Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. There was a previous litigation in OS No.49 of 1963 before the Subordinate Judge, Erode which was the suit for partition and separate possession filed by one Venugopal Iyer against Venkataramana Iyer and his sons. The appellant Dhararnrajan had produced Exhibit F B-6, the Judgment which showed that the Brahmin family under whom the present defendants claimed title was represented by four brothers representing four branches and they were Ramaswamy Iyer, Venkatasubba Iyer, Krishnaswamy Iyer and Subramaniya Iyer. There was a partition between these four brothers and as per the Agreement G Krishnaswamy Iyer and Subramania Iyer were allotted the property jointly as against their shares, Ramaswamy Iyer and Venkatasubba Iyer were dealing separately their respective shares. It was Subramania Iyer's son Venugopal Iyer who was the plaintiff in the said suit while [2007) 13 (Addi.) S.C.R. A Venkataramana Iyer and his sons who were the descendants of Krishnaswamy Iyer were the main defendants therein. The High Court has gone through this judgment and has recorded that ultimately the partition was granted only in respect of Survey No.361/D of Kavundapadi village which was Plaint "A" Schedule and the backyard B of the house which was Plaint "B" Schedule and in other aspects the suit was dismissed. What the High Court has failed to see is that there is a mention of the property in the suit in this litigation. The High Court ultimately gave a finding that the suit property was not the subject matter as it was lying South of Kattabomman Street and this property C was not, therefore, partitioned in the said suit. In its enthusiasm the High Court has given a finding that the house was extended further south to the East West Kattabomman Street and, therefore, the vendors of the defendants (Dharamrajan and others) had not chosen to deal with suit property even as early as 1957. Ultimately the High Court D has given a finding that the suit property was not the subject matter of ExhibitA-11 partitioned in the year 1957.
11. It was pointed out by the learned counsel appearing on behalf of the appellant that there is a definite mention in Suit OS No.49 E of 1963 of the suit property. As if this was not sufficient, the learned counsel has also pointed out that the suit property was registered in the name ofVenugopala Iyer in Kavundapadi Panchayat and he has also paid house tax to the Panchayat for the suit property. There is a receipt (Exhibit B-3) on record of the house tax paid by the Iyer family F which is long prior to the suit. There is also a certificate (Exhibit B- 5) to show that house was registered in the name ofVenugopala Iyer for a period even prior to 1977. The appellate court had accepted this documentary evidence. In our opinion that would be the end of the matter and in the absence of any revenue records in favour of either G Karupayee Ammal or Doraiswamy, there was no question of their title over the land. The High Court has, in para 24, recorded: "The question of adverse possession does not actually arise because the Brahrnin fami:y never asserted title over the suit property and the defendants only with a view to harass the DHARMARAJAN AND OTHERS V. V ALLIAMMAL AND ORS. [SIRPURKAR, J.] plaintiff has gone and taken sale deeds from the members of the A Brahmin family i11 the year 1980 knowing fully well that all along the family never asserted title and had never been in possession of the suit property." In our opinion these findings are entirely erroneous and the High B Court has gravely erred in interfering with a well considered judgment and findings of fact of the appellate court who has accepted the case of the defendant and has chosen to hold that the plaintiff in OS No.555 of 1981 was not able to discharge the burden at all.
12. In the absence of pleadings, the High Court gravely erred in c finding out an entirely new case on the basis of unpleaded facts and non existent rights. Learned counsel for the respondent tried to suggest that this was a Natham and the parties had proceeded on that basis and, therefore, the long standing possession ofKarupayee Ammal and thereafter of Doraiswamy would clothe them with the ownership. In D the first place that it was a Natham was not pleaded. Secondly, there is nothing to suggest that this long standing possession could clothe the Karupayee Ammal and Doraiswamy with the ownership rights. That was neither.a case pleaded nor proved. Again there was nothing in the shape of revenue records in favour of Karupayee Ammal and E Doraiswamy. Learned counsel relied upon the judgment of the Madras High Court in The Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharamapuri District vs. IV Swaminatha & Ors. [(2004) 3 L.W. 278] delivered by the Division Bench thereof in support of his contention that a long possession over Gram Natham ripens into the ownership rights. We are afraid the judgment is being read too broadly. No such proposition oflaw emerges from that judgment.
13. On the other hand the appellate court has rightly relied on the tax receipts and the entry in the name of Venugopala Iyer in G respect of the suit land in Survey No.324 Ward No.4. The appellte court had also correctly held that the suit property was mentioned in Exhibits B-6 and B-7 as also in the decree in OS 49 of 1963 in Item No. I of Schedule C property which was not divided. All the lengthy discussion by the High Court over that issue was not only uncalled for H [2007] 13 (Addi.) S.C.R. A but the High Court has gravely erred in setting aside the fmding of the appeilate court that the suit property was the property of Item No.I of Schedule C in Exhibit B-7.
14. This Court has, time and again, explained the scope of B Section 100 CPC, more particularly in Gurudev Kaur & Others vs. Kaki and Others [(2007) 1 SCC 546) where it was held that even before the 1976 amendment the scope of such interference under Section 100 drastically curtailed and narrowed down. It is specifically held that the High Court would have jurisdiction of interfering only in C a case where substantial questions of law are involved and those questions are clearly formulated in the Memorandum of Appeal. We have already shown that the questions fommlated were neither the questions oflaw nor substantial questions oflaw. This is apart from the fact that in the present case the High Court has completely gone astray D inasmuch as it is not even realized that it was a case which was not even pleaded. In Gurudev Kaur s case the above mentioned position stated by us in respect of substantial question oflaw has been reiterated. Thus, the judgment suffers from error of law.
15. Learned counsel for the respondent lastly suggested that E Doraiswamy had transferred the possessory title and, therefore, the plaintiff in OS No.555 of 1981 was justified in filing the suit against the present defendants. This was not even the case pleaded. On the other hand what was pleaded was adverse possession alone. This is apart from the fact that all through the plaintiff claimed a title and ownership F from Doraiswamy, who according to the plaintiff, had both ownership and the title to the suit property. The term possessory title was not even whispered anywhere. We are, therefore, unable to accept the contention of the learned counsel on behalf of the respondent.
16. Once the suit ofMuthuswamy Gounder fails, then the other suit filed by Dharamrajan being OS 280 of 1982 in respect of the Eastern ~alf portion of the suit property must succeed. The appellate court has rightly gnnted the declaration in that suit and has also restricted the relief only to the declaration since Dhanmajan and the other H defendmts had not terminated or revoked the licence ofDoraiswamy DHARMARAJAN AND OTHERS v. V ALLIAMMAL AND ORS. [SIRPURKAR, J.] ->t or his wife Valliammal or daughter Palaniammal. The First Appellate Court had also correctly held that appellant in AS No. I 011995 in OS No. 28011982 had established title of his vendors and further that his vendors has passed a valid title to him with respect to the suit property under Exhibits B-12 and B-13. We also accept the judgment of the appellate court that Dharamrajan and other defendants were not entitled to the injunction prayed for.
17. In the result the appeals succeed with costs. The judgment of the High Court is set aside and that of the First Appellate Court is restored. B.B.B. Appeals allowed. c