Phurba Lepcha vs Morbu Lagay Kazi

A.M. Bhattacharjee, J.—The two points urged by the learned Advocate-General appearing for the appellant-defendant No. 1 in this Second Appeal are, firstly, that both the Courts below were wrong in allowing the plaintiff-respondent to plead the case of acquisition of title in respect of the suit-land by adverse possession without pleading such a case in his plaint and, secondly, that at any rate, on the evidence on record, both the Courts below were also wrong in holding that the plaintiff has been able to prove such acquisition of title. To the first point first.

In his plaint, the plaintiff-respondent has no doubt alleged that he purchased the suit land from the defendant No. 2 in 1956. But the trial Court has found that the suit land did not belong to the defendant No. 2 but belonged to his deceased brother, who was the father of the appellant and devolved on the appellant after his father''s death. The trial Court accordingly decided the Issues Nos. 1, 2, 3 and 5 against the plaintiff, all these Issues being related to the question as to whether the defendant No. 1 or the defendant No. 2 was the owner of the suit land and whether the plaintiff could and did purchase the suit land from the defendant No. 2. The plaintiff-respondent, who was also the respondent in First Appellate Court, challenged the findings on these issues before that Court and relying on the decision of this Court in Nauranglall Agarwala and Others Vs. Smt. Basant Kumari Sud, , the First Appellate Court held that the respondent, having obtained the decree in his favour was entitled, under the provisions of Order 41, Rule 22, to challenge these findings in order to further support the decree in his favour, without preferring any cross-Objection. But the First Appellate Court, however, held further that these Issues were rightly decided by the trial Court against the plaintiff-respondent. The learned Advocate appearing for the plaintiff-respondent before us has not, however, pressed these grounds any further and has not urged that these Issues also should have been decided in favour of the plaintiff-respondent and, that being so, these Issues need not detain us.

But the Issue No. 6, namely, "whether the plaintiff has perfected his title over the suit land by adverse possession?", was decided by the trial Court in favour of the plaintiff respondent and the trial Court held that the plaintiff has acquired such title and the trial Court decreed the suit accordingly. The learned Advocate-General has contended that the trial Court went wrong in doing so, as no such case was pleaded by the plaintiff in his plaint and such a course could not but take the defendant No. 1 by surprise disabling him to effectively meet such a case and prejudicing him thereby.

It appears that both the Courts below have relied on the decision of this Court in Bishnu Kala Karki Dholi Vs. Bishnu Maya Darjeeni, in order to justify the decree granted by them in favour of the plaintiff on the ground of adverse possession even though no relief on that ground was specifically prayed for in the plaint. The learned Advocate-General has also referred to the said decision and has urged that according to the ratio of that decision, the Courts below could not grant the decree on the ground of adverse possession, which was not specifically pleaded in the plaint.

In Bishnu Kala''s case (supra), reference was made to the decision of the Supreme Court in Srinivas Ram Kumar Vs. Mahabir Prasad and Others, , where the Supreme Court allowed a decree in favour of the plaintiff on a case not made out in the plaint and expressly approved the Privy Council decision in AIR 1943 29 (Privy Council) where in a suit by the plaintiff to enforce a mortgage security, even though the mortgage was held to be void, as pleaded by the defendant, the plaintiff was allowed to repudiate the mortgage altogether and to claim a relief outside and dehors the mortgage in the form of restitution, though no alternative claim was made in the plaint to that effect, as the Privy Council felt that the defendant would not be prejudiced thereby. Reference was also made to the decision of the Supreme Court in Bhagwati Prasad Vs. Shri Chandramaul, where (at 738) the law on the point has been authoritatively laid down as here under:

"There can be no doubt that if a party asks for a relief on clear and specific grounds and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new" (Para 9). "But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot override the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by as issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties But where the substantial matters relating to the title to both parties to the suit are touched, though indirectly or even obscurely, in the issues and evidence has been led about them, the argument that a particular matter was not expressly taken in the pleadings) would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is; did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it s appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another (Para 10).

And it was accordingly observed in Bishnu Kala Karki Dholi Vs. Bishnu Maya Darjeeni, , that the entire question is of surprise and prejudice to the defendant and if there is no question of the defendant being taken by surprise and being prejudiced thereby, the plaintiff should be awarded all the relief�s. Which he may be found entitled to on the facts on record, even though the plaintiff in his plaint has not pleaded a particular case or prayed a particular relief". It was further observed that "the rule ''Secundum Allegata Et Probata'' need not be-strictly applied and has not been applied where there can be no surprise and the opposite party is not prejudiced thereby".

In this case, however, it cannot be disputed that the plea as to the plaintiff''s acquiring title in respect of the suit land by adverse possession was clearly and directly raised in Issue No. 6. And as will appear from the record, and as has been pointed out by both the Courts below, both the parties adduced evidence as to their respective title and possession in respect of the suit land. This is not, therefore, a case where a substantial question has been, to borrow from the Supreme Court in Bhagwati Prasad Vs. Shri Chandramaul, Touched" "indirectly'', "or obscurely", though the Supreme Court, has ruled that if a ease has otherwise been "satisfactorily proved by evidence", then the party would be entitled to the necessary relief, even though the question is touched in the issues "indirectly or even obscurely" and that "the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical".

