JUDGMENT : CITY CIVIL COURT APPEAL No.176 of 2001 1. The challenge in the present appeal is to the judgment and decree dated 28.06.2001 in O.S.No.1108 of 1992 on the file of the Additional Judge, City Small Causes Court-cum-VI Senior Civil Judge, City Civil Court at Hyderabad, wherein and whereby, the suit filed by the plaintiff for declaration and consequential injunction was dismissed. 2. The appellant herein is the plaintiff and the respondents herein are the defendants in the said suit. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the suit. 3. The case of the plaintiff is that he is the absolute owner and possessor of portion of house property bearing No.17-4-534 along with appurtenant land admeasuring 1171 square meters (1680 square yards), situated at Yakutpura, Hyderabad (hereinafter, it is referred to as “suit property”). 4. The pleadings further show that the first defendant is the step-mother of the plaintiff and the second defendant is the natural son of the first defendant. The first defendant is the absolute owner of properties bearing Municipal Nos.17-4-511, 17-4-535 to 37, admeasuring 5021 square yards. Prior to filing of declaration under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short, ULC Act), the first defendant divided the properties in favour of the plaintiff and the second defendant, and to that effect, she made a sworn statement before the ULC Authorities, recognizing the plaintiff as a co-sharer in the property along with the second defendant. Since 1976, the plaintiff has been enjoying the suit property and he is having ration card as well as electricity bills, house tax receipts, etc., to establish his possession over the suit property for more than 20 years. The first defendant, with the assistance of local musclemen, tried to interfere with his possession, as such, he filed the above suit. 5. The first defendant filed a written statement and the second defendant adopted the written statement of the first defendant. The pleadings of the defendants would show that they did not deny the relationship. They denied the ownership and possession of the plaintiff over the suit property. They accepted filing of declaration under Section 6(1) of the ULC Act. 5. The first defendant filed a written statement and the second defendant adopted the written statement of the first defendant. The pleadings of the defendants would show that they did not deny the relationship. They denied the ownership and possession of the plaintiff over the suit property. They accepted filing of declaration under Section 6(1) of the ULC Act. They denied that the first defendant has made any sworn statement conferring any right, interest and title to the suit property or any other properties in favour of the plaintiff. The first defendant never divided her properties and allocated any property more so the suit property either in favour of the plaintiff or any other person. As per the orders of the Special Officer under the ULC Act, the structure covered with house bearing No.17-4-534 admeasuring 171.84 square meters and the appurtenant land admeasuring 1000 square meters were exempted from the ULC Act. Such exemption is nothing to do with the plaintiff’s case. 6. The pleadings of the defendants further show that the house properties bearing Nos.17-4-511, 17-4-532 to 537 (corresponding to old Municipal Nos.3005/3008/1, 2979 to 2987 and 2985) comprise double storied building, single storied house and mulgies and other structures. Originally such properties belonged to Viqarunnisa Begum, the mother of the first defendant. After her death, those properties were devolved on the first defendant under a registered partition and relinquishment deed dated 20th day of Mehr 1346 Fasli. Ever since, the first defendant has been in peaceful possession and enjoyment of the said properties and she never shared her properties to her own son or anyone else. The plaintiff approached the Court with unclean hands and prayed to dismiss the suit. 7. On the basis of the above pleadings, the trial Court has framed the following issues: “1. Whether the plaintiff is entitled for the relief of declaration as prayed for? 2. Whether the plaintiff is entitled for permanent injunction as prayed for? 3. To what relief?” 8. The plaintiff, to support his case, examined P.W.1 to 3 and relied upon Exs.A-1 to A-63. The defendants, to support their case, examined D.Ws.1 and 2 and relied upon Exs.B-1 to B-15. 9. The trial Court, after appreciating the evidence on record, found that the plaintiff failed to establish his title to the suit property. 3. To what relief?” 8. The plaintiff, to support his case, examined P.W.1 to 3 and relied upon Exs.A-1 to A-63. The defendants, to support their case, examined D.Ws.1 and 2 and relied upon Exs.B-1 to B-15. 9. The trial Court, after appreciating the evidence on record, found that the plaintiff failed to establish his title to the suit property. However, it was held that the documents exhibited by the plaintiff establish his possession over the suit property, but such possession, according to the findings of the trial Court, is illegal. The findings of the trial Court with regard to possession of the plaintiff over the suit property were not challenged by the defendants. 10. Heard both sides. 11. The following points emerge for consideration in this appeal: “1. Whether the plaintiff is entitled for declaration of title? 2. Whether the plaintiff is entitled for injunction in the light of the findings of the trial Court with regard to his possession? 