Sopanrao vs Syed Mehmood .

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4478 OF 2007

SOPANRAO & ANR. …APPELLANT(S)

Versus

SYED MEHMOOD & ORS. …RESPONDENT(S)

JUDGMENT

Deepak Gupta, J.

1. A suit was filed by Respondent Nos. 1 to 4 herein before the

trial court against the present appellants and others in which the

main prayers were as follows:

(i) “That, the lands S.Nos.60, 62, 77, 79/2 and 78 admg. 31 acres 32 gunthas, 15 acres 22 gunthas, 27 acres 18 gunthas, 15 acres 19 gunthas and 9 acres 19 gunthas respectively situated at village Haregaon Tq. Ausa Dist. Latur may be declared as Inam lands of Niyamatullah Shah Dargah Haregaon and the plaintiffs as Inamdars of the above lands.

(ii) That, the plaintiffs be put in possession of the Signature Not Verified lands referred to above from defendant No. 1 to 11.” Digitally signed by DEEPAK GUGLANI Date: 2019.07.03 15:56:59 IST Reason: 2

2. The present appellants and others contested the suit.

According to the plaintiffs, the possession of the land in question

was illegally given to Namdeo Deosthan Trust (for short ‘the

Trust’) on 19.08.1978 by the Government and it was prayed that

the possession of this land be restored to the plaintiffs. The

defendants contested the suit on various grounds. One of the

main grounds raised was that the suit was not filed within the

period of limitation. It was also contended that the suit was bad

for non­joinder of necessary parties and it was contended that

the suit land belonged to the Trust since time immemorial and

the suit be dismissed. The trial court vide judgment dated

14.10.1992 dismissed the suit of the plaintiffs and held that the

suit was not filed within the period of limitation. It also held that

the suit is bad for non­joinder of parties. Lastly, the trial court

held that the plaintiffs had failed to prove that the suit land was

Inam land or the plaintiffs are Inamdars.

3. Aggrieved, the plaintiffs filed an appeal in the Court of

District Judge, Latur. The District Judge vide judgment dated

26.11.1997 reversed the judgment and decree of the trial court

and came to the conclusion that the land originally belonged to

Dargah Niyamatullah Shah Quadri (for short ‘the Dargah’) and 3

the plaintiffs and Defendant No. 12 were the Inamdars of the suit

land. It further held that the Government had wrongly given the

possession of the suit property. It was also held that all

necessary parties had been joined in the suit. Finally, the first

appellate court held that the plaintiffs were entitled to a decree

for possession of the suit land and accordingly allowed the appeal

and decreed the suit in favour of the plaintiffs and Defendant No.

12 and against Defendant Nos. 1 to 11 and 15.

4. Aggrieved, the present appellants and two others filed an

appeal in the High Court of Bombay. This appeal was dismissed

vide judgment dated 29.03.2007. However, the High Court

modified the decree of the District Judge to the limited extent

that the plaintiffs and Defendant No. 12 were held to be

descendents of Mutawalis and not Inamdars. Hence, this appeal.

5. We have heard learned counsel for the parties.

6. During the pendency of this appeal, some of the plaintiffs

have died and their legal representatives were not brought on

record. Though a preliminary objection was raised that the

appeal abates as a whole, we find no merit in this preliminary

objection. The plaintiffs have been held to be descendents of 4

Mutawalis of the properties which is in the nature of a

managerial post. As such the appeal does not abate.

7. Learned counsel for the appellants submitted that the

plaintiffs had failed to prove that the land was the land of the

Dargah. The second submission was that the suit was barred by

limitation. It was also contended that the suit was not

maintainable and that the High Court had granted reliefs which

had not even been prayed for by the plaintiffs.

8. As far as the issue of title is concerned, that, in our view, is

a finding of fact arrived at by the District Judge and confirmed by

the High Court. This finding cannot be disturbed in this Court.

However, on the insistence of learned counsel for the appellants,

we have gone through the record and find that the possession of

land in question was handed over to the Trust only on

19.08.1978. Nothing has been brought on record to show that

prior to 29.01.1973 the land was entered in the name of the

Trust. In fact, as per the pleadings of the defendants a change

report had been filed before the Assistant Charity Commissioner,

Latur and the said authority, without issuing notices to the

Inamdars/Mutawalis, allowed the said application on 5

29.01.1973. The plaintiffs had no knowledge of this application

but on the basis of this order the Government handed over the

possession of the land to the Trust. It was only after the Trust

came into the possession of the land that the mutation entry

(Exhibit No.115) was made in favour of the Trust. According to

the plaintiffs, they came to know about this fact only in 1986

when some publication in this regard was made by the Assistant

Charity Commissioner in terms of Section 50A of the Bombay

Public Trusts Act, 1950 and, thereafter, they filed the suit. It was

the plaintiffs, as observed by the District Judge as well as the

High Court, who had proved that the suit land belonged to the

Dargah. According to the High Court, the plaintiffs were not

actually Inamdars and were manning the affairs of the Dargah in

the nature of Mutawalis. Evidence was led by the plaintiffs to

show that they had been held to be the successors of one

Nizamuddin, the original Mutawali of the Dargah by the

competent authority under the Hyderabad Atiyat Inquiries Act,

1952. The High Court made reference to a large number of

documentary records proved by the plaintiffs from the year 1915

onwards, which showed that the land had been granted to the

Dargah as far back in 1915. Therefore, the Dargah was shown to 6

be the owner as far back in 1325 Fasli (1915 A.D.) in the official

records. Similar entries were made in 1342 Fasli (1932 A.D.),

1943 and 1951, all of which showed that the lands were shown

as lands belonging to Dargah. The judgments of the District

Court and the High Court are based on evidence. No question of

law arises as far as ownership of land is concerned. Therefore,

this finding of fact calls for no interference.

