TaxTMI 
TaxTMI 
2016 (12) TMI 1864
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.... and Vishram (Appellant No. 1) are the sons of late Shri Jagannath Govekar, whose wife Lilavati (since deceased) was also arrayed as Defendant No. 3 in the suit that was filed by Respondent Nos. 1 to 5. The three Appellants herein were Respondent Nos. 1, 2 and 4 in the said suit. THE SUIT 4. The suit filed by Respondent Nos. 1 to 5 (hereinafter referred to as the 'plaintiffs' for the sake of convenience) against the Appellants (hereinafter referred to as the 'defendants') was for specific performance and mandatory injunction. It pertained to the property known as 'Devalvadi' bearing Survey No. 251/2 situate at Chinvar in the village of Anjuna, Bardez, Goa, having an area of 1000 sq.mts. (hereinafter referred to as the 'suit property'). It was averred in the plaint filed by the Plaintiffs that this property was acquired by late Shri Vassudev Govekar from the Communidade of Anjuna, Bardez, Goa under file No. 131/1963 on February 24, 1970 as a permanent grant for the construction of the house, Towards the eastern side of the suit property there exists another property bearing Survey No. 251/4 which belonged to their grandfather late Shri Jagannath....
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....ar (father of Defendant No. 1 and Vassudev), who had constructed a house, which was in occupation of the Defendants since its construction in the year 1969. It was further pleaded that insofar as property bearing Survey No. 251/4 is concerned, that belonged to Defendant Nos. 1 and 2, who were in exclusive possession thereof. It was also denied that Vassudev had made any construction in the suit property as he had left the family to go to Vasco Da Gama in the year 1957 where he was employed in Kamat Garage. JUDGMENT OF THE TRIAL COURT 6. The trial court, after framing the issues, recording the evidence and hearing the arguments, dismissed the suit filed by the Plaintiffs vide its judgment dated March 30, 2012. The Plaintiffs challenged this judgment by preferring first appeal Under Section 96 of the Code of Civil Procedure, 1908, which was heard by the learned Additional District Judge, who, vide his judgment dated July 24, 2012, allowed the appeal of the Plaintiffs and decreed the suit. It was now the turn of the Defendants to challenge the said decree passed by the first appellate court and, thus, second appeal was filed by them in the High Court. The High Court, vide impugn....
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....ote of survey records which stood in the name of Vassudev Govekar. Even, receipts of payments to the Communidade in respect of the suit property stood in the name of Vassudev Govekar. According to the learned Additional District Judge, Defendants had even admitted that the grant of suit property by Communidade was in the name of Vassudev Govekar. The learned Judge rejected the contention of the Defendants that the Plaintiffs could not prove the ownership in the absence of title documents and only on the basis of Inventory Proceedings. According to him, allotment in the inventory Proceedings could not be said to be a nullity, more so, when Plaintiffs had proved on record that grant was in the name of Vassudev Govekar and further that survey records were also standing in the name of the Plaintiffs, which led to presumption of ownership in their favour. No doubt, it was Jagannath Govekar (father of Vassudev Govekar) who had applied for grant in the name of Vassudev Govekar. However, as per the learned Additional District Judge, when the property stood in the name of Vassudev Govekar, Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the 'Bena....
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....i Act was not applicable in the instant case. 12. In respect of the aforesaid arguments, the learned senior Counsel submitted that in para 10 of the plaint, the Plaintiffs had themselves admitted that they were not residing in the suit property and, thus, not in possession. Further, in para 5 of the plaint, the Plaintiffs had admitted that the Plaintiffs and Defendants were co-owners in title and in possession of the suit property. It was, thus, argued that in view of these admissions, the findings of the courts below about joint possession or that the Plaintiffs were the exclusive owners of the suit property was clearly erroneous. ARGUMENTS OF THE PLAINTIFFS/RESPONDENTS 13. Ms. A. Subhashini, learned Counsel appearing for the Plaintiffs (Respondents herein), on the other hand, submitted that the suit was maintainable in the form in which it was filed in view of specific findings recorded by the two courts below that the Plaintiffs were in possession of the suit property which was sought to be interfered with by the Defendants. She further argued that the approach of the two courts below that relief of mandatory injunction was in fact in the nature of seeking possession wa....
