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LawforAllHomeadvocatemmmohanadvocatemmmohansince 1985 practicing as advocate in both civil criminal lawsView my complete profileWELCOME TO LEGAL WORLDWELCOME TO MY LEGAL WORLD - SHARE THE KNOWLEDGE Wednesday, October 13, 2021 As per the judgment of Perumon Bhagvathy Devaswom (supra), the Court, while dealing with the issue of condonation of delay in respect of matters pending at the appellate stage, has clearly observed that advocates usually inform the litigants who are to be in contact. Sometimes, they assure their clients that will give information to them as and when matter would be ripe for hearing. Considering the aforesaid aspect and taking a lenient view, we are of the considered opinion that the High Court erred in dismissing the second appeal solely on the ground of limitation. Therefore, the impugned judgment and order of the High Court is setaside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6315 OF 2021

(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 27874 OF 2018)

DR. YASHWANTRAO BHASKARRAO DESHMUKH ...APPELLANT

VERSUS

RAGHUNATH KISAN SAINDANE RESPONDENT

J U D G M E N T

J.K. MAHESHWARI, J.

Leave granted.

2. This appeal arises out of the judgment passed on

7.8.2018 by the High Court of judicature of Bombay, Bench at

Aurangabad on Civil Application No. 12143 of 2017 in Second

Appeal (ST) No. 31286 of 2017 dismissing the application

seeking condonation of delay and the appeal as barred by

limitation.

3. The facts leading to file this appeal are that a suit for

specific performance of the contract was filed by the

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respondent against the appellant based on an agreement to

sell dated 18.2.1998 with respect to an agricultural land

bearing Gat No. 21/1, admeasuring 1.54 hectares, situated at

Maouje Hingone Sim Tehsil Amalner. The said suit was partly

decreed exparte by judgment dated 9.12.2002 in Special Civil

Suit No. 2 of 2001 by Civil Judge (Sr. Division), Amalner

directing recovery of a sum of Rs. 61,000/ along with interest

@ 6% p.a. from the appellant (defendant therein), while relief

for specific performance of contract was denied.

4. Respondent preferred first appeal before the High Court.

The appellant was duly served and appeared in the said

matter through the counsel. However, due to enhancement of

pecuniary jurisdiction of the District Court, the said appeal

stood transferred from the High Court to the District Court.

Thereafter, a fresh notice was issued to the appellant, which

was served through paper publication. The appellant did not

appear, and taken pretext of nonservice of the notice due to

change of his address. The Adhoc District JudgeI, Amalner

proceeding exparte, allowed the Regular Civil Appeal No. 31 of

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2012 vide judgment dated 8.09.2015 and granted decree of

specific performance in favour of respondent (plaintiff therein).

5. Aggrieved by the judgment of the Adhoc District JudgeI,

appellant filed second appeal before the High Court of

judicature of Bombay, Bench at Aurangabad on 18.9.2017,

inter alia, contending that the judgment passed by the Ist

Appellate Court came to his knowledge only on 14.9.2017.

There was a delay of 650 days in filing the appeal. However,

explaining the delay due to lack of knowledge of the decision

in the appeal, prayer for condonation was made.

6. By the impugned judgment dated 07.08.2018, passed by

the High Court in Second Appeal (ST) No. 31286 of 2017, the

application seeking condonation was rejected, observing that

the plea of non service of notice due to change of address was

not acceptable. It was also observed that the appellant had

himself been negligent and had not contacted his counsel

engaged in the lower appellate court. The High Court,

however, observed that the respondent, who had been

litigating since last 17 years, ought not be deprived of the

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valuable right as accrued to him. With these observations, the

application seeking condonation was rejected, dismissing the

second appeal, as time barred.

7. Learned counsel for the appellant has strenuously urged

that the suit was filed for specific performance of contract. As

per the defence taken, it is visible from the agreement itself

that it was not an agreement to sell but a money transaction,

to which a sum of Rs. 90,000/ has been refunded and only

sum of Rs. 51,000/ was remaining. In addition, Rs. 10,000/

paid later and endorsed therein. The trial court decreed the

suit partly, for refund of earnest amount. The decree of

specific performance is a discretionary relief, as specified

under Section 16 of the Specific Relief Act. However, without

giving an opportunity of hearing to contest the claim, the

lower appellate court allowed the appeal of the respondent and

passed an exparte judgment and decree of specific

performance. Counsel argued that the dismissal of the

second appeal on the ground of limitation is wholly

unreasonable.

