Bombay High Court
Shriram Govinda Sadatkar vs Bhaurao Shrawan Sadatkar on 29 October, 2021
Bench: S. M. Modak
1 sa 303-2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO. 303/2005
Shri Shriram s/o Govinda Sadatkar,
(Since deceased through L.R's)
1) Shri Gulabrao s/o Shriram Sadatkar,
Amendment (Son of the deceased appellant)
carried out as per
order dated Age 60 years, Occ: Agriculturist,
12/03/2019 R/o Dhamani, Tah. Manora, District: Washim.
2) Shri Sudhakar s/o Shriram Sadatkar,
(Son of the deceased appellant)
Age 41 years, Occ: Agriculturist,
R/o Singdoh, Tah. Manora, District: Washim.
3) Shri Ajabrao S/o Shriram Sadatkar
(deceases son of the appellant)
(since deceased through legal heirs)
3(i) Smt. Shobhabai Wd/o Ajabrao Sadatkar
Age: 60 years, Occ: Household, R/o Talap
(bu), Tq. Manora, Post. Talap, District:
Washim.
3(ii) Smt. Archana w/o Ganesh Thakare
Age: 35 years, Occ: Household,
R/o Ajani, Post. Dhamni, Tq. Manora,
District: Washim.
3(iii) Shri Gopal S/o Ajabrao Sadatkar
Age: 32 years, Occ: Agriculturist,
R/o Talap (bu), Tq. Manora, Post.
Talap, District: Washim.
3(iv) Shri Gajanan Ajabrao Sadatkar,
Age: 30 years, Occ: Agriculturist,
R/o Talap (bu), Tq. Manora, Post.
Talap, District: Washim.
::: Uploaded on - 29/10/2021 ::: Downloaded on - 30/10/2021 08:10:08 :::
2 sa 303-2005.odt
3(v) Smt. Bharti W/o Pramod Umale
Age: 28 years, Occ: Household, R/o
Zodga, Tq. Karanja (Lad), District:
Washim.
.....APPELLANTS
...V E R S U S...
Shri Bhaurao S/o Shrawan Sadatkar,
Age: 55 years, Occupation : Agriculturist,
R/o Singdoh, Tq. Manora, Dist. Akola
(presently District Washim)
...RESPONDENT
-------------------------------------------------------------------------------------------
Mr. A.P. Bhuibhar, Advocate h/f Shri R.D. Bhuibhar, Advocate for
Appellants.
-------------------------------------------------------------------------------------------
CORAM :- S.M. MODAK, J.
RESERVED ON :- 12/10/2021
PRONOUNCED ON :- 29/10/2021
JUDGMENT
Heard.
2. This is an appeal preferred by the defendant against
the judgment and decree passed by the Court of Ad-hoc Additional
District Judge, Washim on 04/02/2005. By the said judgment, the
First Appellate Court allowed the appeal and decreed the suit. The
defendant is restrained from interfering with the possession of the
plaintiff over the suit land.
3 sa 303-2005.odt
3. The Trial Court has dismissed the suit for the reason
that plaintiff could not prove his possession over the suit land and
also for the reason that simpliciter suit for permanent injunction is
not maintainable. Whereas, the First Appellate Court reversed
those findings and held that plaintiff is having better title than that
of defendant. While admitting the appeal on 20/07/2005, this
Court has framed following substantial questions of law:
"Whether the suit for permanent injunction without
claiming the relief of declaration is maintainable in view
of Section 34 of the Specific Relief Act, 1963?"
4. This substantial question of law was framed after
hearing both the sides. In the regular course when the appeal had
come up for hearing, learned Advocate for the respondent
withdrew the power on 19/01/2021. This Court has issued notice
to respondent. Though it was served, respondent had chosen to
remain absent. Hence, this Court is left with no alternative but to
hear the learned Advocate Shri Bhuibhar for the appellant. With
his assistance, the record is produced. He relied upon three of the
judgment.
