Smt. Shanti Bai vs Narbada And Others
2019 Latest Caselaw 5435 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 23.01.2019
 
Delivered on 03.07.2019
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 116 of 1977
 

 
Appellant :- Smt. Shanti Bai
 
Respondent :- Narbada And Others
 
Counsel for Appellant :- Yogesh Agarwal,Gulrez Khan,J.H. Khan,Manish Goyal,W.H. Khan
 
Counsel for Respondent :- A.K. Sachan,A.N. Bhargava,Rakesh Pande,Santosh Kumar Mishra
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri W.H.Khan, Senior Advocate, assisted by Sri Gulrez Khan, learned counsel for appellant and Sri Ravi Kant, Senior Advocate, assisted by Sri A.K.Sachan, Advocate as well as Sri Santosh Kumar Mishra, learned counsel for respondents.

2. This is a plaintiff's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") having arisen from judgment and decree dated 07.01.1977 passed by Sri Chandra Mohan, District Judge, Banda in Civil Appeal No.38 of 1971 whereby appeal has been allowed and judgment and decree dated 11.01.1971 passed by Sri Vikash Chandra Jain, IIIrd Temporary Civil and Sessions Judge, Banda, whereby Original Suit No.12 of 1966 was decreed, has been set aside.

3. This appeal was admitted on 25.01.1977 i.e. before amendment of Section 100 C.P.C., therefore it has not been admitted on any substantial question of law, which became necessary on and after 01.02.1977.

4. Section 100 C.P.C., as it was prior to 01.02.1977, read as under:

"100. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:

(a) the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

(2) An appeal may lie under this Section from an appellate decree passed ex parte." (emphasis added)

5. Thus, if Court below has decided an issue contrary to law, or a material issue of law has not been determined or there is substantial error or defect in procedure provided in C.P.C. or any other law, which has caused error or defect in decision upon merits or decision is ex-parte, this Court can interfere.

6. Now I proceed to consider arguments raised by learned counsel for parties to examine whether judgment of Court below suffers any of such defect as pointed out above so as to warrant interference in this appeal, on merits.

7. Original Suit No.12 of 1966 was instituted by Smt. Shanti Bai wife of Lala Piarey Lal, vide plaint dated 08.12.1966, impleading seven defendants namely Narbada (minor) son of Janki Sharan; Sudul son of Deo Raj; Narbada son of Hira Lal; Raja Ram son of Tulsi Ram; Dwarka Prasad son of Tulsi Ram; Puran Mal son of Tulsi Ram; and Kuber Prasad son of Tulsi Ram, for grant of permanent injunction restraining defendants from interfering in plaintiff's possession and rights in respect of a house, boundaries whereof are detailed at the foot of plaint, situated in Kasba Karvi, Nai Bazar, District Banda.

8. The plaint case set up is that disputed house was initially owned by Smt. Saraswati Bai widow of Mool Chand. Tulsi Ram, father of defendants 4 to 7, was brother of Mool Chand. He acquired possession over the house whereupon Smt. Saraswati Bai filed suit for his ejectment, which was decreed. Tulsi Ram was evicted from disputed house and possession was restored to Smt. Saraswati Bai. Thereafter Saraswati Bai continued as owner in possession of disputed house. Smt. Saraswati Bai executed a sale deed dated 29.12.1965 in favour of plaintiff. Prior to execution of sale deed, Smt. Saraswati Bai was exercising title and possession by mortgaging house and letting it out to the tenants. Some portion of house had fallen down and some tenants were occupying by raising temporary constructions thereon. After purchase of disputed house, plaintiff herself had raised two rooms on old foundation. Defendants 4 to 7, sons of Tulsi Ram, in collusion with defendants 1 to 3, sought to interfere in peaceful and exclusive possession and enjoyment of suit property by plaintiff, hence suit for injunction was filed.

9. Defendants 1 and 3 contested the suit by filing their collective written statement dated 18.10.1967. Title and possession of plaintiff as well as her predecessor Smt. Saraswati Bai or her father Lala Basudo Prasad was denied. It was pleaded that house in dispute is situated on Plot No.802/1, which was acquired by Tulsi Ram, father of defendants 4 to 7 through registered deed dated 18.01.1929 executed by Mahant Jaideo Dass, who was owner and Zamindar of land and since then Tulsi Ram and thereafter his sons i.e. defendants 4 to 7 were in possession of disputed property. Defendants 6 and 7 i.e. Puran Mal and Kuber Prasad, sons of Tulsi Ram, sold their share in favour of Smt. Yashoda Bai. Consequently, defendants 4, Raja Ram son of Tulsi Ram, and Smt. Yashoda Bai, both became owner of three-forth share of disputed property. They sold their share to defendants 1 to 3 vide registered sale deed dated 15.11.1966 for consideration of Rs.3,000/-. The suit, which was filed by Saraswati Bai against Tulsi Ram was not in respect of above house but in respect of a different small house at another place, which had already ruined, leaving almost plain land. The suit in question has been filed by preparing forged documents in collusion with Smt. Saraswati Bai and others and plaintiff has no claim or right of any kind over the property in dispute. Smt. Saraswati Bai as also plaintiff, have never been in possession of disputed property in the preceding twelve years. The suit is barred by limitation and defendants and their successors are in continuous possession of property for the last twelve years and more.

