Gujarat High Court
Rameshbhai Bhikhabhai Patel vs Manharbhai Natwarlal Patel on 25 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2755 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAMESHBHAI BHIKHABHAI PATEL
Versus
MANHARBHAI NATWARLAL PATEL & ORS.
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Appearance:
MS LAKSHA K BHAVNANI(11339) for the Appellant(s) No. 1
MR VIMAL A PUROHIT(5049) for the Defendant(s) No. 3
SHRENIK R JASANI(9486) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 25/09/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 96 of the Code
of Civil Procedure, 1908, is preferred by the appellant -
original plaintiff, being aggrieved and dissatisfied with the
judgment and order dated 26.02.2024 passed by the learned
City Civil and Sessions Court, Ahmedabad, in Civil Suit
No.810 of 2014.
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2. Brief facts of the case are as under:
2.1 For the sake of convenience, the parties are referred as
per their original status i.e. the Plaintiff and the Defendants.
2.2 The description of the suit property is as follows: T.P
Scheme No.3, Municipal Ward No. 515, Final Plot No. 285,
City Survey No. 2862 (Old Survey No. 325) having Tenement
No. (i) 05150100100019, (ii) 0515010010002U, (iii)
05150100100035, (iv) 0515010010004Q, (v) 05150100100050,
(vi) 0515010010006M, (vii) 0515010010007K, (viii)
05150100100081, (xi) 0515010010009G and (x)
05150100100010V situated at Sim: Khanpur, Moje: Shekhpur
and District: Ahmedabad. The above-mentioned property was
self-acquired property of the Plaintiff's ancestor namely
Hargovandas Laldas. Furthermore, the person namely
Hargovandas Laldas was married twice; the first marriage
was with Ambaben and the second marriage was with
Ichaben. That, from the wedlock with first wife namely
Ambaben, one son namely Bechardas was born. Furthermore,
the person namely Bhikhabhai was the son of Bechardas. It
is pertinent to mention here that the present Plaintiff is the
legal heir of the person namely Bhikhabhai. That, from the
wedlock with the second wife namely Ichaben, one son
namely Jivabhai was born. Furthermore, the person namely
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Natvarlal was the son of Jivabhai. It is pertinent to mention
here that the present Defendant No.1 is the son of the
person namely Natvarlal and the Defendant No.2-4 are the
legal heirs of the other son of the person namely Natvarlal.
That, the suit property was purchased by the Plaintiff's
ancestor namely Hargovandas Laldas on the name of the
second wife namely Ichaben. Furthermore, the suit property
was purchased from the funds of the family and therefore all
the legal heirs of Hargovandas Laldas have equal right and
interest in the suit property.
2.3 After the death of the second wife of the Plaintiff's
ancestor namely Hargovandas Laldas; only the names of the
legal heirs of second wife namely Ichaben were mutated in
the revenue records of the suit property. The Defendants
have constructed shops in the suit property; wherein in one
shop the Defendant No.1 is doing business and the other
shops have been rented by the Defendants. Furthermore,
when the Plaintiff demanded the share in the profit; the
Defendants threatened to sell the suit property to the third
party.
2.4 The Plaintiff sent a legal notice dated 25.12.2013 to the
Defendants asking for the right, title and interest in the suit
property. Furthermore, the Defendants sent the reply dated
18.12.2014 denying the same. Therefore, on 07.04.2014 the
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Plaintiff filed Civil Suit No. 810 of 2014 before the Learned
City Civil and Sessions Court, Ahmedabad seeking permanent
injunction and restraining the Defendants, their agents,
servants, representatives, etc. from transferring, assigning,
alienating and / or dealing in any manner whatsoever with
the suit property. Thereafter, the Defendants contested the
said suit by filing Written Statement denying the aforesaid
facts. Both the parties have led oral as well as documentary
evidence to prove and disprove their respective case.
2.5 Thereafter, vide Judgment and Order dated 26.02.2024,
the learned Judge, City Civil and Sessions Court, Ahmedabad
was pleased to reject the Civil Suit No.810 of 2014 filed by
the Plaintiff.
2.6 Being aggrieved and dissatisfied with the impugned
judgment and order, the present appeal is preferred before
this Court.
3. Heard learned advocate Ms. Laksha K. Bhavnani for the
appellant, learned advocates Mr. Vimal A. Purohit and Mr.
