Vijay Singh (D.) by L.Rs. vs Smt. Munni Devi (D.) by L.Rs. and Others

Poonam Srivastava, J.—Heard Sri R. B. Singhal, learned Counsel appearing for the Plaintiff/Appellant and Sri K. Ajit, learned Counsel appearing for the Defendant/Respondents.

The second appeal was entertained by this Court. Notices were issued to the Defendant/ Respondents. Execution and operation of the judgment and order, and dispossession of the Appellant was stayed by this Court vide order dated 9.1.2006, Sri K. Ajit, advocate, preferred an application on 24.1.2006 for recalling interim order dated 9.1.2006 for the reason that he filed a caveat on 20.12.2005. Notice was sent to the Appellant by registered post on the same day. Acknowledgment has not been received back till date. Second appeal was filed in the Registry without giving any notice to him and interim order was passed behind his back on 9.1.2006. The application came up alongwith record of second appeal on 28.1.2006. On 27.4.2006, office was directed to summon the trial court record by the next date fixed, which was 10.5.2006. As agreed between the counsels for the parties, second appeal was listed for final disposal at the stage of admission itself. Several dates were fixed and final argument was heard by both the counsel for the parties on 5.9.2006. After the arguments, judgment was reserved. Second appeal was listed for further arguments on 9.5.2007. During the intervening period the sole Appellant died when the appeal was listed for ''further arguments'' on 9.5.2007, a substitution application was filed for substituting the heirs of sole Appellant. Application was allowed and the heirs were allowed to be brought on record on 17.5.2007. Further arguments of the respective counsels were heard.

Facts of the case are that the Appellant instituted an Original suit No. 52 of 1990, in the Court of Civil Judge (Senior Division)/Judge Small Causes Court, Mainpuri claiming relief of permanent prohibitory injunction to restrain the Defendant from dispossessing him from the suit property. The Original suit No. 52 of 1990, Vijai Singh v. Munni Devi and Ors. was clubbed with J.S.C.C. suit No. 6 of 1990, Satish Chandra and Anr. v. Vijai Singh, for ejectment, arrears of rent and damages for occupation. Both the Suit Nos. 52 of 1990 and 6 of 1990, were consolidated by an order dated 4.11.1992.

Facts of the case giving rise to the dispute are that the Plaintiff/ Appellant Vijay Singh claims himself to be owner in occupation of house No. 117, situated in Agrawal Mohalla. According to the Plaintiff, house in question was purchased for consideration of Rs. 7,000 on 24.2.1972 by means of a registered sale deed from one Shri Niwas Jain. The house was in a dilapidated condition, therefore, first floor was demolished in the year 1976 and the Plaintiff got it reconstructed. The relationship between the Plaintiff and husband of the Defendant No. 1 was very cordial. The Defendant No. 1 and father of the Plaintiff were involved in lending business by pawning movable and immovables. The Plaintiff''s son was married in the year 1977 and he was in need of money since financial condition of the Plaintiff was not good, he had taken a loan of Rs. 15,000 from Murari Lal husband of the Defendant No. 1, in lieu thereof sale deed was executed. It is contended that Rs. 10,000 was handed over before the Registrar and Rs. 5,000 was given elsewhere. It was also agreed upon that the parties will execute a rent deed for an amount of Rs. 225 per month. It was agreed that the sale deed will be a sham transaction and rent will be adjusted towards interest of the loan amount. The Plaintiff claimed that the said sale deed wass null and void for the reason that after execution of the sale deed, possession was not transferred. Consideration was not adequate and consequently the title cannot be said to be transferred, thus this deed was never acted upon. Mutation in the Nagar Palika record was not done. The Plaintiff claimed that he carried out coal business from the disputed accommodation since the year 1980, which was closed in the year 1986. Later four shops were constructed in the year 1986. Since shops were constructed without permission of Nagar Palika, therefore, prosecution of the Plaintiff was initiated at the instance of Nagar Palika. The Plaintiff had never tendered rent and Rs. 2,500 was given towards principal amount of loan by the Plaintiff by means of a bankers cheque. The Defendants raised no objection at the time of construction and, therefore, they are estopped on the principle of acquiescence from raising any objection and also four shops constructed in the year 1986 are in occupation of tenants of the Plaintiff. The sale deed executed on 4.1.1990 in favour of the Defendant Nos. 2 and 3, was also null and void for the reason that previous sale deed dated 27.7.1978 is itself a nullity, therefore, the Defendants had no right or title to execute sale deed in respect of the disputed property. The plea of adverse possession was also raised by the Plaintiff for the reason, no objection was raised regarding title by the Defendant No. 1 during the period of last 12 years and actual possession has not been transferred in favour of the Defendant Nos. 2 and 3, who are trying to interfere in occupation of the Plaintiff. The suit for a decree for declaration and permanent injunction for injuncting the Defendants from making any interference in Plaintiff''s possession was instituted. Subsequently, the Plaintiff amended relief clause and deleted relief of declaration, the suit continued for a single relief of injunction only. The Defendant/Respondents filed their written statement disputing each and every assertion of the plaint. The Defendants specifically pleaded that the house in question was transferred and the Plaintiff was allowed to occupy the house as a tenant at the rate of Rs. 225 per month. A rent note was executed. The rent was adjusted towards expenditure incurred in construction and the account noted down in the rent note finds signature of the Plaintiff himself.

