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2004 DIGILAW 299 (HP)

SANTOSH MALHOTRA v. H. P. S. F. C.

2004-11-01

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This Second Appeal is directed against the judgment and decree dated 30.12.1999 passed by the learned Additional District Judge, Shimla in Civil Appeal No.29-S/1 of 1995 whereby the appeal of the appellants-plaintiffs (hereafter referred to as the plaintiffs) against the judgment and decree dated 19.1.1995 passed by the learned Sub Judge 1st Class (IV), Shimla, had been dismissed. 2. Brief facts leading to the filing of the present appeal are that the plaintiffs instituted a suit against the respondent-defendant (hereafter referred to as the defendant) for permanent perpetual mandatory injunction restraining the defendant from interfering with the possession of the plaintiffs over the premises comprising three rooms, kitchen, bath, latrine on the Eastern side of the ground floor and a store in the basement of Bridge View and from dispossessing the plaintiffs therefrom. 3. Case of the plaintiffs as made out in the plaint is that the premises known as "Bridge View" owned by plaintiffs Jai Dev Malhotra and Rakesh Malhotra are managed by plaintiff Santosh Malhotra as landlord. The defendant was inducted as a tenant in the suit premises vide Rent Note dated 24.11.1972. The defendant used the premises as Office for a number of years but five or six years before the institution of the suit shifted its Office to New Himrus Building, Circular Road, Shimla and the premises in suit, thus, were occasionally used as a residence and unwarranted persons used to visit the premises and cause nuisance to the plaintiffs and inhabitants of the locality. Therefore, the landlord issued a notice to the defendant requesting it to vacate the suit premises. Keeping in view the genuineness of the claim of the plaintiffs and the past cordial relations between the parties, the possession of the suit premises was surrendered by the defendant to the plaintiffs on 22nd October, 1990 and thereafter the plaintiffs are in peaceful and exclusive possession of the said premises. However, at the behest of some officials of the defendant having inimical relations with the plaintiffs, defendant threatened to re-enter the premises forcibly and take possession thereof. In the meanwhile, the plaintiffs with a view to carry out the repairs of the damaged retaining wall stacked building material in the premises. On 29.10.1990, the officials of the defendant declared that they would forcibly dispossess the plaintiffs and take back the possession of the premises. Hence, the suit. 4. In the meanwhile, the plaintiffs with a view to carry out the repairs of the damaged retaining wall stacked building material in the premises. On 29.10.1990, the officials of the defendant declared that they would forcibly dispossess the plaintiffs and take back the possession of the premises. Hence, the suit. 4. The defendant filed written statement-cum-counter claim wherein the status of the respective plaintiffs qua the premises in suit and shifting of its Office to New Himrus Building have not been disputed. It is, however, claimed that despite shifting of the Office by the defendant in November, 1983, the suit premises had been in its continuous occupation/legal possession till 22nd-23rd October, 1990, when the plaintiffs illegally trespassed therein under the garb of status quo orders. It is further averred that the premises in suit were allotted to Onkar Singh, Manager of the defendant in November, 1983, who occupied the same till June, 1985. Thereafter, the premises were allotted to K.C. Rana, another Manager of the defendant, who remained in occupation of the premises till 20th October, 1990. On vacating the premises, said K.C. Rana handed over the keys to Hitender Sharma, DGM of the defendant. The premises were then allotted to Ashok Kumar Arora on October 24,1990 and when he went to occupy the premises it was found that the passage leading to the premises was blocked by wooden planks and gunny bags containing sand and other material placed in the passage and outside the door of the premises. It was found that on vacation of the premises by K.C. Rana, plaintiffs had unlawfully trespassed into the same and with a view to give legitimacy to their illegal act they instituted the present baseless and frivolous suit. The handing over of the possession of the premises by the defendant to the plaintiffs, as claimed in the plaint, has been denied though receipt of letter for vacation of the premises from the plaintiffs is not disputed. Against these circumstances, the defendant has claimed that the plaintiffs being in unlawful possession of the premises, the possession thereof is liable to be restored to the defendant. It is also claimed that the Corporation had paid the rent of the premises to the plaintiffs upto November 30, 1990, therefore, there was no occasion to surrender the possession of the premises to the plaintiffs before the said date nor it was surrendered. It is also claimed that the Corporation had paid the rent of the premises to the plaintiffs upto November 30, 1990, therefore, there was no occasion to surrender the possession of the premises to the plaintiffs before the said date nor it was surrendered. Hence, a counter claim for a decree for possession of the premises in favour of the defendant has been laid with a further prayer for dismissal of the suit of the plaintiffs. 