Municipal Corporation,
Hyderabad Vs.
Sunder Singh [2008] INSC 972 (16 May 2008)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3627 OF 2008 (Arising out of SLP
(C) No.23522 of 2004) Municipal Corporation, Hyderabad ...
Appellant Versus Sunder Singh ...
Respondent
S.B. Sinha, J.
1. Leave granted.
2. This appeal is directed against
a judgment and order dated 8.4.2004 whereby and whereunder the High Court of
Judicature at Hyderabd set aside the judgment and order dated 24.4.1998 passed
by the VII Senior Civil Judge, City Civil Court, Hyderabad in O.S. No. 573 of
1991 and remanded the matter back to the learned trial judge.
2 Devi Singh is the
predecessor-in-interest of the respondent. The original dispute between the
parties centered round 1250 square yards of land purported to be situated in a
market called `Maidan Bazaar Jamerath' situate at Karvan Aspan and bounded on
the east by canal and police station, on the west by `Bakar Mandi, on the north
by cement road, graveyard and huts belonging to the plaintiff and on the south
by land, huts and graveyards belonging to the plaintiff. It was said to be the
ancestral property of the plaintiff and was owned by him having been purchased
by his ancestors.
In the said suit, Devi Singh sought
for permanent injunction restraining the appellant herein from interfering with
his peaceful possession and enjoyment over the said property. The said property
consisted of open land.
The said suit was decreed on or
about 9.4.1960. An appeal was preferred thereagainst by the appellant, which by
a judgment and order dated 16.2.1967 was allowed by the High Court of Andhra
Pradesh.
3. Devi Singh preferred an appeal
before this Court. The fact of the matter has been discussed in details by this
Court in a judgment reported in Devi Singh v. Municipal Corporation, Hyderabad
[(1973) 4 SCC 66].
3 From a perusal of the said
judgment, it appears, that a purported claim was made by Dhan Singh over 2750
square yards bearing Survey Nos. 5943 and 5944 situated at Karwan Aspan on the
premise that he had filed an application before the competent authority in the
year 1921 stating that the same had fallen into the prohibited area.
Indisputably, the property involved in the said suit had been acquired and
compensation had been awarded to Dhan Singh for 1250 square yards and not for
the entire plot of the area which is said to be 2750 square yards. This Court
found that the plot for which compensation had been paid to Dhan Singh for an
area of 1250 square yards was far removed from the Bazaar and there were
several other plots which intervened. It was furthermore noticed that it was
somewhat difficult on the present state of the record to reconcile the case of
the defendant Corporation that the entire area covered by the sale deed had
been acquired for which compensation had been paid to Dhan Singh with the
relative situation of the Bazaar and the plot measuring 1250 square yards. It
was held:
15. It is difficult to ignore the
entire proceedings before the Sarfe-Khas and the documentary evidence according
to which possession was given of the land or the property including the Bazaar
by the Sarfe-Khas to the plaintiff after a full investigation of his claim in
the matter. There was no allegation that all those proceedings were without
jurisdiction or were collusive although it has now been suggested before us on
behalf of the defendant Corporation that the Sarfe-Khas 4 Department had ceased
to exist in February 1949 by virtue of the Sarfe-Khas Merger Regulation 1358
Fasli.
There is no indication in the
orders of the various authorities including that of the Minister that the
Sarfe- Khas had ceased to have any jurisdiction about deciding whether the
property over which the Sarfe-Khas laid claim was the property of a private
individual or was part of the personal estate of the erstwhile Nizam of
Hyderabad.
