DHARMARAJAN AND OTHERS versus VALLIAMMALAND ORS.

Citation: [2007] 13 S.C.R. 50 · Decided: 11-12-2007 · Supreme Court of India · Bench: H.K. SEMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
DHARMARAJAN AND OTHERS 
v. 
VALLIAMMALAND ORS. 
t 
DECEMBER 11, 2007 
B 
(H.K. SEMA AND V. S. SIRPURKAR, JJ.) 
Code of Civil Procedure, 1908 - s. l 00 - Second appeal -
Re-appreciation of evidence - High Court set aside judgment of 
first appellate court on basis of non-existent substantial questions 
c 
of law and accepting an entirely new case based on un-pleaded 
facts and non-existe,nt rights - Held: High Court erred in law -
Judgment of first appellate court restored. 
ff 
I 
One 'M' filed a suit being O.S. No. 555 of 1981 for 
D 
declaration and injunction against the ap\lellants in respect of 
certain landed property on the ground that 'K', who had put up 
a thatched shed in the suit property, had perfected her title to 
the same by adverse possession and after her demise, her foster 
A. 
son 'DO', the husband of respondent No.1, derived title and 
E 
continued in possession as a legal heir and later sold the suit 
property to the plaintiff. It was stated that the plaintiff and his 
predecessor had acquired title by adverse possession for more 
than 60 years. 
F 
The case of defendants-appellants was that they had 
purchased the property from members of one Iyer family under 
sale deeds dated 15.7.1980 and 19.9.1980. They claimed that 
,_ 
since 'K' was a maid servant in the service of Iyer family, she 
was permitted to stay on the suit property and after her demise, 
G 
'DO' started working as servant, and he too was permitted as 
such to stay in the suit property; and that after the purchase, 
appellants were paying the taxes and 'DO' was staying in the 
property with their permission. Defendant-appellant no.I also 
filed a suit being O.S. No.280 of 1982 for declaration of title 
+. 
H 
50 
. 
1 
> 
""'· 
-l 
DHARMARAJAN AND OTHERS v. V ALLIAMMAL 
51 
AND ORS. 
against respondent no.1, the wife of 'DO' and their daughter in A 
respect of eastern half portion of suit property in O.S. No.555 
of 1981. 
Trial Court by a common judgment decreed the suitfiled 
by 'M' and dismissed the other suit filed by appellant no.1. The B 
first appellate court dismissed suit filed by 'M' and decreed the 
suit filed by appellant no.1 only to the extent of the decree of 
declaration of title. 'M' and respondent no.1 filed two separate 
second appeals which were allowed by the High Court. 
In the instant appeals, it was contended that the first c 
appellate court was the final court of facts and yet even without 
discussing the appellate court judgment, the High Court re-
appreciated the evidence and upset the well considered judgment 
of the appellate court; that an entirely new case which was not 
even pleaded was found out by the High Court and on that basis D 
decree was passed; and that the case regarding adverse 
possession was very rightly held not proved by the first appellate 
court and moreover the plea regarding adverse possession was 
a confused plea inasmuch as it was not even pleaded as to 
against whom was the possession of 'K' and 'DO' adverse. 
E 
Allowing the appeals, the Court 
HELD: 1.1. The High Court has gone into a dangerous 
area of appreciation of evidence, that too on the basis of non 
F 
existent substantial questions of law. None of the five questions 
framed by the High Court could be said to be either question of 
law or a substantial question of law arising out of the pleadings 
of the parties. (60-D] [61-A] [Para 8] 
1.2. The first question of law, as mentioned in the judgment, G 
could not and did not arise for the simple reason that the plea 
of adverse possession has been rightly found against the plaintiff 
'M'. K's possession, even if presumed to be in a valid possession 
in law, could not be said to be adverse possession as throughout 
it was the case of appellant no.I that it was a permissive H 
52 
SUPREME COURT REPORTS 
[2007] 13 (Addi.) S.C.R. 
A possession and that she was permitted to stay on the land 
belonging to the members of the Iyer family. Secondly, it has 
f-
nowhere come as to against whom was her possession adverse. 
In order to substantiate the plea of adverse possession, the 
possession has to be open and adverse to the owner of the 
B property in question. The evidence did not show this openness 
and adverse nature because it is not even certain as to against 
whom the adverse possession was pleaded on the part of 'K'. 
Further, even the legal relationship of 'DO' and 'K' is neither 
pleaded nor proved. All that is pleaded is that after K's demise 
c 'DO' as her foster

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