5. Plaintiffs filed replication wherein they denied the grounds of defence as taken in the written statement and reaffirmed the claim as made out in the plaint. 6. On the pleadings of the parties, the trial Court framed the following issues: "1. Whether the defendant has vacated the premises in suit on 22.10.1990 as alleged? OPP 2. Whether the plaintiffs are entitled to the relief for injunction as prayed for? OPP 3. Whether the plaintiffs unlawfully tresspassed into the premises as alleged by the defendant? OPD 4. Whether the defendants are entitled to a decree for possession with respect to the premises? OPD 5. Relief. 7. On appreciation of the evidence led by the parties, the trial Court held Issue Nos. 1 and 2 against the plaintiffs and Issue Nos. 3 and 4 in favour of the defendant and accordingly dismissed the suit and decreed the counterclaim. 8. Being aggrieved, the plaintiffs preferred an appeal, which was heard and dismissed by the learned Additional District Judge, Shimla vide judgment dated 30.12.1999. Hence, this appeal by the plaintiffs. 9. This appeal has been admitted on the following Substantial Question of Law: "Whether there has been a mis-reading and mis-appreciation of the evidence by the courts below and further that the courts below have ignored material documents from consideration?" 10. I have heard the learned counsel for the parties and have also gone through the records. 11. It was contended by the learned counsel for the plaintiffs that the basic defect in the defence of the defendant is that it claims that the plaintiffs took over the possession of the premises in suit on 22nd-23rd October, 1990 under the garb of the status quo order whereas at the relevant time even the suit was not instituted which came to be instituted on 30.10.1990. Therefore, the claim for dispossession under the garb of the status quo order is factually incorrect and has adverse bearing on the claim and evidence of the defendant. It was also contended that in case the possession of the premises in suit was illegally taken and the defendant had come to know of the alleged trespass when Ashok Kumar Arora went to occupy the suit premises after allotment thereof to him on October 24,1990, in the natural course, the defendant would have reported the trespass to the police and its not doing so reflects adversely on the credibility of the claim and version of the defendant. It was also contended that the defence evidence relied on by the courts below to non-suit the plaintiffs consists of interested witnesses and the office notings which were prepared and produced in evidence at the stages later than relevant point of time which could not have been believed. It was also contended that though there are concurrent findings of the courts below but that does not mean that such findings cannot be upset in Second Appeal even if found to be based on misreading and misappreciation of the evidence leading to injustice as in this case. Therefore, urged the learned counsel for the plaintiffs that the suit deserved to be decreed and the counterclaim was liable to be dismissed. Therefore, the impugned judgment and decree cannot be sustained and are liable to be set aside and the suit is liable to be decreed. To substantiate his contention, the learned counsel for the plaintiffs has relied on State of Rajasthan v. Harphool Singh (Dead) Through his LRs (2000 Vol.5 Supreme Court Cases 652), Kulwant Kaur and others v. Gurdial Singh Mann (Dead) By LRs and others (2001 Vol.4 Supreme Court Cases 262) and Hafazat Hussain v. Abdul Majeed and others (2001 Vol.7 Supreme Court Cases 189). 