ADOPTION NOT PROVED - ADVERSE POSSESSION NOT PLEADED - LIABLE TO BE EVICTED =Non admission of title of plaintiff - failure to prove adoption and title - No plea of adverse possession property set up - It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.- It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it. In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff. In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him. Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land. It is a settled principle of Mohammadan Law that Mohammadan Law does not recognize adoption (see-Section 347 of Mulla Principles of Mahomedan Law, 20th Edition page 430).

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                         CIVIL APPEAL No.83 OF 2008


Dagadabai(Dead) by L.Rs.                 ….Appellant(s)

                                   VERSUS

Abbas @ Gulab Rustum
Pinjari                             …Respondent(s)



                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    This appeal is filed by the legal  representatives  of  the  plaintiff
against the final judgment and order dated 25.04.2007  passed  by  the  High
Court of Judicature of Bombay, Bench at Aurangabad in Second  Appeal  No.333
of 1990 whereby  the  Single  Judge  of  the  High  Court  while  exercising
jurisdiction under  Section  100  of  the  Code  of  Civil  Procedure,  1908
(hereinafter referred to as “the Code”) reversed the concurrent findings  of
fact arrived at by the two Courts  below  and  dismissed  the  suit  of  the
plaintiff-appellant herein.
2)    We need not burden the order  by  setting  out  the  facts  in  detail
except to the extent necessary to appreciate the short controversy  involved
in the appeal.
3)     The  appellants  are  the  legal  representatives  of  the   original
plaintiff whereas the respondent is the defendant.
4)    The dispute in this appeal relates to  an  agricultural  land  bearing
G.No. 505 (old Sy. No 71) admeasuring 5 Hectare 28 R.  situated  at  village
Vardi, Taluka Chopda, District Jalgao  (MH)  (hereinafter  referred  to  as,
“the suit land".
5)    One Rustum s/o Nathu Pinjari - a Muslim by religion was the  owner  of
the  suit  land.  He  died  intestate  leaving  behind  his  only  daughter-
Dagadabai, w/o Shaikhlal Pinjari. She, as  an  heir,  accordingly  inherited
the suit land exclusively on the death of her father- Rustum.
6)    Dagadabai then filed a Civil Suit, out of which  this  appeal  arises,
against the respondent claiming therein a decree for possession in  relation
to the suit land.  The plaintiff alleged that she is the owner of  the  suit
land whereas the defendant is  in  unlawful  possession  of  the  suit  land
without any right, title and interest therein and, therefore, he  is  to  be
dispossessed from the suit land.  The  plaintiff,  therefore,  as  mentioned
above sought a decree for possession on the strength of  her  title  against
the respondent.
7)    The respondent filed his written statement. He denied the  appellant’s
claim. In the first place, claiming himself to be the adopted  son  of  Late
Rustum, the respondent contended that he became the owner of the  suit  land
by inheritance as an adopted son of Rustum. In the second place,  he  denied
the ownership of the plaintiff in the  suit  land  and  set  up  a  plea  of
adverse  possession  to  claim  his  ownership  over  the  suit  land.   The
respondent contended that he has been in long and continuous  possession  of
the suit land for more than 12 years prior to the  date  of  filing  of  the
suit on the basis  of  mutation  entries  made  in  the  revenue  record  in
relation to the suit land.  It was alleged that he acquired title  over  the
suit land on the strength of his continuous possession which,  according  to
him, was adverse.  It is essentially on these two defenses,  the  respondent
denied the plaintiff's case and defended his possession over the suit  land.

8)    The Trial Court framed issues and the parties  adduced  evidence.  The
Trial Court, by judgment/decree dated 29.08.1983 in Civil Suit  No.  108  of
1981  decreed  the  appellant's  suit.  It  was  held  that  the   appellant
(plaintiff) is the owner of the suit land; defendant  failed  to  prove  his
adoption; there is no concept of adoption in Muslims and hence  there  could
be no valid adoption of the respondent by Rustam and nor  such  adoption  is
recognized in Mohammadan Law; the defendant has failed to  prove  his  title
over the suit land on the basis of his  alleged  possession  over  the  suit
land; the defendant is, therefore, in illegal  and  unauthorized  possession
of the suit land for want of any right, title and interest and hence  liable
to be dispossessed from the suit land.
9)     Felt  aggrieved,  the  defendant  filed  first  appeal   before   the
Additional District Judge, Amalner. Vide order  dated  18.09.1990  in  Civil
Appeal No.43 of 1989.  The first appellate Court affirmed the  judgment  and
decree of the Trial Court and dismissed the appeal.
10)   Felt aggrieved, the defendant carried  the  matter  in  Second  Appeal
before the High Court. The High Court admitted the appeal on  the  following
substantial question of law:
“Whether  in  the  facts  and  circumstances  of  the  present   case,   the
defendant(appellant herein) perfected his title to the suit land on  account
of adverse possession and the alternative plea ought to  have  been  allowed
by the Courts below, particularly, when there were  disputes  regarding  the
mutation proceedings after the death of Rustum Pinjari and the intention  of
the defendant to get his name mutated was writ large  to  show  his  hostile
attitude.”

11)   By impugned order, the learned Single Judge of the High Court  allowed
the appeal and while setting aside the judgment/decree  of  the  two  courts
below dismissed the suit giving rise to filing of  this  appeal  by  special
leave by the plaintiff before this Court. The leave was granted.
12)   Heard Mr. Anshuman Animesh, learned counsel  for  the  appellants  and
Mr. Nishant Ramakantrao Katneshwarkar, learned counsel for the respondent.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are  inclined  to  allow  the  appeal  and  while
setting aside of the impugned order restore that of the Trial Court and  the
first Appellate Court.
14)   In our considered opinion, the  High  Court  erred  in  admitting  the
second appeal in the first instance and then further erred  in  allowing  it
by answering the question framed in defendant’s  favour.  This  we  say  for
more than one reason as detailed below.
15)    First,  when  the  Trial  Court  and  the   First   Appellate   Court
concurrently decreed the plaintiff's suit by recording all the  findings  of
facts against the defendant enumerated above, then,  in  our  opinion,  such
findings of facts were binding on the High Court.
16)   It is also for additional  reasons  that  the  findings  were  neither
against the pleadings nor evidence and nor against any  provisions  of  law.
They were also not perverse on facts to the extent that no average  judicial
person could ever record. In this  view  of  the  matter,   we  are  of  the
opinion that the second appeal did not involve  any  question  of  law  much
less substantial question of law within the meaning of Section  100  of  the
Code to enable the High Court to admit the appeal on any such question  much
less answer it in favour of the defendant.
17)   Second, the question which was formulated by the High  Court  did  not
involve any question of law much less substantial  question  of  law  within
the meaning of Section 100 of the Code requiring interference in  the  first
Appellate Court’s judgment.
18)   Third, the plea of adverse possession being essentially a  plea  based
on facts, it was required to be proved by the party raising it on the  basis
of proper pleadings and  evidence.  The  burden  to  prove  such  plea  was,
therefore, on the defendant who had raised it. It was, therefore,  necessary
for him to have discharged the burden that laid on him  in  accordance  with
law.
19)   When both the Courts below held and, in our  view,  rightly  that  the
defendant has failed to prove the plea of adverse possession in relation  to
the suit land then such concurrent findings of fact  was  unimpeachable  and
binding on the High Court.
20)   Fourth, the High Court erred fundamentally  in  observing  in  Para  7
that, "it  was  not  necessary  for  him  (defendant)  to  first  admit  the
ownership of the plaintiff before raising such a plea".
21)   In our considered opinion, these observations of the  High  Court  are
against the law of adverse possession. It is a settled principle of  law  of
adverse possession that the person, who claims title over  the  property  on
the strength of adverse possession and thereby wants  the  Court  to  divest
the true owner of his ownership rights over such property,  is  required  to
prove his case only against the true owner of the property.  It  is  equally
well-settled that such person must necessarily first admit the ownership  of
the true owner over the property to the knowledge  of  the  true  owner  and
secondly, the true owner has to be made a party to the suit  to  enable  the
Court to decide the  plea  of  adverse  possession  between  the  two  rival
claimants.
22)    It  is  only  thereafter  and  subject  to  proving  other   material
conditions with the aid  of  adequate  evidence  on  the  issue  of  actual,
peaceful, and uninterrupted continuous possession of  the  person  over  the
suit property for more than 12 years to the exclusion  of  true  owner  with
the element of hostility  in  asserting  the  rights  of  ownership  to  the
knowledge of the true owner, a case of adverse possession can be held to  be
made out which, in  turn,  results  in  depriving  the  true  owner  of  his
ownership rights in the property and vests ownership rights of the  property
in the person who claims it.
23)    In  this  case,  we  find  that  the  defendant  did  not  admit  the
plaintiff's ownership over the  suit  land  and,  therefore,  the  issue  of
adverse possession, in our opinion, could not have been  tried  successfully
at the instance of the defendant as against the plaintiff. That  apart,  the
defendant having claimed the ownership over the suit land by inheritance  as
an adopted son of Rustum and having failed to prove this ground, he was  not
entitled to claim the title by adverse possession against the plaintiff.
24)   In the light of this settled legal position, the  plea  taken  by  the
defendant about the adoption for proving his ownership over  the  suit  land
as an heir of Rustum was rightly held against him.
25)   Fifth, the defendant having failed to prove that he  was  the  adopted
son of Rustum, had no option but to suffer the decree of dispossession  from
the suit land. It is a settled principle of Mohammadan Law  that  Mohammadan
Law does not recognize adoption (see-Section  347  of  Mulla  Principles  of
Mahomedan Law, 20th Edition page 430).
26)   It is for the aforementioned reasons, the impugned  judgment  is  held
legally unsustainable and hence deserves to be set aside.
 27)   The  appeal  thus  succeeds  and  is  accordingly  allowed.  Impugned
judgment is set aside and that of the Trial Court and  the  first  Appellate
Court is restored.

