VISHWANATHA ACHARI versus KANAKASABAPATHY

Citation: [2005] SUPP. 1 S.C.R. 817 · Decided: 26-07-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

VISHW ANA THA ACHARI 
A 
v. 
KANAKASABAPATHY 
JULY 26, 2005 
[ARIJIT PASAYAT AND H.K. SEMA, JJ.] 
B 
Code of Civil Procedure, 1908-Section 100(4)-Second appeal-
Dismissal of, on the ground that the finding recorded by First Appellate 
Court regarding adverse possession not challenged-Correctness of-Held: C 
Question of law was formulated as required-However, is of no consequence 
since trial court did not frame any issue regarding adverse possession, and 
therefore, First Appellate Court not justified in deciding issues not framed-
Furthermore, Appellate Court has power to frame issues other than those 
framed by trial court which are to be referred for trial giving opportunity to 
the defendant to adduce evidence-Hence, order of High Court set aside and D 
matter remitted back-Section 107. 
Trial court dismissed the suit for declaration of title to the property by 
the respondent. However, the First Appellate Court allowed the appeal and 
granted title by adverse possession. Aggrieved appellant then filed second 
appeal which was dismissed on the ground that there was no challenge to the E 
finding regarding adverse possession. Hence the present appeal. 
Disposing of the appeal, the Court 
HELD: High Court erred in holding that there was no challenge by the 
appellant in the second appeal to the conclusions regarding adverse F 
possession. As a ·matter of fact, a question of law in this regard was 
formulated, as required under Section 100(4) of Code of Civil Procedure, 1908. 
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 G 
opportunity to counter plaintiffs evidence. 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 it has been clearly stated that the 
trial court had not specifically framed any issue regarding the adverse 
possession and as such the lower Appellate Court was not justified in deciding 
817 
If 
818 
SUPREME COURT REPORTS [2005] SUPP. l s:c.R. 
A issues which were not framed. However, under Section 107 of the CPC, the 
Appellate Court has power to frame issues other than those framed by the 
trial Court. But here again the requirement is to refer them for trial and 
consequentially, the defendant would get an opportunity to adduce evidence in 
that regard. Hence, the judgment of High Court is set aside and the matter is 
remitted back to High Court for fresh consideration. [819-C, F, G, H; 820-B] 
B 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3398 of2000. 
From the Judgment and Order dated 6.7.95 of the Madras High Court 
in S.A. No. 663 of 1995. 
C 
Balaji Srinivasan and S. Srinivasan for the Appellant. 
Mrs. K. Sharda Devi, (NP) for the Respondent. 
The Judgment of the Court was delivered by 
D 
ARIJIT PASA Y AT, J. This 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. 
E 
A brief reference to the factual aspects would suffice. 
A suit 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: 
F 
(a) 
Whether the disputed property belongs to the plaintiff? 
(b) 
Whether the suit is maintainable? 
(c) 
What remedy/relief the plaintiff is entitled to? 
The trial Court dismissed the suit. The plaintiff (respondent herein) 
G preferred an appeal and by judgment and order dated 11.9.1991 learned 
Additional District Judge, Ramnad, Madurai allowed the appeal. One of 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 
H 
VISHWANATHAACHARlv. KANAKASABAPATHY[PASAYAT, J.] 819 
question. The High Court as noted above, dismissed the second appeal A 
summarily on the ground that the First Appellate Court's observations 
regarding adverse possession were not questioned and no ground was taken 
in the 

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