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SURYA PRAKASH RASTOGI versus ARUN KUMAR SINGHAL & OTHERS

High Court of Judicature at Allahabad

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Surya Prakash Rastogi v. Arun Kumar Singhal & Others - SECOND APPEAL No. - 777 of 2007 [2007] RD-AH 15587 (14 September 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

[Reserved]

Second Appeal No. 777 0f 2007

Surya Prakash Rastogi.....................................................Appellant

Vs.

Arun Kumar Singhal...................................................Respondents

Hon'ble Pankaj Mithal,J.

The dispute in the present second appeal is about a Rasta 5' 11'' long and 5' wide (hereinafter referred to as 'passage') situate on the eastern side of shop No. 5 forming part of building No. 50 Civil Lines, Bareilly.

According to the plaintiffs-respondents No. 1 and 2 their mother Smt. Shyam Kumari acquired absolute rights in almost the whole of bungalow No. 50, Civil Lines near Novelty Talkies as per the family settlement dated 24.7.1962 except certain portions including the five shops situate on the roadside. The said bungalow is bounded on the eastern side by the workshop of Sardar Ishwar Singh, on the western side by the Novelty Talkies, on the northern side by the Bareilly College Road and on the southern side by the Ahata Raja Citrakoot. The disputed passage is part of the aforesaid bungalow which had fallen to the share of their mother Smt. Shyam Kumari as per the family settlement dated 24.7.1962. Smt. Shyam Kumari expired on 5.8.1983 whereupon the property has devolved upon the plaintiff respondents No. 1 and 2.

The existence of five shops on the roadside which are owned by defendant Nos. 2 and 3 is admitted. Two of the shops being shop Nos. 4 and 5 are under tenancy of the defendant No.1 appellant. The defendant No. 1 appellant without any authority of law has encroached upon the disputed passage and had constructed a staircase therein for going on the roof of the shops. The defendant No. 1 appellant has no right to obstruct the said passage by constructing the staircase. Therefore when inspite of requests on 11.2.2001 he refused to clear the passage by removing the stair case, the plaintiffs-respondents No. 1 and 2 were left with no option but to institute the present original suit No. 76 of 2001 for permanent mandatory injunction directing the defendant No.1-appellant to remove the alleged staircase and to hand over the possession of the passage free from all encroachments.

The defendant No. 1 appellant contested the suit by filing a written statement denying the plaint allegations. He contended that no such passage ever existed on the spot. He is tenant since 1970 and the alleged stair case is part of his tenanted accommodation i.e., shops which he had constructed with the consent of the land-lords i.e., defendant Nos. 2 and 3. He also contended that stair case is old and since no date of alleged encroachment has been mentioned, the suit is barred by time as well as by the provisions of Specific Relief Act, 1963.

The court of first instance on the basis of the pleadings of the parties framed the following issues:-

1& D;k oknh okn i= ds lkFk layXu uD'kk utjh esa v{kj ,.ch.lh. ls nf'kZr fookfnr LFky dk Lokeh gS vksj og Hkkx oknh ds edku esa vkus tkus dk mldk rUgk jkLrk gS ? ;fn gWak rks izHkko ?

2& D;k oknh dk okn dky ckf/kr gS ?

3& D;k U;k;ky; dks okn dh lquokbZ dks {ks=kf/kdkj ugha gS ?

4& D;k oknh dk okn fof'k"V vuqrks"k vf/kfu;e dh /kkjk 38] 39] 40 o 41 ls ckf/kr gS ?

5& D;k oknh dk okn i{kdkjksa ds dqla;kstu ds dkj.k nks"kiw.kZ gS?

6& D;k oknh dk okn /kkjk 10 lh0ih0lh0 ds izko/kkuksa ds rgr LFkfxr fd;s tkus ;ksX; gS ?

7& D;k oknh us okn dk ewY;kadu de fd;k gS ,oa U;k;'kqYd de vnk fd;k gS ?

8& vU; dksbZ vuqrks"k ftls oknh ikus dk vf/kdkjh gks?

