THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR S.A.No.576 of 1999 %09-09-2010 #Ramavath Hasala Naik ….petitioner Vs. $ Sabahavath Gomli Bai …. Respondent !Counsel for the Appellant: Sri S.Srinivass Reddy Counsel for the Respondent: Sri O.Manohar Reddy <Gist : >Head Note: ? Cases referred: 1. 1991(2) APLJ NRC 56 2. SC 1971, Volume 3, page 204 3. 2008(1) ALD 748 4. AIR 1972 SC 2299 5. 2004(2) ALD 31 (SC) THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR S.A.No.576 of 1999 JUDGMENT: This is an appeal by the defendant against decree of injunction granted in favour of the plaintiff by the lower appellate Court in A.S.No.20 of 1992, dated 11.12.1997. For the sake of convenience, the parties are referred to as they are arrayed in the suit. The respondent/plaintiff filed a suit for injunction simplicitor with respect to suit schedule land while contended that the said land was gifted to her by her father (since deceased) under Ex.A.1 registered gift deed, dated 17.5.1985. The said gift deed is attested by PW.2 and that the plaintiff is paying the land revenue with respect to the said land as evidenced by Ex.A.2 land revenue receipt dated, 07.01.1989, while asserting that the plaintiff is in possession and defendant is threatening to dispossess the plaintiff she filed the present suit for injunction on 13.07.1989. The appellant, who is the defendant resisted the suit by filing a written statement claiming that the property is ancestral property of the father and that the father had no right to execute the gift of a part thereof and that the document of gift relied on by the plaintiff and marked as Ex.A.1 in the suit is void. The trial Court framed the issues as follows: 1. Whether the plaintiff is entitled to permanent injunction as prayed for? 2. Whether the gift deed dated 17.5.1985 is valid? 3. To what relief? While considering the same issues on the basis of evidence of plaintiff namely PW.1 and that of the attestor of gift deed PW.2 and Exs.A.1 and A.2 marked on behalf of the plaintiff together with defendant’s evidence as D.W.1 and pattadar pass book of his land as Ex.B.1, came to the conclusion that Section 30 of the Hindu Succession Act saves only testamentary dispositions and as such the father of the plaintiff had no right to execute the gift deed. Ex.A.1 gift deed was therefore held void. The trial Court discussed the evidence relating to possession as claimed by the plaintiff but on the basis of its finding that the gift deed is void, dismissed the suit holding that plaintiff ought to have filed a suit for partition but cannot maintain the suit for permanent injunction. The said decree was reversed by the lower appellate Court by taking into consideration several admissions of the defendant as D.W.1 and on the basis of evidence laid by the plaintiff, came to the conclusion that the aspect of validity of gift deed did not arise in a suit of this nature and that the trial Court committed error in not even choosing to discuss the aspect of the possession of the plaintiff and dismissing the suit. The appellate Court in particular, noted the admission of the defendant that he is not in possession and enjoyment of suit schedule property and that he is in exclusive possession and enjoyment of another Ac.1.22 cents in the same survey number. The appellate Court, therefore, was of the view that the plaintiff has established her case and she is entitled to injunction. The said appellate Court’s decree is questioned in this Second Appeal and at the time of admission, this Court has admitted the appeal on the following substantial questions of law: 1. Whether the plaintiff is entitled to permanent injunction without establishing her possession on the date of filing of the suit? 2. Whether the conveyance made in respect of a joint family property without the consent of the other coparcener is valid? 3. Whether a relief of permanent injunction be granted against a coparcener? Heard both sides. The learned counsel for the appellant raised contentions that the gift deed itself is void as the father had no right to gift away part of the ancestral property. He also submits that the admissions of the defendant are clearly explainable and that itself is not sufficient to decree the suit of the plaintiff. Learned counsel also relied upon judgment of this Court reported in V.Venkataramayya v B.Venkateswara Rao[1], for the proposition that Section 30 of the Hindu Succession Act saves only testamentary dispositions of joint family properties by coparceners and disposals by gifts are not saved and such gifts are void. He also relied upon the unreported judgment of the Supreme Court in Mukund Singh v Wazir Singh[2], which is found in unreported judgments of the Supreme Court also for the proposition that a gift made by an adoptive father of coparceners property is void. The learned counsel for the respondent on the contrary