CUSTOM SEARCH

PUBLIC PURPOSE IN ACQUISITION PROCEEDINGS



In State of Bihar v. Kameshwar Singh reported in AIR 1952 SC 252 at page 259, a Constitution Bench of Supreme Court considered the expression 'public purpose'. Mahajan, J. explained the expression 'public purpose' in the following manner: "The expression "public purpose" is not capable of a precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs. The point to be determined in each case is whether the acquisition is in the general interest of the community as distinguished from the private interest of an individual."

In The State of Bombay v. R.S. Nanji (1956) SCR 18, the Court observed that it is impossible to precisely define the expression 'public purpose'. In each case all the facts and circumstances will require to be closely examined in order to determine whether a public purpose has been established. Prima facie, the Government is the best judge as to whether public purpose is served by issuing a requisition order, but it is not the sole judge. The courts have the jurisdiction and it is their duty to determine the matter whenever a question is raised whether a requisition order is or is not for a public purpose. In the said case, the Court observed that the phrase 'public purpose' includes a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals is directly and vitally concerned. It is impossible to define precisely the expression 'public purpose'.

In Somawanti v. State of Punjab (1963) 2 SCR 774, the Court observed that public purpose must include an object in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. Public purpose is bound to change with the times and the prevailing conditions in a given area and, therefore, it would not be a practical proposition even to attempt an extensive definition of it. It is because of this that the legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose. The Constitution Bench of Supreme Court in Somawanti case observed that whether in a particular case the purpose for which land was needed was a public purpose or not was for the Government to be satisfied about and the declaration of the Government would be final subject to one exception, namely that where there was a colourable exercise of the power the declarations would be open to challenge at the instance of the aggrieved party.

In Babu Barkya Thakur v. The State of Bombay & Others (1961) 1 SCR 128, the Court observed as under: "It will thus be noticed that the expression 'public purpose' has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited."


The Constitution Bench in Satya Narain Singh v. District Engineer, P.W.D., Ballia and Anr. reported in AIR 1962 SC 1161 while describing public service observed :- "It is undoubtedly not easy to define what is "public service" and each activity has to be considered by itself for deciding whether it is carried on as a public service or not. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaken in the exercise of the sovereign power of the State or of governmental functions. About these there can be no doubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be useful to the public would not necessarily render it public service. An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private individuals and is carried on by government with a distinct profit motive. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public".

In Arnold Rodricks v. State of Maharashtra, reported in (1966) 3 SCR 885, while Justice Wanchoo and Justice Shah dissenting from judgment observed that there can be no doubt that the phrase 'public purpose' has not a static connotation, which is fixed for all times. There can also be no doubt that it is not possible to lay down a definition of what public purpose is, particularly as the concept of public purpose may change from time to time. There is no doubt however that public purpose involves in it an element of general interest of the community and whatever furthers the general interest must be regarded as a public purpose.


In Bhim Singhji v. Union of India (1981) 1 SCC 166, as per Sen, J., the concept of public purpose necessarily implies that it should be a law for the acquisition or requisition of property in the interest of the general public, and the purpose of such a law directly and vitally subserve public interest. Broadly speaking the expression 'public purpose' would however include a purpose in which the general interest of the community as opposed to the particular interest of the individuals is directly and virtually concerned.

In Laxman Rao Bapurao Jadhav v. State of Maharashtra reported in (1997) 3 SCC 493, this Court observed that "it is for the State Government to decide whether the land is needed or is likely to be needed for a public purpose and whether it is suitable or adaptable for the purpose for which the acquisition was sought to be made. The mere fact that the authorized officer was empowered to inspect and find out whether the land would be adaptable for the public purpose, it is needed or is likely to be needed, does not take away the power of the Government to take a decision ultimately".

In Scindia Employees' Union v. State of Maharashtra & Others reported in (1996) 10 SCC 150, this Court observed as under: "The very object of compulsory acquisition is in exercise of the power of eminent domain by the State against the wishes or willingness of the owner or person interested in the land. Therefore, so long as the public purpose subsists the exercise of the power of eminent domain cannot be questioned. Publication of declaration under Section 6 is conclusive evidence of public purpose. In view of the finding that it is a question of expansion of dockyard for defence purpose, it is a public purpose."


