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IMPORTANT JUDGMENT


 Important judgment on different topics.
 Adverse Possession:

"Long possession is not necessarily adverse possession and the prayer clause is not a subsitute for a plea."S.M.Karian v. Bilisahina A.I.R.1964 SC1254.

Proving of  Adverse Possession:
                
"for the purpose of proving adverse possession/ouster,the defendant must also prove animus possidendi". Mohemmed Ali (dead) by L.R.S. v. Jagdish Kalita and others.(2004)1. SCC 271, 2004 (1) SCCD 242.

Starting Point of Limitation:

In terms of article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the  defendant's possession become adverse. Saroop Sing v. Banto (2005)8 SCC 330.,2005 (3) SCCD 1643.

Essential of Adverse Possession:
"A person who claims adverse possession should show:
(a)On what date he came into possession,
(b)What was the nature of his possession,
(c)Whether the factum of possession was known to the other party,
(d)How long his possession has continued,and
(e)his possession was open and undisturbed.
Karnataka Board of wakf v. Govt. of India. (2004) 10 SCC 779: 2004 (3) SCCD 1390.

Long Possession:

“that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expresslyor impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continutity, in publicity and in extent so as to show that it is adverse to the true owner.The possession must be open and hostile enough so that it is known by the parties Interested in the property. The plaintiff is bound to prove his title as also possession Within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession.

 2011 (1) UAD 378, Chatti Konati Rao & ors verses  Palle Venkata Subba Rao.

Equities in Adverse Possession

A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence,it is for him to clearly plead and establish all facts necessary to establish adverse possession.

2011(1)UAD 378,Chatti Konati Rao& ors v Palle Venkata Subba Rao.

Civil Procedure Code - 1908

Amendment

Or. 6. R. 17

Purpose of Amendment – Powers of Court.

Power of courts not only discretionary, but is also wide and could be exercised at any stage of the proceedings in the interest of justice – court should adopt a liberal approach and allow a party to take all kind of stand ,which the party may choose and court  should not adopt a hyper technical approach and should allow the amendment – when the other side could be compensated with costs.

2011 (1 ) U.A.D. HC 172


Civil Procedure Code 1908.---ORDER 23 RULE 1. Maintainability  CIVIL PROCEDURE CODE 1908.---ORDER 23 RULE 1.
 
Maintainability of second suit.
 order 23 rule 1.~
permission to withdraw a suit with liberty to institute a fresh suit after the
first one has been withdrawn.Order 23 rule 1. can not be read so as to bar a suit which has already
been instituted before the other suit has been abandoned or dismissed.
The rule is clear and can only be applied to suit instituted after the withdrawal or abandonment of previous
suit.
P.A.Muhammed vs Canara bank and another.
A.I.R. 1992 Kar 85,  Vimlesh kumari kulshrestha  vs Sambhajirao and another. civil appeal No.2976 of 2oo4,
 on February 5, 2008, 2008 (1) SCCD 313  ( SC ).

consent decree order 23, rule 3


requirements---A consent decree is merely a agreement between the parties with the seal of the court
super added to it.
compromise is to be held to be binding it must be signed either by the parties or by their counsel or by
both,failing which order 23 , rule3 would not be applicable.
A compromise is not binding on such defendants who are not parties thereto.

 Sneh gupta vs Devi sarup & other civil appeal No.1085 of 2009 decided on 17- 02 -2009. ( uttarakhand high court)
 2009 (1) UAD 541

Consumer forum (" Exparte" order ) 

Rajeev Hitendra Pathak & Ors  v.  Achyut Kashinath Karekar & Anr., (2011) 9 SCC 541, Honorable Supreme Court held “ that neither the District Forum nor the State Commission had power to review its ‘’ex parte”  orders. Orders of the aforesaid nature were, ‘’ per se” assailable only before the National Commission .


DOG BITES---INSURANCE.
 
 Death due to rabies held, death would be accidental. Life insurance Corporation
 to pay additional amount.
 
Lallubhai panchal vs Life Insurance Corporation of India.
 A.I.R. 1999 Gujarat 280.
 
 EASEMENTS ACT ( 5 OF 1882 )
 
 Right of privacy ---Section 15.--- Easement neither pleaded nor proved.
 If one party opens windows it is equally open to another party to block
 them by raising walls.
 
