Municipal Board v. Abdul Hameed — 1980 DIGILAW 942 (ALL)

JUDGMENT K. N. Singh, J. 1. THIS appeal is directed against the judgment and decree of Civil Judge, Bijnor, dated 20-3-1978 decreeing the plaintiff-respondent's suit. 2. THE plaintiff-respondents who are 68 in number filed a suit for permanent injunction, restraining the Municipal Board, Chandpur defendant-appellant from interfering with the plaintiff's right to reside in their houses and using the land appurtenant - thereto. The suit was filed with the allegations that the residential houses of the plaintiff are situated on plots Nos. 1507, 1508, 1557 and 1558 in Mohalla Bazar Mehma Sarai in the town of Chandpur. The plaintiffs are in possession of the houses situated thereon and they have been enjoying the open land as Sahan. The plaintiff further asserted that the said houses were in their occupation from the time of their ancestors and they have been repairing and building the said houses. The Municipal Board is not the owner of the houses and land and the land is not Nazul land. The plaintiffs have never paid any tax or rent to the Municipal Board in respect of their residential houses. The plaintiffs further asserted that they were illiterate persons. The Municipal Board taking advantage of their illiteracy obtained signatures while collecting subscriptions during the India-China war in 1962 and the Municipal Board has utilized those signatures for creating some documents against the plaintiffs. The Municipal Board has been trying to oust the plaintiffs from the houses lying in Mohalla Bazar Mehma Sarai treating them trespassers, the Municipal Board has been demanding rent from the plaintiffs on the ground that the site of their houses was Nazul land. The plaintiffs claimed for issue of a permanent injunction restraining the Municipal Board, Chandpur, from evicting them from their houses and from taking any action against the plaintiffs either to realise rent or to dispossess them from any of the houses, land or Sahan in any manner. The defendant-appellant filed written statement and contested the suit. In its written statement the appellant pleaded that Mehma Sarai situate in Mohalla Bazar is government property and that the land and the houses standing on the plots in dispute situate in Mohalla Bazar Mehma Sarai vest in the State Government and it is Nazul land. The Municipal Board has been entrusted its management. In its written statement the appellant pleaded that Mehma Sarai situate in Mohalla Bazar is government property and that the land and the houses standing on the plots in dispute situate in Mohalla Bazar Mehma Sarai vest in the State Government and it is Nazul land. The Municipal Board has been entrusted its management. The plaintiffs and their ancestors have been paying rents to the Municipal Board and every year they have been paying rent till 1963 and thereafter they refused to pay rent. Proceedings were taken for their ejectment. The appellant further pleaded that neither the plaintiff-respondents nor their ancestors acquired any legal right or title to the land or buildings, they are not the owners of the same. Since the plaintiffs have not been paying rent, they are liable to be ejected and they are not entitled to any relief of injunction by the court. The appellant further pleaded that the suit was bad for non-joinder of the State Government. The suit was further bad on the ground that 68 plaintiffs had their individual rights and they could not join together to file one suit. The appellant further pleaded that the plaintiffs had filed suits No. 253/63 and 353/63 in the court of Munsif, Bijnor on a similar relief which has been dismissed. The respondents were, therefore, not entitled to maintain the suit. No relief for injunction could be granted in the absence of declaratory relief. 3. THE learned Civil Judge held that the plaintiffs are the owners of their respective houses situate in Mohalla Bazar Mehma Sarai and their possession has remained undisturbed either by the State Government or by the Municipal Board, Chandpur for a long period. The trial court further held that since the houses of the plaintiffs have been in existence for more than 30 years and as no action was ever taken by the defendant-Board or the State Government to realise rent or premium, the plaintiffs acquired title to the land and the buildings. Since the plaintiffs as owners were in possession, they are not liable to ejectment and the Municipal Board has no right to interfere with their enjoyment of the buildings and the land or to demand rent from them. Since the plaintiffs as owners were in possession, they are not liable to ejectment and the Municipal Board has no right to interfere with their enjoyment of the buildings and the land or to demand rent from them. All other pleas raised on behalf of the appellant against the maintainability of the suit were repelled by the trial court on the findings that the State Government was not a necessary party and the plaintiffs who are 68 in number had common cause against the Municipal Board, hence they could file one suit. On these findings the learned Civil Judge decreed the plaintiff's suit and granted permanent injunction, restraining the appellant from interfering with the possession of the plaintiffs' right of residence in the houses lying within the boundaries of Mohalla Bazar Mehma Sarai and also the use and occupation of the said houses and the land lying around the said houses being used by the plaintiffs by way of Sahan. 