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2022 DIGILAW 1001 (ALL)

Mamta v. Mukhya Nagar Ayukt

2022-07-04

J.J.MUNIR

body2022
JUDGMENT : 1. This is a plaintiff's appeal arising out of a suit for mandatory injunction. 2. The plaintiff's case is that she is owner in possession of House No. 1/1232, Kundan Nagar, Chavni, District Aligarh. The details of the aforesaid house/premises are given at the foot of the plaint giving rise to the suit. The aforesaid property is hereinafter referred to as the 'suit property'. It is pleaded that the plaintiff entered into an agreement to sell relating to the suit property on 19.06.1998. It was admitted to registration on 18.08.1998. The vendor by the agreement aforesaid (for short, 'the suit agreement') covenanted to sell the suit property to the plaintiff for a total sale consideration of Rs.35,000/-. 3. It is averred that contemporaneous to the agreement, the entire contracted sale consideration of Rs.35,000/-was paid. It is also averred that actual and physical possession of the suit property was delivered to the plaintiff. The best that the Court may make out from the pleadings is that the plaintiff claims delivery of possession at the time of registration of the suit agreement. The case of the plaintiff further pleaded is that the suit property was a plot of land, whereupon the plaintiff raised a kachchi boundary wall and constructed one kachcha room. She set up her living there in the year 2000. The suit property was assessed to house tax and water tax by the defendant first set, who are the Nagar Nigam of Aligarh. A receipt for the house tax and water tax paid was issued to the plaintiff on 14.10.2000, bearing receipt No.7041. The receipt shows that a sum of Rs.1410 was paid to the Nagar Nigam. It is also the plaintiff's case that electricity and telephone connection were installed in her name on the suit property. She also holds a ration card in her name bearing the address of the suit property. 4. It is then said that on 17.01.2004, the plaintiff went over to the office of the defendant first set, the Municipal Corporation in order to deposit her house tax and water tax for the year 2004, but the Corporation refused to accept the same. The plaintiff claims to have addressed a complaint to the Corporation. On 28.01.2004, the Corporation issued a notice to the plaintiff asking her to show her title papers relating to the suit property. The plaintiff claims to have addressed a complaint to the Corporation. On 28.01.2004, the Corporation issued a notice to the plaintiff asking her to show her title papers relating to the suit property. The plaintiff asserts that she submitted all documents with the Corporation/ defendant first set. She also asserts that notice dated 28.01.2004 was replied to on 11.02.2004. 5. The plaintiff goes on to say that the defendant second set served a legal notice dated 03.02.2004 claiming ownership of the suit property and asking the plaintiff to vacate the same. The defendant second set also demanded rent from the plaintiff. The notice dated 03.02.2004 was answered by the plaintiff vide her reply dated 19.02.2004, refuting all claims to ownership of the suit property by the defendant second set. It is then asserted that the defendant first set/ the Corporation were adamant not to register the plaintiff's name. Accordingly, the plaintiff got a registered sale deed relating to the suit property executed on 20.02.2004, removing all doubts if at all about her title to the suit property. The Corporation, however, persisted in their refusal to record the plaintiff's name despite the sale deed dated 20.02.2004 produced before them. Instead, the plaintiff received a notice from the Corporation dated 28.07.2004 asking to get her title decided by a Court of competent jurisdiction. The plaintiff says that in order to establish her ownership to the suit property, she has instituted the present suit. She asserts that she has done so because the defendant second set has thrown a cloud of doubt over her title. Accordingly, the plaintiff instituted the suit giving rise to this appeal before the Civil Judge (Sr. Div.), Aligarh bearing O.S. No.961 of 2004. It would be apposite to extract the relief that the plaintiff claimed in the suit when confronted about her title by defendant no.1 at the instance of defendant no.2. The material relief claimed reads: “a. That a decree of Mandatory Injunction be passed in favour of the plaintiff and against the defendant I and II set whereby the defendant I should be directed to inter the name of the plaintiff on the rolls of Municipal record by removing the name of the defendant II set of the house detailed at the foot of the plaintiff.” 6. The defendant first set/ the Corporation filed their written statement saying that the plaintiff has not clarified that how and on what basis she claims title to the suit property. The Corporation pleaded that they have rightfully struck off her name from their assessment records. It was also asserted that the Corporation have been unnecessarily impleaded. The defendant second set holds a sale deed relating to the suit property, that is prior in time to the plaintiff's. The plaintiff is neither the owner nor holds possession of the suit property. If the plaintiff by some error of the Corporation's employees had succeeded in getting her name mutated in the assessment records and deposited some money towards tax, that does not bind the Corporation to hold that mutation intact. Upon the defendant second set contacting the Corporation together with her sale deed, the Corporation came to know of the correct facts and then the plaintiff's name, wrongfully mutated, was struck off. The plaintiff has to establish her title before a Court of competent jurisdiction. The dispute of title is between the plaintiff and the defendant second set. The Corporation have no concern with that dispute. The Corporation are bound to comply with the decree that the Court of competent jurisdiction passes. As such, a mandatory injunction directing the Corporation to mutate the plaintiff's name is not maintainable. It was pleaded that the suit is barred by Order VII Rule 11 CPC, besides Section 571 of the Uttar Pradesh Municipal Corporation Act, 1959 (for short, 'the Act of 1959'). There was also a plea taken that the suit is barred by Sections 34 and 39 of the Specific Relief Act, 1963. 