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2014 DIGILAW 1724 (HP)

Suresh Kumar v. Sarla Vaidya

2014-11-24

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. This appeal is directed against the impugned judgment and decree, rendered on 14.7.2003 by the learned District Judge, Mandi, H.P., in Civil Appeal No. 60 of 2001, whereby, the learned District Judge dismissed the appeal preferred, by the appellant/defendant and affirmed the findings of the learned trial Court rendered on 10.8.2001 in Civil Suit No. 207 of 1997. 2. The brief facts of the case are that the plaintiff/respondent filed a suit for permanent prohibitory and mandatory injunction against the defendant/appellant. It has been averred by the plaintiff that she is tenant of the premises located in the ground floor comprised in khasra No. 1519, measuring 18.60 sq. meters situated in Muhalla Bhagwahan 366/4, Tehsil Sadar, Mandi town. It has been further averred that previously Bhupinder Singh husband of the plaintiff was a tenant of the premises on payment of rent and had been doing the business in the premises in question. After the death of Bhupinder Singh the plaintiff inherited the tenancy rights and came in possession and had been running the business and paying rent to the landlords. It has been averred that for the last two months the plaintiff was not fit and has closed the shop, locked the same and had kept her articles in the shop. The sons of the plaintiff was away from Mandi town. On 5.11.1997, the defendant taking advantage of the illness of the plaintiff broke open the lock of the shop, broke the outer door and dismantled the back wall of the shop. The defendant removed the articles of the plaintiff lying in the shop for which a report was lodged with the police. It was alleged that the defendant is intending to demolish the first floor of the premises in question and to forcibly dispossess the plaintiff from the suit premises. Hence the suit. 3. The defendant/appellant contested the suit and filed the written statement wherein he has taken the preliminary objection that the suit was not maintainable since the plaintiff was not in possession of the suit property. It was denied that the plaintiff was tenant of the suit property. However, it was admitted that the husband of the plaintiff was tenant and had been doing karyana business and he had died in the year 1988. It was denied that the plaintiff was tenant of the suit property. However, it was admitted that the husband of the plaintiff was tenant and had been doing karyana business and he had died in the year 1988. It has been further averred that after his death, after 6 months, the plaintiff vacated the shop and handed over its possession to the defendant in accordance with the wishes of her husband. It was denied that the plaintiff had been doing her business in the shop or that she was ill and the possession was taken after breaking the locks. It was pleaded that in 1997 a private partition took place between the owners and the shop in question fell in the share of the defendant, who wanted to reconstruct his property including the suit property and the work was started in 1997. It is averred that taking benefit of the entries in the jamabandi the plaintiff filed the suit wrongly. 4. The plaintiff/respondent filed replication to the written statement of the defendant/appellant, wherein, she denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is in possession of the suit premises as tenant? .....OPP 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction? OPP 3. Whether the plaintiff is also entitled to the relief of mandatory injunction? OPP 4. Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent. In appeal, preferred against the judgment and decree of the learned trial Court by the appellant/defendant before the learned first Appellate Court, the learned first Appellate Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the defendant/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 07.05.2004, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree rendered by the learned first Appellate Court on the hereinafter extracted substantial question of law:- 1. Whether there has been gross misreading and mis-appreciation of evidence leading to total injustice? When the appeal came up for admission on 07.05.2004, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree rendered by the learned first Appellate Court on the hereinafter extracted substantial question of law:- 1. Whether there has been gross misreading and mis-appreciation of evidence leading to total injustice? Substantial question of Law No. 1. 8. The deceased husband of the plaintiff/respondent Bhupinder Singh was a tenant in the disputed/suit premises. The aforesaid Bhupinder Singh, original tenant in the demised premises died in the year 1988. On his demise, the defendant/appellant contended that the possession of the suit premises was handed over to the land owner by the plaintiff/respondent. The learned counsel appearing for the defendant/appellant has concerted to contend that when the plaintiff/respondent had handedover the possession of the suit premises to the owners, as such, both the learned Courts below fell into error in affording the relief as prayed for by the plaintiff/respondent. Both the learned Courts below while decreeing the suit of the plaintiff/respondent had decreed it, in consonance with the rendition of an order by the learned District Judge, Mandi comprised in Ex.PB which order preceded the rendition of the judgment and decree by the learned trial Court. The learned Courts below had concluded that the plaintiff/respondent had not voluntarily handed over the possession of the suit premises to the defendant/appellant, as such, when the suit premises came to be reconstructed within the period stipulated in Ex.PB which portrays the decision rendered in appeal preferred by the defendant/appellant before the learned District Judge, Mandi, against the order of ad