4. THE plaintiff-respondents' case is that the plots in dispute are situate in Mohalla Bazar Mehma Sarai, their ancestors had constructed the buildings for their1 residence and they had been using the open land in front of their houses as Sahan for the last 100 years. Some of the houses were Kachha which were converted into pucca ones by the plaintiffs and their ancestors. Reliance was placed on 1867 Khasra extracts which recorded Bhathiaras in possession of the house situate in abadi on the disputed plots. The plaintiffs alleged that by their long continuous possession" they have acquired legal right to the buildings standing on the plots in dispute as well as to the buildings site and also to the open land situate in front of their buildings as Sahan. They have further asserted that the Municipal Board has been trying to evict them for no rhyme or reason. The Municipal Board first tried to evict them by filing criminal complaints but the criminal complaints were dismissed. Thereafter the Municipal Board has been demanding rent, taxes and trying to evict them by force in an illegal and unauthorised manner. The plaintiffs claimed relief for grant of perpetual injunction against the Municipal Board from dispossessing them from the land and the buildings. The appellant's case is that the land and the buildings including the shops standing on the plots in dispute belonged to the State Government as it is Nazul property. The plaintiffs claimed relief for grant of perpetual injunction against the Municipal Board from dispossessing them from the land and the buildings. The appellant's case is that the land and the buildings including the shops standing on the plots in dispute belonged to the State Government as it is Nazul property. The State Government has entrusted the management of this property to the Municipal Board, Chandpur, but the ownership continues to vest in the State Government. Each year the Municipal Board has been letting out the shops and the buildings to various persons and the rent was collected through the agency of a Thekedar. For that purpose Theka has been given to various persons from time to time. The plaintiffs and their ancestors have been paying rent to the Municipal Board each year. The possession of the plaintiffs over . the land and tie buildings have all along been permissive in nature. The plaintiffs paid rent or licence fee till 1963 and thereafter they refused to pay the same and falsely started claiming title to the land and the buildings. The Municipal Board thereupon filed criminal complaints against them but those complaints failed. The Municipal Board has, however, taken action to eject the plaintiffs under the provisions of the U. P. Public Premises (Eviction of Unauthorised Occupants) Act 1965. In order to stall those proceedings the plaintiffs filed the suit for perpetual injunction on wrong and incorrect facts. They have no legal right to continue in possession or to claim any perpetual injunction against the Municipal Board. In the absence of owner of the property, namely, the State Government as a party to the smt, no relief for perpetual injunction could be granted to the plaintiffs. 5. A perpetual injunction is granted by court to a plaintiff to prevent the breach of some obligation existing in his favour whether expressly or by implication as provided by Section 38 of the Specific Relief Act 1963. The expression "obligation" includes every duty enforceable by law. Where a plaintiff has a legal right to continue in possession of property, he is entitled to a perpetual injunction against a person interfering with his possession, in such a situation perpetual injunction would be necessary to prevent the breach of existing right in plaintiff's favour. The expression "obligation" includes every duty enforceable by law. Where a plaintiff has a legal right to continue in possession of property, he is entitled to a perpetual injunction against a person interfering with his possession, in such a situation perpetual injunction would be necessary to prevent the breach of existing right in plaintiff's favour. When relief for perpetual