Gujarat High Court
Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai Deceased Thro Heirs on 24 October, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/8/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 8 of 2016
With
CIVIL APPLICATION NO. 1 of 2016
With
CIVIL APPLICATION NO. 3 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary
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PADHIYAR PRAHLADJI CHENAJI
Versus
MANIBEN JAGMALBHAI DECEASED THRO HEIRS
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Appearance:
JENIL M SHAH(7840) for the PETITIONER(s) No. 1
MR SIKANDER SAIYED(3458) for the RESPONDENT(s) No. 1.1,1.2,1.3
MR VM DHOTRE(1089) for the RESPONDENT(s) No. 2
MR. MAYUR V DHOTARE(7019) for the RESPONDENT(s) No. 2
MS.PRIYANKA J SURTI(6223) for the RESPONDENT(s) No. 2
RULE NOT RECD BACK(63) for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/10/2018
Page 1 of 17
C/SA/8/2016 CAV JUDGMENT
CAV JUDGMENT
1. This second appeal under section 100 of the Civil Procedure Code, 1908 (for short "the CPC") is at the instance of the original defendant No.1 and is directed against the judgment and order dated 7th December, 2015 passed by the 4th Addl. District & Sessions Judge, Banaskantha at Deesa arising from the judgment and decree dated 5th July, 2000 passed by the 2nd Joint Civil Judge (JD), Deesa in the Regular Civil Suit No.123 of 1997.
2. For the sake of convenience, the respondent No.1 shall hereinafter be referred to as the original plaintiff, the appellant shall hereinafter be referred to as the original defendant No.1 and the respondents Nos.2 and 3 shall hereinafter be referred to as the original defendants Nos.2 and 3.
3. The plaintiff instituted the Regular Civil Suit No.123 of 1997 in the court of the Civil Judge (JD), Deesa for cancellation of the registered sale deed, declaration and permanent injunction with respect to the agricultural land bearing Revenue Survey No.49, admeasuring 6 acres and 15 gunthas, situated at the village Mahadeviya, District: Deesa. According to the plaintiff, her husband was addicted to liquor, and as the family was in need of finance, the husband decided to sell 1 acre of the suit land, out of total 6 acres and 15 gunthas, to the appellant herein, i.e., the original defendant No.1. According to the plaintiff, the defendant No.1 fraudulently got the sale deed registered of the entire suit property, i.e., 6 acres and 15 gunthas. The case of the plaintiff is one of fraud alleged to have been played upon her family by the defendant Page 2 of 17 C/SA/8/2016 CAV JUDGMENT No.1. According to the plaintiff, she continues to be in possession of the suit land excluding one Acre of the land which came to be sold by her husband in favour of the defendant No.1. According to the plaintiff, no sooner she came to learn about the alleged fraud, and as the defendant No.1 tried to disturb her settled possession in the suit land, then she instituted the regular civil suit, referred to above.
4. The case of the defendant No.1 herein is that he had purchased the entire suit land, i.e, 6 acres and 15 gunthas by a registered sale deed duly executed by the husband of the plaintiff way back on 17th June, 1975. According to the defendant No.1, he is in possession of the entire suit land and is cultivating past couple of years. According to the defendant No.1, the plaintiff has no right, title or interest in the suit property.
5. Having regard to the pleadings of the parties, the Trial Court framed the following issues;
"1. Whether the plaintiff proves that her husband had given in writing 1 acre land located on the North from survey no. 49 paiki for construction of well?
2. Whether the plaintiff proves that the defendant no.
1 along with defendant no. 2 and 3 got the sale deed of survey no. 49 admeasuring 6 acre - 15 guntha land executed on 17/6/75 for Rs. 4000/- from her husband falsely?
3. Whether the defendant proves that the husband of plaintiff had sold him 6 acre - 15 guntha land of survey no. 49 by registered sale deed dated 17/6/75 and he has the possession of the land since then?
