Lalpati & Ors. vs Omprakash

This second appeal under Section 100 of CPC has been filed against judgment and decree dated 20/12/2018 passed by First Additional District Judge, Sabalgarh, District, Morena in Regular Civil Appeal No.680/2016, by which judgment and decree dated 08/09/2016 passed by Additional Judge to the Court of Civil Judge, Class-I, Sabalgarh, District, Morena in Civil Suit No.57-A/2014 has been reversed, and the suit filed by respondent/plaintiff has been partially decreed.

Facts necessary for disposal of present appeal, in short, are that plaintiff/respondent filed a suit for permanent injunction. It was his case that he is the owner and in possession of Survey No.125, area 5 Bigha 15 Biswa situated in village Katghar, Tehsil Sabalgarh, District, Morena, and the said property was described as disputed property. It was further claimed that the property in dispute is recorded in his name in the revenue record also. Earlier, the predecessors of defendants/appellants, namely Ratanlal etc. had filed a civil suit No.49-A/2003 against plaintiff on 25/07/1997, which was dismissed by judgment and decree dated 25/11/2004. The judgment passed by trial Court was challenged by the predecessors of appellants by filing Civil Appeal No.23-A/2004, which too was dismissed by judgment and decree dated 29/01/2009. The judgment passed by Appellate Court was also assailed by the predecessors of appellants by filing Second Appeal No.366/2009, which too was dismissed by order dated 17/06/2014, and accordingly, it was claimed that the ownership and possession of plaintiff was upheld. It was claimed that the predecessors of appellants were not found to be in possession or having any title. The defendants/appellants are not happy with judgment passed in a suit instituted by their predecessors, therefore, they are trying to harass the plaintiff and are trying to dispossess him, whereas defendants/appellants have no right or title in the property in dispute. It was further pleaded that on four Bighas of land, the crop of mustard is standing, whereas one Bigha and fifteen Biswa of land, which is on the eastern side, is lying vacant. On 25/11/2014, when plaintiff was looking after his standing crop, then defendants/appellants came on the suit land and started abusing the plaintiff by using abusive language. When, it was objected by plaintiff, then defendants/appellants challenged that they would not allow plaintiff to carry out the cultivation work, and they would dispossess him. When, plaintiff objected to the acts of defendants/appellants, then defendants started digging foundation over 20 x 40 sq.ft. of land. When, it was objected by plaintiff, then the defendants stopped digging the foundation, but they extended a threat that they would construct a hut. Again on 26/11/2014, defendants/appellants came on disputed land and started digging foundation over 20 ft. wide land. When it was objected by plaintiff, then defendants did not stop and they started digging the foundation. Defendants belongs to a reserved category and on earlier occasion also, they had got a forged and false case registered against plaintiff under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act as well as under Section 376 of IPC. By hook and crook defendant/appellants want to dispossess the plaintiff and without any order by the Court, they are not ready to listen to plaintiff, and accordingly, the suit was filed for permanent injunction to the effect that defendants/appellants be restrained from dispossessing the plaintiff from Survey No.125 as well as from raising construction or digging foundation over the suit land.

The defendants filed their written statement and claimed that the ownership of plaintiff is wrongly recorded in the revenue records. However, the institution of civil suit by the predecessors of defendants and dismissal of the said suit was also admitted in the written statement. It was also admitted that since the predecessors of defendants had failed to prove their title, therefore, the civil suit was dismissed. It was claimed that defendants as well as their predecessors are in cultivating possession of the land in dispute for the last 35 years and after judgment was passed by High Court, plaintiff took possession of four Bigha of land and has sown the crop of mustard. The remaining one Bigha and fifteen Biswa of land was not lying vacant and the huts of defendants are standing for the last 35 years. Since residences of defendants were existing, therefore, they were never dispossessed from one Bigha and fifteen Biswa of land. The plaintiff has suppressed the material facts and has not approached the Court with clean hands. The defendants are residing on one Bigha and fifteen Biswa of land by constructing their huts, and they are landless persons. In fact, plaintiff had threatened that he would dispossess defendants from their huts, therefore, he had also approached Tahsildar, and when an inquiry was got done by Tahsildar from Patwari, then he found that defendants were residing on the disputed land after constructing huts, and accordingly, no action was taken by Tahsildar. For the protection of their huts, defendants had raised boundary wall up to the height of 4 - 5 feet, and it was claimed that defendants are in possession of one Bigha and fifteen Biswa of land for the last 35 years. Thus, it was prayed that the suit filed by plaintiff be dismissed.

