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2019 DIGILAW 2424 (BOM)

Parmanand Gopalrao Kesari (Dead) v. Dilip

2019-10-22

MANISH PITALE

body2019
JUDGMENT : Manish Pitale, J. The original plaintiff has filed this second appeal challenging judgment and order dated 03/08/2015 passed by the Court of Principal District Judge, Akola (Appellate Court), whereby appeal filed by the respondents (original defendants) was allowed and decree passed in favour of the appellants was set aside. 2. The predecessor of the appellants filed a suit for permanent injunction in respect of vacant plot bearing Plot No.91, Nazul Sheet No.56 in an area called Pensionpura, Sindhi Camp, Akola, Maharashtra. It was claimed by the said plaintiff that the aforesaid plot was granted to him by Ex-Serviceman Cooperative Housing Society, Akola, as he was an ex-serviceman himself, by a registered lease deed dated 27/02/1974, pursuant to which, a certificate was issued by the society being transferee share certificate No.40 in the name of the said plaintiff regarding the said plot. It was claimed that a house was constructed on the said plot, which later collapsed due to its dilapidated condition. But, the said plaintiff continued in peaceful possession of the said plot. In the plaint itself, it was stated that although the respondents (original defendants) had no concern with the said plot, the name of the husband of respondent No.4 (original defendant No.2) was recorded in the record of rights in respect of the said plot as a lease had been granted earlier by the same society in his favour. It was claimed that the lease was not acted upon and that therefore, such an entry in the record of rights was of no consequence. It was further claimed that on 02/04/2005 the respondents sought to disturb possession of the original plaintiff in the said plot by seeking to remove fencing erected by the original plaintiff. It was claimed that a Police complaint was made by the original plaintiff and that the respondents also lodged a complaint, but the Police did not take cognizance of the said complaints. It was stated that the cause of action arose on 02/04/2005 and on that basis the suit was filed on 04/04/2005 seeking permanent injunction. 3. The predecessor of respondent no.1 and respondent nos.4, 5 and 6 filed their written statement disputing the claims made by the original plaintiff. It was stated that the cause of action arose on 02/04/2005 and on that basis the suit was filed on 04/04/2005 seeking permanent injunction. 3. The predecessor of respondent no.1 and respondent nos.4, 5 and 6 filed their written statement disputing the claims made by the original plaintiff. It was contended that a registered lease deed had been executed in favour of husband of respondent No.4 in the year 1969 itself and that the said respondents were in possession of the suit plot. It was claimed that the name of the husband of respondent No.4 was recorded in the record of rights and that the allegations made by the original plaintiff regarding alleged attempt by the said respondents to disturb possession of the plaintiff in the suit plot were false, because the said respondent No.4 was in possession of the said plot. 4. The parties led oral and documentary evidence in support of their respective claims. The original plaintiff died during the pendency of the suit and consequently the appellants were brought on record as his legal representatives. The appellants relied upon registered lease deed dated 27/02/1974 (Exhibit-26) executed by the said society in favour of the original plaintiff, certificate issued by the society in favour of original plaintiff regarding allotment of the said plot (Exhibit-27), submission of building plan before the Municipal Corporation (Exhibit-29), as also receipts showing payment of municipal tax by the original plaintiff in respect of the said plot. On the other hand, the respondents relied upon Akhivpatrika (Exhibit-70) showing that the said plot was recorded in the name of husband of respondent No.4 and that the respondents were in possession thereof and registered lease deed dated 28/11/1969 (Exhibit-72) executed by the said society in respect of the said plot in favour of husband of respondent No.4, which was interestingly brought on record by the appellants themselves. The appellants examined two witnesses apart from examining the original plaintiff himself. These two persons claimed to be ex-servicemen, who were also having plots in the layout of the said society. The respondents examined Dilip Deshmukh, the predecessor of respondent Nos.1 to 3. 5. The appellants examined two witnesses apart from examining the original plaintiff himself. These two persons claimed to be ex-servicemen, who were also having plots in the layout of the said society. The respondents examined Dilip Deshmukh, the predecessor of respondent Nos.1 to 3. 5. On the basis of such oral and documentary evidence on record, the Court of Joint Civil Judge, Senior Division, Akola (Trial Court) decreed the suit in favour of appellants, issuing an order of permanent injunction, restraining the respondents from disturbing the appellants from peaceful possession of the aforesaid plot. It was found that the appellants had been able to prove their lawful, peaceful and continuous possession over the suit plot and the fact that the respondents had sought to disturb them. 6. Aggrieved by the same, the respondents filed appeal before the Appellate Court, which found that the documents on record, particularly the aforesaid Akhivpatrika and the registered lease deed executed in the year 1969 in favour of husband of respondent No.4 sufficiently demonstrated that the respondents were in possession of the suit plot and that the appellants had failed to prove their possession. More significantly, the Appellate Court found that in the nature of pleadings and material on record, the appellants ought to have sought a declaration of title in respect of the suit plot, while seeking permanent injunction and that the suit for simpliciter permanent injunction was not maintainable. 