Showing posts with label civil. Show all posts
Showing posts with label civil. Show all posts

13 October 2020

While deciding an application for rejection of plaint under Order VII Rule 11 CPC, the court is required to take the averments made therein to be correct

To set the tempo, we may start by referring to the legal position. It is well settled that a plaint can be rejected on any of the grounds enumerated under Order VII Rule 11 of the CPC. It is equally well settled that on going through an application moved under Order VII Rule 11 CPC, the court is required to examine the plaint as a whole and take the averments made therein to be correct. If on a reading of the plaint, a cause of action is made out, then the plaint cannot be rejected. While dealing with an application under Order VII Rule 11 CPC, the court must forebear from going into disputed questions of facts including the defence taken by the defendant in his written statement or his application for rejection of the plaint. [Refer: Inspiration Clothes & U. v. Collby International Ltd., 88 (2000) DLT 769; Tilak Raj Bhagat v. Ranjit Kaur, 159 (2009) DLT 470; Bhau Ram v. Janak Singh, V (2012) SLT 536; Tilak Raj Bhagat v. Ranjit Kaur, 2012 (5) AD (Del) 186; Indian City Properties Ltd. v. Vimla Singh] 198 (2013) DLT 432; and Razia Begum v. DDA 215 (2014) DLT 290 (DB)].[Para No.14]

While deciding an application for rejection of plaint under Order VII Rule 11 CPC, the court is required take the averments made therein to be correct

    It may also be emphasized that for deciding an application filed under Order VII Rule 11 CPC, the court must not be selective in picking upon the averments made in the plaint and read them in isolation. Instead, a meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein, if taken to be correct in their entirety, would result in a decree being passed. The manner of examination which a court is expected to undertake for scrutinizing the plaint and the documents filed to decide an application under Order VII Rule 11 CPC, have been discussed by the Supreme Court in a catena of decisions including in T. Arivandandam vs. T.V. Satyapal & Anr., reported as 1977 (4) SCC 467, Popat and Kotecha Property vs. State Bank of India Staff Association reported as (2005) 7 SCC 510 and Hardesh Ores Pvt. Ltd. vs. M/s. Hede & Company reported as 2007 (5) SCC 614. [Para No.15]

    In Popat and Kotecha Property (supra), the Supreme Court observed as under:
"10. Clause (d) of Order 7 Rule 11 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.

19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities." (emphasis added)[Para No.16]

09 October 2020

sale certificate of any property sold by a public auction by a civil or revenue officer does not require registration and for its registration requisite stamp duty cannot be insisted by the registrar

Even the aforesaid Section though mandatory in nature provides which of the documents are compulsorily to be registered, but it does not include sale by auction and sale certificate issued by the concerned authority including confirmation of the sale which are outcome of auction proceedings conducted in terms of the Court's order. The provision is speaking one and without any ambiguity, thus, registration was not required.[Para No.8]

     The issue raised in this petition is no longer res integra and is squarely covered by the judgment of the Hon'ble Supreme Court in Som Dev and others vs. Rati Ram and another (2006) 10 SCC 788 and thereafter in a subsequent judgment B. Arvind Kumar vs. Govt. of India and others (2007) 5 SCC 745 which judgments, in turn, have been considered by learned Division Bench of this Court in Valley Iron & Steel Company Ltd. vs. State of Himachal Pradesh and other (2016) 5 ILR 1639, and the relevant observations are as under:-
"24. Learned Senior Counsel appearing on behalf of the writ petitioner argued that the authorities concerned have refused to register the sale and make the entries in the revenue records on the ground that the necessary permission was to be obtained as per the mandate of Section 118 of the Act.

25. It is also contended that the sale certificate and the confirmation of sale issued by the authorities, i.e. Annexures P6 and P8, are necessary to be registered before the authority concerned in terms of the mandate of Section 17 of the Registration Act, 1908 (for short "the Registration Act"), which is not legally correct.


26. Section 17 of the Registration Act, though mandatory in nature, provides which of the documents are compulsory to be registered. It does not include sale by auction and sale certificate issued by the concerned authorities including confirmation of sale, which are outcome of the auction proceedings conducted in terms of Court orders.
sale certificate of any property sold by a public auction by a civil or revenue officer does not require registration and for its registration requisite stamp duty cannot be insisted by the registrar
The provision is speaking one and without any ambiguity. Thus, registration was not required. The Apex Court in the case titled as B. Arvind Kumar versus Govt. of India and others, 2007 5 SCC 745 , held that a sale certificate issued by a Court or an officer authorized by the Court does not require registration. It is apt to reproduce para 12 of the judgment herein:
"12. The plaintiff has produced the original registered sale certificate dated 29.8.1941 executed by the Official Receiver, Civil Station, Bangalore. The said deed certifies that Bhowrilal (father of plaintiff) was the highest bidder at an auction sale held on 22.8.1941, in respect of the right, title, interest of the insolvent Anraj Sankla, namely the leasehold right in the property described in the schedule to the certificate (suit property), that his bid of Rs. 8,350.00 was accepted and the sale was confirmed by the District Judge, Civil and Military Station, Bangalore on 25.8.1941. The sale certificate declared Bhowrilal to be the owner of the leasehold right in respect of the suit property. When a property is sold by public auction in pursuance of an order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under subsec. (b) and (c) of sec. 17(1) of the said Act. We therefore hold that the High Court committed a serious error in holding that the sale certificate did not convey any right, title or interest to plaintiff's father for want of a registered deed of transfer."

