KANNAN (DEAD) BY LRS. AND ORS.versusV.S. PANDURANGAM (DEAD) BY LRS. AND ORS.

     _,,

                        KANNAN (DEAD) BY LRS. AND ORS.                                A
                                     v.
                  V.S. PANDURANGAM (DEAD) BY LRS. AND ORS.

                                   NOVEMBER 27, 2007
                                                                                      B
                  [A.K.MATHURANDMARKANDEYKATJU,JJ.J


                 Code ofCivil Procedure, 1908:
                    s.100(4) and Or. 14 r.1-High Court deciding second appeal c
             without formulating substantial question of law-Effect of~Suit for
             declaration oftitle andfor possession-Plea ofdefendant ofacquiring
             title by a,dverse possession-High Court in second appeal though not
            formulating any substantial question of law, but decreeing the suit
            holding that ingredients of adverse possession not satisfied by D
            defendant-·HELD: Judgment ofHigh Court should only be set aside
            on ground ofnon-compliance withs. l 00(4) ifsome prejudice has been
            caused to the appellant before Supreme Court by notformulating such
            a substantial question oflaw-Ratio ofdecisions on Order 14, r.1 will
            also apply when a judgment of High Court is challenged on ground E
            that a substantial question of/aw was not formulated by High Court
            as required bys. l 00(4)-0n facts, parties knew well that question of
            adverse possession has been pleaded by defendant and evidence was
            led on the issue-Hence no prejudice has been caused to him by non-
           framing ofa substantial question oflaw by High Court-High Court F
           has rightly held that defendant has not been able to establish that
           ingredients ofplea of adverse possession (nee vi, nee clam, nee
           precario) were satisfied by him-Tenants would vacate the residential
           premises andpossession ofpremises would be handed over as directed
           in the judgment.                                                       G
                Nedunuri Kameswaramma v. Sampati Subba Rao, AIR (1963) SC
.'         884; Sayeda Akhtar v. Abdul Ahad, AIR (2003) SC 2985; Kali Prasad
           Agarwal/a and Ors. v. Mis. Bharat Coking Coal Ltd and Ors., [1989] Supp.
                                             591                                      H
    592           SUPREME COURT REPORTS                 [2007] 12 S.C.R.


A 1 SCC 628 and Shaikh Mahamad Umarsaheb v. Kadalaskar Hasham
  Karimsab and Ors., AIR (1970) SC 61, relied on.

       P. Lakshmi Reddyv. L. Lakshmi Reddy, AIR(1957) SC 314; Suraj
  Mal and Anr. v. Ram Singh and Ors.. AIR 1986SC1889 and Acha! Reddi
B v. Ramakrishna Reddiar and Ors., AIR (1990) SC 553, referred to.
        CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5472-
    5475 of2001.
       From the Judgment and Order dated 17.8.2000 of the High Court
C of Judicature at Madras in S.A. No. 1601-1604of1996.
          S. Mahendran for the Appellants.
         Mahabir Singh, P.B. Suresh and Vipin Nair (for MIS. Temple Law '
    Firm) for the Respondents.
D         TI1e following Order of the Court was delivered
                                    ORDER
       I. These appeals are directed against the impugned judgment of the
  Madras High Court dated 17.8.2000 in Second Appeal Nos. 1601-04/
E 1986.

          2. Heard learned counsel for the parties and perused the record.
       3. The respondent in these appeals, Pandurangan filed a suit being
  Original Suit No. 807of1982 (OS No. 135of1982 at Cuddalore) which
F was decreed on 20.8.1984 by the trial court. In that suit the plaintiff     ,.
  alleged that he is the owner of the property in question, and he prayed
  for declaration of his title and for a decree of possession against the
  defendant.
G       4. Against the judgment and decree of the trial court the appellant
  herein filed an appeal which was allowed by the Additional Sub-ordinate
  Judge, Cuddalore on 30.12.1985. The First Appellate Court set aside
  the judgment of the trial court and allowed the appeal and dismissed the
  plaintiffs suit, holding that the defendant had acquired title by adverse
H possession over the property in dispute.
        KANNAN (DEAD) BY LRS. v. V.S. PANDURANGAM                          593
                     (DEAD) BY LRS.
          5. Against the aforesaid decision the plaintiff (respondent herein), A
    filed a second appeal which was allowed by the High Court by the
    impugned judgment dated 17 .8.2000.


