Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., dismissed the second appeal explaining that the second appeal is maintainable before the High Court if the High Court is satisfied that the case involves a substantial question of law.

Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, held that the existence of substantial question of law is sine qua non for the exercise of jurisdiction under the provisions of section 100 of the Code of Civil Procedure, 1908 (CPC). The court, for the reasons to be recorded, may also entertain a second appeal even on any substantial question of law, not formulated by it, if the court is satisfied that the case involved such a question. Second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. Further relied on case laws were Govindaraju v. Mariamman, AIR 2005 SC 1008, Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067 and Bismillah Begum v. Rahmatullah Khan, AIR 1998 SC 970.

According to the plaintiff, the properties of late Nar Bahadur Gurung had been divided between the sons without any formal partition deed. Plot no.302 fell in his share. Plot no. 90 fell in the joint share of his brother late Kharga Bahadur Gurung and defendant no.1. As the plaintiff was staying away from the suit land, the defendant no.1 in connivance with some employees of the District Collectorate mutated the plots in his name without any notice or no objection from the brothers. The plaintiff prayed for declaratory reliefs and recovery of possession of the suit property.

The suit was dismissed by the Trial Judge holding that the plaintiff had failed to substantiate his plea that the suit property fell in his share and first Appellate Court upheld the findings of the Trial Court.

Section 101 of the Indian Evidence Act, 1872 states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

The Court dismissed the appeal holding that in the present case it was necessary for the plaintiff to plead particulars of how and with whom the defendant no.1 connived. Allegation of connivance must be clearly pleaded with material particulars and proved. The plaintiff did not also plead how exactly the partition took place and what was the share of each of the brothers of the plaintiff.

The Court consequently held that the solitary question of law framed by this court, that the learned First Appellate Court had not considered the ‘parcha khatiyan’ (exhibit-1) correctly and the impugned judgment was based on its misinterpretation, must be answered in the negative.[Chandra Bir Gurung v. Pratap Singh Gurung, 2021 SCC OnLine Sikk 154, decided on 20-10-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Saket Court
Case BriefsDistrict Court

South East, Saket Courts, New Delhi: Naresh Kumar Laka, Additional District Judge, decided a suit with respect to partition and permanent injunction.

Instant suit was filed for partition and other reliefs by claiming that the plaintiff was a joint owner of 1/3rd share of the suit property and Defendants 1 to 5 were the joint shareholders of another 1/3rd share and Defendant 6 for remaining 1/3rd share. According to the plaintiff, the suit property was purchased by the plaintiff along with his two brothers. Defendants 1 to 5 were legal heirs of one of the brothers, and Defendant 6 was widow of the other brother. Defendants 1 to 5 contested the suit, while Defendant 6 supported the case of the plaintiff.

Preliminary Objections/Arguments

Objection 1: Defendants 1 to 5 argued that the sale deed in question (as per which the suit property was purchased by the plaintiff and his two brothers) had not been proved by the plaintiff since PW 4 (Record Keeper, Department of Delhi Archives) had failed to identify the sale deed.

Court’s Opinion: PW 4 duly proved the factum of registration of the sale deed on the basis of official record and, as such, as per proviso to Section 68 of the Indian Evidence Act, 1872, the said sale deed stood proved and there was no other requirement under law to prove the said document.

Objection 2: It was argued by Defendants 1 to 5 that the parentage of the vendee/buyer have not been mentioned in the sale deed and, therefore, the said sale deed was not valid.

Court’s Opinion: Information mentioned on the reverse side of the sale deed was sufficient to identity the parties.

Moreover, there is no requirement under law to compulsorily mention the parentage name of transferor or transferee.

Objection 3: Defendants 1 to 5 argued that the suit property was constructed out of the funds of Raj Rani Sharma or her husband (one of the brothers, through whom Defendants 1 to 5 laid claim to the suit property as legal heirs) and plaintiff did not contribute anything and he had no source of income at that time being minor.

