INAMS ABOLITION ACT, LAND REFORMS ACT= “1. Whether an Inamdar who has been granted occupancy rights under the Inam Abolition Act can invoke Section 41 to recover possession from a person who is not a tenant of the land in question? 2. Whether the order passed by the Tahsildar is sustainable on merits?”= ONCE OCCUPANCY RIGHTS HAS GIVEN , ALL MORTGAGES MADE BEFORE THE INAMS ABOLITION ACT WERE DEEMED TO BE DISCHARGED OR WIPED OFF. FOR IMPLEMENTING OCCUPANCY RIGHTS, THE TAHSILDAR HAS GOT JURISDICTION UNDER LAND REFORMS ACT TO EVICT THE UNAUTHORIZED PERSONS FROM THE LANDS=Since it was extensively pointed out by the learned Single Judge in the order dated 1.2.2005, as well as in the present impugned order highlighting the malpractices indulged in by the Tehsildar, while passing the order directing possession in favour of the appellant and while upholding the order of the learned Single Judge referred to above, the order of remand passed by the learned Single Judge stands restored. We, however, make it clear that the only issue which can be examined by the Tehsildar can be with regard to the claim of the appellant for restoring possession based on the grant of occupancy rights in its favour, by the proceeding dated 11.2.1993. It is further made clear that this order of remand to the Tehsildar, shall not entitle the respondents to raise any issue relating to the jurisdiction of the Tehsildar, in particular, based on the mortgages of the year 1955 and 1967. 19. The appeals stand allowed with the above directions. In light of the fact that the issue is pending for nearly two decades, we direct the Tehsildar to hear the parties and after giving due opportunity to put forth their submissions, pass final orders in accordance with law expeditiously, preferably within three months from the date of receipt of copy of this order.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4150-4163 OF 2013
NI PRA CHANNABASAVA DESHIKENDRA …APPELLANT
SWAMIGALU MATADHIPATHIGALU KANNADA
MUTT
VERSUS
C.P. KAVEERAMMA & ORS. …RESPONDENTS
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Unsuccessful appellant in the Writ Appeal before the
Division Bench of the High Court of Karnataka at Bangalore
is the appellant before us.
This appeal is directed against
the common judgment in W.A. Nos. 1936/2005 (LR) along
with W.A. Nos. 1941/2005, 1946/2005 and 2202 of
2005(LR).
The appellant is a religious Mutt called ‘Kannada
Mutt’. Land of 197 acres was granted as Jagir to the Mutt in
Survey Nos. 9, 10, 12 and 13 of Bettegeri village, Ammathy
Hobli, Virajpet Taluk, Coorg District in the year 1809 by the
then Ruler of Kodagu, Sri Veerarajendra Wodeyar. 
By a
mortgage deed dated 1.3.1955, the predecessor of present
Mathadhipathi stated to have mortgaged possession of
Civil Appeal Nos.4150-4163 of 2013 1 of 19Page 2
175.60 acres out of 197 acres of lands in favour of the
predecessor-in-title of the present contesting respondents.

By yet another mortgage deed dated 5.4.1967, a second
mortgage deed in favour of the very same parties in
respect of 17 acres of land was stated to have been made.
The mortgages were made for a period of 99 years.
2. Be that as it may, on 18.5.1978, Karnataka Certain
Inams Abolition Act, 1977 (hereinafter called as the “1977
Act”) came into force and the effective date was
01.03.1974.
By virtue of Section 4(2)(b) of the 1977 Act all
Inams that were existing on that date stood abolished with
effect from 01.03.1974, namely, the effective date. 
After
the coming into force of the 1977 Act, the Mutt filed an
application on 25.6.1987 for grant of occupancy rights in
respect of the entire lands. 
By order dated 11.02.1993, the
appellant’s application was allowed by the Land Tribunal.

The respondents, based on the rights flowing from the
mortgage deeds, also claimed occupancy rights on the
ground that they were the tenants of the land in question.
Their application was rejected.
There was a challenge at
Civil Appeal Nos.4150-4163 of 2013 2 of 19
Page 3
the instance of the respondents to the grant of occupancy
rights in favour of the appellant, as well as, the rejection of
their rights in W.P.No.6379/1993. 
The Writ petition was
allowed by the learned Single Judge and the grant of
occupancy rights in favour of the appellant was set aside.
The appellant filed Writ Appeal No. 5689/1997 and the
respondent also challenged the very same order by filing
Writ Appeal No. 5816/1997.
3. The appeal filed by the appellant was allowed and the
order of the Learned Single Judge was set aside and the
order of the learned Tribunal granting occupancy rights in
favour of the appellant was restored. The respondents’
Writ Appeal was dismissed.
It is relevant to note that the
said order of the Division Bench was not challenged further
by the respondents and, thereby, grant of occupancy rights
in favour of the appellant was confirmed.
Subsequently,
Form No.2 - Certificate was also issued in favour of the
appellant on 15.4.2000 representing the Mutt.
Civil Appeal Nos.4150-4163 of 2013 3 of 19Page 4
4. By virtue of Section 3(2) of the 1977 Act, the words
and expressions used, but not defined in the 1977 Act, shall
have the meaning assigned to them under the Act or the
Karnataka Land Reforms Act, 1961. 
Under Section 11, the
procedure for registration as an occupant has been set out,
which states that every person entitled to be registered as
an occupant under the 1977 Act, 
should make an
application to the Tribunal constituted under the Karnataka
Land Reforms Act, 1961 on or before 31st day of March,
1991 
and that the said application should be disposed of by
the Tribunal as if it is an application made under that Act.
Under Section 41(2) of the Karnataka Land Reforms Act,
1961,
 the procedure has been prescribed as to how a
landlord should obtain the possession of any land, dwelling
house or site held by a tenant, 
except under the order of
the Tehsildar by making application under the prescribed
format. 
Under Section 126 of the 1961 Act, it is specified
that for the removal of doubts, it was declared that
provisions of the 1961 Act, insofar as they confer any rights
or impose obligations on tenants and landlords, shall be
applicable to tenants holding lands in the Inam and other
Civil Appeal Nos.4150-4163 of 2013 4 of 19Page 5
alienated villages or lands including tenants referred to in
Section 8 of the Village offices’ Abolition Act, 1961, subject
to the provisions of the 1977 Act and to landlords and
Inamdar holding in such villages or lands. 
Section 130 of
the 1961 Act empowers the Tehsildar concerned to
summarily evict any person unauthorizedly occupying or
wrongfully in possession of any land and also to make such
orders as regards to the disposal of such land, as it deems
fit. 
Section 132 of the 1961 Act bars the jurisdiction of
other Courts to settle, decide or deal with any question,
which is by or under the 1961 Act required to be settled,
decided or dealt with by the authorities concerned.
5. The appellant approached the Tehsildar of Virajpet
Taluk alleging that the respondents were in unauthorised
possession and having regard to the coming into force of
1977 Act w.e.f. 1.3.1974 and the order of the Land Tribunal
dated 11.2.1993, they are liable to be evicted and the
possession to be handed over to the appellant. 
By order
dated 28.8.2004, the Tehsildar allowed the appellant’s
application and directed eviction of the respondents. 
Based
on the said order, the appellant was put in possession by
Civil Appeal Nos.4150-4163 of 2013 5 of 19Page 6
the Mahazar, drawn by Revenue Inspector of Ammathy
Hobli on 31.8.2004. 
The handing over of the possession of
the lands in question was effected in the presence of the
Tehsildar Virajpet Taluk, Hosur circle and the
Panchayatdars. 
6. The respondents challenged the said order of the
Tehsildar in Writ Petition No.36175/2004 & 36529-32/2004.
The Single Judge among other issues, considered the
question about the jurisdiction of the Tehsildar and held
that the Tribunal under the Land Revenue Act had
jurisdiction over the lands in question and that the
Tehsildar was entitled to consider the application of the
appellant filed in Form No.5. 
However, the Learned Judge
found that there were serious irregularities in the matter of
passing of the order by the Tehsildar and consequently,
while setting aside the order of the Tehsildar, directed 
redelivery of possession to the respondents pending final
orders 
and further directed the Tehsildar to consider the
case afresh on merits and take an independent decision in
accordance with law after hearing the parties and pass
Civil Appeal Nos.4150-4163 of 2013 6 of 19Page 7
orders within four months from the date of the order of the
Learned Judge, which was dated 1.2.2005.
7. The appellant preferred appeals against the said order
in Writ Appeal Nos.1946-48/2005, which were considered
by the Division Bench along with Writ Appeal Nos.1936-
40/2005 and 1941-45/2005.
The Division Bench passed
orders on 12.9.2007 holding that the provisions of the Land
Reforms Act were not applicable to the case on hand and,
therefore, exercise of jurisdiction by the Tehsildar under
the provisions of Land Reforms Act, was bad in law and
without jurisdiction. 
The order of the Tehsildar was set
aside and consequently the order of the Learned Single
Judge was also set aside. 
The appellant preferred Civil
Appeal Nos.1040-53/2009 against the said common order
of the Division Bench dated 12.9.2007. 
The Civil Appeals
were allowed by this Court by order dated 13.2.2009. 
8. In the said Civil Appeals, contentions were raised on
behalf of the respondents by relying upon Section 43 of the
Transfer of Property Act, apart from contending that the
Civil Appeal Nos.4150-4163 of 2013 7 of 19Page 8
respondents were entitled to rely upon the mortgage
executed in their favour in the year 1955 and 1967. It was
also contended that by virtue of Section 10 of 1977 Act, the
respondents were entitled to rely upon the mortgage
granted in their favour by the appellant Mutt. 
While
allowing the Civil Appeals and setting aside the order of the
Division Bench, this Court considered all the above
submissions raised on behalf of the respondents and
rejected them. 
It was lastly pleaded before this Court that
apart from Section 43 of the Transfer of Property Act and
Section 4(2)(b) of the 1977 Act, there were other
submissions made by the respondents, which were not
considered by the High Court. 
Taking note of the above
submissions made on behalf of the respondents, even while
allowing the Civil Appeals and without expressing any
opinion about the acceptability of any such stand, the
judgment of the Division Bench was set aside and 
the
matter was remitted back to the High Court for fresh
consideration making it clear that the issue relating to the
applicability of Section 43 stood closed by virtue of the
judgment. 
Civil Appeal Nos.4150-4163 of 2013 8 of 19Page 9
9. It is in the abovesaid background, the present
impugned order of the Division Bench dated 15.6.2009, has
been passed wherein, the Division Bench proceeded to
examine the following two issues, namely:

