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2010 DIGILAW 1135 (ALL)

Vakil v. Sakir

2010-04-06

RAKESH TIWARI

body2010
Rakesh Tiwari, J.: - Heard learned counsels for both parties and perused the record. 2. This second appeal has been filed by the plaintiff/appellant challenging the validity and correctness of the judgment and decree dated 27.03.1979 arising out of judgment and decree dated 25.08.1975 passed by Munsif, Deoria in Original Suit No. 437 of 1972. 3. The facts shorn of details are that Plaintiff/appellant filed Suit No. 437 of 1972 in the Court of Munsif, Deoria for recovery of possession over the house in suit i.e. Kothari, Dalan and Chabootra and mesne profits stating, inter alia that he is its owner and had let out a part of the said house to the defendant/respondent on a monthly rent of Rs.20/- which is said to have not been paid to him by the tenant defendant/respondent since 01.11.1971 as such his tenancy was determined by notice dated 18.04.1972. The defendant/respondent denied the plaint allegations and contested the suit by fling Written Statement to the effect that his father Tejoo was the owner of the house in dispute and not the plaintiff. It was stated that there is no relationship of landlord and tenant between the parties, and the suit is barred by time and estoppels. The suit was also contested on the ground that it was under valued and invalid. In alternative, the defendant claimed that he had perfected Title also by adverse possession. 4. On the basis of the pleadings of the parties, the Trial Court framed following eight issues:- i. Whether the suit is under valued and court fee paid is insufficient? ii. Whether ther was any contract of tenancy between the plaintiff and defendant? iii. Whether the defendant is liable to pay damages as arrears of rent as claimed? iv. Whether any notice under section 106 T.P. Act was served upon the defendant? If so, is it legal and valid? v. Whether the suit is barred by limitation? vi. Whether the suit is barred by estoppel? vii. To what relief if any, is plaintiff entitled? viii. Whether the plaintiff is owner of the house in suit? If so, its effect? 5. The Trial Court vide its judgment and decree dated 25.08.1975 decreed the suit holding the plaintiff to be the owner of the house in dispute and defendant is a licensee, which had been determined by notice dated 18.04.1972 duly served upon the defendant. viii. Whether the plaintiff is owner of the house in suit? If so, its effect? 5. The Trial Court vide its judgment and decree dated 25.08.1975 decreed the suit holding the plaintiff to be the owner of the house in dispute and defendant is a licensee, which had been determined by notice dated 18.04.1972 duly served upon the defendant. The Trial Court also held that defendant has no right or interest in the house in question and being a licensee is liable to handover the possession under him to the plaintiff and is also pay damages with effect from 18.04.1972 till the date the suit was decreed. 6. The Trial Court further held that plaintiff is entitled for benefit of Section 60(6) of Easement Act and as the said section applied only on the licence which is coupled with transfer of property there being no contract of tenancy between the parties. On the question of limitation, the Trial Court held that this point did not arise at all in the suit. 7. Aggrieved by the aforesaid judgment and decree, the defendant/respondent preferred Civil Appeal No. 152 of 1975. In the appeal he also got his written statement amended to the effect that as the Kachha house of the plaintiff had fallen down on 01.05.1953, a settlement dated 01.05.1953 (paper no. 16A) had been entered into between them. According to the settlement the defendant had raised constructions over the entire plot. The northern portion of the house went to defendant in lieu of the express made by his father in construction of the Pakka House and the southern portion to the plaintiff and that since the time of new Pakka construction of the house Tejoo, father of the defendant and after him, the defendant was owner. The Appellate Court allowed the Amendment Application No. 19A dated 19.02.1976 by order dated 30.03.1976, which was not challenged by the plaintiff. Thereafter the parties lead evidence in view of the amendment and also produced Expert Evidence on Paper 16A. The Lower Appellate Court then by its judgment and decree darted 27.03.1979 allowed the appeal dismissing the plaintiff's suit holding that on appraisal of the oral and documentary evidence as well as expert reports of parties that the agreement/settlement dated 01.05.1953, (Paper 16A) was executed between the plaintiff and the defendant has been fully acted upon in letter and spirit. The Lower Appellate Court then by its judgment and decree darted 27.03.1979 allowed the appeal dismissing the plaintiff's suit holding that on appraisal of the oral and documentary evidence as well as expert reports of parties that the agreement/settlement dated 01.05.1953, (Paper 16A) was executed between the plaintiff and the defendant has been fully acted upon in letter and spirit. Besides it, the court also drew presumption under Civil Law Amendment Act that pursuant to said agreement dated 01.05.1953 the father of defendant/appellant had constructed the entire house in dispute and taking the northern portion of the house as owner for possession of which the suit had been filed and the southern portion remained in possession of the plaintiff/respondent. The northern portion was given by the plaintiff under the agreement dated 01.05.1953 in lieu of the expenditure made by him as owner for constructing both the portions of the house and as such the right, title and Interest of the plaintiff/respondent over land beneath in respect of northern portion under possession of the defendant was extinguished. It was also held that plaintiff/respondent had failed to establish the house in dispute was let out to the defendant appellant @ of Rs.20/- per month. In the circumstances, defendant/respondent Tejoo and his heirs were held to be owner of the northern portion of the house and not a tenant. 