A) ABSTRACT / HEADNOTE

The judgment in Nazir Mohamed v. J. Kamala and Others is a significant exposition on the scope and limits of second appeals under Section 100 of the Code of Civil Procedure, 1908, and the interplay between declaration of title, recovery of possession, adverse possession, and limitation. The Supreme Court decisively reaffirmed that a second appeal is a statutory and restricted remedy, maintainable only when a substantial question of law arises. The Court held that the High Court gravely erred in interfering with concurrent and well-reasoned findings of the First Appellate Court without formulating or answering any genuine substantial question of law.

The judgment also clarifies that a decree for declaration of title does not automatically entitle the plaintiff to recovery of possession. The plaintiff must independently establish lawful entitlement to possession and must overcome the bar of limitation under the Limitation Act, 1963. The Court emphasised that possession in the assumed character of ownership, if uninterrupted for the statutory period, can mature into an indefeasible title, even if adverse possession is not pleaded in express terms.

Further, the Court explained the limited applicability of the maxim possession follows title and reiterated that limitation extinguishes the remedy as well as the right. The ruling restores doctrinal discipline to Section 100 CPC and serves as a caution against appellate overreach by High Courts in second appeals.

Keywords: Section 100 CPC, Substantial Question of Law, Second Appeal, Adverse Possession, Limitation, Declaration of Title, Recovery of Possession

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The judgment emerges from a long-drawn civil dispute concerning ownership and possession of immovable property situated in Tamil Nadu. The litigation history spans a trial, a first appeal, and two second appeals before the High Court, culminating in the Supreme Court’s intervention. The case provided the Court with an opportunity to restate the jurisprudential foundations governing second appeals after the 1976 amendment to Section 100 CPC.

The controversy arose in a context where documentary title was split, but possession was long and uninterrupted with one party. The plaintiff sought declaration of title and recovery of possession by asserting a landlord-tenant relationship, which failed for want of evidence. Despite partial success before the First Appellate Court, the plaintiff was denied possession on grounds of limitation and long enjoyment by the defendant.

The High Court, however, reversed this finding in second appeal without identifying any substantial question of law, thereby expanding its jurisdiction impermissibly. This compelled the Supreme Court to correct the jurisdictional transgression.

The judgment assumes importance not merely for resolving the inter-se dispute, but for reinforcing procedural discipline, preventing factual re-adjudication in second appeals, and clarifying how possession, limitation, and adverse title operate in property disputes.

D) FACTS OF THE CASE

The Appellant-Defendant claimed ownership of the suit premises on the basis of a registered sale deed dated 17.02.1938, executed in favour of his father. He asserted continuous possession as owner, reinforced by a registered Deed of Release dated 14.03.1966.

The Respondent-Plaintiff instituted a suit in 1994 seeking declaration of ownership, recovery of possession, arrears of rent, and future profits, alleging that the premises were originally let out to the defendant’s father. The plaint relied on a sale deed dated 17.09.1940 executed in favour of the plaintiff’s father by a court-auction purchaser.

The Trial Court dismissed the suit in entirety, holding that the plaintiff failed to prove title as well as tenancy. On appeal, the First Appellate Court meticulously examined Exhibits P1 to P3 and Exhibit D1 and concluded that each party owned a distinct half portion of the suit property.

However, the First Appellate Court denied recovery of possession to the plaintiff, noting that the defendant had been in possession since 1940 and that the plaintiff failed to prove permissive possession or tenancy.

Both parties preferred second appeals. The High Court dismissed the defendant’s appeal but allowed the plaintiff’s appeal, granting possession of half the property. This reversal, despite absence of any substantial question of law, became the core grievance before the Supreme Court.

E) LEGAL ISSUES RAISED

i. Whether the High Court could interfere with findings of fact in a second appeal under Section 100 CPC?
ii. Whether a decree of declaration of title automatically entitles recovery of possession?
iii. Whether long possession without express pleading of adverse possession bars recovery by limitation?
iv. Whether the maxim possession follows title applied in the facts of the case?

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsels for the Appellant submitted that no substantial question of law arose in either second appeal. It was argued that the High Court merely re-appreciated evidence, which is impermissible under Section 100 CPC.

It was contended that the plaintiff failed to establish tenancy or permissive possession, and therefore could not seek recovery of possession. Reliance was placed on Baba Kartar Singh v. Dayal Das to assert that the plaintiff must succeed on the strength of his own case.

It was further argued that the suit for possession was barred by limitation under Articles 64 and 65 of the Limitation Act, 1963, given uninterrupted possession of over 28 years.

G) RESPONDENT’S ARGUMENTS

The counsels for the Respondent submitted that once declaration of title was granted, possession ought to follow. It was argued that the defendant never pleaded adverse possession in specific terms and hence could not defeat the plaintiff’s claim.

The High Court’s reasoning was defended on the ground that denial of possession despite declaration amounted to inconsistency.

H) RELATED LEGAL PROVISIONS

i. Section 100, Code of Civil Procedure, 1908
ii. Articles 64 and 65, Limitation Act, 1963
iii. Section 3, Limitation Act, 1963

I) JUDGEMENT

The Supreme Court allowed the appeals and restored the judgment of the First Appellate Court. It held that formulation of a substantial question of law is mandatory and that failure to do so vitiates the High Court judgment.

The Court reiterated that findings of fact, even if erroneous, are not open to challenge in second appeal. The High Court wrongly assumed contradiction where none existed and misapplied the concept of mesne profits.

The Court further held that a decree of possession does not automatically flow from a declaration of title. The plaintiff must establish lawful entitlement and overcome limitation.

It was emphasised that long possession as owner, even if not pleaded in express words as adverse possession, can operate substantively as such. The plaintiff’s pleadings were conspicuously silent on limitation.

The High Court’s interference was thus held to be jurisdictionally unsustainable.

a) RATIO DECIDENDI

The existence and formulation of a substantial question of law is a sine qua non for entertaining a second appeal under Section 100 CPC. Re-appreciation of evidence or interference with concurrent findings of fact is impermissible.

A decree for declaration of title does not ipso facto entitle recovery of possession. The plaintiff must independently establish possession within limitation.

Long, continuous possession in the assumed character of ownership extinguishes the true owner’s right if not asserted within limitation.

b) OBITER DICTA

The Court observed that High Courts must exercise restraint and avoid transforming second appeals into third rounds of factual adjudication. Procedural discipline is integral to justice delivery.

c) GUIDELINES

i. High Courts must mandatorily formulate substantial questions of law.
ii. Second appeals cannot be decided on equitable considerations.
iii. Limitation must be examined even if not pleaded.
iv. Declaration and possession are distinct reliefs.

J) REFERENCES

a) Important Cases Referred
i. Sir Chunilal v. Mehta & Sons Ltd., [1962] Supp SCR 549
ii. Santosh Hazari v. Purushottam Tiwari, [2001] 1 SCR 948
iii. Hero Vinoth v. Seshammal, [2006] 2 Supp SCR 79
iv. Peri v. Chrishold, (1907) PC 73

b) Important Statutes Referred
i. Code of Civil Procedure, 1908
ii. Limitation Act, 1963