Bivi & ANR. Vs. Chinnathambi (Dead) Through LRS.  INSC 1589 (16
APPELLATE JURISDICTION CIVIL APPEAL NO.2407 OF 2002 Azrath Bivi and Anr.
...Appellant(s) Versus Chinnathambi (Dead) Thru. LRs. ...Respondent(s)
O R D E R
learned counsel for the parties.
plaintiffs filed a suit for recovery of possession of the property described in
Schedule `A' appended to the plaint. They further prayed for grant of permanent
injunction against the defendants restraining them, their men and agents from
in any manner interfering with their possession and enjoyment of the property
described in Schedule A and B appended to the plaint and from constructing a
new building thereon. In short, the plaintiffs' case was that the suit property
belonged to one Sheik Maracair of Pudupattinam village, who died issueless and
his property devolved upon his sister Kathija Bivi, who executed a settlement
deed in favour of her son Sultan Maracair. Sultan Maracair transferred the
property to the plaintiffs by oral hiba on 5th May, 1968.
validity of oral hiba became the subject matter of consideration in OS
No.49/1968 filed in the Court of Sub- ordinate Judge, Mayuram, who recorded a
finding that hiba was valid. The said finding was upheld by the lower appellate
his life time, Sheikh Maracair constructed a shed in the suit property and let
out the same to defendant No.1 on a monthly rent of Rs.20/- for a tea shop,
who, in turn, entered into some arrangement with defendant No.2 for maintaining
the tea shop. Defendant No.1 continued to occupy the tea shop even after
execution of settlement deed by Kathija Bivi in favour of her son, Sultan
Maracair, and transfer of the property by the latter in favour of the
plaintiffs by means of oral hiba.
No.1 defaulted in payment of rent for four years, which necessitated filing of
the suit by the plaintiffs for possession and grant of permanent injunction.
Upon service of summons, defendant No.1 filed written statement in which he
denied that Sheikh Maracair was the owner of the property and, after his death,
his sister Kathija Bivi inherited the same. He pleaded that Khatija Bivi was
neither the owner of the property nor she was in possession thereof and the
settlement deed executed by her was invalid. Defendant No.1 also denied the
assertion contained in the plaint that Sheikh Maracair gave him the property
for running a tea shop. The transfer of property by Sultan Maracair in favour
of the plaintiffs by oral hiba was also disputed. According to defendant No.1,
the suit property was a Government property and he was occupying the same for
the last thirty years. He claimed title in the suit property by way of adverse
possession. The plaintiffs filed a reply to the written submission in paragraph
(4) whereof it was stated that defendant No.1 renewed and executed a rent deed
dated 5th January, 1970. Defendant No.1 filed two additional written statements
but did not deny this averment. On the pleadings of the parties, one additional
issue was framed on 20th November, 1980, and seven additional issues were
framed on 6th December, 1986. Thereafter the parties adduced their respective
evidence. Upon consideration of the entire matter, the Trial Court decreed the
suit. The appeal preferred by the defendant No.1 was dismissed by the lower
appellate Court which concurred with the findings recorded by the trial Court
on all the issues.
No.1 challenged the judgments and decrees of the trial Court and lower
appellate Court by filing second appeal. The High Court framed four substantial
questions of law and upon reappraisal of evidence, reversed the findings
rendered by the Trial Court as well as the lower appellate Court as if it was
exercising powers of the first appellate court. The High Court held that the
approach adopted by the Trial Court and the lower appellate Court was
erroneous. Hence, this appeal by special leave.
counsel appearing on behalf of the appellants submitted that the findings
recorded by the trial Court on various issues were based on comprehensive
evaluation and appreciation of the pleadings and evidence of the parties and as
those findings were confirmed by the lower appellate Court, the High Court was
not justified in interfering with the same without having come to the
conclusion that the findings of the fact were perverse.
counsel for the respondent supported the impugned judgment by arguing that the
findings recorded by the trial Court on the issues of ownership of the suit
property and landlord-tenant relationship between the parties were ex facie
erroneous. However, he could not show that the findings recorded by the Trial
Court and upheld by the lower appellate Court were perverse in any manner.
gone into the judgments rendered by the Trial Court as well as the lower
appellate Court and the High Court. In our view, the findings recorded by the
Trial Court as well as the lower appellate court did not suffer from any error
what to say of same being perverse.
the High Court was not justified in reversing the concurrent judgments and
decreed of the courts below.
the appeal is allowed, impugned judgment is set aside and the judgment and
decree passed by the Trial Court as confirmed by the lower appellate Court is
......................J. [B.N. AGRAWAL]
......................J. [G.S. SINGHVI]
......................J. [DR. MUKUNDAKAM SHARMA]
September 16, 2009.