Shrenik R. Jasani for the respondent No.3 - Caveator.
4. Learned advocate Ms. Laksha Bhavnani has submitted
that the learned Civil Court has not considered appropriately
the factual aspect of the matter that the suit property is
self-acquired property of the ancestors of the plaintiff, namely,
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Hargovandas Laldas, which is taken in the name of second
wife namely Ichaben out of love and affection, and the
plaintiff and the other members are being joint family
members are having equal share, right and interest of the
self-acquired joint family property. She has further submitted
that the suit property was thrown into common hotch-potch
for the use and benefit of the family members, in entirety
and without any exception and thus, the suit property
irrespective of the ownership, are admittedly thrown into
hotch-potch.
4.1 She has further submitted that no dispute was raised
while entering the names of the parties in revenue record by
way of mutation entry and this fact itself does not adversely
affect the right of the plaintiff to challenge the said mutation
entry at subsequent stage, if the title of the land is claimed
on the basis of such mutation entry, the concerned Civil
Court has jurisdiction to decide the question as to the title,
irrespective of such mutation entry. She has submitted that
the concerned trial Court has erred in giving findings as well
as the detailed reasons assigned by the trial Court while
deciding the suit proceedings and therefore, the trial Court
has wrongly come to the conclusion that, as the suit is filed
after period of more than 13 years, therefore, there is a bar
of limitation and there is bar of estoppel also, as well as,
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the trial Court has also considered that there is bar of
Section 34 of the Specific Relief Act, 1963, as the plaintiff
has not prayed in the suit about any declaration with regard
to the right in the property or in partition and the suit is
filed for permanent injunction which is not maintainable and
therefore, the concerned Court has wrongly found that such
suit is not maintainable. She has submitted that, on the
contrary, from the material available on the record, the trial
Court ought to have allowed the suit filed by the appellant -
plaintiff, and therefore, she prays to allow the present appeal.
5. Learned advocate Mr. Vimal A. Purohit for the
respondent No.3 has submitted that the trial Court has not
committed any error as apparently, from the record, the suit
is barred by limitation, moreover, the suit itself is not
maintainable as the suit is filed only with prayer of
permanent injunction as well as no declaration, whatsoever, is
sought and therefore, in view of Section 34 of the Specific
Relief Act, 1963, the suit is required to be dismissed. He has
further submitted that, apart from that also, considering the
provisions of Section 115 of the Indian Evidence Act, 1872,
there is a bar of estoppel to the suit filed by the present
appellant - plaintiff, moreover, the appellant has not
challenged any proceedings, whereby, the names of the
present defendants were entered into the revenue record by
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way of revenue proceedings or by seeking any relief qua such
proceedings and therefore, the suit filed by the present
appellant - original plaintiff before the trial Court is
misconceived and the learned trial Court has rightly rejected
the suit.
5.1 Learned advocate, in support of his submissions, has
relied on the decision of the Hon'ble Apex Court in the case
of The Tehsildar, Urban Improvement Trust and Anr. Vs.
Ganga Bai Menariya (Dead) Through Lrs. and Others ,
rendered in Civil Appeal No.722 of 2012, more particularly,
paras 21 and 21.1 and therefore, he has submitted that the
trial Court has not committed any error and appropriate
order may be passed by this Court.
6. I have considered the rival submissions made at the
bar, I have also gone through the judgment and order passed
by the trial Court as well as the material available on the
record before this Court.
6.1 It transpires that the suit is filed seeking relief of
permanent injunction without seeking any other relief in the
suit proceedings, thereafter, the defendants appeared and filed
the written statement. Thereafter, the trial Court has framed
six issues for determination of the suit.
6.2 It also transpires that thereafter on the basis of issues,
the evidence was led by the parties, in addition to the
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documentary evidence produced by the parties. Thereafter, the
trial Court has decided the matter after considering the
submissions of the respective parties. It further transpires
from the impugned judgment and order that the trial Court
has dealt with all the issues in detail which are framed for
consideration, after properly appreciating the evidence
available on the record. While deciding the issue No.1, the
trial Court has found that in the cross-examination of the
plaintiff, the plaintiff has admitted that Hargovandas Laldas
had transferred such property by Will to Ichaben and by the
time, many mutation entries had taken place but no objection
has been raised ever. It also transpires from the reasoning of
the trial Court for the issue No.1, that the plaintiff has
admitted in cross-examination that the plaintiff is not the
heirs of Ichaben and it is further admitted that, while the
construction was carried out, no objection had been raised by
the plaintiff.