9. It was next contended by the learned counsel that the suit

was not filed within limitation. This objection is totally

untenable. Admittedly, the possession of the land was handed

over to the Trust only in the year 1978. The suit was filed in the

year 1987. The appellants contend that the limitation for the suit

is three years as the suit is one for declaration. We are of the

view that this contention has to be rejected. We have culled out

the main prayers made in the suit hereinabove which clearly

indicate that it is a suit not only for declaration but the plaintiffs

also prayed for possession of the suit land. The limitation for

filing a suit for possession on the basis of title is 12 years and,

therefore, the suit is within limitation. Merely because one of the

reliefs sought is of declaration that will not mean that the outer

limitation of 12 years is lost. Reliance placed by the learned 7

counsel for the appellants on the judgment of this Court in L.C.

Hanumanthappa v. H.B. Shivakumar1 is wholly misplaced.

That judgment has no applicability since that case was

admittedly only a suit for declaration and not a suit for both

declaration and possession. In a suit filed for possession based

on title the plaintiff is bound to prove his title and pray for a

declaration that he is the owner of the suit land because his suit

on the basis of title cannot succeed unless he is held to have

some title over the land. However, the main relief is of

possession and, therefore, the suit will be governed by Article 65

of the Limitation Act, 1963. This Article deals with a suit for

possession of immovable property or any interest therein based

on title and the limitation is 12 years from the date when

possession of the land becomes adverse to the plaintiff. In the

instant case, even if the case of the defendants is taken at the

highest, the possession of the defendants became adverse to the

plaintiffs only on 19.08.1978 when possession was handed over

to the defendants. Therefore, there is no merit in this contention

of the appellants.

1 (2016) 1 SCC 332 8

10. It was also urged that the plaintiffs had prayed that they

were Inamdars and that the High Court had created a new case

for the plaintiffs by declaring them to be Mutawalis. It was

argued that since plaintiffs had not claimed the relief that they

were Mutawalis, the High Court could not have granted this

relief. Reliance has been placed on a judgment of this Court in

the case of Bachhaj Nahar v. Nilima Mandal2. Para 22 of the

said judgment reads as follows:

“22. The observation of the High Court that when a plaintiff sets forth the facts and makes a prayer for a particular relief in the suit, he is merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropriate in a civil suit while proposing to grant as relief, a lesser or smaller version of what is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer.”

(emphasis supplied)

11. In our view, the aforesaid judgment does not help the

appellants and, in fact, helps the respondents. The judgment

clearly lays down that the lesser relief or smaller version of the

relief claimed or prayed for can be granted. The plaintiffs claimed

the status of Inamdars which is a higher position than that of

2 (2008) 17 SCC 491 9

Mutawalis. The High Court has granted a lesser or lower relief

and not a higher relief or totally new relief and, therefore, we

reject this contention also.

12. It was also urged that the civil court had no jurisdiction to

decide the suit. No such objection was raised before the trial

court. This objection was raised before the High Court but has

been rightly rejected. The issue in this case was whether the

properties were properties of the Dargah or not and the issue was

not whether the properties are wakf properties or not. The High

Court rightly held that the plaintiffs were not claiming any

personal right in the land but only claiming rights of

management over the property of the Dargah. We agree with the

finding of the High Court that the civil court had the jurisdiction

to decide the suit.

13. At this stage, it would be pertinent to point out that the

appellants/defendants, during the course of this appeal, have

filed a number of applications to place on record certain

documents which were not on the record of the trial court. No

explanation has been given in any of these applications as to why

these documents were not filed in the trial court. These 10

documents cannot be looked into and entertained at this stage.

The defendants did not file these documents before the trial

court. No application was filed under Order XLI Rule 27 of the

Code of Civil Procedure, 1908 for leading additional evidence

before the first appellate court or even before the High Court.

Even the applications filed before us do not set out any reasons

for not filing these documents earlier and do not meet the

requirements of Order XLI Rule 27 of the Code of Civil Procedure.

Hence, the applications are rejected and the documents cannot

be taken into consideration.

14. In view of the above discussion, we find no merit in the

appeal and the same is dismissed. Pending application(s), if any,

shall stand disposed of.

....................................J. (N. V. RAMANA)

....................................J. (DEEPAK GUPTA)

....................................J. (INDIRA BANERJEE) New Delhi July 03, 2019