The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence, the view which is favourable to the accused should be adopted. However, the paramount consideration of the court is to ensure that miscarriage of justice is prevented as noted in the Judgment of this Court in V.N. Ratheesh v. State of Kerala (2006) 10 SCC 617. We are of the considered view that the High Court has rightly found that the finding recorded by the trial court was unreasonable and perverse and reversed the order of acquittal passed by the trial Court. The appeals, therefore, lack merits and the same are dismissed.

' 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.911 OF 2007


HABIB .. Appellant
Versus
STATE OF UTTAR PRADESH .. Respondent

WITH

CRIMINAL APPEAL No.915 OF 2007


MANUWA .. Appellant
Versus
STATE OF UTTAR PRADESH .. Respondent



J U D G M E N T




K. S. Radhakrishnan, J

1. The appellants herein were charge-sheeted for the offences
punishable under Section 302 of the Indian Penal Code. The accused Habib
was charge-sheeted under Section 302 IPC and the remaining two accused
persons including Manuwa were charge-sheeted under Section 302 read with 34
IPC, however, Manuwa was also charge-sheeted under Section 307 IPC as well.


2. The trial court after appreciating the oral as well as documentary
evidence acquitted all the accused persons vide its judgment dated
3.10.2008. Aggrieved by the said order the State preferred G.A. No.114 of
1982 before the High Court of judicature at Allahabad. The High Court,
vide its judgment dated 23.3.2007 confirmed the acquittal of the accused
Bhappa but acquittal of Habib and Manuwa was set aside. Habib was found
guilty and convicted for the offences punishable under Section 302 IPC and
accused Manuwa was convicted under Section 302 read with Section 34 IPC.
Aggrieved by the said order Habib has filed Criminal Appeal No.911 of 2007
and Manuwa has filed Criminal Appeal No.915 of 2007.


3. The prosecution story is that Sammo, daughter of deceased Fakira
and sister of Hamid (PW 1) - complainant was married to Habib, one of the
accused. Sammo left the matrimonial home due to demand of dowry. Later PW
1 settled her marriage with another person but the nikah was not performed
since no divorce was obtained from her husband-accused Habib. The
prosecution version is that on 13.1.1981 at about 6.30 PM PW 1 Hamid
accompanied by his father Fakira (deceased), his brother Rafique, servant
Ashraf and other person namely Kailash Chandra were proceeding to a place
Goverdhan along with cattle through a canal road. The accused Manuwa, his
son Habib, appellants herein, and his brother Bhappa met PW 1 and others on
the way and enquired about their destination. PW 1 informed that they are
going to Goverdhan for cattle business. On seeing them, accused Manuwa
instigated his sons Habib and Bhappa to challenge PW 1 and others. Manuwa
himself opened fire with a view to kill Fakira, but it did not hit Fakira,
Habib also opened fire and shot Fakira at his neck and he fell down and
died on the spot. PW1 Hamid lodged a report to the police station
Goverdhan, Mathura on 13.1.1981 at about 8.45 PM. Thereafter a case Crime
No.13 under Section 302 IPC was registered. The case was tried by the
Sessions Judge, Mathura. Prosecution, in order to bring home the charge,
examined PW 1 Hamid, the informant, PW 2 Rafique, brother of the deceased,
PW 3 Kailash Chandra, eye-witness to the murder, PW 4 Radhey Shayam, head
constable, PW 5 Ram Kheladi, constable, PW 6 Dr. K.K. Khanna, CMO of
Mathura to prove the post-mortem report, prepared by Dr. K.K. Seth. PW 7
Brijpal Singh - Investigating Officer and PW 8 Bankey Lal, constable. On
the side of the defence, accused examined Abdul as DW1 and Rajendra Prasad
Pandey as DW2.


4. Sessions Court after appreciating the oral and documentary evidence
acquitted all the accused persons and on appeal preferred by the State, the
High Court reversed the judgment of the trial court and, as already stated,
convicted the accused persons and sentenced them to undergo imprisonment
for life.


5. Mr. M.Z. Chaudhary, learned counsel appearing for the appellants
submitted that the High Court has committed a serious error in reversing
the order acquittal which was passed by the trial court after appreciating
the oral and documentary evidence adduced by the prosecution as well as by
the defence. He submitted that eHeHevarious circumstances pointed out by
the trial court in disbelieving the evidence of the prosecution witnesses
should not have been disturbed by the High court and no reason exist to do
so. Learned counsel also pointed out that the eye-witnesses are closely
related and there are possibilities of false implication due to some grudge
entertained by the deceased and the complainant against the accused persons
since PW 1's sister was married to Habib.


6. Sammo, sister of Hamid, as already stated, was married to accused -
Habib, son of Manuwa and the third accused Bhappa is real brother of Manuwa
and uncle of Habib. Sammo left the matrimonial home due to strained
relationship with Habib, the accused. Prior to the incident the deceased
and PW 1 had settled the marriage of Sammo with somebody before getting
divorce from Habib. The motive for the murder was the strained relationship
between the accused persons and PW 1 and the deceased. It is settled legal
position that if there is direct trustworthy evidence of witnesses as to
the commission of offence, motive part loses its significance. Therefore,
if the genesis of the occurrence is proved, the ocular testimony of the
witnesses could not be discarded only by the reason of the absence of
motive, if otherwise the evidence is worthy of reliance. This legal
position has been settled by this Court in its Judgment in Sheo Shankar
Singh v. State of Jharkhand (2011) 3 SCC 654 and Bipin Kumar Mondal v.
State of West Bengal (2010) 12 SCC 91.


