Second Appeal; Syeda Rahimunnisa Vs. Malan Bi (Dead) by L.Rs. [Supreme Court of India, 03-10-2016]

Civil P.C. 1908 – S. 100 – Second Appeal – Only on the questions framed – the jurisdiction of High Court to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer in respondent’s favour.

Civil P.C. 1908 – O. 41 R. 23, 23-A & 25 – Power of the Appellate Court to remand the case to subordinate court – In order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts.

Civil P.C. 1908 – S. 100 – Second Appeal – Substantial Question of Law – Plea of adverse possession against the State – Execution of Gift – the High Court had framed one question on the validity of one gift. This question was of no significance for deciding the main question involved in this case. It is for the reason that the dispute in this case was between the respondents on the one hand and the State on the other relating to the title which was claimed by the respondents on the basis of their adverse possession and to decide this question, execution of gift inter se two members of respondents’ family was of no relevance. In these circumstances, the alleged gift whether executed between the two members of respondents’ family or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 of CPC.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

[J. CHELAMESWAR] AND [ABHAY MANOHAR SAPRE] JJ.

October 03, 2016

CIVIL APPEAL Nos. 2875-2879 OF 2010

Syeda Rahimunnisa …….Appellant(s)

VERSUS

Malan Bi (Dead) by L.Rs. & Anr. Etc. …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. These appeals by special leave are filed by the appellant-defendant against the common judgment dated 21.08.2008 of the High Court of Judicature, Andhra Pradesh at Hyderabad in S.A. Nos. 1151 of 1998, 76, 167, 168 and 169 of 1999 whereby the learned Single Judge of the High Court allowed the appeals filed by the respondents-plaintiffs, in consequence, set aside the decree and common judgment dated 15.10.1998 of the Court of Additional District Judge, Kurnool in A.S. Nos.56, 57, 58 59 and 60 of 1997 dismissing the first appeals filed by the respondents herein.

2. Facts of the case need mention, in brief, infra to appreciate the controversy involved in the appeals.

3. These appeals involve a short point. However, in order to appreciate the point, it is necessary to mention the relevant facts infra.

4. The two appellants – Smt. Syeda Rahimunnisa and Syed Hyder Hussaini are wife and husband whereas the respondent no. 1(a) to 1(f) are the legal heirs of one late Haji Mian being mother, wife, sons and daughters respectively.

5. The dispute between the two aforementioned families relates to the ownership and possession of portion of land (which is a part of entire area classified as Government Burial Poramboke) situated in Kurnool (AP) bearing S.No.35/5 renumbered as 35/5-C1/A-1 (hereinafter called “the suit-land”).

6. The appellants filed two civil suits being O.S.No. 77 of 1994 and O.S.No 65 of 1995 against Haji Mian and others. The present respondent nos. 1(a) to 1(f) who were later added as party defendants are legal representatives of Haji Mian.

7. So far as O.S. No 77 of 94 is concerned, the appellants (plaintiffs) claimed therein eviction of the respondents from the suit-land. It was alleged that appellant no. 1 being the owner of the suit-land had inducted respondent no.1 (defendant no.1) as her tenant on a monthly rent of Rs.150/- for a period of three years on the strength of lease deed dated 01.06.1982. It was alleged that contrary to lease conditions and without appellants’ consent, the respondent no.1 erected four huts and sublet to defendant nos.2 to 6 on monthly rent. It was also alleged that respondents denied appellants’ title.

8. So far as O.S. no. 65 of 1995 is concerned, the appellants (plaintiffs) claimed therein money decree of Rs.5400/- towards damages for use and occupation of the suit-land for the period (01.07.1989 to 31.07.1992) i.e. 36 months and further at the rate of Rs.1507/- per month for preceding three years ending on 30.06.1992 against the respondents.

9. So far as the respondents are concerned, they filed three civil suits being O.S. No. 53 of 1993, O.S.No. 69 of 1994 and O.S.No. 71 of 1994 against the appellants in the Court of Principal Subordinate Judge, Kurnool.

10. So far as O.S.No.53 of 1993 is concerned, the respondents (plaintiffs) filed a suit against appellant No.1 and State of A.P. for a declaration that respondents are the owners of the suit-land and also they are entitled to claim permanent injunction against the appellants from interfering in their possession over the suit-land. The respondents in substance claimed title over the suit-land by adverse possession against the Government alleging that their predecessor were in possession of the suit-land for the last 100 years and on their death, respondents continued to remain in possession throughout and has, therefore, perfected their title by being in adverse possession to the exclusion of all, including the Government as owners.

11. So far as second suit being O.S.No. 69 of 1994 is concerned, it was filed by the respondents against the appellant no.1 and APEB to challenge the notice dated 07.06.1990 issued by APEB for disconnecting the electric supply to the respondents’ structure. A relief of permanent injunction restraining the defendants (APEB) from giving effect to the notice was also prayed.

12. So far as the third suit being O.S.No. 71 of 1994 is concerned, the respondents filed this suit against the Municipality and the appellant no. 1 challenging therein the assessment made by the Municipality by which appellants names were entered in the register of Municipality in relation to the suit-land/structure. According to the respondents, they having perfected their title over the suit-land by adverse possession, their names should have been entered in place of the appellants names in the records of the Municipality.

13. Since all the aforementioned five suits were in relation to one suit-land and were between the same parties pending in different courts, all the five civil suits were clubbed together for disposal in accordance with law. Parties adduced common evidence in all the five civil suits.

14. By a common judgment and decree dated 22.04.1997, the learned trial judge dismissed three civil suits being O.S.Nos. 53 of 1993, 69 of 1994 and 71 of 1994 filed by the respondents, whereas decreed the appellants’ two civil suits being O.S.Nos. 77 of 1994 and 65 of 1995. It was held that respondents in their suits failed to establish their title over the suit-land. It was held that since they failed to establish their title over the suit-land, a fortiori, they are not entitled to claim permanent injunction against the appellants over the suit-land. So far as appellants’ two civil suits are concerned, it was held that appellants were able to establish the relationship of landlord and tenant between appellant No.1 and the respondent and hence they are entitled to claim the eviction of the respondents from the suit-land. It was also held that appellants are also entitled to claim the money by way of damages from the respondents for the period in question for the use and occupation of the suit-land as claimed in the suit.

15. The respondents felt aggrieved, filed five appeals being S.A. No 56 of 1997, 57 of 1997, 58 of 1997, 59 of 1997 and 60 of 1997 before the II Additional District Judge, Kurnool. By five separate judgments dated 15.10.1998, the first appellate court dismissed all the five appeals and affirmed the judgment and decree of the trial judge.

16. Felt aggrieved, the respondents filed five Second appeals before the High Court. The High Court admitted the appeals and by impugned order allowed the appeals and while setting aside the two courts judgment/decree remanded the cases to the trial court for fresh trial on merits by permitting the parties to amend the pleadings, to frame additional issues and to adduce the evidence. The concluding para of the High Court reads as under:-