CIVIL LAWS

Specific Relief Act, 1963 : Section 4l(j) Injunction-Grant of-Whether discretionary and equitable relief-Plaintiff must have personal interest-Right not in existence cannot be protected by injunction-Injunction cannot be is-sued against true owner or in favour of a tres-passer. Certain lands were acquired for the railways. The award given by the Collector became final and the possession of the land was also handed over to the railways. As a result of these acquisition proceedings the original land owners were divested of their title and had interest to alienate the land acquired. However the petitioners filed a suit for declaration that they were successors in title to certain lands of defendants Nos. 3 and 4 and for injunction not to interfere with their possession, Their case was that defendants No. 3 and 4 purchased the land from the original land owners under a sale-deed dated August 21,1966 and that on January 21, 1973 the said defendants entered into an agreement of sale with the petitioners and also handed over the possession of the land to them. The Trial Court held that the petitioners were in possession of land but a Single judge of the High Court dismissed the petitioners' suit The Division Bench of the High Court also dismissed the petitioner's appeal holding that possession was handed over to the railways and the railways had been in possession of the land. Against the decision of the High Court, Special Leave Petition was filed in this Court.

posted 2 Feb 2012, 23:44 by advocatemmmohan Mandagaddi murali mohan

Dismissing the petition, this court

HELD : 1. Issuance of an order of injunction is absolutely a discre-tionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunc-tion is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence, cannot be protected by injunction,
[120-F-G]

2. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property . Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner under these circumstances, there is no ground warranting interference with the judgments and decrees of the Court below.
[120-G-H; 121-A-B]

CIVIL APPELLATE JURISDICTION : Special Leave Petition No. 10792 of 1994.
, 1994( 2  )Suppl.SCR 117, 1994( 5  )SCC 547, 1994( 3  )SCALE562 , 1994( 6  )JT 585

PETITIONER:
PREMJI RATANSEY

Vs.

RESPONDENT:
UNION OF INDIA

DATE OF JUDGMENT22/07/1994

BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
VENKATACHALA N. (J)

CITATION:
 1994 SCC  (5) 547  JT 1994 (6) 585
 1994 SCALE  (3)562


ACT:



HEADNOTE:



JUDGMENT:
 ORDER
1. The unsuccessful plaintiffs in both the courts below are
the  petitioners,  Their  suit for  declaration  that the
appellants  are successors  in title  to  certain  land  of
Defendants 3 and 4, namely, Sule and Thakkar, who were said
to be its owners, which formed a portion of land admeasuring
33  acres 2 guntas in Survey No. 103-A/pt. at Kirol and for
injunction not to interfere with their possession etc., was
dismissed by a Single Judge sitting on the original side  of
the  Bombay High Court. A Division Bench of the same  Court
dismissed  the Appeal No. 557 of 1992 of the  petitioner  by
the impugned judgment and decree dated 31-1-1994.  The facts
not in dispute are that a notification under Section 4(1) of
the  Land Acquisition Act, 1894, was initially published  on
4-5-1959  proposing  acquisition of 48.26 acres of  land  in
Survey No. 103-A invoking the urgency clause under  Section
17.   The enquiry under Section 5-A was dispensed  with.   A
declaration  under  Section  6 was  followed. Thereafter,
another notification was issued on 28-5-1959 under  Section
4(1)  of the Act acquiring 13 acres and 33 guntas in  Survey
No. 228 situated at Kurla.  When possession was handed over
to the railways on 24-5-1960, it was found that they had got
possession of an excess of 12 acres 12 guntas in Survey No.
103-A. Therefore, third notification under Section 4(1) was
published on 13-7-1965 and the enquiry under Section 5-A was
conducted and Section 6 declaration was made.  For the lands
covered in the first two notifications, award was  made  on
30-7-1966   and  for  the  land  covered   by the   third
notification, an award was made on 26-5-1968.  Thus,
549
he  award had become final.  As stated earlier,  possession
was already taken and was handed over to the railways on 24-
2-1960.  Consequently, the  original owner  Mrs  Maibai  @
Jamnabai had been divested of her title and had no  interest
to  alienate  part  of land which  3rd and  4th  defendants
claimed to have purchased from her under a sale deed  dated
21-8-1966,  in that it had, by then, stood  vested  in the
railways free of all encumbrances.  Thereby, the  purchasers
got  under the sale deed no right, title or interest in the
land which had gone to the Central Government by then.
2.  It is the case of the petitioners that Defendants 3 and
4,  namely, Sule and Thakkar, entered into an  agreement  of
sale with the petitioners on 21-1-1973 coupled with a  power
of attorney etc. and delivered possession of ,he land to the
extent of  12 acres and 12  guntas. As  stated  earlier,
possession  was already taken over by the  railways.   After
the  award was made, Defendants 3 and 4 made an application
before the Land Acquisition Officer claiming  proportionate
compensation  for the lands said to have been  purchased  by
them.  The Land Acquisition Officer had not accepted it but
made  a reference to the Civil Court under Section  30.  In
the  reference made to the High Court under Section 30, the
Defendants  3 and 4 remained ex parte and an award was made
by  the High  Court declaring that Maibai  @  Jamnabai was
entitled  to the entire compensation.  That award  also had
become final. Though the petitioners subsequently gave  up
the  relief  of declaration that  the plaintiffs  are the
successors  in title  to the lands purchased  by  Sule and
Thakkar in  respect  of 33 acres and 2 guntas,  claimed  a
declaration  that  the acquisition of land of  60  acres  38
guntas pursuant to the award dated 13-7-1966 and  26-5-1968
as illegal, null and void and of no effect and injunction.
3.  It is true that the trial Judge recorded a finding that
the  appellants were in possession of the land and  directed
them  to  give possession but ultimately  the  Single  Judge
dismissed  the suit.  On appeal, the Division Bench  found
that  possession  was handed over to the  railways  and the
railways  had  been in possession of the land. Shri  Ashok
Desai, learned Senior Counsel for the petitioners, contended
that  there  was a dispute as to the identification  of the
land. The petitioners' land was not the subject-matter  of
the acquisition and that, therefore, when the learned  trial
Judge  had  found  that possession of the  land  was with
petitioners,  the  Division  Bench had committed  error  in
holding  that the  petitioners  were not   entitled  to
declaration  or injunction.  In view of the finding  by the
trial court that the petitioners were in possession,  unless
they  are lawfully dispossessed, no interference with  their
possession was called for and, therefore, they are  entitled
to  the injunction sought for. We find no substance in the
contention.
4.  It is seen that in a suit as  originally  framed, they
sought for a declaration that the award made in respect  of
the  land  was void,  inoperative and does  not  bind the
petitioners.   But that relief had been given up.   Thereby,
the  title  of the  land of  the  railways  have  not been
questioned.   With  the award made under  Section  30, the
vendors of the petitioners got themselves bound by the above
award under Section 12 of the Act.  It is also seen that the
two
550
awards had become final and possession was delivered to the
railways by the Land Acquisition Officer on 24-2-1960. Thus
Defendants 3 and 4 had no ghost of right, title or  interest
in  the lands acquired from the original owner Maibai. The
said  sale  is a void sale and the  petitioners,  therefore,
cannot derive any interest under the agreement of  sale  to
resist the  possession of the lawful owner  nor  could the
declaration  sought for be given.  The question,  therefore,
is  whether  an injunction can be issued  against  the true
owner. Issuance of an order of injunction is absolutely  a
discretionary  and  equitable  relief. In a  given  set  of
facts, injunction may be given to protect the possession  of
the  owner  or person in lawful  possession. It  is not
mandatory that for mere asking such relief should be  given.
Injunction  is a personal right under Section 41(j)  of the
Specific Relief Act, 1963; the plaintiff must have  personal
interest in the matter. The interest of right not shown  to
be in existence, cannot be protected by injunction.
5.  It is equally settled law that injunction would  not  be
issued against tile true owner. Therefore, the courts below
have   rightly rejected  the  relief  of  declaration and
injunction in favour of the petitioners who have no interest
in   the  property.   Even  assuming  that  they   had any
possession,  their possession is wholly unlawful  possession
of a trespasser and an injunction cannot be issued in favour
of a trespasser or a person who gained unlawful possession,
as against the owner.  Pretext of dispute of identity of the
land  should  not be an excuse to claim injunction  against
true owner.
6.  Under  these circumstances, we do not  find any  ground
warranting  interference with the judgments and decrees  of
the  courts below.  The special leave petition is  dismissed
with exemplary costs of Rs 30,000 which shall be payable  to
Supreme Court Legal Aid Committee.  In case the petitioners
do  not pay the costs within two months, the  Supreme  Court
Legal  Aid  Committee could proceed to recover the  same  by
resorting to execution.
  -----------------------------------
552



Code of Civil Procedure, 1908-Order 39-Injunction-Suit for injunction by plaintiff claiming ownership and possession of suit land-Court granted injunction on the basis of possession without considering whether plaintiff had title to the suit land-Cannot be granted without proof of title. Specific Relief Act, 1963-Section 6-Applicability of-Object of-Provides speedy remedy to a person ousted from possession without due process of law-Previous possession and dispossession must be pleaded-Not applicable to suit for injunction based on title and possession. Mutation Entry-Cannot be a source of title. The respondent filed a suit for injunction against the appellant claiming ownership and possession of the suit land. The respondent failed to produce any sale deed to establish his title over the suit land, but instead relied on certain revenue entries. The suit was dismissed by the trial court holding that the respondent had failed to prove that he was the owner of the suit land and was in possession thereof. On appeal, the first appellate court reversed the finding of the Trial court and decreed the suit holding that the material placed on record showed the possession of the respondent over the suit land. The appellate court did not examine whether the respondent had any title over the suit land or not, while allowing the appeal on the basis of its finding in respect of possession of the respondent over the suit land. The appellate court held that the respondent's title to the land had been admitted by the appellants. The second appeal of the appellant was dismissed by the High Court in limine. The review petition filed by the appellant was also dismissed by the High Court. Hence, the present appeal. Before, this Court, the respondent, apart from other arguments, urged that the suit filed by the respondent can be considered as a suit for possession and dispossession under Section 6 of the Specific Relief Act, 1963.

posted 2 Feb 2012, 23:40 by advocatemmmohan Mandagaddi murali mohan


Allowing the appeal, this Court

HELD : 1. The first appellate court without considering the question
whether the plaintiff-respondent had proved his title to the property in
dispute proceeded to examine whether the said respondent was in possession
thereof. In a suit for ejectment based on title it was incumbent on the
part of the first appellate court first to record a finding on the claim on
title to the suit land made on behalf of the respondent. The first
appellate court committed a substantial error of law by decreeing the suit
of the respondent without recording a finding in respect of his claim of
title over the suit land. [17-G, C]

Chhote Khan v. Mal Khan, AIR (1954) SC 575, Durga Singh v. Tholu, AIR
(1963) SC 361 and Vishwa Vijay v. Fakhrul Hassan, AIR (1976) SC 1485,
distinguished.

2. The first appellate court never inquired or investigated that question
which was at issue saying that the title of the plaintiff-respondent was
admitted by the appellant. This was a serious error of record. The title
and possession of the respondent had always been disputed by the appellant
from the stage of the written statement. [17-H, 18-A]

3.1. Section 6 of the Specific Relief Act provides a summary remedy for a
person who, being in possession immovable property, is ousted therefrom. In
such circumstances, it is possible that the person so dispossessed may
pursue summary and speedy remedy through the medium of the Civil Court for
restoration of possession. Disputed question of title are to be decided by
due process of law but the peaceful possession is to be protected from a
trespasser under Section 6 of the Specific Relief Act without regard to the
question of the origin of the possession. Such suit can be entertained and
decreed, only where both the plaintiff and the defendant have no title to
the suit land, but as the plaintiff proves his prior possession, because of
that he is entitled to a decree for possession against the defendant who
dispossessed him. The plaint of such suit must aver only previous
possession and dispossession by the defendant, otherwise than in due course
of law. [15-G-H, 16-A]

Perry v. Clissold, (1907) AC 73 and Nair Service Society v. K.C. Alexander,
AIR (1968) SC 1165, referred to.

3.2. It is difficult to appreciate as to how the principle of Section 6 of
the Specific Relief Act, 1963 can be applied in the facts and circumstances
of the present case. The respondent, who was the plaintiff, never alleged
that he had been dispossessed by the appellant-Municipal Committee. On the
other hand, he claimed to be the owner of the land in question and asserted
that he was in possession over the same. [16-G]

4. An order of mutation in the name of the respondent in the revenue
records cannot be a source of title. [14-G]

Nirmal Singh v. Lal Rudra Pratab, (1926) PC 100, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 290 of 1991.


1995 AIR 1377, 1995( 3  )SCR   9, 1995( 3  )SCC 426, 1995( 2  )SCALE512 , 1995( 3  )JT 281

PETITIONER:
NAGAR PALIKA, JIND.

Vs.

RESPONDENT:
JAGAT SINGH, ADVOCATE.

DATE OF JUDGMENT28/03/1995

BENCH:
SINGH N.P. (J)
BENCH:
SINGH N.P. (J)
VERMA, JAGDISH SARAN (J)

CITATION:
 1995 AIR 1377  1995 SCC  (3) 426
 JT 1995 (3)   281  1995 SCALE  (2)512


ACT:



HEADNOTE:



JUDGMENT:
N.P. SINGH, J.:
1.   The  Municipal Committee, Jind, has filed this  appeal
for  setting aside the judgment of the Additional  District
Judge  (hereinafter  referred to as 'the Court of  Appeal')
decreeing the suit filed on behalf of the respondent,  which
had  been dismissed by the Trial Court. The  Second  Appeal
filed on behalf of the appellant, before the High Court was
dismissed  in  limine. Thereafter, Special  Leave  Petition
(Civil) No.562 of 1987 was filed before this  Court,  which
was  permitted to be withdrawn, to enable the  appellant  to
file  a Review Petition before the High Court. That  Review
Petition  was  dismissed by the High Court  saying  that  no
ground for review had been made out.
2.   The   respondent  filed  the  suit in   question for
injunction  restraining the appellant from interfering with
the  possession of respondent over 5 kanals of land, com-
prised in  Khewat No. 134, Khatoni No. 155,  rectangle No.
173,  Killa No.27/1. The respondent claimed to be the  owner
of  the said land and asserted that he was  in  possession
thereof.
3.   The  claim of the respondent was resisted on behalf  of
Municipal Committee saying that the said respondent was nei-
ther  the  owner  of  the land in question  nor he  was  in
possession  thereof.   It was asserted that the land  being
"gair-mumkin  johar",  in which the Municipal  Commitee had
already constructed  a park, there was no question  of the
respondent  acquiring any right title interest in the  same.
According  to  the appellant, the said respondent  had made
some  unauthorised  encroachment over the  same because  of
which  a  statutory  notice  was given to  him,  which was
challenged by the said respondent in the suit in question.
4.   The  learned subordinate Judge on consideration of the
materials  on  record  came  to the  conclusion  that the
respondent had failed to prove that he was the owner and was
in  possession of the suit land.  On that finding  the suit
was  dismissed. The Court of Appeal, set-aside the  finding
recorded  by  the Trial Court and decreed the  suit  of the
respondent,  saying  that the tide of Prem  Singh,  who was
alleged to be the predecessor in interest of the respondent,
had  been established. It was also held that the  appellant
was  in possession of the suit property.  The Second  Appeal
filed  on  behalf of the  appellant-Municipal  Committee  as
already mentioned above was dismissed. The Review  Petition
filed to recall the order of dismissal of the Second  Appeal
was also dismissed in limine.
5.   It may be mentioned at the out-set that throughout the
suit  has been treated to be a suit based on title  and for
confirmation of possession.  The learned counsel,  appearing
for the appellant-Municipal Committee, pointed out that the
Court of Appeal while decreeing the suit of the respondent,
committed  a serious error of law when before examining the
question as to whether respondent had been able to establish
his title over the suit land, it proceeded to consider only
the materials on record in support of the claim of the pos-
session made on behalf of the respondent.  The- Trial  Court
had examined the claim
284
of the title made on behalf of the respondent in detail and
had  recorded a finding that the said respondent had  failed
to prove his title to the suit. Even the sale deed  through
which the said respondent claimed to have purchased the land
in  dispute  had  not been produced before  the Court.  An
objection was taken on behalf of the appellant against that
part  of the judgment of the Court of Appeal, where  it has
been  stated that although the respondent had  not  produced
the sale deed through which he had acquired the title to the
land in question but that was of no consequence as that fact
had  been  admitted  by the Municipal  Committee.   In this
connection,  reference was made to  the  written  statement
filed  on  behalf of the Municipal Committee  disputing the
title  and possession of the respondent.  Our attention was
drawn to the plaint, filed on behalf of the respondent, and
the written statement filed on behalf of the appellant. The
respondent  has simply stated in respect of his  title and
possession in paragraph 1 of the plaint:
     "That plaintiff is owner and in possession  of
     the property details of which are given in the
     head note of the plaint.
The head note of the plaint says:
     "Suit for permanent injunction restraining the
     defendant from taking forcible possession  of
     the  land comprised in khewat  No.113  Khatoni
     No.155 Rect. No.173 Killa No.27/1 measuring  5
     kanals as pr Jamabandi 1974-75 situated in the
   revenue estate of Jind and further restrainin
g
     the  defendant  from  interferring  into pos-
     session of   the   plaintiff   and   further
     restraining  the defendant from raising any
     construction on it".
No  details  have been stated in the plaint as to  how the
respondent became the owner of the land in question and when
he came in possession thereof. On reading paragraph 1 along
with  'head note' aforesaid, it appears that the  claim for
title  has  been made on behalf of the respondent  only  on
basis  of  jamabandhi for the year 1974-75  of the  revenue
estate of  Jind.  Inspite of our repeated quarries  to the
counsel appearing  for the respondent, no  explanation was
furnished  on behalf of the respondent, as to how in a suit
based  on title no details in respect of the acquisition  of
the  title  were  stated  in the  plaint.   In the  written
statement  filed  on behalf of the  Municipal  Committee  in
respect of the assertion made in paragraph 1 of the  plaint,
it has been said:
     "That para 1 of the plaint is and denied. The
     plaintiff is  not in possession of  the suit
     property. In fact suit property is  Gair-Mum-
     Kin Johar.  Nagarpalika has converted it into
     park.   Suit property is of  Nagarpatika,Jind
     and the plaintiff has no concern with the suit
     property".
6.   The  counsel  appearing for the respondent,  could not
explain as to how in face of such clear denial of the  title
and possession of the respondent by the Municipal  Committee
in  its written statement, the Court of Appeal proceeded  on
the assumption that the acquisition of the title through the
sale deed, which had not been produced before the court, was
an  admitted fact in the case and had never been  questioned
by the Municipal Committee.  According to us, when the Court
of Appeal proceeded to consider the evidence relating to the
possession  of the  respondent after the  alleged  date  of
purchase by him through the sale deed in question, which was
never  produced before the  Court,  the  Court  of  Appeal
committed  a grave error.  It never applied its mind to the
main is-
285
sue,  in a suit based on title, whether the  respondent had
proved his  title  to the suit  property.   It  cannot  be
disputed  that onus to prove his title to the property  in
question  was on the said respondent.  It  further  appears,
that  on behalf of the appellant, it was pointed out  before
the  Court of Appeal that the said respondent  was  claiming
the share of one of the co-sharers in the patti, but no co-
sharer can  convey  title  to a  specific  part  of  joint
property.   Having omitted to consider the basic  issues  in
the case, the Court of Appeal proceeded only to consider the
revenue records from the year 1974-75 like  jamabandhi for
the year 1974-75 and Khasra Gindwari pertaining to the year
1977-79.
7.   The  claim of the respondent was that he had  purchased
the  suit  land through  a sale  deed in  the year  1970.
Thereafter  he filed  a suit  on  17.4.1971  for  permanent
injunction against the appellant.  'Mat suit was  ultimately
withdrawn on 7.11.197 with permission to file a fresh  suit.
Ultimately,  the suit with which we are concerned was  filed
on 23.8.1979. In this background any reliance on entries  in
the  revenue records after 1971 was of not much consequence
and value, because the respondent had already instituted the
earlier suit which was then pending.  In any case, an  order
of  mutation  in the name of the respondent in the  revenue
records can  not  be ;a source of title.  In  the  case  of
Nirman Singh v. Lal Rudra Partab, 1926 PC 100, in respect of
mutation of names in revenue records, it was said:
     "They  are  nothing of the kind  as  has been
     pointed out times immunerable by the  Judicial
     Committee.   They are much more in the  nature
     of fiscal inquiries instituted in the interest
     of  the State for the purpose of ascertaining
     which   of  the  several claimants  for the
     occupation   of certain  denominations  of
     immovable property may be put into  occupation
     of it with greater confidence that the revenue
     for it will be paid.
     It is little less than a travesty of  judicial
     proceeding   to regard the two orders  of the
     Extra    Commissioner    of    Bahraich and
     Mr.M.L.Ferrar, Deputy Commissioner,  as
     judicial determinations expelling   proprio
     vigore  any  individual from  any proprietary
     right  or interest  he  claim  in   immovable
     property".
8.   Faced with this situation, the learned counsel for the
respondent,  took  a stand that even if the  respondent had
failed to prove his title, the suit filed on behalf of the
respondent, should be treated as a suit based on  possession
and  dispossession  in terms of Section 6  of  the  Specific
Relief Act,  1963.   Once  a suit has been  filed  by the
respondent claiming to be the owner and being in  possession
of  the land in question, how that suit can be treated as  a
suit  based  on possession and dispossession  Section  6  of
without reference to title? the Specific Relief  Act, 1963
says that if any person is dispossessed without his  consent
of  immovable property otherwise than in due course of law,
he or any person claiming through him may, by suit,  recover
possession thereof, notwithstanding any other title that may
be  set up  in such suit.  Section  6 is  a  corresponding
provision  to  Section 9 of the Specific Relief Act,  1877,
Section 9 of the earlier Act, which has been retained with
some  changes in the Specific Relief Act, 1963 is  based  on
the principle that even a trespasser is entitled to  protect
his  possession except against a true owner and purports  to
protect a  person  in Possession  from being dispossessed
except in due course of law.  Section 6
286
provides  a  summary  remedy for a  person  who,  being,  in
possession  of immovable property is ousted  therefrom.  In
such  circumstances,  it  is possible  that  the  person  so
dispossessed  may pursue summary and speedy  remedy  through
the medium of the Civil Court for restoration of possession.
It  has been said that this Section is a  reproduction  of
provision of the Roman Law under which by an interdictum  de
vi  a  person wrongfully dispossessed  from  property  could
recover it by proving previous possession, without being re-
quired to prove his title.  Disputed questions of title are
to  be decided by  due process of  law  but  the  peaceful
possession  is to  be protected  from a  trespasser  under
Section 6 of the Act without regard to the question of the
origin of the possession.  Such suit can be entertained and
decreed only where both the plaintiff and the defendant have
no  title to the suit land, but as the plaintiff proves his
prior possession because of that he is entitled to a  decree
for  possession against the defendant who  has dispossessed
him.   The  plaint of such a suit must aver  only  previous
possession  and dispossession by the defendant, other wise
than  in  due  course  of law. In  the case  of  Perry  v.
Clissold, 1907 AC 73, it was said: -
     "It  cannot  be  disputed that  a  person  in
     possession of land in the assumed character of
     owner  and exercising peaceably  the  ordinary
     rights of ownership has a perfectly good title
     against all the world but the rightful  owner.
     And  if  the  rightful  owner  does  not come
     forward and assert his title by the process of
     law  within  the period prescribed  by the
     provisions   of  the  statute  of  Limitation
     applicable to the case, his right is for ever
     extinguished and the possessory owner acquires
     an absolute title.  "
The aforesaid view was approved by this Court in the case of
Nair  Service Society v, K.C. Alexander, AIR 1968 SC 1165  =
(1968) 3 SCR 163.  This Court said in connection  with the
plaintiff of that case that he being in peaceful  possession
was  entitled  to remain in possession and  only  the  State
could evict him.  It was further said that the action of the
Society was a violent invasion over the possession  of the
plaintiff.  It was pointed out:-
     "...the  law as it stands in India the  plain-
     tiff could maintain a possessor suit under the
     provisions of the Specific Relief Act in which
     title  would  be immaterial  or a  suit for
     possession  within  12  years  in which the
     question of title could be raised."
9.   We fail  to  appreciate as to  how  the  principle  of
Section 6 of Specific Relief Act, 1963 can be applied in the
facts and   circumstances  of the  present case. The
respondent, who was the plaintiff, never alleged that he had
been dispossessed by the appellant-Municipal Committee.  On
the  other hand, he claimed to be the owner of the  land  in
question  and  asserted that he was in possession  over the
same. He sought for permanent injunction  restraining the
appellant  from interfering with his possession.   Both the
parties led evidences in support of their respective  claims
including on the question of title.
10.It  was pointed out, on behalf of the appellant, that  in
the  records,  land including the portion which is  in the
dispute had been recorded as gair mumlkin johar which  means
a public pond. The Trial Court referred to all documentary
evidences in support of the finding that the respondent was
attempting to encroach upon a portion of a public land, over
which he could
287
not  have acquired any title.  The Court of Appeal,  instead
of  finding  from  the materials  on  record  whether the
respondent as plaintiff has proved his title and  subsisting
settled  possession  in  respect  of  the  disputed   land,
proceeded to record a finding on the claim of the possession
of  the respondent, primarily on basis of the entry  in the
revenue records  made in the year  1974-75  and  thereafter
during the pendency of the first suit filed on behalf of the
respondent.   The  Court of Appeal committed  a substantial
error of law by decreeing the suit of the respondent without
recording  a finding in respect of his claim of title over
the suit land. We are of the view that the High Court could
not have dismissed the Second Appeal filed on behalf of the
appellant-Municipal Committee in limine.
11.On  behalf of the respondent, reference was made  to the
case  of Chhote Khan v. Mal Khan, AIR 1954 SC 575, where  it
was  said  by this Court that entries in  Jamabandhies fall
within the purview of the record of rights under Section  31
of  the Punjab Land  Revenue Act and as  such are  to  be
presumed   to  be,  true  until the  contrary is   proved.
Reference was also made to the case of Durga Singh v. Tholu,
AIR 1963 SC 361, where it was said that in an ejectment suit
a finding by the District Judge on the question whether the
defendants were the tenants of the plaintiff arrived at,  on
the  consideration  of all evidence, oral  and documentary,
adduced by the parties, was a finding of fact and could not
have  been  set aside in Second Appeal by  the High  Court.
Reliance  was  also placed on the case of  Vishwa  Vijay  v.
Fakhrul Hassan, AIR 1976 SC 1485, in which this Court held
that  the  finding o lower appellate court on  the  question
whether entries in revenue record were genuine or fraudulent
was a question of fact and could not be set aside in  Second
Appeal.  It has already been pointed out that the Court  of
Appeal without  considering  the  question   whether the
plaintiff-respondent had proved his title to the property in
dispute proceeded to examine whether the said respondent was
in possession thereof In a suit for ejectment based on title
it  was incumbent on part of the Court of Appeal  first  to
record a finding on the claim of title to the suit land made
on  behalf  of the respondent. The Court  of  Appeal  never
inquired  or investigated that question which was  at  issue
saying that  the  title  of  the  plaintiff-respondent was
admitted  by  the appellant.  This was a  serious  error  of
record.  The  title and possession of the  respondent had
always been disputed by the appellant from the stage of the
written  statement.   In  this background,  suit  of the
respondent  could not have been decreed merely on  basis  of
entries in the revenue records during the pendency  of the
earlier suit  filed in the year 1971. As  such  the  cases
relied upon on behalf of the respondent have no bearing  on
the facts of the present appeal.  A substantial question  of
law  was involved in the Second Appeal presented before the
High  Court against the judgment of the Court of Appeal and
the  High Court ought to have interfered and  set-aside the
judgment of the Court of Appeal.
12.  Accordingly, the appeal is allowed. The judgment of the
Court of Appeal and the orders passed by the High Court are
set  aside.   The judgment of the Trial Court  is  restored.
There is no question of injuncting the appellant from taking
further steps in connection with the suit land over  which
the respondent had neither title
288
nor  he was in possession thereof However, in the facts and
circumstances  of the case, there shall be no orders  as  to
cost.



