Rampal and Others vs Manmal and Others

Vineet Kothari, J.—These three second appeals are being disposed of by this common order as the suit property is common and the cause of action arising to the parties is also common.

SECOND APPEAL No. 86/2012:

The facts in a nutshell are that the present suit for eviction and recovery of rent was filed by the plaintiff - Manmal, Kanmal and Surendra Mal all sons of Chandmal in respect of a suit property, a ''Bara'' [plot of land measuring 63ft. X 63ft.(31.5x31.5 Gaj)] situated at Jaitaran, opposite Jodhpur-Jaipur Highway, in front of the court premises at Jaitaran. The lease was granted by Chandmal, father of the present plaintiffs in favour of defendant Rampal s/o Bhanwarlal in the year 1970. The said Chandmal expired on 31.12.1982 and the present suit was filed on 19.9.2005 after terminating the lease in favour of defendant by serving a notice under Section 106 of the Transfer of Property Act, 1982 on 24.9.2004, which was served on the defendant on 28.9.2004, since he failed to pay the rent in respect of the plot of land in question, which was given at the rate of Rs. 30/- p.m. under the last rent note executed on 14.4.1983 by the defendant in favour of the plaintiffs. The said civil suit No. 39/2005 (11/2007) - Manmal and ors v. Rampal s/o Bhanwarlal came to be decreed by the learned trial court on 12/9/2008 returning the following findings in favour of the plaintiffs on all the issues, which are quoted below for ready reference:--

The first appeal filed by the defendant-lessee No. 19/2008 - Rampal v. Manmal and Ors. also came to be dismissed by the first appellate court of Addl. District Judge (Fast Track) No. 1, Pali on 3/3/2012 affirming the findings of the learned trial court in the following manner:--

Being aggrieved by the same, the defendant-lessee filed the present second appeal in this Court on 9/4/2012, which was admitted by a coordinate bench of this Court on 18/7/2012 and the following substantial questions of law framed earlier while issuing show cause notice on 24/4/2012 are quoted below for ready reference:--

"(i) Whether the learned Appellate Court and the learned trial court has failed to grant the permission to the appellant for depositing the arrear of rent as tender made by him in para No. 3 of written statement?

(ii) Whether the learned Appellate Court and the learned trial court has properly considered the provision of Section 114 of the Transfer of Property Act?"

Later on, another coordinate bench of this court fixed the mesne profits @ Rs. 5000/- per month vide order dated 7/5/2013 and, thereafter, the appeal was directed to be listed for final hearing along with connected appeals CSA No. 335/2008 - LRs of Bhanwarlal v. Manmal and ors. and CSA No. 52/2008 - LRs of Bhanwarlal v. Manmal and Ors.

SECOND APPEAL NO.335/2008 and SECOND APPEAL NO.52/2008

The facts arising from these two second appeals are common and the judgment of the courts below are also common, therefore, for the purpose of disposal of these appeals, the facts are noticed from CSA No. 335/2008.

Civil suits No. 162/84 (245/96) and 51/2001 - Manmal s/o Chandmal and ors. v. Bhanwarlal s/o Malaram and anr. were filed by the plaintiffs on 28/9/1984 seeking mandatory and prohibitory injunction against the defendants not to encroach upon the northern side passage/way behind the plot of land measuring 63ft. X 63ft (31.5x31.5 Gaj) situated at Jaitaran, Opposite Court premises, which was given on lease by Chandmal, father of the present plaintiffs to the defendant Rampal s/o Bhanwarlal and for which the eviction suit, as aforesaid, was filed out of which the aforesaid Second Appeal No. 86/2012 - Rampal v. Manmal and ors., as stated above, arose. The encroachment was purportedly made by the defendants on the northern back side of the plot in question, which was given on lease, while on the southern side the main highway of Jodhpur-Jaipur passes and on the opposite side of the highway, the court premises of Jaitaran are situated.

