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Or.14, rule 1 and 2 of C.P.C. and Art.10 , 59 ,92 and 96 of Limitation – suit filed against ex trustee for declaration that the settlement deeds dt. 27-3-1978 executed by him infavour of his daughter and grand daughters in respect of Trust Property is null and void – defendant took plea that it is barred by limitation as the suit is filed beyond three years – single judge under preliminary issue dismissed the suit and D.B. bench also confirmed the same – Apex court held that No suit be dismissed on the issue of preliminary issue – when it is a question of law and fact and when suit is not barred by limitation under Art.10 of limitation Act against the trustee or his legal representatives and when it is 12 years from the date of transfer as per Art. 92 – both lower courts committed error and as such allowed the appeal by setting aside the lower court orders = Satti Paradesi Samadhi & Philliar Temple … Appellant Versus M. Sankuntala (D) Tr. Lrs. & Ors. …Respondents = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41772

Or.14, rule 1 and 2 of C.P.C. and  Art.10 , 59 ,92 and 96 of Limitation – suit filed against ex trustee for declaration that the settlement deeds dt. 27-3-1978 executed by him infavour of his daughter and grand daughters in respect of Trust Property is null and void  – defendant took plea that it … Continue reading

Suit for prohibitory injunction – Relating to vacant land –Claim for possession based on title – Title of plaintiff disputed – Various complicated questions arose for putting forth a case of title – Suit decreed by trial court – Reversed by first appellate court – High Court in second appeal after recording finding of facts restored the order of trial court – On appeal, held: In the facts and circumstances of the case, the questions which arose for consideration could be decided only in a suit for declaration and consequential reliefs and not in a suit for injunction simplicitor – In absence of prayer for declaration of title, issue regarding title, pleadings required for declaration of title, the parties cannot be said to have an opportunity to have full fledged adjudication regarding title – High Court exceeded its jurisdiction u/s 100 CPC in re-examining questions of fact, by going into the questions which were not pleaded and not in issue, and by formulating questions of law which did not arise in the second appeal – Code of Civil Procedure, 1908 – s.100. Suit for prohibitory injunction – Relating to immovable Property – Scope of – Held: The prayer for injunction will be decided with reference to the finding on possession – In cases of vacant land, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession – If the title is clear and simple, the court may decide the issue of title – But, if a cloud is raised over plaintiff’s title, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Respondent/plaintiffs 1 and 2 filed a suit for permanent injunction against the appellant-defendant. They pleaded that they were owners in possession of the suit properties (vacant land) under sale deeds from `R’ (their vendor). They alleged that the defendant interfered with their possession. Defendant in his Written Statement stated that the suit property was purchased by him from the brother of the plaintiffs’ vendor under a registered sale deed and was put in possession of the property by his vendor and it were the plaintiffs who tried to interfere with his possession. Plaintiffs led evidence to the effect that defendant’s vendor had gifted the suit property to his sister in the year 1961 by way of `Pasupu Kumkumam’. Defendant and his vendor denied the plea of gift. Trial Court decreed the suit. First Appellate Court allowed the appeal of the defendant holding that defendant was in possession of the property and the plaintiff had not made out either title or possession over it; that mere suit for injunction was not maintainable and the suit should have be amended to one for declaration and injunction. High Court in second appeal, examining the evidence in detail, recorded the findings of facts and restored the judgment and decree of trial court. It held that plaintiffs had established their title in respect of suit land and drew an inference that possession was presumed to be with them by applying the principle of possession follows title; and that it was not necessary for the plaintiffs to sue for declaration of title as the question of title could be examined incidental to the question of possession. Hence the present appeal. The questions which arose for consideration before this Court were regarding the scope of a suit for prohibitory injunction relating to immovable property; whether plaintiffs were required to file a suit for declaration of title and injunction; and