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2019 DIGILAW 649 (HP)

Rashida Begum v. Roshan Din (Deceased)

2019-05-30

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The defendants are the appellants, who after having lost before both the learned Courts below have filed the instant second appeal. The parties shall be referred to as the 'plaintiffs' and the 'defendants'. 2. The brief facts of the case are that the plaintiffs Roshan Din, Phulan alias Shakuran Begum and Karam Din filed a suit for possession against the defendants Nek Mohamad and Smt. Rashida Begum. Plaintiff No.2 Phulan alias Shakuran Begum is the daughter of Karam Din and plaintiff No.1 Roshan Din is her husband. Defendant No.2 Rashida Begum is the other daughter of plaintiff No.3. Karam Din and defendant No.1 Nek Mohd. is her husband. The suit was filed on 17.12.1992 and thereafter plaintiff No.3 Karam Din expired in 1994. Since his two daughters were already on record, his name was ordered to be deleted vide order dated 3.3.1997. 3. In the plaint it was averred that plaintiff No.3 was lessee of plot No. 77-A, situated in Sector 6-A Up Mohal Main Market, Bilaspur and had constructed house-cum-shop on the said plot with the help of plaintiffs No.1 and 2, who had been living with the plaintiff No.3 since the marriage. It was averred that on the Western side of the abovementioned plot, there is a government land comprised in Khasra No. 533 over which plaintiffs No.1 and 2 had raised some construction in 1961-62 unauthorisedly wherein plaintiff No.1 had been carrying on his vegetable business and the said shop was marked 'ABCD' in the site plan attached with the plaint. It was averred that since defendants No.1 and 2 were not financially well and on their request, plaintiff No.1 engaged defendant No.1 for the sale of vegetable in his shop in 1975. After about a year plaintiff No.1 no longer required the services of defendant No.1 and, therefore, plaintiffs No.1 and 2 gave a portion of the said shop marked 'ABEF' in the site plan to defendants No.1 and 2 to start some business. This happened in somewhere in the month of May, 1977 and there was a clear understanding between the parties that defendants No.1 and 2 would vacate the shop as and when required by the plaintiff and on such averment it was averred that the possession of defendants No.1 and 2 was permissive. This happened in somewhere in the month of May, 1977 and there was a clear understanding between the parties that defendants No.1 and 2 would vacate the shop as and when required by the plaintiff and on such averment it was averred that the possession of defendants No.1 and 2 was permissive. Thereafter, the plaintiff requested the defendants to vacate the shop, but they kept on evading the request on one pretext or the other, constraining the plaintiffs to issue notice on 29.12.1991, but despite having received the same, the defendants failed to hand over the possession. Hence the suit. 4. The defendants contested and resisted the suit by filing written statement, wherein preliminary objections qua cause of action, maintainability, estoppel, jurisdiction etc. were raised. On merits, it was stated that the defendants never requested plaintiffs No.1 and 2 to help them and they never worked under them in the vegetable business. The shop was constructed jointly by the parties and subsequently it was partitioned in the year 1976 and thereafter both the parties were doing their separate and independent business having one portion each. The portion in possession of the plaintiffs is marked as 'CDFE' and possession of the defendants is marked as 'ABFE' and such possession was never permissive and on these averments, it was prayed that the suit as filed by the plaintiffs be dismissed. 5. In the replication, the plaintiffs reasserted their claim and denied the allegations of the defendants that the structure over khasra No. 533 was constructed jointly by them. Rather the portion of the shop marked as 'ABFE' was given to the defendants on the clear understanding that they would vacate the same as and when required by the plaintiffs. 6. The learned trial Court on 5.8.1993 framed the following issues: 1. Whether the suit in the present form is not maintainable as alleged? OPD 2. Whether the plaintiffs are barred by their act, conduct, omission, deeds and acquiescence from filing this suit? OPD 3. Whether this Court has no jurisdiction to decide this suit as alleged? OPD 4. Whether the plaintiffs are owners of the disputed shop? OPP 5. If issue No.4 is proved in affirmative whether the plaintiffs are entitled to the possession of the disputed shop? OPP 6. Relief. 7. OPD 3. Whether this Court has no jurisdiction to decide this suit as alleged? OPD 4. Whether the plaintiffs are owners of the disputed shop? OPP 5. If issue No.4 is proved in affirmative whether the plaintiffs are entitled to the possession of the disputed shop? OPP 6. Relief. 7. After recording the evidence and evaluating the same, the learned trial Court decreed the suit on 31.12.1997 and the appeal filed against the same by the defendants/appellants before the learned Sessions Judge was also dismissed vide judgment and decree dated 16.7.2004, constraining the appellants/defendants to file the instant appeal before this Court. 