SOPANRAO & ANR. versus SYED MEHMOOD & ORS. on 3 July 2019

SOPANRAO & ANR.

v.

SYED MEHMOOD & ORS.

(Civil Appeal No.4478 of 2007)

JULY 03, 2019

[N. V. RAMANA, DEEPAK GUPTA ANDINDIRA BANERJEE, JJ.]

Limitation Act, 1963 – Art. 65 – Suit filed by Respondent Nos.1to 4 (plaintiffs) before the trial court against the present appellants(defendants) stating that, the possession of the land in questionwas illegally given to the Trust on 19.08.1978 by the Government–It was prayed that the possession of the suit land be restored to theplaintiffs– Defendants contested the suit inter alia on the groundthat the suit was not filed within the period of limitation and that thesuit land belonged to the Trust since time immemorial – Suitdismissed– Plaintiffs filed appeal– Judgment reversed by DistrictJudge inter alia holding that the suit land belonged to the Dargah(over which the plaintiffs were claiming rights of management) –Defendants filed appeal in the High Court – Dismissed, howeverthe High Court modified the decree of the District Judge to thelimited extent that the plaintiffs and Defendant No.12 were held tobedescendents of Mutawalis and not Inamdars as held by theDistrict Judge – Held: As far as the issue of title is concerned, thatis a finding of fact arrived at by the District Judge and confirmedby the High Court – This finding cannot be disturbed in SupremeCourt – Dargah was shown to be the owner as far back in 1325Fasli (1915 A.D) in the official records – Similar entries were madein 1342 Fasli (1932 A.D), 1943 and 1951– As per the record thepossession of land in question was handed over to the Trust onlyon 19.08.1978– Judgments of the District Court and the High Courtare based on evidence – No question of law arises as far asownership of land is concerned – Further, admittedly the possessionof the land was handed over to the Trust only in 1978 and the suitwas filed in 1987 – Appellants’ contention that the limitation for thesuit is three years as the suit is one for declaration, rejected – Mainprayers made in the suit indicate that it was a suit not only for

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Adeclaration but also for possession of the suit land– Limitation forfiling suit for possession on the basis of title is 12 years and,therefore, the suit was within limitation – Merely because one of thereliefs sought was of declaration that will not mean that the outerlimitation of 12 years was lost – Practice & Procedure – BombayPublic Trusts Act, 1950 – s.50A – Hyderabad Atiyat Inquiries Act,B1952.

Practice & Procedure– Grant of relief – Lesser relief/smallerversion of the relief prayed for – Held: Lesser relief or smallerversion of the relief claimed or prayed for can be granted .

CDismissing the appeal, the Court

Conclusion

HELD: 1.1 Issue of title is a finding of fact arrived at by theDistrict Judge and confirmed by the High Court. This findingcannot be disturbed in Supreme Court. However, through therecord it is found that the possession of land in question wasDhanded over to the Trust only on 19.08.1978. Nothing has beenbrought on record to show that prior to 29.01.1973 the land wasentered in the name of the Trust. As per the pleadings of thedefendants a change report had been filed before the AssistantCharity Commissioner, Latur and the said authority, withoutissuing notices to the Inamdars/Mutawalis, allowed the saidEapplication on 29.01.1973. The plaintiffs had no knowledge ofthis application but on the basis of this order the Governmenthanded over the possession of the land to the Trust. It was onlyafter the Trust came into the possession of the land that themutation entry (Exhibit No.115) was made in favour of the Trust.FAccording to the plaintiffs, they came to know about this factonly in 1986 when some publication in this regard was made bythe Assistant Charity Commissioner in terms of Section 50A ofthe Bombay Public Trusts Act, 1950 and, thereafter, they filedthe suit. It was the plaintiffs, as observed by the District Judgeas well as the High Court, who had proved that the suit landGbelonged to the Dargah. According to the High Court, theplaintiffs were not actually Inamdars and were manning the affairsof the Dargah in the nature of Mutawalis. Evidence was led bythe plaintiffs to show that they had been held to be the successorsof one Nizamuddin, the original Mutawali of the Dargah by theHcompetent authority under the Hyderabad Atiyat Inquiries Act,