The Defendant claimed to have constructed the four shops and according to the terms and conditions of rent note, the Plaintiff continued to pay taxes. It was for this reason, his name continued to be recorded in the record of Nagar Palika. The Defendant No. 1 executed sale deed on 4.1.1990 in favour of the Defendant Nos. 2 and 3 and put them in possession. Separate written statements were filed by the Defendant Nos. 2 and 3 disputing each and every assertion of the plaint. The house in question was newly constructed and shops were constructed by the Defendant No. 1 in the year 1986. Chabutara in front of the house was demolished and four shops were completed in the year 1988. The shops were let out to the tenants and the rent was realized by the Defendant No. 1, Munni Devi, she let out the house in question to the Plaintiff Vijai Singh at a monthly rent of Rs. 225. Subsequently, the Plaintiff failed to tender rent to the Defendant Nos. 1 and 2. In the circumstances, cause of action arose, J.S.C.C. suit No. 6 of 1990, for eviction and arrears of rent was instituted. The Defendants are bona fide purchaser and suit has been instituted by the Plaintiff on false allegation, therefore, it is liable to be dismissed with cost. The trial court framed as many as ten issues. The trial court dismissed the suit of the Appellant. The judgment was challenged in Civil Appeal No. 2 of 1999, before the Additional District and Sessions Judge, Court No. 3, Mainpuri, which was dismissed vide judgment and order dated 17.11.2005.

Sri R. B. Singhal, advocate, filed instant second appeal. A number of substantial questions of law have been framed. Following questions have been pressed and argued by the counsel for the Appellant.

Whether the Courts below could decline the relief of injunction since admittedly the Appellant is in occupation and he could not be evicted otherwise than in accordance with law?

Whether from failure on the part of the Defendants by not producing the best evidence, an adverse inference could be drawn u/s 114(g) of the Evidence Act?

Whether power of attorney could depose on behalf of Munni Devi?

Whether the Courts below committed manifest error of law in proceeding on an assumption that since no relief of cancellation of sale deed is claimed the Courts were liable to examine in view of 1965 ALJ 426?

Whether sale deed was ever acted upon which could confer any right on the Defendants?

Sri Singhal has argued that the disputed house was admittedly purchased by the Plaintiff and the subsequent sale deed in favour of the Defendant No. 1 is void ab initio as such there was no occasion for its cancellation. It is submitted therefore, in absence of relief of cancellation of the earlier sale deed, no right can accrue to the Defendant/Respondents and the Appellant could not be deprived of an order of injunction in his favour. Besides, sale deed dated 27.7.1978 was never acted upon, which could confer any right on the Defendant merely because relief of declaration was deleted from the relief clause. The court below could not decline the Appellant from granting permanent prohibitory injunction. It is settled principle of law that even an unauthorized occupant cannot be evicted otherwise than in accordance with law.

