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2016 DIGILAW 1379 (HP)

State of Himachal Pradesh v. Dagu Ram

2016-07-14

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of the present appeal, the State has challenged the judgment and decree passed by the Court of learned District Judge, Kinnaur at Rampur Bushahr, in Civil Appeal No. 75 of 2004, decided on 02.07.2005, vide which, learned Appellate Court has allowed the appeal of the present respondent and set aside the judgment passed by the Court of learned Civil Judge (Junior Division), Rampur Bushahr, in Civil Suit No. 34-1 of 2003 dated 24.08.2004. 2. This appeal was admitted on 14.03.2008 on the following substantial questions of law:- “1. Whether the Ld. Appellate Court below has misread and misconstrued the evidence on record. 2. Whether the finding of the lower Appellate Court are vitiated on account of misinterpretation of the Law of estoppel and promissory estopped. 3. Whether the Ld. District Judge has wrongly and erroneously overlooked the implied consent and the acquiescence of the Plaintiff.” 3. Brief facts necessary for the adjudication of the present case are that the respondent/plaintiff hereinafter referred to as the plaintiff, filed a suit for recovery of Rs.81,100/- on the ground that he was owner in possession of two storeyed house comprising three rooms in each storey situate in Muhal Munish Bahli, Tehsil Rampur, District Shimla, H.P. i.e. the suit property. His further case was that in September, 2000, village Munish Bahli was allotted Middle School by upgrading the Primary School, which existed in the village. The building housing the Primary School was not having sufficient accommodation for the classes of Middle School. The son of the plaintiff Saran Dass was persuaded by the Headmaster of the Primary School and the villagers to provide accommodation of three rooms in the lower storey of the demised premises and a writing in the form of affidavit was got executed from him i.e. the son of the plaintiff and possession of the lower storey was thus allotted to the school. According to the plaintiff, the son of the plaintiff had no legal authority to allot the accommodation without seeking permission from the plaintiff and that too without claiming any rent for an indefinite period. According to the plaintiff, one room in the upper storey was also being occupied by the Headmaster, Government Middle School Munish Bahli and no rent was being paid for the same. According to the plaintiff, one room in the upper storey was also being occupied by the Headmaster, Government Middle School Munish Bahli and no rent was being paid for the same. The plaintiff issued a legal notice to the Headmaster, Government High School Munish, who had the supervisory authority over the Middle School Munish Bahli, for vacating the accommodation unauthorizedly given by the son of the plaintiff without his consent. According to the plaintiff, the accommodation i.e. four rooms were being unauthorizedly occupied and no rent was being paid and loss was being caused to the agricultural crop and to the apple crop for the last two years, which had caused loss to the tune of Rs.50,000/- to the plaintiff. According to the plaintiff, he was also entitled to the amount of Rs.30,000/- as use and occupation charges of the four rooms w.e.f. 06.09.2000 to 30.09.2002 and thereafter also. On these basis, the plaintiff filed a suit for recovery of Rs.81,100/- with future interest at the rate of 9% per annum from the date of filing of the suit till realization of the amount claimed. 4. In the written statement filed by the State, it denied the case of the plaintiff. According to the defendant, Saran Dass son of the plaintiff who was owner in possession of the said building had given three rooms to the defendant department for running the Middle School in that building and when these rooms were given for running the school at that time the building was in the possession of Saran Dass and he had given an affidavit to that effect. The defendant denied that Saran Dass was not competent to provide the said accommodation to the department. It was further mentioned in the written statement that the building was handed over by Saran Dasss in September, 2000 and thereafter the plaintiff had never shown his unwillingness for the act of his son and as such, the plaintiff was estopped from filing the present suit by his own act, as the plaintiff had given his passive consent to run the Middle School and to provide the accommodation through his son. It was further submitted that neither the plaintiff nor his son Saran Dass were entitled to claim any rent because they had given their consent to make the Middle School functional before providing accommodation to the defendant department. It was further submitted that neither the plaintiff nor his son Saran Dass were entitled to claim any rent because they had given their consent to make the Middle School functional before providing accommodation