Holding

The Supreme Court held that the respondents are the owners of the suit property, the Benami Act bars the defendants' claim, the suit is maintainable, the defendants are not in possession, and the appeals are dismissed with directions for possession and compensation.

Summary

The dispute concerned the ownership of a house (Survey No. 251/2) in Anjuna, Goa, which the respondents claimed was a permanent grant to their father Vassudev Govekar. The appellants, relatives of the deceased owner, argued that the property actually belonged to their grandfather Jagannath Govekar and had erected a new structure after demolishing the old house. The respondents sued for specific performance and a mandatory injunction to demolish the illegal construction. The trial court dismissed the suit, but the first appellate court and the High Court held that the respondents proved ownership through the grant, survey records and inventory proceedings, barred the defendants’ claim under Section 4(2) of the Benami Transactions (Prohibition) Act, and ordered demolition. The Supreme Court affirmed the respondents’ ownership, held that the Benami Act applied, found that the suit was maintainable without a separate prayer for possession, and concluded that the defendants were not in possession. Using its powers under Article 142, the Court dismissed the appeals and directed the respondents to take possession of the house without demolition, while compensating the appellants for the cost of the construction.

Issues considered

The respondents proved ownership of the suit property.
The applicability of Section 4(2) of the Benami Transactions (Prohibition) Act, 1988 to the defendants' claim of Jagannath Govekar as the real owner.
Whether a suit for specific performance and mandatory injunction is maintainable without a prayer for possession.
Whether the defendants' construction on the suit property confers possession rights.
The appropriate equitable relief under Article 142 of the Constitution.

Legislation cited

Benami Transactions (Prohibition) Act, 1988s. 4(2)

Subjects

property disputeownershippossessionspecific performancemandatory injunctionBenami ActArticle 142equitable reliefconstruction demolitionco-ownership

Judgment

[2016] 12 S.C.R. 174

A VISHRAM @ PRASAD GOVEKAR & ORS.
v.
SUDESH GOVEKAR (D) BY LRS. & ORS.
(Civil Appeal Nos. 12068-12070of2016)
DECEMBER 14, 2016
B
[A. K. SIKRI AND N.V. RAMANA, JJ.]
Suit - Ownership and possession - Property dispute between
the parties related to each other - Suit property acquired by the
father as a permanent grant for the construction of the house -
Suit for specific performance and mandatory injunction by
c respondents(children and son-in-laws of the owner)_ against the
appellants(owner :S brother and others) - Sought demolition of the
construction carried out by the appellants on the suit property -
Dismissal by trial court, however, allowed by first appellate court
and High Court - On appeal, held: Respondents successfully
D discharged their onus ofproving the ownership by filing appropriate
documents - Statement about the respondents and appellants as
to-owners in title and in possession pertains to adjoining property
not suit property -Plea of the appellants that relief for possession
should have been sought is clearly untenable - Respondents sought
relief of mandatory injunction seeking demolition of the construction
E carried out by the appellants on the suit property as it was illegally
put up by the'-tlppellants - Appellants have made new construction
on the suit property and its demolition would result in wastage of
the expenditure incurred on the construction - To balance the
equities, in exercise of powers u/Art.142, respondents to take
F possession of the house without its demolition, and, at the same
time, compensate the appellants by paying the cost of
construction - Constitution of India - Art. 142.
Dismissing the appeals, the Court
HELD: 1.1 The first appellate court as well as the High
G Court held that the plaintiffs are the owners of the suit property,
which rights they have inherited from VG, father of plaintiffNos.1-
3. Findings of the courts below are that the suit property, was
acquired by VG from Communidade of Anjuna as a permanent
grant for the construction of the house. In order to prove the
ownership, the said grant was produced op record as also the
H
174
VISHRAM @ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 175
BYLRS.