8. On 5.4.2005, the appeal was admitted on the following substantial questions of law: 1. Whether both the Courts below have acted with material illegality and irregularity in ignoring that after the death of plaintiff No.3, Shri Karam Din, who was merely a licencee, the property in dispute vested in Appellant and respondent No.2 being daughters of plaintiff No.3 and the plaintiffs -respondents in such circumstances failed to maintain the suit for recovery of possession of suit property after the death of the plaintiff No.3, which came to be vested in both the daughters in equal shares? 2. Whether in the absence of any cogent proof of title of the plaintiffs-respondents, could the courts below presume title in plaintiffs in dereliction of the claim of the defendants-appellants who claimed themselves to be in joint possession of the suit property, could the decree for possession in such circumstances be passed by both the Courts below? I have heard learned counsel for the parties and have gone through the records of the case carefully. Substantial questions of law No.1 and 2: 9. Since, both these questions are intrinsically interlinked and interconnected, therefore, they are taken up together for consideration and are being disposed of by a common reason. 10. It is vehemently argued by Shri Bhupinder Gupta, learned Senior Advocate, duly assisted by Shri Janesh Gupta, Advocate, that both the Courts below have acted with material illegality and irregularity in presuming the title of the plaintiffs-respondents. The pleadings in this regard have altogether been ignored for consideration. As a matter of fact, Shri Karam Din (Plaintiff No.3), father-in-law of appellant No. 1 and respondent No. 2 was merely a lessee with respect to plot No. 77-A situated in Sector 6-A, main market Bilaspur. The pleadings in this regard have altogether been ignored for consideration. As a matter of fact, Shri Karam Din (Plaintiff No.3), father-in-law of appellant No. 1 and respondent No. 2 was merely a lessee with respect to plot No. 77-A situated in Sector 6-A, main market Bilaspur. The construction raised on the said plot of land belonged to Shri Karam Din. The pleadings regarding raising of construction on Khasra No. 533 by the plaintiff were vague and it was not mentioned, as to who was having title over the suit land. Since, plaintiffs No. 1 and 2 had no title with respect to Khasra No. 533, therefore, they could not be said to be owners of the construction raised thereupon. Even otherwise, there was no proper pleadings and proof identifying the shop marked 'ABCD'. The plaintiffs in order to succeed in the suit ought to have proved the site plan of disputed construction and the period when the same was raised. 11. Lastly, it is argued that the learned Court below has wrongly relied upon the notice Ext.PD and plan Ext. PD/1 without there being any legal proof of the said document. 12. On the other hand, Shri G. D. Verma, learned Senior Advocate, duly assisted by Shri B. C. Verma, Advocate, for the respondents, would support the judgments and decree passed by the learned Courts below and argued that the findings recorded by the learned Courts below are pure finding of facts and immune from interference in second appeal. 13. Indubitably, the shop in question is situated over Khasra No. 533, which is entered in the ownership of the State of H. P., as is evident from the Misal Hakiat Bandowast Ext. PA. However, in the remarks column, there is a mention that file has been prepared in regard to the unauthorised possession over this khasra number i.e. 533. The nature of the land has been entered as 'Gair Mumkin Dukan Pucci Ikk Manjila'. Ext. PC the copy of entries of register shows that plaintiff No. 1 is entered as owner of the plot No. 77-A. Ext.PW1/A is the copy of application submitted for electric connection. Ext.PD is notice issued by the Collector to plaintiff No. 1 regarding encroachment upon the government land by constructing a pucca house. Ext. PC the copy of entries of register shows that plaintiff No. 1 is entered as owner of the plot No. 77-A. Ext.PW1/A is the copy of application submitted for electric connection. Ext.PD is notice issued by the Collector to plaintiff No. 1 regarding encroachment upon the government land by constructing a pucca house. Ext.PD/1 is also an application by the S.D.O. alleging unauthorised occupation of Government land by plaintiff No. 1 requesting the Collector to initiate eviction proceedings against him under Himachal Pradesh Public Premises and Land (Eviction and Recovery) Act, 1972. Ext. DA is a copy of Jamabandi for the year 1991-92 reflecting therein that Khasra No. 533 is entered in the ownership and possession of the State of Himachal Pradesh but there is no entry in the remarks column. Similar entries are found in Ext.DB, which is copy of Bandobast Jaidi Sani Mauja Muhal, main market, Bilaspur. 14. Having taken note of the documentary evidence, this Court would now advert to the oral evidence led by the parties. 15. Plaintiff No. 1 Roshan Din stepped into the witness box as PW1 and stated that he was owner of the disputed shop which was got constructed by him and earlier it was one shop and now he is in possession of half share of the shop, while the other half share had been given by him to the defendants in the year, 1977. He stated that the adjoining plot was in the possession of Karam Din, who had gifted the same to plaintiff No. 2. He stated that shop was given to defendant, who was running a vegetable shop and he had employed defendant No. 1 as a servant on monthly rent of Rs.600/-. After 1977 half of the shop was given to defendant No. 1 which was permissive possession and the defendants agreed to vacate the same as and when required by the plaintiffs, but failed to vacate the same, hence the suit. 16. Pw-2 Nawaz Mohammed stated that he was a Municipal Commissioner from 1977-81 and had seen the shop which was built by plaintiff No. 1 in 1960-61 and after some time half of it was given to the defendant but he was not aware of the terms and conditions thereof. 