Rajasthan High Court - Jaipur
M B Jhunjhunu vs Prahlad Ram on 21 December, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
JUDGMENT
S.B. Civil Second Appeal No. 62 / 1997
1. Municipal Board Jhunjhunu through the Executive Officer.
2. The Chairman, Municipal Board, Jhunjhunu.
----Appellants
Versus
Prahlad Ram (since Deceased) represented by following LRs :
1. Sultan S/o Late Shri Prahlad Ram., R/o Fauz Ka Mohalla,
Jhunjhunu.
2. Sheo Prasad S/o Late Shri Prahlad Ram., R/o Fauz Ka Mohalla,
Jhunjhunu.
3. Rajendra S/o Late Shri Prahlad Ram., R/o Fauz Ka Mohalla,
Jhunjhunu.
4. Bajrang Lal S/o Late Shri Prahlad Ram., R/o Fauz Ka Mohalla,
Jhunjhunu.
5. Mahaveer S/o Late Shri Prahlad Ram, R/o Housing Board Colony,
Ward No.1, Behind Court, Jhunjhunu.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. G. K. Garg, Sr. Advocate with
Ms. Anita Agarwal.
For Respondent(s) : Mr. Bipin Gupta with Mr. Ishan Kumawat.
_____________________________________________________
HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI
Date :: 21/12/2017
Reportable
The instant second appeal has been preferred by the
defendant-appellants under Section 100 CPC against the judgment
and decree dated 19.8.1996 passed by Additional District Judge,
Jhunjhunu (hereinafter referred to 'First Appellate Court') in
Appeal No.1/1996 (13/1995), whereby the learned First Appellate
(2 of 24)
[CSA-62/1997]
Court allowed the appeal filed by the plaintiff-respondent and
reversed the judgment and decree dated 28.4.1995 passed by
Civil Judge (Jr.Division) & Judicial Magistrate, Jhunjhunu
(hereinafter referred to 'trial Court') in Civil Suit No.91/1990,
whereby the learned trial Court dismissed the suit filed by the
plaintiff-respondent.
Skeletal material facts necessary for disposal of the appeal
are that a suit was filed by the plaintiff-respondent for permanent
injunction to restrain the defendant-appellants not to cause any
hindrance in construction of boundary wall of his 'Bada' (plot)
stating therein that the plaintiff is owner of the 'Bada' mentioned
in Para No.1 of the plaint and the 'Bada' is in his possession. The
plaintiff purchased the plot in Samvat 2004 from 'Thikana Balonda'
and a 'Patta' was issued in his favour. It is also pleaded that a case
under Section 145 of Cr.P.C. with regard to the property in dispute
was decided by SDM, Jhunjhunu on 6.4.1961 in favour of the
plaintiff. The plaintiff is in possession of the 'Bada' for a long time
and it is surrounded by fencing. It is also pleaded that to construct
a 'pucca' boundary wall, the plaintiff submitted an application to
the defendants for permission with requisite site plans but the
permission has not been accorded to him for seven months.
Thereafter, the plaintiff served a notice on 24.8.1990 on the
defendants to accord permission within 15 days, failing which he
will start the construction. The plaintiff started construction on
20.9.1990. Then some persons of defendants came to the spot
and restrained the plaintiff for putting the boundary wall of the
'Bada'.
(3 of 24)
[CSA-62/1997]
The defendant-appellants filed written statement stating
therein that the plaintiff had no right, title or interest in the said
piece of land and it is property of Municipal board and the plaintiff
had no right to carry out any construction on the property of
Municipal Board. It is also averred that after inspection of the site,
the application for permission for construction of boundary wall
has been rejected by the Municipal Board vide order dated
27.8.1990. It is further averred that the suit is not maintainable,
as no notice under Section 80 CPC and Section 271 of Rajasthan
Municipalities Act was served and prayed to dismiss the suit with
cost.