plaintiffs filed evidence of the Inventory Proceedings initiated A
upon the death of VG which described_the suit property. Duly
promulgated survey records showing the property standing in
the name of VG were also produced. While holding that conclusion
of the first appellate court that the said documents clearly evinced
the ownership of VG, the High Court analysed these documents, B
coupled with the defendants' admission. [Para 15) [184-F-H; 185-
A)
1.2 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 the plaint,
the plaintiffs have given the description of the suit property as c
bearing Survey No. 251/2. It is mentioned that VG acquired this~
property from Communidade of Anjuna; and that on this suit
property, incomplete structure was raised by VG which the
plaintiffs referred to as the 'suit house'. Thus, the ownership is
claimed by the plaintiffs through VG who acquired the property D
bearing Survey No. 251/2 (the suit property) on which he
constructed incomplete structure (the suit house). The plahitiffs
have stated that towards the eastern side of the suit property,
there exists another property bearing Survey No. 25114. The
plaintiffs pleaded that on thl$ land, whereupon a house is also
constructed0 belonged to their grandfather JG (father of defendant E.
No.1) and it 'is this property which the plaintiffs say is in the co-
ownership of the plaintiffs and defendants. Thus, the statement
about the plaintiffs and defendants as co-owners in title and in
'possession pertains to property bearing Survey No. 251/4 which
is not the subject matter of the suit. As far as the suit property is F
concerned, it bears Survey No. 25112, in respect of which, there
is no admission on the part-of the plaintiffs. [Para 16) (186-G-H;'
l87-A-E] .
·1.3 Once this aspect of so-called admission of the plaintiffs
is found to be non-existing, the entire edifice of the argument of G
the defendants crumbles down. This is also a complete answer to
the argument that the suit of the plaintiffs was not maintainable
in the absence of any declaration as to title. The plaintiffs ·had
categorically claimed in the plaint that insofar as suit property
bearing Survey No. 251/2 is concerned, they are the owners
H
176 SUPREME COURT REPORTS f2016l 12 S.C.R.

A thereof. Of course, they had to prove the ownership by filing
appropriate documents because of the reason that the defendants
in their written statement denied plaintiffs' ownership claiming
that the property covered by Survey No. 251/2 was, in fact, allotted
to JG and not VG. The plaintiffs successfully discharged their
onus. [Para 17] (187-E-H]
B
1.4 There is no dispute that in the revenue records property
stood in the name of VG and not JG. The first appellate court
rightly held that the plea with regard to the real owner of the
property being JG could not be gone into as it was barred by the
provisions of Section 4(2) of the Benami Act. Though there is no
c merit 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 JG. This claim
is made only on the ground that it is JG who had got the suit
property acquired in the name of his son VG. That by itself would
D not make JG as the owner of the suit property. [Para 18] [188-A-
C]
1.5 The defendants relied upon the pleadings in the suit
and submitted that the plaintiffs were not in possession of the
suit property as in the plaint the plaintiffs have themselves stated
E that they were residing at different places in Goa and not in the
suit property. However, that is a distorted reading 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 the
F contrary, it is specifically stated that since they were staying away
from the suit property, they used to visit the suit property
occasionally. This makes the stand of the plaintiff categorical to
the effect that they claimed their possession over the suit property.
On the other hand, insofar as defendants are concerned, the plaint
G averred that they were residing in property bearing Survey No.
25114 and the house situated therein. In. fact, co-o-wnership and
co-possession of that property is also claimed. It is in this backdrop
the case made out by the plaintiffs is that when plaintiff Nos. 1, 3
and 5 visited the suit property on December 30, 2006, they found
that the 'suit house' had been demolished by the defendants on
H
VISHRAM @ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 177
BY LRS.

