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Himachal Pradesh High Court · body

2016 DIGILAW 1837 (HP)

Krishna Devi v. Raj Kumari

2016-08-31

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of present appeal, appellants/defendants have challenged the judgment passed by the Court of learned District Judge, Shimla in Civil Appeal No. 65-S/13 of 2005/04 dated 03.03.2007 vide which, learned appellate Court while dismissing the first appeal filed by the present appellants, has upheld the judgment and decree passed by the Court of learned Civil Judge (Junior Divison), Court No. (4) in Civil Suit No. 37/1 of 2001 dated 01.07.2006, vide which learned trial Court had decreed the suit of the present respondent/plaintiff. 2. For clarification of the records, it is stated that initial judgment passed by the Court of learned Civil Judge (Junior Division), Court No. (4), Shimla in Civil Suit No. 37/1 of 2001 dated 02.09.2004 was remanded back in appeal by learned appellate Court in Civil Appeal No. 65-S/13 of 2005/04 dated 05.08.2005 for adjudication only on Issue No. 3-A and the same culminated in judgment passed by the Court of learned Civil Judge (Junior Division), Court No. (4), Shimla in Civil Suit No. 37/1 of 2001 dated 01.07.2006 3. This appeal was admitted on the following substantial questions of law on 31.05.2007: “1. Whether agreement for sale having been arrived at between late Shri Jeet Ram, predecessor of the appellants and Shri Roop Chand, predecessor of the respondent on 18.05.1990 as later on affirmed on 05.02.1991 and the fact that appellants are still read and willing to perform their part of the agreement, therefore, respondent is not entitled to a decree for possession and recovery of mesne profits? 2. Whether agreement for sale is still enforceable between the parties, respondent having entered into the footsteps of previous owner Sh. Roop Chand, therefore, he cannot claim decree for possession and recovery of mesne profits. 3. Whether in view of the law as laid down by the Hon’ble Apex Court as reported in AIR 2001 SC 3017 , the requirement of obtaining prior permission for purchase of the land in suit was not essential and therefore, the sale deed can be executed in favour of the appellants? 4. 3. Whether in view of the law as laid down by the Hon’ble Apex Court as reported in AIR 2001 SC 3017 , the requirement of obtaining prior permission for purchase of the land in suit was not essential and therefore, the sale deed can be executed in favour of the appellants? 4. Brief facts necessary for the adjudication of the present case are that respondent/plaintiff (hereinafter referred to as ‘the plaintiff) filed a suit for possession with regard to the suit land on the ground that the suit land was previously owned by Shri Roop Chand, S/o Shri Ram Dayal and vide sale deed dated 19th December, 2000, said land had been sold by its previous owner in favour of the plaintiff for a sale consideration of Rs.70,000/-, which was duly registered before the concerned registration authority, i.e. in the office of Sub Registrar, Shimla. As per the plaintiff, on the suit land, one temporary Dhara was constructed on a portion of land about 15 sq. mtrs., whereas rest of the land was vacant. It was the case of the plaintiff that defendants were in unlawful possession of the suit property owned by her. It was further mentioned by the plaintiff that predecessor-in-interest of the defendants had entered into an agreement to sell with the predecessor-in-interest of the plaintiff with respect to the suit property on 05.02.1991. However, as the predecessor-in-interest of the defendants was not an agriculturist in Himachal Pradesh and was not entitled to purchase any property in the State of Himachal Pradesh in view of the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, the said agreement was illegal and void and in a Civil Suit filed by the defendant, i.e. Civil Suit No. 621/1 of 95/94 filed in the Court of learned Sub Judge (1), Shimla against Roop Chand, i.e. previous owner, Issue No. 2 framed therein stood decided against the defendants (plaintiffs therein) and vide this issue, the agreement to sell the suit land entered into between the predecessor-in-interest of the defendants and Sh. Roop Chand was held to be illegal and void. It was further mentioned in the plaint that in Civil Suit No. 621/1 of 95/94, it was also held that predecessor-in-interest of the plaintiff will be entitled to obtain possession of the suit property by due process of law. Roop Chand was held to be illegal and void. It was further mentioned in the plaint that in Civil Suit No. 621/1 of 95/94, it was also held that predecessor-in-interest of the plaintiff will be entitled to obtain possession of the suit property