The concept of possession is an abstract one. The ordinary presumption is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land which may excite the attention of the owner that he has been dispossessed. As indicated above, an owner of an open land is ordinarily presumed to be in possession of it and this presumption becomes strong in his favour when the defendant fails to establish the ground on which he claims to have come in possession.
The presumption that possession goes with the title is not limited to particular kind of cases where proof of actual possession is impossible on account of nature of the land, such as boundary land, forest land or submerged land. The presumption applies to all kinds of lands. Where plaintiff proves his title, but not any act of possession and the defendant does not prove possession except unnoticed user of small part of land, the presumption that possession follows title will come into play.
Equivalent Citation : AIR 1998 Guj 17
IN THE HIGH COURT OF GUJARAT
Second Appeal No. 137 of 1985
Decided On: 10.04.1997
Navalram Laxmidas Devmurari
Vs.
Vijayaben Jayvantbhai Chavda
Vs.
Vijayaben Jayvantbhai Chavda
Hon'ble Judges/Coram:
J.M. Panchal, J.
J.M. Panchal, J.
1. This appeal under Section 100 of the Code of Civil Procedure, 1908 has emanated from suit brought by the respondent for declaration of title to the suit property and injunction directing the appellant to remove water tank, shed etc. constructed over the same.
2. The suit property which is plot No. 38/A, admeasuring 995-1 sq. yds. is situated at Bhaktinagar Co-operative Housing Society, Rajkot. The plot originally belonged to the husband of the respondent and after his death the respondent became exclusive owner of the same. In part portion of the plot, five shops are constructed and in one portion there is a residential house comprising one room, a kitchen, latrine, bath-room and varanda. The residential house is let out to the appellant at the rate of Rs. 45/- per month. Five shops are also let out to different persons and one of the shops is let out to the appellant. According to the respondent, excluding the shops and residential house, the entire plot is open and is in her possession and the respondent was not entitled to make use of any part of the plot except what was let out to him. The plaintiff made grievance that inspite of this fact, the appellant constructed a water tank and shed for keeping motor pump which was to be used for the purpose of drawing water in the suit land and damaged the compound wall. The respondent also pleaded that the appellant had constructed a roof in front of the shop. According to the respondent, the above referred to constructions were made without her knowledge and consent. Under the circumstances, the respondent instituted Regular Civil Suit No. 920 of 1974 in the Court of learned Jt. Civil Judge (S.D.), Rajkot and prayed to declare that the appellant had no right to use or enter into the suit land except the house and shop let out to him. The respondent also claimed injunction directing the appellant to remove the illegal constructions made by him over the land. The respondent further claimed perpetual injunction restraining the appellant from disturbing her from using the suit land.
3. The appellant contested suit by filing written statement at Exh. 10. The appellant claimed that he was tenant of the whole suit plot and, therefore, the respondent was not entitled to claim reliefs prayed for in the plaint. It was denied by the appellant that any encroachment over the land was made by him as alleged by the respondent. What was emphasised by the appellant was that deceased Jayvant H. Chavda, who was husband of the respondent, had increased rent and as the appellant had not paid the increased rent, false suit was filed against him. By filing written statement, the appellant demanded dismissal of the suit.
4. Having regard to the pleadings of parties, the Trial Court framed six issues for determination. The respondent examined herself at Exh. 29 and her son Harish Jayvant at Exh. 63 to prove her case pleaded in the plaint. The appellant examined himself at Exh. 66 and also examined Girishbhai Govindbhai at Exh. 66 to prove his case pleaded in the written statement. The parties also produced documentary evidence in support of their respective claims. On appreciation of evidence led by the parties, the Trial Court held that the respondent proved that she was/is the sole owner of the suit property. The Trial Court found that the respondent was/is in actual and exclusive possession of suit vacant land. The claim made by the respondent that the appellant had illegally constructed water tank etc. in part of the suit land was upheld by the Trial Court. The Trial Court negatived the case pleaded by the appellant that he was in occupation and use of the open land as tenant. In view of these conclusions, the Trial Court decreed the suit by judgment and order dated September 8, 1982.
5. Feeling aggrieved by the above-referred to decree, the appellant preferred Regular Civil Appeal No. 228/82 in the District Court at Rajkot. The learned 4th Extra Assistant Judge, Rajkot, who heard the appeal, has dismissed the same by judgment and decree dated April 2, 1985, giving rise to the present appeal.
6. At the time of admitting Second Appeal, following substantial question of law is framed by Court for consideration :--
"Whether the suit is barred by the provisions of Section 41(h) of the Specific Relief Act?"
