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IMPORTANT JUDGMENT

c Important judgment on different topics.

Adverse Possession:

"Long possession is not necessarily adverse possession and the prayer clause is not a subsitute
for a plea."S.M.Karian v. Bilisahina A.I.R.1964 SC1254.

Proving of Adverse Possession:

"for the purpose of proving adverse possession/ouster,the defendant must also prove animus
possidendi". Mohemmed Ali (dead) by L.R.S. v. Jagdish Kalita and others.(2004)1. SCC 271,
2004 (1) SCCD 242.

Starting Point of Limitation:

In terms of article 65 the starting point of limitation does not commence from the date when the
right of ownership arises to the plaintiff but commences from the date the defendant's
possession become adverse. Saroop Sing v. Banto (2005)8 SCC 330.,2005 (3) SCCD 1643.

Essential of Adverse Possession:

"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.
Karnataka Board of wakf v. Govt. of India. (2004) 10 SCC 779: 2004 (3) SCCD 1390.

Long Possession:

“that mere possession however long does not necessarily mean that it is adverse to the true
owner. It means hostile possession which is expresslyor impliedly in denial of the title of the true
owner and in order to constitute adverse possession the possession must be adequate in
continutity, in publicity and in extent so as to show that it is adverse to the true owner.The
possession must be open and hostile enough so that it is known by the parties Interested in the
property. The plaintiff is bound to prove his title as also possession Within 12 years and once the
plain ff proves his tle, the burden shi s on the defendant to establish that he has perfected his tle by adverse
possession.

2011 (1) UAD 378, Chatti Konati Rao & ors verses Palle Venkata Subba Rao.

Equities in Adverse Possession

A person pleading adverse possession has no equities in his favour as he is trying to defeat the
rights of the true owner and, hence,it is for him to clearly plead and establish all facts necessary
to establish adverse possession.

2011(1)UAD 378,Chatti Konati Rao& ors v Palle Venkata Subba Rao.

Civil Procedure Code - 1908

Amendment

Or. 6. R. 17

Purpose of Amendment – Powers of Court.

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Power of courts not only discretionary, but is also wide and could be exercised at any stage of
the proceedings in the interest of justice – court should adopt a liberal approach and allow a
party to take all kind of stand ,which the party may choose and court should not adopt a hyper
technical approach and should allow the amendment – when the other side could be
compensated with costs.

2011 (1 ) U.A.D. HC 172

Civil Procedure Code - 1908 - Order 22 Rule 10

SCOPE: Applicability of Section 52 of the Transfer of Property Act, 1882, or Order 1 Rule
10(2) C.P.C

Andhra High Court

Chappidi Subbareddy (Died) And ... vs Chappidi Narapureddy And Ors. on 29 November,
2005
Equivalent citations: 2006 (3) ALD 516

Civil Procedure Code 1908.---ORDER 23 RULE 1. Maintainability CIVIL PROCEDURE CODE

1908.---ORDER 23 RULE 1.

Maintainability of second suit.

order 23 rule 1.~ permission to withdraw a suit with liberty to institute a fresh suit after the
first one has been withdrawn.Order 23 rule 1. can not be read so as to bar a suitwhich has
already
been instituted before the other suit has been abandoned or dismissed.
The rule is clear and can only be applied to suit instituted after the withdrawal or abandonment of
previous
suit.
P.A.Muhammed vs Canara bank and another.
A.I.R. 1992 Kar 85, Vimlesh kumari kulshrestha vs Sambhajirao and another. civil appeal
No.2976 of 2oo4,
on February 5, 2008, 2008 (1) SCCD 313 ( SC ).

consent decree order 23, rule 3

requirements---A consent decree is merely a agreement between the parties with the seal
of the court
super added to it.
compromise is to be held to be binding it must be signed either by the parties or by their
counsel or by
both,failing which order 23 , rule3 would not be applicable.
A compromise is not binding on such defendants who are not parties thereto.

Sneh gupta vs Devi sarup & other civil appeal No.1085 of 2009 decided on 17- 02 -2009. (
uttarakhand high court)
2009 (1) UAD 541

Consumer forum (" Exparte" order )

Rajeev Hitendra Pathak & Ors v. Achyut Kashinath Karekar & Anr., (2011) 9 SCC 541, Honorable Supreme
Court held “ that neither the District Forum nor the State Commission had power to review its ‘’ex
parte” orders. Orders of the aforesaid nature were, ‘’ per se” assailable only before the National
Commission .
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DOG BITES---INSURANCE.

