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CASE NO.: Appeal (civil)  5794 of 2007

PETITIONER: Gurunath Manohar Pavaskar & Ors

RESPONDENT: Nagesh Siddappa Navalgund & Ors

DATE OF JUDGMENT: 11/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.     5794             OF 2007 [Arising out of  SLP (Civil) No. 20584 of 2005]

S.B. SINHA, J :          1.      Leave granted. 2.      Defendants before the Trial Court are the appellants herein.   3.      Plaintiffs \026 Respondents filed a suit against the appellants praying  inter alia for the following reliefs: "(a)    That the encroached portion of the suit  property by erection of structure measuring 369  1/9 sq. yards be directed to be demolished at the  cost and risk of Defendant No. 1 to 5 consequently  defendants be further directed to maintain the rules  of set-back in respect of his remaining construction  enabling plaintiff to use and enjoy the free light  and air to his property and similarly defendants  No. 6 be directed to remove the sign board and the  firm from the encroached area of the suit property.   Further defendants be directed to give the  respective vacant possession of the suit land to the  plaintiffs.

(aa)    A decree of permanent injunction against  defendants, their agents, their relative or any body  on their behalf to interfere with the plaintiffs  peaceful possession and enjoyment of suit  property\005"   4.      Respondents contended that they are owners of a portion of Survey  No. 1008/1 bearing CTS Nos. 4823/A-17 and 4823/A-18 measuring 662 2/9  and 533 3/9 square yards respectively and the appellants who are the owners  of the abutting land bearing CTS No. 4823/A-1 had encroached upon a  portion of CTS Nos. 4823/A-17 and 4823/A-18 measuring 249 1/9 and 120  square yards respectively.  Plaintiffs purchased the said plots by a deed of  sale dated 7.11.1984,  whereas the date of purchase made by the defendants  dated 17.8.1992

5.      The learned Trial Judge having regard to the pleadings of the parties  framed issues;  issue No. 3 whereof reads as under:

"3. Whether the defendant Nos. 1 to 5 proves that  the vendor of the plaintiff by way of fabrication of  false documents had sold the suit schedule  property to these plaintiffs, thus, the plaintiffs are  not the owners of the suit schedule property?"

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       It was answered stating: "My answers to the above issues are as follows: ***                     ***                     *** Issue No. 3     -       Does not arise."

6.      During the pendency of the said suit, an application for injunction was  filed. Allegedly, the appellants raised constructions upon the suit land in  violation of the said order of injunction.  The learned Trial Judge in regard to  the title of the plaintiffs over the suit land held: "\005According to the learned counsel for the  plaintiff since CTS No. 4823/A1 is completely  acquired by the Municipal Corporation Belgaum  for Malmaruti Extension scheme then the property  of the defendant no. 1 to 6 is not in existence in the  name of defendants.  But according to me since the  defendant no. 1 to 5 also have purchased the  property through a registered sale deed and also  their vendors have also purchased the said property  through a registered sale deed and as such it cannot  be said that the property of defendants are not in  existence.  But at the same time the say of the  defendant cannot be taken into believed (sic) that  the CTS No. 4823/A17 and 4823/A18 are not in  existence.  When in the survey map as well as in  other documents these properties are clearly  demarcated and identified then according to me,  these properties have been clearly demarcated in  relevant records\005"

7.      The High Court affirmed the said findings stating: "It is also clear from the perusal of the judgment  and decree passed by the courts below that both  the courts below have rightly decided on the basis  that it is unnecessary to give any decision on the  title of the property as the suit is for permanent and  mandatory injunction and the trial court has rightly  observed that it is always open to the defendants to  work out their remedy in accordance with law,  regarding their title to the property CTS No.  4823/A1 and no finding could be given on title in  the present case and when there is no finding on  the title of the property in the present case, it is  clear that it is always open to the defendants to  work out their remedy, in accordance with law.  It  is clear from the perusal of the material on record  that defendant No. 6 who also suffered decree of  injunction and permanent injunction though had  filed first appeal before the lower appellate court  has not chosen to challenge the judgment and  decree passed by first appellate court in RA  252/2001\005"   8.      Indisputably, an Advocate-Commissioner was appointed.  He filed a  report.  An objection thereto was also filed.  He, however, could not be  cross-examined.  His report, therefore, could not have been taken into  consideration although the same formed part of the record.

