Rajendra Singh vs Chandraveer Singh and Others

Dr. Vineet Kothari, J.—This second appeal filed by the defendants is arising out of the judgment and decree dated 19.02.2014 passed by the learned Additional District Judge No. 1, Bhilwara in Civil Appeal No. 44/2001 "Rajendra Singh and Ors. Vs. Chandraveer Singh and Ors." who dismissed the appeal filed by the defendants-Rajendra Singh and Ors. and affirmed the judgment and decree dated 01.11.2001 passed by the learned Civil Judge (Senior Division), Mandalgarh, District Bhilwara in Civil Original Suit No. 70/1992 (85/1983) "Chandraveer Singh and Ors. Vs. Smt. Rajkanwar and Ors." by which, the learned Civil Judge (Senior Division) had decreed the suit filed by the plaintiffs-Chandraveer Singh and Anr. seeking possession of the suit property known as "Govind Vilas" and "Mukut-Mandal" and permanent injunction against the defendants in relation to dispute relating to a property, which is a Fort "Govind Vilas" and "Mukut-Mandal" situated at town Bijoliya, District Bhilwara.

The present second appeal has been filed on 16.05.2014 by the appellants, who were the defendants, against concurrent judgments and decrees for possession passed by the learned two Courts below in relation to the dispute, as aforesaid.

The plaintiffs, Chandraveer Singh and Smt. Chand Kumari, are the legal representatives of deceased Keshari Singh Rajput of Bijoliya, who filed the present suit No. 85/1983 (70/82) on 01.10.1983 in the Court of learned District Judge, Bhilwara which was decreed by the learned Trial Court on 01.11.2001 after 18 years'' of trial and against which, both the parties filed appeals before the learned Additional District Judge No. 1, Bhilwara, namely, Civil First Appeal No. 43/2001 "Chandraveer Singh Vs. Rajendra Singh and Ors." for non-grant of relief of mesne profits against the defendants by the learned Trial Court, whereas the Civil First Appeal No. 44/2001 "Rajendra Singh and Ors. Vs. Chandraveer Singh" was filed by the defendants against the decree of suit for possession by the learned Trial Court. Both these appeals came to be disposed of by the learned First Appellate Court on 19.02.2014 and both these appeals were dismissed. Aggrieved by the same, the defendants Rajendra Singh S/o Vijay Singh and Ors. have filed the present second appeal under Section 100 of the Code of Civil Procedure.

The relevant findings of the learned Trial Court in the judgment dated 01.11.2001 which will also give a background of the facts leading to filing of the present suit are quoted below for ready reference:-

Then, the learned First Appellate Court''s findings on the aforesaid issues affirming the same with order dated 19.02.2014 are also quoted below for ready reference:-

The learned counsels appearing for the appellants-defendants Mr. Sajjan Singh and Mr. Ramit Mehta submitted that originally the so-called partition deed executed on 14.01.1958 betweeen four brothers namely, Keshari Singh, Madan Singh, Goverdhan Singh and Vijay Singh was not a partition deed and since the same was not registered nor stamped properly, the same was not admissible in evidence and since the so-called partition deed alleged to have been executed on 14.01.1958 was never acted upon, another document was admittedly executed between Keshari Singh and Vijay Singh, the two out of four brothers and the said document Ex. 1 dated 14.04.1968 was a conditional document, according to which, the plaintiff Keshari Singh, who is now represented by his legal representatives, was to demolish the property known as "Kawarpada Ka Mahal" and the emptied plot was to be handed over to Vijay Singh and upon which, the said Vijay Singh was to hand over the suit property namely, "Govind Vilas" and "Mukut-Mahal" occupied by him and his family to his elder brother Keshari Singh and if such demolished property and emptied plot was not handed over by the plaintiff to the defendants (Keshari Singh to Vijay Singh) by the stipulated time of Asoj Sud 15, Samvat Year 2025 then, for every one month of delay, the said brother Vijay Singh was entitled to have extended stay in the suit property for one year. According to the plaintiffs, Chandraveer Singh and Smt. Chand Kumari, legal representatives of deceased Keshari Singh, they had demolished the said property namely, "Kawarpada Ka Mahal" which was in dilapidated condition and the same was demolished before the stipulated date spending a sum of Rs. 15,000/- for that and a communication in this regard was sent to the defendant Vijay Singh vide a letter To Bane Singh who intimated in turn Vijay Singh by a separate letter and upon the said defendant Vijay Singh not handing over the possession of the property in question, the plaintiffs had to file the present suit.