12. On the other hand, the learned counsel for the defendant had contended that the findings of facts recorded by the Courts below are based on proper and correct appreciation of the evidence on record and the cogent and reliable evidence of the defendant about the trespass cannot be disbelieved for want of reporting the matter to the police. The defendant is an Institution in whose affairs none has personal interest to act swiftly. The defendant is an Institution in whose affairs none has personal interest to act swiftly. The decision for the defendant has to be taken by its functionaries at various channels and by the time the Institution reached the stage of decision to lodge FIR, the plaintiffs had already instituted the suit and the matter having thus become subjudice it was thought proper not to lodge a case with the police. It was further contended that it is immaterial that the stay order was not operating at the time of the trespass but was subsequently passed by the trial Court for the simple reason that whether there was stay or not trespass will remain trespass affording a cause of action to the defendant to resist the suit and lay a counterclaim. Therefore, contended the learned counsel for the defendant, there is no illegality or perversity in the impugned judgment and decree which may warrant interference therewith. 13. It may be pointed out at the very outset that the general rule is that concurrent findings of facts recorded by the Trial and 1st Appellate Court should not be ordinarily interfered with in Second Appeal even if the evidence on record is such that a different conclusion is also possible. However, there are exceptions to this general rule. The High Court by virtue of the provisions of Section 100 of the Code of Civil Procedure is not hampered or debarred from interfering with the concurrent findings of facts recorded by the Courts when such findings are based on no evidence or inadmissible evidence or ignoring the material and admissible evidence or "mere conjectures and surmises" or when there are glaring inconsistencies, contradictions and improbabilities in the evidence relied upon leading to perverse conclusions/findings. 14. The case law cited for the plaintiffs is reaffirmation of the aforesaid settled proposition of law and need not be reproduced in detail herein for the sake of brevity. It may, however, be pointed out that it is for the appellant to show that for any of the above or other similar infirmities the concurrent findings of facts as in this case are liable to be interfered with. 15. It may, however, be pointed out that it is for the appellant to show that for any of the above or other similar infirmities the concurrent findings of facts as in this case are liable to be interfered with. 15. The pivotal question of fact which required determination in this case is whether the possession of the suit premises was surrendered to the plaintiffs by the defendant as claimed by the plaintiffs or the plaintiffs trespassed into the suit premises as claimed by the defendant. Evidently, it is pure and simple question of fact and concurrent findings of the Courts below are that the defendant did not surrender the possession of the premises to the plaintiffs but they took unlawful possession of the premises in suit. Thus, it is in view of the legal position herein above set out that such concurrent findings of facts cannot be interfered with in Second Appeal unless any of the infirmities/illegalities constituting an exception to the general rule is shown to have been committed by the Courts below in arriving at their findings that the question raised in this appeal requires determination. 16. It is not in dispute that the defendant shifted its Office from the suit premises a few years before the institution of the suit and thereafter the premises were used as residence allotted by the defendant to its different officials at different points of time. It is also not in dispute that the plaintiffs called upon the defendant in writing to hand over the possession of the premises to them. The plaintiffs claim that it was pursuant to this demand in writing that the possession was delivered to them. However, there is no record showing a favourable decision having been taken by the defendant nor its office ever addressed any communication to the plaintiffs showing its intention to vacate the premises and handover the possession to the plaintiffs. In case the defendant had taken any such decision in the ordinary course a response to the written demand of the plaintiffs conveying the decision to surrender the possession and time and date for doing so would have been conveyed to the plaintiffs in writing. However, it is not in dispute that no such communication was ever sent for and on behalf of the defendant to the plaintiffs. However, it is not in dispute that no such communication was ever sent for and on behalf of the defendant to the plaintiffs. No doubt, the demand raised by the plaintiffs remained pending with the defendant for a couple of weeks but as usual in the case of institutions, the matters are considered and decided as per the convenience of the decision making authorities without much care and attention to the expediency. However, such delays in decision making ipso facto do not extinguish the rights of the institution. 