VISHRAM @ PRASAD GOVEKAR & ORS. versus SUDESH GOVEKAR (D) BY LRS. & ORS.
[2016] 12 S.C.R. 174, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Ratio
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B 
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[2016] 12 S.C.R. 174 
VISHRAM @ PRASAD GOVEKAR & ORS. 
v. 
SUDESH GOVEKAR (D) BY LRS. & ORS. 
(Civil Appeal Nos. 12068-12070of2016) 
DECEMBER 14, 2016 
[A. K. SIKRI AND N.V. RAMANA, JJ.] 
Suit - Ownership and possession - Property dispute between 
the parties related to each other - Suit property acquired by the 
father as a permanent grant for the construction of the house -
Suit for specific performance and mandatory injunction by 
respondents(children and son-in-laws of the owner)_ against the 
appellants(owner :S brother and others) - Sought demolition of the 
construction carried out by the appellants on the suit property -
Dismissal by trial court, however, allowed by first appellate court 
and High Court - On appeal, held: Respondents successfully 
D discharged their onus of proving the ownership by filing appropriate 
documents - Statement about the respondents and appellants as 
to-owners in title and in possession pertains to adjoining property 
not suit property -Plea of the appellants that relief for possession 
should have been sought is clearly untenable - Respondents sought 
relief of mandatory injunction seeking demolition of the construction 
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carried out by the appellants on the suit property as it was illegally 
put up by the'-tlppellants - Appellants have made new construction 
on the suit property and its demolition would result in wastage of 
the expenditure incurred on the construction - To balance the 
equities, in exercise of powers
u/Art.142, respondents to take 
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possession of the house without its demolition, and, at the same 
time, compensate the appellants by paying the cost of 
construction - Constitution of India - Art. 142. 
Dismissing the appeals, the Court 
HELD: 1.1 The first appellate court as well as the High 
G Court held that the plaintiffs are the owners of the suit property, 
which rights they have inherited from VG, father of plaintiffNos.1-
3. Findings of the courts below are that the suit property, was 
acquired by VG from Communidade of Anjuna as a permanent 
grant for the construction of the house. In order to prove the 
ownership, the said grant was produced op record as also the 
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BYLRS. 
plaintiffs filed evidence of the Inventory Proceedings initiated 
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upon the death of VG which described_the suit property. Duly 
promulgated survey records showing the property standing in 
the name of VG were also produced. While holding that conclusion 
of the first appellate court that the said documents clearly evinced 
the ownership of VG, the High Court analysed these documents, B 
coupled with the defendants' admission. [Para 15) [184-F-H; 185-
A) 
1.2 A closer and minute look into the pleadings would show 
that there is no admission on the part of the plaintiffs about the 
co-ownership insofar as suit property is concerned. In the plaint, c 
the plaintiffs have given the description of the suit property as 
bearing Survey No. 251/2. It is mentioned that VG acquired this~ 
property from Communidade of Anjuna; and that on this suit 
property, incomplete structure was raised by VG which the 
plaintiffs referred to as the 'suit house'. Thus, the ownership is 
claimed by the plaintiffs through VG who acquired the property 
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bearing Survey No. 251/2 (the suit property) on which he 
constructed incomplete structure (the suit house). The plahitiffs 
have stated that towards the eastern side of the suit property, 
there exists another property bearing Survey No. 25114. The 
plaintiffs pleaded that on thl$ land, whereupon a house is also 
constructed0 belonged to their grandfather JG (father of defendant 
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No.1) and it 'is this property which the plaintiffs say is in the co-
ownership of the plaintiffs and defendants. Thus, the statement 
about the plaintiffs and defendants as co-owners in title and in 
'possession pertains to property bearing Survey No. 251/4 which 
is not the subject matter of the suit. As far as the suit property is 
concerned, it bears Survey No. 25112, in respect of which, there 
is no admission on the part-of the plaintiffs. [Para 16) (186-G-H;' 
l87-A-E] 
. 
· 1.3 Once this aspect of so-called admission of the plaintiffs 
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is found to be non-existing, the entire edifice of the argument of G 
the defendants crumbles down. This is also a complete answer to 
the argument that the suit of the plaintiffs was not maintainable 
in the absence of any declaration as to title. The plaintiffs ·had 
categorically claimed in the plaint that insofar as suit property 
bearing Survey No. 251/2 is concerned, they are the owners 
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A thereof. Of course, they had to prove the ownership by filing 
appropriate documents because of the reason that the defendants 
in their written statement denied plaintiffs' ownership claiming 
that the property covered by Survey No. 251/2 was, in fact, allotted 
to JG and not VG. The plaintiffs successfully discharged their 
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onus. [Para 17] (187-E-H] 
1.4 There is no dispute that in the revenue records property 
stood in the name of VG and not JG. The first appellate court 
rightly held that the plea with regard to the real owner of the 
property being JG could not be gone into as it was barred by the 
provisions of Section 4(2) of the Benami Act. Though there is no 
merit in the arguments of the appellants that the Benami Act is 
not applicable, in any case there is hardly any material produced 
by the defendants to support that real owner was JG. This claim 
is made only on the ground that it is JG who had got the suit 
property acquired in the name of his son VG. That by itself would 
not make JG as the owner of the suit property. [Para 18] [188-A-
C] 
1.5 The defendants relied upon the pleadings in the suit 
and submitted that the plaintiffs were not in possession of the 
suit property as in the plaint the plaintiffs have themselves stated 
that they were residing at different places in Goa and not in the 
suit property. However, that is a distorted reading of the plaint. 
