***

Estoppel -- Developer is estopped from resiling from a Permanent Alternate Accommodation Agreement (PAAA) after obtaining vacant possession, demolishing the old premises and completing redevelopment.

***

Permanent Alternate Accommodation Agreement --  PAAA is a statutory contract regulated and enforceable by MHADA, not merely a private arrangement.

***

Occupier -- Status -- Developer having accepted possession pursuant to the PAAA cannot subsequently dispute the appellant's status as an occupier.

***

A. Contract Law -- Redevelopment of cessed buildings -- Permanent Alternate Accommodation Agreement (PAAA) -- Estoppel -- Conduct of developer -- Resiling from agreement -- Developer obtained consent of occupants, secured vacant possession, demolished the old building and completed redevelopment on the promise of allotting alternate accommodation under the PAAA -- Thereafter sought to dispute the appellant's status as an occupant and challenged the PAAA -- Held, developer having acted upon the PAAA and obtained possession pursuant thereto is estopped from denying the appellant's entitlement under the agreement -- Mere non-utilisation of the entire fungible area is no ground to resile from the agreement or deny allotment of the agreed premises -- Civil suit challenging the PAAA after an undertaking before the High Court held misconceived and mala fide -- High Court directed not to proceed with Civil Suit -- Developer directed to execute the PAAA and hand over possession of the agreed apartments within two months, failing which appellants entitled to damages at the prevailing monthly rental value.

(Paras 19 - 21, 24 - 25)

B. Development Control Regulations for Greater Bombay, 1991, Regulation 33(7) -- Maharashtra Housing and Area Development Act, 1976 (28 of 1977) --- Permanent Alternate Accommodation Agreement (PAAA) -- Nature -- Statutory contract -- Jurisdiction of MHADA -- High Court erred in treating the PAAA as a mere private arrangement -- PAAA executed under the statutory redevelopment scheme framed under the MHAD Act and Development Control Regulations is regulated by the statute and enforceable by MHADA, under whose NOC the redevelopment project is undertaken -- Orders directing execution of the PAAA and handing over possession held valid and sustainable.

(Paras 8 and 22)

C. Maharashtra Housing and Area Development Act, 1976 (28 of 1977), Section 2(25) -- Occupier -- Meaning -- Distinction from statutory tenant -- Rights on redevelopment -- 'Occupier' includes a person liable to pay rent, a rent-free tenant, a licensee in occupation or a person liable to pay damages for use and occupation -- Occupancy is distinct from statutory tenancy and does not depend upon continuation of tenancy rights -- Even a person in possession liable to pay damages may qualify as an 'occupier' for the purposes of redevelopment and re-allotment -- Public notice and contemporaneous records consistently showed appellant as joint occupant of the old premises -- Consequently, appellant was entitled to allotment under the PAAA irrespective of probate, which was obtained only by way of abundant caution -- Developer could not subsequently dispute appellant's status as an occupier after having accepted possession pursuant to the redevelopment scheme.

(Paras 12 - 15, 19 and 22)

***

Property Law -- Ancestral estate -- Where several settlements and consolidations have intervened, plaintiffs claiming a share in the ancestral estate must establish that the suit property was allotted in lieu of the estate left by the common ancestor -- Failure to establish such nexus warrants dismissal of the suit.

***

Revenue records -- Excerpt prepared by Special Kanungo or Patwari Muharrir -- Proof -- Excerpt is not evidence unless duly proved -- Admissibility of a document and its mode of proof are distinct issues -- Mere exhibition of a document without objection does not dispense with the requirement of proving it -- Reliance on an unproved excerpt raises a substantial question of law.

***

A. Property Law -- Ancestral estate -- Identification of suit property -- Plaintiffs filed a suit claiming a share in the estate of an ancestor who died in 1906, seeking a share out of 514 kanals 13 marlas of land. -- Several settlements and consolidations of holdings had taken place in the village since the ancestor's death -- It was incumbent upon the plaintiffs to connect the present suit property to the estate left by the ancestor to discharge their onus -- Although the plaintiffs proved themselves to be legal heirs, they failed to connect the suit property to the ancestor's estate -- Courts below erred in decreeing the suit without recording any finding on whether the suit land was actually allotted in lieu of the estate left by the ancestor.

(Paras 14, 16, 20 - 21)

B. Punjab and Haryana High Court Rules and Orders, Volume I, Chapter 9 -- Procedure for obtaining excerpts -- Special Kanungo or Patwari Muharrir -- Excerpt from revenue records -- Proof -- Chapter 9 provides that an excerpt prepared by a Special Kanungo or Patwari Muharrir is not evidence unless proved -- Author must produce the original revenue records, be put on oath and state that the excerpt is a true copy of the original records -- PW-1, who prepared the excerpt, admitted in cross-examination that he could neither read nor write Urdu -- Consequently, the excerpt remained unproved -- Held, admissibility of a document and the mode of proof thereof are two different issues -- Though the excerpt was admitted in evidence without objection, the plaintiffs were not absolved of their duty to prove the document in accordance with law -- Judgment and decree passed by the Courts below are found to be unsustainable and are hereby set aside. Suit filed by the plaintiffs is ordered to be dismissed.

(Paras 17-22)

***

Clog on equity of redemption -- Right to redeem cannot be postponed -- A mortgagor's right to redeem the mortgaged property accrues on the date the term postponing redemption is read down as a clog on redemption.

***

Transfer of Property Act, 1882 (4 of 1882), Section 60 -- Mortgage -- Clog on equity of redemption -- Right to redeem -- Defendants challenged a clause in the mortgage deed postponing redemption for 99 years as a clog on the right of redemption -- Held, the right to redeem cannot be postponed -- A mortgagor's right to redeem the mortgaged property accrues on the date the term postponing redemption is read down as a clog on redemption -- Consequently, limitation for redemption begins to run from that date.

(Paras 5-7)

***

Land Revenue Act -- Revision -- Mutation attested in 2004 challenged after about 20 years -- Revisional powers exercisable only within reasonable time though no limitation prescribed -- Belated revision entertained without considering delay or accrued third-party rights held unsustainable -- Order setting aside mutation quashed and mutation restored.

***

A. Jammu and Kashmir Land Revenue Act, Samvat 1996 (1939 A.D.) (XII of Samvat 1996), Section 15 -- Revisional jurisdiction -- Exercise after unreasonable delay -- Mutation attested in 2004 challenged by revision petition filed in 2021 -- No application for condonation of delay and no finding regarding sufficiency of cause -- Revisional powers, though not subject to any prescribed period of limitation, required to be exercised within a reasonable period -- Entertaining revision after nearly two decades without cogent explanation impermissible -- Order of Financial Commissioner set aside and mutation restored.

(Paras 30-44, 47-60)

B. Jammu and Kashmir Land Revenue Act, Samvat 1996 (1939 A.D.) (XII of Samvat 1996), Section 15 -- Revisional jurisdiction -- Delay and laches -- Long-standing mutation remaining unchallenged for about twenty years -- Mutation having remained operative for about twenty years and third-party rights having accrued during intervening period -- Reopening concluded mutation after extraordinary delay without considering effect on accrued rights and settled position held unsustainable.

(Paras 36-45, 52-58)

C. Jammu and Kashmir Land Revenue Act, Samvat 1996 (1939 A.D.) (XII of Samvat 1996), Section 15 -- Revisional jurisdiction -- Fraud -- Mere allegation of fraud does not confer indefinite period for exercise of revisional powers -- Even where fraud is alleged, revisional jurisdiction must be exercised within reasonable time from its discovery -- Bald and unsubstantiated plea of fraud insufficient to unsettle long-standing mutation.

(Paras 39, 49, 57)

***

Hindu Succession -- Property inherited under Section 8 devolves upon heirs as tenants-in-common and not as joint tenants – Widow inheriting along with daughters cannot act as karta and alienate entire property on ground of legal necessity.

***

A. Hindu Succession Act, 1956 (30 of 1956), Sections 8, 10 and 19 -- Succession to separate property of male Hindu dying intestate -- Class-I heirs succeeding simultaneously -- Property devolves per capita and as tenants-in-common and not as joint tenants -- Each heir acquires definite and separate share -- Rule of survivorship has no application.

(Paras 6-7)

B. Hindu Succession Act, 1956 (30 of 1956), Sections 8 and 19 -- Tenancy-in-common vis-à-vis joint tenancy -- Distinction -- In tenancy-in-common, each co-owner possesses identifiable undivided share devolving upon his own heirs -- In joint tenancy, ownership remains joint and governed by survivorship -- Property inherited under Section 8 held as tenancy-in-common.

(Paras 7)

C. Hindu Succession Act, 1956 (30 of 1956), Sections 8, 19 and 30 -- Property inherited under Section 8 -- Nature of interest acquired -- Heir takes property in individual capacity and not as karta of Hindu Undivided Family -- Descendants acquire no right therein by birth -- Property does not assume character of coparcenary property merely because it belonged to paternal ancestor.

