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2022 DIGILAW 2076 (RAJ)

Ganesh Narain v. Prem Chand

2022-07-20

SUDESH BANSAL

body2022
JUDGMENT 1. Appellant-plaintiff, who claims his tenancy in the shop in question has preferred this second appeal under Section 100 of Code of Civil Procedure (CPC), assailing the judgment and decree dated 08.04.1992 passed in Civil First Appeal No.117/86 by the Court of Additional District & Sessions Judge No.1, Jaipur City, Jaipur, dismissing the appeal and affirming the judgment and decree dated 25.07.1986 in Civil Suit No. 110/76 by the Court of Additional Munsif and Judicial Magistrate (East), Jaipur City, Jaipur whereby and whereunder the plaintiff's suit for injunction has been dismissed on merits. 2. Heard counsel for both parties and with their assistance perused the impugned the judgments and record. 3. Parties in this appeal would be referred hereinafter with the same nomenclature as they were called before the trial court, it means appellants as plaintiffs and respondents as defendants. 4. From the record, it appears that appellant-plaintiff namely Ganesh Narain along with two other persons, namely Ramjani and Gauri Lal jointly instituted a civil suit for permanent injunction way back on 20.06.1974, alleging inter alia that three separate shops situated at Mehndi ka Chowk, Jaipur, were in their tenancy and they were independent tenants of the erstwhile owner Sh. Phoolchand Jain. The property with tenanted shops, was said to be purchased by respondent-defendant-Prem Chand and as such they became tenants of purchaser Premchand. Appellant-plaintiff Ganesh Narian alleged that the shop in question was let out to him @ Rs.3/- per month thereafter rent was increased to Rs.6/- per month and then again the same was increased to Rs.8/- month and the last agreed rent with defendant is @ Rs.21.25/- per month. Plaintiffs referred in the suit that one compromise deed dated 21.05.1974, was executed between parties and thereby the plaintiffs vacated their tenanted shops and permitted the defendant-landlord to dismantle the shops in order to re-construct the building as a whole. It appears that thereafter the defendant- landlord proceeded to demolish the construction of shops, however, plaintiff led the present suit for injunction on 20.06.1974, after expiry of one month from the date of compromise deed i.e. 21.05.1974. It appears that thereafter the defendant- landlord proceeded to demolish the construction of shops, however, plaintiff led the present suit for injunction on 20.06.1974, after expiry of one month from the date of compromise deed i.e. 21.05.1974. Surprisingly, plaintiffs although admitted the execution of the compromise deed dated 21.05.1974, however, themselves challenged & disputed the compromise deed and claimed to declare this compromise deed as null and void on the grounds that the same was got executed and signed under duress and taking benefit of the dominating position by the defendant-landlord. Plaintiffs made a prayer for issuing an injunction against the defendant-landlord that their tenanted shops in question may not be demolished in furtherance to the compromise deed dated 21.05.1974 and the part which has already been demolished be re-constructed. It may be noticed that after institution of the suit, time to time amendments were carried out in the plaint. 5. Defendant-landlord submitted written statement on 03.10.1974 and categorically stated that all three plaintiffs have vacated their rented shops and permitted the defendant to demolish their shops as agreed in the compromise deed dated 21.05.1974. Defendant stated in specific terms that shops have been demolished completely and the plaintiffs are having no possession, as such their suit for injunction is not sustainable. The defendant took a specific plea that plaintiffs have not filed a suit for restoration of possession and in view of the terms of the compromise deed dated 21.05.1974, once the plaintiffs have vacated their rented shops, same have been demolished, the present suit for injunction has become infructuous. Defendant submitted amended written statement to the amended plaint, time to time. 6. Learned trial court as per rival pleadings of parties framed issues and allowed parties to adduce evidence. 7. During course of trial, plaintiffs No.1 and 2 namely Ramjani and Gauri Lal had withdrawn their suit, which was permitted vide order dated 27.11.1980. Hence, the present suit was continued only by and at behest of the present appellant-plaintiff No.3 Ganesh Narain. 8. Learned trial court, vide its judgment dated 25.07.1986, has recorded a fact finding that the shop in question, wherein plaintiff Ganga Narain claimed his tenancy, had already been demolished completely. The plaintiff himself as PW.1 and his witness PW.2, PW.3 and PW.4 did not dispute the factum that the shop in question has demolished. 8. Learned trial court, vide its judgment dated 25.07.1986, has recorded a fact finding that the shop in question, wherein plaintiff Ganga Narain claimed his tenancy, had already been demolished completely. The plaintiff himself as PW.1 and his witness PW.2, PW.3 and PW.4 did not dispute the factum that the shop in question has demolished. Further, this fact was verified by the report of the Court Commissioner dated 17.09.1974 (Ex.28). Therefore, in view of the undisputed position that the shop in question has already been demolished, the prayer for injunction as made in the present suit has rendered infructuous. Nevertheless, the trial court proceeded to consider the challenge by the plaintiff to the compromise deed dated 21.05.1974 (Ex.A1). 