Therein, it is only stated as a
fact that for the purpose of 
employment, these plaintiffs were residing at Margao, Goa or 
Ponda, Goa. At the same time, it is nowhere stated or admitted 
that they were not in possession of the suit property. On the 
contrary, it is specifically stated that since they were staying away 
from the suit property, they used to visit the suit property 
occasionally. This makes the stand of the plaintiff categorical to 
the effect that they claimed their possession over the suit property. 
On the other hand, insofar as defendants are concerned, the plaint 
G averred that they were residing in property bearing Survey No. 
25114 and the house situated therein. In. fact, co-o-wnership and 
co-possession of that property is also claimed. It is in this backdrop 
the case made out by the plaintiffs is that when plaintiff Nos. 1, 3 
and 5 visited the suit property on December 30, 2006, they found 
that the 'suit house' had been demolished by the defendants on 
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which they were carrying a new construction. In the light of these 
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pleadings, the plaintiffs sought the relief of mandatory injunction 
seeking demolition of the construction carried out by the 
defendants on the suit property bearing Survey No. 251/2 as it 
was illegally put up by the defendants on plaintiffs' land. Therefore, 
the submission that relief for possession should also have been 
sought is clearly untenable. [Para 20) [188-D-H; 189-A] 
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1.6 The defendants have made new construction on the 
property of the plaintiffs. Demolition of the said construction is 
not going to help any party. It would result in wastage of the 
expenditure incurred on the construction. No doubt, the structure 
is constructed illegally by the defendants. Nevertheless, plaintiffs 
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can make use thereof. Therefore, equities can be balanced if the 
plaintiffs take possession of the house in question without its 
demolition, but, at the same time, compensate the defendants by 
paying the cost of construction. In these circumstances, in the 
execution petition which is filed, or ought to be filed by the D 
plaintiffs, the executing court would appoint a Surveyor/Valuer 
who would fix the cost of construction that would be reimbursed 
by the plaintiffs to the defendants. These directions are given in 
exercise of powers under Article 142 of the Constitution of India 
in order to do complete justice in the matter and to see
that the 
defendants also do not suffer and the structure put by them is not 
wasted. [Paras 22, 23] [190-C-F) 
Anathula Sudhakar v. P. Buchi Reddy (Dead) By Lrs. & 
Ors. (2008) 4 SCC 594 : 2008 (5) SCR 331 - held 
inapplicable. 
State of Punjab & Ors. v. Rafiq Masih (Whitewasher) 
(2014) 8 SCC 883 : 2014 (8) SCR 228; Gaiv Dinshaw 
Irani & Ors. v. Tehmtan Irani & Ors. (2014) 8 SCC 
294 - relied on. 
Case Law Reference 
2008 (5) SCR 331 
2014 (8) SCR 228 
(2014) 8 sec 294 
held inapplicable 
relied on 
relied on 
Para 11 
Para 23 
Para 24 
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[2016] 12 S.C.R. 
A 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 12068-
B 
12070 of2016. 
From the Judgment and Order dated 29.11.2013 of the High Court 
ofBombay at Goa in Second Appeal No. 138 of2012 with Stamp Number 
(Appln) No. 2279 of2013 and Civil Application No. 193 of2012. 
Huzefa Ahmadi, Sr. Adv., Ninad Laud, Karan Mathur, Anjuman 
Tripathy, Jayant Mohan, Ad vs. for the Appellants. 
Ms. A. Subhashini, Adv. for the Respondents. 
The Judgment of the Court was delivered by 
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A.K. SIKRI, J. I. Leave granted. 
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2. It is a property dispute between the parties who are related to 
each other. It becomes desirable to take note of their relationship before 
proceeding with the factual background that led to the dispute. Following 
is the sketch of the family tree which describes the parties: 
f6MILYIBfli 
IJ.TE J..\GANNA.i'M Go\i'tl(AR --··---"4' Uito LlhtVa:'.U 
(Oef.fndW 3/R~ 
e; 
,...------------------, 
I 
~-1 
Vishram ·wlf&---). Sunrta
VISHRAM @ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 
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3. As can be gathered from the above, respondent Nos. I to 3 are 
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the children and respondent Nos. 4 and 5 are the sons-in-law of late 
Vassudev Govekar. On the other hand, appellant No.I is the uncle 
(brother of late Vassudev Govekar) of the respondents. Appellant No.2 
is the wife of appellant No. I and appellant No.3 is their son. Vassudev 
Govekar and Vishram (appellant No. l) are the sons oflate Shri Jagannath 
Govekar, whose wife Lilavati (since deceased) was also arrayed as 
defendant No.3 in the suit that was filed by respondent Nos. 1to5. The 
three appellants herein were respondent Nos. I, 2 and 4 in the said suit. 