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8. In support of the contentions, reliance has been placed

on a judgment of this Court in the case of Perumon

Bhagvathyu Devaswom Perinadu Village vs. Bhargavi

Amma (dead) by LRS and Others (2008)8SCC 321 to contend

that when appeal is pending in the appellate court where

periodical dates are not being given, the parties cannot be

faulted with because the counsel informs the parties that they

will get in touch as and when the case is listed for hearing.

Considering the facts of the case in which the notice of the

appeal sent by publication is not allegedly served and the

documents of change of address have been filed by the

appellant as well as the respondent, which are on record, in

such a situation, lenient view ought be taken.

9. Reliance is further placed on the judgment of this Court

in N. Mohan vs. R. Madhu 2019(16)SCALE 602. In the said

case, considering the facts and circumstances of the case and

in the interest of justice, an opportunity was granted subject

to deposit of the amount.

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10. Reliance is further placed on the decision of this Court in

Rohin Thapa vs. Rohit Dora (2019) 7 SCC 359, wherein this

Court subject to direction of deposit of the amount of the

agreement and further deposit of the amount of the stamp

and registration fee, directed to condone the delay and also

setaside the sale deed, executed by the Court. Therefore, an

opportunity in a suit of specific performance to the appellant

may be granted condoning the delay subject to imposition of

the conditions, as deemed fit.

11. Per contra, learned counsel representing the respondent

contends that a suit for specific performance of contract was

filed long back and respondent is contesting the matter for the

last 20 years. In the said suit in trial court, the appellant

remained exparte. However, the suit was partly decreed. On

filing a first appeal before the High Court, notice was served

and the appellant was represented through an advocate.

Later, due to enhancement of pecuniary jurisdiction, the said

appeal stood transferred to the court of Adhoc District

JudgeI, Amalner, where from notice of the appeal was served

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through publication. The appellant did not choose to appear

before the Ist Appellate Court, however the suit seeking

specific performance was decreed. The appellant remained

exparte and on filing the execution, the sale deed has also

been executed. The appeal filed before the High Court by the

appellant was barred by limitation of 650 days, which has not

been explained showing bona fides. In such a case,

interference by this Court is not warranted.

12. Having heard learned counsel for the parties and on

perusal of the facts of the case, suit seeking specific

performance was based on an agreement to sell dated

18.2.1998. As per the said agreement to sell, appellant had

agreed to sell 5 bighas of land for a consideration at the rate

of Rs. 51000/ per bigha. As per the entries on the

agreement to sell, certain amount was paid. Later on, certain

refund is also recorded and acknowledged thereon. The Trial

Court, considering the same, refused to grant a decree of

specific performance but directed for refund of Rs. 61,000/

with interest. The said decree was reversed by the lower

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Appellate Court, directing specific performance. In both the

courts, the appellant remained exparte.

13. The appellant filed an appeal before the High Court,

which has been dismissed as barred by limitation. The High

Court, while dismissing the application seeking condonation of

delay in filing second appeal observed that sufficient cause for

delay has not been established. The litigant, who is contesting

the matter, cannot be negligent and it would be unfair to

deprive the respondent, litigating for the last 17 years, of the

valuable right that has accrued to him.

14. In this case, the appellant has also produced the

documents including voters list/aadhar card showing his

change of address from Amalner to Nashik. On the other

hand, the respondent has produced the voters list of

Amalner itself contending that the name of appellant is still

existing. However, in such a situation without any enquiry

and without arriving at a finding disbelieving the explanation

of the appellant, the High Court was not justified in rejecting

the application for condonation of delay.

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15. As per the judgment of Perumon Bhagvathy Devaswom

(supra), the Court, while dealing with the issue of condonation

of delay in respect of matters pending at the appellate stage,

has clearly observed that advocates usually inform the

litigants who are to be in contact. Sometimes, they assure

their clients that will give information to them as and when

matter would be ripe for hearing. Considering the aforesaid

aspect and taking a lenient view, we are of the considered

opinion that the High Court erred in dismissing the second

appeal solely on the ground of limitation. Therefore, the

impugned judgment and order of the High Court is setaside.

16. A second appeal lies to the High Court if the High Court

is satisfied that a substantial question of law is involved. We

request the High Court to take up the second appeal for

admission as expeditiously as possible, preferably within one

month, and if the second appeal is admitted, to decide and

finally dispose of the same within a period of six months from

the date of communication of this judgment and order.

