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2018 DIGILAW 2528 (ALL)

Chheddoo v. Gur Deen

2018-12-12

JASPREET SINGH

body2018
JUDGMENT : Jaspreet Singh, J. 1. This is the defendants second appeal assailing the judgment and decree passed by the Court of Additional District Judge, Court No.8, Sitapur passed in Regular Civil Appeal No.60 of 1996 dated 12.02.2002 whereby it dismissed the appeal and confirmed the judgment and decree dated 27.02.1996 passed in Regular Suit No.518 of 1990 whereby the suit of the plaintiffs respondent for permanent injunction was decreed. 2. This Court on 08.03.2002 admitted the above second appeal on substantial questions of law formulated at serial nos.1, 2 and 3 in the memo of second appeal. For ready reference, the same is reproduced hereinafter:- I. Whether a plaintiff who fails to establish his ownership and possession over the land in Suit, is entitled to a decree for permanent injunction against such defendants who themselves claim title and ownership over such land? II. Whether the courts below have acted in accordance with law in awarding a decree for permanend injunction in favour of the plaintiffs in respect of an unidentifiable place of land, more particularly when the parties to the Suit claim such land to be included in two different plots, without making any efforts to locate and identify such land by appointment of Survey Commission, even though an application for such purpose was moved by one of the party? III. Whether the Suit filed by the plaintiffs in respect of a joint cause of action having abated against one of the defendants due to non-substitution of his legal heirs, could legally continue and be decreed against the other defendant and whether in such a case the Suit would not be barred by the principle of constructive res judicate? 3. In order to appreciate the controversy certain relevant facts leading to the said second appeal is being mentioned hereinafter. One Sri Kandile and Grudeen as plaintiffs instituted a regular suit bearing R.S.No.518 of 1990 before the Court of Civil Judge (Junior Division), Sitapur seeking a decree for permanent injunction. It was pleaded that the plaintiffs were the owner of the property situate on Abadi Gata No.508 measuring 0.5 decimal situate in gram Tarsava, Pargana Kaurana, Tahsil Mishrikh, District Sitapur. One Sri Kandile and Grudeen as plaintiffs instituted a regular suit bearing R.S.No.518 of 1990 before the Court of Civil Judge (Junior Division), Sitapur seeking a decree for permanent injunction. It was pleaded that the plaintiffs were the owner of the property situate on Abadi Gata No.508 measuring 0.5 decimal situate in gram Tarsava, Pargana Kaurana, Tahsil Mishrikh, District Sitapur. It was also pleaded that the aforesaid land was given by the Gaon Sabha to the plaintiffs on a lease dated 24.11.1981 and since then the plaintiffs had put a Chapper and raised construction and have been residing therein peacefully to the exclusion of all others. The plaint also contained the boundaries of the property in dispute. It was stated that the defendants were illegally trying to interfere in the peaceful possession of the plaintiffs and also attempting to dispossess them without due process of law, hence, in order to prevent such illegal acts, the suit for injunction was filed. 4. Gajodhar and Chheddoo who were the defendants, filed their written statement and contested the suit primarily on the ground that the property as described by the plaintiffs belonged to them and it was not part of Abadi Gata No.508 rather it was part of Navin Parti land of Gata No.508 Ka measuring 0.35 decimal. It was also pleaded that the property in question was given by the Gaon Sabha to the defendants by way of a lease dated 31.03.1990 and since then the defendants had raised a boundary wall around the said property and were residing therein. They also pleaded that the plaintiff did not have the possession over the property in question which was actually in the possession of the defendants and thus the suit was not maintainable and was liable to be dismissed. 5. The trial court while framing issues categorically framed issue Nos.1 and 2 to the effect as to whether the plaintiffs is the owner in possession of the disputed land situate on plot No.508 measuring 0.5 decimal on the basis of lease as alleged and the second issue was relating to the fact whether the disputed land was situate on Abadi Plot No.508 or was part of Navin Parti land of Gata No.508 Ka. 6. 6. Thus, it would be seen that in light of the pleadings and issues framed, the parties to the suit were well aware of each others plea in the case and what they had to meet in order to succeed in the above suit. 7. The plaintiffs examined Gurudeen as P.W.1, Puttai Lal as P.W.2 and Deen Dayal as P.W.3 while the defendants examined Chhedu as D.W.1, Sarju Prasad as D.W.2 apart from the documentary evidence led by each party to establish their respective case. The trial court after considering the entire evidence of the respective parties categorically held that the plaintiffs were successful in establishing their case and that they were found to be the owner in possession of the property in question and the trial court also held that the disputed property was actually part of the Abadi Plot No.508 and was not part of Navin Parti land of Gata No.508 Ka as alleged by the defendants and after recording the aforesaid findings, the suit of the plaintiffs was decreed by means of the judgment and decree dated 27.02.1996. The trial court also noticed that during the pendency of the suit, the defendant no.1 Gajodhar had expired and since his legal heirs were not brought on record, consequently the suit against Gajodhar stood abated and in view thereof the suit was decreed only against the defendant no.2, namely, Chheddoo. 