THE SUIT 
4. The suit filed by respondent Nos. I to 5 (hereinafter referred to 
as the 'plaintiffs' for the sake of convenience) against the appellants 
(hereinafter referred to as the 'defendants') was for specific 
performance and mandatory injunction. It pertained to the property known 
as 'Devalvadi' bearing Survey No. 251/2 situate at Chinvar in the village 
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of Anjuna, Bardez, Goa, having an area of 1000 sq. mts. (hereinafter 
referred to as the 'suit property'). It was averred in the plaint filed by 
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the plaintiffs that this property was acquired by late Shri Vassudev 
Govekar from the Communidade of Anj una, Bardez, Goa under file No. 
131 /1963 on February 24, 1970 as a permanent grant for the construction 
of the house. Towards the eastern side of the
suit property there exists 
another property bearing Survey No. 251/4 which belonged to their 
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grandfather late· Shri Jagannath Govekar and thereupon a house was 
constructed by him. It was further averred that the plaintiffs and 
defendants are the co-owners in title and in possession of the said property 
bearing Survey No. 25114 as well as the house situtated thereupon. 
Defendants have been residing in the suit property and insofar as plaintiffs 
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are concerned, they were residing away from the suit property to earn 
their livelihood. It was also averred that late Shri Vassudev Govekar, 
during his lifetime, was enjoying the suit property and after his death the 
plaintiffs and other co-owners were enjoying the said property and the 
house without interruption. However, when plaintiff Nos. 1, 3 and 5 
visited the suit property on December 13, 2006, at about 5:00 p.m., they 
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were shocked to see that the suit house was demolished and in its place 
a new construction of structure having 18 sq.mts. length and 12.20 sq.mts. 
width, comprising 219.60 sq.mts. area, was being constructed and the 
construction had reached from ground level to slab level height. The 
plaintiffs protested this kind of invasion by the defendants with a request 
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for them to stop the construction of the said illegal structure. It did not 
yield any result. They everi complained to the Village Panchayat and 
police station, but without any positive effect. This led them to file the 
aforesaid suit with following prayers: 
"(a) the Defendants, their family members, agents, servants 
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and/or any person acting on their behalf and/or under their 
instructions be restrained by way of permanent injunction 
from interfering with the suit property and to the suit illegal 
structure in whatsoever nature; 
(b) the Defendants be directed by way of mandatory 
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injunction to demolish the suit illegal structure; 
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(c) the temporary injunction in terms of prayer (a) above 
be granted; 
(d) ad-interim ex~parte relief in terms of prayer (c) above 
granted; 
(e) any other reliefs which deem fit and proper be kindly be 
granted in favour of the Plaintiffs; 
(f) costs ofthe suit be awarded to the Plaintiffs." 
S. The defendants contested the suit by filing their written 
statement and, inter alia, contended that during the lifetime ofVassudev 
Govekar itself, he had precluded himself from enjoying the suit property. 
It was pleaded that Talhao No. 168 of Communidade of Anjuna was 
actually acquired by Jagannath Govekar (father of defendant No. I and 
Vassudev), who had constructed a house, which was in occupation of 
the defendants since its construction in the year 1969. It was
further 
pleaded that insofar as property bearing Survey No. 25114 is concerned, 
that belonged to defendant Nos. I and 2, who were in exclusive possession 
thereof. It was also denied that Vassudev had made any construction in 
the suit property as he had left the fa~nily to go to Vasco Da Gama in the 
year 1957 where he was employed in Kamat Garage. 
JUDGMENT OF THE TRIAL COURT 
6. The trial court, after framing the issues, recording the evidence 
and hearing the arguments, dismissed the suit filed by the plaintiffs vide 
its judgment dated March 30, 2012. The plaintiffs challenged this judgment 
by preferring first appeal under Section 96 of the Code of Civil Procedure,
VISHRAM @ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 
BY LRS. [A.K. SIKR1, J.] 
1908, which was heard by the learned Additional District Judge, who, 
vide his judgment dated July 24, 2012, allowed the appeal of the plaintiffs 
and decreed the suit. It was now the turn of the defendants to challenge 
the said decree passed by the first appellate court and, thus, second 
appeal was filed by them in the High Court. The High Court, vide 
impugned judgment dated November 29, 2013, dismissed the appeal 
thereby affirming the decree passed by the lower appellate court. 
7. We may mention at this stage that the decree which is passed 
by the first appellate court is in the following terms: 
"It is ordered that appeal is allowed. Consequently, the 
impugned Judgment and Decree is quashed and set aside. 
