In my opinion, the answer has to be given as in the
affirmative for the reason that in the document of survey
record itself, which is admittedly based upon the survey settled
in the year 1972, the name of the appellant has been shown as
owner in possession of the suit property and there is no denial
of the fact that such possession of the appellant has been a
long standing one.
In the absence of any other document
casting doubt upon entry in the survey record showing that it
was the property of the appellant, it was not proper on the
part of the trial Court to come to the conclusion that
only
because the original title document was not produced on
record, the appellant could not be held to be the owner in
possession of the suit property.
It is equally well settled that whenever any person
is found to be in settled possession of any immovable property
continuously and without any obstruction for a long period of
time, presumption of ownership would follow the possession.
This, principle of law, in my view, was applicable to the facts
established on record and the learned Civil Judge has
committed an error in not applying the same to the fact of the
instant case.
IN THE HIGH COURT OF BOMBAY AT GOA.
SECOND APPEAL NO. 131 OF 2005.
Shri Manguesh Devasthan of
Priol
Versus
Shri Krishna Gawade
CORAM:-S. B. SHUKRE, J.
DATE:- 3RD APRIL, 2014.
Citation; 2015(1) MHLJ 285 Goa HC
This
appeal
has
been
preferred
against
the
judgment and decree dated 9.2.2004 passed by 3 rd Additional
District Judge, North Goa, Panaji, in
Regular Civil Appeal No.
219/2003 thereby dismissing the appeal preferred against the
judgment and decree dated 17.11.2003 passed in Regular Civil
Suit No. 48/2003 by the Civil Judge, Junior Division, Ponda,
dismissing the suit of the appellant.
2.
The
appellant
had
filed
a
suit
against
the
respondents claiming reliefs that the appellant be declared as
owner in possession of the suit property and that Mamlatdar
or appropriate authority be directed to correct the survey
records by deleting the entry entered into the tenant's column
showing husband of respondent no.1 to be the tenant of only
paddy field forming part of the suit property bearing survey no.
24/3 of village Priol of Ponda Taluka.
3.
It
was
the
contention
of
the
appellant
that
appellant was the owner in possession of the suit property
since more than 100 years and when the appellant obtained
survey records of the property bearing survey no. 23/3 for the
purpose of development of Math premises it was discovered
by it that the name of husband of respondent no.1 had been
wrongly
recorded in the tenant's column as tenant of the
paddy field, which is part of survey no. 24/3. The appellant
contended that respondent no.1 was never in possession of
the said paddy field as tenant or otherwise and therefore, his
name was required to be deleted from the tenant's column in
the survey record.
4.
Respondents filed their Written statement before
the trial Court and admitted entire claim of the appellant.
They submitted that the appellant was owner in possession of
the suit property and that they had no right, title or interest in
the suit property. They also submitted that name of husband
of respondent no.1 was wrongly recorded as tenant of paddy
field falling in the suit property.
5.
Learned Civil Judge, however, dismissed the suit
holding that no declaration of ownership could be granted in
favour of the appellant as no title documents were produced on
record by the appellant. It was also found by the learned Civil
Judge that since the appellant was seeking to develop the
property for non agricultural purpose, no declaration as
regards ownership can be granted by the Civil Court.
Appellant preferred an appeal before the Court of District
Judge against the judgment and decree of the trial Court.
Here also, learned District Judge did not show any favour to
the appellant and chose to dismiss the appeal. He found that
the observations of the trial Court relating to the development
of suit property for the purpose of math were not correct
although he found himself in agreement with the findings of
the trial Court that appellant ought to have produced on
record the
title document. While dismissing the appeal, it
appears that the only reason that weighed with the learned
District Judge was that there was no cause of action disclosed
in the plaint as there has been no denial of title of the
appellant and no declaratory relief as provided under Section
34 of the Specific Relief Act, 1963 (hereinafter called as “ the
SRA, 1963” for short) could be granted.
6.
This appeal came to be admitted by this Court on
27.10.2005 upon a substantial question of law and it is this
substantial question of law which arises in this appeal for my
consideration. The substantial question of law reads thus:-
“Whether the Courts below failed to consider
that as per
the pleading of the parties,
parties were not at issue and in precise terms
of Order 14 Rule 1 C.P.C. and therefore, as
per Order 15 Rule 1 of C.P.C. it was within the
power of the Court to at once to pronounce
the judgment and there was no room for the
Courts below to dismiss the suit ?”
7.
I have heard Shri I. Agha, learned counsel for the
appellant who has taken me
through the plaint, written
statement, form I and XIV and also the impugned judgments
and decrees to support his argument
as to how the impugned
judgments and decrees are inconsistent with well settled
principles of law.
None appears for the respondents although duly
served.
8.
It is seen from the plaint and the written statement
filed in this case that the respondents have completely
admitted the claim of the appellant. Respondents have stated
in their Written statement that the appellant is the owner in
possession of the suit property and that they have absolutely
no right, title, interest of whatsoever nature to the suit
property and that the name of husband of respondent no.1 has
been erroneously shown as tenants of the paddy field in the
survey record of property bearing survey no. 23/3 of village
Priol.
9.
So what is clear from the pleadings of the parties is
that there was no issue involved in the case as contemplated
under Rule 1 of Order 41 of the CPC, 1908. Rule 1 of Order 41
lays down that issue arises only when a material proposition of
fact or law is a affirmed by one party and denied by the other.
In the instant case, the material propositions of fact put
forward
by
the
appellant
have
been
admitted
by
the
respondents and, therefore, no issue in terms of Rule 1 of
Order 41, had arisen.
The next question would be as to
whether, in such a fact scenario, it would have been
appropriate for Courts below to have disposed of the suit at
the first instance
itself.
