Summary
The trial and first appellate courts decreed possession against an occupier whose adverse-possession defence failed. The High Court instead treated him as a tenant on second appeal, although he had not pleaded tenancy. The Supreme Court rejected that approach and restored the concurrent decrees.
Issues
- Whether the High Court could decide a second appeal on an unpleaded tenancy theory.
- Whether a sale-deed recital recording possession established tenancy.
Held
- A second appeal is heard on formulated substantial questions of law. An additional substantial question may be framed with reasons if it arises in the case; a general question did not justify disregarding the undisturbed concurrent findings here. (¶¶ 17–24, 33)
- The defendant denied the plaintiff’s title and claimed ownership by adverse possession, never tenancy. There was no factual foundation, issue or finding on tenancy below. Parties and the court could not travel beyond the pleaded controversy to decide the suit on that new basis. (¶ 25–28)
- The sale deed merely recorded the defendant’s possession and did not describe tenancy. No independent evidence establishing a tenancy was produced. The High Court’s conclusion was unsupported by both pleadings and evidence; the concurrent ownership and encroachment findings warranted restoration. (¶ 29–34)
Result
Appeal allowed; High Court judgment set aside and trial court and first appellate court decrees restored, including possession and mesne profits.