On basis of the pleadings of the parties, the learned trial
Court framed following issues :
""1- vk;k fookfnr ckMk oknh ds LokfeRo o vkf/kiR; dk gS]
ftldk fBdkuk cyksnk dk iV~Vk o mi [k.M vf/kdkjh
>qa>quw dk fu.kZ; fnukad 6-4-61 oknh ds i{k esa gSA &&oknh
2- vk;k oknh dks fookfnr ckMs dh ckM+ dh txg iq[rk nhokj
(M.Mk) cukus dk vf/kdkj gSA &&oknh
3- vk;k fookfnr Hkwfe uxjikfydk] >qa>qauw dh gS o izfroknhx.k
}kjk oknh dk fuekZ.k Lohd`fr dk izkFkZuk i= fnukad 27-8-90
dks fujLr fd;k tk pqdk gSA &izfroknh
4- vk;k oknh }kjk izfroknhx.k dks /kkjk 80 lh-ih-lh- o /kkjk
271 uxjikfydk vf/kfu;e dk uksfVl ugha fn;s tkus ls okn
pyus ;ksX; ugha gSA &&izfroknh
5- nknjlhA"
The plaintiff examined PW.1-Bheem Singh, PW.2-Prahlad
Ram, PW.3-Chandra Dutt Sainik & PW.4-Hanuman and exhibited
as many as four documents in support of his case. The defendants
(4 of 24)
[CSA-62/1997]
examined DW.1-Rajendra Joshi in support of their case and did not
produce any documentary evidence.
Learned trial Court after hearing the parties decided Issues
No.1 & 2 against the plaintiff, Issues No.3 & 4 against the
defendants and dismissed the suit filed by the plaintiff-respondent
vide judgment and decree dated 28.4.1995. Being aggrieved and
dissatisfied with the judgment and decree passed by the learned
trial Court, the plaintiff-respondent preferred first appeal
alongwith an application under Order 41 Rule 27 readwith Section
151 CPC, which was allowed by the First Appellate Court on
22.3.1996 on cost of Rs.100/- and the documents filed by the
plaintiff with the application were taken on record with liberty to
the defendant-appellants of filing the documents in rebuttal, if
desired. The First Appellate court recorded statements of the
plaintiff Prahlad Ram as appellant witness No.1, who exhibited
four documents to be Ex.5 to Ex.8. The defendants did not choose
to produce any evidence in rebuttal, as is evident from the order
dated 25.5.1996 on the record of First Appellate Court.
After hearing learned counsel for the parties, the First
Appellate Court allowed the appeal vide impugned judgment and
decree dated 19.8.1996 and decreed the suit filed by the plaintiff-
respondent for permanent injunction. Being aggrieved and
dissatisfied with the judgment passed by the First Appellate Court,
the defendants have preferred the present second appeal.
On 5.3.2008 following substantial questions of law were
formulated, which reads as under :
"(i). Whether it was necessary for the present appellant
(5 of 24)
[CSA-62/1997]
to have filed an appeal on decisions given on Issue
Nos.3 & 4 against it and whether by not doing so the
learned lower appellate court could have drawn any
adverse inference or could have relied upon them for
reversing the decision of the learned trial Court and
finding that the case of the plaintiff had been made out
on that account ?
(ii) Whether the Patta could have been read in
evidence when it was not registered ?
(iii) Whether the thikanedar of Balonda had any right
to issue the Patta even if it be considered that the
Patta had been issued "
(iv) Whether the judgment of the Criminal Court given
in proceedings under Section 145 of the Criminal
Procedure Code between different set of parties
including the plaintiff could be considered to be at all
relevant for purposes of proving the possession of the
plaintiff over the suit property ?
(v) Whether the boundaries of the suit property were
not tallying with the boundaries of the Patta ?
(vi) Whether the weakness of the defendant could be a
ground for decreeing of the suit ?"
Heard learned counsel for the parties.
Mr. G. K. Garg, Sr. Advocate assisted by Ms. Anita Agarwal
for the appellants submitted that the First Appellate Court was
absolutely wrong in holding that the defendants ought to have
been filed an appeal with regard to decision given by the learned
trial Court on issues No.3 & 4 against it. Learned counsel also
submitted that filing of such an appeal was not necessary when
the suit was dismissed. The appeal was not filed merely because
Issues No.3 & 4 have been decided against the defendants. It is
(6 of 24)
[CSA-62/1997]
the overall effect of the judgment and decree which has to be
taken into account to see whether the appeal is necessary or not.
