Case Note & Summary
The appellants, original defendants, filed a Second Appeal against the concurrent decrees of the trial court and the first appellate court decreeing the respondents' suit for possession and mesne profits in respect of a house property. The suit was filed in 1986 by the respondents, who claimed title through a registered sale deed dated 18.12.1985 executed by one Abdul Karim. The appellants claimed to be in possession since 1963 under an oral agreement of sale with the original owner, and later through a sale deed dated 18.12.1985 from the same vendor, which they alleged was lost. The trial court decreed the suit, holding that the respondents proved their title and that the appellants failed to prove adverse possession. The first appellate court confirmed the decree. In the Second Appeal, the High Court admitted the appeal on two substantial questions of law: whether the courts below erred in not framing an issue on limitation and adverse possession, and whether the suit was barred by limitation. The High Court noted that the appellants had consistently pleaded adverse possession and the respondents' suit was filed more than 12 years after the appellants' possession began. The courts below did not frame an issue on limitation, which was a material omission. The High Court also considered the admissibility of certified copies of sale deeds produced by the appellants as secondary evidence, holding that the courts below erred in rejecting them without proper consideration. The High Court set aside the concurrent findings and remanded the matter to the trial court for fresh decision on the issue of limitation and adverse possession, with liberty to the parties to lead additional evidence. The Second Appeal was allowed, and the pending interim application was disposed of.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - The High Court can interfere with concurrent findings if the courts below failed to consider a material issue, such as limitation and adverse possession, which goes to the root of the matter. (Paras 1-2, 14-15) B) Limitation Act, 1963 - Article 65 - Adverse Possession - Suit for Possession - When the defendant pleads adverse possession and the plaintiff's title is not in dispute, the burden is on the plaintiff to prove that the suit is within limitation. The court must frame an issue on limitation and decide it. (Paras 8-10, 14) C) Evidence Act, 1872 - Section 65 - Secondary Evidence - Certified copies of sale deeds can be admitted as secondary evidence if the original is lost or not available, provided the party lays a foundation for its admissibility. (Para 12) D) Civil Procedure - Remand - Order 41 Rule 23A and Rule 25 CPC - When the lower courts fail to decide a material issue, the appellate court can remand the matter for fresh decision on that issue, especially when the suit is old and the parties have already led evidence. (Paras 14-15)
Issue of Consideration
Whether the courts below erred in not framing an issue on limitation and adverse possession despite evidence of the appellants' long possession, and whether the suit was barred by limitation under Article 65 of the Limitation Act, 1963.
Final Decision
The Second Appeal is allowed. The judgment and decree of the trial court dated 31.03.1993 and the first appellate court dated 30.09.1997 are set aside. The matter is remanded to the trial court for fresh decision on the issue of limitation and adverse possession, with liberty to the parties to lead additional evidence. The trial court is directed to decide the suit afresh within one year from the date of receipt of the order. Interim Application No.1 of 2019 is disposed of.
Law Points
- Adverse possession
- Limitation Act
- 1963
- Section 65 of the Evidence Act
- 1872
- Order 41 Rule 23A CPC
- Order 41 Rule 25 CPC
- Substantial question of law
- Concurrent findings
- Remand
