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.
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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
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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
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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
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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
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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.
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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
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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
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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.
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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,
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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
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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.
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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
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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.”
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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
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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:
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“…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)
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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
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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
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