Second Appeal: Adverse Possession Without an Issue, and the Power to Remand
A suit for declaration of title and possession over 4 kanals 12 marlas of land at Una is filed in 2011. The plaintiff relies on a registered sale deed dated 15.05.2005 executed by the defendant's father, who died in 2010, and on his own possession since then; he alleges dispossession in June 2011. The defendant pleads that the sale deed is a sham executed to secure a loan, that the plaintiff was a mortgagee who never obtained possession, that the land is ancestral, and that in any event the defendant and his father have held the land openly and continuously since 2005, thereby perfecting title by adverse possession; he relies as well on an unregistered family settlement of 2008. The trial court decreed the suit, holding the sale deed genuine and possession to be with the plaintiff. The first appellate court reversed on three grounds: the plaintiff did not prove possession; the defendant's possession was open and hostile from 2005; and the sale deed was never acted upon. No issue on adverse possession was framed at trial, and no specific dates or acts of hostile possession were pleaded.
1. What substantial questions of law arise in this second appeal under Section 100 CPC, and why does each qualify?
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The threshold. Section 100 permits a second appeal only where the case involves a substantial question of law, and the High Court must formulate that question at the time of admission. Following Santosh Hazari v. Purushottam Tiwari, a substantial question of law is one on which the decision of the appeal turns, which is not settled by precedent, or on which the lower appellate court has reached a conclusion that is contrary to law or to the evidence on record in a manner that amounts to a legal error. A mere conflict of views on appreciation, or a finding that the evidence was insufficient, is a question of fact.
The questions I would formulate. (i) Whether the first appellate court could hold that the defendant had perfected title by adverse possession when no issue on adverse possession was framed and the plea contained no particulars of the date on which possession became hostile, and when the defendant simultaneously denied the plaintiff's title and asserted an independent title of his own. (ii) Whether the first appellate court could reverse the finding of the plaintiff's possession without adverting to the documentary evidence of possession relied on by the trial court, namely the jamabandi and the khasra girdawari entries, and whether such reversal amounts to a perversity of approach. (iii) Whether a registered sale deed accompanied by delivery of possession and mutation can be held to be 'not acted upon' on the strength of oral assertion alone, in the absence of any plea of fraud or want of consideration proved to the required standard. (iv) Whether an unregistered family settlement could be received to defeat the recitals of a registered sale deed.
Why they qualify. Questions (i), (ii) and (iv) are questions of law and of mixed law and fact, turning on the pleading requirements, on the standard of perversity, and on Section 17 of the Registration Act. They are not requests to re-appreciate the evidence; they challenge the method by which the lower court reached its conclusions, which is precisely the business of a second appeal.
2. Was the first appellate court entitled to reverse the decree on adverse possession without a pleading of particulars and without an issue? Discuss the pleading and burden requirements.
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The pleading requirement. A plea of adverse possession is a plea of a title acquired by wrongdoing. It must be pleaded with precision, stating the date from which possession became adverse, the nature of the possession, and the overt acts by which the true owner was put on notice. Following Karnataka Board of Wakf v. Government of India, a person who claims title by adverse possession must allege and prove when possession became adverse, because it is from that date that the statutory period runs. Vague assertions of long possession are not enough; indeed, long possession is consistent with lawful possession and therefore proves nothing by itself.
The burden. The burden of proving adverse possession lies squarely on the defendant throughout; he must establish that his possession was nec vi, nec clam, nec precario – neither under force, nor stealth, nor leave. In T. Anjanappa v. Somalingappa the Supreme Court emphasized that a person who bases his title on adverse possession must establish the hostile animus by clear evidence, and that the court will not infer it from the mere fact of possession.
The internal contradiction in this defence. The defendant says the sale deed is a sham and that the plaintiff was only a mortgagee. He thus asserts a title in himself derived from his father and denies the plaintiff's title altogether. A person who claims under his own title and denies the other's can, in law, plead adverse possession in the alternative, but the inconsistency is fatal to the weight of the plea unless the evidence shows when he set up his own title to the knowledge of the plaintiff.
Effect of the missing issue. Order XIV Rule 1 requires an issue on every material proposition affirmed by one party and denied by the other. The failure to frame an issue on adverse possession, despite a plea in the written statement, is a material irregularity. But it is not fatal in every case: under Order XIV Rule 5 the court may frame an additional issue at any stage, and an appellate court may cure the defect if the parties were aware of the plea and led evidence on it. Here the plea was in the written statement but was pleaded without particulars, and the evidence led on it could not have met a properly framed issue. The first appellate court's finding, resting on a plea that was never particularized and an issue that was never tried, cannot stand without rectification.
3. Should the High Court decide the appeal finally under Section 103 CPC or remand? Draft the operative part of the judgment you would pass.
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The choice. Section 103 CPC permits the High Court to determine an issue of fact if the evidence on the record is sufficient to dispose of the case, and the power exists to avoid a remand. But it is not a licence to become a court of first appeal on facts, and it cannot be exercised where the evidence is insufficient or where a party has had no opportunity to lead evidence on the issue. Order XLI Rule 23-A permits a remand in other cases where the appellate court thinks it necessary in the interests of justice, and Order XLI Rule 25 permits the framing of issues and their reference for trial.
Applying the tests. Here two issues require evidence that was never properly led: the date on which the defendant's possession, if any, became hostile, and the effect of the entries of possession in the revenue record. The parties went to trial without an issue on adverse possession and without being called upon to meet the case that the first appellate court ultimately accepted. Section 103 cannot be used to decide against a party on a case it was never asked to meet. A remand limited to the additional issue is therefore the correct course; a full remand would prolong a suit already thirteen years old and would burden the parties with a repetition of the entire trial.
Operative part of the judgment.
'1. The appeal is allowed. The judgment and decree of the learned first appellate court dated ... are set aside. 2. The matter is remanded to the learned first appellate court under Order XLI Rule 23-A read with Section 107(1)(b) CPC, for a fresh decision of the appeal after framing and trying the following additional issue: "Whether the defendant and his predecessor-in-interest held the suit land openly, continuously and in hostility to the plaintiff from 15.05.2005, and if so, whether they perfected title by adverse possession?" 3. The first appellate court shall give both parties an opportunity to lead further evidence confined to the additional issue, and shall decide the appeal afresh, on all issues, by a reasoned judgment. 4. The findings of the first appellate court on the genuineness and the acting upon of the sale deed, and on the unregistered family settlement being inadmissible to create or extinguish title, are set aside and shall be reconsidered in the light of this judgment. 5. Parties shall bear their own costs and shall appear before the first appellate court on ... .'