Manohar Pavaskar & Ors Vs. Nagesh Siddappa Navalgund & Ors  Insc
1247 (11 December 2007)
Sinha & Harjit Singh Bedi
APPEAL NO. 5794 OF 2007 [Arising out of SLP (Civil) No. 20584 of 2005] S.B.
SINHA, J :
Defendants before the Trial Court are the appellants herein.
Plaintiffs Respondents filed a suit against the appellants praying inter alia
for the following reliefs:
That the encroached portion of the suit property by erection of structure
measuring 369 1/9 sq. yards be directed to be demolished at the cost and risk
of Defendant No. 1 to 5 consequently defendants be further directed to maintain
the rules of set-back in respect of his remaining construction enabling
plaintiff to use and enjoy the free light and air to his property and similarly
defendants No. 6 be directed to remove the sign board and the firm from the
encroached area of the suit property.
defendants be directed to give the respective vacant possession of the suit
land to the plaintiffs.
decree of permanent injunction against defendants, their agents, their relative
or any body on their behalf to interfere with the plaintiffs peaceful
possession and enjoyment of suit property"
Respondents contended that they are owners of a portion of Survey No. 1008/1
bearing CTS Nos. 4823/A-17 and 4823/A-18 measuring 662 2/9 and 533 3/9 square
yards respectively and the appellants who are the owners of the abutting land
bearing CTS No. 4823/A-1 had encroached upon a portion of CTS Nos. 4823/A-17
and 4823/A-18 measuring 249 1/9 and 120 square yards respectively. Plaintiffs
purchased the said plots by a deed of sale dated 7.11.1984, whereas the date of
purchase made by the defendants dated 17.8.1992
learned Trial Judge having regard to the pleadings of the parties framed
issues; issue No. 3 whereof reads as under:
Whether the defendant Nos. 1 to 5 proves that the vendor of the plaintiff by
way of fabrication of false documents had sold the suit schedule property to
these plaintiffs, thus, the plaintiffs are not the owners of the suit schedule
answers to the above issues are as follows:
*** *** Issue No. 3 - Does not arise."
During the pendency of the said suit, an application for injunction was filed.
Allegedly, the appellants raised constructions upon the suit land in violation
of the said order of injunction. The learned Trial Judge in regard to the title
of the plaintiffs over the suit land held:
to the learned counsel for the plaintiff since CTS No. 4823/A1 is completely
acquired by the Municipal Corporation Belgaum for Malmaruti Extension scheme
then the property of the defendant no. 1 to 6 is not in existence in the name
of defendants. But according to me since the defendant no. 1 to 5 also have
purchased the property through a registered sale deed and also their vendors
have also purchased the said property through a registered sale deed and as
such it cannot be said that the property of defendants are not in existence.
But at the same time the say of the defendant cannot be taken into believed
(sic) that the CTS No. 4823/A17 and 4823/A18 are not in existence. When in the
survey map as well as in other documents these properties are clearly
demarcated and identified then according to me, these properties have been
clearly demarcated in relevant records"
High Court affirmed the said findings stating:
is also clear from the perusal of the judgment and decree passed by the courts
below that both the courts below have rightly decided on the basis that it is
unnecessary to give any decision on the title of the property as the suit is
for permanent and mandatory injunction and the trial court has rightly observed
that it is always open to the defendants to work out their remedy in accordance
with law, regarding their title to the property CTS No. 4823/A1 and no finding
could be given on title in the present case and when there is no finding on the
title of the property in the present case, it is clear that it is always open
to the defendants to work out their remedy, in accordance with law. It is clear
from the perusal of the material on record that defendant No. 6 who also
suffered decree of injunction and permanent injunction though had filed first appeal
before the lower appellate court has not chosen to challenge the judgment and
decree passed by first appellate court in RA 252/2001"
Indisputably, an Advocate-Commissioner was appointed. He filed a report. An
objection thereto was also filed. He, however, could not be cross-examined. His
report, therefore, could not have been taken into consideration although the
same formed part of the record.