28. The same principle has been laid down by the Apex Court in the case titled as Som Dev and others versus Rati Ram and another, 2006 10 SCC 788 . It would be profitable to reproduce para 15 of the judgment herein:
"15. Almost the whole of the argument on behalf of the appellants here, is based on the ratio of the decision of this Court in Bhoop Singh v. Ram Singh Major, 1995 5 SCC 709 , It was held in that case that exception under clause (vi) of Section 17(2) of the Act is meant to cover that decree or order of a Court including the decree or order expressed to be made on a compromise which declares the preexisting right and does not by itself create new right, title or interest in praesent in immovable property of the value of Rs.100/ or upwards. Any other view would find the mischief of avoidance of registration which requires payment of stamp duty embedded in the decree or order. It would, therefore, be the duty of the Court to examine in each case whether the parties had preexisting right to the immovable property or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created a right in praesenti in immovable property of the value of Rs.100/ or upwards in favour of the other party for the first time either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable. Their Lordships referred to the decisions of this Court in regard to the family arrangements and whether such family arrangements require to be compulsorily registered and also the decision relating to an award. With respect, we may point out that an award does not come within the exception contained in clause (vi) of Section 17(2) of the Registration act and the exception therein is confined to decrees or orders of a Court. Understood in the context of the decision in Hemanta Kumari Debi v. Midnapur Zamindari Co. Ltd., 1919 AIR(PC) 79 and the subsequent amendment brought about in the provision, the position that emerges is that a decree or order of a court is exempted from registration even if clauses (b)and (c) of Section 17(1) of the Registration Act are attracted, and even a compromise decree comes under the exception, unless, of course, it takes in any immovable property that is not the subject matter of the suit.

 

29. A question arose before the Madras High Court in a case titled as K. Chidambara Manickam versus Shakeena & Ors., 2008 AIR(Mad) 108 , whether the sale of secured assets in public auction which ended in issuance of a sale certificate is a complete and absolute sale or whether the sale would become final only on the registration of the sale certificate? It has been held that the sale becomes final when it is confirmed in favour of the auction purchaser, he is vested with rights in relation to the property purchased in auction on issuance of the sale certificate and becomes the absolute owner of the property. The sale certificate does not require any registration. It is apt to reproduce paras 10.13, 10.14, 10.17 and 10.18 of the judgment herein:-
"10.13 Part III of the Registration Act speaks of the Registration of documents. Section 17(1) of the Registration Act enumerates the documents which require compulsory Registration. However, subsection (2) of Section 10 sets out the documents to which clause (b) and (c) of subsection (1) of Section 17 do not apply. Clause (xii) of subsection (2) of Section 17 of the Registration Act reads as under:
"Section 17(2)(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer."

10.14 A Division Bench of this Court in Arumugham, S. v. C.K. Venugopal Chetty,1994 1 LW 491 , held that the property transferred by Official Assignee, under order of Court, does not require registration under Section 17 of the Registration Act. The Division Bench has held as follows:

07 October 2020

Court cannot grant a relief which has not been specifically pleaded and prayed by the parties

In Messrs. Trojan & Co. Vs. RM.N.N. Nagappa Chettiar AIR 1953 SC 235, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:
"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."[Para No.29]

    A similar view has been re-iterated by this Court in Krishna Priya Ganguly etc.etc. Vs. University of Lucknow & Ors. etc. AIR 1984 SC 186; and Om Prakash & Ors. Vs. Ram Kumar & Ors., AIR 1991 SC 409, observing that a party cannot be granted a relief which is not claimed.[Para No.30]

    Dealing with the same issue, this Court in Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi & Ors., AIR 2010 SC 475 held:
"Though the Court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."[Para No.31]

 

    In Fertilizer Corporation of India Ltd. & Anr. Vs. Sarat Chandra Rath & Ors., AIR 1996 SC 2744, this Court held that "the High Court ought not to have granted reliefs to the respondents which they had not even prayed for."[Para No.32]

Court cannot grant a relief which has not been specifically pleaded and prayed by the parties
    In view of the above, law on the issue can be summarised that the Court cannot grant a relief which has not been specifically prayed by the parties.[Para No.33]

06 October 2020

Whenever the process of election starts, normally courts should not interfere with the process of election

The Court can draw support from the judgment of the Hon'ble Apex Court in the case of Shaji K Joseph vs V.Viswanath & Ors reported in 2016(4) SCC 429, in Para-14 and Para-15, held as under:
"14. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.

Whenever the process of election starts, normally courts should not interfere with the process of election
15. This Court, in Ponnuswami v. Returning Officer (supra) has held that once the election process starts, it would not be proper for the courts to interfere with the election process. Similar view was taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (supra)."[Para No.35]

plaintiff has no absolute right, at the appellate stage, to withdraw from the suit

However, when an application for withdrawal of suit is filed at the appellate stage, the court has to take into consideration some other matters also. In Bhoopathy v. Kokila : AIR 2000 SC 2132, the Supreme Court has held as follows:
"No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. ...... The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order 23 Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court or courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order 23 Rule 1(3) C.P.C for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action.

    Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable importance in present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases. ........ It is the duty of the court to feel satisfied that there exist proper grounds/reasons for granting permission for withdrawal of the suit with leave to file fresh suit by the plaintiffs and in such a matter the statutory mandate is not complied with by merely stating that grant of permission will not prejudice the defendants. In case such permission is granted at the appellate or second appellate stage prejudice to the defendant is writ large as he loses the benefit of the decision in his favour in the lower court". (emphasis supplied).[Para No.29]


    In Rathinavel Chettiar (supra), the Supreme Court has held as follows:

plaintiff has no absolute right, at the appellate stage, to withdraw from the suit
"Since withdrawal of suit at the appellate stage, if allowed, would have the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. ..... Where a decree passed by the Trial Court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's vested rights".[Para No.30]

02 October 2020

Oral evidence can be given about any fact which would invalidate or contradict the proved or registered document

In respect of registered document (Exh.35), learned Counsel for the appellant has submitted that it is a registered document and therefore, contents therein cannot be contradicted. Sections 91 and 92 of the Indian Evidence Act are material sections in respect of oral evidence of the documents reduced into writing. If the document is proved as per Section 91, then oral evidence as per Section 92 is not permitted to contradict the document but proviso (1) of Section 92 permits to contradict the document. It reads as under :
 92.Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: 
Oral evidence can be given about any fact which would invalidate or contradict the proved or registered document
     Proviso  (1). - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.
[Para No.16]

    As per Section 92 Proviso (1), evidence can be adduced to contradict the document. Learned Counsel for the respondents has pointed out the decision in the case of Vithal Saidu Lokhande (cited supra). This Court has held that oral evidence as per the provisions of Section 92 Proviso (1) is applicable and the defendants can adduce the oral evidence to contradict the document. This Court in the case of Vithal Saidu Lokhande (cited supra) has held that "Plea to invalidate any document proved in accordance with section 91 is available where a case is made out of fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is further held that "proviso (1) of Section 92 permits leading of parol evidence of any fact which would invalidate any document, at the instance of any party to such document of their representatives in interest. Proviso (4) does not deal with the question of invalidating any document but it relates to the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property. It makes the parol evidence admissible to show that the prior written contract has been waived or replaced by subsequent oral agreement with a rider that, if a matter has been reduced into writing because the law requires it to be in writing for its validity, no oral evidence can be given of any subsequent agreement, rescinding or modifying it. It can only be waived, rescinded, modified or altered by another written agreement of equally solemn character. The rule applies to all registered instruments, whether or not, registration is compulsory under the law. "[Para No.17]

29 September 2020

For the purpose of deciding the period of notice of termination of lease, only the purpose for which the property was let out has to be seen and subsequent change in user would not change the nature of lease

Coming to the issue regarding validity of notice issued under Section 106 of the Act, it would be noticed that the notice issued was dated 27.06.2015 and the tenancy was terminated w.e.f. 30.06.2015 i.e. within three days, however, the suit was filed on 04.08.2015 i.e. after about one month of giving of the notice. The provisions of Section 106 of the Act, inter-alia, provides that a lease of immovable property is terminable on part of either lessor or lessee by 15 days' notice and in case of lease of immovable property for agriculture or manufacturing purposes by six months' notice. However, sub-section (3) of Section 106 of the Act provides that a notice shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under sub-section (1), where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section and therefore, if it is found that the lease is for the purpose other than manufacturing purpose merely giving a three days' notice would not invalidate the proceedings.


    The appellant himself in his statement has clearly admitted that he was a tenant in the shop since 1976, in the year 1976, his shop was that of cloth in the name of Shankar Cloth Store, he changed his business in the year 1990-91 and started work of dye cutting of jewellery in the name of Mankad Jewellers.


  From the above statement, it is apparent that when the shop was let out in the year 1976, the same was neither for agriculture purpose nor for manufacturing purpose as the appellant was selling cloth only, however, in the year 1991, the use of shop was changed to manufacturing purpose. Whether in these circumstances, the issuance of notice by treating the lease for purpose other than manufacturing purpose i.e. notice for less than six months / filing the suit before expiry of six months from the date of notice would be in compliance of provisions of Section 106 of the Act?


   The various Courts have dealt with the said aspect and have come to the conclusion that the relevant purpose of lease under Section 106 of the Act is the purpose for which the lease was initially granted and subsequent change would not effect duration of the notice.


For the purpose of deciding the period of notice of termination of lease, only the purpose for which the property was let out has to be seen and subsequent change in user would not change the nature of leass

   Bombay High Court in the case of Ruprao Nagorao Mahulkar (supra), inter-alia, observed as under :-