5. His main thrust of argument is non-maintainability of
the simpliciter suit for injunction. He mean to say that the plaintiff
4 sa 303-2005.odt
ought to have prayed for declaration considering line of defence
taken in a written statement. For appreciating this objection, it
will be necessary to understand few facts. From the pleadings of
both the sides, the following facts emerge.
Plaintiff- Bhaurao is the son of one Shrawan. The said
Shrawan was having a brother by name Shriram. He is the sole
defendant. The name of their father is Govinda. The genealogical
tree as follows:
Govinda (1978)
Shrawan (1993) Shriram
Bhaurao (Defendant)
(plaintiff)
Filing of the suit
6. The suit property is Gat No.64 admeasuring 0.59 R
situated at village Singdoh, Taluka Manora, District Washim. The
suit land is an ancestral property consisting of the shares of
Govinda and his two sons Shrawan and Shriram. Prior to
consolidation, the suit land was referred to as Survey No.101.
5 sa 303-2005.odt
Apart from that, there is also a land bearing Survey No.134.
During the lifetime of father- Govinda, in the year 1976, there was
an oral partition. The distribution as below:
Shrawan (father of Shriram (defendant) Govinda (father)
plaintiff)
1.55 R from Survey 1.20 R from Survey 0.59 R from Survey
No.134/2 No.134/2 No.101
Father Govinda expired in the year 1978. He was being looked
after by his son Shrawan (father of plaintiff). Father- Govinda gave
this 0.59 R i.e. suit land to Shrawan, father of plaintiff. This is the
subject matter of the suit. When defendant tried to obstruct
possession of plaintiff over suit in the month of June, 1995,
plaintiff filed a suit for permanent prohibitory injunction.
Written Statement
7. The theory of oral partition is not accepted by
defendant. According to him, he along with brother Shrawan and
father- Govinda sold away 3 acres of land out of Survey No.134/2
to one Uttam Gawande. Remaining land remained joint till the
lifetime of father- Govinda. After the death of father- Govinda,
both the brothers have partitioned the land and 0.30 R from
Survey No.101 i.e. Gat No.64 came to the share of defendant. He
6 sa 303-2005.odt
has tried to offer an explanation that the name of his brother
Shrawan has appeared on 7/12 extract due to mistake while
carrying out consolidation proceedings.
Outcome of suit
8. On the background of above pleadings, the Trial Court
has framed the issues. Both the parties adduced oral as well as
documentary evidence. The plaintiff examined himself. Whereas,
the defendant examined himself and one Prithwiraj Rathod. On
this evidence, the Trial Court has not found the evidence of
plaintiff weighty as compared to the evidence adduced by the
evidence. Even, the Trial Court has given weightage to the
evidence of Prithwiraj Rathod for the defendant. There is one
more reason why the Trial Court dismissed the suit. The plaintiff
has simply asked for permanent injunction. He has not asked for
declaration as to the title. As a result, the suit came to be
dismissed.
First appeal
9. However, the First Appellate Court has re-appreciated
the evidence and concluded that the plaintiff is having better title
than the defendant and accordingly defendant was injucted from
7 sa 303-2005.odt
distributing possession out of plaintiff. The First Appellate Court
has not expressed his opinion on necessity of asking for
declaration of suit also.
Second appeal
10. On this background, the finding is given by both the
Courts below and the law on this point needs to be looked into.
The appellant relied upon following judgments:
i) Santosh Hazari Vs. Purushottam Tiwari reported in AIR 2001
SC 965.
ii) Ganpati Munjaji Renge Vs. State of Maharashtra and others
reported in 1998 (2) Mh.L.J. 845.
iii) Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs and
others reported in AIR 2008 SC 2033.
