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2010 DIGILAW 1356 (RAJ)

Mohammed Saiyad v. LR’s of Dr. Abdul Latif

2010-08-03

DINESH MAHESHWARI

body2010
JUDGMENT 1. - This civil second appeal by the plaintiffs-appellants, against the judgment and decree dated 08.04.1999 as passed by the Additional District Judge No.3, Jodhpur in Civil Appeal No. 1/1999, was admitted for consideration on 05.07.1999 on the following substantial questions of law:- "1. Whether a finding on a question of fact can be recorded against the admission and pleadings ? 2. Whether the proved possession of the plaintiff over the immovable property in question can be disturbed by the defendant without the due process of law ?" 2. So far this appeal is concerned, the controversy between the parties lies in a narrow compass and a brief reference to the background facts would suffice. The plaintiff Haji Mukhtyar Ali (since deceased and represented by his legal representatives-appellants) filed the civil suit bearing number 351/1982 in the Court of Civil Judge (Junior Division), Jodhpur City, Jodhpur seeking essentially a relief of injunction with the submissions that he was in possession of the property situated at Plot No. 840, Chopasni Road, Jodhpur ad-measuring 120' x 30'; that under an agreement executed between the parties on 18.08.1968, he has raised construction on the suit property, of 11 shops and a gallery, while incurring expenditure of a sum of Rs. 65,259.76; and that 2 shops were in his possession and the rest were in possession of his tenants. It was submitted that the defendants were indulging in various acts and deeds of interference in possession of the plaintiff and intended to raise construction on the property in dispute. The plaintiff asserted that the defendants were not entitled to interfere with his possession and were required to be restrained by perpetual injunction. The defendants put the suit to contest, inter alia, disputing the quantum of investment made by the plaintiff in raising the construction and with the submissions that after expiry of the term of agreement, the plaintiff was merely an unlawful occupant and was not entitled to any injunction. The defendants put the suit to contest, inter alia, disputing the quantum of investment made by the plaintiff in raising the construction and with the submissions that after expiry of the term of agreement, the plaintiff was merely an unlawful occupant and was not entitled to any injunction. On the pleading of the parties, the following issues were framed by the learned Trial Court:- " 1- vk;k izfroknhx.k dks IyksV la0 840 ij cuh nqdkuksa dh QLV Qyksj ij dksbZ rkehj cukus dk vf/kdkjh ugha gS\ ( oknh ) 2- vk;k oknh vCnqy jghe ds chp esa fy[ks bdjkjukesa dh E;kn lekIr ugha gqbZ gSa blfy;s oknh gkth fcfYM+x dh reke tk;nkn ij dkfct jgus dk vf/kdkjh gS\ ( oknh ) 3- vuqrks"k\ " 3. During the pendency of the suit, the plaintiff died and his legal representatives (present appellants) were taken on record as the plaintiffs. Ultimately, the learned Trial Court proceeded to decide the matter by its judgment and decree dated 15.12.1998. While taking Issues Nos. 1 and 2 together, the learned Trial Court found that the term of the agreement had already come to an end; and plaintiffs were not entitled to get the defendants restrained from raising construction on the roof of the shops in question but were only entitled to remain in possession of the disputed shops until dispossessed in due process of law. The learned Trial Court, accordingly, decreed the suit only to the extent that the defendants would not dispossess the plaintiffs from the suit property without due process of law. The decree as passed by the learned Trial Court reads as under:- " oknhx.k dk okn fo:) izfroknhx.k ckcr~ LFkkbZ fu"ks/kkKk dk bl izdkj ls blh lhek rd fMdzh fd;k tkrk gS fd gkth fcfYM+x okds pkSikluh jksM] IykWV la0 840 {ks=Qy 120 x 30 fQV ij vkbZ gqbZ nqdkuksa ij ls izfroknhx.k fcuk fdlh fof/kd lE;d~ izfdz;k dh ikyuk fd;s csn[ky ugha djsa ijUrq okni= ds vuqrks"k esa tks vU; vuqrks"k pkgs x;s gSa oks vLohdkj fd;s tkrs gSa vkSj izfroknhx.k dks fooknxzLr nqdkuksa dh Nr ( QLVZ Qyksj ) ij fuekZ.k dk;Z djokus dk iw.kZ vf/kdkj gksxkA oknO;; i{kdkjku viuk viuk ogu djsaxsA " 4. The present appellants, legal representatives of the original plaintiff Haji Mukhtyar Ali, preferred an appeal against the judgment and decree so passed by the learned Trial Court in relation to the relief declined by the learned Trial Court and the defendants took cross-objections against the injunction issued by the learned Trial Court. 