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2016 DIGILAW 65 (HP)

Kamlesh Devi v. Surinder Kumar

2016-01-08

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This Regular Second Appeal has been instituted against common judgment and decree dated 10.4.2009 rendered by learned Additional District Judge, Una, District Una, Himachal Pradesh in Civil Appeal No. 66 of 2008 and Civil Appeal No. 72 of 2008. 2. “Key facts" necessary for adjudication of the present appeal are that respondent-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit against the appellant-defendant No.1 and respondent No.1-defendant No.2 (hereinafter referred to as 'defendant(s)' for convenience sake). According to the plaintiff, his brothes Jatinder Kumar and Mohinder Kumar constructed shops after purchasing possessory title from Resham Singh in the year 1973. Shop marked by letters ‘EFGH’ was constructed by the plaintiff towards Southern side of shop of Jatinder Kumar by spending huge amount and land marked by letters ABCDEFRASD’ as shown in red colour in the site plan by the plaintiff was kept vacant for further extension for commercial complex by the plaintiff. Plaintiff locked his premises as he was carrying on business at Paragpur. However, defendant No. 1 Kamlesh Devi being a clever and shrewd lady, in connivance with her husband Mohinder Kumar removed the locks of the shop on 27.6.1988 and thereafter, plaintiff enquired about the reasons for removing the locks from the premises by the defendant. Defendant No.1 Kamlesh Devi filed suit for permanent injunction against the plaintiff in the court of Sub Judge, 1st Class Court No. II, Amb. Suit was decreed by the trial Court. Plaintiff preferred an appeal before District Judge, Una. He modified the judgment and decree of the trial Court vide judgment dated 31.3.2000 and held the plaintiff to be owner of the suit premises. However, plaintiff was restrained from taking forcible possession of the suit premises except in due course of law. Defendant No.1 about two months in the absence of the plaintiff, raised construction of one room marked by letters ‘RASD’ in the site plan without any right. She also rented the suit premises to defendant No. 2, Kapil on a monthly rent of Rs.800/- without taking consent of the plaintiff, on 1.3.1993. Plaintiff claimed rent of three years, which was received by the defendant illegally from defendant No. 2. 3. Suit was contested by the defendant No.1. She also rented the suit premises to defendant No. 2, Kapil on a monthly rent of Rs.800/- without taking consent of the plaintiff, on 1.3.1993. Plaintiff claimed rent of three years, which was received by the defendant illegally from defendant No. 2. 3. Suit was contested by the defendant No.1. It is asserted in the written statement that the plaintiff vide writing dated 27.6.1988 transferred all rights, title and interest over the suit premises described by letters ABCD to the defendant No. 1 for a consideration of Rs.4,000/-. Plaintiff is left with no right, title or interest over the disputed shop since the same has been sold. She has improved the property by spending Rs.18,000/-. She was constrained to file suit which was decreed vide judgment and decree dated 16.2.1993, however, judgment and decree 16.2.1993 were modified by the learned District Judge. She had filed a Regular Second Appeal in this Court against judgment and decree dated 13.3.2000. It is also asserted that the plaintiff is barred under Section 53-A of the Transport of Property Act to file the suit and take possession from defendant No. 1. She was always ready and willing to perform her part of contract i.e. sale agreement and to bear registration charges. 4. Defendant No.2 filed written statement. Defendant No.2 asserted that he is tenant under defendant No. 1 and rent is being paid regularly. He is bonafide lessee of the shop premises to the knowledge of the plaintiff. 5. Issues were framed by the learned Civil Judge (Junior Division). Suit of the plaintiff was decreed for possession of the premises/shop marked by letters ABCDEFGH and RASD in the site plan Ext. PW-3/A measuring 0-04-88 hectares situate in Khewat No. 323 min, Khatauni No. 609 min and Khasra Nos. 1713 and 1714 (new)/1059 (old) situate in Mohal Adarash Nagar, Amb, Tehsil Amb, District Una, HP. However, suit of the plaintiff for recovery of Rs.28,800/- and for injunction was dismissed. Plaintiff filed an appeal against judgment and decree dated 26.6.2008 bearing Civil Appeal No. 66/2008. Defendant No.1 Kamlesh Devi also filed an appeal against judgment and decree dated 26.6.2008 being Civil Appeal No. 72/2008. Learned Additional District Judge, Una, allowed Civil Appeal No. 66/2008 and dismissed Civil Appeal No. 72/2008. Plaintiff was held entitled to the amount of Rs.28,800/-. Hence, this Regular Second Appeal. 6. Defendant No.1 Kamlesh Devi also filed an appeal against judgment and decree dated 26.6.2008 being Civil Appeal No. 72/2008. Learned Additional District Judge, Una, allowed Civil Appeal No. 66/2008 and dismissed Civil Appeal No. 72/2008. Plaintiff was held entitled to the amount of Rs.28,800/-. Hence, this Regular Second Appeal. 6. The Regular Second Appeal was admitted on 29.5.2009, on the following substantial questions of law: “1. Whether the findings of the court below are vitiated and the court below has exercised jurisdiction not vested in it by law in not staying the subsequent suit under Section 10 C.P.C. when the previous judgment and decree wherein the same questions were involved was pending adjudication in the High Court? 