THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO
CCC APPEAL No.225 OF 2001 and bt
09-06-2011
Smt.Askari Begum and others
Md.Ayaz Khan and others
Counsicl of Petitioner:---
Counsil for Respondent:--
:JUDGMENT:
Both the appeals arise out of common property, which is a house property
bearing No.22-3-908 situated at Vazir Ali lane, Darulshifa, Hyderabad, in an
extent of 197 square yards.
2. City Civil Court Appeal No.225 of 2001 arises out of the judgment in
O.S.No.756 of 1991 on the file of I Senior Civil Judge, City Civil Court,
Hyderabad, whereas the Second Appeal arises out of the judgment in A.S.No.292 of
1988 on the file of Additional Chief Judge, City Civil Court, Hyderabad.
The parties are referred as in O.S.No.756 of 1991.
3. The facts of the case are that the suit property originally belonged to
one Khaja Fateh Ali and he sold the same to Smt. Kaneez Fiza @ Putli Bi, W/o.
Syed Mohd.Thaqui Saheb on 18.01.1925 for a consideration of Rs.750/-.
Smt.Kaneez Fiza and her husband were residents of Parbhani of Maharashtra State
and they had only one daughter Kubra Begum, who is the 2nd plaintiff and who was
married to one Mohd.Ishaq and they had a daughter by name Sajeeda Begum, who is
wife of the 1st plaintiff. Syed Mohd. Thaqui Saheb died on 04.08.1930 leaving
behind him his wife and daughter. The property was leased out to one Zaheer-ul-
Hasan, S/o. Naqui in 1935 and on 05.12.1959 Khaneez Fiza leased out the plaint
schedule property to the 2nd defendant on a monthly rent of Rs.20/-. The 2nd
defendant was paying the rent. On 01.03.1969 in a sound disposing state of mind
Kaneez Fiza executed a Will in favour of the 1st plaintiff conveying the
schedule property and therefore, the 1st plaintiff became entitled to the
property. His name was also mutated in the Municipal records as per the orders
dated 24.10.1970. The tenant attorned the tenancy and in 1974 the 1st plaintiff
requested the tenant to vacate the house. The father of the 2nd defendant by
name Nazir Hussain was also living in the plaint schedule property along with
2nd defendant and he filed a suit in O.S.No.445 of 1974 on the file of IV
Assistant Judge, City Civil Court, Hyderabad, questioning the mutation in favour
of the 1st plaintiff and the said suit was dismissed on 07.12.1977 and
thereafter A.S.No.10 of 1978 was preferred to the Chief Judge, City Civil Court,
Hyderabad, which was also dismissed on 24.07.1978. Thereafter, Nazar Hussain
instituted another suit O.S.No.345 of 1978 on the file of V Assistant Judge,
City Civil Court, Hyderabad, for declaration of his title and for permanent
injunction claiming title and perfecting right by adverse possession. The suit
was contested by the 1st plaintiff and the said suit was dismissed holding that
there was no title but it was partly decreed granting injunction. Thereafter,
the 1st plaintiff filed R.C.No.173 of 1980 on the file of III Additional Rent
Controller, Hyderabad, against the 2nd defendant for eviction, in which
relationship of landlord and tenant was denied and claimed that the property was
purchased by Md. Thaqui and that Syed Nazar Hussain, who is the son of Thaqui,
became entitled to the schedule property. The said R.C., was dismissed and
against that the appeal was filed and it was also dismissed. As against the
judgment in O.S.No.345 of 1978 the plaintiff preferred appeal A.S.No.292 of 1988
on the file of Additional Chief Judge, City Civil Court, Hyderabad, and the
said appeal was allowed on 07.12.1998 and as against that the Second Appeal
No.336 of 1990 was preferred. Therefore, in view of the above circumstances,
the suit was filed for declaration of title as the legatee under the Will and
for recovery of the possession from the defendants along with damages. In case
the 1st plaintiff is not entitled to the property as a legatee, in the
alternative the 2nd plaintiff is entitled to the suit property as being the
sole daughter of Kubra Begum.