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17. It is made clear here that any of the observations made

hereinabove would not be treated as an expression on the

merits of second appeal and would not cause any impediment

to the parties.

18. Appeal is, thus, disposed of in the aforesaid terms. No

order as to costs.

J.

[ INDIRA BANERJEE ]

J.

[ J.K. MAHESHWARI ]

NEW DELHI;

OCTOBER 8, 2021.

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Posted byadvocatemmmohanatWednesday, October 13, 2021Email ThisBlogThis!Share to TwitterShare to FacebookShare to Pinterest Older PostsHomeSubscribe to:Posts (Atom)My Blog ListARTICLES OF AN ADVOCATE - Wishing you alla happy prosperous Plava nama UGADI new year God bless you allwith great health wealth prosperity ...6 months agoసవచచవహగల అత పరవటకరణ - అత పరవటకరణ మడ అడగల ఎటవప పడతననయ గవరనమట మనజమట చయలదన అగకరచనటల పట పరగ రటల తగగతయ లద సడకట ఏరపడ...7 months agoadvocatemmmohanElection total 87 Councillors, the Nationalist Congress Party with 17, Muslim League with 2, R.P.I. with 1, Samajwadi Party with 1 and 2 Independents formed an aghadi (group) and elected the first respondent as their group leader (Gat Neta).- the same was approved change of leader by one political party -maintainable ? No- Once an aghadi (group) is formed and duly recognized by the Divisional Commissioner, it becomes a municipal party in terms of Section 2(i) of the Act.Once original political parties form a municipal party by way of an aghadi, for all purposes, the group leader is chosen by the municipal party (aghadi) only. Rules do not provide for nomination of group leader. Similarly, the group leader of the aghadi can be changed only by the group and not by one of the political parties, big or small, belonging to the aghadi-2015 S.C.MSKLAWREPORTS - Election to the Amravati Municipal Corporation was held on 16.02.2012. Of the total 87 Councillors, the Nationalist Congress Party with 17, Muslim L...6 years agoయ. మరళ మహన అడవకట తలసకడ మన చటటల - మ చటటలMaintenance after Divorce - - - - - *హద వవహ చటట పరకర వడకల తసకనన తరవత కడ మనవరత సటల మట కస అరజ ధఖల చసకవచచ * - * సకషన 2...9 years agoADVOCATEMMMOHAN - MY MIRROR - Show 5Show AllSearchTotal PageviewsFollowersBlog Archive 2021(299) October(26)As per the judgment of Perumon Bhagvathy Devaswom ...whether in an appeal/application filed under Secti...Insofar as the charge alleged against the appellan...In the case on hand, reading the complaint as a wh...whether a cheque pursuant to a settlement agreemen...The offence is of a serious nature in which Vikas ...When the selection list was not challenged by the ...It is now well settled by various decisions of thi...Whether appellant court order for joint trail and ...the civil court lacks jurisdiction to entertain a...possession of Disproportionate Assets=challenging ...Whether, on the facts and in the circu...Decree on admissions - valid = In the written stat...whether the National Green Tribunal (for short th...Defendants can not compel the Plaintiff to go for...Order XXI, Rule 64 CPC =.The appellants cannot be ...benefit of parity =absconding for more than two ye...suit for specific performance - when the plaintiff...whether the High Court was justified in taking no...Resignation whether conditional one or not ? = Th...after the auction was so undertaken - he preferred...whether the unregistered family settlement Kharar...Inams Act deals with the land owner, whereas the ...if despite an order passed by the court, a person...Keeping in mind the enormous growth of vehicle po...High Court has rightly held that the accident occ... September(19) August(30) July(33) June(10) May(17) April(40) March(57) February(21) January(46) 2020(283) December(20) November(9) October(25) September(47) August(42) July(3) June(23) May(30) April(16) March(17) February(11) January(40) 2019(450) December(35) November(60) October(58) September(66) August(23) July(16) June(3) May(34) April(39) March(26) February(80) January(10) 2018(445) December(48) November(15) October(75) September(54) August(15) July(23) June(1) May(28) April(36) March(44) February(55) January(51) 2017(452) December(57) November(37) October(60) September(48) August(9) June(2) May(47) April(51) March(53) February(46) January(42) 2016(458) December(42) November(47) October(57) September(36) August(57) July(55) June(11) May(46) April(30) March(32) February(34) January(11) 2015(699) December(13) November(14) October(80) September(50) August(56) July(69) June(7) May(59) April(78) March(68) February(63) January(142) 2014(598) December(10) November(6) October(39) September(73) August(43) July(61) June(6) May(74) April(87) March(74) February(62) January(63) 2013(1015) December(85) November(59) October(64) September(77) August(85) July(120) June(51) May(106) April(91) March(76) February(71) January(130) 2012(1225) December(91) November(96) October(124) September(105) August(72) July(114) June(87) May(135) April(115) March(86) February(106) January(94) 2011(388) December(25) November(24) October(14) September(105) August(90) July(62) June(16) May(13) April(8) March(7) February(11) January(13) 2010(186) December(4) November(15) October(70) September(47) August(50)Popular Poststhe Entrance Examination for Post-Graduate (Medical) Selection 2012, Odisha are challenging the validity of Clause 11.2 of the Prospectus for selection of candidates for Post- Graduate (Medical) Courses in the Government Medical Colleges of Odisha for the Academic Year, 2012, as violative of Article 14 of the Constitution of India. -they are undergoing studies from May 2012 onwards and, at this distance of time, if they are displaced, that will cause serious injustice to them since they have already left the government service/public sector undertakings for joining the post graduate course. In view of the stand taken by the Medical Council -of India that seats for post-graduate courses cannot be increased, we are inclined to give a direction to the State of Odisha or their undertakings to take back the in-service candidates into their service and permit them to serve in the rural/tribal areas so that they can compete through the category of in-service candidates in the 50% seats earmarked for them for admission to the post-graduate course.We are, therefore, inclined to allow this appeal and set aside the judgment of the Division Bench as well as learned Single Judge by quashing the proviso to clause 9(2)(d) of the MCI regulations to the extend indicated above as well as clause 11.2 of the prospectus issued for admission to the Post Graduate Medical Examination 2012 in the State of Odisha. The State of Odisha, the Medical Council of India and respondents 1 to 4 are directed to take urgent steps to re-arrange the merit list and to fill up the seats of the direct category, excluding in-service candidates who got admission in the open category on the strength of weightage, within a period of one week from today and give admission to the open category candidates strictly on the basis of merit. - 36. Appeals are allowed and the judgments of the High Court are set aside accordingly. REPORTABLE IN THE SUPREME COURT OF INDIA ...INTELLECTUAL PROPERTY APPELLATE BOARD=This is an appeal under section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) directed against the order dated 1.5.2006 passed by the Senior Examiner of Trade Marks whereby the application for registration of Trade Mark OFLEX has been refused.=After having perused the documents, we are in agreement with the observation made by the Senior Examiner of Trade Marks that the opponents and applicant both have filed half hearted evidences not bothering seriously, the concern. But certainly the onus is more upon applicants to show that they have right of registration and hence applicants stand to loose if evidence of applicant does not over weigh against evidence of opponents, the registered owner of conflicting mark. The appellant has failed to establish it use of the mark since 4.1.2000. The appellant has on the basis of available documents on our record has proved the user only since 9.4.2002. We, therefore, see no reason to interfere with the conclusion arrived at by the Senior Examiner of Trade Marks.Mr. Vikash Rajgarhia v. Aristo Pharmaceuticals Limited - OA/51/2006/TM/AMD [2008] INIPAB 2 (19 March 2008) INTELLECTUAL PROPERTY APPELLATE ...whether a civil court has jurisdiction to entertain a suit when the schedule lands were acquired under the land acquisition proceedings and whether the High Court was justified in remanding the matter to the trial Court without examining the question with regard to the maintainability of the suit? = Section 9 of the Code of Civil Procedure, 1908 provides jurisdiction to try all suits of civil nature excepting those that are expressly or impliedly barred which reads as under: 9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.- It is clear that the Land Acquisition Act is a complete Code in itself and is meant to serve public purpose. By necessary implication, the power of civil Court to take cognizance of the case under Section 9 of CPC stands excluded and a Civil Court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High court in a proceeding under 1Page 14 Article 226 of the Constitution. It is thus clear that the civil Court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self imposed restrictions on their exercise of extraordinary power. Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1051 OF 2013 (Arising out of S...whether under Section 154 Cr.P.C., a police officer is bound to register an FIR when a cognizable offence is made out or he (police officer) has an option, discretion or latitude of conducting some kind of preliminary enquiry before registering the FIR. 110. Learned counsel appearing for the Union of India and different States have expressed totally divergent views even before this Court. This Court also 8REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL...registration with the Pharmacy Council of the State of Rajasthan (respondent No.1 herein - `Rajasthan Council' for short) under Section 32 of The Pharmacy Act, 1948 (hereinafter referred to as `the Act'). =The purpose of a welfare statute cannot be permitted to be defeated by the methods such as the one employed by the appellant. As stated earlier, the Act is passed for making better provisions for the regulation of the profession and practice of pharmacy. As is seen, the primary qualification for such a person is to