Smt. Noor Fathima Jamal Vs Union of India

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.06.2023 PASSED IN O.S.NO.4583/2016 ON THE FILE OF THE 69TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR INJUNCTION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful plaintiff assailing the judgment and decree rendered in O.S.No.4583/2016 wherein the plaintiff's suit for injunction simplicitor is dismissed.

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For the sake of convenience the parties are referred to as per their rank before the trial Court.

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The facts leading to the case are as under:

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The plaintiff claims to be the absolute owner of the suit schedule property bearing New Corporation No.18/21, PID No.97-30-18/2-1, situated at 6th Cross,

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Rahamathnagar, Bengaluru, within the limits of BBMP Old Ward No.97 and New Ward No.33, measuring East to West

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22 feet and North to South 3 feet. The plaintiff asserts ownership and lawful possession over items 1 and 2 of the suit property based on two registered sale deeds dated 21.01.2004 and 18.09.2013. In support of his claim, the

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plaintiff also relies on revenue records, asserting that the competent authorities have acted upon the said sale deeds, resulting in mutation and issuance of khata in his name in respect of the suit property. The plaintiff alleges that he was constrained to institute the present suit after the defendants, under the mistaken belief that he had encroached upon defence land and constructed a residential house thereon, began interfering with his peaceful possession, thereby giving rise to the present cause of action.

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Upon service of summons, the defendants entered appearance and filed a detailed written statement,

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denying the entire averments made in the plaint. The defendants specifically contended that the suit schedule property forms part of Survey No.19/1, measuring 1 acre

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20 guntas, which is owned by the Union of India. The defendants further alleged that the plaintiff had, in a highhanded manner, constructed a residential structure on Survey No.19/1, which constitutes defence land. They submitted that action has been proposed against the plaintiff under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (‘Act, 1971’) for his alleged illegal occupation and encroachment. On these grounds, the defendants contended that there exists no cause of action and that the suit, being one for bare injunction, is not maintainable and is liable to be dismissed.

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The matter was taken up for full-fledged trial. In order to establish his claim, the plaintiff examined himself as P.W.1 and an independent witness as P.W.2, and produced 11 documents, which were marked as Exhibits P1 to P11. The defendants, in turn, examined two officials as D.Ws.1 and 2 and relied on 16 documents, which were marked as Exhibits D1 to D16. Upon

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appreciation of the oral and documentary evidence, the trial Court, while addressing Issue No.1, recorded inconsistent findings. In the initial part of its reasoning, the Court held that the plaintiff had succeeded in establishing his lawful possession and observed accordingly. However, while concluding on Issue No.1, the Court, relying on a City Survey conducted in 1960, took the view that the plaintiff had encroached upon defence land and had put up illegal construction thereon. Consequently, Issue No.1 was answered in the negative, and Issue No.2, which was dependent on the finding on Issue No.1, was also answered in the negative, resulting in dismissal of the suit.

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Learned counsel appearing for plaintiff

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reiterating the grounds urged in the appeal memo has extensively argued and relied on several admissions elicited in the cross-examination of D.Ws.1 and 2. Referring to the title documents, more particularly, the photographs, he has urged this Court to reverse the

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decree referring to the photographs which clinches the factum of possession of the plaintiff over the disputed property.

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Per contra, the learned counsel appearing for the Union of India, placing emphasis on the rebuttal evidence adduced by the defendants, has strongly relied upon Ex.D11 being the revenue survey conducted by the authorities along with the sketch of field CTS No.631 marked as Ex.D14 and the boundary sketch from the joint survey report marked as Ex.D15. It is contended that these documents, which are based on a spot inspection, conclusively establish the fact of encroachment by the plaintiff while constructing a residential house in Survey No.19/1, which is admittedly defence land. Referring to these materials, the learned counsel would submit that the plaintiff has failed to prove lawful possession over the suit schedule property, and therefore, the Trial Court was fully justified in dismissing the suit. He submits that the appeal

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is devoid of merit and accordingly deserves to be dismissed.

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As a second limb of argument, the learned counsel for the Union of India contends that the competent authority has already initiated proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The plaintiff has suffered an eviction order passed by the Estate Officer, which has subsequently been confirmed by the Appellate Authority in MA No.77/2022. In view of the concurrent findings rendered by statutory authorities, the learned counsel submits that the appeal is liable to be dismissed.

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Having heard the respective counsels and upon

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perusal of the records, this Court has carefully considered the documentary and oral evidence placed on record by both parties. The Court places on record its appreciation for the effective assistance rendered by learned counsel on

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both sides during the course of arguments, particularly in the context of appreciating the evidentiary materials.