The right of eminent domain is the right of the State to reassert either temporarily or permanently its dominion over any piece of land on account of public exigency and for public good. In the case of Coffee Board v. Commissioner of Commercial Taxes reported in (1988) 3 SCC 263, the Court observed that the eminent domain is an essential attribute of sovereignty of every State and authorities are universal in support of the definition of eminent domain as the power of the sovereign to take property for public use without the owner's consent upon making just compensation.


A seven-Judge Bench of this Court in The State of Karnataka & Another v. Shri Ranganatha Reddy & Another reported in (1977) 4 SCC 471, explained the expression 'public purpose' in the following words: "It is indisputable and beyond the pale of any controversy now as held by this Court in several decisions including the decision in the case of His Holiness Kesavananda Bharati Sripadagalaveru v. State of Kerala [1973] Supp. 1 S.C.R. 1 - popularly known as Fundamental Rights case - that any law providing for acquisition of property must be for a public purpose. Whether the law of acquisition is for public purpose or not is a justifiable issue. But the decision in that regard is not to be given by any detailed inquiry or investigation of facts. The intention of the legislature has to be gathered mainly from the Statement of Objects and Reasons of the Act and its Preamble. The matter has to be examined with reference to the various provisions of the Act, its context and set up, the purpose of acquisition has to be culled out therefrom and then it has to be judged whether the acquisition is for a public purpose within the meaning of Article 31(2) and the law providing for such acquisition. ……………..The concept of public purpose should include the matters, such as, safety, security, health, welfare and prosperity of the community or public at large. The concept of 'eminent domain' is an essential attribute of every State. This concept is based on the fundamental principle that the interest and claim of the whole community is always superior to the interest of an individual.




INJUNCTION ORDERS BY COURT PRINCIPLES



AIR 2006 SC 3275, M. Gurudas & Ors. VS Rasaranjan & Ors.


While considering an application for injunction, the courts would pass an order thereupon having regard to: (i) prima facie (ii) balance of convenience (iii) irreparable injury. A finding on `prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.


An appellate court would not ordinarily interfere with but then there are certain exceptions thereto. The courts below have not applied their mind as regards balance of convenience and irreparable injury which may be suffered by the appellants.

The properties may be valuable but would it be proper to issue an order of injunction restraining the appellants from dealing with the properties in any manner whatsoever is the core question. They have not been able to enjoy the fruits of the development agreements. The properties have not been sold for a long time. The commercial property has not been put to any use. The condition of the properties being remaining wholly unused could deteriorate. These issues are relevant. The courts below did not pose these questions unto themselves and, thus, misdirected themselves in law.



The conduct of the defendants was indisputably relevant. But, then conduct of the plaintiffs would also be relevant. Therefore, the court while granting an order of injunction, would take into consideration as to whether the plaintiffs have pre-varicated their stand from stage to stage. Even this question had not been adverted to by the courts below. Further, while doing so, the courts would look into the documents produced before the trial court as also the appellate court in terms of Order 41, Rule 27 CPC but the same would not mean that this Court must confine itself only to the questions which were raised before the courts below and preclude itself from considering other relevant questions although explicit on the face of the records. Questions of law in a given case may be considered by this Court although raised for the first time. The question as to whether this Court would permit the parties to raise fresh contentions, however, must be based on the materials placed on records.

While making endeavours to find out a prima facie case, the court could take into consideration the extent of plaintiffs' share in the property, if any.

Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. [(2001) 5 SCC 73]." While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.





FEMALE CHILD CANNOT BE TAKEN ON ADOPTION



ADOPTION VALIDITY

AIR 2006 SC 3275, M. Gurudas & Ors. VS Rasaranjan & Ors.

To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony. Performance of `datta homam' was imperative, subject to just exceptions.

Regarding the question whether adoption of a daughter was permissible in law, it appears that trial Judge missed the last sentence of the passage of Mayne's Treatise on Hindu Law and Usage "it is now settled that the adoption of a daughter is invalid under the Hindu law." In section 480 of the treatise, it is stated that the person to be adopted must be a male.