interim injunction granted in favour of the plaintiff/respondent by the learned trial Court, she in consonance with the directions comprised in Ex. PB was held entitled to the relief’s as were ultimately afforded in her favour by both the learned Courts below. PB was held entitled to the relief’s as were ultimately afforded in her favour by both the learned Courts below. However, during the course of arguments, the learned counsel for the defendant/appellant has vigorously strived to sway this Court to conclude that given the rendition of findings in paragraph No. 6 of Ex.PB portraying the fact that the plaintiff/respondent is not in possession of the shop/suit premises, hence, when the according of relief of mandatory as well as permanent prohibitory injunction, is bed rocked upon hers being in possession of the suit premises at the time of institution of the suit, hers having been portrayed in paragraph No. 6 of the Ex.PB to be not in possession of the suit premises ought to have goaded both the learned Courts below to refuse relief as untenably afforded in her favour. The above submission is highly illusory and has no foundation in the face of the evidence as exist on record. Even though in paragraph No. 6 of Ex. PB, there is a finding of the plaintiff/respondent not being in possession of the suit premises, nonetheless, the occurrence of the fact aforesaid therein would not per se constrain a conclusion from this Court that, hence, she had abdicated the possession of the suit premises in favour of the landowners and that too volitionally. Rather only when on an incisive perusal of the evidence on record, it upsurges that at the time of institution of the suit at her instance she was not forcibly dispossessed or her dispossession from the suit premises at the instance of the defendant/appellant was in accordance with law, in that event, it would warrant the conclusion that she had volitionally abdicated the possession of the suit premises, as a corollary, then the effect of the findings in paragraph No. 6 of Ex. PB would not fade rather would gain significance in determining the rights of the plaintiff/respondent qua the suit premises. 9. The learned counsel appearing for the appellant/defendant though has relied upon the testimonies of the defendant's witnesses portraying the factum of possession of the suit premises having been handed over by the plaintiff/respondent to the land owners. PB would not fade rather would gain significance in determining the rights of the plaintiff/respondent qua the suit premises. 9. The learned counsel appearing for the appellant/defendant though has relied upon the testimonies of the defendant's witnesses portraying the factum of possession of the suit premises having been handed over by the plaintiff/respondent to the land owners. Nonetheless, the factum of absence of adduction of precise evidence qua the date, month and year when the possession of the suit premises was handed over by the plaintiff/respondent to the land owner, renders the evidence adduced by the defendant/appellant qua the purported volitional abdication of possession of the suit premises by the plaintiff/respondent in favour of land owner to not acquire any probative worth. Furthermore, the frail evidence of the defendant qua the purported volitional handing over of possession of the suit premises by the plaintiff/respondent to the land owner becomes all the more infirm in the face of their being absence of evidence adduced by the defendant/appellant portraying with specificity the name of the land owner to whom the possession of the suit premises was purportedly handed over by the plaintiff/respondent. For absence of the aforesaid pieces of evidence the fortifying conclusion which ensues is that there is abysmal lack of potent evidence adduced by the defendant to constrain a conclusion qua the volitional abdication of possession of the suit premises by the plaintiff/respondent in favour of the landowner. Preponderantly, what further enfeebles the espousal of the plaintiff/respondent having volitionally handed over the possession of the suit premises to the landowner, is the absence of proof of execution of a relinquishment deed inter se the plaintiff/respondent and the land owner portraying the factum of volitional handing over of possession of the suit premises by the plaintiff/respondent to the landowner. Rather on the other hand, when the jamabandi qua the suit premises comprised in Ex.PA to which a presumption of truth is attached and when such presumption has remained un-rebutted for lack of adduction cogent evidence to dislodge it, as such, to be concluded to be truthfully portraying the factum of the suit premises to be in possession of Bhupinder Singh as a tenant. When the jamabandi for the year 1991-92 comprised in Ex.PA and its reflecting Bhupinder Singh to be a tenant over the suit premises, who rather died earlier in the year 1988, yet when obviously till the preparation of Ex.PA in the year 1991, there is a palpable marked absence of concerted endeavour on the part of the defendant/appellant to on his demise seek deletion of the said entry in the jamabandi aforesaid, portrays acquiescence by the defendant/appellant to the factum of the plaintiff/respondent on demise of her predecessor-in-interest having succeeded to the tenancy rights of the former in the suit premises, besides she having continued in possession of the suit premises. Moreover, the further absence of any entry in the rapat rojnamcha of the Patwari reflecting the fact of handing over of possession of the suit premises by the plaintiff/respondent to the defendant/appellant forcefully conveys that, hence, the plaintiff/respondent did not volitionally handed over the possession of the suit premises to the defendant/appellant. What fortifies the aforesaid conclusion is the fact of the plaintiff/respondent having asserted that locks of the suit premises were broken open at the instance of the defendant/appellant and in