"16. I, however, think that for the purposes of section 106 what is relevant is the purpose for which the lease was obtained at the time when the lease was obtained. A subsequent change of use and subsequent employment of the premises taken on lease for a manufacturing purpose where they were not at the commencement taken for that purpose would not entitle a lessee to take advantage of section 106. The purpose of the lease must be found arid ascertained with reference to the time when the lease was brought into existence. This seems to me also consistent and in accordance with the other provisions of the Transfer of Property Act and law in that behalf. Section 108 (a) of the Transfer of Property Act speaks of rights and liabilities of the lessees. In the absence of a contract of local usage to the contrary, a lessee is under an obligation by virtue of section 108 (a) of the Transfer of Property Act to use the leased premises for the purpose for which they were let and is obliged not to use them "for the purpose other than for which it was leased." To do so therefore, would be a, breach of the terms and conditions of the lease which are implied in the absence of the contract to the contrary. Section 111 (g) of the Transfer of Property Act provides that where a lease permits a re-entry on breach of a condition, then the lessor would be entitled to determine the lease and re- enter. Section 106 of the Transfer of Property Act also provides for termination of leases. A breach of terms and conditions of the lease would entitle a lessor to terminate the lease and to re-enter. In Devji's case (supra) Justice P.B. Mukherjee also observed that "the lease for manufacturing purpose must be a lease which at its inception is for that purpose. The lease at the time of the grant by the landlord must be impressed with the purpose of manufacture." Per contra-where it is not so impressed and where that was not the purpose at the time when the lease was commenced, the lessee would not be entitled to take advantage of section 106 of the Transfer of Property Act."

...........

When addressee refuses to accept registered post, it is presumed due service and knowledge of contents of letter can always be imputed on the addressee

Coming to the issue regarding the alleged non-service of notice under Section 106 of the Act on the appellant, a bare look at the Exhibit-6, which is an undelivered Registered A/D envelop sent to the appellant reveals that the same was sent by the counsel for the plaintiff to the appellant. The appellant in his statement admitted that the address indicated on the envelop was correct. The envelop clearly bears the endorsement made by the postman regarding refusal to receive the article. It is well settled that a notice sent under Section 106 of the Act, if refused by the tenant, the same is a sufficient service of the notice.


    Hon'ble Supreme Court in Puwada Venketeswara Rao v. Chidamana Venkata Ramana : AIR 1976 SC 869, observed that where a notice by registered post is returned with endorsement 'refused' it is not always necessary to produce the postman who tried to affect the service.

When addressee refuses to accept registered post, it is presumed due service and knowledge of contents of letter can always be imputed on the addressee

    In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani : 1989 (2) SCC 602, the Supreme Court observed as under:

"8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the Party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24-4-1974 was served on the respondent and he refused to accept the same. Consequently, the service was complete and the view taken by the High Court is incorrect."

27 September 2020

For removal of Sarpach from his post in Maharashtra, enquiry should be conducted by CEO of Z.P. himself and not by enquiry committee directed by him

"Delegatus non potest delegare"


    The wording of the first proviso is in the form of a protection given to a person sought to be removed and therefore will have to be interpreted strictly. This is what precisely been discussed and laid down by this Court in the case of Nimba Yadav Bhoi (supra). After referring to various decisions for interpreting the scope and mandate of Section 39 of the Act, this Court has made following observations in paragraph no.26.
"26] Considering the provisions contained in Section 39(1) of the said Act, and the law on the subject matter discussed hereinabove, it is apparent that the enquiry under Section 39 of the said Act has necessarily to be conducted by the Chief Executive Officer and none else. Such enquiry has to be preceded by necessary order directing the Chief Executive Officer to hold the enquiry and such order should be necessarily issued by the President of the Zilla Parishad. Pursuant to such appointment, the Chief Executive Officer himself has to hear the person against whom the enquiry is to be conducted and based on such enquiry, the Chief Executive Officer has to prepare a report and submit the same to the President of the Zilla Parishad. All these requirements are mandatory in nature and any failure in that regard on the part of the authorities, the proceedings under Section 39(1) of the said Act would be vitiated and any order passed on the basis of such proceedings which are vitiated would be rendered null and void. Reverting to the facts of the case, undisputedly, the order of the removal of the petitioner from the office of Sarpanch was not preceded by any enquiry by the Chief Executive Officer. There was no order of the President appointing the Chief Executive Officer to enquire into the mater."
 
For removal of Sarpach from his post in Maharashtra, enquiry should be conducted by CEO of Z.P. himself and not by enquiry committee directed by him

  Since no contrary authority having been cited before me, I find no reason and justification from taking any other view. When it is a matter of taking a drastic action against a Sarpanch and the provision requires inquiry to be conducted by a Chief Executive Officer to whom it is delegated by the Commissioner respondent no.2 he could not have overlooked the fact that instead of the Chief Executive Officer, the inquiry was conducted by a 3 member committee as per the directions of the Chief Executive Officer. It is trite that delegatus non potest delegare. The Chief Executive Officer being the delegate of the Commissioner cannot further delegate the powers of holding the inquiry. When the Legislature in its wisdom has expected a superior officer to undertake the inquiry, in all probabilities because a drastic action against an elected Sarpanch is to be taken, the inquiry ought to have been conducted by the Chief Executive Officer himself. That having not been done, the lapse in my considered view goes to the root of the validity of the entire process.[Para No.13]

26 September 2020

Delay in filing written statement can not be condoned if defendant found at laxity or gross negligence in filing the same

The Court below was expected to consider the application at Exhibit-32 on the basis of its contents, in the backdrop of the aforesaid facts indicating deliberate delay on the part of the respondent and by applying the position of law as laid down by the Hon'ble Supreme Court and this Court in the context of Order VIII Rule 1 of the Civil Procedure Code, particularly pertaining to the responsibility on the part of the defendant to act in a diligent manner and in any case to explain before the Court with cogent reasons for delay in filing the written statement. A perusal of the impugned order shows that no such effort was made by the Court below and in a cryptic and casual manner the application at Exhibit- 32 stood allowed.[Para No.13]

