Sukhdev Singh vs Arita Devi

Satyen Vaidya, J

This appeal has been filed against the judgment and decree dated 10.4.2015, passed by the learned Additional District Judge-I, Kangra at Dharmshala in Civil Appeal No. 67-N/XIII/2013/2008, whereby the judgment and decree dated 29.8.2007, passed by the learned Civil Judge (Junior Division), Court No.II, Nurpur in Civil Suit No. 1 of 1995 has been affirmed and the suit of the plaintiff has partly been decreed.

The appellant was the defendant before the learned trial Court and the respondent was the plaintiff. For convenience, the parties hereinafter shall be referred by the same status, as they hold before the learned trial Court.

The plaintiff instituted Civil Suit No. 1 of 1995 in the Court of learned Sub Judge, 1st Class, Court No. II, Nurpur (for short the ‘learned trial Court’) and sought decree for possession by evicting the defendant from Shop No.2, situated in Khasra No. 1455, measuring 0-00-52 hectares in Mauza Rehan, Tehsil Nurpur, District Kangra (for short the ‘suit land’) and for decree for recovery of Rs. 6000/- on account of arrears of rent w.e.f. September, 1992 to September, 1994.

The plaint was instituted on 19.10.1994.

The plaintiff claimed himself to be the owner in possession of the suit property. He alleged that firstly he was put in possession of the suit land in the year 1990 by the previous owner named Yashpal and later the suit land was purchased by him vide sale deed dated 27.8.1992 from the said Yashpal. The plaintiff also alleged that he was in permissive possession of the suit land since the year 1990, thus, he had constructed two shops over Khasra No. 1455. The defendant was inducted as tenant over suit land (one shop) in September, 1992 on payment of rent at the rate of Rs. 500/- per month. The defendant defaulted in payment of rent and for such reason the plaintiff did not intend to keep the defendant as his tenant. A notice was issued to the defendant to vacate the premises and on his failure, the suit was filed.

In the written statement filed by the defendant, the averments made in the plaint were denied. The defendant denied the title of the plaintiff on the suit land. It was submitted that the defendant was in permissive possession of the suit land, as he had constructed two shops by spending his own money with the consent of Sh. Yash Pal Singh one of the co-sharers in the suit land. Sh. Yash Pal Singh had allowed the defendant to raise the construction of two shops, out of which, one was retained by the defendant and other was handed over to Sh. Yash Pal Singh. As per defendant Sh. Yash Pal Singh had further agreed not to evict the defendant from the suit land.

In this background, the sale deed by virtue of which, the plaintiff had purchased the suit land from Sh. Yash Pal Singh was alleged to void and fictitious document.

On the basis of pleadings of the parties, the following issues were framed by the learned trial Court:-

“i) Whether  the  plaintiff  is  owner  of  the  shop  in question?

ii) Whether the defendant took shop on rent from the plaintiff on payment of rent of Rs. 500/- per month from Sept. 1992? OPP

iii) Whether the tenancy was from month to month, as alleged? OPP

iv) Whether the plaintiff served a valid notice upon the defendant in Sept. 1994, as alleged? OPP

v) Whether the plaintiff is entitled to recover the possession and arrears of rent of the shop in question from the defendant, as alleged? OPP

vi) Whether the plaintiff has no locus standi to file the present suit? OPD

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

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

ix) Whether the suit is not properly valued for the purposes of court fee and jurisdiction, if so, what is the correct value? OPD

x) Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD

xi) Whether the plaintiff has not come to the court with clean hands? OPD

xii) Whether the plaintiff has no enforceable cause of action as alleged? OPD

xiii) Whether there is no relationship of land-lord and tenant between the parties? OPD

xiv) Relief.”

Learned trial Court vide judgment dated 15.10.1999 answered issues No. 1 to 5 in affirmative. All other issues were answered in negative and the suit of the plaintiff was decreed to the effect that the plaintiff was held entitled for possession of the suit land and also for recovery of Rs. 6000/- on account of arrears of rent with interest at the rate of 6% from the date of filing of the suit till realization.

The decree passed by the learned trial Court was assailed by the defendant before the learned District Judge, Kangra in Civil Appeal No. 167-N/XIII/1999. The appeal of the defendant was allowed by the learned District Judge, Kangra vide judgment and decree dated 23.6.2001. The learned District Judge framed additional issues as under:-

“13-A.Whether the defendant constructed two shops over the land in dispute with the consent of Yash Pal, as alleged and as per oral agreement one shop was to be retained by the defendant as per agreement with Yash Pal as alleged? OPD

13-B. Whether Yash Pal relinquished all his rights and title in the suit property as alleged? If so its effect? OPD

13-C. Whether sale deed by Yash Pal in favour of the plaintiff is fictitious, null and void and have no effect on the right, title and interest of defendant, as alleged? OPD.”

The matter was remanded back to the learned trial Court for decision afresh by affording the parties opportunity to lead evidence on the aforesaid additional issues.

Learned trial Court vide judgment and decree dated 4.2.2003 again decreed the suit of the plaintiff by holding him to be the owner of the suit land. The defendant was held as tenant. Additionally, the learned trial Court held that the construction was raised by the defendant. Accordingly, the decree of possession and recovery of Rs. 6000/- as arrears of rent along with interest at the rate of 6% was passed. Additional use and occupation charges w.e.f. September, 1994 till the date of passing of judgment was also awarded in favour of the plaintiff, quantified at Rs. 60,000/-. However, since the defendant was held to have raised construction by spending money, he was held entitled to Rs. 80,000/- on that count. By adjusting the amount of Rs. 60,000/-, payable by the defendant to the plaintiff, it was held that the plaintiff would pay a sum of Rs. 20,000/- to the defendant. The defendant was held entitled to recover the said amount after handing over the possession of the suit land to the plaintiff.

