Surendra Nath Pasricha v. Kamla Pasricha & Ors.

(ii) I cannot agree with the argument urged on behalf of the appellant/defendant, inasmuch as, in the case of Lakhmi Chand (supra) the plaintiff claimed injunction from being dispossessed from the suit property, and there were serious questions of title which were in issue and parties went to trial on this issue, as also whether the plaintiff was or was not in possession. This Court in the case of Lakhmi Chand (supra) gave a finding that the defendant in the suit was found in possession and not the plaintiff and therefore held that injunction could not be granted to the plaintiff in the suit. This Court in the case of Lakhmi Chand (supra) while relying upon the judgment in the case of Anathula Sudhakar (supra) has held that once the plaintiff is not in possession there did not arise issue of grant of injunction to such a plaintiff from being dispossessed.

(iii) This Court also held in Lakhmi Chand’s case (supra) by placing reliance upon the ratio of the judgment of the Supreme Court in the case of Anathula Sudhakar (supra) that where the parties proceeded on the basis of title being in issue and accordingly the case is contested by leading evidence by the respective parties then the issue of title is very much in issue and can be decided by the civil court. The relevant observations of the judgment in the case of Lakhmi Chand (supra) are contained in paras 5 to 9 and which paras read as under:-

5. The relevant issue which is called upon for decision as per the arguments urged on behalf of the parties before this Court is the issue no.5. Issue no.5 is the issue with respect to entitlement of the appellants/plaintiffs for injunction with respect to the suit property and which head of injunction would have within its hold two ingredients, one as to whether the appellants/plaintiffs are the owners of the suit property and second as to whether the appellants/plaintiffs are in possession of the suit property as on the date of the suit. It is these two ingredients and aspects which are called for decision in the present Regular Second Appeal.

6. Before turning to these two aspects to be decided, the law with respect to grant of injunction, pleading possession and ownership of an immovable property, is required to be noted and which is exhaustively stated in the judgment of the Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others (2008) 4 SCC 594, and the relevant paras of which judgment are paras 13 to 21, and the same read as under:xxxxx xxxxx xxxxx

17. There is some confusion as to in what circumstances the question of title will be directly and substantially in issue, and in what circumstances the question of title will be collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari Madras High Court considered an appeal arising from a suit for possession and injunction. The defendant contended that the plaintiff had filed an earlier suit for injunction which was dismissed, and therefore the plaintiff was precluded from agitating the issue of title in the subsequent suit, being barred by the principle of res judicata. It was held that the earlier suit was only for an injunction (to protect the standing crop on the land) and the averments in the plaint did not give rise to any question necessitating denial of plaintiff's title by the defendant; and as the earlier suit was concerned only with a possessory right and not title, the subsequent suit was not barred. There are several decisions taking a similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally, and therefore a subsequent suit for declaration of title would not be barred.

18. On the other hand, in Sulochana Amma v. Narayanan Nair this Court observed that a finding as to title given in an earlier injunction suit, can operate as res judicata in a subsequent suit for declaration of title. This was on the premises that in some suits for injunction where a finding on possession solely depended upon a finding on the issue of title, it could be said that the issue of title directly and substantially arose for consideration; and when the same issue regarding title is put in issue, in a subsequent title suit between the parties, the decision in the earlier suit for injunction may operate as res judicata. This Court observed: (SCC p.20, para 9)

19. This Court in Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer (at SCC pp.362-63, para 24) noticed the apparent conflict in the views expressed in Vanagiri and Sulochana Amma and clarified that the two decisions did not express different views, but dealt with two different situations, as explained in Corpus Juris Secundum (Vol.50, para 735, p.229): “Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.” xxxxx xxxxx xxxxx

21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” (emphasis is mine)

7. A reading of the aforesaid paragraphs of the judgments of the Supreme Court in Anathula Sudhakar’s case (supra) shows that a person who is in possession can protect his possession against the world at large except the true owner. As against the true owner the equitable remedy of injunction is not to be granted in favour of a plaintiff who is not in lawful possession. In a suit where a plaintiff only claims injunction, but where title of a plaintiff is seriously disputed and which requires examination of complex questions of law and facts, then a simplicitor suit for injunction will not lie and it would be necessary for the plaintiff to seek a declaratory relief with respect to the ownership of the suit land before seeking injunction with respect thereto. The Supreme Court has also however held that if a suit is simplicitor for injunction but the parties proceed on the basis of title itself being in issue and accordingly the case is contested by leading evidence by the respective parties, then in such a case the simplicitor suit for injunction can be said to include the aspect of title which has to be decided. Thus, in any suit for injunction filed with respect to an immovable property where title of the suit property is disputed, courts have to examine the aspect of title which is directly in issue and it is only if the plaintiff is found to have title to the suit property, only then the plaintiff will be entitled to injunction, of course provided that the plaintiff is also found to be in actual physical possession of the suit property at the time of filing of the suit.