injunction is claimed on the basis of possession the plaintiff has to prove that he has legal right to continue in possession and that the defendant has no right or title to interfere with his possession. If the defendant denies the plaintiff's title to the property or his right to continue in possession, the plaintiff must prove his title to the property as well as his right to continue in possession. The plaintiff may have acquired title to the property and legal right to continue in possession by adverse possession but if his title has not matured he would not be entitled to perpetual injunction against the owner or his agent, servant or manager. Proceedings for grant of injunction are always discretionary and a court of law shall not generally grant perpetual injunction in favour of the plaintiff against the rightful owner if he is a mere trespasser or if his possession is unauthorised. In a suit for perpetual injunction, it is not always necessary for the plaintiff to seek declaratory relief but if his legal right is denied by the defendant then the court is under a legal duty to consider the plaintiff's title to the property and in that process the plaintiff's legal title to the property in dispute has to be adjudicated. If the plaintiff fails to establish his legal right to the property or his legal right to continue in possession, he cannot be granted perpetual injunction against the owner or the manager of the property. In the background of these principles the controversy raised in the present appeal has to be adjudicated. 6. THE main question then arises is as to whether the plaintiff-respondents have title to the disputed property and if so have they legal right to continue in possession. Admittedly, the houses of the plaintiff-respondents are situated on plot Nos. 1507, 1508, 1557 and 1558 in Mohalla Bazar Mehma Sarai. The appellant has filed extracts from Nazul register for the years 1902 to 1966 (Exts. A-12 to A-16). Admittedly, the houses of the plaintiff-respondents are situated on plot Nos. 1507, 1508, 1557 and 1558 in Mohalla Bazar Mehma Sarai. The appellant has filed extracts from Nazul register for the years 1902 to 1966 (Exts. A-12 to A-16). The initial entry as contained in Ext. A-12 relates to the years 1902 and 1903. The entries show that plot Nos. 1507, 1508, 1557 and 1558 are Nazul land, the management of which was entrusted to the Municipal Board, Chandpur. The entry further shows that buildings and shops exist on the Nazul Property which also belongs to the Government. Entry contained in the Nazul register (Ext. A-16) further shows that the Nazul property had been let out on rent and the residents of Mehma Sarai had paid rent for the years 1960-61 and 1962-63. The appellant Board has produced documentary evidence to show that the residents of Mehma Sarai have been paying rent to the Government. Exts. A-17, A-18 and A-19 are the entries contained in the demand and collection register of the Nazul property for the years 1915 to 1966. These entries further show that Ali Bux, son of Jan Mohammad, and Khua Bux, son of Wafati had taken Theka of Sarai and they had paid rent for the years 1916-17. Other entries also evidence the payment of rent by the Thekedars on behalf of the residents of Mehma Sarai. Many of these Thekedars were the ancestors of the plaintiff-respondents. Copies of rent deeds which had been executed by the Thekedars and other residents of Mehma Sarai are also on record. These are contained in Exts. A-23 to A-33 which relate to the years 1924 to 1949. Ext. A-23 was executed by Kalloo, son of Jan Mohammad on September 14, 1924 in favour of the Municipal Board with regard to the Theka taken by him. Kalloo was grandfather of Abdul Hameed plaintiff-respondent No. 1 as admitted by him in his deposition before the trial court. Ext. A-24 is another rent deed executed by Chidda for the years 1925-26. Chidda was father of Peer Bux plaintiff-respondent No. 4. This is admitted by Abdul Hameed P.W. 2 in his deposition before the trial court. The rent deed and the Thekanamas produced by the appellant clearly show that the Municipal Board used to realise rent from the residents of Mehma Sarai in respect of the land and the shops standing thereon. Ext. This is admitted by Abdul Hameed P.W. 2 in his deposition before the trial court. The rent deed and the Thekanamas produced by the appellant clearly show that the Municipal Board used to realise rent from the residents of Mehma Sarai in respect of the land and the shops standing thereon. Ext. A-10 is the copy of Khasra of the abadi for the settlement year. In this document the State Government is recorded as owner of Ahata Nos. 1507, 1508, 1557 and 1558, and Bhathiaras are recorded in possession. Then the plaintiffs have themselves filed copy of Khasra for the settlement year 1867 (Ext. 34). This document shows that a number of buildings were standing on the plots in dispute wherein the residents of Mehma Sarai specially Bhathiaras were residing and the State Government is recorded owner of the land and the buildings. This document completely negatives the plaintiffs-respondents' claim that they are the owners of the land and the buildings. 