Specific Relief Act, 1963 : Section 38. Suit filed by appellant restraining respondent from interfering with his possession and enjoyment of land-Respondent pleaded that his predecessor in title had purchased the land and that no perpetual injunction could be granted against him, he being a true owner-Trial Court and Appellate Court found that appellant was in possession and enjoyment of disputed property and accordingly granted perpetual injunction-High Court set aside the decrees of Courts below-Appeal-

posted 2 Feb 2012, 23:32 by advocatemmmohan Mandagaddi murali mohan

Held, in the sale deed executed by the respondent's vendor there was a
clear recital, which binds the respondent, that the appellant was in
possession of the disputed property-It was specifically stated that it
would be open to the respondent to obtain possession from the appellant, if
he could-Admittedly, the respondent had not filed any suit or possession of
the property-On the other hand, the appellant filed the suit for perpetual
injunction-Therefore, the trial Court and the appellate Court have rightly
granted the perpetual injunction-The High Court was not right in reversing
that finding.

CIVIL APPELLATE JURISDICTION : Civil Appeal No- 249 of 1981.

From the Judgment and Order dated 13.11.80 of the Allahabad High Court in
S.A. No. 1252 of 1973.

Pramod Swarup, for the Appellants.

R.D, Upadhyay and G.G, Upadhyay for the Respondents.

, 1996( 9  )Suppl.SCR 266, 1997( 3  )SCC 503, 1996( 9  )SCALE252 , 1996Suppl.JT 326

CASE NO.:
Appeal (civil)  249 of 1981

PETITIONER:
WALTER LOUIS FRANKLIN (DEAD) THROUGH LRS.

RESPONDENT:
GEORGE SINGH (DEAD) THROUGH LRS.

DATE OF JUDGMENT: 27/11/1996

BENCH:
K. RAMASWAMY & G.T. NANAVATI

JUDGMENT:
JUDGMENT

1996 Supp.(9) SCR 266

The following Order of the Court was delivered :

This appeal by special leave arises from the judgment of the learned single
Judge of the Allahabad High Court, made in Second Appeal No. 1252/73 dated
November 30, 1980. The appellant had filed the suit for perpetual
injunction to restrain the respondent from interfering with his possession
and enjoyment of 10 feet/65 feet land towards east of his house No. 15/45
situated in Kanpur, According to him, he purchased the plot No. 15/45 from
the Church under a sale deed in year 1937 and ever since has been in
possession and enjoyment of his property. He had enclosed the disputed
property by putting up a wall using it for poultry farming and during
summer for sleep in the open area. It is also his case that he had paid
najrana to the Church and became its owner. The plea of payment of najrana
and of becoming owner was given up. The respondent has pleaded that the
respondent's predecessor in title by name S.W. Lawrence had purchased plot
No. 15/44 from the church in 1965, and as owner of the property, was in
enjoyment of the property. He later on claimed to have purchased plot No.
15/43. He contended that no perpetual injunction could be granted against
him, he being a true owner. Both the trial Court and the appellate Court
found that the appellant was in possession of the disputed property and in
enjoyment thereof; they also held that he per-fected title by prescription.
The High Court has set aside the judgments and decrees of the courts below
on the finding that the appellant had not proved his adverse possession as
against the     respondent. Mere continuous possession does not constitute
adverse possession. Therefore, the courts below are not right in finding
that he was in adverse possession.

It is not necessary to go into that question of adverse possession for the
reason that the suit itself was for perpetual injunction. It is also an
admitted position that in the sale deed executed by the respondent's
vender, i.e., S.W. Lawrence, there is a clear recital, which binds the
respondent, that the appellant was in possession of the disputed property.
Though he had purchased it from the Church, he could not take its
possession from the appellant. It was specifically stated that it would be
open to the respondent to obtain possession from the appellant, if he
could. Admittedly, the respondent had not filed any suit for possession of
the property. On the other hand, the appellant filed the suit for perpetual
injunction to restrain the respondent from interfering with his possession
of the property. In view of the admission in the title deed obtained by the
respondent himself and a concurrent finding recorded by the courts below
that the appellant has been in possession, the injunction shall follow.
Under these circumstances, the trial Court and the appellate Court have
rightly granted the perpetual injunction. The High Court is, therefore, not
right in reversing that finding.

The appeal is accordingly allowed. The judgment and decree of the High
Court stand set aside and that of the trial Court and the appellate Court
confirmed. No costs.


Suit: Suit for permanent injunction-Restraining the defendants from interfering in possession of suit property-Duty of Court-Held: Court has to merely decide whether plaintiff is in possession or not and not ownership of title to the suit property-Specific Relief Act, 1963-s.38. Appellants filed a suit for a permanent injunction restraining the respondents from interfering in the possession of the land in dispute as also from interfering in the construction of the boundary wall, on the ground that the disputed land was in their possession since long and utilized by them for different household purpose. Trial Court decreed the suit. Appellate Court set aside the decree holding that the appellants had failed to prove that disputed land was owned by him and that the boundary wall was constructed by them. High Court upheld the same. In appeal to this Court, appellants contended that the suit was only for permanent injunction and not for declaration of ownership and, therefore, lower appellate court had erred in holding that the appellants had failed to prove their title to the disputed land.

posted 2 Feb 2012, 23:19 by advocatemmmohan Mandagaddi murali mohan

Dismissing the appeals, the Court

Held: 1. The lower appellate court should have dismissed the suit filed by the appellants only on the ground that the appellants had failed to prove that they were in possession of the disputed lands. Under Section 38 of the Specific Relief Act, 1963, an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights. [32-B-C]

Mulla's Indian Contract and Specific Relief Acts, 12th Edn., page 2815, relied on.

2. The present suit is only for permanent injunction and, therefore, the lower appellate court should have, on the facts and circumstances of this case, confined itself to its dismissal only on the ground that the appellants have failed to show that they were in possession. This has been done but the declaration that the appellants are not the owners, was not necessary. [32-E]

A.L.V.R. Ct. Veerappa Chettiar v. Arunachalam Chetti and Ors., AIR (1936) Madras 200, referred to.

Dr. R.G. Padia, Sushil Mishra, Tushar Bakshi and Naresh Bakshi for the Appellants.

P.K. Jain for the Respondents.

2007 AIR 900 , 2006(10  )Suppl.SCR28  , , 2006(13  )SCALE328 , 

CASE NO.:
Appeal (civil)  5353 of 2006

PETITIONER:
Ramji Rai & Another

RESPONDENT:
Jagdish Mallah (Dead) through L.Rs.& Another

DATE OF JUDGMENT: 04/12/2006

BENCH:
ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:
J U D G M E N T
(Arising out of SLP (C)No.19322 of 2004)

KAPADIA, J.

Leave granted.
Plaintiff (appellant no.1 herein) instituted Civil Suit 
No.202/77 for permanent injunction in the court of Additional 
Munsif Magistrate-VII, Ballia, against defendants-respondents.  
In the said suit appellant sought permanent injunction 
restraining the defendants from interfering in the possession 
of the land in dispute or from raising boundary wall.  In the 
suit it was alleged that the appellants owned a house from the 
time of their ancestors; that their sehan was towards the 
south of the said house; that the said sehan was in their 
possession even prior to the enactment of U.P. Zamindari 
Abolition and Land Reforms Act, 1950; and that their cattle, 
palanis and troughs etc. existed on the said land which was 
utilized by the appellants for different household purposes.  
The appellants further alleged that the disputed land was 
unbounded and that they had started construction of the 
boundary wall after leaving a small passage between their 
house and the sehan.  The appellants further stated that they 
could not complete the boundary wall as they had to go to 
Bombay where they were employed; that when they came back 
from Bombay to the village they started the work of 
reconstruction which was obstructed by the respondents and, 
therefore, they were compelled to file the suit for a permanent 
injunction restraining the respondents from interfering in the 
possession of the land in dispute as also from interfering in 
the construction of the boundary wall.

The respondents denied the above allegations.  They 
contended that the disputed land belonged to them; that the 
disputed land was used by them for different household 
purposes; that they had been in possession of the land in 
dispute for several years; that there was a passage between 
the house of the appellants and the disputed land in question; 
that the respondents had constructed a wall which could not 
be completed on account of the temporary injunction order 
obtained by the appellants in the present suit.  The 
respondents further contended that the appellants were not 
tilling their agricultural land; that the appellants had let out 
their agricultural land to others and, therefore, there was no 
need of keeping any cattle or agricultural equipment on the 
disputed land as claimed by the appellants.

After framing the issues the trial court decreed the suit.  
The trial court held that the appellants were the owners and 
they were in possession of the disputed land.

Aggrieved by the decree passed by the trial court, the 
respondents herein carried the matter in appeal vide Civil 
Appeal No.84 of 1979 in the court of Additional District Judge, 
Ballia.

By judgment and order dated 21.9.1981, A.D.J. came to 
the conclusion that the plaintiff-appellants had failed to prove 
that the disputed land was his sehan land; that appellant  
no.1 had admitted in his statement that one Raghunath Rai 
was the real brother of his father; that separation had taken 
place in the family between the appellants and Raghunath Rai; 
that prior to the separation, the appellants and Raghunath Rai 
were joint; that at that time they had a common sehan land 
and that the appellants sehan, at the time when the family 
was joint, was towards the east of his house.  The lower 
appellate court further found that both the appellants and the 
respondents were claiming the disputed land as an area 
appurtenant to their building.  However, the lower appellate 
court came to the conclusion that the boundary wall was 
constructed by the respondents and not by the appellants.  
The lower appellate court further found that the appellants 
had no direct access to the land in question; that there was a 
lane running between the appellants' house and the disputed 
land in question; that the appellants were not using the 
disputed land as his sehan from the time of their ancestors; 
that the appellants had admitted that before the partition the 
present house of the appellants was used for keeping cattle 
and that the sehan of the appellants before the partition was 
towards the east and not towards the south of the house as 
claimed by the appellants.  The lower appellate court further 
found that the respondents were using the land in dispute; 
they were keeping their cattle on the disputed land; they were 
keeping fodder and other agricultural equipments on the 
disputed land and in the circumstances the lower appellate 
court came to the conclusion that the suit land was being 
used by the respondents for their household purposes and 
they were in possession of the said land.  In the 
circumstances, the suit was dismissed by the lower appellate 
court.

Aggrieved by the judgment delivered by the lower 
appellate court, the appellants carried the matter in second 
appeal to the High Court.  By the impugned judgment, Second 
Appeal No.2839 of 1981 was dismissed on 2.4.2004.  Hence 
this civil appeal.

As stated above, the lower appellate court vide judgment 
dated 21.9.1981 dismissed the suit filed by the appellants.   
While dismissing the suit the lower appellate court held as 
follows:
"On consideration on the entire materials 
on record, as discussed above, I find that the 
plaintiff has totally failed to establish that the 
disputed land was ever possessed by him as 
his sahan land.  He has also failed to establish 
that the construction upto the time of the filing 
of the suit was got raised by him.  That being 
so, the plaintiff is not proved to be the owner of 
the disputed land.  Therefore, he is not entitled 
to get any relief as claimed.  In the result, the 
appeal succeeds and it must be allowed with 
costs."                                  (underlined by us)



Dr. R.G. Padia, learned senior counsel appearing on 
behalf of the appellants, submitted that the lower appellate 
court and the High Court had erred in holding that the 
appellants were not in possession of the suit land as their 
sehan land.  It was further argued that the boundary wall was 
under construction by the appellants and not by the 
respondents.  Learned counsel submitted that in any event the 
lower appellate court had erred in stating that the appellants 
have failed to prove that they were the owners of the disputed 
land.  It was urged that the present suit was only for 
permanent injunction.  It was urged that the appellants had 
never sought a declaration of ownership and, therefore, lower 
appellate court had erred in holding that the appellants had 
failed to prove their title to the disputed land.

On the finding of facts, we do not wish to interfere.  There 
is no reason to reverse the concurring findings.  However, 
suffice it to state that the lower appellate court should have 
dismissed the suit filed by the appellants only on the ground 
that the appellants had failed to prove that they were in 
possession of the disputed lands.  Under Section 38 of the 
Specific Relief Act, 1963 an injunction restraining disturbance 
of possession will not be granted in favour of the plaintiff who 
is not found to be in possession.  In the case of a permanent 
injunction based on protection of possessory title in which the 
plaintiff alleges that he is in possession, and that his 
possession is being threatened by the defendant, the plaintiff 
is entitled to sue for mere injunction without adding a prayer 
for declaration of his rights [See: Mulla's Indian Contract and 
Specific Relief Acts, 12th Edn., page 2815]


In the case of A.L.V.R. Ct. Veerappa Chettiar v. 
Arunachalam Chetti and others . AIR 1936 Madras 200, it 
has been held that mere fact that the question of title may 
have to be gone into in deciding whether an injunction can be 
given or not is not any justification for holding that the suit is 
for a declaration of title and for injunction.  There can be a 
suit only for an injunction.  The present suit is only for 
permanent injunction and, therefore, the lower appellate court 
should have, on the facts and circumstances of this case, 
confined itself to its dismissal only on the ground that the 
appellants have failed to show that they were in possession.  
This has been done but the declaration that the appellants are 
not the owners, was not necessary.  

Subject to above clarification, the appeal stands 
dismissed with no order as to costs.

Arbitration and Conciliation Act, 1996-Section 9: Interim prohibitory/mandatory injunction-Grant of-Held-It is governed by Specific Relief Act, 1963 and well known concepts of balance of convenience, prima facie case, irreparable injury and interim measure appearing to court to be just and convenient-Section 9 was not de hors them-It was more so since a right to approach ordinary court was given without providing a special procedure in that behalf-Approach that at initial stage only existence of arbitration clause need be considered is not justified. One party obtaining mining lease from Government and contracting with another for raising ore on its behalf-Notice by former to latter purporting to terminate contract on ground that contract was violative of Rule 37 of Mineral Concession Rules, 1960 and there was danger of their losing rights as a lessee, and also asking latter to remove their workmen and equipment from site-The latter alleging that pursuant to contract it had mobilized huge resources for extraction of mineral and incurred losses, moved District Court under Section 9 for injunction restraining termination of contract and dispossession from site of mines-District Court refusing it but High Court granting it-Correctness of-Held-Whatever might be reasons for termination of contract, a notice had been issued regarding same and in terms of Order XXXIX Rule 2 of Code of Civil Procedure, 1908, an interim injunction could be granted restraining breach of contract-To that extent, there was a prima facie case-However, it was possible to assess compensation payable to latter if their claim was upheld by arbitrator-Though the former could not enter into a similar transaction with any other entity since that would also entail violation of Rule 37 there was no justification in preventing them from carrying on mining operations by themselves as that would not prejudice the latter who in case of success of their claim were entitled to get compensation for termination of contract-Question of application of Rule 37 left to be decided by arbitrator. Arbitration-Precedent-Other arbitral award-Held-Court is not concerned with what arbitrator who may be appointed will hold in impugned case and not what some other arbitrator held in some other arbitration and some other contract even if it be between same parties-Moreover, Court could not be bound by what an arbitrator might have held in an arbitration proceeding unless it be that the said award operates as a bar between the parties barring either of them from raising a plea in that behalf. O.M.M. obtained a mining lease from the Government and entered into a contract with AS for raising the ore on its behalf. However, a few months thereafter, O.M.M. issued a notice to AS purporting to terminate the contract and asking them to remove their workmen and equipment from the site. According to O.M.M., it had realized that its contract with AS was violative of Rule 37 of the Mineral Concession Rules, 1960 and since there was danger of itself losing its rights as a lessee, the contract had to be terminated. AS alleged that pursuant to contract it had mobilized huge resources for the extraction of the mineral and incurred losses, and moved the local District Court under Section 9 of the of the Arbitration and Conciliation Act, 1996 for an injunction restraining O.M.M. from terminating the contract and dispossessing it from the site of the mines. O.M.M. contested the application but the District Court allowed it. However, the High Court allowed the appeal of O.M.M holding that (i) in view of Section 14(3)(c) of the Specific Relief Act, 1963 the loss, if any, that may be sustained by AS, could be calculated in terms of money; (ii) the question of balance of convenience for grant of injunction was not required to be gone into as it was otherwise not a fit case for grant thereof. However, the High Court also held that prima facie neither Rule 37 ibid nor Section 14(1)(c) of the Act of 1963 were applicable to the facts of the case. Feeling aggrieved thereby, both AS and O.M.M. filed the present cross appeals. AS contended that (i) Section 9 of the Act of 1996 was independent of Order XXXIX of the Code of Civil Procedure and Act of 1963; (ii) by way of an interim measure, the court could pass mandatory or prohibitory order for the preservation of the subject matter of the arbitration agreement; (iii) until the arbitrator decided whether O.M.M. was entitled to terminate the contract and its consequences, the court had not only the power but the duty under Section 9 Act of 1996 to protect their contractual right to mine and lift the ore to the surface on behalf of O.M.M; (iv) if O.M.M. is permitted to enter into agreements with others for the same purpose, it would be unjust as it cancelled the agreement mainly because it was hit by Rule 37 ibid; (v) O.M.M. must be restrained from carrying on any mining operation in the mines concerned pending the arbitral proceedings. O.M.M. contended that (i) since neither Section 9 of the Act of 1996 nor any other of its provisions provided the conditions for grant of interim protection, the provisions of the Code of Civil Procedure and the Act of 1963 cannot be kept out while the court considers the question whether on the facts of a case, any interim protection should be granted; so, the court had necessarily to consider the well known restrictions on the grant of interim orders; (ii) grant of an injunction by way of interim measure to permit AS to carry on the mining operations pending the arbitration proceedings notwithstanding the termination of the contract by O.M.M. was not permissible in law. =2007 AIR 2563, 2007(8 )SCR213 , 2007(7 )SCC125 , 2007(9 )SCALE126 , 2007(9 )JT147 =Disposing of the appeals, the Court HELD 1.1. The grant of an interim prohibitory injunction or an interim mandatory injunction are governed by well known rules and it is difficult to imagine that the legislature while enacting Section 9 of the Act intended to make a provision which was de hors the accepted principles that governed the grant of an interim injunction. Same is the position regarding the appointment of a receiver since the Section itself brings in, the concept of 'just and convenient' while speaking of passing any interim measure of protection. The concluding words of the Section, "and the court shall have the same power for making orders as it has for the purpose and in relation to any proceedings before it" also suggest that the normal rules that govern the court in the grant of interim orders is not sought to be jettisoned by the provision. Moreover, when a party is given a right to approach an ordinary court of the country without providing a special procedure or a special set of rules in that behalf, the ordinary rules followed by that court would govern the exercise of power conferred by the Act. On that basis also, it is not possible to keep out the concept of balance of convenience, prima facie case, irreparable injury and the concept of just and convenient while passing interim measures under Section 9 of the Act. [Para 10] [224-E, F, G, H] American Jurisprudence, 2nd Edition referred to. 1.2. When the grant of relief by way of injunction is, in general, governed by the Specific Relief Act, and Section 9 of the Act provides for an approach to the court for an interim injunction, the relevant provisions of the Specific Relief Act cannot be kept out of consideration. For, the grant of that interim injunction has necessarily to be based on the principles governing its grant emanating out of the relevant provisions of the Specific Relief Act and the law bearing on the subject. Under Section 28 of the Act of 1996, even the arbitral tribunal is enjoined to decide the dispute submitted to it, in accordance with the substantive law for the time being in force in India, if it is not an international commercial arbitration. So, it cannot certainly be inferred that Section 9 keeps out the substantive law relating to interim reliefs. [Para 14] [227-F, G; 228-A] Nepa Limited v. Manoj Kumar Agrawal, AIR (1999) Madhya Pradesh 57 overruled. Coppee Levalin NV v. Ken-Ren Fertilisers and Chemicalsb, (1994) 2 Lloyd's Report 109 at 116) referred to. Dr. Banerjee in his Tagor Law Lectures on Specific Relief, referred to . Commentary on Interim and Conservatory Measures in ICC Arbitration Cases by Professor Lew; David Bean on Injunctions. , referred to. 1.3. It is true that the intention behind Section 9 of the Act is the issuance of an order for preservation of the subject matter of an arbitration agreement. It was open to the court to pass an order by way of an interim measure of protection that the existing arrangement under the contract should be continued pending the resolution of the dispute by the arbitrator. But, at the same time, whether an interim measure permitting Adhunik Steels to carry on the mining operations, an extraordinary measure in itself in the face of the attempted termination of the contract by O.M.M. Private Limited or the termination of the contract by O.M.M. Private Limited, could be granted or not, would again lead the court to a consideration of the classical rules for the grant of such an interim measure. Whether an interim mandatory injunction could be granted directing the continuance of the working of the contract, had to be considered in the light of the well-settled principles in that behalf. Similarly, whether the attempted termination could be restrained leaving the consequences thereof vague would also be a question that might have to be considered in the context of well settled principles for the grant of an injunction. Therefore, on the whole, it would not be correct to say that the power under Section 9 of the Act is totally independent of the well known principles governing the grant of an interim injunction that generally govern the courts in this connection. [Para 18] [229-B, C, D, E, F] 2. The approach that at the initial stage, only the existence of an arbitration clause need be considered is not justified. [Para 15] [228-A] The Siskina (1979) AC 210, Fourie v. Le Roux, (2007) 1 W.L.R. 320, referred to. 3.1. The question here is whether in the circumstances, an order of injunction could be granted restraining O.M.M. Private Limited from interfering with Adhunik Steels' working of the contract which O.M.M. Private Limited has sought to terminate. Whatever might be its reasons for termination, it is clear that a notice had been issued by the O.M.M. Private Limited terminating the arrangement entered into between itself and Adhunik Steels. In terms of Order XXXIX Rule 2 of the Code of Civil Procedure, an interim injunction could be granted restraining the breach of a contract and to that extent Adhunik Steels may claim that it has a prima facie case for restraining O.M.M. Private Limited from breaching the contract and from preventing it from carrying on its work in terms of the contract. [Para 20] [230-E, F] 3.2. The High Court has held that this was not a case where the damages that may be suffered by Adhunik Steels by the alleged breach of contract by O.M.M. Private Limited could be quantified at a future point of time in terms of money. There is only a mention of the minimum quantity of ore that Adhunik Steels is to lift and there is also uncertainty about the other minerals that may be available for being lifted on the mining operations being carried on. These are impoundables to some extent but at the same time it cannot be said that at the end of it, it will not be possible to assess the compensation that might be payable to Adhunik Steels in case the claim of Adhunik Steels is upheld by the arbitrator while passing the award. [Para 20] [230-F; 231-A] 4. O.M.M. Private Limited cannot enter into a similar transaction with any other entity since that would also entail the apprehended violation of Rule 37 of the Mineral Concession Rules, 1960, as put forward by it. It therefore appears to be just and proper to direct O.M.M. Private Limited not to enter into a contract for mining and lifting of minerals with any other entity until the conclusion of the arbitral proceedings. [Para 21] [231-B, C] 5. There is no justification in preventing O.M.M. Private Limited from carrying on the mining operations by itself. It has got a mining lease and subject to any award that may be passed by the arbitrator on the effect of the contract it had entered into with Adhunik Steels, it has the right to mine and lift the minerals therefrom. The carrying on of that activity by O.M.M. Private Limited cannot prejudice Adhunik Steels, since ultimately Adhunik Steels, if it succeeds, would be entitled to get, if not the main relief, compensation for the termination of the contract on the principles well settled in that behalf. Therefore, it is not possible to restrain O.M.M. Private Limited from carrying on any mining operation in the mines concerned pending the arbitral proceedings. [Para 22] [231-D, E] 6. There is considerable dispute as to whether Rule 37 of the Mineral Concession Rules, 1960 has application. The District Court and the High Court have prima facie come to the conclusion that the said Rule has no application. Whether the said Rule has application, is one of the aspects to be considered by the arbitrator or the Arbitral Tribunal that may be constituted in terms of the arbitration agreement between the parties. It is not proper for the Court at this stage to pronounce on the applicability or otherwise of Rule 37 of the Mineral Concession Rules, 1960 and its impact on the agreement entered into between the parties. Therefore, that question is left open for being decided by the arbitrator. [Para 19] [230-A, B, C] 7. The attempt made by O.M.M. Private Limited to rely upon some other arbitral award in support of its claim that Rule 37 of the Mineral Concession Rules, 1960 would apply, is neither here nor there. The Court is not concerned with what the arbitrator who may be appointed will hold in the present case and not what some other arbitrator held in some other arbitration and some other contract even if it be between the same parties. Moreover, the Court could not be bound by what an arbitrator might have held in an arbitration proceeding unless it be that the said award operates as a bar between the parties barring either of them from raising a plea in that behalf. [Para 19] [230-C, D] 8. The arbitration proceedings must be expedited. The application for appointment of an arbitrator made before the Chief Justice of the Orissa High Court under Section 11(6) of the Act is pending for over two years without orders. Normally, the Court would have requested the Chief Justice of the Orissa High Court or his nominee to take up and dispose of the application under Section 11(6) of the Act expeditiously. But the Court put it to the parties that it would be more expedient if we appoint an arbitrator in this proceeding itself, so that further delay can be avoided. The parties have agreed to that course. The Court, therefore, in the interests of justice appointed a sole arbitrator to adjudicate on the dispute between the parties. It was expected that the sole arbitrator would enter upon the reference and pronounce his award expeditiously. [Para 25] [232-B, C, D] Dushyant Dave and Shyam Divan, Sr. Adv., Smita Bankoti, Anirudh and Devendra Singh for the Appellant. C.A. Sundaram and Ranjit Kumar, Sr. Adv., Arvind Kumar, Laxmi Arvind, Mahesh Agarwal, Gopal Jain and Poonam Prasad for the Respondent.

