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Himachal Pradesh High Court · body

2018 DIGILAW 1658 (HP)

Anil Sood v. Pawan Sahani

2018-09-13

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiff's suit, cast under the provisions of Section 6, and, Section 38 of the Specific Relief Act, 1963, for possession of the suit premises, stood, dismissed by the learned trial Court, and, the plaintiff being aggrieved there from, has hence motioned this Court. 2. Briefly stated the facts of the case are that the plaintiff filed a suit for possession of portion of the suit premises described, as, AEGHJLMCA, in, the rough site plan, appended with the plaint, existing over land as detailed in the plaint, situated in mauza Dehun, Tehsil and District Solan, H.P. It is pleaded that the plaintiff is running a auto mobile parts shops, at Deonghat, since, the year 1970, in the suit premsies along with rented out premises described in the rough sketch plan attached with the plaint. In fact the predecessor of the plaintiff late Sh. Girdhari Lal was in possession of suit premises as he had taken the same on rent in the year 1970 from one late Sh. Lala Lekh Ram. The suit premises consisted of two shops, where he started the business of tyre retreading along with plaintiff and also installed a telephone number SOL 2537 and had also installed the electricity connected. IN this shop tyre retreading machine was installed and adjoining of the premises denoted by FBKDMLJF was used as a store for keeping raw material and finished product. In the year 1980, Sh. Girdhari Lal, with a view to accommodate his another son Sh. Rajinder Kumar Sood, carved out a small shop from the shop AEFJLMC denoted by EFJHG with the consent of the then landlords where the business of spare parts under the name and style of M/s R.K. Auto was commenced. The shop was connected to the parent shop through a passage denoted by JH in the rough plan. In the year 1989, Sh. Rajinder Kumar Sood died and then Sh. Girdhari Lal and plaintiff started looking after the business of M/s R.K. Auto. In the year 1993, the health of Girdhari Lal Started deteriorating and as a result of the same, he was not able to attend the business property. Thus, he distributed the entire assets amongst his sons and business of M/s Unique Tyre and M/s R.K. Auto were allotted to the plaintiff, and, as such since, 1993, the plaintiff is owner of the said two businesses. Thus, he distributed the entire assets amongst his sons and business of M/s Unique Tyre and M/s R.K. Auto were allotted to the plaintiff, and, as such since, 1993, the plaintiff is owner of the said two businesses. After the death of late Sh. Girdhari Lal, in the year 1996, the plaintiff found it difficult to handle both the businesses and thereafter the business of M/s Unique Tyres was closed. The business of M/s R.K. Auto was being conducted in the entire premises, which was originally taken on rent by Sh. Girdhari Lal. The premises, in which the machinery was installed was now used as workshop as store of M/s R.K. Auto and adjoining shop was converted into the shop. As such, the business of M/s R.K. Auto used to be done in the portion shown as EFBKDMLJHGE as shown in the rough sketch. It is averred that late Sh. Girdhari Lal had employed one Sh. Sobha Singh, i.e. defendant No.4 to work in the M/s Unique Tryes, since the incpetion of the business, i.e. from 1970. After closure of business of M/s Unique Tyres Sh. Sobha Singh was rendered jobless. However, for consideration of the fact that Sobha Singh was his employee and worked for him, then the plaintiff and Sobha Singh entered into an oral agreement to the effect that the plaintiff shall allow Sh. Sobha Singh, i.e. defendant NO.4 to work as Mistri in the workshop in M/s R.K. Auto. This understanding was made that in the vent of repair works of M/s R.K. Auto, Sh. Sobha Singh received the entire labour charges and the payment of spare parts used in the job were to be taken by the plaintiff. It is averred that Sh. Sobha Singh was neither employee of Sh. R.K. Auto nor the plaintiff had handed over any part of premises to him and this arrangement was made only to co-operate and help and old employee. The defendants in August, 2007, had purchased the suit premises along with other property. After this purchase, defendant No.1 came to the shop of plaintiff and asked him to vacate the premises. However, defendant No.1 was informed by the plaintiff that he has only this business and he