Anguri versus Jiwan dass.
 AIR 1988 SC 2024: ( 1988 ) 2 A.P.L.J. (SC) 70: (1988 ) 4 SCC 189:

EVIDENCE ACT,1872; 

SECTION---90, Presumption under section 90 of the Evidence Act 1872 in respect of  30 year's old document coming from proper custody relates to the
signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statment 
contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact.
Union of India versus Ibrahim Uddin & Anr. 2012 (2) U.A.D. 566 (SC).

 FAMILY SETTLEMENT/ ARRANGEMENT:
 
 Unregistered family arrangement---Evidential value.
 
Registration of a family arrangement would be necessary only if the terms of the family
 arrangement are reduced into writing. An unregistered family arrangement could not be used
 even to prove that there was a partition .Evidence on the basis of such document could not
 be led as it was barred by section 91 of the evidence act.
 Bankey bihari vs Surya narain alias Munnoo
 A.I.R. 1999 Allahabad.

FAMILY SETTLEMENT/ ARRANGEMENT-- Object of -- Essential and its binding effect.
Kale and others vs Deputy director of consolidation and others.
A.I.R. 1976 SC 807.

Joint Hindu Family Property---undivided share of coparcener----can be subject matter of sale / transfer -- but possession cannot be handed over to vendee , unless property partitioned by metes and bound eighter by decree of court in partition suit or by settlment among co-sharers.

Relied on Ram Dass v. Sita Bi  JT 2009 (8)SC 224. Gajra Vishnu Gosavi  v. Prakash Nana Saheb Kanbb  2010 (2)SCCD 1105 (SC) Civil Appeal No. 1292 of 2002 with C.A. No. 1293 of 2002. Decided on September 16. 2009

Joint Tenant - If a proceeding is drawn one of the joint tenants, it is presumed that the interest of other joint tenants is represented by the contesting joint tenant.

Smt Mridula chaube and Anr vs.  Smt Sushila Mittal and Anr. 2010(1) UAD 567.

Joint Tenant After the death of original tenant, tenancy rights devolve on the heirs jointly and any action of joint tenant binds other joint tenants if not impleaded.

Smt Puja Gupta  vs. Pushkar Kumar and another. 2008(72) ALR, 762 Allahabad High Court.



INDIAN SUCCESSION ACT,1925,
secs. 15 &16

Bonafied Resident---B
y marriage, a woman acquire the domicile of her husband, and a wife's domicile during her marriage
follow the domicile of her husband.

Jyoti Bala versus State of uttarakhand & Anr
writ petition No. 297 of 2008( S/B )
Decided on 16-12-2008 ( uttarakhand high court )
2009 (1) UAD 501
 
 LEGAL REPRESENTATIVE SUIT.

 Liability of legal representative for the debt of the deceased is limited to the extend
of assets of deceased in hands.
 
1983 SC188, 2002 (2) Civ.C.R 269 (Mad) Gonindamal vs Bhuvneshwar Financing Corporation
                     Decided on 19-10-2001.
 
 LIMITATION:
 
 Where no limitation prescribed---It has to  ascertained from residuary provision of article
 137 of Limitation Act,1963.
 
Naveen kumar and etc vs Karnataka Theatres Ltd and others.
 A.I.R. 1999 Orissa 113.
 
LANDLORD AND TENANT

Title of--held, that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be,
so long as he has not openly surrendered possession by surrender to his landlord.
D. Satyanarayana vs P.Jagdish 1987 (4) SCC 424, confirmed in State of A. P.& Others versus D. Raghukul Pershad (D) by LRS.& Ors.
2012 (2) UAD 558 (SC)

U.P.  Act , 13, 1972, Sec. 20 (4) – Benefit  of--
Khadi Gram Udyog Trust vs. Sri Ram Chanderji  Virajman Mandir, reported in A.I.R. 1978 (4) S.C. 37
Wherein  it has been held that the tenant can take advantage of the benefit conferred by Sec 20(4) only when he pays the entire amount of rent due as required under Sec  20(4). It has further been held  that expression ‘entire amount of rent due’ would include rent which has become time barred.
In the case of Subhash Chand Jain vs.First Addl. District Judge, A.I.R. 1989 (15) S.C. 300 Wherein it has been held that as the time barred arrear had been deposited by the appellant on October 1, 1977 only, the High Court took the view that entire arrears of rent rent had not been deposited on or before the date of first hearing inasmuch as the entire amount due as arrears of rent had not been deposited within time, the High Court was right in dismissing the writ petition .
Followed by Uttarakhand High Court in Smt. Mahaviri & Ors vs. Ghanshyam 2013 (2) UAD 852.