Delay in filing written statement can not be condoned if defendant found at laxity or gross negligence in filing the same
    The learned counsel for the petitioners is justified in relying upon the judgment of this Court in the case of Parasmal Daulatram Jain Vs. Rameshwar Rathanlal Karwa (supra), wherein this Court has reiterated the position of law concerning the approach to be adopted by the Courts while considering permission to the defendant to file written statement beyond the stipulated period of time. This Court placed reliance on the judgment of the Hon'ble Supreme Court, wherein it has been categorically stated that even if the relevant provisions of the Code of Civil Procedure in this regard can be said to be directory and not mandatory, the Courts cannot permit laxity or gross negligence on the part of the defendant to be condoned while granting permission to file written statement. In the facts of the present case, this Court is of the opinion that if the impugned order passed by the Court below is upheld, it would amount to giving premium to the respondent, not only for laxity and gross negligence, but to tactics adopted by her to somehow delay the proceedings in the suit for eviction filed by the petitioners. Although, it is expected that Courts decide disputes between parties by giving opportunity to the contesting party to place their respective versions on merits, there are situations where the Courts ought not to show misplaced indulgence to litigants like the respondent herein by adopting a liberal approach.[Para No.14]

25 September 2020

Daughter-in-law has no right of residence in the self-acquired property of mother-in-law or father-in-law

Daughter in law threatening her in laws to dis-possess from their own property - mother in law filed suit against her alongwith an application for interim injunction u/s. 151 and Order 39 Rule 1 & 2 - plaintiff-mother in law contended that she is the owner of the suit property on the strength of registered sale deed - trial court refused to grant interim injunction observing that the house is a shared house under the Domestic Violence Act and the daughter in law cannot be forcibly evicted from the same as her belongings are still lying there - appeal by district court allowed - daughter in law prefered revision against order passed in appeal - revision dismissed.

Daughter-in-law has no right of residence in the self-acquired property of mother-in-law or father-in-law
    In view of Krishan Kumar vs Navneet's case (supra) and Varinder Kaur vs Jitender Kumar's case (supra), the parents-in-law of the self-acquired property are the real owners and the daughter-in-law has no right to claim it as shared house and has no right of residence in the self-acquired property of parents-in-law. The daughter-in-law cannot be allowed to live in the house of parents-in-law against their wishes.

    While relying upon S.R. Batra and another vs Smt. Taruna Batra, 2007(1) RCR (Criminal) 403 in Suman vs Tulsi Ram 2015(1) RCR (Civil) 304, it was held that daughter-in-law does not have any right of protection under Section 17 of the Act for the purpose of living in the house belonging to parents-in-law which is exclusively owned by them.

19 September 2020

Lawyer has inherent authority to enter into a compromise on behalf and benefit of his client, unless there is express instruction by the client of limiting his authority to enter into a compromise

Having regard to the law laid down by the High Courts of this country, it can be clearly deduced that the various High Courts are of the unanimous view that even in cases where there is no express authorization to enter into a compromise under the inherent authority impliedly given to the counsel, he has power to enter into a compromise on behalf of his client for the benefit of the client, especially in absence of any express instruction by the client to his counsel, limiting his authority to enter into a compromise or give reason.[Para No.8]

    A bare perusal of the review petitions, filed by the Department of Mines and Geology, Government of Bihar, Patna, would show that there is no pleading to the effect that the learned Special P.P., Mines was expressly barred from giving his consent to orders being passed by the Hon'ble Patna High Court, keeping in mind the interest of the Department. It is a well settled law that the power to give consent or enter into a compromise in a particular given case is inherent in the position of an advocate in India and such power is deemed to exist because its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client. The advocate is to conduct the cause of his client to the best of his skills & understanding. He must, in the interest of his client, be in the position, hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimination.[Para No.11]

Lawyer has inherent authority to enter into a compromise on behalf of his client for the benefit of the client, unless there is express instruction by the client of limiting his authority to enter into a compromise
    It is equally a well settled law that a compromise settlement made in good faith by a counsel, when sanctioned by the Court in its order, is binding upon the client, as is also deducible from the various Judgments referred to herein above in paragraph No. 7 of this Judgment. Therefore, this Court is of the view that even in cases where there is no express authorization to enter into a compromise under the inherent authority impliedly given to the counsel, he has power to enter into a compromise on behalf of his client for the benefit of the client, especially in absence of any express instruction by the client to his counsel, limiting his authority to enter into a compromise or give reason. Consequently, it is held that the review petitioners-State authorities are bound by the orders passed by the Court on the basis of consent / compromise.[Para No.12]

17 September 2020

It is mandatory for the Court to issue an heirship certificate, if no objector comes forward within one month from the date of citation publication

Proceeding for heirship certificate can not be suspended till the decision of separate suit for partition filed by the objector


    This writ petition challenges the order dated 18.07.2018 passed by the Civil Judge, Junior Division, Ghatanji, whereby an application filed by the petitioner under Section 2 of the Bombay Regulation Act, 1827 for grant of heirship certificate has been kept suspended, till conclusion of civil suit pending between the parties.[Para No.2]

