Whether court can execute decree for possession even if there is no plaint map or detailed description of suit property?

The main contention of the applicant is that in the absence of a plaint map or detailed description of the suit property and lane in question, the decree passed by the trial Court is rendered inexecutable. A perusal of the impugned order and even the report of the Commissioner shows that there is no substance in the aforesaid contention raised on behalf of the applicant. Even if, further steps are to be taken while actually executing the decree in question, there are enough powers with the executing Court to take appropriate steps so that the decree is properly satisfied. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 131 of 2017

Decided On: 23.03.2018

 Shankarlal Chhanulal Nagpure Vs. Pramodkumar Prahladrai Agrawal and Ors.

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When court can allow amendment of plaint?

 The Learned Counsel for the Petitioners in both the Petitions sought to assail the order passed by the Trial Court on the ground that the Trial Court has erred in rejecting the applications for amendment on the ground that the trial has begun. It is the submission of the Learned Counsel for the Petitioners that though the issues have been framed, the affidavit of evidence is not filed and therefore the trial cannot be said to have begun. In support of the said contention the Learned Counsel relied upon judgment of a Division bench of this Court reported in MANU/MH/1426/2012 : AIR 2012 BOM 3080 in the matter of Mahadeo Maruti Bhanje Vs. Balaji Shivaji Pathade & Anr. wherein the Division Bench relying upon the Judgment of the Apex Court reported in MANU/SC/8401/2008 : AIR 2009 SC 1433 held that the commencement of trial would be from the date of filing of affidavit in lieu of examination in chief and not from the date of framing of issues.

7. The Learned Counsel in support of the applications for amendment would contend that what the Plaintiff No. 1 is seeking to do by way of the amendments is to bring clarity both in the description of the property as well as in the averments so as to render an effectual and complete adjudication of the dispute between the parties. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 12155 of 2012

Decided On: 06.03.2013

 Smt. Pinky Devi 

Vs.

 Mr. Krishnamurthy Santappa Govilekar

Coram:

R.M. Savant, J.

Citation: 2014(1) ALLMR 714

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Whether incorrect description of property will vitiate sale transaction?

These provisions show that the transfer of
ownership of land involves transfer of full rights and
interests of the vendor and there is characteristic of
permanency to such transfer. The transfer takes place as
soon as the document is registered. In view of the
provision of section 8, quoted above, it can be said that
not much importance can be given to the incorrect
description of the structure standing on the land. Such
incorrect description cannot vitiate the sale. If boundaries
are given and they are definite, the land that is conveyed
is the land situated within those specific boundaries along
with structure standing on it. In view of the provision of
section 8, quoted above, if the vendor had no intention to
sell some portion of the property or some part of his
rights, he needs to specifically mention about it in the sale

deed. In absence of such mention the title in the land
along with title in the structure standing on the land,
passes to the purchaser. In view of this position of law,
nothing could have been achieved by the defendant even
after making the pleadings in that regard and giving
evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.1698 of 2005

 Shriram s/o Ratanlal Thakur

V
 Rameshwar s/o Shaligram Chandak

 CORAM: T.V. NALAWADE, J.
 DATE : 7th JUNE 2016.
Citation: 2016(6) MHLJ 750

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Whether decree will be executable if length and width of land in question is not given?

 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 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 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 "Code of Civil Procedure"), 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 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. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 666 of 2015 (Arising out of S.L.P. (C) No. 8008 of 2009)

Decided On: 27.01.2015

Zarif Ahmad and Ors.
Vs.
Farooq

Coram:Dipak Misra and Prafulla C. Pant, JJ.

Citation:(2015)13 SCC673

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Supreme Court: Identification of property by boundaries will prevail over description of property

The High Court has also upheld the title claimed by the plaintiff over the plot, Plot No. 1301/1 Ba. Once we accept the identification made by the Commissioner as was done by the first appellate court, it is clear that the plaintiff has the right to have the disputed construction removedand the well filled up. That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff. In this situation, we are satisfied that the judgment and decree of the High Court calls for interference. We are also satisfied that the lower appellate court was justified in affirming the decree granted in favour of the plaintiff on the pleadings and the evidence in the case.

Supreme Court of India

Subhaga & Ors vs Shobha & Ors on 7 July, 2006

Bench: S.B. Sinha, P.K. Balasubramanyan

           CASE NO.:
Appeal (civil)  2836 of 2006

Citation:2006(5) SCC 466

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Whether failure to give description of suit property by giving boundaries etc. in the plaint is fatal?

 In a decision of the Hon’ble Apex Court reported in (2003)2 SCC 330, Pratibha Singh & another vs. Shanti Devi Prasad & another, it has been held in paragraph 17 as follows :-
“17. When the suit as to immoveable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 CPC depending on the facts and circumstances of each case – which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected u/s 152 CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decreetal property may be ascertained by executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 CPC.”

