Madras High Court
Narendra Kumar Johar vs A.Shahjahan on 29 October, 2021
S.A.(MD)Nos.550 & 551 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.10.2021
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.550 and 551 of 2008
In S.A.(MD)No.550 of 2008 : -
Narendra Kumar Johar ... Appellant / Appellant / Defendant
-Vs-
A.Shahjahan ... Respondent / Respondent / Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.170 of 2004 on
the file of the Principal Sub Court, Trichirappalli dated 07.12.2007
confirming O.S.No.1938 of 1996 on the file of the Principal District Munsif,
Trichirappalli, dated 10.09.2004.
In S.A.(MD)No.551 of 2008 : -
Narendra Kumar Johar ... Appellant / Appellant / 3rd Party
Appellant
vs.
1.A.Shahjahan ... Respondent / Respondent /
Plaintiff
2.Mohammed Yussuf
https://www.mhc.tn.gov.in/judis
S.A.(MD)Nos.550 & 551 of 2008
3.Abdul Jabar
4.Abdul Malik
5.Nazeem Begum
6.A.Nawabjan
7.Sarbunnissa
8.Yasmeen ... Respondents / Respondents / Defendants
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.248 of 2005 on
the file of the Principal Sub Court, Trichirappalli dated 07.12.2007
confirming O.S.No.1479 of 1994 on the file of the Principal District Munsif,
Trichirappalli, dated 05.03.2003.
For Appellant : Mr.Jahangir Baba
For R1 : Mr.T.S.R.Venkataramana
For R5 : no appearance
(in both second appeal)
COMMON JUDGMENT
These second appeals arise out of two suits for permanent
injunction. The plaintiff in both the suits is one and the same. The
defendants alone are different. The suit property is also one and the
same. There is no dispute that the suit property originally belonged to
T.B.M.Ameerjan /father of the plaintiff Thiru.Shahjahan.
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S.A.(MD)Nos.550 & 551 of 2008
2.The case of the plaintiff was that his father executed the
settlement deed dated 05.05.1989 in his favour and also handed over
possession of the suit property. The plaintiff has been in possession and
enjoyment of the suit property ever since. The plaintiff's father was in
relationship with one woman by name Zuleka Bi and that through her, he
had begotten sons and daughters. At their instance, the plaintiff was
facing interference with his possession and enjoyment. Therefore, he filed
O.S.No.1479 of 1994 on the file of the District Munsif Court, Trichirappalli
for restraining his father and other defendants born to him through the
said Zuleka Bi from doing so. In the said suit, the first defendant
Ameerjan filed written statement denying the execution of the settlement
deed. During the pendency of the suit, he passed away and an ex-parte
judgment and decree dated 03.03.2003 came to be passed in O.S.No.
1479 of 1994.
3.After the institution of O.S.No.1479 of 1994, the plaintiff's father
had executed a sale deed dated 15.02.1995 in favour of the appellant
Thiru.Narendra Kumar Johar. Since the plaintiff apprehended interference
with his possession and enjoyment at the hands of the subsequent
purchaser, he filed another suit in O.S.No.1938 of 1996. The defendant
filed written statement controverting the plaint averments. The plaintiff
Shahjhan examined himself as P.W.1 in O.S.No.1938 of 1996 and marked
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S.A.(MD)Nos.550 & 551 of 2008
Ex.A1 to Ex.A7. Narendra Kumar Johar examined himself as D.W.1 and
marked Ex.B1 to Ex.B6. After a consideration of the evidence on record,
the trial court by judgment and decree dated 10.09.2004 decreed the suit
as prayed for. The appellant herein filed A.S.No.170 of 2004 against the
judgment and decree made in O.S.No.1938 of 1996 and A.S.No.248 of
2005 against the judgment and decree made in O.S.No.1479 of 1994. The
first appellate court dismissed both the appeals on 07.12.2007. The
appeals were disposed of by separate judgments. Questioning the
judgment and decree made in A.S.No.170 of 2004 arising out of O.S.No.
