Om Prakash Gupta vs Hawa Bi (Dead & Deleted)

The appellant/Defendant No.2 has preferred this First Appeal under Section 96 of the Code of Civil Procedure, 1908, (for short ‘the CPC’), challenging the judgment and decree dated 23.02.2018 passed by the Additional Judge to the Court of Upper District Judge, Katghora, Distt. Korba in Civil Suit No.02A/2010, whereby, the suit filed by the plaintiff/respondent No.1 for declaration of title and permanent injunction with regard to the suit property (shop No.16), constructed by respondent No.2/Nagar Panchayat Katghora, has been partially decreed by the trial Court, wherein the learned trial Court declined to declare title of the plaintiff over the suit property, but granted injunction in her favour that, she may not be dispossessed from the suit property except as per the terms of allotment and due process of law.

(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)

Facts of the case, in nutshell, are that plaintiff Hawa Bi filed civil suit stating inter alia that she was carrying hotel business at Bus stand, Katghora, 30-35 years prior to filing of the instant suit. In the year 1995-96, by demolishing her hotel and shops of other persons, Nagar Panchayat, Katghora constructed passengers lounge and shopping complex at Bus stand, Katghora. Under the assurance given by defendant No.1 that, shops will be given to the persons, who are carrying business at Bus stand, the plaintiff along with other persons had handed over their shops for aforesaid construction. After completion of shopping complex, shop No.16, area 17 x12 =204 sq. ft., was allotted to the plaintiff on construction cost of Rs.85,000/- and monthly rent was fixed as Rs.500/-. Thereafter, possession of shop No.16 (henceforth called ‘suit property’) was given to the plaintiff. It is further pleaded that defendant No.1 has executed lease deed in favour of defendant No.2 in respect of suit property whereas, the plaintiff had neither sold nor alienated the suit property to defendant No.2. Aforesaid lease deed has been executed without informing the plaintiff or without her consent, therefore, defendant No.2 has no right over the suit property, which was allotted to the plaintiff under the rehabilitation policy. Earlier the plaintiff had filed civil suit, which was dismissed upto the High Court as it was filed without following the procedure of prior notice to the defendants. Thereafter, the plaintiff filed instant civil suit as defendants are trying to dispossess her from the suit property, therefore, suit was filed by the plaintiff seeking relief of declaration of title over the suit property and also for grant of permanent injunction against the defendant in the enjoyment of peaceful possession of the suit property.

The defendant No.1/respondent No.2 herein filed written statement stating therein that, since the shopping complex in which the suit property, i.e. shop No.16 situates, has been constructed by Nagar Panchayat Katghora, therefore, it is wrong to say that the plaintiff is having title over the suit property. It is further pleaded that, on being application and affidavit given by the plaintiff, suit property was allotted to defendant No.2 with the consent of plaintiff, as she had stated in the application and affidavit that due to financial constrain, she is unable to run shop No.16 and also unable to follow the terms of allotment and due to her financial constrains, she has received Rs.85,000/- from defendant No.2, hence, disputed property may be transferred in his name. Under such application and affidavit given by the plaintiff, lease deed with regard to suit property/shop No.16 was executed in favour of defendant No.2-Omprakash Gupta on 23.10.2002 and thereafter, possession of the shop was handed over to him. It is further stated that monthly rent of the suit property is being paid by defendant No.2 and electricity connection has also been established in the suit property in his name. Since the suit property has been allotted to defendant No.2, therefore, notice had been issued to the plaintiff to vacate the suit property, but she has not vacated it.

