Q 1:- What are Kinds of estoppel?
Ans:- “Broadly, estoppel is of three classical kinds: estoppel by record, estoppel by deed, and estoppel by conduct or representation. In modern law, promissory estoppel is also a well-recognized form, where a person who makes a clear promise, intending another to act on it, cannot later go back on it if the other has altered his position. Thus, estoppel prevents a party from denying what he earlier represented.
What estoppel brings about, however, is preventing a party from setting up the right, which, but for the estoppel, he would have in the property. In this regard, we may notice the following discussion under the caption 'Death or disability of the representor' (pages 125-126) in the work Estoppel by Representation by Spencer Bower and Turner:
Death or disability of the representor
128. In case of the death, or the total or partial disability (whether by reason of insolvency, infancy, lunacy, coverture, or otherwise), of the representor at the time of the proceedings in which the question of estoppel is raised, the liability to the estoppel, speaking generally, devolves upon, or is transmitted to, the same persons, in accordance with the same rules, and subject to the same conditions, as the liability of such a representor to proceedings for the avoidance of a contract procured by the representation.
Where the representor has died between the date of the representation and the date of the raising of the estoppel, the executor or administrator, or (in case of title to, and estates in, land) the heir or devise, of the deceased representor is bound by the representation to the same extent as the representor would have been, and succeeds to all the burdens of estoppel in respect thereof to which, at the date of his decease, such representor was subject...
23. It will be noticed that the father of the Appellants, by his conduct, being estopped, as found by us, is the fountainhead or the source of the title declared in Section 8(a) of the Hindu Succession Act. It is, in other words, only based on the relationship between Shri Chandran and the Appellants, that the right Under Section 8(a) of the Hindus Succession Act, purports to vest the right in the Appellants. We would think, therefore, that Appellants would also not be in a position to claim immunity from the operation of the Principle of Estoppel on the basis of Section 8(a) of the Hindu Succession Act. If the principle in Gulam Abbas (supra) applies, then, despite the fact that what was purported to be released by Shri Chandran, was a mere spec successionis or expectation his conduct in transferring/releasing his rights for valuable consideration, would give rise to an estoppel. The effect of the estoppel cannot be warded off by persons claiming through the person whose conduct has generated the estoppel. We also find no merit at all in the attempt at drawing a distinction based on religion. The principle of estoppel applies without such distinction.
24. Having received valuable consideration and allowed his father Shri Sengalani Chettair to proceed on the basis that he was free to deal with the property without the prospect of being haunted by any claim whatsoever as regards the property by Shri Chandran, a clear estoppel sprang into existence following the receipt of consideration by Shri Chandran. Estoppel would shut out in equity any claim otherwise either by Shri Chandran or his children, viz., the Appellants.
IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 521-522 of 2023.
Decided On: 25.01.2023
Elumalai and Ors. Vs. M. Kamala and Ors.
Hon'ble Judges/Coram:
K.M. Joseph and Hrishikesh Roy, JJ.
Author: K.M. Joseph, J.
Citation: MANU/SC/0077/2023, 2023/INSC/83
Print PageSri Ajit J. Gunjal, learned Government Pleader appearing for the appellant submits that as the plaintiff was fully aware of the fact that the land in question was being used for laying the road and as he did not raise any objection, he must be deemed to have consented to laying the road on the suit land, therefore, he was estopped from seeking a relief of permanent injunction at the belated stage.
{Para 5}
6. The appeal has been admitted on the following substantial question of law;
"Whether on facts and circumstances of the case the plaintiff is not estopped from challenging the laying of the road by the defendant in his land and whether he is entitled to the injunction at this belated stage."
8. The State which takes law into its own hand, and acts in wilful disobedience to law and usurps the property of a citizen, cannot be permitted to contend that the citizen having not raised any objection is not entitled to seek an order of mandatory injunction or a permanent injunction. If the State is allowed to do such act, it would amount to putting a premium on the illegal act of the State. The action of the State may have a laudable object but it has to be accomplished in accordance with law. The STATE is not above law. It is as much bound by Rule of Law as any citizen or person. The actions of the State when they affect the life, liberty and property of a person or a citizen must be dictated by accepted notions of fair-play justice and the laws governing them. Therefore, I am of the view that it is not possible to hold that the plaintiff is estopped from seeking a decree for permanent injunction and also a decree for mandatory injunction as it is not proved that the plaintiff consented to or waived his right by allowing the State to lay the road on the suit land.
