Second Appeal No.104 of 2010

28th March, 2014

Petitioner Counsel: Mr. NITIN SARDESSAI, Mr. DEEP SHIRODKAR, Ms. NEHA SHIRODKAR
Respondent Counsel: Mr. R.G. RAMANI

Cases Cited:
Wander Ltd. & Anr. Vs. Antox India P. Ltd., (1990 (Supp.) SCC 727 [Para 3,8]
Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs., 2008(5) ALL MR 451 (S.C.) =(2008) 4 SCC 595 [Para 5]

JUDGMENT

JUDGMENT :- Heard Mr. Nitin Sardessai, learned Counsel appearing for the appellants and Mr. R.G. Ramani, learned Counsel appearing for the respondents.

2. The above second appeal came to be admitted by an order dated 5th January, 2011, on the following substantial questions of law :

(i) Whether the suit as filed by the respondents for injunction simplicitor was maintainable in the absence of the respondents having prayed for declaration, when there was a dispute as regards the respondents' title to the suit property ?

(ii) Whether the appellate Court committed illegality in assessing the evidence on record based on the principles laid down in Wander Ltd. & Anr. V/s. Antox India P. Ltd., (1990 (Supp.) SCC 727), when the appellate Court was not deciding an appeal against an interim Order but was considering a Regular Civil Appeal on merits, for permanent injunction ?

(iii) Whether the appellate Court committed illegality by putting the entire burden on the appellants/defendants of proving their title and possession when the suit for injunction was filed by the respondents, and the learned trial Court had cast the burden of proving all the issues on the respondents ?

3. Shri Sardessai, learned Counsel appearing for the appellants in support of the first substantial question of law has pointed out that the respondents have filed the suit for injunction simplicitor in respect of a property survey No.28/1 of Village Bandolim, Taluka Sanguem, Goa claiming that such a property was a grant by the Government to the respondents. The learned Counsel further points out that according to the appellants they are in possession of a portion of the said property, admeasuring an area of 20,000 sq. metres adjoining to their residential house. The learned Counsel further points out that the appellants have brought material on record to establish that the grant which was granted way back in the year 1942 was in fact resumed by the Government in 1973 on account of default committed by the respondents with regard to the terms of such grant. The learned Counsel further points out that as the grant was itself cancelled, the question of claiming such right to the property on the basis of the original grant/aframento would not arise. The learned Counsel further points out that the appellants have brought material on record to show that there was a checklist by the local Talathi wherein occupation by the appellants was detected to an area of 20,000 sq. metres from the property survey No.28/1. The learned Counsel further points out that after the said checklist, the appellants initiated proceedings for regularisation which were filed before the Deputy Collector concerned. The learned Counsel further submits that this document produced by the appellants, coupled with the document of the delivery of possession of the original grant, conclusively establishes that the respondents have no subsisting right over the suit property and, as such, the lower appellate Court was not justified to grant the injunction in favour of the respondents. The learned Counsel points out that the claim of the respondents that they were in possession of the property has not been established by the evidence on record, nor the learned judge has relied upon any documentary evidence to substantiate such a claim by the respondents. The learned Counsel further submits that when the Government Authorities themselves have found that the appellants were in possession of an area of 20,000 sq. metres, that would itself suggest that the claim of the respondents that they were in possession of the whole property cannot be accepted. The learned Counsel further points out that considering that the land was resumed and such a fact was notified in the official gazette, the respondents were not entitled to file a suit for injunction simplicitor, without seeking a declaration of their ownership and possession of the entire property. The learned Counsel further points out that there was a cloud in the title as well as the claim of possession of the respondents over the suit property and, as such, the suit for injunction simplicitor would not lie. The learned Counsel has, thereafter, taken me through the impugned judgment of the lower appellate Court and pointed out that the lower appellate Court has relied upon a judgment of the Apex Court in Wander Ltd. & Anr. V/s. Antox India P. Ltd., (1990 (Supp.) SCC 727), which is applicable only in discretionary orders, passed in miscellaneous proceedings for temporary injunction. The learned Counsel further points out that without examining the case of the appellants that they were in possession of a specific area of the property, the learned Judge was not justified to pass the impugned judgment. The learned Counsel, thereafter, has taken me through the judgment of the lower appellate Court and pointed out that the learned Judge has misread the documentary evidence produced by the appellants, specially the checklist to draw a conclusion that such a document was not in respect of the suit property, when on a plain reading of the plan attached to the checklist it clearly shows that it pertains to the suit property survey No.28/1. The learned Counsel has thereafter taken me through the recovery possession document produced on record which shows that the possession was taken by the concerned authorities from the widow of the original grantee of the said land. The learned Counsel further points out that all official acts are presumed to be in accordance with law and, as such, as the respondents were disputing the correctness of such a document, it was incumbent upon the respondents to rebut such presumption which they have failed in the present case. The learned Counsel further points out that the learned Judge has erroneously put the burden on the appellants to establish that the thumb impression on the document was that of the widow of the original grantee Smt. Laxmi Naik. The learned Counsel has, thereafter, taken me through the relevant portion of the impugned judgment and pointed out that the learned Judge has totally misconstrued the evidence on record and has erroneously come to the conclusion that the respondents are entitled for the reliefs sought for in the suit.

