Good evening, friends. And before we start the session, we would like to congratulate Mr. Esha Somoshekar for shifting to his new home. And as they say that where knowledge is there, that house is always blissed. And it's a pleasure that we have connected with Mr. Esha Somoshekar. He had always been agreeing upon to take the session, but due to his pressing engagements, as he's known for his immense knowledge, we this time took time to connect with him. And for the today's sessions, we are having trial or suits for declaration of title, injunction and position, which is an important aspect, not only for the purposes of law, judicial officers and for a common man. Before we request Mr. Esha Somoshekar, a principal district judge from Karnataka, rural district, Bangalore. To take the session, as we all say that keeping in view the rise of the COVID, kindly maintain social distancing, wear your mask and do vaccination. Do not go outside the home until unless it's quite mandatory. And secondly, in whatever manner you can contribute, economically, mentally, socially, you should contribute to the society because during these testing times, it is an important aspect. And in our venture, we have tied up with Aksha Legal, which is known for its knowledge in sites being shared in Karnataka. And with the tie up, we have gone not only from India, but beyond that, without taking much time, I would request because the topic is too large for Mr. Somoshekar to take things forward. Over to you, sir. Thank you. Good evening, Mr. Vikas Chetrat and good evening, friends. First of all, I thank Mr. Vikas Chetrat for the opportunity to give to him. In fact, I was expected to speak on the subject on second because there was some death in my family. I could not do it on second. So I requested Mr. Vikas Chetrat to postpone it to some other day, which he has done and grateful to him. I'm supposed to speak, rather I chose the subject, trial of suits for declaration of title, invention and position. Though I find a few seniors here, my target group is the younger audience and the two advocates practicing in the Mofusive Courts. For lawyers practicing in the Mofusive Courts, suits for declaration of title, invention and position, he is the really bright and butter. They should know how to plead facts. They should know what type of evidence they should writing, how they should argue. Keep in this same view, I have broadly divided the subject into two parts. One procedural aspects that is pleading, what kind of evidence should be given, what care should be taken when the judge frames the issues, what evidence should be used, how the arguments have to be advanced. Then substantive aspects, the law relate into declaration of title, invention and position. Now, some of the lawyers have already heard me, not necessarily on this subject. I have spoken to advocates in Bandur Bar Association, Lahari Academy, some of the judicial officers at the judicial academy and elsewhere also. Those who have already heard me will kindly excuse me for repeating the same thing. It may be the 10th or 12th time I am telling you, but repetition has a purpose. Now, I was working as a Munsif from 1991 to 1995 in Chitpalapur, which is now a district headquarter, which was then a tall headquarter, a small place. Where a senior lawyer, been aged about 80 or 85 years, by name Shri D. Anuntasheer Tacha. I always remember him and quote him whenever I refer to pleadings. I said that I worked in that place between 1991 and 1995. We are in 2021. Even after 26 to 30 years, I am able to reproduce verbatim, plant in two suits filed by him. First, a suit for partition to which parties were Muslims. The plant red like this. Diseased so-and-so was declared. The owner of the suit scheduled properties in OS so-and-so. He died on such and such a day, leaving behind the plaintiffs and the defendants as his legal case. Plaintiffs are entitled to such and such a share as per Muslim law. Despite repeated demands, defendants did not come forward to effect a partition. Hence this suit. Prayer for judgment, then schedule. Is any essential fact missed in that plate? How the propositions became the owner is stated because he was declared to be the owner of the food schedule properties in an earlier suit. Without meaning any disrespect to any member of the bar. Supposing if such a suit had to be filed today, we would have stated in the plane. What were the contentions raised by the plaintiff in the previous suit? The contentions raised by the defendant. The issues framed. Then saying the frivolous suit was filed. The suit is already decreed. Our referral is different so stated the suit is decreed. All those details would have been given. He said in the plane how the plane the propositions had become the owner. Who are all his legal heirs? What was the share to which the plaintiff was entitled? How brief was the plaintiff? How easy it was for the opponent to meet the case? How easy it was for the judicial officer to frame the issues and understand the case? Then I will reproduce the plaintiff in the other suit. It is a suit for recovery of money. The recovery of money means recovery of price of goods sold by the plaintiff to the defendant. Plaintiff was a wholesale cloth merchant. The defendant had purchased cloth from him. The defendant had not paid the cost of the goods. Plaintiff filed a suit for recovery of the cost of the goods sold. The plane ran like this. Towards the goods sold by the plaintiff to the defendant on credit. The latter became due in a sum of rupees so and so as per the accounts maintained by the plaintiff as on such and such a day. As per mercantile usage bar custom, plaintiff is entitled to interest at one and a half percent for one per one sum on delayed payment. Despite repeated demands and issue of legal notice, defendant has not paid the same. Hence the suit, particulars of the suit claim prayer. The defendant in that case as usual rise of some contentions, admitted some payments, then again said suit was barred by time and all that. When it came to evidence, he said certain items of goods which were delivered to the defendant was not in dispute and therefore he was not giving evidence in respect of one dispute at fast. He did not produce any bills. He said exhibits piece on so are we credit bills pertaining to the transaction it was in dispute. And he said that he has produced. Then he said, my learned friend has raised a question of limitation, an interesting question of limitation. I would give my reply after hearing him. His learned friend did not arise the question of limitation at all. Needless to say that the suit was decreed. Then in the year 1980, between 85 and 88, I was a munsif in Mysore. We had a senior advocate by name SP Rananatha Char. The plaint used to be very brief. In a suit for permanent injunction, if the case of the plaintiff was that the defendant was trying to put up a wall, abutting the Southern Wall of the plaintiff's building or the defendant was trying to demolish the Southern Wall of the plaintiff. The prayer used to be to restrain the defendant from demolishing the Southern Wall of the plaintiff. Not the usual prayer, restrain the defendant from interfering with this plaintiff's peaceful position and end enjoyment, restrain the assigns, representatives and all that. Such brevity is not seen. I started practice as a junior lawyer in Chitradurga of Karnataka. For two years I was with one Venkat Ranganam. And he used to tell me, launder the plaint weaker the case. I repeat, launder the plaint weaker the case. Please take it from me, I'm not blaming anyone. The end liars are not exposed to such brief pleadings and naturally they imitate the pleadings which they have forked. Well, when I asked some liars as to why, of course in an informal talk when I asked some liars they said, sir the judicial officers write in the judgment that this is not pleaded, that is not pleaded and therefore we take it. When I speak to the judicial officers as to why you reproduce the entire claim they say, well, everything is pleaded and therefore we do it. Issues should not be framed because the claim was not. The written statement was not. Now, whatever be the reason whether a judicial officer fights fault with a lawyer for not pleading every fact which he wants, what he should have done. I think the basics are found in the civil procedure quote. Of course, we had a subject principles of pleadings also without going to those things. The civil procedure code itself tells it. The statutory provision itself tells it. Let us have a look at order six. Order six rule two. Every pleading shall contain and contain only a statement in a concise form. See each one of the words. Every pleading shall contain and contain only see the stress there. A statement in a concise form of what? Or the material facts, not all facts. Or the material facts on which the party pleading relies for his claim or defense as the case may be, but not the evidence by which they have to be proved. I will start from here. You know that in a suit for bare intention, what is it that you are required to show to the court? That your claim was in possession of the suit, your property or the date of suit. There is an interference in this position. Therefore, it is entitled to 83 for permanent invention. Of course, it is an equitable relief. The plaintiff has to come to the court sanitizing his hands, right? This is all what you are required to do. Take it from me with an amount of confidence in me which I believe all of you have. In law and as per the rule of pleading, I am a very firm opinion that the plaintiff is not required to state in the plaintiff that after he purchased the property or after he got the property at a partition or through a bill or through a gift deed. He got the Tata chain, mutation was affected. He has been paying Tandayam, the Tandayam receipts. All those things are part of evidence. Why should those things be pleaded? How the plaintiff is in possession needs to be stated. Obviously, if he dresses his possession to title, well, ancestral property, if it is by a testamentary succession or interstate succession gift, certainly you state it. Beyond that, should you also state that the Tata has been changed to his name and all that? I don't think that this is a requirement of the plaintiff. Well, when it comes to suits for declaration of title, well, if it is a clear case where the plaintiff has acquired title under a gift deed or a sale deed or a will, well, not much of details are required. But if something more is required to be stated, some details are required, supposing it's a land granted to some yet, thereafter he had sold it to some wife and from why the plaintiff purchased the property or acquired it by some means. Maybe in one or two sentences, how to whom the suit schedule property at a point, at one point of time belong may have to be stated. Somewhere towards either towards the end of the presentation or during the course of presentation I'd be drawing the attention of all of you which most of you may be knowing to a decision of the honorable Supreme Court, a recent decision which says that the plaintiff also can see declaration of title, pleading that he has perfected his title by way of adverse possession. Therefore, if the case of the plaintiff is for declaration of title on a pre-perfection of title by adverse possession, certainly the time from which the possession became adverse will have to be clearly stated and specifically stated in the plaintiff. Then when it comes to the written statement, well, sometimes I say jocularly if for some reason our court staff misplaced the original plaint, even if we have written statement that is sufficient because experience has shown that the first few paragraphs of the written statement would be a reiteration of the plaint governments and in the last sentence, what is stated is false, plaintiff is put to state proof. The case of the defendant, well, experienced lawyers and judicial officers would straight away go to that para eight or nine where they find the case of the defendant. Well, here you will have to be a little careful appearing for the plaintiff. Many times, when we just to go through a first few paragraphs of the written statement, we are tempted to believe that the defendant is or the defendants are denying the entire case of the plaintiff. You have the patience to go through that eight or ninth para where he says the facts of the case of the correct facts, true facts of the case of the defendant. You would come to know or realize that at least a few facts pleaded in para's one to six are admitted either implicated or specifically or expressly. Here it is very material because if a judicial officer frames issues based on some kind of a denial found in the first few para's, appearing for the plaintiff, you should draw the attention of the judicial officer to other para's and say that this is not a thing which is required to prove. He is not required to carry a burden which he is not required to and therefore kindly delete those issues. Such a power is available in the court. Well, a well-meaning judicial officer should do it on your oral application without even written application being filed. Now for the benefit of the junior members or junior members of the bar who have joined this, I must tell you that order eight requires that the denial must be specific. See each of the marginal titles to order eight rules three to five. See the beauty of it. The marginal note rule three of order eight is denial to be specific. Four evasive denial, five specific denial. Well, I think you understand why there should have been three different rules. All of them could have been put in one there but maybe the framers of the civil procedure or thought that there should be very specific in this regard. Let me read rule three. It shall not be sufficient for a defendant in his written statement to deny generally the grounds are lead by the plaintiff but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages. To me, it appears probably rightly also taking a cue from rule three of order eight. In many written statement reproduce the whole pair of the plaint and then say it is specifically denied. Then go to rule four. Evasive denial, where a defendant denies an allegation of fact in the client, he must not do so evasively but answer the point of substance. Thus, if it is a leak that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount but he must deny that he received that sum or any part thereof. Or else set out how much he received and if an allegation is made with the diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Since today's presentation is in relation to a suit for declaration of title, invention and possession. Let me give an example in this regard. The case of the plaintiff