Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta* and V. Ramasubramanian, JJ., held that revenue record is not a document of title. The Bench expressed,

“Even if the name of the lessee finds mention in the revenue record but such entry without any supporting documents of creation of lease contemplated under the Forest Act is inconsequential and does not create any right, title or interest over 12 bighas of land claimed to be in possession of the lessee as a lessee of the Gaon Sabha.”

A notification dated 11-10-1952 was issued under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 by Uttar Pradesh government to the effect that an area of 162 acres in Village Kasmandi Khurd shall not vest with the Gaon Samaj and, accordingly all rights, title and interest of all intermediaries including the forest had vested in the State of Uttar Pradesh by that notification. Subsequently, on 23-11-1955, by a notification, the said land was declared as Protected Forest under Section 4 Indian Forest Act, 1927.

However, the local management committee (Gaon Sabha) had put the lessees into possession of land in question which was challenged by the Forest Department. Though, the Additional Commissioner, Lucknow decided the issue in favour of Forest Department, that order was set aside by the High Court of Allahabad.

Can a land be declared Protected Forest without mentioning its details in the notification?

The respondent-lessee argued that the details of land in respect of which notification under Section 4 of the Forest Act was issued were not mentioned, except providing the total area measuring 162 acres, hence the notification was vague and did not comply with the conditions specified in Section 4 of the Forest Act and it was only in the proclamation published under Section 6 of the Forest Act that the details of land (Khasra No. 1576) was mentioned.

Rejecting the contentions raised by the lessee, the Bench opined that it would be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries, as done by the notification dated 23-11-1955, by mentioning that the land measuring 162 acres would constitute forest land. The Bench observed,

The notification dated 23.11.1955 has the boundaries on all four sides mentioned therein. There is no other requirement under Section 4 of the Forest Act. It is only Section 6 of the Forest Act which needs to specify the situation and limits of the proposed forest.”

Noticeably, in terms of clause (a) of Section 6 of the Forest Act, the details of khasra numbers which were part of 162 acres found mention in the proclamation so published. Therefore, the Bench held that statutory procedural requirements were satisfied.

Is final notification under S. 20 necessary for acquisition of land declared as Protected Forest?

Disagreeing with the argument of the respondent that the final notification under Section 20 of the Forest Act was necessary, the Bench observed that Section 20 of the Forest Act does show that for a reserved forest, there is a requirement of publication of notification but no time limit is prescribed for publication of such notification under Section 20. Therefore, even if notification under Section 20 of the Forest Act had not been issued, by virtue of Section 5 of the Forest Act, there is a prohibition against acquisition of any right over the land comprised in such notification except by way of a contract executed in writing by or on behalf of the Government. Since no such written contract was executed by or on behalf of the State or on behalf of the person in whom such right was vested, therefore, the Bench held that the Gaon Sabha was not competent to grant lease in favour of the appellant.

Calling the findings of the High Court that since no objections were filed by the Forest Department earlier, the objections would be barred by Section 49 of the Consolidation Act, clearly erroneous, the Bench clarified,

“The land vests in the Forest Department by virtue of notification published under a statute. It was the lessee who had to assert the title on the forest land by virtue of an agreement in writing by a competent authority but no such agreement in writing has been produced.”

Therefore, the Bench held that the lessee would not be entitled to any right only on the basis of an entry in the revenue record. Accordingly, the order of the High Court was held to be not sustainable in law and the same was set aside.

[Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj, 2021 SCC OnLine SC 868, decided on 05-10-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance by:

For Department of Forest: Advocate Kamlendra Mishra

For the Respondent: Advocate Aftab Ali Khan

For Gaon Sabha: Advocate Mr. Hooda

*Judgment by: Justice Hemant Gupta

Case BriefsHigh Courts

Chattisgarh High Court: Sanjay K Agrawal J., dismissed the second appeal being devoid of merits.

The facts of the case are such that the plaintiff’s father, Kanhaiya Kori (Defendant 2) purchased the suit property including suit land along with the kutcha house by registered sale deed from one Rajim Bai and he remained in possession and the said kutcha house was constructed by him. Kanhaiya Kori sold the suit property in favour of Madanlal Bharadwaj (Defendant 1) by sale deed dated 21-1-2003. Thereafter, the plaintiff sought decree for declaration of title and permanent injunction stating inter alia that though his father i.e defendant 2 has purchased the suit land in his own name, but sale consideration was paid by him and hence his father had no right and title to alienate the suit property. The trial Court decreed the suit granting decree for declaration of title and permanent injunction in favour of the plaintiff which was reversed by the first appellate Court on appeal being preferred by defendant 1 leading to filing of instant second appeal.

