P. Fatesh Ahamed Saheb, by Lrs Vs. Sandur Usman Saheb by Lrs and ors. - Court Judgment

Excerpt:
(a) specific relief act, 1963 (central act no. 47 of 1963) - section 38 -- appellant field suit for title & perpetual injunction having purchased suit property from vendor who claimed to have derived title by gift from his mother, who had no absolute right & title -- trial court decreed suit but appellate court dismissed -- in second appeal, though claim of title failed, appellant not being a rank trespasser, held, entitled to possessory relief of perpetual injunction.; the learned appellate judge did not give any finding on actual possession of the suit property. what he has stated in his judgment is that possession follows title. when the plaintiff has not established titie to the suit property, the learned civil judge has observed, the plaintiff has not established his possession to the suit property.... in view of my above discussion, i hold that the appellate court was not right in law in negativing the finding of the trial court that the plaintiff was in possession.... i am of opinion, the plaintiff's possession has to be protected, unless he is dispossessed in due course of law. it cannot be said that the plaintiff is a rank trespasser.; (b) civil procedure code, 1908 (central act v of 1908) - order 41 rule 33 & order 42 rule 1 -- appellant's suit for title & injunction decreed by trial court but dismissed by appellate court without finding as to possession -- since suit was of 1971, remand held not proper, & in second appeal, perpetual injunction granted to protect his possession.; the suit was filed in the year 1971. we are in the year of grace 1996. if the matter is remanded, there will be unnecessary delay in the disposal of the matter....'delay in dispensing justice is in itself an act of injustice' says pope paul. order 41 rule 33 read with order 42 rule 1 c.p.c. enables this court to pass appropriate decree. for these reasons, i am not prepared to remand the matter. the above discussion covers my answer to the substantial question of law formulated by this court. the plaintiff is entitled to the relief of permanent injunction even though he has not established his title to the suit property. - karnataka certain inams abolition act, 1977.[k.a. no. 10/1978]. section 5: [n.k. patil, j] occupancy right - petitioners application in form 1 for registration of occupancy right - rejected - tribunal observed that brother of petitioner who was the inamdar of said lands earlier filed application for registration of occupancy right which was rejected and occupancy right granted in favour of tenant - also observed that against this order writ petition also was filed which was rejected confirming order granted in favour of tenant - held, tribunal has granted sufficient opportunity to petitioner to establish that lands in question has fallen to his share and his name entered in records of right and paid land revenue. his brother has in earlier proceedings admitted that the said lands were being cultivated by tenant. land tribunal had already ordered registration of the name of tenant which has attained finality. claim of petitioner rejected. - this defendant commenced construction on the northern half (which the plaintiff now claims as his). the plaintiff, having kept quiet, all these days, has filed the present suit knowing fully well that this defendant was in possession and laid foundation. whether the finding of the appellate-court negativing plaintiff's possession is justified on the evidence on record and whether, at all events, plaintiff was entitled to possessory relief of injunction even if he had failed to establish title. the position is well settled that a person in settled possession cannot be dispossessed even by the owner, otherwise than by proceeding in accordance with the procedure established by law.m.b. vishwanath, j1. this is plaintiff's appeal under section 100 of the c.p.c.2. plaintiff fatesh ahmed saheb filed o.s.no. 207/1971 on the file of the principal munsiff, hospet, against first defendant sandur usman saheb and second defendant sandur phakeer ahmed saheb praying for declaration that he was the owner of the suit schedule property (measuring east to west 30 ft. and north to south 30 ft.) and for permanent injunction restraining the defendants from interfering with his peaceful possession of the suit property.3. the trial court decreed the plaintiff's suit.4. aggrieved by the judgment and decree passed by the learned munsiff, the defendants filed r.a.no.69/1978 before the learned civil judge, hospet.5. the learned appellate judge allowed the appeal and dismissed the plaintiff's suit 6. the case of the plaintiff is:the plaintiff is the owner of the suit schedule property and he purchased the suit schedule property under the registered sale deed dated 7.5.1971(ex.p-1) from t. abdul habeeb. the said abdul habeeb got the suit property as gift from his mother fathima bi under the registered deed dated 17.7.1961 (ex.p-10). fathima bi was in possession of the suit property. later abdul habeeb was in possession. after the sale by abdul habeeb in favour of the plaintiff, the plaintiff has been in possession of the suit property as owner. the defendants were trying to disturb the plaintiff's possession and grab the suit property.7. the first defendant, whose written statement has been adopted by the second defendant, has contended:it is not true that the plaintiff purchased the suit property from abdul habeeb and abdul habeeb got the suit property from his mother fathima bi through gift. the said fathima bi had not got any right, title or interest in the suit property. she was not in possession and enjoyment of the suit property. the plaintiff has not been in possession of the suit property. the plaint schedule property forms part of and is only a portion of two sites purchased by the first defendant and his other brothers in the name of their eldest brother sandur hussain saheb(father of the second defendant). subsequently there was a partition as per registered partition deed dated 