Gujarat High Court
Kokilaben Shankarbhai Patel vs Collector, Banaskantha on 12 September, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/303/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 303 of 2017
==========================================================
KOKILABEN SHANKARBHAI PATEL
Versus
COLLECTOR, BANASKANTHA
==========================================================
Appearance:
MR N P CHAUDHARY(3980) for the PETITIONER(s) No. 1
MR TUSHAR CHAUDHARY(5316) for the PETITIONER(s) No. 1
MR. RAKESH PATEL, ASST. GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1,2,3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/09/2018
ORAL ORDER
1. This second appeal under section 100 of the CPC is at the instance of the original plaintiff and is directed against the judgment and order dated 9th May, 2017 passed by the 7th Addl. District Judge, Banaskantha at Palanpur in the Regular Civil Appeal No.11 of 2014 arising from the judgment and decree dated 28th January, 2014 passed by the Principal Senior Civil Judge, Palanpur in the Regular Civil Suit No.110 of 1992.
2. For the sake of convenience, the appellant shall hereinafter be referred to as the plaintiff and the respondents shall hereinafter be referred to as the defendants.
3. The plaintiff instituted the Regular Civil Suit No.110 of 1992 for permanent injunction. The suit has been instituted on the premise that the plaintiff is in lawful possession of the suit property which is a house and the defendants have no right to disturb or interfere with the peaceful possession of the plaintiff Page 1 of 14 C/SA/303/2017 ORDER over the suit property. It is the case of the plaintiff that as they had no place to reside in Palanpur they purchased the house in question from one Bhagwandas Shernath. According to the plaintiff, her name has also been entered in the property card maintained by the Palanpur Municipality. It is pointed out by the plaintiff that the Mamlatdar initiated proceedings under the provision of the Bombay Land Revenue Code and issued a notice under section 61 of the Bombay Land Revenue Code for removal of the construction. According to the plaintiff, she initiated proceedings under section 37(2) of the Bombay Land Revenue Code, as according to the plaintiff, the land, upon which the house has been constructed, is not of the ownership of the Government.
4. The defendants appeared before the Trial Court and contested the suit by filing their written statement vide Exh.24. The defendants denied the case put up by the plaintiff. According to the defendants, the plaintiff is in unlawful occupation and the house which has been constructed is on a public road. It has been pointed out by the defendants that the original owner, namely, Bhagwandas Shernath had preferred an application dated 3rd November, 1980 to regularize the construction. Such application filed by the original owner came to be rejected by the Collector vide order dated 1st February, 1981 and the proceedings were initiated under section 202 of the Bombay Land Revenue Code. The defendants pointed out that the land upon which the house has been constructed is not an ancestral property. It is a part of the road. According to the defendants, all public roads, lanes and paths, bridges, ditches, dikes and fences which are not the property of others belong to the Government in accordance Page 2 of 14 C/SA/303/2017 ORDER with the provisions of section 37 of the Code, 1879.
5. Having regard to the pleadings of the parties, the Trial Court framed the following issues vide Exh. 25.
"(1) Whether the plaintiff has proved that the House No.Gh/8/200 and House No.1/1835/31/3 comes in her ownership and occupancy?
(2) Whether the plaintiff has proved that the action on the part of the defendant-institute is illegal?
(3) Whether the defendants have proved that the plaintiff made illegal encroachment in front of their house?
(4) Whether the defendants have proved that as Bhagwandas Shernath has no right over the land in question being House No.Gh/8/200 and House No.1/1835/3173, the plaintiff has not acquired any right over the said property?
(5) Whether the suit of the plaintiff is barred by the deficit court fee stamp?
(6) Whether the plaintiff is entitled to get the relief, as prayed for in the suit?
(7) What order and decree?"
6. The issues framed by the Trial Court came to be answered as under;
"(1) In the negative
(2) In the negative
(3) In the affirmative
(4) In the affirmative
(5) In the negative
(6) In the negative
(7) As per final order."
Page 3 of 14
C/SA/303/2017 ORDER
7. The Trial Court, ultimately, upon appreciation of the oral as well as documentary evidence, dismissed the suit holding that the construction of the house is upon a public road and the same is unlawful.
8. The plaintiff, being dissatisfied with the judgment and decree passed by the Trial Court, preferred the Regular Civil Appeal No.11 of 2014 in the District Court of Banaskantha at Palanpur. The first appellate court, upon re-appreciation of the entire oral as well as documentary evidence, dismissed the first appeal filed by the plaintiff and thereby affirmed the judgment and decree passed by the Trial Court.
9. Being dissatisfied with the judgment and order passed by the first appellate court, the plaintiff is here before this Court with this second appeal under section 100 of the CPC.
10. The following questions have been formulated as the substantial questions of law in the memorandum of the second appeal.
"(A) Whether Learned bot lower court erred in considering material on record?
