Research › Search › Judgment

Himachal Pradesh High Court · body

2022 DIGILAW 469 (HP)

Bhavishya Gautam, S/o. Sh. Subhash Chand Gautam v. Veena Aggarwal, W/o. Sh. Sudhir Kumar

2022-08-22

SANDEEP SHARMA

body2022
JUDGMENT : By way of instant Regular Second Appeal, filed under S. 100 CPC, challenge has been laid to judgment and decree dated 31.10.2019 passed by learned District Judge, Sirmaur at Nahan, Himachal Pradesh in Civil Appeal No. 20-CA/13 of 2019, affirming judgment and decree dated 27.2.2019 passed by learned Civil Judge Nahan, District Sirmaur, Himachal Pradesh, in Civil Suit No. 109/1 of 2014, whereby suit for declaration and permanent prohibitory injunction restraining the applicants/defendants (hereinafter, ‘defendants’) from causing obstruction in the use of parking below residential accommodation of the respondents/plaintiffs (hereinafter, ‘plaintiffs’) came to be decreed. 2. Precisely, the facts of the case, as emerge from the record, are that that the plaintiffs filed a suit for declaration and permanent prohibitory injunction against the defendants inter alia on the ground that defendant No.1, who was owner-in-possession of Khewat Khatauni No. 373/588, Khasra No. 2228/103/1 measuring 119.86 square metres situate at Mohalla Chakrera, Nahan, District Sirmaur, Himachal Pradesh (old), Khewat Khatauni No. 412/630, Khasra No. 2397/2228/103 (new) (hereinafter, ‘suit land’) constructed residential building containing flats on the basis of map duly sanctioned by Municipal Committee Nahan. Plaintiffs claimed in the plaint that the ground floor was sanctioned as parking floor for the owners and they purchased flats vide registered sale deeds with parking facility and defendant No.1 has no right, title or interest to sell or lease the ground floor of suit property. It is averred by the plaintiffs that defendant No.1 illegaly and unauthorizedly entered into lease deed with defendant No.2 Dev Raj Saini, leasing out parking area to him for the purpose of catering business and as such, he be restrained from causing any type of interference in ground floor of suit property and decree of mandatory injunction be also passed to mark parking area of owners in the suit building. 3. Aforesaid claim of the plaintiffs came to be resisted by defendant No.1 on the ground that he was owner of suit land and therefore, had every right, title and interest over the same including the ground floor. Defendant No.1 averred in the written statement that the suit was misconceived and plaintiffs have no right, title or interest over the over the suit property and ground floor of the building. Defendant No.1 averred in the written statement that the suit was misconceived and plaintiffs have no right, title or interest over the over the suit property and ground floor of the building. While fairly admitting the factum with regard to sale of flats made in favour of plaintiffs, defendant No.1 claimed that at no point of time he had sold ground floor to the plaintiffs and as such, they cannot estop him from leasing out that area to defendant No.2. On the basis of aforesaid pleadings, learned court below framed following issues: (1) Whether the ground floor of the building owned by defendant No.1 was sanctioned for parking to the falt owners including the plaintiffs, as alleged? OPP (2) Whether the defendant No.1 has no right, title or interest in the building after selling the entire floors including the ground for parking, as alleged? OPP (3) Whether the lease of ground floor by defendant No.1 in favour of defendant No.2 is illegal, null and void and is not binding upon the plaintiffs and other flat owners and liable to be declared so, as alleged, if so its effect? OPP (4) Whether the suit is not maintainable in the present form, as alleged? OPD (5) Whether the plaintiffs have no cause of action to file the present suit, as alleged? OPD (6) Whether the suit is improperly valued for the purposes of court fee and jurisdiction, as alleged? OPD (7) Whether the plaintiffs have no right, title or interest over the in the suit land and ground floor of building, as alleged? OPD (8) Whether the lease deed dated 09-07-2014 in favour of defendant No.2 is legal and valid and conforms absolute rights, title and interest in favour of defendant No.2, if so its effect? (9) Whether the plaintiffs have not come to the court with clean hands, as alleged? OPD (10) Relief. 4. Subsequently, on the basis of the pleadings and evidence led on record by respective parties, learned trial Court decreed the suit of the plaintiffs vide judgment and decree dated 27.2.2019, thereby declaring the lease deed dated 7.9.2014 to be illegal, and not binding upon the plaintiffs. Learned court below also passed decree for permanent prohibitory injunction restraining the defendants from causing any type of interference in ground floor of the building. 5. Learned court below also passed decree for permanent prohibitory injunction restraining the defendants from causing any type of interference in ground floor of the building. 5. Being aggrieved and dissatisfied with the judgment and decree passed by learned trial Court, defendants filed an appeal in the court of learned District Judge Sirmaur at Nahan, but same was also dismissed vide judgment and decree dated 31.10.2019. In the aforesaid background, defendants have approached this court in the instant proceedings, praying therein to set aside the judgment and decree passed by both the learned courts below. 6. I have heard the parties and gone through the records. 7. It is not in dispute that defendant No.1, after construction of the residential building on the suit land, sold three different flats to the plaintiffs. It is also not in dispute that the construction of residential building was done strictly as per plan sanctioned by the Municipal Committee Nahan. Both the learned courts below, after having taken note of evidence collected on record by respective parties, be it ocular or documentary, have returned concurrent findings of fact that defendant No.1 sold flats to the plaintiffs alongwith parking facility in the Ground Floor. Sale deeds placed on record clearly reveal that the flat owners/plaintiffs were provided with parking for one vehicle in the Ground Floor of the building and as such, it is not understood that on what basis, defendant No.1 could further lease out said area to defendant No.2 enabling him to do his catering business. 