Possession of the plaintiff over the suit land
11. The Trial Court has framed issue no.1 on this aspect. It
was answered in the negative. Whereas, the First Appellate Court
has also framed point no.1 on that aspect. In addition to said
issue, 'whether ownership is proved by the plaintiff' is also
included in point no.1. This was answered in the affirmative. The
person may be in possession of a land in different capacities, as an
8 sa 303-2005.odt
owner, as a tenant, as a lessee. There is no dispute that plaintiff
has not asked for declaration as to his ownership over the suit
land. The First Appellate Court has framed point no.1 "whether
the plaintiff is an owner", it is framed because the plaintiff has
claimed to be in possession as an owner. It will be material to
consider what are the reasoning given by the First Appellate Court
while answering point no.1 in favour of the plaintiff (which was
answered by the Trial Court against the plaintiff). The First
Appellate Court has given following reasoning prior to coming to
that conclusion -
Reasoning
a) There is no dispute amongst the parties as to nature of the
suit property being an ancestral joint family property.
b) Theory of oral partition has been put up by the plaintiff- land
admeasuring 0.59 R i.e. the suit land is retained by Govinda-
father of the defendant - there is no document on record
supporting the theory of retention.
c) To support this theory of partition of remaining land (what
remains after selling 3 acres of land from Survey No.134),
the defendant has not produced any documentary evidence
on record. The theory of selling the land to Uttam is
imaginary story. The defendant is silent over theory of
9 sa 303-2005.odt
retention of land by father- Govinda.
d) The 7/12 extract at Exhibit-37 shows that the suit land had
come to the share of Shrawan - father of the plaintiff in 1976
oral partition.
e) Photocopy at Exhibit- 26/2 shows the names of both the
brothers - (original is not forthcoming) - on what basis the
names of both the brothers are entered is not clear.
f) Except these documents, defendant does not rely upon any
other document.
g) Exhibit-37 is sufficient to accept the claim of plaintiff.
h) No document is placed on record by defendant that he has
protested before the Revenue Authorities for correction of
record on rights.
i) Plaintiff's theory appears probable. Father- Govinda must
have given land of 0.59 R to plaintiff's father.
j) No documentary evidence to that effect, but theory of
plaintiff cannot be discarded. The Trial Court disbelieved the
theory of giving of land by Shrawan to the plaintiff in the
year 1992, by raising unnecessary queries in mind.
k) Plaintiff's father has not transferred the land in the name of
plaintiff by executing any gift deed or will but, he has
executed deed of partition. The original is not come forward
10 sa 303-2005.odt
but it cannot be discarded.
l) Oral partition is also admissible and it can be gathered from
the conduct of the parties.
m) The defendant has not raised any objection to the name of
the plaintiff on 7/12 extract from 1978 to 1993.
n) The defendant is claiming right over 0.30 R out of 0.59 R.
o) The plaintiff has proved better title than the defendant.
12. On the background of above reasoning, it is necessary
to consider whether the plaintiff ought to have asked for
declaration as to his ownership.
The case law relied upon by the appellant
13. Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs and
others reported in AIR 2008 SC 2033 - The suit of the plaintiff for
permanent injunction was decreed by the Trial Court whereas the
First Appellate Court dismissed the suit for the reason that
defendant was found to be in possession and simpliciter suit for
injunction was not maintainable. When the appeal was argued
before the Hon'ble Supreme Court, certain guidelines were laid
down. Those find placed in paragraph no.11. They can be
summarized as follows: -
11 sa 303-2005.odt
paragraph no.11.1 -
plaintiff is in lawful possession - interfered by the defendant
- suit for simpliciter injunction will lie.
Paragraph no.11.2 -
suit for possession and injunction will lie when title of the
plaintiff is not disputed and he is not in possession.
Paragraph no.11.3 -
when the plaintiff is in possession.
a) title is in dispute - and a threat of dispossession - suit will have
to include declaration of title and injunction
b) Where title is in dispute - plaintiff is not in possession/ not able
to establish possession - the suit will have to be for declaration,
possession and injunction.
Furthermore, it has been held "which are the direct and
substantial issues and which are the ancillary issues". The issue of
title will be important when there is a vacant site and issue of
possession is there. Without deciding the issue of title, it will be
difficult to decide the issue of possession. The Court should not
investigate about title in a suit for injunction. However, when the
matter involves complicated question of facts and law relating to
title, necessity of deciding the issue of title, the Court should
relegate the parties to the remedy of filing comprehensive suit for
12 sa 303-2005.odt
declaration as to title.
