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Madhya Pradesh High Court · body

2017 DIGILAW 1243 (MP)

Arjun Das v. Kapil Udyog

2017-12-08

RAJENDRA MAHAJAN

body2017
JUDGMENT 1. 1. The plaintiff No.1-appellant has filed this first appeal under section 96 r/w Order 41 rule 1 of the Code of Civil Procedure against the judgment and decree dated 20.3.2003 passed y the Third Additional District Judge Gwalior in Civil Suit No. 137-A of 1994, whereby, the civil suit for recovery of possession and arrears of license fee has been dismissed with costs. 2. The case of the plaintiff's before the trial Court, in short, is that they are owner of a parcel of land measuring 30 ft.x166.5 ft. total area 4995 sq.ft. (for short `the suit land') located in Kishan Bagh Bahodapur Gwalior. The suit land adjoins with other agricultural lands of their ownership, the details of which are given in para 1 of the plaint. The map of suit land with the directions is also attached with the plaint. On 6.7.1988, they had given the suit land to defendant Satya Prakash on license on the license fee of Rs.1500/- (Fifteen hundreds) per month for the use of his industry known as Kapil Udyog for a period of 11 months with other terms and conditions. On that day, he had given them Rs.5000/- (five thousand) in advance towards license fee. In this respect, an agreement is executed between plaintiff Arjun Das and defendant Satya Prakash. The agreement has been duly notarized. In the agreement, all the terms and conditions are mentioned in details. Defendant Satya Prakash had not paid them the license fee as per the agreement. Thereupon, they gave him a legal notice on 20.4.1989 by the registered post directing him to hand over them the vacant possession of the suit land and to pay the outstanding license fee. In reply to the notice he gave false reasons. Hence, they have filed this suit seeking recovery of possession of the suit land, license fee from 1.9.1988 till the institution of the suit amounting to Rs.20,000/- (twenty thousand) and other consequential reliefs mentioned in para 11 of the plaint. 3. Defendant-respondent Satya Prakash submitted the written statement in his life time denying the plaint averments. He has averred therein that the owner of the suit land is the Government of Madhya Pradesh. The plaintiffs got the sale deed of the suit land along with other agricultural land executed by one Laxman s/o Mula. 3. Defendant-respondent Satya Prakash submitted the written statement in his life time denying the plaint averments. He has averred therein that the owner of the suit land is the Government of Madhya Pradesh. The plaintiffs got the sale deed of the suit land along with other agricultural land executed by one Laxman s/o Mula. He had no right to sell the suit land to the plaintiff as it is Government land. He had never taken the suit land on license from the plaintiffs. On the other hand, he had occupied on his own the suit land long back and made it usable for setting up his industry. He has submitted an application to the state Government for grant of lease of the suit land. His application is pending. He has also taken legal objections that the plaintiffs have to make valuation of the suit land on its market value upon which they have to pay the Court-fee. But, they have valued the suit on the basis of its land revenue and upon which they had paid the Court fee and the suit is barred by law of limitation. 4. On the basis of the contesting averments of the parties, the learned trial Judge framed the issues. Before the trial Court, the plaintiffs examined plaintiff Arjun Das (PW2) and notary Harnarayan Sharma (PW1) and exhibited the documents Exs.P-1 to P-6. Defendant Satya Prakash examined himself and exhibited the documents Exs.D-1 and D-2. The learned trial Judge, having analyzed and appreciated the oral and documentary evidence of the parties on record, has passed the impugned judgment and decree dismissing the suit mainly on the ground that the suit land is Government land, therefore, the plaintiffs have no right to give the suit land to the defendant on license. The learned trial Judge has also held in para 25 of the impugned judgment that the plaintiffs ought to have valued the suit upon Rs.50,000/- (fifty thousand) over which they ought to have paid the Court-fee. It is apposite to mention that the learned trial Judge has directed the plaintiffs to pay the deficit Court-fee within 15 days from the date of judgment, thereafter, the decree will be effective. The learned trial Judge has decided the remaining issues in favour of the plaintiffs. 5. Feeling aggrieved by the dismissal of the suit, the plaintiffs have filed this first appeal. 6. The learned trial Judge has decided the remaining issues in favour of the plaintiffs. 5. Feeling aggrieved by the dismissal of the suit, the plaintiffs have filed this first appeal. 