The judgment under appeal could be supported by defending the
issues ought not to have been decided against the defendants.
Learned counsel for the appellants further contended that
the learned First Appellate Court has taken into consideration the
decision given by the S.D.M. in the proceedings under Section 145
Cr.P.C., which is not at all relevant for the reason that the
defendants-Municipal Board were not party to the proceedings.
Learned counsel also submitted that Exs.5, 6, 7 & 8 do not prove
the title of the plaintiff. By getting water or electricity connection,
no one becomes owner of the property and gets the title over the
property in question.
Learned counsel for the appellants further contended that
the learned First Appellate Court decided the question of
boundaries against the Municipal Board and in favour of the
plaintiff, is erroneous because the reasons given by the learned
trial Court have not been met with by the First Appellate Court.
Learned counsel for the appellants also contended that the
onus of proving the title over the suit property lies on the plaintiff
and if the plaintiff failed to prove his title, the suit should fail and
weakness of the defendants should not be taken into account.
Admittedly, the land in question is 'Aabadi' land and situated
within the notified area of the Municipal Board, Jhunjhunu. All
'Aabadi' land lying within the notified area of municipality should
be presumed either of the State Government or of the Municipal
Board unless the contrary is proved and the contrary has not been
(7 of 24)
[CSA-62/1997]
proved in this case, therefore, it is proved that the land in
question does not belong to the plaintiff. In support of his
submissions, learned counsel for the appellants placed reliance on
the cases of S. Kaladevi Vs. V. R. Somasundaram & Ors
reported in (2010) 5 SCC 401, Ram Daan (Dead) through
LRS Vs. Urban Improvement Trust reported in (2014) 8 SCC
902, Corporation of City of Bangalore Vs. Zulekha Bi & Ors
reported in (2008) 11 SCC 306, Municipal Council, Pali Vs.
Bahadur Raj Mehta reported in RLR 2001 (1) 390, State of
J&K Vs. Hindustan Forest Co. & Ors. reported in (2006) 12
SCC 198, Suraj Lamp & Industries Pvt. Ltd. Vs. State of
Haryana & Anr. reported in (2012) 1 SCC 656 and in Firm
Keshri Dal & Oil Mill Vs. Rajasthan State Industrial
Development & Investment Corporation, Jaipur & Ors.
reported in 2015 (3) WLC (Raj.) 208.
Per contra, Mr. Bipin Gupta assisted by Mr. Ishan Kumawat
learned counsel for the plaintiff-respondents defended the
impugned judgment passed by the learned First Appellate Court
and submitted that the provisions of Order 41 Rule 33 CPC is not
applicable in the present case, rather in Para No.8 of the
impugned judgment, the learned First Appellate Court framed
points for determination to be decided as required under Order 41
Rule 31 CPC. Learned counsel also submitted that the plaintiff also
produced additional documents Ex.5 to Ex.8 in First Appellate
Court, which were taken on record after recording evidence of the
plaintiff. In rebuttal, the defendants did not choose to produce any
evidence.
(8 of 24)
[CSA-62/1997]
Learned counsel for the respondents also contended that
there was no cross-objection or cross-appeal in respect of Issues
No.3 & 4, the burden of which was on the defendants and they
failed to discharge the burden, therefore, the defendants could
have only supported the decree passed by the learned trial Court,
but could not force the Court to decide the Issues No.3 & 4, which
were not disputed in the appeal, as the First Appellate Court had
to decide only the facts and the pleadings in the appeal between
the parties.
Learned counsel for the respondents also submitted that the
First Appellate Court determined points for determination to
decide the Issues No.1 & 2 only because the defendants have not
placed any document in the First Appellate Court to get the Issues
No.3 & 4 to be decided in their favour nor they challenged the
Issues No.3 & 4 anywhere. Learned counsel further contended
that provisions of Order 41 Rule 33 CPC is discretion of the Court
and that power could be exercised by the Court and not by a party
as a matter of right. Order 41 Rule 22 CPC gives a right to a party
to challenge the findings against him by filing a cross-objection
and in absence of right having been exercised by the appellants
before the First Appellate Court by way of filing cross-objection on
Issue No.3 & 4, the defendants cannot argue that they were
deprived of right to argue on issues No.3 & 4.