Mayne's Treatise on Hindu Law and Usage, 13th edition, pages 429-430: "Adoption of daughters Nandapandita in his Dattaka Mimamsa would construe 'putra' (or son) as including a daughter and he draws the inference that on failure of a daughter, a daughter of another could be adopted. He supports his conclusion by referring to ancient precedents, such as the adoption of Shanta, the daughter of King Dasaratha by King Lomapada and the adoption of Pritha or Kunti, the daughter of Sura by Kunti Bhoja. This view is sharply criticized by Nilakantha in the Vyavahara Mayukha. It is now settled that the adoption of a daughter is invalid under the Hindu law."

In Mulla's Principles of Hindu Law, 17th edition, page 710, it is stated: "488. Ceremonies relating to adoption (1) The ceremonies relating to an adoption are (a) the physical act of giving and receiving, with intent to transfer the boy from one family into another; (b) the datta homam, that is, oblations of clarified butter to fire; and (c) other minor ceremonies, such as putresti jag (sacrifice for male issue). (2) They physical act of giving and receiving is essential to the validity of an adoption; As to datta homam it is not settled whether its performance is essential to the validity of an adoption in every case. As to the other ceremonies, their performance is not necessary to the validity of an adoption. (3) No religious ceremonies, not even datta homam, are necessary in the case of Shudras. Nor are religious ceremonies necessary amongst Jains or in the Punjab."



COMPROMISE WHEN IT IS BAD IN LAW



ARJAN SINGH VS PUNIT AHLUWALIA & ORS. MAY 14, 2008

Partly allowing the appeal, the Supreme Court HELD :

1. A compromise which does not satisfy the requirements of law would be unlawful and, therefore, decree in terms thereof cannot be passed. When a compromise is entered into, the Court has a duty to see as to whether the same meets the requirements of law. It may be true that parties to the suit signed the compromise petition. But, in the instant case, indisputably, the appellant has a rival claim. The suit filed by him, vis-a-vis, the one filed by `S' was required to be considered together. The court could exercise its discretionary jurisdiction in one of the suits or the other, having regard to Section 20 of the Specific Relief Act, 1963. By reason of a compromise or otherwise, the claim of the appellant could not have been defeated.

2. It is only pursuant to or in furtherance of the said purported terms of settlement, the deed of sale was executed on 25.3.2003. The settlement entered into by and between the parties proceeded on the assumption that no decree for specific performance would be passed in the case of the appellant. It wrongly recorded that the appellant is only a proforma defendant in the suit. The said compromise, was unlawful.

3. The trial court has rightly held that it was a case where the first part of Order 23 Rule 3 of the Code of Civil Procedure, 1908 would apply. As the appellant was not a party to the settlement, the same was not binding on him.

4. The Trial Court, however, was right in holding that the purported compromise was bad in law. It was unlawful being without any written consent of all the parties. Indisputably, not only the same was not binding on the parties, the court in a case of this nature while considering the appellant's case shall not take note of the fact that any deed of sale has been executed pursuant thereto. Respondent No.3, as a logical corollary of these findings, would not be entitled to set up the plea of being bona fide purchaser for value without notice. The court may also pass such other order or orders, as it may deem fit and proper keeping in view its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963. To that extent the judgment of the trial court is upheld and that of the High Court set aside.




RIGHTS OF PURCHASER OF PROPERTY PENDING LITIGATION



LIS PENDENCY

AIR 2008 SC 2560, GURUSWAMY NADAR VS P. LAKSHMI AMMAL(D) THROUGH LRS. & ORS
Transfer of Property Act, 1882 - s. 52 - Principle of lis pendens - Applicability of - Pendency of suit for specific performance - Subsequent sale of the same property by owner to second purchaser - Held: As suit was filed before second sale of the property, principle of lis pendens would be attracted even though the subsequent purchaser purchased the same in good faith and his rights were protected u/s. 19(b)

Dismissing the appeal, the Supreme court HELD:

1. Section 19 of the Specific Relief Act, 1963 clearly states that subsequent sale can be enforced for good and sufficient reason but in the instant case, there is no difficulty because the suit was filed on 3.5.1975 for specific performance of the agreement and the second sale took place on 5.5.1975. Had that not been the position then the effect of section 19 read with section 52 of the Transfer of Property Act would have been evaluated. But in the instant case, it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens would govern the instant case and the second sale cannot have the overriding effect on the first sale. The principle of lis pendens is still settled principle of law.