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In light of the pleadings, evidence, and rival submissions, the following points arise for consideration:

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(i) Whether the finding of the Trial Court that the plaintiff failed to prove her lawful possession and enjoyment of the suit schedule property as on the date of the suit suffers from perversity or is contrary to the admissions elicited during the cross-examination of D.Ws.1 and 2?

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(ii) Whether the judgment and decree of the Trial Court suffers from any legal infirmity or error warranting interference by this Court in appeal?

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(iii) What order?

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FINDINGS ON POINTS (i) AND (ii):

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The plaintiff claims to be in lawful possession of

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the suit schedule property on the strength of two

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registered sale deeds dated 21.01.2004 and 18.09.2013,

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which are marked in evidence as Exhibits P1 and P2. These title deeds, according to the plaintiff, pertain to land situated in Survey No.19/2. Significantly, the defendants do not assert any claim over Survey No.19/2. Their sole contention is that the plaintiff, while purporting to construct a residential building within the boundaries of Survey No.19/2, has in fact encroached upon a portion of Survey No.19/1 land which is undisputedly owned by the Union of India and has constructed a house thereon. Thus, the crux of the defendants' grievance lies not in a challenge to the plaintiff's title per se, but in the alleged encroachment over defence land situated in Survey No.19/1.

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Upon a closer scrutiny of the pleadings and the documentary evidence on record, this Court is of the considered view that the core issue in the present case does not involve a conflict of title between the plaintiff and the defendants. The plaintiff, in unequivocal terms,

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acknowledges that Survey No.19/1 is defence land belonging to the Union of India. At the same time, the plaintiff firmly asserts that she is the absolute owner of a portion of land in Survey No.19/2, based on the registered sale deeds referred to above. Her categorical stand is that the residential house in question has been constructed strictly within the boundaries of Survey No.19/2 and that there is no encroachment whatsoever into Survey No.19/1. Thus, the plaintiff’s case is premised on the demarcation between the two survey numbers and the assertion that her construction falls entirely within private land conveyed to her through valid sale transactions.

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In order to rebut the plaintiff’s assertion, the defendants have placed heavy reliance on Exhibit D15, which is a survey sketch prepared by the competent authorities. This sketch, which pertains to Survey No.19/1 (now assigned CTS No.631), purports to show that several structures, including residential houses, have been built by various individuals by encroaching into Survey No.19/1

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from the adjoining Survey No.19/2. However, a careful examination of Exhibit D15 reveals that while the document may indicate encroachments in general, it fails to precisely identify the extent or specific portion of land alleged to have been encroached upon by the plaintiff. In other words, there is no clear delineation in the sketch or in the accompanying records that demarcates the exact encroachment attributed to the plaintiff's property. This lack of specificity in the rebuttal evidence significantly weakens the defendants’ case.

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In this context, it becomes essential for the Court to examine the oral testimony of the parties, particularly that of D.W.1, an official representing the Union of India. During cross-examination conducted on 08.07.2022, several material admissions were elicited from D.W.1, which bear directly on the issue of possession and the alleged encroachment. In order to appreciate the evidentiary value of this testimony, this Court deems it appropriate to extract the relevant portion of the cross-

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examination recorded at Page No.2, which reads as

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follows:

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"If questioned the plaintiff is in physical possession of the properties ever since from the date of purchase and also put up construction therein, witness replies the plaintiff is in possession, but there is encroachment. If questioned what is the extent of encroachment, the witness replies encroachment is of 670.4 sq.ft. If questioned what is the total extent of plaintiff's property, witness replies both the property of plaintiff are within the encroached portion."

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The above extracted portion of the cross-

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examination of D.W.1, an official representing the Union of India, clearly reveals a significant admission regarding the possession of the plaintiff. This witness has categorically admitted that the plaintiff has been in physical possession of the suit property ever since its purchase and that the construction of a residential house by the plaintiff on the

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said land is a matter of record. The admission as to possession is unequivocal and goes to the root of the

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plaintiff’s case, especially in a suit for injunction where possession plays a pivotal role.

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However, despite this categorical admission, D.W.1 attempts to dilute its effect by asserting that the plaintiff has encroached into Survey No.19/1 to an extent of 670.4 square feet. While such a claim has been made, a closer examination of Ex.D15 the joint survey sketch reveals that there are multiple alleged encroachments into Survey No.19/1 by various site owners in the adjoining Survey No.19/2. The document reflects a broader issue of encroachment in the area, but crucially fails to delineate with specificity the exact portion allegedly encroached by the plaintiff. There is no independent or conclusive rebuttal evidence establishing the demarcation between Survey Nos.19/1 and 19/2 vis-à-vis the plaintiff’s constructed house. Thus, while the defence alleges that 670.4 square

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feet have been encroached by the plaintiff, there is no clear material on record substantiating this precise extent

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or identifying the coordinates of such encroachment

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attributable to the plaintiff alone.