5. The learned Appellate Court was of the opinion that the case of the plaintiff, of the agreement operating in perpetuity, was not acceptable as the term of the said agreement was of 5 years only; and this term having come to an end, the plaintiff was not entitled to any relief. The learned Appellate Court also observed that there was no issue framed regarding adopting of due process of law and the Trial Court was in error in granting a decree to that effect in favour of the plaintiffs. The learned Appellate Court, therefore, dismissed the appeal and altered the decree of the Trial Court so far injunction had been issued prohibiting the defendants from dispossessing the plaintiffs without taking recourse to law. 6. Assailing the decree aforesaid, it has essentially been contended on behalf of the plaintiffs-appellants that they being in settled possession of the suit property and this fact having been admitted by the defendants in the written statements, there was no justification for the learned Appellate Court to interfere in the decree passed by the learned Trial Court. It is contended that even a trespasser cannot be dispossessed without taking recourse to the due process of law. The learned counsel for the appellants has referred to and relied upon the decisions in the cases of Rame Gowda (Dead) by LRs v. M. Varadappa Naidu (Dead) by LRs & Anr., (2004) 1 SCC 769 , Mohd. Ashrar Ahmed Shareef & Anr. v. State of A.P. Represented by District Collector, Hyderabad & Anr., 2009 (83) AIC 595 (A.P.) , and Inder Sain Bedi (Dead) by LRs. v. Chopra Electricals, (2004) 7 SCC 277 . During the course of submissions, the learned counsel for the appellant also suggested that there is a likelihood of the matter being settled between the parties. 7. The learned counsel appearing for the respondents has supported the impugned judgment and decree with the submissions that the plaintiffs having no right to remain in possession, the decree as passed by the Appellate Court cannot be said to be unjustified. 7. The learned counsel appearing for the respondents has supported the impugned judgment and decree with the submissions that the plaintiffs having no right to remain in possession, the decree as passed by the Appellate Court cannot be said to be unjustified. It is also submitted that in fact a suit for recovery of possession had already been filed by the defendants and a decree was also passed therein; and an appeal (CFA No. 98/1985) against the decree so passed came to be dismissed, as abated, by this Court on 26.10.2006. It has, of course, been pointed out during the course of arguments that an appeal taken to the Hon'ble Supreme Court against the order dated 26.10.2006 remains pending. 8. Having regard to the short and limited questions calling for determination in this case, this Court would not like to make any comment in relation to any other litigation between the parties or any proposition of settlement or compromise. So far this appeal is concerned, without going into any other question, this Court is satisfied that the learned Appellate Court has unnecessarily and without any justification disturbed a reasonable decree passed by the learned Trial Court as reproduced above. The said decree by the Trial Court had only been to the effect that the plaintiffs shall not be dispossessed without taking recourse to due process of law and called for no interference. 9. The fact that the original plaintiff (now his LRs) has been in possession of the property in question was not at all in dispute. In the face of such indisputable facts and looking to the nature of dispute between the parties, if the learned Trial Court had passed the decree so that the parties get their rights settled by taking appropriate recourse to the process of law, the same was unexceptionable and there was no reason or justification that such a decree was also withdrawn by the Appellate Court only for the reason that the time of agreement had come to an end. 10. It remains trite that a person in settled possession could be dispossessed even by the rightful owner only by taking recourse to law. 10. It remains trite that a person in settled possession could be dispossessed even by the rightful owner only by taking recourse to law. The essential ingredients of settled possession that it must be effective, undisturbed and to the knowledge of the owner are rather not even of dispute in this case inasmuch as the defendants themselves admitted such fundamental facts but, of course, put the suit to contention with the submissions that the term of the agreement had expired. In the given fact situation, the learned Trial Court cannot be said to have committed any error or illegality in issuing injunction only to the effect that the defendants shall not dispossess the plaintiffs without taking recourse to due process of law. Reversal of this decree by the Appellate Court cannot be countenanced. 11. Question No. 1 as framed in general terms in the present case does not call for determination but so far question No. 2 is concerned, the answer definitely remains in the negative; that is to say that the proved possession of the plaintiff over the immovable property in question cannot be disturbed by the defendants without due process of law. 12. In the aforesaid view of the matter, this second appeal is allowed to the extent indicated above. While the decree as passed by the learned Appellate Court is set aside, the decree as passed by the learned Trial Court is restored. 13. Before parting, it is, however, made clear looking to the limited scope and subject of the present suit that the parties are otherwise free to take recourse to appropriate remedies in accordance with law and none of the observations made in this case shall have any adverse effect on the rights of either of the parties in any such appropriate recourse. 14. In the circumstances of the case, the parties are left to bear their own costs throughout.Appeal partly allowed. *******