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2019 DIGILAW 1088 (JHR)

Kapildeo Narayan Agarwal v. Seba Agarwal

2019-05-18

S.N.PATHAK

body2019
JUDGMENT : S.N. Pathak, J. Heard the parties. 2. This appeal has been preferred against the judgment and decree dated 29.09.2018 (decree sealed and signed on 12.10.2018), passed by learned District Judge-I, Rajmahal in Title Appeal No. 16 of 2017, confirming the judgment and decree dated 30.06.2017 (decree sealed and signed on 10.07.2017), passed by learned Trial Court in Original Suit No. 13 of 1986. 3. The case of the plaintiff before the learned Trial Court was that the original plaintiff, late Gour Narayan filed Title Suit No. 13 of 1986 seeking reliefs for grant of decree of mandatory injunction directing the defendants to vacate the suit property. The plaintiff had also sought for grant of permanent injunction for restraining the defendants/ appellants from dispossessing the plaintiffs/ respondents from the suit property. It had been further pleaded that one Dharm Narayan Das (father of the original plaintiff i.e. Gour Narayan) was a renowned Lawyer and had acquired various landed properties out of his income from legal profession and the present suit property was also a part of his self-acquired properties. The original plaintiff had elaborated his case by making specific pleading that late Dharm Narayan Das had executed a registered “Deed of Family Settlement” on 01.12.1950 (Ext. 4) and through the said settlement deed he allotted his self-acquired properties to his sons, wife as well as made provision for charitable purposes. In the aforementioned family settlement, Schedule-“Ch” was allotted to Shanti Bala Dasi (wife of late Dharm Narayan Das and mother of the original plaintiff, late Gaur Narayan). Thereafter, the said Shanti Bala Dasi, out of her love and affection, voluntarily executed the Gift Deed on 26.07.1982 (Ext. 7) in favour of her youngest son namely, late Gour Narayan, the original plaintiff, who accepted the same. Subsequently, on the basis of the aforesaid Gift Deed, the original plaintiff got the said property mutated in his name started paying the rent to the State of Bihar till his death and thereafter, the present plaintiffs/ respondents are paying rent and getting the rent receipts in lieu thereof. In view of the aforesaid facts, it is crystal clear that the that plaintiffs/ respondents are deriving their title over the suit property, on the basis of a registered Gift Deed duly executed by the title holder, which is a registered instrument and has not been challenged by the defendants/ respondents till date. In view of the aforesaid facts, it is crystal clear that the that plaintiffs/ respondents are deriving their title over the suit property, on the basis of a registered Gift Deed duly executed by the title holder, which is a registered instrument and has not been challenged by the defendants/ respondents till date. In this background, since the instrument through which the plaintiffs are deriving their title has not been challenged, their title was not clouded as such having perfect right, title and possession over the suit property. 4. On the other hand, by filing written statements, the defendants/ appellants had contested the case before the learned Trial Court. It had been pleaded by the defendants/ appellants that the suit property was a joint family property acquired under the Kartaship of common ancestor, late Dharm Narayan Das. It had further been pleaded that Family Settlement Deed dated 01.12.1950 was not valid and operative and it was a sham document and hence, the donor, Shanti Bala Dasi, had no right to execute the Deed of Gift dated 26.07.1982, in favour of the original plaintiff, late Gour Narayan. The original defendant No. 1 had also made a case of adverse possession for claiming title over the suit property and thus, he had taken a contradicting stand in the way inasmuch as at one hand, he had pleaded that this belongs to the joint family and on the other hand, he had taken plea of acquiring the title by way of adverse possession. The defendants in para-18 of their 2nd written statements had made candid admission that they acquired knowledge about existence of registered Deed of Gift (Ext. 7) executed by Shanti Bala Dasi in favour of late Gour Narayan with respect to the suit property, when they received the copy of the plaint. 5. On the basis of rival pleadings of the parties, learned Trial Court had framed several issues, however, the main issue which arose for kind consideration was, as to whether the basis of title of plaintiffs/respondents on the strength of Deed of Gift (Ext. 7) had conferred title upon them or not. The learned Trial Court while considering the issues framed, had taken consideration of the respective cases pleaded by the parties as well as minutely scrutinized the admissible evidence oral, as well as documentary. 