Learned counsel for the respondents further submitted that
Section 110 of the Evidence Act specifically provides that prima
facie person in possession is treated to be owner of the property
against whole world except the true owner. As the learned trial
(9 of 24)
[CSA-62/1997]
Court had gone in the issue of ownership in the suit for injunction
simplicitor, the First Appellate Court has correctly found that in the
suit for injunction, title has not to be seen and even if the plaintiff
fails to prove title but proves the possession, the plaintiff is
entitled for a decree of injunction on the basis of Section 110 of
Evidence Act. The learned First Appellate Court on the basis of
Ex.5 has found the plaintiff to be in possession of the disputed
land. Learned cousnel also argued that in Issue No.3, the
defendants were not found owner of the property on the basis of
evidence of DW.1. Learned counsel further submitted that the
defendants pleaded the property in question to be the Municipal
property, the burden was on the defendants to prove to be true
owner of the property. When the plaintiff had been found in
possession on the basis of Ex.5, wherein the defendants admitted
the ownership of the plaintiff, the First Appellate Court decreed the
suit of injunction and thus no illegality has been committed.
Learned counsel for the respondents also contended that the
learned First Appellate Court had not decided the suit merely on
the basis of order passed by the SDM in proceedings under
Section 145 of Cr.P.C. The learned First Appellate Court considered
Ex.1, Ex.3 and Ex.5 and the order passed by the SDM wherein the
possession of the plaintiff has been found. Ex.5 is no objection
letter issued by the defendants-Municipality and on that basis the
First Appellate Court found the possession of the plaintiff and
granted decree of injunction. Learned counsel further submitted
that the 'Patta' in question is of Samvat 2004-05 (corresponding
year 1947) and the First Appellate Court has found that after long
(10 of 24)
[CSA-62/1997]
lapse of time it is not necessary that the boundaries would remain
same forever. The First Appellate Court tallied the neighborhood of
the property in question mentioned in site plan (Ex.3) with no
objection letter (Ex.5) issued by the defendants and has
categorically found that the property in question and the property
mentioned in no objection letter (Ex.5) are the same and gave
reasons in the judgment of not tallying with the 'Patta' (Ex.1). In
support of his submissions, learned counsel for the respondents
placed reliance on the cases of M. Kallappa Setty Vs. M. V. Lakshminarayan Rao reported in AIR 1972 SC 2299, Chief Conservator of Forests, Govt. of A.P. Vs. Collector & Ors reported in AIR 2003 SC 1805, Raees Ahmed Vs. Shrigopal Prakash & Ors reported in 2002 (2) WLC (Raj) 639, Abdul Latif & Ors. Vs. Nagar Vikas Pranyas, Udaipur reported in 2006 (4) WLC (Raj) 66, Rame Gowda (Dead) by LRS Vs. M. Varadappa Naidu (Dead) by LRS & Anr. reported in (2004) 1 SCC 769 and on Babu Lal Vs. Addl.District & Sesions Judge, Laxmangarh, District Alwar & Ors. passed by Coordinate Bench of this Court in SB CWP No.9119/2011 on 12.12.2011.
I gave anxious consideration to rival submissions of learned counsel for the parties and perused record of the case as well as written submissions filed by learned counsel for the respondents.
The first substantial question of law formulated by the Court is to the effect that the defendants have not filed cross-objections or cross-appeal on issues No.3 & 4 decided against the defendants. Learned counsel for the appellants argued that the First Appellate court has deprived the appellants to argue on issue (11 of 24) [CSA-62/1997] No.3 & 4, whereas it was duty of the Appellate Court to apply provisions of Rule 41 Rule 33 CPC.
In Municipal Council, Pali Vs. Bahadur Raj Mehta (supra), Coordinate Bench of this Court in Para No.7 of its judgment observed and held as under :
"In my considered opinion, the learned first appellate court has jurisdiction to mould the relief according to the facts of the present case within the meaning of Order 41 Rule 33 CPC, which clearly provides that the appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."
