Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1725 OF 2010
| IQBAL BASITH AND OTHERS |
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VERSUS
| N. SUBBALAKSHMI AND OTHERS | . |
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JUDGMENT
NAVIN SINHA, J.
The plaintiffs are in appeal against the concurrent findings
by two courts, rejecting their plaint seeking the relief for
permanent injunction. The suit was initially dismissed. R.F.A.
No.116/1990 preferred by the appellants was allowed by the
High Court. The order was set aside by this court in C.A. No.
2072/2000 on 22.07.2004 and the matter was remanded to the
High Court.
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2020.12.14
16:31:01 IST
Reason:
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2. Mr. Basava Prabhu S. Patil, learned senior counsel
appearing on behalf of the appellants, submits that the
respondents had no concern with the suit property no. 44/6, ad
measuring 90 ft. x 110 ft. situated on the J. C. Road in
Bangalore. The respondents were the owner of property bearing
no. 42, at a distance of 103 ft., with intervening properties also.
The respondents illegally attempted to encroach on the
appellants property on 10.02.1974 by dumping bamboo and
other construction materials, compelling the appellants to
institute the present suit. Shri Patil relied upon the reports of
the Pleader Commissioner appointed by the Trial Court, and
again by the High Court, to submit that the appellants were
found to be in possession of the property coupled with the entries
in the property tax register and the municipal tax receipts in
name of the appellants. The respondents did not claim any title
in themselves to the suit property, but feebly sought to question
the appellants title in a vague manner. O.S. No. 3334/1984 filed
by the respondents was allowed to be dismissed in default. The
suit filed by the appellants was only for grant of permanent
injunction. No issue with regard to title was therefore framed.
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The lawful possession of the appellants stood established from
Ex.D1 dated 07.09.1946, filed by the respondents, vesting title
in their vendor, O.A. Majid Khan by the Bangalore City
Municipality (hereinafter referred to as “the Municipality”) under
Section 41(2) of the Mysore City Municipalities Act, 1933
(hereinafter referred to as ‘the Act’) over an area of 75 ft. x 110 ft.,
and the subsequent sale deed dated 27.09.1962 by the
Municipality in favour of the appellants mother for the remaining
area of 15 ft. x 110 ft.
3. Both the Courts held that the respondents had no concern
with the suit property, yet ventured to decide that the appellants
had failed to establish title and dismissed the suit. The
conclusion of the High Court that the identity of the suit property
had not been established is perverse and contrary to the evidence
on record.
4. Mr. Purushottam Sharma Tripathi, learned counsel for the
respondents, submitted that the appellants failed to establish the
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identity of the suit property, the boundaries having changed from
time to time. The appellants also failed to establish title in favour
of their vendor. It was therefore rightly held that they could not
establish lawful possession. No original documents of title were
produced, but only photocopies which were inadmissible in
evidence. The property tax register entries for the years 195051
to 195455 are irrelevant, as the appellants claimed acquisition
of title from O.A. Majid Khan on basis of sale deed dated
10.07.1956. The suit was therefore rightly dismissed.
5. Shri Tripathi however fairly conceded that the respondents
were in possession of property bearing no.42 which was at a
distance of 103 ft. from the suit property bearing no. 44/6, and
that there were intervening properties also. He further, with all
fairness, acknowledged that the respondents never claimed any
title to the property bearing no. 44/6.
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6. We have considered the submissions on behalf of the parties
and are of the deliberated opinion that the appeal deserves to be
allowed, for reasons to be enumerated hereinafter.