is that the suit property belonged to one yes and from yes he purchased it and the registers say lead and thus has become the owner. This he would have stated, let us say in para two of the plaintiff. Certainly not as briefly as I have put it but he would have put some more circumstances. Now, the defendant simply says in the written statement, it is false that the plaintiff purchased the property from Tushnapa, from yes that is what he says. Go to para eight of the written statement. Supposing he says that the suit property originally belonged to one P who had two sons yes and y and after the death of P the brothers yes and y divided the properties and in that division, the suit schedule property fell to the share of the brother y from whom the defendant purchased and therefore yes could not have executed as title deed in favor of the plaintiff. Is it a case where the execution of the sale deed in favor of the plaintiff is denied? No, what is denied is the title of yes who conveyed it to plaintiff. Therefore, the defendant must specifically say is he denying the title of yes or is he denying the execution of the sale deed in favor of the plaintiff. This is the kind of denial that is contemplated by rule four. Rule five, every allegation of fact in the plaintiff if not denied specifically or by necessary implication or stated to be not admitted in the reading of the defendant shall be taken to be admitted except as against a person with a disability that is a person who is a minor and a person who is a concerned mind. Let us not know one of us here is a minor and no one of us are a person of concerned mind. We are all human persons. Therefore, let me leave that. Now, every allegation of fact in the plaintiff if not denied specifically or by necessary implication or stated to be not admitted in the reading of the defendant shall be taken to be admitted. I'll give one more example. Plainty files are sued for declaration of title on the basis of a gift deed executed by his grandmother, Yetz. He says that the grandmother has executed the gift deed and he has become the owner. Let us take two situations. I've said Yetz, the grandmother. Defendant is not the Yetz that is the grandmother. Defendant is some other person. He says that the defendant has been denying his title and all that. Supposing in this case, the defendant regularly says it is false that Yetz has executed a gift deed in favor of the plaintiff. But towards the end of the written statement or the middle of the written statement, he says that Yetz herself had no title to donate to give the property in favor of the plaintiff. And in fact, the property belonged to someone else and from him he purchased or that the property belonging to Yetz's husband and Yetz's husband has left behind a willingness favor or it belonged to Yetz and Yetz has executed a will in his favor. The gift is something of that plea. Then is it a case where the execution of the gift deed is denied? Therefore, we will have to be very careful appearing for the plaintiff to know what actually the defense of the defendant is and what is denied and build up your case accordingly. Equally it is necessary for the defendant to plead specifically what he admits and what he denies. And as all of us are familiar, we say, we generally say a plaintiff is put to strict proof of it. We also say that the plaintiff defendant is not aware of it. What is this not being aware of it? Now, we have two decisions of the honorable Supreme Court. I directly go to those decisions. One reported in AER 1967 Supreme Court 109, AER 1967 Supreme Court 109 and the other reported in 2016, Volume 12 SCC 288. I had a request from one of my advocate friends saying that I should repeat these citations and I should be a little slow so that he would make a note of it and therefore I'm repeating it. AER 1967 Supreme Court 109, then 2016 12 SCC 288. Not that there are no decisions in between, maybe I have not noticed. In this 2016 12 SCC 288, the earlier decision in AER 1967 SC 109 is cited and reiterated. What has been stated in these decisions is stating that the defendant is not aware of a fact, a plea of ignorance, does not amount even to an implied denial. Does not amount even to an implied denial. For one of them not reading the particular paragraph from the judgment, I read it today morning. It says that the plaintiff need not join issue with such a kind of plea. Court need not frame an issue. When the defendant only pleads that he is not aware of that fact. Then we have under order 8 before that, something more we read out to order 8 rules 5. The consequence of not pleading, not denying specifically is also provided there. That it shall be given, I think the other things are not necessary. I think that it is more for the judicial of the judge than for the arbitrators. The court can proceed for judgment and all that. Now, order 8 rules 6A provides for preferring a counter claim also. The illegal position is now well settled and the provisions are also clear. Counter claim is not just confined to a money claim. Even in a suit for possession or incantation filed by the plaintiff, the defendant can set up a counter claim setting up his own title. If the suit is for incantation, the defendant might plead, it is true that the plaintiff is in possession, but he has disposed a Sydney, therefore grant me a decree for possession. Therefore, the defendant can set up a case of title possession by way of counter claim in a suit for declaration of title, intentional possession filed by the plaintiff. I know that I'm speaking on a platform which is not confined to Karnataka. It is titled beyond law. It is beyond Chandigarh, I should say, because everybody is joining under the Karnataka court fees and suits valuation at section 8. It provides that court fee has to be paid on the written statement in a, on set off or counter claim set up in the written statement. So section 8 of the Karnataka court fees and suits valuation requires that court fee will have to be paid. I may be permitted to deviate slightly. We have a judgment of honorable justice, R.V. Ravindran, who retired as a Genjithi Supreme Court and was a Genjithi Karnataka High Court. Sharing division bet with honorable judge. She has said that in a partition suit when the defendant claims his share, it is neither set off nor counter claim. What is set off? Supposing if the plaintiff had sought one-third share, the defendant cannot say, I'm entitled to one-fourth share, therefore deduct one-fourth from one-third. No, it's not it. It is neither a counter claim. When the defendant sets up, when the defendant says that he is also entitled to some share and is prepared to pay court fee and all that, it is neither set off nor counter claim. This may also likely be noted. So having emphasized the fact that the client should be briefed that the written statement should say what is specifically acquitted and what is specifically denied. The next stage, of course, section 89 CPSA, I'm not on that. As things go, the cases are posted for issues. Now, it is true that it is the job of the judicial officer to frame the issues. Absolutely no doubt about it. But there was a time when after the issues were framed in the court hall itself, the advocates used to go through the issues, point out to the attorney officer that this issue should have not have been framed or the burden should not have been cast on his claim or some additional issue was required. Such submissions used to be made or at least an application used to be filed. What I am now finding is in the case is right for trial or halfway through trial or when the case comes up for arguments, applications are filed, requesting the court to recast the issues, reframe the issues, rise additional issues, delete additional issues. My request to the members of the bodies after the issues are framed, see whether the burden is properly cast. It is extremely important. Burden is properly cast. And otherwise, and whether particular issue requires some kind of a alteration, deletion, modification, reframing, kindly make applications. As I said, a well-meaning judicial officer should be, should do it even on your oral application because order 14 to my knowledge does not contemplate any written application. So, we have seen how the claim should be, what the written statement, how the written statement should be, what care the advocates have to take at the stage of framing them and after the issues are framed. Of course, what care at the stage of framing the issues for the judicial officers, what you will have to do after the issues are framed. Then during the course of trial, particularly in suits for declaration of title, where there are two or more items, kindly see that the title deeds are got marked in a chronological order day twice. Many times, it happens that the property is a granted land or it belongs to one person, how he acquired it, nobody knows. He was the original owner. And there is a partition after his death. Somebody acquired it at a partition. He executes a will, the legality under the will after his death becomes the owner. He executes a sale deed in respect of a portion of the property. These things go on. So there will be a number of documents, kindly see that these documents are marked in a chronological order day twice. I'm not speaking for the judicial officers saying that it would reduce their burden. I'm speaking for you. When you appear for the plaintiff and when you appear for the defendant, when you prepare yourself for arguments, if these documents are exhibited or marked in a chronological order, it would not take much time for you. Even when you find those documents in the court, kindly spend at least 15 minutes and see that the documents are filed in a chronological order so that the court also will mark it. In the judicial academy, when I have been speaking, when I speak to the judicial officers, I tell them, if for some reason the documents are not in a chronological order, don't mark them in the order in which they are filed. Take them out, mark them in a chronological order. Let us say item number one of the plaintiff's schedule is land-bearing survey number six bar one. The first revenue document is in respect of survey number six bar two, no. You just take exhibit P1 as the revenue document part time into survey number six bar one, that is item number one. Make it in a chronological order that would help you to argue better, that would help you to prepare yourself. And I have seen a good number of cases, not only on the original side, but also in regular appeals. Under order 41 rule 27 CPC applications are filed for production of documents by way of additional evidence. Take it from me. In most of the cases, the additional documents that are produced are revenue records or RTCs which we say in Karnataka, pertaining to a period subsequent to the filing of the suit. Land revenue receipts or tax receipts, evidences payment of tax or revenue subsequent to the filing of the suit are produced. Even on the original side, some RTC extracts got which the plaintiff obtained or the defendant obtained in dependency of the suit. The suit is filed in the year 2018. RTC of the year 2020 is produced. No purpose would be served. Here again what I have found is this. Obviously this happens. I believe that I am the owner of a property. I would not have gone, I would not have checked through the revenue records or the municipal records. And I honestly believe that the records are in my name. The defendant gets his name entered. Either the authorities concerned would have issued notice to me or they would not have issued notice. Or even if they had issued notice, I would not have responded or its party order is passed or an order behind my back is passed or whatever reason or by collusion, some mutation is affected. Now the provisions of the Land Revenue Act provide for an appeal under the Act. If it is a deputy Tashildar, it goes to the Tashildar, it is the order of the Tashildar Assistant Commissioner, Deputy Commissioner, Appellate Tribunal like this. Now the plaint says when the plaint if wanted to pay the land revenue, he found that the thata was in the name of the defendant. He got the thata check, then he approached the Tashildar, Tashildar passing some order. He realized that the defendant has preferred some appeal. All those things would be there. Now when the suit is pending, the revenue proceedings also simultaneously go on. Some order is passed. After the suit is filed, how does it bind the court? Even if it is an order passed by the Honorable High Court in the repetition pertaining to a revenue matter, I don't think that it has sued for title that needs to be considered. In most of the cases, the order to pass it by the revenue officials sees it is seen that OIS also is pending in such and such a court or RAIS also is pending. Parties are advised to agitate their rights before the civil court. I don't think that such documents need to be produced at an order of 4127 CPC or even in a trial. It absolutely serves no purpose. Then when it comes to oral evidence, there is absolutely no need to examine too many witnesses. If it is a suit for declaration of title and injunction or if it is a suit for injunction only, maybe one witness to speak to the plaintiff's possession or to rebut the evidence of the plaintiff, one witness from the side of the defendant to say that it is the defendant who is in possession or one witness to speak to interference that should be sufficient. I don't think that so many witnesses need to be examined either on the side of the plaintiff or on the side of the defendant to establish possession or interference. Here I enter a caveat. If the plea or the plaintiff fees that he has acquired title, having been in possession for over 12 years and thereby has perfected his title, maybe oral evidence needs to be a little voluminous, good number of witnesses may be required to speak to his long standing position. I don't deny it. Equally when the defendant takes up a plea of perfection of title by adverse possession, number of witnesses might be required. Remember, I'm speaking about a suit for declaration of title intervention and possession. If it is a suit for partition to establish oral partition, maybe a requirement of examining if you would arise. This is something which, and if it is a suit for title and intervention or title and possession based on some title documents like sale deed, gift deed, grant, partition deed, where is any funding leading oral evidence to that in title? Even if 100 witnesses come before the court and tell that the plaintiff is the owner or the defendant is the owner, can the court acknowledge the ownership or the plaintiff or the defendant by this oral evidence in the absence of document? Here then I said, if the plea is that by