In Firm Keshri Dal & Oil Mill Vs. Rajasthan State Industrial Development & Investment Corporation, Jaipur & Ors (supra), Coordinate Bench of this Court in Para No.9 of its judgment observed and held as under :
"After having heard the learned counsels for the parties, and after considering the evidence on record, it appears that though the Trial Court had framed as many as 10 issues, the main issues, which fall for consideration before this Court are issue Nos.5 and 6, inasmuch as the learned counsels for the parties had hardly made any submission on the other issues . Though issue No.2 (12 of 24) [CSA-62/1997] as to whether the plaintiff was given the possession of the plot in question by the defendant Corporation on 9/3/1976 or not and whether the defendant Corporation was entitled to receive rent prior to the said date or not, was decided against the defendant Corporation, the said defendant has not chosen to challenge the said finding, nor has chosen to challenge the direction given by the Trial Court in the operative part of the judgment, by filing the cross-objections in the present appeal or by filing the separate appeal. Of course though the respondent may not have appealed against any part of the decree can support the decree and also state that the findings in respect of any issue recorded by the Court below ought to have been in his favour, in view of Order XLI, Rule 22, and the Appellate Court also has power to pass any decree and make any order which ought to have been passed or made, though the respondent may not have filed any appeal against that part of the decree, which is against him, in view of the provisions contained in Order XLI Rule 33 of CPC."
In view of the above, the First Appellate Court has power to pass any decree and order which ought to have been passed in the facts and circumstances of the case, although the respondents have not filed cross-appeal or cross-objection under Order 41 Rule 22 CPC.
From perusal of the impugned judgment passed by the First Appellate Court, it reveals that the learned Court framed points for determination under Order 41 Rule 31 CPC to be decided by the First Appellate Court. The learned trial Court decided Issues No.3 & 4 against the defendants, Issues No.1 & 2 against the plaintiff (13 of 24) [CSA-62/1997] and dismissed the suit filed by the plaintiff. The plaintiff filed first appeal against the judgment and decree passed by the learned trial Court. Admittedly, the defendants neither preferred cross- appeal nor filed cross-objections under Order 41 Rule 22 CPC in respect of Issues No.3 & 4, the burden of which was on the defendants and having failed to discharge the burden before the learned trial Court, the defendants could have only supported the decree passed by the learned trial Court, but could not force the First Appellate Court to decide the issues No.3 & 4 which were not disputed in the appeal.
The defendants have categorically pleaded that Municipal Board, Jhunjhunu is owner of the property in dispute. The burden to prove the issue No.3 was on the defendants. The defendants did not produce any documentary evidence in this regard. The defendants examined DW.1 Rajendra Joshi, Executive Officer of defendant-Municipal Board, who has denied the knowledge of fact whether the property in dispute is recorded in records of Municipal Board or not. The witness also admitted that there is record of all properties of Municipal Board, but he had not produced any such record in the Court. The witness further stated that he does not know whether the property in dispute is recorded in the record of Municipal Board or not. Because the defendants have pleaded that the property in dispute to be the municipal property, the burden was on the defendants to prove to be true owner of the property, but the defendants did not produce any documentary evidence in this regard, as such the learned trial Court decided issue No.3 against the defendants. It is pertinent to note that the defendants (14 of 24) [CSA-62/1997] did not produce any evidence in this regard in the First Appellate Court also. In First Appellate Court the plaintiff produced additional documents Ex.5 to Ex.8 which were taken on record and were exhibited. The First Appellate Court provided opportunity to the defendants to produce evidence in rebuttal of the documents produced by the plaintiff, but the defendants did not choose to file any evidence in rebuttal.
Issue No.4 framed by the learned trial Court is with regard to maintainability of the suit for want of notice under Section 80 CPC and Section 271 of Rajasthan Municipalities Act. Learned trial Court decided the issue against the defendants finding that provisions of Section 80 CPC does not apply in a suit filed against the municipality, as the officers of municipality are not public servants for the purpose. The learned trial Court also gave finding that notice under Section 271 of the Municipalities Act, 1959 is not necessary in a suit filed against the municipality for the relief of injunction only. The learned trial Court also observed that the plaintiff categorically stated in the plaint that notice was served upon the defendants prior to filing of the suit and the defendants also admitted in the written statement of having received plaintiff's notice dated 24.8.1990. The learned trial Court further observed that the objection regarding maintainability of the suit in the want of notice, is not sustainable and decided the issue No.4 against the defendants. The defendants did not advance any argument with regard to issue No.4 before the First Appellate Court and even before us in this second appeal.