“1. Whether an Inamdar who has been
granted occupancy rights under the Inam
Abolition Act can invoke Section 41 to
recover possession from a person who is
not a tenant of the land in question?
2. Whether the order passed by the
Tahsildar is sustainable on merits?”

10. While dealing with the above issues, the Division
Bench proceeded to hold that Section 41 of the Karnataka
Land Reforms Act, which prescribed the procedure for
taking possession, was not applicable, inasmuch as, the
jural relationship of landlord and tenant between the
appellant and respondents did not exist. 
While dealing with
Section 126 of the Land Reforms Act, the Division Bench
took the view that the said provision can have no
application to a case where rights of a mortgagee in
possession were prevailing. 
In the light of the above
conclusion, the Division Bench held that Section 130 of the
Civil Appeal Nos.4150-4163 of 2013 9 of 19Page 10
Land Reforms Act for summary eviction of any person in
unauthorised occupation, cannot also be invoked.

Ultimately, on Point No.2, the Division Bench taking note of
the serious irregularities committed by the Tehsildar in
passing the order took the view that such order came to be
passed by the Tehsildar by manipulating proceedings and,
therefore, set aside the order of the Tehsildar and also held
that no remand was called for. 
The appeals filed by the
appellant were dismissed and the appeal filed by the
respondent was allowed. 
The application of the appellant
filed in Form No.5 under the Land Reforms Act, was
rejected as not maintainable. 
The Division Bench also
imposed costs to be paid by the Tehsildar in the sum of Rs.
10,000/- to the respondents.
11. We heard Mr. S.M. Chandrashekhar, learned senior
counsel for the appellant and Mr. P. Vishwanatha Shetty,
learned senior counsel for the respondents.
We also
perused the earlier orders passed by this Court by which
the matter was remitted back to the Division Bench to
consider some of the submissions other than what were
earlier made and covered by the orders of this Court.
Civil Appeal Nos.4150-4163 of 2013 10 of 19Page 11