………...................................J.
                              [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
April 18, 2017
-----------------------
12

Was it a suit for grant of permanent injunction simpliciter or a suit to seek a declaration of title with consequential relief of grant of permanent injunction in relation to the suit land? - The issue, in our view, was required to be examined by the High Court keeping in view the law laid down by this Court in the case of Anathula Sudhakar vs. P. Buchi Reddy(Dead) by L.Rs. & Ors., 2008(4) SCC 594. It was, however, not done.-The suit being one for perpetual injunction, whether investigation into the question of title was necessary or called for? - Whether, in view of the evidence, including the Commissioner’s report, the Appellate Court was justified in coming to the conclusion that the appellants had no possession?”

                          Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.5459 OF 2007


Velayudhan & Ors.                        ….Appellant(s)

                                   VERSUS

Mohammedkutty & Ors.                 …Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1)    This appeal is filed by the defendants against the final judgment  and
order dated 08.03.2006 passed by the High Court of Kerala in S.A.  No.180  &
475/1992 whereby the High Court allowed the  second  appeals  filed  by  the
plaintiffs-respondents herein and set aside the judgment  and  decree  dated
26.07.1991 of the Subordinate Judge, Tirur in A.S. Nos. 83 & 84 of 1988  and
restored the judgment dated 30.09.1988 of the Munsif  of  Parappanangadi  in
O.S. No. 177 of 1983.
2)    We need not burden our judgment by  mentioning  the  facts  in  detail
except to the extent necessary to  appreciate  the  issue  involved  in  the
appeal.
3)    The appellants herein are the defendants whereas the  respondents  are
the plaintiffs in a suit out of which this appeal arises.
4)    The respondents filed a civil suit in relation to  the  suit  land  as
described in detail in schedule to the plaint against the appellants  before
the Munsif of Parappanangadi. The  Munsif  Court  decreed  the  respondents’
suit against  the  appellants  and  passed  the  decree  as  prayed  by  the
plaintiffs.
5)    The defendants, felt aggrieved, filed the  first  appeals  before  the
Subordinate Judge Tirur. The first appellate Court allowed the  appeals  and
dismissed the suit. The respondents, felt aggrieved,  filed  Second  Appeals
under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred  to
as “the Code”). The High Court admitted the appeals  on  the  following  two
substantial questions of law:
“1.  The suit being one  for  perpetual  injunction,  whether  investigation
into the question of title was necessary or called for?

2.  Whether, in view of the evidence, including the  Commissioner’s  report,
the Appellate Court was justified in  coming  to  the  conclusion  that  the
appellants had no possession?”

 6)   By impugned order, the  High  Court  allowed  the  appeals  and  while
reversing the judgment and decree of  the  first  appellate  Court  restored
that of the Trial Court, which had decreed  the  respondents’  suit.  It  is
against this order of the High Court,  the  defendants  felt  aggrieved  and
filed this appeal by way of special leave before this Court.
7)    Heard Mr. M.K.S. Menon, learned counsel for the appellants and Mr.  K.
Rajeev, learned counsel for the respondents.
8)    Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we are inclined to allow the appeal in  part  and  while
setting aside of the impugned order consider it just and proper and  in  the
interest of all parties concerned to remand the case to the High  Court  for
deciding the plaintiffs’ Second Appeals afresh on merits  by  reframing  the
fresh substantial questions of law.
9)    In our considered opinion, the need to remand the  case  to  the  High
Court for deciding the Second Appeals afresh  has  arisen  because  we  find
that the High Court proceeded on the assumption that the  Civil  Suit  filed
by the respondents out of which this appeal arises is essentially for  grant
of permanent injunction simpliciter.  It  would  be  clear  from  the  first
substantial question of law framed by the High Court quoted supra.
10)   One of the questions, which fell for consideration  before  the  first
and second appellate Court was regarding the nature of  the  Suit  filed  by
the respondents and the reliefs claimed therein.
11)   Was it a suit for grant of permanent injunction simpliciter or a  suit
to seek a declaration  of  title  with  consequential  relief  of  grant  of
permanent injunction in relation to the suit land?
12)   On perusal of the plaint, we find that the plaintiffs  asked  for  the
following reliefs:
“A.   Issue an order of injunction preventing defendants or their  men  from
entering into or taking any usufructs from the plaint schedule  property  or
from  doing  anything  detrimental  to  the  title  and  possession  of  the
plaintiffs.

B.    Direct the defendants to pay all costs in the suit.

Such other or further orders be passed in the suit.”

13)   Reading the expression "or from  doing  anything  detrimental  to  the
title and possession of the plaintiffs" in  prayer  clause  A  quoted  above
would show that the plaintiffs have also expressed apprehension in  relation
to their title over the suit properties.
14)   Keeping in view the averments made in Para 1 of the plaint  read  with
aforementioned words of the prayer clause,  we  are  of  the  view  that  it
cannot be said that the Suit is  only  for  grant  of  permanent  injunction
simpliciter. In other words, the issue  of  title  having  surfaced  in  the
relief clause, the same is of some  significance  over  the  rights  of  the
parties while considering the grant of the reliefs.
15)   In our considered opinion, the reading of the plaint  as  a  whole  in
the context of the reliefs claimed therein would go to show that  the  issue
of title is not wholly foreign to the  controversy  and  is  relevant  while
considering the grant of permanent injunction.
16)   It is true that the relief clause in the plaint is not happily  worded
but, as observed supra, reading the plaint as  a  whole  along  with  relief
clause does support our observations.
17)   Since the High Court proceeded to decide the appeals in the  light  of
first substantial question of law and  hence  it  committed  an  error.  The
first error was in  framing  the  wrong  question  and  the  second  was  in
proceeding to examine the said question.
18)   The issue, in our view, was required to be examined by the High  Court
keeping in view the law laid down by this Court  in  the  case  of  Anathula
Sudhakar vs. P. Buchi Reddy(Dead) by L.Rs. &  Ors.,  2008(4)  SCC  594.   It
was, however, not done.
19)   It is due to the aforesaid reasons, we are of  the  view  that  matter
needs a fresh look by the High Court on the questions  which  arise  in  the
case.
20)   In the light of foregoing discussion, we allow  the  appeal  in  part,
set aside the impugned judgment and remand the case to  the  High  Court  to
decide the appeal afresh after reframing the  proper  substantial  questions
of law keeping in view the pleadings and the  findings  of  the  two  Courts
below as required under Section 100 of the Code.
21)   Since the appeal is quite old, we request the  High  Court  to  decide
the appeal expeditiously.


………...................................J.
                                  [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
April 18, 2017
-----------------------
8

In the suit filed by Kanti (predecessor in interest of the appellant), his main reliefs were to declare agreement to sell as void and for possession-cum-mesne profit. Insofar as the first relief is concerned, this result stands achieved on the dismissal of the suit filed by Jitender for specific performance and in view of the findings of the courts below that Jitender failed to fulfill his obligations under the said agreement and could not establish that he was ready and willing to perform his part of the contract. The only question is as to whether the relief of possession could have been decreed. While setting aside the order of remand in Civil Suit No. 4104 of 1982 passed by the High Court, the High Court shall deal with the appeal of the respondents against the decree of the Civil Court in Civil Suit No. 4104 of 1982 on the limited question of possession which was sought by the appellant in the said suit.

