High Court
Legal Reasoning
sa-333-1995 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.333 OF 1995Aminabee W/o Turabuddin (Died through L.Rs.)1-A.Shaikh Maheboob Turabuddin Age 55 yrs., Occu. Agri., R/o Pendgaon Tq. and Dist. Beed.1-B.Shaikh Baba Turabuddin (Died) Through his Legal Heirs1-B(i) Shaikh Kalima w/o Shaikh Baba, Age: 52 Years, Occu: Housewife, R/o. Nalvandi Road, Mauli Nagar Beed1-B(ii) Shaikh Hakim s/o Babamiya, Age: 25 Years, Occu: Agril, R/o. C/o. Shaikh Babamiya, Ganghi Nagar, Behind Padmini Hospital, Beed1-B(iii) Shaikh Mosin s/o Babamiya Age: 24 Years, Occu: Agril., R/o. Nalvandi Road, Beed1-B(iv) Reshma Jafar Sayyad, Age: 32 Years, Occu: Housewife, R/o Sadafulewasti, Jamkhed, Ahemadnagar1-13(v) Pathan Shabu Ismaial Age: 33 Years, Occu: Housewife, R/o. Nalvandi Road, Mauli Nagar Beed1-B(vi) Ayesha Baba Shaikh, Age: 27 Years, Occu: Housewife, R/o. as above1-B(vii) Taslim Ajim shaikh Age: 25 Years, Occu: Housewife, R/o. as above1-C.Shaikh Mustafa Turabuddin Age 40 yrs., Occu. driver
Legal Reasoning
sa-333-1995 judg.odt(2)R/o as above.1-D.Shaikh Abdul Turabuddin Age 38 yrs., Occu. and R/o as above.1-E.Shamim Khurshad Age 50 yrs., Occu. Household, R/o Hatola Tq. and Dist. Osmanabad.1-F.Khatija Anis Age 42 yrs., Occu. Agri., R/o Gadi Tq. Georai Dist. Beed.1-G.Jahurabee Khalil Age 35 yrs., Occu. Household, R/o Hatola Tq. and Dist. Osmanabad...AppellantsVERSUS1)Shriraj Ahmed Ali s/o Safadar Ali,Age : 45 years, Occu. Agriculture,R/o. Beed (Deshmukh Galli, Farshi),Tq. & District Beed.2) Amanat Ali Sujat Ali died L.R'S(2.i)Faim Amanat Ali Deshmukh2.ii)Hamid Amanat Ali Deshmukh2.iii) Sujat Amanat Ali Deshmukh2.iv) Mohammad Amanat Ali Deshmukh2.v) Farad Bee Siraj DeshmukhAll adults, Occ. Business & H.H r/o Old Bazar, Deshmukh Galli, Beed District Beed...Respondents...Mrs. Sushma T. Jadhav h/f Mr. D.N. Suryawanshi, Advocate forAppellants. Mr. M.M. Patil (Beedkar), Advocate for Respondent Nos.1 & 2 (iii) to(v).... sa-333-1995 judg.odt(3) CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : MARCH 19, 2025 PRONOUNCED ON : MAY 09, 2025JUDGMENT : 1.The appellant/original plaintiff impugns judgment anddecree dated 11.01.1995 passed by District Judge, Beed in RegularCivil Appeal No.111 of 1993, thereby upholding judgment and decreedated 15.04.1993 passed by Joint Civil Judge, Junior Division, Beedin Regular Civil Suit No.462 of 1988, thereby dismissing suit ofplaintiff/appellant seeking decree of perpetual injunction againstrespondents/defendants.2.The plaintiff instituted Regular Civil Suit No.462 of 1988contending that she inherited suit property from her mother. She hasconstructed farmhouse and residing along with her children. Shemanaged agricultural operation by hiring labour. Defendant no.1 isinfluential person and local MLA. He manged to get mutation incultivation column of suit land behind her back. In the year 1987, shecame to know about illegal mutation; hence, issued notice todefendant no.1 to which he failed to reply. On 17.10.1988,defendants obstructed her possession on the basis of illegal entry inmutation record. Therefore, suit is filed seeking decree of perpetualinjunction. sa-333-1995 judg.odt(4)3.The defendants refuted plaintiff’s claim contending thatHasmatbee, who is mother of plaintiff was the original owner. Sheagreed to sell suit property to defendant no.1 vide agreement to selldated 10.06.1960. On 19.04.1967, she executed sale deed in favourof Dilawar Baig for or on behalf of Safadar Ali. Dilawar Baig isnephew of Safadar Ali. Hence, Safadar Ali brought him to Beedalong with his parents for taking care of land. According todefendants, Safadar Ali purchased the said land in the name ofDilawar Baig as benami purchaser. Accordingly, his name wasrecorded in mutation. After death of Dilawar Baig, his legal heirs hasinstituted Regular Civil Suit No.25 of 1971 against defendant no.1 fordeclaration of title. The said suit was dismissed. Similarly, oneHusratbee and others had also raised claim over suit property inRegular Civil Suit No.18 of 1981, which came to be dismissed on24.11.1986. According to defendant, alternatively, he perfected