(Paras 7)

D. Hindu Succession Act, 1956 (30 of 1956), Sections 8, 10 and 19 -- Alienation by widow -- Separate property of deceased devolving upon widow and daughters in equal shares -- Widow cannot claim status of karta of the family or alienate shares belonging to other co-heirs on plea of legal necessity -- Alienation sustainable only to extent of her own share.

(Para 8)

***

Withdrawal of suit -- Suit for injunction based on alleged construction is disputed by defendant and material on record shows no such construction -- Withdrawal with liberty to refile cannot be permitted.

***

Code of Civil Procedure, 1908 (5 of 1908), Order 23 Rule 1 -- Withdrawal of suit with liberty to institute fresh -- Suit for injunction based on alleged construction is disputed by defendant and material on record shows no such construction -- Withdrawal with liberty to refile cannot be permitted -- Dismissal of application upheld.

(Paras 6 to 9)

***

Ancestral property -- Estate inherited by unmarried and issueless brother from common ancestor attained character of self-acquired property in his hands.

***

Ancestral property -- Father could not suffer consent decree in favour of one son to exclusion of other son having a right by birth in the property.

***

Ancestral property -- Property in which plaintiff had a right by birth could not be subjected to family settlement excluding him.

***

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Property inherited from ancestor -- Nature of property -- Estate inherited by unmarried and issueless brother from common ancestor attained character of self-acquired property in his hands.

(Para 15)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Ancestral property -- Consent decree -- Father had no authority to suffer consent decree in favour of one son to exclusion of other son in respect of ancestral property -- Plaintiff acquired right in property by birth -- Decree not binding to extent of plaintiff's share.

(Para 16)

C. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Ancestral property -- Family settlement -- Subject matter of family settlement being ancestral property in which plaintiff had a right by birth could not be subjected to family settlement excluding plaintiff.

(Para 16)

***

Co-sharer property -- Purchaser from co-sharer acquires only such rights and possession as vendor himself possessed and cannot claim exclusive possession unless vendor was in exclusive possession of specific khasra numbers.

***

Permanent injunction -- Joint property -- Co-sharer in joint possession is not entitled to injunction restraining other co-sharers from alleged interference on basis of claim of exclusive possession not proved.

***

Revenue record -- Exclusive possession -- Burden of proof -- Failure to produce revenue record showing vendor's exclusive possession prior to sale deed is fatal to claim of exclusive possession by vendee.

***

Additional evidence -- Relevancy -- Sale deed relating to different khasra numbers and executed by a person not party to suit is neither relevant nor necessary for adjudication of dispute and cannot be permitted in appeal.

***

A. Transfer of Property Act, 1882 (4 of 1882), Section 8 -- Co-sharer property -- Sale by co-sharer -- Vendor being co-sharer in joint property could transfer only such rights and possession as he himself possessed -- Purchaser cannot claim exclusive possession unless vendor was established to be in exclusive possession of specific khasra numbers at time of sale.

(Paras 13 to 16)

B. Specific Relief Act, 1963 (47 of 1963), Section 38 -- Permanent injunction -- Joint possession -- Vendor not proved to be in exclusive possession of suit land -- Purchaser held only a co-sharer in joint possession -- Not entitled to injunction restraining other co-sharers from interference with suit property.

(Paras 14 to 16)

C. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 -- Revenue record -- Khasra Girdawari -- Exclusive possession -- Khasra Girdawari reflected possession of different co-sharers and joint possession of suit land -- Absence of any revenue record showing exclusive possession of vendor prior to execution of sale deed negatived purchaser's claim of exclusive possession.

(Paras 14 and 15)

D. Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 27 -- Additional evidence -- Additional evidence sought to be produced related to different khasra numbers and purchase of share from a person not party to suit -- Evidence neither relevant nor necessary for adjudication of appeal -- Application rightly dismissed.

(Para 16)

***

Rejection of plaint -- Existence of cause of action has to be examined solely from averments in plaint -- Defence of defendant cannot be considered at that stage.

***

Rejection of plaint -- Specific performance -- Whether writing constitutes a valid and enforceable agreement is a matter requiring evidence and adjudication at trial -- Plaint cannot be rejected under Order VII Rule 11 CPC on that ground.

***

A. Code of Civil Procedure, 1908 (5 of 1908), Order 7 Rule 11 -- Rejection of plaint -- Cause of action -- Whether cause of action is disclosed has to be determined only from averments contained in plaint -- Defence raised by defendant cannot be taken into consideration while deciding application for rejection of plaint.

(Para 4)

B. Code of Civil Procedure, 1908 (5 of 1908), Order 7 Rule 11 -- Specific Relief Act, 1963 (47 of 1963), Section 10 -- Specific performance -- Agreement to sell -- Whether writing constituted a valid and enforceable agreement can be determined only after parties lead evidence and Court appreciates such evidence -- Plaint not liable to rejection at threshold on plea that no valid agreement came into existence.

(Para 5, 6)

***

Partition of land -- Challenge to concluded partition proceedings under Haryana Land Revenue Act -- No objection raised at stage of mode of partition/Naksha Bey/Naksha Jeem -- Tubewell land already allotted and landlocked khasra not entitled to separate Rasta -- Partition upheld as involving equitable adjustment and not mathematical precision -- Writ petitions dismissed.

***

Haryana Land Revenue Act, 1887 (Act No. XVII of 1887), Sections 111, 114, 116, 118, 121, 122 and 125 -- Constitution of India, Articles 226/227 -- Partition proceedings -- Mode of partition -- Clause providing that partition will be carried out while maintaining possession -- Petitioners challenging partition on ground of violation of mode of partition, non-allotment of tubewell land, absence of Rasta and unfair partition -- Petitioners already allocated area where tubewell installed has been allotted to them -- No reasonable basis to claim entire Killa number -- Claim for separate Rasta rejected as land found landlocked and not abutting any existing revenue passage -- No occasion for providing Rasta to land locked area -- Petitioners did not raise objections to mode of partition or Naksha Bey and Naksha Jeem at relevant stage -- Partition proceedings completed with Sanad Taksim -- Partition cannot be carried out with mathematical precision and adjustments are required depending upon various factors including possession, location, nature and value of land and passage -- Writ petitions dismissed.

(Paras 7 to 12)

***

First appeal -- Substantial compliance with Order 41 Rule 31 CPC -- Detailed reappreciation by First Appellate Court sufficient to sustain reversal of Trial Court decree.

***

Fraud -- Registered GPA-based sale transactions – Plaintiff failed to establish that transactions were mere loan-security arrangements or were vitiated by fraud – Burden of proof remains on plaintiff; in absence of foundational facts, presumption of genuineness of registered sale transactions stands.

***

A. Code of Civil Procedure, 1908 (Act No. V of 1908), Section 96 read with Order 41 Rule 31 – First Appellate Court, being the final court on facts, is required to independently reappreciate entire evidence and assign reasons while reversing Trial Court decree – Requirement is of substantial compliance and not mere technical formality – Detailed reappreciation of oral and documentary evidence, including loan transactions, Exs. B7 and B9, possession, mutation entries, limitation and conduct of parties, held sufficient compliance – Judgment not liable to be interfered with on ground of alleged non-compliance with Order XLI Rule 31 CPC.

(Para 40-42)

B. Transfer of Property Act, 1882 (Act No. IV of 1882), Sections 53A, 54 and 55 – Indian Evidence Act, 1872 (Act No. 1 of 1872), Sections 101 to 103 – Registered GPA – Execution of sale deeds pursuant to GPAs – Fraud alleged -- Burden of proof – Appellant executed registered GPAs in favour of respondents; original title deeds were handed over and registered sale deeds executed followed by mutation entries and subsequent transfers – Burden to prove that transactions were only loan-security arrangements and not genuine sale transactions lies upon the plaintiff – Mere allegation of fraud or fiduciary misuse is insufficient without foundational facts – Burden does not shift to respondents unless foundational facts are first established.

(Paras 43, 44)

C. Transfer of Property Act, 1882 (Act No. IV of 1882), Sections 54 and 55 – Indian Evidence Act, 1872 (Act No. 1 of 1872), Sections 101 to 103 and 114 – Registered sale deeds pursuant to GPA – Fraud alleged – Delay and conduct – Appellant executed registered GPAs and sale deeds in 1998; mutation entries continued for several years and multiple subsequent transactions were effected – No cancellation of GPAs or legal action for nearly a decade – Explanation of delayed knowledge rejected in view of appellant and PW-1 being engaged in real estate business – Non-examination of appellant and attesting witnesses to receipts and GPAs – No expert evidence of forgery or interpolation – Plea of forgery of Exs. B7 and B9 rejected – Appeal dismissed.

(Paras 45-58)

***

Will -- Exclusion of natural heirs -- Mere exclusion of wife and children from inheritance not by itself a suspicious circumstance.