2. Normally, as a public policy once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.

3. In the instant case, it is apparent that the appellant, who is a subsequent purchaser of the same property, purchased the property in good faith but the principle of lis pendens will certainly be applicable to the instant case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected. Under section 19(b) of Specific relief act all subsequent purchasers for value who has paid money in good faith and without notice of the original contract, cannot be brought in, to enforce specific performance of original contract.


The Full Bench of Allahabad High Court in Smt. Ram Peary case referred to the work of Story on Equity which expounded the doctrine of lis pendens in the terms as follows: " Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendent elite, nihil innovetur; the effect of which is not to annul the conveyance but only to refer it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them."

The Full Bench of the Allahabad High Court in Smt. Ram Peary case has considered the scope of Section 52 of the Transfer of Property Act. The Full Bench has referred to a English decision in Bellamy v. Sabine wherein it was observed as under: " It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind required that the decision of the Court in the suit shall be finding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end."

R.K.Mohammed Ubaidullah & Ors. v. Hajee C.Abdul Wahab (D) by L.Rs. & Ors. [AIR 2000 SC 1658]. In this case it was observed that a person who purchased the property should made necessary effort to find out with regard to that property, whether the title or interest of the person from whom he is making purchase was in actual possession of such property. In that context their Lordships observed that subsequent purchaser cannot be said to be bona fide purchaser of the suit property for value without notice of suit agreement and plaintiff would be entitled to relief of specific performance. Their Lordships after considering the effect of Section 19 of the Specific Relief Act as well as Section 52 of the Transfer of Property Act held that subsequent purchaser has to be aware before he purchases the suit property. So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, he has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected.




MITAKSHARA CO-PARCENARY AND JOINT FAMILY



2008 (7) SCC 46, HARDEO RAI VS SAKUNTALA DEVI AND OTHERS BENCH: S.B. SINHA & V.S. SIRPURKAR

Hindu law - Mitakashra Coparcenary property and Joint Family property - Distinction between. - Held: Mitakashra Coparcenary is a body of individuals created by law whereas joint family is constituted by agreement of the parties. The appellant and the respondent's father entered into an agreement to sell a property. In the agreement, the appellant made a representation that the joint family property was partitioned and the co-sharers were in possession of the separate properties. Respondent's father paid certain sum out of the total amount and was put in the possession of the property. However, the appellant did not execute the sale deed. Respondent filed suit for specific performance. Appellant contended that he was forced to sign a blank stamped paper on which agreement of sale was scribed later; and that the property was a joint family property. Respondent's father was examined. The scribe of the agreement as also witnesses were examined. Trial court decreed the suit. The appeal by the appellant was allowed on the ground that the property was a joint family property. Aggrieved, respondent filed appeal and the Division Bench of High Court allowed the same. Hence, the present appeal.

Dismissing the appeal, the Supreme Court HELD:

1. There exists a distinction between a Mitakashra Coparcenary property and Joint Family property. A Mitakashra Coparcenary carries a definite concept. It is a body of individuals having been created by law unlike a joint family which can be constituted by agreement of the parties. A Mitakashra Coparcenary is a creature of law. Thus, it is necessary to determine the status of the appellant and his brothers.

2. For the purpose of assigning one's interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a co-parcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as "joint tenants" but as "tenants in common".

3. Even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of his other coparceners cannot get possession. He acquires a right to sue for partition. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.