2. Whether the findings that the plaintiff was owner of the property and the defendant was in unauthorized possession thereof are perverse and are based on misreading of oral and documentary evidence particularly pleadings of the parties and the documents Ext.PX, Ext. PZ, D-1, D-2, D-3, DY, DZ and Ext. DW-5/B and statements of PW-1, DW Ranbir Singh, Virender Kumar, Kamlesh Devi and Prem Saini? 3. Whether in view of the writing Ext. D-1 dated 27.06.1988 which was duly impounded and proved that the plaintiff was entitled to the benefit of Section 53A of the Transfer of Property Act and have become owner of the property and the suit of the plaintiff was not maintainable?” 7. Mr. K.D. Sood, learned Senior Advocate, on the basis of substantial questions of law framed has vehemently argued that the Courts below have misread and misconstrued the oral as well as documentary evidence. He also contended that the plea of the defendant qua applicability of Section 53A of the Transfer of Property Act, has also not been construed in right perspective. He also contended that the subsequent suit ought to have been stayed under the provisions of Section 10 CPC since, according to him, same questions were involved in the earlier suit. 8. Mr. Ajay Sharma, Advocate, has supported the judgment and decree dated 10.4.2009. 9. I have heard the learned counsel for the parties and also gone through the record carefully. 10. Since all the substantial questions of law are interconnected, as such same are taken up together to avoid repetition of discussion of evidence. 11. 8. Mr. Ajay Sharma, Advocate, has supported the judgment and decree dated 10.4.2009. 9. I have heard the learned counsel for the parties and also gone through the record carefully. 10. Since all the substantial questions of law are interconnected, as such same are taken up together to avoid repetition of discussion of evidence. 11. It is admitted fact that the suit premises were purchased by the plaintiff and his brother in 1974 by way of a registered sale deed from one Shri Resham Singh. Case of the defendant No.1 is that shop in question was sold by plaintiff to her vide writing dated 27.6.1988 Ext. D-1 for a sum of Rs.4,000/-. Suit property was agreed to be sold for more than Rs.100/-, thus it was required to be registered under Section 17 of the Registration Act. Document Ext. D-1 can not be termed to be an agreement to sell. There are no terms and conditions incorporated in the writing dated 27.6.1988. This document can not be termed as a deed under Section 53-A of the Transfer of Property Act. Section 53-A of the Transfer of Property Act pre-supposes existence of a contract/agreement between the parties for transfer of an immovable property. 12. Following conditions are necessary for applicability of Section 53A of the Transfer of Property Act: (1) there must be a contract to transfer for consideration any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained with reasonable certainty; (4) the transferee must, in part-performance of the contract, take possession, he must continue in possession in part performance of the contract; (5) the transferee must have done some act in furtherance of the contract; (6) the transferee must have performed, or be willing to perform, his part of the contract.” 13. The learned Single Judge of Karnataka High Court in M. Mariappa v. A.K. Sathyanarayana reported in AIR 1984 Karnataka 50, has held that in order to attract the provisions of Section 53-A the property must be owned by the plaintiff. There should be an agreement to sell by the plaintiff in favour of defendant for consideration and in pursuance of that agreement, the defendant should have been in possession of the immovable property or part thereof. There should be an agreement to sell by the plaintiff in favour of defendant for consideration and in pursuance of that agreement, the defendant should have been in possession of the immovable property or part thereof. The learned Single Judge has held as under: “[15] The Supreme Court of India has elaborately discussed these aspects and has explained the same in the case, Sardar Govindrao Mahadik v. Devi Sahai, reported in. Speaking through his Lordship D. A. Desai, J.: the Supreme Court has observed thus on the aspect of putting the transferee in possession, in paragraph 39 of the judgment: "Induction into possession of an immovable property for the first time subsequent to the contract touching the property, may be decisive of the plea of part performance. Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior to the contract and continues to retain possession. However, a reference to a statement of law in Halsbury's Laws of England, 3rd Edition, Vol. 36, para 48 would be instructive. It reads as under: "Where possession is given to a "tenant" before a tenancy agreement has been concluded and the possession is retained after the conclusion of the agreement, the possession, if unequivocally referable to the agreement, is a sufficient part performance but subject to this, acts done prior to or preparatory to, the contract will not suffice. If a person claiming benefit of part performance is inducted into possession for the first time pursuant to the contract it would be strong evidence of the contract and possession changing hands pursuant to the contract........................................................................" Thus, the Supreme Court has explained that if a person is already in