Sra Peititoner

CLASS MOOT 2020

BEFORE THE HON’BLE MUNSIFF COURT OF CHINCHWAD

IN THE MATTER OF VIJAY & ANR. V. BABLU THAKUR

PETITION(CIVIL) NO. 938 /2020 (Filed under Section 6 of the Specific Relief Act) UPON SUBMISSION TO THE HON’BLE JUSTICE(S) OF THE PRINCIPAL CIVIL COURT

COUNSELS FOR THE PETITIONERS  

MEMORIAL ON THE BEHALF OF THE PETITIONERS

TABLE OF CONTENTS

1

S.No

CONTENTS

PAGE NUMBER

1.

List of Abbreviations

3

2.

Index of Authorities

4-5

3.

Statement of Jurisdiction

6

4.

Statement of facts

7

5.

Issues raised

8

6.

Summary of pleadings

9-10

7.

Written Pleadings

11-19

8.

Prayer

20

2

LIST OF ABBREVIATIONS &

And

¶

Paragraph

AIR

All India Reporter

Anr.

Another

Cr. LJ

Criminal Law Journal

NCT

National Capital territory

F.I.R

First Information Report

Govt.

Government

Hon‟ble

Honourable

i.e.

That is

JJ

Juvenile Justice

LR

Law Report

Ltd.

Limited

N.C.T

National Capital Territory

3

INDEX OF AUTHORITIES STATUTES 

THE SPECIFIC RELIEF ACT



THE CONTRACT ACT

CASES 

K.K. Verma v Union of India AIR 1954 Bom. 358: ILR 1954 Bom. 950



K. Krishna v A.N Paramkusha Bai AIR 2011 AP 165



Agriculture Produce Market and Ors v/s Girdhar Bhai Ramjibhai and Ors. (1995) 5 SCC 468



Bharat Aluminium Co. v/s Kaiser Aluminium Technical Services Inc (2012) 9 552



Samar Kumar Roy (D) through L.R. (Mother)Vs. Jharna Bera AIR 2018 SC 334



Zena Gladys Freemantee v. Herbert Charles Freemantle, (1950) Bom 633.



Governor-General in Council v. Mulla Majommed Bhai, AIR 1944 Nag 382.



V. Sampathkumari vs M. Lakshmi Ammal And Ors. 2002 SC 287



Ram Lakhan Missir vs Pandit Raghunandan Missir AIR 1989 Pat 145



Baldev Singh v. Darshani Devi



Rukmini and others v. H.N T. Chettiar



Hazara Singh v. Faqiria

BOOKS AND ARTICLES 

Pollock & Mulla - The Specific Relief Act, 1963



Specific Relief Act, 1963



Sarkar on Specific Relief Act



Specific Relief Act (English, Undefined, Bangia R.K.) 4

LEGAL DATABASE  Manupatra  SCC Online  Indian Kanoon

5

STATEMENT OF JURISDICTION The plaintiff submits before the Hon’ble Munsiff Court as per Section 6 of the Specific Relief Act. Section 6 in The Specific Relief Act, 1963 6. Suit by person dispossessed of immovable property.— (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought— (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

6

STATEMENT OF FACTS

Mahadev father of two sons, Vishnu and Govinda died intestate on 1st of Jan 1995. Mahadev had two immovable properties to his name, the agricultural land of two hectares bearing Survey NO.151/2 at the Village-Kelapur, Taluka-Ambewadi, Dist-Chinchwad and also a residential house property in the same village. After death of Mahadev both the sons occupied the residential house property severally and started cultivating the agricultural land to the extent of one hectare each, the proceeds of which were used by them individually. In the year 2017 on 1st of January Vishnu died intestate survived by his two sons Vijay and Ajay, a married daughter Lakshmi and his widow Saraswatibai. Thereafter the elder son Vijay continued to possess and cultivate the agricultural land of one hectare. On 1st Jan 2018 one Mr. Bablu Thakur dispossessed Vijay from the land claiming that the land was sold to him by the deceased Vishnu by a registered sale deed on 1st July 2016 for the amount of Four Lakh Rupees. The Legal Heirs of the deceased Vishnu filed a suit for Declaration, Perpetual Injunction and Recovery of Possession against the defendant Mr. Bablu Thakur on the ground that the deceased had no right to sale the property.