to the defendant department. It was also denied that the Headmaster or any other teacher of the school had occupied extra rooms in the disputed building as alleged. The factum of loss being caused to apple orchard and its fruits etc. either by the school was also denied. It was denied that the rooms were occupied by the defendant unauthorizedly as alleged by the plaintiff. It was further mentioned that there a policy decision of the Government of Himachal Pradesh to the effect that the beneficiaries of the schools upgraded shall provide accommodation for the school premises free of cost and it was a pre-requisite condition that the school shall become functional only if suitable accommodation as per norms of the Education Department is handed over to the Government by the people of the area. The defendant relied upon the affidavit sworn in by Saran Dass son of the plaintiff vide which he gave possession of three rooms voluntarily to make the Middle School functional in his village. 5. On the basis of the pleadings, the following issues were framed by the learned trial Court:- 1. Whether the son of the plaintiff was not legally competent to hand over the possession of the disputed building and land to the defendant, as alleged? … OPP 2. If issue No. 1 is proved in affirmative, whether the plaintiff is entitled to use and occupation charges thereof as claimed? … OPP 3. Whether any damage has been caused to the apple orchard of the plaintiff. If so, whether the defendant is liable to pay a sum of Rs.50,000/- as damages to the plaintiff as alleged? … OPP 4. Whether Saran Dass, son of the plaintiff, was owner in possession of the suit premises and was thus competent to execute and handover the possession of the premises to the defendant as alleged? … OPD 5. Whether the plaintiff is estopped by his act and conduct from filing the present suit as alleged? … OPD 6. Whether the suit is not maintainable? … OPD 6-A. Whether the plaintiff is entitled to the relief of eviction as alleged? … OPP 7. Relief. 6. … OPD 5. Whether the plaintiff is estopped by his act and conduct from filing the present suit as alleged? … OPD 6. Whether the suit is not maintainable? … OPD 6-A. Whether the plaintiff is entitled to the relief of eviction as alleged? … OPP 7. Relief. 6. On the basis of material placed on record, the learned trial Court returned the following findings on the issues so framed:- Issue No. 1 Rendered redundant. Issue No. 2 No. Issue No. 3 No. Issue No. 4 Partly No. Issue No. 5 Yes. Issue No. 6 Yes. Issue No. 6-A No. 7. Suit dismissed, as per operative part of the judgment. 7. Accordingly, the learned trial Court dismissed the suit filed by the respondent/plaintiff by holding that it clearly emerged out of the pleadings of the parties that Saran Dass son of the plaintiff had handed over the possession of three rooms in the lower storey of the building to the defendant in the month of September, 2000 and thereafter Government Middle School started running there. Learned trial Court held that son of the plaintiff was 40 years old and was having a family which showed that he was a mature person. It further held that it was the pleaded case of the plaintiff that the villagers of village Bahli as well as the Headmaster of Government Primary School had persuaded Saran Dass to hand over the possession of three rooms of double storey building to the school and in pursuance thereof, he handed over the possession thereof to the school authorities. The learned trial Court observed that the plaintiff had not specifically pleaded in his plaint as to where he was when the aforesaid negotiation took place but in his cross examination he had admitted that he had come back to the house in the evening. Accordingly, the learned trial Court held that this proved that the plaintiff had come back to his home on the same evening i.e. on the day when the school was opened. Accordingly, the learned trial Court held that this proved that the plaintiff had come back to his home on the same evening i.e. on the day when the school was opened. The learned trial Court further held that even if it is assumed that the plaintiff was not present in the village and that the negotiation took place behind his back, even then he was required to show as to what steps he had taken when he came back to village and came to know about the handing over of the building by his son to the Education Department without his consent. The learned trial Court further held that the plaintiff did not take any steps till 04.03.2002 i.e. when he sent a letter addressed to the Headmaster. Accordingly, the learned trial Court held that the plaintiff remained dormant for two years after the opening of the school, which reflects that he had approbated the conduct of his son in handing over the building in question to the Education Department. The learned trial Court further held that the running of a school could not be said to be such an event which could have had gone un-noticed by the plaintiff for such a long period. On these basis, the learned trial Court held that the plaintiff was estopped by acquiescence from filing the suit. Accordingly, the suit of the plaintiff was dismissed by the learned trial Court. However, it observed that since the defendant had been apprised of the real picture about the ownership of the building, it would take necessary steps in near future for creating its own infrastructure. 