posted 2 Feb 2012, 23:15 by advocatemmmohan Mandagaddi murali mohan

CASE NO.:
Appeal (civil)  6569 of 2005

PETITIONER:
ADHUNIK STEELS LTD

RESPONDENT:
ORISSA MANGANESE AND MINERALS PVT. LTD

DATE OF JUDGMENT: 10/07/2007

BENCH:
H.K. SEMA & P.K. BALASUBRAMANYAN

JUDGMENT:
J U D G M E N T 

[with C.A. No. 6570 of 2005]


P.K. BALASUBRAMANYAN, J.


1. These Cross Appeals by Special Leave 
challenge the order passed by the High Court of Orissa 
in an appeal under Section 37(1)(a) of the Arbitration & 
Conciliation Act, 1996.  The said appeal was one filed by 
the respondent in C.A. No. 6569 of 2005 which is the 
appellant in C.A. No. 6570 of 2005 challenging an order 
of the District Court at Sundargarh in a petition under 
Section 9 of the Act filed by the appellant in C.A. No. 
6569 of 2005 and the respondent in C.A. No. 6570 of 
2005.  For convenience, the parties will hereinafter be 
referred to as "Adhunik Steels" and "O.M.M. Private 
Limited".  Adhunik Steels it was, that filed the 
application under Section 9 of the Act.  

2. O.M.M. Private Limited obtained a mining lease 
from the Government of Orissa for mining manganese 
ore from certain extents of land situate in Sundargarh 
district in the State of Orissa.  For reasons of its own, 
O.M.M. Private Limited entered into an agreement dated 
14.5.2003 with Adhunik Steels for raising the 
manganese ore on its behalf.  The term of the agreement 
was 10 years with effect from 18.5.2003, it conferred on 
Adhunik Steels an option to seek a renewal for a further 
term.

3. According to Adhunik Steels, pursuant to this 
agreement, it had mobilized huge resources for carrying 
on the excavation and extraction of the mineral by 
arranging for the necessary labour, staff, equipments, 
and so on.  It had also incurred expenditure for removing 
the overburden.  On 24.11.2003, O.M.M. Private Limited 
issued a notice to Adhunik Steels purporting to 
terminate the agreement.  The notice also called upon 
Adhunik Steels to remove their workmen and equipment 
from the site.  According to O.M.M. Private Limited, it 
had realized that the contract it had entered into with 
Adhunik Steels was one in violation of Rule 37 of the 
Mineral Concession Rules, 1960 and since there was 
danger of O.M.M. Private Limited itself losing its rights 
as a lessee, the contract had to be terminated.  Adhunik 
Steels, alleging that it had incurred considerable 
expenditure and had already incurred losses, moved the 
District Court at Sundargarh under Section 9 of the Act 
for an injunction restraining O.M.M. Private Limited from 
terminating the contract and from dispossessing 
Adhunik Steels from the site of the mines and for other 
consequential reliefs.  The said application was opposed 
by O.M.M. Private Limited on various grounds.  
Ultimately, by order dated 18.8.2004, the District Court 
allowed the application and restrained O.M.M. Private 
Limited from relying on, acting upon or giving effect to 
the letter of termination dated 24.11.2003 and further 
restraining O.M.M. Private Limited from dispossessing 
Adhunik Steels from the mines in question.  The order 
was to remain in force till the final award that was to be 
passed by an Arbitral Tribunal constituted in terms of 
the arbitration agreement.  

4. We may notice here that prior to approaching 
the District Court at Sundargarh, Adhunik Steels had 
moved the Calcutta High Court under Section 9 of the 
Act seeking identical reliefs.  O.M.M. Private Limited had 
raised an objection to jurisdiction in the Calcutta High 
Court and the said objection was upheld by the Calcutta 
High Court and that had led to Adhunik Steels 
approaching the District Court at Sundargarh.  We may 
also notice that it is contended that Adhunik Steels had 
thereafter moved the Chief Justice of the High Court of 
Orissa under Section 11(6) of the Act for appointment of 
an Arbitrator in terms of the arbitration agreement.  The 
application is said to be pending. 

5. The District Court, Sundargarh held that Rule 
37 of the Mineral Concession Rules, 1960 cannot be held 
to be applicable to the working arrangement between the 
parties which has been termed a raising contract.  It 
further held that the balance of convenience was in 
favour of the grant of an injunction against O.M.M. 
Private Limited as sought for by Adhunik Steels, and 
that if an order of injunction was not granted, the very 
purpose of initiating the arbitration proceeding would be 
defeated.  Following the decision of the Madhya Pradesh 
High Court in Nepa Limited Vs. Manoj Kumar Agrawal 
[AIR 1999 MADHYA PRADESH 57], it accepted the 
principle that there was a distinction between Section 9 
and Section 11 of the Act and that the powers under 
Section 9 are wide and what is relevant to be considered 
at the stage of a motion under Section 9 of the Act was 
the existence of an arbitration clause and the necessity 
of taking interim measures and the court could issue 
any direction that is deemed appropriate.  Rejecting the 
contention of O.M.M. Private Limited that Adhunik Steels 
had been dispossessed subsequent to the letter 
terminating the contract, the court held that in its 
opinion it would be equitable to grant the orders sought 
for under Section 9 of the Act.  It also stated that an 
order of injunction would be necessary to preserve the 
mines in dispute so that the arbitrators at a later point 
of time can have an effective and proper adjudication of 
the dispute referred to them.  It was thus that the order 
of injunction was granted. 


6. Aggrieved by the order of the District Court, 
Sundargarh, O.M.M. Private Limited filed an appeal 
before the High Court of Orissa.  It was argued on behalf 
of O.M.M. Private Limited that the contract between the 
parties was in violation of Rule 37 of the Mineral 
Concession Rules, 1960 and hence the agreement itself 
was illegal and no right could be founded on such an 
illegal agreement by Adhunik Steels.  It was alternatively 
contended that in terms of Section 41 of the Specific 
Relief Act, no injunction can be granted for continuance 
of the contract and the working of the contract involved 
intrinsic details in its performance extended over a 
period of 10 years and the court would not be in a 
position to supervise the working of the contract and in 
such a situation, an interim injunction ought not to be 
granted.  It was also contended that in terms of Section 
14 of the Specific Relief Act, the agreement was not 
specifically enforceable as it was terminable and in any 
event, since Adhunik Steels could be compensated in 
terms of money, even if its claim was ultimately upheld, 
it was not a case for grant of an interim injunction in 
terms of Section 14(3) of the Specific Relief Act.  The 
learned judge of the High Court came to the prima facie 
conclusion that Rule 37 of the Mineral Concession Rules, 
1960 had no application to the facts of the case.  The 
learned judge also held that in view of clause 8.2 of the 
agreement, Section 14(1)(c) of the Specific Relief Act was 
not attracted.  But the learned judge upheld the 
contention on behalf of O.M.M. Private Limited that the 
loss, if any, that may be sustained by Adhunik Steels, 
could be calculated in terms of money and in view of that 
and in the light of Section 14(3)(c) of the Specific Relief 
Act, an injunction as prayed for by Adhunik Steels could 
not be granted.  The court did not go into the question of 
balance of convenience in granting an order of injunction 
in the light of its conclusion that this is not a fit case for 
grant of an interim injunction. 

7. Thus, the High Court allowed the appeal filed 
by O.M.M. Private Limited and set aside the order of 
injunction passed by the District Court, Sundargarh.  
Feeling aggrieved thereby, Adhunik Steels has filed its 
appeal.  Feeling aggrieved by the finding that Rule 37 of 
Mineral Concession Rules, 1960 does not hit the 
contract in question and the finding that Section 14(1)(c) 
of the Specific Relief Act did not stand in the way of 
injunction being granted, O.M.M. Private Limited has 
come up with its appeal.  

8. There was considerable debate before us on the 
scope of Section 9 of the Act.  According to learned 
counsel for Adhunik Steels, Section 9 of the Act stood 
independent of Section 94 and Order XXXIX of the Code 
of Civil Procedure and the exercise of power thereunder 
was also not trammeled by anything contained in the 
Specific Relief Act.  Learned counsel contended that by 
way of an interim measure, the court could pass an 
order for the preservation or custody of the subject 
matter of the arbitration agreement irrespective of 
whether the order that may be passed was in a 
mandatory form or was in a prohibitory form.  The 
subject matter of arbitration in the present case was the 
continued right of Adhunik Steels to mine and lift the ore 
to the surface on behalf of O.M.M. Private Limited and 
until the arbitrator decided on whether O.M.M. Private 
Limited was entitled to breach the agreement or 
terminate the agreement and what would be its 
consequences, the court had not only the power but the 
duty to protect the right of Adhunik Steels conferred by 
the contract when approached under Section 9 of the 
Act.  Learned counsel emphasized that what was liable to 
be protected in an appropriate case was the subject 
matter of the arbitration agreement.  Learned counsel 
referred to 'The Law and Practice of Commercial 
Arbitration in England' by Mustill and Boyd and relied 
on the following passage therefrom:

"(b) Safeguarding the subject matter of the 
dispute:

The existence of a dispute may put at risk 
the property which forms the subject of the 
reference, or the rights of a party in respect 
of that property.  Thus, the dispute may 
prevent perishable goods from being put to 
their intended use, or may impede the 
proper exploitation of a profit-earning 
article, such as a ship.  If the disposition of 
the property has to wait until after the 
award has resolved the dispute, 
unnecessary hardship may be caused to 
the parties.  Again, there may be a risk that 
if the property is left in the custody or 
control of one of the parties, pending the 
hearing, he may abuse his position in such 
a way that even if the other party ultimately 
succeeds in the arbitration, he will not 
obtain the full benefit of the award.  In 
cases such as this, the Court (and in some 
instances the arbitrator) has power to 
intervene, for the purpose of maintaining 
the status quo until the award is made.  
The remedies available under the Act are as 
follows:-

(i) The grant of an interlocutory 
injunction.

(ii) The appointment of a receiver

(iii) The making of an order for the 
preservation, custody or sale of 
the property.

(iv) The securing of the amount in 
dispute."

Learned counsel also relied on 'International Commercial 
Arbitration in UNCITRAL Model Law Jurisdictions' by Dr. 
Peter Binder, wherein it is stated:
"It is not incompatible with an arbitration 
agreement for a party to request, before or 
during arbitral proceedings, from a court an 
interim measure of protection and for a 
court to grant such measure."

It is further stated:
"In certain circumstances, especially where 
the arbitral tribunal has not yet been 
established, the issuance of interim 
measures by the court is the only way 
assets can be saved for a future arbitration.  
Otherwise, the claimant could end up with 
a worthless arbitral award due to the fact 
that the losing party has moved his 
attachable assets to a "safe" jurisdiction 
where they are out of reach of the 
claimant's seizure.  The importance of such 
a provision in an arbitration law is therefore 
evident, and a comparison of the adopting 
jurisdictions shows that all jurisdictions 
include some kind of provision on the issue, 
all granting the parties permission to seek 
court-ordered interim measures."

9. Learned counsel for O.M.M. Private Limited 
submitted that Section 9 leaves it to a party to approach 
the court for certain interim measures and it enables the 
court to pass orders by way of interim measures of 
protection in respect of the matters enumerated therein.  
Neither this Section nor the Act elsewhere has provided 
the conditions for grant of such interim protection 
leaving it to the court to exercise the jurisdiction vested 
in it as a court to adjudge whether any protective 
measure is called for.  In that context, neither the 
provisions of the Code of Civil Procedure nor the 
provisions of the Specific Relief Act can be kept out while 
the court considers the question whether on the facts of  
a case, any order by way of interim measure of 
protection should be granted. So, the court had 
necessarily to consider the balance of convenience, the 
question whether at least a triable issue arises if not the 
establishment of a prima facie case by the applicant 
before it and the other well known restrictions on the 
grant of interim orders, like the principle that a contract 
of personal service would not be specifically enforced or 
that no injunction would be granted in certain 
circumstances as envisaged by Section 14 and Section 
41 of the Specific Relief Act.  Thus, it was contended that 
grant of an injunction by way of interim measure to 
permit Adhunik Steels to carry on the mining operations 
pending the arbitration proceedings notwithstanding the 
termination of the contract by O.M.M. Private Limited 
was not permissible in law.   

10. It is true that Section 9 of the Act speaks of the 
court by way of an interim measure passing an order for 
protection, for the preservation, interim custody or sale 
of any goods, which are the subject matter of the 
arbitration agreement and such interim measure of 
protection as may appear to the court to be just and 
convenient.  The grant of an interim prohibitory 
injunction or an interim mandatory injunction are 
governed by well known rules and it is difficult to 
imagine that the legislature while enacting Section 9 of 
the Act intended to make a provision which was de hors 
the accepted principles that governed the grant of an 
interim injunction.  Same is the position regarding the 
appointment of a receiver since the Section itself brings 
in, the concept of 'just and convenient' while speaking of 
passing any interim measure of protection.  The 
concluding words of the Section, "and the court shall 
have the same power for making orders as it has for the 
purpose and in relation to any proceedings before it" also 
suggest that the normal rules that govern the court in 
the grant of interim orders is not sought to be jettisoned 
by the provision.  Moreover, when a party is given a right 
to approach an ordinary court of the country without 
providing a special procedure or a special set of rules in 
that behalf, the ordinary rules followed by that court 
would govern the exercise of power conferred by the Act.  
On that basis also, it is not possible to keep out the 
concept of balance of convenience, prima facie case, 
irreparable injury and the concept of just and convenient 
while passing interim measures under Section 9 of the 
Act. 

11. The power and jurisdiction of courts in arbitral 
matters has been the subject of much discussion.  The 
relationship between courts and arbitral tribunals have 
been said to swing between forced co-habitation and true 
partnership.  The process of arbitration is dependant on 
the underlying support of the courts who alone has the 
power to rescue the system when one party seeks to 
sabotage it.  The position was stated by Lord Mustil in  
Coppee Levalin NV vs. Ken-Ren Fertilisers and 
Chemicalsb (1994 (2) Lloyd's Report 109 at 116):

"there is plainly a tension here.  On the one 
hand the concept of arbitration as a 
consensual process reinforced by the ideas 
of transnationalism leans against the 
involvement of the mechanisms of state 
through the medium of a municipal court.  
On the other side there is a plain fact, 
palatable or not, that it is only a Court 
possessing coercive powers which could 
rescue the arbitration if it is in danger of 
foundering."

In Conservatory and Provisional Measures in 
International Arbitration, 9th Joint Colloquium, Lord 
Mustill in "Comments and Conclusions" described the 
relationship further:
"Ideally, the handling of arbitral disputes 
should resemble a relay race.  In the initial 
stages, before the arbitrators are seized of 
the dispute, the baton is in the grasp of the 
court; for at that stage there is no other 
organization which could take steps to 
prevent the arbitration agreement from 
being ineffectual.  When the arbitrators 
take charge they take over the baton and 
retain it until they have made an award.  At 
this point, having no longer a function to 
fulfil, the arbitrators hand back the baton 
so that the court can in case of need lend 
its coercive powers to the enforcement of 
the award."

It is in the above background that one has to 
consider the power of the court approached under the 
Arbitration Act for interim relief or interim protection.

12. Professor Lew in his 'Commentary on Interim 
and Conservatory Measures in ICC Arbitration Cases', 
has indicated:

"The demonstration of irreparable or 
perhaps substantial harm is also necessary 
for the grant of a measure.  This is because 
it is not appropriate to grant a measure 
where no irreparable or substantial harm 
comes to the movant in the event the 
measure is not granted.  The final award 
offers the means of remedying any harm, 
reparable or otherwise, once determined."


The question was considered in Channel Tunnel Group 
Ltd. And another vs.  Balfour Beatty Construction 
Ltd. (1993 Appeal Cases 334).  The trial judge in that 
case took the view that he had the power to grant an 
interim mandatory injunction directing the continuance 
of the working of the contract pending the arbitration.  
The Court of Appeal thought that it was an appropriate 
case for an injunction but that it had no power to grant 
injunction because of the arbitration.  In further appeal, 
the House of Lords held that it did have the power to 
grant injunction but on facts thought it inappropriate to 
grant one.  In formulating its view, the House of Lords 
highlighted the problem to which an application for 
interim relief like the one made in that case may give 
rise.  The House of Lords stated at page 367:
"It is true that mandatory interlocutory 
relief may be granted even where it 
substantially overlaps the final relief 
claimed in the action; and I also accept that 
it is possible for the court at the pre-trial 
stage of the dispute arising under a 
construction contract to order the 
defendant to continue with a performance 
of the works.  But the court should 
approach the making of such an order with 
the utmost caution and should be prepared 
to act only when the balance of advantage 
plainly favours the grant of relief.  In the 
combination of circumstances which we 
find in the present case, I would have 
hesitated long before proposing that such 
an order should be made, even if the action 
had been destined to remain in the High 
Court."


13. Injunction is a form of specific relief.  It is an 
order of a court requiring a party either to do a specific 
act or acts or to refrain from doing a specific act or acts 
either for a limited period or without limit of time.  In 
relation to a breach of contract, the proper remedy 
against a defendant who acts in breach of his obligations 
under a contract, is either damages or specific relief.  
The two principal varieties of specific relief are, decree of 
specific performance and the injunction (See David Bean 
on Injunctions).    The Specific Relief Act, 1963 was 
intended to be "An Act to define and amend the law 
relating to certain kinds of specific reliefs." Specific Relief 
is relief in specie.   It is a remedy which aims at the exact 
fulfilment of an obligation.  According to Dr. Banerjee in 
his Tagor Law Lectures on Specific Relief, the remedy for 
the non performance of a duty are (1) compensatory, (2) 
specific.  In the former, the court awards damages for 
breach of the obligation.  In the latter, it directs the party 
in default to do or forbear from doing the very thing, 
which he is bound to do or forbear from doing.  The law 
of specific relief is said to be, in its essence, a part of the 
law of procedure, for, specific relief is a form of judicial 
redress.  Thus, the Specific Relief Act, 1963 purports to 
define and amend the law relating to certain kinds of 
specific reliefs obtainable in civil courts.  It does not deal 
with the remedies connected with compensatory reliefs 
except as incidental and to a limited extent.  The right to 
relief of injunctions is contained in part-III of the Specific 
Relief Act.  Section 36 provides that preventive relief may 
be granted at the discretion of the court by injunction 
temporary or perpetual.  Section 38 indicates when 
perpetual injunctions are granted and Section 39 
indicates when mandatory injunctions are granted.  
Section 40 provides that damages may be awarded either 
in lieu of or in addition to injunctions.  Section 41 
provides for contingencies when an injunction cannot be 
granted.  Section 42 enables, notwithstanding anything 
contained in Section 41, particularly clause (e) providing 
that no injunction can be granted to prevent the breach 
of a contract the performance of which would not be 
specifically enforced, the granting of an injunction to 
perform a negative covenant. Thus, the power to grant 
injunctions by way of specific relief is covered by the 
Specific Relief Act, 1963. 

14. In Nepa Limited Vs. Manoj Kumar Agrawal 
[AIR 1999 MADHYA PRADESH 57], a learned judge of 
the Madhya Pradesh High Court has suggested that 
when moved under Section 9 of the Act for interim 
protection, the provisions of the Specific Relief Act 
cannot be made applicable since in taking interim 
measures under Section 9 of the Act, the court does not 
decide on the merits of the case or the rights of parties 
and considers only the question of existence of an 
arbitration clause and the necessity of taking interim 
measures for issuing necessary directions or orders.  
When the grant of relief by way of injunction is, in 
general, governed by the Specific Relief Act, and Section 
9 of the Act provides for an approach to the court for an 
interim injunction, we wonder how the relevant 
provisions of the Specific Relief Act can be kept out of 
consideration.  For, the grant of that interim injunction 
has necessarily to be based on the principles governing 
its grant emanating out of the relevant provisions of the 
Specific Relief Act and the law bearing on the subject.   
Under Section 28 of the Act of 1996, even the arbitral 
tribunal is enjoined to decide the dispute submitted to it, 
in accordance with the substantive law for the time being 
in force in India, if it is not an international commercial 
arbitration. So, it cannot certainly be inferred that 
Section 9 keeps out the substantive law relating to 
interim reliefs. 

15. The approach that at the initial stage, only the 
existence of an arbitration clause need be considered is 
not justified.  In The Siskina [1979] AC 210, Lord 
Diplock explained the position:

"A right to obtain an interlocutory 
injunction is not a cause of action.  It 
cannot stand on its own.  It is dependent 
upon there being a pre-existing cause of 
action against the defendant arising out of 
an invasion, actual or threatened by him, of 
a legal or equitable right of the plaintiff for 
the enforcement of which the defendant is 
amenable to the jurisdiction of the court.  
The right to obtain an interlocutory 
injunction is merely ancillary and 
incidental to the pre-existing cause of 
action.  It is granted to preserve the status 
quo pending the ascertainment by the court 
of the rights of the parties and the grant to 
the plaintiff of the relief to which his cause 
of action entitles him, which may or may 
not include a final injunction."