8 .The Trial Court also held that defendant/appellant admittedly was in possession over the house in dispute for more than 12 years, therefore, the suit is barred by limitation. It is against the aforesaid findings, the present Second Appeal has been filed by the plaintiff. 9. It appears from the record that by the judgment and decree dated 06.02.2004, the Second Appeal was dismissed. The plaintiff/appellant filed S.L.P. (Civil No. 24264 of 2004) challenging the validity and correctness of the order dated 06.02.2004 passed by the High Court. The Apex Court has set aside the judgment passed by the High Court on the ground that it were passed without framing any substantial question of law while deciding the appeal as is envisaged by Section 100 C.P.C., and remand the matter for fresh consideration. 10. The Apex Court has set aside the judgment passed by the High Court on the ground that it were passed without framing any substantial question of law while deciding the appeal as is envisaged by Section 100 C.P.C., and remand the matter for fresh consideration. 10. After remand the following substantial questions of law have been framed:- (I) Whether the defendant/respondent having admitted that his father had made the construction in dispute under an agreement with the plaintiff, the possession of the defendant/respondent could ever be adverse to the plaintiff appellant? (ii) Whether the suit of the plaintiff/appellant was barred by limitation? 11. The contention of the learned counsel for the plaintiff/appellant is that the order allowing the amendment application by the appellate court was interlocutory in nature and was not challenged before the higher court as could have been challenged after the final decision in the appeal. It is stated that philosophy behind this principle is that hearing of the suit or appeal is not procrastinated on account of challenge to interlocutory order at intermediate stage. Learned counsel for the plaintiff/appellant has relied upon at para 6 of the judgment of Supreme Court in the case of Kshitish Chandra Bose Vs. Commissioner of Ranchi AIR 1981 SC 707 which reads thus:- "Mr. Sinha appearing for the respondent was unable to cite any authority of this Court taking a contrary view or overriding the decision referred to above. In this view of the mater we are of the opinion that it is open to the appellant to assail even the first judgment of the High Court and if we hold that this judgment was legally erroneous then all the subsequent proceedings, namely, the order of remand, the order passed after remand, the appeal and the second judgment given by the High Court in appeal against the order of remand would become non est." 12. It is further stated that admittedly the alleged agreement dated 01.03.1953 was not registered and value of the property being more than Rs.100 was required to be registered for transfer and conferment of Right and Title in the defendant. It is further stated that admittedly the alleged agreement dated 01.03.1953 was not registered and value of the property being more than Rs.100 was required to be registered for transfer and conferment of Right and Title in the defendant. In this regard, learned counsel for the appellant has also drawn the attention of the court to Section 100(5) of the Civil Procedure Code, which does not take away or abridges the power of the court to hear the appeal on any substantial question of law not formulated earlier provided the court records the reason for its satisfaction that the case involves such question. He has urged that alleged agreement dated 01.03.1953 which is the basis of the defendant's claim is an unregistered document and will not confer any title in immovable property in contravention of Section 54 of the Transfer of Property Act, 1882. 13. It is submitted that in view of Section 54 of Transfer of Property Act and in view of the provision contained under Section 100(5) of the Civil Procedure Code, the appeal can not be heard without there being any substantial question of law involved. It is stated that as the agreement dated 01.05.1953 was unregistered an agreement it was inadmissible in evidence and could not have been made basis for conferring right or title on the defendants. The counsel would argue that even it is assumed that the amendment was rightly allowed but as the agreement was inadmissible in evidence for want of registration it could not be termed as sale as defined in Section 54 of the Transfer of Property Act., as such, the document was liable to be ignored, but the first appellate court illegally allowed the appeal and set aside the judgment of the Trial Court. 14. It has been vehemently argued by the learned counsel for the plaintiff/appellant that it is also well settled principle of law that where a finding is based on inadmissible evidence, High Court will have power under Section 100 of Civil Procedure Code to interfere with such findings and as the agreement has neither been proved under Section 68 of Evidence Act nor there is any finding by the appellate court. The document being unregistered there will be presumption of its correctness under Section 90 of Evidence Act. The document being unregistered there will be presumption of its correctness under Section 90 of Evidence Act. In support of his aforesaid contention he has placed reliance on paragraph 12 of the judgment of Hon'ble Supreme Court in the matter of Ishwar Das Jain Vs. Sohan Lal J.T. 1999(9) SC 305, which reads thus:- "The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh [JT 1991 (5) SC 400= 1992 (1) SCC 143 ], it was held that the High Court was right in interfering in Second Appeal where the lower appellate Court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a Second Appeal of 1981 disposed of on 24.09.1985." 