4. The first appellate court did not arrive at a conclusion that the appellant was a member of a Mitakashra co-parcenary. The source of the property was not disclosed. The manner in which the properties were being possessed by the appellant vis-a-vis, the other co-owners had not been taken into consideration. It was not held that the parties were joint in kitchen or mess. No other documentary or oral evidence was brought on record to show that the parties were in joint possession of the properties. One of the witnesses examined on behalf of the appellant admitted that the appellant had been in separate possession of the suit property. Appellant also in his deposition accepted that he and his other co-sharers were in separate possession of the property.

5. The representation made by the appellant is noticed. If the representation to the respondents' father was incorrect, the appellant should have examined his brothers. He should have shown that such a representation was made under a mistaken belief. He did nothing of that sort.

6. In view of the admission made by the appellant himself that the parties had been in separate possession, for the purpose of grant of a decree of specific performance of an agreement, a presumption of partition can be drawn. The Single Judge of the High Court committed a serious error in so far as it failed to take into consideration the essential ingredients of a Mitakshra Coparcernary.




HOW TO ASCERTAIN A TRUST WHETHER IT IS PUBLIC OR PRIVATE IN CASE OF TEMPLES


In State of W.B. v. Sri Sri Lakshmi Janardan Thakur [(2006) 7 SCC 490], this Court opined: "In order to ascertain whether a trust is private, the following factors are relevant:
(1) If the beneficiaries are ascertained individuals.
(2) If the grant has been made in favour of an individual and not in favour of a deity.
(3) The temple is situated within the campus of the residence of the donor.
(4) If the revenue records or entries suggest the land being in possession of an individual and not in the deity.

On the other hand an inference can be drawn that the temple along with the properties attached to it is a public trust:
(1) If the public visit the temple as of right.
(2) If the endowment is in the name of the deity.
(3) The beneficiaries are the public.
(4) If the management is made through the agency of the public or the accounts of the temple are being scrutinised by the public."





GRANTED LANDS ENURES TO THE BENEFIT OF FAMILY


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5646 OF 2008 (Arising out of SLP (C) No. 21197 of 2006) K.V. Sudharshan VS A. Ramakrishnappa & Ors. JUDGMENT TARUN CHATTERJEE, J.

Mysore (Religious and Charitable Inams) Abolition Act, 1955: Inam lands - Granted to eldest son with the consent of brother and other family members - Partition - Father of respondent Nos. 1 & 2 was serving as an Archak in a temple and had been cultivating the inam lands attached to the temple. After his death, the lands were granted by the authority to respondent No.1, the eldest son, with the consent of other members of the family. Respondent No.1 was also acting as the Manager of the ancestral and self-acquired property of his father. Appellant, son of respondent No.2, issued a legal notice to respondent No.1 demanding partition of the joint family properties including inam lands. Respondent No.1 refused to partition the immovable properties. The appellant filed a suit for partition claiming his share in the properties along with mesne profits. The Trial Court dismissed the suit holding that prior partition was established in view of the admission by respondent No.2 and as such the appellant could not demand partition. Aggrieved, the appellant filed an appeal, which was dismissed by the High Court. Review petition was also dismissed by the High Court. Hence the present appeal. Appellant contended that in respect of inam lands granted to respondent No. 1, the High Court had committed an error by holding that since the appellant and the respondent No.2 had not performed the duties as archak of the Inamdar Temple and they had not personally cultivated the lands, they were not entitled to grant of the inam lands. Counsel for respondent Nos. 1 and 3 submitted that respondent no.1 had got the properties, imam land in question, vacated from the tenants who had been cultivating it and thereafter he was personally cultivating the same and after coming into force of the Mysore (Religious and Charitable Inams) Abolition Act, an application for grant of occupancy rights was moved on his behalf and the right was conferred on him by the competent authority after proper inquiry and therefore, the appellant could not claim partition of the same; that respondent no.1 was admittedly the archak of the temple and he was also cultivating the properties personally for a continuous period of 3 years prior to the date of its vesting with him and therefore, he was entitled to apply for registration of his right in terms of provisions of the Act; and that the grant of such right is a personal right which cannot be characterized as an ancestral right because in this case, even if his father was alive, he could not have become entitled to grant of occupancy rights because he was not cultivating the lands.

