REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 19421 OF 2017 (ARISING OUT OF SLP (C) No.22894/2014)

Sri Shivaji Balaram Haibatti        ….Appellant(s)

VERSUS

Sri Avinash Maruthi Pawar      …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the plaintiff against the

final judgment and order dated 04.04.2014 passed

by the High Court of Karnataka, Bench at Dharwad

in  Regular  Second  Appeal  No.213/2007(INJ.)

whereby the High Court allowed the appeal filed by

the respondent herein and set aside the judgments

and decrees of the Trial Court and First Appellate

Court.

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3. In order  to  appreciate  the issues involved in

the  appeal,  it  is  necessary  to  state  few  relevant

facts.

4. The  appellant  is  the  plaintiff  whereas  the

respondent is the defendant in the civil suit out of

which this appeal arises.

5. The dispute involved in the appeal relates to a

shop measuring 9 ft.  9 inch North and 5 ft.  East

West situated out of land bearing CTS 1590/A-4 in

the  City  of  Belgaum  (as  detailed  in  plaint)

(hereinafter referred to as "suit shop").

6. One Vithal Dhopeshwarkar was the owner of

the suit  shop along with the land over which the

suit shop is built and some adjoining land.  He sold

the  land and the  suit  shop  to  the  appellant  vide

registered  sale  deed  dated  20.09.1997  (Annexure

P-6).  The respondent (defendant) was in possession

of the suit shop even prior to its purchase by the

appellant from Vithal Dhopeshwarkar.   

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7. On 08.06.1999, the appellant filed a civil suit

being O.S. No.115/1999 against the respondent in

the  Court  of  Civil  Judge,  Sr  Division,  Belgaum

claiming  possession  of  the  suit  shop  from  the

respondent.  The  suit  was  founded  on  the

allegations,  inter  alia,  that  the  appellant  is  the

owner of the suit shop having purchased the same

vide  registered  sale  deed  dated  20.09.1997  from

Vithal  Dhopeshwarkar.  It  was  alleged  that  the

respondent  was  in  possession  of  the  suit  shop

without any right, title and interest of any nature.  

8. In other words, according to the appellant, the

respondent,  since  inception,  was  in  illegal

possession  of  the  suit  shop.  The  appellant,  on

purchase of the suit shop, therefore, requested the

respondent to vacate the suit shop but he failed to

vacate and hence the appellant became entitled to

claim  possession  of  the  suit  shop  from  the

respondent on the strength of  his ownership over

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the suit shop. A relief of mesne profits at the rate of

Rs.2500/- per month was also claimed.

9. The  respondent  filed  written  statement.  He

denied the appellant's title and claimed that he has

been  in  possession  of  the  suit  shop  since  “time

immemorial”  and  much  prior  to  the  appellant's

purchasing  the  suit  shop.  The  respondent  also

raised a plea that he has perfected his title by virtue

of adverse possession over the suit shop against the

predecessor-in-title  of  the  appellant  and  the

appellant.

10. The Trial Court framed the issues. Parties led

evidence.  By judgment/decree dated 03.11.2003 in

O.S.  No.115 of  2003,  the  Trial  Court  decreed the

appellant's  suit.  The  Trial  Court  held  that  the

appellant  is  the  owner  of  the  suit  shop,  that  the

respondent  failed  to  prove  his  adverse  possession

over the suit shop, that the respondent has been in

illegal  possession  of  the  suit  shop  and  that  the

appellant  is  entitled  to  claim  eviction  of  the

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respondent from the suit shop and also entitled to

claim mesne profits at the rate of Rs.2000/- p.m. for

a period of three years and the cost of Rs.5000/-.

The  Trial  Court  accordingly  passed  decree  for

possession  and  mesne  profits against  the

respondent.  

11. The  respondent,  felt  aggrieved,  filed  first

appeal  before  the  Ist  Additional  District  Judge,

Belgaum  being  Regular  Appeal  No.58/2003.   By

judgment/decree  dated  11.12.2006,  the  First

Appellate Court dismissed the appeal and affirmed

the judgment/decree of the Trial Court.  

12. The  respondent,  felt  aggrieved,  filed  Second

Appeal  in the  High Court  of  Karnataka (Dharwad

Bench) being S.A. No. 213/2007 under Section 100

of  the  Code  of  Civil  Procedure,  1908  (hereinafter

referred  to  as  "the  Code").  The  High  Court,  by

impugned judgment, allowed the Second Appeal and

while setting aside of the judgments and decrees of

two  Courts  below  dismissed  the  appellant's  suit.

