NDLI: Nazir Mohamed Vs. J. Kamala and Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Code of Civil Procedure
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Limitation Act, 1963 (36 of 1963) Code of Civil Procedure, 1908 (5 of 1908)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Code of Civil Procedure, 1908: s.100 – Second appeal – Nature and scope of – Held: A right to appeal is conferred by a statute – If the statute confers a limited right of appeal, the Court cannot expand the scope of the appeal – s.100 restricts the right of second appeal only where a substantial question of law is involved – In order to be substantial, the question must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/ or rights of the parties, if answered either way – Whether a question of law is substantial and whether such question is involved in the case is to be determined on the facts and circumstances of the case – A finding of fact is not open to challenge in second appeal even if the appreciation of evidence is palpably erroneous and finding of fact is incorrect – An entirely new point raised for the first time, before High Court is not a question involved, unless it goes to the root of the matter – In the facts of the present case, no substantial questions was involved in the second appeals and hence High Court wrongly entertained the second appeals. Adverse Possession: Suit for declaration of ownership and for possession of the suit premises – Alleging that the suit premises was let out to the defendant – Written statement denying the tenancy and claiming absolute ownership – Trial Court dismissed the suit – First Appellate Court partly decreed the suit holding that the plaintiff was entitled to ownership of half portion of the suit property which his father had purchased and not the other portion which was purchased by father of the defendant – However, First Appellate Court denied decree of possession to the plaintiff on the ground that the plaintiff failed to prove the tenancy and that the defendant was in occupation of the premises for a long time – Second appeal by both the parties – High Court dismissed the appeal of defendant and allowing the appeal of the plaintiff granted him relief of recovery of possession – Appeal to Supreme Court – Held: A person in possession, in the assumed character of owner has a perfectly good title against all but the rightful owner – But if the rightful owner does not assert his right of possession, within limitation period, his right is extinguished forever, and the possessory owner acquires an absolute title – The conclusion of the First Appellate Court did not warrant interference – High Court could not have reversed the finding of First Appellate Court and allowed relief of recovery of possession when the defendant was in complete possession of the suit premises, as owner with absolute rights for over 28 years. Maxims: ‘Possession follows title’ – Applicability of – Held: The maxim is limited in its application to property – The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else – A person claiming decree of possession needs to establish his entitlement to get such possession and also establish that his claim is not barred by law of limitation. Words and Phrases: ‘Mesne profit’ – Meaning of.
Judge	Hon'ble Ms. Justice Indira Banerjee
Neutral Citation	2020 INSC 511
Petitioner	Nazir Mohamed
Respondent	J. Kamala And Ors.
SCR	[2020] 7 S.C.R. 763
Judgement Date	2020-08-27
Case Number	2843

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