16. It has been maintained before
us on behalf of the plaintiff that the orders made by the Sarfe-Khas were
admissible and relevant under Section 13 of the Evidence Act. These points were
not gone into by the courts below and have still not been decided and we do not
wish to express any opinion on them. The agreements to which reference has
previously been made by us and which were not produced by the Corporation
before the trial court would have also thrown a good deal of light on the
points in controversy. In our judgment this is a fit case in which a remand is
necessary to the trial court. The trial court shall decide the matter afresh
only on issues relating to title and possession of the parties with the
exception of such legal points which have already been disposed of by us. Both
the parties will be at liberty to ask for such amendments in the pleadings may
be strictly necessary for clarification on the question of title and
possession. But no such pleas will be allowed to be introduced which may change
the nature of the case. Fresh evidence can also be adduced confined only to
these two matters by both sides. It will be for the trial court to get a
complete investigation made with regard to the various matters already
mentioned by us by a Commissioner if any of the parties make an application in
that behalf. Both sides have expressed willingness to produce before the trial
court all such documents which are relevant and which are in existence to
enable the court to dispose of the question of title and possession of both the
parties in a satisfactory manner.
5
4. Devi Singh died. Thereafter,
his heirs and legal representatives were brought on record. Admittedly, no amendment
had been sought for pursuant to or in furtherance of the observations made by
the Court. Parties, however, adduced additional oral and documentary evidence.
5. The suit was again decreed in
favour of the respondents.
Thereagainst, an appeal was preferred
which was marked as C.C.C.A. No.
112 of 1975. By reason of a
judgment and order dated 20.7.1979, the said appeal was allowed. No further
appeal was preferred thereagainst. It, therefore, attained finality between the
parties.
6. Respondents herein, however, on
or about 3.6.1991 filed O.S. No.
573 of 1991 for title and
possession of the property, the description whereof is as under:
"SCHEDULE OF PROPERTY All
that the property admeasuring sq. yards situated at Jumerath Bazar, Hyderabad
and is bounded by North : Plaintiff's property and Main Road (cement);
South : Remaining property of the
plaintiff;
6 East : Nalla and Plaintiff's
property;
West : Remaining property of
plaintiff.
7. A decree was prayed for grant
of a permanent injunction and a direction upon the respondent - Corporation to
render accounts for the amounts realized by wrongful auction. Admittedly, an
interlocutory application was filed therein for adducing secondary evidence of
documents purported to have been marked in the said O.S. No. 7 of 1959.
The said application was
dismissed. By a judgment and order dated 24.4.1998, the said suit was
dismissed. An appeal was preferred thereagainst which by reason of the impugned
order dated 8.4.2004 has been allowed and as noticed hereinbefore, remitted to
the trial court..
8. Mr. L N. Rao, learned Senior
Counsel appearing on behalf of the appellant would submit that keeping in view
the earlier round of litigation the findings of the fact arrived therein must
be held to have attained finality and thus the High Court has committed a grave
error in setting aside the judgment of the learned trial judge and remanding
the matter back to it. It was urged that in the earlier round of the litigation
not only the question of title but also possession having been gone into in
respect of the self same property, the impugned judgment should not have been
passed.
7
9. Mr. M.N. Rao, learned Senior
Counsel appearing on behalf of the respondent, on the other hand, would contend
that having regard to the provisions contained in Order XLI Rule 23 of the Code
of Civil Procedure as amended by the State of Andhra Pradesh as also in view of
the fact that the properties are different, the second suit was maintainable.
It was urged that as some vital documents had been missing, a prayer was made
for adduction of secondary evidence in respect of the documents which had been
relied upon by the appellant - Corporation in the earlier suit itself.
It was pointed out that by an
interim order dated 27.8.1998, the appellant - Corporation has been receiving a
sum of Rs.5,000/- per week from the respondent and thus this Court may not
exercise its jurisdiction under Article 136 of the Constitution of India.
Order XLI Rule 23 of the Code
reads thus:
"Remand of case by Appellate
Court.--Where the Court from whose decree an appeal is preferred has disposed
of the suit upon a preliminary point and the decree is reversed in appeal, the
Appellate Court may, if it thinks fit, by order remand the case, and may
further direct what issue or issues shall be tried in the case so remanded, and
shall send a copy of its judgment and order to the Court from whose decree the
appeal is preferred, which directions to re-admit the suit under its original
number in the register of civil suits, and proceed to determine the suit; and
the evidence (if any) recorded during the original 8 trial shall, subject all
just exceptions, be evidence during the trial after remand."