The plaintiffs claimed that in the Patta issued in favour of their father by the Gram Panchayat, Jaitaran way back on 6/5/1957,Ex.1, a passage of 12 ''Gaj'' (24 ft.) wide was shown on the back side of the said plot on the back northern side, which was sought to be encroached by the defendant by putting up the ''stone pattis'' and for which the present injunction suit was filed and during the pendency of the suit, since the defendants illegally got a ''Patta'' issued by the Municipal Council, Jaitaran in their favour for the said encroached land on 7/2/1986, by amending the plaint a prayer for cancellation of Patta was also made in the present suit. After the trial, the suit partly came to be decreed by the trial court and finding the encroachment made by the defendants, the learned trial court directed the removal of the encroachment and leaving the passage of 12 Gaj (24 ft.) on the northern side of the plot of land of plaintiffs while the prayer for cancellation of Patta was turned down by the learned trial court since the trial court found that it could not be established by the plaintiffs that the said Patta was issued without following the due procedure of law. Though the defendants filed an application for impleadment of Municipal Council, Jaitaran also as party in the said suit under Order 1 Rule 10 CPC but the said application was also rejected by the learned trial court.

Being aggrieved by the said order, both the parties filed appeals before the first appellate court of Addl. District Judge (Fast Track) No. 1, Pali, namely Appeal No. 88/2005 - Bhanwar Lal through L.Rs v. Manmal and ors. and Appeal No. 89/2005 - Manmal and ors. v. Bhanwar Lal through L.Rs. The defendant''s appeal came to be dismissed but plaintiff''s appeal was allowed by the learned first appellate court on 23/10/2007. The relevant findings of the learned trial court while partly decreeing the suit as well as those of first appellate court are quoted below for ready reference:--

"Relevant extract of findings of the learned trial court

Relevant extract of the findings of first appellate court from order dated 23/10/2007:--

The defendants Rampal and Bhanwarlal, father and son duo filed the present second appeal No. 335/2008 in this Court on 21/1/2008 while the connected second appeal No. 52/2008 was filed by the defendants on 10/12/2007.

The following substantial questions of law were framed by the coordinate bench of this Court in these two appeals on 5/4/2013:--

"(1) Whether the findings recorded by the appellate court on issue Nos. 6 and 7 are perverse?

(2) Whether the appellate court has materially erred in misinterpreting the provisions contained in Order 1 Rule 10 and in holding that the Municipality was not the necessary party to the suit?

(3) Whether the appellate court has materially erred in misappreciating the evidence on record and in cancelling the patta in respect of the suit land issued in favour of the appellants by the Municipality?"

Mr. G.R. Punia, Sr. Advocate with Mr. Yashpal Khileree represent the defendant/appellants - Rampal and Bhanwarlal in Second Appeal No. 335/2008 and 52/2008, while Mr. R.S. Choudhary, learned counsel represents the defendant-appellants in Second Appeal No. 86/2012. Mr. O.P. Mehta, learned counsel represents the plaintiff-respondents in all the three appeals.

I have heard the learned counsels for the parties and perused the record of the case and the judgments cited at the bar.

Mr. G.R. Punia, Sr. Advocate appearing for the appellant-defendants, with the help of map of the site in question, vehemently submitted that the plot of land allotted in favour of the defendants, of which the Patta was issued in the year 1986 on 7/2/1986 by the Municipal Council, Jaitaran could not be cancelled by the learned first appellate court, even though the trial court had refused to grant the said relief to the plaintiffs, since on the basis of long possession of the defendants, the Municipal Council had issued the said Patta in favour of the defendants and plaintiffs were wrong in contending before the learned courts below that there was a 12 Gaj (24 ft.) wide passage on the northern side behind their plot of land allotted by the Gram Panchayat in their favour on 6/5/1957, since the northern side adjacent to the plot of the defendants, of which Patta was issued by the Municipal Council, Jaitaran on 7/2/1986, other persons were also allotted other plots of land by the same Municipal Council, Jaitaran and northern side way leading to ''Shamshan'' was after the plot of defendants and, therefore, the ''Patta'' could not be cancelled by the first appellate court. He also submitted that without impleading the Municipal Council, Jaitaran as a party respondent in the present suit for injunction filed by the plaintiffs, the Patta issued in favour of the defendants could not be cancelled and, therefore, the substantial questions of law framed above deserve to be answered in favour of the defendants and the present second appeals No. 335/2008 and 52/2008 of the defendants deserve to be allowed. However, about eviction case arising in second appeal No. 86/2012 - Rampal s/o Bhanwar Lal v. Manmal s/o Chandmal and Ors., Mr. G.R. Punia, Sr. Advocate submitted that learned counsel Mr. R.S. Choudhary has the instructions and his arguments are limited to the other appeals only.

