Case Note & Summary
The appellant, original plaintiff, filed a suit for permanent injunction to restrain the defendants from obstructing her cultivating possession over suit land bearing Gat No.403 admeasuring 0.43 R at village Kolwad. The plaintiff claimed to have purchased the land by sale deed dated 15.11.1995 and was in cultivating possession. The Trial Court, while holding that the plaintiff had established purchase and possession, dismissed the suit on the ground that the description of the suit property in the plaint did not tally with the sale deed, and the plaintiff had not filed any plan or sketch map. The Trial Court relied on Order 7 Rule 3 CPC. The First Appellate Court confirmed the dismissal. In second appeal, the High Court found that the courts below had misapplied Order 7 Rule 3 CPC, as the plaintiff had established title and possession, and the discrepancy in description did not justify dismissal. The High Court framed a substantial question of law and allowed the appeal, setting aside the judgments and decree of the courts below and remanding the matter to the Trial Court for fresh decision in accordance with law.
Headnote
A) Civil Procedure - Order 7 Rule 3 CPC - Property Description - Suit for Permanent Injunction - The Trial Court dismissed the suit for permanent injunction on the ground that the description of the suit property in the plaint did not tally with the sale deed, and the plaintiff failed to file a plan or sketch map. The First Appellate Court confirmed the dismissal. The High Court held that the courts below misapplied Order 7 Rule 3 CPC, as the plaintiff had established purchase and possession of the suit property, and the discrepancy in description did not warrant dismissal without considering other evidence. (Paras 1-3)
B) Civil Procedure - Substantial Question of Law - Second Appeal - The High Court framed a substantial question of law regarding the misapplication of Order 7 Rule 3 CPC and allowed the appeal, setting aside the judgments of the courts below and remanding the matter for fresh consideration. (Paras 3-4)
Issue of Consideration
Whether the Trial Court and First Appellate Court were justified in dismissing the suit for permanent injunction solely on the ground of discrepancy in property description, despite the plaintiff having established purchase and possession of the suit property.
Final Decision
The High Court allowed the second appeal, set aside the judgments and decrees of the Trial Court and First Appellate Court, and remanded the matter to the Trial Court for fresh decision in accordance with law. The parties were directed to appear before the Trial Court on 27.01.2020.
Law Points
- Order 7 Rule 3 CPC
- Suit for permanent injunction
- Property description
- Possession
- Title
- Substantial question of law
Case Details
2020 LawText (BOM) (01) 169
Second Appeal No.120/2011
Shri Jaideep J. Chandurkar for appellant; None for respondents
Sau. Godawaribai Purushottam Bawaskar
Sitaram Bhagwan Paithane, Pandurang Bhagwan Paithane, Vitthal Bhagwan Paithane
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Nature of Litigation
Suit for permanent injunction and confirmation of possession over agricultural land.
Remedy Sought
The plaintiff sought a decree of permanent injunction restraining the defendants from obstructing her cultivating possession over the suit property and confirmation of her possession.
Filing Reason
The plaintiff claimed that the defendants were obstructing her possession over the suit land which she had purchased by sale deed dated 15.11.1995.
Previous Decisions
The Trial Court dismissed the suit on 30.01.2006 on the ground of discrepancy in property description. The First Appellate Court dismissed Regular Civil Appeal No.24 of 2006 confirming the Trial Court's decision.
Issues
Whether the Trial Court and First Appellate Court were justified in dismissing the suit for permanent injunction solely on the ground of discrepancy in property description, despite the plaintiff having established purchase and possession of the suit property.
Submissions/Arguments
The appellant/plaintiff argued that the courts below misapplied Order 7 Rule 3 CPC and erred in dismissing the suit despite her having proved purchase and possession.
The respondents did not appear.
Ratio Decidendi
The courts below misapplied Order 7 Rule 3 CPC by dismissing the suit solely on the ground of discrepancy in property description, despite the plaintiff having established purchase and possession of the suit property. The substantial question of law regarding misapplication of Order 7 Rule 3 CPC was answered in favor of the appellant.
Judgment Excerpts
The learned Trial Court in spite of holding that the plaintiff had established purchase of the land of Gat No.403 admeasuring 0.43 R by virtue of the sale deed dated 15.11.1995 and that the plaintiff was in cultivating possession, dismissed the suit on the ground that the description as given in the plaint in respect of the suit property and that as contained in the sale deed did not tally.
The learned Trial Court relied upon Order 7 Rule 3 of the CPC and found that the boundaries as mentioned in the sale deed at Exhibit 32 did not support the claim of the plaintiff that the land purchased under the sale deed was in 'L' shape and the obstruction was of one leg of this 'L' and dismissed the suit.
Procedural History
The plaintiff filed a suit for permanent injunction in the Trial Court, which was dismissed on 30.01.2006. The plaintiff appealed to the First Appellate Court (Regular Civil Appeal No.24 of 2006), which dismissed the appeal. The plaintiff then filed the present Second Appeal No.120/2011 before the High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 7 Rule 3