7. We are of the view that the mere fact that PW 1 Hamid, PW 2 Rafique
are son and brother of the deceased, that itself is not a ground to
disbelieve their evidence. Both, PW 1 and PW 2 have, categorically stated
that the first shot was fired by Manuwa but missed his aim and it was Habib
who fired the fateful shot at the neck of the deceased and thereafter three
culprits ran away from the spot. Prosecution also placed reliance on the
testimony of PW 3, Kailash Chandra who is a co-villager of the informant
and he fully corroborated the testimony of other witnesses regarding the
part played by the three accused persons in the commission of crime. We
have gone through the depositions of PW1, PW2, PW3 and nothing could be
brought out in the corss-examination to discredit their statement.


8. We are of the view, the mere fact that PW1 and PW2 are interested
witnesses being relatives is not a reason to discard their evidence, if the
evidence is trustworthy. This Court in Brathi v. State of Punjab (1991) 1
SCC 519 held that the mechanical rejection of the evidence on the sole
ground that it is interested would invariably lead to the failure of
justice. In State of Jammu and Kashmir v. S. Mohan Singh and another
(2006) 9 SCC 272 this Court held that in a murder trial, merely because a
witness is interested or inimical, his evidence cannot be discarded unless
the same is otherwise found to be trustworthy. In Shyamal Ghosh v. State
of West Bengal (2012) 7 SCC 646 this Court held that merely because three
witnesses were related to the deceased, the other witnesses, not similarly
paced would not attract any suspicion of the court on the credibility and
worthiness of their statements.


9. The medical evidence of PW6, Dr. K.K. Khan, who was examined to
prove the port-mortem report by Dr. K.K. Seth, would indicate that Fakira
was done to death as a result of gunshot injury on his neck. The doctor,
who conducted the autopsy found that death had taken place about one day
prior to the examination which was done at 5.30 PM on 14.1.1981. Doctor
also found one gun short wound of entry trachea deep on the front of neck
and there were fractures of third and fourth cervical vertebrae and
laceration at the level of third and fourth cervical vertebrae.


10. We are of the view that the High Court has correctly appreciated
the oral and documentary evidence, including the evidence of PW6, the Chief
Medical Officer and rightly came to the conclusion that the trial court had
committed an error in discarding their evidence. 
This Court in 
State of Punjab v. Ajaib Singh and others (2005) 9 SCC 94,
also recorded that 
in an
appeal against acquittal, the appellate court is entitled to re-appreciate
the evidence on record if the court finds that the view of the trial court
acquitting the accused was unreasonable or perverse. 
The golden thread
which runs through the web of administration of justice in criminal cases
is that if two views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to the innocence, the
view which is favourable to the accused should be adopted. 
However, the
paramount consideration of the court is to ensure that miscarriage of
justice is prevented as noted in the Judgment of this Court in V.N.
Ratheesh v. State of Kerala (2006) 10 SCC 617.


11. We are of the considered view that the High Court has rightly found
that the finding recorded by the trial court was unreasonable and perverse
and reversed the order of acquittal passed by the trial Court. The
appeals, therefore, lack merits and the same are dismissed.

.....................J.
(K.S. Radhakrishnan)




.....................J.
(Dipak Misra)
New Delhi,
|May 1, 2013 | |
| | |




ITEM NO.1B (For Judgment) COURT NO.9 SECTION II

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

CRIMINAL APPEAL NO(s). 911 OF 2007

HABIB Appellant (s)

VERSUS

STATE OF U.P. Respondent(s)

WITH
Crl.A. No.915/2007


Date: 01/05/2013 These Appeals were called on for
pronouncement of judgment today.

CORAM :
HON'BLE MR. JUSTICE K.S. RADHAKRISHNAN
HON'BLE MR. JUSTICE DIPAK MISRA


For Appellant(s) Mr. Aftab Ali Khan,Adv.

For Respondent(s) Mr. Ravi Prakash Mehrotra,Adv.
Mr. Vibhu Tiwari,Adv.


Hon'ble Mr. Justice K.S. Radhakrishnan pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr.
Justice Dipak Misra.
The appeals are dismissed in terms of the signed judgment.


|(NARENDRA PRASAD) | |(N.S.K. KAMESH) |
|COURT MASTER | |COURT MASTER |


(Signed "Reportable" judgment is placed on the file)

1

whether High Court was justified in staying the proceedings in civil suit till the decision in criminal case.= Section 42 deals with relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41. It reads as under: "S.42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41.-Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state."= In K.G. Premshanker3, the effect of the above provisions (Sections 40 to 43 of the Evidence Act) has been broadly noted thus: if the criminal case and civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case the Court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case. In light of the above legal position, it may be immediately observed that the High Court was not at all justified in staying the proceedings in the civil suit till the decision of criminal case. Firstly, because even if there is possibility of conflicting decisions in the civil and criminal courts, such an eventuality cannot be taken as a relevant consideration. Secondly, in the facts of the present case there is no likelihood of any embarrassment to the defendants (respondent nos. 1 to 4 herein) as they had already filed the written statement in the civil suit and based on the pleadings of the parties the issues have been framed. In this view of the matter, the outcome and/or findings that may be arrived at by the civil court will not at all prejudice the defence(s) of the respondent nos. 1 to 4 in the criminal proceedings. 21. For the above reasons, appeal is allowed. The impugned order dated 24.11.2008 passed by the Division Bench of the Madhya Pradesh High Court is set aside. The proceedings in the civil suit shall now proceed further in accordance with law. The parties shall bear their own costs.