perfecting title by adverse possession, the plaintiff or the defendant has become owner, I can understand. But in a case where there are, there are, according to the plaintiff or the defendant, there are documents to establish his or her title, why oral evidence should be given to say somebody coming plaintiff is the owner, he is cross-examined at great length, have you seen the documents? Evidence in plaintiff's title, possession I can understand. So no purpose should be served. And if a well-meaning judicial officer says that no documents are produced to establish the ownership only number of witnesses are examined, please don't fight for it. Then when it comes to proving the documents, here you will have to be a little careful. Is the document one, the execution of it is specifically denied? Or, and secondly, is the document one which requires attestation compulsory? As all of you know, three documents require compulsory attestation. Markage and gift under the transfer of property act will under the Indian succession, I mean, I'm sorry, yes, will under the Indian succession act. Sales deed does not require attestation, please remember that. Well, markage we are not concerned because we are speaking about soothes for declaration of title, indian and possession. Now, please go through the provisions of the evidence set if either by design or default, you have with you the barrack for the evidence act. Please go to section 68 of the evidence set. I'm only refreshing my memory memory. If a document is required by law to be attested, required by law to be attested, it shall not be used as evidence until one attesting witness at least has been bought 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, only if the document requires attestation compulsorily, then to prove that document to one attesting witness is necessary. We have a tendency to ignore the proviso's exceptions and explanations. We'll have to be, we'll have to give more stress to the proviso's explanations and exceptions. See the proviso, provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, unless it's execution by the person by whom it purpose to have been executed is specifically denied. Some of you might have noticed the stress, the place where I made the stress, unless it's execution by the person by whom it purpose to have been executed is specifically denied. Go back to that example which I gave. Plaintiff claims title on the basis of a gift deed executed by his grandmother X. His grandmother X is not the defendant in the suit. Some other person is the defendant. Hovering that the defendant has denied his title in repairing the possession her has dispossessed him. Plaintiff files the suit for title and consequential relief. That yet, who has executed the gift deed or who is supposed to have executed whom the plaintiff claims to have executed enters the witness parts and says that I have executed the gift deed in favor of the plaintiff. Is it a case that the plaintiff should examine the attesting witness? Let me see, unless it's execution is denied by whom? By the person by whom it purpose to have been executed. The donor does not deny the execution of the bill, the execution of the gift deed. Supposing that donor, that the donor X is herself the defendant. Plaintiff says that defendant is my grandmother. She has executed a gift deed in my favor. Now she is denying my title. She says, well, I have not executed the thumb mark found on it is not mine. The signature is not my own. She makes a complete outright denial. This is a case where my attesting witness will have to be examined. Please see, my advice to junior members is this. Now you appear for the plaintiff. Pile a suit for declaration of title on the basis of a gift deed executed in your client's favor by someone. That someone is not a party to the suit. He is not the defendant. He does not deny the plaintiff's title. Someone else the defendant denies the title. Now, you don't examine the attesting witness, rightly. Maybe it doesn't occur to you because the grandmother who has executed the gift deed supports your client and therefore you don't choose to examine. The defendant's lawyer, a senior lawyer comes to the court. Your honor knows with your honor's rich experience. Gift deed is a document which requires compulsory attestation. My learned friend has not examined the attesting witness. He's quite content with examining the donor. Sixth state is not complied with. No more arguments to your honor. This is sufficient to dismiss the suit.  See who is the person who has denied the execution. It is the defendant who has denied not the person who is purported to have executed the document. Equally it applies to the defendant also. Supposing the defendant defends the suit based on a gift deed executed by someone and that someone has come to the witness box and said, well, I have executed this gift deed in fairer the defendant. There is absolutely no need to do it. Now, having said this and having said this with some force at my command that the examination of an attesting witness is required only if the document requires compulsory attestation and its execution is specifically denied by the person who is purported to have executed it. I must also tell you practical aspects of it. Let us take a sale deed. The execution of the sale deed is specifically denied by the defendant. Client gives cases that it is the defendant who has executed the sale deed in his favor and now he is denied in this state. Obviously, the plaintiff has to prove the execution of the sale deed by the defendant. Plaintiff does not choose to examine the attesting witness. It is brought out in the cross-examination of the plaintiff that at least one of the attesting witnesses is alive. It is brought out in the cross-examination. It is also brought out that the plaintiff has absolutely no ill will against the, that witness, attesting witness has absolutely no ill will against the plaintiff. The relationship between them is quite trivial. It is also brought out that the attesting witness has something against the defendant. Now, the defendant lawyer argues that it is brought out in the cross-examination of the plaintiff that the attesting witness is not alive, is alive. Despite that the plaintiff has not chosen to examine the attesting witness, he has examined someone else. He should have examined. The plaintiff's lawyer argues, maybe theoretically he's right in telling that sale deed is a document which does not require attestation. I was not bound in law, I was not bound in law to examine the attesting witness. Well, at the same time we have that rule, best evidence rule. Forget about section 68. When the evidence on record shows that the attesting witness or at least one attesting witness is alive, the relationship between the plaintiff and the attesting witness is quite cardial. Can the plaintiff take a foolhardy risk in not examining the attesting witness by going to the abstract little position that section 68 of the evidence act does not require? Does not require examination of attesting witness. Here you will have to be a little practical because when direct evidence is available, why should it? Well, of course, there are other sections if attesting witness is not available, what is to be done? I am not dealing with the provisions of the evidence act and therefore I am not taking you through those things. Then I have told you as to what care you should take while leading oral evidence, how you should, how many witnesses you should examine and all that. Now, when it comes to arguments, well, let there be clarity of expression. Whatever, for whatever reason it be, English has come to stay in the courts because the bulk of legal literature is still in English. We are taught law in English, we hear arguments in English, we read judgments written in English. Naturally, it is difficult for us to find good literature. I am not demeaning any local language. Please don't mistake me that way. Therefore, a minimum command over the English language is absolutely essential for advocates. You should be able to communicate effectively. Supposing you are not comfortable in English, if you are comfortable in your mother tongue and in the court also interact as a doing absolutely no problem. Even when you argue in the local language, the language should be very clear. It should reach the judicial officer, it should reach the opponent council, let there be clarity in it. Then, just as the pleadings, the chronology is to be maintained, even while arguing the case that chronology is required, you must say that exhibits so and so is the title deed of the original owner. Such and such a document is the RTC extract. Immediately, the Thaka was changed, endorsement of time, you must bring a link, maintain that chronology. Don't read the entire pleadings or the entire deposition unless the court itself asks you to read the entire pleadings and the depositions. Highlight only the relevant portions of the pleadings and deposition. No need to cite decisions in respect of a well-settled legal position unless the judicial officer is a new recruit, because experienced judicial officers would have known the legal position. Don't give them decisions saying that in a suit for permanent indention, plaintiff has to establish his position in interference. Everybody knows it. To prove a document that requires attestation, such and such state will have to be complied with. These are legal positions which everybody knows it and there is no need to cite decisions in respect of well-settled legal positions. Then, if your High Court has given a decision on a point, there is no need to cite decisions of other High Courts. Or if the Supreme Court has given a decision on a point, there is absolutely no need to cite decisions of other High Courts. And there is a recent trend to file written arguments. CPC also has recognized it. I have no problem in that. The problem is here. Experience has shown, particularly in regular appeals, that the written arguments are only a reproduction of the grounds of appeal found in the memorandum of appeal. I have seen when adjournment is refused for arguments, they'll say I'll submit written arguments and the written arguments would be only a reproduction of the memorandum of appeal. On the original side, it is a reproduction of the pleadings and deposition. Please avoid that. And for junior members of the bar, my advice is, when will you submit it? My experience is this. When the presiding officer refuses an adjournment, you will say that you will file written arguments. Number one. Number two, when you are not comfortable in speaking, please cultivate the habit of speaking because a lawyer should argue it is only when oral arguments are presented, you will be able to impress upon the judicial officer. He can seek clarification. These written arguments may not serve purpose. At least you can submit those written arguments. Plus, please don't see the rest of content with written arguments only. Make oral submissions. So these are certain aspects that I wanted to tell you. Now, the substantive law regarding declaration of title, indention, and position. I'm not at the question whether the specifically fact is a procedural enactment or a substantive enactment. Well, some judgment of the Supreme Court says that it is a procedural enactment to whatever it is. Somehow, since yesterday I am thinking, I may be right or wrong, instead of titling it as specifically fact, it could have been titled as specific remedies act. As all of you know, it refers to seven kinds of specific release. And we are concerned with three of them, namely the declaratory release, contemplated by sections, covered by sections 34 and 35, indention 36 to 42, possession sections 5 to 8. I am not taking you through the provisions, except section six and five, which requires some clarity. Rest of the provisions I am not telling. As I said, my target group is the ender audience, most particularly practicing the Mofusil courts, where suits are in the suits for declaration of title, indention, and possession, or in respect of immobile property, there also are the cultural reliance, maybe sites and other things. I am not telling anything about suits for declaration of status, or saying that the plaintiff belongs to this particular caste. The age of the plaintiff is this. The plaintiff will be declared as adoption, adopted son of so-and-so, or adopted daughter of so-and-so, or marital status in desert states. I am not on that. I am purely on a question of declaration of title in respect of a immobile property. That is my subject for this day. Now, these are all interconnected. Therefore, I have chosen to discuss them together here. First, what is this title? When you think of title, we always think that there must be a sale deed, a gift deed, a partition deed, a will, or a grat. There is absolutely nothing wrong in such a concept. When we thumbs think of title, we think of some title deed. Is it necessary, or is it possible to produce title deeds in all cases is my question. Well, suit is for declaration of title on the ground that the plaintiff has perfected his title by adverse position. Suit for title is sought to be defended by the defendant on the ground that he has perfected his title by adverse position. Is it possible to prove it by any title deed? Absolutely not. I was for a very long time while I was working as a judicial officer thinking, what kind of title deed can be produced either by the plaintiff or by the defendant when he says that the suit property is ancestral property. I say that the property belonged to my paternal great grandfather. He died. My paternal grandfather was the only son to him those four days when 1956 had women getting a share, everything was not there. He died. My father became the owner. Well, except me, there is no one else for my father.  