4. The defendants filed a written statement denying several of the
allegations in the plaint and contending that the suit property belonged to
Kaneez Fiza. Sd.Mohammed Thaqui Saheb is the father-in-law of defendants Nos.1
and 10. The property was purchased in the name of his wife by Syed Mohammed
Thaqui Saheb. The plaintiffs are not related to the said owners. The
allegations that the property was in possession of the 2nd defendant or his
father as tenants is denied. The alleged Will dated 01.03.1969 is denied and it
has not seen the light of the day for a long time and it is a fabricated one.
In the earlier litigation the said Will is found to be not true and since the
issue has been already decided it cannot be agitated again. Municipal
Corporation is not competent to decide the title to the property. The earlier
suit O.S.No.445 of 1974 was dismissed as it was not a comprehensive one and in
the earlier litigation the title of the plaintiffs was also rejected and the
judgment in A.S.No.10 of 1978 operates as res judicata. In O.S.No.345 of 1978
on an erroneous reasoning the relief of title was not granted but however
injunction was granted. The defendants are the absolute owners of the
properties. The Will is not genuine and in view of the decisions in the earlier
proceedings between the parties, the plaintiff cannot claim title to the
property or any relief.
5. On the basis of the above pleadings, the following issues have been framed
by the trial court, for trial:
1) Whether the Will dated 01.03.1969 is executed in a sound and disposing state
of mind and it is binding on plaintiffs?
2) Whether second plaintiff is the daughter of late Kaniz Fiza @ Putli Bee?
3) Whether the decree and judgment in O.S.No.445 of 1974 on the file of IV
Assistant Judge and O.S.No.345 of 1978 on the file of V Assistant Judge and
R.C.No.173 of 1980 on the file of III Additional Rent Controller operates as res
judicata?
4) Whether defendants have perfected their title by adverse possession?
5) Whether the suit claim is barred by time?
6) Whether plaintiffs are entitled to the relief of declaration and possession?
7) Whether the plaintiffs are entitled for damages if so to what amount?
8) To what relief?
6. On behalf of the plaintiffs, PWs.1 to 4 were examined and marked Exs.A.1
to A.17. On behalf of the defendants, DWs.1 and 2 were examined and marked
Exs.B.1 to B.11.
7. After considering the evidence on record, the lower Court accepted the
Will set up by the plaintiffs and accordingly decreed the suit and aggrieved by
the said judgment and decree, the present appeal is filed by the defendants.
8. So far as the Second Appeal No.336 of 1990 is concerned, earlier the
appellants have filed O.S.No.345 of 1978 claiming that the defendants are the
absolute owners of the property and they sought for a declaration of title and
injunction. The same contentions were raised in that suit and the Court found
that the plaintiffs in O.S.No.756 of 1991 have no relationship with Kaneez Fiza
and also failed to establish the execution of the Will, but however by applying
the principles under Order II, Rule 2 of Code of Civil Procedure (for short,
'CPC') and on the principles of limitation, the relief of declaration was not
granted but injunction was granted. As against that the appeal A.S.No.292 of
1988 was filed and the appeal was allowed dismissing the suit even with regard
to the partial relief of injunction. As against that the Second Appeal is
filed. Both the appeals were heard together.
9. The points that arise for consideration are:
1) Whether the Will dated 01.03.1969 in favour of 1st plaintiff by name Mohd
Ayaz Khan in O.S.No.756 of 1991 is true, valid and confers rights on the
plaintiffs?
2) Whether the plaintiffs are entitled for the relief of the declaration and for
recovery of possession of the property as granted by the lower Court?
3) Whether on the principles of res judicata and in view of the earlier
decisions in O.S.No.445 of 1974 and 345 of 1978 and R.C.C.No.173 of 1980 the
plaintiffs are not entitled for any relief?
10. So far as the 2nd appeal is concerned, the legal questions that falls for
consideration are:
1. Whether the application of the principles of Order.2, Rule 2 of CPC by the
Courts is proper?
2. Whether the principles of res judicata are not applicable?
3. Whether the application of the law of limitation by the Courts is legal, when
the possession of the property is found with the appellants herein, the denial
of injunction, consequent on the denial of title of the other party is valid?
