SOPANRAO & ANR.versusSYED MEHMOOD & ORS.

                          [2019] 9 S.C.R. 37                               37


                        SOPANRAO & ANR.                                    A
                                   v.
                    SYED MEHMOOD & ORS.
                    (Civil Appeal No.4478 of 2007)
                            JULY 03, 2019                                  B
             [N. V. RAMANA, DEEPAK GUPTA AND
                    INDIRA BANERJEE, JJ.]
       Limitation Act, 1963 – Art. 65 – Suit filed by Respondent Nos.1
to 4 (plaintiffs) before the trial court against the present appellants
                                                                           C
(defendants) stating that, the possession of the land in question
was illegally given to the Trust on 19.08.1978 by the Government–
It was prayed that the possession of the suit land be restored to the
plaintiffs– Defendants contested the suit inter alia on the ground
that the suit was not filed within the period of limitation and that the
suit land belonged to the Trust since time immemorial – Suit               D
dismissed– Plaintiffs filed appeal– Judgment reversed by District
Judge inter alia holding that the suit land belonged to the Dargah
(over which the plaintiffs were claiming rights of management) –
Defendants filed appeal in the High Court – Dismissed, however
the High Court modified the decree of the District Judge to the
                                                                           E
limited extent that the plaintiffs and Defendant No.12 were held to
be descendents of Mutawalis and not Inamdars as held by the
District Judge – Held: As far as the issue of title is concerned, that
is a finding of fact arrived at by the District Judge and confirmed
by the High Court – This finding cannot be disturbed in Supreme
Court – Dargah was shown to be the owner as far back in 1325               F
Fasli (1915 A.D) in the official records – Similar entries were made
in 1342 Fasli (1932 A.D), 1943 and 1951– As per the record the
possession of land in question was handed over to the Trust only
on 19.08.1978– Judgments of the District Court and the High Court
are based on evidence – No question of law arises as far as
                                                                           G
ownership of land is concerned – Further, admittedly the possession
of the land was handed over to the Trust only in 1978 and the suit
was filed in 1987 – Appellants’ contention that the limitation for the
suit is three years as the suit is one for declaration, rejected – Main
prayers made in the suit indicate that it was a suit not only for
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                                  37
38            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A    declaration but also for possession of the suit land– Limitation for
     filing suit for possession on the basis of title is 12 years and,
     therefore, the suit was within limitation – Merely because one of the
     reliefs sought was of declaration that will not mean that the outer
     limitation of 12 years was lost – Practice & Procedure – Bombay
     Public Trusts Act, 1950 – s.50A – Hyderabad Atiyat Inquiries Act,
B
     1952.
           Practice & Procedure – Grant of relief – Lesser relief/smaller
     version of the relief prayed for – Held: Lesser relief or smaller
     version of the relief claimed or prayed for can be granted .
C          Dismissing the appeal, the Court
           HELD: 1.1 Issue of title is a finding of fact arrived at by the
     District Judge and confirmed by the High Court. This finding
     cannot be disturbed in Supreme Court. However, through the
     record it is found that the possession of land in question was
D    handed over to the Trust only on 19.08.1978. Nothing has been
     brought on record to show that prior to 29.01.1973 the land was
     entered in the name of the Trust. As per the pleadings of the
     defendants a change report had been filed before the Assistant
     Charity Commissioner, Latur and the said authority, without
     issuing notices to the Inamdars/Mutawalis, allowed the said
E    application on 29.01.1973. The plaintiffs had no knowledge of
     this application but on the basis of this order the Government
     handed over the possession of the land to the Trust. It was only
     after the Trust came into the possession of the land that the
     mutation entry (Exhibit No.115) was made in favour of the Trust.
F    According to the plaintiffs, they came to know about this fact
     only in 1986 when some publication in this regard was made by
     the Assistant Charity Commissioner in terms of Section 50A of
     the Bombay Public Trusts Act, 1950 and, thereafter, they filed
     the suit. It was the plaintiffs, as observed by the District Judge
     as well as the High Court, who had proved that the suit land
G    belonged to the Dargah. According to the High Court, the
     plaintiffs were not actually Inamdars and were manning the affairs
     of the Dargah in the nature of Mutawalis. Evidence was led by
     the plaintiffs to show that they had been held to be the successors
     of one Nizamuddin, the original Mutawali of the Dargah by the
H    competent authority under the Hyderabad Atiyat Inquiries Act,
       SOPANRAO & ANR. v. SYED MEHMOOD & ORS.                               39