14. Relying upon the said decision of the Hon’ble Apex Court this Court has held in the case of Monoranjan Dutta vs. Narayan Dhar, reported in 2006 (4) GLT 160 that the failure to give a description of the suit property by giving boundaries etc. in the plaint is not fatal and can be cured at a later stage. It has been held that providing those descriptions are only optional to the plaintiff and not obligatory one.
15. From a plain reading of the provisions of Order VII Rule 3 CPC it is evident that the underlying object is to ensure that a decree involving immovable property can be executed with proper identification of the suit property and therefore the said provision is directory in nature. If there arises any confusion in identifying the property the court would be entitled to call for additional particulars and such lacunae, if any, would be curable in nature. It is not the case of the defendant/respondent that the plaintiff has deliberately suppresses the factual particulars to his knowledge despite directions passed to that effect by the Court to furnish the same. The suit not being one for recovery of immovable property, Order XX Rule 9 CPC will not have any application in the facts of the present case.
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
R.S.A.No. 139 of 2001
APPELLANT :
Shri Dwaraka Prasad Agarwalla,

-Versus-

On the death of sole respondent
Sri Nil Kamal Bezbarua, his legal heirs :-
1. (a) Smti. Sarada Bezbarua (wife)
(b) Sri Prabhat Bezbarua (son)
(c) Sri Kamal Kishore Bezbarua (son)

BEFORE
HON’BLE MR. JUSTICE SUMAN SHYAM
Read original judgment here;click here
Citation;AIR 2015 Gauhati high court33

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Whether it is mandatory for plaintiff to give full description of suit property?

No care was taken by the Plaintiff to cure the

defect of wrong valuation and vagueness
in description of
the suit property despite the fact that specific written objections
were taken by the defendant. The Plaintiff could have valued
the Suit separately for the purposes of the Court fees and
jurisdiction of the Court as contemplated under the
Suit
Valuation Act and mentioning the relevant provision of the
Bombay Court fees Act. Valuation for the purposes of the Court

fees and for the purposes of the jurisdiction may also be the

same. But when the plaintiff in substance wanted to claim the
declaration as to the right , title as Owner of the immovable
residential property situated at Matunga, prime area in City of
Mumbai capable being valued in terms of money preferably by

the Government ready reckoner price and was duty bound to
state the market price of the property by reasonably estimating
the suit for the purposes of valuation of the Suit and for
jurisdiction of the Court and ought to have made payment of
ad valorem court fees stating the relevant provisions briefly for
benefit of the ministerial officer of the Court for to file the
plaint. . This was not done even till plaint was rejected by the
Court and not even till this appellate stage. The plaintiff must
be vigilant to give description of the immovable suit property
with its full description including boundaries thereof as
required in Order 7 rule 3 of the civil procedure code, as
amended in state of Maharashtra and cannot suppress the

market value of the Suit property from the court, as required to

be stated for the purposes of valuation of the suit for the
purpose of jurisdiction of the court as also for payment of the
Court fees. 

APPELLATE SIDE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

FIRST APPEAL NO. 729 OF 2013

Kishorbhai Premchand Shah  V  HIRJI BHOJRAJ & SONS

CORAM:-A. P. BHANGALE, J.
DATED : 2/9/2013
Citation;2014(2) MHLJ187 Bom

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Whether suit is liable to be dismissed if plaintiff fails to give sufficient description of suit property?

1) From the pleadings contained in the plaint, it is apparent that the suit property could not be identified. Specific description and boundaries of the suit property are not given in the plaint.

 The purpose of Order 7 Rule 3 of the Code is that unless the plaintiff indicates the identity of the property claimed by him either by means of boundaries or by means of map as required by Order 7 Rule 3 of the Code, it would be difficult for the Court to find whether the plaintiff has title to the property claimed and whether any encroachment or dispossession has been made by the defendant. Thus the duty of the party is to give description sufficient to identify the property in dispute. If such decree is passed, it shall be unworkable. The Court can only pass a decree which can be executed under Order 21 of the Code.

2) There is no specification of exact encroachment. Plaintiff had a feeling that encroachment by the defendant is about two bamboo in width over east west boundary and width of one bamboo over south-eastern side and defendant is not willing to deliver possession. Thus provisions of Order VII Rule 3 C.P.C. were not complied with. Therefore, on failure to comply with the provisions of Order VII Rule 3 C.P.C., Plaint was liable to be rejected. Even if the decree is passed, then also, the decree shall be inexecutable under Order XX Rule 9 C.P.C.. The plaintiff has not availed the opportunity of amending the plaint in appeal after the suit was dismissed. The lower appellate Court is not justified in reversing the decree holding therein that specification of the land is mentioned in the plaint. Without considering the import of Order VII Rule 3 C.P.C.. Thus the finding by the lower appellate Court is perverse and is set-aside. The findings of the trial Court are proper. The plaint is liable to be Rejected. Thus without any specification of the land, the decree passed is unworkable under Order XX Rule 9 C.P.C.. Question of law No. (i) is answered accordingly.

Madhya Pradesh High Court

Laxman Singh vs Jagannath on 15 September, 1999

Bench: S Jha

Equivalent citations: 2000 (1) MPHT 384

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