Defendant No.2-Om Prakash Gupta has filed written statement along with counter claim stating inter alia that in the year 2002, the plaintiff had submitted application and affidavit before defendant No.1 that she has received an amount of Rs.1 lakh from him, therefore, she has no objection to transfer the suit property (Shop No.16) in his name. Thereafter, defendant No.1 executed lease deed on 23.10.2002 in his favour by granting possession to him. Thereafter, he is paying monthly rent of the shop since October 2002 and electric connection has also been established by him in the shop. He has further pleaded that on being asked by the plaintiff that she want to use the suit property to organise some religious function, defendant No.2 had handed over the possession to her for one month, but taking undue advantage, she refused to return the possession of the shop No.16. Thus, since he has obtained the suit property on lease from defendant No.1 and paying monthly rent, but the plaintiff has illegally occupied the suit property, therefore, defendant No.2 has prayed that, possession of suit property/shop No.16 be granted to him from the plaintiff and since he is suffering loss of Rs.5,000/- per month, therefore, he has further prayed that Rs.40,000/- be granted to him as compensation from January 2011 till filing of the civil suit by the plaintiff, thereafter, Rs.5000/- per month also be granted to him as compensation till handing over the vacant possession of suit property (shop No.16).

Based on the above facts, learned trial Court framed issues and after affording opportunity to the parties to adduce evidence, vide impugned judgment and decree dated 23.02.2018 partly allowed the suit filed by the plaintiff as has been stated in the preceding paragraph and dismissed the counter claim filed by defendant No.2. Being aggrieved by the aforesaid judgment and decree, defendant No.2 has preferred instant appeal.

Learned counsel for the appellant/defendant No.2 would submit that late Hawa Bi /original plaintiff executed an application and affidavit in favour of defendant No.2-Omprakash Gupta stating that though shop No.16 has been allotted in her favour, but she has received the cost of the shop, therefore, she has no objection in executing the lease deed in favour of defendant No.2 in respect of Shop No.16 by handing over possession of the same to him. In this regard, she had executed document (Ex-D/1 to D/4) in favour of defendant No.2 and submitted before Nagar Panchayat Katghora, which has been proved by him and the same has also been admitted by Nagar Panchayat Katghora in its written statement. He would further submit that plaintiff-Hawa Bi had filed an application which is well supported by her affidavit that she had received construction cost of shop No.16 from defendant No.2, therefore, shop No.16 was allotted to him and lease deed (Ex-D/6) was executed by Nagar Panchayat, Katghora in favour defendant No.2. He would next submit that under the aforesaid lease deed, possession of suit property was also given to him, subsequently, as a caretaker and also for the purpose of performing some religious function, as stated by the plaintiff-Hawa Bi, possession of the suit property was temporarily given to her by defendant No.2, later on, she refused to return to him, forcing him to file counter claim against the suit for declaration of title and permanent injunction filed by the plaintiff. It is further submitted that the scope of instant civil suit is only to the extent of examination of the validity of the possession and handing over the suit property under the lease deed to defendant No.2. Process of allotment cannot be examined by the Court below, as nature of the civil suit is of declaration and injunction, therefore, issue to be considered in the instant suit is whether the original plaintiff-Hawa Bi, is legally entitled to obtain or retain her possession over the suit property or not and whether she can be dispossessed by defendant No.2 after execution of the lease deed in his favour. He further submits that, since 2002 till date, defendant No.2 is paying rent and electricity bill in respect of the suit property and at no point of time, any amount has been paid by the plaintiff towards rent or electricity bill to Nagar Panchayat, Katghora, which has also been admitted by defendant No.1 in its written statement, therefore, learned trial Court ought to have held that plaintiff has no legal rights to retain her possession and defendant No.2 is entitled to receive possession of the suit property. Hence, he prayed that decree of possession may be granted in favour of appellant/defendant No.2 by allowing his counter claim and instant appeal.

Per contra, learned counsel appearing for Lrs. of deceased respondent No.1-Hawa Bi would submit that the suit property/shop No.16 was allotted by the Nagar Panchyat to original plaintiff-Hawa Bi on rehabilitation basis through lottery system as per document (Ex-P/1) and after construction of the shop, possession of the shop was handed over to her. He would further submit that Hawa Bi was not informed about the content of Ex-D/1 to D/4, but her signature was obtained on it, therefore, admitting her signature on those documents by her, does not validate those documents. He would further submit that if Hawa Bi had handed over the possession of the suit property or she was not willing to get the possession on it, in such circumstances, Nagar Panchayat ought to have conducted fresh auction for allotment of the shop and without following such provision, the Nagar Panchayat cannot allot Shop No.16 to defendant No.2 and without adhering such procedure, aforesaid shop which was in possession of Hawa Bi, cannot be handed over to defendant No.2-Omprakash Gupta and therefore, judgment and decree passed by the first appellate court is well merited, which is not required to be interfered with in this appeal.

