DR. SHEHLA BURNEY AND. OTHERSversusSYED ALI MOSSA RAZA (DEAD) BY LRS. AND ORS.

                    (2011) 5 S.C.R. 841


          DR. SH EH LA BURNEY AND. OTHERS                         A
                              v.
  SYED ALI MOSSA RAZA (DEAD) BY LRS. AND ORS.
           (Civil Appeal No. 6409 of 2002)
                      APRIL 21, 2011
                                                                  B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.)

    CODE OF CIVIL PROCEDURE, 1908:

       O. 7, rr. 5 and 7 - Relief against defendants - Suit for   c
possession initially filed against a single defendant -
Subsequently defendant-2 also added, but no relief claimed
against him - HELD: In a case where prayer is not made
against a particular defendant, no relief possibly can be
granted against him - There is no prayer for possession           D
either in the original plaint or in the amended plaint against
defendant-2 - Defendant-2 being predecessor-in-title of the
appellants, no relief can be granted against them - Besides,
the possession of suit property remained with predecessor-
in-title of the appellants since 1950 and continued with the      E
appellants who have been residing therein since 1964 after
the constructions thereon were made and the suit came to be
filed in 1975 - Judgment of High Court set aside and that of
trial court dismissing the suit restored.

      The plaintiffs-respondents nos. 1, 2 and 3 filed a suit     F
bearing 0. S. No. 164 of 1976 against the predecessor-
in-interest of respondents nos. 4/1 and 4/2 pleading that
the patta in respect of the suit land {bearing Survey no.
129/55 (old), new Survey No. 165} admeasuring 3 acres
and 26 guntas was transferred in the name of their father         G
in 1340 Fasli and the latter transferred the land to his wife,
i.e., the mother of the plaintiffs, by a settlement deed
registered in 1347 Fasli corresponding to the year 1930;
that after the death of the mother of the plaintiffs on
                             ~1                                   H
    842      SUPREME COURT REPORTS            [2011) 5 S.C.R.


A 24.7.1973, respondents 4/1 and 4/2 illegally occupied the
  suit land. The defendant filed a written statement stating
  that she was the bona fide purchaser of the suit land, and
  that on 20.6.1973 she transferred the land to the
  predecessor-in-title of the appellants. The latter was
B impleaded as defendant no. 2 by an order dated
  4.11.1982. Defendant no. 2 filed his written statement
  claiming himself as transferee of defendant no. 1 who had
  perfected her title by adverse possession against the
  plaintiffs. The trial court dismissed the suit. On appeal,
c the Single Judge of the High Court decreed the suit for
  possession holding that the defendants had failed to
  establish their case of adverse possession. Aggrieved,
  the heirs and legal representatives of defendant no. 2 filed
  the appeal.
D         Allowing the appeal, the Court

       HELD: 1.1. It stands proved that there is no prayer
  for decree of possession either in the original plaint or
  amended plaint against original defendant no.2. It is clear
E that in the amended plaint the prayer is against the
  defendant, therefore, the prayer is only against defendant
  no.1 and not against defendant no.2. In a case where
  prayer is not made against a particular defendant, no relief
  possibly can be granted against him. This point goes to
F the root of the matter and for its consideration no further
  investigation in the facts of the case is necessary. This
  point actually appears from the admitted records of the
  case and is based on the provisions of the Code of Civil
  Procedure [O. 7, rr 5 and 7). No relief was claimed against
G defendant-2, who was the predecessor-in-title of the
  appellants, and, therefore, no relief can be granted
  against them. In this view of the matter, the judgment of
  the High Court is not sustainable in law. [para 17,18. 21,
  22, 26] [849-E-H; 850-A-B-H; 851-A-B; 852-A]

H
 DR. SHEHLA BURNEY v. SYED ALI MOSSA RAZA                843
              (DEAD) BY LRS.
     Sheikh Abdul Kayum and others v. Mui/a Alibhai and         A
others 1963 SCR 623 =AIR 1963 SC 309; Scotts
Engineering, Bangalore v. Rajesh P. Surana and others
(2008) 4 sec 256; Badri Prasad and others v. Nagarmal and
others 1959 Suppl. SCR 709 =AIR 1959 SC 559; and
Tarinikamal Pandit and others v. Perfulla Kumar Chatterjee      B
(dead) by L.Rs. 1979 (3) SCR 340 =AIR 1979 SC 1165 -
relied on.