4. Whether the mere non-filing of the appeal against certain findings the
appellants are estopped from showing and disputing the correctness or otherwise
of the findings?
11. POINTS:
In both the cases the litigation is old and it has started in the year,
1974 when on the basis of the Will, mutation is said to have been effected in
the municipal records in favour of the 1st plaintiff and consequently the suit
O.S.No.445 of 1974 was instituted. The fact that the property belonged to
Kaneez Fiza is admitted by all sides and the fact that Nazar Hussain is the son
of Mohad. Thaqui, who had two wives and he is the son through the 1st wife and
Kaneez Fiza is the second wife is also undisputable. Therefore, Nazar Hussain
becomes the heir of Kaneez Fiza. It is to be noted that the specific claim made
by the plaintiffs that the 2nd plaintiff is the daughter of Kaneez Fiza and
Mohd.Thaqui and as a successor to the property was not accepted by the lower
Court and the relief based as a succession alternatively was dismissed by the
lower Court, no appeal is filed by her.
12. The decision in both these matters depends on the findings as to whether
the Will set up by the plaintiffs, which was marked as Ex.A.4 is true and valid.
Apart from it, the further consideration will be as to whether the 2nd defendant
and his father Syed Nazar Hussain succeeds to the property of Kaneez Fiza even
if the benami nature of the sale is not believed.
13. Touching on the rights of the parties, in all the earlier litigation
evidence was let in and determined by the Courts. Evidently, apart from
O.S.No.445 of 1974 another suit, which has got relevancy is O.S.No.345 of 1978.
The said suit was filed by Syed Nazar Hussain and others for declaration of
title to the property and injunction against the plaintiffs in O.S.No.756 of
1991. The copy of the said judgment, which was marked as Ex.A.10, does not in
dispute that in the said suit the present plaintiffs in O.S.No.756 of 1991 set
up title in themselves relying on the Will-Ex.A.4 and the Court has not accepted
the said Will and the said suit was partly decreed for injunction and the
declaration in favour of the appellants was rejected on the application of the
principles of Order II Rule 2 CPC. In fact, strenuous effort was made by the
counsel for the respondents to support the judgment in O.S.No.756 of 1991 on the
ground that in the earlier suits the determination of the validity or
genuineness of the Will was not at all in issue and consequently even if the
claim of the plaintiffs in O.S.No.345 of 1978 is not accepted the suit
O.S.No.756 of 1991 is maintainable and the principles of res judicata have no
application. In fact, the lower Court also was of the view that there was no
issue for determination of the genuineness of the Will and consequently the
principle of res judicata has no application.
14. It is unfortunate that the lower Court has taken the view that as there
was no specific issue with regard to the genuineness of the Will, the decision
rendered earlier will not operate as res judicata. It is to be mentioned that
for the application of the principles of res judicata what is essential is the
determination of the rights of the parties and the rival contentions based on
the pleadings. It is the identity of the title in the litigations that has to
be taken into consideration and some times the identity of the actual property
may differ in the two cases. But, in this case, the identity of the property
also does not differ as it relates to the same property. It is the decision on
a particular aspect of the rights of the parties that has to be taken into
consideration with regard to the title to the property. When a comprehensive
issue was framed with regard to title of the property claimed by one party and
opposed by the other party, then it is a determination of the rights of the
parties in issue in both the suits. Merely because a separate issue with regard
to the source of title claimed by the defendants is not framed it does not mean
that the principles of res judicata are not applicable and that the decision in
the earlier suit is not binding. It is to be noted that the decision of the
Court on the rights of the parties is essential and not the particular framing
of an issue. In fact, when a suit for declaration of title is filed and the
title is denied by the defendants setting in himself a title under a particular
document, then the issue in the suit will be as to whom is the owner of the
property and any finding touching on that issue will be binding in the
subsequent suit. Therefore, the contention of the counsel for the respondents
that as no issue was framed specifically with regard to the validity of the Will
in the earlier suits and the consequent finding of the failure to prove the Will
will not operate as res judicata cannot be accepted. It is needless to say that
in a suit for title the person who establishes better title will be entitled to
the relief and if the title of the defendants who have set up an independent
title is established the suit of the plaintiffs will be dismissed. But, if such
title is not accepted and when such findings have become final the party is
bound by it. The limited concept of framing of issue in order to plead for non-
application of the principles of res judicata is untenable and the issue will be
the rights of the parties, which was necessary for determination and when such
determination is made Section 11 of the CPC will apply in all fours. In this
connection, it is useful to refer to a decision reported in Ram Gobinda Daw and
others, (In all the Appeals) Vs. Smt. H.Bhakta Bala Dassi etc.,1, wherein it was
held that -
"The test of res judicata is the identity of title in the two litigations
and not the identity of the actual property involved in the two cases but the
previous decision must be one on a title in respect of which a dispute has been
raised and which dispute was heard and finally decided by the Court. Once the
decision on question of title becomes final it operates as res judicata even if
the value of the subject matter on which the former decision was pronounced was
comparatively very trifling. When the decision was given by trial Court after
contest it operates as res judicata even if appeal therefrom might have been
dismissed on some preliminary grounds like limitation".