8. Plaintiffs while examining themselves as PW-3 and PW-4, namely Veena Aggarwal and Dr. SM Ali, have successfully proved on record that they had purchased flats from defendant No.1 for sum of Rs. 8-9 Lakh and Rs. 20.00 Lakh, respectively and entire sum was paid by them at the time of execution of sale deed in their favour. Both witnesses have categorically stated that defendant No.1 apart from selling flats to them also agreed to provide parking for one vehicle on the Ground Floor. If the cross-examination conducted upon these witnesses is read in its entirety, there is nothing to suggest that defendants were able to extract anything contrary to what these witnesses stated in his examination-in-chief. 9. Both witnesses have categorically stated that defendant No.1 apart from selling flats to them also agreed to provide parking for one vehicle on the Ground Floor. If the cross-examination conducted upon these witnesses is read in its entirety, there is nothing to suggest that defendants were able to extract anything contrary to what these witnesses stated in his examination-in-chief. 9. PW-1 Lalit Goyal, Junior Engineer, Municipal Committee while proving map of Khasra No. 2238/103/1 categorically stated that the map was approved by Municipal Committee Nahan, Exhibit PW-1/A and as per map, Ground Floor was approved for parking and as per Rules, it can be used only for parking purpose. 10. PW-2 Naresh Kumar official from the office of Registrar, while proving summoned record categorically deposed that on 9.7.2014, lease deed was registered in his office vide Sr. No. 574 of 2014 in favour of Bhavishya Gautam. He proved copy of Jamabandi Ext. PW-2/A-1, copy of letter of MC Nahan, Ext. PW-2/A-2 and copy of map Ext. PW-2/A-3. Exhibit PW-2/C, exhibited by plaintiff Bhavishya Gautam in favour of plaintiff No.1 Veena Aggarwal. Aforesaid witness also stated that on 19.9.2013 vide registration No. 734 of 2013, Kamlesh Goel executed sale deed in favour of Ajay Kumar i.e. Exhibit PW-2/D. If statements of all the prosecution witnesses are read in conjunction juxtaposing each other, it stands proved that they purchased the flats from defendant No.1 alongwith parking facility available on Ground Floor. It also stands established from the statement made by PW-1 Lalit Goyal, Junior Engineer that the Ground Floor was approved for the purpose of parking and same could be used only for parking. 11. If the statement of DW-1 is read in its entirety, he nowhere disputed the factum with regard to sale of flats in favour of the plaintiffs. He also admitted the factum with regard to sanctioning of map by Municipal Committee Nahan. He also admitted that map was approved for four plus one storeyes residential floors and parking. While denying the suggestion that as per Municipal Committee Rules, it is compulsory to have parking, he himself stated that he constructed the parking for his personal use. However, he admitted that map was approved qua Ground Floor by Municipal Committee for the purpose of parking only. 12. While denying the suggestion that as per Municipal Committee Rules, it is compulsory to have parking, he himself stated that he constructed the parking for his personal use. However, he admitted that map was approved qua Ground Floor by Municipal Committee for the purpose of parking only. 12. DW-2 PS Verma, Labour Inspector admitted that as per licence, address of Dev Raj Saini, defendant No.2 is 2341/, Kundan Ka Bagh, Nahan. He feigned ignorance qua the fact that defendant No.2 is having godown of his tent house in Mohalla Chakrera and also a caterer. 13. Having scanned the entire material on available on record, this court finds that the plaintiffs have corroborated their stand by placing on record cogent and convincing evidence, whereas, defendant No.1 was not able to prove to the contrary. Onus to rebut the sale deeds was very much upon the defendant No.1, but he failed to discharge the same rather admitted the factum with regard to sale of flats to the plaintiff. Once he admitted that parking floor was approved by Municipal Committee Nahan, he otherwise could not have leased out the same to defendant No.2 especially when documents tendered on record reveal that the plaintiffs were given right of parking their one vehicle alongwith flat. There is no question of law, much less substantial question one, for adjudication in the case and as such, appeal deserves outright dismissal. 14. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the defendant with regard to maintainability and jurisdiction of this Court, while examining concurrent findings of law and facts returned by both the Courts below. Learned counsel for the respondents, invited the attention of this Court to the judgment passed by Hon’ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264 , wherein the Hon’ble Supreme Court has held: “16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” (p.269) 15. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Apex Court and true it is that in normal circumstances High Court, while exercising powers under Section 100 CPC, is restrained from re-appreciating the evidence available on record. 16. The Hon'ble Apex Court in Parminder Singh versus Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under: “14) In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal.” 17. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, deserve to be upheld. 18. Consequently, in view of detailed discussion made herein above, I find no merit in the appeal at hand, which is accordingly dismissed. Judgments and decrees passed by learned Courts below are upheld. Pending applications, if any, are disposed of. Interim directions, if any, stand vacated.