1 sa226-91 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION SECOND APPEAL NO.226 OF 1991 Guruningappa Somanna Birajdar .. Appellant V/s. Daryappa Sayabanna Birajdar & Others .. Respondents ..... Mr. Tejpal S. Indale for the appellant. Mr. A. S. Khandeparkar for the respondents. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 16, 2011. ORAL JUDGMENT : The Second Appeal is preferred by the original plaintiff. The respondents are the original defendants. The suit was initially filed by the plaintiff simplicitor for injunction. The suit property is land bearing survey No.155, Hissa No.1 admeasuring 4H-70R more particularly described in paragraph No.1 of the plaint. The suit property is stated to be ancestral property of the plaintiff. In the plaint as originally filed, it was contended that the plaintiff was in possession of the suit property and was cultivating the same. The suit was filed on the basis of the cause of action that on 13th August, 1981 the defendants tried to obstruct the plaintiff in agricultural operations on the suit 2 sa226-91 property. The suit was filed on 25th August, 1981. On 5th March, 1993, an amendment was carried out to the plaint by adding paragraph 3A in which it was contended that if for want of evidence, the plaintiff was unable to establish that he was in possession of the suit property on the date of institution of the suit, a decree for possession be passed and an enquiry for ascertaining mesne profits be made. A prayer in the alternative for possession was also accordingly incorporated in the plaint by the said amendment. 2. A reply was filed by the defendants to the application for injunction which was treated as their written statement. In the reply it was contended that the father of the plaintiff died about 9 years prior to the filing of the reply and three years prior to his death, he has sold ½ portion of the suit property on its eastern side to the first defendant for consideration of Rs.6,000/-. It was contended that though the first defendant was placed in possession of the half portion of the suit property, a sale deed was not executed by the father of the plaintiff. It is stated that at the time of demise of the father, the plaintiff was a minor and after he become major, he had agreed to execute the sale deed and accordingly he has made a statement before the Tahasildar on 15th September, 1980. It is alleged that at the instigation of certain villagers, the plaintiff was denying the said statement. 3 sa226-91 It is stated that as a dispute arose between the first defendant and his brother Irappa, at instigation of Irappa, present false suit has been filed. It was contended that at the time of selling half portion on the eastern side, the father of the plaintiff sold remaining half portion to the defendant Nos.4 to 6 for the price of Rs.5,000/- and placed the said defendants in possession. It was contended that during the life time of the father of the plaintiff, the sale deed remained to be executed and after his death, the sale deed was not executed as the plaintiff was a minor. Therefore, it was contended that a suit for injunction was not maintainable as the plaintiff was not in possession. 3. Parties adduced evidence. The trial Court partly decreed the suit. The operative part of the decree passed by the trial Court reads thus: “ The suit is partly decreed with proportionate costs to be paid by the deft. No.4 to 6. Issue permanent injunction restraining the defendant No.4 to 6 from interfering with the plff's peaceful possession and vahivat of western half portion of the suit land. The plff's suit is dismissed against the defendant Nos.1 to 3 and 7 with no order as to the costs. 1, 2, 3, 4, 5, 6 the subsisted in view of the order pending Misc. dairy plff's No.1/85 today.” 4. An Appeal was preferred by the plaintiff for challenging that part of the decree by which the suit was dismissed against 4 sa226-91 the defendant Nos.1 to 3 as regards the eastern part of the suit property. By the impugned Judgment and decree, the Appeal has been dismissed by the learned Additional District Judge. The learned District Judge relied upon a certified copy of the statement of the plaintiff before the Tahasildar and the admissions contained therein regarding the sale of the eastern half portion of the suit property in favour of the first defendant. 5. This Appeal came up for final hearing on 3rd May, 1997. The Appeal was allowed and a decree for possession was passed as regards eastern half of the suit property. Paragraph No.6 of the Judgment of this Court reads thus: “6. Accordingly, judgment and decree dated 15.10.1990 passed by Additional District Judge, Sangli in Regular Civil Appeal No.475 of 1984 and judgment and decree dated 10.10.1984 passed by the Civil Judge, Junior Division, Jath in Regular Civil Suit No. 99 of 1981 so far as it relates to eastern half portion from Survey No.155, Hissa No.1 (dismissing plaintiff's suit against defendant Nos.1 to 3 and 7) are set aside. Thus, plaintiff's suit for possession of eastern half portion from Survey No.155, Hissa No.1 is decreed and defendant Nos.1 to 3 and 7 are directed to hand over possession thereof to the plaintiff herein. Plaintiff will also be entitled for mesne profits which enquiry will be made by the Civil Court, Junior Division, Jath. Plaintiff will be entitled for cost of this litigation throughout.” 