Section 144 CPC Not Attracted When No Variation in Decree

Section 144 CPC Not Attracted When no Variation in decree

November 11, 2019

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“The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. ”

The Supreme Court observed that the provisions of Section 144 of the Code of Civil Procedure will not be attracted when there is no variation or reversal of a decree or order.

In appeal, the bench comprising Justice Mohan M. Shantanagoudar and Justice Ajay Rastogi explained the scope of Section 144 as follows:

 It clearly transpires that Section 144 applies to a situation where a decree or order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the Court by its action had displaced them.

Revenue Record Entries do not confer Title to a Property

November 19, 2019

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‘Such entries only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question.

The entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title.

The bench comprising Justice Indu Malhotra and Justice Krishna Murari noted that such entries only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question.

 “The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. As a consequence, merely because somebody’s name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property”.

The bench dismissed the appeal holding that the appellant failed to adduce any evidence whatsoever, apart from the Survey Settlement of 1964 to establish that the suit property was the self-acquired property.

Source: Livelaw.com

An ‘Aggrieved’ Third Party Can File Review Petition, Holds SC

An ‘Aggrieved’ Third Party Can File Review Petition, Holds SC [Read Judgement] Nov 28th 2018, 12:16, by Rashid M A Ashok Kini “We have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respect.” The Supreme Court has observed that even a third party to the proceedings, if he considers himself an aggrieved person may take recourse to the remedy of review petition. The bench comprising Justice Kurian Joseph and Justice AM Khanwilkar observed thus while disposing a review petition filed by Union of India against a 2011 judgment in National Textile Corporation Ltd. Versus Nareshkumar Badrikumar Jagad. The Supreme Court in 2011 had confirmed the decree of eviction passed against National Textiles Corporation in favour of Trustees of Seth Harichand Rupchand Charitable Trust. Union of India was not party to the said proceedings. The contention taken by the Union of India was that Validation Act of 2014 has completely altered the status of the parties retrospectively qua the suit property with effect from 1st April, 1994 by a legal fiction, as a result of which the cause of action against NTC as referred to in the subject suit had become nonexistent; and including any decree or order passed against NTC or for that matter, an undertaking filed by NTC in any court or tribunal or authority has been rendered unenforceable by operation of law and cannot be continued or taken forward. Answering the question of locus of a third party to the proceedings to file a review petition, the bench said: “Section 114 of the Code of Civil Procedure (“CPC”) which, inter alia, postulates that “any person considering himself aggrieved” would have locus to file a review petition. Order XLVII of CPC restates the position that any person considering himself aggrieved can file a review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions. Notably, neither Order XLVII of CPC nor Order XLVII of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respect. “ The bench then considered and disposed the review petition with liberty to the Trust to pursue other appropriate legal remedy as per law. It said: “We hold that as per the amended Section 3 of the 1995 Act w.e.f. 1st April, 1994, by operation of law the statutory or protected tenancy rights of Podar Mills Ltd. in respect of the suit property stood transferred to and vested in the Central Government and it continues to so vest in it and that the decree against NTC including the undertaking given by NTC has been rendered unenforceable by a legal fiction. As a result, the Trust being the landlord is obliged to take recourse to remedy against the Central Government (Union of India) to get back possession of the suit property, as per the dispensation specified in the concerned Rent Legislation, if it so desires. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire.” Read Judgment

First Appellate Court Has To Do More Than Just Quoting Passages From Trial Court Judgment While Dismissing Appeal: SC

First Appellate Court Has To Do More Than Just Quoting Passages From Trial Court Judgment While Dismissing Appeal: SC [Read Judgment]

Aug 4th 2017, 12:55, by Sukriti

It has to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit, the bench observed.

While setting aside a judgment of a high court for being devoid of reasoning, the Supreme Court in U Manjunath Rao vs U Chandrashekar, has observed that a first appellate court, while dismissing an appeal, cannot just quote passages from the trial court judgment and thereafter, pen a few lines and express the view that there is no reason to differ with the trial court judgment, but it has to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit.

