Justice Dipankar Datta, Justice Prashant Kumar Mishra, Supreme Court
Plaintiff Needs To File Suit For Declaration Where His Title Is Under A Cloud & He Is Not In Possession: Supreme Court
|The Supreme Court reiterated that in a suit filed for possession based on title, the Plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land.
The Supreme Court reiterated that the Plaintiff is required to file a Suit for declaration, possession, and injunction where his title is under a cloud and he is not in possession.
The Court reiterated thus in a Civil Appeal filed by the Defendants in a Suit for cancellation of Sale Deeds, recovery of possession and injunction, challenging the Judgment of the Allahabad High Court.
The two-Judge Bench of Justice Dipankar Datta and Justice Prashant Kumar Mishra emphasised, “This Court in Anathula Sudhakar v. P. Buchi Reddy had the occasion to hold that where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction; however, where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.”
The Bench also reiterated that in a suit filed for possession based on title, the Plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land.
Senior Advocate Kavin Gulati appeared for the Appellants/Defendants while AOR Dharitry Phookan appeared on behalf of the Respondents/Plaintiffs.
Brief Facts
The common ancestor of the parties allegedly executed a Will in 1951 in favour of his two sons. The third son was not given a share in the suit property, instead, he was bequeathed the business of a pharmacy and a sum of Rs. 5,000/-. The property was a two storeyed building with shops being run in part/portion of the ground floor. In 1956, a family settlement was entered into by the parties concerned in terms whereof the names of two were mutated in respect of the property. After the death of first son in 1984, a Civil Suit was filed by his wife against the third son, praying that she be declared the owner of the western portion of the property. The said suit stood decreed by compromise. However, the litigation continued with the second son instituting a Suit against the third son as well as the heirs of the first son, whereby permanent injunction was sought restraining them from alienating the property. An ex-parte ad-interim injunction was granted.
During the pendency of the second suit, two Sale Deeds were executed qua the southern and eastern portion of the property by third son in favour of the Appellants. During the pendency of the second suit, again a compromise was arrived at between the second son and legal heirs of the first son. In terms thereof, second son relinquished his rights in respect of western portion. The Appellants claimed that the compromise was never acted upon as the mutation in revenue entries was never carried out. In 1997, however, a mutation did occur in the revenue records which was carried out in favour of the Appellants. The third son died in 2002 and this led to the commencement of the third round of legal proceedings, out of which the Civil Appeal arose before the Apex Court. The Trial Court had dismissed the Civil Suit instituted by the Respondent which was under challenge before the First Appellate Court. The said Court reversed the Decree of the Trial Court. Thereafter, the High Court dismissed the Appeal of the Appellants/Defendants under Section 110 of the Civil Procedure Code, 1908 (CPC) and hence, they approached the Apex Court.
Reasoning
The Supreme Court in view of the above facts, observed, “The civil suit of the plaintiffs having been instituted in 2003, it was hopelessly barred by limitation and Section 3 of the Limitation Act essentially entails its dismissal. The trial court, therefore, was right in dismissing the suit, inter alia, on the ground of limitation.”
The Court said that the High Court’s finding that the Sale Deeds would be rendered void solely on account of the operation of an injunction order has necessarily to be set aside. It further noted that Section 52 of the Transfer of Property Act, 1882 (TOPA) does not ipso facto render a sale transaction as inoperative, it merely subjects it to the outcome of the pending proceedings.
“The effect of the doctrine of lis pendens, which Section 52 of the ToP Act embodies, is not to annul all voluntary transfers effected by a party to the suit but only to render it subservient to the rights of the parties thereto under the decree or order that the court may make in the suit. The transfer, subject to the result of the suit, could remain valid. In view of Dr. Karam Chand and Ramesh Chand conveniently entering into a compromise, collusion between the plaintiffs and Ramesh Chand is writ large. There being no proof that the appellants had knowledge of this injunction order, the transaction could not have been declared void ab initio. In view of the facts and circumstances discussed above, we thus find this to be a case which falls within the exceptions laid down under Section 52 of the ToP Act, i.e., non-applicability of the provision to collusive suits”, it also noted.
The Court reiterated that the principle that a will must be proven in accordance with Section 68 of the Evidence Act, is firmly established in law and that requirement of proof of a will in accordance with Section 68 is not done away with, even if the will is not disputed by the opposite party.
“The plaintiffs in the subject suit traced their title to the WILL. The WILL, therefore, formed the basis of the subject suit and hence no presumption under Section 90A(1) can be raised to the benefit of the plaintiffs”, it added.
Furthermore, the Court was of the view that the High Court, in the exercise of its second appellate jurisdiction, did not fare better and in fact, application of judicial mind to the substantial questions of law arising for decision on the second appeal is conspicuous by its absence.
“… we have no hesitation to hold that the subject suit of the plaintiffs could not have succeeded. The trial court, in our opinion, was right in dismissing the suit”, it concluded.
Accordingly, the Apex Court allowed the Appeal, set aside the High Court’s Judgment and restored that of the Trial Court.
Cause Title- Rajeev Gupta & Ors. v. Prashant Garg & Ors. (Neutral Citation: 2025 INSC 552)
Appearance:
Appellants: Senior Advocate Kavin Gulati, AOR Pramod Dayal, Advocates Rohit Amit Sthalekar, Nikunj Dayal, and Rakesh Kumar.
Respondents: AOR Dharitry Phookan