Ismailsha Bavasha v. Mahmadsha Chandsha — 1998 DIGILAW 265 (GUJ)

D. C. SRIVASTAVA, J. ( 1 ) THIS is defendants Second Appeal arising out of the following facts: the plaintiff filed Suit for permanent injunction restraining the defendants from causing obstruction in the plaintiffs peaceful possession over the disputed property. The disputed property consisted of a room and osari and also some open space. It was owned by the, father of the plaintiff, viz. Chandsha Ismailsha. The plaintiff, under some confusion, pleaded that either under the Gift Deed or in the nature of will his father gifted the property to him on 30. 8. 1932 and since then he is in possession over the same. Some portion was let out by the plaintiff. He was also permitting the persons of his community to collect at the time of Urs Ceremony of Dargah. Since the defendant attempted to interfere with the plaintiffs possession the Suit for injunction was filed. ( 2 ) THE defendant contested the Suit denying the plaintiffs ownership as well as possession over the disputed property. Execution of will dated 13. 8. 1932 was admitted by the defendants, but they denied that possession was delivered to the plaintiff after execution of the will. The defendants claiming to be sons and widow of deceased Bavasha chandsha pleaded that they have right in the suit property. When the will was executed the defendants No. 1 and 2 and Bavasha were minors. The plaintiff was given right to manage the suit property, but he was never made owner of the same nor exclusive possession was given to him by virtue of the will. ( 3 ) THE Trial Court found that the plaintiff failed to establish his ownership in the property. It further found that the plaintiff was not in possession rather the defendants were in possession of the suit property on the date of the suit. Consequently the Suit was dismissed. ( 4 ) AN Appeal was preferred. The Lower Appellate Court found that the plaintiff was in possession of the Suit property on the date of the Suit. Accordingly the Judgment and decree of the Trial Court was set aside and the Suit for permanent injunction was decreed with observation that the defendants are restrained from interfering with plaintiffs possession over the house except without due course of law. It is therefore this Second appeal. Accordingly the Judgment and decree of the Trial Court was set aside and the Suit for permanent injunction was decreed with observation that the defendants are restrained from interfering with plaintiffs possession over the house except without due course of law. It is therefore this Second appeal. ( 5 ) FOLLOWING substantial questions of law were formulated in this Appeal: (i) Whether on the facts and in the circumstances of the case, the first Appellate court committed a substantial error of law in passing decree for injunction in favour of the unsuccessful plaintiff in the Trial Court by trying the question of possession only when the parties were at issue on the question of ownership also ? (ii) Whether on the facts and in the circumstances of the case, the first appellate court committed a substantial error in law in not appreciating that between co-owners there cannot be any question of injunction as to possession unless the ouster is pleaded and proved ? ( 6 ) I have heard the learned Counsel for the parties at length. The Judgement of the two Courts below were also considered. It is a case of non-concurrent finding recorded by the two Courts below. The Trial Court found that the plaintiff failed to establish his ownership as well as possession over the disputed property. The Trial Court thus dismissed the Suit. The Appellate Court considered only the question of possession and not the ownership of the plaintiff. Dis-agreeing with the findings of the Trial Court of plaintiffs possession the lower Court found from the oral and documentary evidence that plaintiff succeeded in establishing the possession over the property. Accordingly the Suit was decreed and permanent injunction was granted in a qualified manner with observation that the defendants, if they feel have any right, can get the same adjudicated through the competent Court and till then they should not interfere with plaintiffs possession over the suit property, except in accordance with law. According to the Lower appellate Court the question of ownership was immaterial and no finding was given on plaintiffs ownership in the property. ( 7 ) THE plaint shows that the plaintiff was under some confusion whether the document dated 31. 1. 1932 is in the nature of Gift or will. The Trial Court, however, from the contents of the document concluded that it was will and not the Gift. ( 7 ) THE plaint shows that the plaintiff was under some confusion whether the document dated 31. 1. 