Suit for possession is to be filed with in 12 years when the defendant claimed possession as of it’s owner – in the absence of proof of tenancy and in the absence of proof of prior possession , the suit is liable to be dismissed eventhough title is proved by the plaintiff , even though there was no specific plea of adverse possession specifically and directly in the defence pleadings by the defendant as the suit is barred under sec.3 of limitation Act due to lack of proof of earlier possession before filing the suit.

Suit for possession is to be filed with in 12 years when the defendant claimed possession as of it’s owner – in the absence of proof of tenancy and in the absence of proof of prior possession , the suit is liable to be dismissed eventhough title is proved by the plaintiff , even though there was no specific plea of adverse possession specifically and directly in the defence pleadings by the defendant as the suit is barred under sec.3 of limitation Act due to lack of proof of earlier possession before filing the suit.

the registered deed of conveyance by which the Respondent Plaintiff’s father had purchased his portion of the suit premises from Rajagopala Pattar (Exhibit P1), the registered documents by which Rajagopala Pattar had acquired the suit premises in a Court Auction (Exhibits P2 and P3) and the registered deed of conveyance executed on 17.02.1938 being Exhibit D1 by which 7 the Appellant-Defendant’s father M. Abdul Aziz had purchased his portion of the suit premises, examined the extent of the rights of the respective vendors of the Appellant-Defendant’s father and the Respondent-Plaintiff’s father and/or their predecessors-in-interest. the AppellantDefendant’s father had only purchased a portion of the suit premises, not the entire suit premises, and the other portion had been purchased by the Respondent-Plaintiff’s father.

The First Appellate Court, therefore, held that the RespondentPlaintiff was entitled to a declaration in respect of the said portion of the suit premises, purchased by his father.

the Appellant-Defendant’s family had been residing in the suit property since 1940, and that the Respondent-Plaintiff had not produced any rent agreement or receipts or any tax receipts in respect of the suit premises to show that the RespondentPlaintiff or his father or any other family member had ever paid any taxes in respect of the suit premises.

The First Appellate Court concurred with the finding of the Trial Court, that the Respondent-Plaintiff had failed to establish that the said premises had been rented out to M. Abdul Aziz father of the Appellant-Defendant. On the other hand, the Appellant had been in possession of and had been enjoying the suit premises for a long time.

The First Appellate Court passed a fair and just order, holding that the Respondent-plaintiff, being the owner of a portion of the said premises, was entitled to declaration of title in respect of the said portion of the suit property owned by him, but not to recovery of possession, since the defendant being the Appellant herein had been enjoying the suit property for a long time as no landlord tenant relationship not proved.- The High Court held that the Respondent Plaintiff was entitled to recovery of half of the plaint scheduled property, after identifying the same with the help of an Advocate Commissioner, at the time of the execution of the decree. In all other respects, the decree of the First Appellate Court was confirmed. = Apex court held that In the facts and circumstances of this case, where the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words.A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation. He must show that he had possession before the alleged trespasser got possession.The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of , even though the plea of limitation may not have been taken in defence55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-ininterest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation,when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit,the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2843-2844 OF 2010

Nazir Mohamed ..…Appellant

versus

J. Kamala And Ors. …..Respondents

J U D G M E N T

Indira Banerjee, J.

These appeals are against a common judgment and order

dated 06.11.2008 dismissing the Second Appeal being S.A. (MD)

No.64 of 2000, filed by the Appellant, but allowing the Second

Appeal being S.A. (MD) No.558 of 2000 filed by the Respondent,

and setting aside the judgment and decree dated 17.09.1999 of

the First Appellate Court in A.S. No.16/1998, to the extent the

First Appellate Court had declined the Respondent’s claim to a

decree of recovery of possession of the suit premises. The High

2

Court held that the Respondent, being the Plaintiff in the suit

was entitled to a declaration of title in respect of half portion of

the suit premises, recovery of possession of the said half portion

of the suit premises and also to recovery of income from the

said half of the suit property owned by the Respondent and/or

charges for use, enjoyment and/or occupation thereof.

  1. The Appellant claims to be the owner of the suit premises,

being the building and premises at Door No.4 in R.S. No.120/13

at Mela Senia Street, Aduthurai, Tamil Nadu.

  1. According to the Appellant, the Appellant’s father

purchased the suit premises for valuable consideration, by a

registered deed of sale dated 17.2.1938. The Appellant claims

to have been in possession of the suit premises, as owner, from

the inception and not as tenant.

