//
archives

background facts

This tag is associated with 7 posts

Limitation Act, 1963-Articles 64 & 65 of the Schedule-Indian Limitation Act, 1908-Articles 142 & 143 of the Schedule-Purchase of suit property by plaintiffs by registered sale deeds without knowledge of earlier purchase of the same by defendants-Suit for possession claiming title by adverse possession was decreed by trial court-High Court reversing the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession-Correctness of-Held, on facts and evidence, positive intention to dispossess the suit property essential to claim adverse possession was not proved by plaintiffs and hence, suit for possession dismissed. Appellant-plaintiffs purchased suit property by two registered sale deeds subsequent to the purchase of the same by respondents-defendants. A suit for possession filed by the appellants claiming title on the basis of adverse possession was decreed by the trial court. The High Court, in appeal, reversed the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession. In appeal to this Court, the appellants contended that the acknowledgment of the owner’s title was not sine qua non for claiming title by adverse possession. =Dismissing the appeal, the Court HELD: 1.1. Adverse possession is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession . It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostiles. [Para 5] [496-D, E] Downing v. Bird, [100] So. 2d 57 (Fla. 1958); Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot v. Murphy, [207 N.Y. 240, 100 N.E. 742 (1913) and City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929), referred to. 1.2. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which, the right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. [Para 6] [496-F, G; 497-A, B] American Jurisprudence Vol. 3, referred to. Fairweather v. St. Marylebone Property Co., (1962) 2 WLR 1020; [1962] 2 All ER 299; Taylor v. Twinberries, [1930] 2 KB 17 and Chung Ping Kwan & Ors. v. Lam Island Development Company Ltd. (Hong Kong), (1997) AC 38, referred to. 1.3. To assess a claim of adverse possession, two-pronged enquiry is required. Firstly, application of limitation provision thereby jurisprudentially “Willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. Secondly, specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. [Para 9] [498-D, E, F] 1.4 The aspect of positive intention is weakened by the two sale deeds. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one way. Firstly, due compliance on this count attracts limitation act and secondly, it also assists the court to unearth as the intention to dispossess. [Para 13] [499-D, E] JA Pye (Oxford) Ltd. v. United Kingdom, [2005] 49 ERG 90; [2005] ECHR 921, referred to. 1.5. Intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. If the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize. [Para 15] [499-G; 500-A] Thakur Kishan Singh (dead) v. Arvind Kumar, [1994] 6 SCC 591, referred to. Lambeth London Borough Council v. Blackburn, [2001] 82 P & CR 494 and The Powell v. Macfarlane, [1977] 39 P & CR 452, referred to. 1.6. There must be intention to dispossess. It needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of the adverse possessor. A peaceful, open and continuous possession is engraved in the maxim nec vi, nec clam, nec precario i.e. not by force, nor stealth, nor the licence of the owner. [Paras 20, 22 and 23] [501-F, G; 502-A, B-E; 504-C] Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Karnataka Board of Wakf v. Government of India & Ors., [2004] 10 SCC 779; Narne Rama Murthy v. Ravula Somasundaram & Ors., [2005] 6 SCC 614; S. M. Karim v. Mst. Bibi Sakini, AIR (1964) SC 1254; P. Periasami v. Periathambi, [1995] 6 SCC 253; Mohan Lal v. Mirza Abdul Gaffar, [1996] 1 SCC 639; M. Durai v. Madhu & Ors., (2007) 2 SCALE 309; Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Mohammadbhai Kasambhai Sheikh & Ors. v. Abdulla Kasambhai Sheikh, [2004] 13 SCC 385; T. Anjanappa & Ors. v. Somalingappa & Anr., [2006] 7 SCC 570; Des Raj & Ors. v. Bhagat Ram (Dead) by Lrs. & Ors., (2007) 3 SCALE 371 and Govindammal v. R. Perumal Chettiar & Ors., JT [2006] 10 SC 121 : [2006] 11 SCC 600, referred to. Secy. of State v. Debendra Lal Khan, AIR (1934) PC 23 and State of West Bengal v. The Dalhousie Institute Society, AIR (1970) SC 1978, distinguished. R. v. Oxfordshire County Council & Ors., Ex Parte Sunningwell Parish Council, [1999] 3 ALL ER 385; [1999] 3 WLR 160; Beresford, R (on the application of) v. City of Sunderland, (2003) 3 WLR 1306; [2004] 1 All ER 160; Beaulane Properties Ltd. v. Palmer, (2005) 3 WLR 554 : (2005) EWHC 817 (Ch); JA Pye (Oxford) Ltd. v. United Kingdom, (2005) EHCR 921 (2005) 49 ERG 90 [2005] ECHR 921; Beyeler v. Italy [GC], no. 33202/96 [108-14 ECHR 2000-I], referred to. Declaration of the Rights of Man and of the Citizen, (1789) and Universal of Human Rights, (1948) referred to. 1.7. Adverse Possession is a right which comes into play not just because someone loses high right to reclaim the property out of continuous and willful neglect but also on account of possessor’s positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper owner of the property. [Para 58] [513-A, B] P. Krishnamoorthy, Romy Chacko, Girjesh Pandey and Rajiv Mehta for the Appellants. K.R. Sasiprabhu, Arvind Varma, Swati Sinha and Jaysree Singh (for M/S Fox Mandal & Co.) for the Respondents. =2007 AIR 1753, 2007(5 )SCR491 , 2007(6 )SCC59 , 2007(6 )SCALE95 , 2007(6 )JT86