Court’s Opinion: As per law, the right, title and interest on immovable property are required to be decided on the basis of the title documents and even if it is presumed that the plaintiff did not contribute anything, it cannot be said that the said transaction was invalid.

Out of love and affection, a person can also contribute in the sale amount on behalf of other person and unless said fact is challenged by the former, the other persons have no right to question it. The mentioning of names as vendees in the registered sale deed clearly demonstrates the intention of the persons at the time of execution of the said document to create a right in favour of such persons. Had there been any contrary intention, names of such persons would not have been mentioned in the said sale deed.

The Court also observed it to be settled law that amount spent in raising construction of a house cannot disentitle the title holder of the said property and instead thereof such person who raised construction can claim recovery of the said amount, if desired, as per law by filing separate suit.

Objection 4: It was argued by Defendants 1 to 5 that the plaintiff was minor at the time of registration of sale deed and, therefore, the said document was invalid.

Court’s Opinion: The Court found no provision under the Transfer of Property Act, 1882 which provided that any sale transaction in favour of a minor was invalid rather there are other various provisions in the Act which provide that an interest can be transferred in favour of an unborn child in womb.

Noting that the rule that a minor’s agreement is void ab initio which was laid down in the famous case of Mohiri Bibi v. Dharmodass Ghose, (1903) 30 Cal. 539, was propounded in minors’ favour for their protection, the Court observed that the law does not regard a minor as incapable for accepting a benefit.

Further, the Court stated that even if it is presumed that the plaintiff was minor at the time of registration of sale deed, it does not make the said sale deed invalid. At the most it could have been challenged by the vendor or the person claiming through said vendor and not by the other joint shareholders/transferee or the person claiming through them, which is not permissible under the law.

Objection 5: There was assertion by Defendants 1 to 5 that the instant suit was barred by limitation and the plaintiff did not claim any share for the last more than 40 years.

Court’s Opinion: A cause of action for a suit for partition accrues only when partition is claimed and it is denied or when the plaintiff is ousted from the property and the defendant starts claiming his own exclusive ownership adversely to the plaintiff. In the plaint, it was claimed by plaintiff that his claim for partition was denied in September, 2013 and the present suit was filed in November 2014. No contrary evidence was led by the defendants to prove that the plaintiff ever demanded partition earlier which was denied.

Issues in Detail

  • Whether the suit property against which partition has been claimed and the property in occupation of defendant are same or different? Onus on both parties.

Physical Identification

In the present matter, plaintiff as well as Defendants 1 to 5 have placed on record the site plan of the suit property and from comparison of both, it was clear that both represent to the same physical structure of the property. Defendants 1 to 5 had also admitted that the site plan on record by the plaintiff was correct. Hence, there was no dispute on the physical identification of the said property.

Identification of the suit property vis-a-vis sale deed 

The Court stated that it is well settled that the standard of proof in civil cases and criminal cases is quite different. Plaintiff in civil suit had to merely establish his case on the touchstone of preponderance of probabilities and the defendant is not necessarily entitled to the benefit of every reasonable doubt. In the Court’s opinion, plaintiff duly proved on record the sale deed and identification of the suit property.

Therefore, the Court held that the plaintiff duly proved on record the identification of the suit property as well as the fact that it was purchased on the basis of sale deed in question only and that its subsequent municipal no. T-823A belongs to the same property i.e. plot no. 100 which has been mentioned in sale deed in question and is presently in possession of the defendants.

  • Whether plaintiff is entitled for partition of the suit property as claimed?

The Court decided in view of Issue 1 that the plaintiff was the joint owner of 1/3rd share in the suit property besides shares of Defendants 1 to 5 as 1/3rd and Defendant 6 as 1/3rd. Hence this issue was decided in favour of plaintiff and against Defendants 1 to 5.

  • Whether the plaintiff has no right, title or interest in the suit property or that the defendants are the exclusive or absolute owners of the suit property?

In view of the findings on Issue 1, the Court decided this issue in favour of plaintiff by holding that plaintiff was the joint owner of 1/3rd share in the suit property besides shares of Defendants 1 to 5 as 1/3rd and defendant 6 as 1/3rd. Defendants 1 to 5 also failed to prove the absolute ownership of Raj Rani Sharma.