which they were carrying a new construction. In the light of these A
pleadings, the plaintiffs sought the relief of mandatory injunction
seeking demolition of the construction carried out by the
defendants on the suit property bearing Survey No. 251/2 as it
was illegally put up by the defendants on plaintiffs' land. Therefore,
the submission that relief for possession should also have been
B
sought is clearly untenable. [Para 20) [188-D-H; 189-A]
1.6 The defendants have made new construction on the
property of the plaintiffs. Demolition of the said construction is
not going to help any party. It would result in wastage of the
expenditure incurred on the construction. No doubt, the structure
is constructed illegally by the defendants. Nevertheless, plaintiffs C
can make use thereof. Therefore, equities can be balanced if the
plaintiffs take possession of the house in question without its
demolition, but, at the same time, compensate the defendants by
paying the cost of construction. In these circumstances, in the
execution petition which is filed, or ought to be filed by the D
plaintiffs, the executing court would appoint a Surveyor/Valuer
who would fix the cost of construction that would be reimbursed
by the plaintiffs to the defendants. These directions are given in
exercise of powers under Article 142 of the Constitution of India
in order to do complete justice in the matter and to see that the
defendants also do not suffer and the structure put by them is not E
wasted. [Paras 22, 23] [190-C-F)
Anathula Sudhakar v. P. Buchi Reddy (Dead) By Lrs. &
Ors. (2008) 4 SCC 594 : 2008 (5) SCR 331 - held
inapplicable.
F
State of Punjab & Ors. v. Rafiq Masih (Whitewasher)
(2014) 8 SCC 883 : 2014 (8) SCR 228; Gaiv Dinshaw
Irani & Ors. v. Tehmtan Irani & Ors. (2014) 8 SCC
294 - relied on.
Case Law Reference G
2008 (5) SCR 331 held inapplicable Para 11
2014 (8) SCR 228 relied on Para 23
(2014) 8 sec 294 relied on Para 24
H
178 SUPREME COURT K.EPORTS [2016] 12 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 12068-
12070 of2016.
From the Judgment and Order dated 29.11.2013 of the High Court
ofBombay at Goa in Second Appeal No. 138 of2012 with Stamp Number
(Appln) No. 2279 of2013 and Civil Application No. 193 of2012.
B Huzefa Ahmadi, Sr. Adv., Ninad Laud, Karan Mathur, Anjuman
Tripathy, Jayant Mohan, Ad vs. for the Appellants.
Ms. A. Subhashini, Adv. for the Respondents.
The Judgment of the Court was delivered by
C A.K. SIKRI, J. I. Leave granted.
2. It is a property dispute between the parties who are related to
each other. It becomes desirable to take note of their relationship before
proceeding with the factual background that led to the dispute. Following
is the sketch of the family tree which describes the parties:
D
f6MILYIBfli

IJ.TE J..\GANNA.i'M Go\i'tl(AR --··---"4' Uito LlhtVa:'.U

(Oef.fndW 3/R~ e;

E

,...------------------,
I
~-1
F Vishram ·wlf&---). Sunrta

H
VISHRAM @ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 179
BY LRS. [A.K. SIKRI, J.]

3. As can be gathered from the above, respondent Nos. I to 3 are A
the children and respondent Nos. 4 and 5 are the sons-in-law of late
Vassudev Govekar. On the other hand, appellant No.I is the uncle
(brother of late Vassudev Govekar) of the respondents. Appellant No.2
is the wife of appellant No. I and appellant No.3 is their son. Vassudev
Govekar and Vishram (appellant No. l) are the sons oflate Shri Jagannath
B
Govekar, whose wife Lilavati (since deceased) was also arrayed as
defendant No.3 in the suit that was filed by respondent Nos. 1to5. The
three appellants herein were respondent Nos. I, 2 and 4 in the said suit.
THE SUIT
4. The suit filed by respondent Nos. I to 5 (hereinafter referred to c
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 D
the plaintiffs that this property was acquired by late Shri Vassudev
Govekar from the Communidade of Anj una, 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 E
grandfather late· Shri Jagannath Govekar and thereupon a house was
constructed by him. It was further averred that the plaintiffs and
defendants are the co-owners in title and in possession of the said property
bearing Survey No. 25114 as well as the house situtated thereupon.
Defendants have been residing in the suit property and insofar as plaintiffs
are concerned, they were residing away from the suit property to earn F
their livelihood. It was also averred that late Shri Vassudev Govekar,
during his lifetime, was enjoying the suit property and after his death the
plaintiffs and other co-owners were enjoying the said property and the
house without interruption. However, when plaintiff Nos. 1, 3 and 5
visited the suit property on December 13, 2006, at about 5:00 p.m., they G
were shocked to see that the suit house was demolished and in its place
a new construction of structure having 18 sq.mts. length and 12.20 sq.mts.
width, comprising 219.60 sq.mts. area, was being constructed and the
construction had reached from ground level to slab level height. The
plaintiffs protested this kind of invasion by the defendants with a request
H
180 SUPREME COURT REPORTS [2016] 12 S.C.R. -~