by due process of law. It was further the case of the plaintiff that as the agreement for sale of the suit land previously entered into between the defendants and Roop Chand was not enforceable in law, the possession of the defendants on the suit property was illegal and on these basis, the plaintiff filed the suit for possession of the suit property by demolition of temporary shed (Dhara) alongwith a decree for recovery of Rs.6800/- and future mesne profits/damages for use and occupation of the suit land by the defendants @50/- per day from the date of filing of the suit till the recovery of possession thereof. Plaintiff also prayed for a decree of permanent prohibitory injunction restraining the defendants from changing the nature of the suit property in any manner. 5. The suit so filed by the plaintiff was contested by the defendants, i.e. present appellants. In the written statement, defendants denied the factum of the plaintiff being owner in legal possession of the property and as per the defendants the sale deed entered into between the plaintiff and the previous owner of the suit land was a sham transaction and not binding on the defendants. Defendants denied that they were in unlawful possession of the suit land and it was also denied that predecessor-in-interest of the plaintiff was not an agriculturist, as alleged. The claim of mesne profits @ 50/- per day was also not admitted by the defendants. 6. On the basis of pleadings of the parties, learned trial Court framed the following issues: “(i) Whether the plaintiff is entitled for possession, as alleged? OPP (ii) In case issue NO. 1 is proved to be in affirmative, whether the plaintiff is entitled for the relief of injunction as claimed? OPP (iii) Whether the suit is not maintainable? (iii-A) Whether the plaintiff is entitled to mesne profits of Rs.6,800/- and also at the rate of Rs.50/- per day from the date of suit till delivery of possession of the suit property to the plaintiff, as alleged? OPP (iv) Relief. 7. OPP (iii) Whether the suit is not maintainable? (iii-A) Whether the plaintiff is entitled to mesne profits of Rs.6,800/- and also at the rate of Rs.50/- per day from the date of suit till delivery of possession of the suit property to the plaintiff, as alleged? OPP (iv) Relief. 7. On the basis of material placed on record by way of ocular and documentary evidence, learned trial Court returned following findings to the issues so framed: “Issue No. 1: Yes. Issue No. 2: Yes. Issue No. 3: No. Issue No.3-A: No. Relief: The suit is partly decreed, as per the operative part of the judgment. 8. Learned trial Court while partly decreeing the suit of the plaintiff held the plaintiff entitled for possession of the property comprised in Khata Khatauni No. 108/188, Khasra No. 886, measuring 65 sq. meters, situated at Mauja Kanlog, Tehsil and District Shimla by demolition of temporary shed (Dhara) standing on the part of the suit land and learned trial Court also held the plaintiff to be entitled to a decree of permanent prohibitory injunction restraining the defendants from changing the nature of the suit land in any manner. However, learned trial Court dismissed the suit of the plaintiff for recovery of damages/mesne profits. 9. The judgment so passed by learned trial Court was challenged by way of an appeal by the defendants, whereas the plaintiff also filed Cross-objections under Order 41 Rules 22 and 33 of the Code of Civil Procedure feeling aggrieved by the denial of grant of mesne profits in their favour. 10. Learned appellate Court vide its judgment dated 03.03.2007 while dismissing the appeal filed by the defendants against the judgment and decree passed by learned trial Court in favour of the plaintiff, accepted the Cross-objections filed by the plaintiff. Thus, learned appellate Court while setting aside the findings of learned trial Court on Issue No. 3-A, decreed the suit of the plaintiff with costs for recovery of Rs.6800/- as damages till the filing of the suit alongwith future damages/mesne profits at the rate of Rs.50/- per day till the date of delivery of possession in her favour. 11. Findings so returned by both the learned Courts below in favour of the plaintiff are under challenge in the present appeal. 12. 11. Findings so returned by both the learned Courts below in favour of the plaintiff are under challenge in the present appeal. 12. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both the Courts below. 