***

Order 41 Rule 31 CPC -- Non-framing of proper points for determination by First Appellate Court -- Effect -- Mere technical non-compliance not sufficient to vitiate judgment when Appellate Court has substantially complied with requirements of law by thoroughly considering evidence, rival contentions and recording reasons -- Judgment of First Appellate Court upheld.

***

Affidavit -- Evidentiary value -- Affidavit of attesting witnesses denying execution of Will -- Affidavit not substantive evidence unless deponent subjected to cross-examination in accordance with law.

***

A. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will -- Due execution and attestation -- One attesting witness examined -- Attesting witness specifically deposed that testator executed Will in his presence and both signed in presence of each other -- Requirement of proof of execution duly satisfied -- Concurrent findings upholding genuineness of Will affirmed.

(Paras 27 to 30)

B. Mutation entries -- Effect -- Mutation entries do not confer title and are only for fiscal purposes -- Mere mutation of property in favour of wife and children of deceased not affecting title flowing under validly executed Will.

(Para 31)

C. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Will -- Suspicious circumstances -- Exclusion of natural heirs -- Mere exclusion of wife and children from inheritance not by itself suspicious circumstance -- Testator legally entitled to dispose of property according to his wishes.

(Paras 32 to 34)

D. Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 31 -- First Appellate Court -- Non-framing of proper points for determination -- Substantial compliance -- Mere technical non-compliance with Order 41 Rule 31 CPC not sufficient to vitiate judgment where Appellate Court substantially complied with requirements by scrutinising evidence and assigning reasons -- Judgment held not suffering from illegality.

(Para 37)

E. Indian Evidence Act, 1872 (1 of 1872), Section 3 -- Affidavit -- Evidentiary value -- Affidavit not substantive evidence unless deponent available for cross-examination -- Affidavits of attesting witnesses denying execution of Will filed even before filing of written statement and without Court notice -- Such affidavits rightly held unreliable and discarded.

(Para 38)

***

Public nuisance -- Illegal encroachment on public street -- Removal of unauthorized ramps and structures -- Maintainability of writ petition -- Efficacious alternative remedy available under Section 152 BNSS, 2023 -- Writ petition dismissed with liberty to avail statutory remedy.

***

Constitution of India, Article 226 -- Bharatiya Nagarik Suraksha Sanhita, 2023, Section 152 -- Public nuisance -- Illegal encroachment on public street -- Petition seeking removal of unauthorized ramps, platforms and structures allegedly raised over public street by way of encroachment – State raised objection regarding availability of statutory remedy under Section 152 BNSS -- Petitioner unable to controvert said objection -- High Court declined to exercise writ jurisdiction and relegated petitioner to avail remedy in accordance with law.

(Paras 1 to 4)

***

Adverse possession – Mere long and continuous possession does not ripen into ownership unless possession is proved to be hostile, open and in denial of title of true owner.

***

Adverse possession – Pleadings -- Absence of specific pleadings regarding hostile possession fatal to plea of adverse possession.

***

Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Nature -- Pleadings -- Mere possession, irrespective of its duration, does not ipso facto mature into ownership unless such possession is proved to be open, continuous, hostile, and unequivocally adverse to the true owner -- Doctrine of adverse possession necessarily postulates a clear denial of the title of the lawful owner coupled with an assertion of hostile animus – Absent a clear and hostile animus to possess, the mere occupation of the land does not ripen into legal ownership -- It is a fundamental tenet of civil jurisprudence that a claim for adverse possession must be supported by precise averments regarding the date of commencement and the nature of the hostile occupation.

(Para 15-17)

Will -- Suspicious circumstances -- Attesting witnesses admitted that testator had not affixed thumb impression in their presence -- Unregistered Will executed three days prior to death of testator -- Natural heir excluded without explanation despite evidence of love and affection -- Space between signatures and heading “attesting witness” also found suspicious -- Will disbelieved.

***

Additional evidence at second appellate stage -- Prayer for comparison of thumb impressions appearing on Will and sale deed -- Rejected -- Plaintiffs failed to exercise due diligence.

***

A. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Proof of Will -- Unregistered Will -- Both attesting witnesses admitted in cross-examination that testator had not affixed thumb impression in their presence -- Moreover, there is no evidence to show that they had received personal acknowledgment from the testator qua the marking of the thumb impression of the testator on the Will -- Thus, due execution of the Will has not even been remotely proved.

(Para 12-17)

B. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Proof of Will -- Unregistered Will – Suspicious circumstances -- Space between the signatures and the heading “attesting witness” typed was suspicious -- Deceased had love and affection with defendant, yet as per the said alleged Will, nothing has been given to him, who was to succeed to the property in its natural course being closest surviving heir -- Executing an unregistered Will on 17.02.1992 i.e., three days prior to his death which took place on 20.02.1992 is also highly suspicious – Both attesting witnesses admitted that testator had not affixed thumb impression in their presence -- Rendering the Will doubtful.

(Para 11-17)

C. Code of Civil Procedure, 1908 (5 of 1908), Order 41 Rule 27 and Section 151 -- Additional evidence at second appellate stage -- Application seeking comparison of thumb impressions on Will and sale deed -- Plaintiffs failed to exercise due diligence during trial -- Additional evidence held unnecessary, in view of findings regarding non-proof of execution and suspicious circumstances surrounding Will -- Application dismissed.

(Para 22)

***

Family settlement – Oral family arrangement – Validity -- Property found to have fallen to share of defendant No.1 in family settlement -- Defendant No.1 constructed houses from his own funds and remained in settled possession -- Concurrent findings of fact not liable to be interfered with in second appeal.

***

Code of Civil Procedure, 1908 (5 of 1908), Section 100 – Regular Second Appeal -- Family settlement -- Partition suit -- Plaintiff sought possession by way of partition claiming suit property to be ancestral and joint Hindu family property -- Defendant No.1 pleaded that property had fallen to his share in oral family settlement -- Conceded position of fact that the parties partitioned their agricultural property long back -- They are neither joint in mess nor in residence -- Plaintiff is residing in Mumbai -- Defendant No.1 alone was residing in village and is in settled possession of houses constructed from his own funds -- Held, oral family settlement is valid and binding -- Concurrent findings of fact recorded by Courts below did not suffer from any legal infirmity warranting.

(Paras 10 to 12)

***

Pre-emption – Co-sharer – Right of kinsfolk co-sharer -- Plaintiff being co-sharer in joint khewat was entitled to exercise right of pre-emption even though he was related to vendor -- Declaration of Section 15(2) of Punjab Pre-emption Act as unconstitutional did not take away right of co-sharer under Section 15(1)(b).

***

Punjab Pre-emption Act, 1913 (1 of 1913), Section 15(1)(b) Fourthly, 15(2) – Pre-emption suit -- Plaintiff sought possession by way of pre-emption on ground of being co-sharer in joint khewat -- Defendant contended that since plaintiff was related to vendor, claim could arise only under Section 15(2), which had been declared ultra vires -- Held, right of pre-emption available to co-sharer under Section 15(1)(b) remains intact notwithstanding declaration of Section 15(2) as unconstitutional -- Kinsfolk of vendor, if also co-sharers, are entitled to maintain suit for pre-emption under Section 15(1)(b) Fourthly -- Judgments and decrees passed by Courts below decreeing suit upheld -- Regular Second Appeal dismissed.

(Paras 7 to 10)

Partition proceedings -- Clubbing of partition proceedings relating to different khewats -- Mere convenience of some co-sharers not sufficient to direct clubbing of khewats having different co-sharers -- Clubbing permissible only with consent of all co-sharers.

***

Punjab Land Revenue Act, 1887 (XVII of 1887), Section 111, 121 -- Partition proceedings -- Clubbing of khewats -- Different co-sharers in different khewats -- Partition proceedings cannot be clubbed unless all co-sharers consent to same -- Clubbing of three khewats, which are subject matter of three separate partition applications, having different co-sharers cannot be permitted unless all the co-sharers in respective khewats agree to the same -- Merely for convenience of the some of the co-sharers, the partition cannot be carried out by directing clubbing of khewats unless all the co-sharers consent to the same.

(Paras 4 to 12)

***

Nominee –Savings account’s Nominee is entitled only to receive amount lying in account and does not acquire ownership of entire estate by virtue of nomination alone.

***

Indian Succession Act, 1925 (39 of 1925), Section 370 -- Nominee -- Succession certificate -- Plaintiff proved to be nominee in post office savings account -- Nomination held to confer right only to withdraw amount lying in account and not succession rights over entire estate -- Succession certificate obtained by defendant without impleading plaintiff and without disclosure of complete facts not conclusive of title -- It merely authorizes collection of debts and securities and does not adjudicate ownership of the estate conclusively.

 (Paras 12, 13)

***

Benami transaction -- Burden to prove benami transaction lies heavily upon person asserting same and mere payment of consideration by another does not establish benami nature of transaction unless intention to retain beneficial ownership is proved.

***

Adverse possession -- Permissive possession -- Mere long possession does not mature into ownership -- In absence of clear pleadings and cogent proof regarding hostile animus, plea of adverse possession is untenable.

