Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 907 (HP)

Yash Pal Puri v. Ashok Kumar

2016-05-24

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. 1. This appeal has been filed by the appellant-plaintiff against the judgment and decree dated 27.05.2005 passed by the learned Additional District Judge, Fast Track Court, Chamba, District Chamba, H.P., affirming the judgment and decree dated 20.01.2001 passed by the learned Sub Judge, Chamba, whereby the suit for possession filed by the appellant-plaintiff was dismissed. 2. For brevity sake, hereinafter, the parties are referred to be as in the trial Court. 3. The brief facts emerges from the record are that the plaintiff filed a suit for possession on the ground that he is owner of the disputed stall No.2, measuring 10 x 12 situated at Mohalla Chowgan No.3, Chamba town, (hereinafter referred to as ‘disputed stall’) within the limits of Municipal Council, Chamba, District Chamba, (in short ‘MC, Chamba’), which was mortgaged by him, vide agreement dated 19.4.1991, to defendant No.1 for a period of five years ending on 18.4.1995. But during the period of mortgage, defendant No.1 rented out the disputed stall to Dr. B.S. Vakil, proforma defendant No.2 and thereafter the same was illegally let out to Dr. Madan Mohan Marol, defendant No.3. It is alleged that the stipulated period of mortgage has already expired on 18.4.1995 and thereafter, the defendant No.1 is not entitled to retain the possession of the disputed stall either by himself or through his tenant Dr. Madan Mohan Marol, proforma defendant No.3. Thereafter, defendant No.1 has forcibly dispossessed defendant No.3 who has also filed a separate suit in the Court of learned Senior Sub Judge, Chamba. It is further alleged that now the plaintiff requires the said stall for his personal use as he has got no other shop, except the disputed one, therefore, he issued statutory notice to the defendants No.1 and 2 calling upon them to hand over the vacant possession of the disputed stall to him but defendant No.1 failed to do so. As such, the plaintiff has filed the present suit against the defendants. 4. The suit was only contested by defendants No.1 and 3. Defendant No.2 did not contest the suit as he was proceeded against ex-parte vide order dated 5.11.1996. 5. Defendant No.1, by filing written statement, took preliminary objections regarding cause of action, estoppel and jurisdiction of the Court. As such, the plaintiff has filed the present suit against the defendants. 4. The suit was only contested by defendants No.1 and 3. Defendant No.2 did not contest the suit as he was proceeded against ex-parte vide order dated 5.11.1996. 5. Defendant No.1, by filing written statement, took preliminary objections regarding cause of action, estoppel and jurisdiction of the Court. On merits, though he admitted the agreement dated 19.4.1991 but denied the ownership of the plaintiff upon the aforesaid disputed stall No.2. It is alleged by the defendant that the disputed stall was left vacant and closed and was in dilapidated condition, therefore, the plaintiff executed an agreement and compelled him to purchase the same for a sale consideration of Rs.60,000/-, for which he paid a sum of Rs.10,000/- at the time of execution of this agreement and the remaining amount of Rs.50,000/- was paid by him through cheque on 19.4.1991. As such, the defendant has purchased the aforesaid disputed stall from the plaintiff and has become owner of the same. The defendant No.1 denied the claim of the plaintiff and prayed for dismissal of the suit. 6. Defendant No.3, while filing written statement, alleged that the disputed stall was let out to him by defendant No.1 with the consent of the plaintiff and he is tenant over the disputed stall. It is alleged that in January, 1996, defendant No.1 forcibly entered into the disputed stall and had thrown and broken the material kept by him in it, therefore, he was constrained to file the suit for permanent prohibitory injunction against the said defendant, which is still pending in the Court. It is further alleged that the plaintiff is not entitled to recover the possession of the disputed stall from him. 7. The learned trial Court, on the basis of pleadings, settled inasmuch as 8 issues and decided all the issues against the plaintiff and accordingly dismissed the suit filed by the plaintiff. The appeal, preferred before the learned Appellate Court, was also dismissed. 8. This second appeal was admitted on the following substantial questions of law:- “(1) Whether both the courts below erred in framing the issue qua ownership of the suit property, without considering the admissions made by all the respondents/defendants in this regard? The appeal, preferred before the learned Appellate Court, was also dismissed. 