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2022 DIGILAW 1860 (ALL)

Pramod Kumar v. Devdutt Mishra

2022-11-24

DINESH PATHAK

body2022
JUDGMENT : 1. Heard learned counsel for the parties and perused the record on board. 2. Perusal of record reveals that the plaintiff-appellants has filed suit, being O.S. No. 1218 of 2012, for declaration and permanent injunction with respect to the property in question i.e. Second Floor in House No. 104-A/345 situated in the area Ram Bagh, Kanpur Nagar, as demonstrated in Schedule-"B" at the foot of the plaint. In the suit, defendant-respondent has filed written statement denying the plaint allegation and also filed counter claim with the relief to dispossess the plaintiff from the property in question. The trial court, vide judgment dated 02.04.2018, has dismissed the suit of the plaintiff as well as dismissed the counter claim filed on behalf of the defendant. Having been aggrieved against the judgment passed by the trial court, two separate appeals were filed. The defendant-respondent has filed appeal assailing the order of the trial court, by which his counter claim was rejected, being Civil Appeal No. 47 of 2018; Devdutt Mishra vs. Shiv Kishor Mishra (substituted by his heirs). On the other hand Appeal No. 64 of 2018 was preferred on behalf of the plaintiff-appellant assailing rejection of the suit. Both the appeals were decided by a common judgment dated 07.02.2020 passed by the Additional District Judge, Court No. 1, Kanpur Nagar dismissing the appeal filed on behalf of the plaintiff-appellant, however, allowing the appeal filed on behalf of the defendant-respondent and issued a direction for dispossession of the plaintiff from the property in question within a period of two months from the date of judgment. In this backdrop of the case, two second appeals were preferred by the plaintiff-appellant. Second Appeal No. 185 of 2021 has been filed assailing the judgment of the first appellate court passed in Civil Appeal No. 47 of 2018 (Devdutt Mishra vs. Kamla Devi and others) and Second Appeal No. 61 of 2022 has been preferred assailing the judgment passed in Civil Appeal No. 64 of 2018 (Shiv Kishor Mishra vs. Devdutt Mishra). 3. To avoid repetition of fact and for convenience, both second appeals i.e. Second Appeal No. 185 of 2021 and Second Appeal No. 61 of 2022 are being decided simultaneously by common judgment and the Second Appeal No. 185 of 2021 will be the leading file. 4. 3. To avoid repetition of fact and for convenience, both second appeals i.e. Second Appeal No. 185 of 2021 and Second Appeal No. 61 of 2022 are being decided simultaneously by common judgment and the Second Appeal No. 185 of 2021 will be the leading file. 4. Facts culled out from the pleading of the parties are that the plaintiff (Shiv Kishor Mishra) is claiming his right, title and interest over the property in question i.e. Second Floor in House No. 104-A/345, situated in the area Ram Bagh, Kanpur Nagar, which was purchased by his father, namely, Shyam Sunder Mishra, who was also grand-father of the defendant, from the Kanpur Improvement Trust from his own money in the name of father of the defendant, namely, Rajeshwar Prasad. On the contrary, Devdutt Mishra (defendant) has denied the right, title and interest of the plaintiff over the property in question and claimed his right, title and interest over the property in question on the basis of registered sale deed dated 21.07.1949, which was executed in favour of his father namely Rajeshwar Prasad. It is averred in written statement that, owing to family understanding, remaining family members including the plaintiff were permitted to reside in the portion of the house, therefore, he is residing as a licensee and considering his old age he has not been asked for to vacate the premises in question. 5. In deciding issue nos. 1 and 2, having considered the evidence available on record, the trial court has discarded the claim of the plaintiff over the property in question on the basis of the alleged sale deed said to have been executed by the Kanpur Improvement Trust. Courts below have returned finding of fact that copy of the sale deed dated 21.07.1949 (Paper No. 41-Ka) evince that the property was purchased by Rameshwar Prasad (father of the defendant) from its original owner, namely, Jageshwari Devi w/o Laxmi Narayan. Possession of the plaintiff over the property in question has been acknowledged by the courts below, however, given a categorical finding that his possession has not been proved valid. With respect to the counter claim of the defendant, issue no. Possession of the plaintiff over the property in question has been acknowledged by the courts below, however, given a categorical finding that his possession has not been proved valid. With respect to the counter claim of the defendant, issue no. 5 has been decided by the trial court declining the claim of the defendant as well on the ground that there are other co-sharers in the property in question along with Devdutt Mishra, who are also entitled for the property, therefore, the claim made only by