Smt. Narasamma and Others vs M. Javarayee

No question of law, much less, a substantial question of law arises for consideration in this Second Appeal.

Plaintiff''s suit for possession of property into which defendants had trespassed, has been decreed. Incidentally, Court has declared his title.

The plaint averments were that the plaintiff came to purchase the suit schedule property from defendant-1 (who died during pendency of the

suit) and who was the allottee of the site on which some sheds were erected. Plaintiff further pleaded that he was residing in the sheds till one of

them collapsed. Thereupon he abandoned the other shed also, lived elsewhere and took steps to put up proper construction at which point of time,

defendant-1 trespassed and took possession of the shed forcing the plaintiff to recover possession of the property which he had purchased and

into which defendant-1 had trespassed.

The defence put up was such that it was admitted, defendant-1 had sold the property. He was given two squares and the allotment in his favour

had not been confirmed by the Government. Therefore, he had no title to pass it on to the plaintiff-purchaser. He has also pleaded that the

Municipality which had allotted the site was a necessary party. It was contended that a suit for possession without seeking declaration of title was

not maintainable. The trial Court, after framing necessary issues, which were as follows:

1) Whether the plaintiff proves that he is the owner of the suit property and his vendor himself had right to tell suit site to him?

2) Whether he is entitled for the possession of suit property?

3) Whether the suit for possession of suit property?

4) Whether C.M.C. is a necessary party to this suit?

5) Whether the suit is properly valued and Court fee paid is sufficient?

came to the conclusion that the suit was maintainable. Having regard to the decision of the Supreme Court in the case of Nair Service Society v

K.C. Alexander, AIR 1968 SC 1165 at 1172 once the trial Court came to the conclusion that the suit was maintainable, without seeking

declaration, on the evidence produced, recorded a finding that defendant-1 had put plaintiff in possession and thereafter, the other defendants had

entered upon the possession when the plaintiff had temporarily vacated in the circumstances stated by him in the plaint. Once previous possession

has been established and title has been incidentally gone into for which there is no bar in law, the plaintiff was entitled to the decree since the

execution of the sale deed was admitted. Possession must always follow title. In that circumstance, the finding of the Munsiff was liable to be

confirmed by the lower Appellate Court which it has done.

In that circumstance, no substantial question of law arises for consideration, as the only question that would arise has been considered by the

Courts-below in the light of the Supreme Court decision to which I have adverted to earlier and as such this Court need not decide that question

once again.

A feable attempt was made that an issue should have been raised in regard to plea of fraud played. The summary of pleadings extracted in the

Judgment of the trial Court does not appear to indicate that there was specific plea in regard to the manner in which fraud was played. In the

absence of proper plea, it was unnecessary to frame an issue. If the parties understood each other''s case and went to trial, non-framing of issue is

not fatal to the decision.

No merits in this Second Appeal. It is rejected.

Mr. Visweswara seeks time to handover possession of property to plaintiff. Three months'' time is given from today.

No costs.