' 
REPORTABLE


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NO. 4166 OF 2013
(Arising out of SLP(C) No. 12644 of 2009)




Guru Granth Saheb Sthan Meerghat Vanaras ...... Appellant


Vs.


Ved Prakash & Ors. ......Respondents


JUDGMENT




R.M. LODHA, J.


Leave granted.
2. The short question for consideration in this appeal by special
leave is 
whether High Court was justified in staying the proceedings in civil suit till the decision in criminal case.
3. It is not necessary to narrate the facts in detail. Suffice it
to say that the appellant filed an FIR (P.S. Case No. 8 of 2003) at
Dharampura Police Station against respondent nos. 1 to 4 for commission of
the offences under Sections 420, 467, 468 and 120B, IPC alleging that they
had executed a false, forged and fabricated will on 02.07.1997 in the name
of late Devkinandan Sahay with the intention to grab his property. It was
further alleged that based on the fabricated will, these respondents had
obtained a mutation order dated 24.11.1999 from the Tehsildar, Ajaygarh. On
completion of investigation in the above F.I.R., the challan has been
filed against the above respondents and trial against them is going on in
the Court of Judicial Magistrate, First Class, Ajaygarh, Panna (M.P.).
4. On 09.02.2004, the appellant brought legal action in
representative capacity against the respondents nos. 1 to 4 by way of a
civil suit in the Court of District Judge, Panna (M.P.) praying for a
decree for declaration of title, perpetual injunction and possession in
respect of disputed lands and for annulling the sale deed dated 14.08.2003
and the mutation order dated 24.11.1999. In the suit, reference of will
forged by the respondent nos. 1 to 4 has been made. The said suit has been
transferred to the Court of Additional District Judge, Panna and bears
Civil Suit No. 10A of 2006. The respondent nos. 1 to 4, who are defendants
in the suit, have filed their written statement on 19.06.2006. The trial
court has framed issues on the basis of the pleadings of the parties on
21.09.2007. On 21.04.2008, the defendants (respondent nos. 1 to 4 herein)
filed an application under Section 10 read with Section 151, CPC for
staying the proceedings in the civil suit during the pendency of above-
referred criminal case.
5. The Additional District Judge, Panna, by his order dated
21.04.2008 dismissed the application for staying the proceedings in the
suit.
6. The respondent nos. 1 to 4 herein challenged the order of the
Additional District Judge in the High Court in a writ petition under
Article 227 of the Constitution of India. The Division Bench of the Madhya
Pradesh High Court by the impugned order has set aside the order of the
Additional District Judge and, as noted above, has stayed the proceedings
in Civil Suit till the decision of criminal case. It is from this order
that the present civil appeal, by special leave, has arisen.
7. We have heard Mr. Nagendra Rai, learned senior counsel for the
appellant, and Mr. K.G. Bhagat, learned counsel for respondent nos. 1 to 4.

8. A Constitution Bench of this Court in M.S. Sheriff & Anr. v.
State of Madras & Ors.[1] has considered the question of simultaneous
prosecution of the criminal proceedings with the civil suit. In paragraphs
14,15 and 16 (Pg. 399) of the Report, this Court stated as follows:

"14. . . . . . . . It was said that the simultaneous
prosecution of these matters will embarrass the accused. . . . .
but we can see that the simultaneous prosecution of the present
criminal proceedings out of which this appeal


arises and the civil suits will embarrass the accused. We have
therefore to determine which should be stayed.
15. As between the civil and the criminal proceedings we are
of the opinion that the criminal matters should be given
precedence. There is some difference of opinion in the High
Courts of India on this point. No hard and fast rule can be laid
down but we do not consider that the possibility of conflicting
decisions in the civil and criminal Courts is a relevant
consideration. The law envisages such an eventuality when it
expressly refrains from making the decision of one Court binding
on the other, or even relevant, except for certain limited
purposes, such as sentence or damages. The only relevant
consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit
often drags on for years and it is undesirable that a criminal
prosecution should wait till everybody concerned has forgotten
all about the crime. The public interests demand that criminal
justice should be swift and sure; that the guilty should be
punished while the events are still fresh in the public mind and
that the innocent should be absolved as early as is consistent
with a fair and impartial trial. Another reason is that it is
undesirable to let things slide till memories have grown too dim
to trust. This, however, is not a hard and fast rule. Special
considerations obtaining in any particular case might make some
other course more expedient and just. For example, the civil
case or the other criminal proceeding may be so near its end as
to make it inexpedient to stay it in order to give precedence to
a prosecution ordered under S. 476. But in this case we are of
the view that the civil suits should be stayed till the criminal
proceedings have finished."