  1. In 1994, the Respondent, hereinafter referred to as the

‘Respondent Plaintiff’, filed a suit being O.S. No.169/1994 in the

Court of the District Munsif, Valaingaiman at Kumbhakonam,

claiming declaration of ownership of the suit premises, a

direction on the Appellant, being the Defendant, to deliver

possession of the suit premises to the Respondent Plaintiff, a

3

decree for payment of Rs.900/- towards arrears of

rent/occupation charges in respect of the suit premises, and a

decree for payment of future profits.

  1. In the plaint filed in the said suit, it has been alleged that

the said premises, which had been purchased by the

Respondent Plaintiff’s father, by a registered sale deed dated

17.9.1940, had originally been let out to the Appellant’s father

M. Abdul Aziz. After the death of M. Abdul Aziz, the tenancy

was attorned in the name of the Appellant, who agreed to pay

rent of Rs.25/- per month, and also the requisite Panchayat Tax.

  1. Alleging that the Appellant had been trying to set up title

in respect of the said premises, by applying for ‘Patta’ to the

Tahsildar Natham, and further alleging that the Appellant was in

arrears of rent to the tune of Rs.1225/- up to February, 1994, the

Respondent Plaintiff filed the aforesaid suit.

  1. In the suit, the Respondent Plaintiff inter alia claimed a

decree of Rs.900/- towards rent and/or occupation charges. The

Respondent Plaintiff restricted his claim to arrears of rent and/or

occupation charges to three years, as the claim to rent and/or

occupation charges for the earlier period, had become barred by

4

limitation, there being no acknowledgement of liability by the

Appellant-Defendant.

  1. The Appellant-Defendant filed his written statement in the

Suit, denying title and/or ownership of the Respondent Plaintiff

to the suit premises and also contending that the AppellantDefendant was not a tenant. The Appellant-Defendant claimed

absolute ownership of the suit premises, which he claimed had

been purchased by his father, by a registered sale deed dated

17.2.1938, for valuable consideration.

  1. The Appellant-Defendant further contended that the suit

premises had all along, been assessed to tax in the name of the

Appellant-Defendant’s father, Abdul Aziz, and not in the name of

the Respondent Plaintiff or his father. The Appellant-Defendant

claimed to have got the suit premises from his father, under a

registered Deed of Release dated 14.3.1966. According to the

Appellant-Defendant, he has, since 1966, owned and enjoyed

the suit premises, with absolute rights.

  1. The learned District Munsif (Trial Court) framed the

following three issues for adjudication in the said suit :-

(i) Whether the Respondent Plaintiff was entitled to

declaration of title to the suit property and recovery

5

of possession of the suit property from the Defendant

(the Appellant in this Appeal)

(ii) Whether the Defendant (the Appellant herein) was a

tenant at the suit property or not;

(iii) To what other relief was the Respondent Plaintiff

entitled.

  1. By a judgment and decree dated 22.1.1998, the Trial Court

dismissed the said suit, holding that the Respondent Plaintiff

had failed to prove that the suit property had been purchased

by his father. All the three issues were decided against the

Respondent Plaintiff.

  1. The Trial Court found that the Respondent Plaintiff had not

been able to produce any rent agreement, rent receipts or any

other oral or documentary evidence to establish that the

Appellant was a tenant at the said premises. The Trial Court

held that the Respondent Plaintiff was not entitled to any relief

in the said suit.

  1. Being aggrieved by the said judgment and decree dated

22.1.1998 passed by the Trial Court, the Respondent Plaintiff

appealed to the Subordinate Court at Kumbhakonam,

hereinafter referred to as the ‘First Appellate Court’.

  1. By a judgment and order dated 17.9.1999, the First

6

Appellate Court allowed the said appeal, and set aside the said

judgment and order dated 22.1.1998 of the Trial Court , holding

that the Respondent Plaintiff was entitled to declaration of title

over half portion of the suit premises and also to recovery of

income, if any, from the said half portion of the suit premises

owned by the Respondent Plaintiff and/or charges for use,

occupation and/or enjoyment thereof, but not to recovery of

possession.

  1. The claim of the Respondent Plaintiff in the suit was based

on the assertion that one Rajagopala Pattar, who had purchased

the suit premises in a Court Auction, had sold the said premises

to the Respondent Plaintiff’s father in 1940.