                                 NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3912 OF 2017



|PATEL KANTILAL PARSHOTTAMDAS (D) & ORS.    |                            |
|                                           |.....APPELLANT(S)           |
|VERSUS                                     |                            |
|                                           |                            |
|JITENDRAKUMAR NANJIBHAI MISTRY (D) THROUGH |                            |
|LRS & ORS.                                 |.....RESPONDENT(S)          |



                               J U D G M E N T


A.K. SIKRI, J.


            First, the facts and events in chronological order,  as  reading
of these facts will facilitate proper understanding of the issues that  have
cropped up in the instant appeal of the dispute between the parties.
            One Jeevandas was the owner of a part of property  bearing  plot
Nos. 109 to 112, which was demarcated and known as  sub-plot  No.10  of  the
said plot.  This sub-plot measures 828 square yards and is situated  outside
Shanpur Darwaza, Mahendi Kuva Road, Ahmedabad.  Jeevandas  executed  a  sale
deed in  respect  of  this  plot  (hereinafter  referred  to  as  the  ‘suit
property’) in favour of one Kantibhai (for short ‘Kanti’) on 16.04.1959  for
99 years, of which yearly rent fixed was Rs.1860/-.  This  lease  deed  also
provided an option to the lessee to purchase the suit property.  The  lessee
(Kanti) executed an Agreement of Sell dated 15.07.1974  in  respect  of  the
suit  property  in  favour  of  one  Jitenderkumar  Nanjibhai   (for   short
‘Jitender’) at a total consideration of Rs.1,85,001/-.  The  purchaser  paid
earnest money of Rs.25,000/- at the time of execution of the said  Agreement
to Sell.  This agreement further  provided  that  the  sale  deed  would  be
executed within a period of five months from the date of  execution  of  the
agreement.  Sale deed was, however, not executed within the said period  and
by mutual agreement this period was extended  by  another  five  months.   A
further sum of Rs. 20,000/- was paid by Jitender to  Kanti.   However,  even
during the extended period, no sale deed could be executed.


2)    According to Jitender (purchaser), the period  for  execution  of  the
sale deed was further extended by two years,  though  Kanti  disputed  this.
Kanti  gave  notice  dated  06.05.1981  to  Jitender  for  cancellation   of
Agreement to Sell putting blame on Jitender in not performing  his  part  of
the contract.  Jitender replied to the said notice taking the position  that
the period for execution of sale deed had been further extended.

3)    As this led to dispute between the two, Kanti filed two suits  against
Jitender:  for cancellation of Agreement to  Sell  and  for  possession  and
mesne profits.  After sometime, Jitender also filed suit against  Kanti  for
specific performance of Agreement dated 15.07.1974.  All  these  suits  were
clubbed together.  The trial court decreed the suit filed  by  Kanti.   Suit
of Jitender for specific performance was dismissed barred by  limitation  as
well.  The trial  court  also  returned  the  finding  to  the  effect  that
Jitender could not establish that he was ready and willing  to  perform  the
contract.  He, in fact, did not even enter the witness  box  in  support  of
his case.  The trial court, therefore, accepted the case put up by Kanti  to
the effect that even when Kanti was in a position to handover  complete  and
vacant possession of the suit property, Jitender did not  perform  his  part
of the contract within stipulated period.

4)    Jitender filed three appeals against the aforesaid  judgment.   During
the pendency of these appeals, both  Kanti  and  Jitender  passed  away  and
their legal heirs were brought on record.  The High Court has decided  these
appeals by the common  judgment  dated  22.10.2013.    The  High  Court  has
maintained the decree of  dismissal  of  the  suit  filed  by  Jitender  for
specific performance.  Upholding the judgment of the trial court,  the  High
Court has held that Jitender is not entitled to the specific performance  of
the contract.  However, insofar as decree passed in favour of Kanti  in  the
suit filed by him is concerned, the  High  Court  has  set  aside  the  said
decree and remanded the case back  to  the  trial  court.   The  High  Court
discussed the nature of suit filed by Kanti and pointed out  that  his  suit
was for cancellation of agreement on the ground that there  was  failure  on
the part of Jitender to show readiness and willingness to execute  the  sale
deed, which plea was accepted by the trial court.  The High Court  has  held
that this is an erroneous approach inasmuch  as  under  Section  31  of  the
Specific Relief Act, 1963, the suit can be instituted  for  cancellation  of
written agreement when such written agreement is void  or  voidable.   Thus,
Kanti was  supposed  to  show  that  the  agreement  is  void  or  voidable.
Instead, plea taken was that the other  side  has  not  shown  readiness  or
willingness to execute the sale deed,  which  could  not  be  a  ground  for
cancellation of the agreement.

5)    The High Court pointed out that Kanti was  given  lease  of  the  said
property in question for a period of 99 years by Jeevandas  and,  therefore,
Kanti was only a lessee.  No doubt, the said lease deed gave right to  Kanti
to purchase the suit property from the original  owner.   However,  such  an
option to purchase the suit property given to Kanti  was  not  exercised  by
him during the period mentioned in the lease deed or during  the  life  time
of the original owner i.e. Jeevandas.  Thus, Agreement to Sell  executed  by
Kanti in favour of Jitender was in the nature of ‘contingent contract’  and,
therefore, Jitender could hardly acquire any right when  Kanti  himself  was
not the owner of the property.  It is further held that  Kanti  had  yet  to
become the owner.  As he had not acquired propriety  rights  over  the  suit
property, it was not possible for him to transfer such a right to  Jitender.
 Having held so, the matter has  been  remanded  back  under  the  following
circumstances:
      “… But the point is, what is nature of agreement – i.e.  agreement  to
sell, executed in the present case.  It is in nature of contingent  contract
and hence, voidable on that count.  The question that  what  is  the  nature
and strength of agreement to sell –  can  be  answered  satisfactorily  only
when plea based on  the  point  that  contract  is  in  nature  of  voidable
contract is raised and the same is defended  by  the  other  side.   Broadly
stated, status of ‘seller’ at the time of execution  of  agreement  to  sell
being status of ‘lessee’ only and acquiring of  proprietary  rights  by  the
purchaser depending on ‘owner’ executing the deed in  favour  of  purchaser,
places the agreement to sell in category of  ‘contingent  contract’.   Prima
facie, the agreement falls in realm of ‘contingent contract’.  Upon  hearing
the learned advocate for  the  parties  and  in  the  circumstances  of  the
present case, it appears to be just and proper to allow the  present  appeal
and remand Civil Suit No. 4104 of 1982 for its disposal in  accordance  with
law.  It would be open to the parties to  amend  the  pleadings  accordingly
and to lead the evidence – if the parties are so advised –  in  addition  to
the evidence already on record.  It is clarified that it would also be  open
for the parties and the trial court to refer to and rely upon  the  evidence
already on record.  Since the suit is very old, it is  expected  that  trial
court would dispose of the suit as expeditiously as possible.”


6)    It is this outcome which is unpalatable to the legal heirs  of  Kanti,
who have filed the special leave petition  which  has  been  converted  into
appeal after grant of leave therein.

7)    Before adverting to the arguments  of  the  learned  counsel  for  the
parties, we deem it appropriate to record that  insofar  as  suit  filed  by
Jitender for specific performance of the contract is concerned,  a  plea  of
part performance of the contract was  taken  in  the  said  suit  which  was
predicated on the averment that on an execution of the  Agreement  to  Sell,
possession of the suit property was  handed  over  to  the  purchaser.   The
trial court held that it  was  not  so  as  the  possession  was  not  given
consequent  upon  entering  upon  the  said  agreement  but  on  account  of
relationship between the parties.  The High Court  termed  this  finding  as
erroneous and held that parting with possession of  the  suit  property  was
pursuant to  the  Agreement  to  Sell  entered  into  between  the  parties.
However, appeal of Jitender against the judgment  of  the  trial  court  for
specific performance has been dismissed on the ground that even  if  such  a
possession was taken, it did not absolve the purchaser  for  his  obligation
to comply with the requirement of showing his readiness and  willingness  to
execute the sale deed and that Section 53A of the Transfer of Property  Act,
1882 could be used as a shield and not as a  sword.   The  High  Court  also
affirmed the finding of the trial court that the suit filed by Jitender,  in
any case, was barred by limitation and, therefore, Jitender could not  avoid
the inevitable result, merely by relying  on  Section  53A  of  Transfer  of
Property Act, 1882.
      The result is that suit for specific  performance  filed  by  Jitender
stands dismissed and the judgment of the High Court  has  attained  finality
as there is no appeal by the respondents (legal heirs of Jitender).