Allowing the appeal, the Court HELD:

Under the scheme of the Mysore (Religious and Charitable Inams Abolition) Act, inam lands are liable to be granted to the tiller of such lands, be, as it may, as tenants, archaks or office bearers of the inamdar temple. Accordingly, this Court is of the view that such grants are meant for the benefit of the family of the tiller and not for him individually and for this reason, there can be no justification to disregard the rights of the junior members of the family if their eldest member was performing the duties of archak with the consent of others. For this reason and in view of the decision of this court in the case of Nagesh Bishto, this Court is of the view that grant of land to archak cannot disentitle the other members of the family of the right to the land and such granted land, therefore, is also available for partition.


Furthermore, it also emerges from the judgment of the Trial Court that the tenants cultivating the land had stated that respondent no.2 had requested his father to allow him to cultivate the lands who accordingly gave his consent before the land tribunal also. Such being the position, if other members of the family had not objected to his becoming the archak of the temple because he was the eldest and also allowed him to cultivate the lands then, if subsequently he was, by virtue of the fact that he was the archak and also personally cultivating the lands, granted the lands, he cannot take away the rights of such other members of the family in the granted lands.

However, this Court is not inclined to look at Section 6A in isolation. If seen in totality, it is discernible that the father of respondent No.1 gave his consent and allowed respondent no.1 to cultivate the land after taking the same from the tenants. Even the land tribunal, while passing the order granting occupancy rights, had not confined itself to the fact that the conditions in Section 6A were fulfilled. Rather, the land tribunal had observed that the father of respondent No. 1 was the archak and anubhavdar of the temple and this was a prime consideration in granting occupancy rights to the respondent No.1. Therefore, it would be wrong to hold that simply because the conditions in Section 6A were fulfilled, the respondent no. 1 was granted occupancy rights and it was his individual rights. The truth is that the respondent No.1 became the Archak after the death of his father because he was the eldest in the family and only then came the question of satisfying the conditions of Section 6A of the Act.

It is wrong on the part of respondent No.1 to say that his father, even if he had been alive, would not have been granted occupancy rights because the lands at that time were cultivated by the tenants. For grant of occupancy rights, personal cultivation is just one condition. The other conditions include that if a person is managing the properties, which his father was doing, would also be entitled to the grant of occupancy rights.

Respondent No. 1 was made archak after the death of his father because he was the eldest member of the family. Being the archak, he cultivated the lands and obtained occupancy rights. In such circumstances, it would be highly unjust to deprive the other members of the family from getting their share in the properties by relying only on Section 6A of the Act. Therefore, this Court is also of the opinion that the granted lands are also available for partition and grant of occupancy to one member will not disentitle the other members.





ADVERSE POSSESSION AS EXPLAINED BY SUPREME COURT OF INDIA



ADVERSE POSSESSION

In Saroop Singh v. Banto & Ors. [(2005) 8 SCC 330], Court held : In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant s possession becomes adverse. Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. T. Anjanappa & Ors. v. Somalingappa & Anr. [(2006) 7 SCC 570], stating : “It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former s hostile action.”

Yet recently, in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. [(2007) 6 SCC 59], Court noticed the recent development of law in other jurisdiction in the context of property as a human right to opine : “Therefore, it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights.”

M. Durai v. Muthu & Ors. [(2007) 3 SCC 114], noticed the changes brought about by Limitation Act, 1963, vis-a-vis, old Limitation Act, holding : “The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.”

AIR 2008 SC 346 Annakili vs A. Vedanayagam & Ors Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession for a period of more than 12 years without anything more do not ripen into a title.


AIR 2007 SC 1753 P.T. Munichikkanna Reddy & Ors VS Revamma and Ors CHARACTERIZING ADVERSE POSSESSION Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor or on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.

Adverse Possession is a right which comes into play not just because someone loses high right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper owner of the property.

Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title.


In similar circumstances, in the case of Thakur Kishan Singh (dead) v. Arvind Kumar [(1994) 6 SCC 591] Supreme court held: "As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Apart from it, the Appellate Court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse."

A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by Supreme Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms: "Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:
(a) on what date he came into possession,
(b) what was the nature of his possession,
(c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and
(e) his possession was open and undisturbed.