whether the High Court, in a second appeal , could examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court. Citation: 2008 AIR 2033,2008(5 )SCR331 ,2008(4 )SCC594 ,2008(4 )SCALE718 ,= Allowing the appeal, the Court HELD: 1.1 Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. [Para 17] [349-G; 350-A] 1.2 A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. [Para 12] [345-G; 346-A, B, C, D] 1.3 As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. In cases of vacant land, the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was in issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs. [Paras 14 and 17] [346-G; 347-A, B, C; 350-A, B] 1.4 However, a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. [Para 17] [350-C, D, E] 1.5 Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. [Para 17] [350-F, G, H; 351-A] Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari – AIR 1965 Mad. 355; Sulochana Amma vs. Narayanan Nair – 1994 (2) SCC 14; Annaimuthu Thevar v. Alagammal – 2005 (6) SCC 202; Sajjadanashin Sayed Md. Vs. Musa Dadabhai Ummer – 2000 (3) SCC 350- referred to. Corpus Juris Secundum (Vol.50, para 735, p.229) – referred to. 2.1 In the present case, the suit sites were vacant plots. Both sides admitted that defendant’s vendor was the original owner and that entire property stood in his name. The defendant claims title through his vendor. The plaintiffs claim title through their vendor, who neither has any deed of title nor any document in support of title or possession. Admittedly, there was no mutation in her name. This means that plaintiffs claim title through someone who claimed to be owner in pursuance of an oral gift in the year 1961 without the property being mutated in her name, whereas the defendant claims title from the person who was admittedly the original owner who was registered as owner in the revenue records. Necessarily, therefore, prima facie it has to be held that defendant had made out possession following title. [Para 20] [352-B, C, D, E] 2.2 The plaintiffs and their witnesses gave evidence to the effect that defendant’s vendor represented that his sister (appellants’ vendor) was the owner of the plot and negotiated for sale of the several portions thereof in favour of plaintiffs and PW3, and that defendant’s vendor had attested the sale deeds in their favour and identified his sister as the vendor-executant before the Sub-Registrar, at the time of registration of the sale deeds. But defendant’s vendor in his evidence denied having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether evidence of appellants’ vendor and other plaintiffs’ witnesses should be believed or whether evidence of defendant’s vendor should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and section 41 of Transfer of Property Act, validity of a oral gift by way of `Pasupu Kumkum’ under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter. [Para 21] [352-E, F, G, H; 353-A, B, C] 3.1 High Court exceeded its jurisdiction under Section 100 CPC, firstly in re-examining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration. [Para 27] [355-G; 356-A, B] 3.2 The High Court, in the absence of pleadings and issues, formulated in a second appeal arising from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. The only averment in the plaint that plaintiffs were the owners of the suit property having purchased the same under sale deeds, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under section 41 of Transfer of Property Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues. [Para 25] [355-A, B, C] 3.3 The High Court while reversing the decision of the first appellate court, examined various aspects relating to title and recorded findings relating to title. It held that gifting a property to a daughter or sister by way of `Pasupu Kumkumam’, could be done orally and did not require a registered instrument. Even though there was no independence evidence of oral gift except the assertion to appellants’ vendor (which was denied by defendant’s vendor), the High Court, held that there was an oral gift in her favour. It also accepted the evidence of PW3 and PW5 and plaintiffs, that defendant’s vendor negotiated for the sale of the plots representing that they sbelonged to his sister; and that he attested the sale deeds as a witness and identified his sister as the executant before the Sub-Registrar and therefore, Section 41 of Transfer of Property Act came to the aid of plaintiffs and defendant’s vendor was estopped from denying the title of his sister. The High Court in a second appeal arising from a suit for an injunction, could not have recorded such findings, in the absence of pleadings and issue regarding title. [Para 26] [355-D, E, F, G] 3.4 Though driving the plaintiffs to a fresh round of litigation after three