Zarif Ahmad (D) Thr. Lrs. vs Mohd.Farooq

CIVIL APPEAL No.666 OF 2015 [Arising out of S.L.P. (C) No. 8008 of 2009]

Zarif Ahmad (D) through Lrs. & Another ... Appellants Versus

Mohd. Farooq … Respondent

JUDGMENT

PRAFULLA C. PANT, J.

1. This appeal is directed against judgment and order

dated 10.12.2008 passed by High Court of judicature at

Allahabad whereby Second Appeal is allowed and the

decree passed by Civil Judge (Junior Division), Havali,

Saharanpur, in Suit No. 77 of 1999, is restored.

2. We have heard learned counsel for the parties and

perused the papers on record.

3. Brief facts of the case are that plaintiff/respondent Signature Not Verified Digitally signed by Chetan Kumar instituted suit (OS No. 77 of 1999) seeking permanent Date: 2015.01.27 16:36:54 IST Reason:

injunction against his brother defendant/appellant no. 1 –

1 Zarif Ahmad and nephew Zamir Ahmad

(defendant/appellant no. 2) to restrain them from

interfering in possession of the premises in his occupation.

It is pleaded by the plaintiff that the land shown at the foot

of the plaint (Annexure P-1) with letters Ka, Kha, Ga, Gha,

Cha, Chha, which bears Nagar Panchayat plot no. 358 is

owned and possessed by him, and the adjoining land

shown by letters Gha, Cha, Chha, and Jha bearing Nagar

Panchayat plot no. 357 belongs to the defendants. It is

further pleaded that plaintiff pays house tax of the

property no. 358, and defendants have no concern with it.

The defendants have constructed their house over the land

shown by letters Gha, Cha, Chha, and Jha which is

towards south of the plaintiff’s land. It is alleged in the

plaint that the defendants have threatened the plaintiff

that they would forcibly take possession of the premises

held by him. Consequently, the suit is filed.

4. The defendants contested the suit, and filed written

statement (copy-Annexure P-3) before the trial court. They

denied the title and possession of the plaintiff over land in

2 suit. It is stated in the written statement that the

disputed land originally belonged to one Zamindar of town

Behat, before abolition of Zamindari. The land in question

was vacant piece of land, occupied by defendant no. 1 who

constructed his residence and planted trees over it. He

(defendant no. 1) continued his possession over the land

and started paying house tax since 1979 when Town Area

of Behat was notified. It is further pleaded by the

defendants that original Khasra number of the plot in

question was 734/2/3. It is further pleaded that the

plaintiff has been given share in the house of his father in

the ancestral property situated in town Kasban, and he

lives with his family there. It is alleged by the defendants

that the plaintiff got his name entered in the municipal

record in connivance with the Chairman and Members of

Town Area Committee, Behat, and got the disputed

property numbered as 358. It is further pleaded that the

suit is bad for mis-joinder of defendant no. 2. With the

above pleadings, the relief claimed by the plaintiff was

opposed by the defendants.

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5. The trial court, on the basis of the pleadings of the

parties, framed the following issues:

(1) Whether the plaintiff is owner and in possession of the suit property?

(2) Whether the defendants are illegally interfering with the peaceful possession of the plaintiff by cutting the trees, demolishing the structure and forcibly taking possession of the property?

(3) Whether the suit is barred by the provisions of Sections 38 and 41 of Specific Relief Act?

(4) Whether the suit is undervalued and court fees paid is insufficient?

(5) Whether the suit is bad for mis-joinder of defendant no. 2?

(6) To what relief, if any, the plaintiff is entitled?

6. The parties adduced their oral and documentary

evidence before the trial court. On behalf of the plaintiff,

PW1-Mohd. Farooq (plaintiff himself) and PW 2-Idrish were

examined. On the other hand, on behalf of the

defendants, DW1- Zarif Ahmad (defendant no. 1 himself),

DW2-Safiq and DW3-Anita (Advocate Commissioner, who

inspected the spot), were examined. It appears that 4 plaintiff filed documents to show that in the Assessment

Register of the Town Area, plot no. 358 is recorded in his

name whereas plot no. 357 is recorded in the name of

defendant no. 1- Zarif Ahmad. He further filed receipts

showing payment of house tax in respect of House no. 358

from the year 1993 to 1997, by him. The defendants

appear to have filed paper no. 19C (copy of khatauni),

paper no. 20C (copy of khasra), paper nos. 21C and 22C

(copies of receipts of house tax of house no. 357), paper

nos. 23C and 25C (copies of extract of assessment of town

area) and paper no. 26C (copy of order for sanctioning of

site plan).