I have become the owner. How am I to establish my title? I claim it as my ancestral property. Supposing if I had said that is my ancestral property, there is a partition subsequently the death of the propositors under a partition have acquired it, the situation is different. I make a simple case saying that I am the owner of the property, it is an ancestral property. Or two or more joint owners climbing it up with the ancestral property, file a suit against some defendant sale, some person saying that it is their ancestral property. Prove that in a suit for title, certainly title deeds assume importance, but if it is a title, the claim of title is based on a sale deed, gift deed, grand, artisan deed or will. If it is ancestral property, how it could be done is my question. Fortunately for me, I have been telling this to the judicial officers at the judicial academy. I will be have a judgment of the honorable High Court of Karnatakaar. Please make a note of it. 2020, 2020, volume three KCCR, 2020, volume three KCCR, 1966, 1966. For those who are not able to get this KCCR, I will give the case number RFA, 170 of 2005, RFA 170 of 2005, connected with 171 of 2005 by honorable Justice Srinivas Harish Kumar. The names of the parties, Jayamma and another versus Ashraf Jahan Bedham. Jayamma and another versus Ashraf Jahan Bedham. I will just read a paragraph from his lordship's judgment. The next question is, whether based on revenue documents, title of the plaintiffs can be declared. It is no doubt a settled position that revenue documents do not confer any title. They don't confer title, they confirm. They are a resemblance of title. But here is a case of the plaintiffs can produce no document other than revenue records to prove their title. As has been observed already, government issued acquisition notifications showing so and so, as the owner of survey numbers so and so, which adds weightage to the presumptive value attachable to revenue increase. Therefore, I want the opinion that whenever a person has been in possession of an immobile property, especially ancestral in character for quite a long time and revenue entries standing the lineage of his family continuously without any challenge to it or if challenge the same being overruled or rejected, I'd be not in a position to produce any document conferring title other than revenue records. There is no impediment to declare title based on possession, which is otherwise called possessory title. This is very, very important, please bear this in mind. Now, we have a latest judgment of the honorable Supreme Court saying that plaintiff can also seek title on the basis of adverse possession. Most of you will be knowing it. Anyway, it is my duty to bring to the notice of the audience. It is reported in AER 2019 Supreme Court 3857. AER 2019 Supreme Court 3857, it's SCC equivalent is 2019 volume eight, SCC 729. Therefore, obviously a plaintiff can also seek declaration of title on the basis of adverse possession. We can't expect any title deeds. Now, there are three types of title. One is proprietary title, which is acquired by purchase, partition, then gift as a legality and a reveal. This is a known thing. I am the proprietor, I am the owner of that property. The other is possessory title, about which I will tell a little later. The third is prescriptive title, three piece, please remember this. Proprietory title, possessory title and prescriptive title. Proprietory title is very simple, I have explained that. Prescriptive title is this. Please go to section 27 of the Limitation Act. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. There was one familiar question, there used to be one familiar question when we were studying law. This limitation act was a part of the paper relating to CPC, CPC 60 March, 20 March for the arbitration act of 1940 and another 20 March for this limitation act of 1963. The question used to be limitation bars a remedy but does not extinguish a right. Limitation bars a remedy but does not extinguish a right. Section 27 is an exception to it. Now, what is it? It doesn't bar a right, it actually does not extinguish a right. It is due to pay me some money. I am required to file a suit within three years. I don't file it. But there is no bar for me to accept that money from him and there is no bar for him to give that money to him even after three years. My right to climate is not extinguished. What is barred is my remedy to approach to the court and buy a suit. 27 is an exception. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. What does it mean? If within the period of limitation prescribed by the limitation that a suit for possession is not filed, it is not just the remedy to file a suit for possession that is barred, his right to the property itself is lost. Is what section 27 says. You will have to read the section 27 with article 65 and before that article 64 also have one thing to the members, the junior members here. Most of the times you hear lawyers arguing, limitation starts from the date of knowledge. I jokingly tell, limitation doesn't start from the date of knowledge. It shows our limited knowledge of the limitation act. There are only a few provisions in the limitation or rather a few articles in the limitation act which tell us that limitation starts from the date of knowledge. I am not on that note. See there are three columns in the schedule to the limitation act and there are three divisions. First division, limitation pursuits, second division for appeals, the third division is for applications. Now in the first division, we have two articles important for our purpose, 64 and 65, article 64. For possession of immobile property based on previous possession and not on title and not on title. When the plaintiff while in possession of the property has been dispossessed 12 years from each state, not from the date of our knowledge. Date 12 years from the date of dispossession. So therefore, if the plaintiff says that I was in possession of this property, I am dispossessed by the defendant. He has to file that suit within a period of 12 years from the date of dispossession. By implication, the date of dispossession will have to be stated in the plaintiff. When it comes to article 65, for possession of immobile property or any interest therein based on title 12 years from each day, when the possession of the defendant becomes adverse to the plaintiff. In most of the suits for declaration of title and possession, plaintiff climbs title on the basis of some title deed or he says partition, grant and all that. In most of the cases, it is article 65 that applies. What we have is the limitation act of 1963, which as of today is 58 year old. Some booth on the limitation act, obviously may and should make a reference to the earlier legal position contained in articles 142 and 144. The legal position then was different. Under articles 142 and 144, plaintiff was required to establish in a suit for possession that he was in possession for a period of 12 years prior to the suit. The Supreme Court in a good number of decisions and our High Court has also held that if the suit is based on title, nothing more needs to be done by the plaintiff except for establishes title. When once the plaintiff establishes his title, if the defendant either has not pleaded adverse possession or though has pleaded but has failed to prove adverse possession, the plaintiff is bound to have a decree. The burden is on the defendant to show that he has perfected his title by adverse possession. So therefore, in a suit for possession based on title, plaintiff need established only title and he need not establish his possession for a period of 12 years prior to the filing of the suit. Appearing for the plaintiff is a lawyer for the defendant's side some decision, which was rendered prior to 1963 are coming into force. Don't be unnerved. Please refer to the latest decisions. I would like to give them a delay because I'm running short of time. Let me complete the conceptual aspects of it. And if the claim is based on adverse possession either for the plaintiff or for the defendant gets that date when the possession became adverse and you should also know that you should admit the ownership of the other side. Unless you admit his title, you can't say that you are in adverse possession and you have perfected his title. Then we have this possessory title. Article 64, Speeds of Possessory Title. What is this possessory title? Well, the judgment of Justice Harish Kumar with Chastanel who is cited makes a reference to it. His lordship has also referred to a judgment to the supreme court. His lordship has also referred to section 110 of the evidence act. Kindly go to section 110 of the evidence act. Burden of proof has to ownership. When the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is in the person who affirms that he is not the owner. You have filed a suit for declaration of title and invention. You are not able to produce any title date. Or though you have produced the title date you are not able to prove it. There is some lacuna in your case as far as the title date is concerned. Equally the defendant is not able to establish the title pleaded by him. He sets up some title. He says that someone else is the owner. Then he says that he himself is the owner. He says that it is his ancestral property and all that he doesn't clearly set up his title. You are not able to prove your title date or there is no acceptable title date. But you are able to establish your possession. Should the court grant only the relief of injunction to you or should it also grant the relief of declaration of title? I am quite conscious of what I am telling. When the question is whether any person is the owner of anything of which he is shown to be in possession. Appearing for the plaintiff by the evidence they have shown convincingly that your client is in possession. The burden of proving that he is not the owner is on the person who affirms that he is not the owner. The defendant affirms that your client is not the owner. You have been successful in proving that you are in possession of the property. The burden shifts to the defendant. There is no better title established by him. Certainly you are entitled to a decree not for just injunction, but for declaration of title also. As I said Justice Harish Kumar has referred to the decision of the Supreme Court. Please make a note of that important decision of the Supreme Court. If I don't cite it, my entire presentation of this day would be a waste. It is in AER 1970 Supreme Court 846, AER 1970 Supreme Court 846, it's SCC equivalent is 1969, volume 3 SCC 129, 1969, volume 3 SCC 129, Somnath Berman versus Dr. SP Raju. You see this was a case where some title deeds were produced. There is no acceptable evidence with regard to proof I mean the execution of those title deeds. It was in those circumstances, this is what the honorable Supreme Court said. It was next contended on the basis of the, on behalf of the appellate that in a suit for possession brought on the basis of title, the plaintiff cannot succeed unless he proves his title to the suit property as well as its possession within 12 years. Atard into the appellate except in a suit under section nine of the specifically fact that is section six now. The plaintiff for succeeding the suit has to prove what the existing title to the suit property in its possession within 12 years. We are unable to accept this pen tension as threat. In our opinion, please mark these words. The possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defend the plaintiff's lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail Arif versus Mohamed Gauss, the judicial committee of the privy council came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an intention restraining the defendant from interfering with his possession. I repeat, the privy council said, a person having possessory title can get a declaration that he was the owner of the land in suit and an intention restraining the defendant from interfering with his possession. There are good number of decisions on this possessory title. I will cite them at the end. Maybe I may have to exceed the time given by Mr. Vitash Chetrat. I believe I have permission to exceed it. May I take it that I have your permission to exceed the timeline, sir? May I say, may I think I have your permission to exceed the timeline? What is it? What is the time? Because I'm in a flow, I don't want to go back. Well, to understand this concept of possessory title, well, this is- Everybody is in flow. Everybody is going with the flow. Go ahead, it is absolutely no problem. Okay. And it is a free webinar where people can learn. So it is their choice to leave. But while they're enjoying, they won't leave. Thank you very much, sir. Well, those of you who are armed with this specific relief hat, and I believe that at least some of you are armed with it. And you will never be harmed if you haven't a bearer. You should always arm yourself with a bearer. It will not harm you. Please go to section six of the specific, first section five of the specific relief hat. Section five finds a part, finds a place in part two of the specific relief hat. And in this, in chapter one, recovering possession of property. Possession is also a specific relief, not specific performance alone. Possession is also a specific relief. Section five, a person entitled to the possession of specific immobile property may recover it in the manner provided by the court of seal procedure. I don't think that section five should have been enacted at all. Even if section five had not been there, if I'm entitled to the possession of a particular property, and if I was dispossessed or if possession was not delivered to me at all, certainly I would have filed a suit in the manner provided by the court of seal procedure present a point under order seven rule one. Section five absolutely requires no explanation. It requires just reading. Section six is extremely important. Suit by persons dispossessed of immobile property. If any person is dispossessed without his consent of immobile property, otherwise then in due course of law, he or any person through whom he has been in possession or any person, it has been added by the recent commandment of 2018, climbing through him, may by suit, recover possession thereof, not extending any other title that may be set up in such suit. I am the tenant of a house. I am not in the house, I have got somewhere. Yes, it dispossesses me, he occupies that house or I am in the house, he threatens me, throws away my belongings, he enters the house. I am dispossessed, I am only a tenant. I go a step forward, the defendant who has done this is the lessor or the land block, obviously is the owner of the property. If any person is dispossessed without his consent of immobile property, I did not surrender possession to the defendant. Take another case, I am a licensee, defendant himself had permitted to be in possession. I do not surrender it. Without my consent, he dispossesses me. Otherwise, that in due course of law, he doesn't want a quarter of law. He or any person through whom he has been in possession or any person climbing through him, may by suit, recover possession thereof, I can file a suit against the defendant who has still been the owner, not extending any other title that may be set up in such suit. The defendant in a suit and a section six of the specifically bad cannot plead that he is the owner of the property and therefore he was entitled to dispossess the plaintiff. What is it that the plaintiff is required to have? He must say that he was in possession of the property till a particular date. The defendant dispossessed him. Such dispossession was without his consent, that is the consent