TMI Blog2016 (12) TMI 1864X X X X Extracts X X X X X X X X Extracts X X X X ..... the owner of the suit property. Possession of goods - whether the suit was not maintainable in the absence of any relief qua possession? - HELD THAT:- The case made out by the Plaintiffs is that when Plaintiff Nos. 1, 3 and 5 visited the suit property on December 30, 2006 at about 5:00 p.m., they found that the 'suit house' had been demolished by the Defendants on which they were carrying a new construction. In the light of these pleadings, the Plaintiffs sought the relief of mandatory injunction seeking demolition of the construction carried out by the Defendants on the suit property bearing Survey No. 251/2 as it was illegally put up by the Defendants on Plaintiffs' land. The matter is to be examined in this hue and, therefore, the argument that relief for possession should also have been sought is clearly untenable - there are no merit in these appeals, which are accordingly dismissed with costs. Appeal dismissed. - Civil Appeal Nos. 12068-12070 of 2016 (Arising out of SLP (C) Nos. 1949-1951 of 2014) - - - Dated:- 14-12-2016 - A.K. Sikri and N.V. Ramana, JJ. For Appellant: Huzefa Ahmadi, Sr. Adv., Ninad Laud, Karan Mathur, Anjuman Tripathy and Jayant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssudev Govekar, during his lifetime, was enjoying the suit property and after his death the Plaintiffs and other co-owners were enjoying the said property and the house without interruption. However, when Plaintiff Nos. 1, 3 and 5 visited the suit property on December 13, 2008, at about 5:00 p.m., they were shocked to see that the suit house was demolished and in its place a new construction of structure having 18 sq.mts. length and 12.20 sq.mts. width, comprising 219.60 sq.mts. area, was being constructed and the construction had reached from ground level to slab level height. The Plaintiffs protested this kind of invasion by the Defendants with a request for them to stop the construction of the said illegal structure. If did not yield any result. They even complained to the Village Panchayat and police station, hut without any positive effect. This led them to file the aforesaid suit with following prayers: (a) the Defendants, their family members, agents, servants and/or any person acting on their behalf and/or under their instructions be restrained by way of permanent injunction from interfering with the suit property and to the suit illegal structure in whatsoever nature; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and/or under their instructions are hereby restrained, by way of permanent injunction, from interfering with the suit property and the suit illegal structure. The Defendants are also directed, by way of mandatory injunction, to demolish the suit illegal structure, within three months from the date of this Judgment. 8. Insofar as the trial court is concerned, it had returned the findings that a cloud was raised over the title of the Plaintiffs and further that they were not in possession of the suit property. The trial court also recorded a finding to the effect that it is the Defendants who were in possession of the suit property, in view thereof, as per the trial court, in the absence of prayer for seeking possession, the Plaintiffs were not entitled for an injunction simpliciter. As regards the ownership, the trial court held that though Vassudev Govekar did not have title to the suit property, the said property came to be enlisted in inventory Proceedings which does not create any title in favour of the Plaintiffs. The suit house stands in the name of Lilavati (Defendant No. 3), who is the wife of Jagannath Govekar and, therefore, Plaintiffs were not the sole owners of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at since the Plaintiffs had succeeded in proving that they are the owners of the suit property, the construction put up by the Defendants in the said property was illegal. Therefore, the Plaintiffs were also entitled to the relief of mandatory injunction and passed the decree for demolishing the illegal construction. It was further held that relief for demolishing of illegal construction in substance was for possession of the property and, thus, the suit in the said form was maintainable. 10. The High Court has concurred with the aforesaid approach of the first appellate court. ARGUMENTS OF THE APPELLANTS/DEFENDANTS 11. Before us, following contentions were raised by Mr. Huzefa Ahmadi, learned senior Counsel appearing for the Defendants (Appellants herein): (1) The suit filed by the Plaintiffs is not maintainable for the reason that they did not pray for the decree of possession, despite admitting that it is the Defendants who were in possession of the suit property. It was, thus, argued that in the absence of any relief for possession, such a suit could not have been filed. For this, he placed reliance on the judgment of this Court in Anathula Sudhakar v. P. Buchi Redd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a cloud raised over the Plaintiffs title or that they were not in possession, which was rightly rectified by the first appellate court and these findings were upheld by the High Court. Thus, according to the learned Counsel, no substantial question of law arises and appeals be dismissed. OUR DISCUSSION 14. Since the objection of the Defendants to the maintainability of the suit is founded on two aspects, namely: (i) the ownership of the suit property in question, and (ii) possession thereof, it becomes necessary to deal with these aspects. We shall first take up the issue of ownership. RE.: OWNERSHIP 15. We have already noticed above, the basis on which the first appellate court as well as the High Court has held that the Plaintiffs are the owners of the suit property, which rights they have inherited from Vassudev Govekar, father of Plaintiff Nos. 1 to 3. Findings of the courts below are that the suit property, viz. Talhao No. 168 of Communidade of Anjuna was acquired by Vassudev Govekar from Communidade of Anjuna under No. 131/1963 on February 24, 1970 as a permanent