Print Page
The entire circumstances revealed from the evidence on record unerringly point to the fact that the Appellant had encroached upon land belonging to the Respondent and without bona fides effected constructions which is verandah which is extension of residential building. The object of estoppel, as held in Madanappa's case, would be defeated if the said illegality is recognized and allowance is granted therefor. In the contextual situation, a decision of a learned Single Judge of High Court of Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla Khan (1956) 69 LW (Andhra) 52 extracted in agreement in the decision by the learned Single Judge of High Court of Madras in the decision in Bodi Reddy v. Appu Goundan MANU/TN/0426/1970 : (1971) ILR 2 Madras 155, is worthy to be looked into. In the decision the learned Single Judge of the High Court of Andhra Pradesh after posing a question "has the court an absolute discretion to award damages instead of a mandatory injunction where there is a trespass by the Defendant on the Plaintiff's land?" held thus:
To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the Plaintiff's property and an appropriation of it for the Defendant's use.... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.
To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a Rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the Defendant to remove the encroachment and restore possession of the vacant site to the Plaintiff. Neither serious inconvenience to the Defendant--trespasser nor the absence of serious injury to the Plaintiff is a ground for depriving the latter for his legal right to the property.
IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 6182-6183 of 2009
Decided On: 02.02.2023
Baini Prasad (D) Thr. LRs. Vs. Durga Devi
Hon'ble Judges/Coram:
B.R. Gavai and C.T. Ravikumar, JJ.
Author: C.T. Ravikumar, J.
Citation: MANU/SC/0088/2023.
Read full Judgment here: Click here
Section 51 of the TP Act reads thus:
51. Improvements made by bona fide holders under defective titles.--When the transferee of immoveable property makes any improvement on the property believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.
8. A perusal of Section 51, TP Act would reveal that even after the pre-requisites for the enforceability of equity enacted in it are satisfied, the right to election for one of the two alternatives provided under that Section would still rest with the person evicting. In other words, he may elect either to pay the value of improvements made by the Defendant who satisfies a description of "transferee" for the purpose of this Section and take the land or sell out his interests in the land to the transferee at the market value of the property, irrespective of the value of such improvements.
9. Section 51, TP Act is a general provision dealing with improvements effected by a transferee to the transferred property in the manner specifically provided thereunder. Thus, a bare perusal of Section 51, TP Act would reveal that in order to acquire the 'right to require' in the manner provided thereunder one should be a 'transferee' within the meaning of the TP Act and for the purpose of the said section. In short, Section 51 applies in terms to a transferee who makes improvements in good faith on a property believing himself to be its absolute owner.
10. The original Appellant has failed to establish that he is a "transferee" within the meaning of the TP Act and for the purpose of Section 51, TP Act. In order to attract the Section the occupant of the land must have held possession under colour of title, his possession must not have been by mere possession of another but adverse to the title of the true owner and he must be under the bone fide belief that he has secured good title to the property in question and is the owner thereof. In short, Section 51 gives only statutory recognition to the above three things. At the same time, in the case on hand, the concurrent findings of the courts below is that the Respondent herein is the owner of the land in question and the original Appellants had encroached upon it and effected construction. The Appellants herein have failed to establish the above mentioned three things. The evidence on record would also go to show that even the construction was effected in deviation of the approved plan.
11. In the light of the concurrent findings on the questions of ownership and encroachment, as noted above, it can only be held that it was after encroaching upon the land in question and ignoring the absence of any title that he made structures thereon at his own risk. Once it is so found, the original Appellant cannot be treated as a 'transferee' within the meaning of the TP Act and for the purpose of Section 51, TP Act. Therefore, we have no hesitation to hold that the Appellants are not entitled to rely on the provision Under Section 51, TP Act to seek for restoration of the modification made by the First Appellate Court with respect to demolition and possession. The Appellants, rightly, did not take up the plea of adverse possession and in the circumstances, being not a transferee for the purpose of Section 51 TP Act, he cannot legally require the Respondent either to pay the value of improvements and take back the land or to sell out the land to him at the market value of the property, irrespective of the value of the improvements.
IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 6182-6183 of 2009
Decided On: 02.02.2023
Baini Prasad (D) Thr. LRs. Vs. Durga Devi
Hon'ble Judges/Coram:
B.R. Gavai and C.T. Ravikumar, JJ.
Author: C.T. Ravikumar, J.
Citation: MANU/SC/0088/2023
Print PageEstoppel though a branch of the law of evidence is also capable of being viewed a substantive rule of law in so far as it helps to create or defeat rights, which would not exist or be taken away but for that doctrine. {Para 20}
21. Estoppel is a complex legal notion, involving a combination of several essential elements--statement to be acted upon, action on the faith of it resulting detriment to the actor. Estoppel is often described as a rule to evidence, as indeed it may be so described. But the whole concept is more correctly viewed as a substantive rule of law.....Estoppel is different from contact both in its nature and consequences. But the relationship between the parties must also be such that the imputed truth of the statement is a necessary step in the constitution of the cause of action. But the whole case of estoppel fails if the statement is not sufficiently clear and unqualified" (per Lord Wright in Canada & Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Stempships Ltd. (1946) 3 W.W.R. 759 .
25. Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.
26. Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved estopped may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddi v. Depuru Kamalamma, MANU/TN/0099/1951 : AIR1951Mad403 where Vishwantha Sastri, J., observed:
"An estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law in so far as it helps to create or defeat rights which would not exist and be taken away but for that doctrine."
27. Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it.
IN THE SUPREME COURT OF INDIA
Appeal (civil) 2971 of 1995,
Decided On: 05.12.2002
B.L. Sreedhar and Ors. Vs. K.M. Munireddy (Dead) and Ors.
Hon'ble Judges/Coram:
Shivaraj V. Patil and Dr. Arijit Pasayat, JJ.
Author: Arijit Pasayat, J.
Citation: MANU/SC/1101/2002
Print PageIn the facts of this case, the case of the appellants may be noted. It is their case, that Shri Chandran, their father, himself did not have any right in the plaint schedule property. This is for the reason that being the separate property of Shri Sengalani Chettair, Shri Chandran did not have any right by birth. He himself had only, what is described a spec successionis within the meaning of Section 6(a) of the Transfer of Property Act. It is not even the case of the appellants that they had any independent right in the plaint schedule property either at the time of their birth or at the time when their father died or even when their grandfather Shri Sengalani Chettair died in 1988. The right, which they claim, at the earliest point, can arise only by treating the property as the separate property of Shri Sengalani Chettair on his death within the meaning of Section 8 of the Hindu Succession Act. Therefore, we are unable to discard the deed of release executed by their father Shri Chandran in the year 1975 as a covenant within the meaning of Section 8 of the ‘1956 Act.’
{Para 21}
22. As far as the argument of the appellants that the appellants would have an independent right, when succession open to the estate of Shri Sengalani Chettair, when he died in 1988, in view of the fact that the appellants are the children of the predeceased son, viz., Shri Chandran, who died on 09.12.1978, we are of the view that there is no merit in the said contention. It is true that under Section 8(a) of the Hindu Succession Act, 1956, property of a male Hindu, dying intestate, will devolve, firstly, upon the heirs, being the relatives specified in Class I of the Schedule. The son of a predeceased son, it is true, is a Class I heir. Therefore, it could be argued that since Shri Sengalani Chettair died intestate, a right was created in the property in favour of the appellants, being the children of the predeceased son. What estoppel brings about, however, is preventing a party from setting up the right, which, but for the estoppel, he would have in the property. In this regard, we may notice the following discussion under the caption ‘Death or disability of the representor’ (pages 125-126) in the work Estoppel by Representation by Spencer Bower and Turner:
“Death or disability of the representor
128. In case of the death, or the total or partial disability (whether by reason of insolvency, infancy, lunacy, coverture, or otherwise), of the representor at the time of the proceedings in which the question of estoppel is raised, the liability to the estoppel, speaking generally, devolves upon, or is transmitted to, the same persons, in accordance with the same rules, and subject to the same conditions, as the liability of such a representor to proceedings for the avoidance of a contract procured by the representation.