have a degree or diploma in pharmacy. It is only as an alternative qualification that some other degree with three years experience is permitted. The last alternative qualification is that of five years experience in dispensing drugs which has to be in the concerned State. This is because under Section 31 of the Act, the person who wants to be registered as a pharmacist has to be of 18 years of age, and he has to reside and carry on the business or profession of pharmacy in that particular state. The State Pharmacy Council which issues the certificate of registration ought to satisfy itself that the person concerned did have atleast five years of experience, and which experience has obviously to be in that State for the State Council to assess it. In the instant case, the appellant did not reside or carry the business or profession of pharmacy or dispensing of drugs in Sikkim for more than five years. If any such method, as adopted by the appellant is permitted, persons who claim to have experience of five years in one State, will go to another State for a few months only to obtain registration in that State, and thereafter seek transfer of that registration to their own state. In the instant case, the first respondent did not have any opportunity to examine as to whether the appellant did have theREPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION ...Tamil Nadu Pattathari Asiriyargal Velaivaippu Sangam (Tamil Nadu Graduate Teachers Employment Opportunity Association) represented by its Secretary. In this writ petition, the Association has challenged on behalf of some of its members the order passed by the State Government in G.O.Ms.No.181, School Education Department, dated 15.11.2011 so far as it has prescribed Teacher Eligibility Test even for persons who have completed certificate verification conducted by the Teachers Recruitment Board for appointment to the post of Graduate Assistants and for consequential direction to respondents 1 and 2 to appoint the members of the petitioner association as Graduate Assistants on the basis of the seniority in the Statewide list kept by the employment exchange as was done in the case of Secondary Grade Teachers.=while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step-in-aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for mala fide reasons or in an arbitrary manner. 17.It is trite that Article 14 of the Constitution strikes at arbitrariness which is an antithesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts." 14.As held by the Supreme Court, the candidates do not have indefeasible right to claim appointment against the advertised posts. If the State explains the reason for prescribing the particular mode of selection and cancellation of the earlier process, such a decision cannot be frowned upon as violative of Articles 14 and 16 of the Constitution. On the other hand, in this case, the impugned G.O clearly explains the mandatory directions issued under the RTE Act which has to be obeyed by the State Government. 15.Secondly, the State Government has taken a policy decision to screen the candidates before their entry to the post. In these days because of mushrooming the Teachers Training Institutes and colleges all over State, such standardization process is inevitable. The petitioner cannot be heard to say that their case should be treated differently only because of their selection in the earlier selection process and on the basis of the old policy. 16.In view of the above factual matrix and legal precedents, the petitioner Association has not made out any case. Hence the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.02.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.2108 of 2012 and M.P.Nos.1...When the R.H. and pattadar pass book and title deed shows as private land, mere entry as A.W land in revenue record does not convert the land as government land = the revenue record clearly shows that the land is a private land. In support of his plea that it was a private land, the petitioner filed a copy of the Register of Holding, a perusal of which would show that the name of Guduru Rachaiah is shown as the owner of the property admeasuring Ac.4.84 cents in Sy.No.147/2. This extract shows that the same has been issued by the Office of the Sub-Registrar. The petitioner has also filed a copy of the pattadar passbook issued by the Mandal Revenue Officer as far back as 30.06.1994. It is not disputed that the petitioner has purchased the property under a registered sale deed on 12.04.1972. In the face of this overwhelming documentary evidence to show that the petitioner is the owner of the property, the only ground on which respondent No.5 declined to register the sale deed and respondent No.4 confirmed the refusal order of respondent No.5 is that in the list furnished by the then Tahsildar in the year 2007, the property was shown as AW belonging to the Government. Respondent Nos.4 and 5, being the independent functionaries exercising powers and discharging duties under the provisions of the Registration Act, 1908 (for short 'the Act'), are bound to act independently by exercising their mind without being blindly guided by the instructions of the Tahsildar or the other revenue officials of the District. The mere fact that in the opinion of the Tahsildar, the property is the Assessed Waste belonging to the Government and he has accordingly included the property in his list sent to the registering authority would not make the land truly belonging to the Government.