7. The appellants filed the present second appeal challenging the said judgment and order of the Appellate Court. On 13/06/2017 the appeal was admitted on a substantial question of law. Thereafter, on 17/09/2019, upon hearing the learned counsel for the rival parties, this Court framed a further substantial question of law. Hence, present appeal was heard on the following two substantial questions of law. "1.1. In the light of documents at Exhs.26,27,28,29, 30 and 32 to 36, on the basis of which the trial Court held in favour of the plaintiffs, whether the appellate Court merely on the basis of mutation entry at Exh.71 and Akhiv Patrika at Exh.70 could have reversed the finding recorded that the plaintiff was in possession of the suit property? 2. Whether the suit filed by the appellants only for a prayer for injunction, in the absence of seeking a declaration in respect of the suit property, could be said to be maintainable?" 8. 2. Whether the suit filed by the appellants only for a prayer for injunction, in the absence of seeking a declaration in respect of the suit property, could be said to be maintainable?" 8. Heard the learned counsel for the rival parties exhaustively on the above mentioned substantial questions of law. 9. Mr. M.G.Sarda, leaned counsel appearing for the appellants, submitted that the Appellate Court had committed a grave error in relying upon Akhivpatrika at Exhibit-70 and mutation entry at Exhibit-71 to contend that the respondents were in possession of the suit plot and further that the documents placed on record on behalf of the appellants, including the registered lease deed dated 27/02/1974 Exhibit-26 and share certificate dated 14/03/1974 Exhibit-27 were enough to prove the fact that the appellants were in lawful possession of the suit plot and that the Appellate Court had committed a grave error in holding against the appellants. It was further submitted that when the suit filed by the predecessor of the appellants was for simpliciter injunction based on lawful possession of the suit plot, there was no necessity to include a prayer for declaration of title in respect of the suit plot. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Rame Gowda (dead) By LRS. v. M. Varadappa Naidu (dead) by LRS and another, (2004) 1 SCC 769 , to contend that when the appellants had proved their settled peaceful possession in the suit plot and the fact that the respondents had sought to illegally dispossess them, the suit for simpliciter permanent injunction was certainly maintainable and that the Appellate Court had committed a grave error in holding that in the absence of a prayer for declaration in respect of the suit plot, the suit filed by the appellants was not maintainable. 10. Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of Ramji Rai and another v. Jagdish Mallah (dead) through LRS and another, (2007) 14 SCC 200 . On this basis, it was contended that both the substantial questions of law deserved to be answered in favour of appellants and that the appeal deserved to be allowed, by setting aside the impugned judgment and order of the Appellate Court and restoration of the decree passed by the Trial Court. 11. Per contra, Mr. On this basis, it was contended that both the substantial questions of law deserved to be answered in favour of appellants and that the appeal deserved to be allowed, by setting aside the impugned judgment and order of the Appellate Court and restoration of the decree passed by the Trial Court. 11. Per contra, Mr. A.C.Dharmadhikari, learned counsel appearing for the respondent Nos.1 to 6, submitted that the respondents had throughout denied possession of the appellants in the suit plot and further that when sufficient material was placed on record, including registered lease deed dated 28/11/1969 (Exhibit 72) executed in favour of husband of the respondent No.4, as also Akhivpatrika (Exhibit-70) and mutation entry (Exhibit-71), to create a serious cloud over the title claimed in the suit plot by the predecessor of the appellants, it was necessary for the appellants to have amended their suit and added a prayer for declaration of title in respect of the suit plot. Having failed to do so, the suit for simpliciter injunction filed by the predecessor of the appellants was not maintainable. In this regard, reliance was placed by the learned counsel appearing for the respondents on judgment of the Hon'ble Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs & Ors., (2008) 4 SCC 594 . It was emphasized that the present case concerned a vacant plot and that this aspect was crucial while applying the position of law summarized in the aforesaid judgment of the Hon'ble Supreme Court with regard to necessity for a prayer for declaration of title when cloud was created on the title of the original plaintiff. The judgment of the Hon'ble Supreme Court in the case of Rame Gowda (dead) By LRS. v. M. Varadappa Naidu (dead) by LRS and another, (supra) was sought to be distinguished by emphasizing on the distinction between the facts of the said case and those found in the present case. It was submitted that the whole story about cause of action on 02/04/2005 was created by the predecessor of the appellants with no material to support the same and it was emphasized that the respondents were in possession of the suit plot. On this basis, it was submitted that the appeal deserved to be dismissed. 