  • Whether the plaintiff is entitled to a decree of perpetual injunction?

In view of the findings on Issue 1, this issue was decided in favour of the plaintiff and against the defendants and all the defendants were restrained to create any third party interest in the suit property against the interest of plaintiff or without due process of law.


(i) A preliminary decree was passed by holding that the plaintiff is the joint owner of 1/3rd share in the suit property and Defendants 1 to 5 are joint owners collectively of 1/3rd share and Defendant 6 joint owner of 1/3rd share in the said property.

(ii) The parties were given an opportunity to suggest ways and means for partition of the suit property by metes and bounds (physically) or by inter se sale of the respective shares amongst themselves before passing a final decree.

(iii) A decree of permanent injunction was also passed against the defendants and they were restrained to create any third party interest in the suit property against the interest of the plaintiff or without due process of law.

(iv) Cost of the suit was also awarded to the plaintiff against Defendants 1 to 5, which will be shown in the decree-sheet.

(v) An exemplary cost was also awarded against Defendants 1 to 5 for unnecessarily contesting the instant suit without any plausible basis, which was quantified at Rs 1,00,000, out of which Rs 80,000 to be paid to the plaintiff and Rs 20,000 to the Saket Bar Association Welfare Fund within 30 days.

[Ved Prakash Sharma v. Hunny Sharma, CS No. 11084 of 2016, decided on 1-10-2021]

Case BriefsSupreme Court

Supreme Court: A 3-Judge Bench of N.V. Ramana, CJI and A.S. Bopanna and Hrishikesh Roy, JJ. upheld the judgment of the Madras High Court passed in a second appeal whereby it had reversed the order of the first appellate court granting injunction in favour of the appellant−plaintiff in a property dispute. Rejecting the contentions of the appellant regarding propriety of High Court’s exercise of jurisdiction in second appeal under Section 100 CPC, the Supreme Court observed:

“[M]erely because the High Court refers to certain factual aspects in the case to raise and conclude on the question of law, the same does not mean that the factual aspect and evidence has been reappreciated.”

The Supreme Court was deciding an appeal filed against the judgment of the Madras High Court passed in the second appeal preferred by the respondent−defendant. The plaintiff had filed an original suit seeking perpetual injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit property. The plaintiff claimed that he had been enjoying the suit property for a period of forty years by paying kist. The defendant disputed the right claimed over the suit property by the plaintiff.

The trial court dismissed the suit. The plaintiff preferred a regular first appeal under Section 96 CPC before the first appellant court. Placing much reliance on the kist receipts produced by him, the first appellate court concluded that the plaintiff was in possession of the suit property. Thereafter, the defendant filed a second appeal under Section 100 CPC before the High Court. The High Court framed a substantial question of law, as to whether the suit without the prayer for declaration is maintainable when especially the title of the plaintiff is disputed. Having taken note of rival contentions, the High Court concluded that the substantial question of law had substance, and therefore set aside the judgment of the first appellate court. Aggrieved, the plaintiff approached the Supreme Court.

The appellant contended that the parameter for interference by the High Court in the second appeal under Section 100 CPC is well established and the High Court cannot travel beyond the same and advert to reappreciate the evidence on factual aspects. It was contended that when the first appellate court, which was the last court for appreciated of facts, had recorded its finding, the same could not be interfered by the High Court on reappreciation of evidence.

Summarising the legal position on the subject, the Supreme Court reasserted the position that in a second appeal under Section 100 CPC there is very limited scope for reappreciating the evidence or interfering with findings of fact rendered by trial court or the first appellate court, and therefore it was necessary to see whether the High Court in the instant case breached the settled principle.

The Supreme Court noted that the findings by the trial court and the first appellate court were divergent. The trial court concluded that the kist receipts would not establish plaintiff’s possession, whereas the first appellate court in fact placed heavy reliance solely on the kist receipts. The Court observed:

“When such divergent findings on fact were available before the High Court in an appeal under Section 100 CPC though reappreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings recorded by the two courts which was at variance with each other and one of the views taken by the courts below was required to be approved.”