titleby way of adverse possession.4.The Trial Court framed issues, recorded evidence ofparties and after evaluation of evidence concluded that plaintiff failedto prove her title and possession over suit property, so also, failed toprove any obstruction by defendants as alleged. Eventually, dismissedthe suit. Aggrieved plaintiff filed appeal before learned DistrictJudge, who concurrent with finding of Trial Court on all points andmaintained the decree of dismissal of suit. It appears that cross sa-333-1995 judg.odt(5)objection was filed on behalf of defendants. However, same is notconsidered being barred by limitation.5.Aggrieved plaintiff filed this second appeal. It was placedfor admission before this Court on 02.02.1996 and has been admittedby passing following order :“Heard counsel.There involves substantial question of law on both appreciationof evidence and interpretation of law, relating to Sec.4(1) ofBenami Transaction (Prohibition) Act. The findings recorded bythe courts below are contrary to Supreme Court judgmentreported in 1995 SCW 1422.Admit.Notice.Shri Naik waives service for respondent no.1.” 6.Second appeal was then placed under the caption ‘finalhearing’ before this Court on 24.02.2025. It was pointed out bylearned advocate appearing for respondents that while admittingsecond appeal, specific substantial question of law is not framed.Therefore, learned advocate appearing for appellants soughtaccommodation to file specifically framed substantial questions of law.Accordingly, liberty was granted to him. He passed on a pursis andproposed three specifically framed substantial questions of law, whichreads thus :“1. Whether both the courts below ought to have considered thatthe alleged sale-deed dated 19/4/67 was acted upon and whether sa-333-1995 judg.odt(6)late Dilawar Baig or his son or late Sabdar Ali tried to get recordtheir names in revenue record?2. Whether in absence of production of original sale-deed whichis alleged to be in the custody of defendants, without any reasoncan rely upon the copy of sale-deed and that too when plaintiffhas specifically denied ?3. Whether the defendants can claim ownership and possession ofthe suit property considering the provisions of sec 4(ii) of BenamiTransactions (Prohibition) Act 1988?” 7.Learned advocates appearing for respective partiesadvanced their submissions on the question of law as indicated inorder of admission as well as proposed questions of law placed onrecord by way of pursis.8.Mrs. Sushma, learned advocate appearing for appellantsvehemently submits that defendants relied upon sale deed dated19.04.1967. However, it was never acted upon. Further, original saledeed was not placed on record. The certified copy of sale deed isadmitted in evidence without following due process of law. Evenotherwise, as per pleading of defendants, it was benami transaction inthe name of Dilawar Baig and could not have been admitted in viewof Section 4(i) of The Benami Transactions (Prohibition) Act, 1988.She would further submit that defendant cannot claim his ownershipand possession on the basis of so-called sale deed dated 19.04.1967 inview of bar under Section 4(ii) of Benami Transactions (Prohibition)Act, 1988. sa-333-1995 judg.odt(7)9.Per contra, Mr. M.M. Patil (Beedkar), learned advocateappearing for respondents submits that plaintiff instituted simplicitersuit for perpetual injunction without claiming declaration ofownership. He submits that it was obligatory on the part of plaintiffto prove her possession by leading cogent evidence. Further, whenplaintiff claims to have acquired title in the suit property through hermother, and when defendants have put up specific case that mother ofplaintiff has alienated suit property vide sale deed dated 19.04.1967in the name of Dilawar Baig, it was necessary for her to seekdeclaration of her ownership. According to Mr. Patil, suit simpliciterfor perpetual injunction would not be maintainable in the facts ofpresent case. In support of his contentions, he relied uponobservations of Hon’ble Supreme Court in case of T.V. RamakrishnaReddy Vs. M. Mallappa and Another1 and Anathula Sudhakar Vs P.Buchi Reddy2. Mr. Patil would further submit that both Courts havecorrectly recorded finding of fact that plaintiff could not establishpossession over suit property. Such findings of fact is based onappreciation of evidence, hence, not susceptible to be interfered insecond appeal. 