1938 of 1996, S.A.(MD)No.550 of 2008 has been filed. Questioning the
judgment and decree made in A.S.No.248 of 2005 arising out of O.S.No.
1479 of 1994, S.A.(MD)No.551 of 2008 has been filed.
4.The second appeals were admitted on the following substantial
questions of law:-
“1.Whether the lower appellate court was right in
holding that a suit for injunction is maintainable without a
prayer for setting aside the sale deed ?
2.Whether the lower appellate court is right in
holding that one kist receipt dated 1.1.1995 is enough to
prove possession of the plaintiff when possession and
enjoyment is claimed on the basis of the deed 05.05.1989
and the trial opened in the year 2004?
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S.A.(MD)Nos.550 & 551 of 2008
3.Whether the lower court is right in holding that the
suit is maintainable when the title of the plaintiff is denied
and the suits are for bare injunction?”
5.Heard the learned counsel appearing for the appellant and the
learned counsel appearing for the plaintiff.
6.The learned counsel appearing for the appellant submitted that
the plaintiff's father himself had specifically denied having executed the
deed of settlement dated 05.05.1989- Ex.A2. A gift deed requires to be
attested by two witnesses. The plaintiff had failed to examine any of the
witnesses. Therefore, the gift deed is to be eschewed out of consideration
as it has not been proved in the manner known to law. The appellant
Narendra Kumar Johar has set up his own title. He projected the sale
deed executed in his favour by the plaintiff's father. Since a title dispute
has been raised, the plaintiff could not have continued to maintain a suit
for injunction simpliciter. Such a suit is clearly not maintainable. The
learned counsel relied on the decision reported in 2008 (4) SCC 594
(Anathula Sudhakar Vs. P.Buchi Reddy(dead) by LRs and others)
and the one reported in 2021 SAR (Civ) 995 (Kayalulla Parambath
Moidu Haji Vs. Namboodiyil Vinodan). He would further state that
the plaintiff is none other than the son of the executant of the gift deed.
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S.A.(MD)Nos.550 & 551 of 2008
Therefore, the plaintiff should also have satisfied the mandate set out in
Section 111 of the Indian Evidence Act, 1872. In the case on hand, he
had failed to do so; in all fairness, the plaintiff could have impleaded the
appellant in O.S.No.1479 of 1994 itself; except the kist receipt of the
year 1995, no other document has been filed by the plaintiff to show his
possession; a person seeking relief of injunction must show that he was in
possession of the suit property not only on the date of filing of the suit but
also throughout. The learned counsel submitted that mere production of
patta is not sufficient as the revenue records can neither create nor
extinguish title. His central contention is that since the entire case of the
plaintiff is anchored on the gift deed executed by his father, he was
obliged to establish all the three ingredients of Hiba namely declaration of
intention, acceptance and delivery of possession. In this case, the plaintiff
has not at all proved that under the gift deed, the plaintiff had taken
possession. The plaintiff cannot take advantage of the weaknesses that
may be found in the case of the defendant. He would further submit that
merely because the defendant had purchased the suit property from the
father of the plaintiff after filing of O.S.No.1479 of 1994, his sale deed can
neither be considered as void nor invalid. It has been consistently held
that purchase during the pendency of a suit will have to abide by the
result of the litigation. He would further contend that the decision
rendered in O.S.No.1479 of 1994 cannot have any binding effect on the
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S.A.(MD)Nos.550 & 551 of 2008
subsequent suit instituted against the appellant. Mere marking of the
earlier decree or the photocopy of the settlement deed in the subsequent
suit would not really fulfil the requirement of law. So submitting, he called
upon this Court to frame additional substantial questions of law and
answer the same in favour of the appellant and set aside the judgments
and decrees passed by the courts below and dismiss the suits filed by the
plaintiff.
7.Per contra, the learned counsel appearing for the contesting
respondent / plaintiff submitted that the impugned judgments and decrees
do not call for any interference.