***

A. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Limitation Act, 1963 (36 of 1963), Article 65, Section 27 -- Benami transaction -- Adverse possession -- Burden of proof -- Plaintiff sought possession after termination of licence granted to defendant-brother -- Defendant claimed that property though purchased in plaintiff’s name was actually purchased by father and sale deed was benami -- Mere proof that consideration proceeded from father not sufficient to establish benami transaction -- Intention of person supplying consideration held determinative test -- Evidence on record established that father intended to purchase property in plaintiff’s name and confer title upon him -- Plea of adverse possession untenable as possession was permissive in inception and no evidence led regarding point of time when possession became hostile to knowledge of true owner -- Repairs, reconstruction and long possession do not by themselves constitute adverse possession -- Concurrent findings of Courts below upheld -- RSA dismissed.

(Paras 12.1 to 14)

B. Limitation Act, 1963 (36 of 1963), Article 65, Section 27 -- Adverse possession -- It is trite that where possession is permissive in its inception, the person in possession must not only assert but also clearly establish the point of time at which such possession became hostile to the knowledge of the true owner -- In the absence of any such specific pleading or proof, the claim of adverse possession is rendered wholly untenable.

(Para 13.3)

***

Ad valorem Court fee -- Plaintiff being signatory/executant of sale deed and seeking possession after its revocation along with recovery of specified amount, held, liable to pay ad valorem Court fee notwithstanding suit being styled as one for mandatory injunction.

***

Court Fees Act, 1870, S.7(iv)(c), Art.17(iii) Sch.II -- Ad valorem Court fee -- Suit for possession camouflaged as mandatory injunction -- Plaintiff sought revocation/cancellation of sale deed executed by himself and also sought release of specified balance sale consideration -- Mere clever drafting of suit as one for mandatory injunction cannot avoid payment of proper Court fee – Signatory of sale deed seeking its annulment liable to pay ad valorem Court fee on consideration mentioned in deed -- Trial Court rightly directed plaintiff to affix ad valorem Court fee -- Revision dismissed.

(Paras 10 to 15)

***

Execution -- Judgment Debtor cannot frustrate execution of decree by purchasing part of property during pendency of execution proceedings and thereafter raising plea of co-sharership -- Transfer pendente lite does not defeat decree for possession nor confer right to obstruct execution.

***

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 102 – Constitution of India, Article 227 -- Execution -- Objections by Judgment Debtor -- Lis pendens -- Decree for possession attained finality -- Judgment Debtor during pendency of execution proceedings purchased part of alleged joint land and claimed status of co-sharer to resist execution -- Purchase made subsequent to decree and during execution proceedings held hit by doctrine of lis pendens -- Executing Court cannot go beyond decree -- Subsequent transaction cannot render decree inexecutable -- Even transferee pendente lite not entitled to resist execution in view of O.21 R.102 CPC -- Objections rightly dismissed -- No interference warranted under Art.227 of Constitution.

(Paras 8 to 13)

***

Rejection of plaint -- Adverse Possession -- Whether property was privately partitioned and title perfected by adverse possession are triable issues not liable to be decided under Order VII Rule 11 CPC.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(a) -- Limitation Act, 1963 (36 of 1963), Article 65 -- Title by adverse possession -- Rejection of plaint -- Cause of action -- Co-owners -- Plaint rejected on the ground that plaintiffs, being co-owners, could not claim title by adverse possession -- Plaint specifically pleaded private partition pursuant to an arbitral award and exclusive, open, peaceful, continuous and hostile possession since 1982, maturing into adverse possession in 1994 -- Whether the property stood privately partitioned and whether plaintiffs acquired title by adverse possession are triable issues involving mixed questions of fact and law requiring evidence -- While considering an application under Order VII Rule 11(a), Court is required to examine only the averments contained in the plaint and the documents relied upon by the plaintiffs to ascertain whether a cause of action is disclosed -- Even if the plea of adverse possession ultimately fails, the suit for permanent injunction to protect admitted possession remains maintainable -- A plaint cannot be rejected partially -- Order rejecting plaint set aside and matter remanded for trial.

(Paras 11 to 19)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint -- If it is shown from the averments made in the plaint and the documents relied upon by the plaintiff, which are to be taken as true at their face value, that the plaintiff would be entitled to a decree as prayed in the suit, the plea of a defendant for rejection of the plaint has to be turned down.

(Para 11)

C. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11(a) – Rejection of plaint -- While dealing with an application under Order VII Rule 11 (a) of the Code of Civil Procedure, the courts have to determine whether the plaint discloses a cause of action by carefully scrutinizing the averments made in the plaint together with the documents relied upon by the plaintiffs.

(Para 11)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10, Order 6, 17 -- Amendment of plaint – Impleadment as party – Sut for specific performance – Decree in favour of third party -- Plaintiff is the dominus litis -- In case they are not made parties and the petitioner is not permitted to amend the plaint, then in the said circumstances, the petitioner would be fighting a half lost battle inasmuch as since the suit property now stands transferred by virtue of the judgment and decree in a suit in which the present defendants/ respondents were parties -- Rights of the plaintiff/petitioner cannot be foreclosed on account of a subsequent judgment suffered by the defendants/respondents in favour of their relative GK -- Applications filed by the petitioner for amendment as well as for impleadment allowed.

(Para 12, 13)

A. Property – Title – Entry in property register of Municipal Corporation -- Proof of title – Except for a random entry in its property register, the MCD never asserted title over the plots in question before any forum – A mere entry in the list of properties maintained by the MCD cannot, by itself, constitute a valid proof of title over the subject land.

(Para 24, 27)

B. Property – Layout plan – Land earmarked for public purpose – De-reservation – Effect – Land originally earmarked for a High School – Competent authority de-reserved the land admeasuring 1600 sq. yards – No material on record to show that notwithstanding such de-reservation, land would continue to retain character of being reserved for a public purpose – Finding that land required to be retained for public purpose held unsustainable on the face of the record.

(Para 28)

A. Joint possession -- Plaintiffs having lost their battle for title over the estate, cannot claim joint possession over the suit property.

(Para 15)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second appeal -- Substantial question of law -- Misreading of evidence and going beyond pleadings breeds perversity constitutes substantial question of law -- Judgment & decree passed by the Lower Appellate Court reversed.

(Para 17)

***

Additional evidence (SPA) at appellate stage cannot be permitted in absence of due diligence and explanation for non-production at trial, as it would amount to filling lacunae – Application dismissed.

Registered Sale Deed carries presumption of validity – Allegation of fraud not proved as plaintiff failed to depose – SPA holder cannot depose on behalf of principal on personal facts – Adverse inference drawn – Appeal dismissed.

***

A. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 27(1), (1)(aa) – SPA in additional evidence at appellate stage – Permissible only on proof of due diligence and inability to produce evidence at trial despite best efforts –Applicant has not exercised due diligence and cannot be permitted at this stage to improve his case or fill up lacunae in his case by leading additional evidence -- Application dismissed.

(Para 1)

B. Code of Civil Procedure, 1908 (V of 1908), Order 3 Rules 1 and 2, Section 100 – Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Registration Act, 1908 (16 of 1908), Section 17, 60(2) -- Registered Sale Deed – Presumption of validity – Allegation of fraud – Burden of proof – Power of Attorney (SPA) – Scope of deposition – Second Appeal – Registered Sale Deed bearing thumb impression and photograph carries presumption of truth and validity – Allegation of fraud not proved as plaintiff failed to step into witness box and led no evidence – SPA holder cannot depose on behalf of plaintiff regarding facts within personal knowledge of principal – Non-examination of plaintiff warrants adverse inference – Contradictory pleas regarding sale consideration – NOC supports case of defendants – High Court in second appeal has limited jurisdiction to interfere in the concurrent findings of fact rendered by the Courts below – Appeal dismissed.

(Paras 15 to 32)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Punjab Courts Act, 1918 (6 of 1918), Section 41 – Regular Second Appeal -- Scope -- Applicability of Punjab Courts Act, 1918 vis-à-vis Code of Civil Procedure, 1908 -- In States of Punjab & Haryana, second appeals governed by Section 41 of 1918 Act and not by Section 100 CPC -- No requirement to frame substantial question of law. Position settled by Pankajakshi’s, (2016) 6 SCC 157, Kirodi’s  (2019) 11 SCC 317 = (2019) Law Today Live Doc. Id. 14222 and Satender’s case, 2022 (12) Scale 92.

(Para 6)

B. Transfer of Property Act, 1882 (4 of 1882), Section 6 -- Family settlement – Spes Successionis -- Nature of property/ right to be included – Family settlement is not circumscribed to parties possessing an existing legal title in the property – Law recognizes that such a settlement may validly be arrived at even amongst persons having a semblance of a claim, a possible expectancy, or a mere chance of succession – It has been unequivocally held that even a prospective or contingent right to succeed to property constitutes a sufficient juridical basis for entering into a family arrangement -- Children and grandchild of the appellants-plaintiffs, possessed a legitimate expectation or chance of succession in the event of intestate devolution -- Consequently, the existence of such a potential claim furnishes an adequate legal foundation for the family settlement.

