P.N. Singh vs H.N. Singh

Prakash Krishna, J.—This is Defendant''s second appeal u/s 100 CPC against the concurrent judgments of the two Courts below in O.S. No. 1030 of 1996, decreeing the suit for possession in respect of a portion of house No. K.D. 72, Kavi Nagar, Ghaziabad described by letters A, B, C, D, E, F in the plaint map which consists of three rooms and other accommodations, for recovery of pendente lite and future damages till the date of actual vacation at the rate of Rs. 2,500/- per month.

The background facts may be noticed in brief.

The parties are brothers. The Plaintiff Respondent is an Ex-army personnel being a retired Colonel of the Indian Army. While the Defendant Appellant has also retired who was in service of U.P. Police.

The above mentioned suit was instituted by the Plaintiff Respondent (hereinafter referred to as the Respondent) on the pleas inter alia that the Plaintiff obtained a lease deed in respect of plot No. K.D. 72, Kavi Nagar, Ghaziabad from Ghaziabad Vikas Pradhikaran on 26th of February, 1975. He got the map sanctioned for raising a house in the year 1976 and the house was raised thereafter. A sum of Rs. 9,999.90 was paid by him to Ghaziabad Development Authority as premium. A sum of Rs. 90,000/ - was spent in raising the construction. To meet the said expenses, he took a loan of Rs. 70,000/ - from his employer namely Army Headquarter, New Delhi by giving the property in dispute as security. The said loan amount was paid in instalments by way of deduction from his salary up to the year 1995. The house in question is his self acquired property. A portion of it was let out from time to time to different tenants.

In the month of May, 1992 the Defendant who was in police service was transferred to District, Meerut. He approached the Plaintiff for permission to live in a part of the said house for a period of three months and was permitted by the Plaintiff to occupy three rooms attached bathroom, latrine, store room and Chowk. The said portion was lying vacant at that time. However, after the expiry of aforesaid period of three months, the Defendant refused to vacate the disputed accommodation. The possession of Defendant was permissive possession with the permission of Plaintiff and therefore, the licence/permission was revoked by giving a notice. But the Defendant failed to vacate it even thereafter.

The suit was contested by the Defendant Appellant (hereinafter referred to as the Appellant) on the pleas inter alia that the property in question is not the exclusive property of the Plaintiff but it is Joint Hindu Family property wherein he has a right. He is in occupation of the property in dispute not as a licensee but as a co-owner in his own right. Plea of limitation that the suit is barred as it was filed beyond three years was also set out in the written statement. It was stated that Dashrath Singh, the father of parties, was the Karta of the family and he got the land in dispute allotted in the name of the Plaintiff as at that relevant point of time Dashrath Singh who was also in police service was facing vigilance inquiry. Thus, The Plaintiff is not real owner of the property in question. He further claimed that he is in occupation of the property in dispute since the year 1976 i.e. immediately after its construction.

The parties led evidence oral and documentary which finds mention in detail in the judgment of the trial Court. The trial Court framed as many as ten issues. It found that it is the Plaintiff who is the exclusive owner of the property in question and the Defendant is its licensee over the disputed part as described in the plaint. The Plaintiff is entitled to get the possession from the Defendant. On other issues it was found that the suit is not barred by time. It held that the Plaintiff is entitled to get mesne profit, pendentelite and future at the rate of Rs. 2500/ - per month and consequently it decreed the suit by its judgment and decree dated 16.1.2003. The Defendant carried the matter in appeal being civil appeal No. 20 of 2003 before the Court below who by its judgment and decree dated 6th of November, 2004 confirmed the judgment and decree of the trial Court.

On the following two substantial questions of law the above appeal has been admitted:

Whether, the Courts below committed manifest error of law in giving a finding, that Defendant/Appellant failed to prove any nucleus of a joint hindu family fund, in as much as this finding arrived at by excluding the consideration of the joint family agricultural income from the joint family property?

Whether, the trial Court was legally justified to ignore from its consideration the aforesaid evidence by taking the view that if the agricultural property was jointly recorded in the name of the family members, there was no reason that property in dispute should also have been jointly recorded and the Defendant/Appellant would have taken steps to get the same mutated in their names?

Heard Sri Manoj Misra and Sri Vikas Budhwar, learned Counsel for the Appellant and Sri Amit Krishna, learned Counsel for the Respondent.