4. Whether the plaintiff is entitled to get declaration as Page 3 of 17 C/SA/8/2016 CAV JUDGMENT prayed?
5. Whether the plaintiff is entitled to get the relief sought?
6. 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) Partly in the affirmative
(4) In the negative
(5) Partly in the affirmative
(6) As per the final order.'
7. The Trial Court, upon appreciation of the oral as well as the documentary evidence, partly allowed the suit. The Trial Court declined to grant the relief of cancellation of the sale deed. However, the trial court believed the plaintiff to be in settled possession of the suit land and, accordingly, granted the relief of permanent injunction. The Trial Court, while answering the issues Nos.4 and 5, has held as under;
"Issue no. 4 (17) As the plaintiff has failed to prove her suit, she is not entitled to get declaratory relief and accordingly, my decision for issue no. 1 and 2 has been given in negative. With regard to issue no.3, as it is proved that defendant purchased 6 acre 15 guntha land of survey no.
49 from the plaintiff and defendant no. 2 and 3 for Rs. 4000/- and as the defendants have failed to prove that out of the disputed land of survey no. 49, they have possession of 5 acre 15 guntha land, my decision to issue no. 3 is given partially in affirmation. Thus, as discussed above, when it is not proved that the plaintiff is entitled Page 4 of 17 C/SA/8/2016 CAV JUDGMENT to get any declaration, my decision to issue no. 4 is given in negative.
Issue no. 5 (18) Defendant no.1 has proved that he purchased 6 acre 15 guntha land of survey no. 49 paiki from the husband of the plaintiff and the defendant no. 2 and 3 by registered sale deed. Moreover, looking to the documents produced for the defendant, it is prima facie found that defendant no. 1 is the owner of 6 acre 15 guntha land of survey no. 49. However, looking to the facts of panchnama of Court Commissioner vide Exh - 45 and statements of the plaintiff and defendant no. 2 and 3 vide Exh - 17 and 18 and evidences of Exh- 49 and Exh - 51, it is not proved that out of 6 acre 15 guntha land of survey no. 49, the defendant does not have possession of 5 acre 15 guntha land. Therefore, my decision for issue no. 5 is given in partially affirmation."
8. The operative part of the order passed by the Trial Court reads as under;
"ORDER The suit of the plaintiff is partially allowed.
It is hereby ordered against the defendant no.1 that he shall not cause any hindrance or obstacle to the plaintiff in carrying out cultivation or agriculture operation on the land under the possession of the plaintiff admeasuring 5 acre 15 guntha land located on the south of disputed land of 6 acre 15 guntha of survey no. 49 paiki situated at Moje Mahadevia village and he shall not take away the possession without any legal procedure.
Parties to bear the cost.
Draw decree as per the order.
9. The defendant No.1, being dissatisfied with the judgment and decree passed by the Trial Court, questioned the same by Page 5 of 17 C/SA/8/2016 CAV JUDGMENT filing the Regular Civil Appeal No.15 of 2000 in the District Court of Banaskantha at Deesa. The lower appellate court, upon re-appreciation of the oral as well as the documentary evidence on record, dismissed the appeal and thereby affirmed the judgment and decree passed by the Trial Court. Some of the relevant findings recorded by the lower appellate court are as under;
"42. Mr. B.K. Acharya, Ld. Advocate of the appellant/defendant No.1, has heavily relief upon the Court Commissioner's report which is produced on record at Exh.81 and 82 in appeal. The appellant had filed the application for appoint the Court Commissioner for preparation of map and panchnama in this appeal and it was allowed by my predecessor in time. As per the Provision of Order 41 rule 27, it is not permissible to bring new evidence. But however, the appellant has tried to establish his possession through the Court Commissioner's report and map by appointing the Court Commissioner in the appeal proceeding. I say that the one Court Commissioner's report and map were also present in the Civil Suit No.123/97. However, in the appeal proceeding, the appellant has got prepared panchnama and map of the property is in question. It appears from the panchnama that electric well is existed and electric connection and one hurt/roof are also existed there. In roof, the household kits are also existed and the name of Mali Prehladji Chenaji is written in one aluminum teen. The Court Commissioner has mentioned above noted well, roof are also existed in the northern direction and the level of northern direction is 1 feet high then the southern side. The house hold kits are lying and buffaloes tied with the trees. The Court Commissioner report and map at Exhs.81 and 82 respectively, indicate that the plaintiff is in possession of the part of the land in measurement of 5 Acre 15 Gunthas.
