Iqbal Basith vs N. Subbalakshmi . on 14 December, 2020


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Supreme Court of India

Iqbal Basith vs N. Subbalakshmi . on 14 December, 2020

Author: Navin Sinha

Bench: Rohinton Fali Nariman, Navin Sinha

                                                                 NON­REPORTABLE


                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION


                                   CIVIL APPEAL NO.1725 OF 2010


         IQBAL BASITH AND OTHERS                                  ...APPELLANT(S)
                                                VERSUS
         N. SUBBALAKSHMI AND OTHERS                             ...RESPONDENT(S)




                                              JUDGMENT

NAVIN SINHA, J.

The plaintiffs are in appeal against the concurrent findings

by two courts, rejecting their plaint seeking the relief for

permanent injunction. The suit was initially dismissed. R.F.A.

No.116/1990 preferred by the appellants was allowed by the

High Court. The order was set aside by this court in C.A. No.

2072/2000 on 22.07.2004 and the matter was remanded to the

High Court.

Signature Not Verified

Digitally signed by
Jayant Kumar Arora
Date: 2020.12.14
16:31:01 IST
Reason:

1

2. Mr. Basava Prabhu S. Patil, learned senior counsel

appearing on behalf of the appellants, submits that the

respondents had no concern with the suit property no. 44/6, ad

measuring 90 ft. x 110 ft. situated on the J. C. Road in

Bangalore. The respondents were the owner of property bearing

no. 42, at a distance of 103 ft., with intervening properties also.

The respondents illegally attempted to encroach on the

appellants property on 10.02.1974 by dumping bamboo and

other construction materials, compelling the appellants to

institute the present suit. Shri Patil relied upon the reports of

the Pleader Commissioner appointed by the Trial Court, and

again by the High Court, to submit that the appellants were

found to be in possession of the property coupled with the entries

in the property tax register and the municipal tax receipts in

name of the appellants. The respondents did not claim any title

in themselves to the suit property, but feebly sought to question

the appellants title in a vague manner. O.S. No. 3334/1984 filed

by the respondents was allowed to be dismissed in default. The

suit filed by the appellants was only for grant of permanent

injunction. No issue with regard to title was therefore framed.

2
The lawful possession of the appellants stood established from

Ex.D­1 dated 07.09.1946, filed by the respondents, vesting title

in their vendor, O.A. Majid Khan by the Bangalore City

Municipality (hereinafter referred to as “the Municipality”) under

Section 41(2) of the Mysore City Municipalities Act, 1933

(hereinafter referred to as ‘the Act’) over an area of 75 ft. x 110 ft.,

and the subsequent sale deed dated 27.09.1962 by the

Municipality in favour of the appellants mother for the remaining

area of 15 ft. x 110 ft.

3. Both the Courts held that the respondents had no concern

with the suit property, yet ventured to decide that the appellants

had failed to establish title and dismissed the suit. The

conclusion of the High Court that the identity of the suit property

had not been established is perverse and contrary to the evidence

on record.

4. Mr. Purushottam Sharma Tripathi, learned counsel for the

respondents, submitted that the appellants failed to establish the

3
identity of the suit property, the boundaries having changed from

time to time. The appellants also failed to establish title in favour

of their vendor. It was therefore rightly held that they could not

establish lawful possession. No original documents of title were

produced, but only photocopies which were inadmissible in

evidence. The property tax register entries for the years 1950­51

to 1954­55 are irrelevant, as the appellants claimed acquisition

of title from O.A. Majid Khan on basis of sale deed dated

10.07.1956. The suit was therefore rightly dismissed.

5. Shri Tripathi however fairly conceded that the respondents

were in possession of property bearing no.42 which was at a

distance of 103 ft. from the suit property bearing no. 44/6, and

that there were intervening properties also. He further, with all

fairness, acknowledged that the respondents never claimed any

title to the property bearing no. 44/6.

4

6. We have considered the submissions on behalf of the parties

and are of the deliberated opinion that the appeal deserves to be

allowed, for reasons to be enumerated hereinafter.