Hence, the suit filed by the plaintiffs stands decreed, with 
costs. The defendants, their family members,. agents, 
servants and/or under their instructions are hereby 
restrained, by way ofpermanent injunction, from inte1fering 
with the suit property and the suit illegal structure. The 
defendants are also directed, by way of mandatory 
injunction, to demolish the suit illegal structure, within three 
months from the date of this Judgment." 
8. Insofar as the trial court is concerned, it had returned the findings 
that a cloud was raised over the title of the plaintiffs and further that 
they were not in possession of the suit property. The trial court also 
recorded a finding to the
effect that it is the defendants who were in 
possession of the suit property. In view thereof, as per the trial court, in 
the absence of prayer for seeking possession, the plaintiffs were not 
entitled for an injunction simpliciter. As regards the ownership, the trial 
court held that though Vassudev Govekar did not have title to the suit 
property, the said property came to be enlisted in Inventory Proceedings 
which does not create any title in favour of the plaintiffs. The suit house 
stands in the name of Lilavati (defendant No.3), who is the wife of 
Jagannath Govekar and, therefore, plaintiffs were not the sole owners 
of the said property. 
From the aforesaid, it is clear that as per the trial court, Vassudev 
Govekar was not the owner; plaintiffs were not in possession; and 
defendants were found in possession. In these circumstances, the suit 
for injunction simpliciter was not maintainable without there being a relief 
seeking possession of the suit property as well. 
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JUDGMENT OF THE FIRST APPELLATE COURT 
9. The first appellate court overturned the aforesaid findings by 
coming to the conclusion that the plaintiffs were able to successfully 
prove that they were the owners of the suit property and further that 
defendants had no righttherein. For arriving at this conclusion, the learned 
Additional District Judge took note of survey records which stood in the 
name of Vassudev Govekar. Even, receipts of payments to the 
Communidade in respect of the suit property stood in the name of 
Vassudev Govekar. According to the learned Additional District Judge, 
defendants had even admitted that the grant of suit property by 
Communidade was in the name of Vassudev Govekar. The learned 
Judge rejected the contention of the defendants that the plaintiffs could 
not prove the ownership in the absence of title documents and only on 
the basis of Inventory Proceedings. According to him, allotment in the 
Inventory Proceedings could not be said to be a ;.i,;llity, more so, when 
plaintiffs had proved on record that grant was in the name ofVassudev 
Govekar and further that survey records were also standing in the name 
of the plaintiffs, which led to presumption ofownership in their favour. 
"No doubt, it was Jagannath Govekar (father ofVassudev Govekar) who 
had applied for grant in the name ofVassudev Govekar. However, as 
per the learned Additional District Judge, when the property
stood in the 
name of Vassudev Govekar, Section 4 of the Benami Transactions 
(Prohibition) Act, 1988 (hereinafter referred to as the 'Benami Act') 
precluded the defendants from taking such a defence that the property 
in fact belonged to Jagannath Govekar. 
As far as possession of the suit property is concerned, the learned 
Additional District Judge found that though the defendants claimed that 
~hey were in possession of house bearing No. 1653(1), in the electoral 
roll, against the name ofdefendant No. I, house No. 1653 was mentioned. 
; 
On the aforesaid basis, the first appellate court proceeded further 
to hold that since the plaintiffs had succeeded in proving that they are 
the owners of the suit property, the construction put up by the defendants 
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in the said property was illegal. Therefore, the plaintiffs were also entitli;:d 
to the reliefof mandatory injunction and passed the decree for demolishing 
the illegal construction. It was further held that relief for demolishing of 
illegal construction in substance was for possession of the property and, 
thus, the suit in the said form was maintainable. 
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VISHRAM@ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 
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10. The High Court has concurred with the aforesaid approach of 
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the first appellate court. 
ARGUMENTS OF THE APPELLANTS/DEFENDANTS 
11. Before us, following contentions were raised by Mr. Huzefa 
Ahmadi, learned senior counsel appearing for the defendants (appellants 
herein): 
(1) The suit filed_by the plaintiffs is not maintainable forthe reason 
that they did not pray for the decree of possession, despite 
admitting that it is the defendants who were in possession of the 
suit property. It was, thus, argued that in the absence of any 
relief for possession, such a suit could not have been filed. For 
this, he placed reliance on the judgment of this Court in A11athula 
. Sudhakar v. P. Bue/ii Reddy (Dead) By Lrs. & Ors.' 
(2) Maintainability of the suit was questioned on the ground that' 
the plaintiffs did not even seek any declaration as to title and had 
made a prayer simpliciter for injunction even when there was 
cloud over the title. 