of the plaintiff. And it was otherwise done by due course of law. The next requirement is this, of section two. No suit under the section shall be brought after the expiry of six months from the date of dispossession. It is not article 64 or 65. For a suit under section six, the limitation act of 1963 is not applicable at all. Limitation is provided in the section itself. No suit under the section shall be brought after the expiry of six months from the date of dispossession. Okay. Against the government. If the government does it well, suit under section six does not claim. Third, no appeal shall lie from any order or decree passed in any suit instituted in this section. Marshal, any review of any such order or decree be allowed. I am a judge of the trial court. I pass a judgment under section six. No appeal lies against my judgment under section six to the senior civil judge or to the district judge or to the high court. Neither I can entertain a review petition at order 47 rule one. Maybe the remedy of the other side is only to prefer a revision under 150. Subsection four, nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. This is important. I am the tenant of this house. My landlord dispossesses me. He takes a lot of his hands, throws away my belongings, throws me out. I file a suit under section six. He can't establish his title. He cannot be permitted to establish. I went out to succeed in this suit if I show my possession, if I show that I was dispossessed and such dispossession was without my consent, otherwise I had to force the floor. Will this decree in my favor operate as rest to Decada or be a bar to the defendant, my landlord to file a suit against me and recover possession. He can terminate my tenancy. He can terminate my license. Or if it is not a case of lease and license, well, somehow I was in possession of the property. He dispossesses me. In a regular suit for possession, he can establish his title. And I can't plead in that suit that the suit is barred by the principles of rest to Decada. I'm not aware of the corresponding provision in the central court fees and suits valuation net. Nor I can be expected to be aware of the corresponding provision in other state enactments. For the benefit of those practicing in the state of Karnataka, the relevant section in the Karnataka court fees and suits valuation net is section 28. In a suit for possession of immobile property under section nine of the specific relief act of 1877, the Karnataka court fees and suits valuation net is of the year 1958. We did not then have the 1963 specific relief act. Therefore, it makes a reference to section nine of the world's specific relief act, which as most of you may be knowing corresponds to section six of the specific relief act of 1963. Fee shall be computed on one half of the market value of the property, R and rupees 1,000 whichever is higher. For other suits for possession, suit on the entire market value, or if it is a suit under section six, it is only one half. Now, how should you draft a plaint in a suit under section six? The plaint should clearly indicate that it is a suit under section six. You must tell, you must say somewhere in the body of the plaint that it is a suit under section six, whole fee is payable in the state or not under section 28 and one half of the market value. If these requirements are not followed, ultimately the problem arises which are the three past is there in a suit under section six or in a regular suit because no appeal lies. Now, I repeat, what is it that the plaintiff is required to prove in this case? Plaintiff is required to prove that he was in possession of the property. He was dispossessed on a particular date. That dispossession was without his consent. It was otherwise than in due course of law and the court must be satisfied that the suit is fine within six months from the date of dispossession. Defendant cannot be the defendant. Even if the defendant pleads several things in the written statement that he has acquired title and all that, the court cannot frame an issue regarding title. Please be aware of this. The court cannot frame an issue regarding title. Suppose in the suit is decreed that we will not bar the defendant from filing a subsequent suit for possession. This is what section six says. Judicial officers who have harmed me in the academy will kindly excuse me for often referring to this, this famous decision of which I am very fond of. This is AER 1968 Supreme Court 1165, Noyer Service Society Limited versus K. C. Alexander. AER 1968 Supreme Court 1165, Noyer Service Society Limited versus K. C. Alexander. I started my judicial career as a Munsif, now civil law junior division civil law judge in Dalton. Probably in some states of the country, the name is still Munsif. I started my career as a judicial officer in 1985 underwent training in the conference hall of the CTC report complex from January 1985 to May 1985 for four months. Honorable Justice M. N. Vintachalaya who was then a judge of the Karnataka High Court who was later elevated to the Supreme Court also became C.J.I. Chief Justice of India, a very well-known figure in judicial circles known for his erudition, scholarship, everything. He told us when we were underwent training to go through this judgment in AER 1968 Supreme Court 1165. For every judicial officer at the entry level who has undergone training in the judicial academy, whatever be the subject given to me, I have been asking him and her to read this AER 1968 Supreme Court 1165 and some good judicial officers have taken my advice seriously and have read it. And very recently about one or one and a half months back when I had a vacation, when I casually said which is the leading decision regarding possessory title, one very good judicial officer immediately said Naya Service Society Limited. It was a very redeeming feature for a pleasure because at least one judicial officer had read that judgment and knew it because I always lay stress on this. Please take it from me. Unless you read this judgment and grasp it, you will not be a good civil lawyer. The concept of possessory title, the difference between section five and six of the specificity of fact of 1963 corresponding to that section eight and nine of the earlier specificity fact has been beautifully explained by Justice M. Hizayitullah. Well, senior members know who he was. He was the Chief Justice of India. Of course, when he wrote this statement, perhaps it was not the Chief Justice then, he was only a punitive. He later became the Vice President of India. Obviously, in his capacity as Vice President, he was also the Chairman of the Rajya Sabha. He has written this judgment. He has referred to Roman jurisprudence, judgments of the privy council. It is a treat to read this judgment. And who was the lawyer who argued for one site? K.K. Nambia, the father of, no, M.K. Nambia, M.K. Nambia, the father of the present attorney general, K.K. Venupapa. M.K. Nambia argued the matter before his lordship, Justice M. Hizayitullah. Dual days, they are very erudite members of the bar for arguing matters, erudite judges were hearing. Very beautiful judgment has been written. Well, I don't have time to read this, though I am tempted to do this. Please go through this judgment. My request, advice, suggestion. I can, I am, cease to give directions because I am no longer a judge. Please read this judgment. It is worthwhile reading it. You will understand the concept of this possessory title, the distinction between sections five and six, article 64 and 65, the limitation act. This citation, as I said, is AER-1968, Supreme Court 1165. This year 68 should itself give you an indication that it is a judgment render prior to the limitation act of 1963 and the specifically fact of 1963. Obviously, it is reported in 1968. The date of the judgment of the Supreme Court is spelled to 1968. If the Supreme Court is post of this appeal in the year 1968, by a process of reasoning, you can say that the suit was filed much prior to 1963. The narration of the facts would disclose that the suit was filed in form of operas, plenty filed the suit in form of operas in the year 1942. The suit was filed in the year 1942. Obviously, when the limitation act of 1988 and the specifically fact of 1977 also were enforced. Now, his lawsuit justice Hidai Pula has observed that the present limitation act of 1963, article 64 and 65, he explained this difference. The argument of MTA and MBR was there cannot be two periods of limitation. You see, a plaintiff who is in possession and who is dispossessed can approach the court within 12 years from the date of dispossession under article 64. But when it comes to section six of the specifically fact, he has to file a suit within six months. Some argument has acknowledged that there cannot be two periods of limitation. His lawsuit justice Hidai Pula did not agree. He said limitation under section six of the specifically fact corresponding to section nine is six months for what? If the suit is under section six, but nothing prevents a person from filing a suit based on possessory title within 12 years from the date of dispossession under article 64. Please understand this. If appearing for the plaintiff, if you think that section six, you should immediately leave to your client and you file a suit under section six of the specifically fact, certainly you will have to file a suit under section six. And as I said, defendant is not prevented either by the principles of restorative data or any other principle from filing a separate suit and get a degree for possession in his favor, he can establish his title. But on the basis of possessory title without invoking section six of the specifically fact, you can still maintain a suit within 12 years from the date of dispossession is what is held in this decision. Therefore, please spend some good time and read this judgment. You will understand a good lot of civil law. You will know the provisions of the specifically fact and the limitation that the difference between the present article 64 and 65 are responding to articles 142 and 144. Please spend some good time on this. This Naya Service Society Limited, the Starship has said, this is, I will repeat it, I am tempted to read it. The limitation that before its recent amendment, why it was recent because the judgment is a year 1968 before its recent amendment provided a period of 12 years has limitation to recover position of immobile property when the plaintiff filing possession of the property was dispossessed or had discontinued possession and the period was calculated from the date of dispossession or discontinuance. Mr. Nambiar argues that there cannot be two periods of limitation, namely six months and 12 years for suits based on possession alone and that the longer period of limitation requires proof of title by the plaintiff. We do not agree. No doubt there are a few old cases in which this view was expressed but they have since been either overruled or dissented from. The uniformed local courts is that if section minor the specificity of the party is utilized, the plaintiff need not prove title and the title of the defendant does not avail him, avail him does not help him. When however the period of six months has passed questions of title can be risen by the defendant and if he does so the plaintiff must establish a better title or file, a better title or file not an absolute title. In other words, the right is only restricted to possession only in a suit under section nine of the specifically fact but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant proves one. So when it comes to Article 64, plaintiff need not establishes proprietary title if it is sufficient if he establishes his possessory title. The present amended Article 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession for possession of immobile property based on possession and not on title when the plaintiff file in possession of the property has been dispossessed. Article 65 is for possession of immobile property or any interest therein based on title. The amendment is not remedial but declaratory of the law in our judgment the suit was competent. So please read this judgment with Redar too processory title, the distinction between sections 5 and 6 of the specifically fact, articles 142 and 144 and the section six. Now, arguments are sometimes heard in suits for possession. In fact, I have myself heard such arguments as a Munshif, maybe the lawyers thought that I was a Munshif and I could be taken for a ride or for whatever it is they said when in suit for possession, the suit should have been filed within six months. Well, suit should have been filed within six months if section six of the specifically part was immobile otherwise not. Now, if it is a suit for permanent intention only or if it is a suit for possession only without the relief of declaration being sought. He is such a suit maintainable. Obviously, you have, you from the limitation at itself it says when a suit for possession can be filed. You have provisions in the court fee at providing court fee, the determination of court fee for a suit for intention for a suit for possession. At least 75% of the suits in the refusal courts are for bare intention suits. In a suit for mere intention or a suit for mere possession an argument is sometimes can be asked most of the times it is can be asked that the suit without seeking the relief of declaration is not maintainable. When is the declaration to be sought? We have a very beautiful gentleman of justice R.V. Rabindran in that famous Anatollah Sudhakar versus Bacchi Reddy reported in 2008, volume 4 SCC 594. 