13. Mr. Romesh Verma, learned counsel for the appellants challenged the findings so arrived by learned trial Court on the ground that it was wrongly and erroneously presumed by learned trial Court that agreement to sell the suit property which initially entered into between the predecessor-in-interest of the present appellants and Shri Roop Chand, i.e. original owner of the suit land was illegal and void. According to Mr. Verma, this finding was perverse as there was nothing on record from which this inference could have been drawn by learned trial Court. According to Mr. Verma, the judgment passed by learned trial Court was otherwise also not sustainable in law in view of the amendment which had been subsequently carried out in the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act in lieu of which, the suit land could have been easily purchased by the predecessor-in-interest of the defendants without facing the embargo of Section 118 of the H.P. Tenancy and Land Reforms Act. According to Mr. Verma, because the suit property was situated within the municipal limit of Shimla Town, therefore, rigours of Section 118 of the H.P. Tenancy and Land Reforms Act were not attracted. His submission was that this very important aspect of the matter had been ignored both by learned trial Court as well as by learned appellate Court and further learned appellate Court had grossly erred in accepting the Cross-objections filed by the plaintiff and decreeing the suit of the plaintiff for recovery of Rs.6800/- alongwith future interest and mesne profits @50/- per day as the plaintiff had not adduced any evidence on record to substantiate or justify the amount which was claimed by the plaintiff. . 14. On the other hand, Mr. Ajay Kumar, learned Senior Counsel appearing for the respondent argued that the appeal filed by the present appellants was without any merit and the argument of Mr. . 14. On the other hand, Mr. Ajay Kumar, learned Senior Counsel appearing for the respondent argued that the appeal filed by the present appellants was without any merit and the argument of Mr. Verma that argument to sell dated 05.02.1991 was still subsisting was totally unacceptable in law because keeping in view the fact that in a previous legal proceedings between the plaintiff and Shri Roop Chand, the original owner of the suit land, this issue stood decided by the Court of learned Sub Judge (1), Shimla in Civil Suit No. 621/1 of 95/94 that agreement dated 05.02.1991 was illegal and void. According to Mr. Sood, the findings so returned in Civil Suit No. 621/1 of 95/94 had attained finality (which aspect of the matter was not disputed by Mr. Romesh Verma) and therefore, as per Mr. Sood, the argument of Mr. Romesh Verma to the effect that there was no material on record from which learned trial Court could have drawn this inference that the agreement entered into between Shri Roop Chand and the predecessor-in-interest of the present defendants was a totally misconceived argument. 15. Mr. Sood also argued that substantial question of law No. 1 in fact is not borne out from the records of the case itself because it is not a case between the parties which had signed the agreement to sell dated 05.02.1991 nor it is a case where the sale deed entered into between the plaintiff and Shri Roop Chand was under challenge by way of filing of a suit for declaration by any alleged aggrieved party. It was further argued by Mr. Sood that the agreement to sell dated 05.02.1991 was not enforceable at all in view of the quietus having been given to the said agreement by the judgment passed by the Court of learned Sub Judge (1), Shimla in Civil Suit No. 621/1 of 95/94 dated 31.03.2000. Mr. Sood also argued that the judgment of the Hon’ble Supreme Court being relied upon by the appellants was also of no assistance to the appellants and on these basis, he argued that there was no merit in the appeal and the same be dismissed with costs. 16. Mr. Sood also argued that the judgment of the Hon’ble Supreme Court being relied upon by the appellants was also of no assistance to the appellants and on these basis, he argued that there was no merit in the appeal and the same be dismissed with costs. 16. In my considered view, the contention of learned counsel for the appellants that the judgment and decree of possession and injunction passed in favour of the plaintiff and against the defendants by learned trial Court is not sustainable in law is without any merit. 17. Ex.