The only question involved in the present appeal is whether the Plaintiff is exclusive owner of the property in question or it is a joint hindu family property as alleged by the Appellant.

Before adverting to the substantial questions of law referred to above on which appeal has been admitted, it is desirable that the findings recorded by the two Courts below on the question of ownership may be recapitulated. It is not in dispute that it is the Plaintiff in whose favour the allotment of land in question was made by the Ghaziabad Development Authority. It is also not in dispute that it is the Plaintiff who had taken a loan of Rs. 70,000/ - from his employer namely Army Head Quarter. The Plaintiff was employed as Army Officer and was unmarried at the time when the allotment was made in his name. It is also not in dispute that Dashrath Singh, father of the parties was also in police service who had, as found, ten children. The family of Dashrath Singh consisted of six sons, two unmarried daughters, himself and his wife.

The case of the Appellant is that Dashrath Singh was Karta of the family and was interested to have some property at Ghaziabad in the year 1964-1965. It has also come in evidence that except Dashrath Singh and the Plaintiff other members of the family including the Appellant had no source of income. The case of the Appellant is that Dashrath Singh did not apply for allotment of the land in question in his name as some vigilance inquiry was pending against him. However, the Defendant Appellant could not produce, as found by the Courts below, any evidence to show that any such vigilance inquiry was pending against Dashrath Singh. At the relevant point of time, when the land was allotted and the house was raised, the income of Sri Dashrath Singh was not so much to enable him to supply the fund either towards the payment of premium or towards the cost of construction. He was posted as Police Inspector in the year 1964. While the Plaintiff was Second Lieutenant in the Army and was unmarried.

The Court below after making an analysis of the evidence led by the parties reached to the conclusion that the financial capacity of Dashrath Singh was not so good in comparison to the Plaintiff who was Second Lieutenant to contribute any fund towards the payment of premium for the allotment of the land or towards the expenses for raising construction. Dashrath Singh had a large family to support. No attempt was made by the learned Counsel for the Appellant to challenge the aforestated findings of fact concurrently recorded by the two Courts below.

It was also not disputed that the Plaintiff took a house loan of Rs. 70,000/ - from the Army Headquarter and repaid the amount in instalments. It has been found by the trial Court that in the year 1978-79 when the construction was completed, it was a big amount.

The Defendant Appellant could not dare to deny the fact that the Plaintiff took the house loan of the above amount. His case that taking of loan is not sufficient to show that the said amount was invested in raising the house in question, has been rejected by the two Courts below and rightly so in absence of any contrary evidence. The Courts below have considered the attending facts and circumstances of the case that neither Shri Dashrath Singh, father of the parties, nor other brothers and sisters have come forward to stake their claim of co-ownership in the property in dispute. Dashrath Singh was alive but he was not examined by any party as he was quite old and was unable to move on account of paralysis in his legs.

It was also argued before the Courts below that building material was purchased by the other brother of the parties namely Sri B.N. Singh. He is not a party in the proceeding and his application for impleadment has been rejected. The Plaintiff has pleaded and proved that he was posted at different places outside the District Ghaziabad in connection with his services and used to give instruction to his brother B.N. Singh and his brother-in-law to supervise the work. The said stand has been reiterated by the Plaintiff in his deposition as PW/1. The statement of the Plaintiff in the absence of any contrary material has been believed by the two Courts below. Some documents relating to grant of electric bills were produced by the Defendant Appellant to show that name of B.N. Singh is recorded therein. It has been rightly held that even if electric bill is in the name of particular person, it does not mean that he has become owner of the property in question. Even otherwise also, the Plaintiff produced the document Nos. 202C and 203C to show that the electric bill is in his name. Name of any person recorded in the electric bill has got hardly any relevance with regard to the determination of issue relating to title of an immovable property.

The upshot of the above discussions is that, indisputably, the allotment of land over which the house in dispute is standing is in favour of the Plaintiff who got the map sanctioned from the Ghaziabad Development Authority and raised the construction thereon after taking loan from his employer. The plea that Dashrath Singh had made contribution in payment of premium etc. has been rightly negatived by the two Courts below. It was not the case of Defendant Appellant at any stage that he made any contribution towards the funds to purchase the land or towards the construction of the house. It has been found by the Courts below that the salary of Dashrath Singh, father of the parties, was not sufficient to enable him to pay the premium for the allotment of land to the Ghaziabad Development Authority.

