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Monday, November 20, 2017

without pleadings, no evidence or no arguments can be considered = First, the respondent (defendant) had not raised such plea in his written statement. In other words, the respondent did not set up such defense in the written statement. Second, the Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement. Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way. Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in 11 order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea. Fifth, the High Court failed to see the case set up by the respondent in his written statement. As mentioned above, the defense of the respondent was that he had denied the appellant's title over the suit shop and then set up a plea of adverse possession contending that he has become the owner of the suit shop by virtue of adverse possession, which according to him, was from time immemorial. we are of the considered view that the Trial Court and First Appellate Court were justified in holding the appellant to be the owner of the suit shop, having purchased the same vide registered sale deed dated 20.09.1997 from its previous owner. It was also rightly held that the respondent was in possession 15 of the suit shop as an encroacher and failed to prove his adverse possession over the suit shop. These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 19421 OF 2017
(ARISING OUT OF SLP (C) No.22894/2014)
Sri Shivaji Balaram Haibatti ….Appellant(s)
VERSUS
Sri Avinash Maruthi Pawar …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed by the plaintiff against the
final judgment and order dated 04.04.2014 passed
by the High Court of Karnataka, Bench at Dharwad
in Regular Second Appeal No.213/2007(INJ.)
whereby the High Court allowed the appeal filed by
the respondent herein and set aside the judgments
and decrees of the Trial Court and First Appellate
Court.
1
3. In order to appreciate the issues involved in
the appeal, it is necessary to state few relevant
facts.
4. The appellant is the plaintiff whereas the
respondent is the defendant in the civil suit out of
which this appeal arises.
5. The dispute involved in the appeal relates to a
shop measuring 9 ft. 9 inch North and 5 ft. East
West situated out of land bearing CTS 1590/A-4 in
the City of Belgaum (as detailed in plaint)
(hereinafter referred to as "suit shop").
6. One Vithal Dhopeshwarkar was the owner of
the suit shop along with the land over which the
suit shop is built and some adjoining land. He sold
the land and the suit shop to the appellant vide
registered sale deed dated 20.09.1997 (Annexure
P-6). The respondent (defendant) was in possession
of the suit shop even prior to its purchase by the
appellant from Vithal Dhopeshwarkar.
2
7. On 08.06.1999, the appellant filed a civil suit
being O.S. No.115/1999 against the respondent in
the Court of Civil Judge, Sr Division, Belgaum
claiming possession of the suit shop from the
respondent. The suit was founded on the
allegations, inter alia, that the appellant is the
owner of the suit shop having purchased the same
vide registered sale deed dated 20.09.1997 from
Vithal Dhopeshwarkar. It was alleged that the
respondent was in possession of the suit shop
without any right, title and interest of any nature.
8. In other words, according to the appellant, the
respondent, since inception, was in illegal
possession of the suit shop. The appellant, on
purchase of the suit shop, therefore, requested the
respondent to vacate the suit shop but he failed to
vacate and hence the appellant became entitled to
claim possession of the suit shop from the
respondent on the strength of his ownership over
3
the suit shop. A relief of mesne profits at the rate of
Rs.2500/- per month was also claimed.
9. The respondent filed written statement. He
denied the appellant's title and claimed that he has
been in possession of the suit shop since “time
immemorial” and much prior to the appellant's
purchasing the suit shop. The respondent also
raised a plea that he has perfected his title by virtue
of adverse possession over the suit shop against the
predecessor-in-title of the appellant and the
appellant.
10. The Trial Court framed the issues. Parties led
evidence. By judgment/decree dated 03.11.2003 in
O.S. No.115 of 2003, the Trial Court decreed the
appellant's suit. The Trial Court held that the
appellant is the owner of the suit shop, that the
respondent failed to prove his adverse possession
over the suit shop, that the respondent has been in
illegal possession of the suit shop and that the
appellant is entitled to claim eviction of the
4
respondent from the suit shop and also entitled to
claim mesne profits at the rate of Rs.2000/- p.m. for
a period of three years and the cost of Rs.5000/-.
The Trial Court accordingly passed decree for
possession and mesne profits against the
respondent.
11. The respondent, felt aggrieved, filed first
appeal before the Ist Additional District Judge,
Belgaum being Regular Appeal No.58/2003. By
judgment/decree dated 11.12.2006, the First
Appellate Court dismissed the appeal and affirmed
the judgment/decree of the Trial Court.