17. Pw-3 Rajdip Aggarwal, Architect, proved the plan Ext. PW3/A, showing the area of the shop in possession of defendant No. 1 and plaintiffs. 17. Pw-3 Rajdip Aggarwal, Architect, proved the plan Ext. PW3/A, showing the area of the shop in possession of defendant No. 1 and plaintiffs. 18. Pw-4 Malli Ram stated that he was working as carpenter and mason and had built the shop at the instance of plaintiff No. 1 in 1960-61. He further stated that he was paid the charges by plaintiff No. 1 and at that time defendant had not been living there. After 15-16 years, the partitioned was done by putting the curtain and both parties had been running the shop(s). 19. Pw-5 Geeta Ram stated that his plot and house were situated at a distance of 4/5 shops from the shop in dispute. He stated that plaintiff No. 1 had constructed the shop in 1960-61 and had been doing the business of selling vegetables and after 10-12 years, defendant No. 1 also started running his shop in the portion of the shop. 20. Defendant Nek Mohamad stepped into the witness box as DW-1 and stated that plot No. 77-A was owned by Karam Din his father-in-law, who has since dead. He stated that his father-in-law had built a shop on the government land adjoining to Plot No. 77-A, wherein both the parties had initially been running the shop jointly and in the year, 1976 partition was effected in which one portion came to his share and the other to the share of plaintiff No. 1 and since then the parties were in separate possession. He stated that such partition was effected by his father-in-law Karam Din and plaintiff No. 1 had not got the shop built entirely but it was got built by his father-in-law. He denied having worked as a servant in the shop and claimed that he was doing his Manyari business. In cross-examination, he stated that whole expenses towards construction were borne by his father-in-law. He tendered in evidence copy of Jamabandi Ext. DC, copy of judgment of Civil Court dated 06.06.1994 Ext. DD, which showed that the suit for possession was filed by plaintiffs No. 2 and 3 (now subject matter of RSA No. 551 of 2002). 21. This is in entirety the oral and documentary evidence led by the parties. 22. He tendered in evidence copy of Jamabandi Ext. DC, copy of judgment of Civil Court dated 06.06.1994 Ext. DD, which showed that the suit for possession was filed by plaintiffs No. 2 and 3 (now subject matter of RSA No. 551 of 2002). 21. This is in entirety the oral and documentary evidence led by the parties. 22. It is clear from the evidence led by the parties that the land in question is owned by the State of Himachal Pradesh whereupon the construction had been raised by plaintiff No. 1 alone, as it is he who has been served with the notice from the Municipal Council vide Ext. PD and Ext. PD/1. The plea of the plaintiffs is further substantiated by the statement of PW-4 Malli Ram, who worked as carpenter and mason in the shop in question. 23. On the other hand, even though defendants had taken a specific plea that they had constructed the shop jointly whereas defendant No. 1 when appeared as witness he did not examine any other witness and in his own statement he claimed that the entire amount was spent by his father-in-law Karam Din exclusively. Such statement being beyond the pleaded case was rightly discarded by the learned Courts below. 24. Thus, what stands established on record is that initially there is only one shop constructed by plaintiff No. 1 and thereafter portion thereof was given to defendants No. 1 and 2 wherein their possession was only permissive and was to be handed over to the plaintiffs as and when required by them. 25. Further the death of PW-3 Karam Din has no effect on the suit as admittedly plaintiff No. 3 was not the owner or even the lessee of Khasra No. 533 which belongs to the State Government and over which the shop had been unauthorisedly constructed by plaintiff No. 1. Therefore, there was no question of the property in dispute vesting in plaintiff No. 2 and defendant No. 2, respectively, in equal shares as contended by the learned counsel for the appellants. Accordingly question No. 1 is answered against the appellants. 26. Therefore, there was no question of the property in dispute vesting in plaintiff No. 2 and defendant No. 2, respectively, in equal shares as contended by the learned counsel for the appellants. Accordingly question No. 1 is answered against the appellants. 26. Likewise, once this Court has held that it was plaintiff No. 1, who had constructed the shop by encroaching upon Khasra No. 533, that admittedly belongs to the State Government, it was the plaintiff alone who was the owner of the same and the possession of defendant No. 1 was permissive. Therefore, this question is also answered against the appellants. 27. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed. Pending application(s) if any, also stands dismissed.