Umesh Soni And Others vs Mathura Bai And Others

The plaintiffs/appellants filed a civil suit for declaration of title and permanent injunction, interalia pleading that plaintiffs No.1 and 2 and defendants No.1, 2 and 5 reside in the suit house, which was purchased by their late father Govind Soni vide registered sale deed dated 26.06.1978 in the name of his mother Mathurabai (defendant No.1). After the death of their father, defendants are trying to dispossess the plaintiffs from the suit property. It was prayed that plaintiffs be declared owner of the suit property and defendants be restrained from interfering in their possession.

Defendant No.1 filed the written statement denying the claim of plaintiffs on the ground that the suit is not maintainable under Section 4 of Benami Transaction (Prohibition) Act, 1988. It was further alleged that the right of plaintiffs is extinguished as late Govind never filed a suit or proceedings in this regard, during his life time. Defendant No.1 also filed a counter claim seeking mandatory injunction, possession and permanent injunction, interalia pleading that the suit property was purchased by her and late Govind and his children were living in the house with her permission. It was further stated that plaintiffs have been harassing her by filing false complaints, hence they be directed to vacate the house and not to interfere in her possession.

The plaintiffs filed reply to the counter claim and denied the averments. It was pleaded that defendants No. 1 to 3 were living in the suit house with the permission of their late father. 4. The trial Court dismissed the suit of plaintiffs under Order 7 Rule 11 of the C.P.C. by the order dated 29.06.2010 on the ground that the suit is hit by Section 4(3) of Benami Transaction (Prohibition) Act, 1988. The appeal filed against that order was also dismissed. The trial Court thereafter proceeded with the counter claim and framed as many as six issues on the basis of the pleadings of the parties and after considering the evidence on record, partly decreed the counter claim. Defendant No.1 Mathurabai was held to be the owner of the suit house and the plaintiffs are permanently restrained from interfering in the ownership and possession of defendant No.1 without following due process of law.

Being aggrieved by the decree of trial Court, the defendants/respondents preferred a regular civil appeal which was registered as RCA No.33-A/2014. The appellate Court allowed the appeal of defendants/respondents and decreed the counter claim in toto.

Aggrieved by the judgment and decree dated 10.07.2017, the plaintiffs/appellants have filed the present appeal.

This second appeal was admitted on the following substantial questions of law :-

"(i) Whether the First Appellate Court has erred in granting relief of declaration in favour of the respondents/defendants when neither such relief has been claimed by the defendants in the counter claim nor any such issue has been framed by the Trial Court ?

(ii) Whether in absence of claim of declaration of title, suit of mandatory injunction and permanent injunction is maintainable ?"

In the present case, the respondents have filed the counter claim, claiming to be the owner on the basis of registered sale deed dated 26.06.1978 (Ex. D-2). The plaintiffs/appellants have tried to counter this on the ground that suit property was purchased by their late father in the name of defendant No.1, out of love and affection. However, this fact is not reflected from the sale deed (Ex.D-2). Moreover, the civil suit No.4-A/2012, filed by the plaintiffs/appellants for declaration of title and permanent injunction on the same ground that the suit property was purchased by their father in the name of defendant No.1/Mathurabai by a registered sale deed dated 26.06.1978 has been dismissed on 29.06.2010 as barred by Section 4 of the Benami Transaction (Prohibition) Act, 1988. The appeal filed against the said order has also been dismissed on 11.08.2011.

It is thus an admitted fact that the registered sale deed is in the name of defendant No.1/Mathurabai. Therefore, the title and interest in the suit property apparently vested in defendant No.1/Mathurabai after the sale deed dated 26.06.1978. Hence, it was not required for the defendant No.1 to seek declaration on title. Even though, the trial Court has not framed any issue regarding this, but the parties to the suit were aware about the dispute involved and led evidence in this regard, as reflected from the record.

Plaintiff/appellant No.1 Umesh Soni in his reply and evidence has admitted that the suit house was purchased in the name of defendant/respondent No.1 by a registered sale deed and in para 21 and 22 of his deposition has admitted that his father has never filed any proceedings during his life time for claiming the ownership of the suit house. The trial Court has recorded a finding that Mathurabai is the owner of the suit house and partly decreed the suit, injuncting the plaintiffs from interfering in the possession of defendant No.1. It is pertinent to note that this finding and decree was never challenged by the plaintiffs.

In view of the aforediscussed, as the title already vests in defendant No.1, her claim for permanent injunction and mandatory injunction was maintainable. In view of the aforesaid, both the substantial questions of law are answered in negative.

During the course of arguments, another substantial question of law regarding the appellants being licence of the defendant No.1 has been proposed. However, it is reflected from the records that there is neither any pleading, nor evidence nor any relief is sought in this regard. Hence, the same cannot be considered at the stage of second appeal.

In view of the above, this appeal fails and dismissed accordingly.

The appellants are, however, granted three months time to vacate the premises subject to filing the usual undertaking within a period of one month on the affidavit of the appellants to deliver the vacant possession over the premises, A, B, C, D, as mentioned in the plaint map to the defendant No.1 at the extended time and in between regularly paying the rent.

With the aforesaid direction, this second appeal is dismissed. No order as to costs.