Mahabir Prasad and Others vs Ram Kumar Singh

H.N. Tilhari, J.—This is plaintiff''s second appeal arising out of judgment and decree dated December 16th, 1983, passed by Shri V.S. Shukla, Additional Judge Small Causes Court in Regular Appeal No. 96 of 1983 (Laxman Prasad Versus Ram Kumar Singh) dismissing he plaintiff''s appeal and confirming the judgment and decree dated May 13,1983, passed by Shri Rajesh Chandra, Munsif South in Regular Suit No. 552 of 1982 (Laxman Prasad v. Ram Kumar Singh) dismissing the plaintiff''s claim in the above suit.

The facts of he case, in brief, are that the plaintiff filed the above suit with the allegations to the effect that plaintiffs "wee and nave been" in possession of Shop No. 13 New Market Charbagh, Lucknow. It was averred in the plaint that Ram Kumar, defendant-respondent has been a tenant of he shop and he used to pay the rent of he shop to Nagarmahapalika, Lucknow which is the owner of he shop. According to the plaintiff, defendant-respondent Ram Kumar Singh has sub-let the shop in dispute in Shop No. 15 to the plaintiff sometime in the month of April, 1976 on a monthly rental of Rs. 300/-. The plaintiff further averred that the defendant after having sub-let the said shop to the plaintiff, had left for his village in District Jaunpur in April, 1976 and since then, the plaintiff claimed himself to be in lawful possession of the said shop and according to plaintiffs case the plaintiff has been carrying on the business or manufacturing and selling rabri in the shop and used to pay regularly, the rent to the defendant @ Rs. 300/- per month. The plaintiff further averred that defendant wants to interfere with the possession of the plaintiff over the shop and desires to dispossess with which object, defendant had quarreled on June 9,1972 hen the police arrived on the spot and both the parties were arrested on 3rd December, 1982. The defendant along with certain persons came to shop while he the plaintiff (sic) closing the shop, instigated (sic) them to dispossess the plaintiffs shop and threw away the plaintiffs goods but somehow the plaintiff succeeded in locking of the shop but as the defendant is adamant to dispossess the plaintiff, otherwise (than) in due course of law and so the plaintiff had to file, according to plaintiff''s case, the suit for a decree for permanent injunction restraining the defendant from interfering with plaintiff''s possession over the said shop.

The defendant-respondent contested the plaintiffs claim and filed written statement. The defendant asserted himself to be the tenant of he shop in dispute, namely, shop No. 13 of which defendant alleged Nagarmahapalika to be the owner. The defendant denied to have ever sub-let the shop in dispute in favour of the plaintiff, and also denied to have received Rs. 300/- as rent. According to defendant''s case, he never sub-let the shop in dispute. According to his case, as defendants'' mother had died and he had to go to village and has also to look after his agriculture there and the plaintiff being known since long back for some time the defendant, on the request made by the plaintiff who was his neighbours as well as on the request of other shop-keepers, permitted the plaintiff to manufacture rabri, etc. on the land situated at the back of the shop No. 13, and it was stipulated with them, defendant will return from his village, plaintiff will have to vacate the back Eortion of the shop No. 13. The defendant''s case is that when he became free from is other requirements for which he had gone to village and the defendants cultivation had also grown, the defendant asked the plaintiff to vacate the shop but he plaintiff in collusion "with the police got the defendant arrested. The plaintiff threatened the defendant that the defendant would be robbed (sic) (roped?) in some false case Civil and Criminal.

The defendant further asserted that while plaintiff and defendant were arrested by the police, on the intervention of the neighboring shop-keeper compromise had been executed between the parties and the plaintiff did promise to vacate the shop within six months i.e. upto 6th December, 1982 but instead of vacating the shop by the stipulated period, plaintiff had filed a suit in order to maintain his occupation or user in an unauthorised manner. The defendant asserted that conduct of the plaintiff has not been fair and that he is not entitled to get the relief for injunction, being granted in his favour.

On the basis of he pleadings of the parties, the Trial Court framed the following issues:

Whether the plaintiff is a sub-tenant of shop No. 13 as alleged in para 3 of the plaint? If so, its effect.

Whether the defendant on December 3,1982 tried to dispossess the plaintiff as alleged in paras 7 and 11 of the plaint? If so, its effect.

Whether the plaintiff has permitted temporarily to use the structure (sic) of defendant on the back of shop No. 13 as alleged in para 23 of the written statement? If so, its effect.

To what relief, if any, is the plaintiff entitled.

The trial Court i.e. learned Munsiff, after having given opportunity to the parties to lead evidence oral and documentary and after giving the parties due opportunity of hearing of the case dismissed the plaintiffs suit with the following findings:

a) That the plaintiff was permitted temporarily use of land and carry on his business in the constructing lying on the back of shop No. 13 and not the shoot No. 13 itself....

