AI Structured Summary
Not yet generated for this judgment
Judgment
This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the original defendants who are aggrieved by the judgment of
the appellate Court dated 04.02.2004 in Regular Civil Appeal No.283 of 2003 whereby the respondentÂplaintiff has been declared as the owner of the
suit property and the appellants have been restrained from causing any obstruction to its possession over the suit property through their agents and
servants without following the due process of law.
The facts giving rise to the present proceedings are that it is the case of the plaintiff that it is a partnership firm duly registered. It claims to be the
owner of Survey No.345 admeasuring about 6084.7 square meters. According to the plaintiff, the said property was initially owned by one Shri
George Duncan. As said Shri George Duncan was in need of funds, he had borrowed an amount of Rs.8,000/ from one Shri Gangadharrao
Chitnavis in AugustÂ1891. The suit property was mortgaged by way of security. As the amount borrowed was not repaid, Shri Chitnavis filed
suit for foreclosure of the mortgaged property. Civil Suit No.1 of 1894 was decreed on 26.02.1894 and the defendants therein were granted time of
six months to pay the decretal amount failing which the mortgaged property was directed to be sold. It is the case that while executing that decree,
the suit property was delivered to Shri Chitnavis and he possessed the same as owner thereof. With passage of time, the property devolved on his
legal heirs. On 08.08.1974, Shri G.M. Chitnavis entered into a partnership with one Shri Gurcharan Singh and the plaintiffÂFirm came into
existence. Since then, the suit property stood in the name of the firm. In proceedings under the Urban Land (Ceiling and Regulation) Act, 1976
(for short, 'the Act of 1976), the firm sought exemption with regard to its excess vacant land and part thereof came to be duly exempted.Â
Thereafter, necessary building plans were sanctioned and a Cinema Theatre and office blocks came to be constructed on the suit property.Â
According to the plaintiff, the defendants had interest in the adjoining plots being Plot No.344 and while erecting a compound wall, joint demarcation
was carried out on 27.04.1986. Thereafter, such construction was erected. According to the plaintiff, in the year 1988 and thereafter in the year
1991, there was exchange of communications between the parties. Ultimately the officials of the defendant no.3 requested the Municipal
Corporation through its Commissioner to stop the construction being undertaken by the plaintiffÂFirm. In this backdrop, the firm filed suit for
declaration that the defendants had no right to interfere with the construction undertaken by the firm over the suit property and that the letters issued
to that effect by the defendants were illegal. Relief of permanent injunction seeking to restrain the defendants from disturbing or threatening the
possession of the plaintiffÂFirm was also sought.
Written statement at Exhibit 63 was filed by the defendants. In the written statement, the defendants asserted that they were the owners of the suit
property besides other properties situated near the suit plot. The ownership of the predecessor Shri George Duncan as well as of Shri Chitnavis was
decreed. It was further pleaded that the construction undertaken was on the land belonging to the defendant no.1 and it was clearly illegal. In the
specific pleadings, reference was made to the manner in which the defendants claimed title. Reference was made to the notifications dated
04.06.1915 and 04.11.1939. It was thus submitted that the suit was liable to be dismissed.
The parties led evidence before the trial Court. It was held by the trial Court that the plaintiffÂFirm was not the owner of the suit plot but that it
was in possession thereof. The suit was partly decreed and the defendants were restrained from dispossessing the plaintiff from the suit property
without following due procedure of law. The plaintiffÂFirm was however directed not to construct anything on the suit property as it was not the
owner thereof. The plaintiff filed an appeal challenging the aforesaid decree. The first appellate Court after reconsidering the evidence on record
modified the judgment of the trial Court. It declared that the plaintiffÂFirm was the owner of the suit plot and the defendants were restrained from
causing obstruction to its possession. It was however held that the construction made by the plaintiffÂFirm was in violation of the notification dated
04.06.1915 and the defendants were at liberty to take necessary action against the plaintiffÂFirm for breach of the same. Being aggrieved by the
aforesaid judgment, the defendants have filed the present second appeal.