3. To what relief?” Point No.1: 12. The learned counsel representing the appellant/plaintiff fairly conceded that basing on the sworn statement made before the ULC Authorities by the defendant No.1, it cannot be said that title to the suit property is transferred in favour of the plaintiff. 13. The evidence on record clearly establishes that the first defendant is the owner of the suit property and the plaintiff claimed title on the basis of division and the sworn statement made by the first defendant, wherein she stated that the plaintiff was also the co-sharer along with the second defendant. Ex.A-10 is the sworn statement given by the first defendant. The evidence from the plaintiff’s side and the admission made from the defendants’ side clearly establish that the first defendant gave sworn statement before the ULC Authorities, wherein she admitted the right of the plaintiff as a co-sharer to the properties which stand in her name. 14. In this regard, it is appropriate to refer to Section 17(1)(b) of the Registration Act, 1908 and it reads as under: “17. 14. In this regard, it is appropriate to refer to Section 17(1)(b) of the Registration Act, 1908 and it reads as under: “17. Documents of which registration is compulsory:- (l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:— (a) … (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property” 15. A reading of the above provision would make it clear that non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, above the value of Rs.100/- and upwards in respect of immovable property, require to be registered. Coming to the present case, if the sworn statement is to be taken as a transfer, still by virtue of Section 17 of the Registration Act, such transfer/assignment requires to be registered. But, in the present case, there is no compliance of Section 17 of the Registration Act, even such recitals are taken as creating any interest in the title in favour of the plaintiff. 16. The plaintiff also relied upon various exhibits which show that he has been paying taxes, telephone bills and has been staying in the suit house. As per those documents, either he or his wife was shown as possessor of suit house property. Such entries do not confer any title to the plaintiff. 17. The plaintiff himself admits that prior to the declaration under the ULC Act, the first defendant is the owner of the suit property. When such is the admission, the transfer of title to be effected in terms of Section 17 of the Registration Act, which is not established in this case. 18. The plaintiff strongly relied upon the proceedings under the ULC Act. Ex.B-33 is the order passed by the ULC Authorities. When such is the admission, the transfer of title to be effected in terms of Section 17 of the Registration Act, which is not established in this case. 18. The plaintiff strongly relied upon the proceedings under the ULC Act. Ex.B-33 is the order passed by the ULC Authorities. A perusal of Ex.B-33 shows that an extent of 500 square meters of appurtenant land and another extent of 500 square meters of additional appurtenant land were exempted from the ULC, since they were appurtenant to the house bearing No.17-4-534 which is suit house property. The order does not establish that the ULC Authorities recognized the plaintiff as an owner of the property. 19. There is evidence from the defendants’ side to show that the plaintiff has played active role in conducting the proceedings before the ULC Authorities. The first defendant claimed that she is not aware of her statement before the ULC Authorities admitting the interest created in favour of the plaintiff. Even such statement is there, still the plaintiff cannot be declared as the owner of the suit property, since there is no valid conveyance of title by the first defendant in favour of the plaintiff. Therefore, I do not find any error in the findings of the trial Court on his issue. The issue is accordingly answered in favour of the defendants. Point No.2: 20. It is needless to go into the exhibits relied upon by the parties, more particularly the plaintiff, which show his possession over the suit property. A close scrutiny of the exhibits relied upon by the plaintiff, most of the exhibits which are electoral rolls, ID proofs of his family members, driving licence, some letters, telephone bills, bank passbooks and telegrams are all subsequent to the filing of the suit. However, the trial Court, by relying upon Exs.A-1, A-2, A-4 to A-7, A-8 to A-15 and A-62, rendered finding that plaintiff established his possession over suit house property prior to 1992. This finding of the trial Court has not been challenged by the defendants. Therefore, this Court is not inclined to go into minute details of those exhibits for appreciating the evidence. 21. This finding of the trial Court has not been challenged by the defendants. Therefore, this Court is not inclined to go into minute details of those exhibits for appreciating the evidence. 21. The learned counsel for the appellant/plaintiff has contended that in view of the findings of the trial Court to the effect that the plaintiff established his possession over the suit property, in spite of failure to establish title to the suit property, it ought to have granted injunction and directed the defendants to have recourse to law for recovery of the possession of the suit property, but the trial Court did not do so. In support of his contention, he has relied upon the judgment of Apex Court in Rame Gowda V. M.Varadappa Naidu, (2004) 1 SCC 769 . 