JUDGMENT
K.P. Radhakrishna Menon, J.
1. Plaintiffs in O.S. 167 of 1974 are the defendants in O.S. 191 of 1974 while the plaintiff in O.S. 191 of 1974 is the defendant in O.S. 167 of 1974. As the issues arising for consideration in the suits were common, they were disposed of by the trial court by a common judgment. The appeals there from were also disposed of by a common judgment.
2. The Second Appeals are at the instance of the plaintiffs in O.S. 167 of 1974.
3. The dispute relates to the compound wall situated on the southern boundary of the appellants’ property which admittedly is the northern boundary of the respondent’s property. The compound wall is situated on the land comprised in survey No. 976/2.
4. The case of the respondent as disclosed from his pleadings is that the property shown in the schedule attached to the plaint in O.S. 191 of 1974 belongs to him and that the appellants and their men are attempting to trespass upon the property and therefore they may be restrained by an injection from entering into the property and demolishing the compound wall situated on the northern side of the property and also from interfering with his rights to carry out construction works on the said compound wall. The statements in the plaint would make it clear that this compound wall is one standing on the property described in the schedule attached to the plaint. This is what is stated in the plaint:
(Matter in vernacular omitted — Ed.)
It is thus clear that the property on which the compound wall stands, according to the respondent, is the properly comprised in survey Nos. 976/3 and 977/3.
5. The case pleaded by the appellants is this. The compound wall in dispute is constructed by the father of the deceased first plaintiff and stands on the land comprised in survey No. 976/2 belonging to them. This case is consistent with the details given in the schedule attached to the plaint. The derivation of the plaintiffs’ title to the property is given in para 3 of the plaint in O.S. 167 of 1974. In para 5 it has been stated that the father of the first plaintiff constructed the compound wall on the southern side to avert further encroachment into their property by the predecessor-in-interest of the respondent; The appellants accordingly have prayed for a perpetual injunction restraining the respondent herein from interfering with their right to demolish the damaged compound wall and reconstruct the same.
6. From the pleadings of the respondent (the plaintiff in O.S. 191 of 1974) it is clear that the definite case put forward by him is that the compound wall is situated on the land comprised in survey Nos. 976/3 and 977/3. He has no case that the disputed compound wall was constructed by his predecessor-in-interest on the land encroached upon by him, comprised in survey No. 976/2, admittedly belonging to the appellants. Here it is worth remembering that the defence set up by the respondent in O.S. 167 of 1974 is not different from the case he has set up in the suit, O.S. 191 of 1974. The respondent has no case either in the pleadings in O.S. 191 of 1974 or in the written statement, he has filed in O.S. 167 of 1974 that he or his predecessor-in-interest had constructed a compound wall on the encroached land. On the other hand, as is seen from the plaint in O.S. 191 of 1974, the compound wall, the respondent’s predecessor-in-interest is alleged to have constructed, is the one situated on the land comprised in survey Nos. 977/3 and 976/3. In short, the respondent has not set up any case either in the plaint in O.S. 191 of 1974 or in the written statement he has filed in O.S. 167 of 1974 that after trespassing upon the property comprised in survey No. 976/2, admittedly belonging to the appellants, he or his predecessor-in-interest has constructed any compound wall. He does not also have a case that he has perfected his title to the encroached properly by adverse possession and limitation.
7. The main issue thus arising for consideration, is the following one, settled in O. S. 191 of 1974 :
“Whether the compound wall in question is situate in the plaint schedule property or is situate in the compound of the defendant?”