7. The suit property bearing no. 44/6 in J.C. Road, Bangalore
measures totally 90 ft. x 110 ft. The property originally belonged
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to the municipality, identified as site no.10 and 17 J.C. Road, 6
Division, Bangalore. On 08.08.1945, the City Municipal Council
resolved to sell 75 ft. x 110 ft. to one O.A. Majid Khan. Sanction
for the sale was accorded by the Municipality on 07.09.1946, by
Government Order No. L.33923/ML55466 under Section 41(2)
of the Act. The respondents themselves filed a certified copy of
the same in the suit, which was marked as Ex. D1. The said
O.A. Majid Khan, by letter no. A7.0.170/4647 dated 17.09.1946
was directed to deposit Rs.17,361/as consideration. The
Municipal Engineer on 30.09.1946 was directed to hand over
possession after deposit of the consideration amount. Possession
was handed over to O.A. Majid Khan on 10.10.1946. On
16.04.1956, the Assistant Revenue Officer of the Municipality,
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informed that the property bearing no.10 and 17 sold to O.A.
th
Majid Khan had been renumbered as 44, J.C. Road, 25 division.
8. Sufia Khatoon, the widow of O.A. Majid Khan, sold the
property to the mother of the appellants Zahara Khatoon, original
plaintiff no. 3, on 10.07.1956 by a registered sale deed. Two
confirmatory sale deeds were also executed on 08.04.1958 and
21.08.1959 by the legal heirs of O.A. Majid Khan in favour of
Zahara Khatoon after attaining majority. Subsequently on
27.09.1962 the remaining portion of the suit property
admeasuring 15 ft. x 110 ft. was sold by the municipality to
Zahara Khatoon by a registered sale deed. Zahara Khatoon thus
became the owner of the suit area of 90 ft. x 110 ft. of property
bearing no. 44/6. The mother of the appellants gifted the
property to them in 1966. The necessary entries were made in
the property tax register, and the tax receipts demonstrate the
payment of tax by the appellants from 196465 up to the year
196970 and again from 198485, 198687.
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9. The present suit was instituted by the appellants in 1974
seeking permanent injunction as the respondents attempted to
encroach on their property. The suit schedule property was
described as no. 44/6. The respondents in their written
statement claimed ownership and possession of property no. 42,
acknowledging that other properties lay in between. A feeble
vague objection was raised, but not pursued, questioning the title
of the appellants. The respondents raised no genuine objection
to the validity or genuineness of the government documents and
the registered sale deeds produced by the appellants in support
of their lawful possession of the suit property. The original
defendant no.1 did not appear in person to depose, and be cross
examined in the suit. His younger brother deposed on the basis
of a power of attorney, acknowledging that the latter had
separated from his elder brother. No explanation was furnished
why the original defendant did not appear in person to depose.
We find no reason not to draw an adverse inference against
defendant no.1 in the circumstances. In
Iswar Bhai C. Patel vs.
Harihar Behera, (1999) 3 SCC 457 this Court observed as
follows:
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“17…..Having not entered into the witnessbox and
having not presented himself for crossexamination,
an adverse presumption has to be drawn against him
on the basis of the principles contained in Illustration
( g ) of Section 114 of the Evidence Act, 1872.”
10. The Trial Court framed four issues. The question of title of
the appellants was not one of them.
“1. Do the plaintiffs prove their lawful possession of
the suit property?
2. Do the plaintiffs prove, the defendants interfered
with their possession of suit property?
3. Whether plaintiffs have to pay court fee on the
market value of the property, in view of the
pleadings in plaint?
4. What relief or order?"
11. The High Court framed the issues afresh as follows. Title
was again not one of them.
“1. Whether plaintiffs have proved identity of suit
schedule property?
2. Whether plaintiffs have proved that they are in
lawful possession of suit schedule property?
3. Whether plaintiffs have proved interference by
defendants?
4. Whether the trial court Judge has property
appreciated evidence on record and arrived at
proper reasons and conclusions?”