22. The learned counsel for the respondents/defendants has contended that as per the findings of the trial Court, the claim of the plaintiff that his possession is based on the title he acquired was negatived on the ground that the title has not been established and his possession was illegal. The determination of rights of the parties in the proceedings filed by the proceedings for declaration and injunction would satisfy the law of due process to have recourse to the appropriate proceedings for recovery of possession of the property and they did not require to go to civil court for recovery of possession. In support of his contention, he relied upon the judgment of Apex Court in Maria Margarida Sequeira Fernandes V. Erasmo Jack De Sequeira, (2012) 5 SCC 370 . 23. Section 38 of the Specific Relief Act deals with grant of perpetual injunction and sub-section (3) is relevant and it reads as under: “38. Perpetual injunction when granted:- (1) and (2) … (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, the court may grant a perpetual injunction in the following cases, namely:— (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.” 24. A reading of sub-section (3) of Section 38 of the Specific Relief Act it makes clear that when the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, the Court may grant perpetual injunction on satisfying the conditions mentioned under clauses (a) to (d) therein. 25. It is also relevant to refer to Section 41 of the Specific Relief Act and sub-section (i) is relevant to the present facts of the case and it reads as under: “Injunction when refused:- An injunction cannot be granted: (a) to (h) … (i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court.” 26. The above provision makes it clear that the conduct of the plaintiff or his agents is also relevant to extend the assistance of the Court to the party by granting injunction. 27. In this regard, it is also relevant to refer to decision of high court of united AP in case of K. Venkata Rao. V. Sunkara Venkata Rao, 1998 (6) ALD 278 wherein it was held as follows: “ 9. That a relief of injunction is a discretionary relief is now well settled. A party before it can ask a Court to exercise such discretion in its favour must show that it has shown equities in its favour which would impel a Court to exercise discretion in its favour. In the alternative the party seeking injunction must possess some right which the opposite party is trying to invade or there must exists an obligation in its favour whether contractual or otherwise in respect of which the opposite party is trying to commit breach. These principles clearly emerge out of Section 38 of the Specific Relief Act which deals under what circumstances the Court may grant-the discretionary relief of perpetual injunction. But in the instant case, none of these circumstances are in existence for granting the relief of perpetual injunction in favour of the respondent-plaintiff. Moreover, as held by both the fact finding Courts below that the plaintiff failed to pay the balance of sale consideration under the agreement of sale to the other party before seeking discretionary relief of injunction. The plaintiff claiming the relief of perpetual injunction has to establish the breach of obligation or infringement of his legal right. Moreover, as held by both the fact finding Courts below that the plaintiff failed to pay the balance of sale consideration under the agreement of sale to the other party before seeking discretionary relief of injunction. The plaintiff claiming the relief of perpetual injunction has to establish the breach of obligation or infringement of his legal right. In the instant case, the plaintiff failed to prove the breach of contract by the appellants-defendant but on the other hand it has come on record that the plaintiff himself committed breach of contract by his failure to pay the balance of sale consideration. The conduct of the party in seeking the equitable relief must be fair and equitable and should not be dishonest.” 28. In Rame Gowda’s case (supra), the learned counsel for the appellant/plaintiff has mainly relied upon paras 8 to 10 to buttress his arguments and they read as under: “8. It is thus clear 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. 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 injuncting even a rightful owner from using force or taking 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. 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 he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. 9. 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 concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455 , Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188 . The authorities need not be multiplied. In Munshi Ram case, it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may reenter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' (SCC p.527, para 12): (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. 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. In the cases of Munshi Ram and Puran Singh, the Court has approved the statement of law made in Horam Vs. Rex AIR 1949 Allahabad 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property.” 29. On the basis of the above ratio of the Apex Court, the learned counsel for the appellant/plaintiff contended that 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, and 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 and he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The ratio laid in para 10 of the above judgment would show that in a case of trespasser having settled possession, the true owner to retake the possession, must have to recourse to due process of law for reacquiring the possession over the property. In the same judgment, it is also observed at para 12 that if a person claiming right to continue possession, he has to establish his rightful possession and such rightful possession was invaded or threatened to be invaded by a person who has no title thereof, then only the Courts have to grant injunction. 