9. The ratio of the decision in M.S. Sheriff1 is that no hard and
fast rule can be laid down as to which of the proceedings - civil or
criminal - must be stayed. It was held that possibility of conflicting
decisions in the civil and criminal courts cannot be considered as a
relevant consideration for stay of the proceedings as law envisaged such an
eventuality. Embarrassment was considered to be a relevant aspect and
having regard to certain factors, this Court found expedient in M.S.
Sheriff1 to stay the civil proceedings. The Court made it very clear that
this, however, was not hard and fast rule; special considerations obtaining
in any particular case might make some other course more expedient and
just. M.S. Sheriff1 does not lay down an invariable rule that
simultaneous prosecution of criminal proceedings and civil suit will
embarrass the accused or that invariably the proceedings in the civil suit
should be stayed until disposal of criminal case.
10. In M/s. Karam Chand Ganga Prasad and Another etc. v. Union of
India and Others[2], this Court in paragraph 4 of the Report
(Pg. 695) made the following general observations, "it is a well
established principle of law that the decisions of the civil courts are
binding on the criminal courts. The converse is not true." This statement
has been held to be confined to the facts of that case in a later decision
in K.G. Premshanker v. Inspector of Police and Another[3], to which we
shall refer to a little later.
11. In V.M. Shah v. State of Maharashtra and Another[4], while
dealing with the question whether the conviction under Section 630 of the
Companies Act was sustainable, this Court, while noticing the decision in
M.S. Sheriff1 in para 11 (pg. 770) of the Report, held as under:
"11. As seen that the civil court after full-dressed trial
recorded the finding that the appellant had not come into
possession through the Company but had independent tenancy
rights from the principal landlord and, therefore, the decree
for eviction was negatived. Until that finding is duly
considered by the appellate court after weighing the evidence
afresh and if it so warranted reversed, the findings bind the
parties. The findings, recorded by the criminal court, stand
superseded by the findings recorded by the civil court. Thereby,
the findings of the civil court get precedence over the findings
recorded by the trial court, in particular, in summary trial for
offences like Section 630. The mere pendency of the appeal does
not have the effect of suspending the operation of the decree of
the trial court and neither the finding of the civil court gets
nor the decree becomes inoperative."

12. The statement of law in V.M. Shah4, as quoted above, has been
expressly held to be not a good law in K.G. Premshanker3 .
13. In State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd.
and Others[5], this Court made the following statement in paragraph 3 (pgs.
87-88):
"3. It is settled law that pendency of the criminal matters
would not be an impediment to proceed with the civil suits. The
criminal court would deal with the offence punishable under the
Act. On the other hand, the courts rarely stay the criminal
cases and only when the compelling circumstances require the
exercise of their power. We have never come across stay of any
civil suits by the courts so far. The High Court of Rajasthan is
only an exception to pass such orders. The High Court proceeded
on a wrong premise that the accused would be expected to
disclose their defence in the criminal case by asking them to
proceed with the trial of the suit. It is not a correct
principle of law. Even otherwise, it no longer subsists, since
many of them have filed their defences in the civil suit. On
principle of law, we hold that the approach adopted by the High
Court is not correct. But since the defence has already been
filed nothing survives in this matter."

14. We may now refer to a three-Judge Bench decision of this Court
in K.G. Premshanker3. The three-Judge Bench took into consideration
Sections 40, 41, 42 and 43 of the Evidence Act, 1872 and also the decision
of this Court in M.S. Sheriff1 and observed in paragraph 32 of the Report
that the decision rendered by the Constitution Bench in M.S. Sheriff case1
would be binding wherein it has been specifically held that no hard and
fast rule can be laid down and that possibility of conflicting decision in
civil and criminal courts is not a relevant consideration.
15. Section 40 of the Evidence Act makes it plain that the
existence of any judgment, order or decree which by law prevents any
Courts from taking cognizance of a suit or holding a trial is a relevant
fact when the question is whether such Court ought to take cognizance of
such suit, or to hold such trial.
16. Section 41 provides for relevancy of judgments passed in the
exercise of probate, matrimonial admiralty or insolvency jurisdiction bythe Competent Court. 
It reads as follows :
"S. 41. Relevancy of certain judgments in probate, etc.,jurisdiction.-
A final judgment, order or decree of a competent
Court, in the exercise of probate, matrimonial admiralty or
insolvency jurisdiction which confers upon or takes away from
any person any legal character, or which declares any person to
be entitled to any such character, or to be entitled to any
specific thing, not as against any specified person but
absolutely, is relevant when the existence of any such legal
character, or the title of any such person to any such thing, is
relevant.
Such judgment, order or decree is conclusive proof-
that any legal character, which it confers accrued at the
time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such
person to be entitled, accrued to that person at the time when
such judgment, order or decree declares it to have accrued to
that person;
that any legal character which it takes away from any such
person ceased at the time from which such judgment, order or
decree declared that it had ceased or should cease;
and that anything to which it declares any person to be so
entitled was the property of that person at the time from which
such judgment, order or decree declares that it had been or
should be his property."




17. Section 42 deals with relevancy and effect of judgments, orders
or decrees, other than those mentioned in Section 41. It reads as under:
"S.42. Relevancy and effect of judgments, orders or decrees,
other than those mentioned in section 41.-Judgments, orders or
decrees other than those mentioned in section 41, are relevant
if they relate to matters of a public nature relevant to the
enquiry; but such judgments, orders or decrees are not
conclusive proof of that which they state."

