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2012 DIGILAW 462 (UTT)

Bharat Heavy Electricals Ltd. v. Sanjay Paliwal

2012-08-07

PRAFULLA C.PANT

body2012
JUDGMENT : This appeal preferred under section 100 of Code of Civil Procedure 1908, is directed against judgment and decree dated 30.01.2004, passed by District Judge, Hardwar, in Civil Appeal No. 33 of 2001, whereby said court has dismissed the appeal and affirmed the judgment and decree dated 22.03.2001, passed by IInd Additional Chief Judicial Magistrate/Additional Civil Judge (Senior Division), Hardwar, in original suit no. 27 of 1994. The trial court had decreed the suit for mandatory injunction directing the defendant/appellant to remove his wall from point C to D shown in the plaint map. (2) Heard learned counsel for the appellant and learned counsel for the respondents and perused the lower court record. (3) This second appeal was admitted on the substantial questions of law as formulated in the memorandum of appeal, but out of them the appellant pressed and argued following four substantial questions of law:- (i) Whether a suit for injunction without relief for possession is maintainable and is not hit by section 38 and 41 of Specific Relief Act ? (ii) Whether a person recorded in possession in category VIII in the revenue record has transferable rights ? (iii) Whether without purchase of the specific portion of land a purchaser out of a big plot the plaintiff can lay hand upon a particular land without there being any dimensions and area/ plan given in the title deed ? (iv) Whether the suit is barred by section 69 of Partnership Act, 1932. (4) Brief facts of the case are that, respondents/plaintiffs instituted suit for mandatory injunction against the appellant/defendant B.H.E.L., Ranipur, Hardwar, with the pleading that the plaintiffs are partners of firm Vaishali Builders. It is further pleaded in the plaint that the plaintiffs purchased a piece of land measuring 15 biswas out of Khasra no. 436 of Khewat No. 8/4, numbered as Khata Khatoni No. 36, situated in village Ahmadpur Kadachh, Pargana, Jwalapur, Tehsil and District Hardwar, for a consideration of Rs. 75,000/-through registered sale deed dated 06.01.1992. It is also pleaded that after the plaintiffs purchased an aforesaid land for firm Vaishali Builders, their name was mutated in the revenue record, as such, they are owner in possession of the land. In para-5 of the plaint it is stated that disputed land is shown in the plaint map with letters ABCD, with length 690 kadi and width 26 kadi. In para-5 of the plaint it is stated that disputed land is shown in the plaint map with letters ABCD, with length 690 kadi and width 26 kadi. It is alleged in the plaint that defendant has constructed pucca wall which is shown by letters C D without any right. It is further alleged that the defendants were asked to remove the boundary wall C D, but they did not remove it. Hence the suit for mandatory injunction for removal of wall from point C to D. (5) The defendant contested the suit before the trial court, and denied almost all the pleas claiming ownership and possession of the plaintiffs over the land in dispute. This is admitted in the written statement that defendant has constructed a wall on the west of the road, but the same is standing for more than 30 years (before the suit was filed in the year 1994). In the additional pleas it has been pleaded by the defendant that the plaintiffs are not in possession of the disputed land. It is further pleaded that the disputed land is within the limits of the land owned and possessed by the defendant. It is specifically pleaded that since the wall is standing for more than 30 years, the plaintiffs are not entitled to any injunction. A legal plea has been raised that the suit is barred by section 69 of Partnership Act. The defendant has denied in para-5 of the additional pleas that even the title of the predecessor, entitled for the plaintiffs over the land shown by letters ABCD. It is also alleged by the defendant that Khasra No. 436 is a big number with total area of 0.524 hectares. It is also pleaded that the suit is barred by section 41(h) of Specific Relief Act, 1963. (6) On the basis of the pleadings of the parties, the trial court framed following issues in the suit:- (i) Whether the suit is under valued and the court fee paid is insufficient ? (ii) Whether the disputed land is situated in Khasra No. 436 of Khewat No.8/4 ? (iii) Whether the plaintiffs or firm M/s Vaishali Builders is owner in possession of the disputed land ? (iv) Whether, M/s Vaishali Builders is a registered firm, and the plaintiffs are their partners, if so, is the suit barred by section 69 of Partnership Act ? (iii) Whether the plaintiffs or firm M/s Vaishali Builders is owner in possession of the disputed land ? (iv) Whether, M/s Vaishali Builders is a registered firm, and the plaintiffs are their partners, if so, is the suit barred by section 69 of Partnership Act ? (v) Whether the suit for injunction is not maintainable ? (vi) Whether suit is barred by section 38 and 41 of Specific Relief Act ? (vii) Whether the plaintiffs are entitled to the relief claimed by them ? (7) Issue no.1 was decided as preliminary issue by the