Mr. R.S. Choudhary, learned counsel for the appellant-defendant in CSA No. 86/2012, opposing the impugned decree of ejectment and eviction submitted that the defendant was always ready and willing to pay rent in question to the plaintiffs under Section 114 of the Transfer of Property Act and since the plaintiffs failed to accept the same, therefore, termination of the lease by the plaintiffs was illegal and wrong and the decree of eviction, therefore, deserves to be reversed by this court, allowing the defendant''s appeal No. 86/2012.

Per contra, Mr. O.P. Mehta, learned counsel appearing for the plaintiff-respondents vehemently opposed the submissions made by the learned counsels for the defendant-appellants and relying upon the various case laws, he submitted that as far as the termination of lease for the plot of land is concerned, since the Rent Control Law did not apply to the said place Jaitaran at the relevant point of time and the lease was duly terminated after properly serving the notice under Section 106 of the Transfer of Property Act, therefore, the defendants were bound to handover the possession of the plot of land to the plaintiffs and the concurrent decree of the learned courts below deserves to be upheld and the second appeal No. 86/2012 filed by defendant Rampal deserves to be dismissed as actually no substantial questions of law arise in the present case and the questions as framed in the matter deserve to be answered in favour of the plaintiff-respondents and the possession of the suit plot deserves to be given back to the plaintiffs. He also disputed and denied the averment that defendants ever paid any agreed rent to the plaintiffs, therefore, recourse under Section 114 of the Act was not available to them.

Opposing the submissions of Mr. G.R. Punia in Civil Second Appeal No. 335/2008 and Civil Second Appeal No. 52/2008, Mr. O.P. Mehta urged that during the pendency of the litigation, issuance of Patta in favour of the defendants by the Municipal Council, Jaitaran on 7/2/1986 was hit by principle of lis pendens and also that Municipal Council, Jaitaran had no jurisdiction to issue Patta of the land adjacent for the passage/way, which was shown in the ''Patta'' issued in favour of the plaintiffs in 1957 by the Gram Panchayat, Jaitaran, as also the Rent Note executed by the defendant themselves, which was an undisputed fact duly proved by the various documentary and oral evidence before the learned trial court. He also submitted that the order rejecting the application of the defendant under Order 1 Rule 10 CPC and not impleading the Municipal Council, Jaitaran as a party defendant in the present case by the learned trial court was never challenged by the defendants further and, therefore, that order was allowed to become final. He also relied upon the case laws to urge that vendor (Municipal Council, Jaitaran) in such cases was not a necessary party even though it could be called a proper party in such cases and the Patta could be and rightly cancelled by the learned civil court or the appellate court, since the Municipal Council had no jurisdiction to issue the said Patta in respect of the land of passage/way. He, therefore, submitted that such findings of fact about encroachment made by the defendants and which was purportedly shown as long possession of the defendants before the Municipal Council, where the defendant Rampal himself was a Municipal Corporator, such ''Patta'' in their favour was issued for extraneous reasons in a camp known as without following due procedure of law and rather earlier negative order was passed by learned SDO dated 17/11/1983 (Ex.7) and, therefore, the said ''Patta'' was rightly cancelled by the appellate court, since the trial court failed to grant the said relief to the plaintiffs though claimed by amending the plaint during the course of the trial. He relied on the following cases:--

"(i) Bhairon Bux v. Hazari Mal and ors. - 1960 ILR 305;

(ii) Hardeva Vs. Ismail and Others, AIR 1970 Raj 167 : (1969) WLN 611 ;

(iii) Shri Paresar Vs. Municipal Board, (1997) 1 WLC 443 : (1996) 2 WLN 414 ;

(iv) Union of India (UOI) Vs. Moksh Builders and Financiers Ltd. and Others, AIR 1977 SC 409 : (1977) 1 SCC 60 : (1977) 1 SCR 967 ;

(v) Lakshmanan Vs. Kamal, AIR 1959 Ker 67 , and

(vi) Ahmed Ali Khan Bahadur (died) and Another Vs. Banguluru Veeralla and Others, AIR 1959 AP 280 ."

I have heard the learned counsels for the parties and perused the record of the case carefully and the judgments cited at the bar.

In the considered opinion of this Court, all the three second appeals filed by the defendants deserve dismissal and the substantial questions of law framed by the coordinate bench deserve to be answered in favour of the plaintiff respondents and against the defendants. The reasons are as follows.