8. The pleadings of the respondent positively show that he has no case that the compound wall in question is one constructed by his predecessor-in-interest on the encroached portion of the property comprised in survey No. 976/2, admittedly belonging to the appellants. From the evidence available on record the respondent perhaps can develop an argument that he has been in possession of the trespassed area (comprised in survey No. 976/2) for about 40 to 50 years. But how far courts will be justified in relying on the said evidence, in the absence of any such claim in the pleadings is no more a moot question, in view of the pronouncement of the Supreme Court in Bhagat Singh v. Jaswant Singh, (1961) 1 Ker LR 539 : (AIR 1966 SC 1861), approving the decision of the Privy Council in ruling in Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57(1), wherein the Privy Council has stated thus : “where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward”. To the same effect is the decision of the Supreme Court in Saifuddin Hussingbhay Siamwala v. Burma Cycle Trading Co., (1970) 1 SCWR 399. Unless the respondent establishes that he has perfected his title by adverse possession over the trespassed encroached area comprised in survey No. 976/2, he shall not be permitted to contend that the property encroached upon belongs to him. It is settled law that the question of adverse possession is not a purely legal question because adverse possession must be based on facts which should, not only be pleaded, but also proved. I do not propose to dilate on this aspect because the respondent has neither pleaded nor proved such a case before the courts below. In the absence of specific pleadings no enquiry into that case is warranted because it is well-established that a person who claims title to the property by adverse possession, must definitely allege and prove how and when adverse possession commenced, what was the nature of his possession and whether the fact of his adverse possession was known to the real owner. In other words “adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected, can be found. There is no evidence here when possession became adverse, if it at all it did and a mere suggestion in the relief clause that there was an uninterrupted possession for ‘several 12 years’ or that the plaintiff had acquired ‘an absolute title’ was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.” (Vide AIR 1964 SC 1254). As already stated the only case the respondent has pleaded, whether it be in the plaint in O.S. 191 of 1974 or the written statement filed by him in O.S. 167 of 1974, relates only to the property comprised in survey Nos. 976/3 and 977/3. The above position notwithstanding the trial court went into a case, not pleaded and proved and found :
“The fact that the Commissioner has reported that the boundary wall is standing in Sy.976/2 and that the survey number mentioned in Ext.B1 is 976/3 will not make any difference. The encroached area including the boundary wall therein having been in the possession of the defendant and his predecessors-in-interest for more than 40 years or 50 years clearly shows that the plaintiffs cannot claim possession of the said disputed area or the disputed boundary wall and so are not entitled to the injunction prayed for ………….. Therefore, it is clear that what was conveyed to the defendant was the property including the four boundary walls and the area within them and so merely because only one of the survey numbers was shown in Ext. B1 and Sy. No. 976/2 was omitted to be stated, the same can be considered to be only an inaccurate description. Therefore, it is found that the disputed boundary wall is within the plaint schedule property in this suit.”
9. It can thus be seen that the trial court has found a case, the respondent has never pleaded and proved. The said finding therefore is not sustainable in law,
10. The appellate court therefore has rightly refused to accept the said findings of the trial court and that it is so can be seen from the following :
“There is considerable force in the submission made by counsel for the appellants and it is certainly meaningless to hold that the disputed wall is within the encroached area when there is admittedly not even an inch of land further north within the possession of the respondent and it cannot be presumed that because a portion of Sy. No. 976/2 had been encroached upon the area covered by the compound wall had also been taken possession by his predecessor.”
11. The appellate court has virtually accepted the case of the appellants namely that, to avoid further encroachment they have constructed the compound wall on the southern side of the property comprised in survey No. 976/2. The findings of the appellate court in this regard read :
“The question has to be decided independently on other evidence and there is nothing strange if the predecessor of the appellants thought fit to construct a compound wall on the southern side when it was found that a portion had been trespassed upon by Varu.”
12. The lower appellate court however ultimately came to the conclusion :
“In short, there cannot be any presumption in favour of either party because even though the disputed compound wall is within Sy. No. 976/2 belonging to the appellants, the predecessor of the respondent had admittedly encroached upon a portion of that property and it has been in his possession for a fairly long time and since none of their documents shows this survey number, the trespass might have been committed without knowing about the same and the compound wall could have been constructed believing the same to be part of their property.”
This finding in the circumstances of the case must be held to be a finding based on mere conjectures and surmises. In the nature of the pleadings of the parties, no such inference is possible; particularly for the reason that the respondent has no such case either in the plaint in O.S. 191 of 1974 or in the written statement, he filed in O.S. 167 of 1974. Here it is relevant to note the specific contentions raised by the appellants before the lower appellate court. The lower appellate court has formulated the said contentions thus :
“The disputed boundary wall lies in Sy. No. 976/2 and it is only by encroachment that the respondent’s predecessor obtained a portion of the same and even Ext. B1 assignment deed does not show this survey number. It was, therefore, contended on behalf of the appellants that the title of Sy. No. 976/2 being with them and structure therein should also be deemed to belong to them and it is for the respondent to prove that he had acquired title over this compound wall.”
13. The respondent could have acquired title to the property in dispute only by adverse possession and as already seen a specific plea is required “to show when possession becomes adverse so that the starting point of limitation” against the appellants, could be found. In the absence of such a specific case and particularly for the reason that neither the appellants nor the respondent has adduced satisfactory evidence in proof of the construction pertaining to the ownership of the compound wall, the presumption in law that possession rests with the real owner applies and if that be so the appellants are entitled to a declaration that the compound wall is in their possession and consequently the reliefs prayed for in their suit O.S. 167 of. 1974 require to be granted. However, the lower appellate court came to the conclusion that the compound wall must be held to have been constructed by the respondent on the ground that the document under which he claims title to the property, has used the expression (Matter in vernacular omitted –Ed) which, according to the lower court, take in the disputed wall also and hence conclude that the compound wall in dispute is in the possession of the respondent. Such an inference is not possible at all, in the circumstances of the case.
