M/s RamNath Exports Limited vs Vinita Mehta & Another

Sudhanshu Dhulia, J

This appeal arises out of the judgment and decree dated 15.12.2001 passed by the Civil Judge (S.D.) Dehradun in O.S. No.953 of 1990 "M/s Ram Nath Exports Limited Vs. Smt. Vinita Mehta & another", whereby the Trial Court had dismissed the suit of the plaintiff which was for injunction.

In the plaint filed by the plaintiff which was registered as Original Suit No.953 of 1990 before the Civil Judge, Dehradun "M/s Ram Nath Exports Limited Vs. Smt. Vinita Mehta & another", it was alleged that the plaintiff is a private limited company registered under the Indian Companies Act, having its registered office at A-25 Hauz Khas, New Delhi and Shri Radhey Lal, is the Managing Director of the Company who has been authorized to sign and verify the plaint. It was alleged that the plaintiff had purchased the property which is earlier known as "Wins Cottee Cottage", which is a land, tin shed and main building, situated at Camel's Back Road, Mussoorie measuring about 0.90 acres from one Kanwar Ghanshyam Singh, Smt. Sarla Singh and Shri Jagdip Singh by sale deed dated 28.05.1982 which was duly registered in the office of the Joint Sub Registrar, Mussoorie on 31.05.1982. It was further alleged in the plaint by the plaintiff that he had purchased a land measuring about 0.50 acres from Kanwar Ghanshyam Singh by a sale deed dated 05.05.1982. The plaintiff has exclusive peaceful possession of the aforesaid two properties.

Thereafter a case was set up by the plaintiff that one property known as "North View Villa Estate" situated at Camel's Back Road, Mussoorie was in the ownership of Smt. Wilfred Maud Broucke, who had sold this property to one Shri S.R. Rao who in turn sold a portion of the said property to Shri Bihari Lal Kapur vide sale deed dated 15.01.1942. After the purchase of the property, the name of the property was changed from "North View Villa Estate" to "Prem Niketan". Subsequently, the defendant no. 1 purchased the said property vide sale deed dated 17.04.1984 from Sri Madan Mohan Kapur and others.

What is relevant here is that although the property has changed different hands but both the plaintiff as well as the defendants have a common predecessor in interest, i.e. S.R. Rao and earlier W.W. Broncke. Initially the allegations of encroachment on the property of the plaintiff were only against defendant no.1. Subsequently during the pendency of the case, defendant no.2 was also made a party as during the pendency of the suit, defendant no. 2 had purchased the property from defendant no.1. This property was purchased by him on 05.05.1993. It was alleged that the property which was under the ownership of defendant nos.1 & 2 has its passage from the side of St.Marry Hospital Road and they are entitled to use this passage alone. Initially the allegation was made by the plaintiff against defendant no.1 that she is trying to construct a hotel on the property on which a passage is being carved out from the property of the plaintiff. The specific assertion to this effect was made in paragraph no.13 and 14 of the plaint which is as follows:-

"13 That the defendant is threatening to provide a passage for the hotel or cottages through the properties of the plaintiffs instead of providing a passage from the St. Marry's Hospital Road, illegally and maliciously.

That under these circumstances it is necessary that the defendants are prevented by appropriate injunction restraining her from altering the present condition of her property and the right of way or the passage or the pathway which her property is having from the St. Marry's Hospital Road to her property. That if she is allowed to change or alter the present condition by putting up the proposed hotel or cottages, suit No.411/90 filed by the defendant would not be decided in proper prospective and the court will not be in a position to determine the rights of the party either in suit No.411/90 or in the present suit. It is, therefore, submitted that the defendants may be restrained to go ahead with the construction of the hotel or cottages by changing, modifying or altering the present position of the suit property in her possession."

In other words, the case of the plaintiff was that defendant no.1 and defendant no. 2 are trying to construct an entirely new passage, which runs through the property of the plaintiff and that is why injunction was being sought against them.

Defendant no. 2 contested the case and said in his written statement that this property has been purchased by him from Ms. Vinita Mehta vide sale deed dated 05.05.1993. The predecessor in interest of Smt. Vinita Mehta was earlier Madan Mohan and prior to that Biharilal who had purchased this property in the year 1942 from S.R. Rao.

The appellant claimed that he had purchased this property by means of two sale deeds dated 05.05.1982 and 28.05.1982. In both the sale deeds, the map which has been annexed clearly shows that there is already a passage which leads to the property of defendant nos.1 & 2. Therefore to allege that a new passage is being made, is incorrect, the defendant no. 2 would submit. As to the passage which exists from the side of St. Marry's Hospital Road, it was said that even if they have another passage, they still have a right to use this passage, which cannot be denied, if it is proved that they were using the existing passage.

Since there was a preliminary objection as to the authority of Sri Radhe Lal, the issue which was framed was "whether Sri Radhelal is having legal rights to sign and verify the plaint on behalf of the plaintiff company". This issue has been decided by the Trial Court in favour of the plaintiff.