10.3.1967 (ex.d-3) and this defendant got his share. this defendant commenced construction on the northern half (which the plaintiff now claims as his). the plaintiff, having kept quiet, all these days, has filed the present suit knowing fully well that this defendant was in possession and laid foundation.8. as has already been stated, the plaintiff's suit was decreed by the trial court and on appeal, the learned civil judge dismissed the plaintiff's suit. the plaintiff has appealed to this court.9. at the time of admission, this court has framed the following substantial question of law for consideration by this court:'whether the finding of the appellate-court negativing plaintiff's possession is justified on the evidence on record and whether, at all events, plaintiff was entitled to possessory relief of injunction even if he had failed to establish title.'10. the plaintiff purchased the suit property from abdul habeeb on 7.5.1971 under the registered sale deed (ex.p-1). the further case of the plaintiff is that abdul habeeb got the suit property under gift deed dated 17.7.61 (ex.p-10) executed in his favour by his mother fathima bi.11. in view of what is stated above, the pedigree should be set out. the pedigree is: hadagali hutchu sab _____________________________|______________________________ | | | |ghouse sab khasim sab mohammad sab rahiman sab(deceased) allabi =fathimabi (pw-2) | | |rajak sab ameer sab | _________________ |___________________________ | | | habib sab(pw-1) daughter daughter12. the learned trial judge simply believed the gift deed ex.p-10 dated 17.7..1961 and came to the conclusion that the plaintiff, who claimed his title from habeeb sab, son of fathimabi, had title to the property. he has not discussed whether fathimabi had exclusive title to the suit property when she gifted the suit property in favour of her son habeebsab.13. fathimabi, mother of habeebsab, was the wife of mohammad sab. mohammad sab, son of hutchu sab, had three brothers(see the pedigree). the learned civil judge has correctly come to the conclusion, that after the death of hutchusab, the suit property devolved on his sons mohammadsab, khasimsab and his grandson razaksab. so all of them were the joint owners or co-owners of the suit property, after the death of hutchusab. fathimabi, wife of mohammadsab (one of the sons of hutchusab), could not have got exclusive title to the suit property so as to transfer it to her son p.w.1-habeebsab, under the gift deed ex.p-10.14. the appellate judge has discussed the entire evidence and come to the conclusion that fathimabi had no exclusive title to the suit property. she could not have conveyed full title to her son habeebsab (p.w.1). this further leads to the conclusion that the plaintiff, who purchased the property from habeebsab under ex.p-1 on 7.5.1971 did not get title to the suit property.15. the conclusion of the learned appellate judge, who reversed the finding of the trial court that the plaintiff was the exdusive owner of the suit property, was correct. it is based on evidence and probabilities. the finding of the learned civil judge that the plaintiff had no title to the suit property is neither perverse nor illegal.16. after discussing the evidence, the trial judge has come to the conclusion that the vendor of the plaintiff was in possession.17. the learned appellate judge did not give any finding on actual possession of the suit property. what he has stated in his judgment is that possession follows title. when the plaintiff has not established title to the suit property, the learned civil judge has observed, the plaintiff has not established his possession to the suit property.18. as i have already stated, the learned appellate judge did not give any finding on actual possession. normally this court would have had to remand the matter to the appellate court to give a finding on factual possession of the suit property, whether the plaintiff was in possession or the defendants were in possession.19. the suit was filed in the year 1971. we are in the year of grace 1996. if the matter is remanded, there will be unnecessary delay in the disposal of the matter. 'delay in dispensing justice is in itself an act of injustice' says pope paul. order 41 rule 33 read with order 42 rule 1 c.p.c. enables this court to pass appropriate decree. for these reasons, i am not prepared to remand the matter.20. the learned trial judge, after discussing the evidence and referring to a number of documents, as i have already stated, has come to the conclusion that the plaintiff's vendor was in possession and after him the plaintiff was in possession.21. in view of my above discussion, i hold that the appellate court was not right in law in negativing the finding of the trial court that the plaintiff was in possession.22. it has been laid down by this court in after referring to the decisions of the supreme court, this court and other high courts that:'the position is well settled that a person in settled possession cannot be dispossessed even by the owner, otherwise than by proceeding in accordance with the procedure established by law. the concept of forcible dispossession is disfavoured by law and even the true owner has to resort to the due process of law for getting evicted a person from his property who is in settled possession though unlawful.'23. in view of the ruling of this court, i am of opinion, the plaintiff's possession has to be protected, unless he is dispossessed in due course of law. it cannot be said that the plaintiff is a rank trespasser.24. the above discussion covers my answer to the substantial question of law formulated by this court. the plaintiff is entitled to the relief of permanent injunction even though he has not established his title to the suit property.order the defendants or persons claiming under them are hereby restrained by means of permanent injunction from interfering with the plaintiff's possession of the suit property until the plaintiff is dispossessed in accordance with law.the appeal is allowed accordingly in part. no costs.