     Surajmul/ Nagoremull v. Triton Insurance Co. Ltd., 52
Indian Appeals 1.26 - referred to.
                                                                c
     1.2 Besides, this Court finds that the appellants had
been in peaceful possession of the property in dispute
from July 1963 and their predecessor-in-interest was in
possession of tile same property from 1950 till the
property was transferred by her to the predecessor-in-title     O
of the appellants. After such transfer .the construction
started on the property and the appellants have been
residing there since 1964 and the suit came to be filed
only in 1975. Even in that suit after impleading the
original defendant no.2 no relief has been claimed against      E
him. In view of the admitted factual position and the legal
questions this Court cannot affirm t~e views taken by the
High Court. The judgment of the High Court is set aside
and that of the trial court is affirmed. [para 27-28] [852-B-
D]                                                              F
                     Case Law Reference:
      1963 SCR 623           relied on.           Para 20
     . (2oos) 4 sec 256      relied on.           Para 21
                                                                G
      52 Indian Appeals 126 referred to.          Para 23
      1959 Suppl. SCR 709    relied on.           Para 24
      1979 (3) SCR 340       relied on.           Para 25
                                                                H
    844       SUPREME COURT REPORTS              [2011] 5 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6409 of 2002.

      From the Judgment & Order dated 3.4.2002 of the High
  Court of Judicature of Andhra Pradesh at Hyderbad in C.C.C.
B Appeal No. 14 of 1986.

        Huzefa Ahmadi, Ejaz Maqbool, Wajid Ali Kamil, Sakshi
    Banga for the Appellants.

          Dr. A.M. Singhvi, V. Giri, Roy A,braham, Kishore Rai,
c Jaiveer Shergill, Himinder Lal for the Respondents.
          The Judgment of the Court was delivered by

       GANGULY, J. 1. This appeal is from a judgment dated 3rd
  April 2002 by the High Court of Andhra Pradesh in a First
D Appeal. The material facts of the case, as appear from the
  records, are discussed hereinbelow.

        2. As asserted by the appellants, the suit land (Original
  Suit No.164/76) falls under Survey No.129/64. The respondents
E No.1, 2 and 3 were the original plaintiffs and according to them
  the suit land falls in Survey No.129/55. The appellants herein
  are the legal heirs of original defendant No.2. The respondents
  4/1 and 4/2 are the legal heirs of original defendant No.1.
  Respondents 1, 2 and 3, as noted above, are the original
F plaintiffs. The case of the appellants is that the suit land
  belonged to one Dr. Zafar Hussain who transferred the same
  to one Sajid Hassan by a registered sale deed dated
  20.1.1950. Thereupon, Sajid Hassan sold on or about
  22. 7.1963 the said land to Razia Begum, the predecessor-in-
  title of original defendant no.1 by a registered sale deed for a
G total consideration of Rs.6000/-. Razia Begum remained in ·
  uninterrupted and peaceful possession of the said property from
  the date of her purchase. On or about 11.08.1963 Razia Begum
  obtained house construction loan from the Housing

H
 DR. SH EH LA BURNEY v. SYED ALI MOSSA RAZA                    845
  (DEAD) BY LRS. [ASOK KUMAR GANGULY, J.]
Cooperative Society, Mellapelly Limited and thereafter                 A
permission for construction was accorded on or about
18.02.1964 by the Hyderabad Municipal Corporation. The
original defendant no.1 was in possession and enjoyment of
the property till it was transferred on 20.6.1973 to one Lateef
Hassan Burney, the predecessor-in-title of the appellants              a
(original defendant No.2) as the nominee of the defendant no.1
in terms of the rules of the Housing Society. Then, on 4.12.1975,
the original suit (O.S.164 of 1976), out of which this proceeding
arises, was instituted in the Court of the 4th Additional Judge,
City Civil Court, Hyderabad by the plaintiffs against Razia            c
Begum alleging that the plaintiffs' father Saiyed Shah Abdul
Khader was the Pattedar and Landlord of land bearing Survey
No.129/55 (old), New Survey No.165 admeasuring 3 Acres and
26 guntas situated at Kachcha Tattikhana Sivar village Shaikpet
and the then Taluk West, now Hyderabad Urban Taluk. It was
also alleged that the patta was tr~nsferred in the name of the         D
father of the plaintiffs by Sarafe-e-Khas Mubarak on 25th Azur
in 1340 Fasli and the father of the plaintiffs through a registered
document Tamleeknama (Settlement Deed) on 1oth Aban, in
1347 Fasli which corresponds roughly to the year 1930
transferred the land to his wife Fatima Sogra, the mother of the       E
plaintiffs. It was further alleged that after the aforesaid transfer
 the said Fatima Sogra, the plaintiffs' mother, remained in
 continuous and exclusive possession of the same till her death
 on 24.07.1973. On her death the respondents no.4/1 and 412
 illegally occupied the suit land. In the said suit Razia Begum,       F
 the predecessor-in-title of respondent no.4/1 and 412, filed her
 written statement pleading therein that she is a bone fide
 purchaser of the suit land by Rs.6000/- after issuing a public
 notice in the Daily Siyasat on 19.06.1963. No objections were
 received from anybody and the sale deed was finally registered        G
with the plan on 22.07.1963. It was also pleaded in the written
statement that she obtained the necessary permission for
construction and obtained a loan from Housing Cooperative
Society and had completed the construction till the basement
level. No objection was raised by the plaintiffs with the              H
  i
    846      SUPREME COURT REPORTS                  [2011) 5 S.C.R.