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Further material admissions are elicited in the continued cross-examination of D.W.1, recorded at Page No.3 of the transcript. These statements, too, are relevant in appreciating the nature of the alleged encroachment and the extent of evidence produced by the defendants. For the sake of completeness and ready reference, the relevant portion of the cross-examination is extracted as follows:

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"If questioned in the year 1995 Officer of Army has surveyed the property and prepared sketch, the suit schedule property of plaintiff are falling outside the property belonging to Union of India property. Witness replied I have not seen the sketch. Ex.P8 discloses construction being made in the property of the plaintiff, witness replied construction is made. I am not personally aware when the construction now shown to be are constructed, I am not aware the constructions were in existence before filing this suit. Union of India has not disputed the survey on 23.08.1995, witness replied I do not know."

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On reading this part of the cross-examination, a very interesting details are brought on record by way of cross-examination. Plaintiff while cross-examining this official has made crucial suggestions that survey was conducted in 1995 and sketch is prepared and as per the sketch the construction undertaken by plaintiff falls beyond the compound wall constructed by defendants. The culled out portion of the cross-examination clearly demonstrates that plaintiff by way of suggestion has succeeded in eliciting that suit schedule property owned by the plaintiff falls outside the property owned by the UOI.

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The next relevant portion of the crossexamination, which is candidly admitted not only by the witness but also by the counsel appearing for UOI, needs to be culled out. The relevant portion which is found at Page 4 of the cross-examination is extracted, which reads as under:

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"If questioned the plaintiffs are in possession of their property and Estate Officer initiated proceedings under

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Public Premises (Unauthorised Occupants) Act. It is true the proceedings are pending before Estate Officer of Army. If questioned Officer of our establishment try to interfere in the possession of plaintiff, witness replies I have no knowledge. Plaintiff has issued Section 80 of CPC notice to the Union of India and Estate Officer as per Ex.P6, witness replies I have no knowledge."

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Upon examining the relevant portions of the cross-examination, it becomes evident that the defendants being a central government agency have invoked the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. During the cross-examination of the plaintiff, the defendants specifically suggested that proceedings under the said Act have been initiated against her. This assertion is also affirmed by D.W.2, who, in unequivocal terms, admits that eviction proceedings have in fact been instituted against the plaintiff. The said admission stands corroborated by the extracted portions of his testimony, thereby establishing that statutory proceedings under the Act, 1971 are already underway.

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In light of the above, and on a comprehensive assessment of the material on record, this Court finds that the evidence adduced by the plaintiff clearly establishes that she has constructed a residential house and is in settled physical possession of the suit schedule property. It is pertinent to note that the present suit is one for injunction simplicitor, and thus the question of title does not fall for consideration. The trial Court has rightly declined the plaintiff’s attempt to convert the suit into one for declaration of title, and this position has also been affirmed by this Court in the writ proceedings, wherein it was held that the issue of title is not germane to the adjudication of the present suit.

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Once possession is established particularly

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when such possession is preceded by registered title documents, namely the sale deeds dated 21.01.2004 and 18.09.2013 the burden shifts to the defendants to prove that the construction has encroached upon defence land. Though the authorities are undoubtedly entitled to recover

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public land including every inch of defence property, such recovery must be preceded by a lawful and accurate enquiry. In the present case, the rebuttal evidence, especially Ex.D15 (the survey sketch), fails to disclose with any specificity the exact portion alleged to have been encroached by the plaintiff.

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On an objective assessment of the documentary and oral evidence placed by both parties, this Court finds that the plaintiff cannot be branded as a rank trespasser. The records do not reveal any deliberate squatting or highhanded encroachment over defence land. Rather, it appears that the plaintiff, who does not belong to an affluent background, has constructed a modest residential house based on two registered sale deeds. The structure appears to be old, and the photographs produced by the plaintiff and marked as Ex.P8 series reflect the existence and continued possession of the suit property. These visuals further support the plaintiff’s assertion of settled possession.

