REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6409 OF 2002

Dr. Shehla Burney and others  ..Appellant(s)

- Versus -

Syed Ali Mossa Raza (Dead) by Lrs. & Ors. ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. This appeal is from a judgment dated 3rd April  

2002 by the High Court of Andhra Pradesh in a  

First Appeal. The material facts of the case, as  

appear  from  the  records,  are  discussed  

hereinbelow.

1

2. As  asserted  by  the  appellants,  the  suit  land  

(Original  Suit  No.164/76)  falls  under  Survey  

No.129/64. The respondents No.1, 2 and 3 were the  

original  plaintiffs  and  according  to  them  the  

suit  land  falls  in  Survey  No.129/55.  The  

appellants herein are the legal heirs of original  

defendant No.2. The respondents 4/1 and 4/2 are  

the  legal  heirs  of  original  defendant  No.1.  

Respondents 1, 2 and 3, as noted above, are the  

original plaintiffs. The case of the appellants  

is that the suit land belonged to one Dr. Zafar  

Hussain  who transferred  the same  to one  Sajid  

Hassan by a registered sale deed dated 20.1.1950.  

Thereupon,  Sajid  Hassan  sold  on  or  about  

22.7.1963  the  said  land  to  Razia  Begum,  the  

predecessor-in-title of original defendant no.1  

by  a  registered  sale  deed  for  a  total  

consideration of Rs.6000/-. Razia Begum remained  

in uninterrupted and peaceful possession of the  

said property from the date of her purchase. On  

or about 11.08.1963 Razia Begum obtained house  

2

construction  loan  from  the  Housing  Cooperative  

Society,  Mellapelly  Limited  and  thereafter  

permission for construction was accorded on or  

about  18.02.1964  by  the  Hyderabad  Municipal  

Corporation. The original defendant no.1 was in  

possession and enjoyment of the property till it  

was transferred on 20.6.1973 to one Lateef Hassan  

Burney,  the  predecessor-in-title  of  the  

appellants  (original  defendant  No.2)  as  the  

nominee of the defendant no.1 in terms of the  

rules of the Housing Society. Then, on 4.12.1975,  

the original suit (O.S.164 of 1976), out of which  

this  proceeding  arises,  was  instituted  in  the  

Court  of  the  4th Additional  Judge,  City  Civil  

Court, Hyderabad by the plaintiffs against Razia  

Begum alleging that the plaintiffs’ father Saiyed  

Shah Abdul Khader was the Pattedar and Landlord  

of  land  bearing  Survey  No.129/55  (old),  New  

Survey No.165 admeasuring 3 Acres and 26 guntas  

situated  at  Kachcha  Tattikhana  Sivar  village  

Shaikpet and the then Taluk West, now Hyderabad  

3

Urban Taluk. It was also alleged that the patta  

was transferred in the name of the father of the  

plaintiffs by Sarafe-e-Khas Mubarak on 25th Azur  

in 1340 Fasli and the father of the plaintiffs  

through  a  registered  document  Tamleeknama  

(Settlement  Deed)  on  10th Aban,  in  1347  Fasli  

which  corresponds  roughly  to  the  year  1930  

transferred the land to his wife Fatima Sogra,  

the  mother  of  the  plaintiffs.  It  was  further  

alleged  that  after  the  aforesaid  transfer  the  

said  Fatima  Sogra,  the  plaintiffs’  mother,  

remained in continuous and exclusive possession  

of the same till her death on 24.07.1973. On her  

death the respondents no.4/1 and 4/2 illegally  

occupied the suit land. In the said suit Razia  

Begum,  the  predecessor-in-title  of  respondent  

no.4/1  and  4/2,  filed  her  written  statement  

pleading  therein  that  she  is  a  bone  fide  

purchaser  of the  suit land  by Rs.6000/-  after  

issuing a public notice in the Daily Siyasat on  

19.06.1963.  No  objections  were  received  from  

4

anybody and the sale deed was finally registered  

with the plan on 22.07.1963. It was also pleaded  

in the written statement that she obtained the  

necessary  permission  for  construction  and  

obtained a loan from Housing Cooperative Society  

and  had  completed  the  construction  till  the  

basement level. No objection was raised by the  

plaintiffs  with  the  construction  and  she  has  

perfected her title against the plaintiffs by way  

of adverse possession. In her written statement  

she  also  pleaded  that  she  transferred  on  

20.6.1973 the property in favour of Lateef Hassan  

Burney, predecessor-in-title of the appellants.  