While admitting the second appeal, the following substantial questions of law were framed:Â
(I) Whether the first appellate Court could have granted a declaration of ownership in favour of the plaintiff when he had not sought relief in that
regard ?
(II) Whether the first appellate Court committed an error of law in going behind the terms of the decree dated 26/2/1894 in Suit No.1/1894, to hold that
the plaintiff was entitled to extensive land on which the bungalow and servant quarters were situated when neither the plaint in the suit for foreclosure
nor the decree dated 26/2/1894 spoke of the land on which the superstructure was situated ?
(III) Whether the initial burden lies on the plaintiff to prove that he was the owner of the land or whether it was necessary for the defendants to prove
that the plaintiff was not the owner of the land in view of Section 110 of the Evidence Act ?
Shri U.M. Aurangabadkar, learned Assistant Solicitor General of India for the appellants, made the following submissions:Â
(a) The plaintiffÂFirm having filed suit simplicitor for perpetual injunction, the appellate Court committed an error in granting a declaration that the
plaintiffÂFirm was the owner of the suit plot. In absence of any such relief being sought in the plaint, the appellate Court acted beyond its
jurisdiction in granting that relief. The trial Court rightly refused to grant any such declaration and on the contrary recorded a finding that the
plaintiffÂFirm was not the owner of the suit plot. The appellate Court travelled beyond the averments as made in the plaint and proceeded to grant
the relief of declaration of title. It was submitted that the plaintiffÂFirm had valued the suit and paid Court fees only with regard to the prayer for
perpetual injunction and therefore, the decree in that regard as passed by the appellate Court is liable to be set aside.
(b) In the decree passed in Civil Suit No.1 of 1894 on 26.02.1894, the subject matter was merely the bungalow of Shri George Duncan and the servant
quarters adjoining thereto. It was only the structures that were said to be owned by Shri George Duncan. The land on which the superstructures
were erected belonged to the British Empire and ownership therein could not have been transferred in favour of the decree holder. The appellate
Court by construing that decree to mean that the land along with the bungalow and servant quarters stood transferred in favour of the decree holder
was a result of it going beyond the said decree. The same was not permissible and the land in question was not the subject matter of the said suit.Â
Therefore, the appellate Court committed an error in concluding that the land on which the said superstructures were standing also got transferred in
favour of the decree holder and the same was an incorrect finding. The learned counsel referred to the manner in which the decree was executed
and submitted that said documents have to be construed as merely transferring the superstructure. On this count also, the judgment of the appellate
Court was liable to be set aside.
(c) The appellate Court wrongly invoked the provisions of Section 110 of the Evidence Act, 1872 (for short, 'the Act of 1872') while shifting the
burden on the defendants. The initial burden to prove that the Firm was the owner of the land was on the plaintiff. It was not necessary for the
defendants to prove that the plaintiffÂFirm was not the owner of the suit property. It was submitted that in fact under Section 101 of the Act of
1872, said burden was on the plaintiffÂFirm and that burden could not have been shifted on the defendants as was done by the appellate Court. The
burden to prove its case would be on the plaintiffFirm and only the onus would shift. It was submitted that the appellate Court committed an error in
holding that by virtue of Section 110 of the Act of 1872, the plaintiffÂFirm was the owner of the suit property.
It was also submitted that the case of the plaintiffÂFirm was based merely on revenue entries. There was no document creating title in favour of
the firm. Revenue entries merely being for fiscal purposes same cannot be relied upon to create title as is being sought. In that regard, the
learned Assistant Solicitor General of India placed reliance on the decisions in AIR 1997 SC 2719 (Balwant Singh & Another Versus Daulat
Singh (dead) by L.R.'s & Others) and AIR 2003 Bombay 131 (Sukumabai Versus Chandgonda Kalgonda Patil). It was thus submitted that the
suit was liable to be dismissed by allowing the present appeal.