2008, volume 4 SCC 594. Please read that judgment. Justice Rabindran, whenever he decides the question of law he would summarize the legal position either in the last pair of the judgment or in the penultimate pair. In this SCC, you find the entire legal position having been summed up towards in bar of 21 of the judgment. Ultimately, this is what is stated. When there is a clear cloud on the title of the plaintiff then only the relief of declaration of title will have to be sought. What is it? Now, I file a suit for intention saying that I am the owner of the property and I am in possession. Defendant is interfering with my possession. Defendant says, the government's in parallel that the plaintiff is the owner in possession is false. I have never interfered with this possession. The suit is filed only to harass me. The defendant is in possession of some other property that has nothing to do with the plaintiff's property. In order to grab the defendant's property the plaintiff has filed the suit. This is the usual defense in his suit for permanent indigestion. Is it a case where there is any cloud on the plaintiff's title? Has the defendant said anywhere in the written statement that he is the owner or is the ex is the owner? This saying that ex is the owner. Defendant is not the owner. Plaintiff is not the owner. Someone ex is the owner. That is called a plea of just tertiary. J-U-S just T-E-R-T-I setting up title in someone else. Defendant does not say that he is the owner. Defendant does not admit the plaintiff's owner. He says that someone else is the owner. Well, it is for the defendant to establish that someone else is the owner. It is thought just tertiary, setting the plea of title in someone else. Now, if this is the written statement where is any cloud on plaintiff's title? Therefore, when there is a clear denial of the plaintiff's title, when a cloud is created, the defendant says that he has acquired the property under a title. It is his ancestral property. He has acquired it at a partition. Well, then there is a case for a plaintiff seeking declaration of title. This has been explained in this judgment. And a question also would arise. Whether a finding on a question of title in a suit for permanent indention would operate as restudicator in a subsequent suit. Well, we have been told that in a suit for indention, question of title cannot be done into no issue need be raised. It is sufficient if an issue is raised without inquiring his possession and interfering with his possession. But what happens particularly in sites, vacant sites, it is difficult to lead any evidence regarding possession. They are the principle that possession follows title will be applied. Necessarily, the court will have to incidentally go into the question of title. Either to grant the relief of indention or to refuse the relief of indention, court was required, court was required to incidentally go into the question of title. Then such a finding on a question of title, though incidental, would operate as restudicator in a subsequent suit. If the court was not required to examine the question of title, either incidentally or directly, then the finding on the question of title would not amount to restudicator. We have three decisions with the Supreme Court. 1994, volume 2 SCC 14. 1994, volume 2 SCC 14. The other is 2000, volume 3 SCC 2000, volume 3 SCC 350, 2000, volume 3 SCC 350. The third is 2005, volume 6 SCC 2002, 2005, volume 6 SCC 2002. These three decisions have been considered, explained, distinguished in great detail by Honorable Justice R.V. Rabindran in that Anatoly Sudarshtara case, which I have already cited. Please. And we have another judgment of the Honorable Supreme Court in 2016, volume 12 SCC 288. Relying upon this Anatoly Sudarshtara case, Honorable Justice Arun Mishra sharing the benefits that Justice V. Gopal Rao has reiterated the legal position only when there is a clear denial of the plaintiff's title, title, I mean, the plaintiff will have to seek declaration of title, otherwise not. In fact, I have already drawn your attention to this decision where I said, plea of want of knowledge, I mean, want of knowledge does not even amount to implied name. Please read this decision. Then, who all can seek indention? Well, every Tom Tick and Harry cannot seek indention. He must have a semblance of fright. Now, I go to Mysore from Bengaluru. I ask my servant to stay in my house for two or three days and take care of the house or the security guard or the watchman or some caretaker. He cannot bring a suit for indention saying that he is the owner of the property. He has some interest. This has been considered in great detail in the famous Maria Margarita Sipira Fernandes. Reading out the names of the parties would take a good lot of time. Please note the citation. 2012, Volume 5 SCC 370, 2012, Volume 5 SCC 370, who can all seek indention is expected. The next question is, whether a mere suit for declaration of title declaration would lie. Kindly go to section 34 of this specifically fact. Please go to section 34 of this specifically fact. See the marginal title to it. Discretion of the court has to declaration of status or right. It is not just the relief of indention or specific performance which is in the description of the court. Declarator decrease also in the description of the court. Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right. And the court may in its distribution make therein a declaration that he is so entitled and the plaintiff need not insert suit as for any further relief. Thus far no problem. Then read the provisional. Provided that no court shall make any such declaration where the plaintiff being able to seek further relief and a mere declaration of title omits to do so. I am not in possession of the property. I am dispossessed or I have purchased the property my vendor does not deliver possession at all to me. Should I simply file a suit for declaration of title? Am I not today able to seek the relief of possession when either I am dispossessed or when I am not put in possession of the property at all? Should I not seek that my father has executed a will he dies? Well, some other person is in possession of the property may be my brother or sister or mother. She does not deliver possession of the property to me. I am entitled by virtue of the will to have possession. Possession is not delivered. I bring a suit. Should I simply file a suit for declaration of title or should I not seek the relief of possession? My possession is interfered with. I do not seek the relief of injunction. I simply file a suit for declaration of title. Well, though the court can uphold his title, the court cannot grant a decree for declaration of title because he has omitted to file a suit for. He has omitted to sue for the consequential relief either of possession or of injunction. We have good judgments of the supreme court in this regard which you will kindly make a quick note of. 1973 volume 2 SEC paid 60 6 0. 1973 volume 2 SEC paid 60 then 1993 supplement 3 1993 supplement 3 SEC 129 supplement 3 SEC 129 then 2017 volume 3 SEC 702 2017 volume 3 SEC 702 then a decision of the division bench of the Karnataka High Court in ILR 1980 Karnataka 103 The last of the decisions in this series, though earlier some of the supreme court judgments is in ILR 2007 Karnataka 339 ILR 2007 Karnataka 339 Well, the decision of the supreme court, the earlier decision of our High Court in ILR 1980 Karnataka 103 have been referred to by a slot shift justice Yen Kumar in this 2007 Karnataka 339 His lordship has gone, has given the reason as to why though the court acknowledges the title of the plaintiff, still it would not declare his title when he has not sought the relief of consequential relief has been explained His lordship has said public would be in doubt court finds that the plaintiff is not in position but still declares his title public would be in doubt therefore it is in the fitness of things that the relief of declaration of title is refused even though the court opposes title relief of declaration is declined when the plaintiff has not sought for the consequential relief of permanent intention This has been explained beautifully by the Karnataka High Court The next question is this when there is a clear denial of the plaintiff's title when there is a cloud on the plaintiff's title certainly the relief of declaration will have to be sought but is it necessary in all cases have explained there is one other situation here I will give this example often now after hearing me nearly for 2 hours continuously you are likely some of you atleast are likely to get headache should you immediately go to a doctor who is also not available for the last 1.5 months for reasons special to you or should you take some paracetamol or with a cup of coffee or some sleep for 10 minutes would your headache get relieved I am sure it would get relieved but if the headache persists throughout the night or tomorrow also even when I don't give a lecture certainly there is a threat for you and you should consult a doctor or you should take some medicine what does this mean a very innocuous or a very insignificant threat, inconsequential threat will not give rise to a cause of action some person comes here today and tells Karni you are not the owner of the house go out should I bother myself in a fit of anger he comes and tells me supposing if there is a persistent threat persistent denial I should not stop I should come to the court so a very innocuous denial or the client's title would not essentially drive him to court should not essentially drive him to court is the law in that regard you may refer to a judgment of very erudite judges from yesterday's just is J. C. Shah, K. Subarab and P. B. Dajit Dajitar in A. R. 1960 Supreme Court 335 A. R. 1960 Supreme Court 335 just is K. Subarab has written the judgment after referring to a judgment under the Madras High Court the legal position may briefly be stated you see please go to article 113 of the limitation at here and perhaps most of you may be knowing article 113 is a restituary article if the suit does not fall under any of the specified articles 1 to 112 the suit falls under article 113 the period of limitation is when the right to sue a truce when it comes to declaration under article 58 3 years from the time when the right to sue first a truce that is important when the right to sue first a truce some part of us we are not the owner can it be said that the right to sue have a truth to be known I should file a suit immediately today that is why it is said that every innocuous denial would not give rise to it the time range of article 58 and 110, 113 58 when the right to sue first a truce 113 when the right to sue a truce 113 corresponds to 120 of the old ad dealing with the position under the old ad article 120 of the limitation ad this is what justice case super opt in AER 1960 Supreme Court 335 has said the legal position may briefly be stated the right to sue under article 120 of the limitation ad a truce when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit every threat by a party to such a right however ineffective and innocuous my lecture for 2 years which causes you headache is only ineffective and innocuous not only in terms of headache but also in terms of the content perhaps therefore you need not restate after however ineffective and innocuous it may be cannot be considered to be a clear and unequivocal threat so as to compel into file a suit whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or geopolitizes the said right in fact more or less on the same lines in another law of justice case justice revision has entered and we have one more jettmen to the supreme court on that point which also I would like to say another jettmen to the supreme court I am sorry we have a jettmen to the two jettmen to the Karnataka High Court at this point ILR 1990 91 Karnataka 1500 ILR 1990 91 Karnataka 1500 and ILR 1990 92 Karnataka 1421 I repeat ILR 1990 91 Karnataka 1500 and ILR 1990 92 Karnataka 1421 these two are decisions of division benches author by another very good judge the Honourable Justice K. S. Swami his lordship has relied upon this A.R. 1960 supreme court 335 and has reiterated this legal position this also remain kindly noted now there is one other thing which needs to be brought to your notice see we have these different kinds of possession lawful possession you know unlawful possession juridical possession settled possession adverse possession and all that the legal position is now settled a person in settled possession though he is not the owner of the property he is entitled to sue for intention even against a true owner that is the legal position emanating from a good number of decisions of the supreme court which you will kindly make a note of perhaps today as you can please make a note of these important decisions of the supreme court you may be surprised to know that this concept of settled possession was first explained in a criminal case you know that in the Indian penal court we have certain provisions right of self-defense if a person tries to trespass into my property tries to enter into my property exercising my right of self-defense to the property I can throw him out but when one sees he succeeds in entering into my property I can't throw him I can't take a lot to his hands I have to approach a court of law this is the concept of settled possession this decision this concept was first explained in a criminal case and thereafter the honorable supreme court referred to this statement in number of civil cases which will quickly make a note this is AER 1975 supreme court 1674 AER 1965 AER 1975 supreme court 1674 then AER 1977 supreme court 619 AER 1977 supreme court 619 then AER was Krushnaram Mahalai versus Swabha Venkatra AER 1989 supreme court 2097 these are judgments which speak of settled possession a person in settled possession how to infer that settled possession whether he has thrown drops whether he has put up a structure these are evidence to evidence to indicate settled possession there is one more concept I file a suit for declaration of title and invention or mere invention defendant sets up some title as against the title setup by me now I am not able to establish the title pleaded by me the defendant equally is not able to establish his title or at least a better title than what I have established I am able to establish my possession because as I said you can even grant a leave of declaration of title based on that prior position at least there could be no difficulty in granting a degree for permanent invention when the defendant fails to establish better title and the plaintiff is able to establish his title the earliest of the judgments in the series is of Honorable Justice K. S. Higre 1973 volume 2 SCC 358 1973 volume 2 SCC 358 M. Thallappa Shetty v. M. Lishmi Nalendra this was an extreme case the suit itself was for declaration of title and invention somehow the title was not established the honorable supreme court of course you know it has got quite jurisdiction in article 142 it said we keep open the question of title granted degree for invention and the plaintiff can file another suit for declaration of title and it would not be open to the defendant to plead order 2 as a bar for that suit the supreme court so if the plaintiff if the defendant is not able to establish better title then the plaintiff should have the basis of his abstraint possession can seek the relief of invention I have read out to you section 110 of the evidence said the presumption and the burden of proof a person in possession if he is able to establish his possession and the other side says that the person in possession is not the owner it is for that person to establish that the plaintiff is not the owner in this regard you may read apart from the AR1970 and the judgment of honorable justice Harish Kumar of the Karnataka High Court you may also read 2003 volume 3 SCC 472 