Jharkhand State Housing Board vs Shri Didar Singh

JHARKHAND STATE HOUSING BOARD … APPELLANT

VERSUS

DIDAR SINGH & ANR. …RESPONDENTS

JUDGMENT N.V. RAMANA, J.

This appeal by special leave is directed against the

impugned judgment and decree dt. 12.10.2001 passed by the

High Court of Jharkhand at Ranchi in Second Appeal

No.88/2000 whereby the High Court dismissed the appeal filed

by the Board by confirming the concurrent findings of the courts

below.

2. Brief facts in nutshell for proper adjudication of the

dispute involved in the present appeal are, the plaintiff has filed a Signature Not Verified Digitally signed by SATISH KUMAR YADAV

suit for permanent injunction alleging that suit schedule property Date: 2018.10.24 15:41:54 IST Reason:

originally belongs to Raja A.P. Singh Deo of estate of Seraikella.

1 Later the property was purchased by Kumar Subodh Singh Deo

vide registered Sale Deed No.3201 dated 4.12.1989. He, in turn,

sold the property to the plaintiff vide registered Sale Deed dated

8.8.1990 for a consideration of Rs.12,000/­ and since then he is

in peaceful possession and enjoyment of the property by

constructing a residential building in the land. While that being

so, the defendant­Board has issued notice dated 4.1.1992 asking

the plaintiff to quit and give vacant possession of the suit land

and threatened the plaintiff to dispossess from the suit land

without any right and title over the same. Hence the plaintiff has

come up with the present suit to protect his possession.

3. The defendant has filed the written statement

contending that the plaintiff vendor has no legal right and title

over the suit schedule property and the sale deed executed by his

vendor will not confer any right or title to the plaintiff. Further

the suit schedule property along with other properties was

acquired by the defendants by way of land acquisition

proceedings in the year 1965 and the possession was handed

over to them. As such, except the defendant, no one else has

right or title over the property. The defendant has taken several

2 other grounds with regard to maintainability of the suit on the

ground of misjoinder of proper and necessary parties to the suit,

on the ground of limitation, under section 92 of the B.S.H.B. Act

and Rules, as no prior notice was issued before instituting the

suit. Also under Section 62 of the CNT Act, it is the case of the

defendant that the present Suit is not maintainable without

seeking the relief of declaration of title. The suit schedule

property was recorded in the revenue records in the name of the

defendant. Without seeking right, title, possession and correction

of entries in record of right, plaintiff cannot maintain the suit for

injunction and hence sought for dismissal of the suit.

4. The trial court has decreed the suit holding that suit is

not barred under any of the provisions of the B.S.H.B. Act, CNT

Act and the Limitation Act. Though Court took note of Ex.­B –

letter of giving possession to the defendant has come to the

conclusion that the evidence on record does not establish that

the land acquisition proceedings have attained finality. With

regard to maintainability of a suit for injunction, Court gave a

finding that as the plaintiff is able to prove his possession by oral

3 and documentary evidence, he can maintain a simplicitor suit for

injunction without seeking the relief of declaration.

5. The unsatisfied defendant approached the 1 st

Additional District Judge, Singhbhum (West) at Seraikella by way

of Title Appeal No.46/1995. The 1 st Appellate Court dismissed

the appeal by holding that the mere suit for injunction is

maintainable as the Board threatened to demolish the plaintiff’s

house and the proceeding under the Land Acquisition Act are not

successfully proved by the defendant by adducing cogent

evidence. The defendant further carried the matter to the High

Court by way of second appeal and that also ended up in

dismissal. The High Court also observed that as the plaintiff is in

possession of the property, he can protect his possession against

any interference and it is not necessary to prove his title to the

property.

6. The unsuccessful defendant is before us by way of this

appeal.

