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.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 104 OF 2010
Shri Surya Ramchandra Naik,
V/s.
Smt. Suxila Tukaram Naique,
CORAM :- F.M. REIS, J.
Date : - 28th March, 2014.
Citation;2014(6) ALLMR113
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
4
SA 104-10
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
5
SA 104-10
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
6
SA 104-10
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
7
SA 104-10
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
8
SA 104-10
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
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SA 104-10
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
10
SA 104-10
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 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
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SA 104-10
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
12
SA 104-10
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 14 th 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 3 rd 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.
F.M. REIS, J.
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