Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.666 OF 2015
[Arising out of S.L.P. (C) No. 8008 of 2009]
Zarif Ahmad (D) through Lrs.
& Another ... Appellants
Versus
Mohd. Farooq … Respondent
J U D G M E N T
PRAFULLA C. PANT, J .
1. This appeal is directed against judgment and order
dated 10.12.2008 passed by High Court of judicature at
Allahabad whereby Second Appeal is allowed and the
decree passed by Civil Judge (Junior Division), Havali,
Saharanpur, in Suit No. 77 of 1999, is restored.
2. We have heard learned counsel for the parties and
perused the papers on record.
3. Brief facts of the case are that plaintiff/respondent
Signature Not Verified
instituted suit (OS No. 77 of 1999) seeking permanent
Digitally signed by
Chetan Kumar
Date: 2015.01.27
16:36:54 IST
Reason:
injunction against his brother defendant/appellant no. 1 –
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Zarif Ahmad and nephew Zamir Ahmad
(defendant/appellant no. 2) to restrain them from
interfering in possession of the premises in his occupation.
It is pleaded by the plaintiff that the land shown at the foot
of the plaint (Annexure P-1) with letters Ka, Kha, Ga, Gha,
Cha, Chha, which bears Nagar Panchayat plot no. 358 is
owned and possessed by him, and the adjoining land
shown by letters Gha, Cha, Chha, and Jha bearing Nagar
Panchayat plot no. 357 belongs to the defendants. It is
further pleaded that plaintiff pays house tax of the
property no. 358, and defendants have no concern with it.
The defendants have constructed their house over the land
shown by letters Gha, Cha, Chha, and Jha which is
towards south of the plaintiff’s land. It is alleged in the
plaint that the defendants have threatened the plaintiff
that they would forcibly take possession of the premises
held by him. Consequently, the suit is filed.
4. The defendants contested the suit, and filed written
statement (copy-Annexure P-3) before the trial court. They
denied the title and possession of the plaintiff over land in
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suit. It is stated in the written statement that the
disputed land originally belonged to one Zamindar of town
Behat, before abolition of Zamindari. The land in question
was vacant piece of land, occupied by defendant no. 1 who
constructed his residence and planted trees over it. He
(defendant no. 1) continued his possession over the land
and started paying house tax since 1979 when Town Area
of Behat was notified. It is further pleaded by the
defendants that original Khasra number of the plot in
question was 734/2/3. It is further pleaded that the
plaintiff has been given share in the house of his father in
the ancestral property situated in town Kasban, and he
lives with his family there. It is alleged by the defendants
that the plaintiff got his name entered in the municipal
record in connivance with the Chairman and Members of
Town Area Committee, Behat, and got the disputed
property numbered as 358. It is further pleaded that the
suit is bad for mis-joinder of defendant no. 2. With the
above pleadings, the relief claimed by the plaintiff was
opposed by the defendants.
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5. The trial court, on the basis of the pleadings of the
parties, framed the following issues:
(1) Whether the plaintiff is owner and in
possession of the suit property?
(2) Whether the defendants are illegally
interfering with the peaceful possession of the
plaintiff by cutting the trees, demolishing the
structure and forcibly taking possession of the
property?
(3) Whether the suit is barred by the provisions
of Sections 38 and 41 of Specific Relief Act?
(4) Whether the suit is undervalued and court
fees paid is insufficient?
(5) Whether the suit is bad for mis-joinder of
defendant no. 2?
(6) To what relief, if any, the plaintiff is entitled?
6. The parties adduced their oral and documentary
evidence before the trial court. On behalf of the plaintiff,
PW1-Mohd. Farooq (plaintiff himself) and PW 2-Idrish were
examined. On the other hand, on behalf of the
defendants, DW1- Zarif Ahmad (defendant no. 1 himself),
DW2-Safiq and DW3-Anita (Advocate Commissioner, who
inspected the spot), were examined. It appears that
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plaintiff filed documents to show that in the Assessment
Register of the Town Area, plot no. 358 is recorded in his
name whereas plot no. 357 is recorded in the name of
defendant no. 1- Zarif Ahmad. He further filed receipts
showing payment of house tax in respect of House no. 358
from the year 1993 to 1997, by him. The defendants
appear to have filed paper no. 19C (copy of khatauni),
paper no. 20C (copy of khasra), paper nos. 21C and 22C
(copies of receipts of house tax of house no. 357), paper
nos. 23C and 25C (copies of extract of assessment of town
area) and paper no. 26C (copy of order for sanctioning of
site plan).