8. So far as the aspect of title is concerned in the present case, counsel for the appellants/plaintiffs has conceded that the appellants/plaintiffs have not proved their title to the suit property, and therefore, the appellants/plaintiffs are seeking relief only on the basis of their settled and lawful possession of the suit property. I may note that even if the title was in issue as the issue no.5 covers it and parties have led evidence on the issue of title, it is seen that appellants/plaintiffs have led no documentary evidence whatsoever to show their ownership/title of the suit land. Obviously, oral testimony cannot confer ownership/title of the suit land on the appellants/plaintiffs and appellants/plaintiffs had necessarily to prove, ordinarily by unimpeachable documentary evidence, that the suit property fell to the share of their grandfather Sh. Chhajan on there being an oral partition and from which Sh. Chhajan the appellants/plaintiffs have inherited the suit property being his grandsons. The only document which was filed by the appellants/plaintiffs was a revenue record of the year 1977-78, and which document was never proved because this document was only a photocopy and not a certified copy of the revenue record of 1977-78. This document has not been exhibited but is only marked as Mark A even in the affidavit by way of evidence filed on behalf of the appellants/plaintiffs of their witness PW-1/Sh. Raghbar Singh/plaintiff no.2. Even for the sake of arguments, if we take the revenue record of 1977-78 as proved and exhibited document, it is seen that even in this document, the title of the suit land is admittedly shown to be of Smt. Fatto mother of the respondent no.1/defendant no.1 and there is no ownership shown of the suit property of the appellants/plaintiffs or their predecessors-in-interest/ancestors. Therefore, it is clear that appellants/plaintiffs have miserably failed to prove their title to the suit land. Once appellants/plaintiffs failed to prove their title to the suit land, no relief of injunction can be granted holding that the appellants/plaintiffs are the owners of the suit land, and in fact, in view of the paras of the judgment in Anathula Sudhakar’s case (supra) quoted above, injunction cannot be granted in favour of a person/plaintiff to protect his possession if such person is in wrongful possession, and therefore, injunction cannot be granted to a person in unlawful possession and against a rightful owner, and this is because injunction is a discretionary relief and cannot be granted to an illegal occupant. Therefore, once appellants/plaintiffs have miserably failed to prove their title to the suit land, firstly they are not entitled to any injunctive relief by declaring that the appellants/plaintiffs are the owners of the suit property and secondly the appellants/plaintiffs cannot also be granted injunction against the respondent no.1/defendant no.1 who not only is the owner of the suit property as discussed below, but also that respondent no.1/defendant no.1 is found to be in possession of the suit land and not the appellants/plaintiffs.

6. Therefore, in my opinion, the argument of the appellant/defendant is misconceived that the suit for injunction as claimed is not maintainable because parties in this case proceeded on the basis that title was in issue and thus the respondents/plaintiffs had proved the gift deed Ex. PW1/2.” (emphasis added)

10. For completing narration I would like to note that counsel for the defendant nos. 1 and 2 has relied upon an interim order dated 7.9.1992 passed in Suit No. 161/1990 passed by this Court in the suit titled as Ravinder Nath Pasricha Vs. Surender Nath Pasricha whereby an application under Order XII Rule 6 CPC filed by the present plaintiff who was the defendant in that suit was dismissed, however I fail to understand as to how an interim order passed in a suit can have any legal effect once the suit itself was in fact dismissed and as stated in para 9 of the present suit plaint. Obviously, interim orders do not confer rights on the parties and rights are conferred on the parties only in terms of final judgment passed in a suit and which will only then operate as res judicata between the parties.