8. Feeling aggrieved by the said judgment passed by the learned trial Court, the plaintiff filed an appeal which was allowed by the learned First Appellate Court vide its judgment dated 02.07.2005. The learned Appellate Court while allowing the appeal decreed the suit of the plaintiff for eviction of the defendant from the suit premises and also for use and occupation charges quantified at Rs.20,000/- with interest at the rate of 6% per annum from the date of suit to the date of decree. The suit of the plaintiff for damages quantified at Rs.50,000/- for loss to apple crop, was dismissed. The suit of the plaintiff for damages quantified at Rs.50,000/- for loss to apple crop, was dismissed. While arriving at the said conclusion, the learned Appellate Court held that the reasons given by the learned trial Court in concluding that the plaintiff was present at the time of handing over of possession of the suit property to the representative of the defendant were entirely fallacious, as DW-2 who was present at the time of handing over the premises by the son of the plaintiff to the defendant, categorically deposed in his cross-examination that at the time of handing over the possession of the suit premises, the plaintiff was not present. The learned Appellate Court further held that the delay on the part of the plaintiff to take measures to seek restitution of the suit property cannot bar his remedy as delay was not such a blatant delay that it would have invited the learned trial Court to draw inference that the plaintiff had acquiescenced in the act of his son. The learned Appellate Court further held that evidence had come to the effect that the plaintiff and his son resided separately and in this view of the matter, the learned trial Court could not have fastened the principle of estoppel on plaintiff to an act of the son of the plaintiff who was residing separately from the plaintiff and who was not present at the time of handing over of the possession of the suit premises to the representative of the defendant. Accordingly, the learned Appellate Court held that the suit of the plaintiff seeking eviction of the defendant from the suit premises was decreed. The learned Appellate Court further held that a sum of Rs.30,000/- had been claimed by the plaintiff from the defendant on the score that the sum constitutes a reasonable sum on account of use and occupation charges payable by the defendant. However, the basis of the estimation of the said amount was unsubstantiated. The learned Appellate Court further held that a sum of Rs.30,000/- had been claimed by the plaintiff from the defendant on the score that the sum constitutes a reasonable sum on account of use and occupation charges payable by the defendant. However, the basis of the estimation of the said amount was unsubstantiated. Accordingly, the learned Appellate Court held that a sum of Rs.20,000/- was an adequate and reasonable amount payable to the plaintiff by the defendant and accordingly, it passed a decree for Rs.20,000/- being the sum for use and occupation charges payable by the defendant to the plaintiff with interest at the rate of 6% per annum from the date of suit till the date of decree was awarded in favour of the plaintiff. 9. Feeling aggrieved by the said judgment passed by the learned Appellate Court, the State has filed the present appeal. 10. I have heard learned counsel for the parties and have also gone through the records of the case as well as the judgments passed by the Courts below. 11. In my considered view, the learned Appellate Court has totally misread and mis-appreciated the evidence on record while coming to the conclusion that the plaintiff was entitled for a decree of eviction as well as an amount of Rs.20,000/- as use and occupation charges from the present appellant. The findings returned by the learned Appellate Court that the learned trial Court proceeded to non-suit the plaintiff on the premise that the son of the plaintiff had executed the affidavit aforesaid at a time when the plaintiff, too, was present at the site, are perverse and not borne out from the record. The findings which have been returned by the learned trial Court are to the effect that the plaintiff had not specifically pleaded in his plaint as to where he was when the negotiations took place about the handing over the possession of rooms of his building by his son to the department and he had tried to show at the time of evidence that at the relevant time he was not present in the village when the school was opened. Thereafter, the learned trial Court after relying upon the cross-examination of the plaintiff had concluded that the plaintiff had come back to his village in the evening, which shows that the plaintiff was in his house on the same evening when the school was opened. 