(3) Findings of the High Court to the effect that the owner of the 
property as per the records is Vassudev Govekar and plea of the 
defendants that it actually belonged to Jagannath Govekar was 
hit by the provisions of Section 4(2) of the Benami Act was 
challenged on the ground that the Benami Act came into force 
only on May 19, 1988, whereas the transaction in question was 
prior to the said date and, therefore, the Benami Act was not 
applicable in
the instant case. 
12. In respect of the aforesaid arguments, the learned senior 
counsel submitted that in para 10 of the plaint, the plaintiffs had themselves 
admitted that they were not residing in the suit property and, thus, not in 
possession. Further, in para 5 of the plaint, the plaintiffs had admitted 
that the plaintiffs and defendants were co-owners in title and in possession 
of the suit property. It was, thus, argued that~; ~iew of these admissions, 
the findings of the courts below about joint possession or that the plaintiffs 
were the exclusive owners of the suit property was clearly erroneous. 
ARGUMENTS OF THE PLAINTIFFS/RESPONDENTS 
13. Ms. A. Subhashini, learned counsel appearing for the plaintiffs 
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1 (2008) 4 sec 594 
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A (respondents herein), on the other hand, submitted that the suit was 
maintainable in the fonn in which it was filed in view of specific findings 
recorded by the two courts below that the plaintiffs were in possession 
of the suit property which was sought to be interfered with by the 
defendants. She further argued that the approach of the two courts 
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below that relief of mandatory injunction was in fact in the nature of 
seeking possession was correct in fact and in law and, therefore, no 
interference was called for. Likewise, it was argued that the title to the 
property in question was clearly proved on the basis of documents 
showing that owner of the property was Vassudev Govekar and as 
successors thereof, the ownership devolved upon them. Therefore, it 
was not necessary for the plaintiffs to have sought for the relief of 
declaration and possession. It was submitted that the trial court had 
committed a grave error in observing that there was a cloµd raised over 
the plaintiffs title or that they were not in possession, which was rightly 
rectified by the first appellate court and these findings were upheld by 
D the High Court. Thus, according to the learned counsel, no substantial 
question of law arises and appeals be dismissed. 
OUR DISCUSSION 
14. Since the objection of the defendants to the maintainability of 
the suit is founded on two aspects, namely: (i) the ownership of the suit 
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property in
question, and (ii) possession thereof, it becomes necessary 
to deal with these aspects. We shall first take up the issue of ownership. 
RE.: OWNERSHIP 
1 S. We have already noticed above, the basis on which the first 
appellate court as well as the High Court has held that the plaintiffs are 
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the owners of the suit property, which rights they have inherited from 
Vassudev Govekar, father ofplaintiffNos. I to 3. Findings of the courts 
below are that the suit property, viz. Talhao No. 168 ofCommunidade of 
Anjuna, was acquired by Vassudev Govekar from Communidade of 
Anjuna under No. 131 /1963 on February 24, 1970 as a permanent grant 
G for the construction of the house. In order to prove this ownership, not 
only the said grant was produced on record, the plaintiffs also filed evidence 
of the Inventory Proceedings initiated upon the death ofVassudev Govekar 
which described the suit property. Additionally, duly promulgated survey 
records showing the property standing in the name ofVassudev Govekar 
were also produced. While holding that conclusion of the first appellate 
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BY LRS. [A.K. SIKRI, J.] 
court that the aforesaid documents clearly evinced the ownership of A 
Vassudev Govekar, the High Court has analysed these documents, 
coupled with the admission of the defendants themselves on these aspects, 
in the following words: 
"11 ... 0n the basis of such pleadings, the Lower Appellate 
Court was justified to come to the conclusion that the fact 
that the property was granted by the Communidade in favour 
of said Vassudev, who is the father of the Respondents -
original Plaintiff nos. 1 and 3, undisputed by the Appellants. 
This admission is coupled with the receipts from the 
Communidade produced by Dw.1 in the cross at exhibit 78 
colly which stand in the name of said Vassudev as well as 
the Survey Records and the earlier house tax records. As 
the fact that the prop~rty was granted by the Communidade 
in favour of the said Vassudev has not been disputed, the 
Lower Appellate Court was justified to come to the 
conclusion that the findings of the learned Trial Court that 
there was a cloud raised in the title of the Respondents 
could not be sustained. An admission made by a party is 
not conclusive but a decisive fact in a case unless the other 
party successfully withdraws the same or proves it to be 
erroneous. What has to be considered is what effect is to 
be given to such admission and whether such admission 
read with other material on record would lead to an 
unambiguous and
relevant piece of evidence to establish a 
fact. In the present case, apart from the said admission 
which can be curled out from the pleadings, as even in the 
deposition ofDw. l, he has not disputed that the final grant 
was given by the Communidade to Vassudev though he 
contended that it was at the instance of the father of the 
Appellant no. I, Jaganath. Apart from that, Article 33g. of 
the Code of Communidade clearly provides that the 
provisional delivery of the land granted, as emphyteusis, 
filnnot be considered in legal relations between the 
communidade and the lease holder, as there is an optional 
act of mere tolerance, and only the definitive possession 
confers to the emphyteuta the rights that the civil law 
recognizes and assures. This aspect has to be further read 
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along with the duly promulgated Survey Records which are 
also standing in the name of Vassudev besides the other 
material produced in the cross examination of Ow. I at 
exhibit 78 colly which conclusively established that the suit 
property was granted to the said Vassudev and )Vhich 
devolved upon the Respondents after his death. The duly 
promulgated Survey Records in respect of the suit property 
surveyed under no. 251/2 stands in the name of said 
Vassudev which draws a presumption of possession in his 
favour. When it is not in dispute th!it the grant was in 
favour of said Vassudev who is the father of the Respondent 
nos. I and 3, such presumption of possession was in 
continuation of the title vested in him. The Respcmdents 
have also produced the allotment of the Inventory 
Proceedings upon the death of said Vassudev which 
discloses that the suit property devolved upon the 
Respondents. Article 2158 of the Po1tuguese Civil Code, 
interalia, provides thatthe partition of the properties legally 
made in respect of which there had not been any objection, 
confers on the co-heirs exclusive ownership of the properties 
partitioned among them. Hence, the Lower Appellate Court 
., 
was justified to hold that said Vassudev was the owner in 
possession of the suit property." 