(Para 12, 12.1)

C. Registration Act, 1908 (16 of 1908), Section 17 – Compromise decree/ Family settlement – Requirement of Registration -- Decree merely formalized and recognized the pre-existing rights which had already accrued to the respondents-defendants pursuant to the family settlement effected in the year 1989 -- In such circumstances, the decree falls within the category of declaratory recognition of antecedent rights and, therefore, does not attract the requirement of compulsory registration.

(Para 12.4)

D. Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 4 -- Fraud / misrepresentation -- Pleading and proof – Allegations must be pleaded with specificity and particularity -- Full particulars of fraud, undue influence, and misrepresentation has to be clearly set out in the pleadings -- Allegations of fraud, misrepresentation, and undue influence must be pleaded with precision and specificity, detailing the manner, circumstances, and particulars thereof -- A bald and omnibus assertion, devoid of material particulars, does not satisfy the statutory requirement -- Moreover, such allegations are required to be substantiated by cogent, convincing, and reliable evidence.

(Para 12.6, 16, 16.1)

E. Indian Contract Act, 1872 (9 of 1872), Section 11 -- Transfer / Family Settlement – Minor is beneficiary -- Validity -- Family settlement, wherein a minor member of the family is conferred a share in immovable property, cannot be rendered null and void merely on account of the minority of such beneficiary -- Jurisprudential foundation of a family settlement is fundamentally distinct from that of a contractual arrangement inter se parties -- A family settlement, being an arrangement intended to preserve harmony, avoid disputes, and secure equitable distribution of property within the family, cannot be invalidated solely on the ground that one or more beneficiaries had not attained the age of majority at the relevant time.

(Para 18)

F. Mutation -- Nature and effect -- Mutation entries, being fiscal in nature, neither confer nor extinguish title -- Respondents-defendants derive their title not from the mutation, but from the judgment and decree -- Consequently, any error in the mutation entries does not, ipso facto, divest the appellants-plaintiffs of their rightful share in the property.

(Para 18.5)

G. Limitation -- Suit for possession based upon title – There is no limitation for seeking possession on the basis of title.

(Para 18.6)

Specific Relief Act, 1963 (47 of 1963), Section 37, 38 -- Co-owner -- Permanent injunction for raising construction – Co-owner in exclusive possession ordinarily cannot be restrained from raising construction over joint property, however injunction can be granted where such construction is detrimental to interests of other co-owners and may prejudice partition proceedings -- Defendants having stalled partition proceedings and simultaneously raised construction to consolidate possession, Courts below rightly held their conduct prejudicial to plaintiffs’ rights -- Discretionary relief of injunction properly exercised -- No perversity or illegality in concurrent findings -- Regular Second Appeal dismissed.

(Para 11-14)

A. Registration Act, 1908 (16 of 1908), Section 17(1)(2) – Transfer of Property Act, 1882 (4 of 1882), Section 6 -- Family settlement – Spes successionis -- Compromise decree -- Compulsory registration – Requirements of -- A family settlement may be arrived at even between persons standing in remote familial relationships -- A family arrangement entered into between parties having even a possible or semblance of claim in the property, when acknowledged and recognized in a decree subsequently passed by a Court, does not fall within the mischief of Section 17(2) of the Registration Act and, therefore, does not require compulsory registration.

(Para 13-15)

B. Registration Act, 1908 (16 of 1908), Section 17(1)(2) – Transfer of Property Act, 1882 (4 of 1882), Section 6 -- Family settlement – Compromise decree -- Compulsory registration – Requirements of -- Judgment and decree merely recognized a pre-existing right arising out of a family settlement between defendant Nos.1 and 2 -- Decree, therefore, did not itself create any new right, title or interest in the immovable property but merely acknowledged and affirmed an already existing arrangement between the parties -- Consequently, such a decree does not attract the requirement of compulsory registration.

(Para 17)

A. Gair Marusi / Bila Lagan Bawajeh Purani Kast – Scope -- Mere entry of possession as Gair Marusi in cultivation column does not establish tenancy.

(Para 21, 22)

B. Specific Relief Act, 1963 (47 of 1963), Section 5 – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Suit for possession – Plea of tenancy -- Revenue entries showing possession as ‘Gair Marusi’ – Effect – Plaintiff proved ownership of suit property on the basis of registered sale deed and sanctioned mutation – Revenue entries (jamabandi and khasra girdawari) only showed defendant in possession as “Gair Marusi / Bila Lagan Bawajeh Purani Kast” and did not record payment of rent or existence of tenancy – No lease deed, rent receipt produced to establish relationship of landlord and tenant – Mere entry of possession as Gair Marusi in cultivation column does not establish tenancy – Earlier suit filed by defendant resulted only in protection of possession and did not determine title or tenancy rights – Claim of occupancy tenancy also declined by revenue authorities – Courts below rightly concluded that defendant failed to prove tenancy and plaintiff, being owner, was entitled to possession – Concurrent findings of fact do not call for interference in second appeal – Regular Second Appeal dismissed, judgments and decrees of Courts below affirmed.

(Para 14-25)

A. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 12A -- Decree for specific performance – Deposit of balance sale consideration – Time limit -- It obligatory for the Court to specify, the date by which, the purchase money or other sum should be paid by the vendee or lessee -- If the Court had failed to stipulate any particular time period, then it is expected of the decree holder to deposit the same, within a reasonable period of time.

(Para 19, 25)

B. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 12A -- Decree for specific performance – Deposit of balance sale consideration – Time limit -- Delay in deposit of balance sale consideration – Deposit was to be made within a period of two months, from the date of decree -- Trial Court decree challenged in appeal – Stay application was also filed therein, which was not decided -- Ultimately, the appeal was dismissed – An application for seeking deposit of the balance sale consideration file after the decision of the appeal, soon thereafter and by application of doctrine of merger, the appellate decree is to be given effect to, as the time limit is no longer an essence, for the execution of the decree, as such, earlier passed by the trial Court.

(Para 4, 26-29)

A. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary Injunction – Co-sharers – Construction on joint property – Equity – A co-owner who has himself raised construction on a portion of the joint land cannot seek injunction to restrain other co-owners from exercising similar rights over the joint property – Principle that one who seeks equity must act equitably applies.

(Para 6.1)

B. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 5 -- Admission in earlier suit – Effect – Admission that suit land already stood partitioned and parties were in exclusive possession of their respective portions disentitles the petitioner from claiming injunction over the joint property.

(Para 6.1)

C. Constitution of India, Article 227 -- Revision – Interference with appellate order – Additional District Judge has interfered with the trial court’s order on sound reasoning, no illegality, arbitrariness or jurisdictional error -- Consequently, no interference is warranted in the exercise of revisional jurisdiction of this Court. The instant revision petition is, accordingly, dismissed.

(Para 6.2)

A. Indian Succession Act, 1925 (39 of 1925), Section 63(c) – Indian Evidence Act, 1872 (1 of 1872), Section 68 – Will – Suspicious circumstances -- Court cannot put the testator in its shoes, and Court should step into his – Court cannot substitute its opinions in place of that of the testator; his desire prompted by his own justifications -- As is trite, Court would only ensure that, sitting in the arm-chair of the testator the rule of prudence is satisfied for the exclusion.

(Para 28)

B. Indian Succession Act, 1925 (39 of 1925), Section 63(c) – Indian Evidence Act, 1872 (1 of 1872), Section 68 – Will – Deposition on leading question in cross-examination – Evidential value -- Presence of the testator and the attesting witnesses and the signatures affixed on the will by each of them have been stated by DW-2 in his deposition – Attestation by other witness was not deposed to -- High Court found that though in the examination-in chief, the witness did not depose on the attestation by the other witness, in cross-examination to a leading question he answered that all persons signed on the will on the date when the witness signed the same – High court held that that by the leading question, the answer was put in the mouth of the witness and hence, it lacks probative value and fell short of the mandate u/s 63(c) of the ISA, 1925 read with Section 68 of the IEA, 1872 – Held, what was lacking in the examination-in-chief was brought out in the cross examination by way of a positive suggestion -- Leading questions are permitted in cross-examinations and the response elicited cannot be said to have lesser probative value -- Testator was also established to be of sound and disposing mind at the time of execution of the will -- There can be no interference to the Will which stands proved unequivocally.

(Para 6, 29)

Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Code of Civil Procedure, 1908 (V of 1908), Section 47, Order 21 Rule 58, 89, 90, 91, 92, 99, 100, 101, 102, 103, 104 -- Doctrine of lis pendens – Separate suit – Maintainability of – Third party rights – Adjudication of doctrine of lis pendens along with Rules 58, 89 to 92, 99 to 104 of Order XXI CPC respectively and Section 47 CPC is as follows:

(i) Section 52 of the 1882 Act embodying the doctrine of lis pendens would apply to suits where any right to the property in question is directly and specifically in issue. Whether any right in the property was directly and specifically in question in the suit would depend on the facts and circumstances of each case. The doctrine cannot blindly be made inapplicable to suits in which the plaint contains a specific averment that the mortgaged property be attached and sold in lieu of the decree or a charge be created on the property. If interpreted so, any judgment-debtor can render the decree incapable of execution by transferring his interest in the property during the pendency of such a suit.