15. Before adverting to the facts of the case several decisions were also
relied on by the parties. The counsel for the respondents has relied on by a
decision reported in Alka Gupta Vs. Narender Kumar Gupta2, which dealt with the
scope of Section 11 of CPC and Order II Rule 2 CPC. So far as Order II Rule 2
CPC is concerned, it was held that a plea has to be raised and an issue is to be
framed thereon, without which the Court cannot dismiss the suit. It is also
found that if the second suit is based on different cause of action, Order II
Rule 2 CPC has no application. So also reliance was placed on the decision
reported in Sulochana Amma Vs. Narayanan Nair3, about the application of Section
11 CPC. The counsel for the respondents also relied on a decision reported in
S.Saraswathi V. Y.Laxminarayana4, wherein it was held that the judgment in Rent
Control proceedings will not operate as res judicata in a suit for declaration
of title.
16. The learned counsel for the appellants relied on a decision reported in
Commissioner of Endowments and others Vs. Vittal Rao and others5, wherein it was
held that even if no issue was formally framed in the earlier suit when a point
was material and essential for decision of a case in earlier proceeding, which
has attained finality, it would operate as res judicata between the parties. He
also relied on a decision reported in Swamy Atmananda and others Vs. Sri
Ramakrishna Tapovanam and others6, wherein the scope of Section 11 CPC and
Order II Rule 2 were considered and it was held even in the absence of a formal
issue when the parties have gone to trial on a necessary pleadings and filed the
documents the principles of res judicata were held applicable. This being the
legal position, it is necessary now to consider about the result of the earlier
proceedings and the validity of them.
17. The suit O.S.No.345 of 1978 was decided on 29.01.1988. In that suit, the
plaintiffs have set up the Will and pleaded absolute title. But however, a
single issue was framed as to whether the plaintiffs are entitled for
declaration and consequential relief of injunction. The Court has considered
the entire evidence on record and in Para No.20 of Ex.A.10, the judgment, the
Court held that -
"In view of my above discussion the plaintiff is legal heir of Kaneez Fiza
and owner of the suit house and the defendant is no way concerned with the suit
house as he failed to establish his relationship with Smt. Kaneez Fiza or
alleged attornment of tenancy of plaintiff's son in his favour and also failed
to establish the execution of Will said to be executed by Smt. Kaneez Fiza.
Hence he has no right to challenge the title of the plaintiff being a stranger
to the suit house".
18. It was also incidentally found by the learned Judge in para No.14 as
follows:
"Even in this case also the defendant had not chosen to prove the same and
the learned counsel for the defendant fairly conceded that the said Will is not
valid because it is executed contrary to the Muslim Law as Smt.Kaneez Fiza had
no right to bequeath her entire property. As such the contention of the
defendant that the Will executed in his favour is a valid document is false.
When Will is not proved and execution of the said document is rejected in the
earlier litigation I don't understand how the defendant is claiming his rights
over the suit premises. Apart from this he also utterly failed to establish his
relationship with Kaneez Fiza as he admitted in his cross examination on that he
has no document to show that Kubra Begum is the daughter of Kaneez Fiza and also
deposed Kubra Begum and her husband are also alive".