1952. The High Court made reference to a large number of                    A
documentary records proved by the plaintiffs from the year 1915
onwards, which showed that the land had been granted to the
Dargah as far back in 1915. Therefore, the Dargah was shown to
be the owner as far back in 1325 Fasli (1915 A.D.) in the official
records. Similar entries were made in 1342 Fasli (1932 A.D.),
                                                                            B
1943 and 1951, all of which showed that the lands were shown as
lands belonging to Dargah. The judgments of the District Court
and the High Court are based on evidence. No question of law
arises as far as ownership of land is concerned. Therefore, this
finding of fact calls for no interference. Admittedly, the possession
of the land was handed over to the Trust only in the year 1978.             C
The suit was filed in the year 1987. The appellants’ contention
that the limitation for the suit is three years as the suit is one for
declaration has to be rejected. The main prayers made in the suit
hereinabove which clearly indicate that it is a suit not only for
declaration but the plaintiffs also prayed for possession of the
                                                                            D
suit land. The limitation for filing a suit for possession on the
basis of title is 12 years and, therefore, the suit is within limitation.
Merely because one of the reliefs sought is of declaration that
will not mean that the outer limitation of 12 years is lost. In a suit
filed for possession based on title, the plaintiff is bound to prove
his title and pray for a declaration that he is the owner of the suit       E
land because his suit on the basis of title cannot succeed unless
he is held to have some title over the land. However, the main
relief is of possession and, therefore, the suit will be governed
by Article 65 of the Limitation Act, 1963. This Article deals with
a suit for possession of immovable property or any interest therein
                                                                            F
based on title and the limitation is 12 years from the date when
possession of the land becomes adverse to the plaintiff. In the
instant case, even if the case of the defendants is taken at the
highest, the possession of the defendants became adverse to the
plaintiffs only on 19.08.1978 when possession was handed over
to the defendants. Therefore, there is no merit in this contention          G
of the appellants. [Paras 8, 9] [[42-H; 43-A-H; 44-A-D]
      1.2 The lesser relief or smaller version of the relief claimed
or prayed for can be granted. The plaintiffs claimed the status of
Inamdars which is a higher position than that of Mutawalis. The
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40            SUPREME COURT REPORTS                       [2019] 9 S.C.R.


A    High Court has granted a lesser or lower relief and not a higher
     relief or totally new relief and, therefore, we reject this contention
     also. [Paras 10, 11] [45-C]
            1.3 It was also urged that the civil court had no jurisdiction
     to decide the suit. No such objection was raised before the trial
B    court. This objection was raised before the High Court but has
     been rightly rejected. The issue in this case was whether the
     properties were properties of the Dargah or not and the issue
     was not whether the properties are wakf properties or not. The
     High Court rightly held that the plaintiffs were not claiming any
     personal right in the land but only claiming rights of management
C    over the property of the Dargah. The finding of the High Court
     that the civil court had the jurisdiction to decide the suit, agreed
     with. The appellants/defendants, during the course of this appeal,
     have filed a number of applications to place on record certain
     documents which were not on the record of the trial court. No
D    explanation has been given in any of these applications as to why
     these documents were not filed in the trial court. These
     documents cannot be looked into and entertained at this stage.
     The defendants did not file these documents before the trial court.
     No application was filed under Order XLI Rule 27 of the Code of
     Civil Procedure, 1908 for leading additional evidence before the
E    first appellate court or even before the High Court. Even the
     applications filed before us do not set out any reasons for not
     filing these documents earlier and do not meet the requirements
     of Order XLI Rule 27 of the Code of Civil Procedure. Hence,
     the applications are rejected and the documents cannot be taken
F    into consideration. [Paras 12, 13] [45-D-H; 46-A]
           L.C. Hanumanthappa v. H.B. Shivakumar (2016) 1 SCC
           332 : [2015] 9 SCR 651 ; Bachhaj Nahar v. Nilima
           Mandal (2008) 17 SCC 491 : [2008] 14 SCR 621
           – held inapplicable.
G                              Case Law Reference
             [2015] 9 SCR 651        held inapplicable        Para 9
             [2008] 14 SCR 621       held inapplicable        Para 10