(ii) Rule 89 of Order XXI CPC provides an opportunity to any person claiming an interest in the property sold or a person acting for or on behalf of the persons having such interest, another opportunity to save the property from the clutches of the sale. A sine qua non for setting aside the sale under this rule would be the payment of the deposit as prescribed therein within a period of sixty days from the date of the sale. For the purposes of this rule, a pendente lite transferee of the judgment-debtor would also fall under the ambit of the phrase “person claiming an interest in the property sold”.

(iii) Rule 90 of Order XXI CPC provides that the sale shall be set-aside if there exists any material irregularity or fraud in publishing or conducting the sale. Furthermore, such material irregularity or fraud must cause a substantial injury to the applicant under Rule 90. In other words, there must be a direct nexus between the material irregularity or fraud and the substantial injury caused to the applicant.

(iv) The words “material irregularity in publishing or conducting it” in Rule 90 would include any material irregularity or fraud occurring at a stage prior to the proclamation of sale as well, provided that the applicant did not have an opportunity to raise or could not have raised such a grievance at the appropriate time. Furthermore, the mere absence of or any defect in the attachment, by itself, cannot be a ground for setting aside the sale under Rule 90, unless substantial injury is proved. The applicant must make specific averments as regards the alleged irregularities or fraud, and convince the executing court that a substantial injury has been caused to him as a consequence.

(v) The absence of a saleable interest on the part of the judgment-debtor to the suit property cannot be brought in as a ground under Rule 90 of Order XXI CPC. Such a ground would squarely fall within the ambit of Rule 58 of Order XXI CPC, if the sale is yet to be confirmed.

(vi) Rule 92(3) of Order XXI CPC states that no person against whom an order under Rule 92 is made (either confirming the sale under Rule 92(1) or setting it aside under Rule 92(2) can institute a separate suit in that regard. However, there is a very narrow scope for a person to file a separate suit despite the bar under Rule 92(3). The reason for such a separate suit must be that the execution proceedings and the sale was without jurisdiction and therefore, a nullity and not binding on the plaintiff who has instituted a separate suit.

(vii) Having said so, before holding such a separate suit instituted by a plaintiff alleging that the entire execution proceedings was without jurisdiction and therefore, the sale was a nullity, maintainable, courts must be vigilant in ensuring that the plaintiff was not a party to the original decree or a representative of a party to the original decree, as stated in Section 47 CPC. If so, instead of filing a separate suit, such persons must prefer an application under Section 47 CPC. Upon any failure to do so, their separate suit would be hit by the bar contained in Section 47 CPC which specifically uses the words “and not by a separate suit”.

(viii) The term “third party” under Rule 92(4) would mean a party other than the judgment-debtor, decree-holder or the auction-purchaser and would refer to a party who has not had his right, title or interest vis-à-vis the property in question adjudicated under Rule 58, Rule 97 or Rule 99 of Order XXI CPC respectively. To put it very simply, the term “third party” under Rule 92(4) would refer to a party who is extraneous to the original suit proceedings and the proceedings under Order XXI CPC, and who either has not had his right, title or interest adjudicated or having the opportunity to have his right, title or interest adjudicated, has not availed such a remedy within the required time. Such a “third party” would also be someone who falls outside the scope of Section 47 CPC.

(ix) Rule 92(4) is not a provision which confers any right to the third party to institute a suit for challenging the title of the judgment-debtor to the property which is subject to the execution proceedings. It is merely a procedural provision which states that such a suit must be instituted against the auction-purchaser, where the decree-holder and judgment-debtor would be necessary parties.

(x) When a party other than the judgment-debtor, including a third party, is dispossessed during the course of execution of a decree, the only remedy for such a dispossessed party would lie in filing an application under Rule 99 complaining of its dispossession. In such an application, all questions including that of the right, title and interest of the parties in the proceeding, to the property, would be examined by the executing court.

(xi) The words “may” used in Rule 99 along with the words “and not by a separate suit” used in Rule 101, must not be read to mean that a party who has been dispossessed has two options i.e., to either prefer an application under Rule 99 or to file a separate suit, the moment they are dispossessed.  This would defeat the underlying object of the amendment made to the scheme of Rules 99 to 104 respectively wherein the executing court has been specifically empowered to look into the questions relating to the right, title and interest of the parties, quite akin to that which would have been done by way of a separate suit. Once the period of limitation for preferring an application under Rule 99 lapses, the person who has been dispossessed in the course of the execution of the decree, including a third party, cannot file a separate suit to circumvent or by-pass the said prescribed period of limitation.

(xii) Rule 102 prevents the executing court from passing any order under Rule 100 if it is found that the applicant under Rule 99 is a transferee pendente lite of the judgment-debtor. This again, cannot be construed as giving leeway to such a person to institute a separate suit. Court say so for the simple reason that, even in the separate suit, the law would not look favorably upon a pendente lite transferee, and no relief of declaration of title and/or possession would be granted to him. His fate would be the same as under an application under Rule 99.

(xiii) Therefore, - First, the separate suit instituted by the respondent nos. 1 and 2 respectively would be non-maintainable because they are representatives of the judgment-debtor and the bar envisaged under Section 47 CPC would squarely apply to their case. Secondly, having not availed the remedy under Rule 99 of Order XXI CPC within time, the separate suit instituted for the same relief(s) would be barred. Thirdly, even if the aforesaid two reasons assigned could be said to not affect the suit instituted by the respondent nos. 1 and 2 respectively, they would still not be entitled to the reliefs claimed owing to them being pendente lite transferees of the judgment-debtor whose transaction would be hit by the doctrine of lis pendens.

(Para 256)

A. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Suit for refund of earnest money -- Agreement to sell -- Concealment of mortgage – Legal notice for refund – Effect of – Conduct of Parties – Adverse Inference from Silence -- Appellant issued a legal notice alleging concealment of the mortgage and seeking a refund -- Respondent’s failure to reply to this notice, combined with his subsequent agreement to reduce the sale price by Rs.35,00,000/- after the mortgage was discovered, was viewed as evidence of "culpable intent" and "deceit" -- Appellant held entitled to realize Rs.65,43,750/- with interest at 13% per annum from the respondent and his assets.

(Para 12, 24, 30, 31, 33)

B. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Agreement to sell – Not seeing of original title deed -- It is a common practice for landowners to keep original title deeds in the bank lockers for security purposes -- Hence, the explanation offered by the plaintiff-appellant for not insisting on the inspection of the original title deeds, at the time of entering into the agreement, was reasonable and justified.

(Para 32)

Specific Relief Act, 1963 (47 of 1963), Section 10, 20 -- Agreement to sell of year 1990 – Suit for specific performance decreed – 35 year delayed payment of balance sale consideration – Equitable/ Discretionary relief :

-- Equitable answer does not lie either in denying specific performance altogether, or in enforcing the contract mechanically at the 1990 price – Where there is a long passage of time and substantial rise in prices, the Court, while upholding the decree for specific performance, may mould the relief by directing the purchaser to pay an enhanced amount so that the enforcement of the contract does not operate harshly against the vendor nor confer an unfair bonanza upon the purchaser.

 -- Discretion u/s 20 of the Specific Relief Act, 1963 (pre-amendment) is meant precisely to address such situations and to secure what is substantive justice between the parties.

-- An amount equal to seventy times (double the time gap between date of agreement and order) balance sale consideration under the agreement is payable by plaintiff/ buyer within three months -- In case the plaintiff fails to deposit the aforesaid amount within the time stipulated, the decree for specific performance shall stand vacated.

(Para 57-59)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 32(5) -- Specific Relief Act, 1963 (47 of 1963), Section 36, 37 -- Execution -- Decree for permanent injunction – Subsequent dispossession – Restoration of possession – Permissibility of -- Finding of fact was recorded that decree holder was in possession of the suit property, the same carried presumption of her possession as on the date of filing of suit till the date of its adjudication -- In any subsequent execution based on dispossession at the hands of judgment debtor, the non-mentioning of specific particulars in the shape of date or month of forcible dispossession was not of much relevance – Order for warrant of possession, upheld.

(Para 6, 10-16)

A. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 5, Section 96, 100 -- Specific Relief Act, 1963 (47 of 1963), Section 10 -- Interim protection in Appeal – Permissibility of -- Just because the original suit came to be dismissed, that does not mean that in the pending appeal, the appellate court cannot grant appropriate relief -- Application seeking to maintain the status quo filed before the appellate court cannot be dismissed solely because the suit for specific performance stood dismissed -- Reliance placed by the first appellate court on Order XLI Rule 5, while declining to grant status quo, is grossly misplaced.