Counsel for the appellants submitted that by the alleged transfer, no title has been transferred in favour of defendant 1, as the plaintiff remained in possession of the suit land and transfer of suit land, which is abadi land, without delivery of possession along with superstructure, no title has been passed and as such, decree passed in favour of the plaintiff would not have been set aside by the first appellate Court.

Counsel for the respondents supported the impugned judgment and decree of the first appellate court.

The case at hand falls under Section 54 of Transfer of Property Act, 1882 which states as under:

“54. “Sale” defined.—‘‘Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.—Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property.”

 The Court thus relied on judgment G. Hampamma v. Kartigi Sajjivalada Kalingappa, 1989 SCC OnLine Kar 135 and observed that It is the case of the plaintiff that possession has not been transferred to defendant 1, therefore, sale is not complete without delivery of possession. Non-delivery of possession does not affect the conveyance of title. What is transferred for consideration is the right of ownership. Right to possession is incidental to right of ownership. One who is a owner can bring an action for recovery of possession. Once the right, title and interest are sold, on payment of sale consideration the person in possession, is either a permissive holder like tenant or a person holding adversely to the interest of true owner. In either event person in possession has no title. Since delivery of physical possession is not an essential ingredient of sale, that circumstance by itself can have no relevance to decide the intention. When title is transferred and the person who has purchased the property has title over the suit property, merely because he has not been given possession, non-delivery of possession could not affect the title of the person who has purchased the property.

The Court thus held that in the present case, by registered sale deed the original defendant 2 has purchased the property and the valid title has been transferred in his favour. Even the plaintiff has not questioned the title of defendant 1 either by seeking a declaration that sale made by defendant 2 as owner in favour of defendant 1 is invalid or void otherwise. Hence, in regard to the observations made above, the first appellate Court is absolutely justified in holding that defendant 1 is the titleholder of the suit land and the plaintiff has no right, title and interest over the suit property and rightly reversed the judgment and decree of the Trial Court.

In view of the above, appeal was dismissed.[Ram Avtar Kori v. Madanlal Bhardwaj, 2020 SCC OnLine Chh 1182, decided on 14-12-2020]

Arunima Bose, Editorial Assistant has put this story together

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 BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for PMLA: The Tribunal chaired by Manmohan Singh, J. set aside an order restraining a woman from sale or transfer of a property, in which she was not claiming any right, title or interest.

The present appeal was filed under Section 26 of Prevention of Money Laundering Act, 2002 against the order passed by the Adjudicating Authority in an Original Application (OA) whereby appellant and her associates had been restrained from sale/ transfer of certain properties. The appellant’s case was that prima facie there was no link or nexus with the accused. Her name had only been mentioned in relation to a property which she had agreed to be purchased from one Nirmala Jain. However, due to certain personal reasons on the seller’s part, the sale could not be consummated. The said OA made no mention of any paper/documents/article or the like which had been seized and which had any connection with the appellant.

Appellant’s sole submission was that no cogent evidence had been provided by the ED to show that it had any link/ nexus with any alleged accused parties. However, despite the same, she had been arrayed as a defendant in the O.A.

The Tribunal noted that in the impugned order, no plea of the appellant had been referred. The appellant was not even claiming any right in the subject property. No prosecution complaint had been filed under Section 8(3)(a) of PMLA and the period of ninety days had already expired. Thus, her name ought to be deleted as the defendant from the O.A. At this juncture, counsel for respondent Atul Tripathi submitted that since the appellant was claiming no right and title in the property, her name may be deleted.

In view of the above, the appeal was allowed.[Alka Pahwa v. Assistant Director Directorate of Enforcement, Chandigarh, 2019 SCC OnLine ATPMLA 10, decided on 28-03-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Alexander Thomas, J. set aside an order passed by Tahsildar vide which petitioners’ request for transfer of registry and mutation was rejected, holding the same to be ultra vires and illegal.

Petitioners’ herein were the donee of gift deeds executed by their respective mothers – Meenakshi Amma and Narayani Amma. The respondent rejected their request for transfer of registry and mutation in their names on the ground that Narayani Amma and Meenakshi Amma had got right over the subject property on the basis of a registered gift deed executed by their mother. The said deed specifically stipulated that the subject property therein was to be possessed as ancestral property and its rights would devolve only on female descendants. Thus, the Tahsildar opined that transfer of registry sought for by the petitioners could not be done as Meenakshi Amma and Narayani Amma did not have the right to alienate property going by the descriptions and stipulations in gift deed.

The Court opined that Tahsildar had no power whatsoever to decide on the title of the parties concerned. When the concerned Sub-Registrar had duly registered gift deeds in favour of the petitioners under the Registration Act, 1908 then the respondent could not have refused mutation and transfer of registry on basis of his opinion. Determinations of vexed issues of the title are issues falling within the exclusive jurisdiction of a civil court.