9. With regard to the compromise deed dated 21.05.1974 (Ex.A1), plaintiff has not disputed that the same was executed between the parties to the suit and plaintiff put his thumb impression along with two other plaintiffs-tenants namely Ramjhani & Gauri Lal on the document of compromise deed. The plaintiff challenged the compromise deed dated 21.05.1974 on various grounds, including that the same was executed taking benefit of dominating position of the landlord and under duress. All grounds were considered by trial court independently. The trial court while deciding issue No.2, concluded that the plaintiff has executed the compromise out of his free will. Each & every ground of challenge to this compromise deed dated 21.05.1974, was declined. The trial court observed that this is a case, where the plaintiff himself has vacated his shop and permitted the landlord to demolish the shop vide compromise deed dated 21.05.1974 but after near about one month, has instituted the present suit for injunction on 20.06.1974 to stop the demolition and asking for reconstruction, which cannot be treated as bonafides on his part. Moreover, when the shop had already been demolished and plaintiff is out of possession, there is no justification to institute the suit for injunction. The trial court examined the terms of compromise deed dated 21.05.1974 and observed that there is no agreement for restoration of the possession of the shop in question to plaintiff after re-construction of building and moreso the plaintiff has not instituted any suit for restoration of his possession. The trial court examined the terms of compromise deed dated 21.05.1974 and observed that there is no agreement for restoration of the possession of the shop in question to plaintiff after re-construction of building and moreso the plaintiff has not instituted any suit for restoration of his possession. The trial court noticed that defendant has not disputed the execution of the compromise deed dated 21.05.1974, rather has contended that the agreement between parties, was to the effect that after demolition of the shop in question, if the plaintiff would like to take the re-constructed the shop on lease, the same can be done on the fresh terms as agreed. Thus with such understanding the compromise deed dated 21.05.1974, was executed with all tenants. Therefore, even as per conditions mentioned in the compromise deed dated 21.05.1974, this is not the case that the plaintiff had reserved any right for restoration of his possession over the shop in question. Once plaintiff himself voluntarily vacated the suit shop and handed over its vacant possession to defendant for the purpose of demolition, his suit for injunction is not bonafide. Further when it is an admitted case of plaintiff that suit shop has already been demolished, his prayer for injunction has become infructuous. On appreciation of the respective case of both parties with context to the conditions mentioned in the compromise deed dated 21.05.1974, the relief claimed by the plaintiff in mandatory form to injunct defendant to re-construct the part of the shop, which has been demolished, was also declined. Finally, the suit was dismissed vide judgment and decree dated 25.07.1986. 10. Plaintiff assailed the judgment and decree dated 25.07.1986 by filing first appeal. The first appellate court re-heard and re- considered the matter as a whole. The first appellate court observed in its judgment that it appears that plaintiff himself has agreed to hand over the possession of suit shop with condition that after re-construction, the same can be let out on fresh conditions of tenancy, as agreed between parties. But after the compromise deed dated 21.05.1974, the intention of plaintiff has turned ill and plaintiff himself has challenged the compromise deed rather has invited litigation. The plaintiff has not prayed for restoration of his possession on the suit shop. But after the compromise deed dated 21.05.1974, the intention of plaintiff has turned ill and plaintiff himself has challenged the compromise deed rather has invited litigation. The plaintiff has not prayed for restoration of his possession on the suit shop. Considering overall facts and circumstances and the fact that the shop in question had already been dismantled, the first appellate court concurred with the fact findings of the trial court and dismissed the first appeal on merits vide judgment and decree dated 08.04.1992. It may be noticed here that during course of first appeal from the side of plaintiff, an interim injunction was prayed on 25.05.1992 that the defendant-landlord be restrained not to let out the re-constructed shop. In reply, the defendant has contended that the shop has already been let out to one Sh. Subhash Chand through rent note dated 10.04.1992 @ Rs.300/- per month. Accordingly, no interim order was passed in favour of appellant-plaintiff at the stage of first appeal. 11. Against the concurrent findings of fact with regard to the demolition of the suit shop and execution of the compromise deed dated 21.05.1974 by the plaintiff, this second appeal has been preferred. 12. In this second appeal, the Co-ordinate bench of this Court vide order dated 12.08.1994 proposed and framed following substantial question of law for consideration:- "(I)Whether the respondent is not bound to restore back the possession of the property in dispute to the appellants from whom admittedly he had taken the possession thereof, under an agreement to restore back the same, after being re-constructed?" 