Pritama Devi vs Soma Devi

Dharam Chand Chaudhary, J.—The defendants in the trial Court are in the second appeal. They are aggrieved by the judgment and decree dated 11.12.2001 passed by learned District Judge, Mandi, in Civil Appeal No. 34 of 1999 (1998) reversing thereby the judgment and decree dated 17.9.1994, passed in Civil Suit No. 24/98 (94), by learned Sub Judge 1st Class, Court No. 1, Mandi and decreed the suit.

The appeal has been admitted on the following substantial questions of law:

1) Whether the lower appellate Court has in excess of jurisdiction reversed the findings of the trial Court on issue No. 8 by misreading the material evidence, i.e. Ext. DW-3/A? Are not findings of the lower appellate Court holding the defendant-appellants not to be in possession at the relevant time, against the very recital of Ext. DW-3/A, which was conclusively proved without any rebuttal?

2) Whether the lower appellate Court has assumed the excessive jurisdiction by sitting as an appellate Court over the orders passed by the defendant No. 1 allotting the shop in question to defendant No. 2/appellant? Are not the provisions of H.P. Municipal Corporation Act, 1994 ignored, which provides a hierarchy of the authorities, who could exercise the jurisdiction to look into the validity of the allotment beyond the jurisdiction of the civil Court?

3) Whether the lower appellate Court has acted in an illegal manner by misreading the statement of DW-1 and holding that the proper enquiry was not conducted in the presence of the predecessor in interest of the plaintiff-respondents thereby declaring the agreement DW-3/A to be void and consequently holding the allotment order to be against law, are not such findings rendered by lower appellate Court erroneous, illegal and perverse?

4) Whether it was permissible for the lower appellate Court to have based the findings by relying upon observance of the trial Court made during the interim proceedings, which stood modified by the revisional Court, is not the impugned judgment and decree incapable of being sustained on this score?

The subject matter of dispute is shop No. 53 in Sunkan Garden popularly known Indira Market, Mandi, District Mandi, HP. The predecessor-in-interest of the respondents herein, Shri Hukam Chand, plaintiff in the trial Court, was carrying on his business on road-side at Seri Bazar, Mandi town on Teh-Bazari, i.e. payment of rent to defendant No. 1, Municipal-Council, Mandi. Later-on he was allowed to raise a stall (Khokha) thereon. He raised the construction of Khokha and started running his business there. The first defendant-Municipal Council with a view to beautify and ease out congestion, decided to accommodate the deceased plaintiff and other similarly situated persons carrying on their business in the Khokhas in newly constructed Indira market Sunkan Garden, Mandi town. On allotment of shops in newly constructed Indira Market, the deceased plaintiff was allotted shop No. 53. He put his own lock after allotment and later on when approached the first defendant to make deposits of certain charges, informed that the allotment of the shop in his favour was cancelled and that the same has been allotted to Smt. Pritama Devi none-else but his sister-in-law (Bhabhi). The deceased plaintiff Hukam Chand against such action on the part of defendant No. 1-Council and allotment of shop No. 53 to defendant No. 2, one of the appellants herein, filed suit for permanent prohibitory and mandatory injunction on the grounds that he remained in possession of the Khokha he raised over the space provided by defendant No. 1-Council in Seri Bazar, Mandi for a period over 30 years on Teh-Bazari, paid rent, electricity and other charges throughout and that the allotment of shop No. 53 in his favour could have not been cancelled unilaterally on false representation made by defendant No. 2, as according to her, he never delivered the possession of the Khokha to her.

Defendant No. 1-Municipal Council in the written statement has admitted that the deceased plaintiff Hukam Chand was running shop in Seri Bazar, Mandi and that consequent upon the decision to rehabilitate the persons similarly situate to deceased plaintiff in Indira Market Sunkan Garden, Mandi town, he was allotted shop No. 53, however, on the representation made by second defendant the allotment of shop in question in favour of the plaintiff was cancelled because during the course of enquiry conducted in the matter the plaintiff was found to have delivered the possession of the Khokha in Seri Bazar long back to defendant No. 2 on receipt of Rs. 10,000/- consequent upon agreement dated 17th December, 1989 (Ext. DW-3/A).

