Nazir Mohamed vs J. Kamala and Ors.

Suit for declaration of ownership and for possession of the suit premises – Alleging that the suit premises was let out to the defendant – Written statement denying the tenancy and claiming absolute ownership – Trial Court dismissed the suit – First Appellate Court partly decreed the suit holding that the plaintiff was entitled to ownership of half portion of the suit property which his father had purchased and not the other portion which was purchased by father of the defendant – However, First Appellate Court denied decree of possession to the plaintiff on the ground that the plaintiff failed to prove the tenancy and that the defendant was in occupation of the premises for a long time – Second appeal by both the parties – High Court dismissed the appeal of defendant and allowing the appeal of the plaintiff granted him relief of recovery of possession – Appeal to Supreme Court – Held: A person in possession, in the assumed character of owner has a perfectly good title against all but the rightful owner – But if the rightful owner does not assert his right of possession, within limitation period, his right is extinguished forever, and the possessory owner acquires an absolute title – The conclusion of the First Appellate Court did not warrant interference – High Court could not have reversed the finding of First Appellate Court and allowed relief of recovery of possession when the defendant was in complete possession of the suit premises, as owner with absolute rights for over 28 years.

Maxims:

‘Possession follows title’ – Applicability of – Held: The maxim is limited in its application to property – The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else – A person claiming decree of possession needs to establish his entitlement to get such possession and also establish that his claim is not barred by law of limitation.

Words and Phrases:

‘Mesne profit’ – Meaning of.

Allowing the appeals, the Court

HELD: 1.1 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. [Para 25][777-B-C]

1.2 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. [Para 26][777-C-D]

1.3 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 the Second Appeal filed by the defendant. [Para 28][777-F]

1.4 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. 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. 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 the present case, a second appeal cannot be entertained. [Paras 32-34][779-D-F]

Panchagopal Barua v. Vinesh Chandra Goswami AIR 1997 SC 1047 – relied on.

1.5 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. [Para 35][779-G; 780-A]

Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC

179 : [2001] 1 SCR 948 – relied on.

1.6 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, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect. 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. [Para 36][780-B]

Ramchandra v. Ramalingam AIR 1963 SC 302 : [1963]

3 SCR 604 – relied on.

1.7 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. 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. 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. 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. [Para 37][780-C-G; 781-A-B]

1.8 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. 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. [Paras 57 and 59] [786-D-E; 788-B]

Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 : [1999] 2 SCR 728; Biswanath Ghosh v. Gobinda Ghose AIR 2014 SC 152 – relied on.

1.9 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. [Para 59][788-C]

1.10 In the present case 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. [Para 38][781-C-D]

1.11 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 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. [Para 39][781-E-F]

1.12 The finding by First Appellate Court 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. [Para 40][781-G]

Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. AIR 1962 SC 1314 : [1962] Suppl. SCR

549 – followed.

Hero Vinoth v. Seshammal (2006) 5 SCC 545 : [2006]

2 Suppl. SCR 79 – relied on.

1.13 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. [Para 41][782-B]

2.1 The first question framed by the High Court, that is, the question 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. The first question is not at all a question of law, far less any substantial question of law involved in the case. [Paras 42-43][782-B-D]

2.2 The High Court 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. ‘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 RespondentPlaintiff’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. [Paras 44-45][783-E-G]

3.1 A decree of possession does not automatically follow a decree of declaration of title and ownership over property. 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 evidence to the contrary. 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. 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. [Paras 46-48][783-H; 784-A-D]

Baba Kartar Singh v. Dayal Das AIR 1939 PC 201 – relied on.

3.2 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 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. In the facts and circumstances of the 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 AppellantDefendant was entitled to claim title by adverse possession or not. [Paras 49-50][784-D-G]

3.3 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 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 the present case it is admitted that the Appellant-Defendant is in possession and not the Respondent-Plaintiff. [Paras 51-52][784-H; 785-A-B]

3.4 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. 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. [Paras 53-54][785-B-D]

3.5 In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessorin-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. [Para 55][785-G-H; 786-A-B]

3.6 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. [Para 56][786-C-D]

Peri v. Chrishold (1907) PC 73 – relied on.

4. 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. [Para 62][788-E-F]