Supreme Court - Daily Orders
Sitaram (Dead) Th. Lrs. vs Sow. Kaveribai @ Kalawatibai (Dead) ... on 4 April, 2019
Bench: Arun Mishra, Navin Sinha
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 5854/2015
SITARAM S/O. GABA @ GOBARYA CHAVAN (SINCE DECEASED)
TH. LRS. & ORS. APPELLANT(S)
VERSUS
SOW. KAVERIBAI @ KALAWATIBAI (DEAD) THR. LRS. & ORS. RESPONDENT(S)
WITH
C.A. NO. 5855/2015
O R D E R
1. The facts lie in a narrow compass. The appellants claimed through one Late Gobarya Thawrya Chavan. It was claimed by them that Late Gobarya Thawrya Chavan was the statutory purchaser of the suit property, who paid the consideration of Rs.1,457/- to the landowner. Accordingly, a certificate under Section 38E read with Section 38(5) of the Hyderabad Tenancy and Agricultural Land Act, 1950 (hereinafter referred to as ‘the Hyderabad Tenancy Act of 1950’) was issued by the Deputy Collector, Vaijapur on 07.01.1958. Thereafter, the name of Late Gobarya Thawrya Chavan was shown in the revenue records as owner in possession of the property for the period 1958-1981.
2. Late Gobarya Thawrya Chavan executed a sale deed in favour of Respondent No.1 qua the suit property on 10.02.1977. The sale deed Signature Not Verified was Digitally signed by registered 8 years later, on 07.06.1985. The appellants NARENDRA PRASAD Date: 2019.04.11 16:35:08 IST questioned the said sale deed on the ground that it was not a Reason:
genuine sale deed as the thumb impression was not that of Late 1 Gobarya Thawrya Chavan.
3. In the year 1982, the name of purchaser/Respondent No.1 was reflected in the revenue record as owner and the name of Late Gobarya Thawrya Chavan was shown in the remarks column. The appellants questioned the entry made in favour of Respondent No.1 on the ground that it was illegal and made in collusion with the revenue officers and at that time there was no registered sale deed in favour of Respondent No.1/Kaveribai @ Kalawatibai.
4. Since Respondent No.1 tried to interfere in the possession of the appellant’s father, namely, Late Gobarya Thawrya Chavan, Late Gobarya Thawrya Chavan filed Regular Civil Suit No.852 of 1986 for perpetual injunction. However, said suit was dismissed for default for appearance under Order IX Rule 8 of the CPC, on 02.08.1991.
5. Late Gobarya Thawrya Chavan did not get the suit restored and the aforesaid dismissal of Regular Civil Suit No.852 of 1986, on 02.08.1991, became final. Later on, Gobarya Thawrya Chavan died on 23.10.2000. Dispute arose in the year 2002 with respect to the passing over the property in question. Tehsildar concerned passed an order dated 17.01.2002 that consent of Respondent No.1 would be required for passing over the suit property. Again, a second suit was filed by the appellants with respect to the suit property i.e. Regular Civil Suit No.202/2002 claiming a decree of declaration of title, possession and permanent injunction. They also questioned the sale deed dated 10.02.1977. It was also contended that order of Tehsildar dated 17.01.2002 was not binding upon the appellants. Prayer was also made to set aside the mutation entries.
6. The Trial Court decreed the suit by judgment and decree dated 23.02.2009 and found that the plaintiffs were in possession of the 2 suit property. Sale deed dated 10.02.1977 had not been produced, hence it was not proved. Even otherwise, the sale deed, in the absence of permission of Collector under Section 50B(2) of the Hyderabad Tenancy Act of 1950, was invalid, illegal and void.
7. On appeal being preferred before the First Appellate Court, the Trial Court decreed the suit on the ground that the suit was barred by limitation, sale deed dated 10.02.1977 was genuine, boundaries were correct, sale deed has been proved, certified copy was filed.