14. After making above said observations, the Hon'ble
Supreme Court was pleased to observe that there was need to ask
for declaration of title and as it was not asked, suit came to be
dismissed.
15. Ganpati Munjaji Renge Vs. State of Maharashtra and
others reported in 1998 (2) Mh.L.J. 845 - it was observed that
mutation entries do not confer any title.
16. Santosh Hazari Vs. Purushottam Tiwari reported in
AIR 2001 SC 965 - It is on the point of exercise of power by the
First Appellate Court. What precaution should be taken by the
First Appellate Court if at all the decision of the Trial Court is
to be reversed, is laid down. It was observed that while
writing the judgment of reversal following principles should
be followed -
a) The finding recorded by the Trial Court on the basis of
conflicting evidence - must weigh the mind of the First
Appellate Court.
13 sa 303-2005.odt
b) If appraisal of the evidence by the Trial Court suffers
from material irregularity or is based on inadmissible
evidence - then those findings can be set aside.
c) If there is a special feature about the evidence of a
particular witness and it has escaped the notice of the
Trial Court then the only interference is warranted.
Observations
17. The decision of this appeal hinges on two questions:
a) Whether on the said facts declaration of title is required?
&
b) Whether the First Appellate Court was justified in
reversing the findings of the Trial Court?
Filing of Simpliciter suit for injunction
18. If we read the observations by Hon'ble Supreme
Court in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead)
by L.Rs and others (supra), we may find that consideration for
dealing with a simpliciter suit for injunction is different from
consideration for deciding the suit for declaration of title and
permanent injunction. The relief of declaration of title is
14 sa 303-2005.odt
governed as per the provisions of Section 34 of the Specific
Relief Act (the Said Act). It contemplates denial of title by a
person of another person and filing of a suit seeking assistance
of the Court for declaration of right to property. Whereas, the
relief of perpetual injunction is governed as per the provisions
of Section 38 of the Said Act. It can be filed when the
wrongdoer is committing breach of his obligation. The
provisions of Section 38 of the Said Act, nowhere say that suit
for simpliciter injunction is not maintainable but it has to be
accompanied by other relief (though such provision finds
place in the provisions of Section 34 of the Said Act).
19. On this background, it will be material to consider
the logic behind insisting for seeking relief of declaration
along with the relief of permanent injunction. If the plaintiff
himself will ask for both the reliefs, it cannot be said that there
is a lacuna. However, in those suits wherein there is prayer for
simpliciter injunction, question arises. It is also true that the
person may be in possession in different capacities, one is as
an exclusive owner, second is as a licensee and third is a co-
owner etc. In such a contingency, when defendant does not
15 sa 303-2005.odt
deny the possession of the plaintiff but only denies in what
capacity the plaintiff is holding the possession and
additionally he claims title in himself, this Court is required to
consider who is having better title because the issue of
possession is connected to issue of title and in fact issue of
possession also depends upon issue of title. So in such a
contingency, the issue of title plays a predominant role. In
such situation, this Court is faced with a difficulty. That is to
say to decide the issue of possession on complicated facts
without there being a relief of declaration of title being asked
for. Furthermore, question also arises what will be the binding
effect of finding given as to title (which is an ancillary issue)
in a subsequent proceedings between the same parties. That is
why in order to avoid such complications, the Courts have
interpreted the law in a such manner that parties not asking
for relief of declaration and compelling the Court to decide the
issue of possession (based on issue of title), will not get a
discretionary relief of perpetual injunction.
16 sa 303-2005.odt
20. In fact, the law laid down in Anathula Sudhakar Vs.
P. Buchi Reddy (Dead) by L.Rs and others (supra) has been
further elaborated by the Hon'ble Supreme Court in case of
Jharkhand State Housing Board Vs. Didar Singh and Anr.
reported in (2019) 17 SCC 692. Therein, the Hon'ble Supreme
Court has gone further and tried to analyse the bonafide
dispute about the title raised on behalf of the defendant. The
dispute may be bonafide or it may not be bonafide i.e.
frivolous. It has been held that only when the dispute as to
title raised by the defendant is bonafide one, then only there
can be an insistence for seeking a relief as to declaration of
title. In that case, there were rival claims. The plaintiff sought
to protect the possession of the land on the basis of title which
was explained by the plaintiff. As against this, defendant
Housing Board contended that property was acquired. It was
considered as a bonafide dispute and hence it was held that
simpliciter suit for injunction is not maintainable.
