Holding

The plaintiff must establish ownership; revenue records are not documents of title, and the lower courts erred in granting a mandatory injunction without adjudicating title.

Summary

Gurunath Manohar Pavaskar and others sued Nagesh Siddappa Navalgund and others for permanent and mandatory injunction, alleging that the defendants had encroached upon land they claimed to own by deed of sale dated 7‑Nov‑1984. The trial court decreed the suit, and the Karnataka High Court upheld the decree, holding that a decision on title was unnecessary in an injunction suit and that the defendants could seek remedy later. On appeal, the Supreme Court held that the plaintiff bears the burden of proving ownership and that revenue records are not documents of title but only raise a presumption of possession. The Court observed that Sections 83 and 101 of the Evidence Act were misapplied and that a mandatory injunction cannot be granted without adjudicating title. Consequently, the Supreme Court set aside the lower courts' judgments and remitted the matter to the trial judge for fresh consideration, allowing the plaintiff to amend the plaint and permitting appointment of a commissioner for measurement.

Issues considered

Whether the plaintiff must prove title to the land in a suit for permanent and mandatory injunction.
Whether revenue records constitute conclusive proof of title.
Whether Sections 83 and 101 of the Indian Evidence Act apply to revenue records in this context.
Whether a court can grant a mandatory injunction as part of a permanent injunction decree without deciding the question of title.
Whether the lower courts erred in shifting the burden of proof to the defendants.

Legislation cited

Code of Civil Procedure, 1908s. 151
Evidence Act, 1882s. 101, s. 110, s. 35, s. 83

Subjects

permanent injunctionmandatory injunctionburden of proofrevenue recorddocument of titleEvidence ActCPCproperty encroachmentappointment of commissioner

Judgment

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
court, the Court G

~ 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
JI
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 remedies in accordance with law in regard to the title C
of the property. [Para 13] [83 E-H, 84-A]
1.5. The interest of justice would be subserved if the
impugned judgments are set aside and the matter is remitted to
the Trial Judge for consideration of the matter afresh. The D
plaintiffs may, if they so desire, file an application for amendment
of plaint praying for declaration of their title as also for damages
as against the respondents for illegal occupation of the land. It
would also be open to the parties to adduce additional evidences.
The trial judge may also appoint a Commissioner for the purpose E
of measurement of the suit land whether an Advocate-
Commissioner or an officer of the Revenue Department. [Para
14] [84 B-C]
CNILAPPELLATE JURISDICTION : Civil Appeal No. 5794
-0f2007. F

From the Judgment and Order dated 4.7.2005 of the High Court
ofKamataka at Bangalore in R.S.A. No. 135 of2003.
S.N. Bhat for the Appellants.
G
Klran Suri and Rajesh Mahale for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
H
l__.
I

80 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 2. Defendants before the Trial Court are the appellants herein.
3. Plaintiffs - Respondents filed a suit against the appellants
praying inter alia for the following reliefs:
"(a) That the encroached portion of the suit property by erection
B of structure measuring 369 119 sq. yards be directed to be
demolished at the cost and risk of Defendant No. 1 to 5
consequently defendants be further directed to maintain the rules
of set-back in respect of his remaining construction enabling
plaintiff to use and enjoy the free light and air to his property and
c similarly defendants No. 6 be directed to remove the sign board
and the firm from the encroached area of the suit property.
Further defendants be directed to give the respective vacant
possession of the suit land to the plaintiffs.
D (aa) A decree of permanent injunction against defendants, their
agents, their relative or any body on their behalf to interfere with
the plaintiffs peaceful possession and enjoyment of suit property ... "
4. Respondents contended that they are owners of a portion of
Survey No. 1008/1 bearing CTS Nos. 4823/A-17 and 4823/A-18
E measuring 662 219 and 533 319 square yards respectively and the
appellants who are the owners of the abutting land bearing CTS No.
4823/A-1 had encroached upon a portion of CTS Nos. 4823/A-17
and 4823/A-18 measuring 249 1/9 and 120 square yards respectively.
Plaintiffs purchased the said plots by a deed of sale dated 7.11.1984,
F whereas the date of purchase made by the defendants dated 17.8.1992
5. The learned Trial Judge having regard to the pleadings of the
parties framed issues; issue No. 3 whereof reads as under:
"3. Whether the defendant Nos. 1 to 5 proves that the vendor
G of the plaintiff by way of fabrication of false documents had sold
the suit schedule property to these plaintiffs, thus, the plaintiffs
are not the owners of the suit schedule property?"
It was answered stating:
H
·i
GURUNATH MANO HARP. & ORS v. NAGESH 81
SIDDAPPANAVALGUND & ORS. [SINHA, J.]
"My answers to the above issues are as follows: A
-f *** *** ***
Issue No. 3 Does not arise."
6. During the pendency of the said suit, an application for
injunction was filed. Allegedly, the appellants raised constructions upon B
the suit land in violation of the said order of injunction. The learned
Trial Judge in regard to the title of the plaintiffs over the suit land held:
" ... According to the learned counsel for the plaintiff since CTS
No. 4823/Al is completely acquired by the Municipal
Corporation Belgaum for Malmaruti Extension scheme then the c
property of the defendant no. 1 to 6 is not in existence in the
name of defendants. But according to me since the defendant
no. 1 to 5 also have purchased the property through a registered
sale deed and also their vendors have also purchased the said
property through a registered sale deed and as such it cannot be D
, said that. the property of defendants are not in existence. But at
the same time the say of the defendant cannot be taken into
believed (sic) that the CTS No. 4823/Al7 and4823/Al8 are
not in existence. When in the survey map as well as in other
documents these properties are clearly demarcated and identified E
then according to me, these ·properties have been clearly
demarcated in relevant records ... "
~ 7. The High Court affmned the said findings stating:
~