But however, in para No.19, the learned Judge held that -
"Hence the present suit of the plaintiff is hit by Order 2 Rule 2 CPC as
he omitted the present relief which ought to have asked in the earlier suit
under the same causes of action. Though the plaintiff had better title than the
defendant herein this legal impediment restraining him to entitle the relief.
Hence the plaintiff is not entitled for the relief of declaration of ownership
over the suit house as it is hit by Order 2 Rule 2 CPC. But the defendant has
no right to interfere into the suit house taking advantage of this legal
impediment as he has no better title that the plaintiff".
19. These findings were also considered in the appeal A.S.No.292 of 1988 and
the copy of the judgment is marked as Ex.A.13. The learned Judge in Para No.13
found that though the plaintiffs in O.S.No.756 of 1991 claimed title to the
property under the Will, the Will is not proved by any evidence. The findings
of the lower Court that the Will is not proved and valid is accepted.
Therefore, it is quite clear in O.S.No.345 of 1978, which is comprehensive suit
for a determination of the title to the property between the parties, the rights
of the appellants were accepted but on technical ground by application of
principle of Order 2 Rule 2 CPC, the relief was not granted, whereas there was a
specific finding about the Will set up by the plaintiff in O.S.No.756 of 1991
and holding that does not proved. It was also found by the trial Court in that
suit that empathetically as follows in Para No.16 of the judgment in O.S.No.345
of 1978-Ex.A.10:
"As I already stated that the defendant failed to establish the
will, he is not the owner of the house and not having better title than the
plaintiff herein, when he is not derived any title from Kaneez Fiza he had no
right to challenge the plaintiff's title over the suit house by alleging that
the plaintiff stayed in the suit house by virtue of his son's tenancy, as it is
proved that the plaintiff is the sole legal heir of Kaneez Fiza and entitled for
the property being sole legal heir of Kaneez Fiza, as she had no other issues.
The defendant has not concerned with the property as he failed to prove that he
is entitled for the property, under a valid document as well as his relationship
with the said Kaneez Fiza".
20. Therefore, the above decision in the earlier suit clearly goes to show
that the Will set up by the plaintiffs in O.S.No.756 of 1991 was not accepted as
it was not proved, no effort was made to establish the title set up under the
Will. A strange argument was developed by the counsel for the respondents
stating that in the above suit, he was not called upon to prove the genuineness
of the Will and it was only with regard to the declaration of the title claimed
by the plaintiffs and consequently, the Will was not an issue directly and
substantially. This is fallacious. The title of the plaintiff in that suit was
resisted by setting up a rival title under the Will and in fact, the title of
the plaintiffs was accepted but however on technical grounds the relief was not
granted. Therefore, the contention that as there was no issue and as the
plaintiffs were not called upon to prove the Will in that suit and consequently
it was not a decision on the Will has to be discarded. Even in the appeal
against the said suit in A.S.No.292 of 1988 the title of the plaintiffs was also
not accepted. Therefore, in view of the above circumstances, I have no
hesitation in holding that the title of the plaintiffs under the Will was not
proved and the Will was not accepted in O.S.No.345 of 1988 and consequently any
finding with regard to title to the property is binding in the subsequent suit
and the judgment of the Court in O.S.No.756 of 1991 in not applying the
principles of res judicata and taking the pains of a decision with regard to the
Will is not warranted and it is erroneous.
