Anita And Others vs Anup Kumar And Others

Sharad Kumar Sharma, J

This is the defendant's Second Appeal, wherein, he has questioned the judgment and decree, which has been concurrently rendered by both the Courts below, as a result of which, the Suit being Suit No. 99 of 2010, Mani Lal Vs. Rajendra Kumar was decreed by the learned Civil Judge (Senior Division), Haldwani, District Nainital and on a challenge being given to the said judgment and decree by the defendants/appellants in a Civil Appeal, being Civil Appeal No. 53 of 2013, Rajendra Kumar through LRs Vs. Mani Lal through LRs under Section 96 of CPC, the First Appeal preferred by the defendants/appellants, herein, was dismissed by the Appellate Court vide its judgment dated 16.05.2019, thereby confirming the judgment and decree of Trial Court dated 11.10.2013.

The first and the foremost point, which the counsel for the appellants has argued before this Court was pertaining to an inter se play with regard to the effect of rejection of Order 6 Rule 17 of the C.P.C. by an order dated 15.04.2019 and that its counter effect on allowing of any application under Order 41 Rule 27 of the C.P.C. at an appellate stage during the adjudication of the appeal, which stood allowed by the same order dated 15.04.2019.

In order to substantiate his argument, learned counsel for the appellants has made reference to the provisions contained under Section 105 of the C.P.C., which contemplates that if any interlocutory order passed by the Trial Court or the Appellate Court, it has got an impact and effect on the principal judgment to be rendered by the Court, the same could be put to challenge at the stage of an appeal. Section 105 of the C.P.C. reads as under :-

"105. Other orders. - (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."

Under the C.P.C., the First Appeal under Section 96 of C.P.C. is contemplated as of right, which is provided under Section 96 of the C.P.C. But as far as the Second Appeal contemplated to be filed before the High Court under Section 100 of the C.P.C. is concerned, it is not instituted or to be entertained as of right until and unless it entails a determination of any substantial question involved in the case, rather that is an exclusive power, which has been vested with the High Court to deal with the subordinate Court's judgment and that too on the limited ground, which has been provided and laid down under Section 100 of the C.P.C., i.e. an interference in a judgment passed by the Courts below, which is possible only when it involves the consideration of any substantial question of law. It means to say that the provision contained under Section 100 of the C.P.C. of filing of the Second Appeal is not as of right but it is on the basis of substantial question of law, which is involved for adjudication of the Second Appeal, then only it will lie before High Court.

If the language used under Section 105 of C.P.C. is taken into consideration, in its strict sense and spirit, which aims to achieve, it provides that any person who is aggrieved against any interlocutory order, which is affecting the decision of the case, he has got a right to raise it as a ground of objection in the "Memorandum of Appeal". This Court is of the view that when the Code itself has provided preferring of an independent appeal under Section 96 of the C.P.C. This Court is of the view that here the reference of "Memorandum of Appeal" will only relate to Section 96 CPC, which is as of right and it will not relate to the stage provided under Section 100 of the C.P.C., which is a right conferred to the High Court for its interference in the judgment passed by the First Appellate Court or the Trial Court and that too only in the circumstances of its involvement of a substantial question of law and hence, the reference to the word "Memorandum of Appeal" used under Section 105 C.P.C., this Court is of the view that it will not include within its ambit the second appeals contemplated under Section 100 of the C.P.C., which cannot be invoked as of right and which entails determination of a case on the re-appreciation of evidence led by the parties before Courts below.

Thus, the contention of the appellant to the effect that while preferring the second appeal, he could also exercise the right to challenge an order rejecting the application under Order 6 Rule 17 at the first appellate stage at the time of filing of Second Appeal, it is not accepted by this Court as the same is denied because on its rejection of Order 6 Rule 17 at appellate stage, remedy was to file a Writ Petition invoking Article 227 of Constitution of India and not by giving challenge to it under Section 105 of C.P.C..

There is another important aspect with regard to the implications of Section 105 of C.P.C. at the second appellate stage; it has to be considered in the instant case from the view point that in the Memorandum of Second Appeal or the relief claimed therein, it apparently does not give challenge to the order dated 15.04.2019, whereby, the application, paper Number 98 Ga, was rejected by the First Appellate Court. Consequently, rejecting the application filed under Order 6 Rule 17, because even as per the relief clause, there is no relief sought as against the order dated 15.04.2019. Thus, the arguments raised by the appellants' counsel in the light of the provision contained under Section 105 of the C.P.C. and its implications is not acceptable by this Court, as it is beyond the relief claimed in the Second Appeal, and even beyond the pleadings raised in the Second Appeal.

