Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao and BR Gavai, JJ has, in two judgments, has 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.

“… 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, instead of deciding the issue in a suit for mere injunction.”

While 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 straightforward, the court may decide upon the issue regarding title, even in a suit for injunction; such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.

Below are two important rulings on the issue suits for prohibitory injunction relating to immovable property

Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594

(a) Where a cloud is raised over the 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 the 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, instead of deciding the issue in a suit for mere injunction.

(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 straightforward, 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 the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

Jharkhand State Housing Board v. Didar Singh, (2019) 17 SCC 692

“11. It is well settled by catena of judgments of this Court   that   in   each   and   every   case   where   the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”

[KAYALULLA PARAMBATH MOIDU  HAJI v. NAMBOODIYIL VINODAN, CIVIL APPEAL NOS. 5575­5576 OF 2021 and T.V. RAMAKRISHNA REDDY v. M. MALLAPPA, 2021 SCC OnLine SC 675, decided on 07.09.2021]


*Judgments by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Appearance in first case:

For appellant/plaintiffs: Senior Advocate P.N. Ravindran

For Respondent/Defendant: Senior Advocate V. Chitambaresh

Appearance in second case:

For appellant/plaintiffs: Senior Advocate Ajit Bhasme

For BDA: Advocate S.K. Kulkarni

For respondent: Senior Advocate Basava Prabhu S. Patil

Case BriefsHigh Courts

Delhi High Court: Rajiv Sahai Endlaw, J., passed a decree for recovery of possession in favour of the plaintiffs without a trial, where it was found that the defendants were insisting upon the recording of evidence and a trial only to defer the evil day of a decree being passed against them.

Factual Matrix

In the instant matter, plaintiffs’ purpose for the institution of the case was:

  • For declaration of their title and ownership of ground floor of property.
  • For recovery of possession thereof.
  • For ancillary reliefs against defendants 1 to 8 namely: (a) Arun Jethmalani, (b) Mohiney K. Jethmalani, (c) Ashish Hingorani, (d) C.V. Hingorani, (e) G.V. Hingorani, (f) Tulsi V. Hingorani, (g) Padma V. Hingorani, and (h) Delhi Development Authority (DDA).

Plaintiffs submitted that Devi Verhomal Hingorani was the owner of the property comprising of two and a half storey building with land underneath. After her demise, defendant 3 i.e. Ashish Hingorani became the owner of the ground floor of the property; defendants 6 and 7 i.e. Tulsi V. Hongorani and Padma V. Hongorani became the owner of the first floor of the property. Defendant 5 i.e. G.V. Hingorani became the owner of the second floor of the property and defendant 4 i.e. C.V. Hingorani was the named executor under the Will.

Ashish vide an agreement to sell, sold the ground floor of the property to the plaintiffs and on receipt of the entire purchase consideration executed the Will, Receipts, Affidavits, Indemnity Bonds, Special Power of Attorney in favour of the plaintiffs.  Since 1992, plaintiffs have been in the possession of the property. Further, the plaintiffs permitted defendants 1 and 2 i.e. Arun and Mohiney to access the ground floor as the caretaker.

Further, it was stated that Mohiney, the sister of the husband of plaintiff 1, during a conversation with the husband of plaintiff 1 mentioned that the ground floor belonged to her as she had purchased the same from Ashish.

With regard to first and second floors of the property, plaintiffs got to know that the owners of the said floors had executed certain documents including the Special Power of Attorney in favour of the husband/father of Mohiney/Arun. It was further learnt that the husband/father of Mohiney/Arun had also obtained a Special Power of Attorney from Ashish.

Leasehold rights of the land underneath the property had been converted into freehold vide Conveyance Deed jointly in favour of defendants 3 to 7, to whom different portions of the property were bequeathed under the Will.

Later, in 2012, when plaintiff 2 visited the property, found that Arun had opened his office on the ground floor and Arun and Mohiney were claiming themselves to be the owners in the possession of the ground floor of property.

In 2013, summons were ordered to be issued to Arun, Mohiney and Ashish to be restrained from creating any third party rights in the ground floor of the property.

Since both Arun and Mohiney died, they were substituted by the wife, son and daughter of Arun; another son of Mohiney was also impleaded as an heir.