The Trial Court after framing the issues, dismissed the suit filed by plaintiff.

Being aggrieved by judgment and decree passed by Trial Court, respondent preferred an appeal, which has been allowed, and defendants have been permanently restrained from raising construction or digging foundation over five Bigha fifteen Biswa of land falling part of Survey No.125 situated in village Katghar, Tehsil Sabalgarh, District Morena.

By order dated 21/11/2023, second appeal was admitted on the substantial question of law:-

Challenging the judgment and decree passed by Court below, it is submitted by counsel for appellants that it is true that predecessors of appellants had admitted the title of father of plaintiff but since the defendants were not confronted with such admission as required under Section 145 of the Evidence Act, therefore, the said admission cannot be considered in the present suit and thus, when the title of plaintiff is under cloud, then suit, simpliciter for permanent injunction, was not maintainable. It is further submitted that since appellants are in continuous possession of the property in dispute, therefore, Appellate Court has committed a material illegality by granting a decree of permanent injunction, thereby restraining appellants from digging foundation or from raising any construction over five Bigha and fifteen Biswa of land of Khasra No.125 situated in village Katghar, Tehsil Sabalgarh, District Morena.

8 . Per contra, counsel for respondent has supported the findings recorded by Appellate Court.

Undisputedly, the suit was filed simpliciter for permanent injunction. A suit for permanent injunction is maintainable when the title of plaintiff, is not in dispute.

The Supreme Court in the case of T.V.Ramakrishna Reddy Vs. M. Mallappa and Another reported in (2021) 13 SCC 135 has held as under:-

The Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs and Others reported in (2008) 4 SCC 594 has held as under:-

Thus, where the title of plaintiff is not in dispute, then he is not required to pray for a declaration of his title, but where the title of plaintiff is in dispute, then a suit simpliciter for permanent injunction will not be maintainable, and it will be obligatory on the part of plaintiff to pray for a declaration of his title. Now, the only question for consideration is as to whether the title of plaintiff is actually in dispute or not?

Plaintiff has relied upon judgment passed by a Co-ordinate Bench of this Court in Second Appeal No.366/2009 (Ex.P-1), which had arisen out of judgment and decree dated 25/11/2004 passed by Civil Judge Class-I, Sabalgarh in Civil Suit No.49-A/2003 and judgment and decree dated 29/01/2009 passed by Second Additional District Judge (Fast Track Court) Sabalgarh, District Morena in Civil Appeal No.23-A/2004. The said civil suit was filed by Ratanlal, Dauji, Maniram, Billu, Bharosi as well as Ramlal who expired and his legal representatives namely, Smt. Savitri, Naresh, Meharwan, Ms. Dulari Bai and Ms. Maheshwari were brought on record.

In the previous suit appellant No.3 Maniram was also party, therefore, it is clear that the previous suit was not only filed by the predecessors of some of the defendants, but it was also filed by one of defendant namely, Maniram. As it is evident from the facts mentioned in the judgment passed by Co-ordinate Bench of this Court in Second Appeal No.366/2009 (Ex.P-1), the previous suit was filed on the ground that father of plaintiff is the owner of property, and he had permitted father of Buddha, father of Dauji and Maniram namely, Tunda and father of Billu and Bharosi namely, Gupte to plough the suit land on annual rent of Rs.70/-. It was claimed that since the defendants of the case {plaintiff/appellants of Second Appeal No.366/2009 (Ex.P-1)} are in cultivating continuous possession, therefore, as per Section 168 of MPLR Code, they have acquired the Bhumiswami right under Section 190 of MPLR Code. It was also claimed that since the predecessors of defendants/appellants are in possession for the last 35 year, therefore, they had perfected their title by way of adverse possession. The suit filed by the predecessors of appellants/defendants and appellant No.3 that they have acquired the Bhumiswami rights, or they are in continuous in possession of the land in dispute was dismissed.