  1. The First Appellate Court analyzed the oral evidence

adduced on behalf of the parties, scrutinized and examined the

documentary evidence on record, including in particular the

registered deed of conveyance by which the Respondent

Plaintiff’s father had purchased his portion of the suit premises

from Rajagopala Pattar (Exhibit P1), the registered documents

by which Rajagopala Pattar had acquired the suit premises in a

Court Auction (Exhibits P2 and P3) and the registered deed of

conveyance executed on 17.02.1938 being Exhibit D1 by which

7

the Appellant-Defendant’s father M. Abdul Aziz had purchased

his portion of the suit premises, examined the extent of the

rights of the respective vendors of the Appellant-Defendant’s

father and the Respondent-Plaintiff’s father and/or their

predecessors-in-interest, and concluded that the AppellantDefendant’s father had only purchased a portion of the suit

premises, not the entire suit premises, and the other portion

had been purchased by the Respondent-Plaintiff’s father. The

First Appellate Court, therefore, held that the RespondentPlaintiff was entitled to a declaration in respect of the said

portion of the suit premises, purchased by his father.

  1. The First Appellate Court also took note of the fact that the

Appellant-Defendant’s family had been residing in the suit

property since 1940, and that the Respondent-Plaintiff had not

produced any rent agreement or receipts or any tax receipts in

respect of the suit premises to show that the RespondentPlaintiff or his father or any other family member had ever paid

any taxes in respect of the suit premises.

  1. The First Appellate Court concurred with the finding of the

Trial Court, that the Respondent-Plaintiff had failed to establish

that the said premises had been rented out to M. Abdul Aziz

father of the Appellant-Defendant. On the other hand, the

8

Appellant had been in possession of and had been enjoying the

suit premises for a long time. The First Appellate Court thus

found the Appellant liable to pay “backage income” in respect of

the portion of the suit property, of which the Respondent

Plaintiff was the owner.

  1. The First Appellate Court, in effect, held that the Appellant

was liable to make over to the Respondent Plaintiff, income if

any, derived from the said portion of the suit premises which

was owned by the Respondent Plaintiff and/or pay charges for

use, occupation and enjoyment of the portion of the suit

premises owned by the Respondent Plaintiff.

  1. The First Appellate Court, however, held that the

Respondent Plaintiff was not entitled to recovery of possession

since the Respondent Plaintiff had failed to establish landlordtenant relationship between the Respondent Plaintiff and the

Appellant defendant, and that in any case the Appellant had

been in possession of the suit premises for a long time.

  1. The First Appellate Court passed a fair and just order,

holding that the Respondent-plaintiff, being the owner of a

portion of the said premises, was entitled to declaration of title

9

in respect of the said portion of the suit property owned by him,

but not to recovery of possession, since the defendant being the

Appellant herein had been enjoying the suit property for a long

time. In effect and substance, the First Appellate Court found

that the relief of recovery of possession was barred by delay

and/or in other words the laws of limitation, although this has

not clearly been stated in the judgment and order of the First

Appellate Court.

  1. Being purportedly aggrieved by the reversal of the

judgment and decree of the Trial Court, dismissing the said suit,

the Appellant-Defendant filed a Second Appeal being S.A. No.

64/2000 in the Madras High Court, against the judgment of the

First Appellate Court. The Respondent Plaintiff also filed Second

Appeal No.558 of 2000 in the Madras High Court, against the

same judgment and decree dated 17.9.1999, to the extent the

Respondent Plaintiff had been denied the relief of delivery of

possession in respect of his half share in the suit premises.

  1. By the judgment and order of the High Court under appeal

before this Court, the Second Appeal No. 64 of 2000 filed by the

Appellant-Defendant has been dismissed, the Second Appeal

No.559 of 2000 filed by the Respondent Plaintiff has been

10

allowed and the judgment and decree of the First Appellate

Court set aside, to the extent the Respondent Plaintiff had been

denied the relief of recovery of possession in respect of half of

the suit premises. The High Court held that the Respondent

Plaintiff was entitled to recovery of half of the plaint scheduled

property, after identifying the same with the help of an

Advocate Commissioner, at the time of the execution of the

decree. In all other respects, the decree of the First Appellate

Court was confirmed.

  1. Section 100 of the Civil Procedure Code (CPC) which

provides for a Second Appeal, as amended by the Civil

Procedure Code (Amendment) Act, 104 of 1976, with effect

from 1.2.1977,provides as follows:-

“100. Second Appeal. – (1) Save as otherwise expressly

provided in the body of this Code or by any other law for

the time being in force, an appeal shall lie to the High

Court from every decree passed in appeal by any Court

subordinate to the High Court, if the High Court is satisfied

that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate

decree passed ex parte.

