Thus it becomes clear that when the plaintiff has a clear title supported by documents and a defendant without any claim on the title merely denies the title of the plaintiff, it would not amount to raising of cloud over the title of the plaintiff and it would not be necessary for the plaintiff to sue for declaration and suit for injunction would be sufficient. In the instant case, the evidence and material on record shows that the defendants have no claim of title on the suit plot. In such a situation, the suit filed by the plaintiffs in the present case is certainly maintainable and it was correctly decreed by the Courts below.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 379 of 2016
Decided On: 08.03.2018
Laxman Bisan Uke and Ors. Vs. Ashok Ishwar Shinde and Ors.
Hon'ble Judges/Coram:
Manish Pitale, J.
Citation: 2018(4) MHLJ 151
1. The appellants herein are defendants in a suit for permanent injunction filed by the respondents-plaintiffs in respect of plot No. 66 admeasuring 1750 sq. ft. situated in mouza Manewada, P.H. No. 39, Kh. No. 58, in Dhobi Nagar Co-operative Housing Society at Nagpur. It was the case of the plaintiffs that they had purchased the suit plot by registered sale deed dated 1.1.1990 from Shrawanji Dhepe and that they have been in possession of the same since the date of the execution of the said sale deed. It is their case that they constructed a compound wall around the suit plot in the month of April, 2001.
2. The plaintiffs filed the suit on the basis that the defendants in collusion with each other claiming to be the members of Bhimalepan Deoshan Samiti, a body that was not registered either under the Bombay Public Trusts Act, 1950 or the Societies Registration Act, 1860, sought to disturb the peaceful possession of the plaintiffs and that, therefore, an injunction was required to be issued against them. The defendants (appellants herein) appeared in the suit and claimed that the suit plot was the site where a deity by the name of Bhiwasan also called Bhimalpen was being worshipped for long period of time and originally Kh. No. 58 belonged to Gond Raja. It was claimed that there were documents to show that such worship of deity had been continuing for about 100 to 150 years and that the property had come into the hands of the respondents-plaintiffs on the basis of documents allegedly created in collusion with the priest. The plaintiffs produced oral and documentary evidence in support of their claim in the form of registered sale deed dated 1.1.1990 (Exh. 45) executed in their favour as also sale deed of the year 1986 (Exh. 45) executed in favour of their vendor. They also placed on record receipts issued by the aforesaid society, wherein the suit plot was located, showing their membership and further documents showing that they had indeed constructed the wall and iron gate surrounding the suit plot. PW 1 being the elder brother of the plaintiffs appeared as a witness on their behalf and PW 2 was one of the witnesses to the aforesaid sale deed dated 1.1.1990 (Exh. 44).
3. Defendants examined defendant No. 1 on their behalf as also other witnesses to support their case. They also relied upon an extract of a report of the Taluka Inspector of Land Records (Exh. 68), which according to them demonstrated that the suit plot indeed was the site where deity as stated above was located and that the said deity was being worshipped for a long period of time. There were other documents also placed on record on behalf of the defendants to claim that the theory of possession of the plaintiffs was not correct.
4. The trial Court took into consideration the evidence on record and had framed six issues for determination, including issue pertaining to whether the plaintiffs had proved their possession on the suit plot. Upon appreciation of the evidence and material on record, the trial Court came to the conclusion that the plaintiffs had successfully proved their possession in the suit plot since 1.1.1990 when the aforesaid sale deed Exh. 44 was executed in their favour. The trial Court also found that although there were documents placed on record by the defendants in order to support their claim that the deity as aforesaid was located in the suit plot and that there was continuous worship for long period of time, there were no documents to show that either Bhimalpen Deosthan Samiti was registered trust or that it had maintained the register showing contributions of any members. It was also found that there was no account of programmes held in respect of worship of the said deity, although the defendants had claimed that there were such programmes held for the last 50 years to 150 years. On this basis, the trial Court decreed the suit and restrained the defendants from disturbing the peaceful possession of the plaintiffs on the suit plot.
5. Aggrieved by the same, the appellants herein filed appeal before the Court of the District Judge, Nagpur. By the impugned judgment and order, the District Court has dismissed the appeal and confirmed the decree passed by the trial Court in favour of the plaintiffs. While dismissing the appeal, the District Court has taken into consideration the oral and documentary evidence on record, particularly documents at Exhs. 44, 45 and 49 to 52 to come to the conclusion that the plaintiffs have been in possession of the suit plot from 1.1.1990, when the registered sale deed was executed in their favour. It is against the said judgment and order of the District Court that the present appeal has been filed by the appellants (defendants).
6. On 16.01.2018, this Court framed the following substantial question of law for consideration:-
Whether the appreciation of evidence by both the Courts while decreeing the suit is in accordance with law?