The Court said that question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula.

Even otherwise, the Supreme Court found that the plaintiff’s possession of the suit property was not established. Further, the Court was of the view that the first appellate court misdirected itself and proceeded at a tangent by placing burden on the defendant.

In such view of the matter, the Supreme Court held that it would not be appropriate to interfere with the judgment of the High Court which was in consonance with the fact situation in the case. The appeal was dismissed. [Balasubramanian v. M. Arockiasamy, 2021 SCC OnLine SC 655, decided on 2-9-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., decides a matter revolving around the Will of a deceased person.

Factual Background

Instant suit was filed by two brothers’ owners of the suit property. The brothers mentioned were brothers of Late Shanti Swaroop Gupta.

Defendants submitted that the deceased left a Will in the name of his son-in-law who also passed away. In the said Will, properties of Late Shanti Swarup Gupta were bequeathed on his son-in-law who was the brother of defendants 1 to 3. The said defendants claimed ownership in the suit property to defendant 4 and conveyed it to defendant 5 and have further conveyed to the third parties.

Plaintiffs in the matter were 4 brothers of Late Shanti Swarup Gupta and claimed rights in the suit property by virtue of being Class-II legal heirs.

A probate petition was filed by the son-in-law of Late Shanti Swarup Gupta which was granted in his favour.

Present suit aimed to seek a declaration of the impugned registered Will is null and void, void-ab-initio and illegal, the decree of possession of the suit property, decree of permanent injunction against the defendants from creating any third party rights and direction to the office of Sub-Registrar not to register any sale till the disposal of the suit.

Analysis, Law and Decision

Section 263 of the Indian Succession Act reveals that the grant of probate or letter of administration or the revocation or annulment thereof for just cause can be ordered only by the probate Court. 

Court noted that the plaintiffs claimed that Anand Prakash Verma, son-in-law of Late Shanti Swarup Gupta, obtained the probate of the Will by playing fraud by not disclosing about other legal heirs of the deceased and hence the Will be declared null and void ab initio and illegal and of no effect.

Further, the plaintiffs applied for revocation of the probate granted and thus the relief as sought in prayer (a) of the present suit is not maintainable before this Court but before the probate Court under Section 263 of the Indian Successions Act.

In Court’s opinion, no ground was found to grant an interim injunction.

Hence, present suit was not maintainable. [Niranjan Swarup Gupta v. Bimla Devi, 2021 SCC OnLine Del 3690, decided on 14-07-2021]

Advocates before the Court:

For the Plaintiffs:

Mr. Piyush Singhal, Advocate for the plaintiffs with Mr. Ankur Gupta, A.R. of the plaintiffs in person.

For the Defendants:

Mr. Chandan Rai Chawla, Advocate for D1 to D3.

Mr. Kaadambari, Advocate with Ms. Priyanka, Advocate for D4 Mr. Samrat Nigam, Advocate with Mr. Sudarshan Ranjan, Mr. H. Bajaj, Advocates for D5 and D6.

Additional Reading:


1. Official proof of a will. [Whart.]. 2. Means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration of the estate of the testator, [Section 2(f), Succession Act, 1925 (India)].

[Source: SCC Online Webedition]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal, J.,  allowed the appeal and set aside the impugned orders of the First Appellate Court being unreasonable.