H
       SOPANRAO & ANR. v. SYED MEHMOOD & ORS.                                   41


      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4478                       A
of 2007
      From the Judgment and Order dated 29.03.2007 of the High
Court of Judicature at Bombay, Bench at Aurangabad in Second Appeal
No. 76 of 1998
       Vivek C. Solshe, Amol B. Karande, Advs. for the Appellants.              B

      Youraj Gaikwad, Dr. R.R. Deshpande, Anjani Kumar Jha,
Sudhanshu S. Choudhari, Ms. Surabhi Guleria, Yogesh Kolte, Vatsalya
Vigya, Ms. Nandini Singla, Shakil Ahmed Syed, Mohd. Parvez Dabas,
Daanish Ahmad Syed, Uzmi Jameel Husain, Advs. for the Respondents.
                                                                                C
       The Judgment of the Court was delivered by
       DEEPAK GUPTA, J.
       1. A suit was filed by Respondent Nos. 1 to 4 herein before the
trial court against the present appellants and others in which the main
prayers were as follows:                                                        D
         (i) “That, the lands S.Nos.60, 62, 77, 79/2 and 78 admg. 31
             acres 32 gunthas, 15 acres 22 gunthas, 27 acres 18 gunthas,
             15 acres 19 gunthas and 9 acres 19 gunthas respectively
             situated at village Haregaon Tq. Ausa Dist. Latur may be
             declared as Inam lands of Niyamatullah Shah Dargah                 E
             Haregaon and the plaintiffs as Inamdars of the above lands.
         (ii) That, the plaintiffs be put in possession of the lands referred
              to above from defendant No. 1 to 11.”
       2. The present appellants and others contested the suit. According
to the plaintiffs, the possession of the land in question was illegally given   F
to Namdeo Deosthan Trust (for short ‘the Trust’) on 19.08.1978 by the
Government and it was prayed that the possession of this land be restored
to the plaintiffs. The defendants contested the suit on various grounds.
One of the main grounds raised was that the suit was not filed within the
period of limitation. It was also contended that the suit was bad for non-      G
joinder of necessary parties and it was contended that the suit land
belonged to the Trust since time immemorial and the suit be dismissed.
The trial court vide judgment dated 14.10.1992 dismissed the suit of the


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42             SUPREME COURT REPORTS                              [2019] 9 S.C.R.


A    plaintiffs and held that the suit was not filed within the period of limitation.
     It also held that the suit is bad for non-joinder of parties. Lastly, the trial
     court held that the plaintiffs had failed to prove that the suit land was
     Inam land or the plaintiffs are Inamdars.
            3. Aggrieved, the plaintiffs filed an appeal in the Court of District
B    Judge, Latur. The District Judge vide judgment dated 26.11.1997 reversed
     the judgment and decree of the trial court and came to the conclusion
     that the land originally belonged to Dargah Niyamatullah Shah Quadri
     (for short ‘the Dargah’) and the plaintiffs and Defendant No. 12 were
     the Inamdars of the suit land. It further held that the Government had
     wrongly given the possession of the suit property. It was also held that
C    all necessary parties had been joined in the suit. Finally, the first appellate
     court held that the plaintiffs were entitled to a decree for possession of
     the suit land and accordingly allowed the appeal and decreed the suit in
     favour of the plaintiffs and Defendant No. 12 and against Defendant
     Nos. 1 to 11 and 15.
D           4. Aggrieved, the present appellants and two others filed an appeal
     in the High Court of Bombay. This appeal was dismissed vide judgment
     dated 29.03.2007. However, the High Court modified the decree of the
     District Judge to the limited extent that the plaintiffs and Defendant No.
     12 were held to be descendents of Mutawalis and not Inamdars. Hence,
E    this appeal.
            5. We have heard learned counsel for the parties.
            6. During the pendency of this appeal, some of the plaintiffs have
     died and their legal representatives were not brought on record. Though
     a preliminary objection was raised that the appeal abates as a whole, we
F    find no merit in this preliminary objection. The plaintiffs have been held
     to be descendents of Mutawalis of the properties which is in the nature
     of a managerial post. As such the appeal does not abate.
            7. Learned counsel for the appellants submitted that the plaintiffs
     had failed to prove that the land was the land of the Dargah. The second
G    submission was that the suit was barred by limitation. It was also
     contended that the suit was not maintainable and that the High Court
     had granted reliefs which had not even been prayed for by the plaintiffs.
           8. As far as the issue of title is concerned, that, in our view, is a
     finding of fact arrived at by the District Judge and confirmed by the
H
       SOPANRAO & ANR. v. SYED MEHMOOD & ORS.                                   43
                  [DEEPAK GUPTA, J.]