cannot vacate the premises immediately. The defendants in August, 2007, had purchased the suit premises along with other property. After this purchase, defendant No.1 came to the shop of plaintiff and asked him to vacate the premises. However, defendant No.1 was informed by the plaintiff that he has only this business and he cannot vacate the premises immediately. The plaintiff has also offered that in case defendant No.1 was to increase the rent, then he has right for the same,but defendant No.1 became furious and threatened the plaintiff that he knows how to get the premises vacated. It is averred that defendant No.1 to 3 immediately contacted Sh. Sobha Ram, defendant NO.4 and hatched a conspiracy to illegally take possession of the suit premises. Pursuant to their illegal plan, on the intervening night of 16/17/10/2007, defendant No.1, Sobha Ram accompanied with few persons came to Deonghat, in the night and broke open the locks of the suit premises and removed the scrap and other material stored therein and put their locks and took illegal possession of the suit premises. The plaintiff came to know about this fact, when he came in the morning to his shop. Defendant No.1 then came around 11.30 a.m. and informed that the suit premises was handed over to me by defendant No.4, after receiving the premium (pagri). Thus, it is alleged that defendant No.1 illegally took possession of the suit premises, then the plaintiff reported the matter to the police of P.S. Solan, in this regard rapat No.10 of 17.10.2017 was entered. The police also visited the spot in the evening alongwith defendant No.1, but they failed to take any action. It is averred that prior to the dispossession of the plaintiff, it was possessed by him in the capacity of tenant. It is alleged that the defendants have illegally dispossessed the plaintiff from his lawful possession of the suit premises. It is averred that the plaintiff legally entitled to recover possession of the suit premises. Hence the suit. 3. The defendants contested the suit and filed written statement, wherein, they have taken the preliminary objections, qua, non joinder of necessary parties. It is averred that the alleged sketch plan is not as per position of the spot. It is denied that the shop was in possession of Sh. Sobha Singh and Sh. Sobha Singh had no connection with the plaintiff or his predecessor Sh. Girdhari Lal or with Sh. It is averred that the alleged sketch plan is not as per position of the spot. It is denied that the shop was in possession of Sh. Sobha Singh and Sh. Sobha Singh had no connection with the plaintiff or his predecessor Sh. Girdhari Lal or with Sh. R.K. Sood, in any manner. It is categorically stated that the shop which was under the possession of Sh. Sobha Ram is separate and distinct identity having no relation with the plaintiff or his predecessor or with Sh. R.K. Sood. Sh. Sobha Singh was separate tenant and had been independently occupying the shop as tenant under the original landlord from whom, the defendant have purchased the property. It is averred that the plaintiff by drawing a false rough plan is trying to intermingle the facts, so as to claim the possession of the shop, which was under the possession of defendant No.4 and now in possession of defendants. It is denied that at any point of time the alleged small shop denoted by letter EFJHG was carved out by the plaintiff or his predecessor with or without the permission of original landlords. It is averred that the location of the walls, doors, type of construction, nature of premises as is existing today is the original shape from the very beginning and alteration whatsoever has been done on the spot by the plaintiff. It is averred that to run particular business under particular name and style may be as M/s Unique Tyres or M/s R.K. Auto has nothing to do with the shop, which is now in the possession of the defendants. The distributing of business by Sh. Girdhari Lal was his own affair, but has no right to distribute the tenancy right more particularly to have claim with regard to the shop, which was never under his possession. It is denied that Sh. Sobha Singh was an employee of Sh. Girdahri Lal. It is denied that there was any oral agreement between the plaintiff and Sh. Sobha Singh. It is reiterated that Sh. Sobha Singh was independent and was in possession of the shop as separate and distinct identity as lawful tenant of original owners. The keys of the suit premises always remains with