Vishal Mani Uniyal vs Kushla Devi

Sharad Kumar Sharma, J

This is the plaintiff/appellant's Second Appeal, wherein, he has questioned the judgment dated 14th January, 2015, as rendered by the 4th Additional District Judge, Dehradun in First Appeal No. 76 of 2013, Smt. Kushla Devi Vs. Vishal Mani Uniyal, by virtue of the judgment as rendered by the Appellate Court, the Appeal was allowed and as a consequence thereto, the judgment of the Trial Court dated 18th April, 2013, as passed by the 1st Additional Civil Judge (Junior Division), Dehradun, District Dehradun in Civil Suit No. 348 of 2003, Vishal Mani Uniyal Vs. Kushla Devi, has been set aside and as a consequence thereto, the Suit preferred by the plaintiff/appellant has been dismissed.

Briefly put, the plaintiff/appellant's case before the Court below was that he was the purchaser of a property, from its predecessor owner by sale deed dated 21.01.1983, more particularly, defined at the foot of the plaint, bearing Municipal No. 283, Ballupur, Pratham (Aakashdeep Colony), Dehradun, bounded by in the North, property of defendant; in the South, the property of the plaintiff/appellant; in the East, other properties and in the West a passage. Ever since thereafter the purchase, he has raised a construction of his house and is residing there with his family. His case is that the defendant/respondent, who had a property on the northern side of the property of the plaintiff /appellant, had made efforts to encroach on 3 feet wide strip of land, which was left by the plaintiff/respondent beyond the boundary of his house, which he has contended that it was part of his property covered by the sale deed, which he left vacant, thereafter, has constructed his boundary wall and had left the vacant strip of land for drainage purpose, which was being encroached by the defendant/respondent by throwing garbage in the said space of land left by the plaintiff/appellant.

In the suit, in question, the plaintiff/appellant has initially sought a decree of permanent injunction as against the defendant/respondent, seeking a restraint from interference over the property, which has been described at the foot of the plaint, which constituted to be the part of the property which was purchased by the plaintiff/appellant, by virtue of the sale deed dated 2nd January, 1986. Out of the said property as purchased by the plaintiff/appellant, the property, which fell in dispute, was the property as described by figure "ABCD" as shown in the plaint map. Consequently, the plaintiff filed the Suit on 27.06.2003 and has sought the following reliefs :-

"क- प्रतिवादिनी, उसके परिवार के सदस्यों, उसके नौकरो, मजदूरों, एजेन्ट आदि को स्थाई निषेधाज्ञा द्वारा निषिद्व किया जाये कि वे वादी की प्रश्नगत सम्पत्ति पर किसी प्रकार का कब्जा न करे, नाली को बन्द न करे, उस पर निर्माण न करे और उसमें किसी प्रकार का हस्तक्षेप न करे और न ऐसा कोई कार्य करने का कारण बने।

ख - वादी को प्रतिवादिनी के समस्त वाद व्यय दिलाया जाये।

ग - माननीय न्यायालय अन्य कोई प्रतिकार दिलाना उचित समझे दिलाया जाये।"

Later on, the plaintiff /appellant amended the relief by order dated 28.07.2010 to the following effect :

"(A). A decree for permanent injunction may kindly be passed in favour of the plaintiff and against the defendant directing the defendant, his servants, agents, employees his successors, legal representatives, assigns etc., from creating any construction in the removal of the Malwa lying in the portitioni maked by letters A, B, C, D in the plaint map and which is towards North of the property of the plaintiff and towards of the property of the defendant.

Or in the alternative

A decree for mandatory injunction may very kindly be passed in favour of the plaintiff and against the defendant directing the defendant, his successors, legal representatives, assigns etc., to remove the malwa lying in the portion marked by letter A, B, C, D in the plaint map and which is towards North of the property of the plaintiff and towards South of the property of the Defendants."