High Court. This finding cannot be disturbed in this Court. However, on         A
the insistence of learned counsel for the appellants, we have gone through
the record and find that the possession of land in question was handed
over to the Trust only on 19.08.1978. Nothing has been brought on
record to show that prior to 29.01.1973 the land was entered in the
name of the Trust. In fact, as per the pleadings of the defendants a
                                                                                B
change report had been filed before the Assistant Charity Commissioner,
Latur and the said authority, without issuing notices to the Inamdars/
Mutawalis, allowed the said application on 29.01.1973. The plaintiffs
had no knowledge of this application but on the basis of this order the
Government handed over the possession of the land to the Trust. It was
only after the Trust came into the possession of the land that the mutation     C
entry (Exhibit No.115) was made in favour of the Trust. According to
the plaintiffs, they came to know about this fact only in 1986 when some
publication in this regard was made by the Assistant Charity
Commissioner in terms of Section 50A of the Bombay Public Trusts
Act, 1950 and, thereafter, they filed the suit. It was the plaintiffs, as
                                                                                D
observed by the District Judge as well as the High Court, who had proved
that the suit land belonged to the Dargah. According to the High Court,
the plaintiffs were not actually Inamdars and were manning the affairs
of the Dargah in the nature of Mutawalis. Evidence was led by the
plaintiffs to show that they had been held to be the successors of one
Nizamuddin, the original Mutawali of the Dargah by the competent                E
authority under the Hyderabad Atiyat Inquiries Act, 1952. The High
Court made reference to a large number of documentary records proved
by the plaintiffs from the year 1915 onwards, which showed that the
land had been granted to the Dargah as far back in 1915. Therefore, the
Dargah was shown to be the owner as far back in 1325 Fasli (1915
                                                                                F
A.D.) in the official records. Similar entries were made in 1342 Fasli
(1932 A.D.), 1943 and 1951, all of which showed that the lands were
shown as lands belonging to Dargah. The judgments of the District
Court and the High Court are based on evidence. No question of law
arises as far as ownership of land is concerned. Therefore, this finding
of fact calls for no interference.                                              G
        9. It was next contended by the learned counsel that the suit was
not filed within limitation. This objection is totally untenable. Admittedly,
the possession of the land was handed over to the Trust only in the year
1978. The suit was filed in the year 1987. The appellants contend that
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44                SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A    the limitation for the suit is three years as the suit is one for declaration.
     We are of the view that this contention has to be rejected. We have
     culled out the main prayers made in the suit hereinabove which clearly
     indicate that it is a suit not only for declaration but the plaintiffs also
     prayed for possession of the suit land. The limitation for filing a suit for
     possession on the basis of title is 12 years and, therefore, the suit is
B
     within limitation. Merely because one of the reliefs sought is of declaration
     that will not mean that the outer limitation of 12 years is lost. Reliance
     placed by the learned counsel for the appellants on the judgment of this
     Court in L.C. Hanumanthappa v. H.B. Shivakumar 1 is wholly
     misplaced. That judgment has no applicability since that case was
C    admittedly only a suit for declaration and not a suit for both declaration
     and possession. In a suit filed for possession based on title the plaintiff
     is bound to prove his title and pray for a declaration that he is the owner
     of the suit land because his suit on the basis of title cannot succeed
     unless he is held to have some title over the land. However, the main
     relief is of possession and, therefore, the suit will be governed by Article
D
     65 of the Limitation Act, 1963. This Article deals with a suit for possession
     of immovable property or any interest therein based on title and the
     limitation is 12 years from the date when possession of the land becomes
     adverse to the plaintiff. In the instant case, even if the case of the
     defendants is taken at the highest, the possession of the defendants
E    became adverse to the plaintiffs only on 19.08.1978 when possession
     was handed over to the defendants. Therefore, there is no merit in this
     contention of the appellants.
            10. It was also urged that the plaintiffs had prayed that they were
     Inamdars and that the High Court had created a new case for the plaintiffs
F    by declaring them to be Mutawalis. It was argued that since plaintiffs
     had not claimed the relief that they were Mutawalis, the High Court
     could not have granted this relief. Reliance has been placed on a judgment
     of this Court in the case of Bachhaj Nahar v. Nilima Mandal2. Para
     22 of the said judgment reads as follows:
G              “22. The observation of the High Court that when a plaintiff sets
               forth the facts and makes a prayer for a particular relief in the
               suit, he is merely suggesting what the relief should be, and that it
               is for the court, as a matter of law, to decide upon the relief that