7. The suit property bearing no. 44/6 in J.C. Road, Bangalore

measures totally 90 ft. x 110 ft. The property originally belonged

to the municipality, identified as site no.10 and 17 J.C. Road, 6 th

Division, Bangalore. On 08.08.1945, the City Municipal Council

resolved to sell 75 ft. x 110 ft. to one O.A. Majid Khan. Sanction

for the sale was accorded by the Municipality on 07.09.1946, by

Government Order No. L.3392­3/ML­55­46­6 under Section 41(2)

of the Act. The respondents themselves filed a certified copy of

the same in the suit, which was marked as Ex. D­1. The said

O.A. Majid Khan, by letter no. A7.0.170/46­47 dated 17.09.1946

was directed to deposit Rs.17,361/­as consideration. The

Municipal Engineer on 30.09.1946 was directed to hand over

possession after deposit of the consideration amount. Possession

was handed over to O.A. Majid Khan on 10.10.1946. On

16.04.1956, the Assistant Revenue Officer of the Municipality,

5
informed that the property bearing no.10 and 17 sold to O.A.

Majid Khan had been renumbered as 44, J.C. Road, 25 th division.

8. Sufia Khatoon, the widow of O.A. Majid Khan, sold the

property to the mother of the appellants Zahara Khatoon, original

plaintiff no. 3, on 10.07.1956 by a registered sale deed. Two

confirmatory sale deeds were also executed on 08.04.1958 and

21.08.1959 by the legal heirs of O.A. Majid Khan in favour of

Zahara Khatoon after attaining majority. Subsequently on

27.09.1962 the remaining portion of the suit property

admeasuring 15 ft. x 110 ft. was sold by the municipality to

Zahara Khatoon by a registered sale deed. Zahara Khatoon thus

became the owner of the suit area of 90 ft. x 110 ft. of property

bearing no. 44/6. The mother of the appellants gifted the

property to them in 1966. The necessary entries were made in

the property tax register, and the tax receipts demonstrate the

payment of tax by the appellants from 1964­65 up to the year

1969­70 and again from 1984­85, 1986­87.

6

9. The present suit was instituted by the appellants in 1974

seeking permanent injunction as the respondents attempted to

encroach on their property. The suit schedule property was

described as no. 44/6. The respondents in their written

statement claimed ownership and possession of property no. 42,

acknowledging that other properties lay in between. A feeble

vague objection was raised, but not pursued, questioning the title

of the appellants. The respondents raised no genuine objection

to the validity or genuineness of the government documents and

the registered sale deeds produced by the appellants in support

of their lawful possession of the suit property. The original

defendant no.1 did not appear in person to depose, and be cross­

examined in the suit. His younger brother deposed on the basis

of a power of attorney, acknowledging that the latter had

separated from his elder brother. No explanation was furnished

why the original defendant did not appear in person to depose.

We find no reason not to draw an adverse inference against

defendant no.1 in the circumstances. In Iswar Bhai C. Patel vs.

Harihar Behera, (1999) 3 SCC 457 this Court observed as

follows:­

7
“17…..Having not entered into the witness­box and
having not presented himself for cross­examination,
an adverse presumption has to be drawn against him
on the basis of the principles contained in Illustration

(g) of Section 114 of the Evidence Act, 1872.”

10. The Trial Court framed four issues. The question of title of

the appellants was not one of them.

“1. Do the plaintiffs prove their lawful possession of
the suit property?

2. Do the plaintiffs prove, the defendants interfered
with their possession of suit property?

3. Whether plaintiffs have to pay court fee on the
market value of the property, in view of the
pleadings in plaint?

4. What relief or order?”

11. The High Court framed the issues afresh as follows. Title

was again not one of them.

“1. Whether plaintiffs have proved identity of suit
schedule property?

2. Whether plaintiffs have proved that they are in
lawful possession of suit schedule property?

3. Whether plaintiffs have proved interference by
defendants?

4. Whether the trial court Judge has property
appreciated evidence on record and arrived at
proper reasons and conclusions?”