Death due to rabies held, death would be accidental. Life insurance Corporation
to pay additional amount.
Lallubhai panchal vs Life Insurance Corporation of India.
A.I.R. 1999 Gujarat 280.

EASEMENTS ACT ( 5 OF 1882 )

Right of privacy ---Section 15.--- Easement neither pleaded nor proved.

If one party opens windows it is equally open to another party to block
them by raising walls.
Anguri versus Jiwan dass.
AIR 1988 SC 2024: ( 1988 ) 2 A.P.L.J. (SC) 70: (1988 ) 4 SCC 189:

EVIDENCE ACT,1872;

SECTION---90, Presumption under section 90 of the Evidence Act 1872 in respect of 30

year's old document coming from proper custody relates to the
signature, execution and attestation of a document i.e. to its genuineness but it does not give
rise to presumption of correctness of every statment
contained in it. The contents of the document are true or it had been acted upon have to be
proved like any other fact.
Union of India versus Ibrahim Uddin & Anr. 2012 (2) U.A.D. 566 (SC).

FAMILY SETTLEMENT/ ARRANGEMENT:

Unregistered family arrangement---Evidential value.

Registration of a family arrangement would be necessary only if the terms of the family
arrangement are reduced into writing. An unregistered family arrangement could not be used
even to prove that there was a partition .Evidence on the basis of such document could not
be led as it was barred by section 91 of the evidence act.
Bankey bihari vs Surya narain alias Munnoo
A.I.R. 1999 Allahabad.

FAMILY SETTLEMENT/ ARRANGEMENT-- Object of -- Essential and its binding effect.

Kale and others vs Deputy director of consolidation and others.
A.I.R. 1976 SC 807.

Joint Hindu Family Property---undivided share of coparcener----can be subject matter of

sale / transfer -- but possession cannot be handed over to vendee , unless property
partitioned by metes and bound eighter by decree of court in partition suit or by settlment
among co-sharers.

Relied on Ram Dass v. Sita Bi JT 2009 (8)SC 224. Gajra Vishnu Gosavi v. Prakash Nana
Saheb Kanbb 2010 (2)SCCD 1105 (SC) Civil Appeal No. 1292 of 2002 with C.A. No. 1293 of
2002. Decided on September 16. 2009

Joint Tenant - If a proceeding is drawn one of the joint tenants, it is presumed that the interest of
other joint tenants is represented by the contesting joint tenant.

Smt Mridula chaube and Anr vs. Smt Sushila Mittal and Anr. 2010(1) UAD 567.

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Joint Tenant – After the death of original tenant, tenancy rights devolve on the heirs jointly and
any action of joint tenant binds other joint tenants if not impleaded.

Smt Puja Gupta vs. Pushkar Kumar and another. 2008(72) ALR, 762 Allahabad High
Court.

INDIAN SUCCESSION ACT,1925, secs. 15 &16

Bonafied Resident---By marriage, a woman acquire the domicile of her husband, and a wife's
domicile during her marriage
follow the domicile of her husband.

Jyoti Bala versus State of uttarakhand & Anr

writ petition No. 297 of 2008( S/B )
Decided on 16-12-2008 ( uttarakhand high court )
2009 (1) UAD 501

LEGAL REPRESENTATIVE SUIT.

Liability of legal representative for the debt of the deceased is limited to the extend
of assets of deceased in hands.
1983 SC188, 2002 (2) Civ.C.R 269 (Mad) Gonindamal vs Bhuvneshwar Financing Corporation
Decided on 19-10-2001.

LIMITATION:

Where no limitation prescribed---It has to ascertained from residuary provision of article

137 of Limitation Act,1963.
Naveen kumar and etc vs Karnataka Theatres Ltd and others.
A.I.R. 1999 Orissa 113.