(15 of 24) [CSA-62/1997] It is pertinent to note that there is no any application in the First Appellate Court and no such order depriving the right of defendants to argue on the issues No.3 & 4. The provisions of Order 41 Rule 33 CPC is discretionary power of the Court which can be exercised by the Court and not as a matter of right by a party to the appeal, whereas Order 41 Rule 22 CPC provides a right to the respondent to challenge the finding against him by filing cross-objection. Therefore, in absence of right having been exercised by the defendants before the First Appellate Court by way of filing cross-objection with regard to findings of learned trial Court on issues No.3 & 4, the appellants cannot argue that they were deprived of right to argue on issues No.3 & 4, only on the basis of impugned judgment dated 19.8.1996 passed by the First Appellate Court. Thus, the first substantial question of law is answered accordingly.
The second substantial question of law is that whether the 'Patta' could have been read in evidence when it was not registered, third substantial question of law is that whether the Thikana Balonda had any right to issue the 'Patta' and sixth substantial question of law is that whether the weakness of the defendants could be a ground for decreeing the suit.
In S. Kaladevi Vs. V. R. Somasundaram & Ors (supra), the Apex Court held that the documents defined in Clauses (a) to
(e) of Section 17 of the Registration Act, 1908 are compulsorily registerable, if the value of the immovable property is Rs.100/- and more and Section 49 provides for effect of non-registration of the documents required to be registered. According to Section 49 (16 of 24) [CSA-62/1997] a document required by Section 17 or by any provisions of Transfer of Property Act to be registered, shall not be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
In Ram Daan (Dead) through LRs Vs. Urban Improvement Trust (supra), the Apex Court held that plaintiff being in possession has a good title against everybody except rightful owner. It is also held that even assuming the respondent has no authority to evict appellant, the appellant is entitled to decree of permanent injunction, subject to right of real owner to evict the appellant in accordance with law.
In Corporation of City of Bangalore Vs. Zulekha Bi & Ors (supra), title to the suit property was disputed. Respondent No.1, who was plaintiff before the trial Court, was claiming title to the suit property. The Apex Court held that burden of proof was on the plaintiff to prove her title which she failed to do so as she did not produce any khata extract or tax receipt to substantiate her title and the First Appellate Court drew an erroneous inference in respondent's favour on the basis of acknowledgment given by revenue office. The suit in above case was for the relief of declaration and permanent injunction, whereas the suit in the instant case is for the relief of permanent injunction only and no relief of declaration has been sought by the plaintiff, therefore, the law declared by the Apex Court in this case is not of much help to the appellants.
In State of J & K Vs. Hindustan Forest Co. & Ors (supra), the Apex Court held that the onus is on the party to positively (17 of 24) [CSA-62/1997] establish it's case on the best material available and it cannot rely on the weakness or absence of defence to discharge such onus.
In Suraj Lamp & Industries Private Ltd through Director Vs. State of Haryana & Anr (supra), the Apex Court held that a transfer of immovable property by way of sale can only be by way of deed of conveyance (sale deed). In the absence of deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
In M.Kallappa Setty Vs. M. V. Lakshminarayana Rao (supra), the Apex Court in para Nos.5 & 6 of it's judgment observed and held as under :
"So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiff's case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession visit 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 some one 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 (18 of 24) [CSA-62/1997] 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 No. 2.
"6. Now coming to relief No. 1, the plaintiff cannot obtain that relief unless he satisfied the court that he has good title to the suit property. The High Court has come to the conclusion and with that conclusion we agree, that on the material on record, it is not possible to come to the conclusion that the plaintiff has satisfactorily established his title to the suit property. Hence he is not entitled to relief No. 1. Ordinarily under these circumstances we would have remanded the case for deciding the question of title afresh. But this litigation has gone on for a long time and the property in dispute was purchased for Rs. 100. Under these circumstances, it is in the interest of the parties to keep open the question of title to be agitated by the parties if they so desire in fresh proceeding and confirm the decree of the trial court in respect of relief No. 2 and set aside its decree in respect of relief No. 1. As we specifically keep open the question of title, it will not be open to the plaintiff or his representatives or successors to resist any suit the defendant or his representatives or successors may bring in future for possession of the suit on the basis of their title either on the ground of res judicata or Order 11 Rule 2."