1932 is in the nature of Gift or will. The Trial Court, however, from the contents of the document concluded that it was will and not the Gift. This finding has not been disturbed by the lower Appellate Court. Hence, further discussion will be made keeping in view the fact that the document relied upon by the plaintiff in support of his title and possession is will and not a Gift. ( 8 ) THE learned Counsel for the appellant contended that the lower Appellate Court has not recorded any findings on plaintiffs ownership in the disputed house. The learned counsel for the respondent, on the other hand, contended that the suit could be decided on the basis of possession and injunction could be granted to a person who was found to be in possession of the property except against the real owners. He, therefore, contended that the question of possession was the only question which required consideration of the lower Appellate Court and it committed no illegality in not giving finding of the plaintiffs ownership in the disputed property. He further contended that the findings recorded by the lower Appellate Court are based on proper appreciation of evidence on record. Hence this finding requires no interference and simply because the lower appellate Court disagreed with the findings of the Trial Court the High Court in Second appeal can not substitute its own finding from the evidence on record. ( 9 ) THE issue framed by the Trial Court revealed that Issue Nos. 1 and 2 related to plaintiffs ownership in the disputed house and the suit premises, which means osari and open land. The Trial Court found that the plaintiff failed in establishing his title over the house in Suit as well as suit premises. Inspite of this finding if the Appellate court wanted to reverse the same it should have given its own findings whether the plaintiff is owner of the suit house and Suit premises or not and if it proposed to disturb the finding of the Trial Court then it should have given the reasons for doing so and should have also set aside the finding of the Trial Court on plaintiffs ownership in the property. The lower Appellate Court was not justified in ignoring the question of ownership and proposing to decide the suit on the basis of possession only. No specific issue was framed regarding plaintiffs possession over the property. Even impliedly under Issue No. 4 it cannot be said that only plaintiffs possession was to be determined by the two Courts below. Thus, in the first place the lower Appellate Court committed illegality in not deciding the plaintiffs ownership in the suit property. ( 10 ) ON the question of possession the learned Counsel for the respondent contended that since it is established from the record and it was rightly held by the lower Appellate court that the plaintiff was in possession on the date of the suit, permanent injunction of the nature granted by the lower Appellate Court is perfectly justified. It was vehementally argued by the learned Counsel for the respondent that a person who is successful in proving his exclusive possession over the suit property is entitled to claim permanent injunction against a person who proposes to disturb his possession. Reliance was placed upon few cases. In Ramshri Mahavir vs. Girdharilal Bholanath Agarwal, reported in 1970 (Vol. XI) glr. 971 it was laid down that once it is established by the plaintiff that he is in exclusive possession and it is admitted by the defendant that he is in such possession and injunction restraining the defendant from dispossessing the plaintiff by force must issue as a matter of course. More readily if the defendant persists in asserting his claim that he had a right to take law in his own hand and forcibly dispossess the plaintiff. In my view this case is distinguishable on fact. It was a case where the plaintiff established his exclusive possession and his possession was admitted by the defendant. Still the defendant by show of force insisted to dispossess the plaintiff. It was on these facts held that injunction should be granted in such cases. ( 11 ) THE case of Chhedilal vs. Chhotelal, reported in AIR 1951 All. 199 is likewise distinguishable on facts. The question involved in this case was whether permanent injunction can be granted against co-owner of joint land. It was on these facts held that injunction should be granted in such cases. ( 11 ) THE case of Chhedilal vs. Chhotelal, reported in AIR 1951 All. 199 is likewise distinguishable on facts. The question involved in this case was whether permanent injunction can be granted against co-owner of joint land. The Full Bench of the Allahabad high Court laid down that each case has to be decided upon its peculiar facts and it will be left to the Court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies and the Courts while exercising such discretion will be guided by consideration of justice equity and good conscience. ( 12 ) IN the case of M. K. Shetti vs. Laxminarayan Rao, reported in AIR 1972 SC 2299 also the facts were different. It was held by the Apex Court that the plaintiff who is found to be in possession of suit property can, on the strength of his possession, resist interference from defendant who has no better title than the plaintiff and can get injunction restraining the defendant from disturbing his possession. Thus, even according to this verdict the question of title once alleged, cannot be ignored and it should be seen who could establish better title over the disputed property and who could establish possession over the same. ( 13 ) HAD it been a case of permanent injunction only on the ground of possession the situation would have been otherwise. If