6. Shri V.K.Bhardwaj, learned senior counsel, submitted that the plaintiffs have proved that they had purchased the suit land with other adjoining lands from Laxman Das vide registered sale deed dated 15.4.1965 being Ex.P-2. They have also proved that defendant Satya Prakash executed the agreement dated 6.7.1988 Ex.P-1 with the evidence of notary Harnarayan Sharma (PW1). He further submitted that defendant Satya Prakash in para 16 of his cross-examination has admitted that he had given the plaintiffs Rs.5,000/- in advance. But, he has knowingly not explained for which purpose he had given the said amount to the plaintiffs. Therefore, it is proved that he had given the said amount to the plaintiffs towards the license fee in advance. He further submitted that defendant Satya Prakash has admitted in his cross-examination that he had filed Civil Suit Old No. 20-A of 1990 (New No. 274-A of 1994) before the Court of First Civil Judge Class II, Gwalior against the plaintiffs and two others for declaration and injunction in respect of the suit land. In para 2 of the plaint of that suit, being Ex.P-4C, he has averred that he has taken the suit land upon the monthly rent of Rs.1500/- from the plaintiffs upon the execution of a deed dated 6.7.1988. The aforesaid admissions made by defendant Satya Prakash prove that he had taken the suit land from the plaintiffs on license upon the monthly license fee of Rs.1500/-. He further submitted that even if it is admitted for the sake of arguments that the suit land being Government land, despite that the learned trial Judge has erred in dismissing the suit on the said premise, because it is a matter between the plaintiffs and the Government of M.P. He submitted that the suit land is undiverted one and it is revenue payable land, therefore, the plaintiffs had rightly valued the suit land on the basis of land revenue in accordance with the Suits Valuation Act and paid the proper Court-fee as per the a Court-fee Act. Thus, the learned trial Judge has wrongly decided that the plaintiffs have not properly valued the suit and not paid the proper Court fee thereon. Thus, the learned trial Judge has wrongly decided that the plaintiffs have not properly valued the suit and not paid the proper Court fee thereon. Upon these submissions, he contended that the learned trial Judge has erred in dismissing the suit, and he prayed to allow this appeal setting aside the impugned judgment and decree. 7 . Shri Anmol Khedkar, the learned counsel for the LRs of defendant Satya Prakash, defended the impugned judgment and decree. 8. At this stage, it is pertinent to mention that at time of hearing of final arguments, Shri Anmol Khedkar, learned counsel informed this Court that the officers of the State of M.P had taken the possession of the suit land some time in February, 2011. This fact was conceded by learned senior counsel Shri V.K. Bhardwaj, and he made a open Court statement that the plaintiffs have filed a suit against the Government of M.P. in this respect, which is pending. 9. I have earnestly considered the rival submissions made at the Bar and perused the impugned judgment and material on record. The following points have arisen for determination before me : (i). Whether the plaintiffs have given the suit land to defendant Satya Prakash on license upon monthly license fee of Rs.1,500/- after his execution of license agreement dated 6.7.1988? (ii). Whether defendant Satya Prakash has paid the plaintiffs the license fee from 1.9.1988 till the date of institution of civil suit being 11.10.1989 at the rate of Rs.1500/- per month amounting to Rs.20,000/- (twenty thousand)? (iii). Whether the plaintiffs are entitled to get the license fee from the date of institution of the civil suit till February 2011? (iv). Whether the plaintiffs have rightly valued the suit, and, therefore, paid the proper Court-fee? (v). Reliefs. 10. Plaintiff Arjun Das has deposed that he purchased the suit land along with other lands vide registered sale deed Ex.P/2 from its owner Laxman Das on 15.4.1965. The suit land is a part of the lands mentioned in the sale deed. On 6.7.1988, he gave away the suit land on license upon the license fee of Rs.1,500/- per month for a period of 11 months to defendant Satya Prakash for the use of his industry Kapil Udyog. The period of license is extendable. On that day, he had given him Rs.5,000/- in cash by way of security. On 6.7.1988, he gave away the suit land on license upon the license fee of Rs.1,500/- per month for a period of 11 months to defendant Satya Prakash for the use of his industry Kapil Udyog. The period of license is extendable. On that day, he had given him Rs.5,000/- in cash by way of security. On 6.7.1988 itself, he executed the license agreement Ex.P-1 in their favour in which all the terms and conditions are set out. The license agreement had been duly notarized by notary Harnarayan Sharma (PW1). He has corroborated his evidence, saying that he notarized the license agreement Ex.P/1 in the presence of plaintiff Arjun Das and defendant Satya Prakash. Nothing has come out in their cross-examinations to disbelieve their evidence. 11. Defendant Satya Prakash has testified that the plaintiffs got the license agreement Ex.P-1 executed by him playing fraud upon him. However, he has failed to explain why he has not averred this fact in his written statement filed in the suit. He has admitted in para 16 of his cross-examination that he gave Rs.5,000/- to the plaintiffs in advance. But, he has not given the explanation in his evidence as to why he had given the said amount to the plaintiffs. In para 22 of his cross-examination, he has admitted that he had filed a Civil Suit old No. 20-A/1990 (new No. 274-A/1994) against the plaintiffs and others for the declaration and injunction before the Court of First Civil Judge Class 2 Gwalior and Ex.P-4 is a certified copy of the plaint of that suit. In para 26 of his cross-examination, he has admitted that he has made averments in para 3 of the plaint of that suit to the effect that he had taken the suit land from the plaintiffs for the use of his industry on the monthly rent of Rs.1,500/- by executing a deed dated 6.7.1988, which is deed Ex.P-1. The aforesaid admissions made by defendant Satya Prakash in his evidence prove the veracity of the evidence given by plaintiff Arjun Das and notary Harnarayan Sharma. 