Where the representor has died between the date of the representation and the date of the raising of the estoppel, the executor or administrator, or (in case of title to, and estates in, land) the heir or devise, of the deceased representor is bound by the representation to the same extent as the representor would have been, and succeeds to all the burdens of estoppel in respect thereof to which, at the date of his decease, such representor was subject…”
23. It will be noticed that the father of the appellants, by his conduct, being estopped, as found by us, is the fountainhead or the source of the title declared in Section 8(a) of the Hindu Succession Act. It is, in other words, only based on the relationship between Shri Chandran and the appellants, that the right under Section 8(a) of the Hindus Succession Act, purports to vest the right in the appellants. We would think, therefore, that appellants would also not be in a position to claim immunity from the operation of the Principle of Estoppel on the basis of Section 8(a) of the Hindu Succession Act. If the principle in Gulam Abbas (supra) applies, then, despite the fact that what
was purported to be released by Shri Chandran, was a mere spec successonis or expectation his conduct in transferring/releasing his rights for valuable consideration, would give rise to an estoppel. The effect of the estoppel cannot be warded off by persons claiming through the person whose conduct has generated the estoppel. We also find no merit at all in the attempt at drawing a distinction based on religion. The principle of estoppel applies without such distinction.
24. Having received valuable consideration and allowed his father Shri Sengalani Chettair to proceed on the basis that he was free to deal with the property without the prospect of being haunted by any claim whatsoever as regards the property by Shri Chandran, a clear estoppel sprang into existence following the receipt of consideration by Shri Chandran. Estoppel would shut out in equity any claim otherwise either by Shri Chandran or his children, viz., the appellants.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.521-522 OF 2023
ELUMALAI @ VENKATESAN & ANR Vs M. KAMALA AND ORS. & ETC
Author: K.M. JOSEPH, J.
DATED: JANUARY 25, 2023.
Print PageIn the present case, the Appellant and Respondent No. 1 had entered into an agreement on 22.05.2012. This agreement categorically stated that Respondent No. 1 would pay a sum of Rs. 1,00,000 per hectare towards irrigation restoration charge. Therefore, the Respondent No. 1 is not justified in challenging the levy of Rs. 1,00,000 when it itself had agreed to the same. In fact, on the same day, Respondent No. 1 had also issued an undertaking that it would pay the stipulated sum within a specific period of time. We may note here that right from the very beginning i.e., in the sanction order, the demand notice and in all its letters, the Appellant had stipulated a sum of Rs. 1,00,000 per hectare as irrigation restoration charges. All these communications get subsumed in the agreement dated 22.05.2012. Therefore, we are of the view that signing the agreement and issuing an undertaking would estop Respondent No. 1 from challenging the levy of Rs. 1,00,000 as irrigation restoration charges. {Para 17}
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 8550 of 2022
The Chief Engineer, Water Resources Department and Ors. Vs.
Rattan India Power Limited and Ors.
Hon'ble Judges/Coram:
S. Ravindra Bhat and Pamidighantam Sri Narasimha, JJ.
Author: Pamidighantam Sri Narasimha, J.
Decided On: 13.01.2023
Citation: MANU/SC/0024/2023
Print PageE.2.4 Compromise decree and Res Judicata
46. It is contended by the counsel for the Appellant that since a compromise deed was arrived at between the Mysore State Board of Wakf, Abdul Khuddus and the lessee with regard to the possession of the suit property, the other reliefs have been abandoned. It was thus contended that in view of the compromise deed, the claim of title to the suit property has been abandoned and cannot be raised in the subsequent suit. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao MANU/SC/0018/1963 : AIR 1967 SC 591 and Sunderabai v. Devaji Shankar Deshpande MANU/SC/0098/1952 : AIR 1954 SC 82, this Court held that since a compromise decree is not a decision of the court, the principle of res judicata cannot be made applicable. However, it was held that the compromise decree may in effect create estoppel by conduct between the parties, and the parties by estoppel will be prevented from initiating a subsequent suit. Chief Justice Bhagwati (as he was then) writing for a three judge bench in Sunderabai observed:
12. The bar of res judicata however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of Section 11 of the Code of Civil Procedure would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on Section 11 of the Code of Civil Procedure at p. 84 of the 11th Edn. under the caption Consent decree and estoppel:
The present Section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard and finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as res judicata as a decree passed in invitum. It raises an estoppel as much as a decree passed in invitum.
