Supreme Court

Naveen Kumar Vs. Vijay Kumar and Ors.

MANU/SC/0077/2018

06.02.2018

Motor Vehicles

A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with registering authority

In instant case, an accident took place. By its award, the Tribunal granted compensation. The Tribunal noted that, the registration certificate of the offending vehicle continued to be in the name of the First Respondent. The Tribunal held the First Respondent jointly and severally liable together with the driver of the vehicle. The vehicle was uninsured on the date of the accident. The award of the Tribunal was challenged by the First Respondent. A learned Single Judge of the High Court allowed the appeal on the ground that, there was no justification for the Tribunal to pass an award against the registered owner, when there was evidence that he had transferred the vehicle and the last admitted owner was the Appellant herein. In the view of the High Court, the Tribunal ought to have passed an award only against the Appellant as the owner.

A combination of circumstances cumulatively weighed with present Court. Requisitioning by its very nature is involuntary insofar as the person whose property is requisitioned is concerned. Present Court observed that, it is the person in control and possession of a vehicle which is under an agreement of lease, hypothecation or hire purchase who is construed as the owner and not the registered owner. The same analogy was drawn to hold that, where the vehicle had been requisitioned, it was the state and not the registered owner who had possession and control and would hence be held liable to compensate. Purnya Kala Devi v. State of Assam does not hold that, a person who transfers the vehicle to another but continues to be the registered owner under Section 2(30) of Motor Vehicles Act, 1988, in the records of the registering authority is absolved of liability. The situation which arose before the Court in that case must be borne in mind because it was in the context of a compulsory act of requisitioning by the state that present Court held, by analogy of reasoning, that the registered owner was not liable.

In view of the definition of the expression 'owner' in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the 'owner'. However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the registering authority as the owner of the vehicle, he would not stand absolved of liability.

Parliament has consciously introduced the definition of the expression 'owner' in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier Act of 1939. The principle underlying the provisions of Section 2(30) is that, the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the First Respondent was the 'owner' of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured.

In Dr. T.V. Jose v. Chacko P.M., present Court observed that, there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the registering authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled. The liability to compensate the claimants in terms of the judgment of the Tribunal will stand fastened upon the First Respondent. The judgment of the High Court is set aside. Appeal allowed.

Relevant

Section 2(30) of Motor Vehicles Act, 1988, Purnya Kala Devi v. State of Assam MANU/SC/0285/2014
: (2014) 14 SCC 142 : (2015) 1 SCC (Cri) 304 : (2015) 1 SCC (Civ) 251, Dr. T.V. Jose v. Chacko P.M. MANU/SC/1691/2001
: (2001) 8 SCC 748

Tags : Compensation Payment Liability

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High Court of Bombay

Mangilal Mishrimal Bafna and Ors. Vs. Nemichand Khetmal Jain and Ors.

MANU/MH/0163/2018

05.02.2018

Tenancy

No party has any vested right in the forum

Present revision application challenges the judgment made by the District Judge, (Appeal Court) allowing Civil Appeal instituted by Respondent Nos. 1A, 1B and 1C (tenants), thereby setting aside the judgment and order made by the Civil Judge, Senior Division, (Trial Court), which had ordered eviction of tenants from the suit premises on the ground that, the suit premises were reasonably and bonafidely required by the applicants-landlords; on the ground that tenants had acquired alternate premises; and, on the ground that tenants had carried out permanent alterations to the suit tenanted property.

Evidence on record indicates the nature of permanent changes made by Respondents-tenants with impunity and without permission or consent either from the Appellant-landlord or even the concerned local authority. The findings of fact recorded by the two Courts on this aspect suffer from no perversity and therefore, warrant no interference, particularly, in exercise of revisional jurisdiction.

It is well settled that, when the first appellate Court, on appreciation of evidence, records a finding of fact on a particular issue then, such finding is usually binding on the High Court while hearing a revision against such order. In this case, both the trial court and the appeal court have concurrently recorded finding of fact that the suit tenanted premises were reasonably and bonafidely required by appellants-landlords for residential as well as commercial purpose. The two courts have recorded concurrent finding of fact that the issue of comparative hardship in the present case was liable to be decided in favour of the appellants-landlords. The material on record establishes that the respondents-tenants have acquired ample alternate premises suitable for both residential as well as commercial purpose. The evidence on record establishes that, the landlord had four adult sons out of which, the suit tenanted premises was required for residence as well as business purpose of atleast three adult sons. Similarly, there are concurrent findings of fact on the aspect of permanent changes or alterations undertaken by Respondents-tenants to the suit tenanted premises without the consent of appellants-landlords. There is no perversity in recording such findings of fact and, such findings of fact are not even contrary to the evidence on record. In these circumstances, at the behest of Respondents-tenants, there is no question of interfering with such concurrent findings of fact.

