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2014 DIGILAW 1253 (RAJ)

Dinesh Chand v. Gopal Prasad

2014-05-30

BELA M.TRIVEDI

body2014
JUDGMENT 1. - The appellants-plaintiffs by way of the present first appeal have challenged the judgment and decree dated 21.5.1992 passed by the Additional District Judge No.1 Bharatpur (hereinafter referred to as "the trial court") in Civil Suit No.15/92, whereby the trial court had dismissed the suit of the appellants-plaintiffs seeking possession of the suit premises, and seeking mesne-profits from the respondents-defendants. 2. The short facts giving rise to the present appeal are that the appellants-plaintiffs had filed the suit alleging the inter alia that the appellants had purchased four shops together with the roof and stair cases thereof situated at Gur Ki Mandi, Bharatpur from one Gyanendra Nath and Mahendra Nath, by way of registered sale deed dated 29.11.1980. According to the appellants, one Shri Purshottam Lal Tandon, the father of Shri Gyanendra Nath and Mahendra Nath, was the tenant of the said shops belonging to the custodian department of State of Rajasthan, and subsequently he had purchased the said shops from the said department vide the registered sale deed dated 29.05.1968. According to the appellants-plaintiffs out of the said shops one shop situated on the northern side of the other shops had four divisions. On 8.8.1981, the respondents nos.2, 3 & 4 had started demolishing the southern wall of the said shop (shop no.30) as shown in the map at exhibits 3 & 5. When the father of the appellants tried to restrain the respondents from demolishing the said wall, the respondents started quarrelling with him, and thereafter on 10.08.1981, the respondents illegally took away possession of the last two parts of the said shop by constructing a wall by bricks. The appellants-plaintiffs therefore had filed the suit. The said suit was resisted by the respondents-defendants, denying the allegations made therein by the appellants, and further contending inter alia that the respondent No.1 Gopal Prasad was in possession of the disputed premises and the other defendants were not concerned about the said premises. It was further contended that the respondent No.1 being in possession of the said disputed premises since last more than 30 years, he had become owner of the said premises, and therefore the suit of the appellants-plaintiffs was liable to be dismissed. It was further contended that the respondent No.1 being in possession of the said disputed premises since last more than 30 years, he had become owner of the said premises, and therefore the suit of the appellants-plaintiffs was liable to be dismissed. The trial court from the pleadings of the parties had framed the following issues:- " 1- vk;k oknhx.k us tk;nkn of.kZr en ua0 1 vthZnkok rkjh[k 29-11-80 dks KkusUnz ukFk rFkk egsUnzukFk ls [kjhnh 2- vk;k KkusUnz ukFk o egsUnzukFk dks tk;nkn of.kZr en ua0 1 vthZnkok cspus dk vf/kdkj izkIr FkkA 3- vk;k KkusUnzukFk rFkk egsUnzukFk ds firk Jh iq:"kksReyky ndkukr eqrftdjs en ua0 1 vthZnkok esa futwy dh vkSj ls o gSfl;r fdjk;snkj vkckn FksA 4- vk;k izfroknhx.k ua0 2] 3] 4 us rkjh[k 8-8-81 dks oknhx.k dh nqdkukr eqrftdjs en ua0 1 vthZnkok ds fiNys nks [kuks ij tcjnLrh uktk;t dCtk dj fy;k vkSj oknhx.k dh nqdkuksa ds nwljs [ku ds njokts dks bZaVksa ls fpuok fy;kA 5- vk;k oknhx.k 150@:i;s egkokj ds fglkc ls gtkZ fjgk;'kh rkjh[k 8-8-81 yxk;r 7-9-81 rd dh ikuh ds vf/kdkjh gSA 6- vk;k izfroknh x.k la0 2] 3 o 4 Qjhd t:jh ugha gS vkSj nkos esa uqDl tksbaMj vkWQ ikVhZt dk vkfjt gSA 7- vk;k nkok o otqvkr of.kZr en ua0 1 tokc nkok [kkfjt fd;s tkus ;ksX; gSA 8- vk;k izfroknhx.k ,d gtkj :i;s crkSj gtkZ [kkl ikus ds vf/kdkjh gSA 9- vuqrks"kA " 3. The trial court after appreciating the evidence, had dismissed the suit of the appellants-plaintiffs, by deciding issue Nos.1, 2, 3 & 7 in favour of the appellants-plaintiffs and rest of the issues against the appellants-plaintiffs. Being aggrieved by the said judgment & decree, the appellants have preferred the present first appeal under Section 96 of CPC. This Court had admitted the appeal vide the order dated 25.08.1992, and directed the parties to maintain status-quo vide the order dated 13.08.1997. When the matter was posted for final hearing before this Court, the Court considering the controversy involved in the appeal had appointed the Commissioner to elucidate the truth, who has submitted her report which is part of the record. 4. It is sought to be submitted by the learned counsel Mr. P.L. Hissaria for the appellants that the trial court has thoroughly misconstrued the evidence on record led by the appellants-plaintiffs. 