    The petitioner had filed the aforesaid application before the Court below claiming that she was the only wife of deceased Ramniklal Gandecha and that they had no children. On this basis, the petitioner prayed for grant of heirship certificate under the aforesaid provision to be declared the only heir of the said deceased Ramniklal Gandecha.[Para No.3]

    In the said proceeding, the respondent no.1, who was the sister of the said deceased Ramniklal Gandecha, filed an objection. In the said objection, it was pointed out that the said objector had filed a civil suit bearing Regular Civil Suit No. 7 of 2016 before the Civil Judge, Junior Division, Ghatanji, being a suit for partition and separate possession, wherein the petitioner, brother and sister of the said objector were defendants. It was contended by the said objector (respondent no.1) that if heirship certificate was granted to the petitioner, she would approach the competent authority for mutation of her name in the house property in which she was residing. It was contended that, according to the objector -respondent no.1, the said house property belonged to her father, in respect of which the aforesaid suit for partition and separate possession had been filed.[Para No.4]

    By the impugned order, the Court below has come to the conclusion that when the aforesaid suit for partition and separate possession had been already filed by the respondent no.1(objector), the application filed by the petitioner under Section 2 of the aforesaid Act would have to wait final adjudication of rights of parties in the aforesaid suit. On this basis, the proceedings in the application filed by the petitioner were suspended till the conclusion of the civil suit.[Para No.5]

    A perusal of Section 2 of the aforesaid Act and the application filed by the petitioner thereunder shows that the only prayer made by the petitioner is for grant of heirship certificate to declare that she is the only heir of the deceased Ramniklal Gandecha. A perusal of the objection raised on behalf of respondent no.1 shows that the said respondent has admitted the fact that the petitioner was the only wife of the deceased Ramniklal Gandecha and that they had no children. In view of the aforesaid facts, it would be evident that the claim made in the application filed by the petitioner under the provisions of the said Act, even if granted, would not result in recognition of any rights of the petitioner in respect of the said house property and that an application for mutation before the competent authority, if preferred by the petitioner, would be decided as per law after issuance of notice by the competent authority. Grant of heirship certificate would not ipso facto lead to recognition or crystallization of any rights of the petitioner in the house in question. At best, it would assist the petitioner in claiming that she was entitled to the rights that the deceased Ramniklal Gandecha was entitled, as his only heir.[Para No.6]

It is mandatory for the Court to issue an heirship certificate, if no objector comes forward within one month from the date of citation publication
    Therefore, apprehension expressed by the objector before the Court in the present proceedings was misconceived. The Court below also erred in suspending the proceeding in the present case only on the ground that the aforesaid suit filed by the respondent no.1 was pending before the said Court. The issues raised in the said suit, filed for partition and separate possession, would certainly be decided on merits by the Court and mere pendency of the aforesaid suit ought not to result in suspension of proceedings in the present case. This is fortified by a decision referred to by the learned counsel appearing for the petitioner in the case of Ganpati Vinayak Achwal - 2015(2) All MR 285 wherein this Court held as follows:

16 September 2020

Mamalatdar's decision in respect of existence or use of customary way does not operate as res judicata to a suit in civil court on the same issue

However, simultaneously, it is important to note that admittedly, may be during pendency of the proceeding before the lower authorities, the petitioners have initiated a substantive civil suit against the respondent Nos. 1 and 2 in the form of Regular Civil Suit No.57/2018 in respect of the self same dispute touching existence of the disputed way. It is important to note that in view of the scheme of the Act, the decision of Mamlatdar is not conclusive as can be seen from the provisions of Section 22 and particularly the Second Proviso which reads thus:
22. Subject to the provisions of section 23, sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment of the party to whom the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to have the surface water upon his land flow unimpeded on to adjacent land or continue in possession or use, as the case may be, until otherwise decreed or ordered, or until ousted, by a competent Civil Court :
Mamalatar's decision in respect of existence or use of customary way does not operate as res judicata to a suit in civil court on the same issue
Provided, firstly, that nothing in this section shall prevent the party against whom the Mamlatdar's decision is passed from recovering by a suit in a competent Civil Court mesne profits for the time he has been kept out of possession of any property or out of enjoyment of any use:
Provided, secondly, that in any subsequent suit or other proceeding in any Civil Court between the same parties, or other persons claiming under them, the Mamlatdar's decision respecting the possession of any property or the enjoyment of any use or respecting the title to or valuation of any crop dealt with under the proviso to sub-section (1) of section 21, shall not be held to be conclusive.[P
ara No.16]

14 September 2020

Bank is bound to honour bank guarantee irrespective of any dispute raised by its customer

These bank guarantees which are irrevocable in nature, in terms, provide that they are payable by the guarantor to the appellant on demand without demur. They further provide that the appellant shall be the sole judge of whether and to what extent the amount has become recoverable from the respondent or whether the respondent has committed any breach of the terms and conditions of the agreement. The bank guarantees further provide that the right of the purchaser to recover from the guarantor any amount shall not be affected or suspended by reason of any disputes that may have been raised by the respondent with regard to its liability or on the ground that proceedings are pending before any Tribunal, Arbitrator or Court with regard to such dispute. The guarantor shall immediately pay the guaranteed amount to the appellant-purchasers on demand.[Para No.11]