Learned counsel appearing for defendant No.1/ Nagar Panchayat, Katghora would submit that shop No.16 has been allotted to defendant No.2-Omprakash Gupta through lease deed, on being consent application and affidavit filed by plaintiff- Hawa Bi, in his favour and thereafter possession of the shop was handed over to him. Thereafter what happened between the parties, the Nagar Panchayat has no concern. He would further submit that rent of Shop No.16 is being paid by defendant No.2- Omprakash Gupta and electricity connection on it was also in his name.

I have heard learned counsel for the parties and perused the record of the trial Court.

It is not in dispute from the pleading of the parties that suit property/shop No.16 was allotted to plaintiff Hawa Bi on the basis of rehabilitation scheme as after demolition of her hotel (shop) and other shops of the various persons, shopping complex was constructed by Nagar Panchayat, Katghora, from which, shop No.16 was resolved to be allotted to Hawa Bi/plaintiff in a meeting held on 13.4.2000 between Sub Divisional Officer (Revenue), Chairman and Counsellors of Nagar Panchayat Katghora, vide Ex-P/9.

Plaintiff Hawa Bi (PW-1) and her son Inshan Ali (PW-2) and witnesses Rahim Khan (PW-3) have also stated in their deposition that suit property was allotted to Hawa Bi under rehabilitation scheme and construction cost of the shop was Rs.85,000/-, but the plaintiff has not filed any allotment order or lease deed executed by Nagar Panchayat in her favour. Except Ex-P/9, which seems to be a note sheet, the plaintiff could not file/prove any other document to prove the fact that shop No.16 was allotted to her. It seems that in the meeting held on 13.4.2000, Nagar Panchayat Katghora had resolved to allot shop No.16 to Hawa Bi and other shops to other persons, who have been named in aforesaid note sheet (Annexure-P/9), but since the plaintiff has failed to prove any order of allotment or execution of the lease deed between Nagar Panchayat Katghora and the plaintiff Hawa Bi, therefore, only on the basis of Ex-P/9, no legal right accrued in favour of the plaintiff Hawa Bi in respect of the suit property/shop No.16.

It has been deposed by the plaintiff-Hawa Bi and her witnesses that suit property was allotted to her on construction cost of Rs.85,000/-, which she had deposited with Nagar Panchayat, Katghora, but the plaintiff herself has shown her ignorance that Rs.85,000/- was deposited by Omprakash Gupta to Nagar Panchayat Katghora, whereas, she herself has admitted aforesaid facts in her affidavit Ex-D/1, she has also admitted her signature on it. She has also not filed any receipt to prove the fact that she has deposited monthly rent of the suit property/shop No.16. Thus, except Ex-P/9, there is no other document to prove the fact that, suit property was allotted to plaintiff-Hawa Bi.

Defendant No.2-Omprakash Gupta has not only pleaded but he has also deposed in his deposition that complete cost of Rs.85,000/- was deposited by him against shop No.16 and plaintiff-Hawa B herself had given applications (Ex-D/3 & D/4) along with affidavit (Ex-D/1 & D/2) stating therein that due to financial constrain, she was unable to pay the rent of the shop therefore, she had given her consent to transfer shop No.16 in favour of defendant No.2-Omprakash Gupta. He has also deposed that after giving aforesaid applications (Ex.D/3 & D/4), lease deed (Ex-D/6) was executed by defendant No.1 Nagar Panchayat Katghora in his favour. Plaintiff-Hawa Bi herself has admitted her signature on Ex-D/1 to D/4, she has also admitted in her cross-examination para 16 & 17 that she has left the shop and she is not running it. Defendant-Omprakash Gupta has also filed receipts (Ex-D/8 to D/17) with regard to payment of monthly rent of shop No.16 and electricity Bill (Ex-P/19 to P/28). He has also filed Ex-D/5 along with list of monthly rent (Rs.500/-) of shop No.16 issued by Nagar Panchayat Katghora, which shows that monthly rent of Shop No.16 is being deposited by defendant No.2 from October 2002 to February 2009. Aforesaid documents proved the fact that although suit property/shop No.16 was resolved to be allotted to Hawa Bi in the meeting dated 13.4.2000 (Ex-P/9) of Nagar Panchayat, Katghora, but on the basis of written consent given by her through Ex-D/1 to D/4, lease deed Ex-D/6 was executed in favour of defendant No.2-Omprakash Gupta with the consent of plaintiff-Hawa Bi. Thus, on strength of oral and documentary evidence, it is proved that plaintiff-Hawa Bi has no legal rights over the suit property/shop No.16, rather since the lease deed has been executed by Nagar Panchayat Katghora in favour of defendant No.2, with the consent of Hawa Bi, therefore, defendant No.2 has accrued legal right on it.