8. This second appeal was admitted on the following substantial questions of law:- “(1) Whether both the courts below erred in framing the issue qua ownership of the suit property, without considering the admissions made by all the respondents/defendants in this regard? (2) Whether the courts below failed to take notice of mortgage deed Ex.P-3, for collateral purposes and thus made wrong finding with regard to the transaction between the parties qua the suit property? (3) Whether the courts below erred in concluding that a person who is not the owner of the land but owns the superstructure over it cannot legally mortgage the superstructure only?” 9. I have heard learned counsel appearing for the parties and have gone through the record of the case. 10. In the present case, plaintiff has claimed himself to be the owner of the disputed stall, which admittedly falls within the limits of MC, Chamba. Plaintiff further mortgaged the aforesaid disputed stall to defendant No.1 vide agreement dated 19.4.1991 for a period of five years i.e. till 18.4.1995 and, as such, claimed possession of the disputed stall after completion of five years of mortgage deed. 11. On the other hand, defendant claimed that the disputed stall has already been sold by the plaintiff to him for a consideration of Rs.60,000/-, as such, plaintiff has no right to recover the possession of the disputed stall from him. Accordingly, this Court, while admitting the present appeal, formulated the substantial questions, as mentioned above, which admittedly relate to the issue qua ownership of the suit property and thereafter right of plaintiff to mortgage the suit property. Court has also formulated the question, “whether a person who is not owner of the land but owns the superstructure over it cannot legally mortgage the superstructure only?” 12. Now, with a view to decide/answer the aforesaid question, it is necessary for this Court to look into the evidence available on record, be it ocular or documentary. PW-2 Yashpal, plaintiff, himself stated in examination-in-chief that disputed stall is owned by him as he has taken it from the MC, Chamba and subsequently mortgaged the same with the defendant No.1 for a consideration of Rs.10,000/- vide a written agreement copy of which is Ex.P-3. However, defendant No.1 further sublet the same to defendant No.2 and 3 without his consent and permission. However, defendant No.1 further sublet the same to defendant No.2 and 3 without his consent and permission. He also stated that he never sold the disputed stall to defendant No.1 and even the electric meter was got installed over the disputed stall by him by depositing security in this behalf but in his cross-examination he admitted that disputed stall exists on the land of MC, Chamba. Careful reading of the statement given by PW-2 nowhere suggests that actually he is the owner of the disputed stall and it was constructed by him because admittedly there is no documentary evidence on record from where it can be inferred that the plaintiff had actually purchased this land on which he constructed the disputed stall from MC, Chamba. 13. Moreover, PW-4 Shri William, an official of the MC, Chamba, another witness examined by the plaintiff, stated in his chief and cross-examination that the disputed stall is an unauthorized structure, situated at Chowgan No.3, within the limits of MC, Chamba. Rather, he admitted that defendant Ashok has moved an application to MC, Chamba for transferring the disputed stall in his name, which proceedings are pending with the MC, Chamba. It clearly emerges from the statement of PW-4 that the disputed stall qua which plaintiff has claimed that he is the owner of the same is actually an unauthorized structure existing on the land of the MC, Chamba. As has been observed above, there is no documentary evidence made available on record by the plaintiff suggestive of the fact that disputed stall was purchased by him from MC, Chamba, as such, it can be concluded that the plaintiff is not the owner of the suit property, rather he is an encroacher on the same. 14. PW-4, Shri Liyakat Khan, who is an official of HPSEB, though stated that security for installing electricity meter in the disputed stall was paid by the plaintiff vide receipt Ex.P-1 and thereafter certificate Ex.P-2 was issued by the Assistant Engineer, HPSEB, Chamba, for installation of the electric meter in the name of the plaintiff, but in cross-examination he admitted that electricity bills of the disputed stall are being paid by the defendant Ashok. At this stage, it is pertinent to mention here that even if it is presumed that electric meter was installed in the disputed stall on the request of plaintiff, it will not make the plaintiff to be the owner of the disputed stall because as has been observed above that the plaintiff has not led any evidence on record to prove that he is owner of the disputed stall. If the statements of PW-1 to PW-3 are read in conjunction, it clearly emerges that the plaintiff is not the actual owner of the disputed stall and at best he can be termed as encroacher over the property of MC, Chamba. It has specifically come in the statement of PW-4 that the disputed stall is situated at Chowgan No.3, within the limits of MC, Chamba and in this regard, proceedings for transferring the same in the name of defendant Ashok, at his request, are already pending with the MC, Chamba. Hence, this Court sees no illegality and infirmity in the findings returned by both the Courts below, where they have held the plaintiff not to be the owner of the disputed stall. 