grant for the construction of the house. In order to prove this ownership, not only the said gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the civil law recognizes and assures. This aspect has to be further read along with the duly promulgated Survey Records which are also standing in the name of Vassudev besides the other material produced in the cross examination of Dw. 1 at exhibit 78 colly which conclusively established that the suit property was granted to the said Vassudev and which devolved upon the Respondents after his death. The duly promulgated Survey Records in respect of the suit property surveyed under No. 251/2 stands in the name of said Vassudev which draws a presumption of possession in his favour. When it is not in dispute that the grant was in favour of said Vassudev who is the father of the Respondent Nos. 1 and 3, such presumption of possession was in continuation of the title vested in him. The Respondents have also produced the allotment of the Inventory Proceedings upon the death of said Vassudev which discloses that the suit property devolved upon the Respondents. Article 2158 of the Portuguese Civil Code, inter alia, provides that the partition of the properties legally made in respect of which there had not been any objection, confers on the co-heirs exclusive ownership of the properties pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffs and Defendants as co-owners in title and in possession pertains to property bearing Survey No, 251/4 which is not the subject matter of the suit. It is once again emphasised, as far as the suit property is concerned, it bears Survey No. 251/2. Therefore, in respect of the suit property, we find that there is no admission on the part of the Plaintiffs. Thus, we do not find merit in this argument, which was hammered by the learned Counsel for the Appellants time and again. 17. Once this aspect of so-called admission of the Plaintiffs is found to be non-existing, the entire edifice of the argument of the Defendants crumbles down. In these circumstances, reliance placed by the learned Counsel on the judgment of this Court in the case of Anathula Sudhakar would be of no avail. This is also a complete answer to the argument that the suit of the Plaintiffs was not maintainable in the absence of any declaration as to title. The Plaintiffs had categorically claimed in the plaint that insofar as suit property bearing Survey No. 251/2 is concerned, they are the owners thereof. Of course, they had to prove the ownership by filing appropriate documents because of the reason that the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is in this backdrop the case made out by the Plaintiffs is that when Plaintiff Nos. 1, 3 and 5 visited the suit property on December 30, 2006 at about 5:00 p.m., they found that the 'suit house' had been demolished by the Defendants on which they were carrying a new construction. In the light of these pleadings, the Plaintiffs sought the relief of mandatory injunction seeking demolition of the construction carried out by the Defendants on the suit property bearing Survey No. 251/2 as it was illegally put up by the Defendants on Plaintiffs' land. The matter is to be examined in this hue and, therefore, the argument that relief for possession should also have been sought is clearly untenable. This aspect has been touched upon and dealt with by the High Court, with which we concur, in the following manner: 17. The next contention of Shri S.G. Desai, learned Senior Counsel, is with regard to the reliefs sought by the Respondents-Plaintiffs. The lower Appellate Court has relied upon the judgment of this Court to inter alia hold that as mandatory injunction has been sought by the Respondents-Plaintiffs in substance, it amounts to relief of possession. There is nothing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s constructed illegally by the Defendants. Nevertheless, Plaintiffs can make use thereof. Therefore, equities can be balanced if the Plaintiffs take possession of the house in question without its demolition, but, at the same time, compensate the Defendants by paying the cost of construction. In these circumstances, in the execution petition which is filed, or ought to be filed by the Plaintiffs, the executing court shall appoint a Surveyor/Valuer who would fix the cost of construction that would be reimbursed by the Plaintiffs to the Defendants. 23. We are giving these directions in exercise of our powers Under Article 142 of the Constitution of India in order to do complete justice in the matter and to see that the Defendants also do not suffer and the structure put by them is not wasted. Such a power in this behalf can be exercised as per settled law. In this respect, we would like to usefully refer to the following passage from the judgment of this Court in State of Punjab and Ors. v. Rafiq Masih (Whitewasher) (2014) 8 SCC 863: 12. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other portion, the structure erected by Dinshaw exists and the portion being the residential bungalow occupied by the Respondents may also be acquired by BMC in due course. 48. Considering the aforementioned changed circumstances, the High Court taking note of the subsequent events moulded the relief in the appeal Under Section 96 of the Code of Civil Procedure and the same has been challenged by the Appellants before us. In ordinary course of litigation, the rights of parties are crystallised on the date the suit is instituted and only the same set of facts must be considered. However in the interest of justice, a court including a court of appeal Under Section 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or on the entire purpose of the suit, the courts taking note of the same should mould the relief accordingly. This Rule is one of ancient vintage adopted by the Supreme Court of America in Patterson v. Alabama [79 L Ed 1082 : 294 US 600 (1935)] followed in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [ (1941) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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