7) had conferred title upon them or not. The learned Trial Court while considering the issues framed, had taken consideration of the respective cases pleaded by the parties as well as minutely scrutinized the admissible evidence oral, as well as documentary. Further he had also discussed the case laws cited by the parties and on the basis of all these facts, he had recorded its finding that the defendants are in permissive possession over the suit property and the plaintiffs have been able to establish their title over the suit property, on the strength of the Gift Deed executed by one Shanti Bala Dasi. Consequently, the learned Trial Court decreed the suit in favour of the plaintiff and against the defendants/appellants. 6. Aggrieved by the order passed by the learned Trial Court, the defendants/appellants preferred appeal before the 1st Appellate Court, i.e. before the Court of learned District Judge, Rajmahal. For deciding the disputes between the parties, the learned 1st Appellate Court framed as many as five issues, in which issue No. 3 relates to gift deed and issue No. 4 relates to possession over the suit property. On deciding these two issues, learned 1st Appellate Court has held that since the plaintiff got his name mutated with respect to the suit property, after execution of the gift deed, the same amounts the acceptance of gift by the plaintiff and since the donor, Shanit Bala Dasi appeared before the Trial Court as witness and confirmed the execution of the Gift Deed, the same cannot be held as doubtful. The learned 1st Appellate Court has further held that the defendants are in permissive possession over the suit property and in the light of the aforesaid finding, the learned Appellate Court dismissed the appeal, against which the defendants/appellants have preferred the instant appeal. 7. This Hon’ble Court, vide its order dated 04.01.2019, admitted the instant Second Appeal for hearing, on the following substantial questions of law:- (I) Whether the learned Courts below have misconstrued the Gift Deed dated 26.07.1982 (Ext. 7), while holding the title of the plaintiff/ respondents over the scheduled property ? (II) Whether the suit filed by the plaintiffs/respondents for mandatory and permanent injunction, without seeking declaration of right and title over the scheduled land is maintainable in the eyes of law ? 8. Mr. 7), while holding the title of the plaintiff/ respondents over the scheduled property ? (II) Whether the suit filed by the plaintiffs/respondents for mandatory and permanent injunction, without seeking declaration of right and title over the scheduled land is maintainable in the eyes of law ? 8. Mr. Praveen Akhouri, learned counsel appearing for the defendants/ appellants, replying to issue No. 1, submits that requirement of Section 122 of the Transfer of Property Act is necessary, which makes acceptance of the donee mandatory in a Gift deed, which is not apparent on the face of the Gift Deed (Ext. 7), as not even the signature of the donee appears therein acknowledging acceptance of the gift deed. Further, the witnesses of the gift deed were not examined, who must have been examined to prove this factum of acceptance. Learned counsel further argues that acceptance must be clear and unequivocal, which nowhere appears either from the deposition or from the Gift Deed. The findings of the Courts below that the Gift Deed dated 26.07.1982, executed in favour of the original plaintiff is a valid document, will not bar the Hon’ble High Court from disturbing the said findings in Second Appeal, if the Courts below have misconstrued/ misinterpreted the provisions of law while vindicating the correctness of the gift deed. Learned counsel on the point of maintainability argues that from the averments in the written statement filed by the original defendants as well as other defendants that they have not only challenged the right and title of Shanti Bala Dasi over the suit land rather, have also disputed the right and title of the plaintiffs over the suit land on the strength of the wrong gift deed dated 26.07.1982 by challenging its due execution by the donor, whereby her signature/ thumb impression in the gift deed has been disputed, casting a cloud over the right, title of the plaintiff over the suit property. Further, it has been argued that the findings regarding possession by the Courts below although has been held to be permissive, the plaintiffs have not been found to be in possession of the suit property and as such, it can safely be concluded that defendants have disputed the right and title of the plaintiff over the suit property by challenging due execution of the gift deed and that the defendants were found in possession over the suit property although permissive one. Further, it was argued that if the title of the plaintiff is disputed by the defendant and casts cloud over the right, title of the plaintiff over the suit property, much less in absence of acceptance of the donee and since the defendants have denied the title of the donor, challenged the legality and genuineness of the gift deed and have asserted their own right, the suit itself was not maintainable. Learned counsel also places reliance on the judgment passed in case of Anathula Sudhakar Vs. P. Buchhi Reddy (dead) by LRS. & Ors., reported in (2008) 4 SCC 594 and also the judgment passed in case of Jharkhand State Housing Board Vs. Didar Singh and Anr., reported in 2018 (4) JLJR 394. Placing reliance on the aforesaid judgments, learned counsel submits that in the