possession at the time of agreement his continuance in possession should be unequivocally referable to the contract or the terms of agreement of sale, in order to attract the doctrine of part performance. Bearing in mind the salutary principles, I have to examine whether the defendant in this case has taken, in his written Statement, the plea of part performance on the facts of the present case. The specific defence of the defendant in this case in his written statement is very clear. Bearing in mind the salutary principles, I have to examine whether the defendant in this case has taken, in his written Statement, the plea of part performance on the facts of the present case. The specific defence of the defendant in this case in his written statement is very clear. According to the defendant, the house earlier belonged to one Kannayappa Reddy and the defendant had agreed to purchase the same from Karmayappa Reddy and Kannayappa Reddy did not produce before him the title deeds in spite of notice issued to him on 15-5-1965. In these circumstances, he did not purchase the property and the plaintiff, in the meanwhile, negotiated with the said Kannayappa Reddy to purchase the suit Property and defendant consented to it and it is in that context that the present plaintiff gave him Ext. D-1, the agreement to recovery, (vide: Para 2 of the written statement). The defendant denied the relationship of landlord and tenant between him and the plaintiff and contended that he was living as owner in the suit house on the basis of reconveyance agreement executed by the plaintiff in his favour on 9-7-1965 for Rupees 6,500/-. (Vide para-1 of the written statement). He further elaborated that it was practically at his instance that the plaintiff purchased the suit house and, by necessary implication, he asserts that the suit house was practically purchased by the plaintiff for and on behalf of the defendant and in para 2 of the written statement towards the end he asserts that the relationship between him and the plaintiff is that of creditor and debtor and that he owes to the plaintiff Rs. 6,500/- and, it is in that sense, he has become the owner of the suit house though he has purchased the property in the name of the plaintiff. This stand taken by the defendant in the written statement is very clear and unambiguous as has been further affirmed in his evidence before the trial Court. This is what he stated in the chief examination. "Since from 9-7-1965 I am in occupation of suit premises. I purchased it under an agreement of sale from P. Kannayappa Reddy for Rs. 10,250/-. But I paid Rupees 3,500/- to him as advance and obtained an agreement of sale from him. As I did not have the remaining money, I have asked the plaintiff to give a loan of Rs. I purchased it under an agreement of sale from P. Kannayappa Reddy for Rs. 10,250/-. But I paid Rupees 3,500/- to him as advance and obtained an agreement of sale from him. As I did not have the remaining money, I have asked the plaintiff to give a loan of Rs. 6,500/-. Plaintiff took me to his lawyer Sri B. Neelakanta who advised me to obtain the registered sale deed in the name of plaintiff and to get the same reconveyed in my favour on repayment of Rs. 6,500/- to plaintiff. Exhibit D-1, is the agreement executed by the plaintiff in my favour agreeing to reconvey the suit property in my favour. It is against that I pay Rs. 130/- per month by way of interest to plaintiff on Rs. 6,500/- Thus, there can be no doubt about the specific stand taken by the defendant. According to him, since he had no money to pay by way of consideration to Kannayappa Reddy, he requested the plaintiff to advance Rs. 6,500/- and get the sale deed in his name and it is in that context the reconveyance deed came into existence, as per Ext. D-1. This stand taken by the defendant in his written statement can never spell out an agreement as contemplated under Section 53-A. T. P. Act. In order to attract the provisions of S. 53-A, T. P. Act, the Property must be owned by the plaintiff. There should be an agreement to sell by the plaintiff in favour of defendant for consideration and, in pursuance of that agreement, the defendant should have been in possession of the immovable property or part thereof and the defendant must have done something more in furtherance of the contract and he himself should be ready and willing to perform his part of the contract from the date of the agreement. 14. Case of the plaintiff was that the document Ext. D-1 dated 23.6.1988 was forged. Defendant has filed suit against the plaintiff. Suit was decreed by the trial Court. However, in the first appellate Court, judgment and decree was modified and finding given by the trial Court that the document Ext. D-1 dated 27.6.1988 was not forged and fabricated, was set aside. It was held by the first appellate Court that plaintiff has never executed sale deed of the premises in dispute in favour of Kamlesh Devi. Ext. D-1 is dated 27.6.1988. D-1 dated 27.6.1988 was not forged and fabricated, was set aside. It was held by the first appellate Court that plaintiff has never executed sale deed of the premises in dispute in favour of Kamlesh Devi. Ext. D-1 is dated 27.6.1988. Husband of Kamlesh Devi has written a letter dated 24.11.1988, Ext. PY whereby Mohinder Kumar has admitted the plaintiff to be owner of the shop and demanded Rs.6,000/- from him as expenditure which has been incurred by him in the premises. Had suit premises been sold, there was no occasion for the husband of the defendant No. 1 to have demanded Rs.6,000/-. There is another suspicious circumstance. Document Ext. D-1 has been signed by all the persons twice. 