 MOTOR ACCIDENT CLAIM TRIBUNAL:
 

 Insurer not liable to pay compensation on death of pillion rider of two wheeler.

 Oriental insurance co. limited. versus Sudhakaran k.v and others.
 2008 ( 3 ) SCCD 1233 ( SC)

  NEGOTIABLE INSTRUMENT ACT.
 
  Premature complaint--maintainability.
  complaint filed for dishonor of cheque with in 15 days of service of notice, held
  premature and not maintainable.
  criminal appeal No 1424 of 2007. Decided on Oct 11 2007.
  Sarav investment and financial consultant pvt ltd and another
  versus llyods register of shipping Indian office staff provident fund and another.
  2008 (1) SCCD 216 (S C ).
 
 RECORDS OF RIGHT

 Entries in the record of rights
 
It is well settled that the entries in the record of rights only raise presumption that the person whose name is entered
 in the records of right is in possession of the suit lands but the same can be rebutted by addiction of evidence,
 documentary or oral on record.
 Mahant Ram khilawan dass versus state of M.P.
 Decided on March 10.2008
 2008 (1) SCCD 471 (S C).

 REQUIREMENT OF SERVICE OF A NOTICE:
 

 c.c.Alavi Haji versus Pala petty Muhammedand others.
  JT 2007( 7 ) SC 498
  2007 ( 2 ) CCSC

SPECIFIC RELIEF ACT 1963

cancellation of sale deed
under section 31- necessary party- oral evidence contrary to the document- allegation of fraud

It is settled law that when in respect of a transation, a written document is executed, any kind of oral evidence, contrary to the document, is not admissible. The allegation of fraud if made by a party, must specify giving role of each person and all those involved in the fraud must be made a party. Bare allegation that plaintiff had not received the full consideration or that the plaintiff signed the documents without reading the contents there of, is not a ground for cancellation of the sale deed. If the plaintiff chooses not to read the documents, he does so at its own peril.


IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment  May 05, 2008.
CS ( OS ) No. 714/ 2008
Jai Bhagwan verses Rajesh and Ors.( see attachment 1. )


Registration of Unilaterally Executed Deed of Cancellation:

The Registration Act, 1908

Section 17 of the Registration Act, 1908

Section 31 of the Registration Act, 1908

The Transfer of Property Act, 1882

The Specific Relief Act, 1963

(i) A deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a deed of cancellation cannot be accepted for registration. (ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a deed of cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favour of the transferor. (iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a sale deed, admittedly, the title remained with the transferor. (iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of sale deed on the ground inter alia of fraud or any other valid reasons.

M/S.Latif Estate Line India Ltd vs Mrs. Hadeeja Ammal on 11 February, 2011

W.A. NOS. 592 & 938 OF 2009

W.A. NO. 592 OF 2009


 SPECIFC PERFORMANCE OF CONTRACT
 (SPECIFIC RELIEF ACT. 1963 --Section 19 and 20.)

 It is a settled law that an endeavor should be made by the court to give effect to the
 terms of the agreement .
 It is also a settle law that an agreement is to be read as a whole so as to enable the
 court to ascertain the true intention of the parties.
Uncertain agreement for sale can not be given effect.
Civil appeal No.2976  of 2004
 Decided on February 5, 2008.
 Vimlesh Kumari Kulshrestha vs Sambhajirao and anoher.
 2008 (1) SCCD 313 (SC)

Unregistered Agreement to Sell

Unregistered agreement to sell -- whether legally enforceable -- whether direction can be given to registered the said agreement without availing the remedy provided under the registeration Act.

Vijay Kumar Sharma vs Devesh Behari Saxena on 16 November, 2007

Equivalent citations: AIR 2008 All 66, 2008 (1) AWC 664


Held--because the plaintiff did not avail the remedy provided under Registration Act for getting a document registered. The agreement dated 22.01.1993 is unregistered document. The learned court below has passed a decree for mandatory injunction directing the defendant to get the said agreement registered before the registering authority within one month and then to execute the sale deed in favour of the plaintiff in terms of that agreement. In our view, such direction could not be issued in the present suit. Section 23 of the Registration Act lays down that "no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution". Section 25 provides that If, owing to urgent necessity or unavoidable accident, any document executed, is not presented for registration till after the expiration of the time prescribed under sections 23 and 24, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration. Section 71 lays down that every Sub-Registrar who refuses to register a document shall make an order of refusal and record his reasons. Section 72 provides an appeal to the Registrar against the order of Sub-Registrar, where refusal is made on the ground of denial of execution. Section 77 provides that where the Registrar refuses to order the document to be registered, under section 72 or a decree under section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in a Civil Court, a suit for a decree directing the document to be registered. These provisions show that a suit for a decree directing for registration of the document can be instituted after recourse has been taken to the provisions of sections 71 and 72 of the Act.