Bank is bound to honour bank guarantee  irrespective of any dispute raised by its customer
   The law relating to invocation of such bank guarantees is by now well settled. When in the course of commercial dealings an unconditional bank guarantee is given or accepted, the beneficiary is entitled to realize such a bank guarantee in terms thereof irrespective of any pending disputes. The bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a bank guarantee would otherwise be defeated. The courts should, therefore, be slow in granting an injunction to restrain the realization of such a bank guarantee. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take advantage, he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. Since in most cases payment of money under such a bank guarantee would adversely affect the bank and its customer at whose instance the guarantee is given, the harm or injustice contemplated under this head must be of such an exceptional and irretrievable nature as would override the terms of the guarantee and the adverse effect of such an injunction on commercial dealings in the country. The two grounds are not necessarily connected, though both may co-exist in some cases. In the case of U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. (988 [1] SCC 174), which was the case of works contract where the performance guarantee given under the contract was sought to be invoked, this Court, after referring extensively to English and Indian cases on the subject, said that the guarantee must be honoured in accordance with its terms. The bank which gives the guarantee is not concerned in the least with the relations between the supplier and the customer; nor with the question whether the suppler has performed his contractual obligation or not, nor with the question whether the supplier is in default or not. The bank must pay according to the tenor of its guarantee on demand without proof or condition. There are only two exceptions to this rule. The first exception is a case when there is a clear fraud of which the bank has notice. The fraud must be of an agregious nature such as to vitiate the entire underlying transaction. Explaining the kind of fraud that may absolve a bank from honouring its guarantee, this Court in the above case quoted with approval the observations of Sir John Donaldson, M.R. in Bolivinter Oil SA v. Chase Manhattan Bank NA (1984 [1] AER 351 at 352): "The wholly exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear both as to the fact of fraud and as to the bank's knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated statement of the customer, for irreparable damage can be done to a bank's credit in the relatively brief time which must elapse between the granting of such an injunction and an application by the bank to have it charged". This Court set aside an injunction granted by the High Court to restrain the realisation of the bank guarantee.[Para No.12]

13 September 2020

A stranger to the suit cannot be impleaded under Order 1 Rule 10 of C.P.C. in a suit for specific performance merely to avoid multiplicity of the suits

Doctrine of lis pendency does not annul the conveyance or the transfer made during the pendency of suit.


    Liquidation proceedings are also fixed before the Company Law Board. For impleading a party in a suit for specific performance, two tests are to be satisfied. Firstly, there must be a right to some relief against the plaintiff in respect of suit property. Secondly, that in the absence of the petitioner/proposed defendant, no effective adjudication can be done by the trial Court.In a suit for specific performance, necessary party is that person in whose absence no decree can be passed. Proper party is that person whose presence before the Court would be necessary in order to enable the Court to decide and adjudicate the lis in an effective manner. A person stranger to the agreement to sell cannot be termed as necessary and appropriate party as collateral matters cannot be adjudicated in a suit for specific performance. By allowing such a course, the suit itself will be converted into a complicated suit for title.[Para No.18]

    The scope of a suit for specific performance cannot permit third party claiming to be joint owner in the property in question. A stranger to the agreement/contract making a claim adverse to the title of the defendant by claiming right of co- sharership in the suit property cannot be termed to be necessary party, nor proper party for adjudication of the case on merits. In this context reference can be made to Kasturi vs. Iyyamperumal & Ors., 2005(2) R.C.R. (Civil) 691; Anil Kumar Singh vs. Shivnath Mishra @ Gadasa Guru, 1995(1) R.R.R. 660; Krishan Lal vs. Tek Chand, 1986(2) PLR 616 and Om Parkash and another vs. Rajni Gupta and another, 2008(1) R.C.R. (Civil) 400.[Para No.19]

     The ratio of Kasturi's case (supra) has been reiterated by the Hon'ble Apex Court in Civil Appeal Nos.5522-5523 of 2019 titled Gurmit Singh Bhatia vs. Kiran Kant Robinson and others decided on 17.07.2019. The plaintiff is a dominus litis and he cannot be compelled to contest the suit against a person with whom, he does not wish to contest. In Kasturi's case (supra), the Court held that the question of jurisdiction of Court to invoke Order 1 Rule 10 CPC to add a party, who is not made a party in the suit by the plaintiff, shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. Both the tests which have been discussed in the preceding paras are to be satisfied.[Para No.20]

A stranger to the suit cannot be impleaded under Order 1 Rule 10 of C.P.C. in a suit for specific performance merely to avoid multiplicity of the suits
    The party claiming independent title and possession adverse to the title of the vendor and not on the basis of agreement/contract, is not proper party and if said party is impleaded the scope of the suit for specific performance shall be enlarged and it will become a suit for title and it will involve intricated question of title which is not permissible in law. A stranger to the suit cannot be added/impleaded in a suit for specific performance merely in order to find out, who is in possession of the agreed property or to avoid multiplicity of the suits. A stranger to agreement cannot be impleaded as a party so as to convert a suit of one character into a suit of different character. It is only an assignee by sale in a case of specific performance who can be impleaded as party defendant. Section 19(b) of the Specific Relief Act enables the assignee by sale in a suit for specific performance to be impleaded as party. The aforesaid exception has been carved out in view of nature of suit being a specific performance, wherein the assignee by sale can protect his title and join the proceedings in view of law laid down in Thomson Press (India) Ltd.'s case (supra). It is a settled principle of law that doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a Court in a suit should be binding not only on the litigating parties, but on those who derive title pendente lite. This provision does not intend to annul the conveyance or the transfer otherwise to render it subservient to the right of a party to a litigation.[Para No.21]