CASE NO.: Appeal (civil) 7062 of 2000 PETITIONER: P.T. Munichikkanna Reddy & Ors RESPONDENT: Revamma and Ors DATE OF JUDGMENT: 24/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T S.B. SINHA, J : BACKGROUND FACTS One Thippaiah was the owner of 5 acre 23 guntas of land having … Continue reading

HIGH COURT OF JUDICATURE AT ALLAHABAD =Dying declaration can be accepted only when it is free from all infirmities, embellishment and tutoring/appeal allowed as the same is missing.

HIGH COURT OF JUDICATURE AT ALLAHABAD¬† Court No.53 AFR Criminal Appeal No.1689 of 1981 Asha Ram & another……………………..Appellants Versus State of U.P. ……………………………Respondents. Hon’ble Vinod Prasad, J. Two appellants, father and son, Asha Ram and Suresh, have challenged their conviction under section 304 IPC with implanted sentence of five years, recorded by Session’s Judge, Mainpuri … Continue reading

Orissa Estate Abolition Act, 1951 – ss. 8, 2(h), 2(n) and 3 – Claim for protection as `raiyat’ – Property classified as uncultivable, vested in State by virtue of notification issued under the Act – Claim of Respondent that ex-intermediaries in respect of the property had leased the same to her predecessor-in-interest, who, immediately before vesting of the same in the State Government, was thus in possession of the property as a tenant under an intermediary i.e. was a `raiyat’ under the Act, and from date of the vesting, was a deemed tenant under the State Government and consequently Respondent too was a deemed tenant under the State Government and entitled to protection of his possession – Writ petition filed by respondent allowed by High Court – Order challenged – Plea raised that High Court lost sight of the relevant provisions of the Act and did not consider the effect of alleged gross acts of fraud committed by the respondent – Held: On facts, matter needs to be re-considered by the High Court. Words and Phrases – Fraud – Meaning and effect of – Discussed – Indian Contract Act, 1872 – s.17. By virtue of a Notification issued in 1954 under Section 3 of the Orissa Estate Abolition Act, 1951, the disputed property vested in the State. Respondent claimed that in 1933, the ex-intermediaries in respect of the said property had leased the same to her predecessor-in-interest , who, immediately before vesting of the same in the State Government, was thus in possession of the property as a tenant under an intermediary i.e. was a `raiyat’ under the Act, and from date of the vesting, was a deemed tenant under the State Government and consequently Respondent (who bought the disputed property from her predecessor-in-interest) too was a deemed tenant under the State Government and thus entitled to protection of his possession. In regard to the said claim, Respondent filed writ petition seeking direction to the State to accept rent from her in respect of the disputed property, for a declaration of tenancy in her favour and for an injunction against the State restraining them from interfering with her possession. The High Court allowed the writ petition. In appeals to this Court, the judgment of the High Court was inter alia challenged on grounds that the High Court lost sight of the relevant provisions of the Act and did not consider the effect of the alleged gross acts of fraud committed by the respondent . =Allowing the appeals, the Court HELD: 1.1. A `lease’ and `lessee’ on the one hand are defined separately from the `Raiyat’ under the Orissa Estate Abolition Act, 1951 Act. Thus, the mere execution of a lease by the intermediary in favour of a person would not confer the status of a `raiyat’ on the lessee nor would protect the possession of such lessee under Section 8 of the Act. In fact, a `lease’ would amount to a transfer of an interest of the intermediary in the land to the lessee. In such a situation, far from being a tenant protected under Section 8, the lessee would in fact step into the shoes of the intermediary with his interest being liable for confiscation and his entitlement limited to compensation from the State. On the other hand, for protection under Section 8, one has to be a Raiyat cultivating the land directly and having the rights of occupancy under the tenancy laws of the State. Thus, a `lessee’ who is not actually cultivating the land i.e. who is not a `raiyat’, would not be within the protection of Section 8 of the Act. Section 2(h) of the Act in its residuary part states that `intermediary’ would cover all owners or holders of interest in land between the raiyat and the State. [Para 21] [48-H; 49-A-D] 1.2. On the facts of the present case, it is clear that the land was not under cultivation by the predecessor-in-interest of the respondent. As per the record of rights published in 1930-31, the disputed land is classified as Anabadi Land i.e. uncultivable. The land is further described in the records as Jhudi jungle, i.e. bush forest. In addition, the OEA Collector had found that the lands were lying fallow and were not in physical possession of any person. The land thus not being cultivated, predecessor- in-interest of the respondent cannot prima facie be considered as a `Raiyat’ under the Act. [Para 22] [49-F-H; 50-A] Kumar Bimal Chandra Sinha V. State of Orissa (1963) 2 SCR 552 – referred to. 2.1. It is also necessary to consider the effect of fraud. By “fraud” is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corres-ponding loss to the deceived, the second condition is satisfied. [Para 33] [53-E-H] 2.2. “Fraud” vitiates every solemn act. Fraud and justice never dwell together. Misrepresentation itself amounts to fraud. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. [Para 35] [54-B-F] 2.3. Section 17 of the Indian Contract Act, 1872 defines “fraud” as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. [Para 36] [55-D-E] Dr. Vimla v. Delhi Administration 1963 Supp. 2 SCR 585; Indian Bank v. Satyam Febres (India) Pvt. Ltd. 1996 (5) SCC 550; S.P. Changalvaraya Naidu v. Jagannath 1994 (1) SCC 1; Ram Chandra Singh v. Savitri Devi and Ors. 2003 (8) SCC 319; Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers (1992 (1) SCC 534; Roshan Deen v. Preeti Lal (2002 (1) SCC 100); Ram Preeti Yadav v. U.P. Board of High School and Interme-diate Education 2003 (8) SCC 311; Ashok Leyland Ltd. v. State of T.N. and Another 2004 (3) SCC 1; Gowrishankar v. Joshi Amba Shankar Family Trust 1996 (3) SCC 310 and Maganti Subrahmanyam (dead) by his Legal Representative v. The State of Andhra Pradesh (AIR 1970 SC 403) – referred to. Khawaja v. Secretary of State for Home Deptt. (1983) 1 All ER 765; Derry and Ors. v. Peek (1886-90) All ER 1 and Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702 – referred to. Webster’s Third New International Dictionary; Black’s Legal Dictionary; Concise Oxford Dictionary and Halsbury’s Laws of England – referred to. 3. In view of the peculiar facts and circumstances of the case, the matter needs to be re-considered by the High Court. In the background of the massiveness of apparent fraud involved, effective and participative role of officials of the State cannot be lost sight of. Without their active and effective participation manipulation of records, tampering with documents could not have been possible. The State would do well to pursue the matter with seriousness to unravel the truth and punish the erring officials and take all permissible actions (including criminal action) against every one involved. [Paras 44, 46] [62-A-C] Case Law Reference 1963 2 SCR 552 referred to Para 21 1963 Supp. 2 SCR 585 referred to Para 33 1996 (5) SCC 550 referred to Para 33 1994 (1) SCC 1 referred to Para 34 2003 (8) SCC 319 referred to Para 35 1886-90 All ER 1 referred to Para 36 1983 1 All ER 765 referred to Para 36 1992 (1) SCC 534 referred to Para 36 2002 (1) SCC 100 referred to Para 38 2003 (8) SCC 311 referred to Para 38 2004 (3) SCC 1 referred to Para 38 1996 (3) SCC 310 referred to Para 39 1956 1 QB 702 referred to Page 41 AIR 1970 SC 403 referred to Page 43 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2656 of 2009 From the Judgement and Order dated 10.01.2007 of the Hon’ble High Court of Orissa at Cuttack in Review Petition No. 13 of 2006. With Civil Appeal No. 2657 of 2009 Gopal Subramanium, ASG, Arunav Patnaik, Subir Palit, Mukul Kumar, Miuno Kumar, Milind Kumar, with him for the Appellant(s). Altaf Ahmad, U.U. Lalit, Jana Kalyan Das, Banshidhar Baug, Avijett Bhujabal, Sabyasachi Burma, with them for the Respondent(s).