10. Defendants 5 and 7 filed a separate collective written statement wherein they stated that property in dispute was earlier owned by Lala Basudeo, father of Smt. Saraswati Bai, and thereafter by Saraswati Bai; she executed sale deed in favour of Smt. Shanti Bai; defendants or their father have no concern with disputed property; Smt. Saraswati Devi got disputed house vacated by filing suit and thereafter defendant's father shifted to Mahoba where ultimately he died; and the documents prepared by contesting defendants are forged and fictitious. Virtually, defendants 5 and 7 supported case set up by plaintiff.

11. On 24.08.1968, Trial Court under Order 10, Rule 2 C.P.C. recorded statements of counsel for parties. Sri Mata Prasad, counsel for plaintiff stated

"his client purchased the disputed house from Saraswati Devi for Rs.8,500/- on 29.12.1965 and since then she is in actual physical possession of the house. The defendants 1 to 3 started interfering in her possession in the beginning of December, 1966."

12. Sri Gur Prasad, learned counsel appearing for defendants 1 to 3 made following statement before Trial Court:

"Saraswati Devi was not the owner of the disputed house. It belong to Raja Ram and other defendants 4 to 7, who sold the same to defendants 1 to 3 on 15.11.1966. These defendants are in possession and have even constructed two Kothas."

13. Thereupon Trial Court formulated following six issues :

"1. Whether the disputed house belonged to Smt. Sarswati Bai and she was competent to transfer it to the plaintiff?

2. Whether the plaintiff is in actual possession of the disputed house as claimed? If so, its effect?

3. Is the plaintiff's suit barred by limitation?

4. Whether the suit for permanent injunction is not maintainable?

5. Whether the defendants are the owners of the house in suit and are in possession in that capacity?

6. To what relief, if any, is the plaintiff entitled and against whom?" (emphasis added)

14. Besides documentary evidence, oral evidence comprised of deposition of Smt. Saraswati Bai and one Madan Prasad one of the tenants of the shops in the disputed premises, Maiku, Anand Swarup one of the sons of Saraswati Bai, Mahadeo, Laxman Karan Mehta, an advocate who was appointed Receiver in Suit No.140 of 1942, brought by Smt. Saraswati Bai for redemption of mortgage against Mahadeo Prasad and Sukhdeo Prasad. Oral evidence of defendants 1 and 3 comprised of deposition of Chandra Bhan DW-1, Lalla DW-2 and Raja Ram DW-3.

15. Answering issues 1 and 5 together, Trial Court held that disputed house belonged to Smt. Saraswati Bai; she was competent to transfer it to plaintiff and defendants were not owner of disputed house. Thereafter, issue 2 was also answered in favour of plaintiff holding that she was in possession of property through tenants, who were paying rent to her. Issue 3, which raised question of limitation, was answered in negative i.e. against defendants. Issue 4 was answered by holding that suit for permanent injunction was maintainable and consequently issue 6 was decided in favour of plaintiff. Trial Court accordingly decreed the suit vide judgment dated 11.01.1977 and operative part of judgment reads as under :

"Suit is accordingly decreed and the defendants are restrained by means of a permanent injunction from interfering in the possession and enjoyment of the plaintiff of the suit property as detailed by the boundaries given at the foot of the plaint.

Plaintiff will be entitled to her costs of the suit from contesting defendants no. 1 and 3."

16. Civil Appeal No.38 of 1971 was filed by defendants 1, Narbada Prasad (minor) son of Janki Sharan, under the guardianship of his father Sri Janki Sharan son of Shri Hanuman Din Misra, by impleading plaintiff as respondent 1 and remaining defendants as Proforma respondents 2 to 7.

17. Lower Appellate Court (hereinafter referred to as "LAC") while hearing appeal, though not mentioned points for determination at one place, as such, but specifically has referred to such points and judgment reveals that following two point for determination have been answered by LAC :

"(I) Whether defendants have proved loss of the original permanent lease executed by Mahant Jai Dev Das in favour of Tulsi Ram on 18.01.1929 or nor.

(II) Whether plaintiff has proved her title to the entire land in suit as detailed in the plaint or not."

18. The first point was answered by holding that Trial Court erred in ignoring certified copy of permanent lease deed dated 18.01.1929 and certified copy (Exhibit A-2) which ought to have been read in evidence despite the fact that original deed was not available since its loss was proved. The second point was answered holding that plaintiff utterly failed to prove ownership over land in dispute and plaintiff's suit for injunction ought to have been dismissed on this ground. LAC held that Trial Court erred in decreeing the suit hence it has reversed the judgment and decree of Trial Court.