The amendment which is applicable
for the State of Andhra Pradesh is same as that of the State of Madras, which
reads as under:
"(a) After the words
"the decree is reversed in appeal", insert the words "or where
the Appellate Court in reversing or setting aside the decree under appeal
considers it necessary in the interest of justice to remand the case"; and
(b) delete the words "if it thinks fit", occurring after the words
"the Appellant Court may"."
10. Order XLI Rule 23 would be
applicable when a decree has been passed on a preliminary issue. The appellate
court must disagree with the findings of the trial court on the said issue.
Only when a decree is to be reversed in appeal, the appellate court considers
it necessary, remand the case in the interest of justice. It provides for an
enabling provision. It confers a discretionary jurisdiction on the appellate
court.
11. It is now well settled that
before invoking the said provision, the conditions precedent laid down therein
must be satisfied. It is further well settled that the court should loathe to
exercise its power in terms of Order XLI Rule 23 of the Code of Civil Procedure
and an order of remand should 9 not be passed routinely. It is not to be
exercised by the appellate court only because it finds it difficult to deal
with the entire matter. If it does not agree with the decision of the trial
court, it has to come with a proper finding of its own. The appellate court
cannot shirk its duties.
12. The issues which were framed
by the trial court are as under:
-
"Whether plaintiff has got
title to the suit property?
-
Whether plaintiff is entitled
to recover possession of the property shown in green colour of the plaint rough
sketch?
-
Whether the
defendant is liable to render accounts?
-
Whether
plaintiff is entitled for injunction in respect of the vacant site of 2790
square yards?
-
Whether the
suit is not maintainable? 6. To what relief?"
13. The High Court noticed the
contentions of the respondent that the trial court ought not to have rejected
the interlocutory application for adduction of secondary evidence. It was
contended that a second suit was filed only because despite liberty granted by
the Supreme Court, the plaint was not amended. Even therefore, the scope of
amendment was limited. No new case was to be made out.
10
14. The High Court framed the
following question for its consideration, namely, as to whether it is just and
proper to look into the merits of the case in the absence of secondary evidence
sought to be adduced by the plaintiff.
While upholding the contentions of
the appellant that it was not open to the respondent to file a present suit and
even if the documents are taken into consideration the same would not create
any difference of opinion before the trial court, having regard to the binding
nature of the judgment of the High Court, it was held:
"I am of the opinion that
though there is a force in the contention of the learned counsel for the
defendant, but the fact remains that the trial Court also relied on some of the
earlier documents mentioned in CCCA No.112 of 1975 without receiving them into
evidence."
It was furthermore opined:
"It is not just and proper to
deal with the merits of the case as it may act adversely to the interest of her
respective parties. I am of the view that the present suit was filed for
declaration of the title in respect of the Item No.1 of the plaint schedule of
properties and for recovery of the possession of mesne profits. It is stated
that item No.1 of the suit land was covered by the Jumerath Bazar and Devi
Singh has lost the title in respect of 1250 square yards as held in the earlier
litigation filed for injunction. The title of the Devi Singh in 11 respect of
the other property was not at all decided in the earlier suit and it is the
case of the plaintiff that unless Exs.B-1 to B-80 and Exs. X-1 to X-47 documents
which are printed book filed before the Supreme Court are received as secondary
evidence, it will amount to deprive the valuable right of the plaintiff to lead
secondary evidence to substantiate his contention in the plaint. The trial
court having rejected the request of the plaintiff to lead secondary evidence,
held that barring exhibits filed in the suit, the plaintiff did not file any
documentary evidence either with regard to his possession or with regard to any
part of the suit schedule property or about his possession in 1940 or delivery
of possession by the M.C.11 as contended by him and the judgment in CCCA No.112
of 1975 has become final. The Trial Court further held that the plaintiff has
not filed a scrap of paper to establish his possession in respect of item `A'
of schedule property of 2790 square yards."