7. THE documentary evidence produced by the parties shows that the State Government was the owner of the property and the plaintiffs and their ancestors had been paying rent to the appellant as tenants. The rent for Nazul plots was fixed from time to time. Mehma Sarai was a public place where travellers used to stay and take rest. Bhatiaras were employed as attendants to look after the travellers. By passage of time Bhatiaras started residing in the Sarai to carry on their business. The initial character of Sarai became extinct and the Bhatiaras used the Sarai for the purpose of their residence and business. The Sarai including the land and the buildings standing there, vested, in the State Government and the Bhatiaras were granted permission from time to time to reside therein on payment of rent to the Government. On November 7, 1962, the District Judge, Bijnor, addressed a letter to the President of the appellant Municipal Board (Ext. A-20) fixing rent of the plots, mentioned therein. The letter directed the President to realise rent forthwith from the families using the plots shown in columns 3 and 4 of the list, and to deposit the same in the government treasury. The letter further directed that in future the plots should be leased out by public auction and occupants should not be allowed to exercise their monopoly over the government Nazul land. The letter further directed that in future the plots should be leased out by public auction and occupants should not be allowed to exercise their monopoly over the government Nazul land. The list of Bhatiaras residing over plot nos. 1507, 1508, 1557 and 1558 of Mehma Sarai, Chandpur includes the names of 59 persons. The list describes the area and the annual rent payable by the said Bhatiaras. The name of all the plaintiff-respondents is included in that list. The document indicates that till 1963 the plaintiff-respondents had been paying rent to the State Government through the agency of the Municipal Board and that the land in dispute continued to be Nazul land. 8. THE overwhelming documentary evidence available on record leaves no room for any doubt that the plaintiff-respondents are not the owners, instead the State Government is the owner of the land over which the plaintiff-respondents have got their buildings. Their possession has also along been permissive in nature and they never perfected their title by adverse possession. In order to claim title to the land in dispute the plaintiff-respondents should have proved their adverse possession for a period of more than 30 years. They have miserably failed to prove that their possession was adverse or that they have perfected their title remaining in adverse possession for a period of more than 30 years. The plaintiff-respondents have, no doubt, produced oral evidence in support of their claim that they have been in continuous possession of the land and that they are the owners of the property but the oral evidence is unworthy of any credence as overwhelming documentary evidence is on record to belie the plaintiffs claim. Before filing the suit out of which the present appeal has arisen the plaintiff-respondents nos. 1 to 4 and one Kamaluddin had filed suit no. 253 of 1963 in the court of Munsif, Bijnor. A copy of the plaint is on record as Ext. A-1 against the Municipal Board for the relief of perpetual injunction. The Municipal Board contested the suit but the suit was dismissed on the date of hearing under Order 9 Rule 8 C.P.C. as the plaintiffs of that suit failed to appear in the court on the date of hearing. In para 3 of the plaint (Ext. A-1 against the Municipal Board for the relief of perpetual injunction. The Municipal Board contested the suit but the suit was dismissed on the date of hearing under Order 9 Rule 8 C.P.C. as the plaintiffs of that suit failed to appear in the court on the date of hearing. In para 3 of the plaint (Ext. A-1) the plaintiffs clearly admitted that the disputed land was government property and that the residents of Mehma Sarai had been paying rent year after year to the Municipal Board. Averments contained in para 3 of that plaint amounts to clear admission by the plaintiff-respondent no. 1 to 4 that the State Government was the owner of the land in dispute and that the plaintiff's possession was permissive in nature. The admission so made in the earlier plaint is admissible in evidence although Abdul Hameed plaintiff no. 1 was not confronted with the averment