It is needless to say that Order XLI of the Code of Civil
Procedure, 1809 would apply to the appeals from the appellate
decrees also, as contemplated in Rule-1, Order XLII of the
said Code. {Para 11}
12. As per Order XLI Rule 25, the appellate court may, if
necessary, frame issues and refer the same for trial to the
court whose decree is appealed from, and direct such court to
take additional evidence required. Further, as per Rule-27
Order XLI, the Appellate Court may allow evidence or document
to be produced or witness examined, in the circumstances
stated therein, after recording the reasons for such
admission of evidence. However, the Appellate Court can not
create a new case for the party, frame the issues and decide
the issues without following the procedure contemplated under
Order XLI of CPC.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.3500/2024
RAMA KT. BARMAN (DIED) THR. LRS Vs
MD. MAHIM ALI & ORS.
Author: BELA M. TRIVEDI, J.
Citation: 2024 INSC 644.
Dated: 21ST AUGUST, 2024.
1. The appellants – original plaintiffs have assailed the
Judgment and Decree passed by the High Court of Gauhati in
Regular Second Appeal No.74/2006, whereby the High Court had
allowed the appeal preferred by the respondents – defendants,
holding that the appellants – plaintiffs were not entitled to
get the recovery of khas possession of the suit land by
evicting the respondents – defendants therefrom.
2. The broad facts leading to the present appeal are that the
appellants – plaintiffs had filed the Title Suit No.5/2002 in
the Court of Civil Judge (Junior Division) No.2, Barpeta
seeking declaration with regard to the right, title and interest over the scheduled land and for evicting the respondents – defendants from the suit land in question, as also
seeking permanent injunction. The said suit was contested by
the respondents – defendants by filing the written statement.
From the pleadings of the parties, the Trial Court had framed
the following issues: -
“l. Whether the suit is barred by limitation?
2
2. Whether the plaintiff has right, title and interest over the suit land?
3. Whether the plaintiffs allowed the defendants
to cultivate one portion of the suit land in "Adhiar system" and on 19.11.2001 the defendant encroached into the rest portion of suit land and
constructed a thatched chali?
4. Whether the defendants have been under the
possession of the suit land since 30 years?
5. Whether the plaintiff is entitled to get a decree as prayed for?"
3. The Trial Court decided the issue Nos.1 and 4 against the
defendants and issue Nos.2 and 3 in favour of the
plaintiffs, and consequently issue No.5 was also decided in
favour of the plaintiffs. Accordingly, the Trial Court vide
the Judgment and Decree dated 19-5-2004 had decreed the suit
of the appellants – plaintiffs.
4. Being aggrieved by the same, the respondents - defendants had
preferred an appeal before the Court of Civil Judge (Senior
Division) being Title Appeal No.35/2004, which came to be
dismissed by the Appellate Court vide the Judgment and Order
dated 21-11-2005.
5. The aggrieved respondents – defendants preferred the Second
Appeal being Regular Second Appeal No.74/2006. The said
Second Appeal was admitted by the High Court on 16-3-2007, by
framing the following substantial question of law: -
"1. Whether the annual patta holder has the right
to transfer the land for which he has only
possessory right to another person?"
6. Thereafter, the High Court again framed two additional
substantial questions of law on 05-02-2015 which are as
follows:-
“1. In view of the admissions contained in
Paragraph 4, 5 and 6 of the plaint, whether the
defendants can be said to have acquired the
status of non-evictable tenants under the Assam
Temporary Settled Areas) Tenancy Act, 1971?
2. Whether the suit itself was not maintainable
due to non-compliance of Section 51 and 54 of the
Assam (Temporary Settled Areas} Tenancy Act,
l97l?"
7. Again, the High Court framed one additional substantial
question of law on 25.03.2015, which reads as follows: -
“1. Whether the declaration of right, title and
interest by the Courts below is at all legally
justified in view of the position that the same
was granted on the basis of Exhibit 1, i.e., the
Annual Petta."