16. Pertinently, learned counsel appearing for the appellants could 
not contest the aforesaid approach of the courts below. It is for
this 
reason, he took an altogether different route by arguing that joint 
ownership in the property in question wad admitted by the plaintiffs 
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themselves for which purpose he referred to the averments made in the 
plaint filed by the plaintiffs. In the first instance, we find that no such 
argµmentpredicated on such pleadings have been taken in the courts 
below. Be as it may, since the defendants rely upon the pleadings of the 
plaintiffs themselves, we proceed to examine the weight in this submission. 
A closer and minute look into the pleadings would show thatthere is no 
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admission on the part of the plaintiffs about the co-ownership insofar as 
suit property is concerned. In para 3 of the plaint, the plaintiffs have 
given the description of the suit property which is popularly known as 
'Devalvadi' bearing Survey No. 251/2 situate at Chinvar in the village 
ofAnjuna, Bardez, Goa, having an area of 1000 sq. mts. What is significant 
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is that this property bears Survey No. 25112 and the plaintiffs.described 
A 
the same as the 'suit property'. In para 4, it is mentioned that Vassudev 
Govekar acquired this property from Communidade of Anjuna. In para 
6 it is mentioned that on this suit property, incomplete structure was 
raised by Vassudev Govekar which the plaintiffs referred to as the 'suit 
house'. Thus, the ownership is claimed by the plaintiffs through Vassudev 
8 
Govekar who acquired the property bearing Survey No. 251/2 (the suit 
property) on which he constructed incomplete structure (the suit house). 
At the same time, in para 5, which is relied upon by the defendants in 
their attempt to show admission of the plaintiffs as to co-ownership, the 
plaintiffs have stated that towards the eastern side of the suit property, 
there exists another property bearing Survey No. 2S 1/4. The plaintiffs 
C 
pleaded that on this land, whereupon a house is also constructed, belonged 
to their grandfather Jagannath Govekar (father of defendant No. I) and 
it is this property which the plaintiffs say is in the co-ownership of the 
plaintiffs and defendants. Thus, the statement about the plaintiffs and 
defendants as co-owners in title and in possession pertains to property 
D 
bearing Survey No. 25114 which is not the subject matter of the suit. 
It is once again emphasised, as far as the suit proper,ty is 
concerned, it bears Survey
No. 25112. Therefore, in respect of the suit 
property, we find that there is no admission on the part of the plaintiffs. 
Thus, we do not find merit in this argument, which was hammered by 
the learned counsel for the appellants time and again. 
17. Once this aspect of so-called admission of the plaintiffs is 
found to be non-existing, the entire edifice of the argument of the 
defendants crumbles down. In these circumstances, reliance placed by 
the learned counsel on the judgment of this Court in the case of Anatlm/a 
Sudliakar would be of no avail. This is also a complete answer to the 
argumentthat the suit of the plaintiffs was not maintainable in the absence 
of any declara~ion as to title. The plaintiffs had categorically claimed in 
the plaint that insofar as suit,property bearing Survey No. 25112 i§.. 
concerned, they are the owners thereof. Of course, they had to prove 
E 
F 
the ownership by filing appropriate documents because of the reason 
G 
that the defendants in their written statement denied plaintiffs' ownership 
claiming that the propert)' covered by Survey No. 251/2 was, in fact, 
allotted to Jagannath Govekar·and not Vassudev Govekar. The plaintiffs 
successfully discharged their onus. 