7. Mr. S.M. Shah, learned counsel for the appellant submitted that the appellant is in possession of part of the suit land on which water tank, shed, roof etc. are constructed and, therefore, it was necessary for the respondent to seek possession of the land covered by those properties in his suit and as possession is not claimed, suit is not maintainable. It was pleaded that in view of provisions of Section 34 read with Section 41(h) of the Specific Relief Act, 1963 ("Act" for short), a suit for mere declaration and injunction without claiming further relief of possession of the land was not maintainable and, therefore, the impugned decrees deserve to be reversed. In support of his submissions, the learned counsel placed reliance on the decisions rendered in the cases of (1) Ram Saran v. Smt. Ganga Dcvi MANU/SC/0523/1972 : AIR 1972 SC 2685, (2) Jivatben Ganpatram Brahmbhatt v. Nareshchandra Ganpatram Brahmbhatt 1983 GLM (UJ) 70, (3) Sushil Kumar (Sunil) v. Ram Prakash MANU/SC/0521/1988 : AIR 1988 SC 576, and (4) Jeram Devashi v. Vrajlal Motichand, Second Appeal No. 225 of 1968 with Second Appeal No. 226 of 1968 decided by S. H. Sheth, J. on Nov. 14, 1972.
8. Mr. J. R. Nanavati, learned counsel for the respondent submitted that user of a small portion of land out of a big open plot being of no present use to its owner and being convenient in many ways to the appellant cannot be construed as act of dispossession of the respondent by the appellant and as both the Courts have concurrently found that the respondent was/is in actual possession of the suit land, the appeal deserves to be dismissed. It was asserted that in plaint the respondent claimed that she was/is in actual possession of the land and that claim having been upheld by both the Courts, it was not necessary for the respondent to seek any further relief and, therefore, the bar created by Section 34 and/or Section 41(h) of the Act is not applicable to the facts of the present case. In support of his submissions, learned counsel placed reliance on the decision rendered in the case of Memon Mohmed Ismail Haji v. Zamatmal Dulhedinomal Second Appeal No. 79 of 1968 decided by J. M. Mehta, J. (in) October, 1972.
9. Having regard to the rival submissions advanced at the Bar, the question which falls for consideration of the Court is whether suit filed by respondent for declaration and injunction without claiming relief of possession is maintainable? In view of the provisions of Section 34 of the Act, there is no manner of doubt that no Court can make any declaration as contemplated by said section where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. Section 34 of the Act reads as under:--
"34. Discretion of Court as to declaration of status or right--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion made therein a declaration that he is so entitled, and the plaintiff need not, in such suit, ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
The section reproduces Section 42 of the old Specific Relief Act, 1877. Section 34 provides that a plaintiff may seek a declaration that he is entitled to any legal character or to any right to any property if defendant denies or is interested in denying his title to such character or right. However, the proviso to this section further lays down that Court can refuse such a declaration where the plaintiff fails to ask for further relief which is available to him. The object of this section is obviously to provide a perpetual bulwark against adverse attacks on the title of the plaintiff where a cloud is cast upon it, and to prevent further litigation by removing existing cause of controversy. The object of the proviso is to avoid a multiplicity of suits and to prevent a person getting a declaration of right in one suit and immediately after, seeking further relief, already available, in another. The "further relief mentioned in the proviso has reference to same relief to which the plaintiff will be necessarily entitled on the basis of title declared. The words "furtherrelief" mean a relief flowing directly and necessarily from the declaration sought, a relief appropriate to and necessarily consequent on the right and title asserted. Section 41 of the Act enumerates the circumstances in which an injunction would be refused and reads as under:--
"41 : "Injunction when refused"-- An injunction cannot be granted-
(a) to (g) .....
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust."
A remedy by injunction, though useful, is at the same time a strong remedy and one not ordinarily granted when any other remedy is fairly open to the applicant. The rule is well established that where a payment of money would, in effect, amount to a substantial performance of a contract or reparation for the injury suffered by the plaintiff for a wrong done by the defendant, the plaintiff must content himself with it. To bar the right of relief by injunction, the remedy must be plain and adequate; or in other words, as practical and efficacious for the ends of justice, and as prompt in administration, as the remedy by specific performance or issue of injunction.
10. In the light of above quoted well settled principles of law. the question whether user of a small part of land for construction of water tank, shed or roof would amount to acts of dispossession of the respondent deserves to be answered.
