9911796707
TMI Blog2022 (3) TMI 1593X X X X Extracts X X X X X X X X Extracts X X X X ..... ict Deesa. The husband of the original Plaintiff had executed a Sale Deed dated 17.06.1975 in favour of the Appellant herein-original Defendant (hereinafter referred to as the "original Defendant") by which he sold his agricultural land in question. 2.1. That on the basis of the sale deed, the name of the Defendant No. 1 was mutated in the Revenue record in the year 1976 itself. All throughout the name of the original Defendant No. 1 was mutated in the Revenue record as an owner right from the year 1976 onwards. It is the case on behalf of the Defendants that thereafter between 1975 to 1997, he had authorised and completed construction projects on the land. He also availed a bank loan where the suit property was given as a collateral security. 2.2. That in the year 1999, the husband of the original Plaintiff, who executed the registered sale deed died. That after a period of approximately 22 years, Respondent No. 1 herein-original Plaintiff (hereinafter referred to as "original Plaintiff") instituted Regular Civil Suit No. 123 of 1997 in the Court of Civil Judge (Junior Division), Deesa for the reliefs of cancellation of the registered Sale Deed dated 17.06.1975, declaration and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef sought? 6. What order and decree? 2.6. On appreciation of evidence, both oral as well as documentary, the trial court partly allowed the suit. The trial court declined to grant the relief of cancellation of the sale deed and declaration and held that Defendant No. 1 purchased the entire 6 acres and 15 gunthas of the land under the registered Sale Deed dated 17.06.1975. However, the trial court believed the Plaintiff to be in possession of the suit land to the extent of 5 acres and 15 gunthas of land and accordingly granted the relief of permanent injunction. 2.7. Defendant No. 1, feeling aggrieved and dissatisfied with the judgment and decree of permanent injunction passed by the trial court, preferred the Regular Civil Appeal No. 15 of 2000 before the First Appellate Court-District Court of Banaskantha at Deesa. The First Appellate Court dismissed the said appeal and confirmed the judgment and decree of permanent injunction passed by the trial court. 2.8. At this stage, it is required to be noted that so far as the judgment and decree passed by the trial court refusing to grant the decree of cancellation of the registered sale deed and refusing to grant declaration of titl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favour of the Plaintiff is unjust and contrary to Section 38 read with Section 41 of the Specific Relief Act. 3.2. It is further contended that even the relief for permanent injunction was contrary to the evidence on record. It is submitted that as such, right from the execution of the registered Sale Deed dated 17.06.1975, the Defendant No. 1 is in possession of the entire suit land. It is submitted that right from 1975 in the Revenue record, the name of the Defendant No. 1 is shown as a cultivator and in possession. It is submitted that even Defendant No. 1 also availed a bank loan where the suit property was given as a collateral security. It is submitted that even in the registered sale deed, it was specifically mentioned that the full sale consideration has been paid and that the Defendant No. 1-purchaser was put in possession of the entire land. It is urged that once the trial court believed the execution of the registered sale deed with respect to the entire land in question and also believed that the full sale consideration with respect to the entire land in question had been paid, the trial court ought to have believed that part of the sale deed in which it was spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in exclusive possession of the suit land, which stand protected by the judicial orders all throughout in recognition of the said fact. 3.7. Making the above submissions, it is prayed to allow the present appeal and quash and set aside the judgment and decree passed by the trial court of granting permanent injunction as affirmed by the High Court. 4. Present appeal is vehemently opposed by Shri Rauf Rahim, learned Advocate appearing on behalf of the original Plaintiff. 4.1. It is vehemently submitted by Shri Rahim, learned Advocate appearing on behalf of the original Plaintiff that as such there are concurrent findings of fact recorded by all the Courts below holding that the Plaintiff is in possession of the entire suit land, i.e., 5 acre and 15 gunthas of land. It is submitted that these finding of facts have been recorded by all the Courts below on appreciation of evidence on record, both oral as well as documentary. It is further submitted that as the Plaintiff is found to be in settled possession, the only remedy available to Defendant No. 1 would be to file a substantive suit to get the relief of possession. Reliance is placed on the decision of this Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered sale deed and refused to grant a declaration as prayed. Therefore, so far as on the aspect of title of the land in question is concerned, the Plaintiff lost. On appreciation of evidence, the trial court held that the husband of the Plaintiff executed the registered sale deed in favour of the Defendant No. 1 for a value consideration. The judgment and order passed by the trial court refusing to grant the decree of cancellation of the registered sale deed and the declaration has attained finality. This is because no appeal was filed by the Plaintiff. 6.2. However, the trial court granted the permanent injunction in favour of the Plaintiff restraining Defendant No. 1 from disturbing the possession of the Plaintiff with respect to 5 acres and 15 gunthas of land. It was the Defendant No. 1, who preferred the appeal before the First Appellate Court and thereafter before the High Court challenging the decree for permanent injunction. The High Court by the impugned judgment and order has observed that as relief for permanent injunction, by the Plaintiff can be said to be a substantive relief, therefore, when the Plaintiff is found to be in possession of 5 acres and 15 gunthas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the Revenue record as an owner and cultivator and the Plaintiff, who claims to be in possession of the land and cultivating the same, is deemed to have the knowledge of the said entry. 8.1. In the case of Dilboo v. Dhanraji, (2000) 7 SCC 702, it is observed and held by this Court that where there is a dispute that the suit is filed beyond the period of limitation, the Plaintiff would have to aver and prove that the suit is within the period of limitation as prescribed and in the absence of any averment or proof to show that the suit is within time, it is the Plaintiff who would fail. It is further observed that whenever a document is registered the date of registration becomes the date of deemed knowledge. It is further observed that in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the Plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. 8.2. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, it is noted that the registered sale deed in favour of Defendant No. 1 is dated 17.06.1975 and thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the true and absolute owner of the property in question, pursuant to the execution of the sale deed dated 17.06.1975 in his favour, the true owner cannot be restrained by way of an injunction against him. In a given case, the Plaintiff may succeed in getting the injunction even by filing a simple suit for permanent injunction in a case where there is a cloud on the title. However, once the dispute with respect to title is settled and it is held against the Plaintiff, in that case, the suit by the Plaintiff for permanent injunction shall not be maintainable against the true owner. In such a situation, it will not be open for the Plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the Defendant-the true owner still be restrained from disturbing his/her possession and his/her possession be protected. In the present case, as observed hereinabove and it is not in dispute that the suit filed by the Plaintiff for cancellation of the registered sale deed and declaration has been dismissed and the registered sale deed in favour of the Defendant No. 1 has been believed and thereby Defendant No. 1 is held to be the true and absolute owner of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip has a perfectly good title against all the world but the rightful owner. Therefore, the Plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end. 10. Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original Plaintiff in support of his submission that in a suit for permanent injunction to restrain the Defendant to interfere with the Plaintiff's possession, the only thing the Plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the Defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the "lawful possession" of the Plaintiff. In the present case the Plaintiff, who has failed to get any declaratory relief and the Defendant No. 1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the Plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff that even if the Plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the Plaintiff is found to be in possession and therefore, the only remedy available to the Defendant No. 1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the Plaintiff that once the Plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the Defendant No. 1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this Court in paragraph 79, which reads as under: 79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the Plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law. 12.1. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the Defendant No. 1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the Plaintiff is not entitled to any permanent injunction against the true owner. 13. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the Plaintiff and against the Defendant No. 1, who is the true owner. After having held that the Plaintiff had no title and after dismissing the suit qua the cancellation of the regi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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