He further held that the plaintiff was not sub-tenant of the shop in dispute, namely shop No. 13. The trial Court further held that plaintiff had not been entitled to the grant of relief of decree for permanent injunction against the defendant-respondent.

With these findings, the trial Court dismissed the plaintiffs suit by judgment and decree dated 3Qth May, 1983.

Feeling aggrieved from the trial Court''s decree dismissing the plaintiff''s suit, the defendant preferred Regular Civil Appeal (First Appeal i.e. Civil Appeal No. 96 of 1983) and after hearing the Learned Counsel for both the parties, the learned lower Appellate Court dismissed he plaintiff''s first appeal with costs.

The learned lower Appellate Court held that plaintiff has failed to prove the contract of sub-tenancy. He further held that plaintiff''s possession is not of sub-tenant. He further held that the plaintiff has been in permissible possession over the back portion of he shop temporarily and it did not thereby create confer or give any right in favour of the plaintiff. The learned lower Appellate Court held that the alleged cause of action has not been established. He further found the trial Court''s finding that plaintiff was not sub-tenant and had no right or rightful claim in the shop in dispute and the suit has been rightly dismissed. With these findings, the Appellate Court dismissed the plaintiffs appeal and affirmed he decree of trial Court dismissing the plaintiffs suit.

Having felt aggrieved from the decree of the two Courts below, the plaintiff has preferred the Second Appeal.

I have heard Shri Zilani, Learned Counsel for the appellants and Shri Sehdeo Singh, Learned Counsel for the respondent.

I have gone through thee record of the case. Shri Zilani contended that the learned Court below erred in holding and taking the view that plaintiff is not the sub-tenant and the said finding is based on consideration of irrelevant material or consideration of inadmissible piece of evidence. He further submitted that in recording that finding that plaintiff appellant''s suit was without cause of action, the Court below based his decision on certain irrelevant consideration as well as on inadmissible evidence and intended compromise dated 7.6.1982 Ext. Ka.l was inadmissible.

Shri Zilani contended that as the same was entered into, when parties had been arrested and taken to police custody and substantially when the plaintiff had denied his signature over the same and his signatures have not been proved in accordance with law and with the help of or by production of hand-writing expert. He further submitted that the burden did not lay on the plaintiff to prove that he was sub tenant i.e. in other words, plaintiff was not required to prove the contract of sub-tenancy between himself and the defendant. The same had to be inferred from the conduct and payment of same for use of that shop so he contended that the finding of the Court blow that plaintiff failed to prove the contract of sub-tenancy between himself and the defendant-respondent and his status as his sub-tenant is vitiated by error of law by the fastening of wrong burden of proof on the plaintiffs shoulders. He further submitted that it being the admitted position that plaintiff entered into possession with defendant''s permission and continued to be in possession thereof for about six years, the plaintiff was entitled to the grant of decree for permanent injunction. On behalf of the respondent, Shri Sahodeo Singh the Learned Counsel for the respondent submitted that, firstly he decision of the Court below to the effect that plaintiff has failed to prove his contract of sub-tenancy and also that he had or that he has been sub-tenant and this finding is pure findings of fact based on appreciation of evidence on record. The finding being the concurrent finding of fat of two courts is binding and is not liable to be interfered with howsoever erroneous or grossly erroneous it may be. He further submitted in alternative that after taking into consideration that evidence on record, that finding according to him, is not erroneous either in law or in facts nor can be held to be erroneous.

Sri Singh submitted that in a suit for injunction, the burden is on the plaintiff to prove his case i.e. title and possession. The possession may be said to be 100% title except against the true owner. He further submitted that the compromise Ext.Ka.l referred to and relied by two courts below has been proved by Witnesses of the deed and the same has been, (sic) executed between the parties by()sic) of these free will and with full understanding and the compromise was validly entered into between the parties as found by the Court blow thereunder:

The plaintiff had been granted six months'' time to vacate the shop but inspite thereof the plaintiff did not act in accordance with the terms of compromise instead filed the suit on false allegations and protested as the defendant-respondent has no intention nor had ever any knowledge of any intention to evict he plaintiff from the shop by use of any processes or force, otherwise than law and, as such he plaintiffs suit had really been (sic) without any cause of action and has rightly been dismissed by the two courts below.

It is well settled principle of law that u/s 100 of the CPC that second appeal is only maintainable on question of law and, in particular, on question of law of substantial in nature. It is also well settled that a finding of fact howsoever (sic) erroneous, it may be the same cannot be interfered with in second appeal on the mere grounds of misapprehension of evidence or the like. However grossly erroneous, finding may be but (sic). Deity Pallabhi Ramawami v. S. Hanyamayya, AIR 1959 SC 57, and Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, .