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2656 OF 2009 (Arising out of S.L.P. (C) No. 10223 of 2007) State of Orissa and Ors. …..Appellants Versus Harapriya Bisoi ….Respondent (With Civil Appeal 2657/2009 @ SLP (C) No.11960/2007)   JUDGMENT   Dr. ARIJIT PASAYAT.   1. Leave granted.   2. … Continue reading

Limitation Act, 1963-Articles 64 & 65 of the Schedule-Indian Limitation Act, 1908-Articles 142 & 143 of the Schedule-Purchase of suit property by plaintiffs by registered sale deeds without knowledge of earlier purchase of the same by defendants-Suit for possession claiming title by adverse possession was decreed by trial court-High Court reversing the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession-Correctness of-Held, on facts and evidence, positive intention to dispossess the suit property essential to claim adverse possession was not proved by plaintiffs and hence, suit for possession dismissed. Appellant-plaintiffs purchased suit property by two registered sale deeds subsequent to the purchase of the same by respondents-defendants. A suit for possession filed by the appellants claiming title on the basis of adverse possession was decreed by the trial court. The High Court, in appeal, reversed the judgment of the trial court holding that the plaintiffs failed to prove their title by adverse possession. In appeal to this Court, the appellants contended that the acknowledgment of the owner’s title was not sine qua non for claiming title by adverse possession. =Dismissing the appeal, the Court HELD: 1.1. Adverse possession is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession . It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostiles. [Para 5] [496-D, E] Downing v. Bird, [100] So. 2d 57 (Fla. 1958); Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot v. Murphy, [207 N.Y. 240, 100 N.E. 742 (1913) and City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929), referred to. 1.2. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which, the right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim. [Para 6] [496-F, G; 497-A, B] American Jurisprudence Vol. 3, referred to. Fairweather v. St. Marylebone Property Co., (1962) 2 WLR 1020; [1962] 2 All ER 299; Taylor v. Twinberries, [1930] 2 KB 17 and Chung Ping Kwan & Ors. v. Lam Island Development Company Ltd. (Hong Kong), (1997) AC 38, referred to. 1.3. To assess a claim of adverse possession, two-pronged enquiry is required. Firstly, application of limitation provision thereby jurisprudentially “Willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner. Secondly, specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. [Para 9] [498-D, E, F] 1.4 The aspect of positive intention is weakened by the two sale deeds. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one way. Firstly, due compliance on this count attracts limitation act and secondly, it also assists the court to unearth as the intention to dispossess. [Para 13] [499-D, E] JA Pye (Oxford) Ltd. v. United Kingdom, [2005] 49 ERG 90; [2005] ECHR 921, referred to. 1.5. Intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. If the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize. [Para 15] [499-G; 500-A] Thakur Kishan Singh (dead) v. Arvind Kumar, [1994] 6 SCC 591, referred to. Lambeth London Borough Council v. Blackburn, [2001] 82 P & CR 494 and The Powell v. Macfarlane, [1977] 39 P & CR 452, referred to. 1.6. There must be intention to dispossess. It needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. Intention implies knowledge on the part of the adverse possessor. A peaceful, open and continuous possession is engraved in the maxim nec vi, nec clam, nec precario i.e. not by force, nor stealth, nor the licence of the owner. [Paras 20, 22 and 23] [501-F, G; 502-A, B-E; 504-C] Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Karnataka Board of Wakf v. Government of India & Ors., [2004] 10 SCC 779; Narne Rama Murthy v. Ravula Somasundaram & Ors., [2005] 6 SCC 614; S. M. Karim v. Mst. Bibi Sakini, AIR (1964) SC 1254; P. Periasami v. Periathambi, [1995] 6 SCC 253; Mohan Lal v. Mirza Abdul Gaffar, [1996] 1 SCC 639; M. Durai v. Madhu & Ors., (2007) 2 SCALE 309; Saroop Singh v. Banto & Ors., [2005] 8 SCC 330; Mohammadbhai Kasambhai Sheikh & Ors. v. Abdulla Kasambhai Sheikh, [2004] 13 SCC 385; T. Anjanappa & Ors. v. Somalingappa & Anr., [2006] 7 SCC 570; Des Raj & Ors. v. Bhagat Ram (Dead) by Lrs. & Ors., (2007) 3 SCALE 371 and Govindammal v. R. Perumal Chettiar & Ors., JT [2006] 10 SC 121 : [2006] 11 SCC 600, referred to. Secy. of State v. Debendra Lal Khan, AIR (1934) PC 23 and State of West Bengal v. The Dalhousie Institute Society, AIR (1970) SC 1978, distinguished. R. v. Oxfordshire County Council & Ors., Ex Parte Sunningwell Parish Council, [1999] 3 ALL ER 385; [1999] 3 WLR 160; Beresford, R (on the application of) v. City of Sunderland, (2003) 3 WLR 1306; [2004] 1 All ER 160; Beaulane Properties Ltd. v. Palmer, (2005) 3 WLR 554 : (2005) EWHC 817 (Ch); JA Pye (Oxford) Ltd. v. United Kingdom, (2005) EHCR 921 (2005) 49 ERG 90 [2005] ECHR 921; Beyeler v. Italy [GC], no. 33202/96 [108-14 ECHR 2000-I], referred to. Declaration of the Rights of Man and of the Citizen, (1789) and Universal of Human Rights, (1948) referred to. 1.7. Adverse Possession is a right which comes into play not just because someone loses high right to reclaim the property out of continuous and willful neglect but also on account of possessor’s positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper owner of the property. [Para 58] [513-A, B] P. Krishnamoorthy, Romy Chacko, Girjesh Pandey and Rajiv Mehta for the Appellants. K.R. Sasiprabhu, Arvind Varma, Swati Sinha and Jaysree Singh (for M/S Fox Mandal & Co.) for the Respondents.

