Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., while allowing a second appeal filed by the plaintiff against the order of the first Appellate court, held that the suit filed for protecting the possession of immovable property based on settled exclusive possession cannot be dismissed on the ground that the plaintiff has failed to prove title to the suit property.

The plaintiff claimed that the suit property was gifted orally to him by one Hamid. He claimed that the defendants were interfering in his peaceful possession of the suit property. Therefore, he filed a suit for perpetual injunction against the defendants, which was allowed by the trial court. It was an admitted fact the plaintiff was, all throughout, in exclusive possession of the suit property. However, on appeal, the First Appellate Court reversed the order passed by the trial court. Hence, the present the second appeal by the plaintiff.

The substantial question of law to be decided in this appeal, as reframed by the High Court was: Can a suit filed for protecting the possession of immovable property based on settled exclusive possession be dismissed on the ground that the Plaintiff has failed to prove title to the suit property?

After hearing Pramod N. Joshi, Advocate for the plaintiff, and Sharad T. Bhosale, Advocate for the respondent-defendants, the High Court perused the record and reached the conclusion that the substantial question as framed above had to be answered in the negative. Explaining the fundamental fallacy in the impugned order, the Court explained: “The District Court has dismissed the plaintiff’s suit for protecting his possession without in any way having questioned the plaintiff’s exclusive possession of the suit property. If his exclusive possession was not debated/questioned, assuming without admitting that his exclusive ownership through the purported oral gift by Hamid Husein was not proved unless the defendants actually showed either their pre-existing physical possession or their entitlement to the suit property by a succession, testamentary or intestate, the plaintiff was entitled to the perpetual injunction sought by him.”

It was further observed that the defendant’s’ claim to be in physical possession of the suit property was neither accepted by the trial court nor by the First Appellate Court, and the only case of entitlement pleaded by the defendants having also been found against them by both courts below, they had no case to resist the plaintiff’s claim for protecting his admitted possession of the suit property.

Accordingly, the second appeal filed by the plaintiff was allowed; the impugned judgment of the First Appellate Court was set aside, and the order passed by the trial court was restored. [Kadar Raju Shaikh v. Abbas Pirmohamad Shaikh, 2019 SCC OnLine Bom 4688, decided on 07-11-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Rath, J., allowed a petition filed against the order of the Trial Court which rejected an application of the petitioner filed under sub-section (2) of Section 80 CPC to waive notice on the ground of urgency.

Plaintiffs-petitioners had instituted the suit for a perpetual injunction against the defendants and also filed an application under sub-section (2) of Section 80 CPC to waive notice on the ground of urgency. However, the Trial Court rejected the application. The petition was filed against the order of the Trial Court. The petitioners had filed an application for injuncting the defendants from demolishing a portion of the house standing over the suit land. The suit had been instituted to obtain an urgent relief against the Government. Mr Sahu, Advocate for the petitioners submitted that the Trial Court had without assigning any reason rejected the petition.

The Court observed that Proviso to sub-section (2) of Section 80 CPC postulates that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). The Trial Court had rejected the petition without giving reasons. This amounted to the denial of justice. The petition was thus allowed. [Basantilata Swain v. State of Orissa, 2019 SCC OnLine Ori 133, decided on 18-03-2019]