15. Now, another question i.e. with regard to the averments made by the plaintiff that he had actually mortgaged the disputed stall with defendant No.1 for a consideration of Rs.10,000/- is concerned, the same is taken up for consideration. This Court has already come to the conclusion that the plaintiff cannot be termed as an owner of the disputed stall, rather he is an encroacher, meaning thereby any mortgage deed, as has been allegedly mortgaged by the plaintiff in favour of defendant No.1, cannot be termed to be valid one solely for the reason that the plaintiff had no authority or right to execute any mortgage deed in favour of defendant No.1. Since, plaintiff has failed to prove on record that he is the owner of the disputed stall, there is no question of any mortgage deed executed by him mortgaging the disputed stall in favour of defendant No.1. Moreover, if the statement of PW-2 is seen in this regard, he stated in examination-in-chief that disputed stall is owned by him which he had taken from MC, Chamba and subsequently mortgaged the same with the defendant No.1 for a consideration of Rs.10,000/- vide a written agreement Ex.P-3. Moreover, if the statement of PW-2 is seen in this regard, he stated in examination-in-chief that disputed stall is owned by him which he had taken from MC, Chamba and subsequently mortgaged the same with the defendant No.1 for a consideration of Rs.10,000/- vide a written agreement Ex.P-3. But, as has been observed above, the plaintiff has not made available on record any document from where it can be inferred that actually he had taken that disputed stall from MC, Chamba. Moreover, the mortgage deed being relied upon by the plaintiff was not got registered at the time of alleged mortgaging of the stall with defendant No.1. Hence, in the absence of any valid proof of plaintiff having acquired title of owner, his plea with regard to the mortgaging of the property in favour of the defendant No.1 cannot be accepted, especially in view of the fact that the property belongs to MC, Chamba. 16. Now question remains, “whether a person, who has not been held owner of land, could/can own superstructure over it? In the present case, admittedly, plaintiff is not the owner of the disputed stall and is not having title qua the disputed stall and as such, there is no question of his owning the superstructure over any land which originally belongs to the MC, Chamba. It has specifically come in the evidence of plaintiff itself that disputed stall is unauthorized structure situated on Chowgan No.3 and moreover, there is no document available on record which could be suggestive of the fact that the plaintiff is owner of that stall which was duly allotted in his favour by the MC, Chamba. Hence, in view of the aforesaid discussion, this Court has no hesitation to conclude that the plaintiff has miserably failed to prove that he is owner of the disputed stall and, as such, finding, where the plaintiff has been held to be a trespasser in the disputed stall, is based upon proper appreciation of evidence available on record. 17. Hence, in view of the aforesaid discussion, this Court has no hesitation to conclude that the plaintiff has miserably failed to prove that he is owner of the disputed stall and, as such, finding, where the plaintiff has been held to be a trespasser in the disputed stall, is based upon proper appreciation of evidence available on record. 17. In this case, defendant has alleged that the plaintiff agreed to sell the disputed stall for a consideration of Rs.60,000/-, which was duly received by him and by virtue of the aforesaid transaction, the defendant has become owner of the disputed stall, but perusal of the record suggest that even the defendant has not placed on record any documentary evidence to substantiate his claim with regard to the sale of the disputed stall, if any. Moreover, the plaintiff has no valid right, title or interest in the disputed stall, rather, he has no authority to effect the sale of the disputed stall to defendant No.1, any consideration paid by the defendant to the plaintiff for the purchase of disputed stall has no relevance and he also in no manner can be termed to be the owner of the disputed stall. 18. Moreover, the record in the present case shows that the plaintiff had not added the MC, Chamba, as party defendant, which was actually necessary party in the present case. Admittedly, as has emerged from the statement of the witnesses examined in the case that property i.e. disputed stall belongs to MC, Chamba, as such, it was only competent authority to inform the actual status of the plaintiff with regard to the disputed stall. Record further reveals that though on 29.4.2001 the plaintiff sought permission to withdraw the suit with liberty to file afresh on the same cause of action. In the aforesaid application filed, it is averred that State of Himachal Pradesh as well as MC, Chamba, could not be pleaded as party respondents during the pendency of the appeal, as such, plaintiff may be allowed to withdraw the suit with permission to file afresh. In the aforesaid application filed, it is averred that State of Himachal Pradesh as well as MC, Chamba, could not be pleaded as party respondents during the pendency of the appeal, as such, plaintiff may be allowed to withdraw the suit with permission to file afresh. The aforesaid application was resisted by contesting defendants on the ground of aforesaid technical and formal defect, which can’t be cured at this stage, rather party was fully aware at the time of filing of the suit that without impleading the aforesaid department as party, the present suit may lead to dismissal on account of non-joinder of necessary parties and, as such, this mistake cannot be held to be inadvertent. However, the Court below dismissed the aforesaid application filed by the plaintiff by holding that non-joinder of necessary parties is not a formal defect and, as such, at this stage, no permission can be granted to the plaintiff to withdraw the present suit on the same cause of action. 19. In view of the detailed discussion made hereinabove, this Court do not see any reason to interfere with the judgments and decrees passed by both the Courts below and, as such, are upheld and the present appeal is dismissed being devoid of any merit. 