43. Considering the Court Commissioner's report prepared in the suit proceeding and the Court Commissioner's report prepared in the appeal, I found that the Court Commissioner's report and map at Exh.81 and 82 are not established that the defendant No.1 has Page 6 of 17 C/SA/8/2016 CAV JUDGMENT in exclusive possession over the entire land of 6 Acre 15 Guntha land. It appears from both these panchnama and map that the plaintiff is in possession of land in measurement 5 Acre 15 Gunthas. Hence, I believed that the plaintiff has established her possession in the land in measurement 5 Acre 15 Guntha of Survey No.49 paiki.
44. The Ld. Civil Judge has also relief upon the Court Commissioner's report and panchnama at Exh.45 and he has come to conclusion that the plaintiff is in possession of the land in measurement of 5 Acre 15 Gunthas of Survey No.49. As per my above noted discussion and foregoing reasons, I agree with the finding of the Ld. Trial Judge.
45. Mr. B.K. Acharya, Ld. Advocate of the appellant/defendant no.1 has heavily relief upon the revenue record i.e. village form no.6, village form no.7/12 and village form no.8(A) and the water register and submitted that the name of the defendant no.1 is entered into the revenue record.
46. As per the Section 10 of the Indian Evidence Act, when the entry is mutated in the revenue record, the presumption is drawn in favour of the person whose name is registered in the revenue record. But the presumption is rebuttable and when the presumption is rebutted by either party, then, it cannot be believed that as per the revenue record, the party is in possession. Hence, in the case on hand, the Court Commissioner report got prepared in suit proceeding and in appeal proceeding respectively established that the plaintiff is in possession of a part land of Survey No.49 paiki in measurement of 5 Acre and 15 Gunthas.
48. As per my above noted discussion and foregoing reasons, the appellate is miserably failed to establish that he is in possession in agricultural land in measurement of 6 Acre 15 Gunthas since the date of registered sale-deed. In my view, in registered sale deed disclosed the measurement of 6 Acre 15 Gunthas but the evidence is on record as discussed above which is established that the respondent/plaintiff is in possession of 5 Acre 15 Guntha of Survey No.49 paiki."Page 7 of 17 C/SA/8/2016 CAV JUDGMENT
10. Being dissatisfied with the judgment and order passed by the lower appellate court, the defendant No.1 has come up with this second appeal under section 100 of the CPC.
11. By an order dated 13th January, 2016, this second appeal came to be admitted. The order reads as under;
"1. Heard learned advocate Mr. Ajmera for the appellant and learned advocate Mr. Panchal for the caveator.
2. Learned advocate Mr. Ajmera referring the facts of the case has pointed out that in 1975, the husband of the present plaintiff has sold the land to the present appellant (defendant No.1). That transaction has taken place in 1975. It was agriculture land. The said transaction took place by registered sale deed in 1976. Name of the present appellant (defendant No.1) was entered into revenue record. The husband of the plaintiff passed away, thereafter in 1997 the present suit was filed. Prayer was to set aside sale deed, executed in favour of the present appellant.
3. One of the principal submission advanced by the appellant is Suit is time barred. In this regard attention of the Court was drawn to the relevant discussions in the judgment of appellate Court of Para 37 (Page 31). In substance the appellate Court has held that so far as the cancellation of sale deed is concerned, the relief claimed is time barred. However, so far as other reliefs namely relief of injunction is concerned, it is not time barred. It appears that appellate Court has taken different view then the view taken by the trial Court. Discussion on this point is not satisfactory.