7. The learned counsel for the appellant­Board has

argued that the disputed property was part of the Government

land acquired through land acquisition proceedings and the 4 possession of the same lies with the appellant­Board. The claim

of the respondents­plaintiffs over the suit land was hence illegal

and they were enjoying the same unlawfully and without a valid

title. The appellant­Board therefore sought to evict the

respondents­plaintiffs from the suit land. Further, they claimed

that the suit is barred under Section 92 and Section 62 of the

Bihar State Housing Board Act and Rules. The plaintiff’s suit for

mere injunction is not maintainable without seeking the relief of

declaration of title and hence the Courts below erred in decreeing

the suit.

8. On the other hand, the counsel for the respondents

has submitted that the suit land was a private property and

respondent No.1 herein got the ownership rights by virtue of a

registered sale deed No. 2343 executed on 7 th August, 1990 and

since then the property has been in his possession. He could

prove his possession and prima facie title to the property. It is

further stated that without claiming the relief of declaration of

title, he can maintain the suit for mere injunction and Courts

below have rightly and concurrently found that he is in

possession of the property.

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9. We have heard the learned counsel for the appellant

and the respondent and perused the material available on record.

In view of the concurrent finding of facts by the courts below we

are conscious of the limited scope of adjudication in this appeal.

10. The issue that fall for our consideration is: “Whether

the suit for permanent injunction is maintainable when the

defendant disputes the title of the plaintiff?”

11. It is well settled by catena of Judgments of this

Court that in each and every case where the defendant

disputes the title of the plaintiff it is not necessary that in all

those cases plaintiff has to seek the relief of declaration. A

suit for mere injunction does not lie only when the defendant

raises a genuine dispute with regard to title and when he

raises a cloud over the title of the plaintiff, then necessarily in

those circumstances, plaintiff cannot maintain a suit for bare

injunction.

12. In the facts of the case the defendant­Board by relying

upon the land acquisition proceedings and the possession

certificate could successfully raise cloud over the title of the

6 plaintiff and in those circumstances plaintiff ought to have

sought for the relief of declaration. The Courts below erred in

entertaining the suit for injunction.

13. Hence in view of the above discussion, we are of the

considered opinion that the judgment and decree impugned in

the appeal deserves to be set aside and accordingly we set aside

the same. However, a request was made at the time of hearing

on behalf of the plaintiff to direct the parties to maintain status

quo for a period of three months to enable the plaintiff to avail

the appropriate remedies available under law. In view of the long

pending litigation, we deem it appropriate to direct the parties to

maintain status quo with regard to possession for a period of

three months. Resultantly, the appeal is allowed with the above

observations by setting aside the judgment and decree dt.

12.10.2001 but in the circumstances without costs.

………………….……………………..J. (N. V. RAMANA)

………………….……………………..J. (MOHAN M. SHANTANAGOUDAR)

NEW DELHI, OCTOBER 09, 2018.

7 NON­ REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8242 OF 2009

JHARKHAND STATE HOUSING BOARD … APPELLANT

VERSUS

ANIRUDH KUMAR SAHU & ORS. …RESPONDENTS

JUDGMENT

N.V. RAMANA, J.

In this appeal the unsuccessful defendant impugned

the judgment and decree passed by the High Court of Jharkhand

at Ranchi in second appeal in 273/2003 dt. 26/8/2004 whereby

the High Court has confirmed the concurrent findings of the

courts below by decreeing the suit.

2. A close scrutiny of the plaint is necessary for

adjudication of the dispute involved in the present appeal. The

plaintiff has filed title suit no. 5 of 1992 on the file of the Munsif

court at Seraikella. In the plaint after the cause title, he stated

1 that the suit is for declaration of title, confirmation of possession

and permanent injunction and the suit is valued at Rs. 20,000/­.

Then the plaint starts with the description of facts that the suit

schedule property belongs to Raja Adithya Pratap Singh Deo of

the estate of Seraikella and subsequently it is purchased by

Kumar Subodh Singh by registered sale deed dated 24­08­1990,

he in turn sold the suit schedule property to the plaintiff by way

of registered sale deed dt 21­10­1990 for a consideration of Rs.