Sh. Sobha Singh and he used to open the same without any interference from any person including the plaintiff. Sobha Singh. It is reiterated that Sh. Sobha Singh was independent and was in possession of the shop as separate and distinct identity as lawful tenant of original owners. The keys of the suit premises always remains with Sh. Sobha Singh and he used to open the same without any interference from any person including the plaintiff. It is admitted that the defendants No.1 to 3 have purchased the property. It is denied that at any point of time any conversation with regard to vacation of the premises took place with the plaintiff. Since, no conversation ever took place with regard to the vacation of premises, therefore, the question of any threat does not arise. Defendants No.1 to 3 had filed the eviction petition against defendant No.4 Sh. Sobha Singh and a suit for injunction was also filed, wherein, Sh. Sobha Singh was also a party. When Sh. Sobha Singh came to know about this litigation, then he approached the defendant and requested for settlement. As per amicable settlement Sh. Sobha Singh delivered the vacant possession of the suit premises to defendants No.1 to 3. The keys of the shop were with Sh. Sobha Singh, who took out his goods, tools etc., and vacated the same and handed over the keys to defendants No.1 to 3 on the spot. It is denied that defendant No.1 and defendant No.4 accompanied with few persons and came to Deonghat broken open the locks of the suit premises as alleged. It is averred that since the plaintiff was never in possession of the disputed shop, hence, there is no question of dispossession of the plaintiff. It is averred that the possession of defendants No.1 to 3 is lawful and valid and based upon the title. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter se the parties at contest:- 1. Whether the plaintiff is tenant under the defendants over the suit land, as alleged? OPP 2. Whether the plaintiff is entitled to possession of the tenanted premises, as prayed for? OPP. 3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for?OPP 4. Whether the plaintiff is entitled for damages, as prayed for?OPP 5. Whether the suit is bad for non joinder of necessary parties?OPD. 6. Relief. 6. OPP 2. Whether the plaintiff is entitled to possession of the tenanted premises, as prayed for? OPP. 3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for?OPP 4. Whether the plaintiff is entitled for damages, as prayed for?OPP 5. Whether the suit is bad for non joinder of necessary parties?OPD. 6. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the latter Court dismissed, the, suit of the plaintiff/petitioner herein. Now, the, plaintiff/petitioner herein, has hence instituted the instant Civil Revision, before this Court, wherein he assail the findings recorded, in its impugned judgment and decree, by the learned trial Court. 7. The verdict and decree, of, dismissal of the plaintiff's suit, as, cast under the provisions of Section 6 and 38, of, the Specific Relief Act, 1963, is not appealable, rather, in, a verdict rendered by the Hon'ble Apex Court, in, a case titled, as, ITC limited vs. Adarsh Cooperative Housing Society Limited, reported in (2013)10 SCC 169 , the, relevant paragraphs No. 10, 11 and 12 whereof, stand extracted hereinafter:- “10. In fact, para 4 of this Court’s judgment passed in Sanjay Kumar Pandey (supra) may be a useful reiteration of the law in this regard. The same is, therefore, extracted here-in-below:- “4. “A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-Section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well-settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code.” 11. It is indeed sad, if not unfortunate, that what was intended by the legislature to be a summary proceeding to enable a person illegally dispossessed to effect quick recovery of possession of the immovable property has, in the present case, erupted into an over two decades old litigation. The sheer number of pending lis permitted the learned Trial Court to return its findings, after almost a decade, that it is, indeed, the plaintiff who was in possession of the disputed property on the relevant date and was dispossessed there from in an illegal manner by the defendant. 