8)    In this hue, we now revert back to the decision of the High  Court  in
respect of suit filed by Kanti (predecessor of appellant) which is  remanded
back to the trial court as noted above.  We are  of  the  opinion  that  the
aforesaid course of action adopted by the High Court in  respect  of  relief
claimed by Kanti in a suit is not appropriate.  In the suit  filed  by  him,
Kanti had pleaded that  after  the  execution  of  the  agreement,  Jitender
failed to perform his  obligation  contained  therein  as  he  defaulted  in
making the payment of balance consideration within the time stipulated.   On
that basis, the prayer made in the suit  was  that  the  amount  of  earnest
money under the agreement stood forfeited as the agreement had  become  non-
effective, null and  void  and  consequently  possession  of  part  of  suit
property held by Jitender was illegal which should be  handed  over  to  the
plaintiff.  Mesne profit was also claimed.  Second suit filed by  Kanti  was
specifically for mesne profit and for possession.  No case  was  set  up  by
Kanti that agreement was void because of the  reason  that  he  was  only  a
lessee in the suit property which was given to him  by  the  original  owner
Jeevandas for a period of 99 years and  as  he  had  not  become  the  owner
thereof,  the  agreement  was  in  the  nature  of  ‘contingent   contract’.
Obviously, no evidence was led by any of the parties to this effect  in  the
absence of pleadings.  Therefore, High Court could not, of its own,  set  up
a new case which was not a case pleaded by any of the parties.  The  liberty
to amend the pleadings which is given is  in  the  nature  of  allowing  the
appellant to come out with altogether a new case not even pleaded or  argued
before the High Court.  Such an amendment could not have been  allowed  even
if an application under Order VI Rule 17 CPC  was  filed  for  amending  the
plaint.  In fact, the appellant  had  not  even  sought  this  remedy.   The
decree passed by the High Court on this ground and direction  to  the  trial
court to dispose  of  the  case  afresh  after  allowing  amendment  in  the
pleadings and leading further evidence on amended pleadings  is,  therefore,
clearly erroneous in law.  We, thus, set aside this direction.

9)     In  the  suit  filed  by  Kanti  (predecessor  in  interest  of   the
appellant), his main reliefs were to declare agreement to sell as  void  and
for possession-cum-mesne profit.  Insofar as the first relief is  concerned,
this result stands achieved on the dismissal of the suit filed  by  Jitender
for specific performance and in view of the findings  of  the  courts  below
that Jitender failed to fulfill his obligations  under  the  said  agreement
and could not establish that he was ready and willing to  perform  his  part
of the contract.   The  only  question  is  as  to  whether  the  relief  of
possession could have been decreed.  The trial court had  decreed  the  suit
to this effect.  Against this decree,  respondents  had  filed  the  appeal.
The High Court has not dealt with that aspect and instead remitted the  case
back for fresh consideration, which direction has been set aside by us.
            Though, this issue was argued before us, however, we are of  the
opinion that it may not be proper for this Court  to  consider  this  aspect
inasmuch as this issue had arisen in the appeal of the  respondents  in  the
High Court  and  respondents  are  not  in  appeal  before  us.   It  would,
therefore, be more appropriate if the aforesaid  issue  is  decided  by  the
High Court.

10)   The appeal which was filed  by  the  respondents  against  the  decree
passed in Civil Suit  No.  4104  of  1982  is  accordingly  allowed.   While
setting aside the order of remand in Civil Suit No. 4104 of 1982  passed  by
the  High  Court,  the  High  Court  shall  deal  with  the  appeal  of  the
respondents against the decree of the Civil Court in Civil Suit No. 4104  of
1982 on  the  limited  question  of  possession  which  was  sought  by  the
appellant in the said suit.
            No costs.
                                     …....................................J.
                                                               (A.K.  SIKRI)


                                     …....................................J.
                                                             (ASHOK BHUSHAN)

NEW DELHI;
APRIL 13, 2017.

Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code and sought temporary injunction against the defendants restraining the defendants from transferring or alienating the suit property, dispossessing the plaintiff and making any construction over the suit property etc. during the pendency of the suit.- she being one of the daughters of Late Nandan Bhargava is entitled to claim her 1/6th share in the suit property and is also entitled to be placed in possession of her exclusive share by effecting partition amongst all the co-sharer by meets and bounds because Late Nandan Bhargava (her father) died intestate. The plaintiff has also questioned the legality of the sale made by the other co-sharers (legal representatives) in favour of the appellant.=The Trial Court vide order dated 10.04.2015 rejected the applications =The High Court by impugned order allowed the appeals and directed the parties to maintain status quo till final disposal of the suit.- While issuing notice in these appeals to the respondents, this Court on 08.06.2015 passed the following order: “Heard Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the petitioner and Mr. Parag Tripathi, learned senior counsel appearing for respondent No.1. Issue notice. Mr. E.C. Agrawala, learned counsel accepts notice for respondent no.1. As an interim measure, the effect and operation of the common impugned order dated 29.05.2015, passed by the High Court of Rajasthan, Bench at Jaipur, shall remain stayed during the pendency of these petitions subject to the condition that the petitioner shall not transfer or create any third party rights in respect of thirty flats proposed to be constructed on the property in question. Further, the concerned trial court is directed to decide the suit pending between the parties as expeditiously as possible.” It is true that finding recorded while considering grant of injunction is always considered prima facie in nature and is confined to the disposal of such interlocutory proceedings. They do not influence the decision which is eventually rendered in the suit on merits as the same is rendered on the basis of evidence which is adduced in the suit. However, we feel that having regard to the issues involved in the suit and the nature of directions which we propose to pass, it is proper in this case not to record any categorical finding either way. It is, however, made clear that the interim order dated 08.06.2015 would also be subject to the result of the civil suits and depending upon the outcome of the civil suits, the Trial Court will be at liberty to pass appropriate order of its modification, setting aside or revocation as the case may be.

    NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL Nos.              OF 2017
              (arising out of S.L.P.(c) Nos. 16610-11 of 2015)


M/s Akriti Land Con Pvt. Ltd.          ….Appellant(s)