2003 volume 3 SCC 472 2003 volume 3 SCC 472 with regard to section 6 at this specifically patent possessory title you may read a very erudite judgment of justice R.C. Laboti in 2003 volume 7 SCC 350 in fact apart from explaining the concept of possessory title section 6 of the specifically patent as to how counterclaim can be set up is also explained in the written statement counterclaim can be set up then by way of amendment under order 6 rule 17 then by way of an additional reading under order 8 rule 9 has been explained then 2003 volume 8 SCC 752 2003 volume 8 SCC 752 this statement also in a read then we have this famous judgment arising from the state of Karnataka High Court Ramayagoda v. Varadappanayidu Ramayagoda v. Varadappanayidu 2004 volume 1 SCC 769 2004 volume 1 SCC 769 in fact the concept of possessory title has been explained in this decision and please go through this judgment in fact the Supreme Court has also referred to June Spudans where we have a chapter on possessory remedies then you may refer to 2014 8 SCC 902 2014 8 SCC 902 a judgment by Hon. Justice J. Chalameshwar which also makes a reference to I know that I have referred to the latest statements earlier but to know the exact concept of this possessory title we will have to go back to the 20s and 30s we have the judgment series Privy Council which we will please read AER 1924 Privy Council 144 AER 1924 Privy Council 144 Mithnapur Zameendari Company versus Nareish, Nara and Rai don't accuse me of citing a very old judgment of 1924 and that was the Privy Council this judgment is referred to by Hon. Justice Mon M. Shantung of his recent judgments I will cite that before that I wanted you to know this so AER 1924 PC 144 Mithnapur Zameendari Company then AER 1930 Privy Council 103 AER 1930 Privy Council 103 this also the Privy Council then AER 1968 Supreme Court 620 AER 1968 Supreme Court 620 this also makes a reference to the Mithnapur Zameendari case as recently as 2019 volume 11 SCC 309 2019 volume 11 SCC 309 Pune Ram Pune Ram versus Mothi Ram his lordship justice late Mohan M. Shantung Gouda referring to this Ramai Gouda and also Mithnapur Zameendari case and that my favorite decision in Nare society limited Supreme Court 1165 has explained this concept of possessory title and has said well a person in settled position cannot be disposed even by the true owner possessory title is as good as a proprietary title so this is another piece yet another question which troubles the judicial officers as well as why is this for whatever reason it be the favors of the limitation act did not think of a suit which comprises of 2 or more reefs of course the court speaks of a provision for multi-peria suits consequential relief separate reliefs is sought how it is valued and all that limitation act does not say it it only speaks for declaration of title position like this then 2 or more reliefs are sought how the limitation has to be gone into we are now only at the question of declaration of title and position we have a recent judgment of the Supreme Court of 3 judges Justice Enviramana who is now the present Chief Justice in India Deepa Tukta and Indira Banerjee dead man by his worship justice Deepa Tukta in 2019 volume 7 SCC 76 2019 volume 7 SCC 76 the suit was for declaration of title and position the argument at once was that it is article 58 which applies the plaintiff had to approach the court within 3 years from the time when the right to sue first are through the honorable Supreme Court did not agree in a suit for declaration of title and position it is the position which has to be taken as the substantive relief and therefore the suit is governed by article 65 of the limitation act this is a very important decision which we learn and members should be brought and the judicial officers who have joined this webinar will kindly read before I close let me check up whether I have referred to all the decisions which I wanted to refer and to all the points that I wanted to do it just to give you 2 minutes time I will just see whether what all I wanted to convey has been conveyed it is properly conveyed or not it is for me to judge whether what I have conveyed has been conveyed is all that I wanted to I want to check up just give me 1 minute time well yes one other important thing that I forgot to mention please go to section 53A of the transfer of property act section 53A of the transfer of property act is a remedy or relief in equity part performance when any person contracts to transfer for consideration any immobile property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be accepted with reasonable certainty and the transfer he has in part performance of the contract taken position of the property at any part whereof the transfer being already in position continuous in position in part performance of the contract and has done some act in furtherance of the contract and the transfer he has for it is a relan section ultimately he says the it shall debug the transfer is debug from enforcing the rights against the transfer what does it mean under the agreement of say a person is put in position of the property by the owner he has taken position of the property under the agreement of say he is ready and willing to perform his part of the contract having taken position if it is an agricultural land he has grown crops if it is a site he has put up a structure if it is a house he has renovated the building he has done some act in furtherance of the contract then the vendor that is the real owner cannot disturb his position under section 54 of the transfer of property at a mere agreement of sale does not convey any interest section 53 says if you are put in position of the property at an agreement of sale it is a contract of sale and if you are ready and willing to perform your part of the contract and if you have done something in furtherance of the contract then you are entitled to protect his position there may be decisions of other high courts I am not aware we have a very beautiful judgment of honorable justice M. Nandita Chalaya who as I said later became CGI his lordship sharing a division bench with another honorable judge in 1981 2 KLJ 388 388 98 1981 2 KLJ 388 the argument was this 53 there is an argument whether it is a sword or a shield sword is something which is used as an offense somebody is attacking you you use I mean you want to attack somebody you use that sword and attack it is offensive shield is something you want to protect shield is a protection the argument was 53 is only a shield it is meant to be a defensive action it is to protect your possession therefore only as a defendant you can invoke section 53A and not as a plaintiff there is a clean edge of judicial opinion high courts had taken the view that the plaintiff cannot invoke section 53A our high court in a decision held that 53A can be invoked by the plaintiff our high court in some other decision held that it could not be invoked in the normal courts the CRQ would not have gone to a division bench and in fact it was against an interlocutory order and an application of 13 in rule 192 the matter reached the honorable high court the revision those days revision was permitted CRP the scope of 115 was not that limited as it is now the matter was referred to a division bench Justice M. N. Ventakalaya wrote the statement for the division bench some English decisions some English law everything is cited and ultimately his lordship has said 53A is not restricted to the defendant alone the plaintiff also can invoke section 53A and seek the relief of permanent injunction or temporary injunction to protect possession is a law late term by our high court by his lordship justice M. N. Ventakalaya while I am on section 53A of the cancer of property act I must also draw your attention to section 171A of the registration act about which there is lot of confusion both amongst the judicial officers and amongst the learned members of the bar section 17 sub section 1 it gives a list of documents which require compulsory registration I am not on that 17 2 is an exception to 17 1 for in certain situations registration is not required 18 says documents which are for which registration is optional law does not mandate registration if I want the document to get it registered while sabrish thought cannot refuse it registration pay has to be paid and the document will be registered 17 sub section 1A 17 1 capital A is an insertion made by act number 48 of 2001 it came into force on 24 9 2001 it is thought the registration and other related laws amendment act section 17 of the registration act is amended by inserting sub section 1A 49 of the registration act was amended 53A of the cancer of property act was also amended the amendment is only this 53A of the TPA and before this amendment did not require a registered instrument to seek protection under 53A but now by virtue of the amendment brought to section 17 by insertion of 17 1A with effect from 24 9 2001 to seek the benefit under section 53A either as 24 as defendant the agreement of sale has to be registered there is a misconception that even a suit for specific performance the agreement requires registration well there are good number of decisions of our high court under the supreme court mostly in Amir Minhaj in a minute I am giving that citation Amir Minhaj 2018 I believe it is in 2018 volume 7 SCC 639 Amir Minhaj versus Dire Drep DIERDRE 2018 volume 7 SCC 639 I am tired of telling this to our judicial officers in the judicial academy every time I have been telling this I repeat it you see if the suit is for specific performance only there is no question of there being a registered registered agreement of sale even if possession is given only to invoke section 53A it is required please go through sub section 1A of section 17 of the registration if incidentally or intentionally you possess that book with you the document containing contracts to transfer for consideration any immobile property for the purpose of section 53A why these words for the purpose of section 53A escape over attention to the purposefully escape over attention shall be registered if they have been executed on or after the commencement of the registration and other related laws amendment act and if such documents are not required on or after such amendment then they shall have no effect for the purpose of the section 53A only if the plaintiff or the defendant wants to take the benefit of the section 53A and protect his position then such an agreement of sale requires registration otherwise it does not require registration so the judgment of honorable justice amendment when his leadership was a judge the Karnataka High Court is of 1981 when this amendment was not enforced now certainly the judgment still stands as a plaintiff also 53A can be invoked but for the plaintiff to invoke section 53A if he is a plaintiff and if the agreement of sale is subsequent to 24 92001 certainly the document requires registration this is another thing and one distinction needs to be made about this entroachment and possession if it is a case of entroachment a suit for mandatory sufficient if it is a case of total dispossession the suit should be for possession to avoid cold feet you can file a suit for mandatory invention and seek the relief of possession indirectly what is this entroachment and dispossession well I am not able to demonstrate it on this virtual platform I can explain it to you all of you can see that I am sitting on a chair and there is a table before me right I have another table on the left side of this and a chair there normally I sit on that chair and use the table in front of that chair the chair where I am sitting and the table in front of the chair are used by my son who is also a liar today I have dispossessed him he used to sit on this chair I have dispossessed him sometimes he encroaches upon my table because as a lawyer he has got number of files he opens this where at he opens this file and finding the insufficient space on his table I have no problem with him he encroaches absolutely no problem I am jokingly telling him to make you understand the concept he puts his papers he puts on my table also that is a kind of entroachment since he was enthroting on my table today I have dispossessed him and I am using his chair in table all this I am telling in a lighter wind do not take it seriously there is absolutely no difference between us so what I am telling is this in fact I am I used to demonstrate it in the physical classroom which we had in the judicial academy in the usual classroom we have in the judicial academy there is a table which can atom there is a table and there are three chairs three judicial officers can use the table you please imagine the situation there is a table there are three chairs attached to it three judicial officers can make use of the table naturally they will keep their bag their bags and other things now dispatch of space is available to judicial officer yet finding that the space is insufficient he pushes his file or book or bag to his neighbor this is a case of encroachment during the deep breath the judicial officer keeps his entire luggage on that portion of the table meant for the other judicial officer this is a case of dispute nobody has been it I am only telling the difference between encroachment and dispossession encroachment is occupying a piece of a land or a site belonging to someone else where a suit for mandatory incantation would lie if it is a case of total dispossession a suit for the possession would lie I think with this I am done well only again I am sorry everything every time I am telling when can a co-owner can seek permanent incantation we have heard arguments red boots telling no indenture against a co-owner every general proposition of law has its own exception true a co-owner cannot incant under co-owner is it an absolute truth I am a co-owner the other co-owner is not allowing me to use this property which is in co-ownership can I not seek an incantation restraining him from causing disturbance to my position he does not allow me to enter the property certainly an incantation would lie the defendant co-owner tries to build up a property on a joint property on a property co-ownership plaintiff has one of the co-owners and seek an incantation to restrain the defendant from exercising from going beyond his rights he not put up a structure and ultimately throw me out therefore there is no absolute condition like this it depends upon the facts of the case and in cases where mandatory incantation is sought better have the services of a commissioner if it is a land a surveyor if it is the case of an enforcement of a site an engineer and provisions of order 26 rule 10 CPC are very clear the report of the commissioner is evidence by itself there is no need to mark the