7. The trial court, after hearing the parties and

discussing the evidence, decided all the issues in favour of

the plaintiff and decreed the suit vide judgment and order

dated 30.7.2004 (copy-Annexure P-4). Aggrieved by the

said judgment and decree, defendants filed Civil Appeal

no. 40 of 2004 before the District Judge, which was

allowed vide judgment and order dated 2.3.2007

(copy-Annexure P-5) by Additional District Judge,

5 Saharanpur. The plaintiff challenged the judgment of the

first Appellate Court before the High Court in Second

Appeal. The High Court, after hearing the parties,

set-aside the order of the first Appellate Court, and

restored the decree passed by the trial court. Hence, by

way of special leave, the defendants have filed the present

appeal.

8. Learned counsel for the defendants argued before

us that the property in suit was not identifiable, and the

first Appellate Court committed no error of law in

dismissing the suit. However, on perusal of plaint (copy-

Annexure P-1), we find that at the end of the plaint,

plaintiff has not only given the boundaries of the plot but

also mentioned Nagar Panchayat (Town Area/Municipal)

number of the plot. It is also clearly mentioned at the foot

of the plaint that the house in question is situated in

Mohalla – Sadakpur, Town Behat Nagar Panchayat, Tehsil

Khas, District Saharanpur, and in the plaint map, same is

shown by letters Ka, Kha, Ga, Gha, Cha, Chha. In our

opinion, there is little force in the argument of learned

6 counsel for the defendants that the land in suit is not

identifiable. Had the land in question been non

identifiable, the Advocate Commissioner would not have

given the report, relied by the defendants (copy-Annexure

P-2) after inspection of the plot in question.

9. It is contended by the learned counsel for the

defendants that no length and width of the land in

question is mentioned in the plaint. As such, the decree

passed by the trial court was liable to be set-aside as the

decree could not have been executed.

10. We have considered the submission of leaned

counsel for the defendants but we are unable to agree with

it for the reason that had it been a case of mandatory

injunction requiring restoration of possession of land to

the plaintiff or demolition of the construction raised by the

defendants, what the defendants have pleaded before us,

could have been accepted but the present suit is for the

relief of permanent prohibitory injunction in respect of the

land which is described with boundaries and its municipal

7 number. Therefore, it cannot be said that the decree

passed by the trial court is un-executable.

11. Order VII Rule 3 of the Code of Civil Procedure,

1908 (for short “CPC”), which pertains to the requirement

of description of immovable property, reads as under:

“Where the subject matter of the suit is immovable property:-

Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property, sufficient to identify it, and in case such property can be identified by boundaries in a record of settlement or survey, the plaint shall specify such boundaries or numbers.”

12. The object of the above provision is that the

description of the property must be sufficient to identify it.

The property can be identifiable by boundaries, or by

number in a public record of settlement or survey. Even

by plaint map showing the location of the disputed

immovable property, it can be described. Since in the

present case, the suit property has been described by the

plaintiff in the plaint not only by the boundaries but also

8 by the municipal number, and by giving its description in

the plaint map, from no stretch of imagination, it can be

said that the suit property was not identifiable in the

present case. In our opinion, the High Court has rightly

held that the first Appellate Court has erred in law in

dismissing the suit by holding that the land is not

identifiable. It appears that the first Appellate Court has

wrongly framed the additional issue as to whether the

property in dispute is identifiable or not particularly when

there was no such plea in the written statement. We are

in agreement with the High Court that there was no need

on the part of the first Appellate Court to remit the matter

to the trial court as contended by the defendants before it

(High Court) to allow the parties to adduce evidence on the

additional issue, as neither issue on identifiability of land

arises from the pleadings nor the evidence was lacking on

record.

13. No doubt, Section 107 of CPC empowers the

appellate court to remand a case, but it simultaneously

empowers the appellate court to take additional evidence

9 or to require such evidence to be taken. Rule 24 of Order

XLI C.P.C provides that where evidence on record is

sufficient, appellate court may determine the case finally.