7. This Court also called for records of the case. Upon receipt of the record, I have heard the counsel for the parties exhaustively on the aforesaid substantial question of law framed by this Court. Mr. A.N. Ansari, learned counsel appearing on behalf of the appellants has emphasised that both the Courts below have erroneously appreciated the evidence on record, leading to perverse findings rendered in favour of the plaintiffs. It had been contended that there was lack of evidence on record to show that the plaintiffs were in possession of the suit plot and further that the findings rendered by the Courts below on the basis of sale deeds at Exh. 44 and 45 were unsustainable. It is submitted that the evidence relied upon by the Courts below at Exhs. 49 to 52 to conclude that the plaintiffs were in possession, was not reliable evidence and that the documents had not been proved in accordance with law. It was further contended that the defendants had placed on record a document of the year 1892-93 (Exh. 68) which was a report of the Taluka Inspector of Land Records demonstrating that the deity as claimed by them was indeed located in the suit plot and that there had been continuous worship of the said deity being performed for all these years. It was contended that such vital evidence demonstrating that the plaintiffs had never been in possession, was ignored by the Courts below while erroneously granting decree of injunction in favour of the plaintiffs. The learned counsel appearing on behalf of the appellants further contended that once the defendants had disputed the title of the plaintiffs in the suit plot, a suit simpliciter for injunction was not maintainable and that the Courts below ought to have dismissed the suit on the said ground. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy and others - MANU/SC/7376/2008 : (2008) 4 Supreme Court Cases 594.
8. On the other hand, Mr. R.O. Sharma, learned counsel appearing on behalf of the respondents-plaintiffs submitted that the Courts below had correctly appreciated the evidence and material on record and that when there was ample proof of the plaintiffs' enjoying possession of the suit plot since 1.1.1990, when sale deed i.e. Exh. 44 was executed in their favour, the decree for injunction was correctly granted in their favour. The learned counsel appearing on behalf of the respondents submitted that although the defendants claimed on the basis of Exh. 68 i.e. the report of the Taluka Inspector of Land Records pertaining to the year 1892-93 that the deity was located in the suit plot, a perusal of the said document would show that it pertained to P.H. No. 33 of mouza Manewada while the suit plot was admittedly located in P.H. No. 39. It was further contended that when the registered sale deed at Exh. 44 dated 1.1.1990 had been proved by one of the witnesses to the said sale deed i.e. PW 2, there was no reason why the claim of the defendants could be accepted. It was further pointed out that PW 1, elder brother of the plaintiffs, not only had a power of attorney in his favour to depose but he had made statements in the evidence on the basis of his personal knowledge in regard to the attempts made by the defendants to disturb the possession in the suit plot. The same were specifically noted by the Courts below and, therefore, the evidence of PW 1 could not be assailed. The learned counsel further pointed out that law laid down by the Hon'ble Supreme Court in Anathula Sudhakar (supra) was, in fact, in favour of the respondents-plaintiffs. He further relied upon the judgments of the Hon'ble Supreme Court in the case of Corporation of the City of Bangalore vs. M. Papaiah - MANU/SC/0147/1989 : (1989) 3 Supreme Court Cases 612 and Agnigundala Venkata Ranga Rao vs. Indukuru Ramchandra Reddy and ors.- MANU/SC/0420/2017 : AIR 2017 Supreme Court 2042 in support of his contentions.
9. Having heard the learned counsel for the parties and upon perusal of the material on record, in order to pronounce upon the substantial question of law framed by this Court, it is necessary to appreciate whether the Courts below had taken into consideration the evidence and material on record to reach findings in favour of the respondents-plaintiffs. It is only if it is found that there has been an error in appreciation of evidence and material on record, rendering the findings perverse that this Court exercising power under Section 100 of the Code of Civil Procedure can interfere with the orders of the Court below.
10. The plaintiffs in the present case have come to the Court with a case that their peaceful possession in the suit plot is being disturbed by the defendants and that an injunction needs to be ordered against the defendants to restrain them from disturbing the peaceful possession of the plaintiffs. It is their case that they have been enjoying possession over the suit plot since 1.1.1990 when the registered sale deed at Exh. 44 was executed in their favour. In order to prove the said sale deed, one of the witnesses thereto has been produced before the Court in the form of PW 2. PW 1 Bhaskar is the elder brother of the plaintiffs and he has deposed on the basis of power of attorney. On perusal of the oral evidence of these two witnesses, it is evident that PW 1 has deposed in support of the plaintiffs on the basis of his personal knowledge also. He has specifically stated that the defendants used to place stones in the suit plot and that they used to attempt performing worship and that on each occasion he was required to throw the stones to ensure that the peaceful possession of the plaintiffs was not disturbed. PW 2 has entered the witness box and stated in support of the aforesaid registered sale deed at Exh. 44 dated 1.1.1990, being a witness to the said document. In the said document, there is a clause which specifically states that the vendor had put the plaintiffs in possession of the suit plot. The plaintiffs have also placed on record documents at Exhs. 49 to 52 which show that they had become members of the aforesaid society wherein the suit plot is located and that they had constructed boundary wall and iron gate surrounding the said suit plot. This is the nature of oral and documentary evidence placed on record on behalf of the respondents-plaintiffs.