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The  High  Court  held  that  the  respondent  was  in

possession of the suit shop as tenant and, therefore,

the  remedy of  the  appellant  lies  in  filing  the  suit

under the Rent Laws and the Transfer of Property

Act for claiming possession of the suit shop. It was

held  that  the  present  suit  is,  therefore,  not

maintainable  for  passing  a  decree  for  possession

against the respondent in respect of suit shop.

13. Felt  aggrieved,  the plaintiff  (appellant  herein)

has filed the present appeal by way of special leave

before this Court.

14. Heard Mr. R.S. Hegde, learned counsel for the

appellant and Mr. Charuditta Mahindrakar, learned

counsel for the respondent.

15. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are  constrained  to  allow  the  appeal  and  while

setting aside of the impugned judgment of the High

Court  restore  that  of  the  Trial  Court  and  First

Appellate  Court,  which  had  rightly  decreed  the

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appellant's suit against the respondent in relation to

the suit shop.

16. In our considered opinion, the approach of the

High Court  in  deciding  the  second appeal,  which

resulted  in  allowing  the  respondent's  appeal,  is

wholly  perverse  and  against  the  well  settled

principle of law applicable to second appeals and to

the  factual  controversy  involved  in  the  case  as

would  be  clear  from  our  reasons  set  out

hereinbelow.

17. Section  100  of  the  Code  deals  with  second

appeals.  Sub-section (4) says that where the High

Court is satisfied that a substantial question of law

is  involved  in  the  case,  it  shall  formulate  that

question.  Sub-section (5) says that the appeal shall

be heard on the question “so formulated".  It further

provides that the respondent is allowed to raise an

objection at the time of hearing of the appeal that

the  question  which  has  been  framed  does  not

involve  in  the  case  or  in  other  words,  is  not  a

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“substantial  question  of  law"  and,  therefore,  the

appeal  is  liable  to  be  dismissed  as  involving  no

substantial  question of law within the meaning of

Section 100 of the Code.

18. The  proviso  to  sub-section  (5),  however,

recognizes the power of the High Court to frame any

other  substantial  question  of  law  which  was  not

initially framed but in the opinion of the Court does

arise  in  the  case.  The  Court  can  frame  such

question by assigning reasons.   

19.  Reading of sub-sections (4) and (5) of Section

100 of the Code, in clear terms, 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

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arises in the case and is a substantial question of

law.   Such  question  can  then  be  framed  by

assigning the reasons.  

20. Now coming to the facts of the case, we find

that the High Court had admitted the second appeal

by framing the  following question of law:

"Whether the Courts below have committed an  error  in  the  manner  of  considering  the pleadings as well as the evidence available on record  and  as  to  whether  the  same  is contrary to the recitals in the documents at Exhibit P.15?"

21. Reading of the aforementioned question shows

that the only question, which the High Court was

required to consider in the appeal, was whether the

Trial  Court  and First  appellate  Court  decided the

case  contrary  to  the  pleadings  and  evidence  and

especially contrary to the recitals of EX-P.15.  

22. 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 on the issues framed.  

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23. 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.  In other words, since no error was

noticed  in  any  of  the  findings  of  the  two  Courts

below, the High Court did not frame any substantial

question in relation to such findings, which became

final for want of any challenge.

24. The High Court, however, framed one general

question of law as to whether the findings of the two

Courts  below were  contrary  to  the  pleadings  and

evidence  and  especially  to  Ex-P-15  and  held,  by

placing  reliance  on  Ex.P-15,  that  the  respondent

was  occupying  the  suit  shop  as  tenant  and,

therefore, the remedy of the appellant was in filing a

tenancy suit  against  the respondent and to claim

his  eviction  from  the  suit  shop  under  the  State

tenancy  laws  or/and  Transfer  of  Property  Act  in

such suit but not in the present suit which is based

on the strength of his title.  The High Court, with

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this  finding,  accordingly  allowed  the  appeal  and

dismissed  the  appellant's  suit  as  being

misconceived.