18. In this context, the question of benami ownership also surfaced. 
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There is no dispute that in the revenue records property stood in the 
name of Vassudev Govekar and not Jagannath Govekar. The first 
appellate court rightly held that the plea with regard to the real owner of 
the property being Jagannath Govekar could not be gone into as it was 
barred by the provisions of Section 4(2) of the Benami Act. Though we 
do not find any merit in the arguments of the appellants that the Benami 
Act is not applicable, in any case there is hardly any material produced 
by the defendants to support that real owner was Jagannath Govekar. 
This claim is made only on the ground that it is Jagannath Govekar who 
had got the suit property acquired in the name of his son Vassudev 
Govekar. That by itself would not make Jagannath Govekar as the 
owner of the suit property. 
RE.: POSSESSION 
19. We now advert to the issue of 'possession' and the question 
as to whether the suit was not maintainable in the absence of any relief 
qua possession. · 
20. Once again, the defendants relied upon the pleadings in the 
suit. It is argued that the plaintiffs were not in possession of the suit 
property as in the plaint the plaintiffs have themselves stated that they 
were residing at different places in Goa and not in the suit property. 
However, that is a distorted reading of para I 0 of the plaint. Therein, it 
is only stated asa fact that for the purpose of employment, these plaintiffs 
were
residing at Margao, Goa or Ponda, Goa. At the same time, it is 
nowhere stated or admitted that they were not in possession of the suit 
property. On the contrary, it is specifically stated that since they were 
staying away from the suit property, they used to visit the suit property 
occasionally. This makes the stand of the plaintiff categorical to the 
effect that they claimed their possession over the suit property. On the 
other hand, insofar as defendants are concerned, the plaint averred that 
they were residing in property bearing Survey No. 251 /4 and the house 
situated therein. In fact, co-ownership and co-possession of that property 
is also claimed. It is in this backdrop the case made out by the plaintiffs 
is that when plaintiff Nos. I, 3 and 5 oVisited the suit property on 
December 30, 2006 at about 5:00 p.m., they found that the 'suit house' 
had been demolished by the defendants on which they were carrying a 
new construction. In the light of these pleadings, the plaintiffs sought 
the relief of mandatory injunction seeking demolition of the construction 
carried out by the defendants on the suit property bearing Survey No.
VISHRAM@ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 
189 
BY LRS. (A.K. SJKRI, J.] 
25112 as it was illegally put up by the defendants on plaintiffs' land. The 
matter is to be examined in this hue and, therefore, the argument that 
relief for possession should also have been sought is clearly untenable. 
This aspect has been touched upon and dealt with by the High Court, 
with which we concur, in the following manner: 
"17. The next contention of Shri S.G. Desai, learned Senior 
Counsel, is with regard to the reliefs sought by the 
Respondents-Plaintiffs. The lower Appellate Court has 
relied upon the Judgment of this Court to inter alia hold that 
as mandatory injunction has been sought by the 
Respondents- Plaintiffs in substance, it amounts to relief of 
possession. There is nothing on record to suggest that on 
the date of the filing of the suit, the Appellants have exercised 
any legal right of possession in the disputed house and the 
. suit property. A sporadic act of trespass by the Appellants 
in demolishing the existing structure and attempting to put 
up a new construction therein cannot be held to be in 
possession of such structure. Apart from that, the records 
reveal that the original house of the Respondents-Plai11tiffs 
was in an incomplete state and occupied from time to time 
by the Respondents. As referred to herein above, the said 
incomplete house was standing in the name of said 
Vassudev. Even the Appellants do not dispute that the said 
construction was
standing in the name of said Vassudev 
though it was claimed that the real owner was the father 
late Jaganath which contention cannot be accepted. A 
person who has unlawfully interfered with a construction 
existing in the suit property, cannot claim any equities. In 
view of what has been stated herein above, the Appellants 
do not have any ownership over the suit property. An act 
of trespass by putting an illegal construction in a portion of 
the suit property which otherwise admeasures an area of 
1000 square metres, cannot establish that the Appellants 
are in possession of the suit property as nothing has been 
disclosed what is the nature of the possession in respect of 
the remaining portion of the suit property. As pointed out 
herein above, the promulgated Survey Records stand in the 
name of the father of the Respondent no. I, said Vassudev. 
In such circumstances, merely putting up an illegal structure 
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f20161 12 S.C.R. 
A 
in a portion of the suit property, can by no stretch of 
imagination, be assumed that the Appellants were in 
possession of the suit property as sought to be contested by 
Shri Desai, learned Senior Counsel appearing for the 
Appellants." 
B 
On these facts, we again reiterate that judgment in the case of 
Anatliu/a Sudllakar has no application. 
21. We, thus, do not find any merit in these appeals, which are 
accordingly dismissed with costs. 
22. However, before we part with, we have to take into 
C consideration one more development. As noted above, the defendants 
have made new construction on the property of the plaintiffs. Demolition 
of the said construction is not going to help any party. It would result in 
wastage of the expenditure incurred on the construction. No doubt, the 
structure is constructed illegally by the defendants. Nevertheless, 
D plaintiffs can make use thereof. Therefore, equities can be balanced if 
the plaintiffs take possession of the house in question without its demolition, 
but, at the same time, compensate the defendants by paying the cost of 
construction. In these circumstances, in the execution petition which is 
filed, oroughtto be filed by the plaintiffs, the executing court shall appoint 
a Surveyor/Valuer who would fix the cost of construction that would be 
E reimbursed by the plaintiffs to the defendants. 