6.3 It also transpires that shops were constructed there on
the suit land and as per the case of the plaintiff, there is
issue of rent calculation also which is decided by the trial
Court by considering the issue No.3. While considering the
issue No.4, the trial Court has considered the aspect of
criminal intimidation to the plaintiff by the defendants. The
Trial Court has observed that no criminal proceedings are
filed and no evidence is produced on record to show that the
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defendants intimidated the plaintiff. The trial Court while
considering the issue No.6 has found that the plaintiff has
not prayed for declaration or partition and therefore, the
plaintiff is not entitled to get the relief under Section 34 of
the Specific Relief Act, 1963, which reads as under:
"34. Discretion of court as to declaration of status or right.--
Any person entitled to any legal character, or to any right as to
any property, may institute a suit against any person denying, or
interested to deny, his title to such character or right, and the
court may in its discretion make therein a declaration that he is
so entitled, and the plaintiff need not in such suit ask for any
further relief:
Provided that no court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration
of title, omits to do so.
Explanation.--
A trustee of property is a "person interested to deny" a title
adverse to the title of some one who is not in existence, and
whom, if in existence, he would be a trustee."
6.4 I have perused the impugned judgment and order
passed by the trial Court as well as necessary material
produced on record before the trial Court. I have also
perused the decision of the Hon'ble Apex Court in the case
of The Tehsildar, Urban Improvement Trust and Anr. Vs.
Ganga Bai Menariya (Dead) Through Lrs. and Others ,
rendered in Civil Appeal No.722 of 2012, cited at the bar by
the learned advocate for the defendant, more particularly,
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paras 21 and 21.1, which read as under:
"21. In the light of the aforesaid stand and the evidence led on
record by the appellants-defendants, it was incumbent on the
respondents to have proved their title on the land, which they
failed to establish. As per the stand of the appellants, the
respondents were encroachers upon the land for which notice under
Section 92A of the 1959 Act was issued to them. The same was
replied to by the respondents stating therein that they have patta
executed in their favour by the Gram Panchayat.
21.1 Further a suit simpliciter for injunction may not be
maintainable as the title of the property of the plaintiff/respondent
was disputed by the appellants/defendants. In such a situation it
was required for the respondent/plaintiff to prove the title of the
property while praying for injunction. Reference can be made to the
judgment of this Court in Anathula Sudhakar v. P. Buchi Reddy
(Dead) by Lrs. and ors."
6.5 This Court has also considered the judgment of the
Hon'ble Apex Court in the case of T.V.Tamakrishna Reddy
Vs. M. Mallappa and Another , reported in (2021) 13 SCC
135, wherein, the relevant paras 14 to 26, are reproduced as
under:
"14. The issue is no more res integra. The position has been
crystallised by this Court in Anathula Sudhakar v. P. Buchi
Reddy [Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC
594] in para 21, which read thus : (SCC pp. 607-608)
"21. To summarise, the position in regard to suits for
prohibitory injunction relating to immovable property, is as
under:
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(a) Where a cloud is raised over the plaintiff's title and he
does not have possession, a suit for declaration and
possession, with or without a consequential injunction, is the
remedy. Where the plaintiff's title is not in dispute or under
a cloud, but he is out of possession, he has to sue for
possession with a consequential injunction. Where there is
merely an interference with the plaintiff's lawful possession
or threat of dispossession, it is sufficient to sue for an
injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with
possession, normally the issue of title will not be directly
and substantially in issue. The prayer for injunction will be
decided with reference to the finding on possession. But in
cases where de jure possession has to be established on the
basis of title to the property, as in the case of vacant sites,
the issue of title may directly and substantially arise for
consideration, as without a finding thereon, it will not be
possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for
injunction, unless there are necessary pleadings and
appropriate issue regarding title (either specific, or implied as
noticed in Annaimuthu Thevar [Annaimuthu Thevar v.