21. Furthermore, the question arises as to whether the Will was proved by the
plaintiffs in this suit. Evidently, the burden is on the propounder of the Will
to prove the execution of the same. A Will is a compulsorily attestable
document and it has to be proved that the executant of the Will was conscious
and aware of the contents of the same. In this case evidently, the relationship
of the plaintiffs with Kaneez Fiza was not accepted by the Courts. The original
of the Will was not produced before the Court. Ex.A.4 is only certified copy of
the Will and the reasons for not summoning or producing the original Will is not
forthcoming. No permission was taken to dispense with the production of the
original. If the original was marked in the earlier suit O.S.No.445 of 1974, it
could have been easily filed when certified copy was obtained. The scribe of
the Will was not examined. PW.2 is said to be aged about 55 years and a
resident of Parbhani and he claims that Kaneez Fiza executed the Will. His
evidence does not show that the contents of the Will were dictated by the
testator and the reason for execution of the Will and that he signed along with
the other attesters to the witnessing of the testator. He studied only up to
5th class and he does not know even the name of the husband of the Kaneez Fiza
and he has not given evidence with regard to the Will earlier. So also the
evidence of PW.4, who is said to be an Advocate and attester of the Will, is
also not sufficient to establish the Will. He is not even able to give the name
of the testator and he claims that it was referred in Ex.A.4. He does not even
say that the contents of the Will were declared by the testator and that it was
drafted in his presence and that he has signed to the witnessing of the
testator. He does not even know the family particulars of Mohd. Thaqui and he
claims to be accidentally present when he went to the Registrar's Office and
therefore, he attested Ex.A.4, except that he has no prior information. The
evidence of PW.4 appears to be artificial. He was not even able to testify the
soundness of the mind of the testator at the time of execution of the Will. If
such is the evidence, the lower Court heard in holding that the evidence of
PWs.2 and 4 establishes the execution of the Will. Therefore, it is quite clear
that there is no proper proof even in the present suit about the execution of
the Will and the legal requirement of soundness of mind and free Will of the
testator and the declaration of the intention to Will away the property by the
testator were not spoken either by PW.2 or PW.4. They are also not specific
about the testators signing to their witnessing and they attesting the Will to
the witnessing of the testator. Therefore, the lower Court has failed to apply
the legal principles in assessing the genuineness of the Will.
22. Furthermore, the lower Court also ignoring the earlier finding of the
relationship of second plaintiff has given a finding that 2nd plaintiff is
related to Kaneez Fiza, which is also erroneous. Therefore, the judgment of the
lower Court in accepting the Will and declaring the rights of plaintiff No.1 in
O.S.No.756 of 1991 is not valid by applying the principles of res judicata and
also for want of proof of the Will.
23. So far as the application of the principles under Order II Rule 2 CPC in
O.S.No.345 of 1978 is concerned, I do not think that it was correct approach.
Evidently, as laid down by the Supreme Court, no issue was framed on that
aspect. But however, the Court of its own motion considered the aspect. Even
otherwise, the earlier suit O.S.No.445 of 1974 is essentially a challenge with
regard to the mutation effected in the Muncipal records and a claim to the
rights in the property. It was not a substantial suit with regard to the title
to the property and ultiminately the suit was dismissed as it was not a suit for
a declaration of title. As against that judgment in A.S.No.10 of 1978 under
Ex.A.7 the appellate Court found that both parties have failed to prove the
title to the property though endeavour was made and ultimately it was found in
para No.10 as follows:
"The mere fact that the name of the respondent has been entered into the
Municipal records in respect of the suit property, after the death of Kaneez
Fiza it does not follow that the respondent has title to the property the
Commissioner has in fact informed the appellant when he have a notice in
January, 1971 that the change of mutation does not effect the rights, if any, if
the appellant to the property".
24. The judgment of the appellate Court clearly goes to show that the remedy
was to file a suit for declaration. It was also found that the only course open
is to file a suit for declaration of title and on the basis of the decree that
may be obtained the correction. It was also found that -
"The only course open them for the appellant is to file a suit for
declaration of his title and on the basis of the decree that he may obtain he
should seek for correction in the municipal records".
It can be taken in other words as a permission for filing of the separate suit
for declaration of title even assuming for a moment the principles of Order II
Rule 2 CPC are applicable. But, I have no hesitation in holding that the
dismissal of the suit O.S.No.445 of 1974 will not in any way bar the filing of
the suit O.S.No.345 of 1978 since the cause of action is quite different. In
fact, the dismissal of the earlier suit with a direction to sue for declaration
of a title itself creates a fresh cause of action for institution of the suit
for declaration.