4. On the other hand learned advocate Mr. Panchal has drawn attention of this Court to Para 20 (Page 14) and other relevant part of the judgment of the appellate Court. It was also argued that only 1 Acre land was sold to the present appellant and not 6 Acres 15 Gunthas as claimed by the appellant. It was submitted that the said sale of the 1 Acre land was through Kachcha Chittha. As against this, learned advocate Mr. Ajmera has pointed Page 8 of 17 C/SA/8/2016 CAV JUDGMENT out that the sale deed itself shows the area of 6 Acres 15 Gunthas.
5. Matter requires consideration.
6. Admit.
7. Following questions of law are framed :
(1) Whether in the facts and circumstances of the case, Courts below, particular appellate Court, has committed serious error of law in holding that so far as the relief of cancellation of sale deed is concerned, it is barred by limitation and so far as the relief of injunction is concerned, it is not barred by limitation as plaintiff has continuous cause of action for that relief?
(2) Whether in the facts and circumstances of the case, is it possible to draw conclusion about possession of the either party? Whether in arriving at finding as to the possession Courts below have correctly appreciated materials on record or have committed serious error of law?'
12. Thus, it appears that this second appeal has been admitted on two substantial questions. One of those is whether the relief of permanent injunction could have been granted, more particularly, when the suit has been held to be time barred so far as the main relief of declaration is concerned, i.e., cancellation of the sale deed and the second question is with regard to the possession of the suit property.
13. Both the courts below, upon due appreciation of the oral as well as the documentary evidence on record, has recorded a concurrent finding of fact that the plaintiff is in possession of the suit land excluding the portion which came to be sold by her husband in favour of the plaintiff. In this regard, I am of the view that the findings recorded by the two courts below Page 9 of 17 C/SA/8/2016 CAV JUDGMENT cannot be termed as perverse or erroneous in law. It will not be appropriate for this Court to disturb the concurrent finding of fact with regard to the possession of the suit property.
14. I intend to concentrate on the question whether the suit could have been allowed in part. To put it in other words, whether it is permissible for the court to grant the relief of permanent injunction if the main relief of declaration is declined.
15. Mr. Mehul S. Shah, the learned senior counsel appearing for the defendant No.1 vehemently submitted that when the courts below declined to grant the main relief of declaration, then the consequential relief of permanent injunction could not have been granted. To put it in other words, according to Mr. Shah, the consequential relief would follow directly from the declaration given by the court. If the court has declined to declare the sale deed as a void or voidable document, then in such circumstances, the plaintiff was not entitled to the relief of permanent injunction. According to Mr. Shah, the plaintiff could not have claimed the relief of permanent injunction without praying for declaration, and once the relief of declaration has been declined, the courts below are not justified in granting the consequential relief. In such circumstances, referred to above, Mr. Shah, the learned senior counsel, prays that there being merit in this second appeal, the same be allowed and the impugned judgment and order passed by the lower appellate court be quashed.
16. On the other hand, this second appeal has been vehemently opposed by Mr. Sikander Saiyed, the learned Page 10 of 17 C/SA/8/2016 CAV JUDGMENT counsel appearing for the original plaintiff. Mr. Saiyed would submit that no error, not to speak of any error of law, could be said have been committed by the courts below. According to Mr. Saiyed, fraud was played upon by the defendant No.1 at the time when the husband of the plaintiff executed the sale deed with respect to the suit property. According to Mr. Saiyed, only 1 acre of the land was sold by the husband for total sale consideration of Rs.4,000/- in the year 1975. However, the defendant No.1, fraudulently incorporated in the sale deed, the entire land, i.e, 6 acres and 15 gunthas. According to Mr. Saiyed, there being no merit in this second appeal, the same be dismissed.
17. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that I should not disturb the judgment and order passed by the lower appellate court in exercise of my powers under section 100 of the CPC for the reasons I shall assign hereunder;
17.1 The true test for ascertaining whether the consequential relief, in fact, flows from the declaratory relief is as to whether the said consequential relief can be claimed independently of the declaration as a substantial relief or not. Every injunction in a suit for declaration would not follow from the declaration. In a case where the plaintiff is in possession of the property in his own rights, comes before the court and seeks declaration that the property belongs to him and the other party cannot interfere with his possession, then it cannot be said that as the suit of the plaintiff with regard to the relief of declaration is time barred, the relief of permanent injunction should also fail.