the plaintiff succeeded in establishing possession or exclusive possession and the defendant failed to establish his possession the Suit could be decreed, but in this case both the parties were claiming possession over the property. The finding of the two Courts below are non-concurrent on question of possession. It has therefore to be seen whether the findings on possession recorded by the lower Court are perverse or the same are based on proper appraisal of evidence on record. ( 14 ) ACCORDING to the learned Counsel for the respondent the findings of the Trial court are based on proper appraisal of evidence on record. If this is so then normally the high Court should not interfere with the finding of the lower Appellate Court, no matter such findings are non-concurrent and the High Court can not substitute its own findings from the evidence on record. If this is so then normally the high Court should not interfere with the finding of the lower Appellate Court, no matter such findings are non-concurrent and the High Court can not substitute its own findings from the evidence on record. Re-appraisal of evidence in Second Appeal is permitted only when it is shown that the findings recorded by the lower Appellate Court are perverse. The finding is said to be perverse when it is based upon inadmissible evidence or it is based on no evidence rather it is based on surmises and conjectures. ( 15 ) THE Judgment of the Trial Court shows that it had also considered the oral and documentary evidence on record. The learned Counsel for the respondent contended that on the basis of will which is not disputed the plaintiffs possession over the property is established. ( 16 ) IN my opinion the lower Appellate Court has not properly considered the documentary evidence for upholding the plaintiffs possession. The first document, viz. , the will dated 31. 1. 1932 was considered to be a material document to establish the plaintiffs possession. However, the will could have operated only upon the death of the testator. Since the will was executed in the year 1932 it could not be conclusively held that on the date of the Suit, viz. , in 1975 the plaintiff was necessarily in possession over the suit property under the will. ( 17 ) NEXT document is Ex. 25, notice issued by Veraval Municipality against the plaintiff for recovery of tax. This notice was issued only few months before institution of the Suit. There is no evidence from the plaintiffs side that in response to this notice he actually paid the taxes to the municipality. The next document is copy of notice dated 24. 12. 1968 issued by Surveyor Ex. 28. This is also no conclusive evidence of plaintiffs possession. Ex. 26 is a copy of City Survey record in which plaintiff was shown to be managing the property of Chandsha. The Manager can not claim to be in exclusive possession of the property to the exclusion of the defendant who was also asserting actual possession. 28. This is also no conclusive evidence of plaintiffs possession. Ex. 26 is a copy of City Survey record in which plaintiff was shown to be managing the property of Chandsha. The Manager can not claim to be in exclusive possession of the property to the exclusion of the defendant who was also asserting actual possession. Certified copy of Judgment in Civil Appeal No. 25/93 arising out of Suit No. 26/92 also did not give indication about plaintiffs possession over the property because the property in suit was not specifically mentioned in this document. It is thus clear that documentary evidence was not properly considered by the lower Appellate Court. ( 18 ) LIKEWISE oral evidence was also not properly considered by the lower Appellate court. If it wanted to disagree with the findings of the Trial Court on question of possession it should have specifically set aside the findings of the Trial Court on the point, but that has not been done. ( 19 ) FOR the reasons given above the Judgment and Decree of the lower Appellate court can not be sustained. Since the lower Appellate Court has not properly decided the appeal involving material question, viz. , question of plaintiff s title and ownership in the property and has likewise improperly decided the question of plaintiffs possession over the disputed property, there is no option but to remand the Appeal to the Lower appellate Court. The result therefore is, that the Appeal succeeds. ( 20 ) THE Appeal is allowed. The Judgment and Decree of the lower Appellate Court is set aside. Civil Appeal No. 99 of 1976 is remanded to the learned Joint District Judge, junagadh with a direction that he shall decide afresh the question of plaintiffs ownership in the disputed property and shall also decide afresh the question of possession with clear discussion about relevancy of documentary evidence on the point filed by the parties. Oral evidence shall also be re-assessed and thereafter the Appeal shall be decided afresh in light of the observation made in the body of the Judgment and in accordance with law. The parties are not permitted to adduce additional evidence before the lower Appellate Court. The matter shall be decided on the evidence already on record. The parties shall bear their own cost of this Appeal. .