                                   VERSUS

Krishna Bhargava & Ors.etc.etc.    .…Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    Leave granted.
2)    These appeals are filed by defendant  No.6  against  the  order  dated
29.05.2015 of the High Court of Judicature for Rajasthan,  Jaipur  Bench  at
Jaipur in Civil Misc. Appeal Nos. 1640 and 1641 of  2015  whereby  the  High
Court set aside and  quashed  the  order  dated  10.04.2015  passed  by  the
Additional District Judge No.4, Kota  in  Temporary  Injunction  Application
bearing Civil Misc. Case No.112 of 2014 in Civil  Suit  No.89  of  2014  and
Temporary Injunction Application bearing Civil Misc. Case No.37 of  2014  in
Civil Suit No. 21 of 2014 whereby the injunction applications filed  by  the
plaintiff/applicant (respondent No.1) were dismissed.
3)    In order to appreciate the issue  involved  in  these  appeals,  which
lies in a narrow compass, it is necessary to state few relevant facts  taken
from the appeal paper books.
4)    The appellant is defendant No. 6  whereas  respondent  No.  1  is  the
plaintiff and the remaining respondents are  the  defendants  in  the  civil
suits out of which these appeals arise.
5)    The dispute, which is the  subject  matter  of  the  civil  suits,  is
between the family members of one Bhargava family, who are sisters,  brother
and the mother - being the legal representatives of  Late  Nandan  Bhargava.
The appellant is the purchaser of the suit land from  some  members  of  the
family.
6)    The dispute relates to agricultural land  of  18  Bigha  11  Biswa  in
total bearing Khasra Nos. 68, 46, 51, 54, 53, 48, 50, 49  and  52  (now  re-
numbered as Khasra Nos. 92  to  111)  situated  at  Village  Khedli  Purohit
(Kota) Rajasthan and some houses situated at Jaipur/Kota as detailed in  the
plaints (hereinafter referred to as the "suit property").  So far  as  these
appeals are concerned, they relate to suit property only.
7)     Late Nandan Bhargava was the original owner of the suit property.  He
died on 28.10.1980 leaving behind his wife, four daughters and one  son.  On
his death, some legal representatives of Late Nandan Bhargava sold the  suit
land to the appellant. This gave rise  to  the  dispute  between  the  legal
representatives regarding the  extent  of  the  share  held  by  each  legal
representative, their exclusive possession over  their  share  in  the  suit
property, their rights to deal and sell the suit property etc.
8)    Respondent No. 1,  therefore,  filed  two  civil  suit  being  C.S  No
21/2014 and C.S. No. 89 of 2014 in the Court of  Additional  District  Judge
No. 4, Kota against respondent Nos. 2 to 8 and  the  appellant  herein.  The
suits are filed seeking therein the reliefs of  declaration  of  title  over
the suit property, partition,  cancellation  of  sale  deeds  and  permanent
injunction in relation to the suit property etc.  In substance, the case  of
respondent No. 1 (plaintiff) is that she being one of the daughters of  Late
Nandan Bhargava is entitled to claim her 1/6th share in  the  suit  property
and is also entitled to be placed in possession of her  exclusive  share  by
effecting partition amongst all the co-sharer by meets  and  bounds  because
Late Nandan Bhargava (her father) died intestate.  The  plaintiff  has  also
questioned the legality of the sale made  by  the  other  co-sharers  (legal
representatives) in favour of the appellant.
9)    The defendants have denied the plaintiff's  claim  and  justified  the
sale made by them. So far as the appellant is concerned, they  alleged  that
they being the bona fide purchaser  of  the  suit  land  for  value  without
notice of any prior claim of any one, their title to the  land  acquired  by
sale deed is unimpeachable and thus legal. Apart from  their  defenses,  the
respective defendants have also taken several other pleas on points  of  law
and facts in their written statements while opposing the suit  which  we  do
not consider it necessary to mention in detail here.
10)   The plaintiff also moved two applications under Order 39 Rules  1  and
2 read with Section 151 of the Civil Procedure  Code  and  sought  temporary
injunction  against  the  defendants   restraining   the   defendants   from
transferring or alienating the suit property,  dispossessing  the  plaintiff
and making any construction over the suit property etc. during the  pendency
of the suit.
11)   The defendants opposed the applications on several grounds. The  Trial
Court vide order dated 10.04.2015 rejected the applications which gave  rise
to filing of the two Misc. Appeals by the plaintiff before the High Court.
12)   The High Court by impugned order allowed the appeals and directed  the
parties to maintain status quo till final disposal of the  suit.  A  further
direction was given to the Trial Court to ensure final disposal of the  suit
within 9 months. Felt aggrieved, defendant No.6 is  in  appeals  by  special
leave before this Court.
13)   While issuing notice in these appeals to the respondents,  this  Court
on 08.06.2015 passed the following order:
“Heard Dr. Abhishek Manu Singhvi, learned senior counsel appearing  for  the
petitioner and Mr. Parag Tripathi,  learned  senior  counsel  appearing  for
respondent No.1.  Issue notice. Mr. E.C. Agrawala, learned  counsel  accepts
notice for respondent no.1. As an interim measure, the effect and  operation
of the common impugned order dated 29.05.2015, passed by the High  Court  of
Rajasthan, Bench at Jaipur, shall  remain  stayed  during  the  pendency  of
these petitions subject to the  condition  that  the  petitioner  shall  not
transfer or create any  third  party  rights  in  respect  of  thirty  flats
proposed to be  constructed  on  the  property  in  question.  Further,  the
concerned trial court is directed to decide the  suit  pending  between  the
parties as expeditiously as possible.”

14)   We have heard the learned senior counsel for  the  parties  at  length
and also perused the record of  the  case.  Having  heard,  we  are  of  the
considered view that it would  be  just,  proper  and  in  the  interest  of
justice that the civil suits out of which these  appeals  arise  itself  are
disposed of on merits in accordance  with  law  expeditiously  as  has  been
directed by the High Court in the impugned order. The reason is that if  any
observations are made by this  Court  while  deciding  the  appeals  on  its
merits, they would cause prejudice  to  the  rights  of  the  parties  while
prosecuting the civil suit on merit.

15)    It  is  true  that  finding  recorded  while  considering  grant   of
injunction is always considered prima facie in nature  and  is  confined  to
the disposal of such interlocutory proceedings.  They do not  influence  the
decision which is eventually rendered in the suit on merits as the  same  is
rendered on the basis of evidence which is adduced in  the  suit.   However,
we feel that having regard to the  issues  involved  in  the  suit  and  the
nature of directions which we propose to pass, it is  proper  in  this  case
not to record any categorical finding either way.
16)   We, therefore, refrain from recording any categorical finding  on  any
of the contentious issues arising in the  case  and  which  were  vehemently
pressed in service before this Court by the learned counsel  in  support  of
their case and accordingly direct the Trial Court to expedite the  trial  of
the civil suits out of which these appeals arise preferably within one  year
as an outer limit on merits in accordance with law.
17)   Needless to say,  the  Trial  Court  would  not,  in  any  manner,  be
influenced by any observation made by the High Court in the  impugned  order
and by this Court and would decide the civil suits  on  merits  strictly  in
accordance with law on the basis of pleadings and the evidence that  may  be
adduced by the parties in support of their respective case in the suits.
18)   As mentioned above, while issuing  notice  of  these  appeals  to  the
respondents, this Court has  passed  an  interim  order  on  08.06.2015.  We
accordingly direct that the order dated 08.06.2015 would continue to  remain
in operation till the suits are finally decided as directed above.
19)   It is, however, made clear that the  interim  order  dated  08.06.2015
would also be subject to the result of the civil suits  and  depending  upon
the outcome of the civil suits, the Trial Court will be at liberty  to  pass
appropriate order of its modification, setting aside or  revocation  as  the
case may be.
20)   With the aforesaid directions, the appeals are disposed of.


……...................................J.
                                [R.K. AGRAWAL]


     ……..................................J.
                                   [ABHAY MANOHAR SAPRE]
      New Delhi;
April 13, 2017


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10

this being a simple suit for grant of permanent injunction between the two private parties in relation to the land which was subject matter of the State Ceiling Laws, was liable to be dismissed on the short ground apart from many others as detailed above that any order that may be passed by the Civil Court would adversely affect and interfere in the rights of the State under the Act, which had not been impleaded as party defendant. = It is a settled principle of law that in order to claim prohibitory (temporary or permanent) injunction, it is necessary for the plaintiff to prima facie prove apart from establishing other two ingredients, namely, irreparable loss and injury that his possession over the suit land is "legal". In this case, it was not so and nor it could be for the simple reason that as far back on 21.08.1976, the Tribunal had already declared the land held by the plaintiff to be in excess of the ceiling limits prescribed under the Act. In these circumstances, the plaintiff was neither holding the land nor could he be held to be in its lawful possession so as to enable him to exercise any ownership rights against any other private party over the suit land. The appellant had then very limited rights left to exercise under the Act in relation to the suit land and such rights were available to him only against the State= in order to limit filing of such frivolous suits by the private parties in relation to agricultural land which are subjected to the State ceiling laws, the State of M.P. amended the Code of Civil Procedure by Act No. 29 of 1984 w.e.f. 14.8.84. By this State amendment, Rule 3-B was added in Order 1 Rule 10 making it obligatory upon the plaintiff to implead the State as party defendant along with private party defendant in every such suit. The amendment further provides that so long as the plaintiff does not implead the State as party defendant in the suit, the Court will not proceed with the trial of the Suit. The object behind introducing such amendment was to give notice to the State of filing of such suit by the holder of the agricultural land which would enable the State to defend their rights, which had accrued in State's favour in the land under the Act. In the absence of any such rule in operation in the State of A.P., the State remained unnoticed of the suit proceedings, which continued in Courts for last more than two decades. Before parting, we consider it apposite to state that the appellant and the respondents made frantic efforts to somehow retain the suit land to them and keep the land away from the clutches of The Act. With this aim in view, they got the suit land involved in this litigation since 1976. All this was done without notice to the State Authorities. We, therefore, direct the Tribunal to take up the case of the appellant on its Board and pass appropriate consequential order, if necessary under the Act keeping in view the order dated 21.08.1976 of the Tribunal passed in CC No. 2311/VKD/75 and take all remedial steps as are necessary in relation to the land held by the appellant including the suit land.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.5817 OF 2012


      Agnigundala Venkata Ranga
      Rao                                    ….Appellant(s)

                                   VERSUS

      Indukuru Ramachandra Reddy
      (Dead) by LRs. & Ors.            .…Respondent(s)