As far as the eviction after termination of lease by serving a notice under Section 106 of Transfer of Property Act is concerned, no specific ground has been made out by the defendants for showing either the notice to be invalid or termination of lease to be improper or illegal in any manner. The conditions for invoking Section 114 of the Transfer of Property Act was never established by the defendant lessee before the courts below. The title of the plaintiff is not in dispute and the non-applicability of the Rent Control Act law to the said area at the relevant point of time is also not in dispute. Therefore, there was no question of granting any further opportunity to the defendant to deposit the rent to keep the lease surviving in their favour and, therefore, the proposed substantial questions of law for which show cause notice was issued by the coordinate bench in CSA No. 86/2012 on 24/4/2012, deserve to be answered in favour of the plaintiff and against the defendants. They are so answered and the said second appeal No. 86/2012 is, therefore, liable to be dismissed and is hereby dismissed.

The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit premises or plot of land (Bara) to the defendant-plaintiff within a period of six months from today i.e., on or before 31st October, 2015 and shall pay mesne profit @ Rs. 5,000/-per month from May, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-defendant-tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant-tenant or person in possession shall also further not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void and such third party will also be bound by this decree. The appellant-defendant-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondent-landlady within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court.

As far as second appeal No. 335/2008 and 52/2008 are concerned, this Court is of the opinion that the issuance of ''Patta'' in favour of defendants by the Municipal Council, Jaitaran was absolutely illegal and was hit by the principle of lis pendens under Section 52 of the Transfer of Property Act, 1882. There is no dispute from the evidence on record that on the northern back side of the leased plot by the plaintiff in question measuring 63''x63'' (31.5x31.5 Gaj), there was a passage of 12 Gaj (24 ft. wide). The said passage could not obviously be allotted by the Municipal Council, Jaitaran in favour of the defendant in a hot haste manner without following the due procedure of law. It appears that the defendants themselves sought the support of the Municipal Council, Jaitaran by seeking its impleadment in the present suit but that application was rejected by the learned trial court on 8/3/2002 and that order was allowed to become final by the defendants without any further challenge. The plaintiffs had to amend the plaint and seek the relief for cancellation of Patta also since the present suit was filed by the plaintiff on 28/9/1984 and the ''Patta'' in question was issued in favour of defendants on 7/2/1986. The power of the civil court to cancel such illegal Patta cannot be questioned. Such power indisputably vests in the civil courts. Once the trial court had found that the defendants had made the encroachment over the backside or the northern side of the plot of the plaintiffs in question, obviously it was a case of encroachment only as no peaceful long possession of the defendants could be established so as to claim any ''Patta'' from the Municipal Council on that basis. Moreover, the issuance of ''Patta'' was in conflict with the undisputed passage of 12 Gaj (24 ft. wide) shown in the ''Patta'' issued in favour of the plaintiffs way back on 6/5/1957 and Rent Note executed by the defendants themselves and no proceedings of Municipal Council, Jaitaran were produced before the courts below to show that the ''Patta'' was issued after considering the said fact of existence of passage of 12 Gaj (24 ft.) or earlier rejection order of learned SDO Ex.7 dated 17/11/1983. Merely because the defendants contend that Pattas were issued in favour of other persons also on the parallel land on the eastern and western side of their plot that does not validate and justify the issuance of the ''Patta'' in favour of defendants, as their cases may be different and nature of their possession etc. may also be different. Even the validity of such other Pattas may be questioned. However, presently, there is no other relevant document available on record in the present case to make any adverse comment on the ''Pattas'' issued in favour of other persons but the issuance of ''Patta'' in favour of present defendants on the basis of their alleged long and peaceful possession over the said passage clearly falls foul and flies in the face of the findings returned by the trial court itself about there being a passage of 12 Gaj (24 ft. wide) at the backside or the northern side of the plot of plaintiffs and the encroachment made by the defendants on the said back side portion.

The provisions of Section 52 of the Transfer of Property Act has been lucidly explained in Lakshmanan Vs. Kamal, AIR 1959 Ker 67 in the following manner:--

"The effect of S. 52 is to render void as against the decree-holder in a suit in which any right to immovable property was in dispute and entitled him to ignore all transfers or other dealing with it by the judgment-debtor from the time of the institution of the suit till the complete satisfaction or discharge of the decree which would affect the decree-holder''s right under the decree or any order made in the suit. The explanation specifically enjoins that the prohibition against transfers or dealings is to take effect from the date of the presentation of the plaint or the institution of the proceedings in a court of competent jurisdiction and remain in force until complete satisfaction or discharge of the decree has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed by law.