LANDLORD AND TENANT

Title of--held, that the tenant who has been let into possession by the landlord cannot deny the
landlord's title however defective it may be,
so long as he has not openly surrendered possession by surrender to his landlord.
D. Satyanarayana vs P.Jagdish 1987 (4) SCC 424, confirmed in State of A. P.&
Others versus D. Raghukul Pershad (D) by LRS.& Ors.
2012 (2) UAD 558 (SC)

U.P. Act , 13, 1972, Sec. 20 (4) – Benefit of--

Khadi Gram Udyog Trust vs. Sri Ram Chanderji Virajman Mandir, reported in A.I.R. 1978
(4) S.C. 37
Wherein it has been held that the tenant can take advantage of the benefit conferred by Sec
20(4) only when he pays the entire amount of rent due as required under Sec 20(4). It has
further been held that expression ‘entire amount of rent due’ would include rent which has
become time barred.
In the case of Subhash Chand Jain vs.First Addl. District Judge, A.I.R. 1989 (15) S.C.
300 Wherein it has been held that as the time barred arrear had been deposited by the appellant
on October 1, 1977 only, the High Court took the view that entire arrears of rent rent had not
been deposited on or before the date of first hearing inasmuch as the entire amount due as
arrears of rent had not been deposited within time, the High Court was right in dismissing the writ
petition .
Followed by Uttarakhand High Court in Smt. Mahaviri & Ors vs. Ghanshyam 2013 (2) UAD
852.

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MOTOR ACCIDENT CLAIM TRIBUNAL:

Insurer not liable to pay compensation on death of pillion rider of two wheeler.
Oriental insurance co. limited. versus Sudhakaran k.v and others.
2008 ( 3 ) SCCD 1233 ( SC)

Liability to pay compensation:

if the driver of the offending vehicle was not holding valid driving license to drive the vehicle, the
Insurance Company could not be held liable to pay compensation.
2016 (3) UAD 79 UTTARAKHAND HIGH COURT, I.C.I.C.I. LOMBARD GENERAL INSURANCE
CO. LTD. VS. SMT BALA DEVI AND OTHERS, 2009 (2) U.D 39 THE ORIENTAL INSURANCE
COMPANY LTD VS. SRI KESAR SINGH BISHT & OTHERS, 2009 (2) U.D 539 UNITED INDIA
INSURANCE CO. LTD. VS. TARA DEVI AND OTHERS.

Accident due to High Tension Wire while working on Goods Vehicle:

Helper/ Cleaner of a goods vehicle sustained injuries through a 66 K.V. high tension wire drawn
above that place. suit for the compensation is maintainable under the Motor vehicle Act. Kerala
High Court Babu vs Ramesan on 1 January, 1800 Equivalent citations: 1 (1996) ACC 24

NOTE:

. A person, who has sustained injury or where death has resulted from an accident all or any of the legal
representa ves of the deceased can claimcompensa on by moving an applica on under Sec on 166 of
the Act by filing a claim pe on before the Motor Accident Claims Tribunal. Sec on 3 of the Workmen's
Compensa on Act lays down that if personal injury is caused to a workman by accident arising out of and
in the course of his employment, his employer shall be liable to pay compensa on in accordance with the
provisions of Chapter II of the said Act. Sec on 167 of the Motor Vehicles Act, 1988 lays down that
notwithstanding anything contained in the Workmen's Compensa on Act, 1923 where the death of, or
bodily injury to, any person gives rise to a claimfor compensa on under the Act and also under the
Workmen's Act, the person en tled to compensa on may without prejudice to the provisions of Chapter
X claim such compensa on under either of those Acts but not under both.

National Insurance Co vs Prembai Patel And Others on 18 April, 2005 SC

NEGOTIABLE INSTRUMENT ACT.

Premature complaint--maintainability.
complaint filed for dishonor of cheque with in 15 days of service of notice, held
premature and not maintainable.
criminal appeal No 1424 of 2007. Decided on Oct 11 2007.
Sarav investment and financial consultant pvt ltd and another
versus llyods register of shipping Indian office staff provident fund and another.
2008 (1) SCCD 216 (S C ).

RECORDS OF RIGHT

Entries in the record of rights

It is well settled that the entries in the record of rights only raise presumption that the person
whose name is entered
in the records of right is in possession of the suit lands but the same can be rebutted by
addiction of evidence,
documentary or oral on record.
Mahant Ram khilawan dass versus state of M.P.
Decided on March 10.2008
2008 (1) SCCD 471 (S C).

REQUIREMENT OF SERVICE OF A NOTICE:

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c.c.Alavi Haji versus Pala petty Muhammedand others.