(3) In an appeal under this section, the memorandum of

appeal shall precisely state the substantial question of

law involved in the appeal.

11

(4) Where the High Court is satisfied that a substantial

question of law is involved in any case, it shall formulate

that question.

(5) The appeal shall be heard on the question so

formulated and the respondent shall, at the hearing of the

appeal, be allowed to argue that the case does not involve

such question:

Provided that nothing in this sub-section shall be deemed

to take away or abridge the power of the Court to hear,

for reasons to be recorded, the appeal on any other

substantial question of law, not formulated by it, if it is

satisfied that the case involves such question.]”

  1. A second appeal, or for that matter, any appeal is not a

matter of right. The right of appeal is conferred by statute. A

second appeal only lies on a substantial question of law. If

statute confers a limited right of appeal, the Court cannot

expand the scope of the appeal. It was not open to the

Respondent-Plaintiff to re-agitate facts or to call upon the High

Court to reanalyze or re-appreciate evidence in a Second

Appeal.

  1. Section 100 of the CPC, as amended, restricts the right of

second appeal, to only those cases, where a substantial

question of law is involved. The existence of a “substantial

12

question of law” is the sine qua non for the exercise of

jurisdiction under Section 100 of the CPC.

  1. The High Court framed the following Questions of law:-

“1. Whether the Lower Appellate Court is right in

refusing the relief of possession especially when the

Lower Appellate Court granted relief of mesne profits

till delivery of possession.?

  1. Whether the Lower Appellate Court is right in holding

that the plaintiff is entitled to a declaration in respect

of half of the suit property overlooking the pleadings

and the documents of title in the instant case?”

  1. On behalf of the Appellant-Defendant, it has strenuously

been contended, and in our view, with considerable force, that

there was no question of law involved in either of the second

appeals, far less any substantial question of law, to warrant

inference of the High Court in Second Appeal No. 64 of 2000.

  1. The principles for deciding when a question of law

becomes a substantial question of law, have been enunciated

by a Constitution Bench of this Court in Sir Chunilal v. Mehta

& Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.1

, where this

Court held:-

”The proper test for determining whether a question of

law raised in the case is substantial would, in our opinion,

  1. AIR 1962 SC 1314

13

be whether it is of general public importance or whether

it directly and substantially affects the rights of the

parties and if so whether it is either an open question in

the sense that it is not finally settled by this Court or by

the Privy Council or by the Federal Court or is not free

from difficulty or calls for discussion of alternative views.

If the question is settled by the highest court or the

general principles to be applied in determining the

question are well settled and there is a mere question of

applying those principles or that the plea raised is

palpably absurd the question would not be a substantial

question of law.”

  1. In Hero Vinoth v. Seshammal2

, this Court referred to

and relied upon Chunilal v. Mehta and Sons (supra) and other

judgments and summarised the tests to find out whether a

given set of questions of law were mere questions of law or

substantial questions of law.

  1. The relevant paragraphs of the judgment of this Court in

Hero Vinoth (supra) are set out hereinbelow:-

“21. The phrase ”substantial question of law”, as

occurring in the amended Section 100 CPC is not defined

in the Code. The word substantial, as qualifying ”question

of law”, means of having substance, essential, real, of

sound worth, important or considerable. It is to be

understood as something in contradistinction withtechnical, of no substance or consequence, or academic

merely. However, it is clear that the legislature has

chosen not to qualify the scope of “substantial question of

law” by suffixing the words ”of general importance” as

has been done in many other provisions such as Section

109 of the Code or Article 133(1)(a) of the Constitution.

The substantial question of law on which a second appeal

2(2006) 5 SCC 545

14

shall be heard need not necessarily be a substantial

question of law of general importance. In Guran Ditta v.

Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] the

phrase substantial question of law as it was employed in

the last clause of the then existing Section 100 CPC (since

omitted by the Amendment Act, 1973) came up for

consideration and their Lordships held that it did not

mean a substantial question of general importance but a

substantial question of law which was involved in the

case. In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR

1962 SC 1314] the Constitution Bench expressed

agreement with the following view taken by a Full Bench

of the Madras High Court in Rimmalapudi Subba Rao v.

Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222

(FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR

1962 SC 1314] , SCR p. 557)

“When a question of law is fairly arguable, where there is

room for difference of opinion on it or where the Court

thought it necessary to deal with that question at some

length and discuss alternative views, then the question

would be a substantial question of law. On the other hand

if the question was practically covered by the decision of

the highest court or if the general principles to be applied

in determining the question are well settled and the only

question was of applying those principles to the particular

fact of the case it would not be a substantial question of

law.”