decades would cause hardship to them. But the scope of civil cases are circumscribed by the limitations placed by the rules of pleadings, nature of relief claimed and the court fee paid. The predicament of plaintiffs, was brought upon themselves, by failing to convert the suit to one for declaration even when the written statement was filed, and by not seeking amendment of issues to include an issue on the question of title. In the absence of a prayer of declaration of title and an issue regarding title, let alone the pleadings required for a declaration of title, the parties cannot be said to have an opportunity to have a full-fledged adjudication regarding title. [Para 28] [356-B, C, D] D. Mahesh Babu for the Appellant. K. Amareswari, P. Venkat Reddy and Guntur Prabhakar for the Respondents.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10 CASE NO.: Appeal (civil) 6191 of 2001 PETITIONER: Anathula Sudhakar RESPONDENT: P. Buchi Reddy (Dead) By LRs & Ors DATE OF JUDGMENT: 25/03/2008 BENCH: R. V. Raveendran & P. Sathasivam JUDGMENT: J U D G M E N T (Reportable) CIVIL APPEAL NO.6191 OF 2001 R.V. … Continue reading

Transfer of Property Act, 1882; Section 92 / Contract Act, 1872 ; Section 69/Limitation Act, 1963; Articles 120, 132 and 144-Subrogation- One of the co-mortgagors redeeming the property mortgaged by making full payment-Suit for declaration of title/partition by non-redeeming co-mortgagors-Trial Court and First Appellate Court decreeing the suit- High Court holding that the suit without prayer of redemption is not maintainable and remanded back to trial court for amending the plead-ings-Trial court and First Appellate Court again decreeing the suit-High Court holding that the suit is barred by limitation-Correctness of-Held, redeeming co-mortgagor cannot claim a right higher than the right of non-redeeming co-mortgagors-Non-redeeming co-mortgagors are entitled to partition of suit property on reimbursement of amount of their share to redeeming co-mortgagors-Suit was basically a suit for partition and hence the suit is not barred by limitation. Civil Procedure Code, 1908-Section 105(2)-Order of remand made by the High Court-Held, Supreme Court in appeal against decree consequent upon order of remand can go into the question of its legality or validity of earlier order of remand-Constitution of India-Article 136. The suit property of a Joint Hindu Family was subject to usufructuary mortgage. After the partition, some members of the family filed a suit for redemption of mortgage before the trial court. The suit was decreed. After the decree, C, one of the members, got the suit property redeemed by making full payment of mortgage money and entered into possession over the suit property. Appellant-plaintiff filed a suit before trial court seeking relief of declaration of title of his 9/l2th share in the suit property with recovery of possession and in the alternative, the relief of partition. The trial court decreed the suit subject to payment towards reimbursement of the amount spent in redeeming the property to defendant no. I, who is the legal heir of C. The trial court’s order was upheld by the first appellate court dismissing the appeal preferred by defendant no. 1. Defendant no. 1 filed second appeal before High Court contending that the appellant’s suit for declaration, partition and recovery of possession without a prayer for redemption of the mortgage property was not maintainable since defendant no. 1 had already subrogated himself in place of original mortgagee on making full payment of mortgage money; and that even if the suit for redemption is filed, it is barred by time under Article 148 of the Limitation Act, 1908. High Court allowed the appeal, set aside the decree under appeal and remanded the case back to the trial court with liberty to amend the pleadings to include prayer for redemption. Pursuant to the order of remand, the pleadings were amended. The suit was once again decreed by the trial court and the First Appellate Court. The second appeal by defendant no. 1 was allowed by the High Court holding that the suit of the appellant was barred by limitation. Hence this appeal. The respondents contended that the suit of the appellant was barred by time under Article 132 and 144 of the Limitation Act, 1961; and that on account of partition in the family the parties had ceased to be co-tenants and were tenants-in-common qua each other and therefore the redemption by the respondent was not and cannot be deemed to be on behalf of the family. =Allowing the appeal, the Court HELD : 1.1. Subrogation rests upon the doctrine of equity and the principles of natural justice and not on the privity of contract. A person, paying money which another is bound by law to pay is entitled to be reimbursed by the other. This is a case of