11. The concept of possession is an abstract one. The ordinary presumption is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land which may excite the attention of the owner that he has been dispossessed. As indicated above, an owner of an open land is ordinarily presumed to be in possession of it and this presumption becomes strong in his favour when the defendant fails to establish the ground on which he claims to have come in possession.
The presumption that possession goes with the title is not limited to particular kind of cases where proof of actual possession is impossible on account of nature of the land, such as boundary land, forest land or submerged land. The presumption applies to all kinds of lands. Where plaintiff proves his title, but not any act of possession and the defendant does not prove possession except unnoticed user of small part of land, the presumption that possession follows title will come into play.
12. Here in this case, there is no manner of doubt that the appellant has miserably failed to establish the ground on which he claims to have come in possession of the open land. It is not in dispute that the respondent is owner of the open land. However, the relief claimed in the suit was opposed by the appellant on the ground that he was tenant of the whole open land. The Trial Court as well as the first appellant Court which is the final Court of facts, have held that the appellant has failed to establish that he was tenant of the suit land. As the appellant has miserably failed to establish the ground on which he claims to have come in possession of the disputed land, I am of the view that presumption that possession follows title will come into play. Except construction of water tank and shed over the open land and construction of roof in front of the shop the appellant has not done any substantial acts of possession over the land which may excite the attention of the respondent that she has been dispossessed. It may be mentioned that the construction is over a small piece of land which totally admeasures 995-1 sq. yds. The small piece of land over which the construction was made, was of no present use to the respondent and being convenient in many ways to the appellant, the latter had made use of it in various ways without notice of the respondent. Such user as this, cannot be construed as an act of dispossession of the respondent. User of this sort under similar circumstances is common in this country and excites no particular attention. It is neither intended to denote or understand as denying on one side or the other a claim to dispossession of the land. Whether such user amounts to dispossession or not has been considered by the Court in the case of State of Gujarat v. Patel Chhotabhai Bhaijibhai MANU/GJ/0140/1965. In the said case, the land belonged to the Government.
The respondent had been tethering cattle for more than 60 years. It was pleaded by the respondent that he had become owner of the land by adverse possession, as he was using the same for tethering cattle. After making reference to the case of Framji Cursetji v. Goculdas Madhowji ILR (1992) 16 Bom 338, the Court has held that evidence to show user of the site by tethering cattle for more than 60 years would not constitute possession. Again, in the case of Memon Mohmed Ismail Haji (supra), the plaintiff had filed suit for mandatory injunction for removal of the foundation dug by the plaintiff and for prohibitory injunction restraining the defendant from doing any construction on the suit land. The plaintiff had all along asserted that possession of the open land was with him. The injunction prohibiting defendant from entering into the land was also sought. The suit was dismissed by Trial Court as well as first Appellate Court. It was found that the disputed property therein was an open land where some construction material had been placed and not only foundations were dug, but construction work was also being done. It was noticed that the first Appellate Court had negatived claim of the defendant that they were in legal possession of the land, as they were using part of it for the purpose of drying saries. However, the first Appellate Court had treated act of drying saris as an act of dispossession of the plaintiff. The High Court has held that all along the defendant used open land as any neighbour could use for drying saris and if the plaintiff s suit was on the allegation that neighbours were now committing acts of waste of his property by digging foundation and they be restrained from doing so, the averments in the plaint could never be treated as averments of the plaintiff having been dispossessed. While allowing the Second Appeal the Court has observed as under :---
"The plaintiff all along asserted that possession of the open plot was with him as he was a title holder. He even never sought any declaration of his title and claimed only an injunction because such open plot would always be in his possession as a title holder. The defendant tried to assert adverse title to this open land and he failed. Therefore, the defendant had no possession whatever of this open land. Even on his own showing, at the date of the suit he was found only to have started doing waste of the plaintiff's propert. The neighbor may not object so long as the user was of drying Saris on this land. A neighbour is surely entitled to object when his land is sought to be wasted and such adverse claim is sought to he asserted on the suit land. Therefore, the relevant injunctions were claimed against these trespassers on the footing that the plaintiff had remained in possession of this open land and the defendant-trespasser who was only trying to commit waste should be prevented from committing such waste, by removing whatever he had done and that he should be restrained from entering in this land. Therefore, the averments were consistent with his being in possession of the land and the defendant-trespasser being completely out of possession. These allegations were completely misread by the Lower Appellate Court and contrary to its own finding that drying of saris would not amount to legal possession, it has recorded a perverse finding that this trespasser was in possession and on that ground, the plaintiff has been non-suited."