  1. To be “substantial”, a question of law must be debatable,

not previously settled by the law of the land or any binding

precedent, and must have a material bearing on the decision of

the case and/or the rights of the parties before it, if answered

either way.

  1. To be a question of law “involved in the case”, there must

be first, a foundation for it laid in the pleadings, and the

15

question should emerge from the sustainable findings of fact,

arrived at by Courts of facts, and it must be necessary to decide

that question of law for a just and proper decision of the case.

  1. Where no such question of law, nor even a mixed question

of law and fact was urged before the Trial Court or the First

Appellate Court, as in this case, a second appeal cannot be

entertained, as held by this Court in Panchagopal Barua v.

Vinesh Chandra Goswami3

.

  1. Whether a question of law is a substantial one and

whether such question is involved in the case or not, would

depend on the facts and circumstances of each case. The

paramount overall consideration is the need for striking a

judicious balance between the indispensable obligation to do

justice at all stages and the impelling necessity of avoiding

prolongation in the life of any lis. This proposition finds support

from Santosh Hazari v. Purushottam Tiwari4

.

  1. In a Second Appeal, the jurisdiction of the High Court being

confined to substantial question of law, a finding of fact is not

open to challenge in second appeal, even if the appreciation of

  1. AIR 1997 SC 1047

4(2001) 3 SCC 179

16

evidence is palpably erroneous and the finding of fact incorrect

as held in Ramchandra v. Ramalingam5

. An entirely new

point, raised for the first time, before the High Court, is not a

question involved in the case, unless it goes to the root of the

matter.

  1. The principles relating to Section 100 CPC relevant for this

case may be summarised thus :

(i) An inference of fact from the recitals or contents of a

document is a question of fact, but the legal effect of

the terms of a document is a question of law.

Construction of a document, involving the application

of any principle of law, is also a question of law.

Therefore, when there is misconstruction of a

document or wrong application of a principle of law in

construing a document, it gives rise to a question of

law.

(ii) The High Court should be satisfied that the case

involves a substantial question of law, and not a mere

question of law. A question of law having a material

bearing on the decision of the case (that is, a

question, answer to which affects the rights of parties

to the suit) will be a substantial question of law, if it is

not covered by any specific provisions of law or

settled legal principle emerging from binding

precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a

contrary situation, where the legal position is clear,

either on account of express provisions of law or

binding precedents, but the Court below has decided

the matter, either ignoring or acting contrary to such

legal principle. In the second type of cases, the

substantial question of law arises not because the law

is still debatable, but because the decision rendered

5 AIR 1963 SC 302

17

on a material question, violates the settled position of

law.

(iv) The general rule is, that High Court will not interfere

with the concurrent findings of the Courts below. But

it is not an absolute rule. Some of the well-recognised

exceptions are where (i) the courts below have

ignored material evidence or acted on no evidence;

(ii) the courts have drawn wrong inferences from

proved facts by applying the law erroneously; or (iii)

the courts have wrongly cast the burden of proof. A

decision based on no evidence, does not refer only to

cases where there is a total dearth of evidence, but

also refers to case, where the evidence, taken as a

whole, is not reasonably capable of supporting the

finding.

  1. With the greatest of respect to the High Court, neither of

the two questions framed by the High Court is a question of law,

far less a substantial question of law. There was no controversy

before the High Court with regard to interpretation or legal

effect of any document nor any wrong application of a principle

of law, in construing a document, or otherwise, which might

have given rise to a question of law. There was no debatable

issue before the High Court which was not covered by settled

principles of law and/or precedents.

  1. It is nobody’s case that the decision rendered by the First

Appellate Court on any material question, violated any settled

question of law or was vitiated by perversity. It is nobody’s case

that the evidence taken as a whole does not reasonably support

18

the finding of the First Appellate Court, or that the First

Appellate Court interpreted the evidence on record in an absurd

and/or capricious manner. It is also nobody’s case that the First

Appellate Court arrived at its decision ignoring or acting

contrary to any settled legal principle.

  1. The First Appellate Court examined the evidence on record

at length, and arrived at a reasoned conclusion, that the

Appellant-Defendant was owner of a part of the suit premises

and the Respondent-Plaintiff was owner of the other part of the

suit premises. This finding is based on cogent and binding

documents of title, including the registered deeds of

conveyance by which the respective predecessors-in-interest of

the Appellant-Defendant and Respondent-Plaintiff had acquired

title over the suit premises. There was no erroneous inference

from any proved fact. Nor had the burden of proof erroneously

been shifted.