In response to it, the argument, which has been extended by the learned counsel for the appellant, it was to the effect that as a consequence of rejection of application under Order 6 Rule 17 of the C.P.C. by the First Appellate Court vide its order dated 15.04.2019, a person cannot be left remediless and, as such, from this view point also, the provisions contained under Section 105 of the C.P.C. would come into play even at the second appellate stage. This Court is not in agreement with the argument as extended by the learned counsel for the appellants for the reason being that as against the decision rendered while rejecting the application under Order 6 Rule 17 of the C.P.C. at an appellate stage, its' not that the party whose application is rejected by the First Appellate Court is left remediless, he could have always invoked the Writ Jurisdiction under Article 227 of the Constitution of India for scrutinizing the propriety of the order rejecting the application under Order 6 Rule 17 of the C.P.C., which was not done by the defendants/appellants in the instant case, and rather challenge to the rejection of the application under Order 6 Rule 17 by an order dated 15.04.2019, has been sought to be challenged in the present Second Appeal itself is contrary to the pleading and relief sought for in the present Second Appeal, apart from the fact that same is not maintainable at the Second Appellate stage.

This observation is also from the view point that the application under Order 6 Rule 17 was rejected by an order dated 15.04.2019, whereas, the First Appeal was decided much thereafter by the judgment impugned dated 16.05.2019. That means the defendant/appellant had sufficient time to challenge the order of rejection of application under Order 6 Rule 17, if at all, it was affecting the merits of determination of the case which, he himself, has not availed on his own volition, for which, he has to blame himself, hence, now, he cannot contend in arguments in the Second Appellate stage, about the impact of rejection of application under Order 6 Rule 17, on the consideration of impact of its rejection on the consideration of application under Order 41 Rule 27 of filing of additional evidence. Both are altogether independent provisions under law for independent purpose to be met with and with altogether different objective.

The second limb of argument of the learned counsel for the appellants is to the effect that once the First Appellate Court has allowed the application under Order 41 Rule 27 of the CPC, permitting the appellant to adduce additional evidence in support of his contention before the Trial Court, that in itself would be a non est exercise because in allowing the application under Order 41 Rule 27, because the evidences, which has been sought to be brought on record by virtue of the application under Order 41 Rule 27 of the C.P.C. cannot be taken into consideration until and unless the pleading in relation thereto is also permitted to be brought on the record by allowing of an application filed under Order 6 Rule 17 of the C.P.C.

The delicacy of the argument, which has been extended by the learned counsel for the defendants/appellants regarding that the impact of allowing an application under Order 41 Rule 27 C.P.C. cannot be exclusively co-related to the rejection of the pleadings as same is not the case projected by defendant/appellant, herein, which was sought to be made by virtue of an application under Order 6 Rule 17, because even if after allowing of an application under Order 41 Rule 27 of the CPC only, it could have been and rather the evidence introduced by application under Order 41 Rule 27, it must have been considered by the Appellate Court at the time of adjudication of the appeal itself on its merits. Because this Court is of the view that rejection of Order 6 Rule 17 would be having any bearing if additional evidence as introduced under Order 41 Rule 27 was only in relation to the amendment sought by the application under Order 6 Rule 17. This was not the case of the appellants before this Court, that amendment sought which was rejected was exclusively in relation to additional evidence placed on record by application under Order 41 Rule 27.

The factual backdrop, under which, this case has come up for consideration before the learned Trial Court was on the ground that the plaintiff/respondents had instituted a suit for getting a decree of mandatory injunction by way of eviction of the defendants/appellants, herein, who happen to be the real brother of the plaintiffs, for which, plaintiffs/respondents have contended that they, i.e. defendants/appellants were given a right to reside to him at the second floor of the premises, in question, as a licensee only and one shop on the ground floor was also given to him in the same capacity in a building, which was bearing the Municipal Number 11/570, which according to the defendant/appellants case was a property which was purchased form the funds of the Joint Hindu Family, which was an income, which was arising out of the income accruing to the firm called as M/s Beni Ram Ram Swaroop belonging to a Joint Hindu Family.

The case of the plaintiffs/respondents in the suit as instituted on 12th January, 2012, was to the effect that though the defendant/appellants, who was given a right to reside as a licensees in the second floor of the premise, in question, as well as he was given a right to occupy and conduct his business in the shop on the ground floor, he despite of occupying the premise, in the capacity of being a licensee of the premise, in question, had started changing its structure and demolishing certain part of the premise, in dispute, which is alleged to have given the cause of action for the plaintiff/respondent to institute the suit, in question, for seeking eviction of the defendants/appellants and the consequential possession of the property, in dispute, which was given to be occupied by the defendants/appellants in the capacity of a licencee only.