12. The main grievance of the appellant was that after
securing occupancy rights under the provisions of the 1977
Act, 
since by virtue of Section 4(2)(b), all encumbrances
created prior to coming into force of the Act having been
extinguished statutorily, and the lands having been vested
with the State, free from all encumbrances before the grant
of occupancy rights in favour of the appellant, no further
right could have existed in favour of the respondents, in
order to make a claim based on the mortgages of the year
1955 and 1967. 
Apart from the said claim in all other
respects, 
there was no right in the respondents since their
claim for occupancy right was rejected as early as on
11.2.1993, when the said rights of the appellant came to be
crystallized by the said date under the provisions of the
1977 Act. 
Though the said order was challenged by the
respondents, the challenge was not accepted and thereby,
the issue became concluded once and for all. 
Thereafter,
the only other question to be considered was as to how the
said crystallized rights of the appellant under the provisions
of the 1977 Act, is to be worked out for restoring its
possession in the lands in question. 
Though the appellant
Civil Appeal Nos.4150-4163 of 2013 11 of 19Page 12
stated to have invoked Section 41 of the Land Reforms Act
to work out its remedy for getting possession, when it came
to the question of ascertaining the jurisdiction of the
Tehsildar to examine the claim of the appellant for
restoring possession, the respondents once again projected
their claim based on the mortgages of the year 1955 and
1967 and further stated that the respondents were neither
a tenant, nor can they be held to be in unauthorised
possession, in order to invoke Section 130 of the Land
Reforms Act.
13. In the earlier round of litigation, these very issues
were examined by both the Learned Single Judge as well as
by the Division Bench of the High Court. As noted by us
earlier, the learned single Judge rejected the stand of the
respondents about the lack of jurisdiction of the Tehsildar
but nonetheless, set aside the order of the Tehsildar on the
sole ground that there was serious malpractice in the
passing of the ultimate order, directing handing over of the
possession. The learned Judge, therefore, set aside that
part of the order and remitted the matter back for passing
Civil Appeal Nos.4150-4163 of 2013 12 of 19Page 13
fresh orders. However, the Division Bench proceeded to
hold that the Tehsildar lacked jurisdiction since the rights of
the respondents as mortgagee, prescribed a different
status for the respondents and consequently the invocation
of Section 41 or Section 130 of the Land Reforms Act, could
not have been invoked.
 It was at that stage, the issue
came to be considered by this Court in Civil Appeal
Nos.1040-1053/2009 in the order dated 13.2.2009.
14. The substantial issues dealt with by the Division Bench
in its earlier order dated 12.9.2007, which examined the
question of jurisdiction of the Tehsildar, while considering
the claim of the respondents based on Section 43 of the
Transfer of Property Act; based on concept ‘feeding the
grant by estoppel’, accepted the stand of the respondents.
At that junction, this Court found that by virtue of Section
4(2)(b) of the 1977 Act, the said submission based on
Section 43 of the Transfer of Property Act, by relying upon
the mortgages of the year 1955 and 1967, cannot survive.
Even the submission based on Section 10 of the 1977 Act
was also rejected.
 Though what exactly were the other
Civil Appeal Nos.4150-4163 of 2013 13 of 19Page 14
submissions which were not considered by the Division
Bench were not specifically noted, in our considered view,
there could not have been any submission relating to the
jurisdiction of the Tehsildar’ for working out or
implementing the grant of occupancy rights granted in
favour of the appellant, by order dated 11.2.1993.
 In that
context, the power of the Tehsildar to invoke Section 130 of
the Land Reforms Act for granting the relief cannot be held
to be not sustainable.
Unfortunately, after the remand, we
find that by framing the two issues in the order impugned
in these appeals, which have been extracted in the earlier
part of our order, the Division Bench proceeded to reopen
the very same questions, which were already dealt with in
substratum in the earlier judgment of this Court dated
13.2.2009. 
When once this Court held that Section 43 of
the Transfer of Property Act could not come to the aid of
the respondents, any right based on the mortgages of the
year 1955 and 1967 no longer survived for consideration.
Since Section 10 of the 1977 Act was also held to be not
applicable to the case of the respondents, the only other
question which could have been examined in all
Civil Appeal Nos.4150-4163 of 2013 14 of 19Page 15
probabilities was one relating to the manner in which the
earlier order came to be passed by the Tehsildar, which
was found to be not properly done as held by the Learned
Single Judge in order dated 01.02.2005 in the Writ
Petitions, which disclosed that there were certain serious
irregularities or malpractices in the passing of the order by
the Tehsildar dated 28.8.2004 and the consequential
Mahazar dated 31.8.2004. In fact, the Learned Single Judge
rightly set aside the above orders of the Tehsildar on that
ground and remitted the matter back to the Tehsildar for
passing fresh orders in accordance with law.
15. We are convinced that in the light of our above
conclusions, it will have to be held that the continued
possession of the respondents after the grant of occupancy
rights in favour of the appellant in the order dated
11.2.1993, should be construed as unauthorized and there
was every right in the appellant to invoke the protection of
the Land Reforms Act for the purpose of working out its
remedy by taking recourse to law for implementing the
order dated 11.2.1993. 
Civil Appeal Nos.4150-4163 of 2013 15 of 19Page 16
16. In this context, it will be worthwhile to refer to the
decision of this Court reported in Mohammad Swalleh &
Ors. V. IIIrd Addl. District Judge, Meerut & Anr. -AIR
1988 SC 94.
In paragraph 7 while dealing with a converse
case, this court held as under:
“7. It was contended before the High Court
that no appeal lay from the decision of the
Prescribed Authority to the District Judge. 
The
High Court accepted this contention. 
The High
Court finally held that though the appeal laid
before the District Judge, the order of the
Prescribed Authority was invalid and was rightly
set aside by the District Judge.
 On that ground
the High Court declined to interfere with the
order of the learned District Judge.
 It is true
that there has been some technical breach
because if there is no appeal maintainable
before the learned District Judge, in the appeal
before the learned District Judge, the same
could not be set aside. 
But the High Court was
exercising its jurisdiction under Art.226 of the
Constitution. 
The High Court had come to the
conclusion that the order of the Prescribed
Authority was invalid and improper. 
The High
Court itself could have set it aside. 
Therefore,
in the facts and circumstances of the case
justice has been done though, as mentioned
hereinbefore, technically the appellant had a
point that the order of the District Judge was
illegal and improper. 
If we reiterate the order of
the High Court as it is setting aside the order of
the Prescribed Authority in exercise of the
jurisdiction under Art.226 of the Constitution
then no exception can be taken. 
As mentioned
hereinbefore, justice has been done and as the
improper order of the Prescribed Authority has
been set aside, no objection can be taken.”
Civil Appeal Nos.4150-4163 of 2013 16 of 19
Page 17
17. Applying the above said principle, we are also
convinced that the appellant by invoking the extraordinary
jurisdiction of the High Court under Article 226 can seek for
passing a justiciable order.
18. Having regard to our above conclusion based on the
earlier order dated 13.2.2009 and the limited scope of
consideration directed to be made, while remitting the
matter back to the Division Bench, the present order of the
Division Bench cannot be sustained.
We also hold that the
Tehsildar, had every jurisdiction to deal with application of
the appellant for working out its remedy based on the grant
of occupancy rights in its favour in the proceeding dated
11.2.1993, which has become final and conclusive.
Since it
was extensively pointed out by the learned Single Judge in
the order dated 1.2.2005, as well as in the present
impugned order highlighting the malpractices indulged in
by the Tehsildar, while passing the order directing
possession in favour of the appellant and while upholding
the order of the learned Single Judge referred to above, the
order of remand passed by the learned Single Judge stands
Civil Appeal Nos.4150-4163 of 2013 17 of 19Page 18
restored. 
We, however, make it clear that the only issue
which can be examined by the Tehsildar can be with regard
to the claim of the appellant for restoring possession based
on the grant of occupancy rights in its favour, by the
proceeding dated 11.2.1993. 
It is further made clear that
this order of remand to the Tehsildar, shall not entitle the
respondents to raise any issue relating to the jurisdiction of
the Tehsildar, in particular, based on the mortgages of the
year 1955 and 1967.
19. The appeals stand allowed with the above directions.
In light of the fact that the issue is pending for nearly two
decades, we direct the Tehsildar to hear the parties and
after giving due opportunity to put forth their submissions,
pass final orders in accordance with law expeditiously,
preferably within three months from the date of receipt of
copy of this order.
……….……….…………………………...J.
[Dr. B.S. Chauhan]
Civil Appeal Nos.4150-4163 of 2013 18 of 19Page 19
……….…….………………………………J.
 [Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
May 06, 2013
Civil Appeal Nos.4150-4163 of 2013 19 of 19

Panch Faisla. interpretation which contains a rider on the property not to alienate, mortgage etc., = "The house No. 512 is in Kotwali ward. Part of which shown in yellow colour on the eastern side is assigned to Phoolchand and the western part thereof shown in green colour is assigned to Dulichand. However, in view of the fact that financial condition of Phoolchand is very weak and he has a large family he can retain the portion of Dulichand also on a condition that neither he nor his descendants would be entitled to alienate the same by sale, gift, etc. and if they violate the same it would be open for Dulichand or his descendants to get the possession of their portion. Secondly for the portion assigned to Dulichand in case Phoolchand pays a sum of rupees eight thousand to Shyama Bai, he would be entitled to retain the same and subsequent thereto Phoolchand would not have any right on this part." In fact Phoolchand had purchased the said limited rights on paying the family debt to Shyama Bai.- It has been admitted by the respondents/defendants in the plaint itself that an amount of rupees eight thousand had been paid by the appellants to Shyama Bai. Therefore, in view of the above, Phoolchand could have been permitted to retain the said portion of Dulichand's share, as he had fulfilled the condition stipulated therein. Giving literal effect to the last sentence that on making the payment of rupees eight thousand to Shyama Bai, the rights of Phoolchand would be extinguished, leads to absurdity. In fact, Phoolchand had purchased the share of Dulichand with a further rider, that neither he nor his descendants would be able to alienate the suit property in future. Under no circumstance, could phoolchand be asked to make the payment of debt to Shyama Bai and get nothing in lieu thereof. In fact the said amount of rupees eight thousand was paid by Phoolchand in 1960, when money had a substantial value and a person could purchase immovable property for such a handsome amount. 10. In order to do complete justice between the parties, in the facts of this case, the appeal is allowed. The judgment and decree of the courts below are set aside.

' 
ITEM NO.104 COURT NO.7 SECTION IV


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

CIVIL APPEAL NO(s). 2435 OF 2005

RAJESH AGRAWAL & ORS. Appellant (s)

VERSUS

KASTURIBAI & ORS. Respondent(s)

(With office report )

Date: 11/03/2013 This Appeal was called on for hearing today.

CORAM :
HON'BLE DR. JUSTICE B.S. CHAUHAN
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA


For Appellant(s) Mr. E.C.Agrawala,Adv.
Mr. S.S.Khanduja,Adv/
Mr. Yash Pal Dhingra,Adv.
Mr. Pratyush Nandan,Adv.
For Respondent(s)
Mr. Ram Swarup Sharma,Adv.

UPON hearing counsel the Court made the following
O R D E R

The appeal is allowed.
The judgment and decree of the courts below are set
aside.


[SUMAN WADHWA] [M.S. NEGI]
COURT MASTER COURT MASTER

Signed order is placed on the file.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2435 OF 2005

RAJESH AGRAWAL & ORS. .. APPELLANT (S)

vs.

KASTURIBAI & ORS. .. RESPONDENT(S)


ORDER

1. This appeal has been preferred against impugned judgment and decree
dated 11.7.2003, in Second Appeal No.889 of 1999 passed by the High Court
of Madhya Pradesh at Jabalpur affirming the judgment of the trial Court, as
well as of the First Appellate Court.

2. The contesting parties are the legal heirs of the original
plaintiff, and the defendant i.e. late Dulichand and Phoolchand who were
the real brothers. Their predecessor-in-interest had a very large
properties and business. Some properties stood partitioned by mutual
settlement, and for some, a Panchayat was called for and they effected
partition vide Panch Faisla dated 16.8.1960. The suit house was also a part
of the property which underwent partition through the aforesaid Panch
Faisla. The eastern part of the suit house was allotted to Phoolchand and
western part to Dulichand. However, Phoolchand had a big family, and
considering his inconvenience the Panch Faisla provided a condition that
Phoolchand could retain the possession of the other part also, by making
payment of Rs.8,000/- (rupees eight thousand only) to Shyama Bai which was
a family debt. However, he and his descendants would not be able to
alienate the portion of the house allotted to Dulichand. However, in case
Phoolchand failed to pay the family debt to Shyama Bai, Dulichand was
entitled to recover possession of the suit house from Phoolchand.