-PX is the copy of judgment passed by the Court of learned Sub Judge 1st Class, Court No. 1, Shimla in Case No. 621/1 of 95/94 vide which, suit for permanent prohibitory injunction filed by the present appellants against the original owner of suit property Sh. Roop Chand and Sh. Balak Ram was dismissed. Issue No. 2 framed in the said suit reads as under: “2. Whether the agreement dated 05.02.91 is illegal and void as alleged? OPD 18. In the said suit, this issue was decided against the plaintiffs therein, i.e. present appellants. The findings returned by learned Court in the said suit in para-14 of the judgment passed by it read as under: “14. From the above discussion, it appears that the plaintiffs are in possession of the suit land, though their possession is under the agreements, which cannot be enforced by them, in view of the bar under Section 118 H.P. Land Tenancy and Land Reforms Act. The Ld. Counsel for defendants has argued that since the possession of the plaintiffs is unlawful, therefore, they are not entitled to any injunction. However, it appears that the plaintiffs have been in possession of the suit property with the consent of the defendants, therefore, they cannot be ejected from the suit land by the defendants, by using force. Even in case of a tress, the real owner cannot evict the encroacher by force, though, he can recover the possession in accordance with law. Simply because agreement, Ex. PW1/A and B are invalid in view of Section 118 H.P. Tenancy and Land Reforms Act, it will not entitle them to use force and disturb the possession of the plaintiffs.” 19. Simply because agreement, Ex. PW1/A and B are invalid in view of Section 118 H.P. Tenancy and Land Reforms Act, it will not entitle them to use force and disturb the possession of the plaintiffs.” 19. It has been stated at the Bar by learned counsel for the appellants that the judgment so passed by the Court of learned Sub Judge 1st Class, Court No. 1, Shimla in Case No. 621/1 of 95/94 dated 31.03.2000 was not challenged by way of an appeal etc. In other words, the findings which have been returned with regard to agreement to sell dated 05.02.1991 to the effect that the said agreement cannot be enforced in view of the bar contained in Section 118 of the H.P. Tenancy and Land Reforms Act has attained finality. The respondent herein has purchased the suit land by way of a registered sale deed from Shri Roop Chand, who was the defendant in Civil Suit No. 621/1 of 95/94. The judgment in the abovementioned Civil Suit is dated 31.03.2000, whereas the sale deed executed between the present respondent and Roop Chand is dated 19.12.2000. Therefore, as on the date when the sale deed was executed between the present respondent and Shri Roop Chand finding to the effect that the agreement to sell entered into between the predecessor-in-interest of the present appellants and Shri Roop Chand already stood returned by the Court of law. Not only this, the present appeal has arisen out of a suit which was filed by the present respondent seeking possession of the suit land and it is not as if the appellants herein had filed a suit for declaration to the effect that sale deed entered into between the present respondent and Shri Roop Chand was bad in law. Therefore, in this view of the matter, in my considered view, substantial question of law No. 1 as has been framed is not borne out from the records of the case. This is more so keeping in view the fact that even in the written statement, no such stand was taken by the appellants/defendants that the appellants/defendants were ready and willing to perform their part of the agreement. This is more so keeping in view the fact that even in the written statement, no such stand was taken by the appellants/defendants that the appellants/defendants were ready and willing to perform their part of the agreement. Besides this, even otherwise the appellants at this stage cannot be permitted to say that the plaintiff was not entitled for decree of possession and recovery of mesne profits on the ground that appellants are still ready and willing to perform their part of the agreement as the said agreement has already been held to be not enforceable in law vide judgment and decree passed by the Court of learned Sub Judge 1st Class, Court No. 1, Shimla in Case No. 621/1 of 95/94 dated 31.03.2000. Therefore, this issue whether the agreement for sale was/is enforceable or not stands decided as far back as in the year 2000 vide judgment dated 31.03.200 passed in Case No. 621/1 of 95/94 (supra) and in this view of the fact, it cannot be said that the agreement in issue is still enforceable between the parties. 20. Keeping in view the fact that both the learned Courts below have concurrently come to the conclusion that plaintiff was entitled for possession of the suit land and the said suit land was illegally occupied by the defendants, while learned trial Court erred in granting the mesne profits in favour of the plaintiff, learned appellate Court had rightly set aside the judgment and decree passed by learned trial Court to this effect by allowing the Cross-objections filed by the plaintiff. 