17. In view of the Office orders Exts.DW-2/A, DW-2/B, DW-2/C and the partial admission of the plaintiffs that after shifting of the office the premises in suit were occasionally used as residence, it is manifest that the defendant has been allotting the premises to its officials as residence and never left it unoccupied except pending further allotment which was lastly done on 24.10.1990 vide Ext.DW-2/C. It is, thus, evident that defendant had no intention to vacate the premises which is further clear from the copy of Office notes Exts.DW-2/F, DW-2/G and DW-2/H. 18. The above Office notes Ext. DW-2/G and DW-2/H meet the contention of the learned counsel that non-reporting of the trespass to the police is a circumstance which adversely affects the version of trespass. As per these notings it was decided for the defendant to report the matter to the police but before this decision was finalized on 2.11.1990, the suit had already been instituted by the plaintiffs and order for maintaining status quo qua the suit property had been issued on 30.11.1990. In the given circumstances, if the criminal case was not ultimately registered against the plaintiffs that does not lead to the inference that the case was not registered because it was a case of handing over the possession of the premises by the defendant to the plaintiffs. 19. The contention of the learned counsel for the defendants that copies of the above Office notings were not filed with the written statement but were filed at a later stage and were prepared subsequently to support the claim of the defendant is not tenable. These documents have been admitted in evidence without any objection by the plaintiffs qua their genuineness or late production. So much so that Brahm Datt Kashyap (DW-2) who proved the aforesaid documents has also not been cross-examined about the alleged fabrication/late production of these documents. These documents have been admitted in evidence without any objection by the plaintiffs qua their genuineness or late production. So much so that Brahm Datt Kashyap (DW-2) who proved the aforesaid documents has also not been cross-examined about the alleged fabrication/late production of these documents. In these circumstances, the contention of the learned counsel for the plaintiffs urged in this appeal for the first time cannot be sustained. 20. The statements of the DWs cannot be termed those of interested witnesses simply because they happen to be the employees of the defendant. None of them is shown to have any personal interest in retaining the possession of the suit premises by defendant nor it is shown that they are for any reason biased or prejudiced against the plaintiffs. Therefore, there is no well founded reason to disbelieve their statements. On the contrary, the version of the plaintiffs that on 22.10.1990 a person from the Office of the defendant came to the house of the plaintiffs and handed over the keys of the suit premises is improbable and unreliable for various reasons. Primarily possession of the premises when to the surrendered by an institution, it will be surrendered against receipt. Admittedly, in this case the person allegedly handing over the keys to the plaintiffs did not secure any receipt from them qua handing over of the possession to them. The defendant had admittedly paid rent of the premises to the plaintiffs till 30.11.1990. It is improbable that in view of this payment the defendant would vacate the premises more than a month before the date till which date the rent stood paid. It is not the case of the plaintiffs that rent already paid by the defendant for the period 25.10.1990 to 30.11.1990 was refunded by them to the defendant at the time of taking over the possession of the premises or before or after that. 21. In the facts and circumstances of the case, the stray averments in the written statement that the plaintiffs took possession of the suit premises under the garb of stay order is not of the nature where by the version of the defendant about its unlawful dispossession of the suit premises could be discredited. 22. 21. In the facts and circumstances of the case, the stray averments in the written statement that the plaintiffs took possession of the suit premises under the garb of stay order is not of the nature where by the version of the defendant about its unlawful dispossession of the suit premises could be discredited. 22. In view of the above discussion and the conclusions, it can safely be held that in view of the preponderance of evidence in favour of the case of the defendant, the findings of facts recorded by the Courts below do not suffer from such infirmity/illegality which may be an exception to the general rule that concurrent findings of facts are not to be interfered with in Second Appeal. Therefore, the impugned judgment and decree do not call for any interference. 23. As a result, this appeal merits dismissal and is accordingly dismissed. Costs on parties. Appeal dismissed.