The facts of the case are such that the suit accommodation was of one Abdul Wahid Khan who sold the property to plaintiffs vide sale deed and got themselves registered in the Municipal Corporation Assessment Register. The said accommodation was rented as a shop to defendant 1 who was supposed to pay the monthly rent to the plaintiff after the sale which he failed to do upon which notice for eviction was sent to him. Thereafter a suit was filed under Section 12(1) (a), (c), (f) and (g) of the Chhattisgarh Accommodation Control Act, 1961 by the plaintiffs opposing which defendant stated that the plaintiff has no right over the title of the property under Section 43 and Section 64 of the Wakf Act, 1995 as it is a wakf property and Abdul Rehman was only a muttawali. The trial court granted a decree for eviction in favour of the plaintiffs being aggrieved by which civil appeal was preferred against the plaintiffs. The first appellate Court allowed both the appeals and dismissed the suit of the plaintiffs holding that the suit property is wakf property; therefore, the jurisdiction of the Civil Court is barred by Section 85 of the Wakf Act. Assailing this order, present second appeal was filed.

Issue 1: Rules of Evidence vis a vis Waqf Deed

Counsel for the appellants submitted that the first appellate Court has clearly erred in holding that the suit property is wakf property by relying upon Exhibit D/10 which is the copy of the alleged wakf deed as it is not primary evidence, being a copy made from the copy of the original document, and no foundation was laid for leading secondary evidence and hence Section 90 of the Evidence Act would not be applicable as for its applicability, the foundation has to be laid to lead secondary evidence.

The Court relied on judgment Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357 wherein it was held that

“17. The position since the aforesaid Privy Council decisions being followed by later decisions of different High Courts, is that presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old: but if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act, 1872 by proof of loss or destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine.”

The Court observed that Section 65 of the Evidence Act permits secondary evidence to be given of the existence, condition or contents of documents under the seven exceptional cases in which secondary evidence is admissible. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for n the section.

The Court thus held that the first appellate Court is absolutely unjustified in holding that the suit property is a wakf property, as such, the suit property has not been proved to be wakf property in absence of foundation for leading secondary evidence under Section 65 of the Evidence Act.

Issue 2: Jurisdiction of the Civil Court vis a vis Section 85 of the Waqf Act

It was further submitted that the instant suit was filed before the trial court on 06-10-1995 and the Wakf Act came into force w.e.f. 22-11-1995 and though defendant 2 was impleaded as a party/defendant in the suit vide order, since the suit had already been instituted prior to coming into force of the Wakf Act, 1995, therefore, by virtue of Section 7(5) of the Wakf Act, 1995, the suit is not barred by Section 85 of the Wakf Act.

Counsel for the respondents submitted that with regard to the question as to whether the suit property is a wakf property has to be decided only by the Wakf Tribunal after coming into force of the Wakf Act w.e.f. 22/11/1995, as such, the jurisdiction of the Civil Court is absolutely barred by virtue of Section 85 of the Wakf Act. It was further submitted that even if it is held that Section 85 of the Wakf Act, 1995 is not applicable, then also by virtue of Section 55C of the Wakf Act, 1954, the jurisdiction of the Civil Court is barred by virtue of Section 6A of the Madhya Pradesh Wakf (Amendment) Act, 1994.

The Court relied on judgment Taraknath v. Sushil Chandra Dey, (1996) 4 SCC 697, B.P. Pathak v. Dr Riyazuddin Haji Mohammad Ali, 1975 SCC OnLine MP 50, Sardarilal v. Narayanlal, 1979 SCC OnLine MP 25 and Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 and observed that in the light of the provisions contained in Section 109 of the Transfer of Property Act i.e. TP Act and the principles of law laid down by their Lordships of the Supreme Court and the M.P. High Court in the aforecited judgments, it is quite vivid that Section 109 of the TP Act creates a statutory attornment and by virtue of the transfer of leased property, transferee ipso facto acquires all the rights of the lessor, and a new relationship is created between the transferee and the lessee.

Issue 3: Meaning of the term ‘if he is the owner thereof’

 The Court relied on judgments Apollo Zipper India Ltd. v. W. Newman and Company, (2018) 6 SCC 744 and observed the term ‘if he is the owner thereof’ used in Section 12(1) (f) of the Act of 1961 to in an eviction suit filed by the landlord against the tenant under the rent laws when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit. It was further held that the burden of proving the ownership in an eviction suit is not the same like a title suit.