18. Section 43 provides that the judgments, orders or decrees other
than those mentioned in Sections 40, 41 and 42 are irrelevant unless the
existence of such judgment, order or decree is a fact in issue or is
relevant under some other provisions of the Evidence Act.
19. In K.G. Premshanker3, the effect of the above provisions
(Sections 40 to 43 of the Evidence Act) has been broadly noted thus: 
if
the criminal case and civil proceedings are for the same cause, judgment of
the civil court would be relevant if conditions of any of Sections 40 to 43
are satisfied but it cannot be said that the same would be conclusive
except as provided in Section 41. 
Section 41 provides which judgment would
be conclusive proof of what is stated therein. Moreover, the judgment,
order or decree passed in previous civil proceedings, if relevant, as
provided under Sections 40 and 42 or other provisions of the Evidence Act
then in each case the Court has to decide to what extent it is binding or
conclusive with regard to the matters decided therein.
 In each and every
case the first question which would require consideration is, whether
judgment, order or decree is relevant; if relevant, its effect. This would
depend upon the facts of each case.
20 In light of the above legal position, it may be immediately
observed that the High Court was not at all justified in staying theproceedings in the civil suit till the decision of criminal case.
Firstly,
because even if there is possibility of conflicting decisions in the civil
and criminal courts, such an eventuality cannot be taken as a relevant
consideration. 
Secondly, in the facts of the present case there is no
likelihood of any embarrassment to the defendants (respondent nos. 1 to 4
herein) as they had already filed the written statement in the civil suit
and based on the pleadings of the parties the issues have been framed. 
In
this view of the matter, the outcome and/or findings that may be arrived
at by the civil court will not at all prejudice the defence(s) of the
respondent nos. 1 to 4 in the criminal proceedings.
21. For the above reasons, appeal is allowed. The impugned order
dated 24.11.2008 passed by the Division Bench of the Madhya Pradesh High
Court is set aside. 
The proceedings in the civil suit shall now proceed
further in accordance with law. The parties shall bear their own costs.

............................J.
(R.M. Lodha)







............................J.


(Sharad Arvind Bobde)


NEW DELHI
MAY 1, 2013.

ITEM NO.1A COURT NO.4 SECTION IVA
[FOR JUDGMENT]

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).12644/2009
(From the judgement and order dated 24/11/2008 in WP No.5836/2008 of The
HIGH COURT OF M.P. AT JABALPUR)

GURU GRANTH SAHEB STHAN MEERGHAT VANARAS Petitioner(s)
VERSUS
VED PRAKASH & ORS. Respondent(s)
Date: 01/05/2013 This Petition was called on for Judgment today.
For Petitioner(s) Mr. Nagendra Rai, Sr. Adv.
Mr. Shantanu Sagar, Adv.
Mr. Smarhar Singh, Adv.
Mr. T. Mahipal,Adv.

For Respondent(s) Mr. Vineet Bhagat,Adv.

Hon'ble Mr. Justice R.M. Lodha pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice Sharad
Arvind Bobde.
Leave granted.
Appeal is allowed in terms of the reportable judgment.

(Rajesh Dham) (Renu Diwan)
Court Master Court Master
(signed reportable judgment is placed on the file)
-----------------------
[1] AIR 1954 SC 397
[2] 1970 (3) SCC 694
[3] (2002) 8 SCC 87
[4] (1995) 5 SCC 767
[5] (1996) 3 SCC 87

-----------------------
8

whether the suit was maintainable without seeking any consequential relief. Section 42 of the Specific Relief Act 1877, (analogous to Section 34 of the Act 1963), and held, that where the defendant was not in physical possession, and not in a position to deliver possession to the plaintiff, it was not necessary for the plaintiff in a suit for declaration of title to property, to claim the possession."......It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration."= A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest.= "......a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree." In view of the above, it is evident that the suit filed by the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves. As a consequence, the appeals lack merit and, are accordingly dismissed. There is no order as to costs.

' 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NOs. 7605-7606 of 2004




Venkataraja & Ors. ... Appellants


Versus




Vidyane Doureradjaperumal (D) Thr.Lrs. & Ors ... Respondents






J U D G M E N T


Dr.B.S.Chauhan, J.


1. These appeals have been preferred against the impugned
judgment and order dated 12.12.2003 passed by the High Court of Madras
in Second Appeal Nos. 1536-1537 of 1991, by way of which the common
judgment and decree passed by the First Additional District Judge in
A.S. No. 198 of 1983 and A.S. No. 43 of 1988 were set aside, and the
suit O.S. No. 58 of 1982, was dismissed, holding that the suit filed
by the plaintiff, father of the appellant herein, is not maintainable.


2. Facts and circumstances giving rise to these appeals are
that:
A. The suit property i.e. House No. 9/39, Savaripadayatchi
Street, Nellithope, Pondicherry, originally belonged to the deceased
appellant/great grandfather Vengadachala Naicker, son of Ayyamperumal
Naicker. 
He donated the above-mentioned suit property on 13.12.1896
in favour of his minor grandsons Radja Row and Kichnadji Row, both
sons of Ponnusamy Naicker, and 
the said donation deed was registered
on 18.1.1897.
 In the deed, it was provided that the donees/grandsons
would only have a life estate, and that after their death, 
only their male legal heirs shall be entitled to the suit property, with the right of alienation.


B. In view of the fact that the donees were minors at that
time, their father Ponnusamy Naicker was appointed as the guardian, in
the said deed.


C. The donee Kichandji Row died issueless and 
hence, the other
donee Radja Row became the full usufructuary owner of the suitproperty.
Radja Row also died leaving behind his wife ThayanayagyAmmalle and his son Kannussamy Row. 
The said Kannussamy Row died
issueless leaving behind his mother Thayanayagy Ammalle and Kuppammalhis wife. 
After the death of Kuppammal, Thayanayagy Ammalle became
the sole inheritor of the property. 
Thayanayagy Ammalle subsequently
executed a sale deed dated 16.7.1959 in favour of Vedavalliammalle,
the first defendant.


D. As per the terms of the donation deed dated 13.12.1896,
after the death of Kannusamy Row, the suit property could only
devolve upon his male legal heirs. 
Since the deceased Radja Row did
not have any issue, the suit property had to go to the sole male
reversioner and surviving heir, i.e. Radja Row's cousin brother
Ramaraja, being the grandson of the donor Vengadachala Naicker.