9.      The High Court although took into consideration the fact that the  plaintiffs did not seek for any declaration of title, as noticed hereinbefore,  opined that the question of title can be gone into in an appropriate suit.  All  the courts relied on Ex. P-35 which was allegedly produced by the appellants  but were made use of by the respondents, wherein it had been shown that the  chalta No. 63 was allotted in respect of CTS No. 4823/A-1, chalta No. 62-A  was allotted in respect of CTS No. 4823/A-17 and chalta No. 62-B was  allotted in respect of  CTS No. 4823/A-18.  

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10.     It is one thing to say that there does not exist any ambiguity as regards  description of the suit land in the plaint with reference to the boundaries as  mentioned therein, but it is another thing to say that the land in suit belongs  to the respondents.   

It was for the plaintiffs to prove that the land in suit formed part of  CTS Nos. 4823/A-17 and 4823/A-18.  It was not for the defendants to do so.    It was, therefore, not necessary for them to file an application for  appointment of a Commissioner nor was it necessary for them to adduce any  independent evidence to establish that the report of the Advocate- Commissioner was not correct.  The suit could not have been, therefore,  decreed inter alia on the basis of Ex. P-35 alone.  In a case of this nature,  even Section 83 of the Indian Evidence Act would not have any application. 11.     Furthermore, the High Court committed an error in also throwing the  burden of proof upon the defendants \026 appellants without taking into  consideration the provisions of Section 101 of the Indian Evidence Act.   In  Narain Prasad Aggarwal (D) by LRs. v. State of M.P. [2007 (8) SCALE  250], this Court opined:  "22. Record of right is not a document of title. Entries  made therein in terms of Section 35 of the Indian  Evidence Act although are admissible as a relevant  piece of evidence and although the same may also  carry a presumption of correctness, but it is beyond  any doubt or dispute that such a presumption is  rebuttable."

12.      A revenue record is not a document of title.  It merely raises a  presumption in regard to possession.  Presumption of possession and/ or  continuity thereof both forward and backward can also be raised under  Section 110 of the Indian Evidence Act.  The courts below, were, therefore,  required to appreciate the evidence keeping in view the correct legal  principles in mind.

13.     The courts below appeared to have taken note of the entries made in  the revenue records wherein the name of the Municipal Corporation,  Belgaum appeared in respect of CTS No. 4823/A-1.  We have, however,  noticed that the learned Trial Judge proceeded on the basis that the said  property may be belonging to the defendants \026 appellants.  The courts below  not only passed a decree for prohibitory injunction but also passed a decree  for mandatory injunction.  The High Court opined that the Trial Court could  exercise discretion in this behalf.  It is again one thing to say that the courts  could pass an interlocutory order in the nature of mandatory injunction in  exercise of its jurisdiction under Section 151 of the Code of Civil Procedure  on the  premise that a party against whom an order of injunction was passed,  acted in breach thereof; so as to relegate the parties to the same position as if  the order of injunction has not been violated, but, it is another thing to say  that the courts shall exercise the same power while granting a decree  permanent injunction in mandatory form without deciding the question of  title and/or leaving the same open.  How, in the event the structures are  demolished, it would be possible for the appellants to work out their  remedies in accordance with law in regard to the title of the property has not  been spelt out by the High Court.   

14.    We, therefore, are of the opinion that the interest of justice would be  subserved if the impugned judgments are set aside and the matter is remitted  to the learned Trial Judge for consideration of the matter afresh.  The  plaintiffs may, if they so desire, file an application for amendment of plaint  praying inter alia for declaration of his title as also for damages as against  the respondents for illegal occupation of the land.  It would also be open to  the parties to adduce additional evidence(s).  The learned Trial Judge may  also appoint a Commissioner for the purpose of measurement of the suit land  whether an Advocate - Commissioner or an officer of the Revenue  Department.  

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15.     Before us, additional documents have been filed by the appellants  showing some subsequent events.  It would be open to the defendants to file  an application for adduction of additional evidence before the Trial Judge  which may be considered on its own merits.

16.     The appeal is allowed with the aforementioned observations.  We  would request the Trial Court to consider the desirability of disposing of the  matter as expeditiously as possible and preferably within a period of six  months from the date of communication of this order.  Costs of this appeal  shall be the cost in the suit.