The issue of eviction on the ground of acquisition of alternate premises in terms of Section 13(1) of the Bombay Rent Control Act, 1947 to a great extent is rendered academic because, respondents-tenants are liable to suffer decree of eviction on the ground that the suit tenanted premises are reasonably and bonafidely required by appellants-landlords and further, on the ground that respondents-tenants have undertaken permanent alterations to the suit tenanted premises without the consent of the appellant-landlords. In this case, the evidence on record clearly indicates that respondents-tenants have acquired large premises not only for residential but also for commercial purpose. The concurrent findings of fact in this regard are borne out from the material on record.

In this case, by operation of law, the jurisdiction, which was formerly vested with the Civil Judge, Junior Division, stood vested with the Civil Judge, Senior Division. In these circumstances, there was no necessity of any order for transfer under Section 24 of the Code of Civil Procedure, 1908 (CPC). It is settled position in law that, no party has any vested right in the forum. On basis of such a hypertechnical plea, unsupported by law or authority, the rRspondents cannot attempt to set at naught proceedings which have commenced in the year 1984 and in which the Respondents have participated without any protest. This is not a case of lack of jurisdiction much less, inherent lack of jurisdiction. Accordingly, it is not possible to say that, the decree of the trial Court is a nullity because, there was no order of transfer under section 24 of the CPC made before the Civil Judge, Senior Division, continued with the proceedings in the suit which was originally instituted in the Court of Civil Judge, Junior Division.

The impugned judgment and order made by the District Judge, to the extent it non suits the applicant-landlords is set aside. The judgment made by the Civil Judge, Senior Division, is restored with the modification that, Respondents-tenants are directed to restore possession of the suit tenanted premises and western half portion of the garage to the Appellants-landlords. Revision application is allowed.

Tags : Possession Restoration Bonafide need

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High Court of Allahabad

U.P.S.R.T.C. Vs. Tota Ram and Ors.

MANU/UP/0543/2018

02.02.2018

Labour and Industrial

Present Court should not interfere in findings of fact recorded by the Labour Court, unless same are so perverse as to be completely against the materials on record before it

Instant writ petition has been filed by the Petitioner challenging the award and its notification dated 22nd August, 2015 passed by the Respondent Nos. 2 & 3 respectively, and for grant of appropriate relief as a consequence of quashing of the same. The Appointing Authority taking into account the Inquiry report and the failure of the Respondent No. 1 to file a reply to the show cause notice, passed the punishment order dismissing him from service. The dismissal order was handed over to the Respondent No. 1. The Respondent No. 1 thereafter raised an industrial dispute which was referred to the Respondent No. 2 by the respondent No. 3 and was registered as Reference Case. The labour Court concluded that, the Corporation could not prove the charges levelled against the Respondent No. 1, and therefore set aside the dismissal order, and directed for giving of 35% of the wages from the date of dismissal till the date of reinstatement along with allowances, gratuity, provident fund and other retiral dues in its award.

The Labour Court has correctly appreciated the evidence and the oral statement of the employer's witness, the Traffic Superintendent, and found that on the basis of two reports, the charge sheet was issued to the Petitioner. The Inquiry was conducted by Inquiry Officer almost two years after the charge sheet was formulated. A show cause notice was issued thereafter giving insufficient time to the delinquent employee to submit his reply and final orders of dismissal were passed in a great hurry. Even before the Respondent No. 2, the employer's witness, the Traffic Superintendent had made his oral statement and had admitted during cross examination that, the Respondent No. 1 in the year 2000 itself had written to the Corporation several times that, the concerned official was not giving certificate of the bus being checked and being found all right before handing it out for plying to the Respondent No. 1. The Respondent No. 1 had submitted that bus number UP-80-9279 driven by the Respondent No. 1 had met with an accident only because no certificate was given by the Senior Foreman after checking the bus, and the steering of the bus had suddenly stopped functioning. The Respondent No. 1 had sustained serious injuries in both his legs and was admitted to district hospital, Agra. It had also been admitted by the Corporation's witness that on the repeated representations of the Respondent No. 1, the Assistant Regional Manager had issued a letter directing the Senior Foreman and the Senior Bus Station Incharge, Foundry Nagar Depot to issue certificates after checking the buses before sending such buses on their various routes.

It is settled law that, present Court should not interfere in the findings of fact recorded by the Labour Court on examination of oral and documentary evidence, unless the same are so perverse as to be completely against the materials on record before it. Present Court does not find it fit and proper to interfere in the finding recorded by the Tribunal that, the Respondent No. 1 was dismissed unfairly by the Corporation.

