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PETITIONER: PRATAPRAI N.  KOTHARI

       Vs.

RESPONDENT: JOHN BRAGANZA

DATE OF JUDGMENT:       04/05/1999

BENCH: M.Srinivasan, N Santosh Hegde, G T Nanavati,

JUDGMENT:

SRINIVASAN, J.

     Though  this  litigation had a chequered  career,  the scope  of  the dispute between the parties is very  limited. The  respondent  who was the plaintiff in  Short-Cause  Suit No.3120/81  on  the file of the City Civil Court  at  Bombay prayed  for a permanent injunction restraining the appellant herein  from  interfering with or disturbing his  possession and occupation of the suit property situated in Malad (East) Bombay.   A perusal of the plaint shows that the entire case of  the  respondent rested only on his exclusive  possession for  several decades and not on any claim of title.   Though the  respondent was not quite clear as to the origin of  his possession, his continuous and exclusive possession from May 1964  under  a  registered lease deed was the basis  of  his claim.   In  the written statement filed by  the  appellant, while denying claim of the respondent, there was no specific plea  that the appellant had title to the property and  that the  suit  was  not  maintainable at  the  instance  of  the respondent.   No doubt, there was an incidental reference to the  appellant  having become the owner of the  property  by virtue of a dissolution of a partnership which the appellant had entered with the alleged previous owner of the property. 2.   The  trial court framed as many as four issues.   There was  no issue regarding title.  The crucial issue related to the  plaintiff’s possession of the suit property.  The  suit was  decreed  on 26.4.82 by the Additional Principal  Judge. The  appellant  filed  First  Appeal No.479  of  1982.   The plaintiff  was  permitted to amend the plaint and  with  the consent  of the parties the First Appellate Court set  aside the  judgment of the trial court and remanded the matter for fresh  disposal.The scope of the remand was however  limited by the Appellate Judge who permitted the appellant herein to file  additional  written statement as against  the  amended plaint.  The Appellate Judge had also recorded the agreement of  the  parties  to  the appointment  of  an  architect  as Commissioner  in order to draw a sketch map showing the site in  question together with the structures thereon as claimed by the plaintiff on the property in suit and the location of the  structures.   The  Court directed  that  no  additional evidence  should be allowed accepting the evidence which may become  consequential to the report of the Commissioner  who may be examined as Court Witness if necessary.  3.  Thus the scope  of  the remand having been expressly restricted,  the

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parties  did  not raise any question of title.   The  report filed  by  the  architect-Commissioner   was  not  seriously objected to by either party and after considering the entire evidence,  the  trial court passed a decree on 10.5.83  with regard to some portion of the suit property in favour of the plaintiff  and  dismissed the suit with regard to the  rest. In Paragraph 90 of the judgment the trial Court stated thus:

     "Before  parting with the case I would like to make it clear  that the relief granted to the plaintiff in this suit is based purely on the question of his possession and threat of  his being dispossessed otherwise than by due process  of law.   The  question of title of both the parties and  their rights  and remedies on the strength of title are left  open including  their rights in respect of those portions of  the property in regard to which relief is granted in this suit."

     4.   Both the parties being aggrieved by the  judgment and decree filed appeals before the High Court.  The learned Single Judge of the High Court who heard the appeals started dictating the judgment on 10th August 1987 but thereafter he heard  the  parties again, recorded additional evidence  and completed  the  rest  of  the judgment  on  28.4.1989.   The procedure  adopted by the learned Judge has been pointed out to  be  "somewhat  unusual"  by  the  Division  Bench  whose judgment  is now under appeal.  In our opinion, the Division Bench has used a very mild expression to describe the course adopted  by  the  learned Single Judge.  In  the  course  of delivering  judgment  for  over a period of two  years,  the learned  Single Judge had permitted additional evidence  not only  ignoring  the provisions of Order XLI Rule 27  C.P.C., but also the limited scope of the suit in which there was no issue  regarding  title.  Unfortunately, the learned  Single Judge   travelled  outside  the  scope   of  the  suit   and over-looking  the earlier order of remand passed by the High Court  went on to record findings based on the alleged title of  the appellant to the suit property.  The summary of  his conclusions  is found in Paragraph 44 of his judgment  which reads as follows:

     "Let me summarise:

     (i)  The  plaintiff  has totally failed to  prove  his possession both of the structure and of the open space.

     (ii)  Even  assuming  that the  plaintiff  has  proved possession  of the structure on the date of the suit, he had badly failed to prove settled possession.

     (iii)  In case of open space, even such assumption  is unconceivable.

     (iv)  The  plaintiff is a rank trespasser whereas  the defendant  has fully established his title to the open space and to the land below the structure.

