Pleading and Proof:
Plea of being tenant raised for the first time in second appeal:
First, the respondent (defendant) had not raised such plea in his written statement. In other words, the respondent did not set up such defense in the written statement.
Second, the Trial Court, therefore, had no occasion to frame any issue on such plea for want of any factual foundation in the written statement.
Third, the Trial Court and First Appellate Court, in these circumstances, had no occasion to record any finding on this plea either way.
Fourth, in the light of these three reasonings, the High Court ought to have seen that such plea really did not arise for consideration because in order that any question is involved in the case, the party concerned should lay its factual foundation in the pleading and invite finding on such plea.
Fifth, the High Court failed to see the case set up by the respondent in his written statement. As mentioned above, the defense of the respondent was that he had denied the appellant’s title over the suit shop and then set up a plea of adverse possession contending that he has become the owner of the suit shop by virtue of adverse possession, which according to him, was from time immemorial.
It was clear that the respondent never claimed that he was in possession of the suit shop as tenant of the appellant’s predecessor-in-title. On the other hand, the respondent had asserted his ownership right over the suit shop on the strength of his long adverse possession.
It is these issues, which were gone into by the two Courts and were concurrently decided by them against the respondent. These issues, in our opinion, should have been examined by the High Court with a view to find out as to whether these findings contain any legal error so as to call for any interference in second appeal. The High Court, however, did not undertake this exercise and rather affirmed these findings when it did not consider it proper to frame any substantial question of law. It is a settled principle of law that the parties to the suit cannot travel beyond the pleadings so also the Court cannot record any finding on the issues which are not part of pleadings. In other words, the Court has to record the findings only on the issues which are part of the pleadings on which parties are contesting the case. Any finding recorded on an issue de hors the pleadings is without jurisdiction.
Original plea of adverse possession:
First, the respondent did not adduce any evidence to prove that he was in possession of the suit shop as tenant of the appellant’s predecessor- in-title. In order to prove the tenancy between the respondent and the appellant’s predecessor-in-title (Vithal Dhopeshwarkar), it was necessary for the respondent to have filed rent receipts/lease deed etc. and also to have examined his landlord who, according to him, had inducted him as tenant in the suit shop. It was not done.
Second, Ex.P-15, which is sale deed of the suit shop nowhere recites that the respondent was in possession of the suit shop as tenant. All that it recites is that the respondent has been in possession of the suit shop. Such recitals, in our opinion, no way confer the status of a tenant on the respondent in the absence of any independent evidence adduced by him to prove the creation of tenancy. No benefit of Ex.P-15 could thus be taken by the respondent to claim the status of a tenant.
In the light of aforementioned reasons, we are of the considered opinion, that the High Court was not right in holding that the respondent was in occupation of the suit shop as tenant and that the remedy of the appellant was to file a civil suit to claim eviction under the Rent Laws. This finding, in our view, is contrary to the pleadings and evidence. It is also otherwise not legally sustainable for want of any evidence adduced by the respondent in support thereof.
In view of foregoing discussion, we are of the considered view that the Trial Court and First Appellate Court were justified in holding the appellant to be the owner of the suit shop, having purchased the same vide registered sale deed dated 20.09.1997 from its previous owner. It was also rightly held that the respondent was in possession of the suit shop as an encroacher and failed to prove his adverse possession over the suit shop. These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law.