E. On the basis of the aforesaid plaints, the
appellant/plaintiff filed a suit against the said first defendantVedavalliammalle 
before the erstwhile French Court of the Tribunal of First instance, for a direction that the plaintiff was in fact, the
heir of the deceased Radja Row, and also for a direction to the first defendant to not waste the suit property.


F. Immediately, after filing the said suit, the French Colony
of Pondicherry was merged with the Union of India. The Hindu
Succession Act, 1956 (hereinafter referred to as the 'Act 1956), had
been extended to the Union Territory of Pondicherry w.e.f. 1.10.1963.


G. The suit filed by the appellant/plaintiff was decided vide
judgment and decree dated 18.8.1965, wherein it was held that since
Thayanayagy Ammalle was still alive, the claim of the
appellant/plaintiff was premature. 
However, in the said suit, an
observation was made that the appellant/plaintiff was the legal heir to the deceased Radja Row.


H. Aggrieved, Vedavalliammalle/first defendant preferred an
appeal against the said judgment.
 However, Thayanayagy Ammalle did not
press the appeal, with regard to the finding of the court as to
whether the appellant/plaintiff was a legal heir to the deceased Radja Row, and 
contested only the appointment of the Commissioner, who had
been appointed to determine 
whether any repairs were necessary, in respect of the suit property.


I. The appellate court allowed the appeal vide judgment dated
2.2.1970, only to the extent of holding that no repairs were necessary
for the suit property. 
The said Thayanayagy Ammalle died on
30.5.1978.
 It was at this juncture, that the claim of the appellant
over the suit property was not accepted by the opposite parties. 
The
first defendant Vedavalliammalle and her husband, the second
defendant, thereafter leased out the suit property in favour of the
3rd to 9th defendants on 30.5.1979, and were receiving rent for the
same henceforth.


J. Defendant No.10 Jeyaraman, who was the husband and father
of respondent nos. 4 and 5 respectively, purchased the suit property
from defendant no.1 vide registered sale deed dated 26.4.1980.

K. The deceased-plaintiff i.e. father of the appellants, filed
suit O.S. No. 58 of 1982, in the Civil Court of Pondicherry for
declaration that he was the legal heir of the deceased Radja Row, and thus had a proper title to the suit property and for declaration that the sale deed dated 16.7.1959 executed by Thayanayagy Ammalle in favour of Vedavalliammal, was null and void as she had only a life estate and not an absolute title, to alienate the property.


L. The said suit was contested by respondents/defendants and
it was decided on 7.10.1983, by the Civil Court, which held that:
a) Since Kannussamy Row had died before the introduction of the Hindu Succession Act, and considering the Hindu Law
applicable in the French Territory of Pondicherry, after the
death of the sole male heir to the suit property, the wife
and the mother of the legal heir would have only usufructuary
right over the suit property and not an absolute title.
b) As per the above customary Hindu Law applicable in 1959, the
vendor Thayanayagy Ammalle had only a usufructuary right over the property, and not the absolute right to alienate the
same.
c) Therefore, the reversionary male heir was entitled to inherit
the property, being the sole heir of the original donor.
d) The defendants/respondents had not acquired the title by way
of possession/prescription.
e) The suit was not barred by res-judicata.


Though the court decided the question of title in favour of the
appellant/plaintiff, the trial court found that the
appellant/plaintiff had filed the suit only for declaration of his
right to the suit property, and since he had not asked for
consequential relief of delivery of possession, the suit was held to
be not maintainable and was dismissed.

M. Aggrieved, the appellant/plaintiff filed an appeal
challenging the said judgment and order dated 7.10.1983, before the
court of the District Judge, and 
the said appeal was allowed vide
judgment and decree dated 13.4.1989, 
observing that the sale deed had
been executed by Thayanayagy Ammalle in favour of defendant no. 1 on 16.7.1959, prior to the extension of the Hindu Succession Act to Pondicherry on 1.10.1963. 
The result of the same was that she had sold
only her life estate in the suit property, as she was only a life
estate holder and upon her death, the property devolved on the sole living reversionary. 
Further, it was held that, as the
appellant/plaintiff had filed a suit for declaration in respect of the
suit property in which there were tenants, 
it was not necessary for
the appellant to claim any consequential relief for the reason that
after obtaining such a declaration, appropriate relief could be
claimed under Pondicherry Non-Agricutural Kudiyiruppudars (Stay of Eviction Proceedings) Act of 1980 (hereinafter referred to as the 'Act 1980'). 
There was thus, no need for a separate prayer for recovery of
possession, as the same could be asked only under the Special
Enactment.
N. Being aggrieved, the respondents/defendants filed second appeals
before the High Court, and it was during the pendency of the said
appeals, that Vedavalliammal sold the suit property to respondent nos.
1 to 3 on 31.3.1993. In view thereof, they were also impleaded in
the appeal as respondents. The said appeals were decided by impugned
judgment and order dated 12.12.2003, wherein the High Court had held,
that Thayanayagy Ammalle had acquired the absolute title over the
property. As the first defendant Vedavalliammal had purchased the
suit property from the absolute owner Thayanayagy Ammalle vide sale
deed dated 11.7.1959, she had become the rightful owner, and the said
sale deed was not null and void. Also, in view of the fact that the
said Vedavalliammal had been in possession of the suit property for
over than 10 years, she had perfected the title to the suit property
by prescription, under the provisions of French Civil Code and as a
consequence thereof, the suit for declaration was not maintainable
without seeking the relief of possession.
Hence, these appeals.