In Chief Conservator of Forests, Govt. of A.P. Vs. Collector & Ors (supra), interpreting the provisions of Section 110 of the Evidence Act, 1872, the Apex Court in para No.19, 21 & 22 of it's judgment observed and held as under :
"19. It embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.
(19 of 24) [CSA-62/1997]
21. The pattedars proved their possession of the lands in question from 1312 Fasli (1902 A.D.) as pattedars. There is long and peaceful enjoyment of the lands in question but no proof of conferment of patta on the late Raja and the facts relating to acquisition of title are not known. The appellant- State could not prove its title to the lands. On these facts, the presumption under Section 110 of the Evidence Act applies and the appellants have to prove that the pattedars are not the owners. The appellants placed no evidence on record to rebut the presumption. Consequently, the pattedars, title to the land in question has to be upheld.
22. We have gone through the judgement of the trial court as also of the High Court. We have perused the notification issued under Section 29 of the Forest Act. It shows that as many as fourteen villages are enumerated therein. Villages Asadpur and Malachintapalli do not figure in the notification. Even otherwise also, the notification does not show anything more than the fact that the Government has formed a protected forest area. That by itself does hot extinguish the rights of the private owners of the land nor does it show that the lands in question vest in the State. A plain reading of the statutory order passed by the Commissioner of Survey, Settlement and Land Record under Section 166-B of the Land Revenue Act on December 5, 1981 places the matter beyond doubt that the suit lands were patta lands of the Pattedars. For all these reasons, in our view, the High Court has committed no error in confirming the said order of the Commissioner of Survey, Settlement and Land Record and the Judgment and decree of the trial court."
In Raees Ahmed Vs. Shrigopal Prakash & Ors (supra), the Coordinate Bench of this Court while interpreting Sections 109 & 110 of the Evidence Act, 1872 observed and held as under :
(20 of 24) [CSA-62/1997] "19. Here I may advert to significant provisions of Section 109 & 110 of the Evidence Act which relates to burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent. As per Section 109, ibid, when the question is whether persons are partners, landlord and tenant, or principal and agent, and if it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it. Similarly according to Section 110, ibid, which relates to burden of proof as to ownership, when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
In Abdul Latif & Ors Vs. Nagar Vikas Pranyas, Udaipur (supra), the plaintiff filed a suit for injunction. The plaintiff was in long possession and the possession was not by the trespass. UIT did not produce any evidence of vesting of title of land in it. Coordinate Bench of this Court held that long possession raises presumption of title in favour of the plaintiffs and the suit is maintainable even if plaintiffs failed to prove their title and restrained the UIT from interfering with plaintiff's possession.
In Rame Gowda (Dead) by LRs. Vs. M. Varadappa Naidu (Dead) by LRs & Anr. (supra), the Apex Court held that occupant in "settled possession" cannot be dispossessed without recourse to law. 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. When the defendant fails in proving his title to the suit land the (21 of 24) [CSA-62/1997] plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. It is also held that test for "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.
Section 110 of the Evidence Act specifically provides that prima facie person in possession is treated to be owner of the property against the whole world except the true owner.
Learned trial Court had gone in the issue of ownership in the suit for injunction. The First Appellate Court correctly found that in the suit for injunction, title has not to be seen and even if the plaintiff fails to prove his title to the property in dispute, but succeeds in proving his possession, the plaintiff is entitled for a decree of injunction on the strength of Section 110 of the Evidence Act.