He concluded:

"To come within the sub-rule the injunction 
sought in the action must be part of the 
substantive relief to which the plaintiff's 
cause of action entitles him; and the thing 
that it is sought to restrain the foreign 
defendant from doing in England must 
amount to an invasion of some legal or 
equitable right belonging to the plaintiff in 
this country and enforceable here by a final 
judgment for an injunction."


16. Recently, in Fourie Vs. Le Roux [2007] 1 
W.L.R. 320, the House of Lords speaking through Lord 
Scott of Foscote stated:

"An interlocutory injunction, like any other 
interim order, is intended to be of 
temporary duration, dependent on the 
institution and progress of some 
proceedings for substantive relief."

and concluded:
"Whenever an interlocutory injunction is 
applied for, the judge, if otherwise minded 
to make the order, should, as a matter of 
good practice, pay careful attention to the 
substantive relief that is, or will be, sought.  
The interlocutory injunction in aid of the 
substantive relief should not place a greater 
burden on the respondent than is 
necessary.  The yardstick in section 37(1) of 
the 1981 Act, "just and convenient", must 
be applied having regard to the interests 
not only of the claimant but also of the 
defendant."  
17. No special condition is contained in Section 9 
of the Act.  No special procedure is indicated.  In 
American Jurisprudence, 2nd Edition it is stated:
"In judicial proceedings under arbitration 
statutes ordinary rules of practice and 
procedure govern where none are specified; 
and even those prescribed by statute are 
frequently analogous to others in common 
use and are subject to similar 
interpretation by the courts."

18. It is true that the intention behind Section 9 of 
the Act is the issuance of an order for preservation of the 
subject matter of an arbitration agreement.  According to 
learned counsel for Adhunik Steels, the subject matter of 
the arbitration agreement in the case on hand, is the 
mining and lifting of ore by it from the mines leased to 
O.M.M. Private Limited for a period of 10 years and its 
attempted abrupt termination by O.M.M. Private Limited 
and the dispute before the arbitrator would be the effect 
of the agreement and the right of O.M.M. Private Limited 
to terminate it prematurely in the circumstances of the 
case.  So viewed, it was open to the court to pass an 
order by way of an interim measure of protection that the 
existing arrangement under the contract should be 
continued pending the resolution of the dispute by the 
arbitrator.  May be, there is some force in this 
submission made on behalf of the Adhunik Steels.  But, 
at the same time, whether an interim measure 
permitting Adhunik Steels to carry on the mining 
operations, an extraordinary measure in itself in the face 
of the attempted termination of the contract by O.M.M. 
Private Limited or the termination of the contract by 
O.M.M. Private Limited, could be granted or not, would 
again lead the court to a consideration of the classical 
rules for the grant of such an interim measure.  Whether 
an interim mandatory injunction could be granted 
directing the continuance of the working of the contract, 
had to be considered in the light of the well-settled 
principles in that behalf.  Similarly, whether the 
attempted termination could be restrained leaving the 
consequences thereof vague would also be a question 
that might have to be considered in the context of well 
settled principles for the grant of an injunction.  
Therefore, on the whole, we feel that it would not be 
correct to say that the power under Section 9 of the Act 
is totally independent of the well known principles 
governing the grant of an interim injunction that 
generally govern the courts in this connection.  So 
viewed, we have necessarily to see whether the High 
Court was justified in refusing the interim injunction on 
the facts and in the circumstances of the case.  

19. No doubt, there is considerable dispute as to 
whether Rule 37 of the Mineral Concession Rules, 1960 
has application.  The District Court and the High Court 
have prima facie come to the conclusion that the said 
Rule has no application.  Whether the said Rule has 
application, is one of the aspects to be considered by the 
arbitrator or the Arbitral Tribunal that may be 
constituted in terms of the arbitration agreement 
between the parties.  We do not think that it is proper for 
us at this stage to pronounce on the applicability or 
otherwise of Rule 37 of the Mineral Concession Rules, 
1960 and its impact on the agreement entered into 
between the parties.  We therefore leave open that 
question for being decided by the arbitrator.  The 
attempt made by O.M.M. Private Limited to rely upon 
some other arbitral award in support of its claim that 
Rule 37 of the Mineral Concession Rules, 1960 would 
apply, is neither here nor there.  We are concerned with 
what the arbitrator who may be appointed will hold in 
the present case and not what some other arbitrator held 
in some other arbitration and some other contract even if 
it be between the same parties.  Moreover, in our 
adjudication, we cannot be bound by what an arbitrator 
might have held in an arbitration proceeding unless it be 
that the said award operates as a bar between the 
parties barring either of them from raising a plea in that 
behalf.

20. The question here is whether in the 
circumstances, an order of injunction could be granted 
restraining O.M.M. Private Limited from interfering with 
Adhunik Steels' working of the contract which O.M.M. 
Private Limited has sought to terminate.  Whatever might 
be its reasons for termination, it is clear that a notice 
had been issued by the O.M.M. Private Limited 
terminating the arrangement entered into between itself 
and Adhunik Steels.  In terms of Order XXXIX Rule 2 of 
the Code of Civil Procedure, an interim injunction could 
be granted restraining the breach of a contract and to 
that extent Adhunik Steels may claim that it has a prima 
facie case for restraining O.M.M. Private Limited from 
breaching the contract and from preventing it from 
carrying on its work in terms of the contract.  It is in that 
context that the High Court has held that this was not a 
case where the damages that may be suffered by 
Adhunik Steels by the alleged breach of contract by 
O.M.M. Private Limited could not be quantified at a 
future point of time in terms of money. There is only a 
mention of the minimum quantity of ore that Adhunik 
Steels is to lift and there is also uncertainty about the 
other minerals that may be available for being lifted on 
the mining operations being carried on.  These are 
impoundables to some extent but at the same time it 
cannot be said that at the end of it, it will not be possible 
to assess the compensation that might be payable to 
Adhunik Steels in case the claim of Adhunik Steels is 
upheld by the arbitrator while passing the award. 


21. But, in that context, we cannot brush aside the 
contention of the learned counsel for Adhunik Steels that 
if O.M.M. Private Limited is permitted to enter into other 
agreements with others for the same purpose, it would 
be unjust when the stand of O.M.M. Private Limited is 
that it was canceling the agreement mainly because it 
was hit by Rule 37 of the Mineral Concession Rules, 
1960.  Going by the stand adopted by O.M.M. Private 
Limited, it is clear that O.M.M. Private Limited cannot 
enter into a similar transaction with any other entity 
since that would also entail the apprehended violation of 
Rule 37 of the Mineral Concession Rules, 1960, as put 
forward by it.  It therefore appears to be just and proper 
to direct O.M.M. Private Limited not to enter into a 
contract for mining and lifting of minerals with any other 
entity until the conclusion of the arbitral proceedings.  

22. At the same time, we see no justification in 
preventing O.M.M. Private Limited from carrying on the 
mining operations by itself.  It has got a mining lease 
and subject to any award that may be passed by the 
arbitrator on the effect of the contract it had entered into 
with Adhunik Steels, it has the right to mine and lift the 
minerals therefrom.  The carrying on of that activity by 
O.M.M. Private Limited cannot prejudice Adhunik Steels, 
since ultimately Adhunik Steels, if it succeeds, would be 
entitled to get, if not the main relief, compensation for 
the termination of the contract on the principles well 
settled in that behalf.  Therefore, it is not possible to 
accede to the contention of learned counsel for Adhunik 
Steels that in any event O.M.M. Private Limited must be 
restrained from carrying on any mining operation in the 
mines concerned pending the arbitral proceedings.  

23. We think that we should refrain from 
discussing the various issues at great length since we 
feel that any discussion by us in that behalf could 
prejudice either of the parties before the arbitrator or the 
arbitral tribunal.  We have therefore confined ourselves 
to making such general observations as are necessary in 
the context of the elaborate arguments raised before us 
by learned counsel. 

24. We therefore dismiss the appeal filed by 
O.M.M. Private Limited leaving open the questions raised 
by it for being decided by the arbitrator or Arbitral 
Tribunal in accordance with law.  We also substantially 
dismiss the appeal filed by Adhunik Steels except to the 
extent of granting it an order of injunction restraining 
O.M.M. Private Limited from entering into a transaction 
for mining and lifting of the ore with any other individual 
or concern making it clear that it can, on its own, carry 
on the mining operations in terms of the mining lease. 

25. We think that the arbitration proceedings must 
be expedited.  We are told that the application for 
appointment of an arbitrator made before the Chief 
Justice of the Orissa High Court under Section 11(6) of 
the Act is pending for over two years without orders.  
Normally, we would have requested the Chief Justice of 
the Orissa High Court or his nominee to take up and 
dispose of the application under Section 11(6) of the Act 
expeditiously.   But we put it to the parties that it would 
be more expedient if we appoint an arbitrator in this 
proceeding itself, so that further delay can be avoided.  
The parties have agreed to that course.  We therefore 
think that it would be in the interests of justice if we 
appoint here and now a sole arbitrator to adjudicate on 
the dispute between the parties.  Hence we appoint Mr. 
Justice R.C. Lahoti, former Chief Justice of India as the 
sole arbitrator to decide the dispute between the parties.  
The arbitrator will be free to fix his terms in consultation 
with the parties.  We confidently expect the sole 
arbitrator to enter upon the reference and pronounce his 
award expeditiously.   

26. The appeals are disposed of as above.  We 
make no order as to costs. 

Specific Relief Act, 1963 - s. 34 - Suit for declaration - Decreed by trial court and first appellate court - However, set aside by High Court on a finding that suit simpliciter for declaration is not maintainable u/s. 34 and the plaintiff should have filed a suit for possession - Held: Finding of the High Court that suit simpliciter for declaration is not maintainable u/s. 34, is not sustainable - In the suit, apart from a prayer for declaration there was a consequential prayer for a decree for permanent injunction as also an alternative prayer for decree for possession - Also, the issue relating to the maintainability of the suit in the present form was raised before the trial court and was not proved by the defendant and as such was decided against the defendant - Said issue was not raised before the first appellate court - The suit is not hit by s. 34 - Order of the High Court set aside and that of the first appellate court, restored. The trial court and the first appellate court decreed the suit for declaration filed by the appellant in respect of the land in question. In the Second Appeal, the High Court held that the suit simpliciter for declaration is not maintainable under Section 34 of the Specific Relief Act, 1963 and the appellant should have filed a suit for possession. Therefore, the appellant filed the instant appeal. =Allowing the appeal, the Court HELD: 1.1 From the plaint, it appears, prima facie, that apart from making a prayer for declaration there is also a consequential prayer for a decree for permanent injunction restraining the defendant from alienating the suit property or interfering in peaceful possession of the plaintiff. There is an alternative prayer for decree for possession also. From the prayers made in the plaint, it is clear that the consequential relief of permanent injunction was prayed, and before the trial court, the issue relating to the maintainability of the suit in the present form was raised but the same was not pressed by the defendant nor was any such question raised before the first appellate court. In that view of the matter, the finding of the High Court that the suit is merely for declaration and is not maintainable under Section 34 of the Specific Relief Act, cannot be sustained. Thus, the suit is not hit by Section 34 of the Specific Relief Act, 1963. [Paras 8, 9, 10, 11 and 13] [491-B-E-G] 1.2 The High Court set aside the concurrent finding of the courts below on an erroneous appreciation of the admitted facts of the case and also the legal question relating to Section 34 of the Specific Relief Act, 1963. Therefore, the order of the High Court is set aside and that of the first appellate court is restored. [Paras 14 and 15] [491-H; 492-A-B] Ram Saran and Anr. vs. Ganga Devi AIR 1972 SC 2685 - distinguished. Case Law Reference: AIR 1972 SC 2685 Distinguished Para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1142 of 2003. From the Judgment & Order dated 26.08.2002 of the High Court of Punjab and Haryana at Chandigarh in R.S.A. No. 1806 of 2000. Devender Mohan Verma for the Appellant

posted 2 Feb 2012, 23:12 by advocatemmmohan Mandagaddi murali mohan

                                                     REPORTABLE



              IN THE SUPREME COURT OF INDIA

               CIVIL APPELLATE JURISDICTION



              CIVIL APPEAL NO(s).1142 OF 2003





GIAN KAUR                         Appellant (s)



                             VERSUS



RAGHUBIR SINGH                    Respondent(s)





                       J U D G M E N T



GANGULY, J





1.    This   appeal   is   directed   against   the   judgment 



and   order   dated   26.08.2002   of   the   Punjab   and 



Haryana High Court in Regular Second Appeal No.1806 



of   2000.   By   the   judgment   under   appeal,   the   Hon'ble 



High   Court   reversed   the   judgment   and   decree   of   the 



Court   below   and   held   that   the   suit   for   declaration 



that   the   plaintiff   is   the   owner   in   possession   of 



land   measuring   16   kanals   situated   in   village 



Ajnoha,   is   not   maintainable.   The   plaintiff   is   in 



appeal before this Court. The material facts of the 



case are as under.



                                1

.
2.    Labhu,   an   agriculturist   of   village   Sarhola 



Mundia,   Tehsil   &   District   Jalandhar,   Punjab   had 



three   sons,   namely,   Khusi   Ram,   Raghubir   Singh   and 



Kashmir   Singh   and   a   daughter   called   Pritam   Kaur. 



The   shares   of   the   sons   were   partitioned   by   the 



Revenue   Authorities   as   early   as   on   30.4.1990   and 



share   of   Khushi   Ram   was   separated   from   Raghubir 



Singh each getting 16 kanals. Khushi Ram executed a 



Will   in   favour   of   Gian   Kaur   and   appointed   her   as 



his   Mukhtiar-e-am.   Subsequently,   relations   between 



them   became   strained   and   he   cancelled   his   Will   and 



his Power of Attorney. The appellant is daughter of 



Pritam   Kaur   and   Khushi   Ram   was   living   with   Pritam 



Kaur   in   her   house   and   Pritam   Kaur   was   serving   him. 



Both   Gian   Kaur   and   Khushi   Ram   opened   a   joint 



account   in   a   Bank   and   out   of   love   and   affection 



Khushi   Ram   subsequently   executed   a   Will   dated 



12.4.1990   in   favour   of   the   appellant-plaintiff. 



Under   these   circumstances,   the   appellant   claimed 



that   she   is   in   actual   physical   possession   of   the 



suit   land.   Even   after   a   compromise   was   arrived   at 





                                 2

.
between   the   parties   on   2.10.1991,   the   defendant 



brought   a   suit   for   declaration   challenging   the 



Will.   That   suit   was   withdrawn   on   1.12.1993   without 



any permission of the Court to file a fresh a suit. 



After   the   withdrawal   of   the   aforesaid   suit,   the 



filing   of   the   present   suit   for   declaration   and 



permanent   injunction   became   necessary   as   the 



defendant   threatened   to   dispossess   the   plaintiff 



from the suit property.





3.    Before   the   trial   Court,   the   stand   of   the 



defendant   was   that   the   property   is   a   Joint   Hindu 



Family   property   and   the   plaintiff   has   no   cause   of 



action to file the suit. It was also the contention 



of   the   defendant   that   Khushi   Ram   was   a   saintly 



person   and   wanted   to   donate   land   to   a   religious 



institution. The relationship between Khushi Ram and 



the plaintiff was admitted but the fact of opening a 



joint   bank   account   with   the   plaintiff   was   denied. 



The   trial   Court   framed   about   eight   issues   in   the 



matter. Those issues are as follows:





                               3

.
      "1.    Whether   Khushi   Ram   has   executed   any 

             will dated 12.4.1990? OPP

      2. Whether   the   Plaintiff   is   owner   in 

        possession of the Suit land? OPP

      3. Whether the Plaintiff is entitled to the 

        declaration as prayed for? OPP

      4. Whether   the   Suit   is   not   maintainable   in 

        the present form? OPD

      5. Whether   the   jurisdiction   of   the   Civil 

        Court is barred? OPD

      6. Whether the Suit property is joint Hindu 

        undivided   property?   If   so,   its   effect? 

        OPD

      7. Whether the Suit is not properly valued? 

        OPD

      8. Relief."





4.    As   would   appear   from   the   issues   set   out   above 



that   issue   relating   to   maintainability   of   the   suit 



was   framed   and   on   that   issue   finding   of   the   trial 



Court   is   that   the   issue   was   not   proved   by   the 



defendant   and   that   issue   remained   unproved   and   as 



such was decided against the defendant. 





5.    From   the   judgment   of   the   First   Appellate   Court 



also   it   appears   that   the   issue   of   maintainability 



was   not   raised   and   the   First   Appellate   Court 



affirmed   the   findings   of   the   trial   Court   and 



dismissed   the   appeal,   inter   alia,   holding   the 





                                 4

.
application   filed   by   the   defendant   for   leading 



additional evidence is also without any merit. 





6.    Hon'ble   High   Court   while   entertaining   the 



Second Appeal against such concurrent finding, came, 



inter   alia,   to   a   finding   that   the   suit   simpliciter 



for declaration is not maintainable under Section 34 



of   the   Special   Relief   Act   and   the   plaintiff   should 



have filed a suit for possession. By referring to a 



judgment of this Court in the case of  Ram Saran and 



another  vs.  Ganga Devi  - AIR 1972 SC 2685, the High 



Court dismissed the suit and allowed the appeal.





7.    The   plaint   which   as   been   produced   before   this 



Court   by   way   of   additional   documents   contained   the 



following prayer:





      "a)    A   decree   of   declaration   to   the   effect   that 

             the   plaintiff   is   owner   in   possession   of   16 

             Kanal   0   Marla   of   land   fully   detailed   and 

             described   in   headnote   of   plaint   and 

             situated in village Ajnoha H.B. No.52, P.S. 

             Mahilpur, District Hoshiarpur as entered in 

             latest   jamabandi,   in   view   of   Will   dated 



                                  5

.
              12.4.90   executed   by   Khushi   Ram   s/o   Ram 

              Ditta in her favour;

       b)     With         consequential         relief         decree         for 

              permanent   injunction   restraining   the   Deft 

              not   to   alienate   the   suit   property   or 

              interfering   in   peaceful   possession   of 

              plaintiff therein; and

       c)     In the alternative decree for possession if 

              the   plaintiff   is   dispossessed   by   Deft 

              during pendency of suit;





       may kindly be passed in favour of the plaintiff 

       and against the Deft with costs."





8.          It   appears,   prima   facie,   that   apart   from 



making   a   prayer   for   declaration   there   is   also   a 



consequential   prayer   for   a   decree   for   permanent 



injunction            restraining           the         defendant         from 



alienating   the   suit   property   or   interfering   in 



peaceful possession of plaintiff therein. 





9.     There   is   an   alternative   prayer   for   decree   for 



possession also. 





10.           From  the  prayers  made  in  the  plaint,  it  is 



clear   that   the   consequential   relief   of   permanent 



injunction   was   prayed   and   before   the   Trial   Court 




                                     6

.
the fourth issue relating to the maintainability of 



the   suit   in   the   present   form   was   raised     but   the 



same   was   not   pressed   by   the   defendant   nor   was   any 



such   question   raised   before   the   First   Appellate 



Court.





11.     In that view of the matter, the finding of the 



High   Court   that   the   suit   is   merely   for   declaration 



and   is   not   maintainable   under   Section   34   of   the 



Specific   Relief   Act   cannot   be   sustained.   The   High 



Court's reliance on a decision of this Court in Ram 



Saran (supra) is also not proper.





12.    From   the   decision   in  Ram   Saran  (supra),   it   is 



clear   that   in   that   suit   the   plaintiff   merely 



claimed   a   declaration   that   they   are   the   owners   of 



the   property   and   they   have   not   sought   for 



possession of the said properties.(see para 4)





13.    For   the   reasons   aforesaid,   this   Court   holds 



that   the   suit   is   not   hit   by   Section   34   of   the 





                                 7

.
Specific   Relief   Act.   The   decision   in  Ram   Saran 



(supra) was rendered on totally different facts and 



cannot be applied to the present case.





14.    We   are,   therefore,   constrained   to   observe   that 



the   High   Court   reversed   the   concurrent   finding   of 



the   Courts   below   on   an   erroneous   appreciation   of 



the   admitted   facts   of   the   case   and   also   the   legal 



question   relating   to   Section   34   of   the   Specific 



Relief Act.





15.    We,   therefore,   allow   the   appeal   set   aside   the 



order   of   the   High   Court   and   restore   that   of   the 



First   Appellate   Court.   There   shall   be   no   order   as 



to costs.





                                          .................J.

                                          (G.S. SINGHVI)     





                                          .................J.

                                         (ASOK KUMAR GANGULY)

NEW DELHI,

FEBRUARY 03, 2011.





                                 8

so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner".

posted 31 Oct 2011, 07:50 by advocatemmmohan Mandagaddi murali mohan   [ updated 31 Oct 2011, 07:50 ]

THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO           
CCC APPEAL No.225 OF 2001 and bt     

09-06-2011 

Smt.Askari Begum and others  

Md.Ayaz Khan and others  

Counsicl of Petitioner:---

Counsil for Respondent:--

:JUDGMENT:   
        

        Both the appeals arise out of common property, which is a house property
bearing No.22-3-908 situated at Vazir Ali lane, Darulshifa, Hyderabad, in an
extent of 197 square yards.

2.      City Civil Court Appeal No.225 of 2001 arises out of the judgment in
O.S.No.756 of 1991 on the file of I Senior Civil Judge, City Civil Court,
Hyderabad, whereas the Second Appeal arises out of the judgment in A.S.No.292 of 
1988 on the file of Additional Chief Judge, City Civil Court, Hyderabad.
        The parties are referred as in O.S.No.756 of 1991.

3.      The facts of the case are that the suit property originally belonged to
one Khaja Fateh Ali and he sold the same to Smt. Kaneez Fiza @ Putli Bi, W/o. 
Syed Mohd.Thaqui Saheb on 18.01.1925 for a consideration of Rs.750/-.
Smt.Kaneez Fiza and her husband were residents of Parbhani of Maharashtra State  
and they had only one daughter Kubra Begum, who is the 2nd plaintiff and who was
married to one Mohd.Ishaq and they had a daughter by name Sajeeda Begum, who is   
wife of the 1st plaintiff.   Syed Mohd. Thaqui Saheb died on 04.08.1930 leaving
behind him his wife and daughter.  The property was leased out to one Zaheer-ul-
Hasan, S/o. Naqui in 1935 and on 05.12.1959 Khaneez Fiza leased out the plaint
schedule property to the 2nd defendant on a monthly rent of Rs.20/-.  The 2nd
defendant was paying the rent.  On 01.03.1969 in a sound disposing state of mind
Kaneez Fiza executed a Will in favour of the 1st plaintiff conveying the
schedule property and therefore, the 1st plaintiff became entitled to the
property.  His name was also mutated in the Municipal records as per the orders
dated 24.10.1970.  The tenant attorned the tenancy and in 1974 the 1st plaintiff
requested the tenant to vacate the house.  The father of the 2nd defendant by
name Nazir Hussain was also living in the plaint schedule property along with
2nd defendant and he filed a suit in O.S.No.445 of 1974 on the file of IV
Assistant Judge, City Civil Court, Hyderabad, questioning the mutation in favour
of the 1st plaintiff and the said suit was dismissed on 07.12.1977 and
thereafter A.S.No.10 of 1978 was preferred to the Chief Judge, City Civil Court,
Hyderabad, which was also dismissed on 24.07.1978.   Thereafter, Nazar Hussain 
instituted another suit O.S.No.345 of 1978 on the file of V Assistant Judge,
City Civil Court, Hyderabad, for declaration of his title and for permanent
injunction claiming title and perfecting right by adverse possession.  The suit
was contested by the 1st plaintiff and the said suit was dismissed holding that
there was no title but it was partly decreed granting injunction.  Thereafter,
the 1st plaintiff filed R.C.No.173 of 1980 on the file of III Additional Rent
Controller, Hyderabad, against the 2nd defendant for eviction, in which
relationship of landlord and tenant was denied and claimed that the property was
purchased by Md. Thaqui and that Syed Nazar Hussain, who is the son of Thaqui, 
became entitled to the schedule property. The said R.C., was dismissed and
against that the appeal was filed and it was also dismissed.  As against the
judgment in O.S.No.345 of 1978 the plaintiff preferred appeal A.S.No.292 of 1988
on the file of Additional Chief Judge, City Civil Court, Hyderabad,  and the
said appeal was allowed on 07.12.1998 and as against that the Second Appeal 
No.336 of 1990 was preferred.  Therefore, in view of the above circumstances,
the suit was filed for declaration of title as the legatee under the Will and
for recovery of the possession from the defendants along with damages.  In case
the 1st plaintiff is not entitled to the property as a legatee, in the
alternative the 2nd plaintiff  is entitled to the suit property as being the
sole daughter of Kubra Begum. 