It was furthermore opined:
"The documents sought to be
filed cannot be marked by this Court in view of the disputed facts and the said
documents have to be marked by way of adducing secondary evidence, which will
subject to the objections and cross-examination by the defendant. Therefore, I
am of the opinion that it is a case to remand to trial Court. It is just and
proper for the trial Court to consider the request of the plaintiff to receive
the secondary evidence in accordance with law. Therefore, it is just and proper
to mark the documents, relied on by both the parties in the earlier suit and
consider the same which were already considered by this Court in CCCA No.112 of
1975. If authenticity of any of the documents in the book prepared by the 12
Supreme Court is doubted, it is always open for the defendant to take an
objection and also confront the said document to the witness of the plaintiff.
I am of the view that an
opportunity should have been given to the plaintiff and the plaintiff cannot be
thrown out from giving an opportunity in the peculiar facts and circumstances
of the case to lead secondary evidence and therefore, without going into all
other questions and without expressing any view on the merits of the case, I am
of the view that it is just and proper to remand the matter to permit the
plaintiff and also the defendant to lead secondary evidence in respect of the
documents sought to be filed by them."
With respect, the approach of the
High Court was not correct. It for all intent and purport failed to perform its
duties.
15. In the earlier round of the
litigations, the Division Bench of the High Court arrived at its own
conclusion. One of the questions which fell for consideration of the Division
Bench was as to whether as regards the identity of the land acquired by the
City Improvement Board and to determine whether Dhan Singh had been paid
compensation for whatever land he had been possessing, it was held:
"Ex.D-5 passed by the
Compensation Court in the year 1915, Dhan Singh did not make any other claim
for compensation. This will probabilise that if really he was owning any 13
greater extent of property, he would have claimed compensation such large
extent of property as well. The absence of such a claim is a strong probability
that he was not owning any land in excess of 125 (sic for 1250) sq. yards, for
which compensation was provided and paid to him.
Dhan Singh made a claim for some
plot bearing No.5945/D adjacent to the slaughter house under Ex.D-10. He would
appear to have also filed a plan along with the petition but the identity of
that plenary is left obscure. There is no evidence in identification as to how
the claim made under Ex.D-10 was but however claimed that Dhan Singh made an
admission even then that the plot bearing No.5945/D was also within the
prohibited areas."
16. The standard of proof
applicable in a civil suit is the preponderance of probability. The question
had been determined having regard to the fact that the predecessor-in-interest
of the respondent confined its case only to 1250 square yards of land. The
effect of the judgment of the earlier suit has been taken note of. The High
Court furthermore noticed the contention that Dhan Singh should have been paid
compensation for the entire 2750 square yards of land, but the fact remains
that they had never claimed any compensation for any land beyond 1250 square
yards and in the said factual backdrop, it was held:
"We have carefully analysed
the evidence regarding possession which consists of both documentary and oral
evidence. These documents relate to the period 1928 to 1954. Ex.D/7 of the 14
year 1928 gives indication that the Sarfekhas was collecting some rents on the
Jumerath Bazar area and the City Improvement Board was requesting the Sarfekhas
Authorities to hand over all such rents collected by them, and they have also
informed the Sarfekhas that the property belonged to the City Improvement
Board. In the year 1929, some merchants in hide sand skins would appear to have
been using portion of the land on the bank of the river Musi for conducting
their trade."