4. It is sought to be submitted by the learned counsel Mr. P.L. Hissaria for the appellants that the trial court has thoroughly misconstrued the evidence on record led by the appellants-plaintiffs. He further submitted that the trial court while answering the issue Nos.1, 2 & 3 in favour of the appellants, had committed an error of law in dismissing the suit of the appellants. According to him, when the appellants were held to be the owners of the disputed premises and when the respondent No.1 Gopal Prasad in his evidence had categorically admitted his possession of the disputed part of the suit premises, the trial court was required to direct the respondents to hand over the possession of the same. Relying upon the decision of the Apex Court in case of Smt. Gitarani Paul v. Dibyendra Kundu alias Dibyendra Kumar Kundu, AIR 1991 Supreme Court 395 , he has submitted that when the appellants had proved the title of the suit premises, the court was not required to go into the question of the date of dispossession and that the trial court had committed an error in dismissing the suit only on the ground that the appellants had failed to prove the date of dispossession. However, the learned counsel Ms. Anita Agarwal for the respondents, submitted that the respondent No.1 was in possession of the disputed premises for more than 30 years prior to filing of the suit, and had become owner of the suit premises. She also submitted that the appellants-plaintiffs had not stepped into the witness box, and it was the father of the appellants as the power of attorney holder of the appellants was examined which was not permissible and thus the appellants-plaintiffs had miserably failed to prove as to when the appellants were dispossessed by the respondents. She further submitted that the respondents had purchased the property shown in the map Exhibit/7 annexed to the sale deed-Exhibit/6 from the custodian department in the public auction, and hence the appellants were not the owners of the disputed premises. According to her, though some of the issues were decided by the trial court against the respondents, the respondents were not required to file any cross objections in view of the provisions contained in Order 41, Rule 33 of CPC. 5. According to her, though some of the issues were decided by the trial court against the respondents, the respondents were not required to file any cross objections in view of the provisions contained in Order 41, Rule 33 of CPC. 5. Having regard to the submissions made by the learned counsels for the parties and to the impugned judgment & decree passed by the trial court, in the light of the evidence on record, the points of determination which arise before this Court, are as under:- (1) Whether the trial court has committed an error in holding that the appellants-plaintiffs had purchased the properties described in para 1 of the plaint from Shri Gyanendra Nath and Mahendra Nath as per the registered sale deed dated 29.11.1980 and thereby had become the owners of the said properties ? (2) Whether the trial court has committed an error in not decreeing the suit of the appellants-plaintiffs and in not directing the respondents-defendants to hand over the disputed part of the shop No.30 belonging to the appellants ? 6. From the evidence adduced by the parties before the trial court, it appears that though the appellants-plaintiffs had not stepped into the witness box, their father Sohanlal, who also happened to be their power of attorney holder, was examined as the PW-1. The appellants had also examined Shri Gyanendra Nath as the PW-2 and Shri Akeram as the PW-3. The respondents-defendants had led oral evidence by examining the respondent No.1 Gopal Prasad as the DW-1, Shri Harinandan as the DW-2, and Shri Govind Narain Sharma as DW-3. Both the parties had also produced documentary evidence in support of their respective cases. Apart from the fact that PW-1 Sohanlal had stated in his evidence about the purchase of the disputed premises along-with the other shops, the DW-1 Gopal Prasad in his evidence had admitted that one Shri Purshottam Lal Tandon was the tenant of the shops bearing Nos.27, 28, 29 & 30, which belonged to the Najur (custodian department). It was also admitted by him that the said Purshottam Lal Tandon had purchased the said shops from the said department as per the registered sale deed dated 29.05.1968, as per the sale deed Exhibit/4 and map Exhibit/5, annexed to the said sale deed. It was also admitted by him that the said Purshottam Lal Tandon had purchased the said shops from the said department as per the registered sale deed dated 29.05.1968, as per the sale deed Exhibit/4 and map Exhibit/5, annexed to the said sale deed. It was also admitted by him that the said properties were inherited by the sons of Shri Purshottam Lal Tandon i.e. Gyanendra Nath and Mahendra Nath, who had sold out the same to the appellants-plaintiffs as per the sale deed Exhibit/2, and the map Exhibit/3 annexed to the said sale deed. Of course, he had denied that after the purchase of the