     1
         (2016) 1 SCC 332
H    2
         (2008) 17 SCC 491
       SOPANRAO & ANR. v. SYED MEHMOOD & ORS.                                       45
                  [DEEPAK GUPTA, J.]

       should be granted, is not sound. Such an observation may be                  A
       appropriate with reference to a writ proceeding. It may even be
       appropriate in a civil suit while proposing to grant as relief, a lesser
       or smaller version of what is claimed. But the said observation is
       misconceived if it is meant to hold that a civil court may grant any
       relief it deems fit, ignoring the prayer.”
                                                                                    B
                                                         (emphasis supplied)
       11. In our view, the aforesaid judgment does not help the appellants
and, in fact, helps the respondents. The judgment clearly lays down that
the lesser relief or smaller version of the relief claimed or prayed for can
be granted. The plaintiffs claimed the status of Inamdars which is a                C
higher position than that of Mutawalis. The High Court has granted a
lesser or lower relief and not a higher relief or totally new relief and,
therefore, we reject this contention also.
       12. It was also urged that the civil court had no jurisdiction to
decide the suit. No such objection was raised before the trial court.               D
This objection was raised before the High Court but has been rightly
rejected. The issue in this case was whether the properties were
properties of the Dargah or not and the issue was not whether the
properties are wakf properties or not. The High Court rightly held that
the plaintiffs were not claiming any personal right in the land but only
claiming rights of management over the property of the Dargah. We                   E
agree with the finding of the High Court that the civil court had the
jurisdiction to decide the suit.
       13. At this stage, it would be pertinent to point out that the appellants/
defendants, during the course of this appeal, have filed a number of
applications to place on record certain documents which were not on                 F
the record of the trial court. No explanation has been given in any of
these applications as to why these documents were not filed in the trial
court. These documents cannot be looked into and entertained at this
stage. The defendants did not file these documents before the trial
court. No application was filed under Order XLI Rule 27 of the Code of              G
Civil Procedure, 1908 for leading additional evidence before the first
appellate court or even before the High Court. Even the applications
filed before us do not set out any reasons for not filing these documents
earlier and do not meet the requirements of Order XLI Rule 27 of the

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46             SUPREME COURT REPORTS                         [2019] 9 S.C.R.


A    Code of Civil Procedure. Hence, the applications are rejected and the
     documents cannot be taken into consideration.
           14. In view of the above discussion, we find no merit in the appeal
     and the same is dismissed. Pending application(s), if any, shall stand
     disposed of.
B

     Divya Pandey                                              Appeal dismissed.




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