25. Furthermore, while appreciating the maintainability of the suit for
declaration, in Para No.18 under Ex.A.10 the Court found that the suit has to be
filed within a period of three years for declaration of title, which was also
incidentally accepted by the appellate Court in A.S.No.292 of 1988 under
Ex.A.13. Evidently, the suit is not based after dispossession. Under Article
65 of the Limitation Act, the suit for declaration of title can be filed when
there is a cloud over the title and the limitation is 12 years and the period of
three years from the knowledge of the claim made by the other side as found by
lower Court does not arise. Therefore, on this aspect both the appellate Court
and the lower Court have erred. The period of limitation under Article 65 of
Limitation Act is applicable and the only plea that can be pleaded by the other
side is perfection of title by adverse possession beyond that time. In this
case, evidently, there was no possession of the plaintiffs. These two findings
are therefore erroneous and against the settled principles of law and the Courts
below have erred in applying the correct legal provision in the suit O.S.No.345
of 1978 concerning the Second Appeal.
26. The principle of law is that a person in possession can protect the
possession against the entire world and even against a true owner. If there is a
settled possession of the property an injunction can be granted. In this case,
evidently the plaintiffs in O.S.No.756 of 1991 have no title to the property
when once the Will is not believed and the title of the appellants is accepted
though the declaration is rejected erroneously on technical grounds. The
finding of the appellate Court under Ex.A.13 that the relief of injunction also
cannot be granted as the evidence shows the 1st plaintiff is residing along with
the son and it cannot be said that the party is in possession of the said
property having right or title, and refusal of the injunction, is incorrect. So
also, the finding of the appellate Court that as the declaration of title is
refused the consequential relief of injunction cannot be granted is also
erroneous. It is to be noted that the declaration of title is not granted, on
an erroneous approach and not finding that there is no title or finding that the
other side is having title to the property. Therefore, a person in possession
of the property can protect the possession as of right unless and until duly
evicted by person with title. In this case, earlier attempts in the eviction
proceedings failed and the title under the Will being not accepted, the 1st
plaintiff in O.S.No.756 of 1991 has also no right to seek for recovery of
possession of the property. Under such circumstances, the person in possession
is entitled for injunction even if declaration is refused. In view of the
decision in O.S.No.756 of 1991 that the plaintiffs are not entitled for the
declaration of title, the possession has to be protected. In this connection,
it is useful to refer to a decision reported in Rame Gowda (Dead) by LRs. Vs.
M.Varadappa Naidu (Dead) by LRs and another7, in that case the plaintiff filed a
suit alleging his title as also his possession over the disputed piece of land.
The trial court found that although the plaintiff had failed in proving his
title, he had succeeded in proving his possession over the suit property, which
he was entitled to protect unless dispossessed therefrom by due process of law.
On this finding the trial court issued an injunction restraining the defendant-
appellant from interfering with the peaceful possession and enjoyment of the
plaintiff-respondent over the suit property. The defendant's appeal was
dismissed by the High Court. He then appealed to the Supreme Court. The
Supreme Court while considering the rival contentions and the principles of law
with regard to the possession and injunction and referring to earlier decisions
held that a person in settled possession is entitled for injunction and
possession itself is a better title when the defendant himself fails to prove
the title. In this connection, it is useful to refer to the para Nos.7 and 8 of
the above Judgement, which is as follows:
"7. The thought has prevailed incessantly, till date, the last and latest one
in the chain of decisions being Ramesh Chand Ardawatiya v. Anil Panjwani (2003)
7 SCC 350. In between, to quote a few out of several, in Lallu Yeshwant Singh v.
Rao Jagdish Singh (AIR 1968 SC 620 : (1968) 2 SCR 203), this Court has held that
a landlord did commit trespass when he forcibly entered his own land in the
possession of a tenant whose tenancy has expired. The Court turned down the
submission that under the general law applicable to a lessor and a lessee there
was no rule or principle which made it obligatory for the lessor to resort to
Court and obtain an order for possession before he could eject the lessee. The
Court quoted with approval the law as stated by a Full Bench of Allahabad High
Court in Yar Moh v. Lakshmi Das (AIR 1959 All 1 : 1958 All LJ 628 (FB)):
"Law respects possession even if there is no title to support it. It will not
permit any person to take the law in his own hands and to dispossess a person in
actual possession without having recourse to a Court. No person can be allowed
to become a Judge in his own cause." (AIR p.5, para 13)
In the oft-quoted case of Nair Service Society Ltd. v. K. C. Alexander (AIR 1968
SC 1165 : (1968) 3 SCR 163), this Court held that a person in possession of land
in assumed character of owner and exercising peaceably the ordinary rights of
ownership has a perfectly good title against all the world but the rightful
owner. When the facts disclose no title in either party, possession alone
decides. The Court quoted Loft's maxim- "Possessio contra omnes valet praeter
eur cui ius sit possessionis (he that hath possession hath right against all but
him that hath the very right)" and said. (AIR p.1175, para 20)
"A defendant in such a case must show in himself or his predecessor a valid
legal title, or probably a possession prior to the plaintiff's and thus be able
to raise a presumption prior in time".