trial court on 25.07.1995, and valuation of the suit was increased to Rs. 11,000/-. After amendment of the plaint, the suit proceded further. The trial court recorded evidence of the parties and decided of the other issues in favour of the plaintiffs and decreed the suit vide judgment and decree dated 22.03.2001. Aggrieved by judgment and decree passed by IInd Additional Chief Judicial Magistrate/Additional Civil Judge (Senior Division), Hardwar, in suit no. 27 of 1994, Civil Appeal No. 33 of 2001, was filed by the defendant before the District Judge, Hardwar. Said court, after hearing the parties, vide impugned and decree dated 30.01.2004, dismissed the appeal. Hence this second appeal. (8) Discussion of substantial question of law number 1:- Section 41 of Specific Relief Act, 1963, provides when an injunction can be refused, clause (h) of section 41 of the act provides that an injunction cannot be granted, when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. It is settled by principle of law that expression “equally efficacious relief” means a relief which would put the plaintiffs in the same position in which he would have been if he had not asked for a relief of injunction. It is pertinent to mention here that when a person has constructed a wall over the disputed land which the plaintiffs claims to be the owner, it is nothing but tresspass made by the defendant dispossess the plaintiffs from such portion of land over which boundary wall has been constructed. That being so, the efficacious relief against the tresspass would be relief of ejectment. In other words, the plaintiffs, in such case should have filed suit for possession of the land regarding which he claims to be the owner. That being so, the efficacious relief against the tresspass would be relief of ejectment. In other words, the plaintiffs, in such case should have filed suit for possession of the land regarding which he claims to be the owner. In the present case, the plaintiffs have sought relief of injunction without seeking relief of possession. As such, the relief injunction is barred by clause (h) of section 41 of Specific Relief Act, 1963. In Hashmat Husain and others vs. Inayatullah and others AIR 1958 Allahabad page 706, and Jemma vs. Raghu AIR 1977 Orissa page 12 and the Division Bench of Allahabad and Orissa High Courts have also taken the same view. (9) Therefore, substantial question of law no.1 is answered in favour of the appellant/defendant holding that the present suit for injunction to remove the wall from disputed land without seeking the relief of possession is barred by clause (h) of section 41 of Specif Relief Act, 1963, as such the trial court has erred in law in decreeing the suit and the appellate court has also erred in law affirming the same. (10) Discussion of substantial question of law no.2:- It is pointed out on behalf of the appellant/defendant that sale deed (paper no.24A in the lower court record) shows that the same was executed by one Bashir Khan. It is argued that said person (transferor) had hereditary rights of possession in class VIII category, as such, he had no right to transfer the land to the plaintiffs. On carefully going through the sale deed, this Court finds that though Bashir Khan was MAURUSEE KASHTKAR (hereditary tenant) over the land in suit as mentioned in the sale deed, and also apparent from the copy of the revenue record, but the sale deed further shows that it was executed not only by Bashir Khan, but also by Laxmi Narayan, whose name was entered in the Khewat as one of the owners of the land. Perusal of paper no.26C, which is certified copy of Khewat shows that alongwith other Khewatdars including Laxmi Narayan/Laxmi Chand name of Bharat Heavy Electricals Ltd., Jwalapur, is also mentioned. As such, the sale deed paper no. Perusal of paper no.26C, which is certified copy of Khewat shows that alongwith other Khewatdars including Laxmi Narayan/Laxmi Chand name of Bharat Heavy Electricals Ltd., Jwalapur, is also mentioned. As such, the sale deed paper no. 24A appears to have been executed not only by MAURUSEE KASHTKAR (hereditary tenant), Bashir Khan, but also by Laxmi Narayan, whose name figured as one of the Khewatdar, it cannot be said that the title of said Khewatdar did not stood transferred to the plaintiffs. However, it is made clear that the MAURUSEE KASHTKAR (hereditary tenant) of category class VIII has no right to transfer ownership of the land. Accordingly, the substantial question of law no.2 stands answered. (11) Discussion of substantial question of law no.3 : No doubt in the present case, the plaintiffs have proved that they purchased a portion of Khasra No. 436 vide sale deed dated 06.01.1992 (paper no. 24A in the lower court record), but for the purposes of mandatory injunction directing the Bharat Heavy Electricals Ltd. (defendant) to remove the wall constructed by them unless the plaintiffs has shown that the disputed wall is located on the portion of the land purchased by them, relief of injunction cannot be granted. Certified copy of Khewat paper no. 26A alongwith other owners show name Heavy Electricals Ltd. as one of the Khatedars/co-owners. Having gone through the judgment and order passed by the trial court, and