Sham Sunder and Others vs Bir Bhan and Another

Vijender Singh Malik, J.—The appellants had brought a suit for possession of a house situated in Mohalla Khatriyan, Kaithal numbered differently at different times in the property register of Municipal Committee, Kaithal. It has been described by boundaries in paragraph no.1 of the plaint. They have claimed that this house was purchased by their predecessor-in-interest named Matu Ram vide registered sale deed dated 1.9.1944 from the previous owners Babu Hari Kishan and others and after the death of Matu Ram, the plaintiffs are the owners of the house in suit. The defendants approached plaintiff no.1 some time back for permission to use three rooms of the house on the first floor as licensees. The said permission was granted to them. After some time, they broke open the locks of other rooms and occupied all the three floors of the house except one room on the ground floor shown in yellow colour in the site plan. Claiming that they are now in illegal possession of the house except the yellow coloured room, a decree for possession had been sought against the defendants in respect of the said house.

The defendants resisted the suit taking a few preliminary objections. According to them, the market value of the suit property is more than Rs.20,000/-and the suit has not been properly valued for the purposes of court fee and jurisdiction. Non-joinder of necessary parties, i.e. the daughters of Wazir Chand and the daughters of Matu Ram is also pleaded against the claim of the plaintiffs. The defendants have claimed that they are in possession of the disputed house as tenants under Sham Sunder, plaintiff no.2 from whom the house was taken on rent at the rate of Rs.20/-per month eleven years back and the rent of the house was increased to Rs.50/-per month in June, 1979. Claiming the relationship of tenant and landlord between the parties, the suit was also said to be not maintainable. It was denied in the reply on merits that three rooms of the house were taken as licensees and that the other rooms were forcibly occupied. It is claimed that entire house is in their possession as tenants. Therefore, the suit was prayed to be dismissed.

On the pleadings of the parties, the following issues were settled by learned trial court:

Whether the plaintiffs are the co-owners of the house as alleged in para 2 of the plaint? OPP

Whether the defendants have approached the plaintiff no.1 to use only the three rooms of the house as licensee as alleged in para 3 of the plaint? OPP

Whether the defendants are in illegal occupation of the house in dispute as alleged in para 3 of the plaint? OPP

Whether the plaintiffs are entitled to the relief as prayed for? OPP

Whether the suit of the plaintiff is not properly valued for the purposes of court fee & jurisdiction? OPD

Whether the suit is bad for non joinder of necessary parties? OPD

Whether the suit is not maintainable as alleged in para 3 of the P.O. of the written statement? OPD

Whether the civil court has no jurisdiction as alleged in para 4 of the P.O. of the written statement? OPD

Whether the defendant no.1 is in possession as a tenant as alleged in para 3 on merits of the written statement? OPD

Relief.

Taking evidence of the parties, learned trial court has found the plaintiffs to have failed to prove that they are owners of the property in dispute. The defendants are not found to be in possession of the house in dispute as tenants. Their possession over the same to begin with was found to be of licensees and they are found to have occupied the whole house without permission. Therefore, no bar was found to the jurisdiction of the civil court to entertain the suit. Relying on the admission of the defendants that they took the house in question from plaintiff no.2, learned trial court has held plaintiff no.2 as entitled to possession of the house. The suit of plaintiff no.2 has, therefore, been decreed.

Feeling aggrieved, the defendants preferred an appeal. Learned first appellate court found Birbhan, defendant no.1 to be tenant in possession of the house in dispute and, therefore, held the plaintiffs to be not entitled to possession thereof. The judgment and decree of learned trial court were reversed and the suit of the plaintiffs for possession of the house in dispute was dismissed.

Consequently, the plaintiffs have brought this second appeal against the judgment and decree dated 20.2.1986 passed by learned first appellate court.

I have heard Shri R.S.Mittal, learned senior counsel with Shri S.K.Tripathi, Advocate for the appellants and Ms.Ranjeeta Gill, Advocate for Shri Sudarshan Goel, learned counsel for the respondents. I have gone through the record carefully.

Learned senior counsel for the appellants has submitted that re-appreciation of oral evidence by learned first appellate court is not permissible. According to him, learned first appellate court, on re-appreciation of the oral evidence, came to a finding that Birbhan, defendant no.1 is tenant in possession of the house in question. The finding of learned trial court that the defendants had been in possession of a part of the house as licensees and that they forcibly occupied the remaining part of the house has, thus, been reversed. He has submitted that learned first appellate court was not entitled to re-appreciate the oral evidence and come to a finding contrary to the finding of learned trial court. In support of his submission, he has cited before me a case reported as Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, .

Learned senior counsel for the appellants has further submitted that a mortgage can be redeemed at any time and that there is no time limit fixed for the same. He has submitted that the plaintiffs could not be held to have lost equity of redemption in the property in question and they could not be held to have lost their ownership therein. In this regard, he has cited a full bench decision of this Court in Ram Kishan and others Versus Sheo Ram and Others, (2008 1 P.L.R. 1.

Learned senior counsel for the appellants has lastly submitted that the plea of the defendants is of oral tenancy. According to him, there is no evidence of any agreement between the parties of letting out the house to them nor is there any evidence of payment of rent. He has submitted that in case the defendants failed to prove the tenancy agreement as well as the payment of rent, they could not be held to be tenants in possession of the property in dispute. He has, thus, submitted that finding of learned trial court that the defendants had been licensees in respect of three rooms and that they had forcibly occupied the remaining portion of the house and are in unauthorised possession thereof, is perfectly legal.