4.      The defendants filed a written statement denying several of the
allegations in the plaint and contending that the suit property belonged to
Kaneez Fiza. Sd.Mohammed Thaqui Saheb is the father-in-law of defendants Nos.1  
and 10.  The property was purchased in the name of his wife by Syed Mohammed   
Thaqui Saheb.  The plaintiffs are not related to the said owners.  The
allegations that the property was in possession of the 2nd defendant or his
father as tenants is denied.  The alleged Will dated 01.03.1969 is denied and it
has not seen the light of the day for a long time and it is a fabricated one.
In the earlier litigation the said Will is found to be not true and since the
issue has been already decided it cannot be agitated again.  Municipal
Corporation is not competent to decide the title to the property.  The earlier
suit O.S.No.445 of 1974 was dismissed as it was not a comprehensive one and in 
the earlier litigation the title of the plaintiffs was also rejected and the
judgment in A.S.No.10 of 1978 operates as res judicata.  In O.S.No.345 of 1978
on an erroneous reasoning the relief of title was not granted but however
injunction was granted.  The defendants are the absolute owners of the
properties.  The Will is not genuine and in view of the decisions in the earlier
proceedings between the parties, the plaintiff cannot claim title to the
property or any relief.

5.      On the basis of the above pleadings, the following issues have been framed
by the trial court, for trial:
1) Whether the Will dated 01.03.1969 is executed in a sound and disposing state
of mind and it is binding on plaintiffs?
2) Whether second plaintiff is the daughter of late Kaniz Fiza @ Putli Bee?
3) Whether the decree and judgment in O.S.No.445 of 1974 on the file of IV
Assistant Judge and O.S.No.345 of 1978 on the file of V Assistant Judge and
R.C.No.173 of 1980 on the file of III Additional Rent Controller operates as res
judicata?
4) Whether defendants have perfected their title by adverse possession?
5) Whether the suit claim is barred by time?
6) Whether plaintiffs are entitled to the relief of declaration and possession?
7) Whether the plaintiffs are entitled for damages if so to what amount?
8) To what relief?

6.      On behalf of the plaintiffs, PWs.1 to 4 were examined and marked Exs.A.1
to A.17.  On behalf of the defendants, DWs.1 and 2 were examined and marked  
Exs.B.1 to B.11.

7.      After considering the evidence on record, the lower Court accepted the
Will set up by the plaintiffs and accordingly decreed the suit and aggrieved by
the said judgment and decree, the present appeal is filed by the defendants.

8.      So far as the Second Appeal No.336 of 1990 is concerned, earlier the
appellants have filed O.S.No.345 of 1978 claiming that the defendants are the
absolute owners of the property and they sought for a declaration of title and
injunction.  The same contentions were raised in that suit and the Court found
that the plaintiffs in O.S.No.756 of 1991 have no relationship with Kaneez Fiza
and also failed to establish the execution of the Will, but however by applying
the principles under Order II, Rule 2 of Code of Civil Procedure (for short,
'CPC') and on the principles of limitation, the relief of declaration was not
granted but injunction was granted.  As against that the appeal A.S.No.292 of
1988 was filed and the appeal was allowed dismissing the suit even with regard
to the partial relief of injunction.  As against that the Second Appeal is
filed.  Both the appeals were heard together.

9.      The points that arise for consideration are:
1) Whether the Will dated 01.03.1969 in favour of 1st plaintiff by name Mohd
Ayaz Khan in O.S.No.756 of 1991 is true, valid and confers rights on the
plaintiffs?
2) Whether the plaintiffs are entitled for the relief of the declaration and for
recovery of possession of the property as granted by the lower Court?
3) Whether on the principles of res judicata and in view of the earlier
decisions in O.S.No.445 of 1974 and 345 of 1978 and R.C.C.No.173 of 1980 the 
plaintiffs are not entitled for any relief?

10.     So far as the 2nd appeal is concerned, the legal questions that falls for
consideration are:
1. Whether the application of the principles of Order.2, Rule 2 of CPC by the
Courts is proper?
2. Whether the principles of res judicata are not applicable?
3. Whether the application of the law of limitation by the Courts is legal, when
the possession of the property is found with the appellants herein, the denial
of injunction, consequent on the denial of title of the other party is valid?
4. Whether the mere non-filing of the appeal against certain findings the
appellants are estopped from showing and disputing the correctness or otherwise
of the findings?

11.     POINTS:  
        In both the cases the litigation is old and it has started in the year,
1974 when on the basis of the Will, mutation is said to have been effected in
the municipal records in favour of the 1st plaintiff and consequently the suit
O.S.No.445 of 1974 was instituted.  The fact that the property belonged to
Kaneez Fiza is admitted by all sides and the fact that Nazar Hussain is the son
of Mohad. Thaqui, who had two wives and he is the son through the 1st wife and
Kaneez Fiza is the second wife is also undisputable.  Therefore, Nazar Hussain
becomes the heir of Kaneez Fiza.  It is to be noted that the specific claim made
by the plaintiffs that the 2nd plaintiff is the daughter of Kaneez Fiza and
Mohd.Thaqui and as a successor to the property was not accepted by the lower 
Court and the relief based as a succession alternatively was dismissed by the
lower Court, no appeal is filed by her.
12.     The decision in both these matters depends on the findings as to whether
the Will set up by the plaintiffs, which was marked as Ex.A.4 is true and valid.
Apart from it, the further consideration will be as to whether the 2nd defendant
and his father Syed Nazar Hussain succeeds to the property of Kaneez Fiza even
if the benami nature of the sale is not believed.
13.     Touching on the rights of the parties, in all the earlier litigation
evidence was let in and determined by the Courts.  Evidently, apart from
O.S.No.445 of 1974 another suit, which has got relevancy is O.S.No.345 of 1978.
The said suit was filed by Syed Nazar Hussain and others for declaration of
title to the property and injunction against the plaintiffs in O.S.No.756 of
1991.  The copy of the said judgment, which was marked as Ex.A.10, does not in
dispute that in the said suit the present plaintiffs in O.S.No.756 of 1991 set
up title in themselves relying on the Will-Ex.A.4 and the Court has not accepted
the said Will and the said suit was partly decreed for injunction and the
declaration in favour of the appellants was rejected on the application of the
principles of Order II Rule 2 CPC.  In fact, strenuous effort was made by the
counsel for the respondents to support the judgment in O.S.No.756 of 1991 on the
ground that in the earlier suits the determination of the validity or
genuineness of the Will was not at all in issue and consequently even if the
claim of the plaintiffs in O.S.No.345 of 1978 is not accepted the suit
O.S.No.756 of 1991 is maintainable and the principles of res judicata have no
application.  In fact, the lower Court also was of the view that there was no
issue for determination of the genuineness of the Will and consequently the
principle of res judicata has no application.
14.     It is unfortunate that the lower Court has taken the view that as there
was no specific issue with regard to the genuineness of the Will, the decision
rendered earlier will not operate as res judicata.  It is to be mentioned that
for the application of the principles of res judicata what is essential is the
determination of the rights of the parties and the rival contentions based on
the pleadings.  It is the identity of the title in the litigations that has to
be taken into consideration and some times the identity of the actual property
may differ in the two cases.  But, in this case, the identity of the property
also does not differ as it relates to the same property.   It is the decision on
a particular aspect of the rights of the parties that has to be taken into
consideration with regard to the title to the property.  When a comprehensive
issue was framed with regard to title of the property claimed by one party and
opposed by the other party, then it is a determination of the rights of the
parties in issue in both the suits.  Merely because a separate issue with regard
to the source of title claimed by the defendants is not framed it does not mean
that the principles of res judicata are not applicable and that the decision in
the earlier suit is not binding.  It is to be noted that the decision of the
Court on the rights of the parties is essential and not the particular framing
of an issue.  In fact, when a suit for declaration of title is filed and the
title is denied by the defendants setting in himself a title under a particular
document, then the issue in the suit will be as to whom is the owner of the
property and any finding touching on that issue will be binding in the
subsequent suit.  Therefore, the contention of the counsel for the respondents
that as no issue was framed specifically with regard to the validity of the Will
in the earlier suits and the consequent finding of the failure to prove the Will
will not operate as res judicata cannot be accepted.  It is needless to say that
in a suit for title the person who establishes better title will be entitled to
the relief and if the title of the defendants who have set up an independent
title is established the suit of the plaintiffs will be dismissed.  But, if such
title is not accepted and when such findings have become final the party is
bound by it.  The limited concept of framing of issue in order to plead for non-
application of the principles of res judicata is untenable and the issue will be
the rights of the parties, which was necessary for determination and when such
determination is made Section 11 of the CPC will apply in all fours.  In this
connection, it is useful to refer to a decision reported in Ram Gobinda Daw and
others, (In all the Appeals) Vs. Smt. H.Bhakta Bala Dassi etc.,1, wherein it was
held that -
        "The test of res judicata is the identity of title in the two litigations
and not the identity of the actual property involved in the two cases but the
previous decision must be one on a title in respect of which a dispute has been
raised and which dispute was heard and finally decided by the Court.  Once the
decision on question of title becomes final it operates as res judicata even if
the value of the subject matter on which the former decision was pronounced was
comparatively very trifling.  When the decision was given by trial Court after
contest it operates as res judicata even if appeal therefrom might have been
dismissed on some preliminary grounds like limitation".
15.     Before adverting to the facts of the case several decisions were also
relied on by the parties.  The counsel for the respondents has relied on by a
decision reported in Alka Gupta Vs. Narender Kumar Gupta2, which dealt with the
scope of Section 11 of CPC and Order II Rule 2 CPC.  So far as Order II Rule 2
CPC is concerned, it was held that a plea has to be raised and an issue is to be
framed thereon, without which the Court cannot dismiss the suit.  It is also
found that if the second suit is based on different cause of action, Order II
Rule 2 CPC has no application.  So also reliance was placed on the decision
reported in Sulochana Amma Vs. Narayanan Nair3, about the application of Section
11 CPC.  The counsel for the respondents also relied on a decision reported in
S.Saraswathi V. Y.Laxminarayana4, wherein it was held that the judgment in Rent
Control proceedings will not operate as res judicata in a suit for declaration
of title.
16.     The learned counsel for the appellants relied on a decision reported in
Commissioner of Endowments and others Vs. Vittal Rao and others5, wherein it was 
held that even if no issue was formally framed in the earlier suit when a point
was material and essential for decision of a case in earlier proceeding, which
has attained finality, it would operate as res judicata between the parties.  He
also relied on a decision reported in Swamy Atmananda and others Vs. Sri
Ramakrishna Tapovanam and others6,  wherein the scope of Section 11 CPC and   
Order II Rule 2 were considered and it was held even in the absence of a formal
issue when the parties have gone to trial on a necessary pleadings and filed the
documents the principles of res judicata were held applicable.  This being the
legal position, it is necessary now to consider about the result of the earlier
proceedings and the validity of them.
17.     The suit O.S.No.345 of 1978 was decided  on 29.01.1988.  In that suit, the
plaintiffs have set up the Will and pleaded absolute title.  But however, a
single issue was framed as to whether the plaintiffs are entitled for
declaration and consequential relief of injunction.  The Court has considered
the entire evidence on record and in Para No.20 of Ex.A.10, the judgment, the
Court held that -
        "In view of my above discussion the plaintiff is legal heir of Kaneez Fiza
and owner of the suit house and the defendant is no way concerned with the suit
house as he failed to establish his relationship with Smt. Kaneez Fiza or
alleged attornment of tenancy of plaintiff's son in his favour and also failed
to establish the execution of Will said to be executed by Smt. Kaneez Fiza.
Hence he has no right to challenge the title of the plaintiff being a stranger
to the suit house".
18.     It was also incidentally found by the learned Judge in para No.14 as
follows:
        "Even in this case also the defendant had not chosen to prove the same and
the learned counsel for the defendant fairly conceded that the said Will is not
valid because it is executed contrary to the Muslim Law as Smt.Kaneez Fiza had
no right to bequeath her entire property.  As such the contention of the
defendant that the Will executed in his favour is a valid document is false.
When Will is not proved and execution of the said document is rejected in the
earlier litigation I don't understand how the defendant is claiming his rights
over the suit premises.  Apart from this he also utterly failed to establish his
relationship with Kaneez Fiza as he admitted in his cross examination on that he
has no document to show that Kubra Begum is the daughter of Kaneez Fiza and also  
deposed Kubra Begum and her husband are also alive". 
        But however, in para No.19, the learned Judge held that -
        "Hence the present suit of the plaintiff is hit by Order 2 Rule 2 CPC as
he omitted the present relief which ought to have asked in the earlier suit
under the same causes of action.  Though the plaintiff had better title than the
defendant herein this legal impediment restraining him to entitle the relief.
Hence the plaintiff is not entitled for the relief of declaration of ownership
over the suit house as it is hit by Order 2 Rule 2 CPC.  But the defendant has
no right to interfere into the suit house taking advantage of this legal
impediment as he has no better title that the plaintiff".

19.     These findings were also considered in the appeal A.S.No.292 of 1988 and
the  copy of the judgment is marked as Ex.A.13.  The learned Judge in Para No.13
found that though the plaintiffs in O.S.No.756 of 1991 claimed title to the
property under the Will, the Will is not proved by any evidence.  The findings
of the lower Court that the Will is not proved and valid is accepted.
Therefore, it is quite clear in O.S.No.345 of 1978, which is comprehensive suit
for a determination of the title to the property between the parties, the rights
of the appellants were accepted but on technical ground by application of
principle of Order 2 Rule 2 CPC, the relief was not granted, whereas there was a
specific finding about the Will set up by the plaintiff in O.S.No.756 of 1991
and holding that does not proved.  It was also found by the trial Court in that
suit that empathetically as follows in Para No.16 of the judgment in O.S.No.345
of 1978-Ex.A.10:
                "As I already stated that the defendant failed to establish the
will, he is not the owner of the house and not having better title than the
plaintiff herein, when he is not derived any title from Kaneez Fiza he had no
right to challenge the plaintiff's title over the suit house by alleging that
the plaintiff stayed in the suit house by virtue of his son's tenancy, as it is
proved that the plaintiff is the sole legal heir of Kaneez Fiza and entitled for
the property being sole legal heir of Kaneez Fiza, as she had no other issues.
The defendant has not concerned with the property as he failed to prove that he
is entitled for the property, under a valid document as well as his relationship
with the said Kaneez Fiza".

20.     Therefore, the above decision in the earlier suit clearly goes to show
that the Will set up by the plaintiffs in O.S.No.756 of 1991 was not accepted as
it was not proved, no effort was made to establish the title set up under the
Will.  A strange argument was developed by the counsel for the respondents
stating that in the above suit, he was not called upon to prove the genuineness
of the Will and it was only with regard to the declaration of the title claimed
by the plaintiffs and consequently, the Will was not an issue directly and
substantially.  This is fallacious.  The title of the plaintiff in that suit was
resisted by setting up a rival title under the Will and in fact, the title of
the plaintiffs was accepted but however on technical grounds the relief was not
granted.  Therefore, the contention that as there was no issue and as the
plaintiffs were not called upon to prove the Will in that suit and consequently
it was not a decision on the Will has to be discarded.  Even in the appeal
against the said suit in A.S.No.292 of 1988 the title of the plaintiffs was also
not accepted.  Therefore, in view of the above circumstances, I have no
hesitation in holding that the title of the plaintiffs under the Will was not
proved and the Will was not accepted in O.S.No.345 of 1988 and consequently any 
finding with regard to title to the property is binding in the subsequent suit
and the judgment of the Court in O.S.No.756 of 1991 in not applying the
principles of res judicata and taking the pains of a decision with regard to the
Will is not warranted and it is erroneous.

21.     Furthermore, the question arises as to whether the Will was proved by the
plaintiffs in this suit.  Evidently, the burden is on the propounder of the Will
to prove the execution of the same.  A Will is a compulsorily attestable
document and it has to be proved that the executant of the Will was conscious
and aware of the contents of the same.  In this case evidently, the relationship
of the plaintiffs with Kaneez Fiza was not accepted by the Courts.  The original
of the Will was not produced before the Court.  Ex.A.4 is only certified copy of
the Will and the reasons for not summoning or producing the original Will is not
forthcoming.  No permission was taken to dispense with the production of the
original.  If the original was marked in the earlier suit O.S.No.445 of 1974, it
could have been easily filed when certified copy was obtained.  The scribe of
the Will was not examined.  PW.2 is said to be aged about 55 years and a
resident of Parbhani and he claims that Kaneez Fiza executed the Will.  His
evidence does not show that the contents of the Will were dictated by the
testator and the reason for execution of the Will and that he signed along with
the other attesters to the witnessing of the testator.  He studied only up to
5th class and he does not know even the name of the husband of the Kaneez Fiza 
and he has not given evidence with regard to the Will earlier.  So also the
evidence of PW.4, who is said to be an Advocate and attester of the Will, is
also not sufficient to establish the Will.  He is not even able to give the name
of the testator and he claims that it was referred in Ex.A.4.  He does not even
say that the contents of the Will were declared by the testator and that it was
drafted in his presence and that he has signed to the witnessing of the
testator.  He does not even know the family particulars of Mohd. Thaqui and he
claims to be accidentally present when he went to the Registrar's Office and
therefore, he attested Ex.A.4, except that he has no prior information.  The
evidence of PW.4 appears to be artificial.  He was not even able to testify the
soundness of the mind of the testator at the time of execution of the Will. If
such is the evidence, the lower Court heard in holding that the evidence of
PWs.2 and 4 establishes the execution of the Will.  Therefore, it is quite clear
that there is no proper proof even in the present suit about the execution of
the Will and the legal requirement of soundness of mind and free Will of the
testator and the declaration of the intention to Will away the property by the
testator were not spoken either by PW.2 or PW.4.  They are also not specific
about the testators signing to their witnessing and they attesting the Will to
the witnessing of the testator.  Therefore, the lower Court has failed to apply
the legal principles in assessing the genuineness of the Will.

22.     Furthermore, the lower Court also ignoring the earlier finding of the
relationship of second plaintiff has given a finding that 2nd plaintiff is
related to Kaneez Fiza, which is also erroneous.  Therefore, the judgment of the
lower Court in accepting the Will and declaring the rights of plaintiff No.1 in
O.S.No.756 of 1991 is not valid by applying the principles of res judicata and
also for want of proof of the Will.

23.     So far as the application of the principles under Order II Rule 2 CPC in
O.S.No.345 of 1978 is concerned, I do not think that it was correct approach.
Evidently, as laid down by the Supreme Court, no issue was framed on that
aspect.  But however, the Court of its own motion considered the aspect.  Even
otherwise, the earlier suit O.S.No.445 of 1974 is essentially a challenge with
regard to the mutation effected in the Muncipal records and a claim to the
rights in the property.  It was not a substantial suit with regard to the title
to the property and ultiminately the suit was dismissed as it was not a suit for
a declaration of title.  As against that judgment in A.S.No.10 of 1978 under
Ex.A.7 the appellate Court found that both parties have failed to prove the
title to the property though endeavour was made and ultimately it was found in
para No.10 as follows:
"The mere fact that the name of the respondent has been entered into the
Municipal records in respect of the suit property, after the death of Kaneez
Fiza it does not follow that the respondent has title to the property the
Commissioner has in fact informed the appellant when he have a notice in
January, 1971 that the change of mutation does not effect the rights, if any, if
the appellant to the property".

24.     The judgment of the appellate Court clearly goes to show that the remedy
was to file a suit for declaration.  It was also found that the only course open
is to file a suit for declaration of title and on the basis of the decree that
may be obtained the correction.  It was also found that -
        "The only course open them for the appellant is to file a suit for
declaration of his title and on the basis of the decree that he may obtain he
should seek for correction in the municipal records".
It can be taken in other words as a permission for filing of the separate suit
for declaration of title even assuming for a moment the principles of Order II
Rule 2 CPC are applicable.  But, I have no hesitation in holding that the
dismissal of the suit O.S.No.445 of 1974 will not in any way bar the filing of
the suit O.S.No.345 of 1978 since the cause of action is quite different.  In
fact, the dismissal of the earlier suit with a direction to sue for declaration
of a title itself creates a fresh cause of action for institution of the suit
for declaration.

25.     Furthermore, while appreciating the maintainability of the suit for
declaration, in Para No.18 under Ex.A.10 the Court found that the suit has to be
filed within a period of three years for declaration of title, which was also
incidentally accepted by the appellate Court in A.S.No.292 of 1988 under
Ex.A.13.  Evidently, the suit is not based after dispossession.  Under Article
65 of the Limitation Act, the suit for declaration of title can be filed when
there is a cloud over the title and the limitation is 12 years and the period of
three years from the knowledge of the claim made by the other side as found by
lower Court does not arise.  Therefore, on this aspect both the appellate Court
and the lower Court have erred.  The period of limitation under Article 65 of
Limitation Act is applicable and the only plea that can be pleaded by the other
side is perfection of title by adverse possession beyond that time.  In this
case, evidently, there was no possession of the plaintiffs.  These two findings
are therefore erroneous and against the settled principles of law and the Courts
below have erred in applying the correct legal provision in the suit O.S.No.345
of 1978 concerning the Second Appeal. 

26.     The principle of law is that a person in possession can protect the
possession against the entire world and even against a true owner. If there is a
settled possession of the property an injunction can be granted.  In this case,
evidently the plaintiffs in O.S.No.756 of 1991 have no title to the property
when once the Will is not believed and the title of the appellants is accepted
though the declaration is rejected erroneously on technical grounds.  The
finding of the appellate Court under Ex.A.13 that the relief of injunction also
cannot be granted as the evidence shows the 1st plaintiff is residing along with
the son and it cannot be said that the party is in possession of the said
property having right or title, and refusal of the injunction, is incorrect.  So
also, the finding of the appellate Court that as the declaration of title is
refused the consequential relief of injunction cannot be granted is also
erroneous.  It is to be noted that the declaration of title is not granted, on
an erroneous approach and not finding that there is no title or finding that the
other side is having title to the property.  Therefore, a person in possession
of the property can protect the possession as of right unless and until duly
evicted by person with title.  In this case, earlier attempts in the eviction
proceedings failed and the title under the Will being not accepted, the 1st
plaintiff in O.S.No.756 of 1991 has also no right to seek for recovery of
possession of the property.  Under such circumstances, the person in possession
is entitled for injunction even if declaration is refused.  In view of the
decision in O.S.No.756 of 1991 that the plaintiffs are not entitled for the
declaration of title, the possession has to be protected.  In this connection,
it is useful to refer to a decision reported in Rame Gowda (Dead) by LRs. Vs.
M.Varadappa Naidu (Dead) by LRs and another7, in that case the plaintiff filed a
suit alleging his title as also his possession over the disputed piece of land.
The trial court found that although the plaintiff had failed in proving his
title, he had succeeded in proving his possession over the suit property, which
he was entitled to protect unless dispossessed therefrom by due process of law.
On this finding the trial court issued an injunction restraining the defendant-
appellant from interfering with the peaceful possession and enjoyment of the
plaintiff-respondent over the suit property.     The defendant's appeal was
dismissed by the High Court.  He then appealed to the Supreme Court.  The
Supreme Court while considering the rival contentions and the principles of law
with regard to the possession and injunction and referring to earlier decisions
held that a person in settled possession is entitled for injunction and
possession itself is a better title when the defendant himself fails to prove
the title.  In this connection, it is useful to refer to the para Nos.7 and 8 of
the above Judgement, which is as follows:


"7.     The thought has prevailed incessantly, till date, the last and latest one
in the chain of decisions being Ramesh Chand Ardawatiya v. Anil Panjwani (2003)
7 SCC 350. In between, to quote a few out of several, in Lallu Yeshwant Singh v.
Rao Jagdish Singh (AIR 1968 SC 620 : (1968) 2 SCR 203), this Court has held that
a landlord did commit trespass when he forcibly entered his own land in the
possession of a tenant whose tenancy has expired. The Court turned down the 
submission that under the general law applicable to a lessor and a lessee there
was no rule or principle which made it obligatory for the lessor to resort to
Court and obtain an order for possession before he could eject the lessee. The
Court quoted with approval the law as stated by a Full Bench of Allahabad High
Court in Yar Moh v. Lakshmi Das (AIR 1959 All 1 : 1958 All LJ 628 (FB)):
 "Law respects possession even if there is no title to support it. It will not
permit any person to take the law in his own hands and to dispossess a person in
actual possession without having recourse to a Court. No person can be allowed
to become a Judge in his own cause."  (AIR p.5, para 13)
In the oft-quoted case of Nair Service Society Ltd. v. K. C. Alexander (AIR 1968
SC 1165 : (1968) 3 SCR 163), this Court held that a person in possession of land
in assumed character of owner and exercising peaceably the ordinary rights of
ownership has a perfectly good title against all the world but the rightful
owner. When the facts disclose no title in either party, possession alone
decides. The Court quoted Loft's maxim- "Possessio contra omnes valet praeter
eur cui ius sit possessionis (he that hath possession hath right against all but
him that hath the very right)" and said.  (AIR p.1175, para 20)
"A defendant in such a case must show in himself or his predecessor a valid
legal title, or probably a possession prior to the plaintiff's and thus be able
to raise a presumption prior in time".
In M.C. Chockalingam  v. V. Manickavasagam ((1974) 1 SCC 48), this Court held 
that the law forbids forcible dispossession, even with the best of title. In
Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, ((1989) 4 SCC 131), it was held  
that where a person is in settled possession of property, even on the assumption
that he had no right to remain on the property, he cannot be dispossessed by the
owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat
Singh ((1995) 3 SCC 426), this Court held that disputed questions of title are
to be decided by due process of law, but the peaceful possession is to be
protected from the trespasser without regard to the question of the origin of
the possession. When the defendant fails in proving his title to the suit land
the plaintiff can succeed in securing a decree for possession on the basis of
his prior possession against the defendant who has dispossessed him. Such a suit
will be founded on the averment of previous possession of the plaintiff and
dispossession by the defendant.         
8. It is thus clear that so far as the Indian law is concerned the person in
peaceful possession is entitled to retain his possession and in order to protect
such possession he may even use reasonable force to keep out a trespasser. A 
rightful owner who has been wrongfully dispossessed of land may retake
possession if he can do so peacefully and without the use of unreasonable force.
If the trespasser is in settled possession of the property belonging to the
rightful owner, the rightful owner shall have to take recourse to law; he cannot
take the law in his own hands and evict the trespasser or interfere with his
possession. The law will come to the aid of a person in peaceful and settled
possession by injuncting even a rightful owner from using force or taking the
law in his own hands, and also by restoring him in possession even from the
rightful owner (of course subject to the law of limitation), if the latter has
dispossessed the prior possessor by use of force. In the absence of proof of
better title, possession or prior peaceful settled possession is itself evidence
of title. Law presumes the possession to go with the title unless rebutted. The
owner of any property may prevent even by using reasonable force a trespasser
from an attempted trespass, when it is in the process of being committed, or is
of a flimsy character, or recurring, intermittent, stray or casual in nature or
has just been committed, while the rightful owner did not have enough time to
have recourse to law. In the last of the cases, the possession of the
trespasser, just entered into would not be called as one acquiesced to by the
true owner".
        