Page 11 of 17 C/SA/8/2016 CAV JUDGMENTThe relief of injunction if can independently be claimed, then in every case, it would not be a consequential relief. It is a settled law that if a person is in settled possession, he cannot be evicted except in accordance with law. Such a person if claims a declaration of his title and injunction that the defendants be restrained from interfering with his possession, then the relief of injunction is not a consequence of the declaration because even if the court is of the opinion that the declaration cannot be made in favour of the plaintiff, then too the court will grant an injunction in favour of the person who is in settled possession.
17.2 In the aforesaid context, I may refer to and rely upon a decision of the Madhya Pradesh High Court in the case of Sabina Alias Farida vs. Mohd Abdul Wasit, reported in 1997 AIR (MP) 25, R.S. Garg, J., (as his lordship then was). His Lordship had the occasion to consider almost an identical issue, of course, in connection with the provisions of the Court Fees Act. However, some of the observations made in the judgment are very apt to the facts of this case. The same are as under;
"Where the plaintiff wants to claim an injunction which is a consequence of declaration or where without declaration of right or status the injunction cannot be granted, Section 7(iv)(c) would apply with full force. Section 7(iv)(d) relates to the relief of the injunction. Article 17 of Schedule II of Court-fees Act refers to certain suits wherein the fixed Court-fee is to be paid. It relates to such reliefs where the plaintiff seeks to obtain declaratory decree where no consequential relief is prayed. Section 7(iv)(c) and Article 17, of Schedule II read together lead to only irresistible conclusions that if no consequential relief is prayed for Section 7(iv)(c) would, not be applicable and plaintiff is not liable to pay the Page 12 of 17 C/SA/8/2016 CAV JUDGMENT Court-fees on the market value pf the property as a simple declaration would be sufficient. The Supreme Court in the matter of Shamshersingh v. Rajinder Prashad, AIR 1973 SC 2384 has observed as under :--
The expression "consequential relief means some relief, which would follow directly from the declaration given, the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a "substantial relief. In the matter of Mahant Purshottam Dass v. Har Narain, AIR 1978 Delhi 114 (FB), the High Court following the observations of the Supreme Court further held that where the Court held that the plaintiffs could not claim the relief of injunction without praying for declaration as prayed for, it must also be held that the relief of declaration and injunction prayed for is a claim to obtain declaratory relief where consequential relief is prayed for.
4. The true test for ascertaining whether the consequential relief in fact flows from the declaratory relief is as to whether the said consequential relief can be claimed independently of the declaration as a substantial relief or not. Every injunction in a suit for declaration would not follow from the declaration. In a case where plaintiff is in possession of the property in his own rights, comes before the Court and seeks declaration that the property belongs to him and the other party cannot interfere with his possession then it cannot be said that plaintiff is required" to pay the ad valorem Court-fees because the relief of injunction is a consequential relief.