                               J U D G M E N T
     Abhay Manohar Sapre, J.
      1)    This appeal by certificate is filed by the plaintiff against the
      final judgment and  order  dated  28.10.2011  of  the  High  Court  of
      Judicature, Andhra Pradesh at Hyderabad in Appeal Suit No.4141 of 2003
      whereby  the  High  Court  allowed  the  appeal   preferred   by   the
      defendants(respondents herein) and reversed  the  final  judgment  and
      decree  dated  22.09.2003  of  the  Additional  Senior  Civil   Judge,
      Narasaraopet in Original Suit No. 98 of 1998.
      2)    In order to appreciate the issue involved in the  appeal,  which
      lies in a narrow compass, it is necessary to state few relevant  facts
      taken from the appeal paper books.
      3)    The appellant is the plaintiff whereas the respondents  are  the
      defendants in the civil suit out of which this appeal arises.
      4)    The subject  matter  of  this  appeal  is  an  agriculture  land
      measuring Ac.13.38 cents in Survey No.  436  and  Ac.  9.38  cents  in
      Survey No. 826 (total land-22 acres 76 cents) situated in -Agnigundala
      Village of Ipur Mandal, District Guntur  Andhra  Pradesh  (hereinafter
      referred to as the "suit land”).
      5)    The appellant owned several acres of  agriculture  lands,  which
      also included the suit land. The Andhra Pradesh Land Reforms  (Ceiling
      on Agricultural Holdings) Act,  1973   (for  short,   “the  Act”)  was
      enacted on  01.01.1973.   It  came  into  force  on  01.01.1975.   The
      appellant being a  "person" as defined under Section 3(o) of  the  Act
      and was holding the land in excess of the limits prescribed under  the
      Act filed a declaration in respect of his holding before the  Tribunal
      as required under Section 7 of the Act. During  the  pendency  of  his
      case before the Tribunal, the appellant sold the suit land  vide  sale
      deed dated 16.07.1975 to the respondents. The sale deed,  inter  alia,
      recited that the appellant has also delivered possession of  the  suit
      land to the respondents. Respondent No. 1 then mortgaged the suit land
      along with his other lands to the State Bank  of  India  and  obtained
      loan wherein the appellant had stood as the guarantor.
      6)     The  Tribunal,  on  21.08.1976,   passed   an   order   in   CC
      No.2311/VKD/75 under Section 7 of the Act and held inter alia that the
      appellant was holding the land in excess of the limits  prescribed  in
      the Act. It was further held that so far as the transfer of  the  suit
      land made by the appellant in favour of the respondents vide sale deed
      dated 16.07.1975 is concerned,  the  same  was  void  because  it  was
      effected by the appellant after the Act had come into force which  was
      prohibited under Section 7(2) read with Section 17  of  the  Act.  The
      appellant was, therefore, directed to surrender the excess  land  held
      by him in favour of the State as provided in the Act.
      7)    In 1995-1998, i.e., almost after 2 decades from the date of  the
      order of the Tribunal (21.08.1976), another litigation  began  between
      the appellant and the respondents in relation to the suit  land.  This
      was under the provisions of the Andhra  Pradesh  Rights  in  Land  and
      Pattadar Pass Books Act, 1971 (for short, "the Act of 1971 ")  wherein
      the issue was whose name - the appellant or the respondents be entered
      in the Pass Book in relation  to  the  suit  land  as  Pattadar.  This
      litigation  ended  in  appellant's  favour  by  the  orders   of   the
      revisionary Court.
      8)    On 29.10.1998, i.e., almost after 22 years from the date of  the
      Tribunal’s  order  (21.08.1976)  the  appellant  filed  a  civil  suit
      (O.S.No. 98/1998) against the respondents before the Additional Senior
      Civil Judge, Narsaraopet out of which this appeal arises. The suit was
      for permanent injunction in relation to  the  suit  land  against  the
      respondents. It was essentially founded on the  allegations  that  the
      appellant is the owner of the  suit  land  to  the  exclusion  of  all
      persons including the respondents, who have no right to  interfere  in
      the appellant's possession over the suit land. It was averred that the
      appellant has been and continues to remain in possession of  the  suit
      land and since  the  respondents  are  threatening  the  appellant  to
      dispossess him from the suit land, hence he was  constrained  to  file
      the civil suit seeking permanent injunction  against  the  respondents
      restraining them from interfering in appellant’s  peaceful  possession
      over the suit land.
      9)    The respondents  filed   written  statement.   They  denied  the
      appellant's claim and set up a title in themselves over the suit land.
       It was contended that the respondents purchased the  suit  land  from
      the appellant vide sale deed dated 16.07.1975 and since then they have
      been in its possession. It  was  contended  that  the  respondents  on
      purchase of the suit land obtained the loan from S.B.I  and  mortgaged
      it with the Bank by way of security for the loan taken.  It  was  also
      contended that the appellant is estopped from raising  any  contention
      once he sold the suit land to the respondents and stake any claim over
      the suit land.
      10)   The Trial Court, on the basis of pleadings,  framed  two  issues
      viz., (1) whether the plaintiff (appellant) is in lawful possession of
      the suit land; and (2) whether the plaintiff (appellant)  is  entitled
      for injunction as prayed for?
      11)   The Trial Court vide judgment/decree  dated  22.09.2003  decreed
      the plaintiff's suit. It was held that the sale made by the  appellant
      to the respondent of the suit land vide sale deed dated 16.07.1975 (Ex-
      B-1) is null and void being in contravention of Section 17 of the Act.
      It was held that such sale, even if made, did not  convey  any  right,
      title and interest in respondents’ favour. It was  further  held  that
      the plaintiff is in lawful possession of the suit land as he was  able
      to prove his actual possession on the basis of evidence adduced by him
      and hence was  entitled  to  seek  permanent  injunction  against  the
      respondents  restraining  the  respondents  not  to   dispossess   the
      appellant from the suit land.
      12)   Felt aggrieved, the defendants (respondents) filed first  appeal
      before the High Court. By impugned  judgment  and  order,  the  Single
      Judge of the High Court allowed the appeal and while setting aside the
      judgment/decree of the Trial Court dismissed the suit.  The  plaintiff
      (respondent before the High Court) then orally prayed  to  the  Single
      Judge to grant leave to file appeal to this Court (Supreme  Court)  as
      provided under Article 134-A(b)  of  the  Constitution.   The   Single
      Judge granted "leave" to the plaintiff as prayed.  This  is  how  this
      appeal is brought before this Court on the strength of the certificate
       granted by the High Court.
      13)   Heard Mr. V.V.S.Rao, learned senior counsel  for  the  appellant
      and  Mr.  B.  Adinarayana  Rao,  learned  senior   counsel   for   the
      respondents.  We also perused the written  submissions  filed  by  the
      parties.
      14)   Learned senior counsel  for  the  appellant  (plaintiff),  while
      assailing the legality  and  correctness  of  the  impugned  judgment,
      contended that the High Court (Single Judge) erred  in  reversing  the
      judgment/decree passed by the  Trial  Court.  The  submission  of  the
      learned counsel, in substance, was that  the  judgment  of  the  Trial
      Court, which had rightly  decreed  the  appellant’s  suit,  should  be
      restored. It is this submission, which learned counsel  elaborated  by
      pointing out various provisions of the two Acts and the  exhibits  and
      findings of the two courts below.
      15)   In reply, learned senior counsel for the  respondents  supported
      the impugned judgment and contended  that  no  case  is  made  out  to
      interfere in the impugned  order  and  hence  appeal  deserves  to  be
      dismissed.
      16)   Before we consider the merits of the case,  it  is  apposite  to
      deal with one question which though arises, was not argued by pointing
      out the relevant provisions governing the question.
      17)   As mentioned above,  this  appeal  is  filed  on  a  certificate
      granted by the High Court (Single Judge) on the oral application  made
      by the appellant immediately after the pronouncement of  the  impugned
      judgment as provided under Article 134-A of  the  Constitution.    The
      order granting certificate is a part of the impugned judgment  in  its
      concluding Para which reads thus:
           “Learned counsel for the respondent seeks leave of this Court to
           prefer an appeal against this judgment.
                 Accordingly, leave is granted.”


