Tripura High Court
Shri Goutam Saha vs Shri Haradhan Saha on 29 June, 2018
HIGH COURT OF TRIPURA
AGARTALA
RSA No.01 of 2015
1. Shri Goutam Saha,
son of late Rajmohan Saha
2. Smt. Nilima Saha,
wife of Shri Goutam Saha
- both are the residents of Durgabari Road,
P.O. Agartala, P.S. West Agartala,
District: West Tripura
----Appellant(s)
Versus
Shri Haradhan Saha,
son of late Rajmohan Saha,
resident of Durgabari Road, P.O. Agartala,
P.S. West Agartala, District: West Tripura
---- Respondent(s)
For Appellant(s) : Mr. S. Deb, Sr. Adv.
Mr. S.M. Chakraborty, Sr. Adv.
Ms. B. Chakraborty, Adv.
For Respondent(s) : Mr. K. N. Bhattacharjee, Sr. Adv.
Mr. Soumendu Roy, Adv.
Mr. Kohinoor N. Bhattacharjee,
Adv.
Date of Hearing : 23.04.2018
Date of delivery of
Judgment and Order : 29.06.2018
Whether fit for
Reporting : YES
Page 2 of 36
HON‟BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
This is an appeal under Section 100 of the CPC from the judgment dated 22.09.2014 delivered in Title Appeal No.23 of 2013 by the Additional District Judge, West Tripura, Agartala, Court No.5 on affirmance of the judgment dated 04.02.2013 delivered in Title Suit No.113 of 2010 by the Civil Judge, Senior Division, West Tripura, Agartala.
02. The plaintiff-respondent herein instituted the suit being Title Suit No.113/2010 for declaration, recovery of possession and perpetual injunction. It is the case of the plaintiff that he was the owner of the land as described in the Schedule-1 of the plaint. Out of the said land he had sold the land with the building as described in the Schedule-2A to Purnima Chowdhury, Suchitra Chowdhury and Sikha Chowdhury by the registered deed of sale dated 11.05.1992 and the land with building as described in the Schedule 2B to Shikha Saha (Roychoudhury) by the registered deed of sale dated 12.05.1992. Purnima Choudhury and two others as stated sold the entire land with building as described in the Schedule-2A of the plaint to the defendant No.1, Gautam Saha by the registered deed of sale by 18.05.1992 and Shikha Saha (Roychoudhury) sold her land with building under Schedule-2B to Nilima Saha, the defendant No.2 by the registered deed of sale dated 18.05.1992. After such Page 3 of 36 purchase the defendants namely Gautam Saha and Nilima Saha mutated their names in the record of right in respect of the land as described in the Schedule 2A and 2B respectively. The total area purchased by the defendants, the appellants herein is 79x35 sq.ft. which has been described in the Schedule-2.
03. It is to be noted that the Schedule-2 land is situate in the northern part of the land as described in the Schedule-1. After the said sale the remaining part forming the southern part of the land as described in the Schedule-1 and separately described in the Schedule-3 remained with the plaintiff. The plaintiff has got the valid title and he is in the possession of the land recorded under Khatian No.30113. The land described in the Schedule-3A, 3B and the land with the part of the room described as the Schedule-3C are the suit land. The Schedule-3A land has been curved out for purpose of passage with the limited right from the land described in the Schedule-2A and 2B and for purpose of turning of their vehicle keeping the title intact with the plaintiff. The owner and the occupier of the land comprised in the Schedule-2A and 2B have been permitted to use that space along with the plaintiff. They were also allowed to remove the steps from the piece of land adjacent south of the building sold to Purnima Choudhury and others. But they did not remove the steps even though they have been using Page 4 of 36 the space as a common path with the plaintiff. Purnima Choudhury and others as stated had sold the land and building as described in the Schedule-2A and Schedule 2B to the defendants-appellants. The plaintiff raised objection that the right to use the said space as described in the Schedule 3A at the time of the subsequent sale by Purnima Choudhury and others is not transferred to the defendants.
04. The defendant-appellant No.1 is the full blood brother of the respondent whereas the defendant-appellant No.2 is the wife of the defendant-appellant No.1. Because of the relation the plaintiff-respondent did not obstruct or object to the use of the space as described in the Schedule- 3A by the defendant-appellant for purpose of their passage. According to the plaintiff-respondent, taking advantage of this relation the defendant-appellants are not only using the land described Schedule-3A but also encroaching the land of Schedule-3B occasionally by passing and turning their vehicle and sometimes even they park their vehicle in the space as described in the Schedule-3A. Thus, they create obstruction in using this passage by the plaintiff. According to the plaintiff, the defendant-appellants do not have any right or title to enjoy the land described in the Schedule-3A in any manner. Whenever the plaintiff raised objection the defendant-appellants assured him that they would not repeat such acts in future. When the plaintiff-respondents took Page 5 of 36 preparation to raise a wall along the north boundary of his land as described in Schedule-3B sometime in the first week of April, 2010, the defendant-appellants objected without having any legal right. Even the defendant-appellants do not have any right to create disturbance in the possession of the plaintiff over the land as described in Schedule-3B. The defendant-appellants even do not have any right to cause any disturbance or create obstruction in the passage as described in the Schedule-3A as the title of the said land remains with the plaintiff-respondent. But the defendant- appellants repeated such breach by throwing the assurance in the wind and hence the suit has been instituted. So far the steps as constructed earlier in the land which is described in the Schedule-3A is concerned part of those steps were removed by the defendant-appellants. But from the western side the steps had not been removed. On the contrary, without taking any permission from the plaintiff-respondent the defendant-appellants started constructing a room covering a part of the land as described in the Schedule-3A which has been separately shown as the Schedule-3C.
