Abdul Jabbar vs Ansi Josi

This Civil Miscellaneous Appeal is directed against the order of remand made by the lower appellate Court.

The plaintiff filed the suit in O.S.No.195 of 2003 seeking declaration of title and recovery of possession. According to the plaintiff, the properties, subject matter of the suit, belonged to Hayadhudeen, from whom, he had purchased on 07.05.2001 under a registered sale deed. Since, according to the plaintiff, the defendant trespassed when he was away in Bombay, he came to file the present suit for declaration of title and recovery of possession.

The suit was resisted by the defendant contending that the suit properties belonged to one Nagoor Meeran and through his power of attorney, namely, P.M.S.Thasan, he sold the suit properties to one Varghees on 25.11.1999. Therefore, the defendant had traced a different line of title to the suit properties. The defendant also chose to file an additional written statement contending that she had perfected title by adverse possession.

The learned trial Judge framed necessary issues and there was no issue relating to adverse possession before the trial Court.

It is settled law that a person cannot plead for both the title and adverse possession. If title and adverse possession are pleaded, the defendant, who pleads both, must choose any one of the same during trial. From the issues framed as well as evidence let in and the findings recorded by the trial Court, it is obvious that the defendant has not given up the plea regarding title.

I also do not find that the plea of title was given up by the defendant in order to raise a plea of adverse possession. Apart from that, the learned trial Judge has also considered the issue relating to adverse possession and has given a finding. Ultimately, the trial Court decreed the suit after recording a finding that the defendant has not proved the line of title claimed by her.

Aggrieved by the said decree, the defendant filed an appeal in A.S.No.87 of 2005.

The learned Appellate Judge without going into the question of title, held that the plea of adverse possession should have been considered by the trial Court. Upon such a finding, the learned Appellate Judge remanded the matter to the trial Court directing it to consider the issue relating to adverse possession.

Aggrieved by the order of remand, the plaintiff is before this Court by way of this appeal.

As already pointed out, the defendant has not elected to stand by the plea of adverse possession or the plea of title at the time of trial. Having pleaded title, it is not open to the defendant to plead adverse possession.

The learned Appellate Judge had not gone into the question of title. The appellate Court being a final Court of facts, has to go into title also. In fact, the fact that no issue was framed relating to adverse possession by the trial Court was totally overlooked by the Appellate Court, resulting in a wrong order of remand having been passed by the Appellate Court. Therefore, the order of remand is set aside and the lower appellate Court is directed to decide the appeal on merits and in accordance with law.

It appears that the first respondent in the appeal, namely, the defendant in the suit had sold the property to the respondents 2 and 3 pending the appeal and they have also been impleaded in this appeal as the respondents 2 and 3. The respondents 2 and 3 will be shown as the defendants 2 and 3 in the suit as well as the appellants 2 and 3 in the appeal in A.S.No.87 of 2005. The parties are directed to appear before the lower appellate Court on 01.06.2017 without any further notice from the lower appellate Court. The Registry is directed to transmit the records forthwith to the lower appellate Court.

In the result, this Civil Miscellaneous Appeal is allowed as above. No costs. Consequently, the connected miscellaneous petition is closed.