The defendant filed an appeal against the judgment and decree dated 4.2.2003, passed by the learned trial Court. The appeal was registered as Civil Appeal No. 46-N/13/2003 in the Court of learned District Judge, Kangra. The learned Appellate Court allowed the appeal vide judgment and decree dated 1.9.2006 by holding that the learned trial Court had not decided all the material issues separately. The matter was again remanded back to the learned trial Court to decide the same afresh in accordance with law.

Thereafter, the learned trial Court decided the suit vide judgment and decree dated 29.8.2007. The plaintiff was held to be the owner of the suit land, however, the defendant was not been held to be a tenant. While partly answering issue No. 13-A in affirmative, it was held that the construction of shop was raised by the defendant. The learned trial Court held the possession of the defendant to be unauthorized and illegal and accordingly, a decree of possession of the suit land was passed in favour of the plaintiff. Since the defendant was not held to be the tenant, the claim of the plaintiff with respect to arrears of rent etc. was dismissed.

The judgment and decree passed by learned trial court was once again assailed by the defendant in Civil Appeal No. 67-N/13/2013/2008. The learned Additional District Judge-I, Kangra at Dharmshala has affirmed the findings returned by the learned trial Court and has dismissed the appeal. Hence this appeal.

This appeal was admitted on 16.12.2015 on the following substantial question of law:-

“Whether on account of misreading, misappreciation and misconstruction of law and facts as well as the oral and documentary evidence available on record, the judgment and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable?”

I have heard learned counsel for the parties and have also gone through the record carefully.

Mr. Ashok Chaudhary, learned counsel for the appellant has raised only one contention that in absence of any foundational pleadings, alleging the defendant as an encroacher, the decree of possession could not have been passed in the facts of the instant case, when the defendant was not held to be a tenant of the plaintiff in suit land.

On the other hand, Mr. Naresh Kaul, learned counsel for the respondent has supported the impugned judgment and decree by placing reliance on the judgment passed by the Hon’ble Calcutta High Court on 10.12.2018 in Second Appeal No. 424 of 2016, titled as, Jamaluddin Mollah vs. S. K. Mohammad Aslam, in which reliance had been placed on the judgment passed by the Hon’ble Supreme Court in Manickam @ Thandapani & another vs. Vasantha, 2022 SCC Online SC 2096, decided on 5.4.2022. Further reliance has been placed on judgment passed by Hon’ble Supreme Court in Bhagwati Prasad Vs Chandramani 1965 SCC Online SC 111. He submitted that the learned trial Court had the jurisdiction to pass a decree on the basis of facts proved in the case, even though, such a decree was not specifically prayed for.

The exposition of law in above matters, in my considered view, will not serve the cause of plaintiff for what has been held is that relief not specifically prayed can still be granted provided the factual foundation for such relief are available in the pleadings.

Noticeably, the specific case of the plaintiff before the learned trial Court was that he had inducted the defendant as a tenant on payment of rent at the rate of Rs. 500/- per month in September, 1992. He allegedly had terminated the tenancy by issuance of notice as the defendant had not made the payment of rent and thereafter the plaintiff had decided to discontinue the tenancy. The defendant was supposed to meet and defend only such case, as was set up by the plaintiff. Accordingly, the defendant had raised the defence denying the relationship of landlord and tenant with the plaintiff. Instead, he had set up a plea that he was holding the permissive possession of the premises on the strength of an agreement with the previous owner Sh. Yash Pal Singh, who had allowed the defendant to raise construction of two shops out of which one was the suit land, retained by the defendant.

Evidently, the plaintiff had not set up any plea in alternative to claim that in case the plea of tenancy was not proved, the defendant would be ranked as tresspasser and even then, he would be liable to deliver the possession to the plaintiff. In this background, I am of the considered view that the learned trial Court was not right in passing a decree of possession even while holding that the relationship of landlord and tenant did not exist inter-se the parties. The reason firstly is that the factual foundation was not there in the pleadings and secondly the right of the defendant of fair hearing has been denied, which amounts to violation of principle of natural justice. Had there been any plea of plaintiff alleging the defendant to be rank tresspasser, the defendant could have got opportunity to defend such a plea by raising defenses like irrevocable license or adverse possession etc. In this view of the matter, the judgment on which the learned counsel for the plaintiff has placed reliance will not help his cause as the principle laid down therein is that the courts are entitled to pass a suitable decree in the facts of a particular case provided it does not prejudice the rights of the other side.

The learned First Appellate Court has also erred in affirming the judgment and decree passed by the learned trial Court without looking into the above aspect of the matter.

The substantial question of law is accordingly answered.

In result, the appeal is allowed. The judgment and decree dated 10.4.2015, passed by the learned Additional District Judge-I, Kangra at Dharmshala in Civil Appeal No. 67-N/XIII/2013/2008, whereby the judgment and decree dated 29.8.2007, passed by the learned Civil Judge (Junior Division), Court No.II, Nurpur in Civil Suit No. 1 of 1995 has been affirmed is set aside. The suit of the plaintiff is dismissed. However, this judgment will not preclude the plaintiff from filing a fresh suit for possession against the defendant on the basis of title, needless to say in the event of filing of such suit, the defendant shall be entitled to contest the said suit on all permissible defenses available to him under law.

The appeal is accordingly disposed of. Pending applications, if any, also stand disposed of. Record be sent back forthwith.