The other issues framed by the learned Trial Court were as under:-

"2. Whether the plaintiff company is the owner of the disputed passage by virtue of sale deed dated 5.5.82 and 28.5.82, as has been stated in para 2 & 3 of the plaint?

Whether defendant no. 1 has threatened the plaintiff to construct a passage in his property, as has been stated in para 13 of the plaint?

Whether the defendant no. 2 has any right for using the passage in dispute for ingress and outgress to his property, as has been stated in para 18.

Whether the passage in dispute was being used from the time of his predecessor in interest and is pre-existing for last several years, as has been stated in para 22 of the written statement?

Whether the plaintiff is entitled for the relief sought?"

The trial court has not believed the contention of the plaintiff as regarding the construction of the new passage by the defendants and the findings given by the Trial Court are that there was already a pre-existing passage which was being used by the defendants and the plaintiff has made a wrong assertion, and has not approached the court with clean hands.

The main issue therefore is regarding the existence of the passage and the rights of the parties therein.

In view of this Court following points fall for determination at this appellate stage.

"1. Whether the defendant nos.1 and 2 were constructing or they were threatening to construct a new passage on the property in question, which is claimed by the plaintiff to be in his ownership or such a passage was already there in existence?

In case the findings are that there was a pre-existing passage, what were the rights of the defendant nos.1 and 2 as regarding the passage?"

The case of the plaintiff before the Trial Court was that the defendants are threatening to carve out entirely new passage from the property which is under the ownership of the plaintiff in order to construct a hotel or cottages on his property.

The fact of the matter is that during the pendency of the suit, this property has been purchased by defendant no.2 who admittedly has not constructed any hotel. The case was also contested only by the defendant no.2, who had said that this property has been purchased by him from Smt. Vinita Mehta vide sale deed dated 05.05.1993.

`Defendant no.2 is a registered society where religious discourses are held at the concerned place, regularly and it is totally false claim by the plaintiff that any hotel or cottage has been constructed therein. The passage is being used by the followers of the society who approach the premises for attending religious discourse, etc. It was further stated that it has been wrongly made an assertion in the plaint that a new passage is constructed. The passage was already there and the plaintiff has never appeared as a witness, in order to prove his case. Moreover, in the sale deeds dated 05.05.1982 and 28.05.1982 which have been produced by none else but by the plaintiff himself, the passage is clearly shown.

In the sale deed dated 05.05.1982, it is shown that there is a road which leads to North View Villa Estate which is the former name of Prem Niketan. Again in the sale deed dated 28.05.1982, this passage has been shown. Moreover, in the sale deed dated 05.05.1982 what was earlier recorded while giving the description of the property was that in the North there is "Wins Cottage" shown as "Kamla Castle" and approach road to hospital. This has been now cancelled and in its place what is shown is Win Cottage main. The trial court has taken this aspect into consideration and has said that there has been overwriting in the sale deed which puts doubt on the veracity of the claim made in the sale deed as well as to the passage.

Moreover, the vendor of the said property Sri Kanwar Ghanshyam Singh was never examined, who could have ascertained that these are his signatures in the overwriting done, nor this fact has been mentioned (i.e. to the overwriting), at the end of the sale deed. The trial court has therefore not believed that the passage was never there. Furthermore there has been a contradiction in the statement given by the Advocate Sri Randeep Singh who is said to be the writer of the sale deed and the property dealer who was Anil Panti, who were both examined. Whereas Anil Panti has said that the sale deed had already been prepared from Delhi lawyers and it has come that Randeep Singh claims to have written the sale deed and who has said that initially the passage was given in the sale deed, but thereafter it was cancelled.

Most important fact is that prosecution witness PW3 i.e. Gopal Krishna Aggarwal who in his examination-in-chief had said that the defendant had never used the passage and the property but thereafter in the cross-examination, he has admitted that there was already a pre-existing passage which he has seen since 1982. This was a very important piece of evidence produced by none else but by the plaintiff himself which shows that there was an already existing passage. On this aspect, the court has not taken very kindly to the claim made by the plaintiff and has given a categorical finding that the suit itself has been filed on wrong facts. There was a pre-existing passage. The plaintiff could still make out a case that the passage is exclusively to be used by him and cannot be used as a common passage, but instead the case which was being set up by the plaintiff was that no passage exists, which has been proved wrong by none other but, inter alia, the witness of the plaintiff.

Therefore as to the determination no. 1, this Court is of the considered view that the findings recorded by the trial court that there was already a passage existing in the area cannot be interfered with as it is based on concrete evidence, both documentary and oral evidence. Moreover, there was a sale deed filed by none other but by the plaintiff which is the sale deed dated 10.10.1941 which has a map attached to it where it has been clearly shown that there is a right of way to North Villa and right North Villa is the property of the defendant. This was enough evidence with the trial court to prove that the property was used as a passage by defendants as well.

The first appeal has no merit and the same is hereby dismissed. The judgment and order dated 15.12.2001 passed by the trial court is upheld.