Shri Sunil Manohar, learned Senior Advocate for the respondentÂplaintiff opposed aforesaid submissions and urged as under:I) The  plaintiffÂ‐
Firm  having  sought  the relief of perpetual injunction, an enquiry into its title or the aspect of it having a better title than the
defendants was required to be gone into. Said aspect was rightly considered by the appellate Court and it was found on the basis of the evidence on
record that the plaintiffÂFirm had acquired title to the suit property. If after considering the entire material on record, the appellate Court found that
the plaintiffÂFirm had title to the suit property or that it had a better title than the defendants, then no fault could be found by granting the declaration
that the plaintiff was the owner of the suit property. It was submitted that even if no relief of declaration of title was sought, consideration of that
question did arise and the same was rightly considered by the appellate Court. In that regard, the learned Senior Counsel referred to the decision in
1987(3) BCR 258 (Bhagwanrao Jijaba Auti Versus Ganpatrao Mugaji Raut & Another). Without prejudice it was submitted that the plaintiffÂFirm
could be directed to pay necessary Court fees on the relief of declaration of ownership. It was also urged that both the parties went to trial aware
of the cases of each other that the question of title was required to be adjudicated upon. No objection was ever raised by the defendants to the
framing of Issue No.1 by the trial Court. Hence, it was futile to contend that the aspect of title was not relevant in the case in hand.
ii) The appellate Court rightly construed the decree passed in Civil Suit No.1 of 1894 as a decree for the superstructures as well as the land
beneath. Referring to the said decree, at Exhibit 240, it was submitted that the same was not restricted to the superstructures. After that decree
was executed, Shri Gangadharrao Chitnavis came into possession of Survey No.345. Referring to the notification dated 04.06.1915 at Exhibit 230, it
was submitted that the same indicated the ownership of Shri Chitnavis as per the entries at Serial Nos.40 and 41. It also indicated that besides those
two properties, 46 trees were also owned by Shri Chitnavis. This indicated ownership of the superstructures along with the land. Reference was
then made to the notification dated 04.11.1939 at Exhibit 91 to indicate that Survey No.345 was not included in that notification which made a specific
mention to all properties that belonged to the British Empire. It was further urged that even in the proceedings under the Act of 1976, the suit
properties were the subject matter thereof and this fact reinforced the plaintiff's claim to title. It was submitted that at no point of time for a period
of more than hundred years was the title of either Shri Chitnavis or the plaintiffÂFirm challenged in any manner whatsoever. Reference was also
made to the communications at Exhibits 113 to 116 between the parties. It was thus submitted that the appellate Court did not go beyond the terms
of the decree and that the firm was in fact the owner of the land in question.
The learned Senior Counsel placed reliance on the decision in (2013) 9 SCC 319 (State of Andhra Pradesh & Others Versus Star Bone Mill and
Fertiliser Company), in that regard.
(iii) It was submitted that the provisions of Section 110 of the Act of 1872 were rightly applied by the appellate Court. As per those provisions since
the plaintiffÂFirm had a better title and as its possession was not primaÂfacie, the presumption thereunder would apply. Moreover, by leading
voluminous evidence it was brought on record that the plaintiffÂFirm through its predecessor was the owner of the suit property. The burden under
Section 101 of the Act of 1872 was discharged by the plaintiffÂFirm and therefore, it could not be said that the initial burden had not been so
discharged. Reference was made to the decision in (2006) 1 SCC 658 (E.Parashuraman (Dead) by LR's Versus V. Doraiswamy (Dead) by LR)
and (2004) 1 SCC 769 (Rame Gowda (Dead) by LR's Versus M.Varadappa Naidu (Dead) by LR's & Another) in support of said submission.
It was urged that considering the limited scope of jurisdiction conferred by Section 100 of the Code, no interference with the findings of fact recorded
by the Courts below was called for. It was conclusively proved that the plaintiffÂFirm was the owner of the suit property and there was not a
single document with the defendants to indicate that the title vested in them. Referring to the decision in AIR 1963 SC 1633 (Madamanchi
Ramappa & Another Versus Muthaluru Bojjappa) it was submitted that the second appeal was liable to be dismissed.