12. It was submitted that the whole story about cause of action on 02/04/2005 was created by the predecessor of the appellants with no material to support the same and it was emphasized that the respondents were in possession of the suit plot. On this basis, it was submitted that the appeal deserved to be dismissed. 12. Considering the nature of contentions raised on behalf of the rival parties and the above mentioned specific substantial questions of law framed by this Court, answer to the second substantial question of law hits at the very maintainability of the suit filed by the predecessor of the appellants, and hence the same is being taken up for consideration first. 13. In order to examine as to whether the suit filed by the predecessor of the appellants in the present case could be said to be not maintainable in the absence of a prayer for declaration of title in respect of the suit plot, it is necessary to peruse pleadings of the rival parties in the present case. The predecessor of the appellants in the plaint itself referred to the fact that the name of the husband of respondent No.4 was recorded in the record of rights i.e. Akhivpatrika at Exhibit-70 and the mutation entry at Exhibit-71. There was also a reference made in the plaint that the aforementioned society had indeed executed registered lease in favour of husband of the respondent No.4, although it was claimed that the lease was never acted upon. This clearly shows that even at the stage of filing of the suit for permanent injunction, the predecessor of the appellants was aware about existence of documents of title in respect of the very same suit plot, in favour of husband of the respondent No.4. Despite, stating the said facts, it was claimed that the predecessor of the appellants was holding title in the suit plot by virtue of the registered lease deed dated 27/02/1974 executed by the very same society in favour of predecessor of the appellants. 14. The respondent Nos.1 to 6 in their written statement had specifically referred to the fact that the suit plot had been leased to the husband of the respondent No.4 in the year 1969 and on that basis entry was made of his name in the record of rights. 14. The respondent Nos.1 to 6 in their written statement had specifically referred to the fact that the suit plot had been leased to the husband of the respondent No.4 in the year 1969 and on that basis entry was made of his name in the record of rights. The possession of the predecessor of the appellants and consequently that of the appellants in the suit plot was strongly denied and it was claimed that the respondents continued in possession of the suit plot. The alleged incident of 02/04/2005, giving cause of action to the predecessor of the appellants, was specifically denied by the respondents. 15. A perusal of the evidence of the witnesses of the rival parties shows that while the original plaintiff and the two witnesses, who deposed in his support, did state that the original plaintiff was in possession of the suit plot, wherein he had constructed a house that had later collapsed and further that there was a fencing erected by the original plaintiff around the suit plot, it was not specifically stated by the two witnesses, who supported the plaintiff that the respondents were or were not in possession of the suit plot. It was stated in the cross-examination by the witnesses that they were not aware as to whether the respondents were in possession of the suit plot. It is also relevant that the original plaintiff himself stated in the cross-examination that he was fully aware about the fact that the very same suit plot had been allotted to the husband of the respondent No.4 prior to 1974. 16. A perusal of the evidence of the witness on behalf of respondents would show that it was claimed that the appellants were in possession of some other plot in the same society wherein they had constructed a house and that they were residing in the same. It was claimed that the suit plot No.91 was always vacant and that the appellants were never in possession thereof. It was conceded in the cross-examination by the said witness that he was aware that the said plot had been allotted in the name of the original plaintiff in the year 1974. It was claimed that the suit plot No.91 was always vacant and that the appellants were never in possession thereof. It was conceded in the cross-examination by the said witness that he was aware that the said plot had been allotted in the name of the original plaintiff in the year 1974. It is interesting that the registered lease deed dated 28/11/1969 executed in favour of husband of respondent No.4 was produced by the original plaintiff himself during cross-examination of the witness of the respondents and when the said witness admitted the same, it was marked as Exhibit-72. 