Learned counsel for the respondents has, on the other hand, submitted that the defendants have been occupying the house in dispute for the last fourteen years. According to her, none would allow a person to remain in such a long occupation if the occupation to begin with was as of a licensee. She has submitted that such long occupation of the house by the defendants would itself prove that they are in possession of the house as tenants. She has further submitted that the house in question was taken on rent by the defendants from Sham Sunder through the good offices of Gian Chand, DW2 and that the rent had been paid twice by Birbhan, defendant no.1 to Sham Sunder in the presence of Baldev Krishan, DW3. She has submitted that the evidence to the contrary is consisting of the statement of plaintiff, Sham Sunder only and the same is not sufficient to prove that the defendants occupied three rooms in the beginning as licensees and that they occupied the remaining portion of the house forcibly.

Having considered the rival submissions of learned counsel for the parties, I am of the view that the following substantial questions of law arise for determination in this appeal:

Whether the trial court could take into account the aspect of mortgage of the house in question and return a finding against the plaintiffs regarding loss of ownership thereof?

Whether learned first appellate court was justified in re-appreciating the oral evidence to reverse the finding of learned trial court on the question as to in what capacity the defendants were in possession of the house in dispute?

Exhibit P1 is the sale deed dated 1.9.1944 in favour of Matu Ram in respect of the house in question. It has been executed in his favour by Babu Hari Kishan. There is a reference in the sale deed of the house being under mortgage with Kansi Ram etc. Learned trial court has held the plaintiffs to have lost the equity of redemption on 19.9.1979, the date of the filing of the suit in the property in question. In my opinion, there was no occasion for the trial court to have decided this question. This is not a suit brought by the mortgagors against the mortgagees. No plea had come in this regard from the side of the defendants that the plaintiffs have lost the equity of redemption. In the absence of there being a plea on the part of the defendants, the plaintiffs have been taken by surprise in this regard. There being no occasion for learned trial court to record a finding on this question, the said finding is liable to be ignored.

When the defendants admitted having taken the property in question from Sham Sunder on rent, they could not deny the ownership of Sham Sunder over the same. Sham Sunder claims himself to be a co-owner of the house with other appellants and his statement in this regard cannot be discarded.

The defendants took the plea that the property in dispute was taken on rent at the rate of Rs.20/-per moth about eleven years back. Taking the date of written statement as 17.12.1979, it can be said that the defendants claim to have taken the house on rent in the year 1968. The plea of the defendants is that in the month of June,1979, the whole house was rented out to defendant no.1 at the rate of Rs.50/-per month. It is not clear from the plea of the defendants that it was a case of increasing the rent or of re-letting of the house at a different rate of rent. The plea in the written statement is, moreover, at variance with the statement of the defendant no.1 recorded as DW1 where he says that the rent became Rs.70/-per month three years back when the entire house was taken on rent. The statement of Birbhan, defendant no.1, thus, makes it clear that in the beginning, the entire house was not taken on rent and that the portion taken on rent in the beginning was at the rate of Rs.20/-per month and when the entire house was taken on rent, the rent became Rs.70/-per month. There is no plea in the written statement about the rent being Rs.70/-per month of the entire house. It is very strange to note that Birbhan, defendant no.1 has failed to recall the date up to which he had paid rent. He has appeared in the witness box on 21.5.1982. He has claimed in his examination-in-chief that the rent was increased to Rs.70/-per month three yeas back when the entire house was taken on record. Within this period of three years, he is unable to recall as to up to which date he had paid the rent. The witness has not made any memo of payment of rent anywhere in any book of accounts he may be maintaining.

The case set up by the defendants is at conflict with the statement of Gian Chand, DW2. This witness has stated that Birbhan, defendant no.1 took the house in dispute fourteen or fifteen years back. According to him, he had taken 6, 7 or 8 rooms on rent. If he had taken 6, 7 or 8 rooms in the beginning itself, there was no occasion for him to increase the rent to Rs.70/-per month and there was no occasion for him to have taken the remaining portion of the house on rent.

Baldev Krishan, DW3 has stated about the payment of Rs.20/-as rent on one occasion in his presence and payment of Rs.140/-on another occasion. His statement is quite vague and he being a person supplying milk to Birbhan, defendant no.1 and living in another colony, cannot be believed to have witnessed the payment of rent.

Therefore, the evidence of the defendants is at conflict with the evidence of DW2, Gian Chand regarding taking the house on rent and there is no corroboration to the statement of defendant no.1 about the payment of rent. Thus, the defendants have failed to prove either the taking of the house on rent or payment of rent to the plaintiffs. As a result thereof, they could not have been held to be in possession of the house in question as tenants.

No absolute bar has been laid in Sarju Pershad Ramdeo Sahu''s case (supra) for the first appellate court regarding appreciation of oral evidence. The rule against appreciation of oral evidence by the first appellate court is a rule of practice. When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, the first appellate court can interfere with the finding of the trial court on a question of fact if some evidence has escaped the notice of the trial court. The first appellate court was, therefore, not precluded in all the circumstances from re-appreciating the oral evidence and reversing the findings of the trial court on the questions of fact.

As a sequel to the above discussion, the questions of law mentioned hereinabove are decided accordingly and as learned first appellate court appears to have wrongly reversed the finding of the trial court on the question of status of the defendants in relation to the house in dispute, the finding of learned first appellate court is reversed and that of the trial court is restored. Consequently, setting aside the judgment and decree of the first appellate court, the appeal is accepted and the suit of the plaintiffs-appellants for possession of the house in dispute is decreed. The parties are left to bear their own costs.