20,000/­ and ever since than he has been in possession of the

property by constructing a residential building. The defendant

has sent notice dated 04­01­1992 asking the plaintiff to quit and

deliver vacant possession of the suit land and for payment of

amount and further threatened the plaintiff to dispossess him

from the land. Hence he came up with the present suit seeking

the relief of permanent injunction restraining the defendants

from interfering with the peaceful possession and enjoyment of

the plaintiff.

3. The defendant has filed the written statement alleging

that the suit is barred under the principles of waiver, estopple,

acquisition, under Section 38 of Specific Relief Act and on the

2 ground of not impleading the proper and necessary parties to the

suit, and also on the ground of not issuing the notice under

Section 62 and 92 of the BSHB Act. Further it was stated that

the mere suit for perpetual injunction without claiming any relief

of declaration as to the entry in the record of right, declaration of

title and for confirmation of possession, is not at all maintainable

either in law or in facts. In fact, the plaintiff in the suit is

indirectly seeking the declaratory relief which is not permissible.

4. It is further averred in the written statement that the

plaintiff’s vendor has no right and title to the property as the

property is in possession of the defendant since 1965 and prior to

that it was in possession of the State of Bihar. The property was

acquired through land acquisition proceedings and possession

was delivered way back in 1965 and hence sought dismissal of

the suit.

5. We have gone through the judgment of the trial Court,

1st Appellate court and the High Court. The Courts below have

entertained the suit as if the suit is filed for declaration of title

which is evident from the judgments wherein they have

categorically observed that the Suit is for declaration of title,

3 confirmation of possession and also for perpetual injunction. The

trial Court has framed the issue with regard to the title and gave

a finding that plaintiff has proved his title and possession over

the suit land and constructed a house over the same, as there is

interference, he has come up with the present suit, as such he is

entitled to maintain the suit in the present form. The trial Court

has framed several issues and held all the issues in favour of the

plaintiff but only granted the relief of permanent injunction to the

plaintiff. The unsuccessful defendant approached the appellate

Court and the appeal was dismissed. In the second appeal, the

High Court also went ahead with the same assumption that it is

a declaratory suit and dismissed the appeal by observing that

both the Courts concurrently found that plaintiff has valid right,

title and interest.

6. We have heard the learned counsel on either side and

perused the material available on record. We are very much

surprised at the way the suit was dealt with by the Courts below

contrary to the pleadings and contrary to the settled legal

position. In the plaint, plaintiff has clearly averred that as the

defendants are interfering with his possession, the necessity

4 arose to file the suit for permanent injunction and particularly

sought the prayer for permanent injunction. The trial Court has

framed several issues and held all the issues in favour of the

plaintiff including the issue with regard to title but granted only

the relief of injunction. The trial Court has given several findings

with regard to the title and observed that plaintiff has got right

and title to the property. Even the 1 st appellate Court has also

made specific observation with regard to title and gave a clear

finding that plaintiff has asked for declaration. High Court

mechanically confirmed the judgment and decree of the Courts

below without appreciating both the legal and factual aspects.

7. We have given our anxious consideration and we are of the

considered opinion that the Courts below misconstrued the

pleadings and went on a premise that the suit is for declaration

of title when the same is for bare injunction and in a way

declared the title of the plaintiff. Even before this Court plaintiff

filed the counter and stated that his suit is only for the relief of

injunction. The learned counsel has also submitted that the relief

sought is only for injunction. The copy of the plaint filed before

us also strengthens the same. The judgment and decree under

5 appeal deserves to be set aside and accordingly appeal is allowed.

It was brought to our notice that plaintiff is continuing with the

possession of the property during the pendency of the litigation.

In view of the same we deem it appropriate to direct the parties to

maintain status quo for a period of 3 months and if so advised, to

avail the remedy available under law. Resultantly, the appeal is

allowed with the above observations by setting aside the

judgment and decree dated 26th August, 2004, in the

circumstances without costs.

………………….……………………..J. (N. V. RAMANA)

………………….……………………..J. (MOHAN M. SHANTANAGOUDAR)

NEW DELHI, OCTOBER 09, 2018.

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