2016 (12) TMI 1864 - SC - Indian Laws

Maintainability of suit - benami property - ownership of the suit property in question - Possession of property - parties are related to each other - restraint on permanent injunction from interfering with the suit property. Ownership of the suit property in question - HELD THAT - There is no dispute that, in the revenue records property stood in the name of Vassudev Govekar and not Jagannath Govekar. The first appellate court rightly held that the plea with regard to the real owner of the property being Jagannath Govekar could not be gone into as it was barred by the provisions of Section 4(2) of the Benami Act, Though we do not find any merit in the arguments of the Appellants that the Benami Act is not applicable, in any case there is hardly any material produced by the Defendants to support that real owner was Jagannath Govekar. This claim is made only on the ground that it is Jagannath Govekar who had got the suit property acquired in the name of his son Vassudev Govekar. That by itself would not make Jagannath Govekar as the owner of the suit property. Possession of goods - whether the suit was not maintainable in the absence of any relief qua possession? - HELD THAT - The case made out by the Plaintiffs is that when Plaintiff Nos. 1, 3 and 5 visited the suit property on December 30, 2006 at about 5 00 p.m., they found that the 'suit house' had been demolished by the Defendants on which they were carrying a new construction. In the light of these pleadings, the Plaintiffs sought the relief of mandatory injunction seeking demolition of the construction carried out by the Defendants on the suit property bearing Survey No. 251/2 as it was illegally put up by the Defendants on Plaintiffs' land. The matter is to be examined in this hue and, therefore, the argument that relief for possession should also have been sought is clearly untenable - there are no merit in these appeals, which are accordingly dismissed with costs. Appeal dismissed.

Summary

Issues Involved:
1. Ownership of the suit property.
2. Possession of the suit property.
3. Maintainability of the suit without seeking possession or declaration of title.
4. Application of the Benami Transactions (Prohibition) Act, 1988.

Issue-wise Detailed Analysis:

Re.: Ownership
The primary issue was whether the plaintiffs were the rightful owners of the suit property, which was claimed to be acquired by Vassudev Govekar from the Communidade of Anjuna. The first appellate court and the High Court concluded that the plaintiffs successfully proved their ownership based on multiple documents, including the grant from the Communidade, survey records, and inventory proceedings. The courts found that the property was listed in the name of Vassudev Govekar, and the plaintiffs, as his successors, inherited the rights. The courts rejected the defendants' claim that the property belonged to Jagannath Govekar, citing the Benami Act, which precluded such a defense.

Re.: Possession
The plaintiffs claimed possession of the suit property, arguing that they occasionally visited it despite residing elsewhere for employment. The defendants contended that the plaintiffs were not in possession, relying on the plaintiffs' admissions in the plaint. The courts, however, found that the plaintiffs maintained possession through occasional visits and that the defendants' construction on the property was an act of trespass. Therefore, the plaintiffs' suit for mandatory injunction to demolish the illegal construction was deemed maintainable without a separate prayer for possession.

Re.: Maintainability of the Suit
The defendants argued that the suit was not maintainable without seeking possession or a declaration of title, particularly since there was a cloud over the title. The courts disagreed, stating that the plaintiffs had sufficiently proved their title and possession. The High Court and the first appellate court held that the relief of mandatory injunction for demolishing the illegal construction was, in substance, a relief for possession. Thus, the suit was maintainable in its existing form.

Re.: Application of the Benami Act
The defendants' argument that the Benami Act was not applicable because the transaction occurred before the Act's commencement was rejected. The courts found that the property was listed in the name of Vassudev Govekar, and the defendants failed to provide substantial evidence that Jagannath Govekar was the real owner. The first appellate court's application of Section 4(2) of the Benami Act, which barred the defendants' claim, was upheld.

Final Judgment and Relief:
The Supreme Court dismissed the appeals, affirming the findings of the lower courts. However, the Court, exercising its powers under Article 142 of the Constitution of India, directed that instead of demolishing the illegal construction, the plaintiffs should compensate the defendants for the cost of construction. This approach aimed to balance equities and avoid wastage of resources, ensuring complete justice to both parties. The executing court was instructed to appoint a Surveyor/Valuer to determine the cost of construction to be reimbursed by the plaintiffs to the defendants.