15. Suit filed by the defendant though was decreed as noticed above, but the judgment and decree were modified by the first appellate Court. It was held that owner of the premises in dispute was plaintiff Surinder Kumar. He has never executed sale deed of the premises in dispute in favour of Kapil. RSA No. 305/2005 preferred against judgment and decree rendered by first appellate Court was disposed of on 8.11.2012. Issues involved in both the suits were not identical. DW-1 Kamlesh Devi filed earlier suit against the plaintiff for permanent injunction and present suit has been filed by the plaintiff for possession and for issuance of permanent injunction for restraining the defendants from raising construction over the suit premises. Ownership of defendant No. 1 was not a question involved in the earlier suit. She has not put any specific claim that because of Ext. D-1, she has become owner of the suit premises. 16. Husband of the defendant No. 1 has also moved an application bearing CMP No. 796/2010. Application was contested and same was decided by this Court on 1.7.2011. CMP No. 654/2011 17. Defendant No.1 has also filed an application under Order 6 Rule 17 read with Section 151 CPC, for amendment of written statement being CMP No. 654/2011. It was ordered to be heard alongwith main appeal vide order dated 9.9.011. Amended written statement was also filed alongwith application. The sum and substance of the application is that the site plan filed by the plaintiff is totally wrong and incorrect. In other words, exact description of the property has not been mentioned in the plaint. Application was contested by the plaintiff. Amended written statement was also filed alongwith application. The sum and substance of the application is that the site plan filed by the plaintiff is totally wrong and incorrect. In other words, exact description of the property has not been mentioned in the plaint. Application was contested by the plaintiff. According the averments made in the reply, application under Order 6 Rule 17 CPC was filed after 21 years when cause of action has arisen. It is further averred that neither there was any contradiction in the site plan filed by the plaintiff nor same was disputed at any stage of trial by the defendant and the application was filed to delay the proceedings. Rejoinder was also filed by the defendants. 18. The Court is of the considered view that the application seeking amendment of written statement after 21 years is not maintainable. The application is belated as well as malafide. Question of mis-description of the property was never raised before the trial Court and same can not be permitted to be taken at this belated stage. It is settled law that the principles of amendment of written statement are different vis-à-vis amendment of plaint but still, general principles governing amendment of pleadings are to be adhered to. There is no explanation why this plea has not been taken at the time of filing of written statement. 19. Their Lordships of the Hon'ble Supreme Court in J. Samuel v. Gattu Mahesh reported in (2012) 2 SCC 300 , have explained the principles of amendment of the pleadings after commencement of trial as under: “18. The primary aim of the Court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the Court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, amendment must be necessary for the purpose of determining the real question in controversy between the parties. Therefore, at times it is required to permit parties to amend their plaints. The court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to balance the interest of the parties in pursuit of doing justice, the proviso has been added which clearly states that: “… no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” 19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term “due diligence” is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. 20. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term “due diligence” determines the scope of a party’s constructive knowledge, claim and is very critical to the outcome of the suit.” 20. Accordingly, there is no merit in the application and same is dismissed. CMP No. 579/2011 21. Defendant No.1 has also filed an application under Order 41 Rule 27 CPC for adducing additional material on record i.e. copies of various plans, affidavit of Jitender Kumar, and receipts of water, electricity and house tax etc. Here also the defendant has failed to show why despite due diligence, she could not produce documents at the initial stage. There is no explanation why all these documents were not produced during the trial of the case. Purpose of Order 41 Rule 27 CPC is not to fill up lacuna in the pleadings. Defendant can not be permitted to adduce additional material at this belated stage. Accordingly, the present application is also dismissed. 22. There is no explanation why all these documents were not produced during the trial of the case. Purpose of Order 41 Rule 27 CPC is not to fill up lacuna in the pleadings. Defendant can not be permitted to adduce additional material at this belated stage. Accordingly, the present application is also dismissed. 22. Courts below have correctly appreciated the oral as well as documentary evidence. The substantial questions of law are answered accordingly. 23. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.