2007 (12) TMI 490 - SC - Indian Laws

Suit for permanent and mandatory injunction - Disputed tittle of ownership - Jurisdiction under Section 151 of the Code of Civil Procedure - encroached portion of the suit property by erection of structure - decree of permanent injunction - Respondents contended that they are owners of a portion of Survey No. 1008/1 - appellants who are the owners of the abutting land bearing CTS No. 4823/A-1 had encroached upon a portion - Plaintiffs purchased the said plots by a deed of sale dated 7.11.1984, whereas the date of purchase made by the defendants dated 17.8.1992 HELD THAT - The High Court opined that the Trial Court could exercise discretion in this behalf. It is again one thing to say that the courts could pass an interlocutory order in the nature of mandatory injunction in exercise of its jurisdiction under Section 151 of the Code of Civil Procedure on the premise that a party against whom an order of injunction was passed, acted in breach thereof; so as to relegate the parties to the same position as if the order of injunction has not been violated, but, it is another thing to say that the courts shall exercise the same power while granting a decree permanent injunction in mandatory form without deciding the question of title and/or leaving the same open. How, in the event the structures are demolished, it would be possible for the appellants to work out their remedies in accordance with law in regard to the title of the property has not been spelt out by the High Court. We, therefore, are of the opinion that the interest of justice would be subserved if the impugned judgments are set aside and the matter is remitted to the learned Trial Judge for consideration of the matter afresh. The plaintiffs may, if they so desire, file an application for amendment of plaint praying inter alia for declaration of his title as also for damages as against the respondents for illegal occupation of the land. It would also be open to the parties to adduce additional evidence(s). The learned Trial Judge may also appoint a Commissioner for the purpose of measurement of the suit land whether an Advocate - Commissioner or an officer of the Revenue Department. Before us, additional documents have been filed by the appellants showing some subsequent events. It would be open to the defendants to file an application for adduction of additional evidence before the Trial Judge which may be considered on its own merits. Appeal is allowed.

Summary

Issues involved:
- Dispute over encroachment on property
- Validity of title deeds
- Appointment of Advocate-Commissioner
- Burden of proof on title
- Interpretation of revenue records
- Decree for injunction without deciding title
- Remand for fresh consideration

Detailed Analysis:

Dispute over encroachment on property:
The plaintiffs filed a suit against the defendants seeking demolition of encroached structures on their property and vacant possession. The defendants were alleged to have encroached upon a portion of the plaintiffs' land. The Trial Judge framed issues, including one questioning the validity of the sale deed through which the plaintiffs claimed ownership of the property.

Validity of title deeds:
The Trial Judge considered the title dispute, noting that the defendants had purchased the property through registered sale deeds. The High Court affirmed the Trial Court's decision, emphasizing that the suit was for injunction, not a declaration of title. The courts relied on documentary evidence to establish ownership, including the chalta numbers allotted to different portions of the land.

Appointment of Advocate-Commissioner:
An Advocate-Commissioner was appointed, but objections were raised, and the report could not be cross-examined. The High Court acknowledged this issue but maintained that the question of title could be addressed in a separate suit.

Burden of proof on title:
The High Court was criticized for placing the burden of proof on the defendants without considering the provisions of Section 101 of the Indian Evidence Act. The courts were reminded that a record of right is not a document of title and that the burden of proof lies with the party asserting ownership.

Interpretation of revenue records:
The courts below considered entries in revenue records, but the Trial Judge proceeded on the assumption that the property might belong to the defendants. The legal principles regarding revenue records and their evidentiary value were emphasized.

Decree for injunction without deciding title:
The High Court's decision to grant a permanent injunction without resolving the title dispute was questioned. The Supreme Court highlighted the importance of determining ownership before issuing such decrees to avoid legal complications in the future.

Remand for fresh consideration:
Ultimately, the Supreme Court set aside the previous judgments and remitted the matter to the Trial Judge for fresh consideration. The plaintiffs were given the option to amend their plaint for a declaration of title and damages. The parties were permitted to adduce additional evidence, and the Trial Judge was advised to expedite the proceedings.

This detailed analysis of the legal judgment highlights the key issues involved, the court's reasoning, and the ultimate decision to remand the case for further consideration.