7. The defendant second set filed a separate written statement asserting that the plaintiff is neither the owner nor in possession of the suit property. She has asserted that the plaintiff's name has rightly been struck off by the Corporation from the assessment records. It is averred that on the basis of mere allegations the plaintiff cannot be held to be owner of the suit property. The second defendant is owner in possession of the suit property on the basis of a registered sale deed dated 14.02.2003, and is residing there after building her house. The plaintiff is not in possession of the suit property. The second defendant is owner in possession of the suit property on the basis of a registered sale deed dated 14.02.2003, and is residing there after building her house. The plaintiff is not in possession of the suit property. It is asserted that the suit agreement is not acceptable to the second defendant and possession pleaded on its strength is without basis. It is also averred that the fact, that the plaintiff got herself fraudulently recorded in the Corporation's tax assessment records and paid some house tax and water tax, would not bind the defendant second set. The plaintiff has not been able to establish her title. She cannot derive any right or title on the basis of a mere assessment of house tax and water tax relating to the suit property in her name. It is specifically averred that the defendant second set purchased the suit property through a registered sale deed dated 14.02.2003 and took possession under the said conveyance, whereafter the plaintiff cannot, by any deed, possibly acquire title to the suit property. The plaintiff has no right to question the second defendant's ownership or title to the suit property. The sale deed dated 20.02.2004 set up by the plaintiff is ineffectual. No cause of action has arisen to the plaintiff to sue for the relief claimed. 8. On the pleadings of parties, the Trial Court framed the following issues (translated into English from Hindi): “(1) Whether the plaintiff is the owner in possession of the property in dispute? (2) Whether the suit is barred by Section 571 of the U.P. Municipal Corporation Act? (3) Whether the suit is undervalued and the court fee paid insufficient?” (4) Whether the suit is barred under Order VII Rule 11 CPC? (5) Whether the suit is barred by the provisions of Sections 34 and 39 of the Specific Relief Act? (6) Relief.” 9. The plaintiff by way of her documentary evidence, filed through a list, house tax receipt issued by the Corporation dated 20.10.2000, the letter/notice dated 28.01.2004 issued by the Corporation and the sale deed dated 20.02.2004 in original. The plaintiff examined herself as PW-1 in support of her case. 10. (6) Relief.” 9. The plaintiff by way of her documentary evidence, filed through a list, house tax receipt issued by the Corporation dated 20.10.2000, the letter/notice dated 28.01.2004 issued by the Corporation and the sale deed dated 20.02.2004 in original. The plaintiff examined herself as PW-1 in support of her case. 10. The defendants filed through a list, bearing paper No. 25 ?, the memorandum of cancellation dated 29.08.1998, the search application in original, the house tax assessment, receipts of house tax and water tax and the sale deed dated 14.02.2003. The defendant second set, Smt. Kanta Devi examined herself in support of her case as DW-1 and one Ashok Kumar was examined as DW-2. Besides these witnesses, two others filed their affidavit in lieu of their examination-in-chief on behalf of the defendant, but did not appear in the witness-box to face cross-examination. 11. The Trial Court decided Issue No.1 in favour of defendant no.2 and against the plaintiff on more than one premise. It was held by the Trial Court that the sale deed in favour of the defendant second set was one dated 14.02.2003 whereas that in favour of the plaintiff was dated 20.02.2004. It was further held that the agreement to sell of the year 1998 had been cancelled by the plaintiff herself. It was also opined that if the plaintiff's sale deed was a document that in fact conveyed the suit property to her, she should have brought a suit for cancellation against the defendant second set, asking the latter sale deed (prior in point of time) to be cancelled. It was also held that so far as the possession is concerned, the plaintiff had averred that she had a ration card in her name and electricity connection, besides a telephone connection, but none of those documents have been put in evidence. Therefore, so far as the question of possession is concerned, the Trial Court seems to have held that the plaintiff failed to discharge her onus probandi under Section 102 of the Indian Evidence Act. 12. So far as the bar of the suit under Section 571 of the Act of 1959 and the plaint being worth rejection under Order VII Rule 11 CPC are concerned, the relative issues, that is to say, Issues Nos.2 and 4 were decided against the defendants and in favour of the plaintiff. 12. So far as the bar of the suit under Section 571 of the Act of 1959 and the plaint being worth rejection under Order VII Rule 11 CPC are concerned, the relative issues, that is to say, Issues Nos.2 and 4 were decided against the defendants and in favour of the plaintiff. The suit was also held not barred by the provisions of Sections 34 and 39 of the Specific Relief Act. The Trial Court, in consequence of its findings recorded on Issue No.1, dismissed the suit with costs. 13. The plaintiff appealed to the District Judge of Aligarh vide Civil Appeal No.81 of 2016. The appeal upon assignment came up before the Additional District Judge, Court No.5, Aligarh on 29.09.2021. The appeal was dismissed with costs and the decree of the Trial Court affirmed. 14. Aggrieved, this appeal from the appellate decree has been preferred. 