The plaintiff/respondent has further contended that when despite of request made by him to the defendant / appellant to refrain himself from altering the nature of the property, in question, he admits the fact that the plaintiff/respondent had issued notices on 14.12.1998 and thereafter on 15th March, 2010, terminating the licence of defendant / appellant but, the defendant/appellant herein, it is alleged that he still persisted and continued the act of demolishing and changing the nature of the property and, consequently, the institution of the suit, in question, was inevitable for the plaintiff /respondent.

On issuance of the notice on the suit, in question, the defendant/appellant, herein, had put in appearance and filed his written statement by way of paper No. 25-ka, wherein he had contended that the plaintiff did not have an exclusive right over the property, in question, because as per his own case, which was developed and pleaded before the Court below was that the disputed property was purchased from the coffers of Joint Hindu Family property having purchased it from the income ,which was accruing to M/s Beni Ram Ram Swarrop, and hence, since the property was purchased from the joint Hindu family funds, and he was residing in the said premises since 1966, he had a right to continue to occupy the premises because he too would have a right of inheritance in the property, which has been exclusively purchased form the joint funds of the Joint Hindu family property. Based on the aforesaid pleadings, the learned Trial Court on 26th April, 2012, had framed the following issues :-

"1- क्या वादी प्रश्नगत विवादित सम्पत्ति का मालिक काबिज है ?

2- क्या वादी प्रश्नगत विवादित सम्पत्ति का कब्जा प्राप्त करने का अधिकारी है ?

3- क्या प्रतिवादी को विवादित सम्पत्ति पर हस्तक्षेप करने का अधिकर है?

4- क्या वादी, प्रतिवादी से मुआवजा बेजा इस्तेमाल प्राप्त करने का अधिकारी है ?

5- क्या वाद का मूल्यांकन कम व गलत किया गया है ?

6- क्या वादी का वाद विशिण्ट अनुतोष अधिनियम व दीवानी प्रक्रिया के प्रावधानों से बाधित है ?

7- क्या वादी किसी अनुतोष को प्राप्त करने का अधिकारी है ?"

In support of his contention, the plaintiff/ appellant, apart from producing himself in the witnesses box and recording his oral testimony, he has also produced the documentary evidences pertaining to the notices issued by the Nagar Palika to the plaintiff and the copy of the sale deed, the notices issued by the plaintiffs to the defendants as paper No. 28-Ga., etc. wherein it goes to show that the property stands exclusively vested with the plaintiff/respondent and it was not purchased, which could be said that it was made from the coffers of the joint Hindu Family funds. As the sale deed placed on record and as per records of Nagar Palika, the plaintiff is shown to be recorded as exclusive owner, neither the sale deed was in the name of firm, nor the firm was recorded as owner in the Municipal records. Thus, ultimately, Courts below recorded the finding that the plaintiff/respondent succeeded to prove himself as exclusive owner of the property in dispute.

The learned Trial Court decided the issue Nos. 1, 2 and 3 together and had recorded a finding to the effect that the onus to prove that the property belong to the Joint Hindu Family, that was a plea which was raised by the defendant/appellant in the proceedings before the Court below as a defense in order to sustain his right of possession over the disputed property and it was the very basis of claim of his right over it, but, he was unable to establish and substantiate his defence taken in the written statement rather to the contrary based on the interpretation of the sale deed, which was produced by the plaintiff/respondent in support of his contention and title over the property, in question, and failure on the part of the defendant/appellants to prove that the property exclusively belonged to the Joint Hindu Family property, the Court has drawn a conclusion after the appreciation of the evidence and documents that the property, in question, belonged to plaintiff/respondent and the defendant/appellant was only given a right as a permissive licensee to reside on the second floor as a licensee and was also given to utilize the shop which was existing on the ground floor of the building in dispute.

Consequently, considering the rival contention, the Suit as preferred by the plaintiff for seeking a decree of permanent and mandatory injunction as against the defendant/appellant was decreed and the defendant/appellant was directed to vacate the premises within a period of 30 days from the date of production of the certified copy of the trial court's judgment.