15. He has also relied upon para 14 of judgment in Union of India Vs. Ganesh Pandey and others AIR 1969 SC 204 (208) and 2004 ALJ 2689, which reads thus:- "Generally, a party cannot be permitted to set up a new case in a Second Appeal or raise a new issue. However, the question as to whether the original order of removal could be challenged in a civil suit when the same had merged with the appellate or revisional order is not only a jurisdictional issue, but also involves, a substantial question of law. In fact it is pure question of law, which requires no evidence. This Court, while admitting the second appeal had framed this issue as a substantial question of law. Thus, the submission of the learned counsel for the plaintiff-opposite party has no force and the defendants are permitted to argue on this issue." 16. The next point raised by learned counsel for the defendant/respondent himself claimed to be owner of the house in question and in alternative also claimed right on the basis of adverse possession. According to the learned counsel these are inconsistent pleas and are therefore, inadmissible. In this regard, he has relied upon the judgment in the case of Shailendra Amar Singh Vs. According to the learned counsel these are inconsistent pleas and are therefore, inadmissible. In this regard, he has relied upon the judgment in the case of Shailendra Amar Singh Vs. Harnam Singh Cornalius 1997 AWC 1124 , at para 9, 11, 12 and 17, wherein the Court held thus:- "The learned counsel for the defendant-appellant has submitted that this alternative plea being inconsistent to each other can not be taken by the defendant. He has referred the case of Smt. Arundhati Mishra v. Sri Ram Charitra Pandey, (1994) 2 SCC 29 . In paragraph 4 it has been held:" 17. It is urged that adverse possession is to be pleaded and proved, which in the instant case is lacking hence the first appellate court was not justified in conferring right of ownership upon the defendant on the basis of adverse possession in view of the fact that there is no case setup by the defendant/respondent of hostile and open possession. 18. Learned counsel for the appellant would also argue that the first appellate court has rendered a judgment of reversion that the reason given by the Trial Court for its finding have not been considered by the first appellate court, which was mandatory, therefore, the judgment of the first appellate court is liable to be set aside. He has placed reliance in this regard para 15 of the judgment of the Supreme Court in the matter of S.V.R. Mudaliar Vs. Rajabu F Buhari AIR 1995 SC 1607 , wherein it is averred that:- "There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate Court has to bear in mind the reasons ascribed by the trial Court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari vs. Maharaja Jagadhindra Nath (1906)10 Cal WN 630, wherein, while regarding the appellate judgment of the High Court of Judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgement which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge." 19. Lastly learned counsel for the appellant contended that admittedly the plaintiff was owner of the land over which the disputed house has been constructed. Lastly learned counsel for the appellant contended that admittedly the plaintiff was owner of the land over which the disputed house has been constructed. The Trial Court considered the entire evidence on record and recorded a categorical finding that the house is in two part has been disbelieved by the Trial Court. It is stated that in view of the admission of the defendant that plaintiff was owner of the Kaccha house existing upon the land earlier in which defendant had helped him in getting the house constructed Pakka and in lieu thereof he gave half portion to the defendant which has also been disbelieved by the Trial Court. The defendant has no case, since there findings have not been set aside by the first appellate court and yet the appeal has been allowed setting aside the judgment and decree of the Trial Court, as such, the finding given by the first appellate court being based upon no evidence are liable to be set aside with cost in this Second Appeal. 20. Per contra, learned counsel for the respondent/defendant submits that in so far as Ist question of law is concerned, it is non est as the defendant has not admitted the ownership of the plaintiff nor that plaintiff had let it out to him therefore, he had pleaded his own ownership in his written statement in the suit with alternative plea of adverse possession and that he had clarified his source of ownership in the amendment. 