On the filing of the written statement, Lateef  

Hassan Burney was impleaded as defendant no.2 by  

an order of the Court dated 4.11.1982.  

3. Thereupon, on 18.12.1982, the original plaintiffs  

filed an amended plaint impleading Lateef Hassan  

Burney. Thereafter, another suit was instituted  

on  15.1.1983  by  the  plaintiffs  against  one  

5

Prahlad  Singh,  who  had  illegally  occupied  a  

portion of their property falling under Survey  

No.129/55  (old).  It  may  be  noted  that  in  the  

subsequent suit Prahlad Singh did not dispute the  

fact that the suit property is part of Survey  

No.129/55  (old).  Thereupon,  in  O.S.  No.164  of  

1976, the defendant no.2, predecessor-in-title of  

the  appellants,  filed  his  separate  written  

statement  stating  therein  that  the  property  

belongs to Razia Begum, the original defendant  

no.1, before it was transferred in his name and  

the  Razia  Begum  had  perfected  her  title  by  

adverse possession against plaintiffs.

4. Then, the witnesses were examined by the Trial  

Court.  Then  by  an  order  dated  19.12.1983  the  

trial Court appointed a Court Commissioner. The  

Court Commissioner with the help of a surveyor  

submitted a report on 25.4.1984.   

6

5. Ultimately,  by  judgment  dated  19.9.1985,  the  

suit was dismissed and being aggrieved by the same  

an appeal was filed before the High Court in the  

year 1986.  The High Court again by an order dated  

5.2.2002  appointed  an  Advocate  Commissioner  to  

determine  the  location  of  the  property  which,  

according  to  the  original  plaintiffs-respondent,  

was falling in Survey No. 129/55(old). However, the  

contention of the appellants is that the property  

was falling in Survey No. 129/64.

6. The Advocate-Commissioner appointed by the High  

Court submitted a report along with a Map in which  

it  has  been  shown  that  the  suit  property  falls  

under Survey No. 129/55(old) but that finding has  

been reached on the basis of the judgment and order  

in O.S.No. 331/1980 which was between the original  

plaintiffs and one Sardar Prahlad Singh. In that  

suit (Suit No. 331/1980) no issue relating to the  

fact that the property of Prahlad Singh was in any  

7

other survey number than Survey No. 129/55(Old) was  

raised.

7. The learned Judge of the High Court framed the  

following three issues for consideration:

(a) Whether  the  suit  land  is  in  S.No.129/55 as claimed by the plaintiffs  or  in  S.  No.129/64  as  claimed  by  the  defendants?  

(b) Whether  the  defendants  have  perfected their title in respect of the  suit land by adverse possession?

 (c) What  is  the  relief  that  the  plaintiffs are entitled to?

8. On the aforesaid three issues, the High Court in  

the impugned judgment gave a finding in respect  

of each one of the issues. In respect of issue  

(a), the High Court held that the suit property  

fell  in  Survey  No.  129/55  (old)  new  No.  165  

situated  at  Kachcha  Tattikhana  Sivar  village  

Saikpet, Hyderabad and not in Survey No. 129/64.  

In respect of issue (b), the High Court came to a  

finding  that  the  defendants  have  failed  to  8

establish  their  plea  by  way  of  adverse  

possession.  In  respect  of  issue  (c),  the  High  

Court came to a finding that the plaintiffs are  

entitled to a decree for possession in the suit.

9. Against the said judgment, the present appellants  

filed a Letters Patent Appeal before the Division  

Bench  of  the  High  Court.  But  in  view  of  the  

judgment of the High Court in  S. Shivraja Reddy  and ors. v. Raghuraj Reddy and Ors., the Division  Bench  of  the  High  Court  held  that  after  the  

amendment  of  Section  100  of  the  C.P.C.,  the  

Letters Patent Appeal filed after 1.7.2002 is not  

maintainable.  The  Letters  Patent  Appeal  of  the  

appellant was returned by the High Court and the  

appellants  on  7.9.2002  filed  a  Special  Leave  

Petition before this Court in which on 27.9.2002  

leave  was  granted  and  the  special  leave  was  

converted into this appeal.