12. I refer to the statement of plaintiff, who has entered the witness box as PW-1. In his cross-examination, first he sated that it was correct that when the school came to his house he was there. Thereafter, he stated that he was not there, he had gone with his cattle and he returned back in the evening. He has also stated that he had not made any report to the police or other officers of the Education Department about the unauthorized occupation of his premises. Incidentally, the plaintiff has not impleaded his son as a defendant in the case. He admitted in his cross-examination that Middle School was opened only after his son has given in writing that they will allow the school in his premises without charging any rent. 13. From this, it is evident that the findings returned by the learned Appellate Court while decreeing the suit of the plaintiff partly are a result of misreading and misconstruing the pleadings as well as the documentary evidence placed on record by the parties. 14. It is pertinent to mention that the possession of the suit premises in issue has already been handed over by the State to the plaintiff. It was further the common case of the parties before this Court that now the only thing which has to be adjudicated upon is whether the defendant is liable to pay the decretal amount, as has been decreed by the learned Appellate Court as use and occupation charges or not. 15. In my considered view, the judgment passed by the learned Appellate Court to this effect in favour of the plaintiff is also not sustainable in law. The learned Appellate Court has erred in not appreciating that the learned trial Court had rightly concluded that the plaintiff was estopped from filing the suit because of his own act and conduct. It has been held by the Hon’ble Supreme Court in Sunderabai w/o Devrao Deshpande and another Vs. Devaji Shankar Deshpande, A.I.R. 1954 S.C. 82 (Vol. The learned Appellate Court has erred in not appreciating that the learned trial Court had rightly concluded that the plaintiff was estopped from filing the suit because of his own act and conduct. It has been held by the Hon’ble Supreme Court in Sunderabai w/o Devrao Deshpande and another Vs. Devaji Shankar Deshpande, A.I.R. 1954 S.C. 82 (Vol. 41, C. N. 23), that estoppel is a rule of evidence and when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself or such person and his representative to deny the truth of that thing. 16. In the present case, the Middle School started running in the premises of the plaintiff on the basis of the affidavit given by his son in September, 2000. The suit was filed by the plaintiff on 25.03.2003. Before this, he had served a legal notice on the defendant dated 30.09.2002. No material has been placed on record by the plaintiff as to what action he took against the defendant for unauthorizedly occupying his premises from September, 2000 till September, 2002. As already noted above, the plaintiff has not impleaded his son as a defendant in the suit. It is not the case of the plaintiff that he was not residing in the same village in which premises where the school was running were situated. Rather, the plaintiff was residing in the part of the same premises where the school was being operated since September, 2000. From this the only inference which can be drawn is that the premises were handed over to the defendant by the son of the plaintiff with his consent and permission and that is the only reason why the plaintiff remained quite from September, 2000 till September, 2002, when in all probabilities he initiated the process of eviction in order to get his premises back from the department and to achieve his design he came up with his concocted story of the premises being handed over to the department by his son without his permission. Not only this, the learned Appellate Court has arrived at the amount of Rs.20,000/-, which has been decreed in favour of the plaintiff alongwith interest on conjectures because there is no material on record referred to by the learned Appellate Court to substantiate and justify as to how the learned Appellate Court had arrived at this amount. Therefore, the judgment passed by the learned Appellate Court is not sustainable in law and the same is a result of misreading and misconstruing the evidence on records as well as misinterpreting the law of estoppel. The substantial questions of law are answered accordingly. 17. Accordingly, keeping in view the findings which have been returned above, the present appeal is allowed with cost and the judgment passed by the learned Appellate Court is set aside. Miscellaneous applications pending, if any, stand disposed of and interim orders, if any, also stand vacated.