6. The respondents filed a Special Leave Petition before the Apex Court. By Judgment and order dated 28th November, 1998, 5 sa226-91 the Apex Court has set aside the Judgment and decree passed by this Court and has remanded the Second Appeal for fresh hearing. The relevant portion of the Judgment of the Apex Court reads thus: “ We have perused the judgment and find that the trial Court has gone into the question of defendants' possession along with the admission of the plaintiff- respondent before the Revenue authority and thereafter decided the matter in favour of the defendants- appellants. In the present case, the High Court, without considering the question of possession of the defendants-appellants as well as the admission of plaintiff before the revenue authority, has interfered with the findings of the two courts below merely on the ground that the defendants-appellants were unable to establish their title over the land in dispute. So far as the question of title of defendants-appellants was concerned, it has to be dealt with along with their plea of possession over the disputed land since three years preceding the filing of the suit and admission of plaintiff-respondent before the Revenue authority. Since this aspect of the matter has not been dealt with, we feel that it would be just and proper to send the case back to the High Court for deciding the appeal afresh after considering the plea of defendant-appellant in respect of their possession over the disputed land coupled with the admission of plaintiff-respondent before the Revenue Court. 7. The learned counsel appearing for the plaintiff-appellant submitted that the alleged statement of the plaintiff recorded by the Tahasildar was in a totally different proceeding in which the plaintiff was summonsed as a witness. He invited the attention of the Court to the evidence of the plaintiff and stated that the plaintiff has explained as to why such erroneous statement was 6 sa226-91 recorded. He stated that the plaintiff has stated in his evidence in the suit that the questions were asked in Marathi language and the plaintiff was replying in Kannada language and, therefore, the statement was not recorded as per the say of the plaintiff. He pointed out that though there was an interpreter, he was not conversant with the Kannada language and the interpreter has committed errors. 8. The learned counsel submitted that apart from the aforesaid aspect, admittedly, there was no sale deed executed by the plaintiff's father in favour of the first defendant. He submitted that admittedly value of the half portion of the suit land was more than Rs.100/- and in view of the provisions of the Section 54 of the Transfer of Property Act, 1882 read with Section 17 of the Registration Act, 1908, the property could have been transferred to the first defendant only by executing a registered conveyance. Relying upon the decision of the Apex Court in the case of Ananda Behera & Anr. V/s. State of Orissa and Anr (AIR 1956 SCC 17), he submitted that no title has been passed to the first defendant on the basis of the alleged oral sale. Relying upon the decision of the Apex Court in the case of V. R. Sudhakara Rao & Others V/s. T. V. Kameshwari [2008(1) Mh. L.J.], he submitted that on the basis of the oral agreement of sale, the protection under Section 53-A of the Transfer of Property Act, 1882 is not 7 sa226-91 available to the purchaser. He submitted that thus, the legal position is that as of today, there is no title vesting in the defendants and therefore, the plaintiff is entitled to a decree for possession. He pointed out that a suit for specific performance for execution of the conveyance was not filed by the first defendant and the said suit is barred by the limitation long back. His submission is that as plaintiff has established exclusive title and as the first defendant has established no title, the decree for possession must follow. 9. The learned counsel appearing for the respondents submitted that the statement of the appellant before the Tahasildar is not disputed. He submitted that the statement was recorded in presence of an interpreter and in any case, till today, no proceeding has been taken out by the plaintiff for correcting the said statement on oath. He submitted that by suppressing his own statement on oath, initially only a suit for perpetual injunction was filed by the plaintiff on the footing that he was in possession and later on, an amendment was carried out seeking relief of possession in the alternative. He, therefore, submitted that such a litigant is not entitled to claim any relief. The learned counsel appearing for the plaintiff by way of rejoinder submitted that this Court has no option but to pass a decree for possession. 8 sa226-91 10. I have considered the submissions. The Appeal has been admitted by this Court on substantial questions of law incorporated in grounds 2 to 4 and 8. The said grounds 2 to 4 and 8 read thus: 2. Whether the Respondents defendants have any title over the suit land on the basis of the alleged oral sale ? 