The above decision clearly applies to the facts of the case and the appellants
in second appeal are entitled for the injunction as granted by the lower Court,
which was erroneously interfered by the appellate Court.

27.     Therefore, for all the above reasons, I find all the points in favour of
the appellants and I hold that the plaintiffs in O.S.No.756 of 1991 are not
entitled for the declaration of title and consequently City Civil Court Appeal
No.225 of 2001 and Second Appeal No.336 of 1990 are liable to be allowed.

28.     In the result, City Civil Court Appeal No.225 of 2001 is allowed and
O.S.No.756 of 1991 on the file of I Senior Civil Judge, City Civil Court,
Hyderabad,  is dismissed.  Second Appeal No.336 of 1990 is allowed and the
Judgment in A.S.No.292 of 1988 on the file of Additional Chief Judge, City Civil
Court, Hyderabad is set aside, and the judgment of the lower Court in O.S.No.345
of 1978 on the file of V Assistant Judge, City Civil Court, Hyderabad is
restored.  Each party shall bear their own costs.

?1 AIR 1971 SUPREME COURT 664       
2 (2010)10 Supreme Court Cases 141  
3 (1994) 2 Supreme Court Cases 14  
4 2004(6) ALT 95 
5 AIR 2005 SUPREME COURT 454      
6 (2005)10 Supreme Court Cases 51  
7 (2004)1 Supreme Court Cases 769  .

appointment of advocate - commissioner -when ?- Whenever there is a dispute regarding boundaries or physical features of the property or any allegation of encroachment as narrated by one party and disputed by another party, the facts have to be physically verified, because, the recitals of the documents may not reveal the true facts and measuring of land on the spot by a Surveyor may become necessary. It is always better if the parties are allowed to adduce evidence at the stage of trial for better appreciation of the facts which will help the Court in effectively deciding the main dispute between the parties. If there is some delay in filing the application to appoint an Advocate Commissioner and if there are some laches on the part of one party, the Court may impose reasonable costs, but it is not desirable to dismiss an application on the ground of mere delay in filing it. In the light of the above referred decisions, I am of the view that the impugned order does not sustain in the eyes of law.

posted 27 Oct 2011, 06:40 by advocatemmmohan Mandagaddi murali mohan

THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR             
CIVIL REVISION PETITION No.3266 of 2007    

01-04-2011 

Shaik Zareena Kasam  

Patan Sadab Khan and others  

Counsel for the petitioner:V.R.Reddy Kovvuri, Advocate

Counsel for the Respondents:---

:ORDER:-  

        
This revision is directed against the order dated 11.06.2007 passed in
I.A.No.293 of 2007 in O.S.No.209 of 2004 by the Principal Junior Civil Judge,
Rayachoty, Kadapa District.

2.      The petitioner herein is defendant No.3 and the first respondent herein is
the plaintiff in the Original Suit.  For the sake of convenience, the parties
will be referred to as they were arrayed in the Original Suit.

3.      The brief facts of the case are as follows:-

The plaintiff - Patan Sadab Khan filed a suit being O.S.No.209 of 2004 before
the Court below seeking permanent injunction against the defendants therein, not
to interfere with his peaceful possession and enjoyment of the suit schedule
property, which has been described as rice mill which is running in the name and
style of 'Gora Industrial Complex' at G.K.Rachapalli of Madithadu Revenue
Village of T.Sundupalli Mandal in Survey No.984/A in an extent of Acs.0.20 cents
bounded on the east by vacant site and juice factories, west by Rastha, North by
Rastha and South by Rayachoty - Pincha Road.  
4.      The plaintiff claimed to be the owner of the suit schedule property and
that he had constructed the rice mill and obtained permission to run the same.
The first defendant is the father and the second defendant is the brother of the
plaintiff and the third defendant was subsequently impleaded as party to the
suit.  The third defendant filed a written statement mainly contending that
there is no such rice mill in an extent of Acs.0.20 cents of land Survey
No.984/A, as shown in the suit schedule within its boundaries.  The contention
of the plaintiff that the suit property is his self acquired property was also
denied.  We are not concerned with the other pleas raised by the parties in this
revision.  The only dispute that is to be adjudicated in this revision is
whether the rice mill is situated in an extent of Acs.0.20 cents of land within
the boundaries of the plaint schedule in Survey No.984/A.

5.      The third defendant filed an application in I.A.No.293 of 2007 before the
Court below to appoint an Advocate Commissioner to inspect the suit property and
to note down the physical features and to take photographs of the same with the
assistance of the sketch prepared by the Municipal Surveyor, T.Sundupally.  In
her application, she had specifically mentioned that there is no such rice mill
as alleged by the plaintiff in Survey No.984/A in Acs.0.20 cents of land.  The
plaintiff filed counter and he had taken two grounds, i.e., (1) The petition
filed by the third defendant is belated one; and (2) The third defendant had
admitted that the suit property is covered under Survey No.984/A in an extent of
Acs.0.20 cents of land.

6.      The Court below, observing that the main suit is filed for declaration and
permanent injunction and that the suit is coming up for cross-examination of
P.W.1 and at that stage, this petition for appointment of Advocate Commissioner
was filed and that the petition is belated one and that there are no grounds to
appoint an Advocate commissioner, dismissed the petition filed by the petitioner
herein, which is impugned in this revision.

7.      Learned counsel for the petitioner, in support of his contention that an
Advocate Commissioner should be appointed to inspect the suit property, has
relied upon the judgment of this Court in the case between Varala Ramachandra
Reddy Vs. Mekala Yadi Reddy and others1, wherein, it was held that an Advocate 
Commissioner can be appointed in an injunction suit for local inspection of the
suit site and to demarcate the suit schedule property with the help of the
Surveyor.  Learned counsel has also relied on the judgment of this Court in the
case between Mallikarjuna Srinivasa Gupta Vs. K.Sheshirekha2, in which case, a
suit was filed for declaration of title and an application was filed contending
that the defendant therein encroached a portion of the site.  The stand of the
defendant therein was that he has not encroached any portion of the site as
alleged by the plaintiff.  In the circumstances, this Court held as follows:-
"By mere looking into the sale deed or the lay out, it is not possible to
determine the rights, unless it is verified whether any portion of the building
is constructed in Plot No.62.  Therefore, it is essential to consider the
request of the petitioner for appointment of Advocate Commissioner for the
purpose mentioned therein."
        
Thus, directing the lower Court therein to appoint an Advocate Commissioner to
inspect the land with the help of the Surveyor, the said revision was allowed.

8.      The only point that arises for consideration in this revision is whether
the impugned order is sustainable.

9.      Admittedly, according to the plaintiff, the rice mill is situated in an
extent of Acs.0.20 cents of land in Survey No.984/A within the specific
boundaries as shown in the plaint.  According to the third defendant, the said
contention of the plaintiff is not correct and that there is no such rice mill
in an extent of Acs.0.20 cents of land.

10.     Whenever there is a dispute regarding boundaries or physical features of
the property or any allegation of encroachment as narrated by one party and
disputed by another party, the facts have to be physically verified, because,
the recitals of the documents may not reveal the true facts and measuring of
land on the spot by a Surveyor may become necessary.  It is always better if the
parties are allowed to adduce evidence at the stage of trial for better
appreciation of the facts which will help the Court in effectively deciding the
main dispute between the parties.  If there is some delay in filing the
application to appoint an Advocate Commissioner and if there are some laches on
the part of one party, the Court may impose reasonable costs, but it is not
desirable to dismiss an application on the ground of mere delay in filing it.
In the light of the above referred decisions, I am of the view that the impugned
order does not sustain in the eyes of law.

11.     In the result, the Civil Revision Petition is allowed by setting aside the
impugned order.  The Court below is directed to appoint an Advocate Commissioner
and the Advocate Commissioner so appointed may take the Work-Memo from both the    
parties and after putting both the parties on notice, should execute the warrant
and submit his report into the Court.  The Advocate Commissioner may, if so
advised, take the assistance of the Surveyor in executing the work.  There shall
be no order as to costs.

?1 2010 (4) ALD 198 
2 2006 (3) ALD 362 .

supression of material facts - not entitled for any equitable reliefs?= In the instant case, the case of the plaintiffs is not specific as to the cause of intervention of the defendants over their possession in the suit land. The plaintiffs conveniently pleaded that the property is their ancestral property and that the respondents are interfering with their possession and enjoyment. It is very well established from the evidence adduced on either side that the suit land actually belongs to the Deity Sri Ramalingeshwara Swamy enshrined in Gumada village. It therefore seems to me that the plaintiffs purposefully suppressed the material fact viz., that the suit land belongs to the Deity. Having regard to the peculiar facts and circumstances of the present case, I would hold that the plaintiffs are not entitled for the equitable relief of injunction on account of the suppression of material fact as afore-stated and also that they cannot file a suit for bare injunction without the relief of declaration of title.

posted 27 Oct 2011, 06:30 by advocatemmmohan Mandagaddi murali mohan

THE HON'BLE SRI JUSTICE R.KANTHA RAO        
SECOND APPEAL No. 1407 of 2004      

15-06-2011 

Attada Gangu Naidu and another  

Deepala Chandra Mouli and others 

Counsel for theAppellants:Sri.K.Somakonda Reddy  

Counsel for the respondents:Sri.V.T.M.Prasad

:JUDGEMENT:    

        This second appeal is directed against the Judgement and Decree dt.
4.8.2004 in A.S.No. 17 of 2002 passed by the Senior Civil Judge, Parvathipuram
whereby the learned Senior Civil Judge reversed the Judgement and Decree dt.
17.5.2002 in O.S.No. 30 of 1999 passed by the Junior Civil Judge, Parvathipuram.
        I have heard the learned Counsel appearing for the parties.
        The plaintiffs are the appellants herein.  For the sake of convenience,
the parties will be referred as the plaintiffs and the defendants.
        The plaintiffs instituted O.S.No. 30 of 1999 for injunction simplicitor
against the defendants claiming that they are the owners of the suit schedule
land of an extent of Ac. 4.28 in S.No. 51/1 and an extent of Ac. 1.28 in S.No.
51/2 of Gumada village, Komarada Mandal, Vizianagaram District.  It is asserted
by the plaintiffs that the suit schedule property is their ancestral property
and they have been in possession of the same by cultivating it as owners.
According to them, when the defendants have tried to interfere with their
peaceful possession and enjoyment of the suit schedule property, they filed the
suit for injunction against them.
        It was the contention of the defendants that the suit schedule property
belongs to Sri Ramalingeswaraswamy Devasthanam of Gumada village and that the   
1st defendant who is the Trustee and Archaka of the temple has been in
possession of the suit property and cultivating it by engaging hired labour and
the derived income was being used for Dhoopa, Deepa Naivedyam of the Deity.  It
is also contended that the Sri Ramalingeswraswamy Devasthanam is also having  
some other lands in the same village and they are under the cultivation of some
ryots.  It is pleaded that the plaintiffs have never been in possession of the
suit land and they have no right whatsoever in the suit land.
        On the pleadings of the parties, the trial court framed the following
issues:
i) Whether the plaintiffs are in possession and enjoyment of the suit schedule
properties.
ii) Whether the possession and enjoyment of plaintiffs over the schedule
property is lawful.
iii) Whether the 1st defendant alone is in possession and enjoyment of the suit
land as a Trustee and Archaka of the Deity, Sri Ramalingeswaraswamy of Gumada.  
iv) Whether the suit for mere injunction is not maintainable.
v) Whether the plaintiffs are not entitled seek for permanent injunction.
vi) To what relief.
Additional issues:
i) Whether the suit lands are endorsed to the Deity Sri Ramalingeswara Swamy of
Gumada village and in the income from the suit land is being utilised for
Dhoopa, Deepa Naivedyam of the Deity. 
ii) Whether the Endowments Department has got title to and possession of the
suit lands.
iii) Whther the defendants 9 to 11 are having any right, claim or interest over
the schedule property.
During the trial, on behalf of the plaintiffs Pws 1 to 3 were examined and Exs:
A.1 to A.33 were marked.  On behalf of the defendants DWs 1 to 5 were examined 
and Exs:B.1 and B.2 were marked.  Ex:X.1 was marked by the Court.  
The learned trial court upon considering the entire evidence on record allowed
the suit and granted decree for simple injunction against the defendants, by the
Judgement and Decree dt. 17.7.2002.  Aggrieved by the same, the defendants filed
A.S.No. 17 of 2002 before the Senior Civil Judge, Parvathipuram, who after
hearing both sides reversed the findings of the trial court and dismissed the
suit filed by the plaintiffs.
Aggrieved by the Judgement and Decree dt. 4.8.2004 passed by the learned Senior 
Civil Judge, Parvathipuram, the present second appeal is filed.
This Court framed the following substantial questions of law for consideration
at the time of admitting the second appeal:
i) Whether the appellate court was correct, when it held that " as seen from the
evidence available on record it is manifest that the plaintiffs are in
possession and enjoyment of the suit schedule land but their claim as owners of
the suit property is not proved to the hilt".
ii) Whether the appellate court was correct in reversing the Judgement of the
trial court when it found as a fact that the appellants are in possession of the
suit land and that they did not seek the prayer for declaration as under Section
37 of the Specific Relief Act the appellants are not entitled to sue for a mere
injunction without adding the prayer for declaration of their title when the
respondents threatened to interfere with the lawful possession of the appellants
herein.
iii) Whether the appellate court was correct in reversing the Judgement of the
trial court without meeting its reasoning.
iv) Whether the appellate court acted contrary to law when it reversed the
Judgement of the trial court on surmises and baseless suspicion.

This Court in exercise of jurisdiction under Section 100 C.P.C. can interfere
with the findings arrived at by the 1st Appellate Court if they involve any
substantial question of law which has been wrongly decided or when the findings
of fact recorded by the 1st Appellate Court are either perverse or contrary to
the evidence on record and based on irrelevant considerations.
The appellants/plaintiffs filed Exs:A.1 to A.12 the certified copies of Adangals
for the Faslies 1383, 1387, 1390, 1392, 1397, 1400, to 1407 respectively,
Ex:A.13 Pattadar Passbook and the land revenue receipts Exs:A.14 to A.33.  The 
learned trial court considering the fact that the names of the plaintiffs are
found in the certified copies of Adangals, the land revenue receipts indicate
that the 1st appellant has been paying land revenue for the suit lands and
Ex:A.13 the Pattadar Passbook reveals that the 1st appellant is the pattadar of
the suit land, arrived at the conclusion that the plaintiffs are in possession
and enjoyment of the suit land and they are entitled for simple injunction and
accordingly decreed the suit granting permanent injunction.  The learned trial
court also held that the defendants did not adduce any evidence to prove that
the suit land belongs to Sri Ramalingeswara Swamy Temple of Gumada village and  
therefore the defendants cannot resist the suit for injunction simplicitor filed
by the plaintiffs.  The trial court further expressed the view that since the
defendants did not adduce any evidence in proof of the fact that the suit land
belongs to Sri Ramalingeshwaraswamy Temple, the plaintiffs need not seek the
relief of declaration of title and that they can maintain the suit for simple
injunction.
The learned Counsel for the defendants would submit that the trial court
overlooked the crucial evidence, which was adduced by the defendants and also
some material facts borne out from the documentary evidence adduced by the 
parties.  The learned Counsel invited my attention to Ex:B.1 the certified copy
of Settlement Fair Adangal wherein it is clearly mentioned that the pattadar of
the suit land is the Deity Sri Ramalingeswara Swamy.  It is also mentioned in
enjoyer's column that the suit land is divided into small extents and they are
in possession of several persons.  Ex:B.1 further shows that there are some
other lands belonging to the Deity Sri Ramalingeswara Swamy in other survey
numbers and they are under cultivation of different ryots.  Ex:B.2 the certified
copy of Cultivation Account for the Fasli 1408 indicates that the Deity Sri
Ramalingeswara Swamy is the patadar of the suit land and that Duvvada Somalingam  
and Duvvada Annapurna are the trustees of the suit land.  Further in Exs:A.8 to
A.12 the certified copies of Adangals the names of D.4 to D.8 and others are
mentioned as Dharma Karthas of Sri Ramalingeswara Swamy Temple and they are also    
shown to be the pattadars of the suit land.
The main contention of the respondents/defendants from the beginning is that the
1st appellant/plaintiff was the village Munisff and subsequently he became the
Village Administrative Officer of Gumada village and he manipulated the entire
record and the documents filed by the plaintiffs are fabricated documents and no
reliance can be placed on them.  Pw.1 admitted in his evidence that he worked as
VAO of Gumada village and he denied the suggestion that he manipulated the 
records.
DW.5 the Mandal Revenue Officer, Komarada before whom the proceedings under    
Section 145 Cr.P.C. were initiated prior to institution of the present suit and
who made an enquiry in the said proceedings in M.C.No. 50 of 1997 gave evidence
before the trial court and he stated that the names of Duvvada Somalingam and
Duvvada Annapurna are mentioned as Dharma Karthas (trustees) of Ramalingeswara   
Swamy temple for the lands in S.No. 51/1 and 51/2.  He also stated that the said
Adangals were prepared during the settlement operations which took place during
1957- 1962 and the Fair Adangals were prepared after due enquiry with regard to
title, possession and enjoyment in respect of the suit lands.  He also further
stated that while conducting enquiry under Section 145 Cr.P.C. in M.C.No. 50 of
1997 he found that temple authorities also have interest in the suit lands and
he made correspondence with them suggesting to work out their remedies. 
From the evidence adduced by both the parties, it is clear that the suit lands
in fact belong to the Deity Sri Ramalingeswara Swamy of Gumada village.  Though
both the courts below after appreciating the evidence on record found that the
plaintiffs are in possession of the suit lands, the 1st Appellate Court reversed
the decree and judgement of the trial court on the ground that the plaintiffs
suppressed the material fact that the suit lands belong to Sri Ramalingeswara
Swamy temple and that the plaintiffs set up title in themselves but failed to
prove the same.  The 1st Appellate Court also held that the plaintiffs are not
entitled for the equitable relief of injunction for suppressing the fact that
the suit land actually belongs to Sri Ramalingeswara Swamy Temple.  In the
circumstances of the case mentioned above, the 1st Appellate Court also
expressed the view that without seeking the relief of declaration of title, the
appellants cannot maintain the suit for simple injunction.
Sri.Somakonda Reddy, the learned Counsel for the appellants/plaintiffs would
submit that since both the courts have found that the plaintiffs are in
possession of the suit land, the 1st Appellate Court is not justified in
reversing the judgment of the trial court and dismissing the suit.  According to
the learned Counsel, it is not obligatory on the part of the plaintiffs to seek
the relief of declaration of title and without seeking such a relief, they can
maintain the suit for simple injunction.  The learned Counsel in support of his
contention, relied on the decision in M.Kallappa Setty vs. M.V.Lakshminarayana
Rao1 wherein the Supreme Court held as under: 
"The plaintiff can on the strength of his possession resist interference from
persons who have no better title than himself to the suit property.  Once it is
accepted, as the trial court and the first appellate court have done, that the
plaintiff was in possession of the property ever since 1947 then his possession
has to be protected as against interference by someone who is not proved to have
a better title than himself to the suit property.  On the findings arrived at by
the fact finding courts as regards possession, the plaintiff was entitled to the
second relief(injunction) asked for by him even if he had failed to prove his
title satisfactorily.

The learned Counsel for the appellants relied on another decision in Muthayyan
Swaminatha Sastrial vs. S.Naraanswamy Sastrial2 wherein it was held that where 
the allegation of the plaintiff is that he is in lawful possession of the
properties and that his possession is threatened to be interfered with by the
defendants, he is entitled to sue for a mere injunction without adding prayer
for declaration of his rights.
The learned Counsel also relied on the decision in Fakirbhai Bhagwandas vs.
Manganlal Haribhai3 wherein it was held that it is not necessary for the person
claiming injunction to prove his title to the suit land and it would suffice if
he proves that he was in lawful possession of the same and his possession was
invaded or threatened to be invaded by a person who had no title whatever.
The learned Counsel for the appellants further relied on a decision in Rame
Gowda vs. M.Varadappa Naidu4 wherein the Supreme Court held as under:   
"A person in possession of land in  assumed character of owner and exercising
peaceably the ordinary rights of ownership has a perfectly good title against
all the world but the rightful owner.  When the facts disclose no title in
either party, possession alone decides.  Possessio contra omnes valet praeter
eur cui ius sit possessionis (he that hath possession hath right against all but
him that hath the very right). In the absence of proof of better title,
possession or prior peaceful settled possession is itself evidence of title.
Law presumes the possession to go with the title unless rebutted.  When the
defendant fails in proving his title to the suit land the plaintiff can succeed
in securing a decree for possession on the basis of his prior possession against
the defendant who has dispossessed him.  Such a suit will be founded on the
averment of previous possession of the plaintiff and dispossessed by the
defendant."