21. According to the learned counsel for the defendant/respondent, the defendant had pleaded and proved by cogent evidence that the house in dispute was constructed by Tejoo and he is in possession of it as owner after him. It is vehemently argued that the learned counsel has not advanced any argument on the Ist question of law. 22. It is submitted that in so far as IInd question of law is concerned that admittedly, the defendant is in possession for more than 12 years and even if agreement dated 01.05.1953 is ignored for argument, the suit of the plaintiff is clearly barred by time on is own pleadings. As regards, the Settlement dated 01.05.1953 Paper no. 22. It is submitted that in so far as IInd question of law is concerned that admittedly, the defendant is in possession for more than 12 years and even if agreement dated 01.05.1953 is ignored for argument, the suit of the plaintiff is clearly barred by time on is own pleadings. As regards, the Settlement dated 01.05.1953 Paper no. 16A is concerned, it is stated that it was filed with amendment application which was admitted and both the parties were given opportunity to lead evidence and also produce report of experts, hence in the circumstances the Lower Appellate Court had rightly recorded pure findings of fact on appraisal of documentary, oral and expert evidence which may not be interfered under Section 100 C.P.C. 23. It is lastly contended by the learned counsel for the defendant/respondent that arguments advanced by the counsel for the plaintiff/appellant beyond the substantial questions of law not framed or not taken in the Memorandum of appeal can not be decided in this appeal and the plaintiff can not be permitted to take any plea beyond grounds of Memo of appeal. Since the appeal is concluded by pure findings of facts of the first appellate court it deserves to be dismissed with exemplary costs. 24. No other point has been argued by the learned counsel for the defendant/respondent. 25. After hearing learned counsels for both parties and on perusal of record, as well as cases cited by the parties, I am of the considered opinion that appeal is extension of the suit and the trial Court can receive additional evidence at that stage, after hearing the parties and giving them an opportunity of hearing. Admittedly in this case the agreement dated 01.03.1953 was taken on record by the appellate court. Since the parties have been given opportunity to lead the evidence as well as oral evidence as well as produce expert witnesses on it, hence it can not be said that a new case is carved out in the Appellate Court. If an interlocutory order is passed by the first appellate court in an appeal which in the nature of final order deciding the rights of the parties. Finally, in such a case the same could be challenged in second appeal. Admittedly in this case an interlocutory order allowing the amendment application was not challenged by the plaintiff/appellant. If an interlocutory order is passed by the first appellate court in an appeal which in the nature of final order deciding the rights of the parties. Finally, in such a case the same could be challenged in second appeal. Admittedly in this case an interlocutory order allowing the amendment application was not challenged by the plaintiff/appellant. He rather succumbed to it and not only adduced oral evidence in respect of the amendment but also produced expert evidence on Paper No. 16A. It is settled law that additional evidence can be taken at the appellate stage. In this view of the matter it can not be said any how the case being carved out by the defendant therefore, reliance placed by the learned counsel for the plaintiff/appellant in the matter of Kshitish Chandra Bose Vs. Commissioner of Ranchi AIR 1981 SC 707 is misplaced. 26. As regards, the conferment of right and title upon the defendant on the basis of agreement dated 01.03.1953, which was not a registered document is concerned, suffice it to say that both the parties had relied upon it, truly letter and spirit,it can not be termed as sale as parties had mutually agreed for adjustment of their rights i.e. the plaintiff had acquiesced to his right to the land beneath the construction of northern portion in possession of the defendant/respondent in lieu of expenses made by him on construction of the house on the southern part of the land for the plaintiff/appellant. Similarly, the defendant/respondent had acquiesced his rights to the house constructed by him at his expense on the southern portion of land of the plaintiff/appellant, thus it was only a mutual recognition of rights which had been adjusted by mutual consent and acted upon by both the parties. Hence, Phoolpata and others Vs. Vishwanath Singh and others JT 2005(6) SC 483 also does not apply which is in a different fact and circumstance. 27. Coming to the submissions of the learned counsel that Court in the instant second appeal can decide a substantial question of law not framed, suffice it to note that in this case the Apex Court itself in S.L.P. (Civil No. 24264 of 2004) had set aside the judgment passed by the High court on 06.02.2004 on the ground that the High Court had not not framed any substantial question of law before deciding the appeal. If some incidental pleadings are required to be determined by the court in determining the substantial question of law, it may be another issue but substantial question of law is required to be framed by the court and decided by it in the Second Appeal. The judgment relied upon by the counsel are therefore clearly distinguishable. In fact, in the instant case by the amendment, the agreement was brought in the first appellate court below and was threshed out in the argument on the basis of oral and expert evidence as was adduced by the parties and hence it can not be said that any new case has been made out for the first time in this appeal. As observed earlier in the body of the judgment additional evidence can be taken by the appellate court in appeal. 28. I do not find any inconsistency in the plea taken by the defendant in the courts below. His claim that he was owner of the house and also in adverse possession of the land beneath it for more than 12 years was open and hostile. For all these reasons the instant Second Appeal is accordingly dismissed.