JT 2007( 7 ) SC 498
2007 ( 2 ) CCSC

SPECIFIC RELIEF ACT 1963

cancellation of sale deed

under section 31- necessary party- oral evidence contrary to the document- allegation of
fraud

It is settled law that when in respect of a transation, a written document is executed, any
kind of oral evidence, contrary to the document, is not admissible. The allegation of fraud
if made by a party, must specify giving role of each person and all those involved in the
fraud must be made a party. Bare allegation that plaintiff had not received the full
consideration or that the plaintiff signed the documents without reading the contents
there of, is not a ground for cancellation of the sale deed. If the plaintiff chooses not to
read the documents, he does so at its own peril.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Judgment May 05, 2008.
CS ( OS ) No. 714/ 2008
Jai Bhagwan verses Rajesh and Ors.( see attachment 1. )

Registration of Unilaterally Executed Deed of Cancellation:

The Registration Act, 1908

Section 17 of the Registration Act, 1908

Section 31 of the Registration Act, 1908

The Transfer of Property Act, 1882

The Specific Relief Act, 1963

(i) A deed of cancellation of a sale unilaterally executed by the transferor does not create,
assign, limit or extinguish any right, title or interest in the property and is of no effect.
Such a document does not create any encumbrance in the property already transferred.
Hence such a deed of cancellation cannot be accepted for registration. (ii) Once title to
the property is vested in the transferee by the sale of the property, it cannot be divested
unto the transferor by execution and registration of a deed of cancellation even with the
consent of the parties. The proper course would be to re-convey the property by a deed of
conveyance by the transferee in favour of the transferor. (iii) Where a transfer is effected
by way of sale with the condition that title will pass on payment of consideration, and
such intention is clear from the recital in the deed, then such instrument or sale can be
cancelled by a deed of cancellation with the consent of both the parties on the ground of
non-payment of consideration. The reason is that in such a sale deed, admittedly, the title
remained with the transferor. (iv) In other cases, a complete and absolute sale can be
cancelled at the instance of the transferor only by taking recourse to the Civil Court by
obtaining a decree of cancellation of sale deed on the ground inter alia of fraud or any
other valid reasons.

M/S.Latif Estate Line India Ltd vs Mrs. Hadeeja Ammal on 11 February, 2011

W.A. NOS. 592 & 938 OF 2009

W.A. NO. 592 OF 2009

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SPECIFC PERFORMANCE OF CONTRACT

(SPECIFIC RELIEF ACT. 1963 --Section 19 and 20.)

It is a settled law that an endeavor should be made by the court to give effect to the
terms of the agreement .
It is also a settle law that an agreement is to be read as a whole so as to enable the
court to ascertain the true intention of the parties.
Uncertain agreement for sale can not be given effect.
Civil appeal No.2976 of 2004
Decided on February 5, 2008.
Vimlesh Kumari Kulshrestha vs Sambhajirao and anoher.
2008 (1) SCCD 313 (SC)

Unregistered Agreement to Sell

Unregistered agreement to sell -- whether legally enforceable -- whether direction can be given
to registered the said agreement without availing the remedy provided under the
registeration Act.

Vijay Kumar Sharma vs Devesh Behari Saxena on 16 November, 2007

Equivalent citations: AIR 2008 All 66, 2008 (1) AWC 664

Held--because the plaintiff did not avail the remedy provided under Registration Act for
getting a document registered. The agreement dated 22.01.1993 is unregistered
document. The learned court below has passed a decree for mandatory injunction
directing the defendant to get the said agreement registered before the registering
authority within one month and then to execute the sale deed in favour of the plaintiff in
terms of that agreement. In our view, such direction could not be issued in the present
suit. Section 23 of the Registration Act lays down that "no document other than a will
shall be accepted for registration unless presented for that purpose to the proper officer
within four months from the date of its execution". Section 25 provides that If, owing to
urgent necessity or unavoidable accident, any document executed, is not presented for
registration till after the expiration of the time prescribed under sections 23 and 24, the
Registrar, in cases where the delay in presentation does not exceed four months, may
direct that on payment of a fine not exceeding ten times the amount of the proper
registration-fee, such document shall be accepted for registration. Section 71 lays down
that every Sub-Registrar who refuses to register a document shall make an order of
refusal and record his reasons. Section 72 provides an appeal to the Registrar against the
order of Sub-Registrar, where refusal is made on the ground of denial of execution.
Section 77 provides that where the Registrar refuses to order the document to be
registered, under section 72 or a decree under section 76, any person claiming under
such document, or his representative, assign or agent, may, within thirty days after the
making of the order of refusal, institute in a Civil Court, a suit for a decree directing the
document to be registered. These provisions show that a suit for a decree directing for
registration of the document can be instituted after recourse has been taken to the
provisions of sections 71 and 72 of the Act.