8.I carefully considered the rival contentions and went through the
evidence on record. The primary question that I have to consider is
whether on account of the failure to seek the relief of declaration, the suits
filed by the appellant herein are maintainable. The leading decision on
the subject is the one reported in 2008 (4) SCC 594 (Anathula
Sudhakar Vs. P.Buchi Reddy(dead) by LRs and others). In
paragraph No.21 of the said decision, it was held as follows:-
“21.To summarise the position in regard to suits for
prohibitory injunction relating to immovable property is as
under:
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S.A.(MD)Nos.550 & 551 of 2008
(a) Where a cloud is raised over 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 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. Where the averments
regarding title are absent in a plaint and where there is no
issue relating to title, the court will not investigate or examine
or render a finding on a question of title, in a suit for
injunction. Even where there are necessary pleadings and
issue, if the matter involves complicated questions of fact and
law relating to title, the court will relegate the parties to the
remedy by way of comprehensive suit for declaration of title,
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instead of deciding the issue in a suit for mere injunction.
S.A.(MD)Nos.550 & 551 of 2008
(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 straight
forward, 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 plaintiff to a more comprehensive declaratory
suit, depending upon the facts of the case.”
In T.V.Ramakrishna Reddy Vs. M.Mallappa (2021 SAR (Civ) 1009),
it was observed that in Anathula Sudhakar, the Supreme Court in
unequivocal terms had 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. Merely because the defendant questions the
plaintiff's title, that would not necessarily mean that the plaintiff's title is in
dispute or under a cloud. The defendant will have to prima facie create a
doubt in the mind of the court that the plaintiff's claim of title is under a
serious cloud. In the case on hand, the defendant had not set up an
independent title. He claims through the plaintiff's father T.B.M.Ameerjan.
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S.A.(MD)Nos.550 & 551 of 2008
The case of the plaintiff is that T.B.M.Ammerjan had executed a settlement
deed in his favour on 05.05.1989. The appellant herein who was
examined as D.W.1 in O.S.No.1938 of 1996 admitted in the cross
examination that he did not obtain any encumbrance certificate or legal
opinion. He also stated that he believed the assurance as held out by his
vendor namely Ameerjan and purchased the suit property. He also
admitted that he did not verify in whose name patta, adangal, kist
receipts and other revenue records stood. In these circumstances, no
complicated question of fact and law relating to title had really arisen as
both the parties claim to have derived title from one and the same person.
9.As rightly pointed out by the learned counsel appearing for the
plaintiff, Section 48 of the Transfer of Property Act, 1882 would get
attracted. Section 48 of the Act is as follows:-
“48.Priority of rights created by transfer:-
Where a person purports to create by transfer at different
times rights in or over the same immovable property and
such rights cannot all exits or be exercised to their full
extent together, each later created right shall, in the
absence of a special contract or reservation binding the
earlier transferees, be subject to the rights previously
created.”
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S.A.(MD)Nos.550 & 551 of 2008
10.The gift deed executed in favour of the plaintiff is prior in point
of time and therefore, the sale deed executed in favour of the appellant
would be subject to the settlement deed earlier executed in the name of
the plaintiff. Therefore, I hold that the suits for injunction are
maintainable even without seeking any declaratory relief.
11.Of-course, the plaintiff is obliged to establish that the gift deed
was duly executed in his favour. The learned counsel for the appellant
would submit that the plaintiff failed to satisfy the requirement set out in
Section 68 of the Indian Evidence Act, 1872. Section 68 reads as follows:-
“68.Proof of execution of document required
by law to be attested:-
If a document is required by law to be attested, it
shall not be used as evidence until one attesting
witness atleast has been called for the purpose of
proving its execution, if there be an attesting
witness alive and subject to the process of the
Court and capable of giving evidence.
