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2016 Supreme(Bom) 945
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
R.K. Deshpande, J.
Smt. Manda Purushottam Zatte - Appellant
Versus
Chandrakumar Parasmalji Chordiya - Respondent
Second Appeal No.160 of 2003
Decided on : 5-08-2016
For the Appellant :Shri Abdul Subhan, Advocate, holding for Shri Firdos Mirza
For the Respondent:Shri M.P. Khajanchi, Advocate, Shri Anoop J. Gilda, Advocate, as Amicus Curiae.
A suit for permanent injunction based on possession alone must fulfill the conditions under Section 53A of the Transfer of Property Act, and the adjudication of title in such cases involves complicated questions of fact and law.
Headnote:
possession - Permanent Injunction - Transfer of Property Act, 1882, Section 53A; Specific Relief Act, 1963, Section 41(h)
Fact of the Case:
The plaintiff filed a suit seeking permanent injunction against the defendants from interfering with his possession of a property based on an earnest note and sale-deed. The defendants denied the agreement to sell and possession delivery, claiming the property was ancestral and not transferable by the defendant alone.
Finding of the Court:
The Trial Court found the suit not maintainable as it lacked evidence of sale-deed, mutation entries, and possession delivery. The lower Appellate Court reversed the findings, but the High Court held that the suit was not constituted to claim injunction solely based on possession and the plaintiff was not entitled to it.
Issues: Validity of suit for permanent injunction based on possession, admissibility of secondary evidence of sale-deed, and entitlement to permanent injunction.
Ratio Decidendi: The suit lacked necessary evidence and pleadings for claiming injunction solely based on possession. The conditions under Section 53A of the Transfer of Property Act were not fulfilled, and the adjudication of title involved complicated questions of fact and law.
Final Decision: The second appeal was allowed, the lower Appellate Court's decision was quashed, and the Trial Court's decree dismissing the suit was restored.
1. The respondent No.1-Chandrakumar Parasmalji Chordiya is the original plaintiff and he had filed Regular Civil Suit No.93 of 1995 claiming the reliefs as under :
“a) Defendant, his family members, his agents, his servants, or any other person on their behalf be restrained permanently from making any interference and obstruction to the enjoyment and cultivation over the field Survey No.16/3; Gat No.54; Area 2 Hec, 57 Are of village Nilapur, Tq. Wani, Distt. Yavatmal by way of permanent injunction.
(b) Defendants his family members, their agents, their servants, or any other person on their behalf be restrained perpetually from making any interference and obstruction to the cultivation and enjoyment over the field Survey No.16/3; Gat No.54; Area 2 Hec. 57 Are of village Nilapur perpetual injunction.
(c) Any other suitable relief for plaintiff is found entitled may be granted to him.
(d) Cost of the suit be saddled on the defendant.
A decree be drawn accordingly.”
In para 2 of the plaint, it is averred that the defendent agreed to sell the suit property to the plaintiff for a total consideration of Rs.60,000/on 2-9-1994 by executing the Isarchitthi and an earnest amount of Rs.45,000/was paid. The balance amount of Rs.15,000/was to be paid at the time of execution of the sale-deed on or before 3-13-1995.
According to the averments made in para 3, the balance amount of Rs.15,000/-was paid on 1-11-1994 and the sale-deed was executed on that date by the defendant No.1, which was registered on 14-11-1994 before the Sub-Registrar, Wani. The specific averment is that the possession of the suit property was delivered to the plaintiff on the date of execution of the earnest note on 2-9-1994, and since then the plaintiff is in continuous cultivating possession of the suit property. The plaintiff alleged that on 15-6-1995, the defendant No.2 tried to obstruct his possession and, therefore, he was constrained to file the suit on 17-6-1995 after lodging a police complaint, on 15-6-1995 vide Sana Entry No.28/95. It is also alleged that the defendant issued notice dated 13-6-1995 to challenge the sale-deed.
2. The defendant No.1 neither did file the written statement nor did enter the witness box. The defendant No.2, who is the wife of the defendant No.1, opposed the claim and denied the agreement to sell as well as the execution of sale-deed and payment of consideration. The defendant No.2 specifically denied that the suit property was delivered to the plaintiff at any point of time and asserted that she has been in continuous cultivating possession of the suit property. She has urged that the defendant No.1, who is her husband, was addicted to vices and gambling and he was indebted to the Society Wani Taluka Kharedi Vikri Samiti Ltd. for misappropriating the amount of the said Society. It is also the stand taken that the defendants have one son and two daughters and the property in question was the ancestral property in the hands of the defendant No.1, who was not competent to transfer it alone.
3. The plaintiff entered the witness box and examined himself, whereas the defendant No.2 entered the witness box and also examined DW1-Mangal Arjun Bhagade, an attesting witness to the agreement/Isarchitthi dated 2-9-1994, and another witness DW3- Anandrao Govindrao Matte, an employee in the said Society.
4. The Trial Court records the finding that the sale-deed is not filed on record and no evidence is led by the plaintiff to establish that the sale-deed was executed, the mutation entries in the name of the plaintiff are not on record, and in such a situation, the plaintiff should have filed the suit for declaration and the suit founded purely to claim the protection under Section 53A of the Transfer of Property Act, 1882 was not maintainable in view of the bar to grant injunction created under Section 41(h) of the Specific Relief Act, 1963. The Trial Court also noted the fact that out of two attesting witnesses to the Isarchitthi, only one attest