The brief case of the plaintiff/appellant in the Suit was to the effect that he has purchased the property, in question, from its predecessors on 21st January, 1986, by virtue of registered sale deed and, in the Northern part of the property, the defendant/respondent was having his residential accommodation and, admittedly, it is not in dispute and as apparent from record that the defendant/respondent's property was about 3 to 4 feet more in height as compared to the property of the plaintiff/appellant, which was lying at a lower level.

A very peculiar case which has been developed and argued by the plaintiff/appellant in the suit, in question, was that out of the total property which was purchased by him, which constituted to be having an area of 277.73 square meter, it was on the Northern side that he has left a three feet wide space, which was about 60 feet in length and, thereafter, he has after leaving that open portion, plaintiff/appellant contends to have constructed a boundary wall thereafter, the 3 feet wide space to demarcate his property from the property of the defendant/respondent which was lying on the Northern side. Later on, he has filed a Suit contending thereof that the said space which was left in between the boundary wall of the plaintiff/appellant and that of the defendant/respondent, i.e. three feet wide space was about two feet in depth and 60 feet in length and three feet in width. What he wanted to submit in the plaint was that the said part of the property, which was left by plaintiff/petitioner constituted to be the part and parcel of the property purchased by him by the sale deed of 2nd January, 1986, and he has left that particular portion of the property in dispute, which has been more particularly described by the figure "ABCD" in the plaint map, for the purposes of construction of the drainage system and, thereafter, he has constructed his boundary wall. Meaning thereby, the land left by him for drain was, in fact, a land, which was under his ownership, which was being wrongfully interfered with by the defendant/respondent.

This preposition, though apparently, seems to be untenable, for the reason it absolutely improbable that if at all, the purchaser of the property, who has purchased total 277.73 square meter of land, would obviously when he is constructing a boundary wall, he would obviously be constructing the boundary wall only after including the said area in dispute, if at all, it feels to be or was confident that it was as part and parcel of the sale deed, which was executed in his favour.

The contention of the defendant/respondent was that he has constructed the boundary wall after leaving the said space and, thereafter, claiming it to be a part of his property was a theory which cannot be believed with any prudent person after purchasing the property, would leave a part of it, outside his boundary and then construct his boundary wall, as a consequence thereto leaving that particular part of his property, in dispute, to be the outside the precinct of his own boundary. It is the case of the plaintiff/appellant that after having purchased the said property, he had applied for sanctioning of the map before the MDDA and the same was sanctioned and after the sanction being granted, he has raised the construction of his residential accommodation over the property, in question, purchased by him by the sale deed dated 21.01.1986.

He submits that after raising of the boundary wall and his construction of residential house, later on, the defendant/respondent started using the part left by him of his property, which is disputed for the purposes of throwing garbage and dumping the waste material in the said disputed space. In order to elucidate the action, which was being taken by the defendant/respondent, subsequently, the plaintiff/appellant has got his suit amended by filing an amendment application, which stood allowed by the Court's order dated 28th July, 2010, and accordingly, he has also sought for a relief to the effect that the defendant/respondent may be directed by way of a mandatory injunction to remove the said garbage which has been dumped by him in the disputed space, which was lying in between the boundary wall of the plaintiff/appellant property and the defendant/respondent property.

After issuance of the notice in the suit, in question, the defendant/respondent was noticed and after receiving the notice, the defendant/respondent has filed their written statement and apart from denying the plaint allegation, he has also submitted that, in fact, the three feet wide space left in between the two boundary wall of the plaintiff/appellant and defendant/respondent, in fact, was the property belonging to none of them and rather it was the space which was left by the State for the purposes of construction of a public drainage system and he specifically denied the title of the said space was ever being vested with the plaintiff/appellant and further denied that it cannot be believed that the owner of the property who is purchasing the same by virtue of sale deed, would leave a part of the property, thus purchased by him and, thereafter, construct his boundary and later on, on raising of a dispute contending that the said part, which has been thus left outside his boundary, which is disputed in the suit, in question, constituted to be part and parcel of the sale deed dated 21st January, 1986.