1952. The High Court made reference to a large number ofdocumentary records proved by the plaintiffs from the year 1915onwards, which showed that the land had been granted to theDargah as far back in 1915. Therefore, the Dargah was shown tobe the owner as far back in 1325 Fasli (1915 A.D.) in the officialrecords. Similar entries were made in 1342 Fasli (1932 A.D.),1943 and 1951, all of which showed that the lands were shown aslands belonging to Dargah. The judgments of the District Courtand the High Court are based on evidence. No question of lawarises as far as ownership of land is concerned. Therefore, thisfinding of fact calls for no interference. Admittedly, the possessionof the land was handed over to the Trust only in the year 1978.The suit was filed in the year 1987. The appellants’ contentionthat the limitation for the suit is three years as the suit is one fordeclaration has to be rejected. The main prayers made in the suithereinabove which clearly indicate that it is a suit not only fordeclaration but the plaintiffs also prayed for possession of thesuit land. The limitation for filing a suit for possession on thebasis of title is 12 years and, therefore, the suit is within limitation.Merely because one of the reliefs sought is of declaration thatwill not mean that the outer limitation of 12 years is lost. In a suitfiled for possession based on title, the plaintiff is bound to provehis title and pray for a declaration that he is the owner of the suitland because his suit on the basis of title cannot succeed unlesshe is held to have some title over the land. However, the mainrelief is of possession and, therefore, the suit will be governedby Article 65 of the Limitation Act, 1963. This Article deals witha suit for possession of immovable property or any interest thereinbased on title and the limitation is 12 years from the date whenpossession of the land becomes adverse to the plaintiff. In theinstant case, even if the case of the defendants is taken at thehighest, the possession of the defendants became adverse to theplaintiffs only on 19.08.1978 when possession was handed overto the defendants. Therefore, there is no merit in this contentionof the appellants. [Paras 8, 9] [[42-H; 43-A-H; 44-A-D]

1.2 The lesser relief or smaller version of the relief claimedor prayed for can be granted. The plaintiffs claimed the status ofInamdars which is a higher position than that of Mutawalis. The AB

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[2019] 9 S.C.R.

AHigh Court has granted a lesser or lower relief and not a higherrelief or totally new relief and, therefore, we reject this contentionalso. [Paras 10, 11] [45-C]

1.3 It was also urged that the civil court had no jurisdictionto decide the suit. No such objection was raised before the trialBcourt. This objection was raised before the High Court but hasbeen rightly rejected. The issue in this case was whether theproperties were properties of the Dargah or not and the issuewas not whether the properties are wakf properties or not. TheHigh Court rightly held that the plaintiffs were not claiming anypersonal right in the land but only claiming rights of managementCover the property of the Dargah. The finding of the High Courtthat the civil court had the jurisdiction to decide the suit, agreedwith. The appellants/defendants, during the course of this appeal,have filed a number of applications to place on record certaindocuments which were not on the record of the trial court. No Dexplanation has been given in any of these applications as to whythese documents were not filed in the trial court. Thesedocuments cannot be looked into and entertained at this stage.The defendants did not file these documents before the trial court.No application was filed under Order XLI Rule 27 of the Code of

Civil Procedure, 1908 for leading additional evidence before theEfirst appellate court or even before the High Court. Even theapplications filed before us do not set out any reasons for notfiling these documents earlier and do not meet the requirementsof Order XLI Rule 27 of the Code of Civil Procedure. Hence,the applications are rejected and the documents cannot be takenFinto consideration. [Paras 12, 13] [45-D-H; 46-A]

L.C. Hanumanthappa v. H.B. Shivakumar (2016) 1 SCC332 : [2015] 9 SCR 651 ;Bachhaj Nahar v. NilimaMandal(2008) 17 SCC 491 : [2008] 14 SCR 621– held inapplicable.

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Case Law Reference

[2015] 9 SCR 651held inapplicable[2008] 14 SCR 621held inapplicable Para 9

Para 10

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4478of 2007

From the Judgment and Order dated 29.03.2007 of the HighCourt of Judicature at Bombay, Bench at Aurangabad in Second AppealNo. 76 of 1998

Vivek C. Solshe, Amol B. Karande, Advs. for the Appellants.

Youraj Gaikwad, Dr. R.R. Deshpande, Anjani Kumar Jha,Sudhanshu S. Choudhari, Ms. Surabhi Guleria, Yogesh Kolte, VatsalyaVigya, Ms. Nandini Singla, Shakil Ahmed Syed, Mohd. Parvez Dabas,Daanish Ahmad Syed, Uzmi Jameel Husain, Advs. for the Respondents.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. A suit was filed by Respondent Nos. 1 to 4 herein before thetrial court against the present appellants and others in which the mainprayers were as follows:

(i) “That, the lands S.Nos.60, 62, 77, 79/2 and 78 admg. 31acres 32 gunthas, 15 acres 22 gunthas, 27 acres 18 gunthas,15 acres 19 gunthas and 9 acres 19 gunthas respectivelysituated at village Haregaon Tq. Ausa Dist. Latur may bedeclared as Inam lands of Niyamatullah Shah DargahHaregaon and the plaintiffs as Inamdars of the above lands.