(B) Whether both lower court erred in considering the sale deed in the favour of appellant?
(C ) Whether both court erred in considering the possession of the appellant?
(D) Whether both court erred in considering that aspect that other side had not given oral evidence?
(E) Whether both court erred on considering municipal record in the favour of appellant?
Page 4 of 14 C/SA/303/2017 ORDER(F) Whether both court erred in considering that aspect that authority can denied its own material and record?"
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether any substantial question of law is involved in this second appeal.
12. The concurrent finding recorded by the courts below is to the effect that the original owner, namely, Bhagwandas Shernath had put up the construction of the house on a public road. The land in question is of the ownership of the State Government. In such circumstances, Bhagwandas Shernath had applied for regularization of the construction way back in the year 1980. The request made by Bhagwandas for regularization came to be declined and the proceedings were initiated at the relevant point of time for removal of the construction. It appears that in the meantime, according to the case of the plaintiff, she purchased the property from Bhagwandas Shernath. However, the plaintiff concedes to the fact that there is no registered sale deed in this regard. The question, therefore, that the plaintiff needs to answer, is as regards her title over the property. The suit filed by the plaintiff is simpliciter for permanent injunction without praying for any declaration. If the plaintiff wants to succeed on the ground that she is in possession of the property, she has to show her title over the suit property. Without establishing any title, her suit simpliciter for permanent injunction, in my opinion, is not maintainable in law.
13. Perpetual Injunction can be granted under section 38 of Page 5 of 14 C/SA/303/2017 ORDER the Specific Relief Act, 1963, to the plaintiff "to prevent the breach of an obligation existing in his favour whether expressly or by implication." It can also be granted when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of property.
14. Sections 38 and 41 of the Specific Relief Act, 1963, are to be read together and as supplementary to each other. Section 38 shows as to when perpetual injunction may be granted, while section 41 enumerates cases where injunction may not be granted.
15. In a suit simpliciter for perpetual injunction, although the relief of injunction is a substantive relief by itself, yet a declaration is implicit in the grant of the said relief, although declaration should be claimed in so many words. When a plaintiff comes to the Court for such a relief simpliciter on the basis of his previous possession, he impliedly seeks from the Court a declaration of his possessory title.
16. Now, when a party, claiming to be in possession, claims a perpetual injunction, he can obtain it on the strength of his possession on the date of the suit against the entire world, except against those who can show a better title to the property in themselves. In M. Kallappa Shetty v. M.V. Lakshminarayana Rao, the Supreme Court has held that a plaintiff in possession of the suit property can, on the strength of his possession, resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession. In para-5, the Supreme Court has observed :
"The High Court, in our opinion, erred in coming to the Page 6 of 14 C/SA/303/2017 ORDER 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 resist 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 interference by someone who is not proved to have a better title than himself to the suit property."
17. Section 37 of the Specific Relief Act, 1963, provides that temporary injunctions are such as are to continue until a specified time, or until the further order of the Court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908, while a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a rights, or from the commission of an act, which would be contrary to the rights of the plaintiff. Section 37(2) is the key to the entire controversy. Even in a suit for a permanent injunction simpliciter, where rival contentions as regards possession are made, it has to be considered on merit as to who has a better right for possession.
18. In Sangawwa and others v. Yemnppa and another, AIR 1980 Kant 220, a similar view has been expressed. A suit for permanent injunction simpliciter on the basis of prior possession cannot be decreed unless the trial Court has decided the question of the lawful possession of the plaintiff on the date of the suit. In that case, the plaintiff had filed a suit for permanent injunction against the defendants restraining them by way of an injunction for not interfering with the alleged lawful possession of the plaintiffs as tenants, and the Page 7 of 14 C/SA/303/2017 ORDER defendants claimed to be the owners of the land on the basis of their possessory title which rested on their alleged tenancy in respect of the suit land. It was held in para-4 as under:
"It is undisputable that the plaintiffs brought their action for permanent injunction against the defendants who claim to be the owners of the land in question on the basis of their possessory title rested on their alleged tenancy in respect of the suit land. The crucial point that was for the determination of both trial Court as well as the lower appellate Court in this case was the lawful possession of the suit land by the plaintiffs on the date of the suit The plaintiffs have specifically alleged in their plaint that they were in possession of the suit land as tenants. In other words, the case set up by them was that they were in lawful possession of the suit land on the date of the suit as they were the tenants of the suit land. The claim was against the defendants who claim to be the owners of the land in question. The plaintiffs could not maintain their suit for permanent injunction unless they establish that their possession was lawful and in order to establish that question they must establish that they were the tenants of the suit land as alleged by them. Unless the trial Court has decided the question of lawful possession of the plaintiffs on the date of the suit, the suit of the plaintiffs cannot be decreed since it was directed against the true owners of the land. In such a situation, it is well settled that the question of tenancy is involved for the decision of the Court in a suit for injunction."