Alagammal, (2005) 6 SCC 202] ). Where the averments
regarding title are absent in a plaint and where there is no
issue relating to title, the court will not investigate or
examine or render a finding on a question of title, in a suit
for injunction. Even where there are necessary pleadings and
issue, if the matter involves complicated questions of fact and
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law relating to title, the court will relegate the parties to
the remedy by way of comprehensive suit for declaration of
title, instead of deciding the issue in a suit for mere
injunction.
(d) Where there are necessary pleadings regarding title, and
appropriate issue relating to title on which parties lead
evidence, if the matter involved is simple and
straightforward, the court may decide upon the issue
regarding title, even in a suit for injunction. But such cases,
are the exception to the normal rule that question of title
will not be decided in suits for injunction. But persons
having clear title and possession suing for injunction, should
not be driven to the costlier and more cumbersome remedy
of a suit for declaration, merely because some meddler
vexatiously or wrongfully makes a claim or tries to encroach
upon his property. The court should use its discretion
carefully to identify cases where it will enquire into title
and cases where it will refer to the plaintiff to a more
comprehensive declaratory suit, depending upon the facts of
the case."
15. It could thus be seen that this Court in unequivocal terms has
held that where the plaintiff's title is not in dispute or under a cloud,
a suit for injunction could be decided with reference to the finding on
possession. It has been clearly held that if the matter involves
complicated questions of fact and law relating to title, the court will
relegate the parties to the remedy by way of comprehensive suit for
declaration of title, instead of deciding the issue in a suit for mere
injunction.
16. No doubt, this Court has held that where there are necessary
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pleadings regarding title and appropriate issue relating to title on
which parties lead evidence, if the matter involved is simple and
straightforward, the court may decide upon the issue regarding title,
even in a suit for injunction. However, it has been held that such
cases are the exception to the normal rule that question of title will
not be decided in suits for injunction.
17. In this background, we will have to consider the facts of the
present case.
18. The appellant-plaintiff claims to be the owner of the suit property
on the basis of a sale deed executed by one K.P. Govinda Reddy in
his favour on 13-4-1992. In turn, according to him, the said property
was sold by one Smt Varalakshmamma in favour of his vendor K.P.
Govinda Reddy on 26-3-1971. He claims that he had mortgaged the
suit property for taking loan from one financial institution. He further
claimed that an endorsement was also issued by the Corporation of
City of Bangalore that khata regarding the suit property is transferred
to the appellant. According to the appellant-plaintiff, when the
Bangalore Mahanagar Palike withdrew the khata in his favour, he
went to the High Court [T.V. Ramakrishna Reddy v. Bangalore
Mahanagara Palike, 2000 SCC OnLine Kar 901] and succeeded therein.
19. Per contra, Defendant 2 (Respondent 1 herein) is specifically
denying the title of the appellant-plaintiff. He claims to be the owner
of the suit property on the basis of a sale deed dated 5-4-1984 from
one M. Shivalingaiah. He also claims to be in peaceful possession and
enjoyment of the same on the basis of the said sale deed. It is his
case that K.P. Govinda Reddy got the title set up falsely and created
fabricated documents with regard to possession. It is also his case that
compound wall was constructed by him and not by the plaintiff, as
claimed.
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20. It could thus clearly be seen that this is not a case where the
appellant-plaintiff can be said to have a clear title over the suit
property or that there is no cloud on the appellant-plaintiff's title over
the suit property. The question involved is one which requires
adjudication after the evidence is led and questions of fact and law are
decided.
21. In that view of the matter, we do not find any reason to interfere
with the judgment and order [M. Mallappa v. T.V. Ramakrishna Reddy,
2020 SCC OnLine Kar 3063] passed by the Karnataka High Court.
22. Insofar as the reliance on the order passed by the learned Single
Judge of the Karnataka High Court dated 10-2-2000 (sic 18-2-2000) in
T.V. Ramakrishna Reddy v. Bangalore Mahanagara Palike [T.V.