9

10. Mr. Huzefa Ahmadi, learned counsel appearing on  

behalf of the appellants, assailing the impugned  

judgment raised various issues.

11. The  first  issue  which  was  raised  was  that  no  

pleading and no prayer for a decree of possession  

was made against Lateef Hassan Burney, Original  

Defendant No.2 (the Predecessor in title of the  

Appellants). Attention of this Court was drawn  

to the original prayer in the plaint and also the  

prayer in the amended plaint. It was, therefore  

urged that in the absence of any pleading and  

prayer  for  relief  against  the  Defendant  No.2  

(Predecessor-in-title  of  the  Appellants),  the  

suit  is  liable  to  be  dismissed  as  against  

Defendant No.2 in view of the provisions of Order  

VII of Code of Civil Procedure.  

12. The second point urged was that the respondent  

Nos. 1 to 3 (contesting respondents) who are the  

legal representatives of the Original Plaintiffs,  

10

did not prove that the disputed land falls within  

Survey No. 129/55(old).

13. The third point on which the impugned judgment  

was assailed was that the contesting respondents  

(original plaintiffs) did not succeed in proving  

their title in respect of Survey No. 129/55.

14. It was also urged that the suit was barred by  

limitation  under  Article  65  of  the  Limitation  

Act, 1963 and the High Court should have held  

that the appellants had perfected their title by  

way of adverse possession and even on the ground  

of equity no decree for possession can be passed  

in favour of the contesting respondents who are  

the  successor  –in-title  of  the  original  

plaintiff.

15. Mr.  Giri,  learned  senior  counsel  for  the  

respondents  submitted  that  the  suit  is  for  

recovery of possession on the strength of title  

11

and not a suit for recovery of possession on the  

strength of possession.  According to the learned  

counsel the judgment of the High Court is clear  

that the evidence is not adequate for the Trial  

Court to prove the title to survey No.129/55 nor  

it is adequate to prove that the plaint schedule  

property  is  survey  No.129/55.   The  learned  

counsel  further  questioned  the  locus  standi  of  

the second defendant to maintain this appeal. The  

learned  counsel  also  submitted  that  there  is  

nothing  on  record  to  show  the  transfer  of  

property in Survey No.129/64. The learned counsel  

ultimately  submitted  the  matter  should  be  

remanded to the High Court for rehearing in view  

of inadequate evidence on record.   

16. Considering these rival submissions, this Court  

is of the view that some of the submissions of  

the  learned  counsel  for  the  appellants  deserve  

acceptance.   

12

17. The submissions of the learned counsel for the  

appellant that there is no prayer for decree of  

possession  either  in  the  original  plaint  or  

amended  plaint  against  original  defendant  no.2  

stands  proved.   The  prayers  in  the  original  

plaint and the amended plaint were placed before  

us.  The prayer in the amended plaint is set out  

hereinbelow:-

“(1) that a decree to be passed in favour  of the petitioners against the defendant  for  possession  of  land  measuring  2180  square yards situate at village Shaikpet,  Banjara  Hills,  Jubilee  Hills,  Hyderabad  bounded by East: Road, West: Plaintiff’s  land, North: Road No.3, South: Road No.14,  as  per  annexed  plan  attached  to  the  plaint,  in  survey  No.129/55  (old),  New  Survey  No.165,  situate  at  Shaikpet,  village,  Hyderabad  Urban  by  demolishing  the illegal structures on the land;”

18. It is clear 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  13

possibly can be granted against him.  Reference  

in this connection can be made to the provisions  

of Order VII of the Code of Civil Procedure.  In  

this connection, Order VII, Rule 5 is relevant  

and is set out below:-

“5. Defendant’s interest and liability to  be shown. – The plaint shall show that the  defendant is or claims to be interested in  subject-matter, and that he is liable to  be called upon to answer the plaintiff’s  demand.”