In view of the above, the petition was allowed directing the respondent to take necessary steps for the transfer of registry and mutation in favour of the petitioners.[Marunnoli Vijayalakshmi v. Tahsildar, Koyilandi Taluk, 2018 SCC OnLine Ker 7425, Order dated 13-12-2018]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of P.R. Ramachandra Menon and N. Anil Kumar, JJ. dismissed a petition seeing mandamus for police assistance in relation to a disputed property holding that a writ court could interfere in matters involving civil rights.

Dispute between the parties centered on the ownership and possession of a property in absolute possession of the petitioner. Respondent’s  3 to 6 who resided on the eastern side of the said property, broke a portion of the compound wall and made an attempt to carve out a pathway into petitioner’s property. Hence, the petitioner approached the Munsiff’s Court and was granted a decree of prohibitory injunction which was consequently executed. Allegedly, the respondents attempted to trespass into petitioner’s property again by breaking the iron fence on boundary separating their properties. Thus, the present petition was filed seeking police aid to reconstruct the said iron fence so as to prevent respondents from trespassing into his property.

The Court relied on the judgment of Division Bench of this Court in Adhikarath Valappil Kunhumuhammed v. Korath Illath Valappil Mammi, 1999 SCC OnLine Ker 159 where it was held that when there is dispute between parties and only an interim ex-parte order passed is in force, then in such a situation a Court should not exercise its jurisdiction under Article 226 of the Constitution of India with a direction for police aid.

In view of the above, it was held that disputed questions of title and possession of property could not be the subject matter for determination by a writ court under Article 226 of the Constitution of India under the guise of police protection, to the petitioner, particularly, when such questions were pending consideration before a competent civil court. [Raman v. State of Kerala, 2018 SCC OnLine Ker 7432, decided on 03-12-2018]

Case BriefsHigh Courts

Tripura High Court: The Division Bench of Sanjay Karol, CJ and Arindam Lodh, J. dismissed an appeal filed against the judgment rendered by trial court dismissing a civil suit.

The trial court dismissed the suit on grounds of res judicata. It was found that the issue of declaration of title over the suit land had already been decided in an earlier judgment. Furthermore, the judgment in the earlier suit was challenged in appeal before the High Court, but the appeal was dismissed and the earlier judgment attained finality.

The High Court observed that a subsequent suit, though by another person, but dealing with same subject matter, is hit by the principle of res judicata. The issue in the present suit was directly and substantially in issue in the earlier suit. It was stated that all litigations must come to an end. In such circumstances, the court found no reason to interfere with the trial court’s judgment. Thus, the appeal was dismissed. [Shayamal Bhattacharjee v. State of Tripura, 2019 SCC OnLine Tri 2, decided on 02-01-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed this writ petition, claiming relief by private parties, in respect to the possession and title of the immovable property.

The facts of the case were that the petitioner had a dispute over possession with the respondents, her stepsons, with regard to some property.  She approached the Tehsildar Khansahib for redressal and the matter reached to the Dy. Commissioner. The Dy. Commissioner ordered in her favor but the respondents did not oblige to this order. The petitioner thus approached this court to seek relief.

The Court reiterated the settled law and relied on the Supreme Court decision in Roshina T v. Abdul Azeez K.T.,2018 SCC OnLine SC 2654, where the Court cautioned against the entertainment of the writ petitions involving adjudication of disputed questions of facts relating to possession and title of immovable property between the private parties.

Thus, the writ petition was dismissed. [Khati v. State of J&K,2018 SCC OnLine J&K 979, decided on 14-12-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Vineet Kothari, J., decided a writ petition filed under Articles 226 and 227 of the Constitution, wherein the Court declined to issue a writ of mandamus directing the respondents to allot an alternative site to the petitioner, basing its decision on the maxim nemo dat quod non habet.

The petitioner submitted that he was allotted a site by the respondent under a certain scheme, where under the petitioner also deposited a certain amount of money. However, later it was found that the concerned land belonged to some other person and therefore, could not have been allotted to the petitioner. Consequently, the petitioner filed representation before the respondent to allot an alternative site. The instant petition sought the issue of a writ of mandamus directing the respondents to consider petitioner’s representation.

The High Court perused the record and was of a clear view that the said prayer could not be granted. The Court found that the land that was allotted to the petitioner was not available with the respondent in the very first place. As such, under no circumstances, the said allotment could have been made. The Court based its opinion on the maxim nemo dat quod non habet; meaning that nobody could pass a better title than he himself has. The fact that the land belonged to a third party did not entitle the present petitioner to seek an alternative site as a matter of right. The Court also held that the petitioner could sue the respondent for damages for the loss caused to her on account of cancellation of the said allotment, but the relief as prayed for by the petitioner could not be granted.

Accordingly, the petition was dismissed. [N. Premakumari v. Commissioner, Chikballapur District, WP No. 47991 of 2017 (LB-RES), order dated  01.02.2018]