Ramakrishna Reddy v. Bangalore Mahanagara Palike, 2000 SCC
OnLine Kar 901] is concerned, it will be relevant to refer to the
following observations made therein : (SCC OnLine Kar paras 3-4)
"3. It is evident from the plain reading of the above that any entry
made in the Corporation Register by fraud, misrepresentation or
suppression of facts or by furnishing false, incorrect and incomplete
material could be corrected within a period of three years from the
date of such recording. The order in the instant case was passed
admittedly much beyond the period of limitation prescribed by the
provision extracted above. The same is therefore unsustainable on
that ground itself. The parties being in litigation before the civil
court could upon adjudication of the controversy regarding the title
to the property approach the Corporation for any modification in the
entry which is no more any modification in the entry which is no
more than a fiscal entry relevant only for purposes of payment of
taxes and does not by itself create or extinguish title to the
property in regard to which it is made. Till such time the
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competent court declared the 3rd respondent as the true owner of
the property, the Corporation could not on its own correct the entry
after a period of 3 years stipulated under Section 114-A of the Act.
4. This writ petition accordingly succeeds and is hereby allowed. The
impugned order shall stand quashed reserving liberty for the parties
to have the matter adjudicated upon by the civil court and to
approach the Corporation for a fresh entry/modification of the
existing entry to bring the same in consonance with the civil court's
determination. No costs."
23. It could thus be clearly seen that the High Court in the said order
has clearly noted that the parties are in litigation before the civil court
and that adjudication of controversy regarding the title of the suit
property could be done only by the civil court. The entry with the
Corporation is nothing more than a fiscal entry relevant only for the
purpose of payment of taxes and does not by itself create or extinguish
title to the property. The Court observed that till such time the
competent court declared the third respondent therein as the true owner
of the property, the Corporation could not on its own correct the entry
after a period of 3 years stipulated under Section 114-A of the Act. The
High Court has therefore set aside the order reserving liberty for the
parties to have the matter adjudicated upon by the civil court.
24. In that view of the matter, the said judgment and order would be
of no assistance to the case of the appellant-plaintiff.
25. It will also be relevant to refer to the following observations of this
Court in Jharkhand State Housing Board v. Didar Singh [Jharkhand
State Housing Board v. Didar Singh, (2019) 17 SCC 692 : (2020) 3 SCC
(Civ) 588] : (SCC p. 694, para 11)
"11. It is well settled by catena of judgments of this Court that in each
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and every case where the defendant disputes the title of the plaintiff it
is not necessary that in all those cases the plaintiff has to seek the
relief of declaration. A suit for mere injunction does not lie only when
the defendant raises a genuine dispute with regard to title and when he
raises a cloud over the title of the plaintiff, then necessarily in those
circumstances, the plaintiff cannot maintain a suit for bare injunction."
26. In the facts of the present case, it cannot be said at this stage that
the dispute raised by Defendant 2 with regard to title is not genuine
nor can it be said that the title of the appellant-plaintiff over the suit
property is free from cloud. The issue with regard to title can be
decided only after the full-fledged trial on the basis of the evidence that
would be led by the parties in support of their rival claims."
7. Therefore, considering the above position of law,
additionally, from a bare reading of the plaint, it transpires
that the plaintiff has sought to challenge the action almost
after delay of 13 years and for some aspect there is more
delay. It also transpires that the plaintiff has never
challenged any entry made in the revenue record by way of
appropriate revenue proceedings or by way of a separate suit
challenging such transfer. It further transpires that the
present suit is barred by provisions of Section 34 of the
Specific Relief Act, 1963, as the plaintiff has not sought any
relief of declaration or partition and has merely sought relief
of permanent injunction. The pleadings of the parties are to
be considered by keeping in mind the provisions of the Code
of Civil Procedure, 1908, as well as relevant provisions of the
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the Specific Relief Act, 1963. Therefore, the suit itself is
barred by provisions of Section 34 of the Specific Relief Act,
1963 and also apparently, the suit is barred by provisions of
Limitation Act, more particularly, Section 3 of the Limitation
Act.
8. After re-appreciating the material available on record
and after re-analyzing the impugned judgment and order, this
Court is of the opinion that the concerned trial Court has
not committed any error in coming to the conclusion that the
suit filed by the plaintiff is required to be dismissed.
Moreover, the trial Court has given cogent and convincing
reasons by discussing the necessary evidence available on the
record as well as by considering the necessary legal
provisions applicable in the facts and circumstances of the
case.
9. For the foregoing reasons, I found no justifiable reason
to interfere with the findings recorded by the trial Court.
Therefore, the present appeal lacks merit and the same is
required to be dismissed.
10. Accordingly, the present appeal is dismissed with no
order as to costs.
(SANDEEP N. BHATT,J)
SLOCK BAROT
