Case: NAZIR MOHAMED Vs. J.KAMALA AND ORS

4. 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 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.5. In the plaint filed in the said suit, it has been alleged that the said premises, which had been purchased by the Respondent Plaintiffs father, by a registered sale deed dated 17.9.1940, had originally been let out to the Appellants 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 T ax.6. Alleging that the Appellant had been trying to set up title in respect of the said premises, by applying for Patta to the T ahsildar 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.7. 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 limitation, there being no acknowledgement of liability by the Appellant-Defendant.8. 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 Appellant- Defendant 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.9. The Appellant-Defendant further contended that the suit premises had all along, been assessed to tax in the name of the Appellant-Defendants 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.10. 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 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) T o what other relief was the Respondent Plaintiff entitled.11. 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.12. 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.13. 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.14. By a judgment and order dated 17.9.1999, the First 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.15. 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 Plaintiffs father in 1940.16. 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 Plaintiffs 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 the Appellant-Defendants 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-Defendants father and the Respondent-Plaintiffs father and/or their predecessors-in-interest, and concluded that the Appellant- Defendants 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-Plaintiffs father. The First Appellate Court, therefore, held that the Respondent- Plaintiff was entitled to a declaration in respect of the said portion of the suit premises, purchased by his father.17. The First Appellate Court also took note of the fact that the Appellant-Defendants 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 Respondent- Plaintiff or his father or any other family member had ever paid any taxes in respect of the suit premises.18. 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 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.19. 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.20. 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 landlord- tenant 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.21. 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. 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.22. 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.23. 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 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.

Reasoning: 32. 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.33. To be a question of law involved in the case, there must be first, a foundation for it laid in the pleadings, and the 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.34. 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 Goswami AIR 1997 SC 1047 .35. 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 Tiwari (2001) 3 SCC 179.  36. 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 evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam AIR 1963 SC 302  . 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.37. 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 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.38. 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.39. It is nobodys 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 nobodys case that the evidence taken as a whole does not reasonably support 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 nobodys case that the First Appellate Court arrived at its decision ignoring or acting contrary to any settled legal principle.40. 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.41. 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 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.42. 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.43. The first question is not at all a question of law, far less any substantial question of law involved in the case.44. 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 of possession of the suit property but had granted the Respondent Plaintiff mesne profits for three years, prior to the institution of the suit.45. 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-Plaintiffs 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.46. 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 Defendants 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 evidence to the contrary.47. The Appellant-Defendant has in his written statement in the suit, denied the title and ownership of the Respondent- Plaintiff 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.48. 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 Plaintiffs claim to reliefs is to be decided on the strength of the Plaintiffs case and not the weakness, if any, in the opponents case, as propounded by the Privy Council in Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC 201  .49. 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 Appellant- Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his 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.50. 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.51. 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.52. The maxim possession follows title is limited in its application to property, which having regard to its nature, does 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.53. 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.55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in- interest 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 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.56. 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.57. 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.59. 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 Ghose AIR 2014 SC 152  . 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.60. 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.61. 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.25. 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.26. 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 question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.27. 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.?2. 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?