CASE NO.: Appeal (civil) 7062 of 2000 PETITIONER: P.T. Munichikkanna Reddy & Ors RESPONDENT: Revamma and Ors DATE OF JUDGMENT: 24/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T S.B. SINHA, J : BACKGROUND FACTS One Thippaiah was the owner of 5 acre 23 guntas of land having … Continue reading

Hire-Purchase: Hire-Purchase Agreement-Clause 10-Financier taking repossession of financed vehicle in case of default-Suit for declaration and injunction by hirer-Trial Court directing financier to release vehicle on deposit of balance instalments with interest-Order upheld by High Court-On appeal, held: Repossession of vehicle was permissible in terms of the agreement-However, defaulted amount having been deposited and also vehicle if not used would lose its value, vehicle directed to be released on payment of additional sum. Constitution of India, 1950-Article 226-Financier taking repossession of financed vehicle in terms of Hire-Purchase Agreement-Writ petitions styled as Public interest litigation-Scope of interference-Held: Such matters are contractual-For interference it is to be shown that the contract is unconscionable or opposed to public policy-Such matters cannot be generalized to say that repossession is improper-It depends on facts of each case. Appellant-financier and respondent no. 1-hirer executed a Hire Purchase Agreement and possession of a truck was handed over to the hirer. Respondent no. 1 was to repay financed amount in monthly instalments within stipulated period and in case of default, to pay delay charges. Hirer defaulted in making payment despite several requests and was in arrears. Appellant repossessed the vehicle and called upon respondent no. 1 to pay the amount due. Hirer did not make the payment and filed suit for declaration with consequential relief, permanent and mandatory injunction and also interim injunction. Civil Judge directed the appellant to release the vehicle subject to deposit of balance instalment with interest. High Court upheld the order of trial court. Hence, the present appeal. =Allowing the appeal, the Court HELD: 1. Re-possession of financed vehicle is clearly permissible in terms of Clause 10 of the Hire Purchase Agreement. Trial Court is to ultimately decide in the suit the amount to which the appellant is entitled to. The vehicle was directed to be released on payment of the defaulted instalments which has been deposited. But at the same time it was imperative for the High Court to ensure that in the event the suit is dismissed, and the hirer is liable to pay the amount, how the same is secured. It is not disputed that the vehicle if not used would lose its value. In the peculiar circumstances of the case, it is directed that the vehicle would be released on payment of Rs.1,50,000/- in addition to the amount already deposited. Respondents should file an undertaking before the trial court that in the event of non-success the vehicle would be returned to the financier, unless the trial court fixes some other terms. [174-b-d] 2. The orders regarding right of financiers to take possession of the vehicle in terms of the agreement prima facie have no legal foundation, as virtually while dealing with writ petitions subsisting contracts are being re-written. It is still more surprising that petitions styled as PIL are being entertained in this regard. Essentially these are matters of contract and unless the party succeeds in showing that the contract is unconscionable or opposed to public policy the scope of interference in writ petitions in such contractual matters is practically non-existence. If agreements permit the financier to take possession of the financed vehicles, there is no legal impediment on such possession being taken. Of course, the hirer can avail such statutory remedy as may be available. But mere fact that possession has been taken cannot be a ground to contend that the hirer is prejudiced. As regards the submission of the hirer that convenience of the hirer cannot be overlooked and improper seizure cannot be made, there cannot be any generalization in such matters. It would depend upon facts of each case. Therefore, it would not be proper for the High Courts to lay down any guideline which would in essence amount to variation of the agreed terms of the agreement. If any such order has been passed effect of the same would be considered by the concerned High Court in the light of this judgment and appropriate orders would be passed. [174-g-h; 175-a-b] P.K. Seth, Sudhir Kumar Gupta for the Appellant. S.K. Sabharwal and Ajay Siwach, Pardeep Dahiya and Sandeep Sharma for the Respondents.