-         6. The High Court relying on several decisions held that the
    ingredients of adverse possession (nee vi, nee clam, nee preeario vide
    P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR (1957) SC 314, Sura}
                                                                                B

    Mal and Anr. v. Ram Singh and Ors., AIR (1986) SC 1889, Aehal
    Reddi v. Ramakrishna Reddiar and Ors., AIR (1990) SC 553, etc. have
    not been satisfied by the defendant and hence the plaintiff's suit deserves
    to be decreed, since admittedly the plaintiff was the owner of the property
    in dispute.
                                                                                c
         7. Learned counsel for the appellant has submitted that no substantial
    question of law was framed by the High Court as required by Section
    100 (4) C.P.C. Hence he submitted that the impugned judgment of the
    High Court deserves to be set aside.                                        D

          8. It is true that in this case no substantial question oflaw has been
    formulated by the High Court. However, in our opinion, merely because
    no substantial question oflaw has been formulated by the High Court that
    does not mean that the judgment of the High Court automatically becomes E
    a nullity or that it must necessarily be set aside by this Court on that ground
    alone. The appellant before us must also show prejudice to him on this
    account.
          9. Learned counsel for the appellant has shown us several decisions
    of this Court where the judgments of the High Court in Second Appeal F
    were set aside on the ground that no substantial question of law had been
    framed by the High Court as required by Second 100 (4) C.P.C. In our
    opinion these decisions cannot be said to have laid down any absolute
    proposition of law that whenever a second appeal is decided by the High
    Court without formulating a substantial question of law that judgment must G
    necessarily be set aside. In our opinion, the judgment of the High Court
    should not be set aside on this ground alone if no prejudice had been
    caused to the appellant before us on this account.
         10. In the present case both the parties knew that the question H
    594           SUPREME COURT REPORTS                   [2007] 12 S.C.R.

A involved was whether the defendant (appellant) in this case had been able
  to prove his title by adverse possession. Hence the non-framing of a
  substantial question oflaw in this case did not prejudice the appellant at


B
  all before the High Court.
       11. By a series of decisions of this Court it has been settled that       -
  omission to frame an issue as required under Order XIV Rule l C.P.C.
  would not vitiate the trial in a suit where the parties went to trial fully
  knowing the rival case and led evidence in support of their respective
  contentions and to refute the contentions of the other side vide Nedunuri
C Kameswaramma v. Sampati Subba Rao, AIR (1963) SC 884.
        12. In Sayeda Akhtar v. Abdul Ahad, AIR (2003) SC 2985 it was
  held by this Court that even if no specific issue has been framed but if
  the parties were aware of that issue and have led evidence on it, the
  Appellate Court should not interfere with the findings of the trial court. A
D similar view was taken in Kali Prasad Agarwalla and Ors. v. Mis Bharat
  Coking Coal Limited and Ors., [1989] Supp l SCC 628 (vide
  paragraph 19) and in Shaikh Mahamad Umarsaheb v. Kadalaskar
  Hasham Karimsab and Ors., AIR (1970) SC 61 (vide paragraph 9) as
  well as in several other decisions.
E
        13. In the present case, the parties knew well that the question of
  adverse possession has been pleaded by the defendant appellant and
  evidence was led on this issue. Hence no prejudice has been caused to
  the appellant by non-framing of a substantial question oflaw by the High
F Court. In our opinion, the ratio of the decisions on Order XIV Rule l
  C.P.C. will also apply when a judgment of the High Court is challenged
  on the ground that a substantial question of law was not formulated by
  the High Court as required by Section 100 (4) C.P.C. In our opinion,
  this Court should not take an over technical view of the matter to declare
G that every judgment of the High Court in Second Appeal would be illegal
  and void, merely because no substantial question of law was formulated
  by the High Court. Such an over technical view would only result in
  remitting the matter to the High Court for a fresh decision, and thereafter
  the matter may again come up before us in appeal. The judiciary is already
H overburdened with heavy arrears, and we should not take a view which
   KANNAN (DEAD) BY LRS. v. V.S. PANDURANGAM                        595
                (DEAD) BY LRS.
would add to the arrears.                                                 A
      14. In our opinion, the judgment of the High Court should only be
set aside on the ground of non compliance with Section 100(4) if some
prejudice has been caused to the appellant before us by not fonnulating
such a substantial question oflaw.
                                                                          B
      15. In the present case, we agree with the view taken by the High
Court that the defendant appellant has not been able to establish that the
ingredients of plea of adverse possession (nee vi, nee clam, nee preeario)
had been established by the defendant-appellant. Hence there is no force
in these appeals which are accordingly dismissed. No costs.                c
      16. Nonnally, we grant six months' time to the tenant to vacate the
residential premises but looking to the fact that the appellants have been
in possession of the suit premises for a long time, therefore, as a special
case we grant to the appellants time till 31.12.2008 to vacate and hand D
over vacant physical possession of the suit premises subject to the
appellants' filing the usual undertaking before this Court within a period
of eight weeks from today.
RP.                                                  Appeal dismissed.