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Andhra High Court · body

2007 DIGILAW 822 (AP)

Alla Seshukumar v. Alla Radha Krishna

2007-08-30

G.YETHIRAJULU

body2007
JUDGMENT:- This appeal is preferred by the plaintiffs in a.s. No.185 of 1992 on the file of the District Munsiff, Gannavaram. 2. The suit was filed for perpetual injunction in respect of two items of property covered by the plaint schedule. The first plaintiff is the wife and the second plaintiff is the minor son of the defendant. It is not disputed that the defendant executed a registered gift deed on 3.4.1987 in respect of item No.1 in faovur of the first plaintiff. It is also not disputed that the defendant executed a partition deed on 9.4.1987 allotting item No.2 to the second plaintiff represented by the first plaintiff. The plaintiffs asserted that they are in possession and enjoyment of the property. 3. The defendant contended that the gift deed was not acted upon and he executed a revocation deed on 19.11.1992 revoking the gift and that the gift of a joint family property is void, therefore, the first plaintiff is not entitled for injunction in respect of item No.1. Though the defendant admits that item No.2 was allotted to the second plaintiff towards his share, he claimed that he is the natural guardian of the minor boy and the first plaintiff cannot act as a guardian without orders of the Court, therefore, he requested to dismiss the suit in respect of both the items of the suit. 4. The trial Court, after considering the oral and documentary evidence, dismissed the suit by refusing to grant permanent injunction in favour of the plaintiffs. The plaintiffs, being aggrieved by the judgment of the trial Court, preferred A.S. No.3l of 1997 before the learned Senior Civil Judge, Gudivada and the learned Senior Civil Judge allowed the appeal in part in respect of item No.2 of the plaint schedule and consequentially decreed the suit in respect of item No.2 and confirmed the judgment of the lower Court in respect of item No.1. The defendant did not prefer any appeal against the judgment of the Appellate Court, whereas the plaintiffs preferred the present appeal in respect of item No.1 by raising the following substantial questions of law: 1. Whether in a suit for an injunction simplicitor, complicated questions of the title can be gone into without any of the parties questioning the same and paying requisite Courts ~ fees. 2. Whether in a suit for an injunction simplicitor, complicated questions of the title can be gone into without any of the parties questioning the same and paying requisite Courts ~ fees. 2. Whether in a suit for injunction having given a finding that the 1 plaintiff is in possession of the property, the Court below erred in dismissing the suit particularly more so when the said possession has been admitted to have been given by the defendant. 3. Whether it is proper for the Court below to go into the validity of the gift deed which is not the relief sought for by the plaintiffs: 5. The defendant admitted the execution of the gift deed in favour of the first plaintiff in respect of item No.1. It was executed on 3.4.1987. The terms of the gift deed are very clear that the document was executed without any reservation and the possession of the land was also delivered to the done on the same day. The first plaintiff is no other than the wife of the defendant. There was estrangement between them and they were living separately since several years prior to the gift deed. The first plaintiff asserted that she is in possession of the property from the date of the gift deed by paying land revenue to the Government and by enjoying the same. Both the Courts, after considering the evidence of the plaintiffs and the defendant, accepted that the delivery of possession was given to the first plaintiff in terms of EX.A 1 gift deed. But they refused to grant decree in favour of the first plaintiff by holding that, as it was a joint family property, the gift of a joint family property is void, therefore, the first plaintiff is not entitled for the decree. 6. The defendant contended that' he got item No.1 in partition with his brothers and he executed a gift deed in favour of the first plaintiff on 3.4.1987 and it was recited in the gift deed that the delivery of possession was given to the first plaintiff after delivering the gift deed to her. 7. 6. The defendant contended that' he got item No.1 in partition with his brothers and he executed a gift deed in favour of the first plaintiff on 3.4.1987 and it was recited in the gift deed that the delivery of possession was given to the first plaintiff after delivering the gift deed to her. 7. In Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker, (1997) 2 SCC 255 , the Supreme Court while considering the scope of Sections 122 and 123 of the Transfer of Property Act, held that in the process of the execution of the gift deed, acceptance of the gift and delivery of the property together make the gift complete. Thereafter, the donor is divested of his title and the done becomes the absolute owner of the property. The trial Court, by relying on the judgment of the Supreme Court in Ammathayee Ammal v. Kumaresan, AIR 1967 SC 569 , (wherein the Supreme Court observed that the gift deed in respect of ancestral immovable property is not valid) held that PWI, who is not having any right or title over the suit property, is not entitled for the relief of injunction. The Appellate Court also observed that the gift by a coparcener of the joint family property is void, therefore, he agreed with the finding of the trial Court that EX.A 1 gift deed is a void document and the first plaintiff is not entitled to the relief of permanent injunction in respect of item No.1. The Appellate Court further observed that the first plaintiff sought for injunction by contending that the defendant is the absolute owner of item No.1. If a person files a suit for permanent injunction basing on previous possession, a decree can be grated in his favour. But the first plaintiff filed the suit against the defendant claiming title to item No.1. As the first plaintiff has no title to item No.1 by virtue of void gift, she is not entitled for the relief of permanent injunction. 