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Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671
Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671 Rebecca J. Mark, Appellant-Plaintiff, vs. Kyle Moser, Appellee-Defendant. No. 29A02-0010-CV-623 COURT OF APPEALS OF INDIANA, SECOND DISTRICT 746… more →
State Law Library of Montana
An order granting a motion for summary judgment is not a judgment
wrote 9 hours ago: We’ve worked so hard to get to summary judgment. Once we reach that Promised Land, let’s not mess th … more →
FOIA Lawsuit Update
wrote 2 days ago: Today I appeared before Federal Judge Claude M. Hilton of the Eastern District of Virginia to presen … more →
Corr in court
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wrote 5 days ago: Jim Corr is to appear before the Commercial Court today to answer questions about a €750,000 unpaid … more →
Lay Litigants....critically important document you must read.....
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wrote 1 week ago: This post is critically important to any Lay Litigant or indeed any Irish person who anticipates fin … more →
Suit for prohibitory injunction - Relating to vacant land --Claim for possession based on title - Title of plaintiff disputed - Various complicated questions arose for putting forth a case of title - Suit decreed by trial court - Reversed by first appellate court - High Court in second appeal after recording finding of facts restored the order of trial court - On appeal, held: In the facts and circumstances of the case, the questions which arose for consideration could be decided only in a suit for declaration and consequential reliefs and not in a suit for injunction simplicitor - In absence of prayer for declaration of title, issue regarding title, pleadings required for declaration of title, the parties cannot be said to have an opportunity to have full fledged adjudication regarding title - High Court exceeded its jurisdiction u/s 100 CPC in re-examining questions of fact, by going into the questions which were not pleaded and not in issue, and by formulating questions of law which did not arise in the second appeal - Code of Civil Procedure, 1908 - s.100. Suit for prohibitory injunction - Relating to immovable Property - Scope of - Held: The prayer for injunction will be decided with reference to the finding on possession - In cases of vacant land, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession - If the title is clear and simple, the court may decide the issue of title - But, if a cloud is raised over plaintiff's title, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Respondent/plaintiffs 1 and 2 filed a suit for permanent injunction against the appellant-defendant. They pleaded that they were owners in possession of the suit properties (vacant land) under sale deeds from `R' (their vendor). They alleged that the defendant interfered with their possession. Defendant in his Written Statement stated that the suit property was purchased by him from the brother of the plaintiffs' vendor under a registered sale deed and was put in possession of the property by his vendor and it were the plaintiffs who tried to interfere with his possession. Plaintiffs led evidence to the effect that defendant's vendor had gifted the suit property to his sister in the year 1961 by way of `Pasupu Kumkumam'. Defendant and his vendor denied the plea of gift. Trial Court decreed the suit. First Appellate Court allowed the appeal of the defendant holding that defendant was in possession of the property and the plaintiff had not made out either title or possession over it; that mere suit for injunction was not maintainable and the suit should have be amended to one for declaration and injunction. High Court in second appeal, examining the evidence in detail, recorded the findings of facts and restored the judgment and decree of trial court. It held that plaintiffs had established their title in respect of suit land and drew an inference that possession was presumed to be with them by applying the principle of possession follows title; and that it was not necessary for the plaintiffs to sue for declaration of title as the question of title could be examined incidental to the question of possession. Hence the present appeal. The questions which arose for consideration before this Court were regarding the scope of a suit for prohibitory injunction relating to immovable property; whether plaintiffs were required to file a suit for declaration of title and injunction; and whether the High Court, in a second appeal , could examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court. Citation: 2008 AIR 2033,2008(5 )SCR331 ,2008(4 )SCC594 ,2008(4 )SCALE718 ,= Allowing the appeal, the Court HELD: 1.1 Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. [Para 17] [349-G; 350-A] 1.2 A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. [Para 12] [345-G; 346-A, B, C, D] 1.3 As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. In cases of vacant land, the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was in issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs. [Paras 14 and 17] [346-G; 347-A, B, C; 350-A, B] 1.4 However, a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. [Para 17] [350-C, D, E] 1.5 Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. [Para 17] [350-F, G, H; 351-A] Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari - AIR 1965 Mad. 355; Sulochana Amma vs. Narayanan Nair - 1994 (2) SCC 14; Annaimuthu Thevar v. Alagammal - 2005 (6) SCC 202; Sajjadanashin Sayed Md. Vs. Musa Dadabhai Ummer - 2000 (3) SCC 350- referred to. Corpus Juris Secundum (Vol.50, para 735, p.229) - referred to. 2.1 In the present case, the suit sites were vacant plots. Both sides admitted that defendant's vendor was the original owner and that entire property stood in his name. The defendant claims title through his vendor. The plaintiffs claim title through their vendor, who neither has any deed of title nor any document in support of title or possession. Admittedly, there was no mutation in her name. This means that plaintiffs claim title through someone who claimed to be owner in pursuance of an oral gift in the year 1961 without the property being mutated in her name, whereas the defendant claims title from the person who was admittedly the original owner who was registered as owner in the revenue records. Necessarily, therefore, prima facie it has to be held that defendant had made out possession following title. [Para 20] [352-B, C, D, E] 2.2 The plaintiffs and their witnesses gave evidence to the effect that defendant's vendor represented that his sister (appellants' vendor) was the owner of the plot and negotiated for sale of the several portions thereof