23. We are giving these directions in exercise of our powers under 
Article
142 of the Constitution oflndia in order to do complete justice in 
the matter and to see that the defendants also do ngt suffer and the 
structure put by them is not wasted. Such a power in this behalf can be 
F exercised as per settled law. In this respect, we would like to usefully 
refer to the following passage from the judgment of this Court in State 
of Punjab & Ors. v. Rafiq M"sill (WhitewasherF; 
"12. Article 142 of the Constitution oflndia is supplementary 
in nature and cannot supplant the-substantive provisions, 
G 
though they are not limited by the substantive provisions in 
the statute. It is a power that gives preference to equity 
over law. It is a justice-oriented approach as against the 
strict rigours of the law. The directions issued by the Court 
can normally be categorised into one, in the nature of 
H 
'(2014) s sec 883
VISHRAM@ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 
191 
BY LRS. [A.K. SIKRI, J.] 
moulding ofrelief and the other, as the declaration oflaw. 
"Declaration oflaw" as contemplated in Article 141 of the 
Constitution: is the speech express or necessarily implied 
by the highest court of the land. This Court in Indian Bank 
v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72, Ram 
Pravesh Singh v. State of Bihar, (2006) 8 SCC 3 81, and 
in State of U.P. v. Neeraj Awasthi, (2006) I SCC 667, has 
expounded the principle and extolled the power of Article 
142 of the Cp~titution oflndia to new heights by laying. 
down that the directions issued under Article 142 do not 
constitute a binding precedent unlike Article 141 of the 
Constitution oflndia. They are direction issued to do proper 
justice and exercise of such power, cannot be considered 
as law laid down by the Supreme Court under Article 141 
of the Constitution of India. The Court has 
compartmentalised and differentiated the relief in the 
operative portion of the judgment by exercise of powers 
under Article 142 of the Constitution as against the law 
declared. The directions of the Court under Article 142 of 
the Constitution, while moulding the relief, that relax the 
application of law or exempt the case in hand from the 
rigourof the law in view of the peculiar facts and 
circumstances do not comprise the ratio decidendi and 
therefore lose its basic premise of making it a binding 
precedent. This Court on the qui vive has
expanded the 
horizons of Article 142 of the Constitution by keeping it 
outsige the purview of Article 141 of.the Constitution and 
by declaring it a direction of the Court that changes its 
complexion with the peculiarity in the facts and 
circumstances of the case." 
24. Almost somewhat similar approach was adopted by this Court 
in Gaiv Dinslww Irani & Ors. v. Telimtlln Inmi & Ors. 3, which .j~ 
clear from the following discussion: 
"47. Since the lease of 1152 sq fu executed by BMC in 
favour ofDinshaw is rendered void ab initio, the construction 
by the appellants on the said plot is also illegal. The position 
as it exists today is that the re111aining portions oflrani Wadi· 
'(2014) s sec 294 
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have been acquired by BMC; and on the other portion, the 
structure erected by Dinshaw exists and the portion being 
the residential bungalow occupied by the respondents may 
also be acquired by BMC in due course. 
48. Considering the aforementioned changed circumstances, 
the High Court taking note of the subsequent events moulded 
the relief in the appeal under Section 96 of the Code of 
Civil Procedure and the same has been challenged by the 
appellants before us. In ordinary course of litigation, the 
rights of parties are crystallised on the date the suit is 
instituted and only the same set of facts must be considered. 
However, in the interest of justice, a court including a court 
of appeal under Section 96 of the Code of Civil Pn;>cedure 
is not precluded from taking note of developments 
subsequent to the commencement of the litigation, when 
such events have a direct bearing on the relief claimed by a 
party or on the entire purpose of the suit, the courts taking 
note of the same should mould the relief accordingly. This 
rule is one of ancient vintage adopted by the Supreme Court 
of America in Pattersonv. Alabama [79 L Ed 1082 : 294 
US 600 (1935)] followed in Lachmeshwar Prasad Shukul 
v. Keshwar Lal Chaudhuri [(1941) 53 LW 373: AIR 1941 
FC 5] . The aforementioned cases were recognised by this 
Court in Pasupuleti Venkateswarlu v. Motor and General 
Traders, (1975) 1 SCC 770." 
25. The only
difference is that the construction carried out in the 
present case, at the time of filing of the suit, had started but was incomplete 
and this construction got completed during the pendency of the suit. Be 
as it may, as pointed out above, this approach of ours in moulding the 
reliefis to balance the equities and do complete justice to both the parties. 
Nidhi Jain 
Appeals dismissed.