As to the plea made by the parties in their respective pleadings, it should be noted that, as pointed out by both the Courts below. the plaintiff in para 7 of the plaint stated that he purchased the suit land in 1956 and in para 8 he stated further that though "the suit land remained unmutated in the name of the humble plaintiff, but its physical possession and cultivation remained undisturbed with the plaintiff till 17-5-1954 when the defendant forcibly took possession of the suit land from the possession of the humble plaintiff on the ground that the suit land stands recorded in his name". And the appellant-defendant No. 1 in his written statement, far from denying these assertions, virtually admitted them and stated in para 8 of his written statement that while "the plaintiff has taken possession of the suit land by force some years before 1974", "the defendant got back his land through the good offices of the Chief Minister of Sikkim in the year 1974". It cannot, therefore, be said that a case of clear, continuous and undisturbed possession by the plaintiff, which according to the defendant No. 1 was also "by force", was not made out in the pleadings. And if such a case was made out in the pleadings and evidence was also led by the respective parties on such a case and a separate and definite issue was also framed, then the Courts below were not only right in considering, but were rather bound to consider, as they did, such a case and the evidence adduced therefore and it was no longer necessary to invoke the principle enunciated in the aforesaid decisions, including the decision of this Court in Bishnu Kala Karki Dholi Vs. Bishnu Maya Darjeeni, .

As to the second point urged by the learned Advocate General, namely, the Courts below were also wrong in holding that on the evidence on record the plaintiff was able to prove that he has acquired title to suit land by adverse possession, it must be remembered that we are sitting in Second Appeal against the concurrent findings of both the Courts below and therefore, can exercise only a limited jurisdiction, which is very much circumscribed by the provisions of Section 100, Civil Procedure Code, even as it stood before the Amendment Act of 1976 and much, more so after the said Amendment Act, which has now confined the jurisdiction of a Second Appellate Court only to substantial questions of law. However, The provision the Civil Procedure Code, which an, followed in Sikkim, are of the Code as it stood before the Amendment Act of 1976. But even u/s 100, as it stood before the amendment of 1976, it was settled beyond dispute that a concurrent finding of fact was beyond the reach of a Second Appellate Court, however grossly erroneous the finding may be, unless there was no evidence to support it. If any citation is necessary for this proposition, reference may be made to the decision of the Supreme Court in Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, where (at p. 65) the Supreme Court, while considering the similar question u/s 66 of the Income Tax Act, 1922, elaborately reviewed the case laws u/s 100 of the Civil Procedure Code. If the two Courts below have arrived at a concurrent finding on some evidence legally admissible the Second Appellate Court has no jurisdiction to enquire into and assess the quality, reliability or sufficiency thereof. But, as already noted, if the Second Appellate Court finds that there is no evidence, as distinguished from insufficient evidence, in support of a finding, such a finding can be reviewed and reversed by the Second Appellate Court as something erroneous in law.

It appears that the trial Court considered the evidence on record in sufficient details and pointed out that not only the witnesses, of the plaintiff proved continuous, uninterrupted and undisturbed possession of the suit land by the plaintiff for more than 12 years up to 1973-74, but the appellant-defendant No. 1 himself, figuring as DW 10, also stated that "in 1952 the plaintiff and his lather along with many people forcibly grabbed bed my land, dispossessed me from there and they began to enjoy the same according to their wish" and that "during the mass agitation in 1973, I got back my land". It appears that while the plaintiff-respondent would date his possession from 1956 only, the appellant-defendant No. 1 would make the plaintiff''s adverse possession to begin even from 1952. The First Appellate Court bus also placed strong reliance on this evidence of the appellant-defendant No, 1 himself.

The learned Advocate-General, has, however, urged that, as will appear from the discussion of evidence by the trial Court, the evidence adduced by the plaintiff''s own witnesses would show that the suit land was possessed by the plaintiff''s father and not by the plaintiff and, therefore, the finding that the plaintiff has acquired title to the suit land by adverse possession is evidently wrong. We have, therefore, gone through the relevant portions of the evidence, not with a view to re-assess or reappraise the same, but to see whether the finding can be regarded to be based on no evidence. It is true that some of the plaintiff''s witnesses, while deposing about the possession of the suit land, referred to the plaintiff''s father as the person exercising the acts of possession; but the evidence of other witnesses like P.W. 2 Dilliram, P.W. 8, Dado Bhutia, P.W. 11 the plaintiff, is quite clear and categorical about the plaintiff'' himself possessing the suit land. Then again, the evidence of some of the defendant''s own witnesses, like the District Magistrate D.W. 8, the local M.L.A, D.W. 9 is clearly to the effect that the suit land was enjoyed and possessed by the plaintiff himself "till 1973". Even the evidence of those witnesses of the plaintiff who stated that the plaintiff''s father used to exercise acts of possession is not inconsistent or in compatible with the possession and enjoyment of the suit land by the plaintiff himself, through his father, for it is neither unnatural nor improbable that a father, being the head of the family, would look after, supervise or even manage all the properties belonging to different members of the family as a matter of convenience or mutual arrangement and understanding so much so that outsiders might know the father to be the owner or the possessor of the properties. The defendants also at no stage of the suit appear to make out any case that the suit land was possessed, not by the plaintiff, but by the plaintiff''s father and on his own account. As already noted hereinbefore, the defendant No. 1 in paragraph 8 of his written statement virtually admitted that it was the plaintiff himself who was in forcible possession of the suit land. This being the nature of the pleadings and evidence on record and the evidence of the defendant No. 1 himself at the trial being, as already noted, that such forcible possession commenced from 1952 and continued till 1973, as noted hereinbefore, it cannot be said that the finding of the Courts below was based on insufficient evidence and, far less, on no evidence. The Second Appeal, therefore, must fail.

We are, therefore, however, glad to note that the learned Advocate-General and the learned Government Advocate appeared in this case for the appellant free of charge and in implementation of the scheme of the, Government of Sikkim for legal aid to the poor and we must record our appreciation therefor.

In the result the appeal fails and is, a reference dismissed. In the circumstances of the case we would make no order as to costs.

Man Mohan Singh Gujral, C.J

I agree.