Defendants No. 2 and 3 in separate written statement while admitting that deceased plaintiff Hukam Chand was running a shop adjoining to their shop in Seri Bazar, later-on entered into an agreement Ext. DW-3/A and thereby on receipt of Rs. 10,000/- delivered the possession thereof to defendant No. 2. Thereafter on and with effect from 17th December, 1989 he never remained in possession thereof. According to them, he was not entitled to the allotment of any shop in Indira Market, Sunkan Garden, Mandi. Therefore, on the representation they made, the allotment made to him was rightly cancelled and the said shop has rightly been allotted to defendant No. 2.

Learned trial Court framed the following issues:

1) Whether Shop No. 53 in the Sunkan Garden Complex was allotted to the plaintiff in lieu of Khokha earlier existing in Seri Bazar Mandi, as alleged? OPP.

2) Whether allotment to the defendant No. 2 has wrongly been made by the defendant No. 1 of the Shop No. 53, as alleged? OPP.

3) If issues No. 1 and 2 are proved in affirmative, whether the plaintiff is entitled for relief of mandatory injunction as prayed? OPP.

4) Whether suit is bad for notice u/s 453 of Municipal Act, as alleged? OPD-1.

5) Whether the suit is not maintainable in the present form? OPD.

6) Whether the suit has not been valued properly for the purpose of court fee and jurisdiction? If so what is the correct valuation? OP Parties.

7) Whether the plaintiff has got no locus stand to file the present suit? OPD.

8) Whether the stall of the plaintiff had been transferred vide an agreement to the defendant No. 2 and the plaintiff was not in possession at the time of rehabilitation, as alleged? OPD.

9) Relief.

After holding full trial, the trial Court has concluded that deceased plaintiff Hukam Chand was not in possession of the shop (Khokha) and rather delivered the possession thereof to defendant No. 2 for consideration, i.e., Rs. 10,000/- pursuant to agreement Ext. DW-3/A, therefore, according to the trial Court, he was not entitled to allotment of any shop in Indira Market Sunkan Garden, pursuant to the decision taken by defendant No. 1 to rehabilitate the persons carrying on business in Seri Bazar, Mandi. The suit, therefore, was dismissed.

In appeal, learned District Judge on appreciation of the evidence available on record, has allowed the appeal and decreed the suit with the following observations:

"According to the learned trial Court there is no specific evidence on the record which could prove as to from which period the plaintiff continued in the possession but there is no cogent and reliable evidence to show that the plaintiff had relinquished the possession of the stall in favour of the defendants after the agreement or prior to that day. The learned trial Court had been swayed in holding the allotment in favour of the defendants valid simply on the basis of the agreement executed by the plaintiff in favour of defendant No. 2. The said agreement was sought to be proved from the statement of one of the witnesses mentioned above who had nowhere stated that the plaintiff signed in his presence or that it was read over to him or that the money was paid in his presence. No definite finding in my opinion could have been given by the learned trial Court in favour of the defendants simply on the basis of the agreement in question which cannot be said to be a valid agreement in the eye of law. The Municipal Council had allowed the plaintiff to run a Khokha on the land belonging to the Municipal Council and neither the property was owned by the plaintiff, nor he was a licencee and no inherent right was there in the plaintiff to dispose of the said land or Khokha in favour of any person. The rights of the plaintiff were admitted by the defendant No. 1 when to rehabilitate such persons a scheme was formulated and they agreed to allot the land in the new Sunkan Garden may be so that the public street has to be got evicted from such persons who were running the shop by raising Khokhas since long. It is not disputed that defendants No. 2 and 3 were allotted stall No. 52 and or other stall and they stood rehabilitated in lieu of their possession in Seri Bazar. However, can it be said that the plaintiff also stood rehabilitated in view of his long possession by allotment of a shop in Sunkan Garden, the answer is ''No''. the scheme to rehabilitate such person was framed so that they can earn their livelihood and not that a person who purchased the Khokha belonging to the Municipal Council and he was to be given an additional shop in addition to the one he had got in lieu of his possession in Seri Bazar. In my opinion by no stretch of imagination the defendants No. 2 and 3 could be allotted another shop on the basis of the agreement executed by the plaintiff in their favour which was a void agreement and either the plaintiff was entitled to the allotment or in case he had left the possession long ago, the shop was to be allotted by the Municipal Council may be by public auction so that the amount goes to the public funds. However, the defendants No. 2 and 3 had no right to claim additional shop in Sunkan Garden simply on the basis of the agreement in their favour or claim that they were in possession of the said Khokha. The plaintiff had right on the basis of Teh Bazari fee to claim allotment of a shop in Sunkan Garden and there is no cogent and reliable evidence to show that he had relinquished the possession or that he was not in possession when an inquiry was held. His name figured in the proposed list of allottees as per defendant No. 1''s pleadings and no proper inquiry was held by the defendant No. 1 to hold that the plaintiff had relinquished the possession since long. Therefore, the plaintiff and after his death his wife and sons were entitled to the allotment of the shop in question in their favour. Therefore, in equity as well as in law the present plaintiffs who are legal heirs of the plaintiff Hukam Chand were entitled to the allotment of the shop in their favour."