contends that the suit being only for injunction, the validity or otherwise of the said gift deed was not a germane consideration and the Court below ought to have decided the suit only on the basis of proof of possession by the plaintiff on the date of suit. He also submits and relies upon decision of this Court in Alla SeshuKumar v Alla Radha Krishna[3] for the proposition that in a suit for injunction, courts should concentrate on the aspect of possession rather than the issue of title. Learned counsel also places reliance upon admissions of the defendant as D.W.1 and supports the appellate Court’s judgment. I have considered the submissions above in the light of the substantial questions of law, as framed by this Court so far as first question is concerned. On examination of the records, it is noticed that the plaintiff has laid evidence of herself and that of PW.2 in support of her claim, for possession and she also has filed Ex.A.2 land revenue receipt dated 07.01.1989. Alleging threat and interference, the suit itself was filed on 13.07.1989 ie., six months after Ex.A.2. Further the defendant in his evidence as D.W.1 in chief-examination itself states that “I am in possession of Ac.1.22 cents in suit survey No.”_____”. “The suit property is not in my possession”... “Plaintiff obtained document from my father during my absence”…. “I am not aware of the document”. Further in the cross-examination he states that “I am managing Ac.1.22 cents only. I have no landed property except Ac.1.22 cents in suit survey number. Ac.1.22 cents is at one place. I learnt about the document executed by my father after receiving notice. I have seen PW.2”. The case of the defendant as is appearing from the written statement and evidence as D.W.1 clearly shows that he is in exclusive possession of another Ac.1.22 cents, which is not subject matter of the present suit. Apparently in spite of noticing the Ex.A.1 gift deed, defendant has not taken any steps to challenge or to cancel the said document. The defendant specifically admits that he is not in possession of the suit land and the plaintiff establishes the possession of the property on the basis of land revenue receipt Ex.A.2, while no such document is produced by the defendant to establish his possession over the property. I am, therefore, inclined to agree with the finding of the lower appellate Court that plaintiff has proved her possession on the date of suit and Ex.A.1 gift deed though impeached by the defendant in the written statement, this document is dated almost five years before the suit and in the absence of any action by the defendant till now, the validity or otherwise of the gift deed could not have been decided by the trial Court in a suit for injunction. The aspect of title, therefore, is rightly kept open by the lower appellate Court. But, however, for the purpose of present suit for injunction, it prima facie establishes title of the plaintiff and more importantly plaintiff has proved her possession. It is well settled by the decision of the Supreme Court as early as in 1972 that in a suit for injunction what is material, is only the aspect of possession. (See M.K.Setty v M.V.L.Rao[4] ). In addition to that it would be important to notice another judgment of the Supreme Court in Rame Gowda v M.Varadappa Naidu[5] which held as follows: “So far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightly owner who has been wrongfully dispossessed of land may retake possession if he can do so specifically and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightly owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of “settled possession”: i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of anumus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession. Therefore when title of either party was not proved and plaintiff was found to be in settled possession he would be entitled to relief of injunction restraining defendant from interfering with his possession”. The aforesaid judgment was followed by this Court in the judgment of Alla SeshuKumar v Alla Radha Krishna (3rd supra) referred to above. In view of this, the first substantial question of law framed in this appeal deserves to be answered in favour of the plaintiff. So far as the second question is concerned, the same does not fall for consideration in a suit for injunction simplicitor and that aspect in any case has been left open and the parties are at liberty to seek adjudication of title based on Ex.A.1, if any, in an appropriately framed suit, in accordance with law. The appellant, therefore, is not entitled to any relief. Therefore, the Second Appeal is dismissed. However, there shall be no order as to costs. ____________________ VILAS V.AFZULPURKAR,J 9th September, 2010 PNV [1] 1991 (2) APLJ NRC 56 [2] SC 1971, Volume 3, page 204 [3] 2008(1) ALD 748 [4] AIR 1972 SC 2299 [5] 2004(2) ALD 31(SC)