Counsel for the Appellant has placed reliance on a decision of the Apex Court in Gian Dass Vs. The Gram Panchayat, Village Sunner Kalan and Others, The decision of the Apex Court relates to proviso to Sub-section (5) of Section 100, Code of CPC formulation of substantial questions of law. The Apex Court remanded the matter to formulate substantial question of law and dispose of the appeal in accordance with law. Next case relied upon by the counsel for the Appellant Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. 2005 (1) AWC 138 (SC). Emphasis has been laid by the counsel for the Appellant on paragraph Nos. 13 and 14 of the said judgment. In the said case, since power of attorney was examined, the Apex Court ruled that the holder of power of attorney cannot depose for the act done by the principal and specially in a matter, which only the principal can have personal knowledge. Counsel for the Appellant has tried to demonstrate that in the instant case since husband of Defendant No. 1 had entered in the witness box and best piece of evidence i.e., the Defendant No. 1 Munni Devi was withheld in whose favour sale deed was executed by the Plaintiff, therefore, the Court was liable to draw adverse inference against the Defendant/Respondents. Next case relied upon by the counsel for the Appellant Ishwar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and Anr. 1999 (1) ARC 670 (SC), in support of his contention that adverse inference is liable to be drawn against the person u/s 114, Illustration (g) of the Evidence Act as she had not entered the witness box and present herself for cross examination. This argument cannot be accepted since power of attorney, who entered in the witness box on behalf of the Defendant No. 1 was none other than her husband who was undisputedly very much present at the time of execution of sale deed. In fact, the Appellant has himself asserted that the loan was given on account of cordial relation between the husband of the Defendant No. 1 and the Plaintiff, therefore, decision in the case of Janki Vashdeo (supra) is of no help to the Appellant. Besides, neither execution of the sale deed was denied nor it was challenged in the suit. Only assertion and challenge to the sale deed is that it was never acted upon and consideration was not equivalent to its cost. The alleged sale deed was executed in the year 1978 for Rs. 15,000, whereas admitted case of the Plaintiff is that he purchased the house in question in the year 1972 for Rs. 7,000. Thus the contention of the Appellant that consideration for sale was very less or inadequate is of no consequence. Third case relied upon by the counsel for the Appellant is Mawana Stand Vyapar Samiti and Another Vs. State of U.P. and Others, . In paragraph No. 15 of the aforesaid decision, this Court denied relief claimed and acted upon a sale deed for the reason that no effort was made by the Plaintiff of the said case to get the name mutated in the revenue records. In the instant case, counsel for the Appellant has tried to assert right of the Appellant for the reason that his name continued in the record of Nagar Palika and he was paying tax. Last decision cited by the counsel for the Appellant is Prabhu Dayal v. Gaon Samaj, Tandarpore, 1965 ALJ 426. Learned Counsel for the Appellant submits that since courts below failed to record its finding on the question of right and title in an injunction suit, requirement of law does not stand fulfilled and both the orders and judgments stand vitiated in law.

Sri K. Ajit, learned Counsel appearing for the contesting Respondent has emphatically disputed each and every arguments of the counsel for the Appellant. At the outset, he has submitted that while examining the suit or appeal, the Courts are required to look into evidence within four corners of the relief in a suit and nothing could be decided or granted beyond pleadings since the principal relief of declaration was withdrawn, relief of perpetual injunction does not survive. Besides, J.S.C.C. suit No. 6 of 1990 was decreed and the revision preferred against the said decree was dismissed. The order of the revisional court was not challenged, therefore, decree for ejectment, arrears of rent and damages attained finality and execution proceedings are continuing. Claim of the Plaintiff/Appellant is non-suited and at the threshold is liable to be dismissed.

Counsel for the Defendant/ Respondents cited a number of decisions in support of his argument. First case is Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another, The Apex Court discussed the scope and the question of satisfaction, when an injunction can be granted to the Plaintiff. The Apex Court ruled that though it is settled law that no injunction could be granted against the true owner at the instance of unlawful possession but in a case where the property has been acquired and proceedings have attained finality, no prima facie right or title exists and no perpetual injunction could be granted. Next case cited by the counsel for the Defendant/Respondents is Habib Ullah and Ors. v. Mohd. Yashin and Ors. 1995 RD 25 . This is to support the arguments that the Plaintiff has to depend on his own evidence to prove his case and not on shortcomings of the Defendant. Reliance has been placed on a decision Iqbal Ahmad Vs. Smt. Naimul, This decision is also on the question of burden of proof. In a case where the Defendants failed to lead evidence is immaterial, the Plaintiff has to establish his right by means of cogent evidence and in absence of such evidence, issue cannot be decided in favour of the Plaintiff for drawing adverse inference on the ground that the Defendants had not produced original sale deed. In the case of Madhav Singh and Others Vs. Shiv Prasad Singh and Another, as well as decision of the Apex Court in Govindaraju v. Mariamman, 2005 (1) AWC 787 (SC), deals with scope of Section 100, C.P.C.