8. In the High Court, Second Appeal No.321 of 2010 was preferred. The High Court initially dismissed the appeal vide order dated 12.09.2011. Thereafter, matter came to this Court. The matter was remitted back to the High Court to frame the substantial questions of law and to decide the appeal afresh. Thereafter, the High Court has decided the appeal and held that the sale deed was merely invalid but not null and void. The High Court also held that there was no jurisdiction with the Civil Court to decide the issue in view of the provisions contained in Sections 98C, 99 and 98A of the Hyderabad Tenancy Act of 1950. With respect to limitation the High court also held that the suit was barred by limitation in view of Article 58 of the Limitation Act read with Section 3 of the Transfer of Property Act. However, with respect to the declaration of possession and injunction the case has been remitted back to the District Judge to decide the question afresh. Hence the appeals have been preferred before this Court i.e. Civil Appeal No.5854/2015 has been filed on behalf of the plaintiffs. The Civil Appeal No.5855/2015 has been preferred on behalf of the defendants as against the limited remand to the First Appellate Court. 3
9. After hearing learned counsel for the parties at length, we are of the considered opinion that since the suit filed by Late Gobarya Thawrya Chavan for permanent injunction and to question the entries made in the year 1982-83 in favour of Respondent No.1 and the same was dismissed on 02.08.1991 under Order IX Rule 8 of the CPC. The provisions of Order IX, Rule 9 of the CPC are clearly attracted and bars the institution of fresh suit. The sale deed of 1977 was required to be questioned within time. However, fresh suit was filed after dispute arose with respect to the right of way in the year 2002. It was not only barred by Order IX Rule 8 but also hopelessly barred by limitation.
10. In the circumstances, as the earlier suit for permanent injunction stood dismissed, the successors of Late Gobarya Thawrya Chavan were not entitled to institute fresh suit for permanent injunction based upon the title they were claiming through Late Gobarya Thawrya Chavan. Thus, we affirm the finding of the High Court on the two issues. However, remand was not at all called for as the second suit for injunction was itself not maintainable, in view of Order IX Rule 9 CPC and it was barred by limitation. Hence, no remand was called for the purpose of grant of injunction. The plaintiffs could not be said to be entitled for any relief in the instant case. Thus, we have no hesitation to dismiss the appeal preferred by the plaintiffs (Civil Appeal No. 5854/2015) and allow the one filed on behalf of the defendants (Civil Appeal No. 5855/2015).
11. In view of the aforesaid, the impugned judgment is set aside in part to the extent it has remanded the matter. Suit of plaintiff(s) stands dismissed.
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12. There shall be no orders as to costs.
13. Pending application(s), if any, shall stand disposed of.
...........................J. [ARUN MISHRA] ...........................J. [NAVIN SINHA] NEW DELHI;
APRIL 04, 2019.
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ITEM NO.104 COURT NO.4 SECTION III
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(S). 5854/2015
SITARAM S/O. GABA @ GOBARYA CHAVAN (SINCE DECEASED) TH. LRS. & ORS. APPELLANT(S) VERSUS SOW. KAVERIBAI @ KALAWATIBAI (DEAD) THR. LRS. & ORS. RESPONDENT(S) WITH C.A. NO. 5855/2015 (III) Date : 04-04-2019 These appeals were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE NAVIN SINHA For the parties Mr. Dhruv Mehta,Sr.Adv.
Mr. Gaurav Agrawal, AOR Mr. C. George Thomas,Adv. Mr. Chitharth Palli,Adv.
Mr. P.N. Mishra,Sr.Adv.
Mr. Fuzail Ahmad Ayyubi, AOR Mr. Abdul Qadir,Adv.
Mr. Ibad Mushtaq,Adv.
Ms. Aditi Gupta,Adv.
Mr. Jayant Mohan, AOR Mr. Saurabh Ajay Gupta, AOR Mr. Nishant Bishnoi,Adv. Ms. Srishti Prabhakar,Adv.
Mr. Sandeep Sudhakar Deshmukh, AOR UPON hearing the counsel the Court made the following O R D E R Civil Appeal No.5854/2015 is dismissed and Civil Appeal No.5855/2015 is allowed in terms of the signed order.
(NARENDRA PRASAD) (JAGDISH CHANDER)
COURT MASTER BRANCH OFFICER
(Signed order is placed on the file)
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