The legality and validity of the judgment and decree passed by learned lower appellate has been assailed in this appeal on the grounds inter alia that the same is not based upon the proper appreciation of evidence available on record and rather well reasoned judgment and decree passed by learned trial Court has erroneously been quashed and set aside. In this behalf, it has further been submitted that cogent and reliable evidence produced by the defendants and even the own evidence produced by the plaintiffs is suggestive of that the deceased plaintiff Hukam Chand never remained in possession of the Khokha consequent upon delivery of its possession to defendant No. 2 on payment of Rs. 10,000/- by her to him. Such evidence allegedly remained un-rebutted and the plaintiffs have no locus-standi to institute the suit. There being no error apparent on the record and the judgment passed by learned trial Court based upon the proper appreciation of evidence available on record should have not been interfered with.

Shri Bhupender Gupta, learned Senior Advocate assisted by Shri Ajit Jaswal, Advocate, has argued that the plaintiffs never challenged the agreement Ext. DW-3/A, therefore, learned lower appellate Court should have relied upon the same to arrive at a conclusion that it is defendant No. 2 who was in possession of the Khokha in dispute on its transfer to her by deceased plaintiff Hukam Chand on receipt of consideration, i.e., Rs. 10,000/-. According to Mr. Gupta, the evidence available on record including that produced by the plaintiffs amply demonstrates that it is defendant No. 1, who was in possession of the Khokha in Seri Bazar, which initially was that of deceased plaintiff Hukam Chand.

On the other hand, Shri Sanjeev Kuthiala, Advocate, appearing on behalf of the respondents-plaintiffs, has contended that learned lower appellate Court has not committed any illegality or irregularity in discarding the agreement (Ext. DW-3/A), which neither was registered nor proved in accordance with law. The possession over the Khokha in question, according to Mr. Kuthiala, is proved to be that of the plaintiffs. It has further been urged that the allotment of shop No. 53 in favour of deceased plaintiff Hukam Chand could have not been cancelled by the first defendant unilaterally and also that the agreement Ext. DW-3/A not proved on record and rather surrounded by suspicious circumstances, was rightly ignored by learned lower appellate Court. It has also been pointed out that since the first defendant, i.e., Municipal Council, Mandi has not preferred any appeal against the judgment and decree passed by learned lower appellate Court, therefore, the findings against the said defendant has attained finality and as such taking a contrary view by this Court would amount to passing of two judgments in the same case.

On analyzing the rival submissions viz-a-viz the evidence available on record and also the legal questions need adjudication, it is crystal clear that pivotal point is Ext. DW-3/A because challenge to the impugned judgment and decree is only on the ground that learned lower appellate Court was not justified in discarding this document, which according to the appellants-defendants being not challenged by the respondents-plaintiffs, is fully proved on record and as such allotment of shop No. 53 in Indira Market, Sunkan Garden was rightly made in favour of the said defendants.