in favour of plaintiffs and PW3, and that defendant's vendor had attested the sale deeds in their favour and identified his sister as the vendor-executant before the Sub-Registrar, at the time of registration of the sale deeds. But defendant's vendor in his evidence denied having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether evidence of appellants' vendor and other plaintiffs' witnesses should be believed or whether evidence of defendant's vendor should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and section 41 of Transfer of Property Act, validity of a oral gift by way of `Pasupu Kumkum' under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter. [Para 21] [352-E, F, G, H; 353-A, B, C] 3.1 High Court exceeded its jurisdiction under Section 100 CPC, firstly in re-examining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration. [Para 27] [355-G; 356-A, B] 3.2 The High Court, in the absence of pleadings and issues, formulated in a second appeal arising from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. The only averment in the plaint that plaintiffs were the owners of the suit property having purchased the same under sale deeds, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under section 41 of Transfer of Property Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues. [Para 25] [355-A, B, C] 3.3 The High Court while reversing the decision of the first appellate court, examined various aspects relating to title and recorded findings relating to title. It held that gifting a property to a daughter or sister by way of `Pasupu Kumkumam', could be done orally and did not require a registered instrument. Even though there was no independence evidence of oral gift except the assertion to appellants' vendor (which was denied by defendant's vendor), the High Court, held that there was an oral gift in her favour. It also accepted the evidence of PW3 and PW5 and plaintiffs, that defendant's vendor negotiated for the sale of the plots representing that they sbelonged to his sister; and that he attested the sale deeds as a witness and identified his sister as the executant before the Sub-Registrar and therefore, Section 41 of Transfer of Property Act came to the aid of plaintiffs and defendant's vendor was estopped from denying the title of his sister. The High Court in a second appeal arising from a suit for an injunction, could not have recorded such findings, in the absence of pleadings and issue regarding title. [Para 26] [355-D, E, F, G] 3.4 Though driving the plaintiffs to a fresh round of litigation after three decades would cause hardship to them. But the scope of civil cases are circumscribed by the limitations placed by the rules of pleadings, nature of relief claimed and the court fee paid. The predicament of plaintiffs, was brought upon themselves, by failing to convert the suit to one for declaration even when the written statement was filed, and by not seeking amendment of issues to include an issue on the question of title. In the absence of a prayer of declaration of title and an issue regarding title, let alone the pleadings required for a declaration of title, the parties cannot be said to have an opportunity to have a full-fledged adjudication regarding title. [Para 28] [356-B, C, D] D. Mahesh Babu for the Appellant. K. Amareswari, P. Venkat Reddy and Guntur Prabhakar for the Respondents.
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8 Questions to Ask Before Making the Move for Summary Judgment
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The Pros and Cons of Moving for Summary Judgment
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Pavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
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Affirmative-defense motions for summary judgment are limited to the pleadings...sort of
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Evidence Act, 1872: ss. 101 and 102-Burden of proof-Suit for declaring sale deed as void-Forgery and fabrication of document alleged-Held, with a view to prove forgery or fabrication in a document, possession of the same by defendant would not change legal position-Initial burden of proof would be on plaintiff-The fact that defendant was in a dominant position must be proved by plaintiff at the first instance. Evidence-Burden of proof and onus of proof-Distinction between-Explained. Words and Phrases: Expressions `burden of proof' and `onus of proof'-Connotation of in the context of Evidence Act. Suit-Framing of issues-Practice and Procedure. Pursuant to an agreement of sale between respondent and appellant, a sale deed was executed on 26.3.1991. Later, the respondent filed a suit for declaration that the said sale deed was void as the same was forged and fabricated. The defendant-appellant denied the allegations. On pleadings of the parties the trial court framed the following issue: "Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for?" On an application by the plaintiff, the trial court observed that onus to prove an issue was to be discharged in affirmative and it would always be difficult to prove the same in negative, and reframed the issue as under: "Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document?" The revision application of the defendant was dismissed by the High Court observing that defendant was in a dominant position to prove the document affirmatively. Aggrieved, the defendant filed the present appeal. Citation: 2006 AIR 1971,2006(1 )Suppl.SCR659 ,2006(5 )SCC558 ,2006(5 )SCALE153 ,2006(11 )JT521- Allowing the appeal, the Court HELD: 1.1. In view of Section 101 of the Evidence Act, the initial burden of proof would be on the plaintiff. The trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. The fact that the defendant was in a dominant position must be proved by the plaintiff at the first instance. [662-h; 663-b-c; e] Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors., AIR (2003) SC 4351, distinguished. 1.2. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the Trial Judge to produce the same. [655-d-e] 2. It should be borne in mind that a distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the OTHERS The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitled him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. [655-f-h; 666-a] R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr., JT (2004) 6 SC 442, relied on. 3. The order reframing the issue is set aside thus reviving the issue originally framed. [666-d] Suresh Kumari and A.P. Mohanty for the Appellant. Shalil Sagar, Pratap Venugopal and E. Venu Kumar for M/s. K.J. John & Co., for the Respondent.
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Motions
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