     (v) Even assuming that the plaintiff was in possession of  any  portion  of the suit property,  his  conduct,  both before  the  date  of the suit and in the court  during  the pendency  of  this litigation, fully disqualifies  him  from getting any injunction against the defendant.  This position follows  from the general principles of equity and from  the necessary  implications of Section 38 of the Specific Relief Act  as  also from the express bar of Section 41 (1) of  the

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said Act.

     (vi)  If not for any other reason, at least on account of  the  doctrine of law that possession follows title,  the defendant  must be held entitled to be in full possession of the open space.

     (vii)  The plaintiff must be held to be exposed to the charge of offence of forgery and perjury at least vis-a- vis the Receipt Ex.’B’.

     5.   Consequently  learned  Single Judge  allowed  the appeal  of the appellant while dismissing the appeal of  the respondent  and dismissed the entire suit.  That judgment of the  Single Judge was challenged under the Letters Patent by the  respondent  before the Division Bench.  After  pointing out  the  limited scope of the suit, both before  and  after remand  and  the  absence  of any issue  as  to  title,  the Division  Bench  set aside the judgment of the Single  Judge and  restored that of the trial court after considering  the entire  evidence  on  record.  It is that  judgment  of  the Division Bench which is assailed before us by the appellant. 6.   With  all  the vehemence at his  command,  the  learned senior  counsel  for the appellant has urged  the  following contentions:   (i)  That the Letters Patent Appeal  was  not maintainable;   (ii)  That the suit of the respondent  based merely  on possession without any semblance of title was not maintainable  against the appellant who is the owner of  the property;    (iii)  The  respondent   having  admitted   the possession  of the appellant prior to the suit in his notice could  not have maintained the suit for injunction.  7.   We are  at  a loss to appreciate how the appeal  under  Letters Patent  was not maintainable.  The learned counsel contended that  the  remedy  of the respondent was to  file  a  second appeal under Section 100 C.P.C.  against the judgment of the learned  Single Judge.  However, he realised his folly  when he  read  out Section 100 C.P.C.  and found that it  applied only  to decrees passed in appeal by a Court subordinate  to the  High  Court.  There can be no doubt whatever  that  the judgment  of the learned Single Judge of the High Court fell within  the scope of Clause 15 of the Letters Patent and the appeal  was  maintainable.   We have to point out  that  the question  relating  to  the maintainability of  the  Letters Patent  Appeal  was  not raised either before  the  Division Bench  of  the High Court or in the Special  Leave  Petition filed  in  this  Court.  8.  The second  contention  of  the learned  senior  counsel is equally without any  merit.   He started  by  contending  that  the  trial  court  had  found categorically  that the appellant had title to the property. He  made  an  attempt  to read  certain  passages  from  the judgment of the trial court to make good his contention.  He could  not succeed in doing so, particularly when the  trial court  had  in  Paragraph 90 of its judgment left  open  the issue  of  title as pointed out by us already.  9.   Learned senior  counsel  drew  our attention to a notice  issued  by respondent’s  advocates  and solicitors to the appellant  on 28.8.1990.   In  that  notice  reference  was  made  to  the appellant’s construction of boundary wall unlawfully thereby obstructing  the right of way of the respondent.  A  perusal of  the notice only shows that what was referred to  therein was  only  the  interference  with  the  possession  of  the respondent  and the attempt on the part of the appellant  to trespass  on  the  suit property.  There  was  no  admission whatever  on  the part of the respondent that the  appellant was  in  possession  of any portion of  the  suit  property.

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There  was  no substance whatever in the said contention  of the  learned counsel.  10.  Reliance was sought to be placed on  the  additional evidence admitted by the learned  Single Judge  during the pendency of the appeals to prove that  the appellant had title to the property.  It is settled law that in  the absence of any plea, no evidence is admissible.  The Single  Judge  of the High Court overlooked that when  there was  no plea or issue on the question of title, no  evidence whatever was admissible regarding the same.  He acted beyond his  jurisdiction  in permitting addditional evidence to  be filed  in  appeals.   11.   We have  already  extracted  the summary  of  conclusions  arrived at by the  learned  Single Judge  of  the High Court.  That shows that his  conclusions were  vitiated by his view that the appellant had title  and possession  followed  title.  It is quite obvious  that  the learned  Single Judge had not taken note of the principle of possessory  title or the principle of law that a person  who has  been in long continuous possession can protect the same by  seeking  an injunction against any person in  the  world other  than  the true owner.  It is also well  settled  that even  the owner of the property can get back his  possession only  by  resorting  to  due process of law.   12.   In  the circumstances of the case, we do not find any merit whatever in this appeal and it is hereby dismissed with costs.