Bruce v. Silva Raj And Others

Order

1. Appellant in Civil Appeal No. 1125 of 1973 by special leave was the plaintiff in a suit for declaration of title and confirmation of his possession in respect of a little more than three acres of land and for injunction. He got a decree from the trial court and the same was affirmed in appeal. The High Court in second appeal reversed the affirming appellate decree and dismissed the suit.

2. Special Leave Petition No. 143 of 1975 has also been filed by the plaintiff of Civil Appeal 1125 of 1973 and some others who were defendants in a suit for injunction brought by the respondents in respect of the very same property in the other litigation and some other properties. The trial court gave a decree but in appeal the suit was dismissed. The High Court in second appeal vacated the appellate decree and restored the original decree. Special leave petition is granted. Both the appeals were heard together.

3. In the suit for title and possession, a good number of documents evidencing transactions spread over half a century were relied upon to establish title. The claim in respect of possession was sought to be established through documents as also oral evidence. The defence was, inter alia, one of acquisition of title by adverse possession which meant that the plaintiff had title which he has lost on account of being out of possession for the prescribed period.

4. The courts of fact had made a detailed analysis of the entire evidence — both documentary and oral — and come to their conclusions in favour of the plaintiff. The High Court in second appeal mainly referred to two documents — Exhibits A/3 and A/9 and on the basis of its appreciation of the contents thereof reversed the affirming decree of the lower appellate court. These two documents had been considered by the courts of fact along with a host of other documents and it was not a case where the courts of fact had overlooked them. It was not open to the High Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure to enter into a reappreciation of the evidence and interfere with findings of fact. The reasoning given by the High Court to discard the two documents is also faulty. The High Court has said:

“The courts below have relied upon Exhibits A/9 and A/3 for the purpose of negativing the claim of the appellant of title by adverse possession and for finding title in favour of the plaintiff in the suit. While doing so, the courts below failed to attach importance to one significant fact, namely, that by the time Exhibit A/9 of 1928 came into force there was no specific plot as 5 C-3 which came into existence only by virtue of Exhibit A/4 in 1932. Consequently Exhibit A/9 could not have dealt with or referred to the suit plot of 3 acres 25 cents within specific boundaries. I am mentioning this for the simple reason that as the plea in the case involves a claim of title by adverse possession, the property must be necessarily identified, specified and localised with reference to definite boundaries.”

The plea of adverse possession had to be established by the defence. Plaintiff was certainly entitled to contend and establish his stand by proof that he was in possession of the disputed property of 3.25 acres from before and at the partition which came later, honouring previous possession of parties, the same property was allotted to him. That was his stand and the oral evidence in support of such stand has been accepted by the courts of fact. We agree with Mr Poti, learned counsel for the appellant, that the High Court has gone beyond its powers as a second appellate court in disturbing the factual findings of the original and the first appellate courts. The judgment and decree of the High Court have, therefore, to be vacated by allowing the appeal and directing restoration of the original decree by which the plaintiff's suit had been decreed.

5. Coming to the connected appeal, it arises out of a suit for injunction. It is well settled that injunction can be obtained on the basis of possession. In view of the result of the connected appeal where possession of the adversary has been confirmed, no injunction was available to be granted. The civil appeal is allowed and the judgment and decree of the High Court are set aside and those of the lower appellate court which dismissed the suit shall stand restored.

6. Both parties shall bear their respective costs throughout.