..,
"It is also cleat; from the perusal of the judgment and decree F
passed by the courts below that both the courts below have
rightly decided on the basis that it is unnecessary to give any
decision on the title of the property as the suit is for permanent
~
and mandatory injunction and the trial court has rightly observed
that it is always open to the defendants to work out their remedy G
in accordance with law, regarding their title to the property CTS
¥ No. 4823/Al and no finding could be given on title in the present
case and when there is no finding on the title of the property in
the present case, it is clear that it is always open to the defendants
H l~
: .. *IJ

,.,,
;
\
+--
i

82 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A to work out their remedy, in accordance with law. It is clear
from the perusal of the material on record that defendant No. 6
who also suffered decree of injunction and permanent injunction
though had filed first appeal before the lower appellate court has
·not chosen to challenge the judgment and decree passed by first
B appellate court in RA 252/2001 ... "
8. Indisputably, an Advocate-Commissioner was appointed. He
filed a report. An objection thereto was also filed. He, however, could .
"

not be cross-examined. His report, therefore, could not have been
c taken into consideration although the same formed part of the record.
9. The High Court although took into consideration the fact that
the plaintiffs did not seek for any declaration of title, as noticed
hereinbefore, opined that the question of title can be gone into in an
appropriate suit. All the courts relied on Ex. P-35 which was allegedly
D produced by the appellants but were made use of by the respondents,
wherein it had been shown that the chalta No. 63 was allotted in
respect of CTS No. 4823/A-1, chalta No. 62-A was allotted in respect
of CTS No. 4823/A-17 and chalta No. 62-B was allotted in respect
ofCTS No. 4823/A-18.
E
10. It is one thing to say that there does not exist any ambiguity
as regards description of the .suit land in the plaint with reference to the
boundaries as mentioned therein, but it is another tiring to say that the
land in suit belongs to the respondents. /.

F It was for the plaintiffs to prove that the land in suit formed part
>

ofCTS Nos. 4823/A-17 and 4823/A-18. It was not forthe defendants
to do so. It was, therefore, not necessary for them to file 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
..
G
Advocate-Commissioner was not correct. The suit could not have
been, therefore, decreed inter alia on the basis of Ex. P-35 alone. In
a case of this nature, even Section 83 of the Indian Evidence Act
would not have any application.
H 11. Furthermore, the High Court committed an error in also
GURUNATH MANOHAR P. & ORS v. NAGESH 83
SIDDAPPANAVALGUND&ORS. [SINHA,J.]
throwing the burden of proof upon the defendants - appellants without A
taking into consideration the provisions of Section 101 of the Indian
Evidence Act. In Narain Prasad Aggarwal (D) by LRs. v. State of
MP [2007 (8) SCALE 250], this Court opined:
"22. Record of right is not a document of title. Entries made B
therein in terms of Section 35 of the Indian Evidence Act although
are admissible as a relevant piece of evidence and although the
same may also carry a presumption of correctness, but it is
beyond any doubt or dispute that such a presumption is
rebuttable." c
12. A revenue record is not a document of title. It merely raises
a presumption in regard to possession. Presumption of possession
and/ or continuity thereof both forward and backward can also be
raised under Section 110 of the Indian Evidence Act. The courts
below, were, therefore, required to appreciate the evidence keeping in D
view the correct legal principles in mind.
13. The courts below appeared to have taken note of the entries
made in the revenue records wherein the name of the Municipal
Corporation, Belgaum appeared in respect of CTS No. 4823/A-l. E
We have, however, noticed that the learned Trial Judge proceeded on
the basis that the said property may be befonging to the defendants -
appellants. The courts below not only passed a decree for prohibitory
injunction but also passed a decree for mandatory injunction. The High
Court opined that the Trial Court could exercise discretion in this F
behalf. It is again one thing to say that the courts could pass an
interlocutory order in the nature of mandatory injunction in exercise of
its jurisdiction under Section 151 of the Code of Civil Procedure 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 G
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 permanent injunction in mandatory form without
deciding the question of title and/or leaving the same open. How, in the
event the structures are demolished, it would be possible for the I-!
~-
\

84 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A appellants to work out their remedies in accordance with law in regard
to the title of the property has not been spelt out by the High Court.
14. We, therefore, are of the opinion that the interest of justice
would be subserved if the impugned judgments are set aside and the
B matter is remitted to the learned Trial Judge for consideration of the
matter afresh. The plaintiffs may, if they so desire, file an application
for amendment of plaint praying inter alia for declaration of his title as
also for damages as against the respondents for illegal occupation of
the land. It would also be open to the parties to adduce additional
C evidence(s). The learned Trial Judge may also appoint a Commissioner
for the purpose of measurement of the suit land whether an Advocate
- Commissioner or an officer of the Revenue Department.
15. Before us, additional documents have been filed by the
appellants showing some subsequent events. It would be open to the
D defendants to file an application for adduction of additional evidence
before the Trial Judge which may be considered on its own merits.
16. The appeal is allowed vvith the aforementioned observations.
We would request the Trial Court to consider the desirability of disposing
E of the matter as expeditiously as possible and preferably within a
period of six months from the date of communication of this order.
Costs of this appeal shall be the cost in the suit.
D.G Appeal allowed.