05. The defendants requested the plaintiff-respondent allow them to raise a temporary construction removing the eastern part of the steps for the purpose of Durga Puja in the year 2005. Since the appellant No.1 is the full blood brother of the plaintiff-respondent, a temporary construction on their Page 6 of 36 promise of removing the same after the puja was allowed. But after puja, the defendant-appellants did not remove the construction from the land as described in the Schedule-3C by ignoring the demands made by the plaintiff-respondent. It has been asserted in the plaint as follows:
"This way the time passed and the defendants kept the plaintiff under assurance to remove the part of the room in schedule 3C but they did not any have not kept their promise. So in the 1st week of April 2010 the plaintiff again asked the defendants to remove the part of the room on schedule 3C but this time the defendants told him clearly that they would not do so. The plaintiff has become entitled to seek recovery of possession of the land of schedule 3C removing the part of the room constructed upon the land of schedule 3C and in case the defendants do not remove the same within such time as may be allowed by the Court, the plaintiff may be allowed to remove the same at the cost of the defendants."
06. In the first week of May, 2010 the plaintiff- respondent mobilised materials such as bricks for purpose of constructing wall on the boundary of the land as described in the Schedule 3B. When on 05.08.2010, the workers of the plaintiff started measuring for making preparation to construct the wall on the boundary of the land as described in the Schedule 3B the defendant-appellant No.1 raised serious objection and there had been exchange of words between the defendant-appellant No.1 and the respondent. According to the plaintiff, the defendant-appellant No.2 also supported and participated in the said objection. The plaintiff-respondent is apprehensive that if he started construction of the said boundary wall again the defendant- appellants would raise objection though the defendant- Page 7 of 36 appellants do not have any right to object in respect of the construction over the boundary on the land as described in the Schedule-3B. For purpose of peaceful construction of the boundary wall, on the face of the said objection, the plaintiff- respondent instituted the suit. Since the defendant- appellants have been regularly parking their vehicle on the passage as described in the Schedule 3B or using that space as described in the Schedule 3B for making turn, the plaintiff-respondent had realized that the privilege granted for use of the land was being seriously breached. Hence, it has been urged in the suit to issue the decree restraining the defendant-appellants from creating any obstruction to the enjoyment of the passage as described in the Schedule-3A by the plaintiff by parking their car or by any means so that the plaintiff may have full use and enjoyment of the passage. The defendant-appellants have no title over the land of the Schedule-3A. The defendants have no right, title and interest whatsoever over the land of the Schedule-3B. Despite that for obstruction created by the defendant-appellant, the plaintiff could not construct his wall. For that purpose, i.e to construct the wall peacefully, the suit has also been instituted by the plaintiff-respondent.
07. In this conspectus of fact, the plaintiff-respondent has urged in the suit for a decree of declaration, declaring that the defendant-appellants have illegally constructed a Page 8 of 36 part of the room on the land as described in the Schedule 3C in the plaint and that the defendants do not have any right to create disturbance or to encroach the land as described in the Schedule 3B. Further, it has been urged that a decree for recovering the possession removing the illegal construction or that part of the room from the land as described in the Schedule 3C or by removing any other obstruction. As consequential relief, the plaintiff urged for the decree for perpetual injunction restraining the defendant-appellants from entering into the land as described in the Schedule 3B and from encroaching the land described in the Schedule 3A by their vehicle and from disturbing the possession of the plaintiff thereon anyway, however subject to use as permitted. Further, the plaintiff-respondent has urged for a decree of perpetual injunction restraining the defendants from disturbing the plaintiff-respondent while constructing the wall along the north boundary of his land as described in the Schedule 3B, from disturbing or damaging the wall after construction and also from disturbing the plaintiff from using the space under the Schedule 3A as the passage in any manner. The pleadings are mostly admitted by the defendant-appellants by their written statement filed jointly. In para-12 of the said written statement, it has been asserted as under:
"In the month of July, 2010 the defendant No.2 purchased one new vehicle manufactured by General Page 9 of 36 Motors and naturally started utilizing the said Ejmali road for movement of the said vehicle from garage to main road. The said purchase of the new vehicle by the defendant No.2 has made the plaintiff highly jealous and to harass the defendants he has filed the present suit to satisfy his inimical attitude and jealousy against the defendants particularly the defendant No.2."