The learned counsels Mr. Sajjan Singh and Mr. Ramit Mehta appearing for the defendants submitted that firstly, the said communication regarding demolition of the property in question having been undertaken was never received by the defendant Vijay Singh and even if the said letter Ex. A/2 is perused closely, it is stated therein that the debris (malba) of the said demolition was yet to be removed from the site and in the absence of the same, the condition of the agreement between two brothers in the document dated 14.04.1968 cannot be said to have been fulfilled and, therefore, the defendants were not bound to hand over the possession of the suit property in question. They also urged that if the document dated 14.04.1968 is construed to be an agreement of which the specific performance was sought by the plaintiffs in the present suit, the limitation for filing the suit was only three years and since, admittedly, the suit in question was filed only on 01.10.1983, the suit was clearly time-barred whereas the Courts below have erred in holding that the suit was only within the limitation computing the limitation to be 12 years. They, therefore, urged that the many substantial questions of law do arise for consideration by this Court in the present second appeal filed on behalf of the defendants, legal representatives of Vijay Singh.

On the other hand, the learned counsel Mr. Sandeep Sarupariya appearing for the respondents-plaintiffs-legal representatives of Keshari Singh viz., Chandraveer Singh and Smt. Chand Kumari vehemently opposed the submissions made by the learned counsels for the appellants-defendants and submitted that the suit has been rightly and concurrently decreed in favour of the plaintiffs, who are the legal representatives of elder brother Keshari Singh, and the fact that they do not have any portion of the joint property which was originally agreed to be partitioned between four brothers under the partition deed dated 14.01.1958 which was acted upon as far as the two brothers were concerned namely, Madan Singh and Goverdhan Singh and under that partition deed itself, the defendant Vijay Singh got the property known as "Maji Sahab Sakhawat Ji Ka Nohra". However, since the dispute between remaining two brothers namely, Keshari Singh eldest brother and Vijay Singh youngest brother could not be settled, another document was executed between them on 14.04.1968 and the plaintiff''s father Keshari Singh had duly complied with the said condition of demolition of the "Kawarpada Ka Mahal" and gave an intimation of the same to the defendant Vijay Singh that he may occupy the emptied plot, just behind his own share of property and, therefore, the defendant Vijay Singh, now represented by his legal representatives, were bound to hand over the possession of the present suit property to the plaintiffs. The suit property is known as "Govind Vilas" and "Mukut-Mahal" which were described in the plaint along with the map produced with the suit. The learned counsel Mr. Sandeep Sarupariya submitted that the findings of facts arrived at by both the learned two Courts below about the permissive possession of the suit property and decree of possession given in favour of the plaintiffs, as quoted above, are based on relevant and cogent evidence and the same cannot be said to be perverse in any manner nor there is any misreading of any evidence and document by the learned two Courts below and, therefore, no substantial question of law arises for consideration by this Court in this second appeal of the defendants and the same deserves to be dismissed.

I have heard the learned counsels for the parties at length and perused the record. Looking to the nature of close relationship between the parties, this Court also referred the matter for settlement of dispute through mediation on 24.11.2014 and the parties were directed to appear before the learned Mediator on 09.12.2014. However, unfortunately, the mediation talks appear to have failed vide communication dated 11.12.2014 along with Mediator''s Report dated 09.12.2014 and 10.12.2014. Therefore, the arguments were heard on merits for admission of the present second appeal and to find out that as to whether any substantial question of law arises for consideration by this Court in the present second appeal filed by the defendants.

Having heard the learned counsels for the parties and having gone through the record, this Court is satisfied that no substantial question of law arises for consideration by this Court in the present second appeal filed by the defendants and the concurrent findings recorded by the two Courts below are cogent findings of facts based on relevant evidence and do not give rise to any substantial question of law in the present second appeal.