19. Sri W.H.Khan, Senior Advocate, has assailed the judgment and decree passed by LAC mainly on the following grounds:

(i) There was no Civil Judge or Munsif in Banda. Valuation of suit being Rs.10,000/-, it was filed in the Court of District Judge, Banda. Subsequently suit was transferred to IIIrd Additional Civil and Sessions Judge, who tried the same and decreed. The judgment, therefore, should be deemed to have been passed by a Court of the status of District Judge since suit was transferred by District Judge for trial to IIIrd Additional Civil and Sessions Judge, and therefore first appeal was maintainable before this Court and not District Judge.

(ii) LAC has not formulated points for determination and therefore judgment is not sustainable having failed to comply requirement of Order 41, Rule 31 C.P.C.

(iii) Secondary evidence was not admissible as loss of original document was not proved.

(iv) Possession of plaintiff over disputed property through tenants was fully proved and that was sufficient for decree of suit for permanent injunction, which could not have been dismissed on the ground of failure to prove title.

20. Sri Ravi Kant, Senior Advocate, appearing for respondents contended, firstly, that plaintiff was not in possession of property in dispute and suit for injunction was filed without seeking any relief for possession, therefore, suit itself was not maintainable; Secondly, no objection was raised with regard to admissibility of secondary evidence; and, thirdly, argument advanced with regard to maintainability of First Appeal before District Judge is misconceived.

21. So far as first point is concerned, it is evident from record that original suit was instituted vide plaint dated 08.12.1966 in the Court of District Judge, Banda and it was registered thereat on 13.12.1966. It appears, when Court of Civil Judge became available, District Judge vide order dated 22.3.1968 transferred above suit, for disposal to IIIrd Temporary Civil and Sessions Judge, Banda. It was received in the Court of IIIrd Temporary Civil Judge on 23.3.1968. Thereafter suit proceeded and issues were framed before Temporary Civil Judge. During pendency of suit, an interim injunction was granted on 13.12.1966, which was confirmed by Temporary Civil Judge, Banda vide order dated 15.10.1968. It is also admitted that judgment and decree has been passed by IIIrd Temporary Civil and Sessions Judge, Banda.

22. It is no doubt true that suit was filed in the Court of District Judge. Learned counsel for appellant admitted that at the time of filing of suit, there was no Court of Civil Judge or Munsif at Banda therefore suit was filed in the Court of District Judge. Section 15 of Code of Civil Procedure provides that every suit shall be instituted in the Court of the lowest grade competent to try it. It is not the case of appellant that Court of Munsif or Civil Judge was not competent to try suit but admittedly there was no Court of Civil Judge or Munsif at Banda available at the time of filing suit, therefore, lowest Court available to plaintiff at that point of time was Court of District Judge, Banda. Hence suit was filed therein. When Court of Civil Judge became available, suit was transferred to competent Court i.e. Civil Judge and same was tried and decided by Court of Civil Judge.

23. For the purpose of appeal under Section 96 C.P.C., it is not the Court in which suit was instituted but status of Court passed decree whereagainst the Court authorized to hear appeal from the decisions of such Court.

24. Section 96 C.P.C. reads as under :

"Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decision of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees."

(Emphasis added)

25. Appeal lie to next higher Court authorized to hear appeal from decision of Court who passed decree. Since in the present case decree has been passed by Court of Civil Judge, therefore, appeal was rightly filed in the Court of District Judge and we do not find that judgment of LAC is without jurisdiction and the argument advanced by Sri Khan to this effect is rejected.

26. This argument can be examined from another angle. At the time of institution of proceeding, in a given case, as per valuation, proceedings were initiated in the available lowest Court competent to try the same, for example District Judge but subsequently valuation of Court of Civil Judge is enhanced and suit is transferred to Civil Judge and decreed ultimately by transferee Court i.e. Court of Civil Judge. In such case neither judgment passed by Civil Judge will be without jurisdiction for the reason that suit has initially instituted in the Court of District Judge nor the judgment and decree of Civil Judge can be treated to be a judgment and decree of District Judge so that appeal would lie to High Court and not District Judge. Section 96 talks of the Court which decided the suit and passed decree and competency of Appellant Court has to be examined from that angle. When judgment has been passed by Civil Judge, appeal lie to the District Judge subject to valuation of suit.

27. It is not in dispute, as per valuation of suit in the present case, from the judgment of Civil Judge, appeal was maintainable in the Court of District Judge, therefore I am clearly of the view that judgment of LAC cannot said to be without jurisdiction as appeal was maintainable in the Court of District Judge and has rightly been decided by District Judge.