Counsel for appellants has relied upon a judgment passed by Gauhati High Court in the case of Samsul Haque Vs. Jamiran Nessa Wife and Others reported in 2019 Supreme (Gau) 796 and submitted that the burden is on the plaintiff to prove their title by necessary pleadings and evidence and the dismissal of a previous suit of defendants does not automatically prove title of plaintiff unless the decree is specifically passed declaring title in favour of the defendants.

This Court is of considered opinion that the law laid down in the aforesaid case is not applicable to the facts and circumstances of the case in hand. In the case of Samsul Haque (supra) the question of admission by defendants regarding title of plaintiff was not involved. Therefore, this case has to be considered under the facts and circumstances of this case and not in the light of the judgment passed by Gauhati High Court in the case of Samsul Haque (supra). Whenever, an admission is made, then it is the best evidence, and the issues are always framed to adjudicate the contested/triable issues. When the title of the father of plaintiff was not in issue, as it was specifically admitted and appellant No. 3 as well as the predecessors of the remaining appellants had also based their case on the basis of so-called oral permission granted by the father of plaintiff, then the contention of counsel for appellants that mere dismissal of suit filed by the predecessors of some of the appellants as well as appellant No.3 will not prove the title of father of plaintiff is misconceived.

So far as the contention made by counsel for appellants that unless and until the admission made in previous suit is confronted in the light of Section 145 of the Evidence Act, any admission made by parties in previously instituted suit, cannot be relied upon is concerned, the same is misconceived. Although, this Court had requested counsel for appellants to cite any judgment in support of his contention, but in spite of repeated request, no judgment was cited.

Be that whatever it may be.

At the cost of repetition, it is once again pointed out that the question of title of plaintiff or his father was not in dispute in the suit instituted by the predecessors of some of appellants as well as appellant No.

On the contrary, they had specifically pleaded that the father of plaintiff is the owner and by virtue of oral permission granted by him, they are in cultivating possession, thereby acquiring Bhumiswami right as provided under Section 190 of MPLR Code.

Section 11 of CPC reads as under:-

Therefore, the question of title of father of plaintiff was very much involved in the suit previously instituted by some of the predecessors of appellants as well as appellant No.3. As already pointed out that since the title of father of plaintiff was categorically admitted and predecessors of some of appellants as well as appellant No.3 had also based their claim on the basis of oral permission granted by father of plaintiff, therefore, appellants cannot be permitted to raise the question of title of plaintiff again and again on one pretext or the other. Furthermore, the institution of suit by predecessors of some of defendants/appellants as well as appellant No.3 was categorically admitted by the defendants in paragraph 3 of their written statement. Once they have admitted that the suit filed by predecessors of appellants as well as appellant No.3 was dismissed, then all the reasons for filing that suit were also directly or indirectly admitted by defendants in their written statement. Furthermore, neither in the written statement nor in their evidence, the defence witnesses have claimed that the father of plaintiff was never the owner of the property in dispute. Therefore, an attempt to challenge the title of the plaintiff is hit by principle of res judicata.

Under these circumstances, this Court is of considered opinion that since the title of plaintiff was never in dispute, therefore, he was not required to seek a declaration of his title, and the suit simpliciter for permanent injunction was maintainable.

It is next contended by counsel for appellants that since respondent is not in possession of the property in dispute, i.e. one Bigha and fifteen Biswa of Survey No.125 situated in Village Katghar, Tehsil Sabalgarh, District, Morena, therefore, the suit simpliciter for permanent injunction without seeking relief for possession was not maintainable in the light of Section 34 of the Specific Relief Act. It is submitted by counsel for appellants that respondent himself had filed an application under Order 6 Rule 17 CPC seeking a relief for possession, but the said application was rejected by Trial Court by order dated 26/08/2016, therefore, it has to be presumed that the case of respondent himself is that he is not in possession of one Bigha and fifteen Biswa of land.

Considered the submissions made by counsel for appellants.