After the exchange of the pleadings, the learned Trial Court by an order dated 10th December, 2013, had framed four issues for its adjudication, which had arisen after the exchange of the pleadings between the parties and the issues thus farmed are quoted hereunder :-

"1. क्या वादी द्वारा वादपत्र के साथ संलग्नक नक्शा नजरी में अक्षर ए.बी.सी. व डी. से दर्शित किये गये भाग पर अपनी भूमि पर नाली के रूप में छोडा गया था ? यदि हां तो प्रभाव।

क्या प्रतिवादी उक्त नाली को बलपूर्वक बन्द कर कब्जा करने का प्रयास कर रहा है, जैसाकि वादी का कथन है ?

क्या वाद का मूल्यांकन कम किया गया है तथा न्यायालय शुल्क अपर्याप्त किया गया है ?

वादी किस, यदि कोई अनुतोष को प्राप्त करने का अधिकारी है?"

Before venturing further, it would be important to mention that it was a plaintiff/appellant suit for grant of decree of permanent injunction as against the defendant/respondent and in order to get a decree of permanent injunction, the responsibility to establish his title over the property and his rights over the three feet wide space between the two properties was to be discharged by him in view of the provisions contained under Section 103 of the Evidence Act and it would not be out of place to mention that in the evidences, which has been filed by the plaintiff/appellant to substantiate his case before the Court below, surprisingly, the map which stood sanctioned in his favour by the MDDA was never placed on record as an evidence by him. Later on, the same was brought on record by the defendant/respondent, which was ultimately placed on record and was numbered as paper No. 47-C at an appellate stage.

The learned Trial Court, while considering the rival contentions, the Suit was decreed by the judgment dated 18th April, 2013 and, more particularly, the reason which has been assigned for decreeing the Suit by the learned Trial Court has been on the ground that the defendant/respondent, while recording his statement as DW1 has admitted the fact of existence of a drainage in between the two boundary walls of the defendant/respondent and plaintiff/appellant. Further, in the cross examination too, the defendant/respondent who appeared as DW1 has reiterated the statement which was recorded by him before the Court below pertaining to the existence of drainage over the disputed land. This Court on considering the statement of DW1, the question is that mere acceptance of the defendant/respondent of existence of the drainage in between the two boundary walls itself will not be sufficing the purpose to decree a suit for permanent injunction until and unless the plaintiff/appellant substantiates and proves his title and ownership in view of the provisions contained under Section 103 of the Evidence Act to the effect that he owes a title and right to occupy as owner of the property and to use the disputed part of the property, which was lying on the Northern side of the property purchased by him by sale deed dated 21st January, 1986.

If the Trial Court judgment is scrutinized in its totality, it is only the precise statement of DW1, which has been taken as to be the sole basis for deciding issue No. 1 and, consequently, decreeing the suit. Immediately after decree of the suit dated 18th April, 2013, the plaintiff/appellant initiated an execution proceeding by way of Execution Case No. 5 of 2013, seeking an enforcement of the decree rendered by the Trial Court in his favour.

In the said execution proceedings as initiated by the plaintiff/appellant, the Amin's report was called for, and Amin's report which was submitted before the Court below was numbered as paper No. 73-C. On the basis of the Amin's report, it has come on record, that the Executing Court passed an order to the effect of directing the judgment debtor to remove the malwa from the space, which was left in between the two boundary walls which was claimed by the plaintiff/appellant belonging to him and to be under his ownership.

What would be relevant to mention here at this stage itself is that at the time when the Amin conducted the inspection on 3.03.2015, the parties to the dispute, who were parties in the Execution Case No. 5 of 2015, were present on the spot and on the culmination of the Amin's inspection, a report was submitted by him on 19th March, 2015. Being dissatisfied with the Amin's report, it's the plaintiff/appellant, who had filed his objection as against the report of the Amin on 29th April, 2015. The Executing Court, after considering the rival contentions in relation to the Amin's report dated 19th March, 2015, and the objection raised by the plaintiff/appellant on 29th April, 2015, had considered their respective cases and held on 30th January, 2016, that the so called waste material or garbage which was dumped by the defendant/respondent in the open space, which is in dispute, has been removed. Consequently, based on the Amin's report dated 19th March, 2015, the Execution Case was closed by virtue of an order dated 18th March, 2016.