13. As per the factual matrix mentioned hereinabove and as per the material available on record, it may be noticed at the outset that firstly, in the compromise deed dated 21.05.1974 (Ex.A1), there is no such condition for restoration of the possession of plaintiff after re-construction of the shop, both courts have considered the document of compromise deed dated 21.05.1974 (Ex.A1) and have observed so. Secondly, the plaintiff has not instituted any suit for restoration of possession placing reliance on the terms of compromise deed dated 21.05.1974, on the contrary, plaintiff has challenged the compromise deed and claimed that the same be declared as null and void and has only instituted a simplicitor suit for injunction. Secondly, the plaintiff has not instituted any suit for restoration of possession placing reliance on the terms of compromise deed dated 21.05.1974, on the contrary, plaintiff has challenged the compromise deed and claimed that the same be declared as null and void and has only instituted a simplicitor suit for injunction. Thirdly, as far as the suit for injunction is concerned, the same has rendered infructuous in view of undisputed fact and admission of plaintiff himself as well as his witnesses that the suit shop had demolished pursuant to the agreed terms of compromise deed dated 21.05.1974. The plaintiff himself admits the factum of demolition of shop and more so this fact stands fortified by the report of the Court Commissioner. Despite such undisputed factual aspects, plaintiff has not got amended the plaint for restoration of his possession back. Apparently for the reason, plaintiff did not reserve his right of restoration of possession but agreed that after reconstruction of shop, he would take the new shop on lease, as per the agreed terms. Thus, plaintiff has no vested and reserved right for seeking restoration of his possession. The respondent too is not under any legal obligation to restore the possession of plaintiff, as there is no such agreed condition in the compromise deed. The prayer made in the plaint that the defendant should re-construct the part of the shop which has been demolished, cannot be granted and has rightly been declined by both courts in absence of any such agreed conditions in the compromise deed dated 21.05.1974. 14. Both courts have relied upon the contention of the defendant-landlord that even as per the agreed conditions mentioned in the compromise deed dated 21.05.1974, the shop in question could have been let out to the plaintiff after re- construction only on the fresh agreed terms and conditions. Since it is not the case of plaintiff that he ever prayed to have a fresh lease of the reconstructed shop, the same is not the scope of the present suit. Plaintiff has come out with a different theory, which is detrimental to his own interest and contrary to terms of compromise deed. In such backdrop of factural matrix and the material available on record, the question of law referred hereinabove is not liable to be answered affirmative in favour appellant. Plaintiff has come out with a different theory, which is detrimental to his own interest and contrary to terms of compromise deed. In such backdrop of factural matrix and the material available on record, the question of law referred hereinabove is not liable to be answered affirmative in favour appellant. Hence, the substantial question of law is decided and answered in negative against the appellant. No other substantial question of law has been proposed/suggested by the appellants during course of arguments. 15. The Hon'ble Supreme Court in case of Umerkhan Vs. Bismillabi Shaikh & Ors. Reported in [ (2011) 9 SCC 684 ] has observed that if a second appeal is admitted on substantial question of law, while hearing the second appeal finally, the court can re-frame the substantial question of law or can frame new substantial question of law or even can hold that the substantial question of law as already framed do not fall within the purview of substantial question of law but the High Court cannot exercise its jurisdiction under Section 100 CPC, without formation/involvement of substantial question of law. 16. The Honb'le Supreme Court in case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar [ (1999) 3 SCC 722 ] and catena of other judgments passed in case of Pakeerappa Rai Vs. Seethamma Hengsu & Ors., [ (2001) 9 SCC 521 ], Thulasidhara & Anr. Vs. Narayanappa & Ors., [ (2019) 6 SCC 409 ], Bholaram Vs. Ameerchand, [ (1981) 2 SCC 414 ], Ishwar Das Jain Vs. Sohan Lal, [ (2000) 1 SCC 434 ], State of Madhya Pradesh Vs. Sabal Singh & Ors., [ (2019) 10 SCC 595 ] and D. Doddanarayan Reddy and Ors. Vs. C. Jayarama Reddy and Ors. Reported in [ (2020) 4 SCC 659 ] has categorically held that at the stage of second appeal, fact findings recorded by two Courts below, based on appreciation of evidence, should be honoured and must not be interfered with unless and until there is some perversity, illegality or jurisdictional error, which leads manifest injustice. Once findings of fact recorded by two Courts below are justified and based on due appreciation of evidence, re-appreciation of evidence at the stage of second appeal in order to draw a different conclusion is not warranted. Once findings of fact recorded by two Courts below are justified and based on due appreciation of evidence, re-appreciation of evidence at the stage of second appeal in order to draw a different conclusion is not warranted. The scope of second appeal is confined to examine substantial question of law, which are sine qua non to exercise powers under Section 100 of CPC. 17. After passing the judgment on merits, it may be observed here that the persuasion of this second appeal at behest of legal representatives of deceased appellant-plaintiff on merits despite the admitted fact that the suit shop had already been demolished in the year 1974, in furtherance to the agreed conditions of compromise deed dated 21.05.1974, executed by the appellant-plaintiff himself, cannot be appreciated. A period of about 48 years have passed and since then the plaintiff is out of possession. However, since the second appeal was admitted for hearing and remained pending for a long period, without any benefits to the appellants, hence this Court is refraining itself to impose any cost on appellants. 18. After the discussion made hereinabove, this second appeal is hereby dismissed. 19. All other pending application(s), if any, also stand(s) disposed of. 20. Record of both courts below be sent back. 21. There is no order as to costs.