That though the re-appreciation of the evidence is not permitted within the scope of second appeal under Section 100 of the Code of Civil Procedure, however, this Court looked into the relevant and important documents in the present case to test the validity of the findings returned by the two Courts below. Firstly, the document Ex. 15, the so-called partition deed dated 14.01.1958 and which has been quoted by the learned Trial Court also is quoted below for ready reference:-

It is also noticed that the said partition deed dated 14.01.1958 was acted upon between two brothers namely, Goverdhan Singh and Madan Singh, out of the four brothers but the dispute continued between Keshari Singh and Vijay Singh.

The subsequent document executed between the two brothers namely, Keshari Singh and Vijay Singh, on 14.04.1968 which has been quoted by the learned First Appellate Court and which has been the bone of contention between the present two contesting parties is also again quoted herein below for ready reference:-

The letter Ex. A/2 dated 03.10.1968 regarding demolition of the "Kawarpada Ka Mahal" by Keshari Singh to Shri Bane Singh, the scribe of both the Documents dated 14.01.1958 and dated 14.04.1968 executed between the brothers, who from the said Inland letter address, appears to be a RAS Officer and was then the Principal of the Tehsildar Training School, Tonk and another letter in this regard sent by Bane Singh to the defendant Vijay Singh himself of which Acknowledgement Due (AD Receipt) signed by Vijay Singh on 08.10.1968 is Ex.2 on record. This acknowledgement (AD) is on record as Ex.2 clearly shows that the conditions to be complied with by the plaintiff Keshari Singh were duly complied with by him and it cannot be said that since the complete debris (malba) was not removed by him, as stated in the said letter, that it was being removed, it cannot be said that the agreement dated 14.04.1968 did not fructify or could not enure to the benefit of said brother Keshari Singh. Subject to that agreement which is nothing but an extension of earlier Document of Partition dated 14.01.1958, the defendant Vijay Singh, now represented by his legal representative, the present defendants, Rajendra Singh and Ors., were bound to hand over the possession of the suit property namely, "Govind Vilas" and "Mukut-Mahal" occupied by him to his elder brother Keshari Singh and his family members, the present plaintiffs namely, Shri Chandraveer Singh and Smt. Chand Kumari. As per the said communication, which was exhibited as Ex. A/2 before the learned Trial court, it will appear that the parties under the said agreement at that point of time were not at good terms and that is why the said letter (Ex.A/2) was sent to the said Bane Singh, RAS, who was also examined by the learned Trial Court as PW-2 besides PW-1 Chandraveer Singh. The contents of the said letter are also quoted herein below for ready reference:-

From the above, it is clear that as per the memorandum of partition dated 14.01.1958 read with subsequent agreement dated 14.04.1968 which is nothing but an extension of that old Memorandum of Partition only, the plaintiffs were clearly entitled to the possession of the suit property and the defendants Vijay Singh and his legal representatives, who were only in the permissive possession thereof, were bound to vacate the suit property and hand it over to the plaintiffs at the time of filing of suit. The admissibility of the documents has rightly been decided in favour of the plaintiffs by the learned Trial Court, since the memorandum of partition is not required to be stamped or registered and the Courts below have rightly held the suit to be within limitation of twelve years, computing the same from Samvat Year 2028 (1971) when defendants were bound to hand over the possession. The contention of the appellants-defendants that the limitation of only three years should have been allowed taking it as a suit of specific performance of the agreement dated 14.04.1968 is also misconceived, as the agreement of 1968 is just another addenda memorandum of partition of 1958 to complete certain acts on the part of the two brothers and the same is not an independent agreement for any separate consideration of which any specific performance was sought by the plaintiffs.

The Hon''ble Supreme Court in the cases of permissive possession not handed over back in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., AIR 2012 SC 1727 : (2012) 3 SCALE 550 : (2012) 5 SCC 370 : (2012) AIRSCW 2162 : (2012) 2 Supreme 602 also held that possession on the basis of title of property is always a better claim as against the claim on the basis of permissive or adverse possession. The Hon''ble Supreme Court in a very detailed and researching judgment, detailing the four types of possession under property law; Easements Act, 1882, Transfer of Property Act, 1882 and Specific Relief Act, 1963, dealing with a case of a well known and respected Christian family of Goa where the permissive and free of cost possession of suit premises was given by a sister to her brother as a caretaker, while the sister with her husband was out of Goa in relation to his service in Navy and when the brother illegally denied her possession of her own house with title undisputed for 20 longs years, the Hon''ble Supreme Court allowing the sister''s appeal with costs of Rs. 50,000/- and mesne profits of Rs. 1 lac per month for the residential house, held in para 32 to 36 as under:-

"Truth as guiding star in judicial process

In this unfortunate litigation, the Court''s serious endeavour has to be to find out where in fact the truth lies.