The Court thus held that

Reverting to the facts of the present case in the light of the aforesaid meaning and definition of the term ‘if he is the owner thereof’ used in Section 12(1)(f) of the Act of 1961 and the principles of law enunciated by the Supreme Court and the M.P. High Court in that behalf, it is quite vivid that in the instant case, the plaintiffs purchased the suit property from the erstwhile owner Abdul Wahid Khan vide Exhibits P1(c) and P3(c) and thereafter became the owner of the suit property and also the landlords of defendant No. 1. Plaintiffs have clearly stated that they have no other alternative suitable accommodation in the township of Bilaspur and the suit accommodation is required bonafidely for starting his business, though a lengthy cross-examination has been made but nothing has been brought out to demonstrate that either their need of the suit accommodation is not bona fide or they have any other alternative suit accommodation in the township of Bilaspur to fulfill their bona fide need. As such, the plaintiffs have successfully proved the fact that the suit accommodation has admittedly been let out by the erstwhile owner Abdul Wahid Khan for non residential purpose to the tenant/defendant No. 1 and plaintiffs needs the suit accommodation for starting their business and he has no other alternative accommodation for carrying out their business in the township of Bilaspur, therefore, the ground under Section 12(1) (f) of the Act of 1961 is established. However, I do not find any ground established under Section 12(1) (c) and (g) for evicting the defendant 1 from the suit accommodation.”

In view of the above, appeals were allowed and impugned judgment was set aside.[Jaipal Choudhary v. Chhattisgarh Waqf Board, 2020 SCC OnLine Chh 1179, decided on 14-12-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: S.C. Gupte, J., dismissed a second appeal filed against the orders of courts below where the suit filed by the respondent-plaintiff for possession of the suit property was decreed.

The plaintiff’s suit was based on his title to the suit property. Plaintiff’s grandfather was the owner of the suit property. According to the request of the defendant’s father, the plaintiff’s grandfather had put him in permissive possession of the property. The same arrangement continued even after the death of both, the plaintiff’s grandfather and the defendant’s father. Now, the plaintiff approached the defendant for evicting the suit property as it was required by the plaintiff’s family. The defendant, however, refused. Consequently, the plaintiff filed the subject suit for possession of the suit property based on his title derived from his grandfather and father.

The defendant contended, inter alia, that the defendants and their predecessor in the title were in possession of the suit property ever since the plaintiff’s grandfather purchased the same and that the suit for possession was clearly barred by the law of limitation.

The High Court was of the view that there was no merit in the defence of limitation. The Court explained: “In a suit for possession based on the plaintiff’s title, the cause of action accrues to him when the defendant sets up a title adverse to him, that is to say, when the possession of the defendant becomes adverse to the plaintiff.”

Considering the facts of the instant case, the Court observed: “It is the plaintiff’s own case here, and which is not disbelieved by either of the courts below, that all along, till possession of the suit property was demanded from the defendants, their possession was permissive, first through the predecessor of the plaintiff (deceased Rama) and later through the plaintiff and his father (also deceased). It was only on 15 May 2006, when possession was demanded by the plaintiff and his father and denied by the defendants that the cause of action to seek recovery of possession on the basis of their title accrued unto the plaintiff and his father and the suit filed immediately thereafter was within time.”

Finding no merit in the challenge to the impugned orders, the High Court dismissed the instant appeal. [Balasaheb Govind Basugade v. Rajendra Shivaji Kumthekar, 2019 SCC OnLine Bom 5608, decided on 28-11-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: Sanjay Kumar Gupta, J. dismissed a writ petition seeking a writ of mandamus against official respondents for restraining private persons from encroaching of the suit property of the petitioner.

The petitioner herein had filed a writ petition under Article 226 of the Constitution of India read with Article 103 of Constitution of Jammu & Kashmir, seeking mandamus commanding the official respondents to restrain certain private persons from interfering in the peaceful possession of petitioner’s suit property.

The Court noted that the petitioner was claiming relief for restraining the encroachment of his land by private persons. It was opined that this was not the function of official respondents, because they are executive functionaries of State. Since, the dispute involved the civil rights of the petitioner, it would be proper for him to seek a remedy before a civil court by filing a suit for injunction.