The Full Bench consis ng of 5 Hon'ble Judges has held in the case of Bhagwan SINGH and Anr versus Khuda
Baksh and Anr 1881 (III) ILR 397 that suit for claiming a decree direc ng the registra on of document without
having recourse to the provisions of sec on 73 of Registra on Act is not maintainable. It is specifically held by the
Full Bench that moving the applica on under sec on 73 of Registra on Act is condi on precedent for ins tu on
of such suit.. This Court in the case of Surendra Kumar v. Amarjeet Singh and Ors. AIR 2004 Allahabad 335 has held
that unregistered document of contract for sell in respect of immovable property cannot be enforced under
Specific Relief Act. Therefore, in our view the decree of specific performance of the agreement to sell dated
22.01.1993 passed by court below is wholly illegal and cannot be sustained.
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Registered document -- genuineness and presumption.

The court can not accept the genuineness of the document simply because it is registered.
Registeration of any document does not ensure genuineness either of the contents of the
documents or execution of the same. Registeration gives rise presumption that a document has
been executed and registered.However,this presumption can be rebutted by adducing evidence.

2013 (1) U.A.D 147 UHC.

Ashok kumar & others versus State of Uttarakhand & others.

Readiness and Willingness

Section 20 and 16 (c)
Section 16 (c)”postulates continuous readiness and willingness on the part of plaintiff '"
It is a condition precedent for obtaining a relief of grant of specific performance of contract.
Azhar Sultana versus B.Rajamani and others
civil appeal No. 1077 of 2009
Decided on February. 17,2009
2009 (1) SCCD 525 (SC)

Readiness and willingness:-

Lack of pleading--- provision does not require any specific phrasealogy.Compliance with the
readiness and willingness has to be in spirit and substance and not in letter and form.
Continuous readiness and willingness could be seen from the conduct of the
plaintiff as a whole.
Faquir Chand and Others V. Sudesh kumari 2006 (3) Apex Court
Judgment 259 (SC)

WILL:

PROBATE/letter of administration can not be granted in respect of incomplete will.

Anil Kak versus Kumari Sharada Raje and others.
2008 ( 3 ) SCCD 1261 ( SC ).

probate case can be converted for grant of letter of administration

Kerala High Court, K.M. Varghese And Ors. vs K.M. Oommen And Ors. on 20 July, 1993

Equivalent citations: AIR 1994 Ker 85

Execution of Will--Suspicious Circumstances:-

A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder
himself taking a leading part in the making of the will under which he receives a substantial
benefit and such other circumstances raise suspicion about the execution of the will.

Proof of Will--Section 63 of Succession Act---Section 68 of Evidence Act: "Stated generally, a

will has to be proved like any other document, the test to be applied being, the usual test of the
satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so
in the case of proof of wills, one cannot insist on proof with mathematical certainity.
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Since section 63 of the Succession Act requires a will to be attested, it can not be used as evidence until, as
required by section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving
evidence.

H.Venkatachala Iyengar v. B.N.Thimmajumma 1959 supp (1) SCR 426; Jaswant

kaur v. Amrit kaur (1977) 1 SCC 369; S.R. Srinivasa & others v.
S.Padmavathamma 2010 (2) UAD 221 Supreme Court.

Difference Between Registered and Unregistered Will:-

Held that,under Clause (a) of Sub - Section (2) of Section 41 of The Registration Act, 1908, the
Registrar had the obligation of satisfying that the Will, or the instrument purporting to be Will, was
executed by the testator. If the Registrar was satisfied about the execution of the purported Will
by the testator, he certainly could register the Will. However, we make it absolutely clear that
satisfaction of the Registrar that the Will was executed by the testator is no certificate that the
same was executed in fact by the testator. At the same time, registration of a Will does not give
more authenticity to the Will. An unregistered Will or a registered Will has no difference. A
Will come into force only when the same is accepted by a competent Court to be a Will executed
by the testator, who is supposed to have executed the same. This opinion of the court may be
had by applying for probate or letters of administration annexed with the Will or in any other
collateral proceedings.

SMT. SNEHLATA BHANDARI & ANR. Versus STATE OF UTTARAKHAND & ORS. 2013 (1)
UAD 610, UTTARAKHAND HIGH COURT

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