  1. The second question of law, that is, the question of

whether the First Appellate Court was right in holding that the

plaintiff was entitled to a declaration of title in respect of half of

the suit property, has, as observed above, been decided in

favour of the Respondent Plaintiff, based on pleadings and

evidence. The conclusion of the First Appellate Court, of the

19

entitlement of the Respondent Plaintiff to a declaration in

respect of his half share in the suit property does not warrant

interference in a second appeal.

  1. The first question framed by the High Court, that is, the

question of whether the Lower Court /Appellate Court was right

in refusing the Respondent Plaintiff relief of possession, when

the Appellate Court had granted mesne profits to the

Respondent Plaintiff, is based on the erroneous factual premises

that the First Appellate Court had granted mesne profits to the

Respondent Plaintiff, which the First Appellate Court had not

done.

  1. The first question is not at all a question of law, far less

any substantial question of law involved in the case. The High

Court held:-

“8. Substantial Question of law No. 1:-

After declaring one half right in respect of the plaint

schedule property, the learned first appellate Judge has

refused the relief for recovery of possession on the

ground that the defendants have produced the

documents to show that they are in possession and

enjoyment of the property (Ex.B9 to B.32). There is no

pleadings in the written statement filed by the defendant

that he has prescribed title by way of adverse possession

in respect of the entire plaint schedule property. The

learned first appellate Judge at one place has rejected the

relief of delivery of recovery of possession in respect of

the suit property has granted mesne profit for three years

prior to the institution of the suit. Both the above said

20

findings are diametrically opposite to each other. Once

the recovery of possession is denied, then there is no

question of granting any mesne profit arises. After

declaring one half right in the plaint schedule property in

favour of the plaintiff, the learned appellate Judge ought

to have granted recovery of possession also in respect of

one half share in the plaint schedule property. Both the

courts below have concurrently held that there is not

landlord-tenancy relationship between the plaintiff and

the defendant. Under such circumstances, there is no

question of mesne profit arises in this case. So far as the

refusal of the relief of recovery of possession in respect of

the half of the plaint schedule property by the learned

first appellate Judge, warrants interference from this

Court. Substantial Question of Law No.1 is answered

accordingly.

  1. In fine, the Second Appeal No.558 of 2000 is

allowed and the decree and judgment of the learned first

appellate Judge in A.S. No.16/1998 on the file of the Court

of Subordinate Judge, Kumbakonam is set aside in respect

of dismissal of the suit for recovery of possession in

respect of half of the plaint schedule property. The

plaintiff is entitled to recover half of the plaint schedule

property after identifying the same with the help of an

Advocate Commission at the time of execution of the

decree In other respects, the decree of the learned first

appellate Judge in A.S. No.16/1998 on the file of the Court

of Subordinate Judge, Kumbakonam is hereby confirmed.

Second Appeal No. 64 of 2000 is dismissed. No costs.

Consequently, connected miscellaneous petition is

closed.”

  1. The High Court, with greatest of respect, has patently

erred in its conclusion that there was contradiction in the

findings of the First Appellate Court, in that the First Appellate

Court had declined the Respondent Plaintiff the relief of delivery

21

of possession of the suit property but had granted the

Respondent Plaintiff mesne profits for three years, prior to the

institution of the suit.

  1. ‘Mesne profits’ are profits which a person in wrongful

possession of property might have derived, but would not

include profits due to improvements. There is no finding of the

Appellant-Defendant being in wrongful possession of any part of

the suit premises either by the Trial Court or by the First

Appellate Court. The First Appellate Court has, nowhere used

the expression ‘mesne profit’. What the High Court granted to

the Respondent-Plaintiff was in the nature of reimbursement of

profit derived by the Appellant by use, occupation and

enjoyment of the Respondent-Plaintiff’s portion of the suit

premises and/or in other words reimbursement of income from

the said portion of the suit premises or charges for use,

occupation and enjoyment thereof.

  1. A decree of possession does not automatically follow a

decree of declaration of title and ownership over property. It is

well settled that, where a Plaintiff wants to establish that the

Defendant’s original possession was permissive, it is for the

Plaintiff to prove this allegation and if he fails to do so, it may be

presumed that possession was adverse, unless there is

22

evidence to the contrary.