The facts of the decisions relied on by the learned Counsel for the appellants
are altogether different from the facts of the case on hand.  In those cases,
the defendants failed to prove title to the schedule properties and the ratio
laid down therein is that the plaintiff who is in lawful possession of the
property is entitled to protect his possession by filing a suit for mere
injunction.  In all the decisions referred above, the core issue whether the
plaintiff who suppressed the material fact with regard to title, is entitled for
injunction, which relief is equitable and discretionary had not arisen for
consideration.  The defendants in the instant case by adducing enough evidence
demonstrated candidly that the suit lands actually belong to Sri Ramalingeswara
Swamy Temple and that the plaintiffs failed to prove as to how they came into
possession of the suit land and how they have become the owners of the lands
belonging to Deity.  It is not the case of the plaintiffs that they are the
tenants or that they have purchased the lands in any auction conducted by the
temple authorities.  The plaintiffs have asserted in their plaint that the
properties are their ancestral properties but they have not filed any document
to show that the suit lands are their ancestral properties.  Though they filed
Ex:A.13 Pattadar Passbook which was in the name of the 1st plaintiff, it is
settled law that the Pattadar passbook is not proof of title but the contents
therein are presumed to be genuine unless contrary is proved by adducing
rebuttal evidence by the opposite party.  In the instant case, there is
sufficient evidence showing that the suit lands in fact belong to Sri
Ramalingeswara Swamy temple. Therefore, the genuineness of Ex:A.13 the Pattadar   
passbook which was issued in the name of the 1st appellant is very much in doubt
and basing on the said document, it is not open for the defendants to contend
that the title of the suit land vested with them.  The finding of fact recorded
by the learned trial court that the defendants did not adduce any evidence to
prove that the suit land belongs to Sri Ramalingeswara Swamy Temple is factually
incorrect because in the documents filed by the plaintiffs as well as the
defendants it is specifically mentioned that the suit land belongs to Sri
Ramalingeswara Swamy Temple.  In such an event, it has to be necessarily 
presumed that the plaintiffs suppressed the material fact relating to the
ownership of the suit land, set up title in themselves and filed the suit for
perpetual injunction against the defendants who are the Archakas and authorities
of the temple.
The relief of injunction is an equitable relief and the court has discretion
either to grant or refuse the same.  If the court finds that the plaintiff who
approached the court did not come with clean hands, it will refuse him the
relief of injunction.  In the instant case, it is obvious that the
plaintiffs/appellants are guilty of suppression of material fact regarding
ownership of suit land and tried to project the suit property as their ancestral
property.  The 1st Appellate Court is therefore right in reversing the Judgement
and Decree of the trial court and dismissing the suit filed for simple
injunction filed by the plaintiffs.  In the facts and circumstances of the case,
I am of the view that the plaintiffs without seeking the relief of declaration
of title to the suit lands, cannot maintain the suit for simple injunction and
they are not entitled for such a relief.  The suit itself is therefore not
maintainable without seeking the relief of declaration of title.
The issue of maintainability of the suit filed by the plaintiffs for injunction
simplicitor also needs to be examined from the scheme of the A.P. Charitable and
Hindu Religious Institutions and Endowment Act, 1987 (for short 'the Endowments
Act").  The Authorities under the Act are empowered to remove any encroachments 
or unauthorised occupations of the endowment lands. Section 151 of the Act lays
down that no suit or legal proceeding for redressal of a dispute shall be
instituted in any Court of law except under and inconformity with the provisions
of the Act.  Sub-section (2) of Section 84 contemplates a situation where a
party aggrieved by a direction of removal of encroachment can file a suit.  It
proves for filing the suit by a person aggrieved only on the ground that the
charitable and religious institution or endowment has no title to the land,
building or the space.  Therefore, it is implicit in the scheme of the
Endowments Act that a person cannot institute a suit in a civil Court except
contending that charitable or religious institution or endowment has no title to
the property in dispute.  If the plaintiffs assert that the property is that of
their own and file a suit against the Archakas and Authorities of the temple,
they have to necessarily make a mention in their plaint as to why the
authorities of the temple or the archakas, as the case may be, are interfering
with their possession.  If their case is that such interference is on the
footing that the suit land belongs to the temple, they have to invariably seek
the relief of declaration of title.
        In the instant case, the case of the plaintiffs is not specific as to the
cause of intervention of the defendants over their possession in the suit land.
The plaintiffs conveniently pleaded that the property is their ancestral
property and that the respondents are interfering with their possession and
enjoyment.  It is very well established from the evidence adduced on either side
that the suit land actually belongs to the Deity Sri Ramalingeshwara Swamy
enshrined in Gumada village.  It therefore seems to me that the plaintiffs
purposefully suppressed the material fact viz., that the suit land belongs to
the Deity.  Having regard to the peculiar facts and circumstances of the present
case, I would hold that the plaintiffs are not entitled for the equitable relief
of injunction on account of the suppression of material fact as afore-stated and
also that they cannot file a suit for bare injunction without the relief of
declaration of title.
In the strict sense, no substantial question of law is involved in the second
appeal which is sine qua non for maintaining the second appeal under Section 100
C.P.C.  This Court in exercise of powers under Section 100 C.P.C. will not
interfere with the findings of the fact recorded by the first appellate Court
since they are neither perverse nor extraneous to the evidence on record.  The
first appellate court rightly dismissed the suit filed by the plaintiffs and
it's decree and judgment do not warrant any interference in this second appeal.
        The second appeal is accordingly dismissed.  There shall be no order as to
costs.

?1 AIR 1972 SC 2299  
2 AIR 1936 Madras 936  
3 AIR (38) 1951 Bombay 380  
4 (2004) 1 SCC 769 .

whether the deceased was in sound and disposing state of mind at the time of execution of the will. Admittedly, Late Sharadamba was admitted in hospital. Even according to P.W.1, he visited the hospital only on 22.12.1978. Subsequently, he did not visit the hospital. Admittedly, he did not direct any one of his family members to visit the hospital. Therefore, there is no direct oral evidence adduced on behalf of the plaintiff to show the health condition of Late Sharadamba. According to P.W.1, she was unconscious throughout his visit to the hospital. On behalf of P.W.1, P.W.2 has been examined. P.W.2 is working as Administrator in St.Anns Hospital, Vijayawada. According to him, Late Sharadamba was admitted in their hospital on 20.12.1978 and that the relevant entry is noted at Page 491 against Sl.No.17447 and the authenticated Xerox copy is marked as Ex.C.1. According to P.W.2, Late Sharadamba died on 01.01.1979 and the same is mentioned at page No.201 against Sl.No.4 of dead register and Ex.X.2 is the authenticated Xerox copy of that entry. After comparision with the originals, Exs.X.1 and X.2 were returned to the witnesses. According to P.W.2, as per the entries made in Ex.X.1 and X.2, Late Sharadamba was admitted in the hospital due to Cardio Vascular accident. According to him, Late Sharadamba was admitted in General ward. It is elicited in the cross-examination that the entries in the last column of the admission register were written with different ink from that of the entries noted in the other columns. The witness explained that the last column will be only filled at the time of discharge or death of the patient and, therefore, it may be with different ink. P.W.2 is not a medical professional. He is not a doctor who treated Late Sharadamba.

posted 26 Oct 2011, 05:00 by advocatemmmohan Mandagaddi murali mohan

THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR          
Appeal Suit No.1032 of 2004 

24-09-2010 

Banda Sreeramamurthy   

Uppaluri Lalithamba(died)
Mandapaka Bhimeswara Rao and others.    

Counsel for the petitioner: Sri A.Ramalingeshwara Rao

Counsel for the Respondents:    Sri T.S.Anand 
                        Sri Y.Srinivasa Murthy

:JUDGMENT:   

This Appeal is directed against the judgment and decree dated 24.10.2003 passed
in O.S.No.205 of 1998 (old O.S.No.638 of 1990) on the file of III Additional
District Judge at Vijayawada, whereby and whereunder the suit filed by the
appellant was dismissed.

        2.      The parties will be referred as they are arrayed in the original
suit for the sake of convenience.

3.      The brief facts of the case are as follows:-

        The plaintiff is the adopted son of late Banda Satyanarayana & Sharadamba.
He is also sister's son of late Sharadamba.  The first defendant - Lalithamba
(died) is the sister of Sharadamba.  After the death of the 1st defendant, her
legal representatives were brought on record.  Late Banda Satyanarayana, during
his life time, bequeathed the suit schedule property to his wife Sharadamba
under a registered Will in the year 1950.  Banda Satyanarayana died on 16.1.1951
and the Will executed in favour of his wife Sharadamba came in to effect.  It is
the case of the plaintiff that he stayed with his adoptive mother for some time
and later shifted to a separate residence.  Late Sharadamba continued to live in
one portion of the suit schedule house and she was letting out the remaining
portions to defendants 2 to 7 and collecting rents from them.  The first
defendant is widowed sister of late Sharadamba.  She had lost her only son and
was residing with Sharadamba.  Her daughter - 8th defendant, who got estranged
with her husband, began to stay with her mother - the 1st defendant and her
grand mother Sharadamba in the suit schedule house. 

        4.      Late Sharadamba was admitted in St.Ann's Hospital, Bandar Road,  
Vijayawada on 20.12.1978 and she died in the hospital on 1.1.1979.  According to
the plaintiff, he performed the obsequies of late Sharadamba as she is his
adoptive mother.  It is also his case that he was inherited the suit schedule
properties being the sole legal heir and when he tried to take the suit schedule
property, the first defendant and the tenants did not cooperate with him.
Thereupon, he got issued registered notice dated 13.2.1979 to the first
defendant and the tenants but the first defendant gave a reply setting up a
false and forged Will dated 25.12.1978.  Meanwhile, their relatives intervened
and prevailing on the plaintiff to wait for some time hoping that better counsel
might prevail with the first defendant. Subsequently, the first defendant filed
R.C.C.Nos.23 to 26 of 1980 on the file of the Rent Controller, Vijayawada
against the fourth defendant who contested the claim of the first defendant
claiming the property and one of the tenant J.V.Chalapathi Rao pleaded that he
was paying rents to the plaintiff, and, subsequently, those RCCs were dismissed
directing the first defendant to establish her title to the property against the
plaintiff.  The first defendant has not initiated any legal proceedings.  The
plaintiff made efforts to get the record of St.Ann's Hospital, Vijayawada, but
in vain.  Basing on the above averments, the plaintiff filed a suit for recovery
of possession for mesne profits and costs.

        5.      The first defendant filed written statement and denied the
allegations made by the plaintiff.  It is averred that the very fact of
plaintiff instituting the suit after a long delay of about 11 years speaks the
conduct of the plaintiff and that the suit has been filed to grab the property.
The first defendant further admitted in the written statement about the
execution of the registered Will by late Banda Satyanarayana in favour of his
wife late Sardamba bequeathing the suit schedule property.  The specific case of
the first defendant is that as there were disputes between the plaintiff and
late Sharadamba, the plaintiff started living separately and was ill treating
Sharadamba and in the above circumstances, late Sharadamba executed a registered   
Will bequeathing all her properties in favour of the son of the first defendant
U.V.Raghava Rao, but, subsequently, the said U.V.Raghava Rao died and that the 
first defendant was serving Sharadamba to her best satisfaction and the daughter
of the first defendant K.P.Ramalakshmi was also serving Sharadamba.  Late
Sharadamba was very much impressed by the service of the first defendant and her
daughter and she had expressed her intention to execute a Will bequeathing her
properties to the first defendant.

        6.      Thus, the case of the first defendant is that in pursuance of her
intention, Late Sharadamba, in a sound and disposing state of mind, executed a
Will dated 25.12.1978 bequeathing the properties in favour of the first
defendant and her daughter K.P.Ramalakshmi.  The Will was executed in the 
presence of attestors Vempati Venkata Brahmananda Rao and Sakala Venkatappayya     
and it was scribed by one Kamaraju Hanumantha Rao Sharma Pakayaji (Dharma Raju     
Hanumantha Rao).  The factum of execution of Will by late Sharadamba was known  
to the plaintiff.  The first defendant denied the averment of the plaintiff that
late Sharadamba died intestate on 1.1.1979 and that the plaintiff inherited the
plaint schedule property.  She has also denied the other allegations made by the
plaintiff that the plaintiff tried to take possession of the property and that
she did not cooperate with the plaintiff.  However, the first defendant admitted
about the exchange of notices.  She has also admitted about the dismissal of RCC
Nos.23 to 26 of 1980 and the observation of the Rent Controller that the
property rights over the petition schedule property have to be decided by a
competent Civil Court and not by a tribunal.  It is also the case of the
plaintiff that some of the tenants vacated their respective portions and handed
over vacant position to the first defendant recognizing her right over the
property and subsequently, she had let out the portions to the new tenants who
have been regularly paying rents to her.

        7.      Basing on the above pleadings, the lower Court framed the following
issues:-
1. Whether the plaintiff is entitled to possession and profits regarding the
suit property?

2. Whether the suit is belated?

3. Whether there was estrangement between plaintiff and his adoptive mother
Sharadamba, as a result of his ill-treatment towards her?

4. Whether there was a Will executed by Sharadamba in favour of late
U.V.Raghavarao, son of 1st defendant? 

5. Whether the unregistered Will dated 25.12.1978 in favour of Defendant-1 and
her daughter was validly executed in a sound state of health of mind by the late
Sharadamba and it binds the plaintiff?

6. Whether the tenants have recognized the first defendant as their land lord?

7. Whether there was mediation between plaintiff and D1?

8. Whether the plaintiff is entitled for interest?

9. To what relief?

8.      On behalf of the plaintiff, the plaintiff himself was examined as P.W.1
and one Sister of Sugandhi was examined as P.W.2 and Exs.A1 to A5 were marked.    
On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B3 were  
marked and Exs.X-1 to X-7 were marked through witness. 

9.      The learned III Additional District Judge, Vijayawada, having considered
the material and documentary evidence in detail, held that the defendants have
proved the Will and that the plaintiff failed to prove that late Sharadamba was
not in a sound and disposing state of mind at the time of execution of Will and
that there are no suspicious circumstances surrounding the execution of Will and
the testatrix of the Will had given valid reasons for executing the Will in
favour of the first defendant and for not giving any properties to the
plaintiff.  The lower Court also held that it is the first defendant and the
eighth defendant who were looking after the welfare of Sharadamba since a long
time.  The trial Court also held that the Will is proved by examining the
children of the attestors.

10.     Sri A.Ramalingeswara Rao, the leaned counsel for the appellant / plaintiff
vehemently argued that the execution of Will is surrounded by suspicious
circumstances and those suspicious circumstances have not been taken into 
consideration by the lower Court.  His first submission is that the testatrix
was admitted in the hospital and she was unconscious and the record shows that
she was suffering from Cerebro Vascular Accident and in the above circumstances,
there was no possibility of testatrix executing any Will and, therefore, the
Will was fraudulently brought into existence.  It is also his submission that
none of the Doctors who treated Sharadamba were examined and admittedly neither  
any Doctor nor any nurse were present at the time of execution of the Will.  It
is his submission that when Sharadamba was in hospital and was executing a Will,
in all probabilities, they ought to have obtained the signature of the Doctor or
at least the nurse to note down mental condition of Sharadamba to remove
suspicious circumstance that she was unconscious and could not execute the Will. 
It is also his submission that admittedly, the first defendant and her daughter
were present in the hospital at the time of execution of the Will and this shows
that they had influenced Sharadamba to execute the Will and it is also another
suspicious circumstance.  It is his further submission that the 1st defendant
did not whisper in her written statement that late Sharadamba was admitted in
the hospital and it amounts to suppress of the fact.  It is also his submission
that neither the 1st defendant nor the 8th defendant who are the beneficiaries
of the Will had not entered into the witness box to dispel the suspicious
circumstances surrounding the execution of the Will and for not entering into
the witness box, adverse inference has to be drawn against the defendants.  It
is also his submission that the Courts below has failed to evaluate the evidence
in proper perspective and rushed to wrong conclusions.  It is also his
submission that the other circumstances that the Will was not registered and
that late Sharadamba did not file any suit though there was an observation by
the Rent Controller that property rights over the petition schedule property
have to be decided by a competent Civil Court further strengthen the suspicious
circumstances.  It is also his submission that the appellant / plaintiff was
trying to get necessary documents from the hospital and in spite of his making
best efforts, he could not get the relevant documents to prove that late
Sharadamba was unconscious during the period of her treatment and that he was 
also not having sufficient money to pay the Court fee and to meet the cost of
litigation and in the above circumstances there was some delay in approaching
the Court.  It is also his submission that merely because there is a delay in
approaching the Court or in challenging the claim of the 1st defendant, that
itself cannot be made a ground to throw away the plaintiff out of the Court.

11.     Per contra, the learned counsel for the respondents submitted that late
Satyanarayana himself executed a Will bequeathing certain properties to the
plaintiff and the suit schedule property to late Shardamba in the year 1950 and
from that relations between the plaintiff and late Sharadamba were stained and
that there was none to look late Sharadamba and that it is the 1st defendant and
her daughter - the  8th defendant who were looking after late Shardamba and in
the above circumstances, late Sharadamba initially executed a Will in favour of
the son of first defendant but subsequently, the son of the first defendant -
U.V.Raghava Rao died, and, therefore, the said Will became infructuous.   It is
also his submission that since the 1st defendant and her daughter were looking
after late Sharadamba and she was satisfied with their services and intended to
bequeath properties in their favour and as such, Late Sharadamba consulted her
Advocate by name Chaganti Suryanarayana and expressed her intention to execute a  
Will.  It is also his submission that the evidence on record shows that Late
Sharadamba had given necessary instructions to Changanti Suryanarayana,  
Advocate, and that he prepared a draft Will and that it was read over to late
Sharadamba and as per his direction, D.W.1 scribed the Will and later on, the
contents of the fair copy of the Will were read over and explained to late
Sharadamba and that Late Sharadamba affixed her thumb impression on the Will in 
the presence of two persons - Vempati Venkata Brahmananda Rao  and Salaka    
Venkatappayya and that D.W.1 also signed as a scribe.  It is also his submission
that the evidence of D.W.1 clinchingly establishes that late Shardamba was in
sound and disposing state of mind at the time of execution of the Will and that
she had executed the Will in the presence of attestors and that there are no
suspicious circumstances surrounding the execution of the Will.  It is also his
submission that the plaintiff did not refer to any suspicious circumstances in
his claim except simply mentioning that the Will is a fabricated document and
was obtained fraudulently.  It is also his submission that when fraud is
alleged, the burden lies on the plaintiff to prove such fraud.  It is also his
submission that the submissions of learned counsel the plaintiff that the
plaintiff could not get the documents from the hospital and that the financial
condition of the plaintiff was not good were not referred by the plaintiff
either in his affidavit or in his chief examination.  It is also his submission
that it is an admitted case that the 1st defendant filed R.C.Cs against the
tenants and that the Rent Controller had observed that the rights over the
petition schedule property have to be decided by a competent Civil Court and
that the plaintiff did not choose to get impleaded as a party to those
proceedings.  Learned counsel had referred to the evidence in support of his
contention that there were strained relationship between the plaintiff and late
Sharadamba and the contention of the plaintiff (P.W.1) that he visited the
hospital when late Sharadamba was undergoing treatment cannot be accepted  
because subsequently he himself deposed that his brother informed that Late
Sharadamba was unconscious in the hospital for a period of about one week.  It
is also his submission that the recitals of Ex.B.1 - original Will itself show
under what circumstances Late Shardamba executed the Will and it is self
explanatory and that the intention of the testatrix could be seen from the
recitals of Ex.B1.  It is also his submission that the very fact that the
plaintiff (P.W.1) obtained Ex.A.5 after filing of the suit shows that he did not
wait for any medical reports for filing the suit.  Referring to the evidence of
P.W.2 and the documents filed by the plaintiff, it is submitted that in the
register of the hospital, it is noted as CAV and CAV, according to P.W.2, is
Cardio Vascular Accident and the witness called at the instance of P.W.1 herself
described that Late Shardamba had Cardio Vascular Accident it cannot be now 
termed as Cerebro Vascular Accident. 

12.     It is also his submission that neither the case sheet is called for nor
any Doctor is examined and that it is not the case of P.W.1 that he consulted
the Doctor who treated Late Shardamba to show that late Shardamba was  
unconscious while undergoing treatment in the hospital.  It is his submission
that had the case sheet been filed, it would have revealed the health condition
of late Shardamba as her everyday heart beat would be noted in the case sheet
and it would have shown whether late Shardamba was unconscious or in sound state  
of mind.  It is also his submission that in view of the delay in approaching the
Court and in view of the delay caused in commencement of trial, valuable
evidence has been lost and that the attestors who attested the Will died in the
meanwhile and that Changanti Suryanarayana, Advocate, to whom late Shardamba    
gave instructions to draft the Will also died and for these circumstances, the
plaintiff has to be blamed as he approached the Court belatedly, that too after
about 12 years after the execution of the Will.  It is his further submission
that immediately after the death of late Shardamba there were exchange of
notices between the parties in the year 1979 itself and that the first
defendant, in her reply notice in Ex.B.3, categorically stated about the
execution of the Will by late Sharadamba and also the particulars of the
attestors who attested the Will and about giving of instructions by late
Shardamba to his Advocate Changanti Suryanarayana.  It is also his submission
that when all particulars with regard to the execution of Will were already
informed to the plaintiff in 1979 itself, the plaintiff kept quiet and did not
raise his little finger, but, approached the Civil Court only in the year 1979
i.e., after a period of 12 years and that itself shows that the plaintiff has no
case.  It is also his submission that regarding the alleged suspicious
circumstances surrounding the execution of the Will, no suggestions have been
given to D.W.1 or to any of the witnesses examined on behalf of the defendants.
It is also his submission that the attestors who attested the Will died and
their children have been examined to identify the signatures of the attestors
and their evidence clinchingly established that the Will was properly attested.
It is also his submission that it is for the plaintiff to specifically plead the
suspicious circumstances surrounding the Will in his pleadings and had the
plaintiff raised those suspicious circumstances, the burden would have been
shifted to the defendants to dispel those suspicious circumstances and since the
plaintiff himself did not whisper any suspicious circumstances in his pleadings,
the burden does not shift to the defendants.

13.     In support of his contentions, learned counsel for the appellant /
plaintiff had relied on the judgments in Sala Mohommed Jafferbhai Vs. Dame
Janbai1, Rash Mohini Dasi Vs. Umesh Chunder Biswas2, Ram Gopal Lal Vs. Aipna     
Kunwar3, Bhairab Chandra Das and others Vs. The Midnapur Zemindari Co., Ltd.4,  
H.Venkatachala Iyengar Vs. B.N.Thimmajamma and others5, Ramachandra Rambux Vs.        
Champabai & others6, N.Kamalam & another Vs. Ayyaswamy & another7, B.Ramachandra        
Reddy and others Vs. Nelli Subbamma and another8, Niranjan Umeshchandra Joshi    
Vs. Mrudula Jyothi Rao & ors9, Benga Behera & Anr. v. Braja Kishore Nanda & 
Ors10, B.Venkatamuni Vs. C.J.Ayodhya Ram Singh11, Kadiyala Appa Rao Vs. kadiyala     
Kamalamma12, Bharpur Singh & others Vs. Shamsher Singh13, Virupakshappa      
Malleshappa and others Vs. Smt.Akkamahadevi and others14, Rabindra Nath Hazarika    
Vs. Phulti Hazarika15, Gurdial Kaur and others Vs. Kartar Kaur & others16,
Sushila Bala Saha Vs. Saraswati Mondal17, Surendra Nath Lahiri Vs. Jnanedra nath 
Lahiri18, Raj Kumar Deen (died) per LRs. Vs. Dr.A.S.Din19, Vidyadhar Vs.
Mankikrao and another20, G.Jayaprakash Vs. G.Saraswati and others21,   
Balathandayutham and anothers Vs. Ezhilarasan22 and Malampati Suryamba and     
others23.

        14.     In support of his contentions, learned counsel for the
respondent/defendant had relied on judgments in Muddana Malleswara Rao @   
Sambasiva Rao Vs. Karanam Ramaiah & Nagaratnamma Charities rep. by Hereditary     
Managing Trustee, Sri Muddana Bhaskara Rao, and others24 wherein, it was held  
that wherein a hindu widow is vested with certain properties which she enjoys
even before adopting a child, the latter shall not divest even an adoptive
mother of her rights in property, which vested in her before adoption.  The
above principle, which is found in proviso (c) to Section 12 of the Act, is
further made clear in Section 13 of the Hindu Adoptions and Maintenance Act,
1956 which is to the effect that adoption does not deprive the adoptive father
or mother of their power to dispose of property by transfer inter vivos or by
Will.  Wherein a beneficiary under a will is residing in the house where the
Will was executed, her presence at the time of execution of the Will was found
to be not unnatural.  It was observed by this Court that when execution takes
place in the house where she is residing, there is nothing unnatural and,
therefore, it cannot be treated as suspicious circumstance.

15.     Having considered the above rival contentions, the points that arise for
consideration in this appeal are as follows:-

1. Whether the propounder of the Will has proved the execution of the Will by
Late Sharadamba;  

2. Whether there are any suspicious circumstances surrounding the execution of
the will;

3. Whether the testatrix was in a sound and disposing state of mind at the time
of execution of the Will;
4. Whether the propounder had taken prominent role in execution of the will;


16.     The entire sum and substance of the decisions relied upon by the learned
counsel for the appellant/plaintiff and learned counsel for the
respondent/defendant is capsulated in the following paragraph.

        17.     The Will must be attested by at least two witnesses; Will cannot be
used as evidence until at least one of the witnesses is called for the purpose
of proving its execution; Every allegation cannot be treated as suspicious
unless they are well founded on a close scrutiny; Adoption does not deprive the
adoptive father or mother of their power to dispose of the property by transfer
inter vivos or by Will; When the execution of Will takes place in the same house
in which the beneficiary has been residing, her presence at the time of
execution of Will cannot be treated as unnatural; When the attestor is not
alive, his signature can be proved by examining the person who can identify the
attestor's signature; Burden of proof that the Will was forged or that it was
obtained by undue influence or coercion or by playing fraud is on the person who
alleges it to be so; Initial burden lies on the challenger to prove that there
are suspicious circumstances surrounding the execution of Will; if the execution
of Will is surrounded by suspicious circumstances, then the burden shifts to the
propounder to prove that there are no such suspicious circumstances in executing
the Will; and the suspicious circumstances should be abnormal.

POINT Nos.1 & 2:- 

18.     It is settled law that execution of Will must be proved in accordance with
law.  Chapter V of the Indian Evidence Act, 1872, ('the Evidence Act', for
brevity) deals with the subject of documentary evidence.
        
19.     Sections 67, 68 and 69 of the Evidence Act are as follows:-

"Section 67 - Proof of signature and handwriting of person alleged to have
signed or written document produced 
If a document is alleged to be signed or to have been written wholly or in part
by any person, the signature or the handwriting of so much of the document as is
alleged to be in that person's handwriting must be proved to be in his
handwriting."
"Section 68 - Proof of execution of document required by law to be attested

If a document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been called for the purpose of
proving its execution, if there be an attesting witness alive, and subject to
the process of the Court and capable of giving evidence:"
"Section 69 - Proof where no attesting witness found

If no such attesting witness can be found, or if the document purports to have
been executed in the United Kingdom, it must be proved that the attestation of
one attesting witness at least is in his handwriting, and that the signature of
the person executing the documents is in the handwriting of that person."
        