A finding of fact based on consideration and appreciation of material on record arrived at and recorded by the lower Appellate Court is conclusive and binding. See also Abdul Waheed Khan Vs. Bhawani and Others, ; Mattulal Vs. Radhe Lal, , Jagdish Singh Vs. Natthu Singh, .

As regards, the question of burden of proof firstly, it is well settled principles of law that in a suit for possession or injunction, the plaintiff has to stand on his own legs i.e. in a suit for possession and injunction the burden is on the plaintiff to establish his title and possession over the property in dispute as well as the cause of action for filing of the suit for injunction.

The provisions of Section 101 and 102 of the Evidence Act read as under:-

Section 101 - Whoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Section 102 - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

In a suit for possession or injunction, if a person alleges certain facts indicating his title and eight to the grant of relief dependent on those facts, then in that case definitely it can be said that burden of proof lies on the person claiming those rights of relief''s in that suit. i.e. on the plaintiff. In the present case, when the Plaintiff claimed injunction on the basis of his plaint allegations to the effect that e has been the sub-tenant in the accommodation and continued to be in possession as sub-tenant and that defendant intends to illegally and forcibly throw him out and the admitted case or position is that the defendant is tenant of whom the plaintiff, claims to be the sub-tenant the burden did beyond doubt lay and has so been correctly held by the Court below, to lay on the plaintiff to prove the contract of sub-tenancy between him and the defendant, it is also one of the well settled principle of law that when both the parties have led evidence on the point in issue, the burden to prove loses its importance and it is the duty or the function of Court to appreciate the evidence led by both the parties and to arrive at a finding on the basis of appreciation of evidence and I find support for this view of mine from decision of Privy Council in the case of AIR 1932 228 (Privy Council) and N.J.B. Calholies v. Thuklam Parlo, AIR 1959 SC 31.

In this view of the matter there is no substance in the submission of the Learned Counsel for the appellant that the learned Court below committed error of law with reference to the question of burden of proof. In my opinion, the learned Court below did not commit any such error of law when it required, the plaintiff to prove his possession and status as sub-tenant or he contract of sub-tenancy and when it held after the appreciation of evidence, oral and documentary that the . plaintiff failed to prove himself to be the sub-tenant of the accommodation.

As regards, the compromise, the plaintiff''s counsel in Court below had raised same contentions which have been raised in this Court. The learned Court below had considered this aspect of the matter. The said compromise was executed on June 7,1982. Its execution signing and attestation thereon of the parties and that of he witness even have been proved by the witness DW2 Baban Singh. DW2 Baban Singh has also stated that compromise was entered into outside the Thana i.e. outside police station and that if was not at the time when both the parties were in lock- up. Thereunder the plaintiff was given six months more time to vacate and the plaintiff in witness-box has stated that there is no such thing like ill will between him and Baban Singh. The matter was settled by this compromise and plaintiff was permitted temporarily and permission was granted to him to live for six months and thereafter to vacate. The plaintiffs possession is permissive in nature and being for temporary period, plaintiff on the basis thereof cannot claim any injunction that he cannot be ejected. The defendant respondent''s counsel has stated and argued that plaintiff has asked the defendant to vacate. Defendant never intends to nor did ever intend nor did intend to act deal with plaintiff in any manner otherwise than provided by law.

The Learned Counsel for the defendant-respondent contended that plaintiff is not entitled for decree for injunction as he has neither any title nor cause of action and he was in permissible possession or use of the property in dispute and, therefore, the defendant is entitled to get title possession and ask the plaintiff to hand-over the vacant possession in such circumstances, the Court below rightly held that suit for injunction is not maintainable, restraining the defendant from taking steps in accordance with law and to evict in accordance therewith. In my opinion, the plaintiff has rightly been held not to be entitled to claim the injunction when his title has not been established as a sub-tenant and, as such, the learned Court below rightly dismissed the plaintiffs suit.

A person who entered into possession or use of property for a certain period became liable to vacate, in case the user of said property from the day he permission is withdrawn and he is asked to vacate and such person is not entitled to the grant of relief of permanent or temporary injunction against the rightful owner restraining him from obtaining in accordance with law the possession from the person in possession who entered into possession under permission as no right or title accrues in his favour simply in the ground of possession which was permissive at the time of its origination.

in this view of the matter, in my opinion, the judgment and decree of the Court below dismissing the plaintiff s suit, after having held that he plaintiff is not the sub-tenant does not suffer from any error of law or of jurisdiction. The appeal is concluded by the finding of fact pure and simple and, as such, is hereby dismissed with costs.