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been registered
in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have
been executed is specifically denied. ”
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S.A.(MD)Nos.550 & 551 of 2008
12.The contention of the learned counsel appearing for the
appellant is that the gift deed is required to be attested by two witnesses
and therefore, it could not be used in evidence until one attesting witness
is called for the purpose of proving its execution. It is not the case of the
plaintiff that the attestors had passed away or were not subject to the
process of the Court or incapable of giving evidence. The learned counsel
for the appellant would state that the plaintiff cannot rely on the proviso to
Section 68 of the Indian Evidence Act. This is because, the execution of
the gift deed had been specifically denied by his own father and the
appellant also had relied on such denial by the plaintiff's father. In this
regard, the learned counsel relied on the decision reported in 2000 SAR
(Civil) 824 (Rosammal Issetheenammal Fernandez (dead) by LRs
& others Vs. Joosa Mariyan Fernandez & others).
13.Though this contention is formidable, I am of the view that the
decision reported in 2000 SAR (Civil) 824 (Rosammal
Issetheenammal Fernandez (dead) by LRs & others Vs. Joosa
Mariyan Fernandez & others) may not apply to the facts of this case.
This is primarily for the reason that the suit document relates to a
mahomedan gift. While Section 123 of the Transfer of Property Act states
that the gift of immovable property must be effected by a registered
instrument signed by or on behalf of the donor and attested by atleast two
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S.A.(MD)Nos.550 & 551 of 2008
witnesses, Section 129 of the Transfer of Property Act states that nothing
in chapter VII of the Transfer of Property Act shall be deemed to affect
any rule of Mahomedan law. It is too well settled that a Mahomedan gift
can be orally made. This is particularly for the reason that Section 68 of
the Indian Evidence Act opens with this phrase 'if a document is required
by law to be attested'. A Mahomedan gift is not a document that requires
to be attested. While a general gift deed is required by law to be attested,
a Mahomedan gift is not required by law to be attested. That is why I
hold that Section 68 of the Indian Evidence Act will not apply to
Mahomedan gifts. The gift deed executed in favour of the plaintiff in this
case is a registered document. Therefore, presumption of validity under
Section 60 of the Registration Act, 1908 will also apply in his case. I have
already held that the suit for injunction without seeking any declaratory
relief is very much maintainable.
14.The only point that has to be seen is who is in possession of the
suit property. The plaintiff had also obtained patta in his name. The said
document was marked as Ex.A3. He had also filed kist receipt. The fact
remains that the kist was accepted by the revenue authority in the name
of the plaintiff. These documents are more than sufficient to establish the
plaintiff's possession over the suit property. The courts below have
concurrently found that the plaintiff has been in possession of the suit
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S.A.(MD)Nos.550 & 551 of 2008
property. Exercising jurisdiction under Section 100 of C.P.C., I do not
deem it fit and appropriate to interfere with such a concurrent finding.
The substantial questions of law are answered against the appellant.
15.The learned counsel for the appellant would strongly contend
that the plaintiff should have been thrown out at the threshold for having
indulged in suppression of material facts. I cannot appreciate this
contention. It is the appellant who had purchased the suit property during
the pendency of the suit. A mere reading of his testimony would show
that he had not exercised the due diligence that is expected of a prudent
buyer. He himself states that he went entirely by the assurance held out
by the vendor. In a suit for injunction, the plaintiff has to indicate as to
how he traces his title and as to how he is in possession of the suit
property. The plaintiff is not expected to set out every fact relating to the
property. Therefore, I do not find any merit in the contention of the
appellant's counsel that the plaint suffers from suppression of material
facts. There is again no merit in the plea of non-joinder. After the plaintiff
came to know about the purchase of the property by the appellant, he
filed an independent suit against the appellant. In the said plaint, he had
stated about the pendency of the earlier suit. Nothing stopped the
appellant from impleading himself in the earlier suit filed by the plaintiff. I
do not find any merit in the contentions of the learned counsel appearing
for the appellant.
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S.A.(MD)Nos.550 & 551 of 2008
16.Both the second appeals are dismissed. No costs.
29.10.2021
Internet : Yes/No
Index : Yes/No
skm
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Principal Sub Court, Trichirappalli.
2. The Principal District Munsif, Trichirappalli.
Copy To :
The Section Officer, Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD)Nos.550 & 551 of 2008
G.R.SWAMINATHAN, J.
skm
S.A.(MD)Nos.550 and 551 of 2008
29.10.2021
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