This Court is not persuaded at all by the grounds so raised in the appeal for the reason that the land was that of Municipal Council over which not only deceased plaintiff Hukam Chand, but defendants No. 2 and 3 and others had also raised construction of Khokhas to earn their livelihood by running petty business. There is no dispute qua this part of the plaintiffs'' case. The agreement Ext. DW-3/A even if believed to be executed legally and validly on 17th December, 1989, it only pertains to transfer of debris (Malwa) of the Khokha, which was in the possession of deceased plaintiff Hukam Chand. Cogent and reliable evidence showing that it is defendant No. 2 remained in possession of the said Khokha, however, is lacking. The evidence rather reveals that it is Hukam Chand, who remained in possession of the said Khokha. It is he who paid the use and occupation charges to defendant No. 1. No doubt, Exts. DX and DY have been produced in evidence, however, nothing can be made out therefrom that the same pertain to the disputed Khokha being in the name of Roop Lal, the husband of defendant No. 2. The electricity bills mark Y/1, Z/1, Z/2, Z/3, Z/4 and Y/2 are also in the name of Shri Roop Lal, her husband. Since Shri Roop Lal was real brother of Hukam Chand and had Khokha adjoining to that of Hukam Chand, therefore, these documents may be of that Khokha. The photographs Ext. D3W2/A, D3W2/B and D3W2/C do not substantiate the claim of defendant No. 2. Learned lower appellate Court, therefore, has not committed any illegality or irregularity while arriving at a conclusion that the plaintiffs never relinquished the possession of the stall in favour of defendants No. 2 and 3. The execution of the agreement is not at all proved in accordance with law. The mere existence of agreement cannot be taken to believe that the plaintiffs had delivered possession of the Khokha to defendant No. 2 on receipt of money without there being any corroboration thereto by other evidence which can be said to be cogent and reliable.

The land was provided to the plaintiffs by defendant No. 1 and also to defendants No. 2 and 3. Deceased plaintiff Hukam Chand was not owner of the land, therefore, how he could have sold the Khokha situated thereon or delivered the possession thereof to defendant No. 2. There is no controversy qua allotment of shop No. 53 to the plaintiffs by defendant No. 1. Such allotment was required to be made in favour of the plaintiffs for the reason that their predecessor Hukam Chand had a Khokha in Seri Bazar and under the policy decision taken by first defendant he was entitled for the allotment of Khokha in Indira Market. DW-1 Narinder Sharma, Secretary of defendant No. 1 has stated that as per record, it is Hukam Chand who used to pay the user charges. Surprisingly enough, the allotment of the shop in favour of deceased plaintiff Hukam Chand has been cancelled unilaterally without associating him in the inquiry, if any, conducted and affording opportunity of being heard.

Defendant No. 1-Municipal Council has accepted the findings recorded by lower appellate Court, as the said defendant has not opted for filing the appeal against the same. The parties, plaintiffs and defendants No. 2 and 3 are closely related being members of the same family. When deceased plaintiff Hukam Chand was running business in Seri Bazar in the Khokha and like defendants No. 2 and 3, he was also allotted a shop in Indira Market Sunkan Garden, Mandi Town, defendants should have cancelled the allotment so made, that too, on the basis of agreement Ext. DW-3/A, which in the considered opinion of this Court has rightly been discarded by learned lower appellate Court.

The plea that Ext. DW-3/A being not registered document cannot be relied upon to hold the defendants in possession of the disputed Khokha, raised on behalf of the plaintiffs, however, carry no force for the reason that plaintiff Hukam Chand being not owner of the land and rather on Teh-Bazari basis occupying the same for running business, could have not entered into any such agreement qua transfer of the Khokha or its Malwa. Otherwise also, this document not pertains to transfer of right, title or interest in any land and at the most can be treated to be a document qua the sale of Malwa of the Khokha.

Having regard to the rival submissions and also on appreciation of the evidence available on record, no legal question much less substantial question of law arises for determination in this appeal. On the other hand, the judgment and decree under challenge being the result of correct appreciation of law and the given facts and circumstances, is legally sustainable hence calls for no interference by this Court in this appeal. All the substantial questions of law are answered accordingly.

For all reasons stated hereinabove, this appeal fails and the same is accordingly dismissed. Consequently, the judgment and decree under challenge in this appeal is hereby affirmed. The parties, however, to bear their own costs.