The issue No. 1 was on merits of the suit i.e., about the ownership of the disputed passage and the rest of the issues were legal and technical in nature. The court of first instance decided all the issues except issue No.1 in favour of the plaintiffs-respondents No. 1 and 2. The suit was held to be within time. On issue No. 1 the court of first instance held that the alleged stair care was old and as such no encroachment in the disputed passage has been made. However no clear finding about the ownership of the passage was recorded by the court of first instance. The suit on the basis of the above finding was dismissed.

Aggrieved by the judgment, order and decree of the court of first instance, the plaintiffs- respondents No. 1 and 2 preferred civil appeal No. 7/2006. No appeal or any cross objections were preferred by the defendant No. 1 appellant against the findings of the court of first instance on issue Nos. 2 to 7. Thus the finding that the suit was within time and was not barred by limitation was allowed to become final and conclusive. The lower appellate court vide judgment and order dated 31.5.2007 allowed the appeal after setting aside the findings of the court of first instance on issue No.1 and thus decreed the suit of the plaintiffs-respondents No. 1 and 2 for mandatory injunction against all the defendants to the suit.

It is in the above back ground that the defendant No.1 appellant has preferred this second appeal.

Learned counsel for the contesting parties agreed and consented for the disposal of the second appeal finally at the admission stage in the absence of respondents No. 3 and 4, who are in no way said to be affected by the decree either way. Therefore, I have proceeded to here them finally on merits.

I have heard Sri Kiran Kumar Arora, learned counsel for the defendant No. 1 appellant and Sri Pankaj Naqvi, learned counsel appearing for plaintiffs respondents No. 1 and 2. Respondents No. 3 and 4 are formal parties and therefore it was not considered necessary to issue notice to them.

The first submission of the learned counsel for the defendant No. 1 appellant is that the lower appellate court was not empowered to substitute its own finding on issue No,. 1 without setting aside the findings of the lower court. In reply Sri Pankaj Naqvi, learned counsel for the plaintiffs-respondents No. 1 and 2 submitted that the findings recorded by the lower court have duly been set aside by the lower appellate court and thereafter fresh findings have been returned on issue No. 1 and the said findings are based on evidence on record. Therefore they do not require any interference in second appeal.

I have considered judgments and orders of both the courts below and have also perused the plaint, written statement and the family settlement dated 24.7.1962 registered on on 25.8.1962 along with map attached to it. The lower appellate court on the basis of the submission of the parties has recorded that there is no dispute that defendant No. 1 appellant is the tenant of shops No. 4 and 5 situate in building No. 50, Civil lines Bareilly. The said shops are owned by defendants No. 2 and 3. The parties are also not in issue that the plaintiffs respondents No. 1 and 2 are the owners in possession of the entire property situate behind the shops. The dispute is only as to whether there existed the disputed passage and as to whether plaintiffs respondents No. 1 and 2 are its owners.

The lower court in view of the map attached to the family settlement, report of the Amin and the statements of the defence witnesses had come to the conclusion that there was no passage on eastern side of shop No. 5 and between the workshop of Sardar Ishwar Singh. On the contrary, it recorded a finding that there exists a staircase. The issue before the lower court was about the ownership of the disputed passage/staircase or in other words about the land/area occupied by the said staircase, if any. However, no specific finding was recorded by the lower court about the ownership of the land/area occupied by the said staircase. It may not be out of context to state here that the defendant No. 1 appellant had not adduced any documentary evidence in the form of a rent note or otherwise to establish that the alleged staircase formed part of his tenancy or was part of the two shops under his tenancies. On the other hand, on behalf of the defendants No 2 and 3 the undisputed owners and land-lords of the two shops it has been stated on affidavit that the land/area of the staircase or the alleged passage was not included in the tenancy of the defendant No. 1 appellant. No doubt defendants No. 2 and 3 are distantly related and in a way are family members of plaintiffs-respondent Nos. 1 and 2., and as such may be interested witnesses to a certain extent. Nonetheless, it is material to note that there is no concrete evidence on record to prove that the land/area of the said staircase or the alleged passage was ever the part of the tenanted portion let out the defendant No. 1 appellant.