(ii) That, the plaintiffs be put in possession of the lands referredto above from defendant No. 1 to 11.”

2. The present appellants and others contested the suit. Accordingto the plaintiffs, the possession of the land in question was illegally givento Namdeo Deosthan Trust (for short ‘the Trust’) on 19.08.1978 by theGovernment and it was prayed that the possession of this land be restoredto the plaintiffs. The defendants contested the suit on various grounds.One of the main grounds raised was that the suit was not filed within theperiod of limitation. It was also contended that the suit was bad for non-joinder of necessary parties and it was contended that the suit landbelonged to the Trust since time immemorial and the suit be dismissed.The trial court vide judgment dated 14.10.1992 dismissed the suit of the A

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Aplaintiffs and held that the suit was not filed within the period of limitation.It also held that the suit is bad for non-joinder of parties. Lastly, the trialcourt held that the plaintiffs had failed to prove that the suit land wasInam land or the plaintiffs are Inamdars.

3. Aggrieved, the plaintiffs filed an appeal in the Court of DistrictBJudge, Latur. The District Judge vide judgment dated 26.11.1997 reversedthe judgment and decree of the trial court and came to the conclusionthat the land originally belonged to Dargah Niyamatullah Shah Quadri(for short ‘the Dargah’) and the plaintiffs and Defendant No. 12 werethe Inamdars of the suit land. It further held that the Government hadwrongly given the possession of the suit property. It was also held thatCall necessary parties had been joined in the suit. Finally, the first appellatecourt held that the plaintiffs were entitled to a decree for possession ofthe suit land and accordingly allowed the appeal and decreed the suit infavour of the plaintiffs and Defendant No. 12 and against DefendantNos. 1 to 11 and 15.D

4. Aggrieved, the present appellants and two others filed an appealin the High Court of Bombay. This appeal was dismissed vide judgmentdated 29.03.2007. However, the High Court modified the decree of theDistrict Judge to the limited extent that the plaintiffs and Defendant No.12 were held to bedescendents of Mutawalis and not Inamdars. Hence,Ethis appeal.

5. We have heard learned counsel for the parties.

6. During the pendency of this appeal, some of the plaintiffs havedied and their legal representatives were not brought on record. Thougha preliminary objection was raised that the appeal abates as a whole, weFfind no merit in this preliminary objection. The plaintiffs have been heldto be descendents of Mutawalis of the properties which is in the natureof a managerial post. As such the appeal does not abate.

7. Learned counsel for the appellants submitted that the plaintiffshad failed to prove that the land was the land of the Dargah. The secondGsubmission was that the suit was barred by limitation. It was alsocontended that the suit was not maintainable and that the High Courthad granted reliefs which had not even been prayed for by the plaintiffs.

8. As far as the issue of title is concerned, that, in our view, is afinding of fact arrived at by the District Judge and confirmed by theH

High Court. This finding cannot be disturbed in this Court. However, onthe insistence of learned counsel for the appellants, we have gone throughthe record and find that the possession of land in question was handedover to the Trust only on 19.08.1978. Nothing has been brought onrecord to show that prior to 29.01.1973 the land was entered in thename of the Trust. In fact, as per the pleadings of the defendants achange report had been filed before the Assistant Charity Commissioner,Latur and the said authority, without issuing notices to the Inamdars/Mutawalis, allowed the said application on 29.01.1973. The plaintiffshad no knowledge of this application but on the basis of this order theGovernment handed over the possession of the land to the Trust. It wasonly after the Trust came into the possession of the land that the mutationentry (Exhibit No.115) was made in favour of the Trust. According tothe plaintiffs, they came to know about this fact only in 1986 when somepublication in this regard was made by the Assistant CharityCommissioner in terms of Section 50A of the Bombay Public TrustsAct, 1950 and, thereafter, they filed the suit. It was the plaintiffs, asobserved by the District Judge as well as the High Court, who had provedthat the suit land belonged to the Dargah. According to the High Court,the plaintiffs were not actually Inamdars and were manning the affairsof the Dargah in the nature of Mutawalis. Evidence was led by theplaintiffs to show that they had been held to be the successors of oneNizamuddin, the original Mutawali of the Dargah by the competentauthority under the Hyderabad Atiyat Inquiries Act, 1952. The HighCourt made reference to a large number of documentary records provedby the plaintiffs from the year 1915 onwards, which showed that theland had been granted to the Dargah as far back in 1915. Therefore, theDargah was shown to be the owner as far back in 1325 Fasli (1915A.D.) in the official records. Similar entries were made in 1342 Fasli(1932 A.D.), 1943 and 1951, all of which showed that the lands wereshown as lands belonging to Dargah. The judgments of the DistrictCourt and the High Court are based on evidence. No question of lawarises as far as ownership of land is concerned. Therefore, this findingof fact calls for no interference.