There is nothing on record at this stage in the present Second Appeal to show that as against the decision of the Executing Court, any further proceedings have been drawn by the parties to the Second Appeal, but, however, the statement has been made by the plaintiff/appellant that being aggrieved against the order of Executing Court, he has preferred an appeal which is pending consideration. There is nothing on record to show to what logical end it was carried and what was its final adjudication.

The fact remains that after the judgment rendered by the Trial Court dated 18th April, 2013, the defendant/respondent has preferred a Regular First Appeal under Section 96 of the C.P.C., which was registered as Civil Appeal No. 76 of 2013. The Civil Appeal was contested by the parties to the dispute and during the course of the proceedings of the appeal, the defendant/respondent, herein, in order to substantiate his contention and the plea raised in the written statement that it was a public drain and it never fell within the ambit of the share of property, which was purchased by the plaintiff/appellant by the sale deed dated 21st January, 1986, defendant/respondent, had placed on record the copy of the map which was sanctioned by the MDDA in favour of the plaintiff/appellant, which was numbered as paper No. 47-C before the Court below. The Appellate Court heard the parties on the issues which were framed by the Trial Court and, after considering the additional evidence, produced by defendant/respondent, which was not rebutted by the plaintiff/appellant at that point of time, which was taken on record to be considered by the Appellate Court while adjudicating the First Appeal.

Even otherwise also, logically by invoking the provisions contained under Order 41 Rule 27 of the C.P.C., the defendant/respondent had, in fact, tried to bring on record the document by virtue of which, the plaintiff/appellant was granted permission by the MDDA to raise the construction, which was the responsibility, which was otherwise was casted upon the plaintiff/appellant himself to show that the expanse of the property, which he owned and had a right to raise a construction in accordance with the sanction granted by the Development Authority.

The learned Appellate Court, while considering the map submitted by the plaintiff/appellant along with the plaint map as paper No. 4-A with that of paper No. 47-C, had ultimately come to the conclusion and has recorded a finding to the effect that the plaintiff/appellant has purchased a property by virtue of the sale deed, being paper No. 11-Ga, which was having an area of 277.73 square meter. But, on its comparison with the map, which stood sanctioned, the area, for which, the map was sanctioned in favour of plaintiff/appellant was in fact excess to the land which was actually purchased by the plaintiff/appellant and the map was sanctioned of an area of 293.61 square meter. If that be the finding of fact, which has been recorded by the learned First Appellate Court on considering the two maps and sale deed 21.01.1986, and rather both the documents, which belonged to the plaintiff/appellant, the Court has rightly come to the conclusion that once the map, which has already been sanctioned by the Development Authority under Sections 14 and 15 of the Urban Planning and Development Act, and the area of sanction happens to be in excess to the area of the document of title, i.e. which was purchased by plaintiff/appellant and which was vested with the plaintiff/appellant, in that eventuality, the theory as pleaded by the plaintiff/appellant in his plaint in relation to the fact that the property in dispute, i.e. the drainage system described as "ABCD" in the plaint map would obviously fall to be outside the precinct (boundary wall) and ownership of the property belonging to the plaintiff/appellant.

In fact, the finding has also been recorded by the Appellate Court that the construction of the defendant/respondent, which was existing on the Northern side of the property in dispute which belonged to the defendant/respondent, in fact, it was a construction which was raised by the defendant/respondent on a land, which was belonging to the State Government. Though, this finding at this stage, will be of no relevance for the reason that it was a finding which has been recorded without formulation to any issue and it was beyond the case, which was pleaded by plaintiff/appellant because it was not a lis, which was considering the right of the defendant/respondent in relation to the property on which his construction was existing and it was not a subject matter of the suit itself. Thus, the finding of Appellate Court was beyond the scope of suit, and further without framing any issue on the subject.

