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2019 DIGILAW 339 (GAU)

LALSANGLIANA SAILO v. HMINGCHUNGNUNGA

2019-03-13

NELSON SAILO

body2019
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. F. Lalengliana, the learned counsel for the appellant and Mr. Aldrin Lallawmzuala, the learned counsel for the respondent No. 1. Mr. Lalfakawma, the learned counsel appears for the respondent Nos. 2, 3 and 4. None appears for the respondent Nos. 5, 6 and 7 despite notice. 2. The appellant was the defendant No.1 before the trial court and will be referred as the appellant for convenience in the present appeal. By filing this appeal, the appellant has challenged the Judgment dated 01.02.2016 passed by the learned Senior Civil Judge-III, Aizawl District, Aizawl in Eviction Suit No. 17/2013, whereby, the learned Trial Court has directed the appellant to vacate the suit land covered by LSC No. AZL- 2527/1985. Further, the learned Trial Court has directed the respondent Nos. 2, 3 and 4 in this appeal to issue resitement order for the establishment of Petrol Pump or Retail Outlet in favour of the appellant. 3. Brief facts of the case is that the appellant and the respondent Nos. 6 and 7 entered into an Agreement which was to the effect that the plot of land covered by the aforementioned LSC will be occupied by the appellant on payment of a monthly rent for the purpose of operating a Petrol Pump. On expiry of the said Agreement, a further Agreement was arrived at between the parties on 01.04.2009 wherein, the respondent Nos. 6 in whose name the LSC was mutated agreed to lease out the land to the appellant for another 3 (three) years from the date of the Agreement on rent @ Rs. 15,000/- per month beginning from 01.04.2009 with an increment of 10% every year. The Agreement further contained a condition that the respondent No. 6 as the first party will be the legal and rightful owner of the land in question and he will have the right to transfer the same in part or in whole by way of sale, gift to any person/persons even before the expiry of the Agreement. However, the second party will not be driven out from the land before the expiry of the Agreement period. As soon as the Agreement period is over, the second party i.e. the appellant should vacate the land. However, the second party will not be driven out from the land before the expiry of the Agreement period. As soon as the Agreement period is over, the second party i.e. the appellant should vacate the land. It was further provided in the Agreement that as soon as the appellant had no further utilization of the land or after the expiry of the Agreement period, if not extended, he should surrender the land to the first party and the second party can make claim from the first party for the construction of buildings including materials used for construction of buildings etc. and also the works executed by him or his company. The Agreement signed on 01.04.2009 expired after three years. However, before the expiry of the Agreement, the respondent No. 1 purchased the plot of land covered by the said LSC from the respondent No. 6. After purchasing the plot of land, the respondent No. 1 did not disturb the appellant in view of the Agreement between the appellant and the respondent No. 6. However, after the expiry of the period for occupation as per the Agreement, the appellant having not vacated the land, the respondent No. 1 filed Eviction Suit No. 17/2013 before the learned Senior Civil Judge, Aizawl District, Aizawl seeking the eviction of the appellant from the suit land. The appellant contested the Suit by filing a written statement and also by filing a counter claim. According to the appellant, in view of the Agreement, he had every right to claim for the construction of buildings etc. in the suit land from the respondent No. 6. Thus, he claimed a sum of Rs. 35,000,000/-(Rupees thirty five lakh) only from the respondent No.6 through his counter claim filed in the Eviction Suit. 4. The appellant further contended that unless an order of resitement was given by the respondent Nos. 2, 3 and 4, he is not in a position to vacate the land. The respondent Nos. 6 and 7 also filed their written statement before the learned Trial Court denying their liability to pay any compensation to the appellant. After the pleadings were complete, the learned Trial Court framed as many as six issues, which are as follows:- (i) Whether the suit and counter claim of the defendant No. 1 are maintainable in their present form and styles? After the pleadings were complete, the learned Trial Court framed as many as six issues, which are as follows:- (i) Whether the suit and counter claim of the defendant No. 1 are maintainable in their present form and styles? (ii) Whether the defendant No. 7 has any right to sell the property to the plaintiff without knowledge of the defendant No. 1 ? (iii) Whether the defendant No. 1 invested Rs. 35 lakh for construction of Petrol station and other construction? If so, who is liable to pay the sum of the said money? (iv) Whether the plaintiff is entitled to the relief claimed? If so, to what extent? (v) Whether the defendant No. 1/counter claimant is entitled to the relief claimed? If so, to what extent? (vi) Whether the defendant No. 1 can shift the Petrol Pump without the consent of defendant Nos. 2, 3 and 4 ? 5. Thereafter, the learned Trial Court decided all the issues against the appellant and consequently, vide the impugned Judgment dated 01.02.2016, directed the appellant to vacate the Suit land within a period of 3 (three) months from the date of the order as already mentioned hereinabove. 