After hearing counsels for the respective parties at length and going through the decisions cited by counsel for the respective parties as well as entire record of the instant second appeal, I proceed to decide as to whether question of law framed calls for interference by this Court in the instant second appeal or not? So far as first question of law is concerned, it is correct and settled law that no person even an unauthorized person cannot be evicted otherwise than in accordance with law. But it is to be examined in the instant case whether the Plaintiff/Appellant was being evicted otherwise than in accordance with law. The suit for injunction was instituted by the Plaintiff/Appellant. The relief of declaration was deleted. The Plaintiff/Appellant did not come forward with a case that he is being forcibly evicted or interfered in his possession, which calls for grant of permanent prohibitory injunction. It is admitted position that the Defendant/Respondents came up with a case that after sale deed was executed in their favour, the Plaintiff was put back in possession in capacity of a tenant. The rent note was executed and Rs. 225 per month was fixed as monthly rent. J.S.C.C. suit was instituted by the Defendants for ejectment on the ground of arrears of rent. The suit was decreed and the judgment was challenged in a S.C.C. revision. The revision was dismissed. It is also not disputed that execution proceedings regarding J.S.C.C. suit No. 6 of 1990 is pending before the executing court as such it is not a case where the Plaintiff is being evicted otherwise than in accordance with law. In fact, the Courts below have declined relief of injunction after coming to a conclusion that the Plaintiff is in occupation only in the capacity of tenant. Issue Nos. 1 and 2 were decided against the Plaintiff. Specific finding of fact has been recorded that the Plaintiff is an educated person, he stated on oath that he had signed the sale deed after careful reading the same. The rent note and other documents relating to the account of rent are in his own handwriting but only assertion on his part is that the amount paid in lieu of sale deed was by way of loan but there is no such assertion in the recital of the sale deed. Therefore, the Courts below accepted the assertion of the Plaintiff that since the Plaintiff had himself purchased the property for an amount of Rs. 7,000 and sold it for Rs. 15,000, it cannot be said that consideration was less. Besides there was no relief for cancellation of sale deed.

I am not in agreement with the arguments of the counsel for the Appellant that he is being evicted otherwise than in accordance with law. The Plaintiff should have come forward with a case that there was imminent danger of substantial nature and he apprehends injury and irreparable loss. The Plaintiff failed to establish prima facie case in his favour especially when the judgment in J.S.C.C. suit decreeing the Respondent''s suit for ejectment has become final, Plaintiff''s possession of the house is therefore, rendered unlawful. It was all the more reasons that the Courts should have refrained from granting an injunction since there was a valid decree in favour of the Defendant/Respondents, the suit was instituted only with a view to frustrate the decree passed by a competent Court in favour of the Defendant. In the case of Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, the Apex Court held that a party is not entitled to an order of injunction as a matter of course. The grant of injunction is within the discretion of the Court, which is to be exercised in favour of the Plaintiff, only if it is proved to the satisfaction that he is rightfully entitled to continue in possession of the property in question. There is likelihood of depriving him of his property without any authority in law or without following the procedure in accordance with law. The judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person. In the circumstances, first substantial question of law raised in the instant second appeal does not arise. Arguments raised by the counsel regarding payment of taxes by the Appellant to the Nagar Maha Palika and also proceedings for unauthorized shops were initiated against the Plaintiffs were not accepted by the Courts below. I am in agreement with findings arrived at by the Courts below that the receipts of Nagar Maha Palika do not confer any right or title to the Plaintiffs. A registered sale deed dated 27.7.1978 was executed in favour of the Defendant No. 1, which has neither been sought to be cancelled nor disputed. On the contrary relief for declaration was deleted and therefore, it is evident that the Plaintiffs had claimed for only a restraint order and nothing further. The principal relief having been withdrawn, the decree for injunction does not survive. The question of adverse possession raised in the instant second appeal is also without any evidence and the Plaintiffs have not been able to show how they have perfected their right on the basis of adverse possession. In absence of such material by the Plaintiffs, the Courts blow were absolutely correct in holding that the question of adverse possession was neither proved nor established. Other questions of law raised in the instant second appeal are related to the question of fact, which have already been adjudicated by the Courts below. They are concluded by findings of fact and cannot be reopened or interfered in the instant second appeal. Scope of Section 100, Code of CPC has been elucidated in the latest decision Govindaraju (supra), by the Apex Court. Paragraph No. 16 of the aforesaid decision is quoted hereinbelow :

As per settled law, the scope of exercise of the jurisdiction by the High Court in second appeal u/s 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a latter date after recording reasons for the same. It was observed in Santosh Hazari''s case, (supra), that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be a "substantial" question of law it must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law "involving in the case", it was observed that to be a question of law ''involving in the case'' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the Court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties.

On the basis of the aforesaid test, substantial questions of law raised in the instant second appeal do not call for consideration as factual aspects have been considerably dealt with by the Courts below. The second appeal lacks merit and is, accordingly, dismissed with cost.