3. Dulichand instituted a suit for possession and injunction against
Phoolchand on the ground that rupees eight thousand had been paid by
Phoolchand to Shyama Bai, and hence, the right of Phoolchand to retain
possession of the suit property stood extinguished. However, it was
admitted in the plaint that Phoolchand had paid the said debt amount of
rupees eight thousand to Shyama Bai. Learned Civil Judge vide judgment and
decree dated January 21, 1999 accepted the Panch Faisla but decreed the
suit no. 356 of 1998. Phoolchand was thus directed to deliver possession of
the suit property to Dulichand.
4. The said judgment and decree stood affirmed by the judgment and
decree of the First Appellate Court dated 5.7.1999 in C.A. No. 17-A of
1999, as well as by the High Court dated 11.7.2003 in Second Appeal No. 889
of 1999.
Hence, this appeal.

5. The appeal has been pending for the last eight years. The case has
been adjourned several times, only to give opportunities to the
respondents' counsel to make an appearance but none of their lawyers
appeared as is evident from last order sheets.

6. Mr. E.C.Aggarwala, learned counsel appearing for the appellants,
has produced a certified copy of the original Panch Faisla. According to
this, clause 5 thereof is relevant for our purpose. English translation
thereof reads as under:

"The house No. 512 is in Kotwali ward. 
Part of which shown in yellow
colour on the eastern side is assigned to Phoolchand 
and the 
western part thereof shown in green colour is assigned to Dulichand. 
However,
in view of the fact that financial condition of Phoolchand is very
weak and he has a large family he can retain the portion of Dulichand also on a condition that
 neither he nor his descendants would be
entitled to alienate the same by sale, gift, etc. 
and if they violate
the same it would be open for Dulichand or his descendants to get the possession of their portion. 
Secondly for the portion assigned to Dulichand 
in case Phoolchand pays a sum of rupees eight thousand to Shyama Bai, he would be entitled to retain the same and subsequent thereto Phoolchand would not have any right on this part."
(Emphasis added)
7. The intention of the Panchas as per the Panch Faisla has to be
inferred reading the entire Panch Faisla. 
It is evident from the same that
considering the fact that Phoolchand had a very large family and his
financial condition was weak, the Panchas thought it fit that the portion
assigned to Dulichand may also be given to Phoolchand in case he paid a sum
of rupees eight thousand, a family debt to Shyama Bai. 
With such an intention, the further stipulation that on making the payment to Shyama
Bai, the rights/entitlement of Phoolchand would be extinguished, would make
the entire contract unconscionable.


8. The Courts below have erred in interpreting the last sentence of
the said clause literally, and did not make an attempt to infer the
intention of the Panchas. 
In fact Phoolchand had purchased the said limited
rights on paying the family debt to Shyama Bai.

9. It has been admitted by the respondents/defendants in the plaint
itself that an amount of rupees eight thousand had been paid by the
appellants to Shyama Bai. Therefore, in view of the above, Phoolchand
could have been permitted to retain the said portion of Dulichand's share,
as he had fulfilled the condition stipulated therein. Giving literal effect
to the last sentence that on making the payment of rupees eight thousand to
Shyama Bai, the rights of Phoolchand would be extinguished, leads toabsurdity. 
In fact, Phoolchand had purchased the share of Dulichand with a further rider, that neither he nor his descendants would be able to alienate the suit property in future. 
Under no circumstance, could
phoolchand be asked to make the payment of debt to Shyama Bai and get
nothing in lieu thereof. 
In fact the said amount of rupees eight thousand
was paid by Phoolchand in 1960, when money had a substantial value and a
person could purchase immovable property for such a handsome amount.

10. In order to do complete justice between the parties, in the facts
of this case, the appeal is allowed. The judgment and decree of the courts
below are set aside.
.
............................................ . J.
(Dr. B. S. CHAUHAN)





................................................................. J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi,
March 11, 2013.
-----------------------
6

Movie titled “Vana Udham” in Tamil and “Attakasa” in Kannada.= When the matter was taken up today, we were told by Mr. Sanjay R Hegde, learned counsel for the appellant and Mr. K.K. Mani, learned counsel for the respondents that the parties have indeed arrived at an amicable settlement making it unnecessary for us to examine on merits the contentions urged by them in support of their respective cases. They further submitted that according to the settlement the respondents have agreed to pay a sum of Rs. 25,00,000/- (twenty five lakhs) to the appellant/plaintiff in full and final settlement of her claims in relation to release of the movie including waiver of any objection she had towards its exhibition in Tamil, Kannada or any other language with deletion of certain scenes from the same as directed by the High Court. Mr. K.K. Mani, learned counsel for the respondents submitted that the respondents would deposit a sum of Rs. 25,00,000/- before the Trial Court by tomorrow i.e. 15.2.2013. He urged that in the light of the above settlement, the release of the movie, which is scheduled for today, may not be injuncted by this Court and the suit directed to be disposed off by the trial court as withdrawan.= the deposit would sufficiently redress the appellant’s grievance against production and exhibition of the movie, which is a biopic of her husband, late Veerappan. He urged that the suit filed by the plaintiff/appellant, in the light of the said settlement shall be withdrawn by her, no sooner the amount is released in her favour by the Trial Court. He urged that the respondents should be directed to publish a Disclaimer in English Edition of daily “Hindu”, Madras Edition, Tamil Edition of “Dina Thanthi” and Kannada Edition of “Prajavani” within two weeks from today stating that the movie is based only on the information available in police records and other material already in public domain. Mr. Mani assured us that his clients would do the needful within two weeks from today.- In the circumstances, therefore, we dispose of these appeals with the direction that the respondents shall deposit the agreed sum of Rs. 25,00,000/- by tomorrow [15.2.2013] before the trial court, which shall be released to the appellant upon an application filed by the plaintiff/appellant for withdrawal of the suit. The parties are left to bear their own costs in this appeal and in the courts below.

' 
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 1348-1349 OF 2013
(Arising out of SLP(C) Nos. 8306-8307/2013)



V. MUTHU LAKSHMI Appellant(s)


VERSUS


AKSHAYA CREATIONS & ORS. Respondent(s)




O R D E R


Leave granted.
These appeals arise out of a common order dated 01.02.2013 passed
by the High Court of Judicature at Madras whereby C.R.P. (PD) Nos.
3943 and 3944 of 2012 have been allowed, and Judgment and Order dated
26.09.2012, passed in C.M.As. No. 61 and 62 of 2012 by the IVth
Additional Judge, City Civil Court, Chennai, set aside.
It is, in our view, unnecessary to set out in detail the factual
matrix in which the controversy arises except to the extent it is
absolutely necessary to do so for the disposal of these appeals.
Suffice it to say that the respondents are Producers and Directors of
a Movie titled "Vana Udham" in Tamil and "Attakasa" in Kannada. The
movie it appears tries to portray the life of one Veerappan and events
relating to him. The appellant before us, happens, to be widow of
Veerappan, In O.S. No. 9415 of 2011 filed by her before the VIIth
Assistant Judge, City Civil Court, Chennai the appellant prayed for a
permanent prohibitory injunction restraining the respondents herein
from releasing or exhibiting the Movie produced by them in Tamil and
in Kannada languages or in any other name or language. The suit was
accompanied by an application for temporary injunction restraining
release of the movie and its exhibition in the States of Tamil Nadu,
Karnataka and even in other States. The said application, it appears,
was dismissed by the trial court in terms of an order dated 21.07.2012
holding that the plaintiff had failed to make out a prima facie case
for the grant of any injunction in her favour. Aggrieved by the
order passed by the Trial Court the Appellant/Plaintiff preferred
C.M.As. No. 61 and 62 of 2012 before the IVth Additional Judge, City
Civil Court, Chennai. The Appellate Court by its order dated
26.9.2012, allowed the said appeals, set aside the order passed by the
Trial Court and granted an ad-interim injunction against the Producers
and Directors, restraining them from releasing or exhibiting the said
movie.
Aggrieved by the Judgment and Order passed by the 1st Appellate
Court, the respondents filed C.R.P. (PD) Nos. 3943 and 3944 of 2012,
which came up before a Single Judge of the High court of Judicature at
Madras. By its order dated 01.02.2013, the High Court has allowed the
said revisions and set aside the order passed by the VIth Additional
Judge, City Civil Court, Chennai, Tamil Nadu in the process restoring
that passed by the trial court. The present appeals by special leave
assail the correctness of the said order, as already noticed earlier.