A construction and she has perfected her title against the plaintiffs
  by way of adverse possession. In her written statement she also
  pleaded that she transferred on 20.6.1973 the property in
  favour of Lateef Hassan Burney, predecessor-in-title of the
  appellants. On the filing of the written statement, Lateef Hassan
B Burney was impleaded as defendant no.2 by an order of the
  Court dated 4.11.1982.

       3. Thereupon, on 18.12.1982, the original plaintiffs filed an
  amended plaint impleading Lateef Hassan Burney. Thereafter,
  another suit was instituted on 15.1.1983 by the plaintiffs against
C one Prahlad Singh, who had illegally occupied a portion of their
  property falling under Survey No.129/55 (old). It may be noted
  that in the subsequent suit Prahlad Singh did not dispute the
  fact that the suit property is part of Survey No.129/55 (old).
  !hereupon, in O.S. No.164 of 1976, the defendant no.2,
D predecessor-in-title of the appellants, filed his separate written
  statement stating therein that the property belongs to Razia
  Begum, the original defendant no.1, before it was transferred
  in his name and the Razia Begum had perfected her title by
  adverse possession against plaintiffs.
E
       4. Then, the witnesses were examined by the Trial Court.
  Then by an order dated 19.12.1983 the trial Court appointed
  a Court Commissioner. The Court Commissioner with the help
  of a surveyor submitted a report on 25.4.1984.
F       5. Ultimately, by judgment dated 19.9.1985, the suit was
  dismissed and being aggrieved by the same an appeal was
  filed before the High Court in the year 1986. The High Court
  again by an order dated 5.2.2002 appointed an Advocate
  Commissioner to determine the location of the property which,
G according to the original plaintiffs-respondent, was falling in
  Survey No. 129/55(old). However, the contention of the
  appellants is that the property was falling in Survey No. 129/
  64.

H         6. The Advocate-Commissioner appointed by the High
 DR. SHEHLA BURNEY. v. SYED ALI MOSSA RAZA                       84 7
  (DEAD) BY LRS. [ASOK KUMAR GANGULY, J.]
Court submitted a report along with a Map in which it has been           A
shown that the suit property falls under Survey No. 129/55(old)
but that finding has been reached on the basis of the judgment
and order in O.S.No. 331/1980 which was between the original
plaintiffs and one Sardar Prahlad Singh. In that suit (S1,Jit No.
331 /1980) no issue relating to the fact that the property of            B
Prahlad Singh was in any other survey number than Survey No.
129/55(01d) was raised.

     7. The learned Judge of the High Court framed the
following three issues for consideration: .
                                                                         c
           (a) Whether the suit land is in S.No.129/55 as
     claimed by the plaintiffs or in S. No.129/64 as claimed by
     the defendants?

           (b) Whether the defendants have perfected their title
     in respect of the suit land by adverse possession?         · D

           (c) What is the relief that the plaintiffs are entitled to?

      8. On the aforesaid three issues, the High Court in the
impugned judgment gave a finding in respect of each one of               E
the issues. In respect of issue (a), the High Court held that the
suit property fell in Survey No. 129/55 (old) new No. 165 situated
at Kachcha Tattikhana Sivar village Saikpet, Hyderabad and
not in Survey No. 129/64. In respect of issue (b), the High Court
came to a finding that the defendants have failed to establish           F
their plea by way of adverse possession. In respect of issue
(c), the High Court came to a finding that the plaintiffs are
entitled to a decree for possession in the suit.