28. Sri W.H.Khan, learned counsel for appellants relied on the judgment of this Court in Shri Ashok Kumar Jain and others Vs. Shri Gaurav Jain and Another 2018 All. C.J. 654 but there, question was whether Court of Additional District Judge can be equated with respect to judicial power with the Court of District Judge or not. This Court held that Court of Additional District Judge is not inferior to the Court of District Judge and in exercise of judicial power it is at par with the Court of District Judge. The observations made in para 29 of the judgment read as under :

"Thus from the above discussion, it is evident that there is absolutely no distinction in the judicial powers/functions to be exercised by the District Judge and that of the Additional District Judge of a District Court."

29. The aforesaid judgment, therefore, does not help appellant so far as present appeal is concerned.

30. Sri Khan, learned counsel for appellant, has also placed reliance to show hierarchy of subordinate Courts with reference to Bengal, Agra and Assam Civil Courts Act, 1887 (hereinafter referred to as "Act, 1887") and said that jurisdiction cannot be conferred even by consent of parties. For this purpose, Sri Khan placed reliance on Privy Council decision in Sevak Jeranchod Bhogilal and others vs. The Dakore Temple Committee and others AIR 1925 Privy Council 155 to emphasize that jurisdiction cannot be conferred by consent of the parties. I find that aforesaid judgment has no application in the case in hand. In the present case, due to existing circumstances that lowest competent Court of jurisdiction i.e. Court of Civil Judge was not available at the place where suit was to filed, hence, it was instituted in the Court of District Judge. Later on, suit was transferred to the Court of Civil Judge, when it became available. It is not disputed that Court of Civil Judge was competent to try the suit and therefore, trial continued and suit has been decided by Court of Civil Judge. The decree passed in the present case therefore, would be that of Civil Judge. Now, from the said decree, appeal has to be filed in accordance with Section 96 C.P.C. and there it is clearly provided that appeal would lie to the next higher Court subject to valuation of suit. The next higher court was that of District Judge and as per valuation of suit, appeal was maintainable in the Court of District Judge. Therefore, submission made by learned counsel with regard to jurisdiction of First Appellate Court is clearly erroneous.

31. I may remind at this stage that change of Courts to try suit happen in many circumstances. For example, if a suit is initially filed in the Court of Civil Judge but subsequently exercising power of transfer, the same is transferred to the Court of District Judge or Additional District Judge, in such a case, first judgment and decree would be that of District Judge and then First Appeal would lie to High Court, though, if there would have not been any transfer, and judgment and decree would have been passed by Civil Judge, First Appeal would have lay in the Court of District Judge. Sometimes suit filed in the Court of Civil Judge are transferred directly to High Court and High Court try the suit. There it cannot be said that judgment and decree passed by High Court would be that of Court of Civil Judge. A recent illustration of such a situation is that of a set of suits filed in the dispute relating to Ram Janam Bhumi and Babri Maszid, where suits were filed in the Court of Civil Judge but under the orders of High Court, all such suits stood transferred to Lucknow Bench of this Court and decided by a three Judges' special Bench of High Court. Such judgment cannot said to be that of a Civil Judge so as to maintain an appeal in the Court of District Judge and in fact, in the said case, since trial has been completed and first judgment and decree has been passed by High Court, as per Section 96 C.P.C., appeal would lie to Supreme Court and the same has been filed, as a matter of fact, in the Supreme Court.

32. The first argument, therefore, advanced by Sri W.H.Khan, Advocate, that First Appeal filed before District Judge was not maintainable, is rejected.

33. Now I come to second question that Order 41 Rule 31 has not been complied with. It is argued by Sri Khan, learned counsel for appellant that LAC has not formulated points for determination separately, therefore judgment is not in conformity with requirement of Order 41 Rule 31 C.P.C. In support of this submission, he placed reliance on Supreme Court's judgments in Shashidhar and others vs. Ashwini Uma Mathad and another 2015 (11) SCC 269; Union of India and another vs. Ranchod and others (2007) 14 SCC 326 and judgment of this Court in Lorik vs. Hanuman Prasad and others 2013 All. C.J. 1061.

34. Here also I find no substance in the submission. Order 41 Rule 31 C.P.C. talks of contents of judgment and reads as under :

"Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state-

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled,

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein:

Provided that where the Presiding Judge pronounces his judgment by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement."

(Emphasis added)

35. It is pointed out that points for determination have not been separately stated and therefore judgment is bad. However, I have already noticed above and shown that like framing of issues separately by Trial Court, LAC has not serialized points for determination separately but has formulated points for determination and thereafter proceeded to discuss the same. The points for determination considered by LAC are evident from judgment and I have noted "points for determination", as are evident from paras 8 and 13 of judgment of LAC. A judgment is not to be written in a particular style. If it substantially satisfies requirement of Order 41 Rule 31 C.P.C., and in the judgment, points for determination, which LAC has addressed itself, are apparent reasons for decision as also decision is clear, then the judgment would in conformity with Order 41, Rule 31 C.P.C. and there cannot be any interference therewith on this ground alone. Order 41, Rule 31 C.P.C. nowhere require that point for determination should be first serialized by First Appellate Court and thereafter it should proceed to decide the same. So long as points for determination, which are being considered by First Appellate Court, are specific, discernable and higher court of appeal can easily find out, there is sufficient compliance of Order 41, Rule 31 C.P.C., where it talks of framing of points for determination.