With regard to relief admissible to the Respondent No. 1 on setting aside of the dismissal order, it has been observed by the Respondent No. 2 that, since the Respondent No. 1 has attained the age of superannuation in 2012 (on the basis of medical certificate regarding age being submitted by him as Exhibit 32B-2), he may not be reinstated but he may be given 35% of the back wages along with other allowances from the date of dismissal till the date of its actual payment. All other retiral benefits like gratuity, provident fund etc should also be paid to the Respondent No. 1 treating him to be in continuous service upto the date of superannuation in May 2012.

It is with regard to this relief alone that, present Court finds it appropriate to interfere. It is evident that, his date of birth has been entered in his own handwriting as 10th July, 1945. The Respondent No. 1 would have been sufficiently educated to be engaged as a regular driver in 1973 as no illiterate person can be engaged as a bus driver. The medical certificate submitted by the Respondent No. 1 dated 8th May, 2000, alleged to have been issued to him by the Chief Medical Officer certifying his age, states clearly that, the Respondent No. 1 had appeared before the Chief Medical Officer for certification of his age and had not submitted any document as proof in support of his statement that he was 46 years of age. Only on the basis of a cursory examination of his appearance, the Chief Medical Officer had certified the Respondent No. 1 to be 45 years of age. There is no mention of any X-ray report in the said certificate. Such a medical certificate cannot be relied upon in view of the entry made in the service book at the time of entry into service in view of U.P. Government Servants Determination of Age Rules, 1975.

As such, the Respondent No. 1 shall be treated to have retired on 31st July, 2003 treating his date of birth as recorded in his service book to be 10th July, 1945. The award impugned is modified to the extent of mention of date of superannuation of the Respondent No. 1 and instead of May 2012, the superannuation of the Respondent No. 1 should be treated as in July 2003. The writ petition is partly allowed.

Tags : Dismissal order Charges Proof

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Supreme Court

Danamma Vs. Respondent: Amar and Ors.

MANU/SC/0064/2018

01.02.2018

Family

Rights of daughters in coparcenary property are not lost merely because a preliminary decree has been passed in a partition suit

The Appellants herein contested the suit by claiming that, they were also entitled to share in the joint family properties, being daughters of Gurulingappa Savadi and for the reason that, he had died after coming into force the Act of 1950. The trial Court, while decreeing the suit held that, the Appellants were not entitled to any share as they were born prior to the enactment of the Act and, therefore, could not be considered as coparceners. The trial Court also rejected the alternate contention that, the Appellants had acquired share in the said properties, in any case, after the amendment in the Act vide Hindu Succession (Amendment) Act, 2005 (amendment Act of 2005). This view of the trial Court has been upheld by the High Court in the impugned judgment thereby confirming the decree passed in the suit filed for partition.

The question of law which arises for consideration in present appeal is as to whether, the Appellants, daughters of Gurulingappa Savadi, could be denied their share on the ground that, they were born prior to the enactment of the Act and, therefore, cannot be treated as coparceners. Alternate question is as to whether, with the passing of Hindu Succession (Amendment) Act, 2005, the Appellants would become coparcener "by birth" in their "own right in the same manner as the son" and are, therefore, entitled to equal share as that of a son.

The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The Section stipulates that, a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005.

Section 6 of Act, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that, the status conferred upon sons under the old Section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The Section uses the words in the same manner as the son. It should therefore be apparent that, both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is its creation, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from Sub-section (1)(a) and (b).

In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended and decree was passed by the trial Court only in the year 2007. Thus, the rights of the Appellants got crystallised in the year 2005 and this event should have been kept in mind by the Trial Court as well as by the High Court. The Present Court in Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr. held that, the rights of daughters in coparcenary property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

There is no dispute that, the property which was the subject matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. In the said partition suit, share will devolve upon the Appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the Appellants would be entitled to 1/5th share each in the said property. Plaintiff (Respondent No. 1) is son of Arun Kumar (Defendant No. 1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares on partition i.e. between Defendant No. 1 Arun Kumar, his wife Defendant No. 2, his two daughters Defendant Nos. 3 and 4 and son/Plaintiff (Respondent No. 1). The Plaintiff/Respondent No. 1 would be entitled to 1/25th share in the property. The appeals are allowed.

Relevant

Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr. MANU/SC/1216/2011
: (2011) 9 SCC 788

Tags : Partition Share Coparceners

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High Court of Orissa

Asha Dei Vs. Naran Sethi and Ors.

MANU/OR/0058/2018

01.02.2018

Property

A party claiming adverse possession must prove that, his possession is peaceful, open and continuous

In instant case, Defendant No. 2 is the Appellant against a confirming judgment. Plaintiff-respondent No. 3 instituted the suit for declaration of title, recovery of possession and permanent injunction. The case of the Plaintiff was that his mother, defendant No. 4 purchased the suit land. She constructed a thatched house over the same. Her name was recorded in the Municipal record. She executed a gift deed in his favour on 9th January, 1980 and delivered possession. Defendants 1 to 3, who are brother-in-law, sister and nephew of the Plaintiff, stayed in a portion of the suit house. As Defendant No. 1 claimed title over the same before the Settlement Authority, he asked them to vacate the suit house. With this factual scenario, he instituted the suit.