The family settlement and the map attached to it are the only two documents on record which can prove the ownership of the land/area alleged to be occupied by the disputed staircase or the passage. The said family settlement and the map attached to it are both the documents of the year 1962. They are documents more than 20 years old and therefore their certified copies are admissible in evidence under Section 90-A of the Indian Evidence Act, 1872. The Amin report is not a document which can prove the ownership of the aforesaid land/area. It can only prove the existence of the staircase. Therefore on the basis of the Amin report the only conclusion which can be derived is that a staircase exist on the eastern side of shop No. 5 and that the same has been constructed in the year 1976. However, the finding of the lower court that the staircase has been shown even in the map attached to the family settlement of 1962 is totally perverse and is apparently incorrect. A staircase which according to the finding of the lower court was constructed by the defendant No. 1 appellant in the year 1976 can not be shown as such in the map of 1962.

A plain construction or reading of the map attached to the family settlement discloses that the disputed area/land in which the alleged staircase or passage is said to be in existence is shown in red colour. The portion marked in the map in red colour had undisputedly fallen in the share of Smt. Shyam Kumari, the mother of the plaintiffs-respondents No. 1 and 2. Therefore the conclusion of the lower appellate court that the plaintiffs-respondents No. 1 and 2 are the lawful owners of the said land/area suffers from no legal infirmity or perversity. The lower appellate court has rightly on the basis of the documentary evidence on record decided issue No. 1 after setting aside the findings of the trial court. The non consideration of the oral evidence of the defence witnesses by the lower appellate court in setting aside the findings on the said issue is not very material in view of the documentary evidence to enable it to record a clear cut finding. Therefore, ignorance of the oral evidence by the lower appellate court in no way vitiates the findings on the said issue.

Sri Arora, learned counsel for the appellant in support of his above submission had placed reliance upon JT 2005 (3) SC 220 State of Punjab Vs. Mohinder Singh. The Supreme Court in the aforesaid case has ruled that where the courts below acts upon irrelevant materials and leaves relevant materials from consideration it occasions interference in second appeal. A further and a careful reading of the aforesaid authority also makes it clear that oral evidence may have utility if there is no documentary evidence is forthcoming. In the present case the oral evidence had no value in view of the documentary evidence in the form of the family settlement and the map attached to it to prove about the ownership of the land/area occupied by the alleged disputed staircase or the passage.

In 1999 (2) AWC 1608 Kondiba Dagadu Kadam Vs. Savitri Bai Sopan Gujar the apex Court observed that when on the basis of evidence on record two inferences are possible, the one drawn by lower appellate court is binding upon the High Court in second appeal. Therefore also I propose to follow the view taken by the lower appellate court on issue No. 1. In 2006 SC 1975 Gurdeo Kaur Vs. Kaki and others the Supreme Court while discussing the scope of the second appeal held that finding of fact howsoever wrong is not liable to be interfered with in second appeal. This leaves me with little or practically with no authority to interfere with the finding of fact so recorded by the lower appellate court.

Sri Kiran Arora, learned counsel for the appellant next contended that the alleged staircase was constructed by the defendant No. 1 appellant in the year 1976 whereas the suit for mandatory injunction was instituted in the year 2001. Therefore the suit was patently barred by time. In this regard issue No. 2 has been framed by the lower court. The said issue was decided by the lower court in favour of the plaintiffs-respondents No. 1 and 2 and the suit was held to be within time but was dismissed on merits. Therefore, undoubtedly the defendant No.1 appellant had no occasion to assail the findings on the said issue by preferring an appeal. However, when the plaintiffs-respondents No. 1 and 2 had filed appeal against dismissal of their suit he could have filed cross objections but even then the defendant No. 1 appellant did not care to assail the finding on the question of limitation. It appears from the record that neither any cross objections in the said appeal were filed nor any argument on the point of limitation was raised before the lower appellate court. In this way, defendant No. 1 appellant apparently abandoned his claim about the issue of limitation and allowed it to become final and conclusive. Therefore, I am constrained to take the view that the defendant No. 1 appellant having acquiesced on the issue can not now be permitted in second appeal to re-agitate the same.