A for them to stop the construction of the said illegal structure. It did not
yield any result. They everi complained to the Village Panchayat and
police station, but without any positive effect. This led them to file the
aforesaid suit with following prayers:
"(a) the Defendants, their family members, agents, servants
B and/or any person acting on their behalf and/or under their
instructions be restrained by way of permanent injunction
from interfering with the suit property and to the suit illegal
structure in whatsoever nature;
(b) the Defendants be directed by way of mandatory
c injunction to demolish the suit illegal structure;
(c) the temporary injunction in terms of prayer (a) above
be granted;
(d) ad-interim ex~parte relief in terms of prayer (c) above
granted;
D
(e) any other reliefs which deem fit and proper be kindly be
granted in favour of the Plaintiffs;
(f) costs ofthe suit be awarded to the Plaintiffs."
S. The defendants contested the suit by filing their written
E statement and, inter alia, contended that during the lifetime ofVassudev
Govekar itself, he had precluded himself from enjoying the suit property.
It was pleaded that Talhao No. 168 of Communidade of Anjuna was
actually acquired by Jagannath Govekar (father of defendant No. I and
Vassudev), who had constructed a house, which was in occupation of
the defendants since its construction in the year 1969. It was further
.F
pleaded that insofar as property bearing Survey No. 25114 is concerned,
that belonged to defendant Nos. I 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 fa~nily to go to Vasco Da Gama in the
year 1957 where he was employed in Kamat Garage.
G 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,
H
VISHRAM @ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 181
BY LRS. [A.K. SIKR1, J.]

1908, which was heard by the learned Additional District Judge, who, A
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
impugned judgment dated November 29, 2013, dismissed the appeal
B
thereby affirming the decree passed by the lower appellate court.
7. We may mention at this stage that the decree which is passed
by the first appellate court is in the following terms:
"It is ordered that appeal is allowed. Consequently, the
impugned Judgment and Decree is quashed and set aside. c
Hence, the suit filed by the plaintiffs stands decreed, with
costs. The defendants, their family members,. agents,
servants and/or under their instructions are hereby
restrained, by way ofpermanent injunction, from inte1fering
with the suit property and the suit illegal structure. The
defendants are also directed, by way of mandatory D
injunction, to demolish the suit illegal structure, within three
months from the date of this Judgment."
8. Insofar as the trial court is concerned, it had returned the findings
that a cloud was raised over the title of the plaintiffs and further that
they were not in possession of the suit property. The trial court also E
recorded a finding to the effect that it is the defendants who were in
possession of the suit property. In view thereof, as per the trial court, in
the absence of prayer for seeking possession, the plaintiffs were not
entitled for an injunction simpliciter. As regards the ownership, the trial
court held that though Vassudev Govekar did not have title to the suit F
property, the said property came to be enlisted in Inventory Proceedings
which does not create any title in favour of the plaintiffs. The suit house
stands in the name of Lilavati (defendant No.3), who is the wife of
Jagannath Govekar and, therefore, plaintiffs were not the sole owners
of the said property.
G
From the aforesaid, it is clear that as per the trial court, Vassudev
Govekar was not the owner; plaintiffs were not in possession; and
defendants were found in possession. In these circumstances, the suit
for injunction simpliciter was not maintainable without there being a relief
seeking possession of the suit property as well.
H
182 SUPREME COURT REPORTS [2016) 12 S.C.R.

A JUDGMENT OF THE FIRST APPELLATE COURT
9. The first appellate court overturned the aforesaid findings by
coming to the conclusion that the plaintiffs were able to successfully
prove that they were the owners of the suit property and further that
defendants had no righttherein. For arriving at this conclusion, the learned
B Additional District Judge took note 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

c 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 ;.i,;llity, more so, when
plaintiffs had proved on record that grant was in the name ofVassudev
D Govekar and further that survey records were also standing in the name
of the plaintiffs, which led to presumption ofownership in their favour.
"No doubt, it was Jagannath Govekar (father ofVassudev Govekar) who
had applied for grant in the name ofVassudev 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
E
(Prohibition) Act, 1988 (hereinafter referred to as the 'Benami Act')
precluded the defendants from taking such a defence that the property
in fact belonged to Jagannath Govekar.
As far as possession of the suit property is concerned, the learned
Additional District Judge found that though the defendants claimed that
F ~hey were in possession of house bearing No. 1653(1), in the electoral
roll, against the name ofdefendant No. I, house No. 1653 was mentioned.
;

