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]

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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]

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]