Admittedly, the application filed under Order 6 Rule 17 CPC seeking a decree for possession was rejected. Accordingly, counsel for appellants was directed to address this Court as to whether any averment made in an application filed under Order 6 Rule 17 CPC, which was not allowed by Trial Court, can be treated as a pleading on the part of plaintiff or not? It was rightly contended by counsel for appellants that any averment made in such an application cannot be treated as a pleading, but submitted that since that application is a matter of record, therefore, this Court should look into that aspect.

There is no procedure under the Civil Court Rules to destroy an application which was not allowed, and that application will always remain in the record. Therefore, merely because the application filed under Order 6 Rule 17 CPC is a part of record would not empower this Court to look into the averments made in a rejected application filed under Order 6 Rule 17 CPC. Thus, the contention of counsel for appellants that although, the application filed under Order 6 Rule 17 CPC might have been rejected, but still, this Court should look into the averments by treating to be a part of the pleading, cannot be accepted. It is held that once an application is rejected, then for any purpose, it cannot be looked into, unless and until the order of rejection is also challenged.

Furthermore, the question for consideration is as to whether defendants/appellants are in continuous possession of the land in dispute, i.e. one Bigha and fifteen Biswa situated in village Katghar, Tehsil Sabalgarh, District Morena or not? Apart from judgment and decree passed by this Court in Second Appeal No. 366/2009, there are certain vital admissions by defendants themselves in their evidence.

Before considering those vital admission, this Court would like to comment that the written statement filed by appellants also runs just contrary to what they have stated in their evidence. In the written statement, they have claimed that they are in continuous and uninterrupted possession for the last 35 years. However, the same cannot be accepted for the simple reason that the said contention has already been negatived by the Courts up to the level of High Court, and in view of Section 11 of CPC, the same cannot be reagitated.

It is the case of defendants that the huts which are standing on the land are in existence from the lifetime of their predecessor, but in paragraph 6 of the cross-examination, Mehndra (D.W.-1) has specifically stated that for construction of foundation he had purchased eight to ten trolleys of stones about four to five years back. The evidence of this witness was recorded on 05/06/2016. He denied that the stones were purchased about one -one and half years back, but after having admitted that he had purchased stones and had also paid royalty, defendants did not file the copy of the receipt of royalty or the receipts of purchase of stones. He further stated in paragraph eight of his cross-examination that had the plaintiff not filed the present civil suit, they would have raised further constructions. He claimed that plaintiff was dispossessed from one Bigha and fifteen Biswa of land about five to six years back. He admitted that from Tehsil office, an order was passed for removing the construction. He admitted that he has not filed any document to show that the application filed by plaintiff before Tahsildar for removal of the construction was rejected.

Bundi Lal (D.W.-2) has gone a step further, and he has stated that at the time when the earlier suit was decided, a compromise was arrived at between the plaintiff and the defendants, and it was agreed that four Bigha of land will be given to plaintiff and one Bigha and fifteen Biswa of land will be given to the defendants. No such compromise document has been placed on record. Even there is no such averment to that effect in the written statement. It is also accepted by Bundi Lal (D.W.-2) that no compromise document was ever executed thereby, giving four Bigha of land to the plaintiff and giving one Bigha and fifteen Biswa of land to defendants. He claimed that foundation was laid down about 40 to 45 years back, and he was also not in a position to narrate how many huts have been constructed. He further claimed that a boundary wall of 4-5 feet is in existence for the last 40 to 45 years.

So far as the evidence led by Mahendra (D.W.-1) and Bundi Lal (D.W.-2) with regard to continuous possession is concerned, that cannot be reconsidered and reopened in the light of judgment and decree passed in the earlier round of litigation, which was instituted by the predecessors of some of the appellants as well as appellant No.3.

In view of specific admission made by Mahendra (D.W.-1) that he had purchased stones for construction of foundation after making payment of royalty of Rs.1,000/- about 4-5 years back, it is clear that the claim of defendants that they are in possession of the property in dispute for the last 35 years, is false. The title of the predecessors of defendants/appellants as well as appellant No.3 has already been denied by the Courts in the previously instituted suit. Therefore, if the defendants/appellants have constructed the foundation and huts over them, then the suit for mandatory injunction for removal of construction was maintainable.

