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2017 DIGILAW 671 (HP)

Gian Chand v. Ram Parshad

2017-06-14

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, the appellant has assailed the judgment and decree passed by the Court of learned District Judge, Bilaspur in Civil Appeal No. 29 of 2007, dated 26.03.2008, vide which, learned appellate Court while dismissing the appeal of the present appellant, upheld the judgment and decree so passed by the learned trial Court in Civil Suit No. 48/1 of 2004, dated 23.04.2007, vide which learned trial Court dismissed the suit for declaration so filed by the present appellant against the respondents. 2. Brief facts necessary for the adjudication of this appeal are that the appellant/plaintiff (hereinafter referred to as ‘the plaintiff’) filed a suit against the defendants for declaration and permanent injunction to the effect that the suit land comprised in Khevat No. 8 min, Khatauni No. 20 min, Khata No. 118, measuring 0-45-85, situated in Mauja Modar, Pargna Kot-Kehloor, Up-Tehsil Shri Naina Devi Ji, District Bilaspur, as per Jamabandi for the year 1998-99 though was owned by the defendants, had been leased out by them in favour of the plaintiff in June 2001 for monthly rent of Rs.300/- as ground rent and same was given to plaintiff to construct a shop, who thereafter constructed a shop over the same in July, 2001 by incurring expenses to the tune of Rs.1,00,000/-. He was running a Tea shop over the same by further incurring expenses to the tune of Rs.50,000/-. According to the plaintiff, despite the fact that he was regularly paying rent to the defendants, they were bent upon to get vacated the shop from the plaintiff and on these basis, the plaintiff filed the suit praying for declaration that the suit land had been permanently leased in his favour by the defendants and further for decree of permanent prohibitory injunction restraining the defendants from causing any interference over the possession of the plaintiff over the suit land. In the alternative, a decree for possession of the suit land was prayed for in case the defendants were successful in displacing the plaintiff during the pendency of the suit. 3. In the alternative, a decree for possession of the suit land was prayed for in case the defendants were successful in displacing the plaintiff during the pendency of the suit. 3. The claim of the plaintiff was contested by the defendants, who in the written statement took the stand that land comprised in Khasra No. 118 was never leased out in favour of the plaintiff, but a wooden structure/Khokha was taken on lease by plaintiff from defendant No. 4 from 25.07.2003 to 31.03.2004 for a consideration of Rs.8000/- with the undertaking that the plaintiff would hand over the vacant possession of the same immediately after the expiry of said period and the said undertaking was given on a stamp paper. It was also the case of the defendants that the Khokha in issue was not constructed by the plaintiff, but was constructed by defendants. On these bases, the case of the plaintiff was refuted by the defendants. 4. On the basis of pleadings of the parties, learned trial Court framed the following issues: “1. Whether the plaintiff is a permanent lessee on the doctrine of estoppels of the shop in question, as alleged? OPP. 2. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD. 5. Relief. 5. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed: “Issue No. 1: No. Issue No. 2: No. Issue No. 3: Yes. Issue No. 4: Yes. Relief: The suit of the plaintiff is dismissed as per operative part of the judgment. 6. Learned trial Court vide judgment and decree dated 23.04.2007, dismissed the suit so filed by the plaintiff by holding that the plaintiff had failed to prove that any permanent lease was executed in his favour by the defendants. Learned trial Court further held that agreement Ex. PW2/B, which as per the admission of the plaintiff in his cross-examination, was prepared on stamp papers, as were purchased by him, demonstrated that the said lease was up to 31.03.2004, after which the plaintiff had undertaken to vacate the Khokha without any objection. Learned trial Court further held that agreement Ex. PW2/B, which as per the admission of the plaintiff in his cross-examination, was prepared on stamp papers, as were purchased by him, demonstrated that the said lease was up to 31.03.2004, after which the plaintiff had undertaken to vacate the Khokha without any objection. Learned trial Court further held that the factum of defendants being owners of the suit land was not disputed by the plaintiffs. It further held that there was no entry in any revenue record to the effect that any lease stood executed by the defendants in favour of the plaintiff qua Khasra No. 118. Learned trial Court also took note of the fact that defendants in their pleadings as well as while deposing as witness had denied creation of any lease of vacant land in favour of plaintiff and had rather stated that a Khokha was leased out to the plaintiff from 25.07.2003 to 31.03.2004 as per agreement Ex. PW2/B and the plaintiff had not handed over possession of Khokha to the defendants after expiry of the agreement period. Learned trial Court also held that plaintiff had failed to prove that there was any registered instrument regarding creation of any permanent lease. It further held that after the expiry of the period as was contemplated in agreement Ex. PW2/B, the possession over the suit land of the plaintiff was that of a trespasser and injunction could not be granted in favour of a trespasser, as the same would perpetuate the unlawful possession of the plaintiff over the same. On these bases, learned trial Court dismissed the suit of the plaintiff. 