This question would have to be
answered by considering the provisions of Rule 1 of Order 15
of CPC. It reads thus:-
“Parties not at issue:- Where at the first
hearing of a suit it appears that the parties
are not at issue on any question of law or of
fact,
the
Court
may
at
once
pronounce
judgment.”
10.
It is clear from the above provision that there is
discretion conferred upon the Civil Court to pronounce
a
judgment at once at the first hearing itself when it is satisfied
that parties are not at issue on any question of law or fact.
But, it is to be noted that this is a discretion which has to be
exercised by the trial Court in a reasonable manner by not only
taking into account the fact that the parties are not at issue
but also the surrounding facts and circumstances of the case.
This is necessary because
in a given case, even though the
parties are not at issue, the plaint itself may not disclose any
cause of action and even when it discloses the cause of action,
the reliefs claimed in the plaint being of such a nature that
they cannot be granted by the Court at once. Therefore, it
would have to be seen as to
whether there were any other
circumstances in this case which warranted, inspite of
admission
of the claim of the appellant by the respondents,
dismissal of the suit.
11.
According to the trial Court,
no title documents
were produced on record of the case by the appellant and the
document of the survey record as per the settled position of
law is not a title document. There is no dispute about the
settled position of law as stated by the trial Court, but, the
question is whether on the basis of long standing possession as
claimed by the appellant, the trial Court could have considered
the grant of declaration as sought for by the appellant
favorable or not.
12.
In my opinion, the answer has to be given as in the
affirmative for the reason that in the document of survey
record itself, which is admittedly based upon the survey settled
in the year 1972, the name of the appellant has been shown as
owner in possession of the suit property and there is no denial
of the fact that such possession of the appellant has been a
long standing one.
In the absence of any other document
casting doubt upon entry in the survey record showing that it
was the property of the appellant, it was not proper on the
part of the trial Court to come to the conclusion that
only
because the original title document was not produced on
record, the appellant could not be held to be the owner in
possession of the suit property.
13.
It is equally well settled that whenever any person
is found to be in settled possession of any immovable property
-- 10 --
S.A.No. 131-05
continuously and without any obstruction for a long period of
time, presumption of ownership would follow the possession.
This, principle of law, in my view, was applicable to the facts
established on record and the learned Civil Judge has
committed an error in not applying the same to the fact of the
instant case.
14.
The First Appellate Court, as rightly submitted by
the learned counsel for the appellant, has ignored the fact that
declaratory relief as mentioned under Section 34 of the SRA,
1963 is only one of the species of the genus of declarations
under the general law which encompasses within it several
other declaratory reliefs.
15.
In the case of Vemareddi Ramaraghava Reddy Vs
Konduru Seshu Reddy, AIR 1967 SC 436, referred to me by the
learned counsel for the appellant, the Hon'ble Apex Court has
held that Section 42 of the SRA,(section 34 of the SRA, 1963)
is not exhaustive of the cases in which declaratory decree may
be made and Courts have power to grant such a decree
independently of the requirements of this Section. Similar law
is laid down
by the Hon'ble Apex Court in the case of M/s
Supreme General Films Exchange Ltd, Vs. Brijnath Singhji,
-- 11 --
S.A.No. 131-05
AIR 1975 SC 1810, wherein the Hon'ble Apex Court held that
Section 42 (Section 34 of SRA, 1963) merely gives a statutory
recognition to a well recognised type of declaratory relief and
subject it to a limitation. But, it cannot be deemed to exhaust
every kind of declaratory relief. The relevant observations of
the Hon'ble Apex Court appearing in paragraph 15 are
reproduced thus:-
“The result is that Section 42
merely gives
statutory recognition to a well recognised type
of declaratory relief and subject it to a
limitation.
But, it cannot be deemed to
exhaust every kind of declaratory relief or to
circumscribe the jurisdiction of Courts to give
declarations of right in appropriate cases
falling outside Section 42.”
16.
In the instant case, respondents have not denied
the title of the appellant to the suit property. But, the facts also
showed that name of husband of respondent no.1 was recorded
in the survey records in the tenant's column as tenant of only
paddy field and this entry in my view, amounted to negation of
absolute ownership of the appellant to the suit property and it
was this fact which disclosed a cause of action in the instant
-- 12 --
S.A.No. 131-05
suit. Therefore, it was proper for the appellant to have filed a
suit seeking declaration of its ownership and possession and
also mandatory injunction regarding deletion of the said entry.
If the appellant had not filed such a suit, some complications
may have arisen in future which would have had the potential
of casting a cloud over absolute ownership of the appellant in
respect of the suit property. The First Appellate Court went
wrong in not considering this aspect of the case and
erroneously
action.
found that plaint did not disclose any cause of
In fact, this was a case in which, in the light of
admitted facts, the suit could have been decreed by resorting
to provisions of Rule 1, Order 15 of CPC.
The findings
recorded by the First Appellate Court being inconsistent with
the settled principles of law must go.
17.
In the result, I find that this was a case which was
capable of being disposed of by the Trial Court by pronouncing
the judgment at once in terms of Rule 1 Order 15 of CPC and
since it was not done, both the impugned judgments and
decrees could not be sustained in law. Substantial question of
law is answered accordingly.
18.
In the light of above discussion, I am of the view,
-- 13 --
S.A.No. 131-05
the appeal deserves to be allowed. The appeal stands allowed
and the impugned judgments and decrees are hereby quashed
and set aside.
Suit of the appellant is decreed in terms of
prayer clause (a). In the circumstances of the case, parties to
bear their own costs.
S. B. SHUKRE, J.
vn*
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