7. The trial court, after hearing the parties and
discussing the evidence, decided all the issues in favour of
the plaintiff and decreed the suit vide judgment and order
dated 30.7.2004 (copy-Annexure P-4). Aggrieved by the
said judgment and decree, defendants filed Civil Appeal
no. 40 of 2004 before the District Judge, which was
allowed vide judgment and order dated 2.3.2007
(copy-Annexure P-5) by Additional District Judge,
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Saharanpur. The plaintiff challenged the judgment of the
first Appellate Court before the High Court in Second
Appeal. The High Court, after hearing the parties,
set-aside the order of the first Appellate Court, and
restored the decree passed by the trial court. Hence, by
way of special leave, the defendants have filed the present
appeal.
8. Learned counsel for the defendants argued before
us that the property in suit was not identifiable, and the
first Appellate Court committed no error of law in
dismissing the suit. However, on perusal of plaint (copy-
Annexure P-1), we find that at the end of the plaint,
plaintiff has not only given the boundaries of the plot but
also mentioned Nagar Panchayat (Town Area/Municipal)
number of the plot. It is also clearly mentioned at the foot
of the plaint that the house in question is situated in
Mohalla – Sadakpur, Town Behat Nagar Panchayat, Tehsil
Khas, District Saharanpur, and in the plaint map, same is
shown by letters Ka, Kha, Ga, Gha, Cha, Chha. In our
opinion, there is little force in the argument of learned
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counsel for the defendants that the land in suit is not
identifiable. Had the land in question been non
identifiable, the Advocate Commissioner would not have
given the report, relied by the defendants (copy-Annexure
P-2) after inspection of the plot in question.
9. It is contended by the learned counsel for the
defendants that no length and width of the land in
question is mentioned in the plaint. As such, the decree
passed by the trial court was liable to be set-aside as the
decree could not have been executed.
10. We have considered the submission of leaned
counsel for the defendants but we are unable to agree with
it for the reason that had it been a case of mandatory
injunction requiring restoration of possession of land to
the plaintiff or demolition of the construction raised by the
defendants, what the defendants have pleaded before us,
could have been accepted but the present suit is for the
relief of permanent prohibitory injunction in respect of the
land which is described with boundaries and its municipal
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number. Therefore, it cannot be said that the decree
passed by the trial court is un-executable.
11. Order VII Rule 3 of the Code of Civil Procedure,
1908 (for short “CPC”), which pertains to the requirement
of description of immovable property, reads as under:
“Where the subject matter of the
suit is immovable property :-
Where the subject matter of the suit
is immovable property, the plaint
shall contain a description of the
property, sufficient to identify it, and
in case such property can be
identified by boundaries in a record
of settlement or survey, the plaint
shall specify such boundaries or
numbers.”
12. The object of the above provision is that the
description of the property must be sufficient to identify it.
The property can be identifiable by boundaries, or by
number in a public record of settlement or survey. Even
by plaint map showing the location of the disputed
immovable property, it can be described. Since in the
present case, the suit property has been described by the
plaintiff in the plaint not only by the boundaries but also
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by the municipal number, and by giving its description in
the plaint map, from no stretch of imagination, it can be
said that the suit property was not identifiable in the
present case. In our opinion, the High Court has rightly
held that the first Appellate Court has erred in law in
dismissing the suit by holding that the land is not
identifiable. It appears that the first Appellate Court has
wrongly framed the additional issue as to whether the
property in dispute is identifiable or not particularly when
there was no such plea in the written statement. We are
in agreement with the High Court that there was no need
on the part of the first Appellate Court to remit the matter
to the trial court as contended by the defendants before it
(High Court) to allow the parties to adduce evidence on the
additional issue, as neither issue on identifiability of land
arises from the pleadings nor the evidence was lacking on
record.
13. No doubt, Section 107 of CPC empowers the
appellate court to remand a case, but it simultaneously
empowers the appellate court to take additional evidence
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or to require such evidence to be taken. Rule 24 of Order
XLI C.P.C provides that where evidence on record is
sufficient, appellate court may determine the case finally.