3. Whether any right, title or interest can be transferred by way of oral sale in respect of any immovable property having its value of more than one hundred rupees ? 4. Whether any title can pass under any oral sale of any immovable property which is not permissible under any provisions of the Transfer of property Act ? ....... 8. Whether the so called admission of the appellant which are not unqualified that his father who died 9 years ago has entered into oral sale deed with the respondents will amount to the conclusive proof of the selling of the land ? 11. It must be noted here that this Court while deciding the Second Appeal earlier held that as there was no sale deed executed in favour of the first defendant, he has not acquired any valid or legal title qua the eastern portion of the suit property and the plaintiff being the owner is entitled to a decree for possession. After noting the fact that there is no sale deed executed in favour of the first defendant, the Apex Court has set aside the decree for possession passed by this Court against the first defendant. 9 sa226-91 The Apex Court has set aside the Judgment of this Court by observing that the aspect of admission of the plaintiff before the Revenue Authority has not been considered and the Second Appeal will have to be decided a fresh after considering the plea of the defendants regarding their possession coupled with the admission of the plaintiff before the Revenue Court. 12. As pointed out earlier, the suit was filed on 25th August, 1981 which was a suit simplicitor for injunction which proceeds on the footing that the plaintiff is the owner and the respondents were trying to interfere with his possession over the suit property. A reply to application at Exhibit 5 was filed by the defendants on 12th October, 1981 in which a specific reliance was placed on the admission on oath of the plaintiff in the statement recorded before the Tahasildar on 15th September, 1980. A certified copy of the said statement of the plaintiff was produced before the trial Court. The contents of the said statement were also incorporated in brief. The said statement was to the effect that his father had sold half share of survey No.155/1 from the eastern side to the first defendant and his brother. He further stated that the first defendant and his brother have partitioned the said portion which was purchased by them. In the subsequent part of the statement of plaintiff recorded by Tahasildar, he has reiterated that the ½ share in the suit property has been sold by his father to 10 sa226-91 the first defendant and his brother and that they have been put in possession. He stated that he was willing to execute a sale deed. The said certified copy of the statement of the first defendant records an endorsement by the Tahasildar “read over and admitted to be true”. The said endorsement is below the signature of the plaintiff. As stated earlier, in the reply dated 12th October, 1981, the respondents specifically relied upon the said statement on oath by the plaintiff and the contents thereof. If according to the case of the plaintiff, the said statement was incorrectly recorded as the Tahasildar could not correctly understand the answers allegedly given by him in Kannada language, there was an opportunity to the plaintiff to raise the said contention when the plaint was amended on 5th May, 1983. While carrying out amendment to incorporate a prayer for possession, the plaintiff could have raised the contention regarding the alleged incorrect recording of the statement by the Tahasildar. However, no such amendment was carried out. 13. The plaintiff stepped into the witness box. In paragraph No.2 of his examination-in-chief he had tried to explain his earlier statement before the Tahasildar. Relevant portion of the paragraph reads thus: “2. In between deft. No.1 and his real brother 11 sa226-91 Vithappa Sayabanbna Birajdar there was a vahivat suit sought in the Court of Mamlatdar at Jat wherein I was examined as a witness on behalf of deft. No.1. The Mamlatdar was questioning in Marathi and I was replying in Kannada and as such he did not record my statement as per my say and hence I deny the contents of my statement into. I had not stated before the Mamlatdar that my father had sold the eastern side portion of the suit land to the extent of 8 annas share to the deft. No.1 and Vithappa Sayabanna Birajdar and I had also not admitted the possession of the deft. No.1 in ½ share. I had also not agreed to execute the sale deed.” It is interesting to note what stated in the cross- examination of the plaintiff and in particular paragraph 5 thereof. “5. It is true that I had offered my testimony in the said proceeding. I identify my signature upon my original statement before the Tahasildar now shown to me. However I deny the contents of red bracketed paras from the said statement. I identify my signature upon every page of the said statement Exh.63A. It is true that my present advocate Shri. P. G. Mahajan had then cross-examined me. The Tahasildar who had recorded my statement was not on cross-terms with me. It is true that there was an interpreter appointed during the conduct of proceeding before Mamlatdar. However, he was not well conversant with Kannada. The interpreter was erringly interpreting my statement. I had not complained to anybody after recording my statement before Tahasildar, about the veracity.” (underlines added) 14. Thus, the plaintiff did not challenge that his statement on oath as a witness was recorded by the Tahasildar. He admitted his signatures on his original statement. He identified his signature appearing on every page of the said statement. 