Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2860 OF 2009
(Arising out of SLP(C) No. 13568 of 2006)
KATLA MUTHYAL NAIDU ... Appellant(s)
Versus
KOTHAPALLE VENKATAPPA NAIDU AND ORS. ... Respondent(s)
J U D G M E N T
Dr.ARIJIT PASAYAT,J.
Leave granted.
The controversy in the present appeal lies within a narrow compass. The
plaintiff filed a second appeal in terms of the Section 100 of the Code of Civil
Procedure, 1908, (in short the 'Code') questioning the reversal of the judgment and
decree in O.S. No. 243/1997 passed by a learned Principal Junior Civil Judge,
Puttur, by learned Senior Civil Judge, Puttur in AS No. 25/2002. The second appeal
was dismissed primarily on the ground that there was no plea of adverse possession
anywhere in the plaint. It was noted that on examination of the plaint the only
allegation made in the plaint was that the defendants are trying to disposess the
plaintiff.
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Learned counsel for the appellant brought to our notice that the
averments in the plaint at paras 2 and 4 which read as follows:
“2: The plaintiff submits that over since the time of his
father for more than 60 years, plaintiff and his family members
have been in continuous, peaceful possession and enjoyment of the
schedule property exercising absolute rights over the same. The
plaintiff has been raising rain-fed crops in the schedule property.
The plaintiff thus has perfected his title even by adverse possession
also.
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4: The plaintiff further submits that he is a small farmer
and as a matter if state policy the government is not collecting any
kist for the schedule property. The plaintiff further submits that as
stated supra to the knowledge of the defendants, the plaintiff and
his family members have been in continuous, open, peaceful and
uninterrupted possession and enjoyment of the plaint schedule
property.”
A bare reading of the averments shows that the conclusion of the High
Court that there are no specific pleas relating to adverse possession are factually
incorrect. Therefore, we set aside the impugned judgment of the High Court
and remit the matter to it for fresh
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consideration in accordance with law.
An application for intervention has been filed by one Chekru
Govinddaswamy (I.A No. 3) seeking impleadment on the ground that he has
st
purchased property on 21 March, 2005. Learned counsel for the appellant
opposed the petition stating that the applicant cannot be treated to be a pendente
lite purchaser and the doctrine of lis pendense would not apply to such a case.
We do not consider it necessary to express any opinion in that regard. If
an application is filed before the High Court which has to hear of the second appeal,
the application shall be considered it is proper perspective.
The appeal is allowed to the aforesaid extent with no order as to costs.
...................J.
(Dr. ARIJIT PASAYAT)
....................J.
((ASOK KUMAR GANGULY)
New Delhi,
April 27, 2009.