instant case also not only the defendants disputed the title of the plaintiff over the suit land rather, defendants being the own brother of the plaintiff could be said to have succeeded to the suit property although in part after the death of their mother, Shanti Bala Dasi and defendant in this case was found in possession over the suit property whereas in the earlier cases as referred to above, decided by the Hon’ble Apex Court, plaintiffs were already in possession over the suit property and even in that circumstances, the Hon’ble Apex Court held that mere injunction in absence of a prayer for declaration of right and title is not maintainable. It was specifically submitted that the word ‘dispute’ cannot be equated with the word ‘finding’. It was specifically submitted that the word ‘dispute’ cannot be equated with the word ‘finding’. Lastly, it was argued that the case in hand is squarely covered by the aforesaid judgments of the Hon’ble Courts and though there is a concurrent findings of both the Courts below regarding genuineness of the gift deed, questions of law is to be answered in favour of the appellants and the suit must be dismissed, as not maintainable in absence of any relief for declaration of right and title. To buttress his arguments, learned counsel places heavy reliance on the following judgments:- (I) Jharkhand State Housing Board Vs. Didar Singh [2018 (4) SCALE 641] (II) L.C. Hanumanthappa Vs. H.B. Shivakumar [ (2016) 1 SCC 332 ] 9. On the other hand, Mr. Ajay Kumar Singh, learned counsel appearing for the plaintiffs/ respondents argues that in the fact of the present case, no substantial question of law is involved for the simple reason that both the Courts below have recorded concurrent findings of fact in favour of the plaintiffs/ respondents. Learned counsel further argues that so far misconstruction of Gift Deed is concerned, the defendants/ respondents have raised this question before the Courts below to the extent that since word acceptance is not mentioned in the Gift Deed, it is not a valid Gift Deed and both the Courts below have considered this issue and after assigning the reasons, they have repelled the said part of contention raised by the defendants/ appellants. Both the Courts below after considering the evidences, particularly, the evidence laid by the donor herself in suit, have recorded a concurrent finding of fact that donor has admitted execution of registered Gift Deed out of her free will and in soundness of mind. Learned counsel further argues that in view of evidence available on record the plaintiff came in possession of the gifted property as well as he got the said property mutated in his name which was never objected by the defendants and still the plaintiffs/ respondents are paying rent and getting rent receipt. As such, acceptance part is also valid which validates the gift deed in all manners. Learned counsel further argued that so far validity of gift deed is concerned, relevant provision of Sections 122 and 123 of the Transfer of Property Act is to be seen. As such, acceptance part is also valid which validates the gift deed in all manners. Learned counsel further argued that so far validity of gift deed is concerned, relevant provision of Sections 122 and 123 of the Transfer of Property Act is to be seen. From bare reading of Sections 122 with 123 of the said Act, it emerges that acceptance of the gifted property is to be made during the life time of the donor and while he/ she is still capable of giving, and if the donor dies before acceptance, gift is void. In the present case, both the Courts below have recorded their findings that the donor has been examined in Title Suit No. 13 of 1986 and she has admitted execution of the gift deed and much prior to her evidence in the suit, the Donee got the land/ property mutated in his name and was paying rent to the State Govt. Thus, both the Courts below have rightly construed the gift deed (Ext. 7) as a valid gift deed. So far substantial question of law as framed by the Hon’ble Court is concerned, it has been argued by the learned Counsel that the learned Courts below on appreciation of material evidence available on record, have held that the registered instrument has come into existence in the year 1982 and they got knowledge after service of notice of Title Suit No. 13 of 1986 but they did not file any counter-claim seeking annulment of the said registered instrument. It was not the case of the appellants that they had challenged or sought annulment of the gift deed and hence, the learned Courts below have rightly held that the plaintiffs/respondents have got perfect right and title over the suit property and there is no misconstruction of the gift deed. So far as second substantial question of law with regard to maintainability of suit filed by the plaintiffs/ respondents for mandatory and permanent injunction without seeking declaration of right and title over the schedule land/property is concerned, it has been argued by the learned counsel that the same has got no force and no such question of law is involved in this appeal. Referring to several case laws cited by the learned counsel, it has been argued that it is now well settled principle