AS REGARDS SUBSTANTIAL QUESTION NOS.II & III:Â
The plaintiffÂFirm has traced its title to the suit property pursuant to the adjudication in Civil Suit No.1 of 1894. At Exhibit 240, the judgment in that
suit and the manner in which the decree was executed is evident. For considering the question as to whether the appellant Court has travelled
beyond the decree passed in a suit, it would be necessary to consider Exhibit 240. As per the averments in the plaint, a mortgageÂdeed dated
11.08.1891 was executed by Shri Gangadharrao Chitnavis. The subject matter of the mortgage was the bungalow with outhouses and a well. Shri
Gangadharrao Chitnavis had filed suit for foreclosure based on that mortgage. This suit came to be decreed by passing a conditional decree on
26.02.1894. A time of six months was given to the defendants to redeem the mortgage. As the same was not done, the decree came to be
executed and on 03.12.1894, the judgment debtor was put in possession of the mortgaged property. The warrant of possession indicates that
Bungalow No.27/4 and Bungalow No.26/55 was handed over to the decree holder. Similarly, personal properties of the judgment debtor were also
handed over to the decree holder. The decree does not indicate that it related only to the superstructures and not the land beneath it.
While considering the question, as to whether the land on which the bungalows were situated was the subject matter of the said decree, it would be
necessary to take into consideration the notification dated 04.06.1915 at Exhibit 230. By its notification issued under provisions of the Works of
Defence Act, 1903, the Chief Commissioner was pleased to declare that it was necessary to impose restrictions upon the use and enjoyment of lands
in the vicinity of Sitabuldi Fort at Nagpur. As per the schedule of buildings indicating structures within the said zone, reference is made at Item No.40
to a bungalow admeasuring 5804 square feet owned by Shri Gangadharrao Chitnavis. Item No.41 relates to servant quarters admeasuring about
1335 square feet also owned by Shri Gangadharrao Chitnavis. As per the further schedule of trees shown existing within the Fort zone at ItemÂB,
the compound of Building No.40 of the schedule is mentioned with 46 trees. On a reading of this notification, it is clear that the properties mentioned
therein were not properties owned by the British Empire but were the properties situated in the vicinity of Sitabuldi Fort. By issuing a corrigendum,
it was clarified that the properties at Serial Numbers 40 and 41 were erected in the year 1879. It is also necessary to consider the notification dated
04.11.1939 at Exhibit 91. As per this notification issued under Section 172 of the Government of India Act, 1935, a reference was made to various
properties/lands vesting in the Majesty for the purposes of the Government of India. In other words, the schedule to that notification refers to
various properties that belonged to the Majesty. It can be seen that adjoining properties bearing Survey Nos.339/1 and 344 find mention in that
notification however there is no mention of Revenue Survey No.345 which is the subject matter of the present proceedings. This notification
therefore indicates that Revenue Survey No.345 was not treated by the British Government as vesting in it.
Thus, on a conjoint reading of the notification at Exhibit 230 and the notification at Exhibit 91, it becomes clear that Shri Gangadharrao Chitnavis was
shown as the owner of Survey No.345. There is no document on record to indicate that Survey No.345 either vested in the British Empire or
thereafter with the defendants. There is also nothing on record to indicate that the decree in question related only to the superstructure and not to
the land beneath. The notification at Exhibit 230 in clear terms refers to the ownership of Shri Gangadharrao Chitnavis as owner of the Bungalows
as well as 46 trees. The suit land was within the vicinity of Sitabuldi Fort but was owned not by the British Empire but by Shri Gangadharrao
Chitnavis.