7. In appeal, learned appellate Court though reversed the findings returned by the learned trial Court on Issues No. 3 and 4, yet went on to dismiss the appeal so filed by the present appellant. Learned appellate Court after referring to the pleadings as well as evidence on record, held that relief of injunction could not be granted to the plaintiff, as he had failed to prove the existence of Khokha in question with the help of site plan and further there were other Khokhas also situated over the suit land and effective and executable decree for permanent prohibitory injunction could be passed in favour of the plaintiff only in case he had proved the exact location of Khokha on Khasra No. 118, measuring 0-45-85. Learned appellate Court also held that learned trial Court had rightly denied the relief of injunction to the plaintiff by holding that there was no permanent lease in favour of the plaintiff qua the shop in question. Learned appellate Court thus held that relief of permanent prohibitory injunction could not be granted in his favour as he had failed to prove the identity and description of the land as well as Khokha with the help of site plan. 8. Feeling aggrieved by the judgment and decree so passed by the learned appellate Court, the appellant has filed the present appeal. 9. This appeal was admitted on 18.03.2009 on the following substantial questions of law: “A. Whether the learned Courts below have failed to apply law on doctrine of estoppel wherein the appellant/plaintiff deserves to be permanent lessee of the land in dispute? B. Whether the findings recorded by the learned Courts below are sustainable in the eyes of law in view of the fact that Mark-X has been relied upon by the learned Courts below, whereas the documents Ext. PW1/A has not been relied upon? 10. I have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgments and decrees passed by both the learned Courts below. 11. Both the substantial questions of law are being taken up together for the purpose of adjudication of the matter. 12. In the present case, both the learned Courts below have returned concurrent findings against the plaintiff to the effect that the plaintiff had failed to prove on record that there was a permanent lease executed or entered upon between the plaintiff and the defendants qua the suit land and Khokha in issue. Though this Court is not oblivious of the fact that both the learned Courts below have given different reasonings for dismissing the suit and the appeal so filed by the plaintiff respectively, but yet none of the Courts have held that there was a permanent lease executed in favour of the plaintiff by the defendants as was the case put forth by the plaintiff. Now, before the doctrine of estoppel could have been pleaded by the plaintiff, it was incumbent upon him to have had pleaded and proved execution of a permanent lease, which the plaintiff has failed to prove. Now, before the doctrine of estoppel could have been pleaded by the plaintiff, it was incumbent upon him to have had pleaded and proved execution of a permanent lease, which the plaintiff has failed to prove. There is nothing on record, as has also been held by the learned Courts below, from which it can be inferred that any permanent lease was entered into between the plaintiff and the defendants, vide which any vacant land was handed over by the defendants to the plaintiff on the terms, as have been mentioned by the plaintiff in the plaint to set up a Khokha/Tea Stall. 13. A perusal of the documents proved on record by the plaintiff demonstrate that Ex. PW1/A is a certificate issued in favour of the plaintiff by the Licensing Authority to the effect that he was running a Tea Stall and Ex. PW2/B is an agreement to the effect that the plaintiff had taken on rent part of the property of Rama Devi, D/o Sh. Charenji Lal, R/o Shri Naina Devi from 25.07.2003 to 31.03.2004 for Rs.8000/- as rent with an undertaking that plaintiff would thereafter vacate the same. Now, in the present case, it cannot be said that the learned Courts below have failed to rely upon Ex. PW-1/A, because Ex. PW1/A nowhere proves that the suit land was permanently leased in favour of the plaintiff by the defendants. Ex. PW1/A only demonstrates that plaintiff was permitted by Licensing Authority to run a Tea Stall at Sndri, but nothing more can be inferred from the said certificate. In fact, renting out a Khokha to plaintiff has not been denied by the defendants also, but their contention is that the same was done on the basis of agreement Ex. PW2/B (which has been conveniently shown in the substantial questions of law as Mark-X, so as to give an impression that the learned Courts below have not relied upon an exhibited document but have relied upon a document which was not exhibited) and the said agreement was only from 25.07.2003 to 31.03.2004, but the plaintiff has failed to vacate the Khokha after the expiry of the said period. The substantial questions of law are answered accordingly. 14. In view of the above discussion, as this Court does not finds any merit in the present appeal, the same is accordingly dismissed. Miscellaneous applications, if any, also stand disposed of. The substantial questions of law are answered accordingly. 14. In view of the above discussion, as this Court does not finds any merit in the present appeal, the same is accordingly dismissed. Miscellaneous applications, if any, also stand disposed of. No order as to costs.