11. In my opinion, the arguments urged on behalf of the defendant nos. 1 and 2 of the judgment dated 24.4.2007 in Suit NO. 272/2003 not operating as res judicata because issue of title could not have been decided in a suit for injunction, is an argument which flies in the face of the existence and the language of Section 11 CPC. By virtue of Section 11 CPC a judgment passed in a suit which is heard and finally decided will operate as res judicata i.e it is not possible to examine a judgment rendered in an earlier suit heard and finally decided, as to whether the judgment rightly or wrongly decides the suit. A judgment which becomes final is final and binds as res judicata irrespective of any alleged rights or wrongs decided by the earlier judgment. The only way a judgment can be held to be wrongly decided, and held as not binding, if appeal is filed against that judgment in the appellate court, and then such judgment is set aside, but not by a defence raised in a subsequent suit. As already stated above, the defendant no.1 in Suit No. 272/2003 namely Sh. Ravinder Nath Pasricha, predecessor-in-interest of defendant nos. 1 and 2, had filed an appeal against the judgment dated 24.4.2007 passed by Sh. Naresh Kumar Laka, Civil Judge, before the appellate court, but the appeal was dismissed as not maintainable. The matter rested at that. Therefore, once there is finality to the judgment dated 24.4.2007 in Suit No. 272/2003 then the said judgment and issues decided by the said judgment operate as res judicata between the parties and persons who claim through the parties of the said earlier Suit No. 272/2003. The argument of the defendant nos.[1] and 2 of the earlier judgment dated 24.4.2007 in Suit No. 272/2003 being wrongly passed therefore is also not an argument which is legally available to the defendant nos. 1 and 2 and therefore the same is rejected.

12. I may note that the certified copies of the judgments and orders passed in suits by the civil courts do not have to be proved as the said documents are public documents and can be referred to by the Court in view of Section 74 of the Indian Evidence Act.

13. As a result of the aforesaid discussion, the application filed by the plaintiff under Order XII Rule 6 CPC is liable to be and is accordingly allowed. Suit of the plaintiff is decreed and a decree for possession is passed in favour of the plaintiff and against the defendants with respect to the first floor and barsati floor of the property bearing no.25/24, East Patel Nagar, New Delhi.

14. In view of the gross and outlandish dishonesty of the defendant nos. 1 and 2, and the strategic non-appearance of defendant no.3 who was a party-defendant no.2 to the earlier Suit No. 272/2003, this application is allowed with costs of Rs.[2] lacs. Costs shall be paid by the defendant nos. 1 and 2 to the plaintiff within a period of six weeks from today. I exercise my powers to impose actual costs under Section 35 CPC and by exempting the application of the Original Side Rules for costs by exercising powers of exemption provided under Rule 14 of the Original Side Rules. I may also note that the Original Side Rules are proposed to be amended by this Court and by the proposed amendment in the Rules now there is power to award costs upto actual costs. It is high time that the dishonesty in litigation is severely discouraged by imposing actual and exemplary costs because it is found that this Court is burdened on a large number of occasions with completely dishonest defences, such as the defences of defendant nos. 1 and 2 in the present case.

15. In my opinion the present is also a fit case for initiating criminal action against the defendant nos. 1 and 2 for taking up a false defence and therefore this Court exercising its powers under Section 340 Cr.PC read with Section 209 IPC directs that the Registrar General of this Court will draw up a complaint against the defendant nos. 1 and 2 for taking up a completely false defence which is an offence under Section 209 IPC, and this complaint be sent to the concerned court for further proceedings against the defendant nos. 1 and 2. This criminal complaint will be pursued further by the plaintiff in the present suit before the competent court

16. The application is allowed and disposed of accordingly. CS(OS) No. 252/2016

17. The following issues are framed in the suit:-

(i) Whether the plaintiff is entitled to mesne profits, if so, at what rate and for what period? OPP

(ii) Whether the plaintiff is entitled to interest on mesne profits, if so at what rate and for what period? OPP

(iii) Relief.

18. At the request of the plaintiff, I appoint Ms. Rashi Punia, Advocate (Mobile No. 9646303601), Chamber No. 102, Delhi High Court, who is present in Court, as a Local Commissioner to record evidence. Local Commissioner will be paid a lump sum fee of Rs.75,000/- plus out of pocket expenses, and which will be borne by the plaintiff initially, subject to final orders on costs to be passed at the time of disposal of the suit. Plaintiff will make available a chamber space or any other space in the High Court premises so that judicial file does not go outside the High Court premises for recording of evidence. Local Commissioner and parties will keep in mind ratio of the judgment of the Supreme Court in the case of Bipin Shantilal Panchal Vs. State of Gujarat and Anr. (2001) 3 SCC 1 with respect to recording of evidence with the caveat that none of the parties will unnecessary prolong the cross-examination of witnesses of the other side and the questions in such cross-examination would be such which would be relevant to the matters in controversy.

19. List before the Local Commissioner for fixing dates for recording of evidence on 16.5.2018 at 4.00 PM.

20. List in Court for reporting the recording of evidence on 24.8.2018.

MARCH 15, 2018/ib VALMIKI J. MEHTA, J