Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Re-appreciation of evidence Second appeal |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Code of Civil Procedure, 1908 - s. 100 - Second appeal - Re-appreciation of evidence - High Court set aside judgment of first appellate court on basis of non-existent substantial questions of law and accepting an entirely new case based on un-pleaded facts and non-existent rights - Held: High Court erred in law - Judgment of first appellate court restored. One 'M' filed a suit being O.S. No. 555 of 1981 for declaration and injunction against the appellants in respect of certain landed property on the ground that 'K', who had put up a thatched shed in the suit property, had perfected her title to the same by adverse possession and after her demise, her foster son 'DO', the husband of respondent No.1, derived title and continued in possession as a legal heir and later sold the suit property to the plaintiff. It was stated that the plaintiff and his predecessor had acquired title by adverse possession for more than 60 years.The case of defendants-appellants was that they had purchased the property from members of one Iyer family under sale deeds dated 15.7.1980 and 19.9.1980. They claimed that since 'K' was a maid servant in the service of Iyer family, she was permitted to stay on the suit property and after her demise, 'DO' started working as servant, and he too was permitted as such to stay in the suit property; and that after the purchase, appellants were paying the taxes and 'DO' was staying in the property with their permission. Defendant-appellant no.1 also filed a suit being O.S. No.280 of 1982 for declaration of title against respondent no.1, the wife of 'DO' and their daughter in respect of eastern half portion of suit property in O.S. No.555 of 1981.Trial Court by a common judgment decreed the suit filed by 'M' and dismissed the other suit filed by appellant no.1. The first appellate court dismissed suit filed by 'M' and decreed the suit filed by appellant no.1 only to the extent of the decree of declaration of title. 'M' and respondent no.1 filed two separate second appeals which were allowed by the High Court. In the instant appeals, it was contended that the first appellate court was the final court of facts and yet even without discussing the appellate court judgment, the High Court re-appreciated the evidence and upset the well considered judgment of the appellate court; that an entirely new case which was not even pleaded was found out by the High Court and on that basis decree was passed; and that the case regarding adverse possession was very rightly held not proved by the first appellate court and moreover the plea regarding adverse possession was a confused plea inasmuch as it was not even pleaded as to against whom was the possession of 'K' and 'DO' adverse. |
Judge | Hon'ble Mr. Justice V.S. Sirpurkar |
Neutral Citation | 2007 INSC 1261 |
Petitioner | Dharmarajan And Others |
Respondent | Valliammaland Ors. |
SCR | [2007] 13 S.C.R. 50 |
Judgement Date | 2007-12-11 |
Case Number | 4535 |
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