Exhibit-5 is no objection letter issued by the defendant-
appellants to the plaintiff-respondent on 16.10.1989 on an application filed by the plaintiff for obtaining water connection. In Ex.5, the defendant-Municipality admitted the ownership of the plaintiff and on the basis of this document, the First Appellate Court decreed the suit of injunction in favour of the plaintiff-
respondent, categorically finding that the plaintiff is in possession of the disputed property and the defendants not being found to be owner of the property under issue No.3 on the basis of evidence given by DW.1-Rajendra Sharma, Executive Officer of the defendants. The 'Patta' (Ex.1) has been referred by the First (22 of 24) [CSA-62/1997] Appellate Court only for the purpose of showing the possession of the plaintiff since Samvat 2004-05 (corresponding year 1947).
While deciding the appeal, the learned First Appellate Court read the 'Patta' in evidence for collateral purpose only which is permitted by proviso to Section 49 of the Registration Act, 1908.
Proviso to Section 49 of the Registration Act provides that an unregistered document affecting immovable property and required to be registered may be received as evidence for collateral purposes in absence of registration.
In view of the above, no illegality has been committed by the First Appellate Court in decreeing the suit of injunction filed by the plaintiff-respondent. As such the second, third and sixth substantial questions of law are answered accordingly.
The fourth substantial question of law is that whether the order passed by Sub-Divisional Magistrate in a proceeding under Section 145 of Cr.P.C. between different set of parties including the plaintiff, could be considered to be relevant for the purposes of proving the possession of the plaintiff for the suit property.
The learned First Appellate Court has not decided the suit merely on the basis of finding of Sub-Divisional Magistrate in a proceeding under Section 145 of Cr.P.C. The learned First Appellate Court found the plaintiff in possession of the property in dispute considering 'Patta' (Ex.1), site plan (Ex.3), no objection letter (Ex.5) issued by the defendants-Municipality and the order passed by the SDM in a proceeding under Section 145 of Cr.P.C., wherein the possession of the plaintiff has been found. The learned First Appellate Court found the possession of the plaintiff (23 of 24) [CSA-62/1997] to be effective, undisturbed and to the knowledge of the defendant-Municipality and decreed the suit for injunction on the strength of settled possession of the plaintiff. Thus, the fourth substantial question of law is answered accordingly.
The fifth substantial question of law is that whether the boundaries of the suit property were not tallying with the 'Patta"
and if so, the effect thereof. The 'Patta' (Ex.1) is of the Samvat 2004-05 (Corresponding year 1947). The learned trial Court dismissed the plaintiff's suit finding that the boundaries of the plot mentioned in 'Patta' (Ex.1) does not tally with the boundaries mentioned in site plan (Ex.3). The First Appellate Court allowed the appeal filed by the plaintiff, finding that after long lapse of time it is not necessary that the boundaries would remain same forever. The First Appellate Court categorically found that the boundaries of the suit property mentioned in site plan (Ex.3) tallies with boundaries of the plot mentioned in no objection letter (Ex.5) issued by the defendant-Municipality, which confirms the possession of the plaintiff and decreed the suit. The First Appellate Court has categorically given reasons of not tallying the boundaries mentioned in the 'Patta' and site plan (Ex.3) that after long lapse of time boundaries may change. The observation of the First Appellate Court with regard to boundaries of the plot is a finding of fact and cogent reasons have been given by the First Appellate Court in this regard, therefore, the fifth substantial question of law is answered accordingly.
In view of the discussions made above, the plaintiff has proved his possession over the land in question from Samvat (24 of 24) [CSA-62/1997] 2004-05 (say year 1947) as patta-holder, the plaintiff is in long and peaceful enjoyment of land in question and the defendant- appellants could not prove their title to the land in question, therefore, the presumption under Section 110 of the Evidence Act applies in this case. The defendant-appellants had to prove that the plaintiff is not the owner but they did not produce any document on record to rebut the presumption. The settled possession gives a right to the plaintiff to protect his possession. The defendant-appellants failed in proving their title over the property so as to substantiate their entitlement to evict the plaintiff. It would be appropriate to leave the question of title open and to determine the suit on the basis of possession, protecting the established possession of the plaintiff and restraining the interference of the defendant-appellants therewith.
No fault has been found in the impugned judgment and decree passed by the First Appellate Court. The appeal is devoid of any substance.
Consequently, the appeal is dismissed. By way of abundant caution, I clarify that the question of title with regard to the property in dispute is kept open.
(DINESH CHANDRA SOMANI)J. A.Arora/-
(Reserved).