On the aforesaid basis, the first appellate court proceeded further
to hold that since the plaintiffs had succeeded in proving that they are
the owners of the suit property, the construction put up by the defendants
G in the said property was illegal. Therefore, the plaintiffs were also entitli;:d
to the reliefof mandatory injunction and passed the decree for demolishing
the illegal construction. It was further held that relief for demolishing of
illegal construction in substance was for possession of the property and,
thus, the suit in the said form was maintainable.
H
VISHRAM@ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 183
BY LRS. [A.K. SIKRI, J.]

10. The High Court has concurred with the aforesaid approach of A
the first appellate court.
ARGUMENTS OF THE APPELLANTS/DEFENDANTS
11. Before us, following contentions were raised by Mr. Huzefa
Ahmadi, learned senior counsel appearing for the defendants (appellants
B
herein):
(1) The suit filed_by the plaintiffs is not maintainable forthe reason
that they did not pray for the decree of possession, despite
admitting that it is the defendants who were in possession of the
suit property. It was, thus, argued that in the absence of any
relief for possession, such a suit could not have been filed. For c
this, he placed reliance on the judgment of this Court in A11athula
. Sudhakar v. P. Bue/ii Reddy (Dead) By Lrs. & Ors.'
(2) Maintainability of the suit was questioned on the ground that'
the plaintiffs did not even seek any declaration as to title and had
made a prayer simpliciter for injunction even when there was D
cloud over the title.
(3) Findings of the High Court to the effect that the owner of the
property as per the records is Vassudev Govekar and plea of the
defendants that it actually belonged to Jagannath Govekar was
hit by the provisions of Section 4(2) of the Benami Act was E
challenged on the ground that the Benami Act came into force
only on May 19, 1988, whereas the transaction in question was
prior to the said date and, therefore, the Benami Act was not
applicable in the instant case.
12. In respect of the aforesaid arguments, the learned senior .F
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~; ~iew of these admissions,
G
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
1
(2008) 4 sec 594 H
184 SUPREME COURT REPORTS f2016l 12 S.C.R.

A (respondents herein), on the other hand, submitted that the suit was
maintainable in the fonn 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
B
seeking possession was correct in fact and in law and, therefore, no
interference was called for. Likewise, it was argued that the title to the
property in question was clearly proved on the basis of documents
showing that owner of the property was Vassudev Govekar and as
successors thereof, the ownership devolved upon them. Therefore, it
c was not necessary for the plaintiffs to have sought for the relief of
declaration and possession. It was submitted that the trial court had
committed a grave error in observing that there was a cloµd raised over
the plaintiffs title or that they were not in possession, which was rightly
rectified by the first appellate court and these findings were upheld by
D the High Court. Thus, according to the learned counsel, no substantial
question of law arises and appeals be dismissed.
OUR DISCUSSION
14. Since the objection of the defendants to the maintainability of
the suit is founded on two aspects, namely: (i) the ownership of the suit
E property in question, and (ii) possession thereof, it becomes necessary
to deal with these aspects. We shall first take up the issue of ownership.
RE.: OWNERSHIP
1S. We have already noticed above, the basis on which the first
appellate court as well as the High Court has held that the plaintiffs are
F the owners of the suit property, which rights they have inherited from
Vassudev Govekar, father ofplaintiffNos. I to 3. Findings of the courts
below are that the suit property, viz. Talhao No. 168 ofCommunidade of
Anjuna, was acquired by Vassudev Govekar from Communidade of
Anjuna under No. 131 /1963 on February 24, 1970 as a permanent grant
G for the construction of the house. In order to prove this ownership, not
only the said grant was produced on record, the plaintiffs also filed evidence
of the Inventory Proceedings initiated upon the death ofVassudev Govekar
which described the suit property. Additionally, duly promulgated survey
records showing the property standing in the name ofVassudev Govekar
were also produced. While holding that conclusion of the first appellate
H
· VISHRAM@ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 185
BY LRS. [A.K. SIKRI, J.]

