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Shivaji Balaram Haibatti Vs. Avinash Maruthi Pawar - (Supreme Court) (20 Nov 2017)

Parties to the suit cannot travel beyond the pleadings; Court cannot record any finding on issues which are not part of pleadings

MANU/SC/1460/2017

Property

The Appellant is the Plaintiff whereas the Respondent is the Defendant in the civil suit out of which this appeal arises. The dispute involved in the appeal relates to a shop. By judgment/decree, Trial Court decreed the Appellant's suit holding 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 Respondent from the suit shop. The Trial Court accordingly passed decree for possession and mesne profits against the Respondent.

The first appeal filed by Respondent before First Appellate Court was dismissed. The Respondent, felt aggrieved, filed Second Appeal in the High Court. 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. 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. Felt aggrieved, the Plaintiff (Appellant) has filed the present appeal by way of special leave before this Court.

Reading of Sub-sections (4) and (5) of Section 100 of the Code of Civil Procedure, 1908 (CPC) 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 arises in the case and is a substantial question of law. Such question can then be framed by assigning the reasons. 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.

It is these issues, which were gone into by the two Courts and were concurrently decided by them against the Respondent. These issues, 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. 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.

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.

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, no way confer the status of a tenant on the Respondent in the absence of any independent evidence adduced by him to prove the creation of tenancy. No benefit of Sale deed could thus be taken by the Respondent to claim the status of a tenant. 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 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.

Trial Court and First Appellate Court were justified in holding the Appellant to be the owner of suit shop, purchased the same vide registered sale deed from its previous owner. It was also rightly held that, the Respondent was in possession 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. 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.

Tags : POSSESSION   SHOP   ENCROACHMENT  

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