Upon considering the entire
documentary evidence, it was held:
"The Sarfekhas was evidently
proceeding on the basis that the suit property was part of Kivan Jung and the
City Improvement Board was claiming that all rents realized from Zumerath Bazar
should be credited to the accounts of the Board. It is no doubt true that in
Ex.X-1 reference is made that the Chowda Bazarath was handed over to the
Municipality in the year 1946, but it looks to us that the suit property would
not have been a part of this Chowda Bazar for two reasons. The first reason is
that it was specifically mentioned as a separate item when the contract was
given to Fateh Mohammad and no reference was made at all to Jumerath Bazar in
the contracts given either to Shaik Dawood or Shaik Yakub Saheb. Secondly
Ex.X/1 include the suit property as a separate item under the list of gardens
and lands. In the oral evidence, it is no doubt elicited, that this Jumerath
Bazar is included as one of the Chowda Bazarath and that these markets was
handed over to the Municipality in the year 1946 under the agreement executed
between the Sarfekhas and the Corporation. It is argued for the respondents
that an adverse reference should be drawn against the Corporation for not
producing the agreement. It is also contended that the circumstances would
negative the title put forward on behalf of the Corporation. We find no
substance in either of 15 these contentions. In Ex. X-1, itself a remark was
made that notwithstanding the execution of agreement between the Corporation
and the Sarfekhas authorities, the Corporation has not been paying any amount
ever since the amount came into existence. That would indicate that the
agreement was not acted upon by the Corporation so far as at least the suit
property is concerned. In the nature of things when the title of the property
belonged to the Corporation after it was handed over to its management by the
City Improvement Board, the suit property would not have been mentioned in the
agreement referred to by the plaintiffs. The oral evidence discloses that the
original agreement is with the Sarfekhas authorities to produce the records.
The original agreement is with the sarfekhas. It was the plaintiff that
summoned the sarfekhas authorities to produce the records. The original
agreement available with the sarfekhas has not been produced. No adverse
inference can therefore, be drawn against the Municipality that it has no title
to the property or that it recognized the title of sarfekhas to the property.
We have earlier stated that the plaintiff did not claim title to the property
through the Sarfekhas and that even the sarfekhas authorities, who claimed title
to the property as forming part of the Kivan Jung, have given up their claim by
about the year 1949."
The Division Bench furthermore
took into consideration the fact that the acquisition took place long time back
and thus some papers might have been lost or removed and the absence thereof in
the file could not throw any suspicion on the authenticity of the vesting which
took place during those years. The Division Bench concluded its judgment,
stating:
16 "We have earlier given
reasons that it was the corporation that was in possession of the property and
not Devi Singh was making efforts to come into possession of the property by
making false assertion that he was the owner of the property and that his
property was extending upto the police station challenging the east. The
circumstances remains to that though he filed the original sale deed Ex.P.12,
he has not produced the plan attached thereto in this suit. We are not
satisfied that the said plan continued to remain in possession of the Serfekhas
authorities before whom he would appear to have produced it. When he is having
the custody of Ex.P.12 original, the normal presumption is that he would also
be having custody of the plan which formed part of Ex.P.12. The suit for
injunction was filed by Devi Singh shortly after the proceedings under Sec.107
Cr.P.C. initiated against him ended in his favour and it is common ground that
ever since he filed the suit, interim injunction issued in his favour has been
in force. Any act of possession after the issue of the said interim injunction
will not assist Devi Singh's claim to have been in possession of the property
on the date of the suit in any manner.
The plaintiffs have not therefore
established their title to the property. They have not also proved their possession
in the suit property on the date of the suit. The order passed by the Sarfekhas
Authorities are invalid and do not bind the Corporation in any manner. It is
true that the corporation has proved effectively possession of the property
only from the year 1946 but they have established their title to the property.
The plaintiffs who have no title to the property cannot get any injunction
against the Corporation who is the real owner of the property even if it were
to be assumed that the plaintiffs were in possession of the property on the
date of the suit. The acts of possession indulged in by the plaintiffs are 17
fugitive in character and do not establish their possession in any
manner."