court that the aforesaid documents clearly evinced the ownership of A
Vassudev Govekar, the High Court has analysed these documents,
coupled with the admission of the defendants themselves on these aspects,
in the following words:
"11 ... 0n the basis of such pleadings, the Lower Appellate
Court was justified to come to the conclusion that the fact B
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 Appellants.
This admission is coupled with 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
c
the Survey Records and the earlier house tax records. As
the fact that the prop~rty 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 D
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 E
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 ofDw. l, he has not disputed that the final grant F
was given by the Communidade to Vassudev though he
contended that it was at the instance of the father of the
Appellant no. I, Jaganath. Apart from that, Article 33g. of
the Code of Communidade clearly provides that the
provisional delivery of the land granted, as emphyteusis,
filnnot be considered in legal relations between the G
communidade and the lease holder, as there is an optional
act of mere tolerance, and only the definitive possession
confers to the emphyteuta the rights that the civil law
recognizes and assures. This aspect has to be further read
H
186 SUPREME COURT REPORTS [2016] 12 S.C.R.

A along with the duly promulgated Survey Records which are
also standing in the name of Vassudev besides the other
material produced in the cross examination of Ow. I at
exhibit 78 colly which conclusively established that the suit
property was granted to the said Vassudev and )Vhich
devolved upon the Respondents after his death. The duly
B
promulgated Survey Records in respect of the suit property
surveyed under no. 251/2 stands in the name of said
Vassudev which draws a presumption of possession in his
favour. When it is not in dispute th!it the grant was in
favour of said Vassudev who is the father of the Respondent
c nos. I and 3, such presumption of possession was in
continuation of the title vested in him. The Respcmdents
have also produced the allotment of the Inventory
Proceedings upon the death of said Vassudev which
discloses that the suit property devolved upon the
Respondents. Article 2158 of the Po1tuguese Civil Code,
D
interalia, provides thatthe partition of the properties legally
made in respect of which there had not been any objection,
confers on the co-heirs exclusive ownership of the properties
partitioned among them. Hence, the Lower ., Appellate Court
was justified to hold that said Vassudev was the owner in
E possession of the suit property."
16. Pertinently, learned counsel appearing for the appellants could
not contest the aforesaid approach of the courts below. It is for this
reason, he took an altogether different route by arguing that joint
ownership in the property in question wad admitted by the plaintiffs
F themselves for which purpose he referred to the averments made in the
plaint filed by the plaintiffs. In the first instance, we find that no such
argµmentpredicated on such pleadings have been taken in the courts
below. Be as it may, since the defendants rely upon 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 thatthere is no
G 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
ofAnjuna, Bardez, Goa, having an area of 1000 sq. mts. What is significant
H
VISHRAM @ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 187
BY LRS. [A.K. SlKRI, J.]

is that this property bears Survey No. 25112 and the plaintiffs.described A
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
8
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 defendants in
their attempt to show admission of the plaintiffs as to co-ownership, the
plaintiffs have stated that towards the eastern side of the suit property,
there exists another property bearing Survey No. 2S 1/4. The plaintiffs C
pleaded that on this land, whereupon a house is also constructed, belonged
to their grandfather Jagannath Govekar (father of defendant No. I) and
it is this property which the plaintiffs say is in the co-ownership of the
plaintiffs and defendants. Thus, the statement about the plaintiffs and
defendants as co-owners in title and in possession pertains to property D
bearing Survey No. 25114 which is not the subject matter of the suit.
It is once again emphasised, as far as the suit proper,ty is
concerned, it bears Survey No. 25112. Therefore, in respect of the suit
property, we find that there is no admission on the part of the plaintiffs.
Thus, we do not find merit in this argument, which was hammered by
the learned counsel for the appellants time and again. E