15. Heard Mr. Divakar Rai Sharma, learned Counsel for the plaintiff-appellant in support of the motion under Order XLI Rule 11 CPC and Mr. Vijay Kumar Dwivedi, learned Counsel appearing on behalf of respondent No.2-defendant second set, both through Video Conferencing. 16. Before the Lower Appellate Court, documents such as the electricity bills, telephone bills and the ration card, that were never filed before the Trial Court, were brought on record through an application under Order XLI Rule 27 CPC. It must be remarked that the Lower Appellate Court in deciding the appeal has framed very effective points for determination and in deciding those points has done a careful sifting of all evidence on record with reference to the parties' case. 17. The Lower Appellate Court's remarks about two matters are very pertinent. It has been recorded by the Lower Appellate Court on a perusal of the suit agreement that contrary to the plaint case about possession being delivered in part performance of the agreement, there is a clear recital to the effect that the vendee has not been delivered possession of the suit property. Secondly, the Lower Appellate Court says that whereas the plaint case is that the entire sale consideration of Rs.35,000/-was paid at the time of execution of the suit agreement, the agreement carries a clear recital that a sum of Rs.17,000/-out of the agreed consideration had been paid and the balance shall be paid at the time of execution of the sale deed. These are indeed very pertinent remarks that go to belie the plaintiff's case about the sale deed later on executed in her favour and certainly hits at the bottom of her case about possession being delivered to her in part performance of the suit agreement by the vendee upon receipt of the entire sale consideration. 18. If one were to ignore the memorandum of cancellation of the agreement attributed to the plaintiff as it is an unregistered document, there is no earthly reason why in respect of an agreement of the year 1998, a sale deed would come to be executed in the year 2004. The submission of the learned Counsel for the plaintiff in this regard is that this delay was apparently on account of the fact that the plaintiff was in peaceful possession of the suit property, after being delivered possession thereof in part performance of the suit agreement. The plaintiff's name had also been mutated. In those circumstances, the sale deed was not got executed. This contention of the plaintiff is not borne out from the record. The Lower Appellate Court has very rightly opined that the suit agreement specifically excludes delivery of possession by saying that possession has not been delivered to the vendee. The documents relating to possession were not filed before the Trial Court but in appeal, which have not been believed by the Lower Appellate Court to represent the true state of facts about possession. There is no reason for this Court to consider that finding to be perverse in the face of a clear recital in the suit agreement that possession was never delivered to the vendee/ plaintiff. 19. Quite apart, there are some very queer features of the case springing from the way, the plaintiff's case has been set out in the plaint. Interestingly, that holds true in some measure for the defendant also. The plaintiff is absolutely silent in her pleadings about the identity of the person, who executed the suit agreement, or for that matter the sale deed dated 20.02.2004 in her favour. The two Courts of fact below, however, have found the sale deed dated 14.02.2003, whereupon the defendant second set founds her rights and that dated 20.02.2004 to have been executed on behalf of the same vendees. The two Courts of fact below, however, have found the sale deed dated 14.02.2003, whereupon the defendant second set founds her rights and that dated 20.02.2004 to have been executed on behalf of the same vendees. On the basis of this finding, the sale deed in favour of the defendant second set being prior in point of time, the subsequent sale deed has been rightly considered ineffectual. 20. The most exceptionable matter about the plaintiff's case is that once she was aware that there is an earlier sale deed in favour of the defendant second set, the plaintiff ought to have sued for cancellation of the said sale deed and then sought consequential relief. The plaintiff instead has sought a mandatory injunction simplicitor against the Municipal Corporation to re-enter her name in the house tax assessment record. This kind of relief in the face of a title dispute, in the clear opinion of this Court, would render the suit not maintainable. No effective relief could at all be granted to the plaintiff unless she sued for cancellation of the sale deed dated 14.02.2003 in favour of the defendant second set. An appropriate declaratory relief together with the relief of cancellation ought also have been sought. By no means, a mere mandatory injunction to restore the plaintiff's name in the house tax assessment records directed against the Municipal Corporation would entitle the plaintiff's challenged title on the strength of an earlier registered conveyance to be possibly vindicated. This Court must say that the suit is one that is utterly ill-framed and utterly ill-advised. Nevertheless, the Courts below have tried the issue of title and possession both. They could have refused to go into the question of title, there being neither a relief of declaration or cancellation claimed. But, they have examined the issue in the minutest details and found in favour of the defendant second set. The Courts below have accepted the defendant second set's title as valid based on the registered sale deed in her favour that is in earlier point of time over that claimed by the plaintiff. There is absolutely no flaw in the findings about title and possession recorded concurrently by the Courts below. 21. In the opinion of this Court, no substantial question of law arises for consideration in this appeal. 22. This appeal fails and is dismissed under Order XLI Rule 11 CPC.