The Full Bench consisting of 5 Hon'ble Judges has held in the case of Bhagwan SINGH and Anr versus Khuda Baksh and Anr 1881 (III) ILR 397 that suit for claiming a decree directing the registration of document without having recourse to the provisions of section 73 of Registration Act is not maintainable. It is specifically held by the Full Bench that moving the application under section 73 of Registration Act is condition precedent for institution of such suit.. This Court in the case of Surendra Kumar v. Amarjeet Singh and Ors. AIR 2004 Allahabad 335 has held that unregistered document of contract for sell in respect of immovable property cannot be enforced under Specific Relief Act. Therefore, in our view the decree of specific performance of the agreement to sell dated 22.01.1993 passed by court below is wholly illegal and cannot be sustained.

Registered document -- genuineness and presumption.

The court can not accept the genuineness of the document simply because it is registered. Registeration of any document does not ensure genuineness either of the contents of the documents or execution of the same. Registeration gives rise presumption that a document has been executed and registered.However,this presumption can be rebutted by adducing evidence.

2013 (1) U.A.D 147 UHC.
Ashok kumar & others versus State of Uttarakhand & others.

Readiness and Willingness

Section 20 and 16 (c)

Section 16 (c)”postulates continuous readiness and willingness on the part of plaintiff '"

It is a condition precedent for obtaining a relief of grant of specific performance of contract.

Azhar Sultana versus B.Rajamani and others

civil appeal No. 1077 of 2009

Decided on February. 17,2009

2009 (1) SCCD 525 (SC)

Readiness and willingness:-

Lack of pleading--- provision does not require any specific phrasealogy.Compliance with the readiness and willingness has to be in spirit and substance and not in letter and form.
                            Continuous readiness and willingness could be seen from the conduct of the plaintiff as a whole.
                             Faquir Chand and Others V. Sudesh kumari 2006 (3) Apex Court Judgment 259 (SC)

   WILL:

 PROBATE/letter of administration can not be granted in respect of incomplete will.

  Anil Kak versus Kumari Sharada Raje and others.
  2008 ( 3 ) SCCD 1261 ( SC ).

Execution of Will--Suspicious Circumstances:-
A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will.
  
 Proof of Will--Section 63 of Succession Act---Section 68 of Evidence Act: "Stated generally, a will has to be proved like any other document, the test to be applied being, the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainity.
Since section 63 of the Succession Act requires a will to be attested, it can not be used as evidence until, as required by section 68 of the Evidence Act, 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.

H.Venkatachala Iyengar v. B.N.Thimmajumma 1959 supp (1) SCR 426; Jaswant kaur v. Amrit kaur (1977) 1 SCC 369; S.R. Srinivasa & others v. S.Padmavathamma 2010 (2) UAD 221 Supreme Court.

Difference Between Registered and Unregistered Will:-

 Held that,under Clause (a) of Sub - Section (2) of Section 41 of The Registration Act, 1908, the Registrar had the obligation of satisfying that the Will, or the instrument purporting to be Will, was executed by the testator. If the Registrar was satisfied about the execution of the purported Will by the testator, he certainly could register the Will. However, we make it absolutely clear that satisfaction of the Registrar that the Will was executed by the testator is no certificate that the same was executed in fact by the testator. At the same time, registration of a Will does not give more authenticity to the Will. An unregistered Will or a registered Will has no difference. A Will come into force only when the same is accepted by a competent Court to be a Will executed by the testator, who is supposed to have executed the same. This opinion of the court may be had by applying for probate or letters of administration annexed with the Will or in any other collateral proceedings.

SMT. SNEHLATA BHANDARI & ANR. Versus STATE OF UTTARAKHAND & ORS. 2013 (1) UAD 610, UTTARAKHAND HIGH COURT























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Subpages (1): EVIDENCE ACT, 1872
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narinder sarin,
May 9, 2011, 8:53 PM
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narinder sarin,
May 30, 2011, 8:22 PM
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