When the matter came up before us, in mentioning yesterday, i.e. on
13.2.2012, we heard learned counsel for the parties at some length,
who took us through the record and related documents. Towards the
conclusion of the hearing, learned counsel for the parties submitted
that the parties were not averse to exploring the possibilities of an
amicable settlement. We accordingly adjourned the matter to be taken
up today for further hearing. When the matter was taken up today, we
were told by Mr. Sanjay R Hegde, learned counsel for the appellant and
Mr. K.K. Mani, learned counsel for the respondents that the parties
have indeed arrived at an amicable settlement making it unnecessary
for us to examine on merits the contentions urged by them in support
of their respective cases. They further submitted that according to
the settlement the respondents have agreed to pay a sum of Rs.
25,00,000/- (twenty five lakhs) to the appellant/plaintiff in full and
final settlement of her claims in relation to release of the movie
including waiver of any objection she had towards its exhibition in
Tamil, Kannada or any other language with deletion of certain scenes
from the same as directed by the High Court. Mr. K.K. Mani, learned
counsel for the respondents submitted that the respondents would
deposit a sum of Rs. 25,00,000/- before the Trial Court by tomorrow
i.e. 15.2.2013. He urged that in the light of the above settlement,
the release of the movie, which is scheduled for today, may not be
injuncted by this Court and the suit directed to be disposed off by
the trial court as withdrawan.
Mr. Hegde, learned counsel for the appellants, is agreeable to the
above arrangement and submitted that the deposit would sufficiently
redress the appellant's grievance against production and exhibition of
the movie, which is a biopic of her husband, late Veerappan. He urged
that the suit filed by the plaintiff/appellant, in the light of the
said settlement shall be withdrawn by her, no sooner the amount is
released in her favour by the Trial Court. He urged that the
respondents should be directed to publish a Disclaimer in English
Edition of daily "Hindu", Madras Edition, Tamil Edition of "Dina
Thanthi" and Kannada Edition of "Prajavani" within two weeks from
today stating that the movie is based only on the information
available in police records and other material already in public
domain. Mr. Mani assured us that his clients would do the needful
within two weeks from today.
In the circumstances, therefore, we dispose of these appeals with
the direction that the respondents shall deposit the agreed sum of
Rs. 25,00,000/- by tomorrow [15.2.2013] before the trial court,
which shall be released to the appellant upon an application filed by
the plaintiff/appellant for withdrawal of the suit. The parties are
left to bear their own costs in this appeal and in the courts below.






..............................J.
[T.S.THAKUR]





................................J.
[SUDHANSU JYOTI MUKHOPADHAYA]







New Delhi,
February 14,2013




ITEM NO.1 COURT NO.9 SECTION XII


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) No(s).8306-8307/2013
(From the judgement and order dated 01/02/2013 in CRP No.3943/2012,CRP
No.3944/2012 of The HIGH COURT OF MADRAS)

V. MUTHU LAKSHMI Petitioner(s)
VERSUS
AKSHAYA CREATIONS & ORS. Respondent(s)
(With appln(s) for exemption from filing c/c of the impugned Judgment and
prayer for interim relief)


Date: 14/02/2013 These Petitions were called on for hearing today.


CORAM :
HON'BLE MR. JUSTICE T.S. THAKUR
HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA


For Petitioner(s) Mr. Sanjay R Hegde,Adv.
Mr. S Nithin,Adv.
Mr. Darpan KM,Adv.
Mr. S. Gowthaman,Adv.


For Respondent(s) Mr. K.K. Mani,Adv.
Mr. Abhishek Krishna,Adv.
Mr. A Lakshminarayan,Adv.

UPON hearing counsel the Court made the following
O R D E R


Leave granted.
The appeals are disposed of in terms of the signed order.





|(N.K. Goel) | (Veena Khera) |
|Court Master | Court Master |


(Signed order is placed on the file)

Without permission, no leased property can be sold and as such, the purchaser had no locus standi to file a suit against the original owner, and when the party herself admitted about the termination of lease and taking over possession of land, the purchaser from her can not deny that fact and ask for declaration =Plaintiff’s case in this suit was that he had purchased the plot in question from Smt. Pushpa Pramod Shah in the year 1991 in terms of a transfer deed registered with the concerned Sub-Registrar at Gandhidham and that he had based on the said transfer asked for transfer of the lease rights which request had been declined by the appellant-Port Trust in the year 1994.= The question is whether possession had indeed been taken over from the lessee pursuant to the termination of the lease. The answer to that question is squarely provided by the letter in which the lessee makes an unequivocal and unconditional admission that possession had indeed been taken over by the appellant-Port Trust. What is significant is that the lessee had asked for refund of the amount paid by her towards instalments and in case such a refund was not possible to return the plot to her. We do not think that such an unequivocal admission as is contained in the letter can be wished away or ignored in a suit where the question is whether the lessee had indeed been dispossessed pursuant to the termination of the lease. There is no worthwhile explanation or any other reason that can possibly spell a withdrawal of the admission or constitute an explanation cogent enough to carry conviction with the Court. We have in that view no hesitation in holding that dispossession of the lessee had taken place pursuant to the termination of the lease deed in terms of panchnama dated 14th December, 1978.- whether the suit for declaration to the effect that the termination of the lease was invalid and that the lease continued to subsist could be filed more than 17 years after the termination had taken place.- It is not, therefore, possible to fall back upon the possessory rights claimed by plaintiffs over the leased area to bring the suit within time especially when we have, while dealing with the question of possession, held that possession also was taken over pursuant to the order of termination of the lease in question.- the addition of the lessee as a co-plaintiff in the suit also came as late as in the year 1999 when the original plaintiff transferee of the lease appears to have realised that it is difficult to assert his rights against the Port Trust on the basis of a transfer which was effected without the permission of the lessor-Port Trust. 28. In the result, we allow this appeal, set aside the impugned judgment and decree passed by the Courts below and dismiss the suit filed by the respondents but in the circumstances without any order as to costs.

' 
ITEM NO. 1A Court No.10 SECTION IX


S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS


Civil Appeal No..... of 2013 @ SLP(C) No. 9196 of 2008


BOARD OF TRUSTEES OF PORT OF KANDLA Appellant (s)


VERSUS

HARGOVIND JASRAJ AND ANR. Respondent (s)



Date : 09/01/2013 This Petition was called on for judgment today.


For Appellant (s) M/s. Parekh and Co.



For Respondent(s) Mr. Ejaz Maqbool, Adv.

Ms. Aishwarya Bhati, Adv.


Hon'ble Mr. Justice T.S.Thakur pronounced Judgment of the
Bench comprising His Lordship and Hon'ble Mrs. Justice Gyan Sudha
Misra.
Leave granted.
The appeal is allowed in terms of the signed
judgment. There shall be no order as to costs.



(Shashi Sareen) (Veena Khera)
Court Master Court Master

Signed Reportable judgment is placed on the file.




REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 153 OF 2013
(Arising out of S.L.P. (C) No.9196 of 2008)

Board of Trustees of Port of Kandla ...Appellant
Versus
Hargovind Jasraj & Anr. ...Respondents

J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. This appeal arises out of a judgment and order dated 26th
December, 2007 passed by the High Court of Gujarat at Ahmedabad whereby
Civil Second Appeal No.17 of 2007 filed by the appellant has been dismissed
and the judgment and decree passed by the Courts below affirmed. The facts
giving rise to the filing of this appeal may be summarised as under:
3. A parcel of land admeasuring 1891.64 square meters situated in
Sector 30, Gandhidham in the State of Gujarat was granted in favour of Smt.
Pushpa Pramod Shah-respondent No.2 in this appeal on a long-term lease
basis. A formal lease-deed was also executed and registered in favour of
the lessee stipulating the terms and conditions on which the lessee was to
hold the land demised in her favour. The respondent-lessee it appears
committed default in the payment of the lease rent stipulated in the lease-
deed with the result that the appellant-lessor issued notices dated 12th
December, 1975 and 17th July, 1976 calling upon the lessee to pay the
outstanding amount with interest and stating that the lease of the plot in
question shall stand determined under Clause 4 thereof and possession of
the demised premises taken over by the appellant-Port Trust in case the
needful is not done.
4. In response to the notices aforementioned the lessee by
communication dated 18th November, 1976 requested the appellant-Port Trust
to permit her to resell the plots for a symbolic consideration and to
obtain the refund of the instalment amount already paid to the Port Trust.
The letter sought to justify the default in the payment of arrears on the
ground of an untimely demise of her husband, resulting in cancellation of
expansion programme including any further acquisition of land by the
lessee.
5. Failure of the lessee to remit the outstanding instalment amount
culminated in the termination of the lease by the appellant-Port Trust in
terms of an order dated 8th August, 1977 w.e.f. 13th December, 1978. A
panchnama prepared on 14th December, 1978 evidenced the takeover of
possession of the plot in question by the appellant-Port Trust, copy
whereof was forwarded even to the lessee along with a certificate that the
possession had been taken over by the Assistant Estate Manager of the
appellant-Port Trust under his letter dated 20th December, 1978.
6. On receipt of the letter aforementioned the lessee by her letter
dated 22nd February, 1979 requested the appellant-Port Trust to refund the
amount and in case a refund could not be made, to return the possession of
the plot to her. One year and four months after the issue of the said
letter the lessee-respondent No.2 herein filed Civil Suit No.152 of 1980 in
the Court of Civil Judge, Gandhidham, in which she prayed for a decree for
permanent injunction restraining the defendants, its officers and servants
from interfering with her peaceful possession over the plot in question.
The immediate provocation for the filing of the said suit was provided by
the appellant-Port Trust proposing to re-auction the plot in question. The
plaintiff's case in the suit was that she was in actual physical possession
of the plot which rendered the proposed auction thereof unreasonable. An
interim application was also filed in the said suit in which the Court
granted an ex-parte order of injunction that was subsequently vacated by a
detailed order passed on 5th September, 1980 holding that the plaintiff was
not entitled to the relief of injunction. It is common ground that suit
No.152 of 1980 was eventually dismissed on 18th January, 1985 for non-
prosecution.
7. Almost six years after the dismissal of the first suit, another
Suit No.126 of 1991 was filed, this time by respondent No.1-Hargovind
Jasraj against respondent No.2-Smt. Pushpa Pramod Shah for a permanent
prohibitory injunction restraining defendant No.2-lessee of the plot, her
agents, servants and representatives from interfering with the plaintiff's
possession over the plot in dispute. According to averments made in the
said suit the lessee had not been carrying on any business activities in
Gandhidham nor was she using the plot in question and that she was finding
it difficult to look after and administer the plot after the death of her
husband. She had, therefore, sold the plot to the plaintiff-respondent No.1
in this appeal in terms of a registered document. It was further alleged
that the cause of action to file the suit accrued a few days before the
filing of the suit when defendant-lessee had through her representative
asked the plaintiff to vacate the suit plot which demand was in breach of
the sale agreement between the parties. Apprehending dispossession from the
plot in question plaintiff-respondent No.1 sought a decree for injunction
against respondent No.2. The appellant-Port Trust, it is noteworthy, was
not impleaded as a party to the suit which too was dismissed for non-
prosecution on 15th March, 2002.
8. Five years later and pending disposal of the second suit mentioned
above, a third suit being Suit No.77 of 1996 was filed by respondent No.1
this time asking for a declaration and permanent injunction in which the
plaintiff for the first time questioned the termination of the lease by the
appellant-Port Trust. A declaration that the said lease was still
subsisting with an injunction restraining the defendant-appellant in this
appeal and its employees from acting in any manner injurious to the title
and the possession of the plaintiff over the disputed land was prayed for.
Plaintiff's case in this suit was that he had purchased the plot in
question from Smt. Pushpa Pramod Shah in the year 1991 in terms of a
transfer deed registered with the concerned Sub-Registrar at Gandhidham and
that he had based on the said transfer asked for transfer of the lease
rights which request had been declined by the appellant-Port Trust in the
year 1994. It was further alleged that he had come to know about the
purported cancellation of the lease in favour of Smt. Pushpa Pramod Shah
and the purported takeover of the possession of the plot from her which was
according to him both fraudulent and invalid in the eyes of law.
9. The suit was contested by the appellant-Port Trust on several
grounds giving rise to as many as seven issues framed by the trial Court
for determination. The suit was eventually decreed by the said Court,
aggrieved whereof the appellant-Port Trust filed an appeal before the First
Appellate Court who partly allowed the said appeal by its judgment and
order dated 16th November, 2006. The Appellate Court affirmed the decree
passed by the Courts below in so far as the trial Court had declared that
the lease-deed in question had not been validly terminated by the lessor
and the same continued to be subsisting but allowed the appeal setting
aside that part of the judgment passed by the trial Court whereby the trial
Court had directed the appellant-Port Trust to transfer the lease rights in
favour of the plaintiff-respondent No.1 in this appeal.
10. The appellant-Port Trust appealed to the High Court against the
above judgment and decree which has been dismissed by the High Court in
terms of the order impugned before us holding that no substantial question
of law arose in the light of the concurrent findings of fact recorded by
the courts below. The High Court found that since the earlier suits had not
been decided on merits, no final adjudication had taken place in the same
so as to attract the doctrine of res judicata to the issues raised in the
third suit out of which the present proceedings arise.
11. Appearing for the appellant Mr. Pravin H. Parekh, learned senior
counsel, strenuously argued that the courts below had fallen in serious
error in holding that the termination of the lease by the appellant-Port
Trust was invalid or that the lease continued to be valid and subsisting.
The question whether the Senior Estate Manager was competent to terminate
the lease and enter upon the suit property was not, argued Mr. Parekh,
joined as an issue by the courts below and could not be made a basis for
holding the termination to be unauthorised or invalid. Alternatively, he
submitted that the termination order had been passed as early as in the
year 1977 whereas the suit in question was filed in the year 1996 after a
lapse of nearly 18 years. The possession of the plot was also taken over on
14th December, 1978 which fact was acknowledged unequivocally by the lessee
in her letter dated 22nd February, 1979. That being so, any suit aimed at
challenging the validity of the termination or assailing validity of the
process by which the possession was taken over from the lessee should have
been filed within a period of six months from the date the cause of action
accrued to the lessee in terms of Section 120 of the Major Port Trust Act.
At any rate, such a suit could be filed, at best within three years from
the date the cause of action accrued to the lessee. Neither the lessee nor
her transferee who came on the scene long after the termination order had
been passed and the possession taken over could question the validity of
the termination of the lease or demand protection of their possession in
the light of a clear and unequivocal admission made by the lessee in her
letter dated 22nd February, 1979 that the possession of the plot in
question stood taken over from her. The courts below have, in that view,
committed a mistake in holding that the suit was within time.
12. Mr. Ahmadi, counsel appearing for the respondent, on the other
hand, submitted that the courts below had recorded a concurrent finding of
fact that the lessee continued to be in possession of the suit property
even after the termination of the lease which finding of fact could not be
assailed nor was there any legal impediment for the plaintiff transferee or
the original lessee who too was joined as a plaintiff in the year 1999 to
seek protection of their possession. It was further argued by Mr. Ahmadi
that the admission made by the lessee in her letter dated 22nd February,
1979 was not unequivocal and stood explained by the attendant circumstances
including the demise of her husband and resultant inability of the lessee
to go ahead with the expansion programme or to pay remainder of the lease
amount.
13. The Trial Court has, while dealing with the question of
dispossession of the lessee from the disputed plot, recorded a rather
ambivalent finding. This is evident from the following observations made by
it in its judgment:
".....Further Panchnama submitted alongwith Ex.49 cannot be said to be
panchnama of taking physical possession of the plot because the plot is
open. Even at present it is open and there are bushes of the Babool Trees
and as such it is difficult to hold anything about possession that of
Pushpaben or K.P.T. IT cannot be believed that by mere preparing panchnama
the possession has been taken from the person who is in possession of the
plot. The K.P.T. has not taken the possession vide Ex. 49 in the presence
of Pushpaben. Under the said circumstances the plot is open and it is as
it is......."
(emphasis supplied)