Learned trial Court has held that suit property has been allotted to defendant No.2 vide lease deed (Ex-D/6) dehoring the provisions of Chhattisgarh Nagar Palika Adhiniyam 1961 and Chhattisgarh Nagar Palika Achal Sampathi Namantharan Adhiniyam 1996, but as has been observed herein above that legal right of Hawa Bi was not created over the suit property, and further, lease deed was executed in favour of defendant Omprakash Gupta with consent of plaintiff Hawa Bi, therefore, execution of the lease deed in favour of defendant No.2 cannot be held illegal, hence, finding recorded by learned trial Court in this regard is found to be perverse and illegal.

Thus, as per the appreciation of the evidence available on record, as discussed above, it is found proved that the original plaintiff-Hawa Bi/her Lrs. has no legal rights over the suit property, hence, they are also not having any right to have or retain possession on it and, therefore, injunction granted by learned trial Court, is perverse and illegal, and the same is deserves to be set aside.

Defendant No.2 has filed counter claim that suit property has been transferred in his name with the consent of the original plaintiff Hawa Bi, pursuant to that, lease deed (Ex-D/6) has been executed by Nagar Panchayat Katghora in favour of defendant No.2 Omprakash Gupta, further, he is paying monthly rent of Rs.500/-since October 2002 to till filing of the suit and thereafter also. Electricity connection has also been installed in his name in the suit property. In short, he is having lease right on it therefore, he is entitled to get the possession of the suit property (shop No.16) from the plaintiff/her Lrs.

Defendant No.2 has also sought relief for damages to the tune of Rs.5,000/- per month from January 2011 till filing of the suit, i.e. Rs.40,000/- and thereafter as compensation till recovery of the possession of the suit property, but he has not proved the fact that how, he is suffering loss of Rs.5000/- per month due to not being occupied on the suit property, rather it has been proved that he is paying monthly rent of Rs.500/- for suit property since October 2002 therefore, defendant Omprakash Gupta is entitled to receive the damages from plaintiff/her Lrs., who are having illegal possession over the suit land, to the tune of Rs.500/- per month from October 2002 to till filing of the civil suit by the plaintiff and he is also entitled to get the damages/means profit to the tune of Rs.500/- per month from filing of the suit by the plaintiff till recovery of possession of suit property.

Accordingly, judgment and decree passed by learned trial Court granting injunction in favour of the plaintiff is set aside, resultantly, suit filed by the plaintiff is dismissed, counter claim filed by the appellant/defendant No.2-Omprakash Gupta is allowed to the extent indicated herein above and the decree is granted in his favour as under:-

(a) The plaintiff/her Lrs. are directed to handover possession of the suit property (shop No.16) situated at shopping complex, Bus stand Katghora to appellant/defendant No.2-Omprakash Gupta.

(b) Defendant No.2-Omprakash Gupta is also entitled to receive the damages from the plaintiff/her Lrs., who are occupying the suit property, to the tune of Rs.500/- per month from October 2002 till filing of the instant suit and thereafter till handing over the possession of the suit property/shop No.16 to defendant No.2 Omprakash Gupta.

The appeal is allowed accordingly to the extent indicated hereinabove.

A decree be drawn accordingly.