10 September 2020

Divorce can be granted if the ground of cruelty or desertion is partly proved where sentiments and emotions between spouse have dried up

In the present case the petitioner husband, aged 52 years, is admittedly a small businessman and his 41 years old respondent wife is a house wife. The petitioner has proved his case that his wife abandoned him along with their daughter when he lost his vision and was in dire need of their company and the support of his wife. His illness is not denied by the respondent wife. Such conduct of the wife must have hurt the sentiment of the petitioner husband and affected their relationship. After abandoning her husband, she lebelled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act. She not only prosecuted her husband, the elder sister of her husband was also implicated in the case instituted by her under Section 498A IPC though both of them were ultimately acquitted in appeal. [Para No.40]

    It is true that the wife is not expected to endure the harassment meted out to her by her husband or in-laws without raising protest or filing appropriate proceeding against them, but in the given case the cumulative effect of the facts and circumstances emerging from the evidence on record lead us to a fair inference that her unprovoked humiliating treatment caused serious mental pain and suffering to her husband which no doubt constitutes cruelty.[Para No.41]

Divorce can be granted if the ground of cruelty or desertion is partly proved where sentiments and emotions between spouse have dried up
    Admittedly the present appellant wife and her respondent husband are staying apart from 12.01.2007. They are thus living separately for more than 13 years. During this period they never stayed together even for a single day which indicates that their sentiments and emotions have dried up and there is hardly any chance of restoration of their conjugal life.[Para No.42]

    In this regard, the Apex Court in Naveen Kohli vs. Neelu Kohli reported in (2006) 4 SCC 558 held as follows:
"74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties."[Para No.43]

Suit for injuction simpliciter is maintainable when plaintiff is in lawful or peaceful possession of property

A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession


If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title.


    The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.[Para No.11]

Suit for injuction simpliciter is maintainable when plaintiff is in lawful or peaceful possession of property
    Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.[Para No.11.1]

    Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.[Para No.11.2]

31 August 2020

Where a party to the suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct

The fact remains that there is no evidence on record to hold that defendant No.1 Dashmat Bai admittedly, firstly married Kunjilal, but there is no evidence on record to hold that whether he or she divorced each other and marriage between Kunjilal and Dashmat Bai had ever been validly dissolved. Similarly, it is the further admitted position on record that Dashmat Bai entered into marriage with Latel, but there is no evidence that divorce ever took place between them and thirdly, the alleged third marriage of Dashmat Bai with Sukhdev i.e. she has lastly married Sukhdev in Chudi form. Father of defendant No.1 Dashmat Bai namely, Jaitram (DW-1) has categorically stated that he was not present at the time when Dashmat Bai allegedly entered into marriage in Chudi form with Sukhdev. It is quite unnatural that father will not remain present at the time of such an important ceremony i.e. marriage of his daughter with a person namely Sukhdev. Similarly, Dashmat Bai herself could have entered into the witness-box and offered herself for cross-examination in absence of which adverse inference could be drawn against her.[Para No.20]

Where a party to the suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct
   The Supreme Court in Vidhyadhar (supra) has clearly held that where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. This decision has further been followed by their Lordships of the Supreme Court in Man Kaur (supra).[Para No.21]

28 August 2020

Adverse possession; even if not pleaded, can be presumed when Plaintiff claims the original possession of defendant was permissive, but fails to prove it

A decree of possession does not automatically follow a decree of declaration of title and ownership over property. It is well settled that, where a Plaintiff wants to establish that the Defendant’s original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.[Para No.46]

    The Appellant-Defendant has in his written statement in the suit, denied the title and ownership of the Respondent- Plaintiff to the suit property. The Appellant-Defendant has asserted that the Appellant-Defendant is the owner of the suit property and has been in possession and in occupation of the suit premises as owner from the very inception.[Para No.47]

    In our considered opinion, the High Court erred in law in proceeding to allow possession to the Respondent-Plaintiff on the ground that the Appellant-Defendant had not taken the defence of adverse possession, ignoring the well established principle that the Plaintiff’s claim to reliefs is to be decided on the strength of the Plaintiff’s case and not the weakness, if any, in the opponent’s case, as propounded by the Privy Council in Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC 201.[Para No.48]

    From the pleadings filed by the Appellant-Defendant, it is patently clear that the Appellant-Defendant claimed the right of ownership of the suit property on the basis of a deed of conveyance, executed over 75 years ago. The Appellant- Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. In other words, the Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit.[Para No.49]

Adverse possession; even if not pleaded, can be presumed when Plaintiff claims the original possession of defendant was permissive, but fails to prove it
    In the facts and circumstances of this case, where the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words. It is, however not necessary for this Court to examine the question of whether the Appellant-Defendant was entitled to claim title by adverse possession or not.[Para No.50]

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