RAMA KT. BARMAN (DIED) THR. LRS.versusMD. MAHIM ALI & ORS.

                  [2024] 8 S.C.R. 727 : 2024 INSC 644

                   Rama Kt. Barman (Died) Thr. Lrs.
                                 v.
                       Md. Mahim Ali & Ors.
                       (Civil Appeal No. 3500 of 2024)
                                21 August 2024
           [Bela M. Trivedi* and Satish Chandra Sharma, JJ.]

                            Issue for Consideration
       Matter pertains to the correctness of the order passed by the
       High Court in second appeal wherein it created a new case for
       the party, framed the issues and decided them without following
       the procedure contemplated u/Ord. XLI.

                                  Headnotes†
       Code of Civil Procedures, 1908 – Ord. XLI – Appeals from
       appellate decree – Procedure contemplated u/Ord. XLI –
       Compliance – High Court in second appeal framed additional
       substantial questions of law, which were not raised by any of
       the parties before the courts below and allowed the appeal
       without giving any opportunity of leading the evidence on
       the additional issues framed – Correctness:
       Held: Ord. XLI would apply to the appeals from the appellate
       decrees also, as contemplated in r. 1, Ord. XLII – As per Ord.
       XLI r. 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 –
       Furthermore, as per r. 27 Ord. XLI, the appellate court may allow
       evidence or document to be produced or witness examined, after
       recording the reasons for such admission of evidence – However,
       the appellate court cannot create a new case for the party, frame
       the issues and decide the issues without following the procedure
       contemplated u/Ord. XLI – On facts, the High Court in the second
       appeal had framed one substantial question of law and thereafter,
       three more substantial question of law, and in all framed four
       additional questions of law – None of the said substantial questions
       of law formulated by the High Court were either raised before the
       trial court or the appellate court as also none of parties were given


* Author
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       any opportunity of leading the evidence on the said issues – 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 – In view
       thereof, without examining the merits of the case, the impugned
       judgment and decree passed by the High Court in the Second
       Appeal set aside, and matter remanded to the High Court for
       deciding the same afresh and in accordance with law. [Paras 11-16]

                                  List of Acts
       Code of Civil Procedure, 1908; Assam (Temporary Settled Areas)
       Tenancy Act, 1971.

                               List of Keywords
       Appeals from appellate decree; Procedure contemplated u/Ord.
       XLI CPC; Appellate court; Create new case for the party; Second
       appeal; Substantial question of law; Additional questions of law;
       Opportunity of leading the evidence; Appellate stage; Pleadings
       of the parties.

                              Case Arising From
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3500 of 2024
       From the Judgment and Order dated 07.04.2015 of the High Court
       of Gauhati in RSA No. 74 of 2006.
                           Appearances for Parties
       Ms. Kavya Jhawar, Ms. Nandini Rai, Ms. Sneha Kalita, Advs. for
       the Appellants.
       Azim H. Laskar, Bikas Kar Gupta, Ms. Anamika Pandey, Chandra
       Bhushan Prasad, Advs. for the Respondents.
                  Judgment / Order of the Supreme Court

                                   Judgment
       Bela M. Trivedi, J.
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
[2024] 8 S.C.R.                                                           729

       Rama Kt. Barman (Died) Thr. Lrs. v. Md. Mahim Ali & Ors.


     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: -
           “1. Whether the suit is barred by limitation?
           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: -
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            “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, 1971?”
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
[2024] 8 S.C.R.                                                         731

       Rama Kt. Barman (Died) Thr. Lrs. v. Md. Mahim Ali & Ors.


     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
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       leading the evidence on 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.

       Result of the case: Appeal allowed.



       †
           Headnotes prepared by: Nidhi Jain