Even if the merits of the said issue are reconsidered, I am of the definite view that the suit is not barred by time. The simple reason for the above conclusion is that in the plaint the plaintiffs-respondents No. 1 and 2 have not only claimed permanent injunction for removal of the alleged staircase but has also prayed for the relief of possession of the passage free from all encroachments made by defendant No. 1 appellant. The suit is essentially based on title and in the suit the defendant No. 1 appellant has not raised any issue of adverse possession nor has claimed that he has perfected his title by adverse possession. Therefore, the suit falls strictly within the ambit of Article 65 of the schedule to the Limitation Act, 1963. Article 65 of the schedule to the Limitation Act provides limitation for instituting a suit for possession of immovable property or any interest therein based on title to be 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. The limitation of 12 years is from the date of adverse possession. However, since no adverse possession has been claimed till now, the limitation for institution of the suit had not even started running and as such the suit can not be held to be barred by limitation. In support thereof learned counsel for the defendant-respondent had relied upon JT 1998 (4) SC 279 Indira Vs. Arumugam and another. In this case the apex Court ruled that after the amendment in the Limitation Act, 1963 in a suit for possession by the plaintiff based on title he cannot be non-suited once he is able to prove his title by documents and other evidence unless defendant is able to prove his adverse possession. The defendant No. 1 appellant has not pleaded adverse possession. The plaintiffs-respondents No. 1 and 2 have proved their title over the land/area occupied by alleged staircase or the passage. Therefore, in view of the above they are certainly entitled to a decree of possession.

The last submission of the learned counsel for the appellant is that the decree for mandatory injunction for removal of the staircase can not be passed in this suit which has been brought after several years of its construction being barred by acquiescence. In this regard he has relied upon AIR 1983 SC 452 Krothapalli Satyanarain Vs. Kodanti Ramaiya. In this case a suit for mandatory injunction for removal of a wall was brought about by the plaintiff after 9 years and the prayer of its removal was made four years thereafter. The Supreme Court declined to direct for the removal of the wall and the plaintiff was held guilty of acquiescence. I am afraid that the aforesaid point cannot be permitted to be raised for the first time in this second appeal. It was not in issue before the courts below and was not even part of the pleadings. Neither plaintiffs-respondents No. 1 and 2 have pleaded about the date of knowledge of the construction of the said staircase nor the defendant No. 1 appellant has anywhere averred and pleaded about the time or the precise date when the plaintiffs-respondents No. 1 and 2 have actually acquired knowledge of the aforesaid encroachment. Moreover the acquiescence if at all may be in respect of the encroachment only but the plaintiffs-respondents No. 1 and 2 who are the lawful owners of the said land/area cannot loose their title over it on account of latches on their part as no adverse possession has been claimed. The Supreme Court in AIR 1953 SC 98 Shah Mool Chandra Vs. Jawahir Mills has observed as under:-

" A man who had vested interest and in whom the legal title lies does not and cannot, loose that title by mere latches, or mere standing by or even by saying that he has abandoned his right unless there is something more, inducing another party to act to his detriment relying upon his statement."

The plaintiffs-respondents No. 1 and 2 have not induced the defendant No. 1 appellant to act in any manner by their inaction or delay in bringing the suit. Therefore, there is no abandonment by the plaintiffs-respondents No. 1 and 2 of their right to claim possession of the land/area of the staircase or the passage. At best the acquiescence may be to the right to remove the encroachment. Therefore, this point also fails.

In view of the above discussion no substantial question of law arises in the present second appeal. However, before parting, it is necessary to point out that from the pith and substance of the plaint the suit in essence is one for possession of the disputed land/area but it has been couched in a language for mandatory injunction probably to avoid payment of ad-valorem court fees. In 1985 SC 857 Sant Lal Jain Vs. Avtar Singh, the Supreme Court held that though the prayer made in the suit was couched in the form of suit for mandatory injunction but in effect the prayer was one for possession of the properly. The party entitle to possession can not be denied the relief of possession merely for the reason that a proper prayer had not been made and had been couched in the plaint in the form of a suit for mandatory injunction. Therefore, though the plaintiffs-respondents No. 1 and 2 who are entitle to the relief of possession can not be denied the said relief on a mere technicality that the relief clause of the suit was not properly worded but at the same time they can not be permitted to avoid the payment of proper court fees. Accordingly, the plaintiffs-respondents No. 1 and 2 shall be entitled to execute the decree only on payment of the proper court fees in accordance with the law which is payable on the relief for possession.

The appeal lacks merit and is dismissed with the above observation. Parties to bear their own costs.

SKS

Date: 14.9.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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