25. In  our  considered  opinion,  the  aforesaid

finding  of  the  High  Court  is  wholly  illegal  and

unsustainable  in  law  besides  being  against  the

pleading  and  evidence.  This  we  say  for  following

reasons:

26. 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 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 of these three reasonings,

the High Court ought to have seen that such plea

really  did  not  arise  for  consideration  because  in

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order that any question is involved in the case, the

party concerned should lay its factual foundation in

the pleading and invite finding on such plea.  Fifth,

the High Court failed to see the case set up by the

respondent in his written statement.  As mentioned

above,  the defense of  the respondent was that he

had denied the appellant's title over the suit shop

and  then  set  up  a  plea  of  adverse  possession

contending  that  he  has  become the  owner  of  the

suit  shop  by  virtue  of  adverse  possession,  which

according to him, was from time immemorial.  

27. It was clear that the respondent never claimed

that he was in possession of the suit shop as tenant

of the appellant's predecessor-in-title.  On the other

hand, the respondent had asserted his  ownership

right over the suit shop on the strength of his long

adverse possession.

28. It is these issues, which were gone into by the

two Courts and were concurrently decided by them

against  the  respondent.  These  issues,  in  our

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opinion,  should  have  been examined by  the  High

Court with a view to find out as to whether these

findings contain any legal error so as to call for any

interference  in  second  appeal.   The  High  Court,

however, did not undertake this exercise and rather

affirmed these findings when it did not consider it

proper to frame any substantial question of law.  It

is a settled principle of law that the parties to the

suit cannot travel beyond the pleadings so also the

Court  cannot  record  any  finding  on  the  issues

which are not part of pleadings.  In other words, the

Court has to record the findings only on the issues

which are part of the pleadings on which parties are

contesting  the  case.   Any  finding  recorded  on an

issue  de hors the pleadings is without jurisdiction.

Such is the case here.

29. That  apart,  even if  we  examine the  question

framed by the High Court as arising in the case, we

are of the considered opinion that the question has

to  be  answered against  the  respondent  (appellant

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before  the  High  Court)  and  in  favour  of  the

appellant  herein  for  more  than  one  reason

mentioned below.

30. First,  the  respondent  did  not  adduce  any

evidence to prove that he was in possession of the

suit shop as tenant of the appellant's predecessor-

in-title.  In order to prove the tenancy between the

respondent and the appellant's predecessor-in-title

(Vithal  Dhopeshwarkar),  it  was  necessary  for  the

respondent  to  have  filed  rent  receipts/lease  deed

etc.  and also to have examined his landlord who,

according to him, had inducted him as tenant in the

suit shop. It was not done.  

31.  Second,  Ex.P-15,  which is  sale  deed  of  the

suit shop nowhere recites that the respondent was

in possession of the suit shop as tenant.  All that it

recites  is  that  the  respondent  has  been  in

possession of the suit shop.  Such recitals, in our

opinion, no way confer the status of a tenant on the

respondent  in  the  absence  of  any  independent

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evidence adduced by him to prove the creation of

tenancy. No benefit of Ex.P-15 could thus be taken

by the respondent to claim the status of a tenant.

32. In the light of aforementioned reasons, we are

of the considered opinion, that the High Court was

not  right  in  holding  that  the  respondent  was  in

occupation of the suit shop as tenant and that the

remedy of  the appellant  was to file  a  civil  suit  to

claim eviction under the Rent Laws.  This finding, in

our view, is contrary to the pleadings and evidence.

It is also otherwise not legally sustainable for want

of  any  evidence  adduced  by  the  respondent  in

support thereof.

33. In view of foregoing discussion, we are of the

considered  view  that  the  Trial  Court  and  First

Appellate  Court  were  justified  in  holding  the

appellant to be the owner of the suit shop, having

purchased the same vide registered sale deed dated

20.09.1997  from  its  previous  owner.  It  was  also

rightly held that the respondent was in possession

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of  the  suit  shop  as  an  encroacher  and  failed  to

prove  his  adverse  possession  over  the  suit  shop.

These  findings  being  concurrent  findings  of  fact

were binding on the High Court and, therefore, the

second appeal should have been dismissed in limine

as involving no substantial question of law.

34. In the light of foregoing discussion, the appeal

succeeds and is allowed.  Impugned judgment of the

High Court is set aside and as a consequence, the

judgments  of  the  First  Appellate  Court  and  Trial

Court are restored.        

               ………...................................J. [R.K. AGRAWAL]

                                                           …...……..................................J.

       [ABHAY MANOHAR SAPRE]         New Delhi;

November 20, 2017  

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