19. I am in respectful agreement with this view. The reason is not far to seek. Even if possession is established, the plaintiff would not be entitled to a permanent injunction ipso facto. The relief of perpetual injunction is discretionary. The law of perpetual injunction, although codified, only expresses in general terms the rules acted upon by the Courts of equity, because they are in accordance with justice, equality and good conscience. Sections 38, 39 and 42 of the Specific Relief Act mention the circumstances under which perpetual injunction Page 8 of 14 C/SA/303/2017 ORDER can or cannot be granted. But these sections do not exhaust all the possibilities.
20. As an illustration, take a case in which a tenant comes to the Court contending, inter alia, that he is a tenant-in- possession and that there is a real threat to his possession from the defendant, who may either be a trespasser or a landowner. An injunction to protect his possession can be granted, provided the tenant establishes the alleged right of tenancy. If it is disputed, he has to prove that he is not only in possession but that his possession is referable to his tenancy rights. A corresponding obligation is cast on the defendant, if he is an original owner, not to disturb the right of the plaintiff in respect of possession. A decree can be passed only when the tenancy right of the plaintiff is established in such a situation. To grant relief only on the basis of possessory title would cause injustice, may led to multiplicity of proceedings and in some case deprive the rightful owner of enjoyment of the property.
21. At the cost of repetition, in the present case, the courts below have recorded a concurrent finding of fact that the plaintiff failed not only to prove the partition of the suit land but also failed to establish his possession over the suit land.
22. The question is whether the suit for permanent injunction is maintainable in law in the absence of any specific prayer for declaration. I do not propose to take the view, as a proposition of law, that a mere suit for permanent injunction will not lie or is per se not maintainable in law in the absence of any specific prayer for declaration. However, it would depend upon the Page 9 of 14 C/SA/303/2017 ORDER facts and circumstances of each case. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter is maintainable. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek, in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto, and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or is in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
23. In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Lrs. & Ors., (2008) 4 SCC 594. In this decision of the Supreme Court, four questions arose for consideration. Those questions are stated in para-12. Para-12 is extracted hereunder;
"12. On the contentions urged, the following questions arise for our consideration in this appeal:Page 10 of 14 C/SA/303/2017 ORDER
(i) What is the scope of a suit for prohibitory injunction relating to immovable property?
(ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and injunction ?
(iii) Whether the High Court, in a second appeal under section 100 CPC, examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court?
(iv) What is the appropriate decision?"
24. In para-21, the Supreme Court has summarized the position of law in regard to the suits for prohibitory injunction relating to the immovable property. Para-21 is extracted hereunder;
"(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and Page 11 of 14 C/SA/303/2017 ORDER 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 straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. "
25. In para-31, while allowing the appeal and setting aside the judgment and order of the High Court, the Supreme Court said something on the scope of section 100 CPC. Para-31 is extracted hereunder;
"31. We are therefore of the view that the High Court exceeded its jurisdiction under section 100 CPC, firstly in re-examining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration."
26. In my considered opinion, the aforementioned six proposed substantial questions cannot be regarded as satisfying the test Page 12 of 14 C/SA/303/2017 ORDER of being "substantial questions of law" within the meaning of section 100 CPC. These questions, in my view, are essentially questions of fact. In any event, the instant second appeal does not involve any substantial question of law as contemplated under section 100 of the CPC. I am saying so for the following reasons;
(I) First, the Trial Court and the first Appellate Court, on appreciation of the evidence, has concurrently held that the appellant-plaintiff failed to prove any right, title or interest over the property on the basis of any document and when the appellant-plaintiff himself admits that the so called partition deed has not been exhibited and proved in accordance with law, then such findings, in my opinion, are binding on this court being concurrent in nature.
(ii) Secondly, none of the findings of the two courts below could be termed as perverse to the extent that no judicial person could ever come to such conclusion and the findings recorded by the two courts below are not in conflict with any provision of law governing the issues and that the findings are also not against the pleadings or evidence. In this view of the matter, the findings recorded by the two courts below are not capable of being set aside by this Court in exercise of its second appellate jurisdiction under section 100 of the CPC, rather they are binding on this Court.
(iii) Thirdly, apart from what is held above, the questions formulated are neither debatable nor arguable and nor do they involve any question of law which could be said to arise in the case. In other words, sine qua non for admitting the second appeal, is existence of "substantial question of law in the case"
Page 13 of 14 C/SA/303/2017 ORDERand, therefore, unless the questions framed are debatable, or/and arguable or/and involving any legal question, this Court has no jurisdiction to formulate such questions treating them to be the substantial questions of law.
27. For the foregoing reasons, I see no good ground to disturb the concurrent findings recorded by the two courts below.
28. In the result, this second appeal fails and is hereby dismissed.
(J.B.PARDIWALA, J) Vahid Page 14 of 14