellant
Versus
Mohammed Abdul Khader – Respondent
SA(MD). No.77 of 2022 | CMP(MD)No.1006 of 2022

Advocates:
For the Appellants/Petitioners: N.Balakrishnan
For the Respondents: A.N.Ramanathan, M.Suresh

Under Section 100 of the Code of Civil Procedure, an appellate court cannot disturb concurrent factual findings unless they are perverse or lack a material basis. Litigants are prohibited from introducing entirely new, inconsistent defenses at the appellate stage that were not raised in original proceedings.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Scope of Second Appeal - Jurisdiction of high court to interfere with concurrent findings of trial and first appellate court - Interference is only permissible when findings are perverse, illegal, or based on inadmissible evidence - Court cannot substitute its views for those of the lower courts unless the conclusions are contrary to settled legal positions. (Paras 16, 17, 18)

(B) Suit for Declaration and Recovery of Possession - Burden of proof - Plaintiff must prove the case on the strength of their own title - Pleadings - A party is precluded from abandoning a defense taken during trial and introducing a completely new, inconsistent case for the first time during the second appeal - Failure to challenge revenue records or subdivision of property during the trial stage disentitles a party from seeking remand or fresh commission measurement. (Paras 8, 9, 12, 15)

Facts of the case:
The plaintiff sought a decree for declaration of title and recovery of property possession, tracing ownership back several decades. The defendant, who was in occupation of the property, contested the suit by asserting rights over ancestral property and challenging the valid survey subdivision. The trial court decreed the suit, and the first appellate court confirmed this decision. The defendant appealed, arguing that the surveyor's subdivision was unnatural and sought a remand for the appointment of a commission to measure the property, which had been denied as a belated request during the initial stages.

Findings of Court:
The court held that the defendant failed to challenge the veracity of revenue records or the subdivision during the trial phase. New arguments presented in the second appeal, which differed from the original defense, could not be countenanced. The concurrent factual findings were based on sufficient evidence and did not exhibit any perversity or legal error.

Issues: The main issues were whether the findings of the lower courts were perverse enough to warrant interference under the code and whether the appellate stage was the proper time to introduce new defenses or requests for a commission to measure contested boundaries.

Ratio Decidendi: Appellate courts are restricted from disturbing concurrent findings of fact unless they are shown to be perverse or lacking any evidentiary basis. A party cannot present an entirely new case or strategy on appeal that was not argued before the trial court, particularly when the party had ample opportunity to challenge revenue documents during the first instance.

Result: Appeal dismissed.

Table of Content
1. introduction to civil second appeal and procedural background. (Para 1 , 2 , 3 , 4)
2. appellant's claims regarding ancestral property and survey subdivisions. (Para 5 , 6 , 7)
3. examination of inconsistent pleadings and the doctrine of estoppel. (Para 8 , 9)
4. court's analysis of unchallenged revenue records and failure to amend pleadings. (Para 10 , 11 , 12 , 13 , 14)
5. scope of appellate jurisdiction under section 100 regarding concurrent findings. (Para 15 , 16 , 17 , 18)
6. dismissal of appeal and final order for vacant possession. (Para 19)

JUDGMENT

The unsuccessful defendant, in a suit for declaration and recovery of possession, is the appellant herein.

2. The second appeal is yet to be admitted. Considering the fact that the appeal has been pending from the year 2022, I have proceeded to hear the learned counsel for the appellant Mr.N.Balakrishnan and Mr.A.N.Ramanathan, for Mr.M.Suresh, learned counsel for the respondent.

3. I have gone through the records of the Courts below, including the pleadings, oral and documentary evidence as well as the judgments of the trial Court as well as the first appellate Court.

4. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

5. Mr.N.Balakrishnan, learned counsel for the appellant / defendant would first and foremost contend that the respondent / plaintiff came to Court with a case that the plaintiff's grandfather purchased the property wayback in the year 1936 under Ex.A1 and by intestate succession, it has come to be bequeathed to the plaintiff and the plaintiff's sister was permitted to reside in the eastern portion of the suit property and that after she had vacated, the appellant / defendant had encroached into the suit property. According to Mr.N.Balakrishnan, the case of the defendant is that the suit property is an ancestral Natham property, in respect of which, patta was issued to the appellant's mother for 2 Ares or thereabouts, in survey No.315/4. The said patta has also been marked as Ex.B13. Pointing out to the case of the plaintiff that the other survey No. 315/4 was subdivided as survey No.315/18 and in this connection, according to the plaintiff, referring to Ex.A21- FMB, Mr.N.Balakrishnan, would contend that the survey No.315/18 is interpolated in the middle and its inclusion appears unnatural for such a subdivision to be even effected. According to Mr.N.Balakrishnan, the subdivision if any of survey No.315/4 would only have been survey No.315/4A, 315/4B etc., and not survey No.315/18. He would also take me through the admission of P.W.1 that patta was issued to the appellant's mother in respect of survey No.315/4, even prior to the issuance of patta in favour of the plaintiff. It is also the contention of Mr.N.Balakrishnan, that when the total extent of land claimed to be under the ownership of the plaintiff, viz., 5.78 cents, the suit has been laid only in respect of 3.7 cents and there is no whisper about the remaining 2 odd cents. Pointing out to the boundaries set out in the schedule also, Mr.N.Balakrishnan, would state that none of the boundaries refer to any portions of the remaining extent, for which there has been no explanation on the side of the plaintiff. He would also invite my attention to the findings of the trial Court, in this regard, finding fault with the plaintiff for not explaining the lacuna, viz., deficit in the total extent. Thereafter, Mr.N.Balakrishnan, also refers to cross examination of D.W.1 and introduction of a new case for the first time during trial, without any pleading, either in the plaint or in chief examination.

6. It is the contention of Mr.N.Balakrishnan that the trial Court had clearly come to the conclusion that the plaintiff had not made out a case and all of a sudden has taken an about-turn and proceeded to decree the suit only based on the weakness in the case of the defendant. In this regard, it is his submission that in a suit for declaration and recovery of po

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2026 Supreme(Online)(Mad) 49137

IN THE HIGH COURT OF JUDICATURE AT MADRASP.B.Balaji, JAbdul Kalam – AppellantVersusMohammed Abdul Khader – RespondentSA(MD). No.77 of 2022 | CMP(MD)No.1006 of 2022

Cases Referred (1)

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.B.Balaji, J
Abdul Kalam – Appellant
Versus
Mohammed Abdul Khader – Respondent
SA(MD). No.77 of 2022 | CMP(MD)No.1006 of 2022