      18)   What is the true interpretation of Articles 133 and 134-A of the
      Constitution and who can grant the certificate of fitness to appeal to
      the Supreme Court remains no more res integra. It is  settled  by  the
      decision of this Court in  State Bank  of  India  &  Anr.  Vs.  S.B.I.
      Employees’ Union & Anr., 1987 (4) SCC 370.
      19)   The facts of this case and the one  involved  in  the  SBI  case
      (supra) are somewhat similar  wherein  Their  Lordships  examined  the
      issue as to whether the certificate granted by the High Court  (Single
      Judge) satisfied the requirements contained in Articles 133 and 134-A.
      Justice Venkataramiah (as His Lordship then was and later became  CJI)
      speaking for the Bench held thus:
           2. The certificate  contemplated  under  Article  134-A  of  the
           Constitution can only be a certificate which is referred  to  in
           clause (1) of Article 132 or in clause (1) of Article 133 or  in
           sub-clause (c) of clause (1) of Article 134 of the Constitution.
           This is quite obvious from the language of Article 134-A of  the
           Constitution. This case  does  not  fall  either  under  Article
           132(1) or under sub-clause (c) of Article 134(1) as  it  neither
           involves a substantial question of law as to the  interpretation
           of the Constitution nor it is a criminal proceeding. It can only
           fall, if at all,  under  Article  133(1)  of  the  Constitution.
           Article 133 of the Constitution reads thus:
                 “133. (1) An appeal shall lie to the Supreme Court from any
                 judgment, decree or final order in a civil proceeding of  a
                 High Court in the territory of  India  if  the  High  Court
                 certifies under Article 134-A—
                 (a) that the case involves a substantial question of law of
                 general importance; and
                 (b) that in the opinion of the High Court the said question
                 needs to be decided by the Supreme Court.
                 (2) Notwithstanding anything  in  Article  132,  any  party
                 appealing to the Supreme Court under clause (1) may urge as
                 one of the  grounds  in  such  appeal  that  a  substantial
                 question  of  law  as  to  the   interpretation   of   this
                 Constitution has been wrongly decided.
                 (3) Notwithstanding anything in  this  article,  no  appeal
                 shall, unless Parliament by law otherwise provides, lie  to
                 the Supreme Court from the judgment, decree or final  order
                 of one judge of a High Court.”
           3. Clause (3) of Article 133 says that notwithstanding  anything
           in that article  no  appeal  shall,  unless  Parliament  by  law
           otherwise provides, lie to the Supreme Court from the  judgment,
           decree or final order of one judge of the High Court. Before the
           introduction of Article 134-A of the Constitution by the  Forty-
           fourth Amendment  of  the  Constitution  there  was  no  express
           provision in Articles 132,  133  and  134  of  the  Constitution
           regarding the time and manner in  which  an  application  for  a
           certificate under any of those articles could be made before the
           High Court. There was also a doubt as to the power of  the  High
           Court to issue  a  certificate  suo  motu  under  any  of  those
           articles. Article 134-A  was  enacted  to  make  good  the  said
           deficiencies. Article 134-A does not constitute  an  independent
           provision under  which  a  certificate  can  be  issued.  It  is
           ancillary  to  Article  132(1),  Article  133(1)   and   Article
           134(1)(c) of the Constitution. That is the reason for the use of
           words “if the High  Court  certifies  under  Article  134-A”  in
           Article 132(1) and Article 133(1) and for the use of  the  words
           certifies under Article 134-A in  Article  134(1)(c).  The  High
           Court can issue a certificate only when it is satisfied that the
           conditions in Article 132 or Article 133 or Article 134  of  the
           Constitution as the case may be are satisfied.  In  the  instant
           case such a certificate could not have been issued by reason  of
           clause (3) of Article 133 of the  Constitution  by  the  learned
           Single Judge.


           4. The fact that in a similar case a certificate had been issued
           by a Division Bench of the High Court consisting of  two  judges
           in a case decided by the Division  Bench  did  not  empower  the
           Single Judge to issue the certificate under  Article  133(1)  of
           the Constitution in a  case  decided  by  him.  The  restriction
           placed by clause (3) of Article 133 of  the  Constitution  could
           not be got over by relying upon the order of the Division Bench.


           5. We, therefore,  revoke  the  certificate.  This  petition  of
           appeal may, however, be treated  as  a  special  leave  petition
           under Article 136 of the Constitution and posted for preliminary
           hearing.”