17. The aforesaid oral and documentary evidence on record clearly indicates that the original plaintiff was himself aware about the registered lease deed dated 28/11/1969 executed in favour of husband of the respondent No.4 and the fact that the Akhivpatrika Exhibit-70 and the mutation entry Exhibit-71 indicated the fact that the husband of respondent No.4 did have a right in the suit plot. In this respect denial of possession of the appellants in the suit plot by the respondents assumes significance, because it was the stated case of the original plaintiff that he was in lawful possession of the suit plot on the basis of the registered lease deed dated 27/02/1974 (Exhibit-26) and share certificate dated 14/03/1974 (Exhibit-27). The nature of pleadings and documents in the present case clearly indicated that there was indeed a cloud on the title of the original plaintiff in the suit plot. The cloud was not only created by the pleadings in the written statement and the documents on record showing right of husband of respondent No.4 in the suit plot, but also the statements made in the plaint itself on behalf of the original plaintiff. It is also significant that the alleged incident of 02/04/2005 giving cause of action to the original plaintiff for filing the suit for permanent injunction, was specifically denied by the respondents. It was the case of the original plaintiff that a police complaint had been made by him against the respondents and that the respondents had also made a complaint before the Police against his sons. But, the Trial Court held that such material was not placed on record by the original plaintiff and that the fact regarding obstruction of possession of the original plaintiff by the respondents was not proved. 18. But, the Trial Court held that such material was not placed on record by the original plaintiff and that the fact regarding obstruction of possession of the original plaintiff by the respondents was not proved. 18. In such situation, it needs to be examined as to whether the suit for simpliciter permanent injunction filed by the original plaintiff was maintainable. The Hon'ble Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs & Ors. (supra) has taken into consideration various situations wherein suits for injunction, possession, restoration of possession and declaration are filed in respect of immovable property and the position of law in respect of requirement to pray for a declaration of title, has been summarized in para-21, which is reproduced below: "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 the 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 the 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). 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. 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. (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 straightforward, 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 the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case." 19. It is important in the present case that the suit for permanent injunction filed by the original plaintiff admittedly concerned a vacant plot or a vacant site. Clause (b) in the above quoted paragraph of the judgment of the Hon'ble Supreme Court clearly lays down that in cases where possession has to be established on the basis of title to the property as in case of vacant sites, it would not be possible to decide the issue of possession without rendering a finding on the issue of title. In the present case, the rival parties are claiming possession in the vacant suit plot. There are two registered lease deeds i.e. registered lease deed dated 28/11/1969 (Exhibit-72) executed by the society in favour of husband of respondent No.4 and registered lease deed dated 27/02/1974 (Exhibit-26) executed by the said society in favour of the original plaintiff. Both these registered documents clearly show a serious conflict regarding title in the suit plot between the rival parties. Both these registered documents clearly show a serious conflict regarding title in the suit plot between the rival parties. The Trial Court itself held that the original plaintiff failed to prove his theory of obstruction of possession of the original plaintiff by the respondents. There is indeed no doubt about the fact that a serious cloud arose on the title of the original plaintiff in the suit plot, about which he was himself aware which is evident from the nature of pleadings in the plaint itself, as also admissions given in the cross-examination. Therefore, it becomes clear that in the present case the suit for simpliciter permanent injunction filed by the original plaintiff was not maintainable and that a prayer for declaration of title was mandatory. The original plaintiff could have amended his suit and incorporated the said prayer for declaration, in view of the tenor of the written statement, wherein not only the title, but also the possession of the original plaintiff in the suit plot was denied. This is particularly so, because in the present case the suit for permanent injunction was filed by the original plaintiff on the basis that he was in lawful possession of the suit plot when the said theory itself was seriously brought in doubt and such an amendment for incorporation of the prayer for declaration was necessary. In the absence of the same, the suit filed for simpliciter permanent injunction by the original plaintiff was rendered as not maintainable. The finding rendered by the Appellate Court in that regard is correct. 