3. Shri R. Venkataramani, learned senior counsel appearing for
the appellants has submitted that the High Court had committed an
error by holding that Thayanayagy Ammalle had acquired an absolute
title over the suit property, and that by selling the suit property to
Vedavalliammalle, who had purchased the suit property from her, vide
sale deed dated 16.7.1959, Vedavalliammalle, had become the absolute
owner of the suit property and that the sale deed (Ext. A-4) was not
null and void.
The courts below have recorded a finding that Thayanayagy
Ammalle was only a life estate holder and thus, had not acquired an
absolute title. The High Court has not given any reason whatsoever,
for reversing the said finding of fact. The said finding is perverse
being based on no evidence. In case such a finding goes, the sale deed
dated 16.7.1959 could not confer any title on the purchaser,
Vedavalliammalle. More so, the High Court had not correctly framed the
substantial question of law, rather it had framed entirely irrelevant
issues, such as, the prescription and issue of limitation. The High
Court had committed an error by holding that the suit for declaration
was not maintainable without seeking any consequential relief, when
the First Appellate Court has rightly held, that in a case where the
property had been in the possession of the tenants, and where there
were other means to recover the possession, there was no need for
seeking any consequential relief in that aspect. Thus, the appeals
deserve to be allowed.


4. Per contra, Shri R. Balasubramaniam, learned senior counsel
appearing for the respondents, has opposed the appeals contending that
seeking consequential relief was necessary in order to maintain the
suit for declaration as per the proviso to Section 34 of the Special
Relief Act, 1963 (hereinafter referred to as the 'Act 1963'). The
pleadings taken by the parties suggest, that the respondents had been
in physical possession of the property alongwith their tenants. They
were in exclusive possession of the same. Therefore, as no
consequential relief had been sought, the suit was not maintainable.
More so, the question of limitation was very relevant and has rightly
been dealt with by the High Court. The appeals lack merit, and are
liable to be dismissed.


5. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.


6. Ramaraja claiming himself to be the reversioner, had filed
a suit against the purchaser Vedavalliammalle, which was decided in
1965, and the issue of nature of title, with respect to whether the
interest of Thayanayagy Ammalle was merely usufructuary or absolute,
was considered. The court had then come to the conclusion vide
judgment and decree dated 29.11.1965, that the same was pre-mature, as
the suit could not have been filed during the life time of Thayanayagy
Ammalle. In the suit O.S. No. 58 of 1982, undoubtedly, the contesting
respondents had also been shown as the residents of the suit property,
and relief had been claimed only for declaration that the plaintiff
was the legal heir of the deceased Kannussamy Row, the great grandson
of Venkatachala Naicker, having title to the suit property, and
further, for declaration that the sale deed dated 16.7.1959 was null
and void.
In para 4 of the written statement, it has been mentioned
that the respondents/defendants were living in the suit property
alongwith defendant Nos. 3 to 9, their tenants. In view of the
pleadings taken by the parties, a large number of issues were framed
by the trial court, including whether the plaintiff was the legal heir
of the deceased Kannussamy Row; whether the sale deed dated 16.7.1959
was null and void; and whether the plaintiff was entitled for the
declaration, as prayed for.


7. The trial court held, that Thayanayagy Ammalle had not
acquired absolute right and that the plaintiff therein was thus, the
reversioner. The sale deed dated 16.7.1959 was void. However, as the
property was in the possession of the respondents/defendants, and
consequential relief of delivery of possession was not asked for, the
suit was not maintainable.


8. Being aggrieved, the parties filed cross appeal suit Nos.
198/83, 21/88 and 43/88. All the aforesaid appeal suits were disposed
by a common judgment of the First Appellate Court, and the said court
held, that Vedavalliammalle was not residing in the suit property as
she was residing somewhere, and had rented the house to three
different tenants, with a total strength of about 26 members.
Therefore, defendant no.1 was not in possession of the suit property
even as early as 1969, and therefore, defendant no.10 also did not
have possession of the suit property.
In view of the fact that the tenants could have been
evicted subsequently by the appellant/plaintiff, resorting to the
provisions of the Act 1980, which had been extended upto 31.3.1990,
the suit was maintainable, and the trial court ought not to have
dismissed the said suit on the ground that appellant/plaintiff had not
sought consequential relief of recovery of possession.


9. The High Court having considered various points involved
therein held, that as per Article 2265 of the French Civil Code 1908,
a person who had acquired an immovable property in good faith, and
under an instrument which was on the face of it capable of conferring
a title, would perfect his title by prescription to the land in ten
years, in the district of the Court of Appeal, when the owner lives in
the same district as that in which the land lies, and in twenty years
if the true owner lives outside such district.
Admittedly, the first defendant Vedavalliammalle had
purchased the suit property from the absolute owner Thayanayagy
Ammalle, as per sale deed dated 16.7.1959. Thus, she had become the
rightful owner, said sale deed being not null and void.


10. These appeals have raised the questions regarding the
interpretation of French Hindu Law, as to 
whether a Hindu widow having only a life estate, can be considered the absolute owner of a property, thus competent to transfer the said property; and 
secondly 
whether the suit was maintainable as the appellant/plaintiff had not sought any consequential relief.