20.     Whether the attesting witness is either dead or out of the jurisdiction of
the Court or cannot be traced despite diligent search, then Section 69 of the
Evidence Act would apply.

21.     Coming to the facts of the case on hand, admittedly, the plaintiff is the
adoptive son of Late Bandaru Satyanarayana.  Late Bandaru Satyanarayana had a  
son through his first wife who died without issues, though married.  It appears
that Late Bandaru Satyanarayana, having regard to the circumstances then
existing, executed a Will bequeathing the suit schedule building to his second
wife - Late Sharadamba and the adjacent building to the plaintiff, i.e., to his
adoptive son.  He had also made a provision by allotting a portion of the
property to the wife of his pre-deceased son.  It is the case of the defendants
that the plaintiff and Late Sharadamba were having strained relations and,
therefore, Late Sharadamba executed a will in favour of her sister's son -
U.V.Raghava Rao.  A reading of the evidence gives an impression that there were
strained relations between the plaintiff and Late Sharadamba (P.W.1).  The
following circumstances show the strained relationship.  Admittedly, Bandaru
Satyanarayana executed a Will giving separate properties to the adoptive son and
to his wife Late Sharadamba and to the wife of the pre-deceased son during his
life time, probably with an idea that there would not be any further disputes
between them and that his wife would not be deprived of the properties which he
intended to give to her.  P.W.1 admitted that by the year 1962, himself and his
adoptive mother - Late Sharadamba were residing separately.   Thus, since about
16 years prior to the execution of the Will on 25.12.1978 by Late Sharadamba,
the plaintiff (P.W.1) and Late Sharadamba were residing separately.  It is the
case of the defendants that the first defendant, her daughter and her son
U.V.Raghava Rao were looking after the needs and necessities of Late Sharadamba  
which fact has not been denied by P.W.1.  According to P.W.1, he does not know 
whether said U.V.Raghava Rao was looking after the needs and necessities of his
adoptive mother even after 1962. When he was questioned about the Will executed 
by Late Sharadamba in favour of Late U.Veera Raghava Rao, he deposed as follows 
"I am not aware of the registration and execution of the will deed in favour of
the U.V.Raghava Rao bequeathing the suit schedule property as he was looking 
after the needs and necessities of the adoptive mother at her advanced age".
Thus, admittedly, the plaintiff was not looking after Late Sharadamba.  The
execution of Will in favour of U.V.Raghava Rao and subsequently registering the
same on 20.03.1962 shows the intention of Late Sharadamba that she was  
determined to give the property to the son of the first defendant - Lalithamba.
The execution of will in favour of U.V.Raghava Rao is the second strong
circumstance in favour of the defendant and against the plaintiff which shows
the intention of Late Sharadamba with regard to the dispossession of her
properties.  The third circumstance showing the strained relationship between
Late Sharadamba and the plaintiff is that the plaintiff did not participate in
the cremation of the dead body of Late Sharadamba.   According to P.W.1, he was 
not informed and, therefore, he could not participate in the cremation.
Admittedly, Late Sharadamba was admitted in the hospital on 20.12.1978 and 
subsequently died on 31.12.1979.  According to P.W.1, his brother Narayana Rao 
is an ordinary resident of Vijayawada and during that period, he was residing at
Eluru and on coming to know that Late Sharadamba was admitted in hospital, he 
visited the hospital on 22.12.1978.  He has also deposed that after visiting her
in the hospital, he went away as she was unconscious.  He has also admitted that
he did not stay in the hospital to look after the needs and necessities of Late
Sharadamba.  He has also admitted that he did not ask anyone of his family
members to attend on Late Sharadamba even after coming to know that she was   
admitted in the hospital or even after his visit to the hospital.  According to
him, as Late Sharadamba was unconscious, he did not instruct any of his family
members to attend on her.  These circumstances clichingly establishes that the
relationship between Late Sharadamba and the plaintiff were stained.    

        22.     It is settled law that surrounding circumstances have to be taken
into consideration as to whether Late Sharadamba intended to execute a Will.
Admittedly, U.V.Raghava Rao, in whose favour she executed the will, died in the
year 1962.  Admittedly, first defendant - Lalithamba and the sister of Late
Sharadamba were looking after Late Sharadamba during the relevant period.  There
is nothing unnatural for Late Sharadamba to express her desire to execute a Will
in favour of her sister - Lalithamba.  The recitals of the Will also throw some
light on this aspect.  The recitals of Ex.B.1 - Will reveal that Late Sharadamba
had explained the circumstances under which she had executed the Will.   The
recitals of Ex.B.1 show that Late Sharadamba was aged about 68 years on the date 
of execution of the Will.  Her husband died in the year 1951.  Her husband
executed a Will on 30.12.1950 and bequeathed the suit schedule property to her.
She had also mentioned that she was not feeling well since about one week and,
therefore, she wanted to execute a Will.  She had also referred to the Will
executed by her in favour of her sister's son U.V.Raghava Rao and about the
death of U.V.Raghava Rao.  Ex.B.1 also shows that Late Sharadamba categorically 
stated that there were strained relations between herself and the plaintiff.

        23.     Now it has to be seen whether the defendants have proved the
execution of Will.  It is the case of the defendants that Late Sharadamba
executed the Will on 25.12.1978.  Admittedly, the plaintiff got issued legal
notice in Ex.A.1 to the first defendant and others claiming right over the suit
land.  The said notice was issued on 13.02.1979 i.e. within three months from
the date of death of Late Sharadamba.  Ex.B.3 is the reply notice issued on
behalf of the first defendant and her daughter K.P.Rama Lakshmi.  It has to be
seen that Ex.B.3 contains al the particulars.  It refers to the circumstances
under which Ex.B.1 Will was executed i.e. strained relationship between Late
Sharadamba and the plaintiff, execution of Will in favour of U.V.Raghava Rao by
Late Sharadamba, death of U.V.Raghava Rao, giving instructions by Late
Sharadamba to Sri Late Chaganti Suryanarayana, Advocate, preparing of draft
will, explaining the contents of the Will to Late Sharadamba, execution of Will
and attestation of the Will by the attestors.   Thus, by sending reply notice in
Ex.B.3 to the plaintiff, the defendants categorically informed about the
execution of Ex.B.1 - Will to the plaintiff.  Admittedly, the plaintiff did not
challenge the Will till he filed the present suit on 18.12.1990 i.e., for about
11 years, the plaintiff kept quiet.  Of course, he claims that he had addressed
a letter to the Superintendent of St.Anns Hospital, Vijayawada to obtain medical
certificate in respect of health condition of Late Sharadamba.  The case of the
defendants is that the draft Will was prepared by P.W.1 as per the instructions
of Chaganti Suryanarayana, Advocate. 
        
24.     The evidence of D.W.2 - S.Srinivas shows that his father Sakala
Venkatappaiah died on 29.10.1998.  The evidence of D.W.1 - N.V.Ananda Kumar   
shows that his father's brother Vempati Venkata Bramhananada Rao, who was   
unmarried, died on 24.10.1993.  According to the defendants, the Will was
executed on 25.12.1978 and their specific case is that Late Sharadamba gave
instructions to her advocate Chaganti Suryanarayana who prepared the draft Will
and directed D.W.1 - Dharmaraju Hanumantha Rao to prepare the will.  According
to D.W.1, basing on the draft prepared by Late Chaganti Suryanarayana, Advocate,
he prepared the fair copy of the Will.  It is most unfortunate that both the
attestors died and could not be examined.  Similarly, Late Chaganti
Suryanarayana, Advocate, to whom according to the defendants, Late Sharadamba   
gave instructions to prepare the Will, is also no more.  Then who is responsible
for this kind of situation.  Admittedly, P.W.1 was cross-examined on 30.12.2002
i.e. after about 12 years after the filing of the suit i.e. after 24 years after
the date of execution of the Will.
        
25.     Due to lapse of time and inaction on the part of the parties or due to the
pendency of the proceedings in the Court or due to the inordinate delay in
disposal of the cases, the net result is that valuable evidence might be
vanished or the witnesses might have died or might not be available or the
valuable documentary evidence might be lost by the time trial is commenced.  It
may be very difficult to secure the witnesses who are well versed with the facts
of the case after a period of two decades.  Had the plaintiff filed the suit
immediately after receiving Ex.B.3 notice either in the year 1979 or in the year
1980, then probably, the doctors who treated Late Sharadamba and the case sheet 
of Late Sharadamba could have been made available to the Court and the doctors
who treated Late Sharadamba could have been examined before the Court to speak  
about the mental condition of Late Sharadamba and the plaintiff would have got
an opportunity to cross-examine Late Chaganti Suryanarayana, Advocate who,  
according to the defendants, prepared the draft of the will and instructed D.W.1
to prepare the fair copy of the Will.  The proverb "Delay defeats the justice"
is aptly applicable to this case.

        26.     According to D.W.2, his father Sakala Venkatappaiah died on
29.10.1998.  He has deposed that he knows the handwriting of his father and that
he could identify the signature of his father.  When this witness was shown the
signature of his father in Ex.B.1 - Will, he identified the signature of his
father.  He has also deposed that he was aged about 13 years in 1978 and the
documents of the year 1978 in which his father signed, were not available in his
house.  This witness was asked to produce the documents of the year 1978 in
2003.  When he was asked to produce the documents of 25 years old and when D.W.2    
says that such documents are not available, we cannot find fault with D.W.2 and
we cannot discard his evidence on this ground.  According to D.W.2, his father
died at the age of 81 years.  Similarly, according to D.W.3, his senior paternal
uncle Vempati Venkata Bramhananda Rao signed as attestor in the Will.  He has 
also deposed that his senior paternal uncle Vempati Venkata Bramhananda Rao was   
unmarried and had no issues.  He has further deposed that he was moving closely
with Vempati Venkata Bramhananda Rao and, therefore, he could identify the
signature of Vempati Venkata Bramhananda Rao and when he was asked to identify   
the signature of Vempati Venkata Bramhananda Rao on Ex.B.1, he identified the 
signature on Ex.B.1.  According to D.W.3, Vempati Venkata Bramhananda Rao    
bequeathed lands under Ex.A.7 under a Will in the year 1993.  Then the witness
produced the Will and the Xerox copy of the Will deed dated 04.06.1993 executed
by Vempati Venkata Bramhananda Rao is marked as Ex.X.7.  According to D.W.3,    
Vempati Venkata Bramhananda Rao was working as clerk and he died at the age of   
78 years.  When he was asked to compare the signatures of Vempati Venkata   
Bramhananda Rao found on Ex.B.1 and Ex.X.7, D.W.3 deposed that he did not find  
any difference between the said signatures of Vempati Venkata Bramhananda Rao on  
Ex.B.1 and Ex.X.7.  Further, he has also admitted that on seeing Ex.X.7, he
could say that his paternal uncle, while scribing signature, stopped at one
point and no such stoppage was noticed in the signature of his paternal uncle in
Ex.B.1.   This witness also expressed his inability to produce the documents of
the year 1978 containing the signatures of his paternal uncle.  The evidence of
D.W.3 reveals that the original of Ex.X.7 was with him and Ex.X.7 also shows the
signature of his senior paternal uncle - Vempati Venkata Bramhananda Rao.
Therefore, the signatures of Vempati Venkata Bramhananda Rao found in Ex.B.7 and  
in its original was available for comparision with the signature of said
attestor on Ex.B.1 and according to D.W.3, he had compared both the signatures.
Both these witnesses have denied they are giving false evidence to support the
case of defendants.  Hence, there appears to be nothing to disbelieve the
version of these two witnesses.
        
27.     Coming to the evidence of D.W.1 - Kondaiah, he is the scribe of the will.
According to him, he prepared the will at the residence of Chaganti
Suryanarayana, Advocate, and that both the attestors, namely Sakala
Venkatappaiah and Vempati Venkata Bramhananda Rao were also called to the house    
of Chaganti Suryanarayana, Advocate, and then all of them proceeded to the
hospital at about 04:00 P.M.  His deposed as follows:- " we all went to American
Hospital.  Banda Sharadamba was found in the room situated in the first floor.
Chaganti Suryanarayana, Advocate, read over the contents and explained the
contents of the Will to Sharadamba, in my presence and Attestors.  The executant
got up from the bed and heard the contents sitting on the bed of the hospital.
She agreed with the contents mentioned in the will and requested him and
attestors to attest the will.  Both the attestors signed in the presence of the
executant on the will.  When I was about to sign as an attestor, Suryanarayana,
Advocate objected me for signing as attestor as I happened to be scribe of the
will.  So I scribed my signature on the will in the capacity of scribe."  He
further deposed that both the attestors appended signatures after the executant
affixed her thumb impression on the Will.  He was thoroughly cross-examined.  He
has deposed that he had no knowledge as to why Chaganti Suryanarayana, Advocate,   
was calling him to his house and only on reaching his house, he came to know
about the purpose.  According to him, Chaganti Suryanarayana, Advocate, prepared 
draft Will in his presence.  His evidence reveals that he had not seen Late
Sharadamba prior to that date and for the first time he had seen her in the
American Hospital and that he had no occasion to see her subsequently.
According to him, she was in a room and not in the hospital ward.  He further
deposed that he did not enquire with Late Sharadamba with regard to her health
problems.  The evidence of D.W.1 also shows that both the attestors died.  When
both the attestors are not available, Section 68 of the Act is not applicable
but Section 69 of the Act is applicable.  Section 69 of the Act envisages that
it must be proved that the attestation of one attesting witness at least is in
his handwriting, and that the signature of the person executing the document is
in the handwriting of that person.  Admittedly, the thumb impression of Late
Sharadamba was obtained on the ground that she was unable to sign.  The 
plaintiff who claims to be the adoptive son of Late Sharadamba did not produce
any other document containing the thumb impression of Late Sharadamba for the 
purpose of comparison of the same with the thumb impression of Late Sharadamba  
on Ex.B.1 - Will.
        
28.     As seen from the evidence of D.Ws.2 and 3, it appears that the evidence of
D.W.3 proves the signature of one of the atteators - Vempati Venkata Bramhananda 
Rao on Ex.B.1 - Will.  According to D.W.3, the signature of Vempati Venkata
Bramhananda Rao on Ex.A.7 was tallying with his signature of on Ex.B.1 - Will.
As far as the signature of other attestor is concerned, the comparision of
signature could not be done as per Section 73 of the Act.  When the witnesses
are asked to produce the documents containing the signatures of the attestors,
naturally such documents could not be made available after a period of 25 years.
In the circumstances, I hold hat the defendants, by the evidence of D.Ws.2 and
3, have proved the signatures of the atteators on Ex.B.1 - Will, particularly
the evidence of D.W.3 appears to be sufficient in the light of Section 69 of the
Evidence Act.  D.W.1, though he is not an attestor, however categorically
deposed hat he had witnessed Late Sharadamba affixing her thump impression on  
Ex.B.1 - Will in the presence of the attestors and that then he signed the same
as scribe.  Though a person might have acted as a scribe, but, still we have to
consider his evidence to know whether he was present at the time of execution of
the Will and whether he had witnessed the testator or testatrix and attestors
signing the Will.  If his evidence on those aspects is acceptable, should be
reject his evidence merely because he is described as scribe.  When, in fact, he
had played both the roles i.e. as scribe and as an attestor, why cannot we
consider his evidence as an attestor?  However, the evidence of D.W.1 proves
that he is the scribe of the document and that the testatrix had put her thumb
impression in his presence on Ex.B.1 - Will.

29.     It is argued that D.W.1 signed the Will as 'Dharmaraju Hanumantha Rao
Pakayaji' whereas in the deposition before the Court, he signed as 'D.Hanumantha
Rao' in English.  Merely because the witness signed as 'D.Hanumantha Rao' in his
deposition and signed in his full name in the Will, that cannot be a
circumstance to disbelieve his evidence.
        
POINT No.3:- 

31.     Now it has to be seen whether the deceased was in sound and disposing 
state of mind at the time of execution of the will.  Admittedly, Late Sharadamba
was admitted in hospital.  Even according to P.W.1, he visited the hospital only
on 22.12.1978.  Subsequently, he did not visit the hospital.  Admittedly, he did
not direct any one of his family members to visit the hospital.  Therefore,
there is no direct oral evidence adduced on behalf of the plaintiff to show the
health condition of Late Sharadamba. According to P.W.1, she was unconscious  
throughout his visit to the hospital.  On behalf of P.W.1, P.W.2 has been
examined.  P.W.2 is working as Administrator in St.Anns Hospital, Vijayawada.
According to him, Late Sharadamba was admitted in their hospital on 20.12.1978
and that the relevant entry is noted at Page 491 against Sl.No.17447 and the
authenticated Xerox copy is marked as Ex.C.1.  According to P.W.2, Late
Sharadamba died on 01.01.1979 and the same is mentioned at page No.201 against   
Sl.No.4 of dead register and Ex.X.2 is the authenticated Xerox copy of that
entry.  After comparision with the originals, Exs.X.1 and X.2 were returned to
the witnesses.  According to P.W.2, as per the entries made in Ex.X.1 and X.2,
Late Sharadamba was admitted in the hospital due to Cardio Vascular accident.
According to him, Late Sharadamba was admitted in General ward.  It is elicited
in the cross-examination that the entries in the last column of the admission
register were written with different ink from that of the entries noted in the
other columns.  The witness explained that the last column will be only filled
at the time of discharge or death of the patient and, therefore, it may be with
different ink.  P.W.2 is not a medical professional.  He is not a doctor who
treated Late Sharadamba. 
        
31.     Learned counsel for the appellant argued that Ex.X.1 shows that in Ex.A.5
it is noted as Cerebro Vascular Accident but in Ex.X.1 it is noted as CVA.
According to P.W.2, 'CVA' is Cardio Vascular Accident.  Of course, in Ex.X.2 it
is noted as Cerebro Vascular Accident, but when P.W.2 himself deposed that it is
Cardio Vascular Accident basing on entry in Ex.X.2, we cannot discard his
evidence and hold that the deceased was suffering from Cerebro Vascular
Accident, particularly in the absence of any suggestion given to P.W.2 or in the
absence of treating the witness as a hostile witness.  Moreover, no evidence has
been adduced to show that the patient was suffering from Cerebro Vascular
Accident.
        
32.     Though the burden lies on the plaintiff to prove that the testatrix was in
sound and disposing state of mind, but in view of the lapse of time from the
date of execution of the Will in view of the evidence of D.W.1 that he was
present in the hospital when Late Sharadamba was read over the contents of the
Will and that she rose from her bed, sat on it and heard the contents of the
Will and then affixed her thumb impression on the Will, now it cannot be said
that Late Sharadamba was not in a sound and disposing state of mind to execute
the Will.  Though the initial burden lies on the defendants, but, by examining
D.W.1, it appears that they have proved that Late Sharadamba was in a sound and
disposing state of mind and now, the burden shifts to the plaintiffs who failed
to adduce any evidence in support of his contention that Late Sharadamba was
continuously unconscious during the period of her treatment in the hospital.
POINT No.4:- 


33.     The other points argued by the learned counsel for the appellant are that
presence of Lalithamba in the hospital is a suspicious circumstance and it shows
that she had influenced the testatrix in execution of the Will.  Admittedly,
Late Sharadamba was not having any other issues.  The plaintiff, who was her
adoptive son, was not looking after her.  Naturally, she was depending on her
sister - the first defendant and her sister's daughter and they were looking
after Late Sharadamba in the hospital.  In the above circumstances, there
appears to be nothing unnatural if the first defendant - Lalithamba was present
in the hospital at the time of execution of the Will.  There is nothing on
record to show that she had any dominant nature or was influencing Late
Sharadamba.  In the absence of such circumstance, mere presence of the 
propounder of the Will at the time of the execution of the Will may not be
sufficient to hold that it is a strong suspicious circumstance to disbelieve the
execution of the Will.  It has to be seen that the first defendant is none other
than the sister of Late Sharadamba.  Of course, the plaintiff is also the son of
one of the sisters of Late Sharadamba, but the evidence on record shows that the
relationship between the plaintiff and Late Sharadamba were stained.  Moreover,
the strong circumstance in favour of the defendants is that Late Sharadamba
executed an earlier Will in favour of son of the first defendant - U.V.Raghava
Rao who subsequently died.  In the above circumstances, there is nothing
unnatural for Late Sharadamba to execute the Will bequeathing her property in
favour of her sister who was looking after her.
        
34.     The other suspicious circumstance argued by the learned counsel for the
appellant is that in R.C.Cs, the Rent Controller observed that it is for the
first defendant to prove her title but in spite of the said observation, the
first defendant did not file any suit.  It is not the case of the plaintiff that
the first defendant did not claim the properties under the Will in the said
R.C.C. proceedings.  Merely because Late Sharadamba did not file any suit in
pursuance of the observations made in the RCC, that itself cannot be treated as
suspicious circumstance. 
        
35.     It is also argued that the defendants did not examine any one of the
doctors who treated Late Sharadamba.  It has to be seen that even P.W.2 did not
specifically deposed that the Doctors who treated Late Sharadamba were available
at the time of trial.  As discussed above, since the trial commenced after 25
years after the execution of the Will, we cannot find fault with the defendants
for non-examination of the Doctors.  There is no evidence to show that though
Doctors were available for examination, the defendants failed to examine them.
If that is the case, nothing prevented the plaintiffs to examine any Doctor who
treated Late Sharadamba to prove her health condition.  Since Late Sharadamba
gave valid reasons for disinheriting the plaintiff, that cannot be treated as
one of the suspicious circumstance.
        
36.     It is argued that the fact of her stay in the hospital was not noted in
the Will.  It is true that the fact that Late Sharadamba was undergoing
treatment in the hospital was not noted in the Will, but however, the Will shows
that Late Sharadamba categorically stated that she was suffering from ill health
for one week prior to the date of execution of the Will.  Thus, this
circumstance also cannot help the plaintiff in proving his case.
        
37.     It is argued that Late Chaganti Suryanarayana, Advocate, himself arranged
the scribe and the attestors but he did not attest the Will.  It has to be seen
that Late Chaganti Suryanarayana was a practicing advocate and since two
attestors were already available, there was no need for him to sign the Will as
one of the attestors.  When attesting witnesses were available, there is no need
to take any attestor to the hospital as attesting witness.  Thus, this
circumstance also cannot be treated as a suspicious circumstance.
        
38.     It is argued that the thumb impression of Late Sharadamba in the Will
dated 20.03.1962 executed in favour of U.V.Raghava Rao differs from that of the
thumb impression on the impugned Will dated 2012.1978.  If that is the case, the
plaintiffs ought to have taken steps for causing protection of the original Will
dated 20.03.1962 executed by Late Sharadamba in favour of U.V.Raghava Rao and   
ought to have taken steps to send both the documents for comparision of the
thumb impression of Late Sharadamba.  As there is no such act on the part of the
plaintiffs, there is nothing to disbelieve this evidence also.
        
39.     It is argued that Ex.B.1 does not look natural and appears to have been
provided only in order to fill up the singed papers.  Merely because there are
impressions on one or two signatures in Ex.B.1, it cannot be said that it is
provided in order to fill up the signed papers.
        
40.     It is argued that the first defendant did not enter into the witness box.
Of course, by non-examination of a party in certain circumstances, adverse
inference can be drawn, but having regard to the peculiar facts and
circumstances of the instant case, non-examination of the first defendant cannot
be treated as fatal to the case of the defendants.

        41.     Having considered the entire evidence on record and the impugned
judgment, I do not find any valid and legal reasons to interfere with the
reasoned judgment of the Court below.  The Appeal Suit is devoid of merits and
is liable to be dismissed.
        
42.     Accordingly, the Appeal Suit is dismissed.  However, in the circumstances,
I refrain from making any order as to costs.

?1 1896 22 BOM. 17 (PC)  
2 1898 25 CAL. 825 (PC) 
3 1922 PRIVY COUNCIIL 366   
4 AIR 1924 CAL. 513 
5 AIR 1959 SC 443  
6 AIR 1965 SC 354  
7 AIR 2001 SC 2802  
8 2003 (1) ALD 763 
9 AIR 2007 SC 614  
10 AIR 2007 SUPREME COURT 1975       
11 AIR 2007 SC 311  
12 2008 (3) ALD 13 
13 2009 (3) SCC 687 
14 AIR 2002 KAR 83  
15 AIR 2003 Gau 85  
16 1998 (4) SCC 384 
17 AIR 1991 Cal 166 
18 AIR 1932 Cal. 574 
19 1996 (4) ALT 360 
20 AIR 1999 SC 1441  
21 2010 (3) ALT 343 
22 2010 (3) SCALE 769  
23 2010 (1) ALT 228 
24 2008 (5) ALT 776 
.

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