As observed above the relief of injunction if can independently he claimed then in every case it would not be a consequential relief. It is settled law that if a person is in settled possession he cannot be evicted except in accordance with law. Such a person if claims a declaration of his title and injunction that the defendants be restrained from interfering with his possession then the relief of injunction is not a consequence of the declaration because even if the Court is of the opinion that the declaration cannot be made in favour of the plaintiff then too the Court will grant an injunction in favour of the person who is in settled possession. Such a person would be called upon to value both the reliefs separately and each of the reliefs would be independent Page 13 of 17 C/SA/8/2016 CAV JUDGMENT of the other. In a suit of this nature the plaintiff is not seeking the relief of injunction as consequential relief but is entitled to claim the same because of his settled possession. In such a case Section 7(iv)(d) of the Court- fees Act would be applicable for valuing the relief of injunction and Article 17 of Schedule II of the Act would provide the Court-fees for the said declaration. In the matter of Sanik Nagar Durga G.N. Samiti v. Indore City Improvement Trust, 1983 MPWN Note No. 66, in almost similar situation where the plaintiff sought for the relief of declaration and injunction to restrain the defendant from starting the construction over the suit land, this Court observed that in fact the plaintiff was claiming two distinct reliefs, one for declaration of title and the other for preventive injunction. The relief of injunction in fact was not consequential to the relief of declaration because even without claiming the declaration relief, plaintiff could have brought the suit on the same pleadings seeking the relief for injunction only. These were two distinct and separate reliefs. The High Court further observed that the relief of injunction though related to question of plaintiffs title, was not consequential to the declaration. In the instant case also the plaintiff has sought-declaration of her title and has prayed for injunction. Each of the relief can be claimed separately. If it is found that the reliefs can be claimed separately then the relief of injunction would not be consequential relief to the relief of declaration. In the case in hands the plaintiff has rightly valued the suit for the purposes of the declaration and was liable to pay Court-fee in accordance with Article 17 of Schedule II. The Court below has not found any fault with the valuation of the relief and payment of Court-fees on the relief of injunction, therefore, it does not need any discussion.
17.3 I may also refer to and rely upon a decision of the Supreme Court in the case of Ram Dan (Dead) Through Lrs.,vs. Urban Improvement Trust, (2014) SCC 902. The relevant observations are as under;
"11. It is settled position of law laid down by the Privy Council in Perry v. Clissold, 1907 AC 73 (PC): (AC p.79) Page 14 of 17 C/SA/8/2016 CAV JUDGMENT "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitation applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title."
The above statement was quoted with the approval by this Court in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165. Their Lordships at para 22 emphatically stated: (AIR p.1175) "22. The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold."
12. The question, therefore, is that in view of the concurrent finding recorded by all the three courts below that the appellant has been in possession of the property (at least from the year 1959) whether the injunction as prayed for by the appellant can be denied? As can be seen from the judgment of the Privy Council referred to supra, a person such as the appellant in possession of land has a perfectly good title against the entire world except the rightful owner. However, the rightful owner must assert his title by the process of law within the period prescribed by the statutes of limitation applicable to the case."
17.4 There are two types of suits for injunction. A suit for injunction simpliciter can be filed by a person without alleging any title to the property but only basing upon the prior possession. A suit for injunction can also be filed contending that the plaintiff has a better title to the property than the defendant and that the plaintiff is also in possession.
17.5 I may also state that in view of the provisions of Section 37 & 38 of the Specific Relief Act, 1963, the Court may grant Page 15 of 17 C/SA/8/2016 CAV JUDGMENT an injunction as a substantive relief without any prayer for a declaration although in many such cases a declaration may be implicit in the grant of a perpetual injunction. The fact that the question of title also may have to be incidentally gone into in deciding whether an injunction can be given or not is not any justification for holding that the suit is to be treated as one for declaration of title and injunction.
18. Thus, in view of the aforesaid discussion, I have reached to the conclusion that I should not disturb the concurrent findings recorded by the two courts below. I am not convinced with the argument of Mr. Shah, the learned senior counsel appearing for the appellant that as both the courts below declined to grant the relief of declaration, the relief of permanent injunction could not have been granted.
19. In the result, this second appeal fails and is hereby dismissed.
20. In view of the order passed in the main appeal, the connected civil applications do not survive and the same are disposed of accordingly. The ad-interim relief, granted earlier, stands vacated forthwith.
(J.B.PARDIWALA, J) After the judgment is pronounced, Mr. Shah, the learned senior counsel appearing for the appellant made a request that the interim order of status quo, granted by this Court, may continue for a period of six weeks from today as his client may Page 16 of 17 C/SA/8/2016 CAV JUDGMENT consider to challenge this judgment before the Supreme Court. The interim order, granted by this Court during the pendency of the second appeal, shall continue for a period of six weeks from today.
(J.B.PARDIWALA, J) Vahid Page 17 of 17