8. Chheddoo being aggrieved against the aforesaid judgment and decree preferred a regular civil appeal under Section 96 CPC before the Additional District Judge, Court No.8, Sitapur registered as Regular Civil Appeal No.60 of 1996. The first appellate court after considering the evidence and the submissions of the parties affirmed the judgment and decree passed by the trial court dismissing the appeal of the defendant appellant by means of the judgment and decree dated 12.02.2002. 9. It is these two judgments and decree which have been assailed by the defendant/appellant before this Court. 10. It has been urged by Sri U. K. Srivastava learned counsel for the appellant that the property in question was not identifiable and moreover the plaintiffs were not able to establish their possession. Accordingly, the suit for injunction was not maintainable nor could the suit be decreed in favour of the plaintiffs/respondents. 10. It has been urged by Sri U. K. Srivastava learned counsel for the appellant that the property in question was not identifiable and moreover the plaintiffs were not able to establish their possession. Accordingly, the suit for injunction was not maintainable nor could the suit be decreed in favour of the plaintiffs/respondents. It was further urged by him that when there was a clear dispute regarding the identity of the two plots, one claimed by the plaintiffs to be as part of plot No.508 and the other claimed by the defendant to be part of plot No.508 Ka thus, without clearly identifying the same no decree in favour of the plaintiffs could be granted. According to him, the two courts have committed an error while decreeing the suit in absence of a clear finding to the above effect. 11. It was further argued that since the suit for injunction was filed against the two defendants and admittedly one of the defendant, namely, Gajodhar had expired during the pendency of the proceedings before the trial court and his legal heirs were not brought on record and this fact was also observed by the trial court while delivering its judgment. Thus, the cause of action being joint thus the entire suit had abated and it was not open for the two courts to have decreed the suit only in respect of the defendant no.2 and in this manner the exercise of jurisdiction by the two courts is erroneous and he has prayed that the judgment and decree passed by the two courts deserves to be set aside. 12. The Court has considered the submissions of the learned counsel for the appellant. The first and the second questions of law as framed by this Court being interconnected are being taken up together. 13. From the perusal of the record, it is clear that the plaintiffs while instituting the said suit had categorically pleaded that they are the owners of the property which is part of Abadi Plot No.508 on the basis of lease executed by Gaon Sabha dated 24.11.1981 in their favour. The plaintiffs also described the property by mentioning the boundaries at the foot of the plaint and also annexed a site-plan which formed part of the plaint in suit. The plaintiffs also described the property by mentioning the boundaries at the foot of the plaint and also annexed a site-plan which formed part of the plaint in suit. On the other hand, the specific case of the defendant was that the property as described by the plaintiffs was not situate on Abadi Plot No.508 rather it was part of Plot No.508 Ka which was Navin Parti land and the same was given to the defendants by means of a subsequent lease dated 31.03.1990, with different boundaries. 14. While attacking the two judgments impugned in the appeal, the argument of the appellant’s counsel is that since the property in dispute was not identified, thus the suit could not have been decreed. 15. This submission of the learned counsel for the appellant is not sound inasmuch the plaintiffs while instituting the suit categorically in terms of Order VII Rule 3 CPC described the property sufficiently to identify both in terms of the plot number as well as by giving the boundaries and also indicated it in the site-plan. In case, the defendant were to dispute the same the burden was on the defendant to have established by cogent and reliable evidence that the property in question was not part of Plot No.508 but as alleged by them to be part of Plot No.508 Ka which is Navin Parti. 16. The submission of the learned counsel for the appellant that it was incumbent for the court below to get the plot identified by the Survey Commission before recording a finding in this regard and since no Commission was issued thus the finding on the issue no.2 was bad and the matter ought to be remanded. 17. In the present case, the plaintiffs/respondent led cogent and direct evidence and established that they were the owners on the basis of the lease granted by the Gaon Sabha dated 24.11.1981 which was prior in time to the alleged lease of the defendants which is dated 31.03.1990. Moreover, the lease which was presented before the court below bearing paper Nos.Ga 9 and 10 clearly established that the said lease was granted in favour of the plaintiffs in respect of plot No.508. 18. Moreover, the lease which was presented before the court below bearing paper Nos.Ga 9 and 10 clearly established that the said lease was granted in favour of the plaintiffs in respect of plot No.508. 