12. The respondent, felt aggrieved, filed Second
Appeal in the High Court of Karnataka (Dharwad
Bench) being S.A. No. 213/2007 under Section 100
of the Code of Civil Procedure, 1908 (hereinafter
referred to as "the Code"). The High Court, by
impugned judgment, allowed the Second Appeal and
while setting aside of the judgments and decrees of
two Courts below dismissed the appellant's suit.
5
The High Court held that the respondent was in
possession of the suit shop as tenant and, therefore,
the remedy of the appellant lies in filing the suit
under the Rent Laws and the Transfer of Property
Act for claiming possession of the suit shop. It was
held that the present suit is, therefore, not
maintainable for passing a decree for possession
against the respondent in respect of suit shop.
13. Felt aggrieved, the plaintiff (appellant herein)
has filed the present appeal by way of special leave
before this Court.
14. Heard Mr. R.S. Hegde, learned counsel for the
appellant and Mr. Charuditta Mahindrakar, learned
counsel for the respondent.
15. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are constrained to allow the appeal and while
setting aside of the impugned judgment of the High
Court restore that of the Trial Court and First
Appellate Court, which had rightly decreed the
6
appellant's suit against the respondent in relation to
the suit shop.
16. In our considered opinion, the approach of the
High Court in deciding the second appeal, which
resulted in allowing the respondent's appeal, is
wholly perverse and against the well settled
principle of law applicable to second appeals and to
the factual controversy involved in the case as
would be clear from our reasons set out
hereinbelow.
17. Section 100 of the Code deals with second
appeals. Sub-section (4) says that where the High
Court is satisfied that a substantial question of law
is involved in the case, it shall formulate that
question. Sub-section (5) says that the appeal shall
be heard on the question “so formulated". It further
provides that the respondent is allowed to raise an
objection at the time of hearing of the appeal that
the question which has been framed does not
involve in the case or in other words, is not a
7
“substantial question of law" and, therefore, the
appeal is liable to be dismissed as involving no
substantial question of law within the meaning of
Section 100 of the Code.
18. The proviso to sub-section (5), however,
recognizes the power of the High Court to frame any
other substantial question of law which was not
initially framed but in the opinion of the Court does
arise in the case. The Court can frame such
question by assigning reasons.
19. Reading of sub-sections (4) and (5) of Section
100 of the Code, in clear terms, shows that, first,
the High Court can hear the second appeal only on
the question so formulated; second, it has
jurisdiction to dismiss the second appeal if the
respondent raises an objection at the time of
hearing that the question so formulated does not
arise in the case or is not a substantial question of
law; and third, it can hear the appeal on any other
question not initially framed provided such question
8
arises in the case and is a substantial question of
law. Such question can then be framed by
assigning the reasons.
20. Now coming to the facts of the case, we find
that the High Court had admitted the second appeal
by framing the following question of law:
"Whether the Courts below have committed
an error in the manner of considering the
pleadings as well as the evidence available on
record and as to whether the same is
contrary to the recitals in the documents at
Exhibit P.15?"
21. Reading of the aforementioned question shows
that the only question, which the High Court was
required to consider in the appeal, was whether the
Trial Court and First appellate Court decided the
case contrary to the pleadings and evidence and
especially contrary to the recitals of EX-P.15.
22. The High Court, however, did not frame any
other question of law to examine the legality and
correctness of any specific finding recorded by the
Courts below on the issues framed.
9
23. In the absence of any question of law framed
on any of the adverse findings recorded by the two
Courts below against the respondent, those findings
attained finality. In other words, since no error was
noticed in any of the findings of the two Courts
below, the High Court did not frame any substantial
question in relation to such findings, which became
final for want of any challenge.
24. The High Court, however, framed one general
question of law as to whether the findings of the two
Courts below were contrary to the pleadings and
evidence and especially to Ex-P-15 and held, by
placing reliance on Ex.P-15, that the respondent
was occupying the suit shop as tenant and,
therefore, the remedy of the appellant was in filing a
tenancy suit against the respondent and to claim
his eviction from the suit shop under the State
tenancy laws or/and Transfer of Property Act in
such suit but not in the present suit which is based
on the strength of his title. The High Court, with
10
this finding, accordingly allowed the appeal and
dismissed the appellant's suit as being
misconceived.