Consequently, considering the fact that the property in dispute since was outside the boundary walls of the plaintiff/appellant property, which he himself has demarcated it by construction of the wall, coupled with the fact that if his rights are taken into consideration in the light of the map, which he has submitted alongwith the plaint and as compared to the map of the Development Authority, which has been placed on record, since he was already in occupation of a land in excess in area to the land, which he has purchased by the sale deed dated 8th January, 1986, the Court has held that the property in dispute described by figure "ABCD" lying on the Northern side between the two boundary walls of the plaintiff/appellant and defendant/respondent, in fact, was a land, which was not belonging to either of the parties to the suit. Hence, it would be State land and it was not a land which was vested with either the defendant/respondent or plaintiff/appellant.

In order to substantiate his case further pertaining to the plaintiff/appellant's rights, apart from his plaint map and the sale deed which was on record, he had not produced any other documents or an independent witness or oral testimony of any independent witness to show his title over the property, in dispute, which was existing beyond the boundary walls of his own accommodation as per his sale deed itself.

The defendant/respondent had filed a Cross Objection by invoking Order 41 Rule 22 of the CPC so far it related to the finding recorded on issue Nos. 1, 2, 3 and 4 to the effect that the conclusion which has been drawn by the Appellate Court to the effect that the land which was lying after the boundary wall of the plaintiff/appellant and which was carrying the waste water has been declared as to be a State land, means which was the land not belonging to either of the plaintiff/appellant and the defendant/respondent and, consequently, the Appellate Court has observed that the said land belonging to the State Government.

It is this finding which has been objected by the plaintiff/appellant to the effect that this finding will be beyond the scope of the proceedings of the suit, itself, because it is no one case that in their pleadings before the Court below that the land in dispute as shown in the plaint map was ever belonging to the State Government or vested with it.

The contention of the defendant/respondent in the Cross Objection is that the Appellate Court while exercising its powers under Section 96 of the C.P.C. has had to confine itself to the pleadings and evidence and the issues which are sought to be agitated by the rival parties in the civil proceedings. He contends that the Appellate Court, while scrutinizing the propriety of the judgment of the Trial Court could not have travelled beyond the case which was under consideration before the Civil Court or the Appellant Court and thus, the finding which has been recorded to the effect that the property belonged to the State Government is perverse and beyond the scope of the suit itself.

In relation to it, the learned counsel for the defendant/respondent had placed reliance on the judgment reported in [2008] 17 SCC 491, Bachhaj Nahar Vs. Nilima Mandal. A reference has been made to para 10 of the said judgment, wherein, it has been propounded that the Civil Courts, including the High Court while exercising its appellate jurisdiction, when it is scrutinizing a decision taken by the subordinate Courts, has to limit its finding with regard to the evidence and the pleading raised by the parties and could not have travelled beyond it. It was in relation to determination of any right claimed by the parties. Para 8 of the said judgment, which has been relied by defendant/respondent reads as under :-

"8. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are: (i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.

(ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint. (iii) A factual issue cannot be raised or considered for the first time in a second appeal. Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions."

This Court after considering the rationale as laid down by the Hon'ble Apex Court in para 10 of the said judgment, holds that the finding as recorded by the Appellate Court pertaining to the land being a State land is only tentative in nature for the reason being that the two rival parties in the suit in contest, who were contesting the suit over the land, they were unable to show their any right and title having been vested with them legally over the land, in question, as per law and by evidence on record and in such an eventuality, under the principle of theory of imminent domain, if a land is without a title and more particularly when the defendant/respondent' title too does not stand established nor is claimed by him in relation to the property, in dispute for the purposes of the adjudication of a civil suit, the finding with regard to the vesting of the property with the State Government was inevitable. But, however, at this stage, it is made clear that the said finding will be not a finding, which is in rem, but it will be the finding inter se binding between the parties only and if at all the defendant/respondent feels himself to be aggrieved by the said finding, where the land has been declared to be vested with the State Government, he can have his recourses available under the relevant law as applicable for declaration of his right over the property, in question. If at all, its title vests with him. Otherwise, looking the nature of property, and manner it is used, and coupled with failure of the parties to prove their title over the land, then obviously, it would be land which would vest with the State. This Court is of the view that there is no anomaly in the finding thus recorded by the Appellate Court to the effect that it's a State land.