It is not a healthy practice to remand a case to trial court

unless it is necessary to do so as it makes the parties to

wait for the final decision of a case for the period which is

avoidable. Only in rare situations, a case should be

remanded e.g. when the trial court has disposed of a suit

on a preliminary issue without recording evidence and

giving its decision on the rest of the issues, but it is not so

in the present case.

14. In P. Purushottam Reddy and another vs.

Pratap Steels Ltd1, this Court has observed in

paragraph 11 as under:

“11. In the case at hand, the trial court did not dispose of the suit upon a preliminary point. The suit was decided by recording findings on all the issues. By its appellate judgment under appeal herein, the High Court has recorded its finding on some of the issues, not preliminary, and

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(2002) 2 SCC 686

10 then framed three additional issues leaving them to be tried and decided by the trial court. It is not a case where a retrial is considered necessary. Neither Rule 23 nor Rule 23-A of Order 41 applies. None of the conditions contemplated by Rule 27 exists so as to justify production of additional evidence by either party under that Rule.

The validity of remand has to be tested by reference to Rule 25. So far as the objection as to maintainability of the suit for failure of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix A CPC is concerned, the High Court has itself found that there was no specific plea taken in the written statement. The question of framing an issue did not, therefore, arise. However, the plea was raised on behalf of the defendants purely as a question of law which, in their submission, strikes at the very root of the right of the plaintiff to maintain the suit in the form in which it was filed and so the plea was permitted to be urged. So far as the plea as to readiness and willingness by reference to clause (c) of Section 16 of the Specific Relief Act, 1963 is concerned, the pleadings are there as they were and the question of improving upon the pleadings does not arise inasmuch as neither any of the parties made a prayer for amendment in the pleadings nor has the High Court allowed such a liberty. It is true that a specific issue was not framed by the trial court. Nevertheless, the parties and the trial court were very much alive to the issue whether Section 16(c) of the Specific Relief Act was complied with or not and the

11 contentions advanced by the parties in this regard were also adjudicated upon. The High Court was to examine whether such finding of the trial court was sustainable or not — in law and on facts. Even otherwise the question could have been gone into by the High Court and a finding could have been recorded on the available material inasmuch as the High Court being the court of first appeal, all the questions of fact and law arising in the case were open before it for consideration and decision”.

Therefore, the High Court rightly rejected the contention of

the defendants on the above point.

15. Our attention is also drawn by the learned counsel

for the defendants, to the copy of the report of Advocate

Commissioner (Annexure P-2) in which the Advocate

Commissioner has reported that the defendants were

found in possession of the disputed property.

16. However, in our view, Advocate Commissioner’s

report, in the present case, is against the weight of the oral

and documentary evidence on record which sufficiently

proves that plaintiff was in possession over plot no. 358,

and for several years he was paying the house tax as was

found by the trial court on the basis of house tax receipts

12 and extracts of house tax Assessment Register. It is not

disputed that plot no. 357 belonging to the defendants was

in south of plot no. 358, and house of the defendants was

situated over their plot. The trial court has decreed the

suit only in respect of plot no. 358.

17. For the reasons, as discussed above, we find no

illegality with the impugned order whereby the High Court

has allowed Second Appeal, and restored the decree

passed by the trial court. Accordingly, this appeal is

dismissed. No order as to costs.

……………………..…………J. [Dipak Misra]

…………………..……………J. [Prafulla C. Pant]

New Delhi;

January 27, 2015.

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ITEM NO.1A COURT NO.6 SECTION XI (For Judgment

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No.666 of 2015

ZARIF AHMAD (D) THR. LRS. & ANR. Appellant(s)

VERSUS

MOHD. FAROOQ Respondent(s)

Date : 27/01/2015 This appeal was called on for Judgment today.

For Appellant(s) Mr. Shankar Divate, AOR

For Respondent(s) Mr. Gaurav Jain, Adv.

Mrs. Abha Jain, AOR Mr. Jaivir Singh, Adv.

Hon'ble Mr. Justice Prafulla C. Pant, pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Dipak Misra and His Lordship.

The appeal is dismissed in terms of the signed reportable judgment.

(Chetan Kumar) (H.S. Parasher) Court Master Court Master

(Signed reportable judgment is placed on the file)

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