High Court’s Analysis and Decision

Bench on perusal of the facts and circumstances of the case found that no trial was required in the matter, plaintiffs were entitled to a decree for possession:

  • Defendants contention that since issues were framed trial was necessary, was no longer res integra. Bench referred the decision of Supreme Court in  Charanjit Lal Mehra v. Kamal Saroj Mahajan, (2005) 11 SCC 279 and Delhi High Court’s decision in Parivar Seva Sansthan v. Veena Kalra, 2000 SCC OnLine Del 469.
  • As far as the plea of the defendants, of oral Agreement to Sell is concerned, the defendants, notwithstanding the pendency of this suit since the year 2013, have till date not initiated any action for specific performance thereof and the claim, even if any of the defendants for specific performance, would now be barred by time.
  • The defendants have pegged their case on adverse possession and all that needs to be adjudicated at this stage is, whether there is any plea of adverse possession and whether the plea, even if any of adverse possession, is such which is required to be put to trial. If the defendants fail on their plea of adverse possession, a decree for possession would be liable to be passed against them.
  • The existence of the Agreement to Sell, even if any, does not entitle the defendants to defend a claim for possession on the basis of title by the owner. The only remedy of an agreement purchaser is to sue for specific performance and which has not been done by the defendants.
  • It is quite obvious that it was only pursuant to the order dated 5th November, 2019, that the yarn of Arun and Mohiney having separate defences, with Arun having a defence of agreement purchaser and Mohiney having a defence of adverse possession, has been spun/woven.
  • The contention, that while the possession of Mohiney was adverse to the plaintiffs, the possession of Arun was as agreement purchaser from the plaintiffs, cannot be accepted.
  • Once Arun and Mohiney, both were in possession of ground floor of the residential House No. B-59, East of Kailash, New Delhi, there can be no plea of adverse possession by one when the other is claiming to be in possession as an agreement purchaser.
  • Owing to the relationship between Arun and Mohiney and owing to the lack of any plea, of Arun and Mohiney being in possession of the separate portions of the ground floor of the residential House No. B-59, East of Kailash, New Delhi, the plea of adverse possession and the argument of adverse possession on behalf of Mohiney, is nothing but a red herring and which clever drafting and arguments cannot and ought not make the Court put to trial something which can otherwise clearly be seen as a ruse in day light and permits of no ambiguity.
  • It is quite obvious that the defendants were insisting upon recording of evidence, to defer the evil day of a decree for recovery of possession being passed against them. However, the Court has to cut through the web of pleas spun in the written statement of the defendants and if finds the plea of adverse possession on which emphasis is laid today, to be without any substance, on account of other pleas in the written statement, is not to pedantically and mechanically order evidence to be recorded and allow its process being abused. The time and resources of the Court can be utilised for appropriate cases indeed requiring recording of evidence and trial and in which findings cannot be returned without such trial.

Mala fides of the defendants were also found much evident.

Plaintiffs were held entitled to a decree for recovery of possession forthwith. The Court expected that the defendants at least now will see reason and not indulge in any further litigation on false mutually destructive pleas bordering on contemptuous conduct interfering with administration of justice. The mesne profits at Rs 30,000 per month were fixed by the Court. [Asha V. Wadhwani v. Arun Jethmalani, 2020 SCC OnLine Del 480, dated 18-3-2020]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has held that for invoking Section 17 of the Limitation Act, 1963, two ingredients i.e. existence of a fraud and discovery of such fraud, have to be pleaded and duly proved and that in case of failure to establish the existence of fraud, there is no occasion for its discovery.


Background of the case


The dispute dating back to 1990 pertains to a General Power of Attorney (GPA) purported to have been executed by the plaintiff in favour of defendant No. 1 and consequently sale deeds executed by defendant No. 1 as an attorney of the plaintiff. However, according to the plaintiff, reposing complete trust in her step brothers to step-brothers, she had signed on blank papers under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names.

After analysing the evidence on record, the trial Court dismissed the suit filed by the plaintiff and this order was upheld by the appellate Court. The High Court, however, reversed the concurrent opinions of two Courts and held that the trial Court as well as the first appellate Court committed manifest error and misapplied the settled legal position.

Challenging the High Court’s decision before the Supreme Court, the defendants argued that interference by the High Court was unwarranted as the same did not involve any substantial question of law. On merits, the aforesaid defendants contended that the evidence of the plaintiff was self­-contradictory, as she first claimed that her signatures were taken on blank papers and then denied her signatures occurring on the 1990 GPA. The plea that the signatures were taken on blank papers was not substantiated as the 1990 GPA was executed on stamp papers.


Analysis


The Court held that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds were unsubstantiated and untenable. Here are the key factors taken into consideration by the Court:

  • As the record revealed that the disputed documents were registered, the Court, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, was of the opinion that the initial onus was on the plaintiff, who had challenged the stated registered document.
  • As the execution of the 1990 GPA and the sale deeds in the present cases was denied by the plaintiff, it became necessary for the plaintiff to examine the attesting witnesses of the disputed documents to establish her allegation about its non-execution. However, both the attesting witnesses were not examined.