-- appeal is considered a continuation of the original suit, and the appellate court has co-extensive power to grant appropriate interim relief to prevent irreparable injury and preserve the status quo pending the final disposal of the appeal.

-- interim relief is designed to aid the main relief and ensure that the proceedings are not rendered infructuous. It aims to prevent irreparable harm that might be caused while the case is pending final determination.

-- grant of appropriate relief is a discretionary power of the appellate court, and the same must be exercised judicially based on the well-settled principles of a prima facie case, irreparable injury, and balance of convenience.

(Para 14-20)

B. Code of Civil Procedure, 1908 (V of 1908), Order 41 Rule 5, Section 96 -- First Appeal – Interim protection -- First appellate court can re-examine both questions of fact and law and may re-appreciate the evidence on record -- Its powers are as extensive as the original court’s, meaning it can reconsider the need for interim protection.

(Para 18)

A. Specific Relief Act, 1963 (47 of 1963), Section 14 -- Unilateral termination of the agreement to sell – Scope of –

(i) Unilateral termination of the agreement to sell by one party is impermissible in law except in cases where the agreement itself is determinable in nature in terms of Section 14 of the Act of 1963;

(ii) If such unilateral termination of a non-determinable agreement to sell is permitted as a defence, then virtually every suit for specific performance can be frustrated by the defendant by placing an unfair burden on the plaintiff, who despite performing his part of the obligations and having showcased readiness and willingness, would require to also seek a separate declaration that the termination was bad in law. In such cases, the burden cannot be casted upon the plaintiff to challenge the alleged termination of agreement;

iii) Where a party claims to have valid reasons to terminate or rescind a non-determinable agreement to sell, with a view to err on the side of caution, it should be such terminating party, if at all, who ideally should approach the court and obtain a declaration as to the validity of such termination or rescission, and not the non-terminating party. However, this must not mean that the defendant (the terminating party) in such cases would mandatorily be required to seek a declaration because Sections 27 and 31 of the Act of 1963 respectively, while using the phrase “may sue” merely give an option to any person to have the contract rescinded or adjudged as void or voidable;

(iv) Once the alleged termination of a non-determinable agreement in question is found to be not for bona fide reasons and being done in a unilateral manner on part of the defendant, it cannot be said that any declaration challenging the alleged termination was required on part of plaintiff;

(v) If a contract itself gives no right to unilaterally terminate the contract, or such right has been waived, and a party still terminates the contract unilaterally then that termination would amount to a breach by repudiation, and the nonterminating party can directly seek specific performance without first seeking a declaration; and

(vi) In the event it is found that the termination of agreement to sell by the defendant was not valid, then such an agreement to sell will remain subsisting and executable.

(Para 43)

B. Specific Relief Act, 1963 (47 of 1963), Section 19(b) -- Bonafide purchaser – Failure to make enquiry – Effect of -- Subsequent purchasers had sufficient notice of the facts that an ATS dated 28.04.2000 existed; the names and addresses of the original vendees; that an earnest money amounting to Rs. 2,00,000/- had been paid by the original vendees to the original vendors; that the original vendors had sought to terminate the ATS due to their inability to execute the sale deed in favour of the original vendees on account of a status quo order; that the date of actual termination could not have coincided with the date of notice; and that deemed termination would have arose only if the original vendees had failed to claim the earnest money within one month; and that despite the issuance of the notice of termination in 2003, the original vendees continued to contest the impleadment application in the Original Suit No. 30 of 2001 until 2005 -- These circumstances should have reasonably aroused suspicion or at the very least prompted further inquiry by any prudent bona fide purchaser -- Yet the subsequent purchasers despite having ample opportunity to become aware of these facts abstained from making any such inquiries -- It is therefore beyond cavil that the subsequent purchasers cannot take shelter under Section 19(b) of the Act of 1963.

(Para 81)

A. Specific Relief Act, 1963 (47 of 1963), Section 10 -- Suit for Specific performance -- Termination of contract – Effect of -- A contract may give right to the parties, or any one of the parties, to terminate the contract on existence of certain conditions -- In terms thereof, the contract is terminated, a doubt over subsistence of the contract is created and, therefore, without seeking a declaration that termination is bad in law, a decree for specific performance may not be available -- However, where there is no such right conferred on any party to terminate the contract, or the right so conferred is waived, yet the contract is terminated unilaterally, such termination may be taken as a breach of contract by repudiation and the party aggrieved may, by treating the contract as subsisting, sue for specific performance without seeking a declaratory relief qua validity of such termination.

(Para 32)

B. Specific Relief Act, 1963 (47 of 1963), Section 10 -- Suit for specific performance – Termination of contract – Effect of – Declaration that termination of contract was invalid – Requirement of -- By accepting Rs.1,95,000 after expiry of six months, D-1 and D-2, firstly, waived their right, as available to them under the contract, to forfeit the advance consideration/ earnest money,

Secondly, by such acceptance and endorsement on the back of the agreement they treated the contract as subsisting and,

thirdly, by transferring part of the subject matter of the agreement in favour of D-3, even before serving a forfeiture notice, they committed a breach of the contract.

In such circumstances, the plaintiff had an option to treat the contract as subsisting and sue for specific performance more so when termination was a void act, no longer permissible under the varied contract -- Suit for specific performance was maintainable even without seeking a declaration that termination of the contract was invalid in law.

(Para 33)

C. Specific Relief Act, 1963 (47 of 1963), Section 10 – Suit for specific performance -- Evidence on record that the Tehsildar had reported regarding possession of the plaintiff over the suit property though that report was subject to final adjudication in the suit – In such circumstances, merely because plaintiff’s claim that property was in his possession was not accepted, the relief of specific performance cannot be declined, particularly, when the plaintiff had already paid over 90% of the agreed consideration and paid additional amount also as demanded by D-1 and D-2 -- Further, D-3 was a related party of D-1 and D-2 and, therefore, not a bona fide purchaser -- Not a fit case where discretionary relief of specific performance should have been denied – High Court erred in law by interfering with the decree of specific performance passed by the first appellate court -- Judgment and decree(s) of the High Court is/are set aside and that of the first appellate court is/are restored.

(Para 39, 40)

A. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleadment as party -- For impleading a person as a party, two conditions must be satisfied: firstly, that there must be a right to some relief against such person in respect of the controversies involved in the proceedings; and secondly, that no effective decree can be passed in the absence of such person -- Power under Order 1 Rule 10 CPC is discretionary and should be exercised sparingly but to advance the cause of complete justice and to avoid multiplicity of proceedings.

(Para 16)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleadment as party – Suit for declaration and permanent injunction -- Applicant placed on record Mutations and Jamabandi for the year 1996-97 showing transfer of the suit land from the State Government to ‘J’ and thereafter to himself -- Several rounds of litigation, including writ petitions before the High Court, in which his alleged rights over the same land have been contested -- These materials were sufficient to give the trial court a prima facie basis to conclude that the applicant has at least an arguable interest in the subject matter of the suit and that his presence would facilitate complete adjudication of the dispute.

(Para 2, 16)

C. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleadment as party – Suit for declaration and permanent injunction -- Objection as to claim based upon fraudulent documents – It is a matter of evidence which cannot be conclusively determined at the stage of impleadment -- Impleadment order does not confer any legitimacy upon applicant’s title; it merely allows him to be heard so that the court's final decree, if passed, may bind all persons claiming interest in the property and avoid future litigation -- Apprehension that the impleadment will prejudice the plaintiff/ petitioner's rights is thus unfounded.

(Para 2, 17)

D. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Impleadment as party – Suit for declaration and permanent injunction --Dominus litis – Argument as to Plaintiff/ Petitioner, being dominus litis, is free to choose his defendants, cannot prevail when the relief claimed directly affects third-party rights reflected in the public records -- Petitioner's suit seeks declaration of nullity of a rapat entry and correction of revenue records may have an impact upon any person claiming interest through existing entries or documents.

(Para 2, 18)

A. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 (d) – Rejection of plaint – Suit barred by law -- While considering rejection of the plaint thereunder only the averments made in the plaint and nothing else is to be considered to find out whether the suit is barred by law -- At this stage, the defense is not to be considered -- Thus, whether the suit is barred by any law or not is to be determined on the basis of averments made in the plaint.

(Para 15)

B. Mutation entries -- It is well settled that mutation entries do not confer title -- They serve a fiscal purpose, that is, to realize tax from the person whose name is recorded in the revenue records.

(Para 16)

C. Limitation Act, 1963 (36 of 1963), Article 65 – Suit for declaration and possession – Limitation -- Suit was not for a mere declaration of the Will being null and void but for possession as well -- Plaintiff claimed title over the suit land by natural succession and sought possession based on title – Where a suit is for possession of immovable property or any interest therein, based on title, the limitation period is 12 years when the possession of the defendants becomes adverse to the plaintiff.