There is yet another piece of evidence in favour of the plaintiff to indicate the title of Shri Gangadharrao Chitnavis. After the provisions of the
Act of 1976 came into force, the land from Survey No.345 admeasuring 6045.70 square meters was submitted to the jurisdiction of the ceiling
authorities. An exemption under Section 20 of the said Act was sought.  This is clear from the document at Exhibit 137. By order dated
12.01.1981 at Exhibit 138, the ceiling proceedings came to be dropped and ultimately as per Exhibit 161, area admeasuring 6084.70 square meters was
shown as owned by plaintiff. Subsequently at Exhibit 163, there is a Sanad issued by the State Government indicating the title of the plaintiffÂFirm
in regard to 6084.70 square meters which is Survey No.345. Before the first appellate Court, a revenue document of the year 1882Â83 was placed
on record which indicated that land admeasuring 1 Hectare 54 R stood in the name of Shri Gangadharrao Chitnavis.
Thus, when all the documentary material is taken into consideration, it is clear that the suit property was initially owned by Shri George Duncan.Â
It came to be mortgaged in favour of Shri Gangadharrao Chitnavis. By filing a suit for foreclosure, Shri Gangadharrao Chitnavis executed the
decree passed therein and became owner of Survey No.345. The suit property was included in the notification dated 04.06.1915 wherein the list of
properties situated in the vicinity of Sitabuldi Fort but not owned by the Government was notified. Similarly, in the subsequent notification dated
04.11.1939, the suit property is not included while other adjoining properties vesting in the Government were specifically mentioned. The appellate
Court has rightly found that pursuant to the decree passed in Civil Suit No.1 of 1894, Shri Gangadharrao Chitnavis became owner of the suit property
and subsequently the plaintiffÂFirm. The finding recorded against Point No.1 that the plaintiffÂFirm is the owner of the suit property being Survey
No.345 is based on evidence available on record and that finding is unexceptionable. Substantial question of law at Serial No.(II) is answered by
holding that the first appellate Court did not go behind the terms of the decree dated 26.02.1894 in Civil Suit No.1 of 1894 and hence no error in that
regard has been committed by the appellate Court.
As per provisions of Section 110 of the Act of 1872, the presumption thereunder would arise if the possession of the plaintiff is not primaÂfacie
wrongful. Further, the title of the defendants is not found to be proved. In the present case, the plaintiff brought on record voluminous
documentary evidence to indicate the manner in which it acquired title. The notifications on which the defendants relied in fact substantiated the
case of the plaintiff that it had title to the suit property.
By placing substantial documentary evidence on record, the plaintiff had discharged the burden in that regard under Section 101 of the Act of 1872.Â
The first appellate Court rightly referred to the provisions of Section 110 of the Act of 1872 as it found that the possession of the plaintiff was not
primaÂfacie wrongful and that the title of the defendants was not proved. It is not the case of the burden being shifted on the defendants. The
plaintiff by placing sufficient documentary evidence on record had proved that it was the owner of the suit land and in addition thereto, it was also
entitled for the benefit of the presumption under Section 110 of the Act of 1872. In that view of the matter, no fault can be found on the part of the
appellate Court in referring to the provisions of Section 110 of the Act of 1872. Substantial question of law at Serial Number (III) is answered by
holding that the initial burden was on the plaintiff to prove that it was the owner of the land and that burden was duly discharged. Recourse to the
presumption under Section 110 of the Act of 1872 therefore was rightly resorted to by the first appellate Court.
A perusal of the plaint as filed indicates that the plaintiffÂFirm had sought a declaration that the defendants had no right to interfere with the
construction of the plaintiff over the suit property and that the letters to that effect issued by the defendants were illegal and improper. Further relief of
permanent injunction seeking to restrain the defendants from causing any damage or disturbance over the possession of the plaintiff was also
sought. In the plaint, it was specifically asserted by the plaintiff that it was the owner of the suit property which is plot bearing No.345 admeasuring
about 6084.75 square meters. In the written statement filed by the defendants, the title of the plaintiffÂFirm has been specifically denied. It has
been asserted in clear terms that the suit property belonged to the defendants and that the plaintiffÂFirm had no title whatsoever therein. The trial
Court at Exhibit 70 framed issues and Issue No.1 was, as to whether the plaintiffÂFirm proved that it was the owner and possessor of the suit
property ?. The first appellate Court while considering challenge to the decree passed by the trial Court had framed Point No.1, as to whether the
appellants proved title over the suit land ?.