7

ISSUES RAISED

ISSUE I WHETHER THE SUIT UNDER SECTION 6 OF THE SPECIFIC RELIEF ACT IS MAINTAINABLE?

ISSUE II WHETHER THE COURT SHOULD GRANT PERPETUAL INJUNCTION OR NOT?

ISSUE III WHETHER THE SALE DEED IS VALID?

8

SUMMARY OF PLEADINGS

ISSUE I WHETHER THE SUIT UNDER SECTION 6 OF THE SPECIFIC RELIEF ACT IS MAINTAINABLE? To prove the section 6 all three things have to be proved

That he is in juridical possession of the immovable property in dispute.



That he had been dispossessed of without his consent and without due process of law.



That dispossession took place within six months from the date of suit.

In the instant case the plaintiff is in the juridical possession of the immovable property in dispute as it is the intestate possession and he inherited it from his father who inherited it further from his father, i.e., the plaintiff’s grandfather and the dispossession has been done without the consent and without due process of law and the dispossession took place within six months of the date of suit and thus this suit is maintainable.

ISSUE II WHETHER THE COURT SHOULD GRANT PERPETUAL INJUNCTION OR NOT? It is humbly submitted before the hon’ble court that perpetual injunction should be granted in this case as per Section 38 of the Specific Relief Act. The term ‘injunction’ has been the subject of various attempts at a definition. It has been defined by Joyce as, “An order remedial, the general purpose of which is to restrain the commission of some wrongful act of the party informed”. Burney defined injunction as, “a judicial process, by which one who has invaded or threatening to invade the rights of another is restrained from continuing or commencing such wrongful act”. The most expressive and acceptable definition is the definition of Lord Halsbury. According to him, “An injunction is a judicial process whereby a party in an order to refrain from doing or to do a particular act or thing”.

9

ISSUE III WHETHER THE SALE DEED IS VALID?

The stated argument portrays before the Hon'ble bench the invalidity of a Registered Sale Deed signed between the defendant and the late Mr. Vishnu owing to its inconsistency with the rules of sale. The counsel invariably questions the legality and maintainability of a sale deed which is not consented by all the co-owners of the suit schedule property, which is a Joint property and gives no single owner the full rights to sell it, without reasonable reasons. By invoking the legal principles, this issue seeks to render the sale deed between the aforementioned partied void-abinitio and establish the legality of title of the property in petitioner’s own favour.

10

PLEADINGS

ISSUE I WHETHER THE SUIT UNDER SECTION 6 OF THE SPECIFIC RELIEF ACT IS MAINTAINABLE? It is submitted before the Hon’ble Court that the suit under Section 6 of the Specific Relief Act is maintainable. Section 6 of the Specific Relief Act deals with the provision related to suit by person dispossessed of immovable property. It reads as, “(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him, may by suit recover possession thereof. (2) No suit under this section shall be brought

After the expiry of six months from the date of dispossession.



Against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of the decree under this section is allowed. (4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof.” Section 6 is only applicable if the plaintiff proves: 1. That he is in juridical possession of the immovable property in dispute. 2. That he had been dispossessed of without his consent and without due process of law. 3. That dispossession took place within six months from the date of suit. 11

Section 5 and 6 both give alternative remedies and are mutually exclusive. Under section 5, a person dispossessed can get possession on the basis of title, whereas in section 6, a person dispossessed may recover possession by proving previous possession and further wrongful dispossession. Possession in the context of section 6 means legal possession which may exist with or without actual possession and with or without rightful origin. The plaintiff in a suit under section 6 need not establish title. Long-standing peaceful possession of is enough to prove actual possession. In K.K. Verma v Union of India1 it was held that after the expiry of the tenancy agreement, the tenant continues to hold juridical possession and cannot be dispossessed unless the owner gets a decree of eviction against him. The objects of section 6 are as follows. 

To discourage people from taking the law into their hands (however good their title may be).



To provide a cheap and useful remedy to a person dispossessed of immovable property in due course of law.

Further, it should be noted that where the grant of possession is purely gratuitous, the owner has the right to reclaim possession even without the knowledge of a person in possession. The only prayer in a suit under section 6 can be a prayer for recovery of possession. Consequently, a claim for damages cannot be combined with that for possession. Section 14 of the Limitation Act, 1963 applies to the proceedings against dispossession. In K. Krishna v A.N Paramkusha Bai2 In this case, a tenant was dispossessed forcibly by the owner but he himself get forcible repossession. The Court, in this case, held that “tenant could institute suit for repossession immediately when he was forcibly ousted, but as soon as he takes 1 2

K.K. Verma v Union of India AIR 1954 Bom. 358: ILR 1954 Bom. 950 K. Krishna v A.N Paramkusha Bai AIR 2011 AP 165

12

forcible repossession he became trespasser and therefore could not be regarded to be in lawful possession. As already stated, to prove the section 6 all three things have to be proved

That he is in juridical possession of the immovable property in dispute.