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In view of the title documents produced by the plaintiff and her consistent assertion that the residential house is constructed within Survey No.19/2 not Survey No.19/1,the Court is constrained, in the peculiar facts and circumstances of this case, to record a finding that the plaintiff's possession is prima facie lawful. Though the defendants contend that the residential house falls within Survey No.19/1, it is incumbent upon them to substantiate this claim with clear and cogent evidence identifying the precise encroachment. That burden, in the opinion of this Court, remains unfulfilled.

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In a suit for bare injunction, the scope of adjudication is limited to determining whether the plaintiff was in lawful possession as on the date of the suit and whether such possession was interfered with or threatened by the defendant. Although the defendants may have subsequently initiated eviction proceedings under the provisions of the Act, 1971, such initiation does not nullify the cause of action that existed as on 23.06.2016 the date

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on which the suit was filed. The record reflects that there was indeed a threat of dispossession by the defendants at the relevant time. Therefore, this Court is of the considered view that the plaintiff is entitled to limited protective relief in the form of an injunction. However, such a decree shall be subject to the outcome and implementation of the order passed by the appellate authority in Misc. Appeal No.77/2022.

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Against this backdrop, this Court finds that the learned Trial Judge has misdirected himself by misreading the pleadings and failing to properly appreciate the evidence led by both parties. The plaintiff’s case is founded upon two registered title documents and a consistent belief that the construction undertaken by her lies within the boundaries of Survey No.19/2. There is no material on record to conclusively establish that the plaintiff knowingly encroached upon Survey No.19/1. On the contrary, the evidence indicates that the two survey numbers are physically demarcated by a newly constructed compound

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wall erected by the defence authorities. This physical

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boundary further supports the plaintiff’s assertion that she constructed the residential house under a bona fide belief that it falls within private land. The trial Court’s failure to consider these nuances has led to an erroneous dismissal of the suit.

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In that view of the matter, points (i) and (ii) are answered in the affirmative .

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CONCLUSIONS:

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I. Having reappreciated the entire evidence on record and examined the findings of the learned Trial Judge, this Court is of the considered view that the

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judgment and decree passed by the Trial Court in dismissing the suit suffers from material irregularities and a misreading of the evidence. The Trial Court, while observing that the plaintiff had established possession, contradicted itself by ultimately holding against the plaintiff without clear legal justification.

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II. The evidence placed on record by the plaintiff, including two registered sale deeds (Exs.P1 and P2), the khata and revenue entries, and the photographic evidence (Ex.P8 series), clearly establishes her physical possession over the suit schedule property. The admissions made by D.W.1 and D.W.2 in cross-examination further support the plaintiff’s case that she is in settled possession and has constructed a residential house over the suit property. The evidence of the defendants, particularly the survey sketch marked at Ex.D15, while indicating general encroachments, fails to specifically identify the extent or precise area allegedly encroached upon by the plaintiff. The rebuttal evidence, therefore, is vague and insufficient to dislodge the plaintiff’s claim of lawful possession.

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III. In a suit for bare injunction, the only relevant considerations are whether the plaintiff was in possession as on the date of the suit and whether such possession was interfered with or threatened. It is settled law that even a person in settled possession without title is entitled

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to seek protection against unlawful dispossession. In the present case, not only is the plaintiff in settled possession, but such possession is also traceable to title documents. The initiation of eviction proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, by the defendants, though relevant for future adjudication, does not efface the plaintiff’s right to seek protection against unlawful interference as on the date of the suit.

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IV. The Trial Court’s finding that the plaintiff failed

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to establish lawful possession is perverse and contrary to the admissions on record. Further, the Trial Court failed to appreciate that the dispute was not one of title but possession, and that the plaintiff’s claim did not rest on a declaration of ownership but on the settled factual matrix of possession supported by registered title deeds.

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V. Accordingly, this Court finds that the judgment

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and decree of the Trial Court warrants interference. The

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appeal deserves to be allowed by setting aside the impugned judgment and decree.

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For the foregoing reasons, this Court proceeds to pass the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The judgment and decree dated 14.06.2023 passed in O.S. No. 4583/2016 by

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the learned LXIX Addl. City Civil and Sessions Judge,(CCH-70), Bengaluru is hereby set aside.

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(iii) The suit filed by the plaintiff for permanent injunction is decreed, restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule

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property.

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(iv) It is made clear that this decree shall be subject to the final outcome and implementation

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of the order passed in Miscellaneous Appeal No.77/2022 and any lawful action taken under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, strictly in accordance

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with law.

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(v) There shall be no order as to costs.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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ALB List No.: 1 Sl No.: 16

Smt. Noor Fathima Jamal v. Union of India

Case brief

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Smt. Noor Fathima Jamal v. Union of India

Case brief

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