The record indicates that though the suit was for declaration and perpetual injunction, the parties went to trial in the backdrop that the plaintiffÂ‐
Firm was required to prove its title. The title of the plaintiffÂFirm as pleaded was denied by the defendants and hence an issue in that regard was
framed by the trial Court. The parties also led evidence in that regard and that issue has been answered by the trial Court and the point in that
regard by the appellate Court. Though it was urged on behalf of the defendants that the question of title could not have been gone into by the
Courts, that submission cannot be accepted. As noted above, the parties went to trial on the premise that the plaintiff was claiming its title over the
suit property and that was the basis for seeking the relief of declaration and perpetual injunction. It also needs to be noted that before the trial Court,
the defendants had moved an application below Exhibit 202 in which it was prayed that though the plaintiffÂFirm was seeking the relief with regard to
adjudication of its title it had not paid appropriate Court fees. The trial Court rejected that application by observing that the reliefs as claimed had
been properly valued. It therefore cannot be said that the parties did not go to trial oblivious of the fact that title of the plaintiffÂFirm was in
question.
It is well settled that in a suit for injunction simplicitor, the question of title is a material question which is required to be considered by the
Courts. I find merit in the contention of the learned Senior Counsel on behalf of the plaintiff that even if the plaintiff had claimed perpetual injunction
simplicitor, a declaration with regard to title was implicit therein. In paragraph 22 of the decision in Bhagwanrao Jijaba Auti (Supra) that was relied
upon by the learned Senior Counsel, it has been observed thus:Â
“22. In a suit simpliciter for perpetual injunction, although the relief of injunction is a substantive relief by itself, a declaration is implicit in the grant
of the said relief, although declaration may not be claimed in so many words. When a plaintiff comes to the Court for such a relief simpliciter on the
basis of his previous possession, he implied seeks from the Court a declaration of his possessory title.â€
In the light of the aforesaid observations, no fault can be found with the exercise undertaken by both the Courts in examining the aspect of title of
the plaintiff. In the light of averments in the plaint and the written statement, an issue in that regard arose in the light of provisions of Order XIV
Rule 2 of the Code.
It is however to be noted that the first appellate Court has proceeded to pass a decree thereby declaring the plaintiff to be the owner of the suit
property. This declaration of title is in absence of any relief being sought in that regard. It was open for the plaintiff to have sought that
declaratory relief in the suit but it has not chosen to do so. Though the finding as recorded that the plaintiff has proved its ownership over the suit
plot is being upheld, in absence of any declaration in that regard being sought, same could not have been granted in absence of any prayer. To that
extent, the decree passed by the first appellate Court would have to be modified. Though it was urged on behalf of the plaintiffÂFirm that it could
be directed to pay necessary CourtÂfees with regard to the relief of declaration of title, I am not inclined to accept that contention at this late stage of
the proceedings. Substantial question of law at Serial Number (I) is answered by holding that though the finding recorded by the first appellate Court
that the plaintiff was the owner of the suit land is based on evidence on record, the declaration of ownership in favour of the plaintiff could not have
been granted in the decree in absence of any relief being sought in that regard.
As a result of the aforesaid answers given to the aforesaid substantial questions of law, the following order is passed.
(I) The judgment dated 04.02.2004 passed in Regular Civil Appeal No.283 of 2003 is partly modified. The words 'the appellant is the owner of the
suit land' in the operative part of the judgment are deleted. Rest of the judgment stands confirmed.Â
(II) The Second Appeal is partly allowed to the aforesaid extent leaving the parties to bear their own costs.