9. It was next contended by the learned counsel that the suit wasnot filed within limitation. This objection is totally untenable. Admittedly,the possession of the land was handed over to the Trust only in the year1978. The suit was filed in the year 1987. The appellants contend that AB

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Athe limitation for the suit is three years as the suit is one for declaration.We are of the view that this contention has to be rejected. We haveculled out the main prayers made in the suit hereinabove which clearlyindicate that it is a suit not only for declaration but the plaintiffs alsoprayed for possession of the suit land. The limitation for filing a suit forpossession on the basis of title is 12 years and, therefore, the suit isBwithin limitation. Merely because one of the reliefs sought is of declarationthat will not mean that the outer limitation of 12 years is lost. Relianceplaced by the learned counsel for the appellants on the judgment of thisCourt in L.C. Hanumanthappa v. H.B. Shivakumar[1] is whollymisplaced. That judgment has no applicability since that case wasCadmittedly only a suit for declaration and not a suit for both declarationand possession. In a suit filed for possession based on title the plaintiffis bound to prove his title and pray for a declaration that he is the ownerof the suit land because his suit on the basis of title cannot succeedunless he is held to have some title over the land. However, the mainrelief is of possession and, therefore, the suit will be governed by ArticleD65 of the Limitation Act, 1963. This Article deals with a suit for possessionof immovable property or any interest therein based on title and thelimitation is 12 years from the date when possession of the land becomesadverse to the plaintiff. In the instant case, even if the case of thedefendants is taken at the highest, the possession of the defendantsEbecame adverse to the plaintiffs only on 19.08.1978 when possessionwas handed over to the defendants. Therefore, there is no merit in thiscontention of the appellants.

10. It was also urged that the plaintiffs had prayed that they wereInamdars and that the High Court had created a new case for the plaintiffsFby declaring them to be Mutawalis. It was argued that since plaintiffshad not claimed the relief that they were Mutawalis, the High Courtcould not have granted this relief. Reliance has been placed on a judgmentof this Court in the case of Bachhaj Nahar v. Nilima Mandal[2]. Para22 of the said judgment reads as follows:

G“22. The observation of the High Court that when a plaintiff setsforth the facts and makes a prayer for a particular relief in thesuit, he is merely suggesting what the relief should be, and that itis for the court, as a matter of law, to decide upon the relief that 1(2016) 1 SCC 332H2(2008) 17 SCC 491

should be granted, is not sound. Such an observation may beappropriate with reference to a writ proceeding. It may even beappropriate in a civil suit while proposing to grant as relief, a lesseror smaller version of what is claimed. But the said observation ismisconceived if it is meant to hold that a civil court may grant anyrelief it deems fit, ignoring the prayer.”

(emphasis supplied)

11. In our view, the aforesaid judgment does not help the appellantsand, in fact, helps the respondents. The judgment clearly lays down thatthe lesser relief or smaller version of the relief claimed or prayed for canbe granted. The plaintiffs claimed the status of Inamdars which is ahigher position than that of Mutawalis. The High Court has granted alesser or lower relief and not a higher relief or totally new relief and,therefore, we reject this contention also.

12. It was also urged that the civil court had no jurisdiction todecide the suit. No such objection was raised before the trial court.This objection was raised before the High Court but has been rightlyrejected. The issue in this case was whether the properties wereproperties of the Dargah or not and the issue was not whether theproperties are wakf properties or not. The High Court rightly held thatthe plaintiffs were not claiming any personal right in the land but onlyclaiming rights of management over the property of the Dargah. Weagree with the finding of the High Court that the civil court had thejurisdiction to decide the suit.

13. At this stage, it would be pertinent to point out that the appellants/defendants, during the course of this appeal, have filed a number ofapplications to place on record certain documents which were not onthe record of the trial court. No explanation has been given in any ofthese applications as to why these documents were not filed in the trialcourt. These documents cannot be looked into and entertained at thisstage. The defendants did not file these documents before the trialcourt. No application was filed under Order XLI Rule 27 of the Code ofCivil Procedure, 1908 for leading additional evidence before the firstappellate court or even before the High Court. Even the applicationsfiled before us do not set out any reasons for not filing these documentsearlier and do not meet the requirements of Order XLI Rule 27 of the A

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14. In view of the above discussion, we find no merit in the appealand the same is dismissed. Pending application(s), if any, shall standdisposed of.

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