“The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants.”

  • The evidence of plaintiff’s deed writer (PW4) unveiled that the stated documents were prepared on the basis of instructions of the plaintiff and had been duly executed by her in the presence of the attesting witnesses.

“… the trial Court and the first appellate Court had relied upon the evidence of PW4. The High Court, however, proceeded on surmises and conjectures and took a view which is perverse and tenuous.   In that, the ground on which the High Court rejected the evidence of PW4 is that he was known to the defendant No. 4 since his school days. We do not find it to be a correct approach to disregard  the credible testimony of the witness examined by the plaintiff herself (without declaring him as a hostile witness) and especially when it had come on record that the said scribe is a regular deed writer at  the  Tehsil  complex,  Dasuya.  Notably, PW4 had not been declared hostile at the instance of the plaintiff and as such, this part of his testimony would be staring at the plaintiff.”

  • Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non-receipt of the consideration amount.

Ruling


Concluding that the plaintiff failed to prove that her signatures on the subject documents are forged, the Court reiterated that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt.

“In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.”

[Rattan Singh v. Nirmal Gill, 2020 SCC OnLine SC 936, decided on 16.11.2020]


*Justice AM Khanwilkar has penned this judgment 

Case BriefsSupreme Court

Supreme Court: In a case where abuses were hurled by a person of upper caste at a person belonging to Scheduled Caste due to a property dispute between them, the 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has held that no offence under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out as the allegations of hurling of abuses is against a person who claims title over the property and not on account of them being a member of the Scheduled Caste.

“The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.”


Backstory


An FIR was registered against the appellants in the present case under Section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 for using castes’ remarks/abuses against the applicant  (the respondent no. 2 herein). It was alleged that the appellant and his family were from past 6 months are not allowing the respondent no. 2 to work on her fields. An excerpt from the FIR reads,

“On 10.12.2019 at around 10 am, all these persons entered illegally in to four walls of her building and started hurling abuses on myself and my labourers and gave death threats and used castes’ remarks/abuses and took away the construction material such as Cement, Iron, Rod, Bricks.”

The appellant, on the other hand, contended that the disputes relating to the property were pending before the Civil Court and that, the aforementioned FIR was filed on patently false grounds only to harass the appellant and to abuse of process of law.


Analysis


Highlighting the object behind the enactment of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Court noticed that considering the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliation, harassment, deprivation of life and property, the Act was enacted to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community.

Insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe

The offence under Section 3(1)(r) of the Act indicates the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe.

“All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe.”

It held that the offence under Section 3(1)(r) of the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste.

Considering the facts of the case, the Court said that the assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment.  Stating that every citizen has a right to avail their remedies in accordance with law, the Court said,

“… if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent no. 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste.”

Insult or intimidation in “any place within public view”

The Court also took note of another key ingredient of Section 3(1)(r) of the Act i.e. insult or intimidation in “any place within public view”. It referred to the judgment in Swaran Singh v. State, (2008) 8 SCC 435 where a distinction was drawn between the expression “public place” and “in any place within public view”. It was held that

“… if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view.”

Coming back to the facts of the case, the Court noticed that as per the FIR, the allegations of abusing the informant were within the four walls of her building and there was no member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, it was held.

“… the basic ingredient that the words were uttered “in any place within public view” is not made out.”


Conclusion


The Court concluded that the appellant and others were not permitting respondent No.2 to cultivate the land for the last six months as there is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per respondent No.2 herself.  Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.

It also clarified that the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar, any person to protect his rights by way of a procedure established by law.

It was, hence, held that the charges against the appellant under Section 3(1)(r) of the Act were not made out.

[Hitesh Verma v. State of Uttarakhand, 2020 SCC OnLine SC 907, decided on 05.11.2020]


*Justice Hemant Gupta has penned this judgment 

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J. allowed a writ petition under Articles 226 and 227 of the Constitution for quashing the order passed by Civil Judge (Senior Division) while granting an ex-parte injunction in the favour of respondents and the order passed by IV Additional Sessions Judge while rejecting the appeal filed by the petitioners.

Respondents herein had filed a suit seeking a permanent/prohibitory injunction against the petitioners herein (defendants in suit) praying that they be restrained by decree of perpetual injunction from interfering in the daily affairs of respondents’ society. The trial court vide an ex-parte order granted a temporary injunction in the favour of the respondents and restrained the petitioners from entering, interfering or destroying the property in dispute. Aggrieved thereby, the petitioners herein preferred an appeal which was dismissed by the appellate court. Hence, the instant petition.