  1. The Appellant-Defendant has in his written statement in

the suit, denied the title and ownership of the RespondentPlaintiff to the suit property. The Appellant-Defendant has

asserted that the Appellant-Defendant is the owner of the suit

property and has been in possession and in occupation of the

suit premises as owner from the very inception.

  1. In our considered opinion, the High Court erred in law in

proceeding to allow possession to the Respondent-Plaintiff on

the ground that the Appellant-Defendant had not taken the

defence of adverse possession, ignoring the well established

principle that the Plaintiff’s claim to reliefs is to be decided on

the strength of the Plaintiff’s case and not the weakness, if any,

in the opponent’s case, as propounded by the Privy Council in

Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC 201.

  1. From the pleadings filed by the Appellant-Defendant, it is

patently clear that the Appellant-Defendant claimed the right of

ownership of the suit property on the basis of a deed of

conveyance, executed over 75 years ago. The AppellantDefendant has claimed continuous possession since the year

1966 on the strength of a deed of release executed by his

23

father. In other words, the Appellant-Defendant has claimed to

be in possession of the suit premises, as owner, for almost 28

years prior to the institution of suit.

  1. In the facts and circumstances of this case, where the

Appellant-Defendant was owner of only a portion of the suit

property but has admittedly been in possession of the entire suit

property, and the Appellant-Defendant has, in his written

statement, claimed to be in continuous possession for years as

owner, the defence of the Appellant in his written statement

was, in effect and substance, of adverse possession even

though ownership by adverse possession had not been pleaded

in so many words. It is, however not necessary for this Court to

examine the question of whether the Appellant-Defendant was

entitled to claim title by adverse possession or not.

  1. A person claiming a decree of possession has to establish

his entitlement to get such possession and also establish that

his claim is not barred by the laws of limitation. He must show

that he had possession before the alleged trespasser got

possession.

  1. The maxim “possession follows title” is limited in its

application to property, which having regard to its nature, does

24

not admit to actual and exclusive occupation, as in the case of

open spaces accessible to all. The presumption that possession

must be deemed to follow title, arises only where there is no

definite proof of possession by anyone else. In this case it is

admitted that the Appellant-Defendant is in possession and not

the Respondent Plaintiff.

  1. A suit for recovery of possession of immovable property is

governed by the Limitation Act, 1963. Section 3 of the

Limitation Act bars the institution of any suit after expiry of the

period of limitation prescribed in the said Act. The Court is

obliged to dismiss a suit filed after expiry of the period of

limitation, even though the plea of limitation may not have been

taken in defence.

  1. The period of limitation for suits for recovery of immovable

property is prescribed in Part V of the Schedule to the Limitation

Act, 1963, and in particular Articles 64 and 65 thereof set out

hereinbelow for convenience:-

“PART V.— Suits Relating to Immovable Property..

Description of suit Period of

Limitation

Time from which period

begins to run

……….

  1. For possession of immovable property

based on previous possession and not on title,

Twelve years.

The date of

dispossession.

25

when the plaintiff while in possession of the

property has been dispossessed.

  1. For possession of immovable property or

any interest therein based on title;

Explanation.- For the purposes of this article –

(a) where the suit is by a remainderman, a

reversioner (other than a landlord) or a devisee,

the possession of the defendant shall be deemed

to become adverse only when the estate of the

remainderman, reversioner or devisee, as the

case may be, falls into possession;

(b) where the suit is by a Hindu or Muslim

entitled to the possession of immovable property

on the death of a Hindu or Muslim female, the

possession of the defendant shall be deemed to

become adverse only when the female dies;

(c) where the suit is by a purchaser at a sale in

execution of a decree when the judgment-debtor

was out of possession at the date of the sale, the

purchaser shall be deemed to be a

representative of the judgment-debtor who was

out of possession

Twelve years. When the possession of

the defendant becomes

adverse to the plaintiff.

  1. In the absence of any whisper in the plaint as to the date

on which the Appellant-Defendant and/or his Predecessor-ininterest took possession of the suit property and in the absence

of any whisper to show that the relief of decree for possession

was within limitation, the High Court could not have reversed

the finding of the First Appellate Court, and allowed the

Respondent-Plaintiff the relief of recovery of possession, more

so when the Appellant-Defendant had pleaded that he had been

in complete possession of the suit premises, as owner, with

absolute rights, ever since 1966, when his father had executed

26

a Deed of Release in his favour and/or in other words for over 28

years as on the date of institution of the suit.