A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession"

In Narne Rama Murthy v. Ravula Somasundaram and Others [(2005) 6 SCC 614], Supreme Court held: "However, in cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. In this case the question of limitation is intricately linked with the question whether the agreement to sell was entered into on behalf of all and whether possession was on behalf of all. It is also linked with the plea of adverse possession. Once on facts it has been found that the purchase was on behalf of all and that the possession was on behalf of all, then, in the absence of any open, hostile and overt act, there can be no adverse possession and the suit would also not be barred by limitation. The only hostile act which could be shown was the advertisement issued in 1989. The suit filed almost immediately thereafter."

In Karnataka Wakf Board, the law was stated, thus: "In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."


An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254]: "Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."

Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], wherein it was opined : "The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable"


Chatti Konati Rao & Ors. vs Palle Venkata Subba Rao on 7 December, 2010 Bench: JUSTICE HARJIT SINGH BEDI, JUSTICE CHANDRAMAULI KR. PRASAD
In the case of T. Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title. Relevant passage of the aforesaid judgment reads as follows : "20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. Paragraph 11 of the judgment which is relevant for the purpose reads as follows : "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.

Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law.


In a case before Supreme Court Vidya Devi vs Prem Prakash AIR 1995 SC 1789, By referring to following citations the point is clarified “In Karbali Begum Vs. Mohd Sayeed (AIR 1981 SC 77), it was held that a co-sharer in possession of the property would be a constructive trustee on behalf of other co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee co-sharer. Certain observations of the Privy Council in Coera Vs. Appuhamy (AIR 1914 PC 243, 245-246) may be quoted below:- "Entering into possession and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. in Thomas Vs. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: `Possession is never considered adverse if it can be referred to a lawful title'..... His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result."



CONDONATION OF DELAY - SUFFICIENT CAUSE TO SHOW



STATE (NCT OF DELHI) VS AHMED JAAN. AUGUST 12, 2008

Limitation Act, 1963: s. 5 - Condonation of delay - "sufficient cause" –

HELD: It is sufficiency of the cause which counts, and not length of delay - Expression "sufficient cause" should receive a liberal construction - As regards delay on the part of State, certain amount of latitude is not impermissible - Expression "sufficient cause" should be considered with pragmatism in justice oriented approach rather than technical detection of sufficient cause for explaining every day's delay - Matter remitted to High Court to decide the criminal revision on merits - Suggestions made to prevent delay in State litigation - Administration of justice –

Allowing the appeal, the Supreme Court HELD:

The proof by sufficient cause is a condition precedent for exercise of the extraordinary discretion vested in the court. What counts is not the length of the delay but the sufficiency of the cause; and shortness of the delay is one of the circumstances to be taken into account in using the discretion. What constitutes sufficient cause cannot be laid down by hard and fast rules. The expression "sufficient cause" should receive a liberal construction.

No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace encumbered with procedural red-tape in decision making process. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and require adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit.

The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment; and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal, needed prompt action should be pursued by the officer concerned and he should be made personally responsible for lapses, if any.

In N. Balakrishnan v. M. Krishnamurthy (AIR 1998 SC 3222) it was held by Supreme Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case is sufficient. Although no special indulgence can be shown to the Government which, in similar circumstances, is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels.


What constitutes sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. v. Shanti Misra (1975 (2) SCC 840) Supreme Court held that discretion given by Section 5 should not be defined or crystallised so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram (ILR (1918) 45 Cal 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari (AIR 1969 SC 575) a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In Concord of India Insurance Co. Ltd. v. Nirmala Devi (1979 (4) SCC 365) which is a case of negligence of the counsel which misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan (1969 (2) SCC 770), Supreme Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive. In State of Kerala v. E. K. Kuriyipe (1981 Supp SCC 72), it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependant upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath (1982 (3) SCC 366), it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation.

In O. P. Kathpalia v. Lakhmir Singh (1984 (4) SCC 66), a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector Land Acquisition v. Katiji (1987 (2) SCC 107), a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution 9 of courts. It is common knowledge that Supreme Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned.