A bench, comprising Justice Dipak Misra and Justice AM Khanwilkar, was hearing an appeal from a judgment by Karnataka High Court wherein it dismissed the first appeal. The apex court bench observed that the high court has only copiously quoted from the judgment of the trial court and held that he did not find any infirmities in the findings recorded by the trial court.

Reason is the life of law

Referring to various decisions on this aspect, the bench observed that absence of analysis not only evinces non-application of mind but mummifies the core spirit of the judgment.  The reason is the life of law. It is that filament that injects soul to the judgment. A Judge has to constantly remind himself that absence of reason in the process of adjudication makes the ultimate decision pregnable, the bench observed.

Mere concurrence does not meet requirement of law

Setting aside the high court judgment and remanding the matter to it, the bench observed that there has to be an “expression of opinion” and mere concurrence does not meet the requirement of law.

Needless to say, it is one thing to state that the appeal is without any substance and it is another thing to elucidate, analyse and arrive at the conclusion that the appeal is devoid of merit, the bench observed.

By no stretch of imagination it can be stated that the first appellate court can quote passages from the trial court judgment and thereafter pen few lines and express the view that there is no reason to differ with the trial court judgment, it added.

Read  the Judgment Here

All HUF Assets Should Be Taken As Joint Property Unless Proven Otherwise: SC

All HUF Assets Should Be Taken As Joint Property Unless Proven Otherwise: SC [Read Judgment] Sep 15th 2017, 04:32, by Sukriti The Supreme Court recently reiterated the principle that all assets in a Hindu Undivided Family would be presumed to be joint property belonging to all its members and that the burden to prove otherwise is on the family member asserting such claim. “It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property,” the Bench comprising Justice R.K. Agrawal and Justice Abhay Manohar Sapre observed. The Court was hearing an Appeal challenging an order passed by the Karnataka High Court in a family dispute pertaining to ownership and partition of agricultural lands. The Apex Court upheld the High Court’s order which had declared the property as joint property of the family. The Court opined that the Appellants had failed to prove that the property was self acquired and observed, “In order to prove that the suit properties described in Schedule ‘B’ and ‘C’ were their self-acquired properties, the plaintiffs could have adduced the best evidence in the form of a sale-deed showing their names as purchasers of the said properties and also could have adduced evidence of payment of sale consideration made by them to the vendee. It was, however, not done. Not only that, the plaintiffs also failed to adduce any other kind of documentary evidence to prove their self-acquisition of the Schedule ‘B’ and ‘C’ properties nor they were able to prove the source of its acquisition.” It, therefore, upheld the judgments passed by the lower Courts and observed, “In our considered opinion, it was, therefore, obligatory upon the plaintiffs to have proved that despite existence of jointness in the family, properties described in Schedule ‘B’ and ‘C’ was not part of ancestral properties but were their self-acquired properties. As held above, the plaintiffs failed to prove this material fact for want of any evidence. We have, therefore, no hesitation in upholding the concurrent findings of the two Courts, which in our opinion, are based on proper appreciation of oral evidence.” Read the Judgment Here

No Bar For Filing Application Under Order 1 Rule 10, Even When That Filed Under Order 22 Rule 4 Of CPC Is Dismissed As Not Maintainable

No Bar For Filing Application Under Order 1 Rule 10, Even When That Filed Under Order 22 Rule 4 Of CPC Is Dismissed As Not Maintainable: SC [Read Judgment]

Oct 5th 2017, 08:17, by Sukriti

Justice, according to the law, does not merely mean technical justice, but that law is to be administered to advance justice, the bench observed.

The Supreme Court, in Pankajbhai Rameshbhai Zalavadia vs Jethabhai Kalabhai Zalavadiya (Deceased) through LRs & Ors, has held that there is no bar for filing the application under Order 1 Rule 10, even when the application under Order 22 Rule 4 of the CPC was dismissed as not maintainable.

Setting aside the high court order, terming it a ‘hyper technical approach’, a bench comprising Justice Arun Mishra and Justice Mohan M Shantanagoudar observed that the legal heirs of the deceased person in such a matter can be added in the array of parties under Order 1 Rule 10 of the Code read with Section 151 of the Code, subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.

