Allowed

Ramsevak Singh Manikraj Singh v. Jang Bahadur Singh Ramcharitra Singh

Bombay HC24 Mar 2006FA/620/1987

Case brief

AI extract

What is this about?

First Appeal filed by plaintiff against a trial court decree granting declaration of trespass and perpetual injunction. The High Court held that since the plaintiff failed to prove title and pleaded adverse possession during cross-examination, equitable relief cannot be granted as demands of equity forbid reinforcing a defective title.

What did the court decide?

Impugned judgment and decree set aside and S.C.Suit No.9256 of 1972 dismissed.

Ramsevak Singh Manikraj Singh Vs Jang Bahadur Singh… — Specific Performance | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 FIRST APPEAL NO. 620 OF 1987.

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 1. Ramsevak Singh Manikraj Singh.
 2. Ujagirsingh Manikraj Singh
 (since deceased through L.Rs.)
 a) Smt.Parkali Devi
 (deleted as per order dt.
 23.11.2005 passed in C.A.
 No.4983/05.)
 b) Lalchand Ujagir Singh
 c) Radheshyam Ujagir Singh
 All residents Village
 Bartharkala, Post: Barthar
 Kala, Dist.Varanasi, U.P.
 d) Smt.Isloka Jayt Singh
 residing at Village Aharak,
 Post: Aharak, Dist.Varanasi,
 U.P. .... Appellants.
 Versus.

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 Jang Bahadur Singh Ram Charitra Singh
 (Since deceased through his L.Rs.)
 (2a)1. Smt.Prabhavati Devi Jangbahadur
 (2b)2. Ramchandra Jangbahadur Singh
 both residing at Jang Bahadur
 Chawl, Kurar Village, Malad
 (East), Mumbai 400 097. .... Respondents.

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 Shri H.V.Gala i/by M/s.H.V.Gala & Co. for the
 Appellants.

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 Shri Avinash Avhad with Ms.Meena Kshirsagar for the
 Respondents.

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CORAM : ABHAY S. OKA, J.
DATED : 24th March, 2006.

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ORAL JUDGMENT.

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 1. Heard the learned Counsel appearing for the

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 parties. The First Appeal is filed by the original
 Defendants taking exception to the Judgment and Order
 passed by the learned Judge of the City Civil Court on
 14th July 1987. The Respondents are the legal
 representatives of the original Plaintiff. By the said
 Judgment and order, the learned Judge granted
 declaration that the Appellants are the trespassers in
 respect of a portion admeasuring 40’x16’ of CTS No.343
 corresponding to Survey No.22/1D of village Kurar,
 Mumbai. The Appellants were directed to remove the
 structure on the portion admeasuring 40x16’ and
 perpetual injunction was also granted restraining them
 from carrying out any construction.

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 2. With a view to appreciate the submissions made
 by the learned Counsel appearing for the parties, it
 will be necessary to refer to the facts of the case in
 brief. The Respondents filed a suit for declaration
 that the Appellants are the trespassers on the aforesaid
 portion of land admeasuring 40’x16’. The Respondents
 also claimed perpetual injunction. The case of the
 original Plaintiff is that by a lease agreement dated
 3rd July 1960, he took a plot of land admeasuring 1000
 square yards together with a hut standing thereon
 bearing Survey No.22, Hissa No.1 (part) situated at

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 village Kurar, Malad (East), Mumbai. According to the
 case of the Respondent one Bablya Jivlya Warli was the
 landlord who had let out the said land to the
 Respondents at the monthly rent of Rs.10/-. According
 to the case of the original Plaintiff, sometime in
 December 1960, he converted the original hut standing on
 the suit plot into a shed admeasuring 35’x31’. The case
 of the original Plaintiff is that he is the lessee of
 the said plot and the owner of the said structure
 constructed by him. The case of the Plaintiff is that
 on 8th October 1972 when he was away at his native
 place, the Appellants trespassed on a portion of the
 suit land admeasuring 40’x16’ and constructed a
 structure thereon. According to the case of the
 original Plaintiff, he filed complaints with the various
 authorities. On 9th October 1972, when the original
 Plaintiff came back to Bombay, he noticed unauthorised
 construction being carried on by the Appellants.