4. On the other hand, Mr. R.G. Ramani, learned Counsel appearing for the respondents, has supported the impugned judgment passed by the learned lower appellate Court. The learned Counsel has taken me through the findings of the lower appellate Court to the effect that the land was originally granted to one Upaso way back in the year 1942. The learned Counsel further points out that the alleged order of resumption is without jurisdiction as, such proceedings could not be initiated in terms of the Goa Land Revenue Code as the original aframento was granted in terms of the earlier Decree which was then in force. The learned Counsel has further pointed out that the lower Appellate Court has relied upon a judgment of this Court in a writ petition to come to the conclusion that the order of resumption relied upon by the appellants was without jurisdiction. The learned Counsel further points out that the learned Judge has rightly come to the conclusion that the alleged possession may be on the basis of a null and void order which is totally illegal. The learned Counsel further points out that the lower Appellate Court has minutely examined the material on record to come to the conclusion that the appellants have failed to establish that they were in possession of any specific portion of the property. The learned Counsel has, thereafter, taken me through the impugned judgment and pointed out that the learned Judge has examined each and every piece of material produced by the parties to come to the conclusion that the respondents were in possession of the suit property. The learned Counsel further points out that the contention that there is a cloud in the title of the respondents cannot be accepted as, according to him, the original grant itself suggests that the land was given in aframento to the predecessor-in-title of the respondents. The learned Counsel further points out that the question of possession is a question of fact which this Court cannot reappreciate in the second appeal. The learned Counsel further points out that the material on record produced by the appellants by no way suggests that the said orders were acted upon or that such orders would, in any way, affect the rights of the respondents over the suit property. The learned Counsel further points out that during the pendency of the proceedings filed before the Civil Court, the learned Deputy Collector under Section 14 of the Land Revenue Code has directed that the name of the respondent be added in other right's column as a lessee. The learned Counsel as such points out that this itself draws a presumption that the respondents are in possession of the suit property and as such, the judgment of lower Appellate Court does not call for any interference. The learned Counsel further points out that the contention that there was a cloud in the title of the respondents cannot be accepted as according to him, there is no such cloud as the grant is a conclusive document to establish that the respondents are owners of the disputed property. The learned Counsel has taken me through all the documents on record, as well as the impugned judgment and pointed out that there is no case made out for any interference in the impugned judgment.