11. On the other hand, the defendants have submitted that the aforesaid deity has been located in the suit plot for a number of years and that there has been continuous worship of the deity along with other programmes being conducted in respect of the deity in the suit plot. In this regard, they have placed emphasis on Exh. 68 being the report of the Taluka Inspector of Land Records pertaining to the year 1892-93, claiming that at least from the said year, there was evidence to show that there was indeed deity located in the suit plot with continuous worship and other programmes being conducted. The suit plot in the present case is located in P.H. No. 39, which is an undisputed fact, whereas Exh. 68 refers to P.H. No. 33 in mouza Manewada. Therefore, reliance placed by the defendants on Exh. 68 in order to support their claim of right to enter the suit plot for worship of the deity is unsustainable.
12. Apart from this, as found by the trial Court, there is nothing placed on record by the defendants to show that Bhimalpen Deosthan Samiti is a registered trust or that it has maintained a register showing contributions from any member, pertaining to worship and other programmes concerning the aforesaid deity. No accounts have been produced pertaining to any such programme conducted in respect of the said deity in the suit plot. Thus, insofar as documentary evidence is concerned, there is nothing on record to support the claim of the defendants that the deity as claimed by them is located in the suit plot or that any worship or other programmes have been conducted on the suit plot in respect of the said deity for years together. Insofar as oral evidence is concerned, other than mere statements made in support of their claim, there is hardly any evidence produced by the defendants to support their claim.
13. In this situation, it has to be examined whether the approach adopted by the Courts below while appreciating the evidence on record can be said to be erroneous to render their findings perverse. The trial Court has taken into consideration the entire evidence on record and it has come to the conclusion that the plaintiffs have been enjoying possession of the suit plot and that the defendants have failed to support their claim about existence of the deity in the suit plot. While arriving at the conclusion in respect of possession, the trial Court has also analysed the evidence and commented upon the claim of the plaintiffs as regards their title on the suit plot.
14. The appellate Court has also taken into consideration the oral and documentary evidence to come to the conclusion that the plaintiffs indeed have been in possession of the suit plot and that the defendants have failed to make out their case. In arriving at the said conclusion, the appellate Court has also referred to the registered sale deed dated 1.1.1990 Exh. 44 and the sale deed at Exh. 45, which was executed in favour of the vendor of the plaintiffs by the aforesaid society. Once the Courts below have arrived at a finding that the plaintiffs proved their possession on the suit plot on the basis of appreciation of the entire evidence and material on record, the decree of permanent injunction has followed.
15. The defendants have failed to place on record any shred of evidence to support their claim. On the other hand, as stated above, there is ample oral and documentary evidence on record in support of the claim of the plaintiffs of having been in possession of the suit plot since 1.1.1990. On the question as to whether the suit for injunction simpliciter filed by the plaintiffs was maintainable in the absence of a prayer for a declaration, reliance placed by the learned counsel appearing on behalf of the respondents on the judgment of the Hon'ble Supreme Court in the case of Anathula Sudhakar (supra) is correct. In this judgment, the Hon'ble Supreme Court has considered the aforesaid question in its various shades and it has been elaborately discussed as to in what circumstances a suit filed simpliciter for injunction would not be maintainable. The relevant portion of the aforesaid judgment of the Hon'ble Supreme Court reads as follows:-
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1 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 will lie. 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.
13.2 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.
13.3 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 dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or 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.
14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs."
16. Thus it becomes clear that when the plaintiff has a clear title supported by documents and a defendant without any claim on the title merely denies the title of the plaintiff, it would not amount to raising of cloud over the title of the plaintiff and it would not be necessary for the plaintiff to sue for declaration and suit for injunction would be sufficient. In the instant case, the evidence and material on record shows that the defendants have no claim of title on the suit plot. In such a situation, the suit filed by the plaintiffs in the present case is certainly maintainable and it was correctly decreed by the Courts below.
17. The learned counsel for the respondents have relied upon judgment of the Hon'ble Supreme Court in the case of Agnigundala Venkata Ranga Rao (supra) for the proposition that the question as to who is in possession of the suit property is essentially a question of fact and that when the trial Court has reached a finding on the basis of appreciation of evidence on record, which is confirmed by the appellate Court, it is usually binding on the second appellate Court. The relevant portion of the said judgment reads as follows:-
"25. One cannot dispute the legal proposition being well settled that the question as to who is in possession of the suit property is essentially a question of fact. Such question is required to be decided on appreciation of evidence adduced by the parties in support of their respective contentions. Once the Trial Court renders a finding either way and the same is then appreciated by the first appellate Court in exercise of its appellate jurisdiction, such finding is usually held binding on the second appellate Court and this Court."
18. In the instant case, the appellants-defendants have failed to demonstrate how the findings rendered by the Courts below can be said to be perverse and they have failed to demonstrate any error in appreciation of the evidence on record by the Courts below while rendering the findings that the respondents were in possession of the suit plot. In such a situation, applying the aforesaid position of law, this Court exercising second appellate jurisdiction would be loath to interfere with the findings of the Courts below.
19. In the light of the above, the substantial question of law framed by this Court on 16.01.2018, is answered in favour of the respondents-plaintiffs and against the appellants-defendants.
20. Accordingly, this appeal is dismissed with no order as to costs.
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