(Para 17)

D. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 (d) – Limitation Act, 1963 (36 of 1963), Section 27, Article 65 – Rejection of plaint -- Limitation – Adverse possession -- When a suit is instituted for possession, based on title, to defeat the suit on the ground of adverse possession, the burden is on the defendant to prove adverse possession for the prescriptive period -- This, therefore, cannot be an issue on which the plaint could be rejected at the threshold.

(Para 18)

E. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 (d) – Partial rejection of plaint – Permissibility of -- Where several reliefs are sought in suit, if any one of the reliefs is within the period of limitation, the plaint cannot be rejected as barred by law by taking recourse to Order 7 Rule 11 (d) of CPC.

(Para 19)

F. Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2, Order 7 Rule 11 (d) – Rejection of plaint -- Suit barred by Order 2 Rule 2 of CPC – Plea of -- First suit instituted by the predecessor-in-interest of the appellant was not tried -- In fact, the plaint of that suit was rejected under Order 7 Rule 11 of CPC as not being properly framed -- In such circumstances, a fresh suit with appropriate relief cannot be, prima facie, barred by Rule 2 of Order 2 of CPC -- Therefore, the trial court was justified in directing that the issue, whether the suit is barred by Order 2 Rule 2 of CPC, shall be considered and decided during trial.

(Para 22)

Specific Relief Act, 1963 (47 of 1963), Section 37, 38 -- Permanent injunction – Plaintiff paying Betai -- Rent agreement of tenancy – Requirements of – Suit decreed by both the Courts Trial Court as well First Appellate Court -- Plaintiff duly proved his possession over the suit land by producing extensive revenue record in the form of Jamabandis, Khasra Girdawaris from which it is evident that the plaintiff is in cultivating possession of the suit property -- In the Jamabandi it is also recorded that plaintiff is paying ‘Batai’ – Held, if plaintiff is paying Batai, there is no requirement for the plaintiff to produce rent slip or any Agreement in respect of his tenancy -- From the revenue record, it is also established that the plaintiff is in possession of suit property as Gair Marusi -- Plaintiff has shown his possession over the suit property since 1970 -- Defendants have not only been unable to dispute or controvert the above said comprehensive evidence by way of revenue record produced by the plaintiff – No ground made out to interfere in the impugned judgments and decrees – RSA dismissed.

(Para 10-12)

A. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Severability of contract – Performance of part of contract -- While adjudicating suits, or when examining the validity of agreements or contracts, the Courts generally have the power to sever the invalid portion of an agreement from its valid portion and give effect to the latter -- No bar on the application of the doctrine of severability in suits for specific performance, however, this power must be exercised with great caution and only in exceptional cases -- Court cannot remove the essential part of an agreement or the very object for which it was executed -- While exercising such power, the Courts must refrain from re-writing or re-constructing the agreement between the parties to make it work.

(Para 20-22)

B. Specific Relief Act, 1963 (47 of 1963), Section 12 -- Severability of contract – Performance of part of contract -- Agreement for construction of eight flats – Agreement was contrary to law and therefore unenforceable – Trial Court applied Section 12 of the Specific Relief Act, directing transfer of the ‘rights over the land’ to the Plaintiff, subject to compliance with the Building Regulations limiting construction to three flats -- Held, Trial Court was not justified in reworking the agreement to make it enforceable by removing its essential object-namely, the construction of eight flats on the subject land -- Trial Court re-wrote the agreement, which it could not have done since the very essence of the agreement was the construction of eight flats -- Respondent is a public sector bank and it is not expected from the State or its instrumentalities to enter into camouflage agreements and especially where the object of the agreement would result in law being violated – Suit dismissed.

(Para 19, 24-27)

Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2 – Specific Relief Act, 1963 (47 of 1963), Section 22, 36, 37 -- Agreement to sell – Suit for permanent injunction -- Subsequent suit for specific performance -- Maintainability -- Earlier suit withdrawn without seeking any liberty to pursue subsequent suit for specific performance -- Plaintiff was entitled to sue for specific performance when he filed earlier suit for injunction -- Subsequent suit filed by the plaintiff seeking decree of specific performance was not maintainable being barred by Order 2 Rule 2 CPC.

(Para 12-15)

Constitution of India, Article 226 -- Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession against private person – Protection of possession -- Writ jurisdiction -- Petitioners are claiming that they have perfected their title over the land in question by way of adverse possession -- All these pleadings are in the realm of Civil Court and if the owner of the land or some other person, may be at his behest or otherwise, is trying to disturb their possession, as is alleged, the petitioner can always go to the Civil Court and seek appropriate reliefs including police assistance -- Writ petition is not maintainable, the same is dismissed with liberty to the petitioners to approach the Civil Court for the redressal of their grievance.

(Para 5-7)

A. Limitation Act, 1963 (36 of 1963), Section 27 -- Code of Civil Procedure, 1908 (V of 1908), Section 96 -- Adverse possession – Plea of -- Foundation for the plea of adverse possession must be laid in the pleadings and then an issue must be framed and tried -- A plea not properly raised in the pleadings or in issues at the stage of trial would not be permitted to be raised for the first time at the stage of First Appeal under Section 96 of the Code of Civil Procedure (CPC).

(Para 19)

B. Limitation Act, 1963 (36 of 1963), Section 27 -- Code of Civil Procedure, 1908 (V of 1908), Section 96 -- Adverse possession – Plea of -- Plea of adverse possession is not always a legal plea -- It is always based on facts which must be asserted and proved -- A person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession continued -- He must also show whether his possession was open and undisturbed -- These are all questions of fact and unless they are asserted and proved, a plea of adverse possession cannot be inferred from them -- Therefore, in normal cases an appellate Court will not allow the plea of adverse possession to be raised before it.

(Para 20)

C. Limitation Act, 1963 (36 of 1963), Section 27 – Adverse possession – Nature of -- Ordinarily, the question of adverse possession is one of fact, resting upon proof of numerous circumstances which go to establish the several elements, indicating adverse character of the possession -- In certain cases, it may be a question of law, or, a mixed question of law and facts as, where the decision rests upon inferences to be drawn from facts which are admitted or established.

(Para 27)

A. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 – Mutation -- Already sold property – Appropriate remedy -- Revenue authorities refused to record name of the appellants after noticing the fact that the original person, through whom appellants-vendor claim right, had already sold his share and was not left with any land which could be transferred – Issues sought to be raised by the appellants cannot be examined in summary proceedings of mutation -- Remedy of the appellants would be to seek appropriate declaration from the competent Civil Court.

(Para 2-4)

B. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34 – Mutation Proceeding – Nature of -- Any order passed in summary proceedings of mutation remain subservient to a declaration granted by the competent Civil Court.

(Para 4)

A. Indian Succession Act, 1925 (39 of 1925), Section 63 – Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Proof of Will -- Legal Principles -- A Will has to be proved like any other document subject to the requirements of Section 63 of the Act, 1925 and Section 68 of the Act, 1872, that is examination of at least of one of the attesting witnesses -- However, unlike other documents, when a Will is propounded, its maker is no longer in the land of living -- This casts a solemn duty on the Court to ascertain whether the Will propounded had been duly proved -- Onus lies on the propounder not only to prove due execution but dispel from the mind of the court, all suspicious circumstances which cast doubt on the free disposing mind of the testator -- Only when the propounder dispels the suspicious circumstances and satisfies the conscience of the court that the testator had duly executed the Will out of his free volition without coercion or undue influence, would the Will be accepted as genuine.

(Para 11)

B. Indian Succession Act, 1925 (39 of 1925), Section 63 – Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Proof of Will -- Parameters to ascertain ‘suspicious circumstances’ vitiating a Will –

-- Deprivation of a natural heir, by itself, may not amount to a suspicious circumstance because the whole idea behind the execution of the Will is to interfere with the normal line of succession

-- Prudence requires reason for denying the benefit of inheritance to natural heirs and an absence of it, though not invalidating the Will in all cases, shrouds the disposition with suspicion as it does not give inkling to the mind of the testator to enable the court to judge that the disposition was a voluntary act.

(Para 16)

C. Indian Succession Act, 1925 (39 of 1925), Section 63 – Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will in favour of nephew – Wife/ natural heir – Will is completely silent with regard to the existence of his own wife and natural heir, i.e. the 1^st respondent, or the reason for her disinheritance – Nothing has come on record to show the relation between the couple was bitter – Trial Court erroneously observed that non-performance of last rites of testator by 1^st respondent hinted at sour relations between the couple – Ordinarily, in a Hindu/ Sikh family, last rites are performed by Male Sapinda relations – A cumulative assessment of the attending circumstances including this unusual omission to mention the very existence of his wife in the Will, gives rise to serious doubt that the Will was executed as per the dictates of the appellant and is not the ‘free will’ of the testator – Held, non-mention of 1st respondent or the reasons for her disinheritance in the Will, is an eloquent reminder that the free disposition of the testator was vitiated by the undue influence of the appellant.

(Para 19, 20)