GURUNATH MANOHAR PAVASKAR & ORS versus NAGESH SIDDAPPA NAVALGUND & ORS.

Citation: [2007] 13 S.C.R. 77 · Decided: 11-12-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

GURUNATH MANOHAR PAVASKAR & ORS 
A 
v. 
NAGESH SIDDAPPA NAVALGUND & ORS. 
DECEMBER 11, 2007 
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.] 
B 
Evidence Act, 1882: ss. 83 and 101- Suit for permanent 
injunction - Courts below relying on revenue record entries 
produced by defendant, decreed the suit holding that properties 
were demarcated in revenue records - Held: Revenue record is not c 
document of title - It merely raises presumption in regard to 
possession - Jn the interest of justice, impugned judgments set 
aside and matter remitted to trial judge for fresh consideration -
Code of Civil Procedure, 1908 - s.151, o.39 rr. 1 and 2. 
D 
) 
Plaintiff-respondents filed a suit for permanent and 
mandatory injunction on the ground that they were owners of 
suit land and the appellants, who were the owners of the abutting 
land, had encroached upon a portion of their land, and prayed 
for direction to demolish the structure erected thereon. During E 
the pendency of the said suit, an application for interim injunction 
was filed. Allegedly the appellants raised construction upon the 
suit land in violation of order of injunction. The Trial Judge 
decreed the suit. On appeal, the High Court upheld the finding 
of lower court that it was unnecessary to give any decision on F 
the title of the property as the suit was for permanent injunction 
and that it was open to appellants to work out their remedy in 
accordance with law. Hence the present appeal. 
Allowing the appeal and remitting the matter to the trial 
G 
court, the Court 
~ 
HELD: 1.1. It was for the plaintiffs to prove that the land 
in suit formed part of their lands. It was not for the defendants 
to do so. It was, therefore, not necessary for defendants to file 
77 
}] 
78 
SUPREME COURT REPORTS 
[2007] 13 (Addi.) S.C.R. 
A an application for appointment of a Commissioner nor was it 
necessary for them to adduce any independent evidence to 
establish that the report of the Advocate- Commissioner was 
not correct. The Advocate-Commissioner who filed the report 
could not be cross-examined. His report therefore could not 
B have been taken into consideration. The suit could not have 
been, therefore, decreed on the basis of Ex.P-35 alone, which 
was allegedly produced by the defendants but was used by the 
plaintiffs. In a case of this nature, even s.83 of the Evidence Act 
would not han any application. [Para 10] [82 F-G J 
c 
1.2. Furthermore, the High Court committed an error in 
also throwing the burden of proof upon the defendants-appellants 
without taking into consideration the provisions of s.101 of the 
Evidence Act. !Para 11] 182-H, 83-A] 
D 
1Varain l'ra.1ad Aggarwal(D) by LRs. v. State uf MP 2007 
(8) SCALE 250- Relied on . 
. I .3. A rennue record is not a document of title. It merely 
raises a presumption in regard to possession. Presumption of 
E possession and/or continuity thereof both forward and backward 
can also be raised under s. I I 0 of the Evidence Act. The courts 
below, were, therefore, required to appreciate the evidence 
keeping in view the correct legal principles in mind. [Para 12] 
(83-C-D] 
F 
1.4. The courts below appeared to have taken note of the 
entries made in the revenue records wherein the name of the 
Municipal Corporation, appeared in respect of CTS No. 4823/ 
A-l. However, the trial judge proceeded on the basis that the 
said property may be belonging to the defendants appellants. 
G The courts below hot only passed a decree for ;,rohibitory 
injunction but also passed a decree for mandatory injunction. 
The High Court opined that the Trial Court could exercise 
discretion in this behalf. It is again one thing to say that the 
courts could pass an interlocutory order in the nature of 
H 
J 
I 
GURUNATH MANO HARP. & ORS v. NAGESH 
79 
SIDDAPPANAVALGUND & ORS. [SINHA, J.] 
mandatory injunction in exercise of its jurisdiction under s.151 A 
CPC on the premise that a party against whom an order of 
injunction was passed, acted in breach thereof; so as to relegate 
the parties to the same position as if the order of injunction has 
not been violated, but it is another thing to say that the courts 
shall exercise the same power while granting a . decree of B 
permanent injunction in mandatory from without deciding the 
question of title and/or leaving the same open. It has not been 
spelt out by the High Court as to how, in the event the structures 
are demolished, it would be possible for the appellants to work 
out their reme

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