Rakesh Thapliyal, counsel for the petitioners submitted that the lower court had not recorded the reasons and directly came to the conclusion that, “in case ex-parte injunction is not granted, then the purpose of the plaintiff would frustrate” and thus passed the ex-parte injunction order. In support of his contention, he placed reliance upon the judgment in the case of Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, where it was held, “….the court should grant interim injunction or stay order only after hearing the defendants or the respondents..” On the other hand, V.K. Kohli, Senior Advocate appearing on behalf of the respondents contended that the property belonged to the institute and same should be protected.

The Court after perusing the impugned order observed, “the courts below have failed to exercise their jurisdiction within the parameters of law and the orders impugned in the present writ petition suffer from the aforesaid error.” It further observed that “The trial court granted ex-parte interim injunction without any discussion, finding and the reason, and the appellate court has also done the same.” For this, the Court also placed reliance on the case of the Supreme Court in State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670, where it was held, “Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning.”

Thus, the Court set aside the impugned order holding the same to be unsustainable in the eyes of law and ordered the trial court to decide the interim injunction application within two months, after giving an opportunity of hearing to the parties.[Balwant Singh Chauhan v. Mahavidyalaya Sabha Jwalapur Haridwar, 2019 SCC OnLine Utt 360, decided on 14-05-2019]

Case BriefsSupreme Court

Supreme Court: In the dispute between 95-year-old veteran actor Dilip Kumar and the developer of his Pali Hill Porperty, the bench of J Chelameswar and S. Abdul Nazeer, JJ referred the matter for resolution by arbitration and directed both the parties to submit their dispute for arbitration by the Former Supreme Court judge, Justice P. Venkatarama Reddy.

As per the development agreement entered into in June 2006, Dilip Kumar was entitled to 50% of the “Development potential” and the developers were jointly entitled to the balance 50% of the “development potential”. The development was to be completed within 24 months, however, till date no development worth mentioning has taken place. Respondent developer PRAJITA was not the original party to the agreement but stepped into the shoes of one of the developers on 20.04.2010 under a deed of assignment. It was alleged that PRAJITA has posted armed guards around the property in question preventing the appellant from entering the property. Appellant actor had contended that he was willing to pay an amount of Rs. 20 crores to PRAJITA in order to have an undisturbed possession and peaceful enjoyment of the property.

Apart from referring the matter to arbitration, the Court gave the below mentioned directions:

  • The appellant shall deposit an amount of Rs. 20 crores by demand draft to the Registry of this Court within a period of four weeks from today and intimate the same to PRAJITA.
  • Upon the receipt of such intimation, PRAJITA shall withdraw all the security personnel deployed by it and hand over possession of the property in question within a period of seven days from the date of the receipt of the above-mentioned intimation to the appellant in the presence of the Commissioner of Police, Mumbai or any other senior police officer subordinate to the Commissioner of Police, Mumbai to be nominated by the Commissioner of Police.
  • The Commissioner of Police or his nominee shall draw a Panchnama of the fact of the handing over of the property by PRAJITA to the appellant and file the same in the Registry of this Court within a week from the date of the handing over of the possession.
  • Upon the filing of the Panchnama with the Registry of this Court, PRAJITA shall be at liberty to withdraw the amount of Rs. 20 crores deposited by the appellant pursuant to this order

The Court said that, the question as to whether PRAJITA would be entitled for any damages apart from receiving the above-mentioned amount of Rs. 20 crores from the appellant will be decided by the arbitrator appointed by the Court. [Yusuf Khan v. Prajita Developers Pvt. Ltd., 2017 SCC OnLine SC 1016, decided on 30.08.2017]

Case BriefsHigh Courts

Madras High Court: Deciding the question that arose for consideration, the Court held that a complaint lodged under the Domestic Violence Act would amount to an abuse of process of law in case it is filed as a legal remedy to claim right over property. A Single Bench comprising of S. Vimala, J. quashed the impugned order D.V.O.P No. 10 of 2015 of the learned Judicial Magistrate, Dindigul as illegal relying on the contentions of the counsel for the petitioner that the complaint filed by the respondent was not maintainable as it did not disclose any act of domestic violence as contemplated under the said Act and the respondent was not residing in the property as a shared household but rather as a tenant .
The Court observed that a dispute regarding property rights needs to be resolved by a civil court and if it is given the colour of domestic violence, then it is a case of abuse of the process of law and it needs to be quashed. The Court further observed that instead of establishing the rights in the civil court if a complaint is filed under the Domestic Violence Act as an outcome of personal animosity, grudge and only to extract money then such complaint is not maintainable under the Act and has to be quashed. [B. Sakunthala v. Vasantha, 2016 SCC OnLine Mad 9109, decided on September 7, 2016]