At this juncture, it was half heartedly argued by the Defendant that allotment was obtained in the name of the Plaintiff for getting preferential allotment as he was in Indian Army but no such document to establish any preferential treatment to such person like the Plaintiff could be filed by the Appellant herein.

Now, the two substantial questions of law referred to above are up for consideration.

Grievance of the Appellant is that the finding recorded by the Courts below that the property in dispute was not purchased out of nucleus of joint Hindu family fund is vitiated as they have excluded the consideration of joint family agricultural income from joint family property.

The Appellant in para 44 of the affidavit filed in support of the stay application has stated that on 16th of December, 2002 he filed three documents in the trial Court i.e. Khatauni, Khata Nos. 38 and 51, Naksha Jot Chakbandi to prove that there was a joint agricultural land from which there was a joint income.

In reply, it has been stated in the counter affidavit that the aforestated documents were not taken on record at any stage either by the trial Court or by the Court below. These documents were sought to be filed through an application after the close of evidence as also after the close of argument of the Plaintiff before the trial Court. It has been stated that the said application for admission of document was filed on 16th of December, 2002 and by that date, the arguments of the Plaintiff had concluded and the counsel for Defendant had commenced his arguments. It was filed in violation of the mandatory regulations of Order 13 Rule 10 CPC and the application was not even entertained by the trial Court. Further, on merit, it has been stated that these documents pertain to the year 2000-2006. Whereas the plot in question was allotted in the year 1968 and the allotment was applied in the year 1965. The construction was completed during the year 1977-1979. Further, it has been stated that the area of alleged agricultural land is too small to provide any nucleus to acquire any property. Further, there is nothing on record to show that the agricultural land was ancestral property of the parties.

The Appellant has miserably failed to controvert or dispute the aforesaid allegations in his rejoinder affidavit. He has dealt with the matter in paragraphs 39, 40 and 41 of the rejoinder affidavit and gave a vague reply that these documents were well within the purview of the law and on 16th December, 2002 when they were filed, arguments were not concluded on that date and hearing took place on 16th of January, 2003. The trial Court accepted the documents on record and it was duty bound to consider the said documents. Nothing substantial has been stated in para 40 except that the contents of para 41-C and 41-D of the counter affidavit are not admitted. However, in para 41 it has been stated that the Appellant has proved the fact in detail in his statement.

From it, it is clear that the documents relating to agricultural land, referred to above, are not part of the record and that is why no such plea was put forth before the Courts below.

Even otherwise also the aforesaid plea of the Appellant is liable to be rejected on ground more than one. Firstly, the aforesaid documents were produced during the course of the arguments after the close of evidence. The learned Counsel could not point out from the order sheet or otherwise that the trial Court had granted permission to take the aforesaid documents on record. Had it been so, an opportunity would have been required to be given to the Plaintiff to file evidence in rebuttal. Order sheet shows that the arguments were heard on various dates thereafter. Consequently, it follows that the said documents were not taken on record. Secondly, it is a case of deliberate attempt on the part of the Appellant to mislead this Court by making a misleading statement of fact in the affidavit. An impression was given by the Appellant at the time of admission of the appeal that certain piece of evidence (relating to agricultural income) was not considered by the trial Court and this led to the passing of admission order, admitting the appeal. While, as a matter of fact, in absence of any order permitting the Appellant to file the documents in question after the close of evidence during the course of hearing, cannot be legally treated as a document on record. Thirdly, there appears neither any pleading nor any evidence to prove that the said agricultural land was in existence in the relevant years i.e. year 1965 when application for allotment was filed or in the year 1968 when the land was allotted or during the years 1977-1979 when the construction of the house was completed. Fourthly, the Defendant Appellant has not pleaded, at least, it was not shown that there was nucleus of joint Hindu family fund in the form of agricultural income out of which the land in question was obtained.