20. However, at this stage, this Court intend to take judicial note of the glaring irregularities committed by MC, Chamba, which have emerged from the record of this case. Admittedly, as stands proved in the present case that plaintiff had no valid title qua the disputed stall which could authorize him to mortgage the same to defendant No.1 without the consent of its true owner i.e. MC, Chamba but in the present case, while examining the statements of the witnesses, it emerged that defendant No.1, who had allegedly purchased the disputed stall from plaintiff for a consideration of Rs.60,000/-, had further sublet the same to defendants No.2 and 3, namely, Dr. B.S. Vakil and Dr. Madan Mohan Marol, detail with regard to their addresses are available in the memo of parties. Record further suggests that even these defendants No.2 and 3 are in litigation with the defendant No.1, who further sublet the disputed stall in their favour by taking some consideration. 21. B.S. Vakil and Dr. Madan Mohan Marol, detail with regard to their addresses are available in the memo of parties. Record further suggests that even these defendants No.2 and 3 are in litigation with the defendant No.1, who further sublet the disputed stall in their favour by taking some consideration. 21. After noticing such irregularities, this Court, vide order dated 23rd April, 2016, directed the Executive Officer, MC, Chamba to file an affidavit specifically detailing therein the action taken, if any, after passing of the judgment and decree, passed by Courts below, which has been subject matter of the present appeal. He was further directed to clarify that on what basis/capacity proceedings have been/were initiated in Municipal Council to allot disputed kiosk/Dhara in question to respondent Ashok Kumar. 22. Pursuant to the aforesaid directions issued by this Court, Mr. Aman Rana, Tehsildar, Chamba, District Chamba, holding additional charge of Executive Officer, MC, Chamba, filed an affidavit indicating therein that MC, Chamba, vide its Resolution No.31, dated 7th June, 1996, decided to regularize unauthorized Koisks, situated at Chowgan No.3 Chamba town, including the disputed Koisks, (subject matter of present RSA). Affidavit further reveals that MC, Chamba, resolved to regularize the said Koisks to the occupants on payment of Rs.10,000/-, as compounding fee, and to recover the previous rent of Rs.5000/-, which ever is higher from the occupants. But glaring fact which came to the notice of this Court is that the present defendant No.1, namely, Ashok Kumar Dhall has executed another affidavit swearing therein that he has transferred the said Koisk in favour of Sh.Shahbir Ali Shah and has no objection in case the disputed Kiosk situated between the shops of Ganni Tailor and Y.B. Sales is transferred in favour of Sh.Shahbir Ali Shah. It is not understood, at this stage, that under what authority Shri Ashok Kumar Dhall, defendant No.1 in the present case, can transfer the disputed Koisk in favour of Shri Shahbir Ali Shah, when admittedly he is neither the owner of the disputed stall nor there is any document which suggests that this Ashok Kumar Dhall has acquired the status of owner of the disputed stall after purchasing it from the appellant Shri Yash Pal Puri, as has been observed above, while dismissing the appeal filed by Mr.Yash Pal Puri. Firstly, Shri Yash Pal Puri had no title, which could entitle him to further sold the property to Ashok Kumar Dhall, which was admittedly belong to the MC, Chamba. But, in the present case, what to talk about Yash Pal Puri, the defendant, namely, Ashok Kumar Dhall, who was admittedly in the unauthorized occupation of disputed stall after Yashpal Puri, has sublet/sold this disputed stall to three persons, namely, S/Shri B.R. Vakil, Dr.Madan Mohan Marol and now to one Shri Shahbir Ali Shah. 23. This affidavit filed by the Acting Executive Officer, MC, Chamba also suggests that, apart from the disputed stall, other nine shops have been regularized on receiving compounding fees from the occupants and now they are paying the rent to MC, Chamba. 24. In view of the aforesaid glaring irregularities noticed by this Court, while examining the present appeal, it would be appropriate to issue necessary directions to Deputy Commissioner, Chamba, to look into the aforesaid matter at the earliest so that the properties of Government, owned by Government as well as Municipal Council, are not encroached upon by the unlawful persons. This Court is constrained to observe that such kind of Resolution, as has been passed in the present case by the MC, Chamba, whereby the decision has been taken to regularize unauthorized Koisks situated at Chowgan will definitely encourage unlawful people, like in the present case, to indulge in encroachment over the Government land because they know that at later stage encroachment would be regularized by the Government or Municipal Council. Though it is a policy decision, which is to be taken by the authorities of Municipal Council of a particular area with regard to allotment of the stalls/land, if any, but certainly no land/Koisks can be allotted to any person dehors the rules. 25. In view of the aforesaid observations, Deputy Commissioner, Chamba, is directed to probe into the whole issue, as has been discussed above, and take appropriate action against encroachers in accordance with law and file its report within a period of one month. Copy of this judgment may be sent directly to the Deputy Commissioner, Chamba for necessary compliance. 26. All the interim orders are vacated. All the miscellaneous applications are disposed of.