CASE NO.: Appeal (civil) 1070 of 2006 PETITIONER: The Managing Director, Orix Auto Finance (India) Ltd RESPONDENT: Shri Jagmander Singh & Anr DATE OF JUDGMENT: 10/02/2006 BENCH: ARIJIT PASAYAT & S.H. KAPADIA JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (C) No.22535 of 2004) ARIJIT PASAYAT, J. Leave granted. Challenge … Continue reading

Insecticides Act,1968 -It is not disputed that on 30.10.1998, i.e. before the filing of the complaint, Annexure P-1, an application was filed by the manufacturer with a prayer that the complainant be directed to produce the sample in court and the sample may be got analysed from any Laboratory at the cost and expenses of the petitioner. Despite the prayer made in the application, neither the sample was produced in the court, nor was sent for re-testing. Under Sub-section (4) of Section 24 of the Insecticides Act, the court as its own discretion or at the request of the complainant or accused, can cause the sample of Insecticides produced before it to be sent for test or analysis to the Central Laboratory. Admittedly, the sample was not produced for re-analysis, at the request made on behalf of manufacturer, who was co-accused in the complaint and in this way, the petitioner was deprived of his valuable right to get the sample re-analysed. These very grounds prevailed upon the court at the time the complaint qua the manufacturer was quashed in Criminal Misc. No. 3737-M of 1994. Accordingly, the complaint against the petitioner too deserves to be quashed, being an abuse of process of the court.” In view of above settled position of law, entire exercise by the court in violation of accused right vested and conferred under section 24 (3) and (4) of the Act will be futile and fruitless yielding no result in favour of the prosecution. Concludingly, this 482 Cr.P.C. Application is allowed. Prosecution of applicants in case no. 1206 of 2005, State versus Satish Kumar Tyagi and others, under section 29(1) of Insecticides Act,1968 pending before C.J.M., Bijnor is hereby quashed.

HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR CRIMINAL MISC. APPLICATON NO.31053 OF 2009 Bharat Insecticides Ltd. and another…….Applicants. VERSUS State of U.P………………………………..Respondent. Hon’ble Vinod Prasad, J. Bharat Insecticides Ltd. through it’s Zonal Business Manager, Ghaziabad (A1) and it’s Assistant Manager, Manoj Kumar(A2) have invoked inherent power of this court, U/S 482 Cr.P.C., through present … Continue reading

Code of Criminal Procedure, 1973 s.125-Claim for maintenance by Muslim wife from her husband-Maintainability of-Held: Conclusion by revisional court that in view of assertion in written statement about alleged divorce by utterance of words “Talak” “Talak” “Talak” three times and mentioning this in written statement amounted in law to divorce is not sustainable-Besides, proceedings u/s.125 Cr.P.C. are civil in nature-Even if court notices that the claimant was a divorcee it was open to court to treat the petition one under Muslim Woman (Protection of Rights on Divorce) Act-High Court would decide the matter keeping in view the principles indicated In the judgment-Muslim Woman (Protection of Rights on Divorce) Act,1986-s.3. s.125-Proceedings under-Nature of-Held: Proceedings under the section are civil in nature. Appellant was married to respondent no.2 in the year 1959. In the year 1992 she filed an application under s.125 Cr. P.C. claiming maintenance. In the written statement, respondent no.2 stated that he had divorced the appellant by uttering “Talak” “Talak” “Talak”, had paid “Mehr” and the “Iddat” period was over and, therefore, the claim was not maintainable. The Judicial Magistrate granted a monthly maintenance of Rs.450/- holding that there was no material to substantiate the plea of divorce. In the revision petition filed by the husband, the revisional court held that after the enactment of the Muslim Woman [Protection of Rights on Divorce] Act,1986, petition by any married Muslim woman u/s. 125 Cr. P.C. was not maintainable; and such woman could claim maintenance under the Act and not under the Cr.P.C. It was also held that mention was made in the written statement about the divorce purportedly 30 years back and the mentioning about this fact in law amounted to divorce. The writ petition of the wife having been dismissed summarily by the High Court, she filed the instant appeal.

CASE NO.: Appeal (crl.) 795 of 2001 PETITIONER: Iqbal Bano RESPONDENT: State of U.P. and Anr DATE OF JUDGMENT: 05/06/2007 BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN JUDGMENT: J U D G M E N T Dr. ARIJIT PASAYAT, J. 1. In the present appeal the appellant questions correctness of the order passed by a … Continue reading

Blog Stats

  • 2,881,041 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com