In absence of any such pleading, the filing of certain document without the leave of Court and building up of an argument thereupon is not legally tenable. No fault can be found out in the judgment of the two Courts below if they have not considered the aforesaid three documents as legally the Defendant Appellant was not permitted to place them on record or in other words, these documents were not up for consideration to address the issue. Fifthly, the following specific averment in the counter affidavit of the Plaintiff "Suffice it to say that the area of the agricultural land is too small to provide any nucleus to acquire any property...." has not been disputed, denied or contradicted in the rejoinder affidavit. Even if it is admitted that the family possessed some joint property, it has to be proved that from the income of the said joint property, the property in dispute could have been acquired. In order to give rise to the presumption of nucleus must be such that with its help the property claimed to be joint, could have been acquired. It is essentially a question of evidence. The party who is claiming such nucleus has to adduce sufficient evidence to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisition could have been made is one of the fact depending on the nature and extent of the nucleus, as laid down by D.F. Mullah in his BOOK Hindu Law, 1970th Edition at page 261.

In the case on hand, evidence is lacking to show that Dashrath Singh had any bank account to establish the availability of fund with him at the relevant point of time. No attempt has been made to establish what was the monthly income of Dashrath Singh and or his monthly savings. There is nothing on record to show the availability of fund with him in any form whatsoever. At the same time, mere possession of an agricultural land in absence of any evidence of any income from it and the savings, if any, is of no help to the Defendant Appellant even if for the sake or argument, it is presumed that Dashrath Singh had any such agricultural land at the relevant point of time. In other words, it is a case of total lack of evidence with regard to the saving from agricultural operation as also of nucleus of joint Hindu Family fund.

There is no material on record to show that attention of either of trial judge or of appellate Court was drawn by the Appellant to show that any such argument that family had such agricultural income from which the property in dispute could have been purchased was drawn. I examined the memo of first appeal of the Court below. Even, no such objection has been taken by the Appellant therein. Evidently, it follows that no such argument was raised before the Courts below and as such, I do not find any fault in the judgments appealed.

The Appellant having entered into the permissive possession of the property in dispute, has become dishonest. The Plaintiff acceded to the request of the Defendant Appellant who happens to be his brother to occupy the disputed portion temporarily for a period of three months has involved the Plaintiff in a long drawn legal battle by abusing the confidence and trust reposed in him by the Plaintiff (brother). Neither equity nor law is in favour of such person who deserves no sympathy.

Before parting with the case, it may be noted that the plea raised by the Defendant Appellant that the suit is barred by time has been negatived by the two Courts below. But the above appeal was not admitted on the said issue nor during the course of argument any attempt was made by the learned Counsel for the Appellant to argue out the said point of limitation. The plea regarding limitation has, thus, attained finality.

In the result, the aforesaid two substantial questions of law are decided as above, by holding that the Courts below have not committed any error of law in recording their findings holding that the Plaintiff is the exclusive owner of the property in dispute. The Defendant Appellant has failed to prove that the family had any agricultural income to form a nucleus to purchase the property in dispute from the joint family fund. The appeal is, thus, concluded by findings of fact.

Further, it may be noted that on the stay application, eviction of the Appellant was stayed subject to payment of damages at the rate of Rs. 10,000/ - per month commencing from July, 2006, vide order dated 11th of July, 2006. The amount so deposited shall be paid over to the Plaintiff Respondent forthwith without any security. He is also entitled to recover the pendentelite and future damages under the decrees of the Courts below.

Time to vacate the disputed accommodation upto 31st of December, 2010 is granted subject to the fulfilment of the following conditions:

The Appellant shall file an undertaking on affidavit within fifteen days before the trial Court that he will vacate the disputed accommodation and will remove his effects from property No. K.D. 72, Kavi Nagar, Ghaziabad on or before 31st of December, 2010 without creating any third party interest by giving peaceful vacant possession to the Plaintiff Respondent.

The Appellant shall deposit the damages, pendente lite and future as ordered under the decree and also as per order of this Court dated 11th of July, 2006 for the period up to December, 2010 after adjusting the amount already deposited within fifteen days before the trial Court.

It is further provided that if the Defendant Appellant fails to vacate the disputed accommodation on or before 31st of December, 2010, he shall be liable to pay the damages at the rate of Rs. 25,000/ - per month w.e.f. 1st of January, 2011 to the date of actual vacation. The amount of damages has been fixed looking to the fact that the Appellant is in occupation of three rooms set at Kavi Nagar, District Ghaziabad which has great potential value and the prices of the immovable property in the city of Ghaziabad have sky-rocketed during all these years.

In the result, the appeal is dismissed with costs.