Since it is the principle of estoppel by conduct that will bar the institution of the subsequent suit, it is pertinent that we refer to the compromise decree to determine if any compromise was arrived at between the parties on the title to the suit property. On a perusal of the compromise deed, it is evident that a compromise was reached only on the issue of possession and lease. When no compromise was arrived at between the parties on the title to the suit property, then no estoppel by conduct could also be inferred. d. Additionally, the counsel for the Respondent referred to Order 23 Rule 3A to contend that a subsequent suit is barred when the previous suit is dismissed through a compromise decree. However, the provision would not be applicable to the case at hand since it only bars the challenge to a compromise decree on the ground that it is unlawful. Therefore, the disposal of the second suit in view of the compromise would not bar the filing of the suit out of which the instant proceedings arise.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10946 of 2014
Decided On: 23.09.2021
The Jamia Masjid Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.
Author: Dr. D.Y. Chandrachud, J.
Citation: MANU/SC/0691/2021.
Read full Judgment here: Click here
It is settled principle that principle of estoppel cannot override the law. The manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.
31. Further in the case of Tata Chemicals Ltd. Vs. Commissioner of Customs (preventive), Jamnagar8, it has been laid down that there can be no estoppel against law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of the law.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 45784580 of 2022
KRISHNA RAI (Dead) THROUGH LRs & ORS. Vs BANARAS HINDU UNIVERSITY THROUGH REGISTRAR & ORS.
Coram: DINESH MAHESHWARI; VIKRAM NATH, JJ.
Author: Vikram Nath, J.
Dated: JUNE 16, 2022
Print PageThe principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. {Para 9}
10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.
SUPREME COURT OF INDIA
N. Santosh Hegde J.S.B. Sinha J.
Krishna Bahadur Vs. M/s Purna Theatre & Ors.
Appeal (Civil) 7251 of 2001
25th August 2004
Citation: 2004 ALL SCR 334
Print PageE.2.4 Compromise decree and Res Judicata
46. It is contended by the counsel for the appellant that since a compromise deed was arrived at between the Mysore State Board of Wakf, Abdul Khuddus and the lessee with regard to the possession of the suit property, the other reliefs have been abandoned. It was thus contended that in view of the compromise deed, the claim of title to the suit property has been abandoned and cannot be raised in the subsequent suit. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao AIR 1967 SC 591 and Sunderabai v. Devaji Shankar Deshpande AIR 1954 SC 82, this Court held that since a compromise decree is not a decision of the court, the principle of res judicata cannot be made applicable. However, it was held that the compromise decree may in effect create estoppel by conduct between the parties, and the parties by estoppel will be prevented from initiating a subsequent suit. Chief Justice Bhagwati (as he was then) writing for a three judge bench in Sunderabai observed:
“12. The bar of res judicata however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of Section 11 of the CPC would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on Section 11 of the CPC at p. 84 of the 11th Edn. under the caption Consent decree and estoppel:
“The present section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties ‘have been heard and finally decided’ within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as res judicata as a decree passed in invitum. It raises an estoppel as much as a decree passed in invitum.”
Since it is the principle of estoppel by conduct that will bar the institution of the subsequent suit, it is pertinent that we refer to the compromise decree to determine if any compromise was arrived at between the parties on the title to the suit property. On a perusal of the compromise deed, it is evident that a compromise was reached only on the issue of possession and lease. When no compromise was arrived at between the parties on the title to the suit property, then no estoppel by conduct could also be inferred. Additionally, the counsel for the respondent referred to Order 23 Rule 3A to contend that a subsequent suit is barred when the previous suit is dismissed through a compromise decree. However, the provision would not be applicable to the case at hand since it only bars the challenge to a compromise decree on the ground that it is unlawful. Therefore, the disposal of the second suit in view of the compromise would not bar the filing of the suit out of which the instant proceedings arise.
III. OS 100 of 1983: the third suit
47. The suit was instituted in the Court of Munsif at Gubbi by the Karnataka Wakf Board. The defendants were Khazi Abdul Masood son of Abdul Khuddus (the first defendant) while the second, third, fourth and fifth defendants were persons to whom the property was sought to be alienated by the first defendant.