      20)   In our considered opinion, the  law  laid  down  in  S.B.I  case
      (supra) would squarely apply to  the  case  at  hand  because  in  the
      instant case also,  the  impugned  judgment  and  the  certificate  of
      fitness to file an appeal was passed by the  Single Judge of the  High
      Court.
      21)   As held in S.B.I. case, such certificate/leave  could  not  have
      been issued/granted by the  Single Judge by reason of  clause  (3)  of
      Article 133 of the Constitution. In other words, the Single  Judge  of
      the High Court had no jurisdiction to grant certificate in  the  light
      of restrictions  contained  in  clause  (3)  of  Article  133  of  the
      Constitution.
      22)   We, therefore, revoke the certificate  granted  by  the   Single
      Judge of the High Court.  However, this appeal is treated as a special
      leave petition under Article 136 of the Constitution as  was  done  by
      this Court in S.B.I case (supra).  Leave is accordingly granted.
      23)    Coming now to the merits of the case, the short question, which
      arises for consideration in this appeal and  which  was  also  debated
      before the two Courts below, is who was in possession of the suit land-
       the appellant or the respondents on the date of filing  of  the  suit
      and whether the appellant (plaintiff) was entitled to claim  permanent
      injunction against the respondents(defendants) in relation to the suit
      land.
      24)   The  Trial  Court  held  the  appellant  (plaintiff)  to  be  in
      possession  of  the  suit  land  and  accordingly  granted   permanent
      injunction restraining the respondents (defendants)  from  interfering
      in the appellant's possession over the  suit  land  whereas  the  High
      Court in an appeal filed by the respondents reversed  the  finding  of
      the Trial Court and dismissed the suit giving rise to filing  of  this
      appeal by the plaintiff on certificate.
      25)   One cannot dispute the legal proposition being well settled that
      the question as to who is  in  possession  of  the  suit  property  is
      essentially a question of  fact.  Such  question  is  required  to  be
      decided on appreciation of evidence adduced by the parties in  support
      of their respective  contentions.  Once  the  Trial  Court  renders  a
      finding either way and the same  is  then  appreciated  by  the  first
      appellate Court  in  exercise  of  its  appellate  jurisdiction,  such
      finding is usually held binding on the second appellate Court and this
      Court.
      26)   It is only when such finding of fact is found to be against  the
      pleading or evidence or any provision of law or when it is found to be
      so perverse or/and arbitrary to the extent that no judicial person  of
      an average capacity can ever record, the same would not be binding  on
      the higher Courts and may in appropriate case call for interference.
      27)   Coming to the facts of  the  case,  we  are  of  the  considered
      opinion, that the appellant (plaintiff) simply abused the  process  of
      law in filing the suit for permanent injunction  in  relation  to  the
      suit land against the respondents.  The  suit,  in  our  opinion,  was
      misconceived and deserved  dismissal  on  facts  and  in  law  on  the
      grounds, which are indeed apparent on the face of the  record  of  the
      case as mentioned below.
      28)   Firstly, the legal effect of the coming into force  of  the  Act
      was that on and after 01.01.1975 (notified date), the appellant  being
      the holder of agriculture lands had no right to sell  or/and  transfer
      the suit land whether for consideration or otherwise. In other  words,
      the sale/transfer of agriculture land by the holder of  the  land  was
      prohibited on and after -01.01.1975 by virtue of the provisions of the
      Act. In this view of the matter, the sale made by the  appellant  vide
      sale deed dated 16.07.1975 in favour of the respondents in relation to
      the suit land was null and void.
      29)    Secondly, the Tribunal having rightly held in the  order  dated
      21.08.1976 that  the  sale  deed  dated  16.07.1975  executed  by  the
      appellant in favour of the respondents was null and  void  because  it
      was made in contravention of the provisions of the Act  and  secondly,
      having held that the appellant's total holding was in  excess  of  the
      ceiling limits prescribed in the Act, the suit land was not  available
      to the appellant for its disposal. Indeed its disposal could  be  done
      only  in  accordance  with  the  provisions  of  the  Act   with   the
      intervention of the State.
      30)   That apart, one of the legal effects that ensued consequent upon
      passing of the order by the Tribunal dated  21.08.1976  was  that  the
      character of the suit land had changed. It was then in the  nature  of
      "surrendered" or  "deemed surrendered" land in favour of the State  as
      prescribed under Sections 10 and 11 and other  related  provisions  of
      the Act.
      31)   Thirdly, the litigation, which had ensued during 1995-98 between
      the appellant and the respondents under  "The Act of 1971" in relation
      to the entries of their  names  in  the  revenue  record  (Pass  Book)
      pertaining to the suit land was neither of any consequence and nor was
      of any significance and nor had any impact on the present  litigation.
      It was for the reason that Section 28 of the Act that gives overriding
      effect to the provisions of the Act  on  all  those  laws,  which  are
      inconsistent with the provisions of the Act, had applied to this case.
      The Act of 1971 is one such law and, therefore, any order passed under
      the Act of 1971 in relation to the suit land was of no  avail  to  any
      party and nor it could have been made basis for determining the  issue
      of possession of any party over the suit land  while  considering  the
      grant of injunction.
      32)   In other words, no benefit of  the  order(s),  even  if  passed,
      under  the Act 1971 could be taken by the parties either  way  against
      each other in these proceedings by virtue of Section 28  of  the  Act.
      Moreover, in our considered view, no proceedings under  the  Act  1971
      could either be initiated or be pursued by  the  appellant/respondents
      in relation to the suit  land  after  the  Act  had  come  into  force
      (01.01.1975). Even the proceedings under the Act of 1971 were  subject
      to the final outcome of the proceedings under the Act.
      33)   Fourthly, the appellant did not come to  the  Civil  Court  with
      clean hands inasmuch as he suppressed the material fact  that  he  had
      already sold the suit land much prior to filing of  the  Suit  to  the
      respondents and, therefore, had no subsisting  interest  in  the  suit
      land. Indeed filing of the civil suit by  the  appellant  (29.10.1998)
      almost after 22 years from the date of passing of  the  order  by  the
      Tribunal (21.08.1976) was totally uncalled for.  In  fact,  it  was  a
      collusive suit filed to frustrate the rights of the  State  which  had
      accrued in State’s favour in the suit land  by  virtue  of  the  order
      dated 21.08.1976 read with the provisions of the Act.  Such  frivolous
      suit, in our considered opinion, deserved rejection at its threshold.
      34)   Fifthly, the Trial Court and the High Court having held  on  the
      strength of Tribunal's finding recorded in the order 21.08.1976  which
      has attained finality that the appellant was not the owner of the suit
      land, the respondents  too  did  not  acquire  any  right,  title  and
      interest in the suit land through sale deed dated 16.07.1975. It being
      a settled principle of law that  a  person  can  transfer  only  those
      rights, which he has in the property and cannot transfer  any  rights,
      which he does not have would apply to this case.
      35)   In other words, when the appellant was  prohibited  to  transfer
      any of his rights, title and interest in the suit land  by  virtue  of
      the provisions of the Act to any person - a fortiori, the  respondents
      too could not acquire any rights, title and interest in the suit  land
      through sale deed dated 16.07.1975 from the appellant and he too  was,
      therefore, in the same position like that of the appellant.
      36)   Seventhly, once the appellant's rights in the  suit  land  stood
      determined by the Tribunal vide its order dated 21.08.1976  under  the
      Act, there did not arise any occasion to hold the appellant to  be  in
      “lawful possession" of the suit land on the date of filing of the suit
      (29.10.98) for considering grant of  injunction  over  the  suit  land
      against the respondents.
      37)    It is a settled  principle  of  law  that  in  order  to  claim
      prohibitory (temporary or permanent) injunction, it is  necessary  for
      the plaintiff to prima facie prove apart from establishing  other  two
      ingredients, namely, irreparable loss and injury that  his  possession
      over the suit land is "legal".  In this case, it was not so and nor it
      could be for the simple reason that as far  back  on  21.08.1976,  the
      Tribunal had already declared the land held by the plaintiff to be  in
      excess of the ceiling  limits  prescribed  under  the  Act.  In  these
      circumstances, the plaintiff was neither holding the land nor could he
      be held to be in its lawful possession so as to enable him to exercise
      any ownership rights against any other private  party  over  the  suit
      land. The appellant had then very  limited  rights  left  to  exercise
      under the Act in relation to  the  suit  land  and  such  rights  were
      available to him only against the State. Such is not the case here.
      38)   Lastly,  this  being  a  simple  suit  for  grant  of  permanent
      injunction between the two private parties in  relation  to  the  land
      which was subject matter of the State Ceiling Laws, was liable  to  be
      dismissed on the short ground apart from many others as detailed above
      that any order that may be passed by the Civil Court  would  adversely
      affect and interfere in the rights of the State under the  Act,  which
      had not been impleaded as party defendant.
      39)   Learned counsel  for  the  appellant  took  us  to  the  various
      documents including orders of the Revenue authorities to show that  it
      was the plaintiff who was in possession of the suit land on  the  date
      of filing of the suit as was rightly held  by  the  Trial  Court  and,
      therefore, this Court should restore the finding of the Trial Court.
      40)    We are afraid we cannot re-appreciate  the  documentary  or/and
      oral evidence again in our appellate jurisdiction. Firstly,  it is not
      permissible for want of any case made out to that effect and secondly,
      it is not considered necessary in the  light  of  what  we  have  held
      above.
      41)   Learned counsel for the appellant  placed  reliance  on  several
      decisions in support of his submission such as Nagubai  Ammal  &  Ors.
      vs. B. Shama Rao & Ors., AIR 1956 SC 593,  Bhagwati  Prasad  vs.  Shri
      Chandramaul, AIR 1966 SC 735, Pinninti Kishtamma &  Ors.  vs.  Duvvada
      Parasuram Chowdary & Ors. 2010 (2) SCC 452, State of  Tamil  Nadu  vs.
      Ramalinga Samigal Madam, 1985 (4) SCC 10, Annamreddi  Bodayya  &  Anr.
      vs. Lokanarapu Ramaswamy(Dead) by L.Rs. 1984 Suppl SCC  391,  Anathula
      Sudhakar vs. P. Buchi Reddy(D) by L.Rs., 2008 (4)  SCC  594,  Rajendra
      Singh & Ors. vs. State of U.P. & Ors., (1998) 7 SCC  654  and  Karnail
      Singh vs. State of Haryana & Anr., (1995) Suppl(3) SCC  376.  We  have
      perused  these  decisions  and  find  no  quarrel  with  the   general
      proposition of law laid down therein. In our view, all  the  decisions
      cited are distinguishable on facts and hence have  no  application  to
      the facts of this case.
      42)   It is pertinent to mention that in order to limit filing of such
      frivolous suits by the private parties  in  relation  to  agricultural
      land which are subjected to the State ceiling laws, the State of  M.P.
      amended the Code of Civil Procedure by  Act  No.  29  of  1984  w.e.f.
      14.8.84. By this State amendment, Rule 3-B was added in Order  1  Rule
      10 making it obligatory upon the plaintiff to  implead  the  State  as
      party defendant along with private party defendant in every such suit.
      The amendment further provides that so long as the plaintiff does  not
      implead the State as party defendant in the suit, the Court  will  not
      proceed with the trial of the Suit. The object behind introducing such
      amendment was to give notice to the State of filing of  such  suit  by
      the holder of the agricultural land which would enable  the  State  to
      defend their rights, which had accrued in State's favour in  the  land
      under the Act.
      43)   In the absence of any such rule in operation  in  the  State  of
      A.P., the State remained unnoticed  of  the  suit  proceedings,  which
      continued in Courts for last more than two decades.
      44)   In view  of  foregoing  discussion,  we  uphold  the  conclusion
      arrived at by the High Court  on  our  reasoning  given  supra.  As  a
      consequence, the appeal fails and is accordingly dismissed.
      45)   Before parting, we  consider  it  apposite  to  state  that  the
      appellant and the respondents made frantic efforts to  somehow  retain
      the suit land to them and keep the land away from the clutches of  The
      Act.  With this aim in view, they got the suit land involved  in  this
      litigation since 1976. All this was done without notice to  the  State
      Authorities.
      46)   We, therefore,  direct the Tribunal to take up the case  of  the
      appellant on its Board and pass appropriate  consequential  order,  if
      necessary under the Act keeping in view the order dated 21.08.1976  of
      the Tribunal passed in  CC No. 2311/VKD/75 and take all remedial steps
      as are necessary in  relation  to  the  land  held  by  the  appellant
      including the suit land.
      47)   Registry is directed to  send  a  copy  of  this  order  to  the
      concerned Tribunal.


                           …...……..................................J.
                                [ABHAY MANOHAR SAPRE]


                           ………...................................J.
                                  [NAVIN SINHA]
      New Delhi;
      April 13, 2017