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 3. The suit was contested by the Appellants by
 filing written statement. The Appellants contended that
 neither the original Plaintiff nor his
 predecessor-in-title of Bablya Jivlya has anything to do
 with Survey No.22, Hissa No.1. It is contended that
 Bablya had executed similar bogus lease deeds in favour

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 of other persons. It is pointed out that in the year
 1967 a similar suit was filed by the original Plaintiff
 against the Appellants and the Mumbai Municipal
 Corporation which came to be withdrawn. It is suggested
 that the said land originally belonged to Estate &
 Finance (Pvt.) Ltd. According to the case of the
 Appellants one Ratanchand Hiranchand Baldota filed an
 application before the Tahsildar, Borivali against the
 said company. An enquiry was held and the name of the
 Appellants was mutated in the Revenue Records.

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 4. The learned trial Judge framed issues and the
 parties led their respective evidence in support of
 their case. The learned trial Judge held that the
 original Plaintiff has failed to prove the title of his
 predecessor Bablya Jivlya Warli in respect of the suit
 land. It is also held that he has failed to prove that
 he took on lease land admeasuring 1000 sq.yards from the
 said Bablya. The trial Court however found that the
 Plaintiff was in possession of the suit land and that
 the Appellants have illegally encroached upon the area
 of 40’x16’.

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 5. The learned Counsel for the Appellants submitted
 that the suit filed for declaration and injunction was

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 on the basis of title. The title as pleaded in the
 plaint was that the Plaintiff was a lessee in respect of
 the suit land. He submitted that as the socalled
 document of lease was not admissible in evidence and as
 the Plaintiff has failed to prove title of his
 predecessor-in-title, he cannot succeed in the suit as
 the suit is based on the title. He also pointed out
 that in the earlier suit, the Plaintiff has tried to
 claim adverse possession. He, therefore, submitted that
 the suit ought to have been dismissed only on the ground
 that the Plaintiff had failed to prove his title.

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 6. The learned Counsel for the Respondents
 submitted that there is voluminous evidence on record to
 prove the long standing possession of the Plaintiff. As
 the Plaintiff has established his prior possession and
 dispossession at the hands of the Appellants, no
 interference can be made with the mandatory injunction
 granted by the trial Court as even the Appellants have
 failed to establish that they have any title to the suit
 land. He submitted that as the possession of the
 Plaintiff is established on the basis of evidence on
 record, the learned trial Judge was right in passing the
 decree for mandatory injunction. He submitted that the
 only declaration which is granted is that the Appellants

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 are trespassers. He pointed out that the Appellants
 have not proved their title and therefore the
 declaration granted cannot be disturbed.

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 7. I have considered the submissions. The trial
 Court has held that the so called document of lease on
 which reliance was placed by the Plaintiff is

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 insufficiently stamped. The learned Judge also found
 that the said document is not registered. Taking the
 case of the Respondents as it is, section 107 of the
 Transfer of Property Act, 1882 makes the document
 compulsorily registerable. Therefore, the learned Judge
 found that the socalled document of lease was not
 admissible in evidence.

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 8. The case of the Plaintiff was that the said
 Bablya was the owner of the suit land. It is pertinent
 to note that the Plaintiff made no efforts to examine
 the said Bablya. It is pertinent to note that in
 paragraph 11 of his examination-in-chief, the Plaintiff
 has stated thus:

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 "11. I am claiming right to the suit land
by adverse possession as also as a person
claiming through Bablya. I have stopped

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paying ren to Bablya from 1974-75. I am
claiming adverse possession in respect of the

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suit land even against Bablya and maintain
that I am the owner of the suit land. As I
came to know that Bablya had no interest in
the suit land, I stopped paying rent to him.
 I came to know of it in 1974-75. I did not
 intimate Bablya that I will not pay the rent
 to him as he was not the owner. Since
 1974-75, Bablya never sent me a notice
 demanding rent. He was not even filed any
 suit against me to evict me from the suit
 land." (Emphasis supplied).

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 Thus in examination-in-chief itself the Plaintiff has
 stated that he was claiming adverse possession even
 against the said Bablya. For the first time he came out
 with a case that he was the owner of the suit land. He,
 however, explained that he has came out with the said
 case as he came to know that Bablya has no interest in
 the suit land. Thus in the suit filed on title based on
 lease executed by the said Bablya, in examination-in
 -chief itself the Plaintiff has completely changed his
 stand and tried to contend that he was claiming adverse
 possession. He in fact contended that Bablya had no

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 interest in the suit land. It is pertinent to note that
 even as an alternative pleading, plea of adverse
 possession is not found in the plaint. The Plaintiff
 who based his suit on the basis of title as a lessee has
 virtually given up his case in his examination-in-chief
 itself by stating that his predecessor had no title.