5. The Apex Court, in the Judgment reported in (2008) 4 SCC 595 : [2008(5) ALL MR 451 (S.C.)] in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and others, has observed at para 21, thus :

" 21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over the 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 the 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 v. Alagammal, (2005) 6 SCC 202). 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 straightforward, 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 the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

6. Taking note of the ratio laid down by the Apex Court, when there is a cloud in the title of the respondent, it is always necessary that a declaration with regard to such a claim of title and possession has to be obtained. In the present case, no doubt, the grant produced by the respondents suggests that the aframento was in fact granted in favour of the predecessor-in-title of the respondents, nevertheless, there is material produced by the appellants, inter alia, to suggest that such a grant came to be resumed. Shri Sardessai, learned Counsel appearing for the appellants also brought to my notice an order passed by the learned Collector, deleting the name of the respondents from the survey record. This aspect, in any event, cannot be considered as leave to produce such a document has not been sought by the appellants and the respondents have not been notified with regard to such aspect. Apart from that, the learned lower appellate Court whilst passing the impugned judgment has noted that the checklist was not in connection with the suit property. A bare perusal of the plan attached to the checklist suggests that the same was in respect of a portion of the property surveyed under No.28/1 which is claimed by the respondents herein. Apart from that, the document which has been produced by the appellants with regard to the recovery of possession after the order of resumption, has also been misinterpreted by the learned lower appellate Court on the ground that the thumb impression has been disputed by Laxmi, who is now deceased. Merely disputing without establishing that the thumb impression was not of the author of the said document, would not justify the lower appellate Court to discard such a document.

7. Be that as it may, taking note of the stand taken by the appellants, in the context of the resumption of the land by the Government and that the appellants had encroached into the property of the Government thereafter and the proceedings for regularisation were also initiated, I find that the suit for injunction simplicitor without a further relief to establish the right to remain in possession by the respondents, prima facie will not lie. On perusal of the impugned judgment of the lower appellate Court, I find that this aspect has not been dealt with by the lower appellate Court whilst granting the permanent injunction in favour of the respondents herein.

8. Considering that the findings of the lower appellate Court were on the basis of misreading of the relevant documents, as well as the well settled principle of law referred to hereinabove, I find that the impugned judgment of the lower appellate Court cannot be sustained and deserves to be quashed and set aside. It is also to be noted that the lower Appellate Court has affirmed the findings of the trial Court on the basis of the principles laid down by the Apex Court in the case of Wander Ltd. and Anr. vs. Antox India P. Ltd. (supra), which were not at all applicable in a substantive appeal preferred by the respondents.

9. In view of the view taken by me whilst dealing with the first substantial question of law, I find that without going into the merits of the rival contentions, it would be appropriate and in the interest of justice to quash and set aside the impugned judgment of the learned lower Appellate Court and remand the matter to the lower Appellate Court to decide the appeal afresh, in the light of the observations made herein above. It is made clear that all the rival contentions raised by the parties, on merits, are left open to be decided in accordance with law.

10. In view of the above, I pass the following order :

(I) The appeal is partly allowed.

(II) The impugned Judgment and Decree dated 14th July, 2010 passed by the District Judge-III, South Goa, Margao in Regular Civil Appeal No.74/2010 is quashed and set aside. Regular Civil Appeal No.74/2010 is restored to the file of the learned District Judge- III, South Goa, Margao.

(III) The learned lower Appellate Court is directed to decide the said appeal afresh in the light of the observations made herein above, in accordance with law.

(IV) All contentions of both the parties, on merits, are left open. The parties are directed to appear before the learned lower appellate Court on 23th June, 2014 at 10.00 a.m.

11. At this stage, Shri Ramani, learned Counsel appearing for the respondents has pointed out that during the pendency of the appeal before the lower Appellate Court, an injunction was in operation against the appellants herein pursuant to an order dated 3rd February, 2010. Needless to say, in view of the fact that the said appeal has been restored to the file of the learned lower Appellate Court, the said order of injunction would be in operation until the disposal of the said appeal on merits, on remand.

Appeal partly allowed.