It is not a healthy practice to remand a case to trial court
unless it is necessary to do so as it makes the parties to
wait for the final decision of a case for the period which is
avoidable. Only in rare situations, a case should be
remanded e.g. when the trial court has disposed of a suit
on a preliminary issue without recording evidence and
giving its decision on the rest of the issues, but it is not so
in the present case.
14. In P. Purushottam Reddy and another vs.
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Pratap Steels Ltd , this Court has observed in
paragraph 11 as under:
“11. In the case at hand, the trial court
did not dispose of the suit upon a
preliminary point. The suit was decided by
recording findings on all the issues. By its
appellate judgment under appeal herein,
the High Court has recorded its finding on
some of the issues, not preliminary, and
1
(2002) 2 SCC 686
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then framed three additional issues leaving
them to be tried and decided by the trial
court. It is not a case where a retrial is
considered necessary. Neither Rule 23 nor
Rule 23-A of Order 41 applies. None of the
conditions contemplated by Rule 27 exists
so as to justify production of additional
evidence by either party under that Rule.
The validity of remand has to be tested by
reference to Rule 25. So far as the
objection as to maintainability of the suit
for failure of the plaint to satisfy the
requirement of Forms 47 and 48 of
Appendix A CPC is concerned, the High
Court has itself found that there was no
specific plea taken in the written
statement. The question of framing an
issue did not, therefore, arise. However,
the plea was raised on behalf of the
defendants purely as a question of law
which, in their submission, strikes at the
very root of the right of the plaintiff to
maintain the suit in the form in which it
was filed and so the plea was permitted to
be urged. So far as the plea as to readiness
and willingness by reference to clause ( c ) of
Section 16 of the Specific Relief Act, 1963
is concerned, the pleadings are there as
they were and the question of improving
upon the pleadings does not arise
inasmuch as neither any of the parties
made a prayer for amendment in the
pleadings nor has the High Court allowed
such a liberty. It is true that a specific
issue was not framed by the trial court.
Nevertheless, the parties and the trial
court were very much alive to the issue
whether Section 16( c ) of the Specific Relief
Act was complied with or not and the
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contentions advanced by the parties in this
regard were also adjudicated upon. The
High Court was to examine whether such
finding of the trial court was sustainable or
not — in law and on facts. Even otherwise
the question could have been gone into by
the High Court and a finding could have
been recorded on the available material
inasmuch as the High Court being the
court of first appeal, all the questions of
fact and law arising in the case were open
before it for consideration and decision”.
Therefore, the High Court rightly rejected the contention of
the defendants on the above point.
15. Our attention is also drawn by the learned counsel
for the defendants, to the copy of the report of Advocate
Commissioner (Annexure P-2) in which the Advocate
Commissioner has reported that the defendants were
found in possession of the disputed property.
16. However, in our view, Advocate Commissioner’s
report, in the present case, is against the weight of the oral
and documentary evidence on record which sufficiently
proves that plaintiff was in possession over plot no. 358,
and for several years he was paying the house tax as was
found by the trial court on the basis of house tax receipts
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and extracts of house tax Assessment Register. It is not
disputed that plot no. 357 belonging to the defendants was
in south of plot no. 358, and house of the defendants was
situated over their plot. The trial court has decreed the
suit only in respect of plot no. 358.
17. For the reasons, as discussed above, we find no
illegality with the impugned order whereby the High Court
has allowed Second Appeal, and restored the decree
passed by the trial court. Accordingly, this appeal is
dismissed. No order as to costs.
……………………..…………J.
[Dipak Misra]
…………………..……………J.
[Prafulla C. Pant]
New Delhi;
January 27, 2015.
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ITEM NO.1A COURT NO.6 SECTION XI
(For Judgment
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.666 of 2015
ZARIF AHMAD (D) THR. LRS. & ANR. Appellant(s)
VERSUS
MOHD. FAROOQ Respondent(s)
Date : 27/01/2015 This appeal was called on for Judgment today.
For Appellant(s) Mr. Shankar Divate, AOR
For Respondent(s) Mr. Gaurav Jain, Adv.
Mrs. Abha Jain, AOR
Mr. Jaivir Singh, Adv.
Hon'ble Mr. Justice Prafulla C. Pant, pronounced
the judgment of the Bench comprising Hon'ble Mr. Justice
Dipak Misra and His Lordship.
The appeal is dismissed in terms of the signed
reportable judgment.
(Chetan Kumar)
(H.S. Parasher)
Court Master
Court Master
(Signed reportable judgment is placed on the file)
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