Devdutt Mishra is not tenable in the eye of law. 6. On appeal being filed, in deciding point of determination no. 1, the appellate court has given a categorical finding that claim of defendant over the property in question on the basis of the sale deed has not been denied by the plaintiff in replication, which amounts admission in favour of defendant. So far as the finding of the trial court with respect to issue no. 5, negating the claim of defendant, is concerned, it is observed by the first appellate court that the trial court has lost sight of the fact that other co-sharers in the property in question have given affidavits relinquishing their right and title over the property in question in favour of Devdutt Mishra. In light of the said affidavits, appellate court has given a categorical finding that Devdutt Mishra is the sole owner of the property in question and has right to get the plaintiff dispossessed from the property in question. The appellate court has further returned finding of fact that Shiv Kishor Mishra (plaintiff) had started residing in the house with the permission of Rajeshwar Prasad (father of the defendant) and since then he is in possession over there. In light of the aforesaid finding, the appellate court has acknowledged the possession of the plaintiff as a licensee over the property in question. The appellate court has further observed that the plaintiff himself has admitted that on 09.07.2011 he has been asked to vacate the premises in question and since then i.e. dated 09.07.2011 his license will be treated to be revoked to reside in the premises in question. In light of the said fact, relief being made by the defendant to evict the plaintiff from the property in question cannot be said to be illegal. In light of the said fact, relief being made by the defendant to evict the plaintiff from the property in question cannot be said to be illegal. There is no unimpeachable and clinching evidence to prove the ownership of the plaintiff over the property in question. No case is made out for declaration in favour of the plaintiff with respect to the property in question. 7. In assailing the concurrent judgment passed by the courts below, learned counsel for the appellant has failed to point out any substantial question of law. This Court did not find any merit in the instant appeal to be entertained in exercise of power under Section 100 C.P.C. The right and title of the parties over the property in question is concluded by concurrent finding of fact returned by the courts below. The plaintiff-appellants have failed to prove their right and title over the property in question on the basis of the pleadings as made in the plaint, whereas the defendant has successfully proved his right and title over there on the basis of the registered sale deed dated 21.07.1949, which was executed in favour of his father. I do not find any perversity, illegality or infirmity in the judgments passed by the courts below to entertain the instant second appeals. No substantial question of law is made out to interfere in the concurrent findings of fact returned by the courts below. 8. Resultantly, instant appeals, being devoid of merit and misconceived, is hereby dismissed with no order as to cost. 9. Before parting, learned counsel for the plaintiff-appellants has urged for some additional time to vacate the premises in question. The first appellate court vide judgment dated 07.02.2020 has granted two months' time to the plaintiff-appellants to vacate the premises in question. Learned counsel for the appellants submits that plaintiff (substituted by his heirs) is residing over there since long and at this juncture it would be difficult for them to search new accommodation in a short span of time. It is further submitted that there is a family function, therefore, at least six months' time may be granted to the appellants to vacate the house in question. 10. It is further submitted that there is a family function, therefore, at least six months' time may be granted to the appellants to vacate the house in question. 10. Considering the strained circumstances of the plaintiff-appellants and the family function, counsel for the defendant-respondent has shown good gesture and nodded the submission as made by the counsel for the appellants seeking six months time to vacate the house in question. 11. As such, plaintiff-appellants are granted six months and no more time from order of the date to vacate the portion of the house in question. In case the premises is not vacated, they will be liable to pay rent at the rate of 25,000/- per month and will be subjected to execution/eviction proceeding initiated on behalf of the defendant under the conditions as directed by the first appellate court. It is made clear that qua their intention to vacate the house in question within six months, the plaintiff-appellants shall file their personal affidavit/undertaking before the executing court, who shall consider the same and proceed accordingly. 12. This judgment passed in the instant second appeal will also apply in connected Second Appeal No. 61 of 2022.