subrogation by the operation of law and hence governed by the first para of Section 92 of the Transfer of Property Act, 1882. The provision recognizes the same equity of reimbursement as underlies Section 69 of the Indian Contract Act, 1872. Such a payment made, carries with it, at times, an equitable charge. Section 92 of the Transfer of Property Act does not have the effect of a substitutee becoming a mortgagee. The provision confers certain rights on the redeeming co-mortgagor and also provides for the remedies of redemption, foreclosure and sale being available to the substitutee as they were available to the substituted. These rights he exercises not as a mortgagee reincarnate but by way of rights akin to those vesting in the mortgagee. The co-mortgagor can be a co-owner too. A property subject to mortgage is available, as between co-mortgagors for partition, of course, subject to adjustment for the burden on the property. One of the co- mortgagors, by redeeming the mortgage in its entirety, cannot claim a right higher than what he otherwise had, faced with a claim for partition by the other co-owner. He cannot defeat the legal claim for partition though he can insist on the exercise of such legal right claimed by the other co- owner-cum-co-mortgagor being made subject to the exercise of the equitable right to claim contribution vesting in him by subrogation. [846-H, 847-B-E] Variavan Saraswathi & Am. v. Eachomoi Thevi & Ors., [1993] Suppl. 2 SCC 201, relied on. Ganeshi Lal v. Joti Pershad, [1953] SCR 243 and Valliama Champaka Pillai v. Sivathanu Pillai & Ors., [1979] I SCC 129, distinguished. Rashbehary Ghose on Law of Mortgage, Seventh Edition 1997, referred to. 1.2. The suit filed by the appellant is a suit for partition primarily and predominantly and the relief of redemption having been sought for only pursuant to the direction made by the High Court in its order of remand, the limitation for the suit would be governed by Article 120 of the Limitation Act, 1908. For a suit for partition, the starting point of limitation is when the right to sue accrues, that is, when the plaintiff has notice of his entitlement to partition being denied. In such a suit, the rights of the redeeming co-mortgagor would be to resist the claim of non-redeeming co-mortgagor by pleading his right of contribution and not to part with the property unless the non-redeeming co-mortgagor had discharged his duty to make contribution. This equi-table defence taken by the redeeming co-mortgagor in the written statement would not convert the suit into a suit for redemption filed by the non-redeeming co-mortgagor. [847-F- H, 848-A] 2. When the matter reaches a forum, superior to the one which had made the order of remand earlier, it can go into the question of legality or validity of the order of remand. The bar enacted by Section 105(2) applies upto the level of that forum which had remanded the matter earlier. Section 105(2) has no applicability to the jurisdiction exercisable by this Court by reference to Article 136 of the Constitution. This is for the reason that no appeal lies to this Court against an order of remand; an appeal under Article 136 of the Constitution is only by special leave granted by this Court. It is settled law that Section 105(2) has no applicability to the Privy Council and to the Supreme Court. In the present appeal preferred against the judgment and decree passed by the High Court an appeal arising from the proceedings held pursuant to the earlier order of remand, the correctness of the order of remand can be examined and gone into by this Court. [848-F-H; 849-A] Kshitish Chandra Rose v. Commissioner of Ranchi, [1981] 2 SCC 103 and Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., [I960] 3 SCR 590, referred to. 3. Whether joint-tenants or tenants-in-common, the fact remains that the status of the plaintiff and defendant was that of co-mortgagors, one being a non-redeeming co-mortgagor and the other being a redeeming co-mortgagor. The law would remain the same and its applicability would not change whether the parties are treated as co-tenants or tenants-in-common. The suit filed by the appellant is held as one within limitation. The plaintiff is held entitled to the preliminary decree for partition. [849-C-D] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 13133 of 1996. =2004 AIR 1206, 2003(6 )Suppl.SCR832 , 2004(12 )SCC754 , 2003(10 )SCALE956 ,

CASENO.: Appeal (civil) 13133 of 1996 PETITIONER: Krishna Pillai Rajasekharan Nair (D) by Lrs. RESPONDENT: Padmanabha Pillai (D) by Lrs. & Ors. DATE OF JUDGMENT: 15/12/2003 BENCH: R.C. LAHOTI & ASHOK BHAN JUDGMENT: J U D G M E N T R.C. LAHOTI, J. The facts relating to the property which forms subject-matter of suit … Continue reading

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