contained in the plaint when he was in the witness box. Now the legal position is clear that if the admission is clear and unequivocal, it is admissible in evidence even without confronting the same to the party concerned -See Ajodhya Prasad Bhargava v. Bhawani Shankar Bhargava, 1956 AWR 866 (FB). There remains, therefore, no doubt that the plaintiff-respondents' possession over the property in question has been permissive and that they acquired no title to the property merely by remaining in possession. The trial court contrary to the pleadings made out a new case in holding that the possession of the plaintiff-respondents was in the nature of licence and since they had been permitted to make permanent constructions, the licence was coupled with transfer of the buildings site which conferred title on the plaintiff-respondents. No such case was pleaded by the plaintiff-respondents nor they produced any evidence to that effect. The trial court acted erroneously in making out a new case in upholding the plaintiff-respondents' title. In our opinion, the trial court failed to consider the documentary evidence on record and it wrongly recorded findings that the plaintiff-respondents were in possession as owners of various houses and the land lying in front of them and that they were not liable to ejectment. In our opinion, the trial court failed to consider the documentary evidence on record and it wrongly recorded findings that the plaintiff-respondents were in possession as owners of various houses and the land lying in front of them and that they were not liable to ejectment. In view of our reasons stated above, we set aside the findings of the trial court and hold that the plaintiff-respondents have no legal right or title to the land or buildings, their possession has been permissive in nature and the State Government continues to be the owner of the same. It, however, appears that with the permission of the government and the Municipal Board, some of the plaintiffs have made constructions over the land but it does not confer any right of ownership on them, instead their possession continues to be that of a tenant. Since a tenant is liable to ejectment on termination of tenancy, the plaintiffs have no legal right to claim perpetual injunction against the Municipal Board restraining it from taking any action in ejecting or dispossessing the plaintiffs. 9. LEARNED counsel for the appellant urged that since the State Government was the owner of the property in dispute, no relief of perpetual injunction could be granted to the plaintiff-respondents in the absence of the State Government as a party to the suit. We find force in this contention. The plaintiff-respondents' suit for perpetual injunction was based on the premise that they are the owners of the land in dispute, they have legal right to continue in possession which was being threatened by the appellant. Since the appellant had denied plaintiffs' title and their legal right to continue in possession, it was necessary for the trial court to adjudicate the question of title and plaintiffs' legal right to continue in possession. In such a situation the State Government which is the owner of the property was a necessary party. No adjudication relating to title or right of possession could be done in the absence of the State Government. It was, however, urged that since the State Government had not been interfering with the plaintiffs' possession, it was not necessary to implead the State Government. We find no merit in this contention. The appellant-Municipal Board was managing the property on behalf of the State Government and any order restraining the Board would certainly affect the right of the State Government. 10. We find no merit in this contention. The appellant-Municipal Board was managing the property on behalf of the State Government and any order restraining the Board would certainly affect the right of the State Government. 10. IN view of the above discussion, it is abundantly apparent that the plaintiff-respondents have failed to prove their title to the property in dispute. They have further failed to prove that they have a legal right to continue in possession of the property. Since the plaintiff-respondents have no legal right to continue in possession, they are not entitled to the relief of perpetual injunction against the appellant. As the plaintiff-respondents have been paying rent to the State Government through the appellant Board, they have, therefore, no legal right to obtain any order of perpetual injunction against the owner or manager of the property. The trial court wrongly decreed the plaintiff-respondents' suit. In the result we allow the appeal, set aside the judgment and decree of the trial court and dismiss the plaintiff-respondents' suit with costs. Appeal allowed.