17. The learned trial judge in its
judgment and order dated 24.4.1998 in O.S. No. 573 of 1991 referred to in
extenso the earlier judgment of the High Court to arrive at the following
finding:
"After discussing the various
aspects it was held that in 1915 Dhan Singh did not make other claim except in
respect of 1250 sq. yds. relating to the lands bearing Nos.5943 and 5944 in
respect of compensation. This will probablise that if really he was owning any
greater extent of property, he could have claimed compensation for the larger
extent of property as well. The absence of the such a claim is a strong
probability that he was not owning any lands in excess of 1250 sq. yds. for
which compensation was provided and paid to him. Though Dhan Singh made a claim
for some plot bearing No.5945/D adjacent to the slaughter house; he made an
admission that the said plot was also within the prohibited area. It was
further held that the fact remains even if Dhan Singh had any title to the plot
bearing No.5945/D it became extent (sic) when it was acquired by City
Improvement Board in about the year 1920. Dhan Singh made claim stating that
the extent involved in his property Nos.5943 and 5944 was 2750 sq.
yds. and not 1250 sq.yds. and that
the compensation court was not correct in deducting the amounts towards
nuzul."
18 It furthermore held that the
property covered by Exh. A-8 was only 1250 square yards and nothing more and
the claim of the plaintiffs in the said suits with regard to 5410 square yards
appeared to be highly improbable. It was furthermore stated:
"If Dhan Singh who was claiming
under Ex.A8 previously only 2750 sq.yds. in property Nos.5943 and 5944 as
against 1250 sq.yds. fixed by the compensation court and when the claim of 2750
sq. yards was disallowed confining his right to 1250 sq. yds. was acquired by
City Improvement Board and compensation was paid to Devi Singh, the father of
the plaintiff's is not in dispute."
The learned trial court
furthermore considered the evidence of the plaintiff who examined himself as
PW.2 stating:
"According to him suit
property is 5410 sq. yds.
out of which the black colour area
admeasures 2790 sq. yards which is in his possession and the green colour
portion was forcibly occupied by the Municipality. The red colour portion also
belongs to him. He admitted about previous litigation and the decree passed in
O.S. 7/59 and the same being set aside under Ex.B-1 by the High Court.
According to him Nizam Government
took away his property from his ancestrals somewhere in 1940's subsequently the
property was released. It is pertinent to mention that he did not file any
documents."
19
18. Noticing that neither the
original plaintiff nor the respondents who were substituted in place of Devi
Singh had not amended the plaint in the previous suit, it was held that the
evidence on either side is very meagre in the said suit. The said suit was held
to be barred under Order II Rule 2 stating that the plaintiff ought to have
prayed for the declaration in the previous suit itself.
19. A distinction must be borne in
mind between diverse powers of the appellate court to pass an order of remand.
The scope of remand in terms of Order XLI Rule 23 is extremely limited. The
suit was not decided on a preliminary issue. Order XLI Rule 23 was therefore
not available. On what basis, the secondary evidence was allowed to be led is
not clear. The High Court did not set aside the orders refusing to adduce
secondary evidence.
20. Order XLI rule 23A of the Code
of Civil Procedure is also not attracted. The High Court had not arrived at a
finding that a re-trial was necessary. The High Court again has not arrived at
a finding that the decree is liable to be reversed. No case has been made out
for invoking the jurisdiction of the Court under Order XLI Rule 23 of the Code.
20 An order of remand cannot be
passed on ipse dixit of the court. The provisions of Order II Rule 2 of the
Code of Civil Procedure as also Section 11 thereof could be invoked, provided
of course the conditions precedent therefor were satisfied. We may not have to
deal with the legal position obtaining in this behalf as the question has
recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust)
v. Mahant Ram Niwas &
anr.(Civil Appeal No. 3495 of
2008) disposed of on 12.5.2008.
21. We are, therefore, of the
opinion that the impugned judgment cannot be sustained. It is set aside
accordingly and the matter is remanded back to the High Court for consideration
of the appeal on merits. The appeal is allowed with the aforesaid directions.
In the facts and circumstances of
the case, however, there shall be no order as to costs.
.....................................J.
[S.B. Sinha]
.....................................J.
[Lokeshwar Singh Panta] 21 New
Delhi;
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