While determining the petition before it, the Court relied heavily on Roshina T v. Abdul Azeez, (2019) 2 SCC 329 where it was held that “a regular suit is an appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged.” In that case, the Supreme Court had held that a High Court cannot use its constitutional jurisdiction for deciding disputes, for which remedies under the general law, civil or criminal are available. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.

In view of the above, the petition was dismissed but liberty was granted to the petitioner to approach the civil court.[Paras Ram v. State of J&K, 2019 SCC OnLine J&K 479, decided on 24-05-2019]

Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhuri J. allowed an appeal challenging the judgment whereby a gift deed was held as void and donee of the deed were restrained from claiming the title in the gifted property.

Respondents herein were the plaintiffs in a suit filed for setting aside of a gift deed vide which the suit property had allegedly been transferred to the petitioners herein (defendants in suit). Respondents also sought a permanent injunction restraining petitioners from claiming title over the suit property. The trial court ruled in favor of the petitioner-defendants and dismissed the suit. However, the appeal filed against the said judgment was allowed and the suit was decreed in favour of respondent-plaintiffs.  Aggrieved thereby, this second appeal was filed.

Counsels for the appellant Bholanath Mukherjee and Mukteswar Maity submitted that though the plaintiff’s had originally contended that the donor (mother) of the deed was not in full sense while executing the deed. However, a prosecution witness in cross-examination stated that her mother was under the care of the defendants and that she did not know if the gift deed passed by her mother was unintentional. Further, she also admitted to the execution of the deed of gift in favor of the defendants thus demolished all chances of a fake deed. It was further contended that the plaintiff failed to provide any evidence to support their charge, and according to Section 102 of the Evidence Act, 1872 the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side. He further contended that since the respondents had imposed the allegations of fraud against the appellants, the burden of proof was on them to prove the negative.

Counsels for the respondent Ashish Sanyal and Pratip Kumar Chatterjee contended that since the mother used to live with the appellants they were in a position to dominate, and the onus of proof may be reversed in a case of undue influence and misrepresentation. He further submitted that the acceptance to a deed of a gift must be made by the donee while the donor is still alive. Respondents raised serious doubt over the authenticity of the gift deed because of the fact that it was registered after the death of the donor.

The Court opined that it is not necessary for the validity of a gift deed that it should be registered by the donor himself, and subsequent registration of a deed of gift after the death of the donor at the instance of the donee does not offend Section 123 of the Transfer of Property Act, 1882. It was observed that the burden of proof may be reversed if the transaction appears to be unconscionable, but the same could not be proved in the present case. Thus, the appeal was allowed and the decision of the trial court was restored.[Dinabandhu Mondal v. Laxmi Rani Mondal, 2019 SCC OnLine Cal 1118, decided on 17-06-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Ajay Mohan Goel, J., dismissed a petition challenging the order of the Senior Civil Judge, being devoid of merit.

In the pertinent case, the petitioner challenged the order of the Senior Civil Judge in Kalyan Chand v. Shiv Kumar, CMA No. 598/2018, Civil Suit No. 1975/2013 which was under Order 7 Rule 14 of the Code of Civil Procedure. The trial Court had allowed the application seeking permission to place another site plan on record, which contained the numbers of house and shop. It had allowed the application and even imposed costs upon the applicant for the permission so granted, by holding that it will clarify the suit property and would not cause any prejudice to the parties.

The Court held that the contention of the learned counsel Mr T.S. Chauhan, that the impugned order causes prejudice to the petitioner is devoid of merit. And further held that, “simply because the site plan has been permitted to be placed on record, does not ipso facto mean that site plan as it is stands proved. Petitioner shall have the opportunity not only to cross-examine the witnesses who may be produced by the plaintiff to prove the same, but also the opportunity to lead rebuttal evidence in this regard.”[Shiv Kumar v. Kalyan Chand, 2019 SCC OnLine HP 314, decided on 18-03-2019]