disputed premises by the plaintiffs, he had illegally demolished the wall of disputed part of the shop and encroached upon the same. 7. In this regard it is pertinent to note that the description and boundaries of the said shops purchased by the appellants were clearly mentioned in the sale deed at Exhibit/2 and the map at Exhibit/3. The said description also tallies with the description of the shops mentioned in the sale deed at Exhibit/4 and map at Exhibit/5. As per the case of the respondents-defendants, the property situated on the southern side of the shop No.30 and on the western side of shop Nos.27, 28 & 29, was purchased by the respondent No.1 in a public auction held by the Najur (custodian department), through the sale deed at Exhibit/6, and the map at Exhibit/7. However, from the said documentary evidence produced by the parties and from the evidence of PW-1 Sohan Lal and DW-1 Gopal Prasad, it was clearly established that the appellants-plaintiffs had become the owners of the shop Nos.27 to 30 as per the documents at Exhibit/2 to Exhibit/5, and the respondent No.1 had become the owner of the property as per the documents at Exhibits/6 & 7. Now, as per the case of the appellants-plaintiffs, on 08.08.1981 the respondents-defendants had demolished the southern wall of last part of shop No.30, and had illegally occupied the disputed part of the said shop by putting up a brick wall in place of one gate dividing the shop No.30 into two parts. However, according to the respondent No.1, he was in possession of the said disputed part of shop No.30 for more than 30 years, and thereby had become the owner thereof. However, according to the respondent No.1, he was in possession of the said disputed part of shop No.30 for more than 30 years, and thereby had become the owner thereof. It is pertinent to note that while admitting in his evidence, that the appellants were the owners of the shop No.30 as shown in the maps Exhibits/3 & 5, the respondent No.1 had failed to state as to how he had become the owner of the disputed premises, which was part of shop No.30 belonging to the appellants. The learned counsel Ms. Anita Agarwal for the respondents had also failed to point out from the evidence as to how and since when the respondents, more particularly the respondent No.1 had become the owner and was in possession of the disputed premises. From the kachha map along-with the report produced by the Commissioner appointed by this Court also it clearly transpires that the respondent No.1 had claimed the possession of the disputed premises, which was part of the shop No.30 belonging to the appellants. As rightly submitted by the learned counsel for the appellants, that when the appellants-plaintiffs had proved their title in respect of the disputed premises, it was not necessary for them to prove the date of dispossession of the said disputed premises. The trial court appears to have laid more emphasis on the date of dispossession by holding that the appellants-plaintiffs had failed to prove that they were dispossessed on 8.8.1981 and therefore their suit was liable to be dismissed. Once the title of the appellants having been duly proved, and the possession of the disputed premises having been found with the respondent No.1, the consequential order required to be passed by the trial court was to direct the respondent No.1 and other respondents, who were sons of the respondent No.1 to hand over the possession of the disputed premises to the appellants-plaintiffs. As held by the Apex Court in case of Gitarani Paul (supra), the appellants-plaintiffs were not required to prove the date of their dispossession, when they had proved their title in respect of the disputed premises. 8. In that view of the matter, the Court is of the opinion that the trial court had committed an error in not decreeing the suit of the appellants-plaintiffs and in not directing the respondents-defendants to hand over the possession of the disputed premises to the appellants. 8. In that view of the matter, the Court is of the opinion that the trial court had committed an error in not decreeing the suit of the appellants-plaintiffs and in not directing the respondents-defendants to hand over the possession of the disputed premises to the appellants. The learned counsel for the appellants has not pressed for the other reliefs for mesne-profits. Under the circumstances, the appeal deserves to be partly allowed, by answering point of determination No.1 in negative and No.2 in affirmative. 9. In view of the afore-stated discussions and conclusions it is directed that the respondents-defendants shall hand over the possession of the disputed premises as claimed in the suit, to the appellants forthwith. The judgment & decree passed by the trial court is modified to the said extent. The appeal is partly allowed accordingly.Appeal Partly Allowed. *******