36. It is not the case of Sri Khan, learned counsel for appellant that besides the two points for determination answered by LAC, any other issue was raised by parties before LAC but that has not been looked into and decided. So long as all the issues raised by parties before First Appellate Court are well considered, in the light of evidence discussed before it, judgment of First Appellate Court cannot said to be bad for contravening requirement of Order 41, Rule 31 C.P.C.

37. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs., (2001) 3 SCC 179 it was held that Appellate Court has jurisdiction to reverse or affirm findings of Trial Court. First Appeal is a valuable rights of the parties and unless restricted by law, the whole case therein open for rehearing both on questions of fact and law. Court further said :

"The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising alongwith the contentions put forth, and pressed by the parties for decision of the Appellate Court." (Emphasis added)

38. Court has further held in Santosh Hazari (supra) that while reversing a finding of fact, Appellate Court must come into close quarters with reasoning assigned by Trial Court and then assign its own reasons for arriving at a different finding. This would satisfy Court, hearing a further appeal, that First Appellate Court had discharged duty expected of it.

39. In Madhukar and others vs. Sangram and others (2001) 4 SCC 756, a three-Judge Bench of Supreme Court has followed above decision of Santosh Hazari (supra) and reiterated that sitting as a Court of first appeal, it is the duty of the High Court to deal with all the issues and evidence led by parties before recording its findings.

40. The same view has been reiterated in H.K.N.Swami vs. Irshad Basith (2005) 10 SCC 243 and Chintamani Ammal vs. Nandagopal Gounder (2007) 4 SCC 163.

41. None of the judgments cited by learned Senior Court have any application in the case in hand. In Shasidhar (supra) Court specifically found that in the judgment of First Appellate Court neither relevant aspects were noticed nor issues raised before it were referred nor evidence adduced was considered. These were the objections raised by counsel for appellant before Supreme Court which are noticed in para 9 of judgment and Court clearly found that judgment is cryptic. The entire judgment of First Appellate Court has been quoted in para 22 of judgment and that was not found consistent with what was required in law from a First Appellate Court. It would be appropriate to reproduce paras 22 and 23 of the judgment as under :

"22. Applying the aforesaid principle to the facts of the case, we find that the High Court while deciding the first appeal failed to keep the aforesaid principle in consideration and rendered the impugned decision. Indeed, it is clear by mere reading of the impugned order quoted below:

"The Appellants are Defendants in the suit. The Plaintiffs are the Respondents. The Respondents are the children of 1st Appellant born in the wedlock between 1st Appellant and his divorced wife Smt. Uma Mathad. It is admitted fact that the 1st Appellant has married the 2nd Respondent after the divorce and in the wedlock he has two children and they are Appellant Nos. 3 and 4. The suit properties at item Nos. 1 and 4 are admitted to be the ancestral properties. Item Nos. 2 and 3 are the properties belonging to the mother of the 1st Appellant and after her demise the said properties are bequeathed to 1st Appellant. Therefore, the said properties acquired the status of self-acquired properties.

The Respondents filed a suit for partition. The parties are governed by Bombay School of Hindu Law. In view of the provisions of Hindu Succession Amendment Act of 2005, the Respondent Nos. 1 and 2 are entitled to a share as co-parceners in the ancestral properties. The wife who is the second Appellant also would be entitled to a share in the partition. In that view, the Appellant Nos. 1 and 2 and Respondent Nos. 1 and 2 will have 1/4th share each in item Nos. 1 and 4 of the suit properties.

The learned Counsel for the Appellants submitted that the Appellants 2 to 4 would not claim any independent share in item Nos. 1 and 4 of the suit properties, but they would take share in the 1/4th share allotted to their father.

In view of the said submissions, the Appellant Nos. 1 and 2 and Respondent Nos. 1 and 2 would be entitled to 1/4th share in item Nos. 1 and 4 of the suit properties.

Accordingly, a preliminary decree to be drawn and the appeal and cross objections are disposed of in the terms indicated above.

23. In our considered opinion, the High Court did not deal with any of the submissions urged by the Appellants and/or Respondents nor it took note of the grounds taken by the Appellants in grounds of appeal nor took note of cross objections filed by Plaintiffs Under Order XLI Rule 22 of the Code and nor made any attempt to appreciate the evidence adduced by the parties in the light of the settled legal principles and decided case laws applicable to the issues arising in the case with a view to find out as to whether the judgment of the trial Court can be sustained or not and if so, how, and if not, why?" (emphasis added)

42. The aforesaid decision has no application in the present case where LAC has not only referred to entire dispute between the parties, evidence led by parties, points for determination and detailed consideration of evidence as also the aspect on which Trial Court has committed error and those findings have been found perverse.