12 sa226-91 However, he denied the correctness of the aforesaid admissions which are recorded in his statement. He also admitted that the Tahasildar who recorded statement was not on cross-terms with him and that there was an interpreter appointed during the conduct of the proceedings before the Tahasildar. In the cross- examination, he came out with the case that the interpreter erroneously interpreted his statement. Moreover, admittedly the plaintiff never complained to anybody about the alleged errors in statement recorded by the Tahasildar. In his examination-in-chief, he did not disclose that an interpreter was present at the time of recording of his statement. He disclosed this in the cross- examination. Thus, after October 1981, when the reply was filed by the defendants relying upon the statement, there was an opportunity for the plaintiffs to explain the said statement by carrying out amendment to the plaint. There was an opportunity to the plaintiff to approach the Tahasildar for seeking rectification of the said statement. But nothing of that sort was done by the plaintiff and for the first time in his evidence, he came out with the case that the Tahasildar did not record the statement as per his say as the answers were given by him in Kannada language. However, he admitted his signatures on the statement and the fact that the same was recorded in presence of the interpreter. Suffice to say that the stand taken by the plaintiff before the 13 sa226-91 Court of law is completely dishonest. 15. The plaintiff was fully aware of his statement on oath recorded before the Tahasildar. In fact, the said statement ought to have been disclosed by the plaintiff at the time of filing of suit when he claimed discretionary and equitable relief of perpetual injunction on the footing that he was in possession of the entire suit property. The statement on oath of the plaintiff before the Tahasildar clearly records that his father sold half portion of the said land to the first defendant and his brother who were put in possession of the said half portion. 16. It will be necessary to make a reference to the decision of the Apex Court in the case of S. P. Chengalvaraya Naidu (Dead) By LR’s. V/s. Jagannath (Dead) by LR’s. And Others [1994 (1) SCC 1] in paragraph No.5 of the Judgment of the Apex Court has observed thus: “5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting 14 sa226-91 justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgeres and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gain indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” (Underlines added) In paragraph 6, Apex Court has proceeded to observe thus: “6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all thesee facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the Court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital documents in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” (Underlines added) 15 sa226-91 17. The plaintiff filed a suit for injunction which was governed by the Specific Relief Act, 1963. This is a clear case where the plaintiff did not come to the Court with clean hands. The plaintiff suppressed his own statement on oath made as a witness which was recorded by Tahasildar in a judicial proceeding. Though, there was an opportunity to amend the plaint and to explain the said statement, the plaintiff did not avail the said opportunity. Moreover, at the time of evidence, he came out with a totally unacceptable case that the Tahasildar did not record his statement correctly as the answers given by him were in Kannada language. The plaintiff while filing the suit suppressed a very important document in the form of his own statement which showed that he was not in possession. Thus, as observed above, the case pleaded by the plaintiff is certainly based on falsehood. The plaintiff while filing the suit suppressed the fact that he had deposed on oath before the Tahasildar in which he clearly stated that possession of eastern half portion of the suit property was handed over by his father to the first defendant. Therefore, this is a fit case where the ratio of decision of the Apex Court in the case of S. P. Naidu (Supra) will have to be applied by throwing out the case of the plaintiff. As far as the legal position regarding title is concerned, that poses no difficulty. Even assuming that the 16 sa226-91 learned counsel appearing for the appellant is right in contending that the plaintiff continues to be the owner, this is not a case where Courts below could have granted any relief to the plaintiff, much less an equitable relief under the said Act of 1963. The plaintiff had approached the Court for equitable relief of perpetual injunction. 18. Hence, no case for interference is made out. The Second Appeal is dismissed. The appellant to pay costs