21. During the course of arguments, it has also been brought to the notice of this Court that the judgment and decree passed by learned trial Court of possession has also been executed and the possession of the suit land has been handed over to the present respondent. Appellants admittedly remained in possession of the suit land without any legal right and the claim of mesne profits by the owner of the suit land @50/- per day cannot be said to be unjustified. The claim of mesne profits was duly pleaded in the plaint and claimed by the plaintiff in her deposition as PW-1. 22. The judgment of the Hon’ble Supreme Court relied upon by the learned counsel for the appellants in M/s. Murudeshwara Ceramics Ltd. and another Vs. The claim of mesne profits was duly pleaded in the plaint and claimed by the plaintiff in her deposition as PW-1. 22. The judgment of the Hon’ble Supreme Court relied upon by the learned counsel for the appellants in M/s. Murudeshwara Ceramics Ltd. and another Vs. State of Karnataka and others AIR 2001 Supreme Court 3017, in my considered view, has no applicability in the facts of the present case. In the said case, the Hon’ble Supreme Court dealt with the provision of Karnatka Land Reforms Act and exemption contained therein with regard to transfer of land in favour of non agriculturists. In view of the facts of that case, it was held by the Hon’ble Supreme Court: “6. Section 109 of the Act confers power on the State Government to grant exemption in regard to a land in any area from the provisions of Sections 63, 79A, 79B and 80 of the Act to be used for industrial purposes, educational institutions, places of worship, a housing project or horticulture including floriculture or an agro based industry. Further, the Government has also the power even in the absence of such purposes to grant exemption in public interest. If the aspect that it is not with reference to any particular person or transaction such exemption is granted but it is with reference to a land such exemption is granted is borne in mind the interpretation and application of law becomes clear. It may be that such exemption could be granted before the acquisition of the land or thereafter when it is actually sought to be put to those particular uses, which are enumerated under Section 109 of the Act. Therefore, once we come to the conclusion that the Government has powers to grant exemption from the operation of the provisions of Sections 63, 79A, 79B and 80 of the Act and those provisions will be out of place insofar as the land in question is concerned, the examination by the High Court as to whether there has been contravention of the provisions thereof was totally uncalled for. The High Court need not have embarked on the investigation as to whether the sale is in contravention of the provisions of the Act and ought to have held that those provisions are not applicable in the case of the land in question in view of the exemption granted. The High Court need not have embarked on the investigation as to whether the sale is in contravention of the provisions of the Act and ought to have held that those provisions are not applicable in the case of the land in question in view of the exemption granted. Thus the finding recorded by the High Court in this regard is set aside.” 23. However, as far as the present case is concerned, the amendment on which learned counsel for the appellants is insisting which has been carried in Section 118 of the H.P. Tenancy and Land Reforms Act by introduction of clause (dd) in sub-section 21 of Section 118 of the said Act has been inserted by way of Section 3 of H.P. Tenancy and Land Reforms Act, 1997. The agreement to sell entered into between predecessor-in-interest of the defendants and Shri Roop Chand is dated 05.02.1991, meaning thereby the exemption which has been inserted by way of amendment carried in the year 1997 and the same is also subject to riders. De hors this fact, in the present case, the fact of the matter still remains that the finding returned by the Court of learned Sub Judge 1st Class, Court No. 1, Shimla in Case No. 621/1 of 95/94 to the effect that the agreement in issue was not enforceable had attained finality and was not challenged by the appellants and the sale deed entered into between the present respondent and Shri Roop Chand was after the said adjudication by the Court of learned Sub Judge 1st Class, Court No. 1, Shimla in Case No. 621/1 of 95/94. Therefore, in this view of the matter, it cannot be said that the judgment and decree passed by learned trial Court and upheld by learned appellate Court in favour of respondent/plaintiff and against appellants/defendants qua the possession of suit land and injunction calls for no interference. Substantial questions of law are answered accordingly. 24. In view of the discussion held above, there is no merit in the appeal and the same is dismissed. Miscellaneous application(s), if any, stand disposed of.