In M.C. Chockalingam v. V. Manickavasagam ((1974) 1 SCC 48), this Court held
that the law forbids forcible dispossession, even with the best of title. In
Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, ((1989) 4 SCC 131), it was held
that where a person is in settled possession of property, even on the assumption
that he had no right to remain on the property, he cannot be dispossessed by the
owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat
Singh ((1995) 3 SCC 426), this Court held that disputed questions of title are
to be decided by due process of law, but the peaceful possession is to be
protected from the trespasser without regard to the question of the origin of
the possession. When the defendant fails in proving his title to the suit land
the plaintiff can succeed in securing a decree for possession on the basis of
his prior possession against the defendant who has dispossessed him. Such a suit
will be founded on the averment of previous possession of the plaintiff and
dispossession by the defendant.
8. It is thus clear that so far as the Indian law is concerned the person in
peaceful possession is entitled to retain his possession and in order to protect
such possession he may even use reasonable force to keep out a trespasser. A
rightful owner who has been wrongfully dispossessed of land may retake
possession if he can do so peacefully and without the use of unreasonable force.
If the trespasser is in settled possession of the property belonging to the
rightful owner, the rightful owner shall have to take recourse to law; he cannot
take the law in his own hands and evict the trespasser or interfere with his
possession. The law will come to the aid of a person in peaceful and settled
possession by injuncting even a rightful owner from using force or taking the
law in his own hands, and also by restoring him in possession even from the
rightful owner (of course subject to the law of limitation), if the latter has
dispossessed the prior possessor by use of force. In the absence of proof of
better title, possession or prior peaceful settled possession is itself evidence
of title. Law presumes the possession to go with the title unless rebutted. The
owner of any property may prevent even by using reasonable force a trespasser
from an attempted trespass, when it is in the process of being committed, or is
of a flimsy character, or recurring, intermittent, stray or casual in nature or
has just been committed, while the rightful owner did not have enough time to
have recourse to law. In the last of the cases, the possession of the
trespasser, just entered into would not be called as one acquiesced to by the
true owner".
The above decision clearly applies to the facts of the case and the appellants
in second appeal are entitled for the injunction as granted by the lower Court,
which was erroneously interfered by the appellate Court.
27. Therefore, for all the above reasons, I find all the points in favour of
the appellants and I hold that the plaintiffs in O.S.No.756 of 1991 are not
entitled for the declaration of title and consequently City Civil Court Appeal
No.225 of 2001 and Second Appeal No.336 of 1990 are liable to be allowed.
28. In the result, City Civil Court Appeal No.225 of 2001 is allowed and
O.S.No.756 of 1991 on the file of I Senior Civil Judge, City Civil Court,
Hyderabad, is dismissed. Second Appeal No.336 of 1990 is allowed and the
Judgment in A.S.No.292 of 1988 on the file of Additional Chief Judge, City Civil
Court, Hyderabad is set aside, and the judgment of the lower Court in O.S.No.345
of 1978 on the file of V Assistant Judge, City Civil Court, Hyderabad is
restored. Each party shall bear their own costs.
?1 AIR 1971 SUPREME COURT 664
2 (2010)10 Supreme Court Cases 141
3 (1994) 2 Supreme Court Cases 14
4 2004(6) ALT 95
5 AIR 2005 SUPREME COURT 454
6 (2005)10 Supreme Court Cases 51
7 (2004)1 Supreme Court Cases 769