= The Chief Secretary of the State of Andhra Pradesh is directed to personally examine the issue and issue appropriate instructions to the Principal Secretaries of the Revenue and Stamps and Registration to work out the modalities strictly in accordance with the provisions of Section 22-A of the Act to ensure that the revenue officials, such as Tahsildars, do not include the private properties in the Government list, unless the revenue record unambiguously shows that the properties belong to the Government, and the registering authorities do not refuse to entertain the documents simply on the basis of the list sent by the Tahsildars and other revenue officials. THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.38148 of 2012 11-12-2012 Gaddam Lingaiah The Distric...A.P. ASSIGNED LANDS [PROHIBITION OF TRANSFERS] [AMENDMENT] ACT 2008SEC.4[1][b][i] :- re assign the said resumed land, other than those lands/ areas as may be notified by the govt. from time to time in public...Limitation Act, 1963-Section 65 Explanation (a)-Claim of ownership of suit land by appellants after partition-Respondents claiming ownership by adverse possession and on ground of limitation-Courts below holding in favour of the respondent-Correctness of-Held, the co-sharer is not conferred a new title on partition but has an antecedent title-Hence, the limitation starts from the date the possession became adverse and not from the date of commencement of the right of ownership. Appellants-plaintiffs filed a suit before trial court for declaration of title over suit land, recovery of possession thereof and for permanent injunction from interference with their possession, against respondents- defendants. The appellants contended before the trial court that the suit land was an ancestral property belonging to the father-in-law of appellant no.1 and after his death, the property vested with the husband of appellant no.l being his son; that during the lifetime of the husband of appellant no.l, the respondents sought permission to make construction on the suit- land which was rejected by her husband; and that after the death of the husband, the respondents started constructing a compound wall without her permission. The respondents contended that they were in possession 9f the suit land for more than twelve years and that they were owners by adverse possession; and that the suit was barred by limitation. The trial court dismissed the suit on the ground that the appellants have failed to prove their title over the suit land. The first appellate court allowed the appeal of the appellants holding that they had identified the suit land and proved their title to the suit land. High Court, keeping the second appeal pending, remanded the matter to the first appellate court to decide the issue of limitation and adverse possession. On remand of the above issues, the first appellate court Held that on facts and evidence the respondents acquired title of suit land by way of adverse possession and that the suit was barred by law of limitation. The High Court confirmed the findings of the first appellate court and allowed the second appeal of the respondents. In appeal to the Court, the appellants contended that they became owners of the suit land as reversioners under registered deed of partition only in 1965 and consequently the suit filed in 1968 by the appellants was not barred by limitation; that the adverse possession in respect of suit land did not begin to run against the appellants prior to 1965; and that the respondents failed to prove three circumstances viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in claiming adverse possession. Citation: 2004 AIR 1893,2004(2 )SCR918 ,2004(3 )SCC376 ,2004(3 )SCALE172 ,2004(2 )Suppl.JT511 -Dismissing the appeal, the Court HELD: 1.1. Under the common law, there are two types of estates namely, estates in possession and estates in expectancy. Estates in remainder/reversion are estates in expectancy as opposed to estates in possession. Consequently, adverse possession against a life-tenant will not bar the reversioner/remainder from succeeding to the estate on the demise of the life-tenant. This is the reason for enacting explanation (a) to Article 65 of the said Act, which has no application to the facts of the case. [922-G-H] Ram Kisto Mandal and ANOTHER. v. Dhankisto Mandal, [1969] 1 SCR 342, distinguished. 