In the instant case, suit was filed against some persons, including a person who had already died. The court ordered that the suit had abated as against that defendant. The plaintiff’s application under Order 22 Rule 4 of the Code for bringing on record the legal representatives of deceased defendant was also dismissed by the trial court. Later, he filed an application for impleading the legal representatives of deceased defendant, which was also dismissed by the trial court by applying the principle of res-judicata merely because the application filed earlier under Order 22 Rule 4 of the Code was dismissed on account of non-maintainability. The high court affirmed the trial court order.

With respect to application under Order 22, the apex court observed: “If one of the defendants has expired prior to the filing of the suit, the legal representatives of such deceased defendant cannot be brought on record in the suit under Order 22 Rule 4 of the Code.”

But the bench also observed that the trial court could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 of the CPC, in order to do justice to the parties. “Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer,” it said.

The bench said: “There is no bar for filing the application under Order 1 Rule 10, even when the application under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties under Order 1 Rule 10 of the Code read 27 with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.”

Read the Judgment Here

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC [Read Judgment]

Jun 21st 2018, 15:33, by Sukriti

Nitish Kashyap

The Bombay High Court has held that certificate of purchase cannot be conclusive proof of title vis-à-vis joint tenants of a land.

Justice Anuja Prabhudessai held that in case of a joint family property, the certificate of purchase issued in the name of karta or an elder of the family is actually for or on behalf of the joint family.

Case Background

The court was hearing an appeal against judgment of a Joint District Judge, Thane, dated January 24, 1990, wherein compensation for sale of a land in Thane was directed to be divided equally between descendants of co-tenants Vithu and Gajanan.

The government acquired the said piece of land measuring 1 acre 26 gunthas and 8 annas in 1973 for Rs. 57,000 approximately.

Changa Agaskar was the original tenant of the said land and after his death, his two sons, Vithu and Gajanan, used to cultivate the land together as a joint family property.

Vithu claimed that he had purchased the said land in the proceedings under Section 32(G) of the Bombay Tenancy & Agricultural land Act. He further claimed that upon paying the purchase price, the certificate of purchase under Section 32 M of the Act was issued in his favour on July 20, 1966. The original claimant, therefore, claimed that being the exclusive owner, he was entitled to receive the entire compensation amount.

However, descendants of Gajanan claimed that the land was never partitioned and that even after the death of Changa and Gajanan, they continued to cultivate the land as a joint family property. The respondents denied that Vithu was the sole tenant/purchaser of the property. They have stated that Vithu had paid the purchase price of the acquired land out of the sale proceeds of the joint family land. The respondents, therefore, claimed that being the co-tenants of the property, they were entitled to 50 percent of the compensation.

Judgment

After examining the Bombay Tenancy and Agricultural Land Act, the court noted that it is clear that an undivided Hindu family can be a tenant within the meaning of Section 2(18) of the Act. Thereafter, the court looked at the land survey records, mutation entries and said:

“It is thus clear that the original claimant Vithu was not a tenant of the said land in his personal or individual capacity but had only inherited the tenancy rights upon the death of Changa. The original claimant Vithu had therefore failed to prove that he was the sole tenant of the said property. The claimant had also not adduced evidence to prove that the subject property was partitioned during the lifetime of Vithu and Gajanan or that they were cultivating the property or their respective shares separately. The reference court was therefore perfectly justified in holding that the acquired land was a joint family property.”

The land records revealed that the original claimant Vithu had subsequently got his name entered in the survey records, by bracketing the name of Gajanan. He had also purchased the property under Section 32G and a certificate of purchase was issued in his name. It is to be noted that no notice was given to the respondents before deleting/bracketing the name of Gajanan from the survey records, the court said.

Thus, the court rejected the appeal against judgment of the District Judge in Thane and said:

“Under such circumstances, the certificate of purchase issued in the name of Vithu, would be for and on behalf of the joint family. The said certificate would at the most be conclusive proof of purchase against the owner of the land. The tenancy rights of the joint tenants cannot be negated solely on the ground that the certificate of purchase was issued in favour of Karta of a joint family or any elderly person of a joint family. Hence, the certificate of purchase cannot be the conclusive proof of title, vis-a-vis the joint tenants.”

Read the Judgment Here