commission report there is no need to examine the commissioner well it is open to the plaintiff to summon him open to the defendant to summon him open to the court to summon him on its own there is a different thing even if the commissioner is not examine and even if the commission report is not marked it would be evidence and the court has to keep it well I have spoken everything about which I wanted to speak and I must profusely thank for having me for more than one hour it had to be closed by excuse me sir I have exceeded total it is not a case of enthronement it is a case of total dispossession and displacement of your timings voice because I did not want to have it on another day and continue the session because the flow would be there I am now prepared to take questions if any it was a totally mesmerizing session I don't think that any point which one could perceive or conceive has been deft over in fact one has written that all three topics were required to be taken up separately this is by Chandrasekhar Advocate what is an applicable article to file a suit for cancellation of JDA from when does the limitation start yes please please go to limitation act first please go to the first division of the schedule kindly go to article 59 there is no specific provision for cancellation of JDA because JDA was not in the contemplation of the framers of the limitation act either in the year 1963 or earlier all these things are later developments what do you explain JDA because a lot of people will not even know what is JDA joint development agreement normally the owner of a property enters into an agreement with a builder or a developer the understanding is that the builder will have to put up an apartment or a house and hand it over they will share 40 percent 60 percent 50 percent of the apartment should go to the builder 60 percent should go to the owner this is the bulk of litigation for arbitrators particularly after retirement now please go to article 59 to cancel or set aside an instrument or decree or for the decision of a contract 3 years it is here that date of knowledge becomes material when the facts entitle in the plaintiff to have the instrument or decree cancelled or set aside or the contract receiving that first become known to you to understand this you must go to section 31 of the specific relief act please go to section 31 of the specific relief act when cancellation may be harder any person against whom a written instrument is void or voidable therefore to seek cancellation of the joint development agreement executed by your client you must establish that the instrument is void from inception what is that void you will have to again go to the contract or voidable it could have been avoided at the instance of the plaintiff for various reasons stated in the grounds enumerated in the contract and who has a reasonable apprehension that such instrument if left outstanding may cause him serious injury let us say as the owner of the property you have entered into a joint development agreement with the developer some fraud is played or the terms of the joint development agreement are violated he is doing something in excess of it you find that the agreement has to be avoided or it has to be cancelled then if you don't do it the developer may on the basis of that document or the joint development agreement may go on with further construction may part with the property may violate the property, may enter into a may execute a power of attorney in favor of some one else if left outstanding may cause him serious injury the plaintiff owner may think it will cause him serious injury may sue to have it adjudged void or voidable and the court may in its decision so adjudge it and order it to be delivered up and cancelled the limitation as I said is article 59 which I will read for the mutual benefit again when three years from the time when the facts entitling the plaintiff to have the instrument or decree cancelled not from the date of the joint development agreement when the plaintiff first comes to when the plaintiff comes to know well the defendant developer is going beyond the terms of the joint development agreement if the development agreement is left outstanding it would cause him serious injury then certainly he can file a suit under section 31 of the specifically fact limitation is three years from the time when the facts entitling the plaintiff to have that instrument cancelled is it clear to you Mr. Chandrasekhar is it clear to you Mr. Chandrasekhar is it clear to you Mr. Chandrasekhar you have posted on the ground and so I would be candid now we would be over I had thought that the session would be over I had arranged it for 8.30 only probably it will go I will just take two short questions in the midst of the session it goes away because normally we completed it in 1.15 but I am said that we are all mesmerized I have reminded of the famous Pipe Piper of Hamden Tim is sorry for this no not at all it's a pleasure to remember it in fact one session has to be on this only how to remember how to just suppose all sections in a seamless manner yes you can ask that question sir I am just checking it out because normally all the sessions are coming speaking about that in your place oral partition what are the points to be brought on record yes in the case of oral partition it must be established obviously it must be established property is a giant property or giant family property number one number two the Panchayat Das we call Panchayat Das in Canada I don't know the term used elsewhere some elders of the village had participated may be some close relatives and well-missions they had participated it was decided that a particular item of the land eastern portion or western portion or some extent of the land with some specified boundaries should be given to one share another property should go to someone band deposit should go to someone all these things should be brought on record if it were case of oral partition now here one thing I want to tell the suit is of the year 2018 the oral partition that is created is of the year 1960 the suit is of the year 2018 obviously we are not in evidence three years later after the year 2021 if you put to the witness box a person aged 30 years of what use can you speak to an oral partition which replaced in the year 1960 in the year 2021 not even a man of my age can speak about it I am 65 and his private only aged about 9 years in the year 1960 would any person have called me as a to be a panchayatar in the year this happens in where you see it is in the partition suits the party's rightful dependency of the suit LR application stop it has been my experience the first defendant is the father he dies the other defendants who are his sons daughter singha they would have sided with the first defendant they would have created oral partition it is the first defendant the head of the family would be in a position to speak or maybe some brother was to get us to them he is dead his widow who not married in year 1980 or 1990 enters the witness box for every question in the cross examination she says that she is not aware my husband told the partition took place before he entered the family as the wife before as the daughter in law how can she speak about partition oral partition which took place prior to her marriage which took place prior to her birth therefore when you want to do oral partition please ensure that the witnesses soon examine or direct witnesses to that of course atleast sure it is likely that the court would believe that they were present right if it is a partition of the year 1990 well I may be a competent witness certainly not my son who has not even borrowed them therefore please see whether the witness whom you are examining is competent to speak is able to know about that this is one care which you have to take and if that oral partition is reduced into writing subsequent game then it is called a memorandum of partition or a record of a prior partition that does not require registration on the other hand on that very day you say well before the pancha advance we have divided this property and the document is prepared then it is a document under which the division has taken place it requires compulsory registration the registration act does not have a specific section which says that a partition did request registration by a process of interpretation what was once a joint title now becomes the exclusive title of one of the shares his title is declared by the instrument and therefore it requires registration may be here and there there are two straight decisions taken for the contrary opinion by and large the legal position is if it is a record of a prior partition partition took place long back today I am reducing it into writing it does not require registration if under that very document a division has taken place or a partition has taken place it requires registration so now the questions are there but we are running short of time because we have to create the zoom link for that time and before we part for the day and I am sorry to the participants that we could not take the questions but as they say that the interiorism what we started at 6 p.m. and at 8 30 p.m. it is all the same they say that consistency and perseverance is the hallmark of Mr. S.R. Soma Shekhar so that is an amazing way and tomorrow we will have a session on specific performance of affirmative and negative agreement section 42 of the specific in fact Mr. S.R. Soma Shekhar do stay connected with us tomorrow at 5 p.m. and before we will also part for the day I will ask Vikram to share his insights of the session we have to work together Vikram has actually not written Vikram is here I am seeing him but he is not finding him Vikram I am seeing Vikram he has logged in Vikram yeah so he will have to unmute himself good evening you have divorced yourself and you have joined beyond love no sir we are all partnered we are all in the same fraternity now because of the ongoing we are in a very bad juncture so Advocates Association is more concentrating on other things and so we have Mr. Vikas Chetrath who is he is not behind he is beyond Zindigarh very active we all feel that the webinars and I will share that in Hindi they say so the fruits are actually sweet at the time we have waited for you to shift to the new house and we are also thankful to your son that has helped us to move the things forward I would like to say few things Mr. Vikas sorry sir sorry sir that is such an erudite speaker and he carries so much of knowledge at any point of time you are just calling 5 minutes before and ask him he is ready and he has saved me many times sometimes it was I was placed in such inevitable situations I requested sir, sir never said no he has always he has been positive he immediately accepted our invitation keeping that aside as you rightly said he can keep up the pace till the end 100, the number would increase perhaps nobody else would have such a you know nobody would be able to capture the attention of the audience like sir and notes also we are having one of the highest views of the YouTube today and you should not leave sir you should take the notes also because he has given me such valuable notes it is with me and I have circulated it you should also make it a point we will take those notes which you already have definitely I will be more than happy to share it because sir had exclusively he had collated and he has given me I collected from judicial academy I got an opportunity from it sir as well so sir thank you so much so long as my son can assist me so long as he can stay in the house because I have a lot to say whatever it is I have no problem speaking to you some gets known to me on this platform or any other platform we are working seamlessly but also I as you know that sometimes is required to go to his office the instructions of his senior it is only then I will be handicapped I don't know muting or un-muting muting means I don't speak I will mute what will happen is we will ask as they say in a movie we have all seen the actor but we would also like to have the director of the today's show let him come on the screen for a minute he is continuously legacy probably what appears to be is here after you will have to ask him to fix up an appointment whether he is free and on that day I will I will speak I will have a I will have his contact number and we will connect yes he is there so we are thankful to the actor and director and we have enjoyed the movie nowadays they say that sir would you be surprised that they say that the timeline even for the best movies for two and a half hours is very very difficult to connect but the way we have gone for two and a half hours it was just like as if we just sat across and some of this not some I will say what you have expressed is amazing and I will connect with your son we will bring a session where in the father and son will speak on a different perspective one on the civil side and one on the criminal side and thank you friends for joining us connecting with us and as we said it is not so much that we were having this home bus as we say in the mythology and the way he has turned out the best of the things for us it's an amazing session and I think it will be remembered for all times to come the way and in fact is all his webinars which have come on our platform they are amongst the top hits of the sessions of the beyond law CLC and with Trichram and all people we are working seamlessly so that the people can learn and the horrors connected with us at 5pm and today rather than my saying that we are the most do social distancing I will ask to put the things forward in that way before we part from the day my honest friends and other participants stay at home wear mask take all precautions it is better to take precautions than cure to cure so my honest request to all of you is stay at home it is the best thing stay safe God bless you all thank you so much don't keep distance from the books no that is why we are doing webinars sir that is why we are doing webinars so that they don't do distance and in a lighter way they said that when people were coming from the Kome from Haridwar they said in Hindi they say I do not know how many people know Hindi because we have a lot of participants from south they said Norte means return they said those who have Norte from Haridwar don't meet them so often so that you don't go in Norte and Norte is again a pot so it said that keep a distance from the people not from the Kome will as such but don't meet people so often maintain a distance wear a mask and tomorrow do stay connected with us tomorrow at 5pm and we are grateful to sir for taking us session in a seamless manner and in an erudite way he took things forward thank you everyone stay safe thank you thank you thank you