1.2. Partition is really a process by which a joint enjoyment of the property is transformed into an enjoyment severally. In the case of partition, each co-sharer has an antecedent title and, therefore, there is no conferment of a new title. In the circumstances, the appellants cannot be heard to say that they became the owners of the property only when the partition deed was executed on 29.11.1965. Lastly, the appellants had asserted not only their own possession but also the possession of the husband of appellant no.l prior to his death. The starting point of limitation for adverse possession cannot be taken as 29.11.1965 and one has to take the date when the respondents' possession became adverse. [923-A-D] Hanamgowda v. Irgowda, AIR (1925) Bom 9, approved. Transfer of Property Act by Mula 9th Edition, referred to. 1.3. The defendants have to prove three elements viz. hostile intention, long and uninterrupted possession and exercise of the right of exclusive ownership openly and to the knowledge of the owner, to establish ouster in cases involving claim of adverse possession. However, in the present case there is a concurrent finding of fact recorded by the courts below to the effect that the respondents are in possession of the suit land from 1935 or in any event from 1941; that they have paid revenue cess from 1940; that they have paid property taxes; that their names were recorded in the revenue records and they were granted permission by the panchayat to construct compound wall. Moreover, in her deposition before the trial Court, appellant no.l had deposed that her husband had died six years prior to the institution of suit; that the suit land was in possession of her father-in-law and after his death it came in possession of her husband; that during the life time of her husband, the defendants had told her husband to allow them to construct a building on the land which he refused and that the respondents constructed the compound wall without their permission. In view of the above concurrent findings of fact recorded by the courts below on the issue of adverse possession, there is no reason to interfere in the matter. [923-E-H; 924-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6432 of 1998. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4 CASE NO.: Appeal (civil) 6432 of 1998 PETITIONER: Vasantiben P. Nayak Ors...Juriprudence: Possession Held-In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title-Settled possession or effective possession would protect a person without title even as against the true owner-High Court's order upheld. The plaintiff-respondent was in possession of a piece of land and was raising a construction over it which was objected to by the defendant- appellant claiming that the said land formed part of his property and was owned by him. The plaintiff-respondent filed a suit for declaration of his title, as also his possession, of the disputed land. The trial court found that although the respondent failed to prove his title, he had succeeded in proving his possession over the suit property. Accordingly, it issued an injunction restraining the appellant from interfering with the peaceful possession and enjoyment of the suit property by the respondent. The High Court upheld this order. Hence the appeal. On behalf of the appellant, it was contended that the suit ought not to have been decreed merely on the fact that the respondent was in possession of the suit property since he could not prove his title. Dismissing the appeal, the Court HELD : 1. The person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongful dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possession by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. [856-A-E] Midnapore Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy, (1924) PC 144, Ramesh Chand Ardawatiya v. Anil Panjwani, [2003] 7 SCC 350,Lallu Yeshwant Singh v. Rao Jagdish Singh, [1968] 2 SCR 203, Nair Service Society Ltd. \. K.C. Alexander, [1968] 3 SCR 1, M.C. Chokalingam v. V. Manickavasagam, [1974] 1 SCC 48, Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, [1989] 4 SCC 131 and Nagar Palika, Jind v. Jagat Singh, Advocate, [1995] 3 SCC 426, relied on. Yar Mohammad v. Lakshmi Das, AIR (1959) All. 1, approved. Salmond on Jurisprudence : 12th Edn., referred to. 2. It is the settled possession or effective possession of a person without title, which would entitle him to protect his possession even as against the true owner. [856-E-F] Munshi Ram v. Delhi Administration, [1968] 2 SCR 455, Puran Singh v. The State of Punjab, [1975] 4 SCC 518 and Ram Rattan v. State of U.P., [1977] 1 SCC 188, relied on. Horam v. Rex, AIR (1949) All. 564, approved. 3.1. In the present case the Court has found the plaintiff-respondent as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant-appellant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Trial Court and the High Court have rightly decided the suit. [858-C-E] 3.2. It is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. [859-C-D] Fakirbhai Bhagwandas v. Maganlal Haribhai, AIR (1951) Bom. 380, approved. Sri Dasnam Naga Sanvasi v. Allahabad Development Authority, AIR All. 418 and Kallappa Rama Londa v. Shivappa Nagappa Aparaj, AIR (1995) Kar. 238, held not applicable. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7662 of 1997. 2004 AIR 4609, 2003(6 )Suppl.SCR850 , 2004(1 )SCC769 , 2003(10 )SCALE950 , CASE NO.: Appeal (civil) 7662 of 1997 PETITIONER: Rame Gowda (D) by Lrs. RESPONDENT: M. Varadappa Naidu (D) by Lrs. ...MYWEBSITESADVOCATEMMMOHANLAWOFFICEAPEXCOURTCASELAWSAPHIGHCOURTLATESTCASELAWhttps://sites.google.com/site/legalremediesforwomen/https://sites.google.com/site/mmmlawreport/INDIAN COURTS CASE LAWSMY DIARIES ON LAW

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