8

12. Both the courts then proceeded to consider the title of the

appellants to decide lawful possession. The respondents had

themselves produced a certified copy of Ex. D­1 dated

07.09.1946. The appellants produced photocopies of all other

resolutions, government orders and sale deed in favour of their

vendor O.A. Majid Khan by the Municipality. The failure to

produce the originals or certified copies of other documents was

properly explained as being untraceable after the death of the

brother of P.W.1 who looked after property matters. The attempt

to procure certified copies from the municipality was also

unsuccessful as they were informed that the original files were

not traceable. The photocopies were marked as exhibits without

objection. The respondents never questioned the genuineness of

the same. Despite the aforesaid, and the fact that these

documents were more than 30 years old, were produced from the

proper custody of the appellants along with an explanation for

non­production of the originals, they were rejected without any

valid reason holding that there could be no presumption that

documents executed by a public authority had been issued in

proper exercise of statutory powers. This finding in our opinion

9
is clearly perverse in view of Section 114(e) of the Indian Evidence

Act 1872, which provides that there shall be a presumption that

all official acts have been regularly performed. The onus lies on

the person who disputes the same to prove otherwise.

13. This Court in Lakhi Baruah vs. Padma Kanta Kalita,

(1996) 8 SCC 357, with regard to admissibility in evidence of

thirty years old documents produced from proper custody

observed as follows :­

“14. It will be appropriate to refer to Section 90 of
the Evidence Act, 1872 which is set out
hereunder:

“90. Presumption as to documents thirty years
old.— Where any document, purporting or
proved to be thirty years old, is produced from
any custody which the Court in the particular
case considers proper, the Court may presume
that the signature and every other part of such
document, which purports to be in the
handwriting of any particular person, is in that
person’s handwriting, and, in the case of a
document executed or attested, that it was duly
executed and attested by the persons by whom it
purports to be executed and attested.”

15. Section 90 of the Evidence Act, 1872 is
founded on necessity and convenience because it
is extremely difficult and sometimes not possible
to lead evidence to prove handwriting, signature

10
or execution of old documents after lapse of
thirty years. In order to obviate such difficulties
or improbabilities to prove execution of an old
document, Section 90 has been incorporated in
the Evidence Act, 1872 which does away with the
strict rule of proof of private documents.
Presumption of genuineness may be raised if the
documents in question is produced from proper
custody. It is, however, the discretion of the
court to accept the presumption flowing from
Section 90. There is, however, no manner of
doubt that judicial discretion under Section 90
should not be exercised arbitrarily and not being
informed by reasons.”

14. The appellants were seeking the relief of permanent

injunction only. Their title to the suit property was not disputed

by the respondents. The respondents acknowledged that they

were in ownership and possession of plot no.42, which had no

concern with the suit property and was situated at a distance of

103 feet with other intervening properties. The two reports of the

Pleader Commissioner also confirmed the possessory title of the

appellants along with property tax registers and municipal tax

receipts. The appellants had more than sufficiently established

their lawful possession of the suit property.

11

15. The conclusion by the courts below that the appellants had

failed to establish title and therefore could not be said to be in

lawful possession is therefore held to be perverse and

unsustainable. Similarly, the conclusion that the identity of the

suit property was not established is also held to be perverse in

view of letter dated 16.04.1956 from the municipality, referred to

herein above. The contention of the respondents feebly seeking to

question the title of the appellants was rejected holding that they

had nothing to do with the suit schedule property and that their

conduct was questionable. Yet the appellants were wrongly

denied the relief of permanent injunction. In our considered

opinion the Trial Court and the High Court both posed unto

themselves the wrong question venturing to decide the title of the

appellants, and arrived at an erroneous conclusion.

16. On basis of the aforesaid discussion, the materials and

evidence on record, we are of the considered opinion that the

impugned orders dismissing the suit and the appeal are therefore

not sustainable. We therefore set aside the orders of the Trial

12
Court and the High Court dismissing the suit, and allow the

appeal.

………………………….J.

[R.F. NARIMAN]

………………………….J.

[NAVIN SINHA]

………………………….J.

[KRISHNA MURARI]
NEW DELHI
DECEMBER 14, 2020.

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