43. Similarly in Union of India and another vs. Ranchod and others (supra), Court found that judgment of First Appellate Court did not address even a single piece of evidence and there was no indication in the judgment as to how Court came to conclusion that findings recorded by Reference Court requires to be affirmed. I may reproduce para 8 of the judgment as under :

"In the case in hand the High Court has not referred to even an iota of evidence which was adduced by the parties. There were large number of landholders whose land was acquired and they had filed separate objections under Section 9 of the Act and had separately sought references under Section 18 of the Act. They had separately lead evidence in support of their cases before the reference court. It is not a case where a single case may have large number of parties and the evidence adduced is common for all of them. In the matter of determination of compensation large number of factors have to be seen, namely, nature and quality of land, whether irrigated or unirrigated, facilities for irrigation like existence of well etc., presence of fruit bearing trees, the location of the land, closeness to any road or highway, the evenness of the land, namely, whether its level is even or there are pits etc., its position in rainy season, namely, whether water gets accumulated in rains, existence of any building or structure and a host of factors having bearing on valuation of the land."

(emphasis added)

44. As already said, in the present case situation is totally different, judgment is well discussed, reasoned and detailed, therefore, above judgments would render no help to the appellant.

45. Judgment of this court in Lorik (supra) is also not applicable since there also points for determination were neither formulated by LAC nor discernable at all from reading of entire judgment. Some relevant reasons, on which this Court interfered with judgment of LAC in Lorik (supra), as evident from paras 10 and 13 of judgment, are reproduced as under :

"10. The lower Appellate Court, however, while considering plaintiff's plea in Civil Appeal No.166 of 1977 had reversed judgment of Trial Court and decreed the suit but the judgment shows that without looking to the reasons given by Trial Court and without reversing findings thereof, it has reversed judgment and decree of the Trial Court."

13. ....On this aspect, learned lower Appellate Court has neither adverted itself nor has reversed this part of the finding of Trial Court and without giving and considering the reasons mentioned in the Trial Court's judgment has reversed its judgment and decree." (Emphasis added)

46. Hence, this question is also answered against appellant. I have no hesitation in holding that there is no infirmity in the judgment on the anvil of Order 41 Rule 31 C.P.C. On the contrary, there is complete and substantial compliance of said provision.

47. Now coming to third point with regard to admissibility of secondary evidence, I may recollect that plaintiff claimed ownership and possession over entire disputed property while defendants 1 to 3 claimed their title and possession over three-forth part of disputed property. With respect to location and boundaries of property, there was a dispute. Statements of counsels of parties were recorded under Order 10 Rule 2 C.P.C. on 23.12.1976 on paper no.85Ka-2 and they admitted that there was a Pakka road on the North-West side of the land in suit. The issue of secondary evidence was relevant in the context of lease deed dated 18.01.1929, said to have been executed by Mahant Jaideo in favour of Tulsi Ram. To prove loss of original deed, Raja Ram DW-3, one of the sons of permanent lessee i.e. Late Tulsi Ram was examined. LAC held that his deposition with regard to loss of original deed was sufficient to prove loss of deed and to satisfy conditions for admissibility of secondary evidence.

48. What constitute secondary evidence is provided in Section 63 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") and circumstances, which need to be satisfied so as to render secondary evidence admissible are provided in Section 65. I may quote the two provisions as under :

"Section 63. Secondary evidence.- Secondary evidence means and includes-

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it."

"Section 65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-

(a) When the original is shown or appears to be in the possession or power--

of the person against whom the document is sought to be proved, or

of any person out of reach of, or not subject to, the process of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in1[India] to be given in evidence;

(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."

(emphasis added)

49. In the present case original lease deed was claimed to have lost, therefore, a certified copy of said deed was produced and marked as Exhibit A-2. It is admissibility of this document which has been questioned. The original document i.e. lease deed either should have been in possession of lessee or in case of his death, his legal representatives. In the present case, original lessee i.e. Tulsi Ram died. One of his sons deposed about non traceability of original deed. There was no evidence otherwise, therefore, LAC, in my view, rightly held that precondition for leading secondary evidence was satisfied and Trial Court in not accepting secondary evidence has erred in law.

50. It is not the case of appellant that probative value of certified copy of lease deed or its otherwise admissibility or correctness was ever doubted. In fact I find that decision relied by appellant i.e. Rakesh Mohindra vs. Anita Beri and others 2016 (16) SCC 483 itself clarify this position. In para 17 of judgment, Court has said that pre-condition for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents, in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish reason for non-production. One such reason is that original document has been destroyed or lost, or when the party offering evidence of its contents cannot, for any reason not arising from his own default or neglect, produce it in reasonable time. Section 65 of Act, 1872 also provides that a certified copy of document as a secondary evidence is admissible.