14. The courts below, according to me, have approached the issue aforesaid wrongly. In the nature of the reliefs prayed for in the suits from which the second appeals arise, the courts below should have focused their attention on the pleadings of the parties particularly when both the appellants and the respondent have filed independent suits in assertion of their respective rights over the disputed property. Having found that the compound wall in question is situated in the property belonging to the appellants, the courts below erred in not granting to the appellants the injunction in terms of their plaint, especially when the respondent has no case that the compound wall in dispute was constructed by his predecessor-in-interest on the encroached land. In a dispute like the one on hand the courts below should have considered only the case, the parties have pleaded and proved.
15. The learned counsel for the respondents however, submitted that this Court may not interfere with the concurrent findings of fact, based on which the reliefs prayed for by the appellants were denied to them. The scope of interference in second appeal with concurrent findings is very limited and the case on hand is not one such where this Court can interfere with the said findings, he submits. It is settled law that the High Court, under Section 100, C.P.C., has no jurisdiction to entertain second appeal on findings of fact even if the findings are erroneous and therefore pure concurrent findings of fact shall not be interfered with. The position in the case on hand, however, is different. The courts below, as already stated, has found a case in favour of the respondent, he has not set up either in the written statement in O.S. 167 of 1974 or in the plaint in O.S. 191 of 1974. The discussion on this aspect supra would establish this. The judgments and decrees under attack therefore are liable to be set aside. I have already found that the appellants in the circumstances of the case are entitled to a decree as prayed for in the suit, O.S. 167 of 1974. The suit O.S. 167 of 1974 accordingly is decreed.
16. For another reason also the appellants are entitled to the reliefs prayed for in the suit. The reason is this : During the course of the argument of the appeals this Court suggested that a Commissioner will be appointed to construct the compound wall at the expense of the appellants, after demolishing the dilapidated one. The above suggestion was accepted by both sides and therefore the Court passed the following order:
“Sri P. Gopalakrishnan Nair is appointed as Commissioner. The Commissioner will give notice to the parties and supervise the construction of the compound wall at the site where the dilapidated compound wall now stands. The expenses for the construction of the compound wall will be met by the appellants. The Commissioner will execute the warrant and submit the report on 28-2-86.”
Regarding payment of the remuneration to the Commissioner this Court gave the following directions:
“The Commissioner will be paid a sum of Rs. 2000/- as remuneration and this will be borne equally between the parties.”
Without any demur the respondent in terms of the above direction paid the Commissioner a sum of Rs. 1000/-.
17. The Commissioner went to the spot, had the site inspected before he submitted the interim report, dated 17th February, 1986. The Commissioner wanted further directions to be issued in regard to the construction of the compound wall.
18. The respondent thereupon filed C.M.P. 4179 of 1986 under Ss. 151, 152 and 153, C.P.C., seeking review of the order allowing the appellants to construct the compound wall at their expense. The appellants in their counter have stated that the order by which the Commissioner was appointed, was passed with the consent of both parties and therefore it is not open to either party to rescind the consent and get the order reviewed. The learned counsel for the appellants therefore submits that the respondent is precluded from revoking the consent, based on which the order sought to be reviewed was passed, because the said order under law is one in the nature of an arbiter’s award, and hence not even appealable. He further submits that inasmuch as the respondent has agreed to have the compound wall constructed at the expense of the appellants, the order sought to be reviewed for all purposes, must be held to be a consent decree. It that be the position, the learned counsel submits, the petition seeking review of the order is not maintainable.
19. From the facts mentioned above, it is clear that in passing the order appointing the Commissioner to get the compound wall constructed at the expense of the appellants, this Court has taken a deviation from the ‘cursus curiae.’ A question then would arise whether the court can have such deviation from the usual procedure (cursus curiae) and Decide the issue before it and whether such orders will legally be binding on the parties, It is by now well-established that Courts can adopt a procedure to settle the dispute ‘extra cursus curiae, provided the parties to the dispute have either consented to the said course or have acquiesced in the said procedure. A party thereto thereafter cannot turn round and say that the Court alone is to be blamed for adopting the said procedure. This is based on the doctrine of estoppel. But that does not mean that the Court by deviating from the ‘cursus curiae’ can assume jurisdiction which it does not possess. It is equally well established that if the Court with the consent of the parties or with their acquiescence departs from the usual course of procedure (governing the case) and decides a question of fact, the said decision is not even appealable because “it is incompetent for the parties afterwards to assume that they have an alternative mode of proceeding and to treat the matter as if it had been arrived in due course.” (Vide Burgress v. Morton, 1896 AC 136). For the same reason it is also not reviewable. The parties are bound by the order which in the circumstances of the case partakes of the character of a consent decree. (See AIR 1936 Mad 856, AIR 1957 Mad 95 and AIR 1961 Andh Pra 7l (FB)).
20. The respondents, in the circumstances of the case, are bound by the order sought to be reviewed.
For the reasons stated above, the Second Appeals are allowed with costs.