consequence thereto, the defendant/appellant took forcible possession of the suit premises. When the said fact finds corroboration from the fact of the plaintiff/respondent having registered a criminal case in the police station concerned against the defendant/appellant for committing the offence of criminal trespass, hence, prods this Court to with aplomb conclude that the plaintiff/respondent never volitionally abdicated the possession of the suit premises in favour of the defendant/appellant. With the formation of the aforesaid inference by this Court, the sequelling effect is that the defendant/appellant cannot capitalize upon the factum of his having involitionally gained possession of the suit premises from the plaintiff/respondent nor such involitional possession gives leverage to him to canvass a relief from this Court that, hence, he is in lawful possession of the suit premises and that concomitantly, the relief as accorded in favour of the plaintiff/respondent has been unwarrantedly afforded. Therefore in the backdrop of the aforesaid factual martrix the enduring conclusion is that the plaintiff/respondent was in lawful possession of the suit premises and was forcibly dispossessed therefrom at the instance of the defendant/appellant. Therefore in the backdrop of the aforesaid factual martrix the enduring conclusion is that the plaintiff/respondent was in lawful possession of the suit premises and was forcibly dispossessed therefrom at the instance of the defendant/appellant. The forcible dispossession of the plaintiff/respondent from the suit premises at the instance of the defendant/appellant to the considered mind of this Court constitutes her to be rather in symbolic lawful possession of the suit premises. As a corollary, then her lawful symbolic possession of the suit premises has to be vindicated. In aftermath, the relief as afforded by both the learned Courts below in consonance with Ex.PB in favour of the plaintiff/respondent cannot at all be construed to be legally frail. If, this Court condones the unauthorized or unlawful taking over of possession of the suit premises by the defendant/appellant and declines the relief as afforded to the plaintiff/respondent by both the learned Courts below, it would unwarrantedly result in condonation of the unauthorized and legally invinidcable acts on the part of the defendant/appellant to secure the possession of the suit premises and to permit him, despite his retaining unlawful possession of the suit premises, to deny the relief as tenably granted in the favour of the plaintiff/respondent by both the learned Courts below. 10. Even though, the learned counsel for the defendant/appellant concerted to rely upon the findings recorded in Ex.PB in paragraph No. 6 portraying the factum of the plaintiff being not in possession of the suit premises. Nonetheless, in the face of this Court at the out set having calibrated the effect thereof on the anvil of proof emanating and its loudly pronouncing upon the factum of the plaintiff/respondent having not volitionally abdicated the possession of the suit premises in favour of the defendant/appellant, consequently, when the discussion hereinabove markedly displays the factum of the plaintiff/respondent having not volitionally handed over the possession of the suit premises to the defendant/appellant pales the effect of the findings existing in Ex.PB as relied upon by the learned counsel for the appellant/defendant to succor his argument that in face thereof the rendition of decrees by both the learned Courts below in favour of the plaintiff/defendant is legally infirm. Also when it has been concluded with aplomb hereinabove that the symbolic lawful possession of the suit premises remained with the plaintiff/respondent, hence, necessitating its legal vindication comprised in this Court affirming the judgments and decrees of both the learned Courts below besides prod this Court to render a relief in consonance with Ex.PB. Consequently, the findings in Ex.PB qua the plaintiff/respondent not being in possession of the suit premises on the date preceding to the rendition of the judgment and decree by the learned trial Court would not countervail not detract the effect of the findings recorded at the stage of the rendition of judgment and decree by the learned trial Court. Besides when in compliance of the mandate in Ex.PB, the defendant/appellant reconstructed the suit premises and when the plaintiff/respondent has been held to be in lawful symbolic possession of the suit premises which finding sprouts from the inference of hers having been illegally dispossessed therefrom, too besides spurs the inevitable conclusion that she, hence, was to be clothed with the protection of the decrees as rendered in her favour by both the learned Courts below in consonance with Ex.PB. The plaintiff/respondent not having cogently proved the fact of hers running business in the demised premises or she having not obtained the registration certificate qua the suit premises on demise of her husband are inconsequential and may constitute good ground for the plaintiff/respondent being evicted from the demised premises in accordance with law. However, the defendant/appellant cannot derive any leverage therefrom to contend that the plaintiff/respondent never acquired the possession of the suit premises nor was dispossessed therefrom in accordance with law. The findings as recorded by both the learned Courts below are based upon a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. Accordingly, the substantial question of law is answered against the defendant/appellant and in favour of the plaintiff/respondent. 11. The result of the above discussion is that the appeal preferred by the defendant/appellant is dismissed and the judgments and decrees rendered by the learned Courts below are affirmed and maintained. Record of the learned Courts below be sent back forthwith. All pending applications, if any, are also disposed of. No costs.