21. In a recent case decided by the Hon'ble Supreme
Court in the case of T.V. Ramakrishna Reddy Vs. M. Mallappa
and others in Civil Appeal No.5577 of 2021 (Arising out of
17 sa 303-2005.odt
Special Leave Petition (C) No.10621 of 2020) similar issue has
arisen before the Hon'ble Supreme Court. The observations
made in case of Jharkhand State Housing Board Vs. Didar
Singh and Anr. (supra) as referred above were also
considered. The simpliciter suit for injunction was held not
maintainable in view of genuine dispute as to title raised by
the defendant in written statement.
Facts of the case
22. When we apply the ratio laid down in above
mentioned cases to the facts before us, we may find that there
are two versions. One is claim as to ownership made by the
plaintiff over the suit land and claim as to possession as an
owner. When we see the source of title pleaded by the
plaintiff, we may find that he has narrated two events.
a) One is about giving of land by Govinda to his father
Shrawan in the year 1978.
b) And second is giving of land by Shrawan to his son plaintiff
in the year 1992.
18 sa 303-2005.odt
23. On the other hand, the defendant has given
different version. He has disputed both the claims of plaintiff.
Whereas, according to him, his father Govinda at the time of
death has left 0.59 R of suit land and both the brothers i.e.
defendant and Shrawan partitioned said land and 0.30 R
came to his share that is how he has claimed that he is in
possession. In such circumstances, this Court is bound to
consider whose claim prevailed over whose claim.
24. For conducting an inquiry, this Court is required to
go into the issue whether claim is supported by document and
whether document requires registration or not. The First
Appellate Court has accepted the case of plaintiff and had
given a go bye to absence of document created by Govinda in
favour of plaintiff's father Shrawan. Furthermore, go bye is
also given to production of original deed of partition in
between Shrawan and his son plaintiff. At the same time,
while appreciating the evidence adduced by the defendant
same yardstick was not applied. The First Appellate Court has
laid emphasis on lacuna in defendant's case in producing a
document about partition in between himself and his brother
19 sa 303-2005.odt
i.e. plaintiff's father Shrawan. There is a reason to believe that
the First Appellate Court has applied different standards of
appreciation of evidence. This is not warranted.
25. It is also clear that considering the nature of claims
made by both the parties against each others, the issue of
possession cannot be decided without conducting an inquiry
as to issue of title. This can be done only when issue of title is
decided. Unfortunately, the Trial Court has understood this
aspect and that is why has taken a note of the settled principle
of law that declaration ought to have been asked for
(paragraph no.7). However, the First Appellate Court by
applying different yardsticks for different persons had
reversed the findings of the Trial Court. Even the First
Appellate Court went to the extent of criticizing the Trial
Court by lebelling 'the queries' as unnecessary queries
(paragraph no.10). This Court feels that the approach of the
Trial Court cannot be said to be a judicious approach. This
Court holds that the plaintiff ought to have prayed for
declaration of title along with relief of permanent injunction.
For the above reasons, the findings given by the First
20 sa 303-2005.odt
Appellate Court cannot be sustained in the eyes of law and
they need to be set aside. Certainly they are perverse.
26. In view of the above, substantial question no.1 is
answered in the affirmative. The findings given by the First
Appellate Court are set aside. Appeal needs to be allowed.
Hence the following order:
ORDER
i) The appeal is allowed.
ii) The judgment dated 04/02/2005 passed by
the Ad-hoc Additional District Judge, Washim
in Regular Civil Appeal No. 37/2000 is set
aside.
JUDGE
R.S. Sahare