12. From the perusal of Ex.P-1, I find that it is clearly mentioned therein that the plaintiffs had given him the suit land on the license upon the monthly license fee of Rs.1500/-. 13. The aforesaid admissions made by defendant Satya Prakash in his evidence prove the veracity of the evidence given by plaintiff Arjun Das and notary Harnarayan Sharma. 12. From the perusal of Ex.P-1, I find that it is clearly mentioned therein that the plaintiffs had given him the suit land on the license upon the monthly license fee of Rs.1500/-. 13. From the aforesaid evidence, I hold that it is proved that the plaintiffs had given the suit land to defendant Satya Prakash on license upon the monthly license fee of Rs.1,500/-. It is pertinent to mention herein that the learned trial Judge has also given a finding that defendant Satya Prakash has taken the suit land from the plaintiffs on license for the use of his industry. However, the learned trial Judge has held that the suit land is of the ownership of the Government, therefore, the plaintiffs have no right to give the suit land to defendant Satya Prakash on license. But, the learned trial Judge has not discussed the evidence upon which he has held that the suit land is of the ownership of the Government. Even if it is accepted for the sake of arguments that the suit land is Government land, despite that defendant Satya Prakash had taken the suit land from the plaintiffs on license, therefore, he has no right to deny the payment of license fee on that ground until the State Government takes possession of the suit land from the plaintiffs adopting the due process of law. Therefore, the learned trial Judge has given the wrong finding on that point. 14. Plaintiff Arjun Das has testified in para 5 of his evidence that defendant Satya Prakash had not paid the license fee of the suit land from 1.9.1988 till the date of institution of suit, which is amounting to a total of Rs.20,000/-. In his cross-examination, his testimony on the said evidence has not been challenged on behalf of defendant Satya Prakash. Moreover, he (Defendant Satya Prakash) has not given the evidence on the point whether he had paid the aforesaid outstanding license fee to the plaintiffs. On the other hand, he has stated in his evidence that he took possession of the suit land on his own as the suit land is government land. Moreover, he (Defendant Satya Prakash) has not given the evidence on the point whether he had paid the aforesaid outstanding license fee to the plaintiffs. On the other hand, he has stated in his evidence that he took possession of the suit land on his own as the suit land is government land. As has already been held that defendant Satya Prakash had taken the suit land from the plaintiffs on license, therefore, his above statement is totally false. From the aforesaid evidence, it is proved that defendant Satya Prakash had not paid plaintiffs the license fee of the suit land from 1.9.1988 at the rate of Rs.1500/- per month. It is stated in para 8 (eighth) of this judgment that the Government took over the possession of the suit land sometime in February, 2011, therefore, the plaintiffs are entitled to get the license fee from 1.9.1988 till 31 January 2011 at the rate of 1500/- per month from defendant Satya Prakash and following his death during the pendency of this appeal from his Legal representatives which are on record. 15. Insofar as valuation of the suit and payment of proper Court-fee are concerned, the learned trial Judge has held in para 25 of the impugned judgment that the plaintiffs ought to have valued the suit upon the 12 times of license fee of Rs.1,500/- (1500x12) that is Rs.30,000/- (thirty thousand) and arrears of license fee of Rs.20,000/-. Thus, on the total amount of Rs.50,000/- (fifty thousand), the plaintiff ought to have valued the suit and paid the Court-fee thereon. 16. This Court has held in the case of Smt. Saraswati alias Jaya Bichpuria v. Smt. Archana Bichpuria [ 2007(4) MPHT 131 ], and Abdul Hussain and others v. Mansoor Ali and others [ 2010(3) MPHT 83 (DB)], that if a suit is filed seeking vacant possession of the suit premises from the licensee after revocation of the license, then the suit will be governed by the provisions of section 7(iv) of the Court-fee Act. In such situation, it is not necessary for the plaintiffs to pay the Court-fee on the market value of the suit premises. In view of the ratio of the said case law, the learned trial Judge has wrongly held that the plaintiffs have to pay the Court fee on the market value of the suit land. In such situation, it is not necessary for the plaintiffs to pay the Court-fee on the market value of the suit premises. In view of the ratio of the said case law, the learned trial Judge has wrongly held that the plaintiffs have to pay the Court fee on the market value of the suit land. Thus, the finding given by the learned trial Judge is liable to be dismissed and is dismissed. 17. For the foregoing reasons and discussion, this first appeal succeeds in part and it is hereby partly allowed. It is held that plaintiffs/appellants are entitled to get arrears of license fee of Rs.20,000/- from the period 1.9.1988 to the date of institution of the suit and they are also entitled to get the license fee at the rate of Rs.1,500/- (fifteen hundred) per month from the date of institution till 31st January 2011. To that extent, the impugned judgment and decree are hereby set aside. In the circumstances of the case, the parties shall bear the litigation costs of the trial Court as well this appellate Court. The Advocate fee shall be as per the schedule. V.K. Bharadwaj, Senior Advocate with Rohit Batham for appellant; Anmol Khedkar for respondent No.1.