12. Though Section 6 (3) of the Act of 1963 bars the remedy of appeal and review, a small window, by way of a revision, was kept open by the legislature possibly to enable the High Court to have a second look in the matter in an exceptional situation. However, section 115 of the CPC was amended in its application to the State of Uttar Pradesh and the forum for exercise of the revisional jurisdiction came to be recognized as the next Superior Court and not necessarily by the High Court. That is how the unsuccessful defendant moved the learned District Judge.” (p.175) (a) A trite expostulation of law, stands, hence borne therein qua the remedy, of, the aggrieved plaintiff, arising, from his suit, cast under Section 6 of the Specific Relief Act, hence standing dismissed, is, neither a review nor an appeal, (b) rather, the, apt remedy available to the aggrieved plaintiff, is, comprised, in, his instituting a regular suit, for, his therein rather, establishing his title qua the suit property. However, it is also expostulated therein, that, (c) the alternative thereto remedy of revision, visa- vis, the aggrieved plaintiff, being, an exception to the afore propounded expostulations, borne therein, (d) besides it also stands expostulated therein, that, the remedy of revision, as, available to the aggrieved plaintiff, being exercisable, only, within the parameters, of, revisional jurisdiction, as set forth, in, Section 115 of the CPC. 8. Bearing in mind the afore stated expostulation, of, law, this Court would hence, within, the ambit of Section 115 of the CPC, proceed to, mete an adjudication, (i) qua whether the learned trial court in rendering a verdict, rather dismissing the plaintiff's suit, hence, has acted with gross illegality and impropriety (ii) or has exercised jurisdiction not vested in it under law or has with evident gross illegality or impropriety hence proceeded to exercise jurisdiction, (iii) and, also for making the aforesaid discernments, an obvious latitude, is bestowed upon this Court, to, from the evidence, as existing on record, rather test the validity of the reasonings, assigned by the learned trial Court, (iv) on anvil, of, its discarding, the, apt relevant and germane evidence, vis-a-vis, the apposite issues, (v) AND, on anvil qua rather its mis-appraising, the, apt relevant and germane evidence. The decree for possession, as, claimed by the plaintiff, stands anvilled, upon, his inheriting the, apt, tenancy right, vis-a-vis, the suit premises, from, his father, one Girdahri Lal, and, who stood inducted, as, a tenant by the hitherto landlord one Lala Lekh Ram, (vi) whereas, the defendants purchasing the suit property in August, 2007, (vii) AND yet, the plaintiff contends that, unless, he stood evicted, by, apt adherences to the apt processes of law, the defendants hence being disabled, to, assume possession, of, the suit premises. Uncontrovertedly, as borne, in, the testification of the plaintiff, one Sobha Singh held possession of the suit premises, and, the capacity of holding, of, possession, by the aforesaid Sobha Singh, impleaded as defendant No.4, vis-a-vis, the suit premises, is, testified by the plaintiff, to be rested, upon, the aforesaid being his employee, (vii) yet the aforesaid testification, is, not amenable for meteing of any credence, as, he thereafter admits, of, his not liquidating any remunerations, to, the aforesaid Sobha Singh, rather he makes, a, deposition qua his helping him, in, the business. He has also testified qua Sobha Singh, keeping, his tools inside the suit premises. He has also testified qua Sobha Singh, keeping, his tools inside the suit premises. He has admitted, in his testification qua the last attornment, of, rent qua the suit premises, rather occurring in August, 2007, and, he has also acquiesced qua there being no mention therein, qua rent as, liquidated therein also appertaining, vis-a-vis, the suit premises. Likewise, the afore rendered testification, of, the plaintiff, does enable, rearing of the hereinafter inference (i) the list borne in Ex.P-33, depicting, the, apt articles, lying in the suit premises, not holding any aura of authenticity, more so, when it does not carry thereon, any date of its scribing, nor it being accompanied by any stock register, in purported consonance, wherewith, it stood prepared, (ii) and qua Sobha Singh holding possession of the suit premises, in his, individual capacity, and, concomitantly also his holding keys thereof. 