18. The defendants were aware of this plea and it was their specific case that their property was part of Plot No.508 Ka with different boundary and thus it was not at all required for the plaintiffs or the court below to have got the plot identified through survey as apparently in the pleadings there was no such confusion and each party was required to establish its own case. Even it at all, there was any requirement the burden was on the defendant to do so upon whose pleadings the issue no.2 was framed and it was the duty of the defendant to discharge their burden. 19. Moreover, the court were to adjudicate the claim of the plaintiffs which was specifically in regard to Plot No.508 and was demarcated by the boundaries mentioned in the plaint and it is upon this that the parties led their respective evidence and now it is not open for the defendant to plead that the findings are incorrect because no Commission was issued. 20. Another important aspect which has been considered by the two courts and sufficient to pass the decree in favour of the plaintiffs is that the defendant had categorically pleaded that they were given the property in question by a lease dated 31.03.1990. The aforesaid document was also placed before the court below as bearing paper Nos.Ga 129 and Ga 130. Both the two documents are dated 31.03.1990 and it clearly gives the boundary wherein on the eastern side, it has mentioned the house of Gajodhar and in document bearing paper No.Ga 130 the boundary on the western side is mentioned as house of Chheddoo. 21. Both the two documents are dated 31.03.1990 and it clearly gives the boundary wherein on the eastern side, it has mentioned the house of Gajodhar and in document bearing paper No.Ga 130 the boundary on the western side is mentioned as house of Chheddoo. 21. This indicates that the boundaries given in the document of lease Paper No.Ga 129 and Ga 130 related to a piece of land which on the date of lease i.e. 31.03.1990, the defendant already had their house in existence while their specific case was that they entered on their own over the land in question after the lease was given to them on 31.03.1990.This apparently belies the defence of the defendants and no evidence was led by the defendants to establish the property to be on Plot No.508 Ka or that it was of Navin Parti for the said reasons the two courts could not be persuaded to accept the version of the defendants. 22. The court below were only concerned to adjudicate the title and possession of the plaintiffs qua the plea raised by the defendant in order to decide the suit for injunction wherein title was only an incidental issue. As the plaintiffs were successful in proving their possession and title over their land on the basis of the lease dated 24.11.1981 thus the suit was correctly decreed. 23. As a matter of law only if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See (1983) 1 SCC page 35 Madhusudan Das Vs. Narayanibai and (2001) 3 SCC page 179, Santosh Hazari Vs. Purushottam Tiwari). 24. The two courts have considered the above issue and have recorded a clear finding that the plaintiffs categorically proved their possession on the basis of the lease dated 24.11.1981 and the property in question was part of Abadi Plot No.508. Thus, the findings regarding possession of the plaintiffs based on evidence and regarding identity of the property being a pure findings of fact, is not liable to be interfered with under Section 100 CPC, as they do not suffer from any perversity. 25. Coming to the question as to whether upon the death of Gajodhar i.e. defendant no.1, before the trial court the entire suit stood abated. 26. 25. Coming to the question as to whether upon the death of Gajodhar i.e. defendant no.1, before the trial court the entire suit stood abated. 26. It is now well settled that a suit for injunction is a lis in personam. The plaintiff being the dominus-litus has a right to choose his opponent against whom he wishes to contest the proceedings. 27. Injunction is sought against a person who threatens to invade the right of the plaintiff. It is upon this principle that the suit for simplicitor injunction was filed against two defendants. Upon the death of one, the threat from him abated but not in so far as the second defendant was concerned and thus the suit was rightly decreed against the defendant no.2 as there could be no abatement of the entire suit. 28. The Hon’ble Supreme Court in the case of Sardar Amarjit Singh Kalra Vs. Promod Gupta 2003 (3) SCC page 272 had the occasion to consider the issue regarding partial and complete abatement and after considering the conspectus on the point of abatement held as under:- “34. In the light of the above discussion, we hold:- (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and in-severable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. (2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.” 29. Thus, in light of the aforesaid principle, the question of abatement as raised by the learned counsel for the appellant also fails. 30. This Court is of the considered view that the above appeal is concluded by a concurrent finding of fact and the learned counsel for the defendant/appellant could not establish any perversity in the judgment of the two courts below. 31. This Court accordingly holds that the second appeal lacks merit and is dismissed. The judgment and decree passed by the two courts is affirmed. No order as to costs.