In G. Ramegowda, Major v. Spl. Land Acquisition Officer (1988 (2) SCC 142), it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have "a little play at the joints". Due recognition of these limitations on governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision-making process. The delay of over one year was accordingly condoned.


The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. It was noted that adoption of strict standard of proof sometimes fail to protract public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal.




CO-OWNERS RIGHTS



JAI SINGH AND ORS. VS GURMEJ SINGH 2009 (1) SCALE 679

Sale - Joint property - Inter-se rights and liabilities of co-sharers - Governing principles - Explained. Dismissing the appeal, the Supreme Court HELD:

The principles relating to the inter-se rights and liabilities of co-sharers are as follows:

(l) A co-owner has an interest in the whole property and also in every parcel of it.
(2) Possession of joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co- owner openly asserts his own title and denies, that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
(7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition.

When a co-sharer is in exclusive possession of some portion of the joint holding he is in possession thereof as a co-sharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. Vendor cannot sell any property with better rights than himself. As a necessary corollary when a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession what he transfers is his right as a co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all co-sharers.





Pendency of suit for specific performance


AIR 2008 SC 2560, GURUSWAMY NADAR VS P. LAKSHMI AMMAL(D) THROUGH LRS. & ORS
Transfer of Property Act, 1882 - s. 52 - Principle of lis pendens - Applicability of - Pendency of suit for specific performance - Subsequent sale of the same property by owner to second purchaser - Held: As suit was filed before second sale of the property, principle of lis pendens would be attracted even though the subsequent purchaser purchased the same in good faith and his rights were protected u/s. 19(b)

Dismissing the appeal, the Supreme court HELD:

1. Section 19 of the Specific Relief Act, 1963 clearly states that subsequent sale can be enforced for good and sufficient reason but in the instant case, there is no difficulty because the suit was filed on 3.5.1975 for specific performance of the agreement and the second sale took place on 5.5.1975. Had that not been the position then the effect of section 19 read with section 52 of the Transfer of Property Act would have been evaluated. But in the instant case, it is more than apparent that the suit was filed before the second sale of the property. Therefore, the principle of lis pendens would govern the instant case and the second sale cannot have the overriding effect on the first sale. The principle of lis pendens is still settled principle of law.

2. Normally, as a public policy once a suit has been filed pertaining to any subject matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end.

3. In the instant case, it is apparent that the appellant, who is a subsequent purchaser of the same property, purchased the property in good faith but the principle of lis pendens will certainly be applicable to the instant case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected. Under section 19(b) of Specific relief act all subsequent purchasers for value who has paid money in good faith and without notice of the original contract, cannot be brought in, to enforce specific performance of original contract.


The Full Bench of Allahabad High Court in Smt. Ram Peary case referred to the work of Story on Equity which expounded the doctrine of lis pendens in the terms as follows: " Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgment that may be made against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendent elite, nihil innovetur; the effect of which is not to annul the conveyance but only to refer it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them."

The Full Bench of the Allahabad High Court in Smt. Ram Peary case has considered the scope of Section 52 of the Transfer of Property Act. The Full Bench has referred to a English decision in Bellamy v. Sabine wherein it was observed as under: " It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind required that the decision of the Court in the suit shall be finding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end."

R.K.Mohammed Ubaidullah & Ors. v. Hajee C.Abdul Wahab (D) by L.Rs. & Ors. [AIR 2000 SC 1658]. In this case it was observed that a person who purchased the property should made necessary effort to find out with regard to that property, whether the title or interest of the person from whom he is making purchase was in actual possession of such property. In that context their Lordships observed that subsequent purchaser cannot be said to be bona fide purchaser of the suit property for value without notice of suit agreement and plaintiff would be entitled to relief of specific performance. Their Lordships after considering the effect of Section 19 of the Specific Relief Act as well as Section 52 of the Transfer of Property Act held that subsequent purchaser has to be aware before he purchases the suit property. So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, he has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under section 19(b) of the Specific Relief Act his rights could be protected.





KARNATAKA LAND LAWS