If a transfer or other dealing with a suit property pendente lite is void as against the decree-holder and he is entitled to ignore it and it cannot affect his rights under the decree, no purpose will be served by bringing on record, after the transfer, the transferee or the person in whose favour the property has been dealt with, should be brought on record in such cases, would only be to hold out a premium to persons who desire to escape from their legal obligations and unnecessarily protect legal proceedings, and would defeat the very purpose for which S. 52 has been enacted.

Section 52 is not confined to transfers and expressly prohibits both transfers and "other dealings" with the suit property. Explanation to S. 52 is wide enough to include all transfers and dealing with the property made during pendency of the suit in trial and appellate courts as well as execution proceedings."

Similarly, Hon''ble Andhra Pradesh High Court in Ahmed Ali Khan Bahadur (died) and Another Vs. Banguluru Veeralla and Others, AIR 1959 AP 280 reiterated these principles in the following manner:--

"The principle of lis pendens enforced in England both by courts of law and equity is embodied in S. 52. The section does not declare that all the transfers made pendente lite are null and void but what is provided for is that such transfers will be subject to the decree or order passed or made in the suit. In other words the transfer will be subservient to the decree or order."

About Municipal Council being not a necessary party in the present case, this Court in Bhairon Bux v. Hazari Mal - 1960 ILR 305 has clearly held that a vendor is not a necessary party where a third person claims superior right both against the vendor and the vendee. The relevant extract of the said judgment is quoted below for ready reference:

"Under the law a vendor is not a necessary party, where a third person claims superior right both against the vendor and the vendee, and institutes a suit to safeguard his rights against the vendee. It is up to the vendee to support his title by showing that the vendor had a better title than the plaintiff; but for this reason the vendor is not a necessary party. The plaintiff''s sole object can be to safeguard his rights against the vendee defendant who has by obtaining a sale from the vendor thrown a cloud on the title of the plaintiff."

Learned counsel for the respondent/plaintiffs, Mr. O.P. Mehta also relied on a Division Bench Judgment in the case of Baltej Singh and Others Vs. State of Rajasthan and Others, (2007) 2 WLN 406 . In a public interest litigation, the Division Bench of this Court held that the Municipal Board has no power to alienate portions of public road by way of lease, sale or regularisation.

In Citizens of Bundi and Others Vs. Municipal Board, Bundi and Others, etc., AIR 1988 Raj 132 : (1987) 2 WLN 948 , the learned Single Judge of this Court held that the Municipal Law expressly prohibits sale of public lands or streets or public places. Therefore, a public chowk, land, square, chogan or park for public use, cannot be sold by Municipality for augmenting revenue or commercial purposes.

In Smt. Kishna Devi Vs. Vishnu Mitra and Another, AIR 1982 Raj 281 , the same learned Single Judge held that the plaintiff was entitled to injunction against defendant, who sought to make construction over the sanitary lane and it is a case of invasion on civic rights in general and right to use sanitary lane of the plaintiff-petitioner, in particular. The Court further held that grant of permission by the Urban Improvement Trust was no bar for a civil court to grant a temporary injunction in favour of the plaintiff.

Learned counsel for the appellant defendant, Mr. G.R. Punia, Sr. Advocate also relied upon a judgment of coordinate bench of this Court in the case of Kailash Chandra Yadav Vs. The State of Rajasthan and Others, (2010) 1 SLR 765 , wherein, dealing with a case under Section 97 of the Panchayati Raaj Act, 1994 for cancellation of Patta given by the Gram Panchayat for residential purpose, the Court held that the Gram Panchayat was a necessary party in a writ petition. The said case is distinguishable from the facts of the present case, wherein, the Patta was issued by the Gram Panchayat at much prior point of time and subsequent Patta was issued by the Municipal Council on the land shown as passage in a camp known as , even though such allotment was earlier negatived by the concerned Assistant Collector in favour of the same defendant way back in 1983.

In view of the aforesaid legal position, this Court is satisfied that the substantial questions of law framed in these two second appeals also deserve to be answered in favour of the plaintiff and against the appellant defendants. They are hereby so answered accordingly and the defendants'' appeals deserve to be dismissed with costs.

Accordingly, all the three appeals are hereby dismissed with costs of Rs. 5000/- for each appeal to be paid by the appellant/defendants to the respondent/plaintiffs within three months from today.