17. Once this aspect of so-called admission of the plaintiffs is
found to be non-existing, the entire edifice of the argument of the
defendants crumbles down. In these circumstances, reliance placed by
the learned counsel on the judgment of this Court in the case of Anatlm/a
Sudliakar would be of no avail. This is also a complete answer to the F
argumentthat the suit of the plaintiffs was not maintainable in the absence
of any declara~ion as to title. The plaintiffs had categorically claimed in
the plaint that insofar as suit,property bearing Survey No. 25112 i§..
concerned, they are the owners thereof. Of course, they had to prove
the ownership by filing appropriate documents because of the reason G
that the defendants in their written statement denied plaintiffs' ownership
claiming that the propert)' covered by Survey No. 251/2 was, in fact,
allotted to Jagannath Govekar·and not Vassudev Govekar. The plaintiffs
successfully discharged their onus.
18. In this context, the question of benami ownership also surfaced. H
188 SUPREME COURT REPORTS [2016] 12 S.C.R.

A There is no dispute that in the revenue records property stood in the
name of Vassudev Govekar and not Jagannath Govekar. The first
appellate court rightly held that the plea with regard to the real owner of
the property being Jagannath Govekar could not be gone into as it was
barred by the provisions of Section 4(2) of the Benami Act. Though we
do not find any merit in the arguments of the appellants that the Benami
B
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
c 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. ·
D
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 I 0 of the plaint. Therein, it
E is only stated asa 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 the contrary, it is specifically stated that since they were
staying away from the suit property, they used to visit the suit property
F occasionally. This makes the stand of the plaintiff categorical to the
effect that they claimed their possession over the suit property. On the
other hand, insofar as defendants are concerned, the plaint averred that
they were residing in property bearing Survey No. 251 /4 and the house
situated therein. In fact, co-ownership and co-possession of that property
is also claimed. It is in this backdrop the case made out by the plaintiffs
G is that when plaintiff Nos. I, 3 and 5 oVisited the suit property on
December 30, 2006 at about 5:00 p.m., they found that the 'suit house'
had been demolished by the defendants on which they were carrying a
new construction. In the light of these pleadings, the plaintiffs sought
the relief of mandatory injunction seeking demolition of the construction
H carried out by the defendants on the suit property bearing Survey No.
VISHRAM@ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 189
BY LRS. (A.K. SJKRI, J.]

25112 as it was illegally put up by the defendants on plaintiffs' land. The A
matter is to be examined in this hue and, therefore, the argument that
relief for possession should also have been sought is clearly untenable.
This aspect has been touched upon and dealt with by the High Court,
with which we concur, in the following manner:
"17. The next contention of Shri S.G. Desai, learned Senior B
Counsel, is with regard to the reliefs sought by the
Respondents-Plaintiffs. The lower Appellate Court has
relied upon the Judgment of this Court to inter alia hold that
as mandatory injunction has been sought by the
Respondents- Plaintiffs in substance, it amounts to relief of
possession. There is nothing on record to suggest that on
c
the date of the filing of the suit, the Appellants have exercised
any legal right of possession in the disputed house and the
. suit property. A sporadic act of trespass by the Appellants
in demolishing the existing structure and attempting to put
up a new construction therein cannot be held to be in D
possession of such structure. Apart from that, the records
reveal that the original house of the Respondents-Plai11tiffs
was in an incomplete state and occupied from time to time
by the Respondents. As referred to herein above, the said
incomplete house was standing in the name of said
Vassudev. Even the Appellants do not dispute that the said E
construction 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 F
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 G
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. I, said Vassudev.
In such circumstances, merely putting up an illegal structure H
190 SUPREME COURT REPORTS f20161 12 S.C.R.

A 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."
B On these facts, we again reiterate that judgment in the case of
Anatliu/a Sudllakar has no application.
21. We, thus, do not find any merit in these appeals, which are
accordingly dismissed with costs.
22. However, before we part with, we have to take into
C consideration one more development. As noted above, the defendants
have made new construction on the property of the plaintiffs. Demolition
of the said construction is not going to help any party. It would result in
wastage of the expenditure incurred on the construction. No doubt, the
structure is constructed illegally by the defendants. Nevertheless,
D plaintiffs can make use thereof. Therefore, equities can be balanced if
the plaintiffs take possession ofthe house in question without its demolition,
but, at the same time, compensate the defendants by paying the cost of
construction. In these circumstances, in the execution petition which is
filed, oroughtto be filed by the plaintiffs, the executing court shall appoint
a Surveyor/Valuer who would fix the cost of construction that would be
E reimbursed by the plaintiffs to the defendants.

