LexDR. SHEHLA BURNEY AND. OTHERS versus SYED ALI MOSSA RAZA (DEAD) BY LRS. AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
(2011) 5 S.C.R. 841
DR. SH EH LA BURNEY AND. OTHERS
v.
SYED ALI MOSSA RAZA (DEAD) BY LRS. AND ORS.
(Civil Appeal No. 6409 of 2002)
APRIL 21, 2011
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.)
CODE OF CIVIL PROCEDURE, 1908:
A
B
O. 7, rr. 5 and 7 - Relief against defendants - Suit for c
possession initially filed against a single defendant -
Subsequently defendant-2 also added, but no relief claimed
against him - HELD: In a case where prayer is not made
against a particular defendant, no relief possibly can be
granted against him - There is no prayer for possession
D
either in the original plaint or in the amended plaint against
defendant-2 - Defendant-2 being predecessor-in-title of the
appellants, no relief can be granted against them - Besides,
the possession of suit property remained with predecessor-
in-title of the appellants since 1950 and continued with the
E
appellants who have been residing therein since 1964 after
the constructions thereon were made and the suit came to be
filed in 1975 - Judgment of High Court set aside and that of
trial court dismissing the suit restored.
The plaintiffs-respondents nos. 1, 2 and 3 filed a suit
F
bearing 0. S. No. 164 of 1976 against the predecessor-
in-interest of respondents nos. 4/1 and 4/2 pleading that
the patta in respect of the suit land {bearing Survey no.
129/55 (old), new Survey No. 165} admeasuring 3 acres
and 26 guntas was transferred in the name of their father
G
in 1340 Fasli and the latter transferred the land to his wife,
i.e., the mother of the plaintiffs, by a settlement deed
registered in 1347 Fasli corresponding to the year 1930;
that after the death of the mother of the plaintiffs on
~1
H
842
SUPREME COURT REPORTS
[2011) 5 S.C.R.
A 24.7.1973, respondents 4/1 and 4/2 illegally occupied the
suit land. The defendant filed a written statement stating
that she was the bona fide purchaser of the suit land, and
that on 20.6.1973 she transferred the land to the
predecessor-in-title of the appellants. The latter was
B impleaded as defendant no. 2 by an order dated
4.11.1982. Defendant no. 2 filed his written statement
claiming himself as transferee of defendant no. 1 who had
perfected her title by adverse possession against the
plaintiffs. The trial court dismissed the suit. On appeal,
c the Single Judge of the High Court decreed the suit for
possession holding that the defendants had failed to
establish their case of adverse possession. Aggrieved,
the heirs and legal representatives of defendant no. 2 filed
the appeal.
D
Allowing the appeal, the Court
HELD: 1.1. It stands proved that there is no prayer
for decree of possession either in the original plaint or
amended plaint against original defendant no.2. It is clear
E that in the amended plaint the prayer is against the
defendant, therefore, the prayer is only against defendant
no.1 and not against defendant no.2. In a case where
prayer is not made against a particular defendant, no relief
possibly can be granted against him. This point goes to
F the root of the matter and for its consideration no further
investigation in the facts of the case is necessary. This
point actually appears from the admitted records of the
case and is based on the provisions of the Code of Civil
Procedure [O. 7, rr 5 and 7). No relief was claimed against
G defendant-2, who was the predecessor-in-title of the
appellants, and, therefore, no relief can be granted
against them. In this view of the matter, the judgment of
the High Court is not sustainable in law. [para 17,18. 21,
22, 26] [849-E-H; 850-A-B-H; 851-A-B; 852-A]
H
DR. SHEHLA BURNEY v. SYED ALI MOSSA RAZA
843
(DEAD) BY LRS.
Sheikh Abdul Kayum and others v. Mui/a Alibhai and
A
others 1963 SCR 623 =AIR 1963 SC 309; Scotts
Engineering, Bangalore v. Rajesh P. Surana and others
(2008) 4 sec 256; Badri Prasad and others v. Nagarmal and
others 1959 Suppl. SCR 709 =AIR 1959 SC 559; and
Tarinikamal Pandit and others v. Perfulla Kumar Chatterjee
B
(dead) by L.Rs. 1979 (3) SCR 340 =AIR 1979 SC 1165 -
relied on.
Surajmul/ Nagoremull v. Triton Insurance Co. Ltd., 52
Indian Appeals 1.26 - referred to.
c
1.2 Besides, this Court finds that the appellants had
been in peaceful possession of the property in dispute
from July 1963 and their predecessor-in-interest was in
possession of tile same property from 1950 till the
property was transferred by her to the predecessor-in-title
O
of the appellants. Excerpt shown. Read the full judgment & AI analysis in Lexace.