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1988 Supreme(Bom) 403
IN THE HIGH COURT OF BOMBAY
(Panaji Bench)
M. L. Pandse, J.
Datta Damodar Kakule of Calangute, Goa.... Appellant.
Versus
Krishna Sridor Pai @ Subhash Shridar Pai Lotlicar.... Respondents.
Appeal From Order No. 58 of 1988, decided on 8-12-1988.
Advocates appeared :
S.K. Kakodkar, Sr. A. with S.R. Rivoncar, for appellant.
M.P. Mulgaonkar, for respondent.
A person who is claiming possession of a property must have a title to remain in possession.
Headnote:
INJUNCTION - POSSESSION - ORDER 39 RULES 1 AND 2, CIVIL PROCEDURE CODE, 1908 - SUMMARY SUIT - ADVERSE POSSESSION - BURDEN OF PROOF - TITLE - GIFT DEED - AUCTION - LIMITATION - EVIDENCE ACT, 1872, SECTION 116 - SALE DEED - REGISTRATION ACT, 1908, SECTION 49 - TRANSFER OF PROPERTY ACT, 1882, SECTION 54 - LIMITATION ACT, 1963, SECTION 28 - COURT HELD THAT THE PLAINTIFF WAS PRIMA FACIE TITLE HOLDER OF THE SUIT PROPERTIES AND THE DEFENDANTS HAD NO TITLE TO REMAIN IN POSSESSION.
Fact of the Case:
The plaintiff filed a suit for a declaration that the gift deeds under which the defendants claimed title to the suit properties were null and void and for cancellation of the same. The plaintiff also sought permanent injunction restraining the defendants from disturbing the plaintiff's possession of the suit property. The trial court rejected the plaintiff's application for grant of temporary injunction pending the suit.
Finding of the Court:
The court held that the plaintiff was prima facie title holder of the suit properties and the defendants had no title to remain in possession. The court also held that the trial court erred in not granting temporary injunction in favor of the plaintiff.
Issues: 1. Whether the plaintiff was entitled to seek interim injunction restraining the defendants from disturbing his possession. 2. Whether the defendants had a prima facie title to the suit properties. 3. Whether the plaintiff was in exclusive possession of the suit properties.
Ratio Decidendi: 1. The court held that the trial court erred in not examining whether the defendants had even a prima facie title to the suit properties. 2. The court held that the defendants' claim that they were in possession can be presumed unless refuted by the plaintiff was incorrect. 3. The court held that the facts set out in the judgment leave no manner of doubt that whatever title Laxmibai had in suit property 'A' stood extinguished by holding of public auction in the year 1956 and when Laxmibai's title extinguished she had no subsisting interest to transfer by gift deed in favour of her grandson, at the time of her death. 4. The court held that the second gift deed executed by her daughters is equally ineffective. 5. The court held that as regards the property 'B' the same was allotted to Gopicabai in the year 1926 and as inherited by her legal representatives Lawandes in the year 1946. It is difficult to appreciate how Laxmibai or her legal representatives could have ever gifted this property 'B' in favour of the defendants. 6. The court held that it was strenuously urged by Mr. Mulgaonkar, learned Counsel for the defendants, that the auction in favour of Manuel was void as the auction was conducted fraudulently. It is not possible at this stage to acceds to the submission for more than one reason. 7. The court held that the plea as regard property 'A' is destructive of the plea that the defendants are owners of the property on the strength of gift deeds. 8. The court held that learned Counsel is unable to point out any documentary evidence to substantiate the claim of adverse possession for the period subsequent to the date of auction. 9. The court held that no material was pointed out to even indicate that the defendants were claiming adversely property 'B' involved in the suit. 10. The court held that the plaintiff is claiming title to the suit properties under registered documents and the sale deeds are obtained from persons who were owners of the property. 11. The court held that prima facie the plaintiff's title stands established while the defendants discarded.
Final Decision: The court allowed the appeal and set aside the judgment of the trial court. The court granted the plaintiff's application for injunction and restrained the defendants from disturbing the plaintiff's possession of the suit properties.
2. The properties in dispute are two in number and are described as Property 'A' and Property 'B'. Property 'A' known as 'Esmolachem' is situated in the village of Calangute and described in the register under No. 1717. The property consists of a house and coconut garden. Property described as suit property 'B' consists of a house and a coconut tree. The area covered by the coconut tree has been acquired in Land Acquisition proceedings. Both these properties originally belong to one Shrinivasa Duclo. Shrinivasa died in the year 1925 and property 'A' was allotted to his son Mucunda in Inventory Proceedings. Mucunda's wife was one Laxmibai. Mucunda died in the year 1951 and in inventory proceedings after his death property 'A' was allotted to share of Laxmibai in the year 1952. In the year 1956 property 'A' was put to public auction in view of the default committed by Laxmibai in payment of dues. The property was purchased by Manuel Coelho in the year 1957 in auction. Manuel died in the year 1963 and thereafter his son Caetano became the owner of the property. Caetano sold suit property 'A' to the plaintiff by sale deed on June 30, 1987.
3. After the death of Shrinivasa property 'B' was allotted to his daughter Gopicabai in inventory proceedings in the year 1925. Gopicabai married one Lawande and afterwards died in the year 1946. Thereafter property 'B' went to the legal representatives of Gopicabai that is her husband and her children. The plaintiff purchased the property 'B' from Lawandes by sale deed on August 24, 1987.
4. The plaintiff instituted suit on September 7, 1987 for a declaration that the gift deeds dated January 20, 1982 and March 12, 1985 under which the defendants are claim in title to suit properties are null and void and for cancellation of the same. The plaintiff also sought permanent injunction restraining the defendants from disturbing the plaintiff's possession of suit property. The gift deed dated January 20, 1982 is executed by Laxmibai widow of Mucunda in favour of her grandson in respect of half share in suit property 'A'. Gift deed dated March 12, 1985 is executed by legal representatives of Laxmibai in favour of the defendants in respect of half share of suit property 'A' and suit property 'B'. Laxmibai died on February 24, 1935 and the defendants are claiming title to the suit property on the strength of these two Gift Deeds. The defendants also claim that alternatively they are in adverse possession of the suit properties for a period of over 30 years. With these pleadings it is now necessary to examine whether the plaintiff is entitled to seek interim injunction restraining the defendants from disturbing his possession.
5. The trial Judge declined to examine whether defendants have even a prima facie title to the suit properties. It seems that the trial Judge addressed himself to the question as to whether the plaintiff was in exclusive possession of the suit properties and did not give any importance to the question as to whether the defendants had any title to remain in occupation of the property. It is not correct to approach the problem by merely examining the affidavits to determine whether plaintiff or the defendants are in possession and it is necessary that the Court must examine whether the person who is claiming possession of the property has got a title of title to remain in possession . The trial Judge held that survey records of the two properties stand in the name of Mucunda and Shrinivasa respectively and Mucunda and Shrinivasa were predecessors of the defendant