8. As transpiring from the impugned Judgment, the appeal was
partly heard on 25-03-2015 and again was concluded on
27-03-2015, however, on both the occasions, none had appeared
on behalf of the appellants - plaintiffs, and the High Court
vide the impugned Judgment dated 07-04-2015 allowed the said
second appeal and set aside the Judgment and Decree passed by
the two courts below. It has been held by the High Court
inter alia that though the Courts below had dismissed the
appeal of the respondents (defendants) on the ground that
they had failed to prove adverse possession of the suit land,
however, as per the legal position, the appellants –
plaintiffs could succeed only on the strength of their own
case, irrespective of the question whether the respondents –
defendants really proved their case or not. The High Court
further held that the courts below had not considered the
provisions of Assam (Temporary Settled Areas) Tenancy Act,
1971 and had committed gross error in decreeing the suit of
the appellants – plaintiffs holding the defendants to be the
encroachers.
9. It is sought to be submitted by Ms. Kavya Jhawar, learned
Advocate appearing for the appellants – plaintiffs that the
High Court has grossly erred in not giving proper opportunity
of hearing to the appellants, more particularly when the High
Court had framed as many as four additional substantial
questions of law, which were not raised by any of the parties
before the Courts below. She further submitted that the
respondents – defendants had claimed the ownership over the
suit land by the adverse possession, and had not claimed
tenancy rights over the same, however, the High Court has
created a new case for the respondents – defendants by
framing additional substantial questions of law and allowing
the Second Appeal without giving any opportunity of leading
the evidence on the additional issues framed by it.
10. Mr. Azim H. Laskar, the learned counsel appearing for the
respondents has fairly submitted that the High Court having
not given the proper opportunity to the parties to lead
evidence on the additional substantial questions of law
framed by it, he has no objection if the matter is remanded
to the High Court for fresh consideration.
11. It is needless to say that Order XLI of the Code of Civil
Procedure, 1809 would apply to the appeals from the appellate
decrees also, as contemplated in Rule-1, Order XLII of the
said Code.
12. As per Order XLI Rule 25, the appellate court may, if
necessary, frame issues and refer the same for trial to the
court whose decree is appealed from, and direct such court to
take additional evidence required. Further, as per Rule-27
Order XLI, the Appellate Court may allow evidence or document
to be produced or witness examined, in the circumstances
stated therein, after recording the reasons for such
admission of evidence. However, the Appellate Court can not
create a new case for the party, frame the issues and decide
the issues without following the procedure contemplated under
Order XLI of CPC.
13. In the instant case, the High Court in the second appeal had
framed one substantial question of law on 16-3-2007, and
framed two another substantial questions of law on 5-2-2015
and one more substantial question of law in 2015. Thus, in
all framed four additional questions of law.
14. Apart from the fact that none of the said substantial
questions of law formulated by the High Court were either
raised before the trial court or the appellate court, none of
parties was given any opportunity of leading the evidence on
6
the said issues. It is well-settled principle of law that the
Court cannot create any new case at the appellate stage for
either of the parties, and the appellate court is supposed to
decide the issues involved in the suit based on the pleadings
of the parties.
15. In view of the above, without examining the merits of the
case, we deem it appropriate to set aside the impugned
judgment and decree passed by the High Court in the Second
Appeal, and remand the same to the High Court for deciding
the same afresh and in accordance with law. While deciding
the Second Appeal afresh, the High Court may reconsider the
substantial questions of law framed by it earlier and decide
the same in accordance with law.
16. Accordingly, the impugned judgment and decree passed by the
High Court is set aside and the Appeal stands allowed
accordingly.
17. Since the decree was passed by the trial court in 2004, the
High Court is requested to decide the Second Appeal as
expeditiously as possible.
18. It is directed that till the Second Appeal is decided by the
High Court, both the parties shall maintain status-quo as
regards to the possession of the suit land.
…………………………………………J
(BELA M. TRIVEDI)
…………….………………………………………J
(SATISH CHANDRA SHARMA)
NEW DELHI
21ST AUGUST, 2024.
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