14. It is manifest that there is no clear finding of fact regarding
possession of the suit property having continued with the lessee, no matter
the lease stood terminated and a panchnama evidencing takeover of the
possession drawn and even communicated to her. The first Appellate Court in
appeal filed against the above judgment and decree also did not record a
specific finding that the possession of the plot had not been taken over by
the Port Trust no matter the documents relied upon by it evidenced such
take over. The first Appellate Court instead held that the termination of
the lease was not valid inasmuch as no notice regarding termination in
terms of Sections 106 and 111(g) of the Transfer of Property Act, 1882 had
been proved and served upon the lessee nor was it proved that the person
who signed notice Exhibit 47 and who took over possession in terms of
panchnama enclosed with Exhibit 49 had been authorised by the Kandla Port
Trust, the lessor, to do so. The conclusions drawn by the first Appellate
Court were summarised in paragraph 59 of its judgment in the following
words:
"59. In view of what is stated in foregoing paras of this judgment this
Court come to the following conclusions: -
1. The appellant/original defendant has failed to prove the
service of notice terminating the lease as required under
Section 111(g) and 106 of the Transfer of Property Act upon
the lessee i.e. the Respondent No. 2/original plaintiff No.
2.
2. The defendant/the present appellant failed to prove that the
person who signed the notice Ex. 47 and the person who is
alleged to have made re-entry on the suit plot and signed
Ex.49 and panchnama produced along with Ex. 49 were
specifically authorised by Kandla Port Trust i.e. the lessor
and the Chairman of Kandla Port Trust.
3. The lease dated 14/12/1966 is not legally and validly
determined by the lessor hence, it is subsisting till date
and alive, and the lessee Smt. Pushapaben Shah i.e. the
respondent No. 2 is entitled to hold and enjoy the suit plot
No. 30 sector No. 8."

15. In the second appeal filed by the appellant, the High Court was of
the view that the matter was concluded by concurrent findings of fact
regarding the validity of the termination of the lease and the authority of
those who purported to have brought about such a termination. The
question whether the possession of the suit plot was taken over did not
engage the attention of the first Appellate Court or the High Court
although the latter proceeded on the basis that the findings of fact
recorded by the Courts below were concurrent, without pointing out as to
what those findings were and how the same put the issue regarding takeover
of the possession from the lessee beyond the pale of any challenge.
Suffice it to say that the respondents are not correct in urging that the
dispossession of the lessee pursuant to the termination of the lease was
not proved as a fact. None of the Courts below has recorded a clear finding
on this aspect even though the trial Court has in its judgment briefly
touched that issue but declined to record an affirmative finding in the
matter. That apart a careful reading of the passage extracted above from
the order passed by the trial Court shows that the trial Court was
labouring under the impression as though possession of the vacant piece of
land cannot be taken over by the lessor unless some overt act of actual
occupation of the plot is established. The fact that wild bushes were
growing on the plot was, in our opinion, no reason to hold that the
panchnama prepared by the Port Trust authorities evidencing the takeover of
the plot was inconsequential or insufficient to establish that the process
of dispossession of the lessee had been accomplished. We need to remember
that with the termination of the lease, the title to the suit property
vested in the lessor, ipso jure. That being so, possession of a vacant
property would follow title and also vest in the lessor. Even so, the
Panchnama drawn up at site recorded the factum of actual takeover of the
possession from the lessee, whereafter the possession too legally vested in
the lessor, growth of wild bushes and grass notwithstanding. We need not
delve any further on this aspect for we are of the view that there could
be no better evidence to prove that the lessee had been dispossessed from
the plot in question than her own admission contained in her communication
dated 22nd February, 1979 addressed to the Senior Estate Manager of the
appellant-Trust. The letter may at this stage be extracted in extenso:
"Dear Sir,
I am in receipt of your letter No. ES/LL/723/63/9180 dated 20th
December 1978 informing that the Assistant Estate Manager has taken over
the plot No. 30 Sector 8. Please note, you have not informed me to be
present on 4 PM on 14.12.1978 at the site of the aforesaid plot and your
letter No. ES/LL/723/63/6248 dated 8th August 1977 said to have been sent
to me has not yet been received and hence you do not have the authority to
re-enter the plot.
As you have taken the possession of the plot, you are now requested to
kindly refund all the amounts forthwith otherwise you may return back the
possession of plot to me. If I do not hear anything from you within seven
days from the date of receipt of this letter, appropriate legal proceedings
will be adopted against you, holding you entirely responsible for the cost
of consequences thereof.
Yours faithfully,
Sd/- P.P. Shah
(Smt. Pushpa P. Shah)"
(emphasis supplied)

16. The genuineness of the above document was not disputed by learned
counsel for the respondents. All that was argued was that the admission
regarding the dispossession of the lessee had been made in circumstances
that (a) cannot constitute an admission and (b) absolve the lessee, the
maker, of its binding effect. The husband of the lessee having passed away,
the letter in question was written in a state of shock and distress and any
admission made therein could not argued Mr. Ahmadi and Ms. Bhati be treated
as an admission in the true sense. We regret our inability to accept that
submission. The question is whether possession had indeed been taken over
from the lessee pursuant to the termination of the lease. The answer to
that question is squarely provided by the letter in which the lessee makes
an unequivocal and unconditional admission that possession had indeed been
taken over by the appellant-Port Trust. What is significant is that the
lessee had asked for refund of the amount paid by her towards instalments
and in case such a refund was not possible to return the plot to her. We do
not think that such an unequivocal admission as is contained in the letter
can be wished away or ignored in a suit where the question is whether the
lessee had indeed been dispossessed pursuant to the termination of the
lease. There is no worthwhile explanation or any other reason that can
possibly spell a withdrawal of the admission or constitute an explanation
cogent enough to carry conviction with the Court. We have in that view no
hesitation in holding that dispossession of the lessee had taken place
pursuant to the termination of the lease deed in terms of panchnama dated
14th December, 1978.
17. The next question then is whether the suit for declaration to the
effect that the termination of the lease was invalid and that the lease
continued to subsist could be filed more than 17 years after the
termination had taken place. A suit for declaration not covered by Article
57 of the Schedule to the Limitation Act, 1963 must be filed within 3 years
from the date when the right to sue first arises. Article 58 applicable to
such suits reads as under:
| |Description of suit |Period of |Time from which |
| | |Limitation |period begins to run |
|58. |To obtain any other |Three years |When the right to sue|
| |declaration. | |first accrues. |

18. The expression right to sue has not been defined. But the same
has on numerous occasions fallen for interpretation before the Courts. In
State of Punjab & Ors. V. Gurdev Singh (1991) 4 SCC 1, the expression was
explained as under :
"..........
The words "right to sue" ordinarily mean the right to seek relief by means
of legal proceedings. Generally, the right to sue accrues only when the
cause of action arises, that is, the right to prosecute to obtain relief by
legal means. The suit must be instituted when the right asserted in the
suit is infringed or when there is a clear and unequivocal threat to
infringe that right by the defendant against whom the suit is instituted."

19. Similarly in Daya Singh & Anr. V. Gurdev Singh (dead) by LRs. &
Ors. (2010) 2 SCC 194 the position was re-stated as follows:
"13. Let us, therefore, consider whether the suit was barred by limitation
in view of Article 58 of the Act in the background of the facts stated in
the plaint itself. Part III of the Schedule which has prescribed the period
of limitation relates to suits concerning declarations. Article 58 of the
Act clearly says that to obtain any other declaration, the limitation would
be three years from the date when the right to sue first accrues.

14. In support of the contention that the suit was filed within the period
of limitation, the learned Senior Counsel appearing for the appellant-
plaintiffs before us submitted that there could be no right to sue until
there is an accrual of the right asserted in the suit and its infringement
or at least a clear and unequivocal threat to infringe that right by the
defendant against whom the suit is instituted. In support of this
contention the learned Senior Counsel strongly relied on a decision of the
Privy Council in reported in AIR 1930 PC 270 Bolo v. Koklan. In this
decision Their Lordships of the Privy Council observed as follows:

'... There can be no 'right to sue' until there is an accrual of the right
asserted in the suit and its infringement, or at least a clear and
unequivocal threat to infringe that right, by the defendant against whom
the suit is instituted.'

15. A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa AIR
1961 SC 808 in which this Court observed: (AIR p.810, para 7)

' ... The period of six years prescribed by Article 120 has to be computed
from the date when the right to sue accrues and there could be no right to
sue until there is an accrual of the right asserted in the suit and its
infringement or at least a clear and unequivocal threat to infringe that
right.'