25. In our considered opinion, the aforesaid
finding of the High Court is wholly illegal and
unsustainable in law besides being against the
pleading and evidence. This we say for following
reasons:
26. First, the respondent (defendant) had not
raised such plea in his written statement. In other
words, the respondent did not set up such defense
in the written statement. Second, the Trial Court,
therefore, had no occasion to frame any issue on
such plea for want of any factual foundation in the
written statement. Third, the Trial Court and First
Appellate Court, in these circumstances, had no
occasion to record any finding on this plea either
way. Fourth, in the light of these three reasonings,
the High Court ought to have seen that such plea
really did not arise for consideration because in
11
order that any question is involved in the case, the
party concerned should lay its factual foundation in
the pleading and invite finding on such plea. Fifth,
the High Court failed to see the case set up by the
respondent in his written statement. As mentioned
above, the defense of the respondent was that he
had denied the appellant's title over the suit shop
and then set up a plea of adverse possession
contending that he has become the owner of the
suit shop by virtue of adverse possession, which
according to him, was from time immemorial.
27. It was clear that the respondent never claimed
that he was in possession of the suit shop as tenant
of the appellant's predecessor-in-title. On the other
hand, the respondent had asserted his ownership
right over the suit shop on the strength of his long
adverse possession.
28. It is these issues, which were gone into by the
two Courts and were concurrently decided by them
against the respondent. These issues, in our
12
opinion, should have been examined by the High
Court with a view to find out as to whether these
findings contain any legal error so as to call for any
interference in second appeal. The High Court,
however, did not undertake this exercise and rather
affirmed these findings when it did not consider it
proper to frame any substantial question of law. It
is a settled principle of law that the parties to the
suit cannot travel beyond the pleadings so also the
Court cannot record any finding on the issues
which are not part of pleadings. In other words, the
Court has to record the findings only on the issues
which are part of the pleadings on which parties are
contesting the case. Any finding recorded on an
issue de hors the pleadings is without jurisdiction.
Such is the case here.
29. That apart, even if we examine the question
framed by the High Court as arising in the case, we
are of the considered opinion that the question has
to be answered against the respondent (appellant
13
before the High Court) and in favour of the
appellant herein for more than one reason
mentioned below.
30. First, the respondent did not adduce any
evidence to prove that he was in possession of the
suit shop as tenant of the appellant's predecessorin-title.
In order to prove the tenancy between the
respondent and the appellant's predecessor-in-title
(Vithal Dhopeshwarkar), it was necessary for the
respondent to have filed rent receipts/lease deed
etc. and also to have examined his landlord who,
according to him, had inducted him as tenant in the
suit shop. It was not done.
31. Second, Ex.P-15, which is sale deed of the
suit shop nowhere recites that the respondent was
in possession of the suit shop as tenant. All that it
recites is that the respondent has been in
possession of the suit shop. Such recitals, in our
opinion, no way confer the status of a tenant on the
respondent in the absence of any independent
14
evidence adduced by him to prove the creation of
tenancy. No benefit of Ex.P-15 could thus be taken
by the respondent to claim the status of a tenant.
32. In the light of aforementioned reasons, we are
of the considered opinion, that the High Court was
not right in holding that the respondent was in
occupation of the suit shop as tenant and that the
remedy of the appellant was to file a civil suit to
claim eviction under the Rent Laws. This finding, in
our view, is contrary to the pleadings and evidence.
It is also otherwise not legally sustainable for want
of any evidence adduced by the respondent in
support thereof.
33. In view of foregoing discussion, we are of the
considered view that the Trial Court and First
Appellate Court were justified in holding the
appellant to be the owner of the suit shop, having
purchased the same vide registered sale deed dated
20.09.1997 from its previous owner. It was also
rightly held that the respondent was in possession
15
of the suit shop as an encroacher and failed to
prove his adverse possession over the suit shop.
These findings being concurrent findings of fact
were binding on the High Court and, therefore, the
second appeal should have been dismissed in limine
as involving no substantial question of law.
34. In the light of foregoing discussion, the appeal
succeeds and is allowed. Impugned judgment of the
High Court is set aside and as a consequence, the
judgments of the First Appellate Court and Trial
Court are restored.
………...................................J.
[R.K. AGRAWAL]

…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 20, 2017
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