11. So far as the issue no.1 is concerned, undoubtedly, the Act
1956 was extended to the Union Territory of Pondicherry only, at a much later stage. 
Various judgments of the French courts and the
Madras High Court dealing with the issue have been cited before us,
but in view of the fact that Shri R. Bala Subramaniam, learned senior
counsel appearing on behalf of the respondents, has fairly conceded
that such a Hindu widow could not acquire the absolute title, there is no occasion for us to enter into that controversy.
 Even otherwise,
the finding recorded by the High Court is not based on any evidence,
and no reason has been given by it to reverse the findings recorded by
the trial court as well as the First Appellate Court that Thayanayagy
Ammalle was only the life estate holder. 
We hold that the High Court
has erred in recording such a finding.


12. So far as the issue of adverse possession is concerned, in
our humble opinion, the High Court had no occasion to deal with the
same, in view of the earlier judgment of the trial court, wherein in
1965, it had been held that the suit filed by the appellant/plaintiff
was pre-mature, as he could not file the same during the life time of
Thayanayagy Ammalle.


13. Thus, the only relevant issue on which the judgment hinges
upon is, 
whether the suit was maintainable without seeking any
consequential relief.
In Deo Kuer & Anr. v. Sheo Prasad Singh & Ors. AIR 1966 SC359, this Court dealt with a similar issue, and considered the
provisions of Section 42 of the Specific Relief Act 1877, (analogous
to Section 34 of the Act 1963), and held, that where the defendant was
not in physical possession, and not in a position to deliver
possession to the plaintiff, it was not necessary for the plaintiff in
a suit for declaration of title to property, to claim the possession.
While laying down such a proposition, this Court placed reliance upon
the judgments of Privy Council in Sunder Singh Mallah Singh Sanatan
Dharam High School Trust v. Managing Committee, Sunder Singh Mullah
Singh Rajput High School, AIR 1938 PC 73; and Humayun Begam v. Shah
Mohammad Khan, AIR 1943 PC 94.


14. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957,
this Court while dealing with a similar issue held:
"......It is also now evident that she was not in exclusive
possession because admittedly Keshav Chandra and Jagdish
Chandra were in possession. There were also other tenants
in occupation. In such an event the relief of possession
ought to have been asked for. The failure to do so
undoubtedly bars the discretion of the Court in granting
the decree for declaration." (emphasis added)


15. The facts in the case of Deo Kuer (Supra) are quite
distinguishable from the facts of this case, as in that case, the
tenants were not before the court as parties. In the instant case,
respondent nos. 3 to 10 are tenants, residing in the suit property.
The said respondents were definitely in a position to deliver the
possession. Therefore, to say that the appellants would be entitled to
file an independent proceedings for their eviction under a different
statute, would amount to defeating the provisions of Order II Rule 2
CPC as well as the proviso to Section 34 of the Act 1963. Thus, the
First Appellate Court, as well as the High Court failed to consider
this question of paramount importance.


16. The very purpose of the proviso to Section 34 of the Act
1963, is to avoid the multiplicity of the proceedings, and also the
loss of revenue of court fees. When the Specific Relief Act, 1877 was
in force, the 9th Report of the Law Commission of India, 1958, had
suggested certain amendments in the proviso, according to which, the
plaintiff could seek declaratory relief without seeking any
consequential relief, if he sought permission of the court to make his
subsequent claim in another suit/proceedings. However, such an
amendment was not accepted. There is no provision analogous to such
suggestion in the Act 1963.


17. A mere declaratory decree remains non-executable in most
cases generally. However, there is no prohibition upon a party from
seeking an amendment in the plaint to include the unsought relief,
provided that it is saved by limitation. However, it is obligatory
on the part of the defendants to raise the issue at the earliest.
(Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC
2065; and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743).
In Muni Lal v. The Oriental Fire & General Insurance Co.
Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory
decree, and observed that "mere declaration without consequential
relief does not provide the needed relief in the suit; it would be for
the plaintiff to seek both reliefs. The omission thereof mandates the
court to refuse the grant of declaratory relief."
In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this
Court while dealing with the issue held:
"......a declaratory decree simpliciter does not attain
finality if it has to be used for obtaining any future
decree like possession. In such cases, if suit for
possession based on an earlier declaratory decree is filed,
it is open to the defendant to establish that the
declaratory decree on which the suit is based is not a
lawful decree."




18. In view of the above, it is evident that the suit filed by
the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. 
The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. 
Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves.
As a consequence, the appeals lack merit and, are
accordingly dismissed. There is no order as to costs.


...................................J.
(Dr. B.S. CHAUHAN)






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


NEW DELHI;
April 10, 2013.














ITEM NO.1A COURT NO.7 SECTION XII
(For judgment)


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). 7605-7606 OF 2004




VENKATARAJA & ORS. Appellant (s)


VERSUS


VIDYANE DOURERADJAPERUMAL(D)THR.LRS& ORS Respondent(s)


Date: 10/04/2013 These Appeals were called on for pronouncement
of judgment today.


For Appellant(s)
Mr. V.G. Pragasam,Adv.


For Respondent(s) Mr. Senthil Kumar, Adv.
Mr. M.A. Chinnasamy,Adv.
Mr. S. Muthukrishnan, Adv.


Mr. Senthil Jagadeesan,Adv.




Hon'ble Dr. Justice B.S. Chauhan pronounced the judgment of
the Bench comprising of His Lordship and Hon'ble Mr. Justice Fakkir
Mohamed Ibrahim Kalifulla.


The appeals are dismissed, in terms of the signed
reportable judgment.






| (DEEPAK MANSUKHANI) |(M.S. NEGI) |
| Court Master | Court Master |


(Signed reportable judgment is placed on the file)