19. Order VII, Rule 7 of CPC is also relevant and  

which is also set out below:-

“7.  Relief  to  be  specifically  stated.-  Every plaint shall state specifically the  relief which the plaintiff claims either  simply or in the alternative, and it shall  not  be necessary  to ask  for general  or  other relief which may always be given as  the  Court  may  think  just  to  the  same  extent as if it had been asked for.  And  the same rule shall apply to any relief  claimed by the defendant in his written  statement.”

14

20. In Sheikh Abdul Kayum and others v. Mulla Alibhai  and others [AIR 1963 SC 309] it has been held by  this  Court  that  it  does  not  lie  within  the  

jurisdiction of a Court to grant relief against  

defendant  against  whom  no  reliefs  have  been  

claimed  [See  paragraph  13,  page  313  of  the  

report].

21. Same propositions have been reiterated recently  

by  a  judgment  of  this  Court  in  Scotts  Engineering,  Bangalore v.  Rajesh  P.  Surana  and  others [(2008) 4 SCC 256].  In paragraph 10 at  page 258 of the report this Court found that even  

after the appellant was arrayed as defendant 6,  

the plaintiff did not care to amend the plaint  

except making the appellant as defendant 6.  No  

relief  was  claimed  against  defendant  6.  If  we  

follow the said principle in the facts of this  

case we have to hold that no relief having been  

claimed  against  defendant  2,  who  is  the  

predecessor-in-title of the present appellant, no  

15

relief  can  be  granted  against  the  present  

appellant.   

22. The objection of the respondent that such point  

is taken only before this Court and not at an  

earlier  stage  of  the  proceeding  cannot  be  

countenanced since this point goes to the root of  

the matter and for consideration of this point no  

further investigation in the facts of the case is  

necessary.  This point actually appears from the  

admitted records of the case and this point is  

based  on  the  provisions  of  the  Code  of  Civil  

Procedure.

23. In  this  connection  principles  which  have  been  

laid down by Lord Sumner in Surajmull Nagoremull  v. Triton Insurance Co. Ltd., [52 Indian Appeals  126]  are  very  pertinent.  The  learned  Law  Lord  

summarized  the  proposition  so  lucidly  that  we  

should do nothing more than quote it:

16

“…No court can enforce as valid that which  competent  enactments  have  declared  shall  not be valid, nor is obedience to such an  enactment a thing from which a court can  be  dispensed  by  the  consent  of  the  parties, or by a failure to plead or to  argue the point at the outset:”

24.  The aforesaid propositions have been quoted with  

approval by this Court in Badri Prasad and others  v.  Nagarmal and others reported in AIR 1959 SC  559 at page 562.

25. Similar views have been expressed by this Court  

again  in  Tarinikamal  Pandit  and  others v.  

Perfulla  Kumar  Chatterjee  (dead)  by  L.Rs. [AIR  1979  SC  1165].   After  considering  several  

decisions,  including  the  one  rendered  in  Badri  Prasad (supra) this Court held as follows:-

“…As the point raised is a pure question of  law not involving any investigation of the  facts, we permitted the learned counsel to  raise the question….” (para 15 at page 1172)

17

26. In our view this point is sufficient to hold that  

the judgment of the Hon’ble High Court is not  

sustainable in law.  

27. Apart  from  this,  this  Court  finds  that  the  

appellants had been in peaceful possession of the  

disputed  property  from  July  1963  and  their  

predecessor-in-interest was in possession of the  

same  property  from  1950  till  the  property  was  

transferred  by  her  to  Lateef  Hassan  Burney,  

predecessor-in-title  of  the  appellant.   After  

such  transfer  the  construction  started  on  the  

property  and  the  appellants  have  been  residing  

there since 1964 and the suit came to be filed  

only in 1975.  Even in that suit after impleading  

the original defendant no.2 no relief has been  

claimed against him.   

28. In  view  of  the  aforesaid  admitted  factual  

position and the legal questions discussed above,  

this Court cannot affirm the views taken by the  

18

High Court.  The judgment of the High Court is  

set  aside  and  that  of  the  Trial  Court  is  

affirmed.  The appeal is allowed. There will be  

no order as to costs.  

.......................J. (G.S. SINGHVI)

.......................J. (ASOK KUMAR GANGULY)

New Delhi April 21, 2011

19