13. From the principle laid down in the above-quoted decision, it is evident that mere user of part of the open land would not amount to dispossession of the owner and owner is entitled to object when the property is sought to be wasted and or when adverse claim is sought to be asserted with reference to the open land. In the case of Framji Curseti (supra) in addition to tethering cattle some construction had also been made. But, inspite of that it was held that the user by tethering cattle and the construction of a temporary structure would not amount to possession in case of open land.
14. At this stage it would be advantageous to notice another unreported judgment rendered in Special Civil Application No. 6390/84 by M.B. Shah, J. (as he ten was) on 2/5/6-3-85, Therein the petitioner had filed H.R.P. Suit before the Small Causes Court at Ahmedabad for a declaration that he was tenant of the suit land. He had also prayed for a permanent injunction. During the pendency of suit, an application Exh. 5 was filed by him claiming temporary injunction. The declaration and permanent injunction were claimed on the ground that he was tenant in possession of land admeasuring 1300 sq. yds. out of final plot No. 1099 at Naranpura and had not only constructed kachcha shed on it, but was also keeping cattle, manure and other articles in the land. The Small Causes Court found that the petitioner did not prove prima facie case and was not tenant of house along with open piece of land admeasuring 1300 sq. yds. In that view of the matter, the Small Causes Court rejected application Exh, 5. Thereupon the petitioner preferred an appeal before the Appellate Bench of the Small Causes Court. After appreciation of evidence, the Appellate Bench dismissed the appeal. The petitioner, therefore, approached High Court by way of filing petition under Article 227 of the Constitution of India. The High Court considered the question whether the petitioner could be said to be in possession of the land in dispute merely because he was tethering cattle, storing cow dung over some part of the land and that some kachcha shed of 9' x 9' was constructed by him over the land. After making reference to the cases of (i) State v. Chhotabhai (supra) and Framji Cursetji (supra), it is held as under :--
"In the present case also, there is no evidence on record to show that the petitioner is in exclusive possession of the land in dispute, this type of" casual unnoticed user of open piece of land cannot be considered as exclusive possession of the land and conferring right over the land in the person using it. It is an admitted fact that the respondent is the owner of land and the doctrine that possession follows title requires to be applied, as it is vacant land. The panchnama clearly shows that on the three sides of the land there is fencing and this also indicates that the respondent is in possession of the land.
So taking into consideration the fact that the petitioner has failed to prove his prima-facie right, title or interest over the land in dispute or even exclusive possession of the land, the learned judge has rightly not granted injunction as prayed for by the plaintiff."
From the principle of law enunciated in the above quoted case, it is evident that casual unnoticed user of open piece of land cannot be considered as exclusive possession of the land and conferring right over the land in the person using it.
15. The principle laid down in the decisions which are relied on by the learned counsel for the appellant has no application to the facts of the present case. In the case of Ram Saran (supra), the plaintiffs had brought suit for declaration that they were the sole owners of the suit properties. They had not claimed possession either gf the entire or even any portion of the suit properties. The suit was filed on the footing that the plaintiffs jointly owned suit properties with Chhabili Kuer. The fact finding Courts, namely, Trial Court as well as Appellate Court had come to the conclusion that during the life time of Chhabili Kuer she was in possession of apportion of the suit properties and the other portion remained in possession of the plaintiffs. The further finding reached by those Courts was that after the death of Chhabili Kuer, respondent Ganga Devi had taken unlawful possession of the property which was in possession of Chhabili Kuer. As Smt. Ganga Devi respondent was found to be in settled possession of certain properties, the Supreme Court held that the suit was hit by Section 42 of the Specific Relief Act, 1877, as the plaintiffs had not sought possession of those properties and merely claimed a declaration. Again, in the case of Jivatben Ganpatrai Brahmbhatt (supra) in view of admission of the plaintiffs made in his deposition it was found that defendant No . 1 was in possession of agricultural land and had been taking produce of that land. In that view of the matter, it has been held that a suit merely for declaration without any consequential relief, was liable to be dismissed under the provisions of the Specific Relief Act. The facts of the case of Sushil Kumar (Sunil) (supra)indicate that respondent No. 1 as Karta of joint hindu family had executed an agreement to sell. As he refused to execute sale deed, defendant No. 2 instituted a suit for specific performance of agreement to sell. In the said suit, appellants Nos. 1, 2 and others made an application for being impleaded as parties to the suit. That application was dismissed. Thereafter three sons of defendant No. 1 as plaintiffs instituted suit for permanent injunction restraining defendant No. 1 from selling or alienating the property to the defendant No. 2 or to any other person. The suit was filed on the footing that the disputed property was joint hindu family coparcenary property and as there was no legal necessil for sale of the property nor it was an act of good management, defendant No. 1 was not entitled to sell the property to defendant No. 2. The Trial Court decreed the suit, but the said decree was set aside by District Court. While dismissing appeal, the Supreme Court has held as under (at page 584) :--
"The provisions of Section 38 of the Act have to be read along with Section 41. Section 41 provides that an injunction cannot be granted in the cases falling under Clauses (a) to (j). Clause (h) thereunder provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach alienation made by the Karta. He cannot, therefore, move the Court for an injunction restraining the Karta from alienating the coparcenary property".