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 9. The learned trial Judge even after recording a
 finding on this aspect in favour of the Appellants has
 proceeded to pass a decree against the Appellants. In
 fact declaratory decree is passed holding that the
 Appellants are trespassers. So far as the relief of
 declaration is concerned, it is governed by section 34
 of the Specific Relief Act, 1963. It is well settled
 that the relief of declaration is an equitable relief.
 The same is the case with grant of perpetual injunction
 under the said Act of 1963. In a decision of the Apex

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 Court reported in (2005) 11 S.C.C. page 109

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 (Kanchusthabam Satyanarayana and others v/s. Namuduri
 Atchutaramayya and others), the Apex Court held that
 discretionary relief such as injunction being in the
 nature of equitable relief must be granted interalia on
 consideration of equity and justice, and appellant who
 is himself guilty of inequitable conduct cannot claim
 such relief. Another decision of the Apex Court relied

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 upon by the Appellants is reported in (1995) 3 S.C.C.

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 page 426 (Nagar Palika, Jind v/s. Jagat Singh,
 Advocate). This was a case wherein the
 Respondent-Plantiff had failed to prove his title and
 inspite of this fact it was submitted that even if he
 has failed to prove his title, the suit filed by him
 should be treated as based on possession and
 dispossession in terms of section 6 of the Specific
 Relief Act, 1963. The question considered by the Apex
 Court is as under:

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 "Once a suit has been filed by the Respondent
 claiming to be the owner and being in
 possession of the land in question, how the
 suit can be treated as a suit based on
 possession and dispossession without
 reference to the title.?"

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 The Supreme Court answered the question in the following
 words:

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 "Disputed questions of title are to be decided
 by due process of law but the peaceful
 possession is to be protected from the
 trespasser under section 6 of the Act without

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 regard to the question of the origin of the
 possession. Such suit can be entertained and
 decreed only where both the plaintiff and the
 defendant have no title to the suit land, but
 as the plaintiff proves his prior possession,
 because of that he is entitled to a decree for
 possession against the defendant who has
 dispossessed him. The plaint of such a suit
must aver only previous possession and
dispossession by the defendant, otherwise than

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in due course of law." (Emphasis supplied).

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 In paragraph 9 of the decision, the Apex Court for the
 reasons stated earlier declined to apply provisions of
 section 6 of the Specific Relief Act, 1963 to a suit
 on title filed by the Respondent.

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 10. The learned Counsel for the Respondents

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 attempted to argue that the suit may be treated as one
 filed on the basis of prior possession. A perusal of
 the plaint shows that the Respondent claimed title as a
 lessee through Bablya. The plaint does not proceed
 merely on the averment that the Plaintiff was in
 possession and was dispossessed within a span of 12
 years prior to the date of institution of the suit. The

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 Plaintiff has based his suit on his title as a lessee.

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 11. As stated above, the relief of declaration and
 injunction is a discretionary relief. Such reliefs can
 be granted only on consideration of equity. This was a
 case wherein not only the Plaintiff failed to prove his
 title but in examination-in-chief itself he gave up the
 title and tried to set up a plea of adverse possession.
 In fact what was stated by him is that his predecessor
 in title Bablya had no title. He attempted to claim
 ownership over the suit land though in the plaintiff he
 claimed to be a tenant of Bablya. The Plaintiff also
 suppressed the fact of having filed earlier suit against
 Bombay Municipal Corporation and the Appellants. This
 was not at all a case for grant of relief of injunction
 as the Plaintiff has admittedly failed to establish his
 title which was pleaded in the plaint. Even if the
 Appellants did not establish their title, in such a suit
 a negative declaration could not have been granted by
 the learned trial Judge. The substantive prayers for
 declaration and injunction were based on title and if
 the Plaintiff has failed to establish the title, the
 suit ought to have been dismissed. The Plaintiff
 claimed title in the suit. In examination-in-chief he
 admitted that he cannot claim tenancy as the said Bablya

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 had no title. Now the Plaintiff cannot say that relief
 should be granted to him only on his prior possession.
 The suit is not based only on his prior possession.
 Equitable considerations demand that discretionary
 relief of declaration and injunction should not be
 granted in favour of such Plaintiff.

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 12. Accordingly the Appeal succeeds and the
 following order is passed:

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 i) The impugned Judgment and decree is set
 aside and S.C.Suit No.9256 of 1972 stands

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 dismissed.

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 ii) There will be no order as to costs

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 throughout.

¶61

 Judge.

Ramsevak Singh Manikraj Singh v. Jang Bahadur Singh Ramcharitra Singh

Case brief

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What did the court decide?

Ramsevak Singh Manikraj Singh v. Jang Bahadur Singh Ramcharitra Singh

Case brief

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