SRI SHIVAJI BALARAM HAIBAITL versus SRI AVINASH MARUTHI PAWAR

Citation: [2017] 12 S.C.R. 344 · Decided: 20-11-2017 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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B 
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[2017] 12 S.C.R. 344 
SRI SHIVAJI BALARAM HAIBAITl 
v. 
SRI AVINASH MARUTHI PAWAR 
(Civi!Appea!No. 19421 of2017) 
NOVEMBER 20, 2017 
[R. K. AGRAWAL AND ADHAY MANOHAR SAPRE, JJ.] 
Code of Civil Procedure, 1908 - s.100 - Second appeal -
Appellant purchased a shop - He filed suit against respondent-
defendant for possession of the shop alleging that respondent was 
in possession of the same without any right, title and interest - Suit 
decreed by Trial court - First appeal filed by respondent, dismissed 
- Second Appeal filed by respondent in High Court was allowed -
On appeal, held: High Court's finding that respondent was in 
occupation of the suit shop as tenant and that the remedy of 
appellant was to file suit under the Rent Laws and the 1882 Act, is 
illegal - Respondent never claimed that he was in possession of the 
suit shop as tenant of the appellant's predecessor-in~title - He 
asserted his ownership right over the suit shop on the basis of 
adverse possession - These issues, which were gone into by Courts 
below the High Court and were concurrently decided by them against 
the respondent, were binding on High Court - High Court framed a 
general question of law as to whether the findings of the Courts 
below it were contrary to the pleadings and evidence - In the absence 
of any question of law framed on any of the adverse findings 
recorded against the respondent by Courts below the High Court, 
those findings attained finality - Respondent was in possession of 
the suit shop as an encroache1' and failed to prove his adverse 
possession over the suit shop - Judgment of High Court is set aside 
- Judgments of First Appellate Court and Trial Court are restored -
Transfer of Property Act, 1882 - Adverse possession. 
Practice and Procedure - Pleadings - Held: Parties to the 
suit cannot travel beyond the pleadings - Court also cannot record 
any finding on the issues which are not part of pleadings - Court 
has to record the findings only on the issues which are part of the 
pleadings - Any finding recorded on an issue de hors the pleadings 
is without jurisdiction. 
344 
SRI SHIVAJI BALARAM HAIBATTI v. SRI AVINASH 
345 
MARUTHI PAWAR 
Code of Civil Procedure, 1908 - s.100 - Second appeal -
A 
Scope of - Discussed. 
Allowing the appeal, the Court 
HELD: I. Section 100 of the Code of Civil Procedure, 1908 
deals with second appeals. Sub-sections ( 4) and (5) of Section 
100 of the Code shows that, first, the High Court can hear the 
second appeal only on the question so formulated; second, it has 
jurisdiction to dismiss the second appeal if the respondent raises 
an objection at the time of hearing that the question so formulated 
does not arise in the case or is not a substantial question of law; 
and third, it can hear the appeal on any other question not initially 
framed, provided such question arises in the case and is a 
substantial question of law. Such question can then be framed by 
assigning the reasons. [Paras 17, 19] [349-D-H] [349-D-H] 
2.1 The High Court framed one general question of law as 
B 
c 
to whether the findings of the two Courts below were contrary to D 
the pleadings and evidence. The High Court, however, did not 
frame any other question of law to examine the legality and 
correctness of any specific finding recorded by the Courts below 
it on the issues framed. In the absence of any question of law 
framed on any of the adverse findings recorded by the two Courts 
below against the respondent, those findings attained finality. 
[Paras 22-24] [350-D-E] 
2.2 The finding of the High Court that the respondent was 
occupying the suit shop as tenant and, therefore, the remedy of 
E 
the appellant was in filing a tenancy suit against the respondent 
and to claim his eviction from the suit shop under the State tenancy 
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laws or/and Transfer of Property Act in such suit, was wholly illegal 
and unsustainable in law besides being against the pleading and 
evidence for the following reasons: First, the respondent 
(defendant) had not raised such plea in his written statement. In 
other words, the respondent did not set up such defense in the G 
written statement. Second, the Trial Court, therefore, had no 
occasion to frame any issue on such plea for want of any factual 
foundation in the written statement. Third, the Trial Court and 
First Appellate Court, in these circumstances, had no occasion 
to record any finding on this plea either way. Fourth, in the light 
H 

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