51. In para 22 of judgment in Rakesh Mohindra (supra), Court also said that if a party wishes to lead secondary evidence, then Court is obliged to examine probative value of document produced in the Court or its contents and decide the question of admissibility of the document as secondary evidence. At the same time, party has to lay down factual foundation to establish right to give secondary evidence where original document cannot be produced.

52. So far as authentication of certified copy of secondary evidence led by defendants is concerned, I find no dispute at all raised by plaintiff-appellant. Therefore, I answer this question also against appellant and find that none of the authorities cited by counsel for appellant would help him in any manner.

53. Now coming to last question, judgments of Courts below clearly show that there was a serious dispute about title and possession of disputed property between plaintiff and defendants 1 to 3. For this reason, Trial Court formulated issues 1, 2 and 5 and LAC formulated second point for determination. When a suit for injunction is filed and defendants challenge claim of plaintiff on the very ground of title and possession, it become necessary to decide whether plaintiff has any title over disputed land or not and then further whether it is in possession thereof and only then question of injunction will arise. Hence, in the present case also it was obligatory upon the plaintiff to prove her title and possession over disputed property.

54. Here injunction was sought on the ground that plaintiff possess possession over disputed land through tenants and has a clear title thereon therefore, defendants should be restrained from interfering in possession of plaintiff. It is not a case where only on the basis of possessory title any relief was claimed by plaintiff. Plaintiff's very title was seriously disputed by defendants. Thus such an issue was framed by Courts below and it was incumbent upon plaintiff to adduce evidence to prove her title. Plaintiff based its title on the basis of a sale deed dated 29.12.1965 executed by Smt. Saraswati Bai in favour of plaintiff. Thus, according to plaintiff, Smt. Saraswati Bai was owner in possession of disputed property till she executed sale deed dated 29.12.1965 and thereafter said rights stood transferred to plaintiff. Defendants 1 and 3 in their written statement belied above facts and challenged the very alleged title of even Smt. Saraswati Bai. They pleaded that disputed property was earlier part of Zamindari of Mahant Jaideo Dass, who was owner and Zamindar of land. He executed registered deed on 18.01.1929 in favour of Tulsi Ram, father of defendants 4 to 7. After Tulsi Ram, his rights were succeeded by defendants 4 to 7. Defendants 6 and 7 transferred their share by sale to Smt. Yashoda Bai. Yashoda Bai and defendant 4 being owner of three-forth share of disputed property, transferred the same by sale to defendants 1 to 3 vide registered sale deed dated 15.11.1966.

55. The above pleadings of defendants dispute the very title of Smt. Saraswati Bai over land in dispute. In the evidence of plaintiff it was sought to prove that disputed property earlier belong to father of Smt. Saraswati Bai and therefrom it was succeeded by Smt. Saraswati Bai but no documentary evidence in this regard could be led by plaintiff. On the contrary, defendants adduced a certified copy of registered permanent lease dated 18.01.1929 to prove their case. When a documentary evidence in respect of certain facts is produced, oral evidence has to subserve the same and documentary evidence has to prevail. LAC, therefore, formed opinion that plaintiff failed to prove its title and consequently, also, constructive possession, which she alleged that it was through tenants hence injunction could not have been granted. The evidence of some persons as tenants claiming that they are in possession in some disputed property and recognize title of plaintiff, in my view could not have been given prevalence over documentary evidence adduced by defendants relating to much anterior period i.e. 18.01.1929 and once title of defendants is found proved, then even if some persons without consent of defendants were in possession and those persons claim to be tenants of plaintiff, an injunction against real title holder could not have been granted.

56. Trial Court attempted to non-suit defendants by ignoring evidence of lease deed dated 18.01.1929, certified copy whereof has been filed as documentary evidence, which finding has been reversed by LAC and in my view rightly. That being so, defendants 1 to 3 having got valid title from earlier owners of disputed property, who transferred their shares by subsequent sale deed in favour of defendants 1 to 3, in such a case, no injunction against true owners could have been granted.

57. Law is well settled that no injunction can be granted against true owner. In Premji Ratansey Shah vs. Union of India, 1994 SCC (5) 547, Court in paras 4 and 5 said :

"4. It is seen that in a suit as originally framed, they sought for a declaration that the award made in respect of the land was void, inoperative and does not bind the petitioners. But that relief had been given up. Thereby, the title of the land of the railways have not been questioned. With award made under Section 30, the vendors of the petitioners got themselves bound by the above award under Section 12 of the Act. It is also seen that the two awards had become final and possession was delivered to the railways by the Land Acquisition Officer on 24.2.1960. Thus defendants 3 and 4 had no ghost of right, title or interest in the lands acquired from the original owner Maibal. The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under section 41 (j) of the Specific Relief Act, 1963, the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.