High Court although took into consideration the fact that the plaintiffs did
not seek for any declaration of title, as noticed hereinbefore, opined that the
question of title can be gone into in an appropriate suit. All the courts
relied on Ex. P-35 which was allegedly produced by the appellants but were made
use of by the respondents, wherein it had been shown that the chalta No. 63 was
allotted in respect of CTS No. 4823/A-1, chalta No. 62-A was allotted in
respect of CTS No. 4823/A-17 and chalta No. 62-B was allotted in respect of CTS
is one thing to say that there does not exist any ambiguity as regards
description of the suit land in the plaint with reference to the boundaries as
mentioned therein, but it is another thing to say that the land in suit belongs
to the respondents.
for the plaintiffs to prove that the land in suit formed part of CTS Nos.
4823/A-17 and 4823/A-18. It was not for the defendants to do so.
was, therefore, not necessary for them to file an application for appointment
of a Commissioner nor was it necessary for them to adduce any independent
evidence to establish that the report of the Advocate- Commissioner was not
correct. The suit could not have been, therefore, decreed inter alia on the
basis of Ex. P-35 alone. In a case of this nature, even Section 83 of the
Indian Evidence Act would not have any application.
Furthermore, the High Court committed an error in also throwing the burden of
proof upon the defendants appellants without taking into consideration the
provisions of Section 101 of the Indian Evidence Act. In Narain Prasad Aggarwal
(D) by LRs. v. State of M.P. [2007 (8) SCALE 250], this Court
Record of right is not a document of title. Entries made therein in terms of
Section 35 of the Indian Evidence Act although are admissible as a relevant
piece of evidence and although the same may also carry a presumption of
correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable."
revenue record is not a document of title. It merely raises a presumption in
regard to possession. Presumption of possession and/ or continuity thereof both
forward and backward can also be raised under Section 110 of the Indian
Evidence Act. The courts below, were, therefore, required to appreciate the
evidence keeping in view the correct legal principles in mind.
The courts below appeared to have taken note of the entries made in the revenue
records wherein the name of the Municipal Corporation, Belgaum appeared in
respect of CTS No. 4823/A-1. We have, however, noticed that the learned Trial
Judge proceeded on the basis that the said property may be belonging to the defendants
appellants. The courts below not only passed a decree for prohibitory
injunction but also passed a decree for mandatory injunction. The High Court
opined that the Trial Court could exercise discretion in this behalf. It is
again one thing to say that the courts could pass an interlocutory order in the
nature of mandatory injunction in exercise of its jurisdiction under Section
151 of the Code of Civil Procedure on the premise that a party against whom an
order of injunction was passed, acted in breach thereof; so as to relegate the
parties to the same position as if the order of injunction has not been
violated, but, it is another thing to say that the courts shall exercise the same
power while granting a decree permanent injunction in mandatory form without
deciding the question of title and/or leaving the same open. How, in the event
the structures are demolished, it would be possible for the appellants to work
out their remedies in accordance with law in regard to the title of the
property has not been spelt out by the High Court.
We, therefore, are of the opinion that the interest of justice would be subserved
if the impugned judgments are set aside and the matter is remitted to the
learned Trial Judge for consideration of the matter afresh. The plaintiffs may,
if they so desire, file an application for amendment of plaint praying inter alia
for declaration of his title as also for damages as against the respondents for
illegal occupation of the land. It would also be open to the parties to adduce
additional evidence(s). The learned Trial Judge may also appoint a Commissioner
for the purpose of measurement of the suit land whether an Advocate -
Commissioner or an officer of the Revenue Department.
Before us, additional documents have been filed by the appellants showing some
subsequent events. It would be open to the defendants to file an application
for adduction of additional evidence before the Trial Judge which may be considered
on its own merits.
The appeal is allowed with the aforementioned observations. We would request
the Trial Court to consider the desirability of disposing of the matter as
expeditiously as possible and preferably within a period of six months from the
date of communication of this order. Costs of this appeal shall be the cost in