one passed by the appellate court, this Court finds that without proof of location of the disputed wall in the portion of land purchased by the plaintiffs relief of mandatory injunction has been granted. The record further shows that the Amin's report was not a report which was confirmed by the courts below. Not only this, the plaint map filed with the plaint does not disclose length and breadth of the disputed wall which is sought to be demolished. Plaint map paper no. 4A1/3, which is part of the plaint map shows that neither the length of the wall is shows in it, nor the width is shown. It is strange how the trial court decreed the suit for mandatory injunction for removal of the same without there being any length and width shown in the plaint map of the disputed wall. On behalf of the plaintiffs/respondents attention of this Court is drawn to the report dated 28.09.1992, which is paper no. It is strange how the trial court decreed the suit for mandatory injunction for removal of the same without there being any length and width shown in the plaint map of the disputed wall. On behalf of the plaintiffs/respondents attention of this Court is drawn to the report dated 28.09.1992, which is paper no. 8C/1 on the lower court record, but said report does not appear to have been proved, as such the same can not be read in the evidence. In the first para of the report itself it is mentioned that it relates to Khasra No. 438 ( and the land in dispute as per the plaint case is part of plot no. 436), as such, much reliance cannot be placed on said paper and both the courts below have erred in law in holding that the constructed disputed wall is liable to be removed. It is pertinent to mention here that DW1 Baldev Taneja, an employee of the BHEL (defendant) has stated that as per the revenue record old Khasra No. 2162/2, 2167/2, 2165 and 2171 situated in village Ahmadpur, Kadachh, were acquired in B.H.E.L Ltd., and since 1966, said company (defendant) has their possession, and the disputed wall is standing since long much before the plaintiffs purchased the land of new khasra no. 436. (12) In the above circumstances, and for the reasons as discussed above, this Court is of the opinion that no injunction could have been granted in favour of the plaintiffs for removal of the wall, particularly when no measurement of the disputed wall were given in the plaint map, nor mentioned in the order/decree passed by the trial court. Accordingly, substantial question of law, stands answered in favour of the appellant/defendant. (13) Discussion of substantial question of law no.4:- On behalf of the appellant it is argued that suit is barred by section 69 of Partnership Act, 1932, as the partnership firm Vaishali Builders, was not a registered firm. Accordingly, substantial question of law, stands answered in favour of the appellant/defendant. (13) Discussion of substantial question of law no.4:- On behalf of the appellant it is argued that suit is barred by section 69 of Partnership Act, 1932, as the partnership firm Vaishali Builders, was not a registered firm. Sub section (1) of section 69 of Indian Partnership Act, 1932, provides that no suit to enforce a right arising from a contract or conferred by the Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. But in the present suit neither there is any plea that the partners to the suit were under contractual obligation, nor any right under Partnership Act is claimed, as such, sub section (1) of section 69 of Indian Partnership Act, 1932, does not barr the present suit. Similarly, sub section (2) of section 69 also refers to the suit filed for enforcement a right arising out of contract and the same also can be said to be hurdle in filing the suit by the two plaintiffs, who were the partners of the firm Vaishali Builders. (14) Therefore, substantial question of law no.4 stands answered in favour of the respondents/plaintiffs. (15) For the reasons as discussed above, in view of the discussion and finding given on substantial question of law no.1 and no.3, this Court is of the view that the trial court has erred in law decreeing the suit for injunction in violation of section 41(h) of Specific Relief Act, 1963, particularly when there were no measurements, of the wall sought to be removed in the plaint map, nor mentioned in the decree. The lower appellate court has also erred in law in affirming the decree passed by the trial court. Therefore, this appeal deserves to be allowed. (16) Accordingly, the second appeal is allowed. Impugned judgment and decree passed in suit no. 27 of 1994, by IInd Additional Chief Judicial Magistrate/Additional Civil Judge (Senior Division), Hardwar, and the judgment and decree passed by the District Judge, Hardwar, in Civil Appeal No. 33 of 2001, are hereby set aside. Therefore, this appeal deserves to be allowed. (16) Accordingly, the second appeal is allowed. Impugned judgment and decree passed in suit no. 27 of 1994, by IInd Additional Chief Judicial Magistrate/Additional Civil Judge (Senior Division), Hardwar, and the judgment and decree passed by the District Judge, Hardwar, in Civil Appeal No. 33 of 2001, are hereby set aside. The suit filed by the plaintiffs is hereby dismissed. No order as to costs.