30. On the contrary, the learned counsel for the respondents/defendants relied upon paragraphs 79 and 80 in Maria Margarida Sequeira Fernandes’s case (supra) and they read as under: “79. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. On the contrary, the learned counsel for the respondents/defendants relied upon paragraphs 79 and 80 in Maria Margarida Sequeira Fernandes’s case (supra) and they read as under: “79. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court. 80. The High Court of Delhi in Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under: "28. The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner. Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law." 31. The expressions ‘due course of law’ and ‘recourse to law’ have been dealt with. The compliance of due process of law and recourse to law is achieved either the action is for enforcement of right (recovery of possession) or protection of a right (injunction against dispossession), and such distinction has no consequence. The important thing relevant is that in either event it is an action before the court and the court adjudicates upon it, then the requirement of due process has been satisfied and the person need not be driven to Court again for retaking of possession. In short, what the Apex Court observed is that when the adjudication is done in respect of the rights of the parties either in an action for recovery of possession or an action for injunction, the successful title holder need not be again driven to have recourse to law to retake the possession and such adjudication satisfies bare minimum requirement of ‘due process’. 32. The above ratio of the Apex Court in Maria Margarida Sequeira Fernandes’s case (supra) seems to be equitable and very relevant in the present set of facts. 32. The above ratio of the Apex Court in Maria Margarida Sequeira Fernandes’s case (supra) seems to be equitable and very relevant in the present set of facts. The present litigation has started in the year 1992 and it is not known whether it ends with the present appeal. When the Court already adjudicated rights of the parties and finally decided that the plaintiff has not established his title though establishes his possession which the Court finds unauthorized, asking the defendants again to have recourse to law to retake possession is nothing but denial of justice to the successful party. 33. Justice is the shield of innocence and guardian of civil rights, as Martin Luther King said, injustice anywhere is threat to justice everywhere. People come to court in order to get justice but when there is delay in justice individuals lose their hope and it shakes and vibrates the foundation of judicial institutions and if not prevented the institutions collapses. William Edward Gladstone (the former PM of England) cited the phrase Justice delayed is Justice denied to mean if justice is not carried out at right time and even if it is carried out later it is not real justice. 34. Even by reading the ratio of the Apex Court in Rama Gowda’s case (supra), relied upon by the learned counsel for the appellant/plaintiff, the relief of injunction has been granted to protect the possession in the backdrop that the person who was seeking injunction was in wrongful possession and his enjoyment was invaded or threatened to be invaded by a person who has no title. 35. In the present case, the defendants have established their title and the plaintiff’s claim for title has been negatived though his possession was confirmed. When his possession is claimed by virtue of title set up by plaintiff and when the title is negatived, granting injunction would tantamount to perpetuating the unauthorized occupation and driving the rightful owner to start fresh litigation in the name of recourse to law to retake possession is a denial of justice. It is an act of denying the justice to rightful owner and extend the support to a person who failed to establish his title and who refused to give possession to rightful owner. 36. The conduct of the parties is also relevant in terms of Section 41 of the Specific Relief Act. It is an act of denying the justice to rightful owner and extend the support to a person who failed to establish his title and who refused to give possession to rightful owner. 36. The conduct of the parties is also relevant in terms of Section 41 of the Specific Relief Act. In the present case, the plaintiff has set up the title without any rightful ownership not only to the structures but also to the appurtenant land to the structures. All the evidence and the findings of the trial Court would only show that the possession of the plaintiff is in respect of structural house, which is located on the area of 171.84 square meters of land. This means, he is claiming title to the open land appurtenant to the structures without any document. 37. Even the ULC proceedings did not recognize plaintiff as an owner to the open land; whatever the document he has filed only refers to his possession to the housed structures, but not to the open land. Therefore, this act of the plaintiff amounts to unfair conduct which is also one of the relevant factors which disentitle him to seek equitable relief of injunction. Therefore, I am of the view that the trial Court has rightly taken the decision in not granting injunction. I do not find any reason to differ with such findings. Accordingly, this point is also answered in favour of the defendants. Point No.3: 38. In the result, this appeal is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.