The judgment of the Trial Court was put to challenge by defendant/appellant in an Appeal preferred by the defendant/appellant, which was registered as Civil Appeal No. 99 of 2010, Mani Lal Vs. Rajendra Kumar. The Appellate Court, too, after considering the rival contentions and the evidence which was adduced by them before the Court below, had come to the conclusion that the burden, which as per the Section 103 of the Indian Evidence Act, which has been casted and was supposed to be discharged by the defendant/appellant with regard to his claim of right to continue to occupy the premises in the capacity of being a successor since belonging to the common predecessor from the same family clan and will have a right over the disputed property, was not proved by the defendant/appellant, that it was a purchase made from the funds of Joint Hindu Family, that was not discharged by the defendant/appellant nor any evidence was produced by him to show before either of the Courts below that it was a joint Hindu family property or it ever constituted to be its part. Consequently, the Appellate Court too after considering the rival contentions had come to the conclusion that it was an exclusive property, which was proved to be purchased by plaintiff / respondent, which was belonging to the plaintiffs, it was not a purchase, which was made from the coffers of the Joint Hindu Family property was fact, which was proved by the plaintiff/respondent beyond doubt, accruing from the business, in question, and the Appellate Court too has dismissed the appeal directing the defendant/appellant to vacate the premises in the light of the directions issued by the learned Trial Court vide its judgment dated 11.10.2013.

After having heard the learned counsel for the appellants at length, and considering the aspect, which has been pressed before this Court, which has already been dealt with in the above paragraph, this Court is of the view that the status of the defendants/appellants in the absence of their being any proof of title to the contrary being vested in them or proof to the effect that the property ever belonged to the joint Hindu property, their possession over the property would be taken as to be that of licensee only and the same stood terminated by virtue of the notice dated 4th December, 1998 and thereafter on 15th March, 2010, which was admittedly served upon the defendant/appellant and despite of service of notice of terminating the licence, the accommodation was not vacated. Thus, the Appeal was also dismissed by the impugned judgment dated 16.05.2019. Consequently, both the Courts below held based on the appreciation of evidence that :-

i. Defendant/appellants failed to prove by evidence that they were the owner of the property, and had a right to reside in it.

ii. Plaintiff/respondent by the sale deed placed on record by way of evidence succeeded to establish that it was the property which was purchased by him and it exclusively belonged to him and recorded in his name.

iii. Defendant/appellant defence to the effect that the property being the property purchased from the coffers of Joint Hindu Family funds which accrued from the income of the Joint Hindu Family Fund was not proved by placing any evidence on record.

iv. There was no denial by pleadings of the fact by defendant/appellants that they had not altered the structure given to them to reside as licencee, thus it amounts an admission by him that there was alteration, which was made by them, dehors to the terms of licence given to them to reside and use the property.

v. Admittedly, the licence stood terminated by the plaintiff/respondent of the defendant/appellants by serving the notices upon them dated 14.12.1998 and, thereafter, on 15.03.2010 and despite of admitted service of the notice terminating the licence, the disputed property was not vacated by them. Thus, defendant/appellant lost his right to occupy the property.

vi. Even as per the evidence produced by plaintiff/respondent regarding the tax assessment and its receipts as para 8Ga/2 and 8Ga/18; the receipt of taxes by Nagar Palika, the document of title, i.e. sale deed, he has succeeded that he was the exclusive owner of the property, in question, and was not a purchase made from funds of Joint Hindu Family.

vii. The defendant/appellant in his written statement has placed reliance upon the will allegedly executed by his late father in writing, which was claimed to be the basis of his right to reside, even this Will executed in writing in his favour, on which, he relied was not placed on record as an evidence nor the factum of execution of Will by his late father was proved by oral evidence or as per Section 63 and 68 of Evidence Act.

viii. Even as per fact admitted by defendant/appellant in his statement recorded before the Courts below, he was ignorant of any fact and detail of procurement of assets, etc. by the Firm from the funds of Joint Hindu Family.

ix. As per the evidence of plaintiff/respondent, the finding has been recorded concurrently by both the Courts that plaintiff purchased the property by virtue of the sale deed dated 04.09.1957 from the predecessor owner Harbans Singh and he is accordingly recorded, which does not decipher that the property was purchased by the Firm or from its funds.

x. Admittedly, this sale deed of 04.09.1957 is a registered and unchallenged document, which gives presumption of valid title being vested with the plaintiff/respondent.

Hence, after going through the records, this Court is of the view that the Second Appeal is concluded by the concurrent finding of facts pertaining to the title of the property, in question and the right of the defendants/ appellants as a licencee to continue to occupy the same in the capacity of the licensee stood terminated, hence, it does not call for any interference by this Court in exercise of its Second Appellate power under Section 100 of the C.P.C.. Thus, the Second Appeal lacks merit and is dismissed accordingly.

However, there would be no order as to costs.