LexSAMEER KUMAR PAL & ANOTHER versus SHEIKH AKBAR & OTHERS
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A B [2010] 9 S.C.R. 94 SAMEER KUMAR PAL & ANOTHER v. SHEIKH AKBAR & OTHERS (Civil Appeal No. 2398 of 2002) JULY 28, 2010 [DALVEER BHANDARI AND K.S. RADHAKRISHNAN, JJ.] Code of Civil Procedure, 1908 - s. 100 - Second appeal C - Suit for eviction - Tenant's case that suit property was a wakf property, thus, trial court had no jurisdiction to adjudicate thA matter but no plea raised before trial court as also first appellate court that suit property is a joint family property - Suit decreed in favour of landlord holding that suit property D was not a wakf property- Order of trial court upheld by first appellate court - Second appeal - High Court allowing the same by setting aside the concurrent findings of fact - Justification of - Held: Not justified - High Court without any pleadings or basis held that suit property is a joint family E property - It was not the case of tenants either before trial court or first appellate court- Thus, order of High Court is set aside and that of trial court and first appellate court, upheld - M. P. Accommodation Control Act, 1961 - ss. 12 (1) (c), 12 (1) (f) and 12 (1) (g). F The appellant-landlord filed a suit for eviction against the respondent-tenant ulss. 12(1 )(c), 12(1 )(f) and 12(1 )(g) of the M.P. Accommodation Control Act, 1961. The respondents filed a written statement that the suit property was a Wakf property, thus, the trial court did not G have the jurisdiction to adjudicate the matter but it nowhere pleaded that the suit property is a joint family property. The trial court held that the suit property is not a Wakf property and decreed the suit in favour of the H 94 SAMEER KUMAR PAL & ANR. v. SHEIKH AKBAR & 95 ORS. appellants. Before the first appellate court also, the A respondents did not raise the plea that the suit property was a joint family property. The first appellate court upheld the order of the trial court. The respondent nos. 1 and 2 then filed a second appeal and the same was allowed. The High Court set aside the concurrent findings B of fact. Hence the appeal. Allowing the appeal, the Court HELD: The High Court without any pleadings or basis, held that the suit property is a joint family property. C The High Court erroneously observed that the said property was purchased by the father of the appellants and his brothers, whereas in fact the property was purchased by the appellants by sale deed dated 31.12.1991. The assumption of wrong fact has led to total D erroneous finding and conclusion. The High Court in the impugned judgment weaved out an entirely new case. Neither there was any pleading nor it was the case of the rc:>iJondents either before the trial court or the first appellate court. The High Court gravely erred in arriving E at the finding without any basis whatsoever. PW1 was examined by the trial court and in his testimony he categorically stated that he and his elder brother SK- appellant were owners of the property in question. The High Court was not justified in reversing the concurrent findings of fact. Thus, the impugned judgment of the High Court is set aside and that the judgment and order of the trial court, as upheld by the first appellate court, is restored. [Paras 8, 9 and 13] [99-C-D; G-H; 100-A; 101-F- G] Mst. Rukhmabai v. Lala Laxminarayan and Ors. AIR 1960 SC 335; Kuppala Obu/ Reddy v. Bona/a Venpata Narayan Reddy (dead) by LRs. (1984) 3 SCC 447; Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh F G (1969) 1 sec 386 - relied on. H 96 SUPREME COURT REPORTS [2010] 9 S.C.R. A Randhi Appa/aswami v. Randhi Suryanarayanamurti and Ors. ILR 1948 Mad 440 - approved. Case Law Reference: AIR 1960 SC 335 Relied on. Para 10 B (1984) 3 sec 447 Relied on. Para 11 (1969) 1 sec 386 Relied on. Para 12 ILR 1948 Mad 440 Approved. Para 12 C CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2398 of 2002. From the Judgment & Order dated 17.08.2001 of the High Court of Judicature Madhya Pradesh at Jabalpur in Second o Appeal no. 596 of 1999. kohil Arya, Akshat Srivastav, Nitin Gaur, P.P. Singh for the Appellants. Abdul Karim Ansari (for Ram Swarup Sharma) for the E Respondents. The Judgment of the Court was delivered by DALVEER BHANDARI, J. 1. This appeal is directed against the judgment and order of the High Court of Madhya F Pradesh at Jabalpur dated 17.8.2001 passed in Second Appeal No.596 of 1999. 2. The appellant is particularly aggr
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