     9. Against the said judgment, the present appellants filed
a Letters Patent Appeal before the Division Bench of the High            G
Court. But in view of the judgment of the High Court in S.
Shivraja Reddy and ors. v. Raghuraj Reddy and Ors., the
Division Bench of the High Court held that after th"e amendment
of Section 100 of the C.P.C., the Letters Patent Appeal filed
                                                                         H
    848      SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A   after 1.7.2002 is not maintainable. The Letters Patent Appeal
    of the appellant was returned by the High Court and the
    appellants on 7.9.2002 filed a Special Leave Petition before
    this Court in which on 27.9.2002 leave was granted and the
    special leave was converted into this appeal.
B        10. Mr. Huzefa Ahmadi, learned counsel appearing on
    behalf of the appellants, assailing the impugned judgment
    raised various issues.

        11. The first issue which was raised was that no pleading
C and. no prayer for a decree of possession was made against
  Lateef Hassan Burney, Original Defendant No.2 (the
  Predecessor in title of the Appellants). Attention of this Court
  was drawn to the original prayer in the plaint and also the prayer
  in the amended plaint. It was, therefore urged that in the
D absence of any pleading and prayer for relief against the
  Defendant No.2 (Predecessor-in-title of the Appellants), the suit
  is liable to be dismissed as against Defendant No.2 in view of
  the provisions of Order VII of Code of Civil Procedure.

       12. The second point urged was that the respondent Nos.
E 1 to 3 (contesting respondents) who are the legal
  representatives of the Original Plaintiffs, did not prove that the
  disputed land falls within Survey No. 129/55(old).

       13. The third point on which the impugned judgment was
F assailed was that the contesting respondents (original plaintiffs)
  did not succeed in proving their title in respect of Survey No.
  129/55.

       14. It was also urged that the suit was barred by limitation
  under Article 65 of the Limitation Act, 1963 and the High Court
G should have held that the appellants had perfected their title by
  way of adverse possession and even on the ground of equity
  no decree for possession can be passed in favour of the
  contesting respondents who are the successor -in-title of the
  original plaintiff.
H
  DR. SHEHLA BURNEY v. SYED ALI MOSSA RAZA 849
   (DEAD) BY LRS. [ASOK KUMAR GANGULY, J.]
     15. Mr. Giri, learned senior counsel for the respondents        A
submitted that the suit is for recovery of possession on the
strength of title and not a suit for recovery of possession on the
strength of possession. According to the learned counsel the
judgment of the High Court is clear that the evidence is not
adequate for the Trial Court to prove the title to survey No.129/    B
55 nor it is adequate to prove that the plaint schedule property
is survey No.129/55. The learned counsel further questioned
the locus standi of the second defendant to maintain this
appeal. The learned counsel also submitted that there is
 nothing on record to show the transfer of property in Survey        c
 No.129/64. The learned counsel ultimately submitted the matter
should be remanded to the High Court for rehearing in view of
inadequate evidence on record.                   ·

       16. Considering these rival submissions, this Court is of
the view that some of the submissions of the learned counsel         D
for. the appellants deserve acceptance.

     17. The submissions of the learned counsel for the
appellant that there is no prayer for decree of possession either
in the original plaint or amended plaint against original            E
defendant no.2 stands proved. The prayers in the original plaint
and the amended plaint were placed before us .. The prayer in
the amended plaint is set out hereinbelow:-

     "(1) that a decree to be passed in favour of t~e petitioners
     against the defendant for possession of land measuring          F
     2180 square yards situate at village Shaikpet, Banjara
     Hills, Jubilee Hills, Hyderabad bounded by East: Road,
     West: Plaintiff's land, North: Road No.3, South: Road
     No.14, as per annexed plan attached to the plaint, in survey
     No.129/55 (old), New Survey No.165, situate at Shaikpet,        G
     village, Hyderabad Urban by demolishing the illegal
     structures on the land;"

    18. It is clear that in the amended plaint the prayer is
against the defendant, therefore, the prayer is only against         H
    850       SUPREME COURT REPORTS                     [2011] 5 S.C.R.

