Gujarat High Court
Patel Chaturbhai Ghelabhai vs Patel Manubhai Ghelabhai-Decd. on 27 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/215/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 215 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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PATELCHATURBHAI GHELABHAI
Versus
PATEL MANUBHAI GHELABHAI-DECD.
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Appearance:
MR RAKESH B SHARMA(2521) for the PETITIONER(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/06/2018
ORAL JUDGMENT
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 7th May, 2016 passed by the 2nd Addl. District Judge, Kheda at Nadiad in the Regular Civil Page 1 of 16 C/SA/215/2016 JUDGMENT Appeal No.10 of 2012 arising from the judgment and decree dated 31st January, 2012 passed by the Principal Civil Judge, Mahuda in the Regular Civil Suit No.46 of 2010 which was earlier numbered as the Regular Civil Suit No.208 of 2006.
2. The appellant herein-original plaintiff filed a suit for injunction simpliciter with respect to the suit property. It is the case of the appellant herein that by virtue of partition of the suit properties, he is in possession of the suit land. According to him, a partition deed was executed between the parties dated 28th May, 1999. It is also his case that an entry bearing No.660 came to be mutated in the record of rights with regard to the partition of the suit properties. He had to prefer a suit for injunction as the other side tried to interfere and disturb his settled possession. The respondent herein-original defendant appeared in the suit by filing his written statement. He denied the factum of partition having taken place in the year 1999. The defendant relied on a will dated 20th August, 1996 executed by one Dahiben W/o. Late Ghelabhai Dahyabhai. The parties are all heirs of late Ghelabhai Dahyabhai Patel. The case of the defendant is that by virtue of the will executed by Dahiben, the properties bearing Block Nos. 417, 119 and 486 came to be bequeathed in his favour, whereas the other properties including the houses etc. came to be divided amongst the other heirs. The defendant put forward his case saying that he was the true and lawful owner of the suit property and the plaintiff has nothing to do with the same.
3. The Trial Court, vide Exh.35, framed the following issues;
(I) Whether the plaintiff proves that the suit properties were Page 2 of 16 C/SA/215/2016 JUDGMENT partitioned between himself and the defendant?
(ii) Whether the plaintiff proves that there is an entry mutated in this regard in the records of right i.e,. as regards the partition?
(iii) Whether Dahiben Ghelabhai had the legal right to execute a will as regards the property of her husband, more particularly, when the said property was not of Ghelabhai?
(iv) Is the plaintiff entitled to the reliefs as prayed for?
4. All the aforenoted four issues, framed by the Trial Court, came to be answered in the negative.
5. The Trial Court by judgment and decree dated 31st January, 2012 dismissed the suit.
6. Being dissatisfied with the judgment and decree passed by the Trial Court, dismissing the suit, the appellant herein preferred the Regular Civil Appeal No.10 of 2012 in the District Court, Kheda at Nadiad. The First Appellate Court, on re- appreciation of the entire evidence on record, thought fit to affirm the findings recorded by the Trial Court and dismissed the first appeal. Being dissatisfied with the judgment and order passed by the First Appellate Court, the appellant- original plaintiff is here before this Court with this second appeal under section 100 of the CPC.
7. The following substantial questions of law have been formulated in the memo of the second appeal.
Page 3 of 16C/SA/215/2016 JUDGMENT "(1) Whether in the facts and circumstances of the case, both the lower courts have substantially erred in holding that there was no partition between the plaintiff and the defendant of the suit land?
(2) Whether in the facts and circumstances of the case, bout the lower courts have substantially erred in not believing that the entry in the village form has been made and certified by virtue of partition deed?"
8. Mr. Dave, the learned counsel appearing for the appellant-original plaintiff vehemently submitted that both the courts below committed a serious error in not believing that the partition had taken place by way of a partition deed dated 28th May, 1999. According to Mr. Dave, by virtue of the partition, the suit properties came to the share of his client and he has been cultivating the land in question since a long period of time. It is only when the other side tried to disturb and interfere with the possession that the appellant was left with no other option but to file a suit simpliciter for injunction restraining the defendant from interfering with his possession. Mr. Dave would submit that although his client was not able to prove the so called partition deed, reduced into writing, yet, there is a reference of the same in the revenue records by virtue of mutation of Entry No.660. It is submitted that the courts below ought to have taken into consideration the revenue records for this purpose.
9. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that the two substantial questions of law formulated cannot be termed as substantial in any manner. Both the questions formulated, in my view, are questions of fact. Both Page 4 of 16 C/SA/215/2016 JUDGMENT the courts have concurrently held that the appellant-plaintiff has not been able to establish any right, title or interest over the suit property and, therefore, he is not entitled to the injunction as prayed for. There are concurrent findings of fact recorded by the two courts below that the plaintiff has not been able to prove or establish his possession of the suit property on the date of the filing of the suit. The fact that the appellant failed to prove the so called partition, the matter should come to an end over here. In fact, the partition deed, sought to be relied upon, has not been admitted in evidence by the Trial Court.
10. Mr. Dave, the learned counsel laid much emphasis on the fact that the issue No.3 with regard to the will relied upon by the defendants has been answered in the negative by the Trial Court. According to Mr. Dave, the finding on issue No.3 has been accepted by the defendants. If the defendants failed to prove the will, on the basis of which, they are trying to assert their right, title, interest and possession of the property, then the court below should have accepted and believed the case of the appellant-plaintiff. I am afraid, it is not possible or rather permissible in law to accept the statement of Mr. Dave.
11. In this respect, section 101 of the Indian Evidence Act is relevant. Section 101 of the Indian Evidence Act reads as under;
"101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of Page 5 of 16 C/SA/215/2016 JUDGMENT proof lies on that person."
12. In terms of the aforesaid provision, the burden of proving of fact lies with the party who substantially asserts the affirmative issues and not the party who denies it. This burden of proof never shifts although the onus of proof may shift. Drawing a fine distinction between the burden of proof and onus of proof, the Supreme Court in Addagada Raghavamma & Anr. vs. Addagada Chenchamma & Anr., reported in AIR 1964 SC 136 held that the burden of proof lies upon a person who has to prove the fact and which never shifts. However, the onus of proof shifts. Such shifting of onus is a continuous process in the evaluation of evidence. The plaintiff has failed to create a high degree of probability that the suit land is in his possession. By merely relying upon a revenue entry mutated in the record of rights as regards partition of the suit land, by itself, is not sufficient to believe possession. Even mere production of receipts of payment of revenue is no proof or evidence as regards the possession of the property. Even, otherwise, finding with regard to possession is a pure finding of fact and both the courts below have not believed the possession of the plaintiff.
13. In Suraj Bhan vs. Financial Commissioner, reported in 2007(6) SCC 186, the Supreme Court held as under;
"It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a Page 6 of 16 C/SA/215/2016 JUDGMENT competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors., AIR 1994 SC 1653)."
14. In Sita Ram Bhau Patil vs. Ramchandra Nago Patil, 1977 (2) SCC 49. the Supreme Court observed as under;
"With regard to the record of rights counsel for the appellant said that presumption arises with regard to its correctness. There is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct.
15. Perpetual Injunction can be granted under section 38 of 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.
16. 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.
17. 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.
Page 7 of 16C/SA/215/2016 JUDGMENT
18. 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 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."
19.. 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.
Page 8 of 16C/SA/215/2016 JUDGMENT 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.
20 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 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 Page 9 of 16 C/SA/215/2016 JUDGMENT 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."
21. 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 can or cannot be granted. But these sections do not exhaust all the possibilities.
22. 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 land- owner. 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 Page 10 of 16 C/SA/215/2016 JUDGMENT 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.
23. 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.
24. 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 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 Page 11 of 16 C/SA/215/2016 JUDGMENT 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.
25. 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:
(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?
26. 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;
Page 12 of 16C/SA/215/2016 JUDGMENT "(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 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 Page 13 of 16 C/SA/215/2016 JUDGMENT 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. "
27. 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."
28. In my considered opinion, the aforementioned two proposed substantial questions cannot be regarded as satisfying the test 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 Page 14 of 16 C/SA/215/2016 JUDGMENT 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"
and, 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.
29. In view of the aforesaid discussion, this second appeal fails and is hereby dismissed. At this stage, Mr. Dave, the learned counsel submitted that his client may file a fresh suit for an appropriate declaration. Well, if it is permissible in law for the client of Mr. Dave to file a fresh suit, then he may avail Page 15 of 16 C/SA/215/2016 JUDGMENT of appropriate legal proceedings before the appropriate forum in accordance with law.
(J.B.PARDIWALA, J) Vahid Page 16 of 16