The learned counsel for the plaintiff/appellant has placed reliance on a judgment reported in (2014) 16 SCC 194, Divya Exports Vs. Shalimar Video Company and others, wherein, the Hon'ble Apex Court while dealing with the provisions contained under Order 41 Rules 24 and 25 of the CPC to be read with Order 14 Rule 2 has held that when an issue is invoked by the implication of the provision contained under Order 41 Rule 25 of the C.P.C., then it was incumbent on the Civil Court to have framed an issue and generally it could have recorded a finding on the same. The said judgment has been placed reliance by the plaintiff/appellant on the pretext that as soon as the application under Order 41 Rule 27 of the CPC of the defendant/appellant is allowed, and the map of the plaintiff/appellant was taken on record to be considered in evidence, it was incumbent on the Appellate Court to have framed an additional issue after accepting the document on record and then only could have recorded his finding pertaining to the area on which the construction exists and the area which the plaintiff/appellant has purchased, after remitted the issue to the Trial Court for its fresh consideration.

This Court is not in agreement with the argument extended by the learned counsel for the plaintiff/appellant, the reason being that it was rather the document, paper No.47 C, which has been brought on record was a document which was in favour of the plaintiff/appellant, by virtue of which, his map was sanctioned for raising construction by the Development Authority. At least, it is an improbable preposition that by taking a document on record, which belongs to the plaintiff/ appellant and creating a right for him to raise construction could have never be controverted by him and can never be an issue in dispute because it was the basis of his rights to raise construction on land, which was purchased by him. There could not have been atleast any controversy in relation thereto at least at the behest of plaintiff/appellant for which framing of additional issue is required because at least, he could not have disputed the map under the strength of which he has raised the construction, which was rather placed on record by the defendant/respondent by filing application under Order 41 Rule 27 of the C.P.C.

There is another aspect of the matter, even for a moment if it is presumed that he was aggrieved by the placement of the map on record and at the stage when the application under Order 41 Rule 27 of the C.P.C. was allowed, it was at that stage itself that the plaintiff/appellant could have invoked the provisions of Order 14 Rule 4 read with the Rule 5 requesting the Court for framing of an additional issue or in an alternatively, he could have also challenged the order by virtue of which the application under Order 41 Rule 27 of defendant/respondent was allowed. Having not done so and having permitted to allow the application under Order 41 Rule 27 of the CPC to be taken on record and having not prayed before the Courts below for framing of an additional issue in relation to the map of the plaintiff/appellant, which was filed by the defendant/respondent, the implications as laid down by the Hon'ble Apex Court in the judgment relied by him will not come into play because the Hon'ble Apex Court in the said judgment was dealing with the provisions contained under Order 41 Rule 24 and 27, i.e. at the stage when the Appellate Court considers it necessary to frame an issue or an issue is get framed by the parties in the proceedings before the Appellate Court, which is required to be remitted back at that stage to the Trial Court for its consideration, but, at least not in the circumstances of the present case. Since having not done so, at this stage, he cannot be permitted to have a somersaulted stand when he himself has waived of his rights to challenge the order of taking the document on record and had not sought any order of framing of additional issues for consideration.

In that view of the matter and considering the evidence and the statement which has been brought on record and after hearing the learned counsel for the parties at length, this Court is of the view that the substantial question of law as framed by this Court vide its order dated 26th April, 2018, to the effect that "Whether the first appellate court has erred in law in allowing the appeal in misreading the evidence", do not call for any answer by this Court and hence, any interference for the reasons already recorded above.

Consequently, the Appeal fails and is accordingly dismissed.