In C. Mohammad Yunus, this Court held that the cause of action for the
purposes of Article 58 of the Act accrues only when the right asserted in
the suit is infringed or there is at least a clear and unequivocal threat
to infringe that right. Therefore, the mere existence of an adverse entry
in the revenue records cannot give rise to cause of action.

..........Accordingly, we are of the view that the right to sue accrued
when a clear and unequivocal threat to infringe that right by the
defendants......."


20. References may be made to the decisions of this Court in Khatri
Hotels Pvt. Ltd. & Anr. V. Union of India & Anr. (2011) 9 SCC 126 where
this Court observed:
"While enacting Article 58 of the 1963 Act, the legislature has designedly
made a departure from the language of Article 120 of the 1908 Act. The word
"first" has been used between the words "sue" and "accrued". This would
mean that if a suit is based on multiple causes of action, the period of
limitation will begin to run from the date when the right to sue first
accrues. To put it differently, successive violation of the right will not
give rise to fresh cause and the suit will be liable to be dismissed if it
is beyond the period of limitation counted from the day when the right to
sue first accrued."

(emphasis
supplied)


21. The right to sue in the present case first accrued to the lessee
on 13th December, 1978 when in terms of order dated 8th August, 1977 the
lease in favour of the lessee was terminated. A suit for declaration that
the termination of the lease was invalid hence ineffective for any reason
including the reason that the person on whose orders the same was
terminated had no authority to do so, could have been instituted by the
lessee on 14th of December 1978. For any such suit it was not necessary
that the lessee was dispossessed from the leased property as dispossession
was different from termination of the lease. But even assuming that the
right to sue did not fully accrue till the date the lessee was dispossessed
of the plot in question, such a dispossession having taken place on 14th of
December, 1978, the lessee ought to have filed the suit within three years
of 15th December, 1978 so as to be within the time stipulated under Article
58 extracted above. The suit in the instant case was, however, instituted
in the year 1996 i.e. after nearly eighteen years later and was, therefore,
clearly barred by limitation. The Courts below fell in error in holding
that the suit was within time and decreeing the same in whole or in part.
22. Mr. Ahmadi next argued that the termination of the lease being
illegal and non est in law, the plaintiff-respondents could ignore the
same, and so long as they or any one of them remained in possession, a
decree for injunction restraining the Port Trust from interfering with
their possession could be passed by the Court competent to do so. We are
not impressed by that submission. The termination of the lease deed was by
an order which the plaintiffs ought to get rid of by having the same set
aside, or declared invalid for whatever reasons, it may be permissible to
do so. No order bears a label of its being valid or invalid on its
forehead. Any one affected by any such order ought to seek redress against
the same within the period permissible for doing so. We may in this regard
refer to the following oft quoted passage in Smith v. East Elloe Rural
District Council (1956) 1 All ER 855. The following are the observations
regarding the necessity of recourse to the Court for getting the invalidity
of an order established:

"An order, even if not made in good faith is still an act capable of legal
consequences. It bears no brand of invalidity on its forehead. Unless the
necessary proceedings are taken at law to establish the cause of invalidity
and to get it quashed or otherwise upset, it will remain as effective for
its ostensible purpose as the most impeccable of orders.

This must be equally true even where the brand of invalidity is plainly
visible : for there also the order can effectively be resisted in law only
by obtaining the decision of the court. The necessity of recourse to the
court has been pointed put repeatedly in the House of Lords and Privy
Council without distinction between patent and latent defects."

23. The above case was approved by this Court in Krishnadevi Malchand
Kamathia & Ors. v. Bombay Environmental Action Group and Ors. (2011) 3 SCC
363, where this Court observed:

"19. Thus, from the above it emerges that even if the order/notification
is void/voidable, the party aggrieved by the same cannot decide that the
said order/notification is not binding upon it. It has to approach the
court for seeking such declaration. The order may be hypothetically a
nullity and even if its invalidity is challenged before the court in a
given circumstance, the court may refuse to quash the same on various
grounds including the standing of the Petitioner or on the ground of delay
or on the doctrine of waiver or any other legal reason. The order may
be void for one purpose or for one person, it may not be so for another
purpose or another person."

24. To the same effect is the decision of this Court in Pune
Municipal Corporation v. State of Maharashtra and Ors (2007) 5 SCC 211,
where this Court discussed the need for determination of invalidity of an
order for public purposes:

"36. It is well settled that no order can be ignored altogether unless a
finding is recorded that it was illegal, void or not in consonance with
law. As Prof. Wade states: "The principle must be equally true even where
the 'brand of invalidity' is plainly visible: for there also the order can
effectively be resisted in law only by obtaining the decision of the
Court".

He further states:


"The truth of the matter is that the court will invalidate an order only if
the right remedy is sought by the right person in the right proceedings and
circumstances. The order may be hypothetically a nullity, but the Court may
refuse to quash it because of the plaintiff's lack of standing, because he
does not deserve a discretionary remedy, because he has waived his rights,
or for some other legal reason. In any such case the 'void' order remains
effective and is, in reality, valid. It follows that an order may
be void for one purpose and valid for another, and that it may
be void against one person but valid against another."


xx xx xx xx

38. A similar question came up for consideration before this Court in State
of Punjab and Ors. v. Gurdev Singh (1992) ILLJ 283 SC ...

39. Setting aside the decree passed by all the Courts and referring to
several cases, this Court held that if the party aggrieved by invalidity of
the order intends to approach the Court for declaration that the order
against him was inoperative, he must come before the Court within the
period prescribed by limitation. "If the statutory time of limitation
expires, the Court cannot give the declaration sought for"."


25. Reference may also be made to the decisions of this Court in R.
Thiruvirkolam v. Presiding Officer and Anr. (1997) 1 SCC 9, State of Kerala
v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors.
(1996) 1 SCC 435 and Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber
Industries Pvt. Ltd. etc. (1997) 3 SCC 443, where this Court has held that
an order will remain effective and lead to legal consequences unless the
same is declared to be invalid by a competent court.

26. It is true that in some of the above cases, this Court was dealing
with proceedings arising under Article 226 of the Constitution, exercise of
powers whereunder is discretionary but then grant of declaratory relief
under the Specific Relief Act is also discretionary in nature. A Civil
Court can and may in appropriate cases refuse a declaratory decree for good
and valid reasons which dissuade the Court from exercising its
discretionary jurisdiction. Merely because the suit is within time is no
reason for the Court to grant a declaration. Suffice it to say that filing
of a suit for declaration was in the circumstances essential for the
plaintiffs. That is precisely why the plaintiffs brought a suit no matter
beyond the period of limitation prescribed for the purpose. Such a suit was
neither unnecessary nor a futility for the plaintiff's right to remain in
possession depended upon whether the lease was subsisting or stood
terminated. It is not, therefore, possible to fall back upon the possessory
rights claimed by plaintiffs over the leased area to bring the suit within
time especially when we have, while dealing with the question of
possession, held that possession also was taken over pursuant to the order
of termination of the lease in question.
27. In the light of what we have said above, we consider it
unnecessary to examine the question whether the suit in question was barred
by Section 120 of the Major Ports Act which stipulates a much shorter
period of limitation of six months. We also consider it unnecessary to
examine whether the suit filed by the original plaintiff-transferee of the
lessee was barred by the principle of constructive res judicata or Order
II, Rule 2 of the Code of Civil Procedure, 1908 in view of the fact that
the first suit filed by the lessee in the year 1980 for permanent
prohibitory injunction could and ought to have raised the question of
validity of the termination of the lease as the termination of the lease
had by that time taken place. So also the question whether the transferee,
who had not been recognised by the Port Trust, could institute a suit
against the Port Trust so as to challenge the termination of the lease in
favour of his vendor also need not be examined. All that we need mention is
that the addition of the lessee as a co-plaintiff in the suit also came as
late as in the year 1999 when the original plaintiff transferee of the
lease appears to have realised that it is difficult to assert his rights
against the Port Trust on the basis of a transfer which was effected
without the permission of the lessor-Port Trust.
28. In the result, we allow this appeal, set aside the impugned
judgment and decree passed by the Courts below and dismiss the suit filed
by the respondents but in the circumstances without any order as to costs.




.......................................J.
(T.S. Thakur)





........................................J.
(Gyan Sudha Misra)
New Delhi
January 9, 2013