  1. As held by the Privy Council in Peri v. Chrishold reported

in (1907) PC 73, it cannot be disputed that a person in

possession of land in the assumed character of owner and

exercising peaceably the ordinary rights of ownership has a

perfectly good title against all the world but the rightful

owner…and if the rightful owner does not come forward and

assert his right of possession by law, within the period

prescribed by the provisions of the statute of limitation

applicable to the case, his right is forever distinguished, and the

possessory owner acquires an absolute title.

  1. The condition precedent for entertaining and deciding a

second appeal being the existence of a substantial question of

law, whenever a question is framed by the High Court, the High

Court will have to show that the question is one of law and not

just a question of facts, it also has to show that the question is a

substantial question of law.

  1. In Kondiba Dagadu Kadam v. Savitribai Sopan

Gujar6

, this Court held:

6 (1999) 3 SCC 722

27

“After the amendment a second appeal can be filed only if a

substantial question of law is involved in the case. The

memorandum of appeal must precisely state the substantial

question of law involved and the High Court is obliged to

satisfy itself regarding the existence of such a question. If

satisfied, the High Court has to formulate the substantial

question of law involved in the case. The appeal is required

to be heard on the question so formulated. However, the

respondent at the time of the hearing of the appeal has a

right to argue that the case in the court did not involve any

substantial question of law. The proviso to the section

acknowledges the powers of the High Court to hear the

appeal on a substantial point of law, though not formulated

by it with the object of ensuring that no injustice is done to

the litigant where such a question was not formulated at the

time of admission either by mistake or by inadvertence”

“It has been noticed time and again that without insisting

for the statement of such a substantial question of law in the

memorandum of appeal and formulating the same at the

time of admission, the High Courts have been issuing notices

and generally deciding the second appeals without adhering

to the procedure prescribed under Section 100 of the Code of

Civil Procedure. It has further been found in a number of

cases that no efforts are made to distinguish between a

question of law and a substantial question of law. In exercise

of the powers under this section the findings of fact of the

first appellate court are found to have been disturbed. It has

to be kept in mind that the right of appeal is neither a

natural nor an inherent right attached to the litigation. Being

a substantive statutory right, it has to be regulated in

accordance with law in force at the relevant time. The

conditions mentioned in the section must be strictly fulfilled

before a second appeal can be maintained and no court has

the power to add to or enlarge those grounds. The second

appeal cannot be decided on merely equitable grounds. The

concurrent findings of facts howsoever erroneous cannot be

disturbed by the High Court in exercise of the powers under

this section. The substantial question of law has to be

distinguished from a substantial question of fact.”

“If the question of law termed as a substantial question

28

stands already decided by a larger Bench of the High Court

concerned or by the Privy Council or by the Federal Court or

by the Supreme Court, its merely wrong application on the

facts of the case would not be termed to be a substantial

question of law. Where a point of law has not been pleaded

or is found to be arising between the parties in the absence

of any factual format, a litigant should not be allowed to

raise that question as a substantial question of law in second

appeal. The mere appreciation of the facts, the documentary

evidence or the meaning of entries and the contents of the

document cannot be held to be raising a substantial question

of law. But where it is found that the first appellate court has

assumed jurisdiction which did not vest in it, the same can

be adjudicated in the second appeal, treating it as a

substantial question of law. Where the first appellate court is

shown to have exercised its discretion in a judicial manner, it

cannot be termed to be an error either of law or of procedure

requiring interference in second appeal.”

  1. When no substantial question of law is formulated, but a

Second Appeal is decided by the High Court, the judgment of

the High Court is vitiated in law, as held by this Court in

Biswanath Ghosh v. Gobinda Ghose7

. Formulation of

substantial question of law is mandatory and the mere reference

to the ground mentioned in Memorandum of Second Appeal can

not satisfy the mandate of Section 100 of the CPC.

  1. The judgment and order of the High Court under appeal

does not discuss or decide any question of law involved in the

case, not to speak of substantial question of law.

7 AIR 2014 SC 152

29

  1. Just as this Court has time and again deprecated the

practice of dismissing a second appeal with a non-speaking

order only recording that the case did not involve any

substantial question of law, the High Court cannot also allow a

second appeal, without discussing the question of law, which

the High Court has done.

  1. For the reasons discussed above, the appeals are allowed.

The judgment and order of the High Court under appeal is set

aside to the extent Second Appeal No.558 of 2000 has been

allowed and the judgment and decree of the First Appellate

Court is restored.

……………………………J.

[ Navin Sinha ]

…………………………….J.

[ Indira Banerjee ]

AUGUST 27, 2020

NEW DELHI