Tuesday, 6 November 2018

Whether court should grant permanent injunction if plaintiff fails to prove his title on suit property?

In the present case, although the appellant (plaintiff) has styled the suit as one for permanent and mandatory injunction, he has proceeded by boldly claiming in the plaint that he owns and possesses the suit property. This has been denied by the respondent (defendant). The trial Court has specifically framed issue No. 1 as "Does the plaintiff prove his title, ownership and possession over the suit property?" Thus, the said position of law applies in the present case also. In order to prove title in the suit property, the appellant has placed on record Exhs. 50 to 53 as documentary evidence. Exhs. 50 and 51 are 7/12 extracts i.e. revenue record, while Exh. 52 is a map showing various Gat numbers and Exh. 53 is the order whereby permission for non-agricultural use for Gat No. 175 was granted. In these documents, there are no details of the location of the suit property i.e. Gat No. 175 and there are no boundaries specified. Even the map at Exh. 52 is of no assistance because it simply shows Gat Numbers from 170 to 178 on one side of the road. In any case, being revenue records, they cannot be treated as proof of title. In the plaint, the appellant has made a bald statement that he is owner and in possession of the suit property of Gat No. 175. Boundaries of the said suit property are specified while the right and title in the same has not been stated or traced in the plaint. It is only in the oral evidence, in cross-examination that the appellant has stated that the suit property is ancestral property that he has acquired it by way of partition. No details regarding title of his predecessor in Gat No. 175 have been placed on record and there are no details of the alleged partition, whereby the appellant allegedly acquired title in the suit property at Gat No. 175.

13. The trial Court has given finding in favour of the appellant as regards title in the suit property mainly on the basis of documents at Exhs. 50 to 53, which are revenue records. There is no effort made by the trial Court to inquire as to what is the basis and proof placed on record by the appellant to prove his title and ownership in the suit property. In the impugned judgment and order, the appellate Court has examined the oral and documentary evidence in a proper manner. It has found that the appellant has failed to produce any document of title, although a bald assertion has been made in the plaint as regards ownership and title in the suit property. The appellate Court has analysed the description of the suit property and the boundaries thereof given in the plaint and upon comparing the same, with claims made in the earlier suit filed by the appellant pertaining to Gat No. 172, it has found that there is nothing on record to show that the appellant was in ownership and possession of the suit property. Since the appellant has failed to place on record cogent, documentary or oral evidence to prove his title in the suit property, the finding rendered by the appellate Court in that regard cannot be said to be perverse or found fault with.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 206/2001

Decided On: 21.03.2018

 Dulichand  Vs. Shankarlal

Hon'ble Judges/Coram:
Manish Pitale, J.

Citation: 2018(5) MHLJ 424.
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