Achari Vs. Kanakasabapathy  Insc 367 (26 July 2005)
Pasayat & H. K. Sema Arijit Pasayat, J.
appeal is directed against the judgment rendered by a learned Single Judge of
the Madras High Court dismissing the second appeal filed by the appellant on
the ground that there was no challenge to the finding recorded by the First
Appellate Court regarding adverse possession.
brief reference to the factual aspects would suffice.
was filed by the respondents for declaration of title, and the suit was
numbered as O.S. No.59/88. Written statement was filed by the appellant who was
the defendant. The trial Court framed the following issues:
Whether the disputed property belongs to the plaintiff?
Whether the suit is maintainable?
What remedy/relief the plaintiff is entitled to?
trial Court dismissed the suit. The plaintiff (respondent herein) preferred an
appeal and by judgment and order dated 11.9.1991 learned Additional District
Judge, Ramnad, Madurai allowed the appeal.
the major conclusions of the First Appellate Court was that the plaintiff had
perfected title by adverse possession. The appellant filed the second appeal
taking the stand that no such issue was framed by the trial Court and,
therefore, the defendant had no opportunity to adduce evidence on this
question. The High Court as noted above, dismissed the second appeal summarily
on the ground that the First Appellate Court's observations regarding adverse
possession were not questioned and no ground was taken in the second appeal.
is no appearance on behalf of the respondent in spite of the notice.
counsel submitted that the High Court has clearly fallen in error by observing
that there was no challenge to the finding regarding adverse possession. He has
referred to the memorandum of appeal in this regard.
find that the High Court has clearly erred in holding that there was no
challenge by the appellant in the second appeal to the conclusions regarding
adverse possession. As a matter of fact, a question of law in this regard was
formulated, as required under Section 100(4) of the Code of Civil Procedure,
1908 (in short 'CPC').
appears from the memorandum of appeal that in the ground no.8 it was
specifically stated as follows:
Appellate Court below had erred in passing issues other than those framed by
the Trial Court thereby depriving appellant to tender evidence and documents on
the new issues apart from the illegality and infirmity attached herewith."
A question was also formulated i.e. whether the lower Appellate Court is
justified in dealing with issues other than those framed by the Trial Court and
deciding the same in favour of the plaintiff depriving the defendant the
opportunity to counter to plaintiff's evidence. It has been clearly stated that
there was no issue framed regarding the adverse possession. The lower Appellate
Court was not justified in deciding issues which were not framed. The High
Court seems to have taken a view that there was no direct reference to the
issue of adverse possession. But that is really of no consequence when the
specific stand of the appellant was that there was no issue framed relating to
adverse possession and, therefore, the First Appellate Court should not have
recorded any finding on that regard. The Trial Court had not specifically
framed any issue relating to adverse possession. Under Section 107 of the CPC,
the Appellate Court has power to frame issue other than those framed by the
trial Court. But here again the requirement is to refer them for trial.
the defendant would have got opportunity to adduce evidence in that regard.
being the position, the conclusions of the High Court do not appear to be
correct, the judgment cannot be maintained and is accordingly set aside. The
matter is remitted to the High Court for fresh consideration. It is made clear
that we have not expressed any opinion on the merits of the case.
appeal is disposed of accordingly without any order as to costs.