of law that prayer for declaration of title will be necessary only if the denial of title by the defendant or challenge to the plaintiff raises a cloud on the title of the of the plaintiff to the property. Defendant is claiming title over the suit property on the basis of adverse possession thus he has not raised any issue which can be said to be an issue which would seriously cloud title of the plaintiff. As such, in this case since the source of title of plaintiff remained unchallenged, therefore, the plea taken by the defendants/ appellants did not raise cloud over the title of the plaintiffs. As such, the plaintiffs/ respondents were not required to seek declaration of his title and the suit filed by them for grant of mandatory injunction was very much maintainable. Thus, the second substantial question of law framed in this case has also got no substance and it has to be answered in negative. 10. To buttress his arguments, learned counsel places heavy reliance on the following judgments:- (I) Prem Singh & Ors. Vs. Birbal & Ors., [ (2006) 5 SCC 353 ] (II) Renikuntla Rajamma (D) by LRs. Vs. K. Sarwanamma [ AIR 2014 SC 2906 ] (III) Anathula Sudhakar Vs. P. Buchhi Reddy (dead) by LRS. & Ors., [ (2008) 4 SCC 594 ] 11. Having heard the parties and perusal the Lower Court Records and also the impugned judgments, this Court takes no other view than what has been taken by the learned Courts below. However, it would be apposite to place the relevant judgments of the Hon’ble Apex Court which precisely cover the instant case. 12. The Hon’ble Apex Court in case of Anathula Sudhakar Vs. P. Buchhi Reddy (dead) by LRS. & Ors., reported in (2008) 4 SCC 594 has held as under:- “12. On the contentions urged, the following questions arise for our consideration in this appeal: (i) What is the scope of a suit for prohibitory injunction relating to immovable property? (ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and injunction ? On the contentions urged, the following questions arise for our consideration in this appeal: (i) What is the scope of a suit for prohibitory injunction relating to immovable property? (ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and injunction ? (iii) Whether the High Court, in a second appeal under section 100 CPC, examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court? (iv) What is the appropriate decision? 14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. 21. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. 21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” The Hon’ble Apex Court in case of Gurnam Singh (D) by Lrs. & Ors. Vs. Lehna Singh (D) by Lrs., reported in (2019) SCC Online SC 374, has held as under:- 27. It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal. 28. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held : "Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise." 30. As observed hereinabove and as held by this Court in a catena of decisions and even as per Section 100 CPC, the jurisdiction of the High Court to entertain the second appeal under Section 100 CPC is confined only to such appeals which involve a substantial question of law. On going through the substantial questions of law framed by the High Court, we are of the opinion that the question of law framed by the High Court while deciding the second appeal, cannot be said to be substantial questions of law at all. The substantial questions of law framed by the High Court are as under :- "(i) Whether the Appellate Court can reverse the findings recorded by the learned trial court without adverting to the specific finding of the trial Court? (ii) Whether the judgment passed by the learned lower Appellate Court is perverse and outcome of misreading of evidence?" 35. Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264 , despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.” 13. Therefore, it can very comfortably be said that prayer for declaration of title will be necessary only if denial is made by the defendant or challenge is thrown to the plaintiffs’ right and title over the suit property. The cloud is only said to have cast when there is an apparent defects in his title over the suit property and when some prima facie right of third party is made out. The issue has been decided in the aforesaid judgments, wherein, it is held that since the title of the plaintiff was not seriously clouded, there was no need to file suit for declaration. In the instant case, the source of title of plaintiff remained unchallenged and as such, the plaintiffs were not required to seek declaration of their right and title. As such, the suit for grant of mandatory injunction was very much maintainable. The substantial questions of law as formulated at the time of admitting the instant appeal, are answered in negative. 14. As a sequel to the aforesaid observations and settled principles of law, no interference is warranted in the instant appeal, since it is a case of concurrent findings of the facts by the Courts below, which remained undisturbed and hence, in the instant appeal stands dismissed. 15. Pending I.As. if any, also stands disposed of. 16. Office is directed to send the LCR to the Court concerned at the earliest.