16. It may be mentioned that the above referred to principles have been laid down by the Supreme Court in the light of findings recorded by the Courts that a coparcener had no right to maintain a suit for permanent injunction restraining manager or karta from alienating the coparcenary property and the coparcener has right only to challenge alienation of coparcenary property and recover back the property after alienation has come into being. Thus, the principle laid down by the Supreme Courl is founded on the right of manager or karta of an undivided hindu family to alienate coparcenary property and right of a coparcener to impeach the alienation made by the karla.
So far as the decision rendered in the case of Jeram Devashi (supra) is concerned, it is to be noted that the Courts below had concurrently found that the defendant was in exclusive possession of Medaportion of the property. Under the circumstances, it has been held that proper course for the plaintiff was to file a suit for possession and since thai was not done, suit for declaration and injunction against trespasser who was in exclusive occupation of Meda, was not maintainable . It may be mentioned that in none of the decisions relied on by the learned counsel for the appellant, Court has considered the question of possession with reference to an open piece of land nor has examined the question as to whether tethering of cattle or construction of sheds etc. would amount to acts of dispossession of real owner. On the facts and in the circumstances of the case, I am of the opinion that the principles laid down in the decisions relied on by the learned counsel for the appellant are not applicable to the facts of the present case and of no avail to the appellant.
17. The Trial Court, on appreciation of evidence has recorded a finding that the entire suit land is having one compound wall and it has only one entrance gate. The Trial Court has further found that if the appellant tethers cattle therein, it cannot be said that he is doing it at the exclusion of defendant and that he is in exclusive possession of the property. After holding that the appellant is tenant of one room, latrine, varanda, bath-room and kitchen, the Trial Court has deduced that making of construction like shed, water tank etc. meant for cattle would not indicate that the appellant was in possession of vacant land. Similarly, the first appellate Court, which is final Court of facts, has also found that the respondent is in exclusive possession of the open land and construction of illegal structure on small part would not indicate that the appellant is in exclusive possession of the open land. The question whether the respondent is in possession of open land or not is a pure question of fact and not of law much less a substantial question of law. The said finding is based on proper appreciation of evidence. It is not brought to the notice of the Court that while reaching the said finding any evidence led by the appellant is ignored by the Courts. The Supreme Court time out of number has ruled that it is not for the High Court to reappreciate the evidence while hearing Second Appeal and to substitute findings recorded by the first appellate Court. It is not open to High Court to set aside findings of fact of first appellate Court and come to different conclusion on reappraisal of evidence . The fact finding Courts have not acted on any assumption not supported by evidence. No question of law much less substantial question of law is involved in the matter. At best the question involved in the case could be said to be questions of appreciation of evidence. Under Section 100 of C.P.C. High Court has jurisdiction to interfere only when a substantial question of law is involved which is misinterpreted by fact finding Courts. As reappreciation of evidence and interference with findings of fact of the original Court and first appellate Court is not open, concurrent findings that the respondent is in possession of the open land cannot be interfered with in the present appeal, more particularly when it is found that the said finding is based on proper appreciation of evidence. The respondent is in possession of an open piece of land and as the appellant is not in possession of the land, it was not necessary for the respondent to claim any further relief within the meaning of Section 34 of the Act nor can it be said that suit was liable to be defeated, as equally efficacious remedy was available to the respondent under Section 41(h) of the said Act.
In view of the above discussion, I am of the opinion that the suit is not barred by the provisions of Section 41(h) of the Specific Relief Act. The substantial question of law formulated by the Court is, therefore, answered in negative and against the appellant. Under the circumstances, the Second Appeal fails and is hereby dismissed. However, having regard to the facts of the case, thee shall be no orders as to costs.
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