The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.

In Mohanlal Shamji Soni Vs. Union of India and another, AIR 1991 SC 1346 : (1991) CriLJ 1521 : (1991) 1 Crimes 818 : (1991) 33 ECC 18 : (1992) 61 ELT 521 : (1991) 3 JT 17 : (1991) 1 SCALE 401 : (1991) 1 SCC 271 Supp : (1991) 1 SCR 712 : (1991) 2 UJ 43 , this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions - whether discretionary or obligatory- according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.

What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.

In Ritesh Tewari and Another Vs. State of U.P. and Others, AIR 2010 SC 3823 : (2011) 111 CLT 137 : (2010) 10 JT 1 : (2010) 10 SCALE 38 : (2010) 10 SCC 677 this Court reproduced often quoted quotation which reads as under:

".....Every trial is voyage of discovery in which truth is the quest"

..........The quest of truth continues........,also in this case.

Deprecating false claims and defences, which are considered really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate, the Hon''ble Supreme Court in the aforesaid judgment in para 81 and 82 observed as under:-

"False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in the Courts. The Supreme Court in Rameshwari Devi and Others Vs. Nirmala Devi and Others, (2011) 8 JT 90 : (2011) 3 RCR(Civil) 932 : (2011) 6 SCALE 677 : (2011) 8 SCC 249 : (2011) 8 SCR 992 : (2011) 5 UJ 2962 aptly observed that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. This problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. Imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate case would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings."

And then finally, allowing the sister''s appeal as aforesaid and laying down the principles of law in para 97 to 101, the Hon''ble Supreme Court held as under:-

"97. Principles of law which emerge in this case are crystallized as under:-

No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.

In this view of the matter, the impugned judgment of the High Court as also of the Trial Court deserve to be set aside and we accordingly do so. Consequently, this Court directs that the possession of the suit premises be handed over to the appellant, who is admittedly the owner of the suit property.

In the peculiar facts and circumstances of this case, the legal representatives of the respondent are granted three months time to vacate the suit premises. They are further directed that after the expiry of the three months period, the vacant and peaceful possession of the suit property be handed over to the appellant. The usual undertaking to this effect be filed by the legal representatives of the respondent in this Court within two weeks.

The legal representatives of the respondent are also directed to pay Rs. 1,00,000/- (Rupees one Lakh) per month towards the use and occupation of the premises for a period of three months. The said amount for use and occupation be given to the appellant on or before the 10th of every month. In case the legal representatives of the respondent are not willing to pay the amount for use and occupation as directed by this Court, they must hand over the possession of the premises within two weeks from the date of this judgment. Thereafter, if the legal representatives of the respondent do not hand over peaceful possession of the suit property, in that event, the appellant would be at liberty to get the possession of the premises by taking police help.

As a result, the appeal of the appellant is allowed. In the facts and circumstances of the case, the respondents are directed to pay a cost of Rs. 50,000/- to the appellant within four weeks. (We have imposed the moderate cost in view of the fact that the original respondent has expired). Ordered accordingly."

In view of the above discussion, this Court is of the considered opinion that no substantial question of law arises for the consideration by this Court in the present second appeal of the defendants-Rajendra Singh and Ors. and, therefore, the second appeal filed by the defendants is found to be devoid of any merit and the same is liable to be dismissed.

Accordingly and in view of the above, the present second appeal filed by the appellants-defendants-Rajendra Singh and Ors. is dismissed. No orders as to costs. A copy of this order be sent to both the Courts below and the parties concerned forthwith.

The defendants-appellants shall hand over the possession of the suit property as described in the suit known as "Govind Vilas" and "Mukut-Mahal" to the plaintiffs and take in their possession the property known as "Kawarpada Ka Mahal", which was demolished by Keshari Singhji, if not already so taken within three months from today. The defendants shall not part with possession of the suit property or create any interest therein of any third party. If so done, that shall be treated as void and any such third party will be also bound by the decree. If decree is not complied with within three months, besides the expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court.