48. In was averred in the plaint that the cause of action arose when the first defendant who had no right and interest in the suit schedule property was trying to interfere with the possession of the plaintiff with the assistance of the second, third and fourth defendants. The relief which was sought in the suit was a permanent injunction restraining the defendants from interfering with the possession of the plaintiff – Karnataka Board of Wakfs. The suit was instituted on 4 August 1983. Significantly, the suit out of which the present dispute arises was instituted on 5 November 1984 for seeking declaration and possession. It was only thereafter on 22 November 1984 that OS 100 of 1983 was withdrawn. OS 100 of 1983 was a suit for a bare injunction and no declaration was claimed. In any event there was no adjudication on merits.
49. The third suit of 1983 instituted by the Karnataka Board of Wakfs was a suit for injunction simpliciter. No question of title was raised and none was adjudicated upon. As a matter of fact, the suit was instituted on the apprehension that the property was likely to be alienated by the legal representatives of Abdul Khuddus. Before the suit of 1983 was withdrawn, the suit out of which these proceedings arise was instituted for seeking comprehensive reliefs in terms of a declaration of title and a permanent injunction. Therefore, the decision in the third suit does not bar the initiation of the suit out of which the instant proceeding arises.
50. The High Court dismissed the second appeal holding that the courts conclusively decided on the title to the suit property in the first suit (OS 92/1950-51) and that any subsequent suit on the same issue of title would be barred by the principles of res judicata. In view of the discussion above, this finding arrived at by the High Court is erroneous. While holding that the judgment in the first suit has conclusively decided that the title over the suit property belongs to Abdul Khuddus, the High Court has lost sight of the observations in paragraph 7 and 10 of the judgment of the trial court. It has been specifically held there that the suit property was a Khazi service Inam and that Abdul Khuddus has a prima facie right to the suit property. There was no adjudication to the effect that Abdul Khuddus had an absolute title to the suit property. Additionally, the decision of the courts in the first suit was delivered before the suit property was notified as a wakf property in view of Notification No. MWB 19(11) dated 6 July 1965. The principle of res judicata can thus not be applied without taking into consideration this changed circumstance.
51. We are also of the opinion that the High Court has committed an error in applying the principle of res judicata based on the judgment in the second suit. It was observed by the High Court that the second suit that was decreed in terms of the compromise was intended to put the litigation to an end and would thus bar any subsequent suit on the title to the suit property by virtue of the principle of res judicata. For this purpose, reliance was placed on a two judge bench decision of this court in Byram Pestonji Gariwala (supra) where it was held that a challenge to a consent decree six years later was vitiated by reason of delay, estoppel, and res judicata. However, the High Court lost sight of the fact that the compromise deed was entered into specifically with regard to the handing over of possession of the suit property by the lessee at the end of the lease and no compromise on the title to the suit property was arrived at.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 10946 of 2014
The Jamia Masjid Vs Sri K V Rudrappa
Print PageThis Court’s Analysis
18. Before adverting to the specific contentions raised by the
learned senior counsel for the Petitioner, it may be useful to briefly summarise the law governing consent decrees that shall inform our conclusions on the present matter. It is well settled
that consent decrees are intended to create estoppels by judgment against the
parties, thereby putting an end to further litigation between the
parties. Resultantly, this Court has held that it would be slow to
unilaterally interfere in, modify, substitute or modulate the terms of
a consent decree, unless it is done with the revised consent of all
the parties thereto. (Gupta Steel Industries v. Jolly Steel
Industries Pvt. Ltd. & anr., (1996) 11 SCC 678; Suvaran
Rajaram Bandekar & ors. v. Narayan R. Bandekar & ors.,
(1996) 10 SCC 255).
19. However, this formulation is far from absolute and does not
apply as a blanket rule in all cases. This Court, in Byram Pestonji Gariwala v. Union Bank of India & ors., (1992) 1 SCC 31, has held that a consent decree would not serve as an estoppel, where
the compromise was vitiated by fraud, misrepresentation, or
mistake. Further, this Court in the exercise of its inherent powers
may also unilaterally rectify a consent decree suffering from clerical
or arithmetical errors, so as to make it conform with the terms of
the compromise.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NOS. 2224-2225
OF 2021
COMPACK ENTERPRISES INDIA (P) LTD. Vs BEANT SINGH
Author: MOHAN M. SHANTANAGOUDAR, J.
Dated: FEBRUARY 17, 2021
Print Page
RSA No.5251 of 2003 (O&M)