23. We are giving these directions in exercise of our powers under
Article 142 of the Constitution oflndia in order to do complete justice in
the matter and to see that the defendants also do ngt suffer and the
structure put by them is not wasted. Such a power in this behalf can be
F exercised as per settled law. In this respect, we would like to usefully
refer to the following passage from the judgment of this Court in State
of Punjab & Ors. v. Rafiq M"sill (WhitewasherF;
"12. Article 142 of the Constitution oflndia is supplementary
in nature and cannot supplant the-substantive provisions,
G though they are not limited by the substantive provisions in
the statute. It is a power that gives preference to equity
over law. It is a justice-oriented approach as against the
strict rigours of the law. The directions issued by the Court
can normally be categorised into one, in the nature of
H '(2014) s sec 883
VISHRAM@ PRASAD GOVEKAR v. SUDESH GOVEKAR (D) 191
BY LRS. [A.K. SIKRI, J.]

moulding ofrelief and the other, as the declaration oflaw. A
"Declaration oflaw" as contemplated in Article 141 of the
Constitution: is the speech express or necessarily implied
by the highest court of the land. This Court in Indian Bank
v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72, Ram
Pravesh Singh v. State of Bihar, (2006) 8 SCC 3 81, and
B
in State of U.P. v. Neeraj Awasthi, (2006) I SCC 667, has
expounded the principle and extolled the power of Article
142 of the Cp~titution oflndia 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 oflndia. They are direction issued to do proper c
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
D
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
rigourof the law in view of the peculiar facts and
circumstances do not comprise the ratio decidendi and E
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
outsige the purview of Article 141 of.the Constitution and
by declaring it a direction of the Court that changes its
F
complexion with the peculiarity in the facts and
circumstances of the case."
24. Almost somewhat similar approach was adopted by this Court
in Gaiv Dinslww Irani & Ors. v. Telimtlln Inmi & Ors. 3, which .j~
clear from the following discussion:
G
"47. Since the lease of 1152 sq fu executed by BMC in
favour ofDinshaw is rendered void ab initio, the construction
by the appellants on the said plot is also illegal. The position
as it exists today is that the re111aining portions oflrani Wadi·
'(2014) s sec 294 H
192 SUPREME COURT REPORTS [2016] 12 S.C.R.

A have been acquired by BMC; and on the other portion, the
structure erected by Dinshaw exists and the portion being
the residential bungalow occupied by the respondents may
also be acquired by BMC in due course.
48. Considering the aforementioned changed circumstances,
B the High Court taking note ofthe subsequent events moulded
the relief in the appeal under Section 96 of the Code of
Civil Procedure and the same has been challenged by the
appellants before us. In ordinary course of litigation, the
rights of parties are crystallised on the date the suit is
instituted and only the same set of facts must be considered.
c However, in the interest ofjustice, a court including a court
of appeal under Section 96 of the Code of Civil Pn;>cedure
is not precluded from taking note of developments
subsequent to the commencement of the litigation, when
such events have a direct bearing on the relief claimed by a
D party or on the entire purpose of the suit, the courts taking
note of the same should mould the relief accordingly. This
rule is one of ancient vintage adopted by the Supreme Court
of America in Pattersonv. Alabama [79 L Ed 1082 : 294
US 600 (1935)] followed in Lachmeshwar Prasad Shukul
v. Keshwar Lal Chaudhuri [(1941) 53 LW 373: AIR 1941
E FC 5] . The aforementioned cases were recognised by this
Court in Pasupuleti Venkateswarlu v. Motor and General
Traders, (1975) 1 SCC 770."
25. The only difference is that the construction carried out in the
present case, at the time of filing of the suit, had started but was incomplete
F and this construction got completed during the pendency of the suit. Be
as it may, as pointed out above, this approach of ours in moulding the
reliefis to balance the equities and do complete justice to both the parties.

Nidhi Jain Appeals dismissed.