10.Having considered submissions advanced, it can beobserved that plaintiff claims her title and possession contending thatshe has inherited suit property from her mother Hasmatbee w/o1(2021) 13 SCC 1352(2008) 4 SCC 594 sa-333-1995 judg.odt(8)Jamaloddin and since then, she is enjoying property as owner andpossessor. Per contra, defendant no.1 claims that his father SafadarAli purchased the suit property from Hasmatbee under registered saledeed dated 19.04.1967. The sale deed was benami in the name ofDilawar Baig i.e. nephew of Safadar Ali. Dilawar Baig was cultivatingland on behalf of Safadar Ali and as such, refuses title and possessionof plaintiff over suit property.11.It can be observed that copy of sale deed dated19.04.1967 is placed on record at Exhibit-110. It is a registered saledeed. One Sk. Mujahit (DW-2), a clerk from the office of Sub-Registrar, Beed was examined as witness by defendants. He provedthe contents of documents from relevant register. Pertinently, theplaintiff herself is witness on said documents. The plaintiff has notdisputed defendants contention that her mother executed sale deeddated 19.04.1967. The learned District Judge observed that in viewof provisions of Section 52(c) of Registration Act, copy of sale deed ismaintained by office of Registrar and as such, it is public document,certified copy of which can be issued under Section 57 of the Act bythe Competent Authority. In this background, certainly there issufficient material bringing cloud of doubt as to the title of plaintiff.At this stage, reference to observations of Hon’ble Supreme Court incase of Anathula Sudhakar (supra) are relevant, which read thus : sa-333-1995 judg.odt(9)"21. To summarise, the position in regard to suits for prohibitoryinjunction relating to immovable property, is as under: (a) Where a cloud is raised over the plaintiff's title and he doesnot have possession, a suit for declaration and possession, with orwithout a consequential injunction, is the remedy. Where theplaintiff's title is not in dispute or under a cloud, but he is out ofpossession, he has to sue for possession with a consequentialinjunction. Where there is merely an interference with the plaintiff'slawful possession or threat of dispossession, it is sufficient to suefor an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only withpossession, normally the issue of title will not be directly andsubstantially in issue. The prayer for injunction will be decided withreference to the finding on possession. But in cases where de jurepossession 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 andsubstantially arise for consideration, as without a finding thereon, itwill not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit forinjunction, unless there are necessary pleadings and appropriateissue regarding title (either specific, or implied as noticed inAnnaimuthu Thevar). Where the averments regarding title areabsent in a plaint and where there is no issue relating to title, thecourt will not investigate or examine or render a finding on aquestion of title, in a suit for injunction. Even where there arenecessary pleadings and issue, if the matter involves complicatedquestions of fact and law relating to title, the court will relegate theparties to the remedy by way of comprehensive suit for declarationof title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, andappropriate issue relating to title on which parties lead evidence, ifthe matter involved is simple and straightforward, the court maydecide upon the issue regarding title, even in a suit for injunction. sa-333-1995 judg.odt(10)But such cases, are the exception to the normal rule that questionof title will not be decided in suits for injunction. But personshaving clear title and possession suing for injunction, should not bedriven to