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12. Both the courts then proceeded to consider the title of the
appellants to decide lawful possession. The respondents had
themselves produced a certified copy of Ex. D1 dated
07.09.1946. The appellants produced photocopies of all other
resolutions, government orders and sale deed in favour of their
vendor O.A. Majid Khan by the Municipality. The failure to
produce the originals or certified copies of other documents was
properly explained as being untraceable after the death of the
brother of P.W.1 who looked after property matters. The attempt
to procure certified copies from the municipality was also
unsuccessful as they were informed that the original files were
not traceable. The photocopies were marked as exhibits without
objection. The respondents never questioned the genuineness of
the same. Despite the aforesaid, and the fact that these
documents were more than 30 years old, were produced from the
proper custody of the appellants along with an explanation for
nonproduction of the originals, they were rejected without any
valid reason holding that there could be no presumption that
documents executed by a public authority had been issued in
proper exercise of statutory powers. This finding in our opinion
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is clearly perverse in view of Section 114(e) of the Indian Evidence
Act 1872, which provides that there shall be a presumption that
all official acts have been regularly performed. The onus lies on
the person who disputes the same to prove otherwise.
13. This Court in
Lakhi Baruah vs. Padma Kanta Kalita,
(1996) 8 SCC 357, with regard to admissibility in evidence of
thirty years old documents produced from proper custody
observed as follows :
“14. It will be appropriate to refer to Section 90 of
the Evidence Act, 1872 which is set out
hereunder:
“90.
Presumption as to documents thirty years
old. — Where any document, purporting or
proved to be thirty years old, is produced from
any custody which the Court in the particular
case considers proper, the Court may presume
that the signature and every other part of such
document, which purports to be in the
handwriting of any particular person, is in that
person’s handwriting, and, in the case of a
document executed or attested, that it was duly
executed and attested by the persons by whom it
purports to be executed and attested.”
15. Section 90 of the Evidence Act, 1872 is
founded on necessity and convenience because it
is extremely difficult and sometimes not possible
to lead evidence to prove handwriting, signature
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or execution of old documents after lapse of
thirty years. In order to obviate such difficulties
or improbabilities to prove execution of an old
document, Section 90 has been incorporated in
the Evidence Act, 1872 which does away with the
strict rule of proof of private documents.
Presumption of genuineness may be raised if the
documents in question is produced from proper
custody. It is, however, the discretion of the
court to accept the presumption flowing from
Section 90. There is, however, no manner of
doubt that judicial discretion under Section 90
should not be exercised arbitrarily and not being
informed by reasons.”
14. The appellants were seeking the relief of permanent
injunction only. Their title to the suit property was not disputed
by the respondents. The respondents acknowledged that they
were in ownership and possession of plot no.42, which had no
concern with the suit property and was situated at a distance of
103 feet with other intervening properties. The two reports of the
Pleader Commissioner also confirmed the possessory title of the
appellants along with property tax registers and municipal tax
receipts. The appellants had more than sufficiently established
their lawful possession of the suit property.
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15. The conclusion by the courts below that the appellants had
failed to establish title and therefore could not be said to be in
lawful possession is therefore held to be perverse and
unsustainable. Similarly, the conclusion that the identity of the
suit property was not established is also held to be perverse in
view of letter dated 16.04.1956 from the municipality, referred to
herein above. The contention of the respondents feebly seeking to
question the title of the appellants was rejected holding that they
had nothing to do with the suit schedule property and that their
conduct was questionable. Yet the appellants were wrongly
denied the relief of permanent injunction. In our considered
opinion the Trial Court and the High Court both posed unto
themselves the wrong question venturing to decide the title of the
appellants, and arrived at an erroneous conclusion.
16. On basis of the aforesaid discussion, the materials and
evidence on record, we are of the considered opinion that the
impugned orders dismissing the suit and the appeal are therefore
not sustainable. We therefore set aside the orders of the Trial
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Court and the High Court dismissing the suit, and allow the
appeal.
…………...................J.
[R.F. NARIMAN]
…………...................J.
[NAVIN SINHA]
…………...................J.
[KRISHNA MURARI]
NEW DELHI
DECEMBER 14, 2020.
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