9. Be that as it may, the plaintiff has contended that the aforesaid Sobha Singh, was, his employee or was manning the suit premises, on his behalf, and, that he was hence holding, vis-a-vis, him constructive possession, of, the suit premises, (i) and, that hence he did not hold any further empowerment or any legal capacity, to except, the plaintiff, hence, handover possession, of, the suit premises, (ii) and, his handing over the keys, of, the suit premises, vis-a-vis, the defendants, being contrary to the limited authority, he held, visa- vis, the suit premises. In making the aforesaid submission, the learned counsel appearing, for the plaintiff/petitioner herein, has, relied upon a verdict of the Hon'ble Apex Court, rendered in a case titled as Maria Maggarida Sequeira Fernades and others vs. Erasmo Jack De Sequeira (dead) through Lrs. reported in (2012) 5 SCC 370 , the relevant paragraph No.97 whereof, stands reproduced hereinafter:- “97. Principles of law which emerge in this case are crystallized as under:- (1). No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (2). Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. (3). Even by long possession of years or decades such person would not acquire any right or interest in the said property. (2). Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. (3). The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. (4). The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. (5). The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.” (p.396-397) The hereinabove extracted relevant para, of, the aforesaid judgment, does bear out, the contention of the learned counsel for the plaintiff/petitioner. However, for the learned counsel, for the plaintiff/petitioner herein, to, rather secure, the, fullest support therefrom, he is also, from the evidence existing on record, (i) rather enjoined to establish qua defendant No.4, Sobha Singh, being, his employee or his standing engaged by him, as, a caretaker or, a, servant, vis-a-vis, the suit premises. However, as aforestated, the afore rendered testification, of, the plaintiff, and, with its holding candid bespeakings (ii) qua his not liquidating any remuneration, to, Sobha Singh, hence negatives his espousal qua the latter being his employee or hence his holding apt possession, given, his standing engaged, as, a caretaker, or, a watchman or a servant by the plaintiff. However, as aforestated, the afore rendered testification, of, the plaintiff, and, with its holding candid bespeakings (ii) qua his not liquidating any remuneration, to, Sobha Singh, hence negatives his espousal qua the latter being his employee or hence his holding apt possession, given, his standing engaged, as, a caretaker, or, a watchman or a servant by the plaintiff. Contrarily, with the plaintiff also making acquiescences, in his testification, qua his making, the, last attornment in August, 2007, and, the apt rent receipt issued to him, not making clear reflections qua, its, issuance also appertaining to or holding any nexus with the suit premises, (iii) thereupon, it is to be inevitably concluded qua the aforesaid Sobha Singh, as contrarily contended, by the defendant, rather holding possession of the suit premises, in a capacity, not holding any linkage, with, any purported tenancy thereon, of, the plaintiff, rather his holding possession, of, the suit premises, in his individual capacity, (iv) thereupon, in his proceeding to handover the keys, of, the suit premises, to the defendants, the plaintiff cannot contend, that, Sobha Singh held no authorization, to, hence handover possession, of, the suit premises to the defendant, (v) importantly when the vigour, and, bedrock of the his aforesaid contention, rested, upon Sobha Singh, hence, standing engaged, as, a caretaker or a watchman, by him, stands, for reasons aforestated, to, both stagger, and, founder. 10. The upshot of the above discussion, is that the learned trial Court has neither mis-appreciated nor discarded the apt relevant, and, germane evidence appertaining to the relevant issues, thereupon, this Court, while, exercising the revisional jurisdiction, within, the ambit of Section 115 of the CPC, is, constrained to hold that the learned trial Court, has not committed any gross illegality, in, its exercising jurisdiction nor it has acted with an material illegality or irregularity, nor it can be concluded, that, any jurisdictional misdemeanor, stands, hence committed, by the learned trial Court. 11. For the foregoing reasons, there is no merit in the extant petition and it is dismissed accordingly. In sequel the judgment and decree impugned before this Court is maintained and affirmed. Records be sent back forthwith.