8. The learned Counsel for the appellants submitted that the plaintiffs filed the suit for perpetual injunction simplicitor. They have not filed the suit for declaration of title or to decide the validity of the gift deed. In an injunction suit the Courts are not supposed to make an enquiry regarding the title of the property to give a finding on title dispute. They have not filed the suit for declaration of title or to decide the validity of the gift deed. In an injunction suit the Courts are not supposed to make an enquiry regarding the title of the property to give a finding on title dispute. When it is not a suit for declaration of title, the Courts below went wrong in giving findings about the validity of the documents and deciding the title of the first plaintiff. 9. The learned Counsel for the appellants further submitted that when the possession is established by the first plaintiff as on the date of filing of the suit and when there is a prima facie title in support of the plaintiffs, the suit can be decreed even against a real owner, therefore, the Courts below went wrong in refusing to grant the injunction in respect of item No.1. In support of his contention, the learned Counsel relied on the following judgments: In Karthiyayani Amma v. Govindan, AIR 1980 Ker. 224, the Kerala High Court held that: "A person in possession of immovable property can sustain a suit for injunction against the rightful owner preventing him from disturbing his possession. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of law and pray the equitable relief of injunction to protect his possession. " From the above judgment, it is clear that when a rightful owner cannot eject the plaintiff and if he threatens the peaceful possession of the plaintiffs, he can approach the Court of law and pray for the equitable relief of injunction to protect his possession. In M.K. Setty v. M.V.L Rao, AIR 1972 SC 2299 , in Para 5 of the judgment the Supreme Court held: "The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. In M.K. Setty v. M.V.L Rao, AIR 1972 SC 2299 , in Para 5 of the judgment the Supreme Court held: "The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial Court and the first appellate Court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding Courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in our opinion, the High Court was not right in interfering with the judgment of the trial Court as affirmed by the first appellate Court regarding relief 2." In the case covered by the above decision, the plaintiff claimed to have purchased the suit property from a third party and he is in possession of the property. Before the sale in his favour, his vendor was in possession of the property. Sometime after the purchase made by him, the plaintiff came to know that the survey number was not correctly mentioned in the sale deed in his favour. But, later a rectification deed was obtained from the son of the vendor who died by that time and the revenue records were changed in his name. Subsequently, the defendant purported to purchase the suit property from the son of the plaintiff's vendor. In those circumstances, the Supreme Court gave the above finding. In Rame Gowda v. M. Varadappa Naidu, 2004 (2) ALD 31 (SC) = 2004 AIR SCW 4205, the Supreme Court held that: "So far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injunction even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession": (i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession. Therefore when title of either party was not proved and plaintiff was found to be in settled possession he would be entitled to relief of inj unction restraining defendant from interfering with his possession." 10. The above legal position makes it clear that when a person, who has no title over the property, is in settled possession of the property, he is entitled for injunction even against the true owner and the true owner cannot forcibly evict him from the property. 11. In the present case, the first plaintiff is no other than the wife of the defendant. Irrespective of the validity of the gift, she entered into possession through EX.A I gift deed in 1987 and she continues to be in possession of the property till the date of filing of the suit. As the first plaintiff continues to be in possession of the property for a long period by taking possession under EX. Al gift deed and as the property was said to be the joint family property of the second plaintiff and the defendant, the Courts below went wrong in observing that the first plaintiff took possession of the property under a void gift, therefore, the first plaintiff is not entitled for injunction. 12. Whether the gift is valid under law, whether the gift was cancelled under the revocation deed and whether the defendant continues to be the owner of the property are the questions to be decided in separate proceedings for declaration of title etc. 12. Whether the gift is valid under law, whether the gift was cancelled under the revocation deed and whether the defendant continues to be the owner of the property are the questions to be decided in separate proceedings for declaration of title etc. As the defendant did not file either the revocation deed or any scrap of paper to show that either he took redelivery of the property or that he is continuing in possession of the property without delivery to the first plaintiff, the first plaintiff is entitled for the relief of injunction in respect of item No.1 also. The Courts below went on deciding the question of title without prayer for the same and gave findings in respect of title, therefore, I am inclined to hold that the findings regarding the title are not binding on the plaintiffs as the suit was only for perpetual injunction. 13. After going through the entire material available on record, I find that there is some perversity in the judgments of the Courts below and they erred in going into complicated questions of title in a suit for injunction simplicitor and in dismissing the suit in respect of item No.1 of the plaint schedule, while finding that the first plaintiff is in possession as on the date of filing of the suit and also erred in going into the validity of the gift deed, which is not the relief sought for by the first plaintiff, therefore, I am inclined to set aside the Judgments of the Courts below in respect of item No.1. 14. In the result, the second appeal is allowed by setting aside the judgments of the Courts below. The plaintiffs are entitled for injunction in respect of item No.1 of the plaint schedule also. Therefore, O.S. No.l85 of 1992 is decreed as prayed by granting injunction to the plaintiffs in respect of plaint schedule items 1 and 2. No costs.