The trial Court held, that the Plaintiff had successfully established his right and title over the suit land. Defendant No. 1 had failed to prove that the suit land was purchased benami in the name of defendant No. 4. Suit was not barred by time. Defendant No. 1 had failed to establish his title by way of adverse possession. Held so, it dismissed the suit. The unsuccessful Defendants 1 to 3 filed appeal before the learned District Judge, which was eventually dismissed.

The Appellant submitted that, Defendant No. 1 had paid the entire consideration amount for purchase of the suit land. Defendant No. 1 is the owner of the suit house. He further submitted that, Defendant Nos. 1 to 3 reside over a portion of the suit house peacefully, continuously and with the hostile animus to the Plaintiff for more than statutory period and, as such, have perfected title by way of adverse possession.

Adverse possession is not a pure question of law but a blended one of fact and law. In Karnataka Board of Wakf vs. Govt. of India and others, the apex Court observed that, "in the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.

The Court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

On a threadbare analysis of the evidence on record and pleadings, the learned trial court disbelieved the plea of defendants that defendant No. 1 had paid the consideration amount. Defendant No. 1 failed to substantiate his plea of benami. Defendant No. 4 is the owner of the suit land. The suit land had been gifted by defendant No. 4 to the plaintiff. Possession of the same was delivered to him. The suit land had been recorded in the name of the plaintiff in Settlement R.O.R.. Thus, the plaintiff has title over the suit land.

Mere possession of the suit land for long time is not sufficient to hold that, Defendants have perfected title by way of adverse possession, unless the classical requirements of adverse possession “nec vi, nec clam, nec precario” are pleaded and proved. There is no pleading as to when the defendants entered into the suit house. Both the courts below concurrently held that possession of defendants 1 to 3 over the suit land is permissive. There is no perversity in the findings.

The matter may be examined from another angle. The Defendants pleaded that defendant No. 1 had purchased the suit property in the name of defendant No. 4. It was benami transaction. Alternatively, Defendants 1 to 3 pleaded that, they have perfected title by way of adverse of possession. The plea is mutually destructive. Claim of title to the property and adverse possession are in terms contradictory. Appeal dismissed.

Relevant

Karnataka Board of Wakf vs. Govt. of India and others, MANU/SC/0377/2004
: (2004) 10 SCC 779

Tags : Adverse Possession Title Right

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High Court of Punjab and Haryana

Guramardeep Singh and Ors. Vs. Ved Vyas and Ors.

MANU/PH/0071/2018

01.02.2018

Civil

Jurisdiction of the civil courts is not barred in case of civil dispute regarding the wakf property

Revision petitions are filed against impugned orders by which ad interim injunction was granted in favour of Plaintiff-Respondent No. 1. Plaintiff-Respondent No. 1 filed a suit for permanent injunction against the present Petitioner-Defendant No. 1-Punjab Wakf Board ('Board') as well as, Respondent-Defendant Nos. 2 and 3 for permanent injunction for restraining them from dispossessing or interfering in his possession over the property consisted of two shops-cum-store and saw mill, illegally and forcibly in any manner.

If the lease agreement is executed and the Board feels that, the Plaintiff-Respondent No. 1 has rendered himself liable for ejectment, it is required to approach the civil Courts for this purpose. Mere alleged breach of lease deed, ipso facto would not mean that tenancy stands terminated, merely by serving a notice and possession revert back to the Board.

The Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word 'Wakf' has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal."

The Apex Court in dealing with the judgments of Ramesh Gobindram (dead) through L.Rs. vs. Sugra Humayun Mirza Wakf observed that, from a conjoint reading of the provisions of Sections 6 and 7, it is clear that the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a Civil Court in relation to any such question after the commencement of the Act. Under Section 6 read with Section 7, the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property.

It is held that, controversy is covered by the said judgment of Ramesh Gobindram's case. In view of the latest pronouncements by the Apex Court, it is to be held that the jurisdiction of the civil Courts is not barred, in case of civil dispute regarding the wakf property. The civil Courts have the jurisdiction. Both the courts below after going through the record and after considering the facts and law on the point granted injunction. Therefore, there is no ground to interfere in the same. Revision petitions are dismissed.

Relevant

Ramesh Gobindram (dead) through L.Rs. vs. Sugra Humayun Mirza Wakf MANU/SC/0659/2010

Tags : Injunction Grant Validity

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