That he had been dispossessed of without his consent and without due process of law.



That dispossession took place within six months from the date of suit.

In the instant case the plaintiff is in the juridical possession of the immovable property in dispute as it is the intestate possession and he inherited it from his father who inherited it further from his father, i.e., the plaintiff’s grandfather and the dispossession has been done without the consent and without due process of law and the dispossession took place within six months of the date of suit and thus this suit is maintainable.

13

ISSUE II WHETHER THE COURT SHOULD GRANT PERPETUAL INJUNCTION OR NOT? It is humbly submitted before the hon’ble court that perpetual injunction should be granted in this case as per Section 38 of the Specific Relief Act. The term ‘injunction’ has been the subject of various attempts at a definition. It has been defined by Joyce as, “An order remedial, the general purpose of which is to restrain the commission of some wrongful act of the party informed”. Burney defined injunction as, “a judicial process, by which one who has invaded or threatening to invade the rights of another is restrained from continuing or commencing such wrongful act”. The most expressive and acceptable definition is the definition of Lord Halsbury. According to him, “An injunction is a judicial process whereby a party in an order to refrain from doing or to do a particular act or thing”. Injunction acts in personam i.e. it does not run with the property. For instance, ‘A’ the plaintiff gets an injunction against ‘B’ forbidding him to erect a wall. ‘B’ sells the property to ‘C’. In such a case, the sale does carry an injunction with it. An injunction may be issued against individuals, public bodies or even the State. Disobedience of the order of an injunction is punishable as contempt of court. There are three characteristics of an injunction. They are as follows. 

A judicial process.



The relief obtained is restraint or prevention.



The act restrained is wrongful.

There are basically two types of injunction as provided by section 36 of the Specific Relief Act, 1963. Section 36 of the Specific Relief Act with the head ‘Preventive relief how granted’ reads as, “Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual”. As per provisions of section 36 injunctions are either temporary (interlocutory) or perpetual “Section 38 in The Specific Relief Act, 1963 38. Perpetual injunction when granted.—

14

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:— (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.” In terms of justice, an injunction is a court’s order that requires a person to do or abstain from doing an act that is necessary and the absence of which would be contrary to good faith and good conscience. This provision statutory supports the Natural Justice and Equity. This arm of justice is aimed to restore the violated rights of a party, whereby monetary or compensatory damages are insufficient and also comes as an addition to another remedy. Temporary Injunctions are those which remain in force until specified time or until further orders. Such injunctions can be granted at any stage of the suit and are governed by Order 39 of the Code of Civil Procedure, 1908 rather than by Specific Relief Act, 1963 .(S 37(1)). Permanent Injunctions on the other hand, maybe granted, at the discretion of the court by the decree of the court after hearing the case .It remains in force for all time to come.( S 37(2)) Where A Permanent Injunction Can Be Granted? 

By Section 38 perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.



Where the defendant is a trustee of the property for the plaintiff. 15



Where there is no standard for ascertaining the actual damage caused, or likely to be caused, to the plaintiff, by invasion of his rights.



Where the invasion of the plaintiff’s right is such that compensation in money would not afford adequate relief.



Where injunction is necessary to prevent multiplicity of judicial proceedings.

In3, it was observed that Injunction can only be granted only if the person seeking the injunction has a right capable of being enforced by the way of injunction. In4 the interim relief claimed itself must be a part of a substantive relief to which plantiff’s cause of action entitled him. Hence, a suit only to claim interim injunction is not maintainable. In,5 the court found a question whether suit which was, in substance suit filed under Section 34 of SRA was maintainable at behest of legal representative of dead Plaintiff.

The conditions pre-requisite for the application of this section are

There must be an expressed or implied legal right in favour of the plaintiff;



Such a right must be violated or there should be a threatened invasion;



Such right must be an existing one;



Should fall within the sphere of restraining provisions (referred to in section 41 of the specific relief act).