A  defendant no.1 and not against defendant no.2. 1.n a case
   where prayer is not made against a particular deferidant, no
   relief possibly can be granted against him. Reference in this
   connection can be made to the provisions of Order VII of the
  .Code of Civil Procedure. In this connection, Order VII, Rule 5
B is relevant and is set out below:-

          "5. Defendan(s interest and liability to be shown. - The
          plaint shall show that the defendant is or claims to be
          interested in subject-matter, and that he is liable to be
          called upon to answer the plaintiff's demand."
c
         19. Order VII, Rule 7 of CPC is also relevant and which is
    also set out below:-

          "7. Relief to be specifically stated.- Every plaint shall state
D specifically the relief which the plaintiff claims either simply or·
  in the alternative, and it shall not be necessary to ask for
  general or other relief which may always be given as the Court
  may think just to the same extent as if it had been asked for.
  And the same rule shall apply to any relief claimed by the
E defendant in his written statement."

          20. In Sheikh Abdul Kayum and others v. Mui/a Alibhai
    and others [AIR 1963 SC 309] it has been held by this Court
    that it does not lie within the jurisdiction of a Court to grant relief
    against defendant against whom no reliefs have been claimed
F   [See paragraph 13, page 313 of the report].

       21. Same propositions have been reiterated recently by
  a judgment of this Court in Scotts Engineering, Bangalore v.
  Rajesh P. Surana and others [(2008) 4 SCC 256]. In
G paragraph 10 at page 258 of the report this Court found that
  even after the appellant was arrayed as defendant 6, the plaintiff
  did not care to amend the plaint except making the appellant.
  as defendant 6. No relief was claimed against defendant 6. If
  we follow the said principle in the facts of this case we have to
H hold t.hat no relief having been claimed against defendant 2,
 DR. SHEHLA BURNEY v. SYED ALI MOSSA RAZA                       851
  (DEAD) BY LRS. [ASOK KUMAR GANGULY, J.]
who is the predecessor-in-title of the present appellant, no relief     A
can be granted against the present appellant.

   .· , 22. The objection -0f the respondent that such point is taken
only before this Court and not at an earlier stage of the
proceeding cannot be countenanced since this point goes to
                                                                        B
the root of the matter and for consideration of this point no
further investigation in the facts of the case is necessary. This.
point actually appears from the admitted records of the case
and this point is based on the provisions of the Code of Civil
Procedure.
                                                      .
     23. In this connection principles which have bee.n laid down
                                                                  c
by Lord Sumner in Surajmull Nagoremull v. Triton Insurance
Co. Ltd., [52 Indian Appeals 126] are very pertinent. The learned
Law Lord summarized the proposition so lucidly that we should
do nothing more than quote it:                                          D
     "... No court can enforce as valid that which competent
     enactments have declared shall not be valid, nor is
     obedience to such an enactment a thing from which a court
     can be dispensed by the consent of the parties, or by a
     failure to plead or to argue the point at the outset:"             E

    24. The aforesaid propositions have been quoted with
approval by this Court in Badri Prasad and others v. Nagarmal
and others reported in AIR 1959 SC 559 at page 562.
                                                                        F
    25. Similar views have been expressed by this Court
again in Tarinikamal Pandit and others v. Perfulla Kumar
Chatterjee (dead) by L.Rs. [AIR 1979 SC 1165]. After
considering several decisions, including the one rendered in
Badri Prasad (supra) this Court held as follows:~
                                                                        G
     " ... As the point raised is a pure question of law not
     involving any investigation ·of the facts, we permitted the
     learned counsel to raise the question .... " (para 15 at page
     1172)
                                                                        H
    852     SUPREME COURT REPORTS                  (2011) 5 S.C.R.


A       26. In our view this point is sufficient to hold that the
    judgment of the Hon'ble High Court is not sustainable in law.

       27. Apart from this, this Court finds that the appellants had
  been in peaceful possession of the disputed property from July
  1963 and their predecessor-in-interest was in possession of
B the same property from 1950 till the property was transferred
  by her to Lateef Hassan Burney, predecessor-in-title of the
  appellant. After such transfer the construction started on the
  property and the appellants have been residing there since
  1964 and the suit came to be filed only in 1975. Even in that
C suit after impleading the original defendant no.2 no relief has
  been claimed against him.

         28. In view of the aforesaid admitted factual position and
    the legal questions discussed above, thi·s Court cannot affirm
o   the views taken by the High Court. The judgment of the High
    Court is set aside and that of the Trial Court is affirmed. The
    appeal is allowed. There will be no order as to costs.

    R.P.                                          Appeal allowed.