MCC No.3483/2024 has also been filed by plaintiff/respondent alleging that the appellants have raised additional construction after the temporary injunction order was passed by this Court on 21/11/2023. Certain photographs have been filed by appellants themselves in the said MCC.

Accordingly, a specific question was asked to Shri Santosh Agrawal, Advocate as to whether this Court should take cognizance of the photographs filed by appellants themselves in MCC No.3483/2024 or not, then it was submitted by Shri Agrawal that the Court may take cognizance of the same. Therefore, in absence of any objection, this Court is not adhering to the question as to whether the photographs filed by appellants themselves in MCC No.3483/2024 can be looked into this case or not. Appellants themselves have filed some photographs, from which it is clear that the house has been constructed over a foundation made by stones.

In view of specific admission made by Mahendra (D.W.-1), he had purchased stones about 4-5 years back for construction of a foundation, it is clear that the contention of appellants that they are in possession of one Bigha and fifteen Biswa of land for the last 35 years after constructing their house is false.

At this stage, it is submitted by counsel for appellants that in fact he had not argued that suit is barred in view of Section 34 of the Specific Relief Act, but he had argued that in fact the injunction cannot be granted in the light of Sections 41 and 42 of the Specific Relief Act.

Accordingly, counsel for appellants was directed to read out Sections 41 and 42 of the Specific Relief Act to support his contention. After going through the provisions of Section 41 of the Specific Relief Act, counsel for appellants initially tried to submit that the case in hand would be covered by Section 41(e) of the Specific Relief Act. When he was directed to explain that what type of contract is involved in the present case, then he submitted that Section 41(g) of the Specific Relief Act would apply. Accordingly, counsel for appellants was directed to elaborate his submission to show that the provisions of Section 41(g) of the Specific Relief Act would apply.

Counsel for appellants could not point out any pleading or admission or evidence of any of the party to show that plaintiff had acquiesced anything. Unless and until, it is pleaded and proved that plaintiff h a s acquiesced certain acts on the part of defendants, the provisions of Section 41(g) of the Specific Relief Act would not apply. Then it was requested to counsel for appellants to point out that which sub-section of Section 41 of the Specific Relief Act would apply. No answer was given by counsel for appellants. Thus, it is clear that the interruption by counsel for appellants during the dictation which was being given on the Board "that in fact he had argued that in view of Section 41 of the Specific Relief Act, no permanent injunction can be granted" was nothing but an in-adventurous during the course of dictation. Furthermore, counsel for appellants was directed to point out from Section 42 of the Specific Relief Act to show that permanent injunction cannot be granted under the said Section.

Counsel for appellants was directed to read out the provisions of Section 42 of the Specific Relief Act and to point out that what negative agreement was alleged by parties requiring the application of Section 42 of the Specific Relief Act.

It is submitted by counsel for appellants that since, plaintiff is not in possession of land in dispute, therefore, it is a negative agreement inviting the application of Section 42 of the Specific Relief Act.

The submission made by counsel for appellants was shocking. This Court had already held that the suit cannot be said to be not maintainable in view of Section 34 of the Specific Relief Act, but for the reasons best known to counsel for appellants, he disowned that argument. In the considered opinion of the Court, if a person is not in possession and filed the suit without seeking delivery of possession, then the said suit would be not maintainable in the light of Section 34 of the Specific Relief Act.

Be that whatever it may be.

During the course of arguments, the entire intention of counsel for appellants was not only to interrupt the dictation, but to somehow show that this Court is going on wrong track. Although, this Court was intending not to pass any stricture against the counsel for appellants regarding his discourteous manner of argument, but counsel for appellants has compelled this Court to observe that the behaviour of Shri Santosh Agrawal, Advocate during his entire arguments was not such which is expected from a responsible lawyer.

Be that whatever it may be.

Under these circumstances, no substantial question of law is answered in negative, and it is held that Appellate Court has rightly granted a perpetual injunction against defendants/appellants, thereby restraining them from raising any construction over the property in dispute, i.e. five Bigha and fifteen Biswa of land.

As a result thereof, the appeal fails and is hereby dismissed.