In this case, the property is intestate and the plaintiff is class I legal heirs of the property. Under section 34, a suit for declaration or right to property may be filed against any person denying or interested to deny his title to such legal character or right. Thus, for attracting the provisions of section 34, there must be a plaintiff having a legal character or right to property, and there must a person denying or interested in denying such legal character or right. 6 A person interested to deny is the person interested to deny a legal character or a right to property is a 3

Agriculture Produce Market and Ors v/s Girdhar Bhai Ramjibhai and Ors. (1995) 5 SCC 468 Bharat Aluminium Co. v/s Kaiser Aluminium Technical Services Inc (2012) 9 552 5 Samar Kumar Roy (D) through L.R. (Mother)Vs. Jharna Bera AIR 2018 SC 334 6 Zena Gladys Freemantee v. Herbert Charles Freemantle, (1950) Bom 633. 4

16

person with a rival claim of some sort and with some interest resulting in its nature that of the person whose legal character or right is denied”7

7

Governor-General in Council v. Mulla Majommed Bhai, AIR 1944 Nag 382.

17

ISSUE III WHETHER THE SALE DEED IS VALID?

The stated argument portrays before the Hon'ble bench the invalidity of a Registered Sale Deed signed between the defendant and the late Mr. Vishnu owing to its inconsistency with the rules of sale. The counsel invariably questions the legality and maintainability of a sale deed which is not consented by all the owners of the suit schedule property, which is a Joint property and gives no single owner the full rights to sell it, without reasonable reasons. By invoking the legal principles, this issue seeks to render the sale deed between the aforementioned partied void-ab-initio and establish the legality of title of the property in petitioner’s own favour. The counsel from the petitioner’s side would like to put before the Hon'ble bench that the title which the opposite counsel seeks to be declared, is a title which never passed Mr. Bablu. It is humbly requested to the Hon'ble bench to direct its attention to the facts sheet which clearly state that the property in question was Intestate Property. The law states that where such property is to be sold, the consent of all the inherited members of the property is necessary, in absence of which the sale cannot be advanced. In the present case the same has happened, where Mr. Vishnu has sold the property to Mr. Bablu, but the sale deed stands void ab initio due to absence of consent of all the coparceners. Though the facts are not directly showcasing this aspect of the present case, yet there are few stark instances, which with taut scrutiny cannot be missed by a prudent person.8 Ancestral property be cannot be sold without consent of successors in case of major and in in case of minority you might have to take permission from the court. 9 In Konchunju Nair v. Koshy Alexander it was held that if a co-owner wants to erect a dwelling house on the land he is free to do so. If division of co-ownership of property takes place, the coowner can claim, that, the said property be allotted to his share. The Court would ordinarily grant such an equitable right. 8

V. Sampathkumari vs M. Lakshmi Ammal And Ors. 2002 SC 287

9

Ram Lakhan Missir vs Pandit Raghunandan Missir AIR 1989 Pat 145

18

In Baldev Singh v. Darshani Devi it was held by the Court that a co-owner who is not in actual physical possession over a parcel of land cannot transfer a valid title of that portion of the property. The remedy available to the transferee would be to get a share out from the property allotted after the partition or to get a decree for joint possession or can claim compensation from the co-owner.10 In Rukmini and others v. H.N T. Chettiar it was held by the High Court of Madras that a cosharer cannot be allowed to cause prejudice to the other co-sharers by putting up a substantial construction during the pendency of a suit for partition filed by the other co-sharers.11

The High Court of Punjab and Haryana in a case of Hazara Singh v. Faqiria where a co-owner contended that he had, by adverse possession, a peaceful undisturbed possession by the other coowners had become the sole owner of a land, held that the possession of a co-owner is possession of all the co-owners. It cannot be adverse to them unless there is a denial of their right to knowledge by the person in possession. If a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse he possesses the property on behalf of all others.12

10

Baldev Singh v. Darshani Devi Rukmini and others v. H.N T. Chettiar 12 Hazara Singh v. Faqiria 11

19

PRAYER In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court be pleased to:

1. THE SUIT UNDER SECTION 6 OF THE SPECIFIC RELIEF ACT IS MAINTAINABLE

2. THE COURT SHOULD GRANT PERPETUAL INJUNCTION.

3. THE SALE DEED IS INVALID

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this, the Petitioners as in duty bound, shall humbly pray.

S/d COUNSEL FOR THE PETITIONER

20