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....n that the fact that the property was granted by the Communidade in favour of said Vassudev, who is the father of the Respondents-original Plaintiff Nos. 1 and 3, undisputed by the receipts from the Communidade produced by Dw. 1 in the cross at exhibit 78 colly which stand in the name of said Vassudev as well as Survey Records and the earlier house tax records. As the fact that the property was granted by the Communidade in favour of the said Vassudev has not been disputed, the Lower Appellate Court was justified to come to the conclusion that the findings of the learned Trial Court that there was a cloud raised in the title of the Respondents could not be sustained. An admission made by a party is not conclusive but a decisive fact in a case unless the other party successfully withdraws the same or proves it to be erroneous. What has to be considered is what effect is to be given to such admission and whether such admission read with other material on record would lead to an unambiguous and relevant piece of evidence to establish a fact. In the present case, apart from the said admission which can be curled out from the pleadings, as even in the deposition of Dw. 1, he has not dis....
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....pon the pleadings of the Plaintiffs themselves, we proceed to examine the weight in this submission. A closer and minute look into the pleadings would show that there is no admission on the part of the Plaintiffs about the co-ownership insofar as suit property is concerned, in para 3 of the plaint, the Plaintiffs have given the description of the suit property which is popularly known as 'Devalvadi' bearing Survey No. 251/2 situate at Chinvar in the village of Anjuna, Bardez, Goa, having an area of 1000 sq. mts. What is significant is that this property bears Survey No. 251/2 and the Plaintiffs described the same as the 'suit property'. In para 4, it is mentioned that Vassudev Govekar acquired this property from Communidade of Anjuna. In para 6 it is mentioned that on this suit property, incomplete structure was raised by Vassudev Govekar which the Plaintiffs referred to as the 'suit house'. Thus, the ownership is claimed by the Plaintiffs through Vassudev Govekar who acquired the property bearing Survey No. 251/2 (the suit property) on which he constructed incomplete structure (the suit house). At the same time, in para 5, which is relied upon by the Defend....
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....t in the arguments of the Appellants that the Benami Act is not applicable, in any case there is hardly any material produced by the Defendants to support that real owner was Jagannath Govekar. This claim is made only on the ground that it is Jagannath Govekar who had got the suit property acquired in the name of his son Vassudev Govekar. That by itself would not make Jagannath Govekar as the owner of the suit property. RE.: POSSESSION 19. We now advert to the issue of 'possession' and the question as to whether the suit was not maintainable in the absence of any relief qua possession. 20. Once again, the Defendants relied upon the pleadings in the suit. It is argued that the Plaintiffs were not in possession of the suit property as in the plaint the Plaintiffs have themselves stated that they were residing at different places in Goa and not in the suit property. However that is a distorted reading of para 10 of the plaint. Therein, it is only stated as a fact that for the purpose of employment, these Plaintiffs were residing at Margao, Goa or Ponda, Goa. At the same time, it is nowhere stated or admitted that they were not in possession of the suit property. On th....
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....ion was standing in the name of said Vassudev though it was claimed that the real owner was the father late Jaganath which contention cannot be accepted. A person who has unlawfully interfered with a construction existing in the suit property, cannot claim any equities. In view of what has been stated herein above, the Appellants do not have any ownership over the suit property. An act of trespass by putting an illegal construction in a portion of the suit property which otherwise admeasures an area of 1000 square metres, cannot establish that the Appellants are in possession of the suit property as nothing has been disclosed what is the nature of the possession in respect of the remaining portion of the suit property. As pointed out herein above, the promulgated Survey Records stand in the name of the father of the Respondent No. 1, said Vassudev, in such circumstances, merely putting up an illegal structure in a portion of the suit property, can by no stretch of imagination, be assumed that the Appellants were in possession of the suit property as sought to be contested by Shri Desai, learned Senior Counsel appearing for the Appellants. On these facts, we again reiterate that ....
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....expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued Under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court Under Article 141 of the Constitution of India, The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers Under Article 142 of the Constitution as against the law declared. The directions of the Court Under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with t....