the costlier and more cumbersome remedy of a suit fordeclaration, merely because some meddler vexatiously orwrongfully makes a claim or tries to encroach upon his property.The court should use its discretion carefully to identify cases whereit will enquire into title and cases where it will refer to the plaintiffto a more comprehensive declaratory suit, depending upon thefacts of the case.12.In light of aforesaid exposition of law, when defendantshave brought sufficient material creating doubt as to title of plaintiff,it was for her to seek declaration of ownership. The suit simpliciterfor perpetual injunction in background of aforesaid facts was certainlynot maintainable. Although plaintiff was aware of sale deed executedby her mother in favour of Safadar Ali, no relief was claimed by heragainst same.13.Although, it is contended on behalf of plaintiff thataforesaid sale deed was not acted upon and name of Hasmatbeecontinued in the record of rights and thereafter, her name has beensubstituted under Mutation Entry No.337, it is difficult to accept thatplaintiff holds title to suit property. The continuation of mutationentries is only for fiscal purpose and cannot stand as evidence of title.When plaintiff has not disputed execution of sale deed dated19.04.1967 by Hasmatbee in favour of Dilawar Baig under registered sa-333-1995 judg.odt(11)document, the continuation of mutation entry in the name ofHasmatbee or the plaintiff cannot be construed as evidence of title infavour of plaintiff. 14.So far as the issue of possession is concerned, the plaintiffrelied upon oral evidence of witnesses. The record indicates thatfrom 1968 to 1991, 7/12 extract shows name of Safadar Ali. The oralevidence relied by plaintiff, which is inconsistent with mutationentries is not accepted by the Courts below for good reasons. Theplaintiff claims that she used to cultivate land through Sk. Anis (PW-4), learned District Judge observed that plaintiff has not recordedevidence consistent with her pleadings. The learned District Judgeobserved that evidence of plaintiff on the point of cultivation is notsafe and sound, whereas, the revenue record consistently showspossession of Safadar Ali. On this count also, both Courts recordedconcurrent finding that plaintiff could not prove her possession onsuit property. 15.Although, it is contended on behalf of plaintiff thatSection 4 of Benami Transactions (Prohibition) Act bars to raise claimor defence based on benami transaction, it can be observed that saledeed is executed in the year 1967 i.e. prior to commencement of 1988Act. The provisions contained therein would not be retrospectivelyapplied to the transactions effected prior to 21 years ofcommencement of Act. Particularly in light of observations of Hon’ble sa-333-1995 judg.odt(12)Supreme Court in the case of Gurdev Kaur and Ors Vs. Kaki and Ors3in para 69, which read thus :“69. Now, after 1976 Amendment, the scope of Section 100 hasbeen drastically curtailed and narrowed down. The High Courtswould have jurisdiction of interfering under Section 100, C.P.C.only in a case where substantial questions of law are involvedand those questions have been clearly formulated in thememorandum of appeal. At the time of admission of the secondappeal, it is the bounden duty and obligation of the High Courtto formulate substantial questions of law and then only the HighCourt is permitted to proceed with the case to decide thosequestions of law. The language used in the amended sectionspecifically incorporates the words as "substantial question oflaw" which is indicative of the legislative intention. It must beclearly understood that the legislative intention was very clearthat legislature never wanted second appeal to become "thirdtrial on facts" or "one more dice in the gamble." 16.Therefore, this Court is of the view that plaintiff cannotraise plea relying upon Section 4 of Act of 1988. In light of aforesaidobservations, no fault can be found in concurrent judgments anddecrees passed by the Courts, 17.In that view of matter, second appeal stands dismissed. (S.G. CHAPALGAONKAR, J.)Mujaheed//3AIR 2006 SC 1975