5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession as against the owner. Pretest of dispute of identity of the land should not be an excuse to claim injunction against true owner". (Emphasis added)

58. In Mahadeo Savlaram Shelke vs. The Puna Municipal Corporation, (1995) 3 SCC 33, Court held :

"9. It is settled law that no injunction should be granted against the true owner at the instance of persons in unlawful possession. It is true that the appellants placed reliance in their plaint on the resolutions passed by the Municipality on 11.11.72 and 29.11.72. A reading of those resolutions would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not be pursued where award has not been made is on the date of the resolutions. In this case, since the acquisition proceedings have become final then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the Corporation from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is, thus neither balance of convenience nor irreparable injury would be cause to the appellants."

59. In Tamil Nadu Housing Board vs. A.Viswam (dead) by Lrs., (1996) 8 SCC 259, Court in para 12 held :

"Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in whom the land ultimately stood vested and then stood transferred to the Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the Court issue the same."

(emphasis added)

60. In Maria Margarida Sequeria Fernandes and others vs. Erasmo Jack de Sequeria (Dead) through L.Rs.(2012) 5 SCC 370, Court said that possession is an incidence of ownership and can be transferred by owner of an immovable property to another, such as in a mortgage or lease. A licensee holds possession on behalf of owner. Possession is important when there are no title documents and other relevant records before Court, but, once documents and records of title come before the Court, it is the title which has to be looked at first and due weightage whould have been given to it. Possession cannot be considered in vacuum. A suit can be filed by title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act, 1963 to recover possession. A title suit for possession has two parts, one, adjudication of title, and second, adjudication of possession. If title dispute is removed and title is established in one or the other, then, in effect, it becomes a suit for ejectment where defendant must plead and prove why he must not be ejected. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon legal title to property being established, possession or occupation of the property by a person other than holder of legal title will be presumed to have been under and in subordination to legal title. It will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. The Court stressed upon importance of pleadings and said that wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and matter sent to trial, where onus will be on him to prove averred facts and documents. Court specifically said that a person when he claims possession must give details and some of such details, as illustrative, are noted by Court in para 70 of judgment as under :

"(a) who is or are the owner or owners of the property;

(b) title of the property;

(c) who is in possession of the title documents

(d) identity of the claimant or claimants to possession;

(e) the date of entry into possession;

(f) how he came into possession -whether he purchased the property or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;

(h) If taken on rent, license fee or lease -then insist on rent deed, license deed or lease deed;

(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;

(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and

(k) basis of his claim that not to deliver possession but continue in possession."

61. I need not to burden this judgment with more authorities on the subject for the reason that proposition, in my view, is well established that an injunction against original owner of property in dispute cannot be issued that he should not interfere plaintiff, who has neither proved its title nor can claim a right of possession superior than original owner. In a suit for permanent injunction, where no relief of declaration and possession over disputed property is claimed, if title and possession is not proved, decree for permanent injunction cannot be passed.

62. Relief of injunction is an equitable and discretionary remedy. Anyone, who is seeking relief of injunction, must have personal interest in subject matter and should show violation or infringement of his legal right. In a suit for permanent or perpetual injunction, Court may be called upon to hold enquiry to the entitlement, right, interest or status, as the case may be, of plaintiff to find out as to whether plaintiff is entitled to protection of his possession by decree of injunction. Question of title in a matter of injunction can also be gone into incidentally when such a question is raised by other side. When a person is claiming possession over property in dispute but lacks title, nature of possession assumes importance for the reason that for granting relief of injunction, plaintiff must show a lawful possession over the property in dispute. Long continuous possession can protect a person by seeking an injunction against any person in the world other than the true owner.

63. Plaintiff, who seeks injunction, must prove better title than the person who is allegedly interfering in his possession. Mere long continuous possession without there being any right to property cannot be a ground to retain possession against true owner except if the case is within the ambit of doctrine of "adverse possession". If plaintiff claims possession on the basis of title, it is incumbent upon Court to look into documents of title to decide whether plaintiff's possession was legal and he/she is entitled to injunction against defendants. However, if plaintiff is lost or failed to prove his/her title, it is not open to him/her to claim injunction to continue in possession merely on the plea of long continuous possession.

64. In a recent judgment in Behram Tejani and Others Vs. Azeem Jagani (2017) 2 SCC 759, it has been held that long possession of a gratuitous licensee does not create any right or interest in the property, and therefore, long possession of a gratuitous licensee will not entitle such a person to grant of injunction against dispossession.

65. Here, it is not the case of plaintiff that she is being evicted from property in dispute or her possession is being interfered in respect of property in dispute by resorting to unlawful means. On the contrary, plaintiff set up her case on the basis of title, which she has failed to prove. In these circumstances, I do not find that there was any justification to pass a decree of injunction in favour of plaintiff and Trial Court clearly erred in law in doing so. Therefore, judgment of LAC, reversing findings and decision of Trial Court, in my view, is perfectly valid, legal and warrants no interference.

66. No other point has been argued.

67. I, therefore, do not find any fault, legal or otherwise, in the judgment of LAC in allowing appeal.

68. This appeal therefore lacks merit. Dismissed with costs.

Order Date :- 03.07.2019

KA