6. Mr. F. Lalengliana, the learned counsel submits that in view of the Agreement signed between the appellant and the respondent No. 6 on 01.04.2009, the respondent No. 6 is bound to compensate the appellant. Further, the appellant in view of his Agreement with the respondent Nos. 2, 3 and 4 cannot simply vacate the suit land without any resitement order. He further submits that although the Agreement between the appellant and the respondent No. 6 may not have been registered under the Registration Act, 1908, but the same may still be treated as evidence in view of the proviso provided under Section 49 of the Registration Act, 1908. By referring to the cross examination of the respondent No. 6, Mr. F. Lalengliana, the learned counsel submits that the said respondent has not disputed the fact of their being any Agreement to compensate the appellant in the event the Petrol Pump was required to be shifted elsewhere or closed down. Therefore, the learned Trial Court was wrong in rejecting the claim of the appellant on the basis of the Agreement only for the reason that the same was not registered under the Registration Act, 1908. Therefore, the learned Trial Court was wrong in rejecting the claim of the appellant on the basis of the Agreement only for the reason that the same was not registered under the Registration Act, 1908. He, therefore, submits that Court may even at this stage direct the Trial Court to make an assessment on the construction or developments made by the appellant in establishing the Petrol Pump in the land, which was purchased by the respondent No. 1. The learned counsel, in support of his submissions, relies upon the decision of the Apex Court rendered in the case of S. Kaladevi Vs. V.R. Somasundaram & Others reported in, (2010) 5 SCC 401 . 7. Mr. Aldrin Lallawmzuala, the learned counsel appearing for the respondent No. 1 submits that it is not for the appellant to make a claim for compensation from the respondent No. 6 in a suit filed by the respondent No. 1 by filing a counter claim. The counter claim of the appellant will only be maintainable, if a claim for compensation is made from the respondent No. 1, who is the plaintiff in the Eviction Suit. He submits that so long as the appellant was operating the Petrol Pump as per the Agreement of the appellant with the previous owner, the respondent No. 1 did not disturb the appellant. However, when the extended period of occupation expired in the month of April, 2012, the respondent No. 1 requested the appellant to vacate the suit land. However, as the appellant failed to do so, the respondent No. 1 filed the Eviction Suit No. 17 of 2013. The learned counsel further submits that the impugned Judgment under the facts and circumstances was rightly passed by the learned Trial Court and the same should be upheld. 8. Mr. Lalfakawma, the learned counsel for the respondent Nos. 2, 3 and 4 submits that the respondents he represents are basically proforma respondents. He submits that as per the policy of the Indian Oil Corporation, it is the responsibility of the licensee concerned to provide a suitable land for establishing a Petrol Pump. Once a suitable site is provided, then the Corporation undertakes the construction of the storage tank, the Petrol Pump and the supply of the fuel. He submits that as per the policy of the Indian Oil Corporation, it is the responsibility of the licensee concerned to provide a suitable land for establishing a Petrol Pump. Once a suitable site is provided, then the Corporation undertakes the construction of the storage tank, the Petrol Pump and the supply of the fuel. He further submits that the Corporation is not a party to the Agreement arrived at between the appellant and the respondent No. 6 on 01.04.2009 and therefore, the Corporation has nothing to say in the matter. He however submits that as per the policy of the Corporation, if the Dealer is forced to vacate the existing site by the lessor or any authority, resitement of a commissioned dealership can only be considered after the dealer has exhausted all legal remedies up to the High Court. In view of the policy of the Corporation, the learned Trial Court could not have directed the respondent Nos. 2, 3 and 4 to issue an order of resitement in favour of the appellant. 9. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Record that was requisitioned. 10. What can be noticed from the submissions of the rival parties and from the materials available on record is that the appellant does not dispute the fact of the suit land being sold by the respondent No. 6 to the respondent No. 1 while the Agreement dated 01.04.2009 was subsisting. What the appellant claims is that he should be compensated to the tune of Rs. 35 lakhs in view of the clause contained in the Agreement, which is to the effect that the appellant can make a claim from the respondent No. 6 for the construction of any buildings, including materials used for construction of buildings etc. after the expiry of the Agreement. It is, however, seen that such claim was made by the appellant by filing a written statement-cum-counter claim in the Eviction Suit filed by the respondent No. 1 against him. Reliance has been placed by the learned counsel for the appellant on the proviso to Section 49 of the Registration Act, 1908. after the expiry of the Agreement. It is, however, seen that such claim was made by the appellant by filing a written statement-cum-counter claim in the Eviction Suit filed by the respondent No. 1 against him. Reliance has been placed by the learned counsel for the appellant on the proviso to Section 49 of the Registration Act, 1908. A perusal of the same will go to show that an unregistered document affecting immoveable property and required by the Act to be registered may be received as evidence of a contract in a suit for a specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument. The said provision in my considered view will not be attracted in the present case since the same relates to a suit for specific performance under the provisions of the Specific Relief Act, 1877 while the present case pertains to an eviction suit. It is however seen that the respondent Nos. 6 and 7 during their cross examination did not deny the fact that an agreement was arrived at between the appellant and themselves and therefore, the claim of the appellant cannot be said to be without any basis. But the fact remains that such claim will have to be made by way of filing an appropriate suit and not through a claim made in an eviction suit in the form of a counter claim. 11. In so far as the reliance on the case of S. Kaladevi (Supra) has been made by the learned counsel for the appellant, I am of the considered view that the fact situations being not similar, the same will have no application to the present case. 12. Upon careful consideration of the matter in its entirety, I do not find any merit in the appeal and accordingly, the same is dismissed. The appellant will be at liberty to approach the competent forum as may be permissible in law for appropriate relief for the developments made on the Suit land. 13. Registry to send back the LCR immediately.