20. The emphasis placed on judgment of the Hon'ble Supreme Court in the case of Rame Gowda (dead) By LRS. v. M. Varadappa Naidu (dead) by LRS and another (supra) by the learned counsel for the appellants appears to be misplaced, because in the said judgment, the Hon'ble Supreme Court emphasized on settled peaceful possession, also laying down the test to determine settled possession of a party in an immovable property. In the present case, the appellants and the respondents both claimed possession in the suit plot on the basis of registered lease deeds executed by the society in favour of the rival parties. In the present case, the appellants and the respondents both claimed possession in the suit plot on the basis of registered lease deeds executed by the society in favour of the rival parties. The theory of obstruction of possession was rejected by the Trial Court itself in the present case and the Trial Court proceeded on the basis that certain documents placed on record by the appellants were sufficient to prove their possession, as opposed to the documents relied upon by the respondents. The question of actual physical possession was in fact not answered in favour of the appellants by the Trial Court as the theory of obstruction by the respondents stood rejected. Apart from this, the judgment of the Hon'ble Supreme Court in the case of Rame Gowda (dead) By LRS. v. M. Varadappa Naidu (dead) by LRS and another (supra) proceeded on the basis that the plaintiff therein was in possession of the disputed piece of land wherein he was raising construction, which was obstructed by the defendant, at which point the dispute arose between the parties. It was found that although the plaintiff could not prove his title in the suit plot, he could indeed prove his possession and, therefore, it was held that he was entitled to protect his possession. Therefore, reliance placed by the learned counsel for the appellants on the said judgment of the Hon'ble Supreme Court in the case of Rame Gowda (dead) By LRS. v. M. Varadappa Naidu (dead) by LRS and another (supra) is misplaced. For the same reasons reliance placed on judgment in the case of Ranjit Rai Vs. Jagdish Mallah (Supra) is also misplaced. In this context, the first substantial question of law framed by this Court assumes significance, because it pertains to the aspect of the finding rendered by the Appellate Court as regards possession on the basis of documents relied upon by the rival parties. 21. In this context, it is found that while the appellants relied upon registered lease deed dated 22/02/1974 (Exhibit-26), share certificate dated 14/03/1974 (Exhibit-27), submission of building plans (Exhibits-28 and 29) and municipal tax receipts (Exhibit-32 to 36), the respondents relied upon Akhivpatrika (Exhibit-70) and mutation entry (Exhibit-71) to claim possession in the suit plot. It is also significant that registered lease deed dated 28/11/1969 (Exhibit-72) executed in favour of husband of respondent No.4 was also on record. It is also significant that registered lease deed dated 28/11/1969 (Exhibit-72) executed in favour of husband of respondent No.4 was also on record. The question is, as to whether the Trial Court was justified in holding that the appellants were in possession or that the Appellate Court was justified in reversing the finding and holding that the appellants have failed to prove their possession in the suit plot. The fact that registered lease deed dated 28/11/1969 Exhibit-72 was executed in favour of husband of respondent No.4, prior in point of time, cannot be denied. The record of rights i.e. the Akhivpatrika at Exhibit-70 and the mutation entry at Exhibit-71 also was in favour of the respondents. The challenge to the mutation entry raised by the original plaintiff ended in failure. It is also an admitted position that the registered lease deed dated 27/02/1974 (Exhibit-26) was executed later in point of time by the society in favour of the original plaintiff. There was nothing on record to show that the earlier registered lease deed executed in favour of husband of respondent No.4 was ever set aside in any manner. It is also noted above by this Court that the Trial Court itself negatived the theory of obstruction of possession of the original plaintiff by the respondents on 02/04/2005. In such a situation, it cannot be said that the documents relied upon by the appellants were sufficient to prove physical possession of the appellants in the suit plot. The oral evidence of the witnesses who deposed for the original plaintiff also do not conclusively prove physical possession of the original plaintiff in the suit plot. It is crucial that in the present case, we are concerned with a vacant plot or vacant site and that therefore, in the face of registered documents available with the rival parties in respect of title, merely because there were documents held by the original plaintiff showing payment of municipal taxes would not ipso facto lead to the conclusion that the original plaintiff was in possession of the suit plot. 22. Therefore, it cannot be said that the finding rendered by the Appellate Court in the present case regarding possession was perverse and accordingly, the first substantial question of law framed by this Court is also answered against the appellants and in favour of the respondents. 23. 22. Therefore, it cannot be said that the finding rendered by the Appellate Court in the present case regarding possession was perverse and accordingly, the first substantial question of law framed by this Court is also answered against the appellants and in favour of the respondents. 23. In view of the fact that in the answer to the second substantial question of law, it is held by this Court that the suit itself was not maintainable in the absence of prayer for declaration of title in respect of the suit plot, it is found that the appeal deserves to be dismissed as no error can be attributed to the judgment and order passed by the Appellate Court in the present case. Hence, the appeal is dismissed with no order as to costs. 24. It is made clear that nothing stated in this judgment or by the Courts below shall be treated as an opinion regarding title, in any suit that may be filed in future by the appellants for declaration and consequential reliefs, in accordance with law.