08. Certain allegations have been made in the para- 14 of the joint written statement in respect of the management of the sewer and discharge of the foul waters from toilets. But no such relief has been claimed by way of counter-claim against the plaintiff. Based on the rival pleadings, the trial court [the court of the Civil Judge, Senior Division, Court No.1] framed the following issues for determining the suit:
(i) Whether the suit is maintainable;
(ii) Whether the defendants are threatening to enter into the
suit land of Schedule- 3B by keeping their vehicle illegally and unauthorisedly;
(iii) Whether the defendants have illegally constructed a part of the room on the land of schedule-3C of the plaint;
(iv) Whether the defendants have any right to possess or enter into the land of schedule-3B;
(v) Whether the defendants are legally bound to remove their construction of room from the land of schedule 3C;
(vi) Whether the Plaintiff is entitled to restrain the defendants from entering into the land of Schedule 3B and keeping their vehicle there;
(vii) Whether the defendants are liable to be restrained from obstructing the plaintiff from constructing wall along the North boundary of his land of Schedule 3B and from damaging the wall after construction;
(viii) Whether the defendants are liable to be restrained from disturbing the plaintiff from exercising common use of the path described on the Schedule-3;
(ix) Whether the plaintiff is entitled to any relief/reliefs, as prayed for.
Page 10 of 36
09. Having recorded the evidence both documentary and oral, the objection as raised in respect of the maintainability of the suit on the ground of limitation was discarded on observing that the suit was filed within three years in terms of the Article 58 of the Limitation Act from the date of denial to remove the illegal construction or temporary construction etc. It has been observed thereafter as follows:
"Thus from these evidences it can be concluded that the defendants objected to something for which they are not entitled to. It has already been decided that on the 3B schedule land only the plaintiff has exclusive title and right to use the same. Defendants without holding any right is not entitled to raise any objection for constructing a wall by the plaintiff for better enjoyment of his own land i.e. Schedule 3B land. Though in such a situation it agreeable that the defendants will face some problems in moving their vehicle if plaintiff constructs the said wall, but in absence of any legal right in favour of the defendants to prevent the plaintiff in doing so this Court is in not in a position to help the defendants. While dealing with this kind of situations the observation of Hon‟ble Apex Court in State of Madhya Pradesh vs. Dharam Bir 1998 SC was "The Court has to remain impartial and not swayed by sympathy, in order to deliver any justice for ensuring that the faith of public in the justice delivery system is not eroded."
Further it has been observed that the defendant- appellants‟ right over the land as described in the Schedule- 3A encompasses to the extent of alighting and boarding their vehicle and not beyond that. Hence the construction over the land [Schedule 3C] is without having any right existing in favour of the defendants. The defendants in no way could controvert the claim of the plaintiff that they have no legal right over the land as described in the Schedule-3C. Page 11 of 36
10. In terms of the finding as returned by the trial court by the judgment dated 04.02.2013, the reliefs as noted below were granted by the trial court. The decree was drawn in conformity thereof.
"(i) That the defendants have no right of their any construction over the schedule-3C land of the plaint and they have no right to create disturbance to the possession of the plaintiff on the land of schedule 3-B;
(ii) The Plaintiff is entitled for recovery of possession of the land of Schedule 3-C and for this defendants are directed to remove the construction of a part of room is Schedule 3-C, within two months from the date of passing of this judgment, alternatively Plaintiff is at liberty to remove the same at the cost of the defendants;
(iii) The defendants are perpetually restrained from entering into the land of Schedule 3-B and from encroaching upon the said land by their vehicle and from disturbing the possession of the plaintiff therein in any way if plaintiff likes construction of wall along the North boundary of the land of schedule 3-B;
(iv) Further the defendants are restrained from disturbing the Plaintiff from using the space of the land of Schedule 3-A as passage;
(v) Cost of the suit is to be borne by the defendants of their own."
11. Being aggrieved by that judgment, the appellants herein, filed an appeal under Section 96 of the CPC being Title Appeal No.23 of 2013 in the court of the Additional District Judge, West Tripura, Agartala and that appeal was subsequently transferred to the court of the Additional District Judge, West Tripura, Agartala, Court No.5 for hearing. By the impugned judgment dated 22.09.2014, the appeal was dismissed by affirming the judgment of the trial court. However, some modification were made in the following terms, inter alia:
Page 12 of 36
"The appellants are hereby restrained from parking their vehicle within the land of Schedule 3A and from encroaching upon the land of Schedule 3B."
12. For purpose of elaboration it can be observed that the first appellate court has appreciated the objections raised in the memorandum of appeal. In respect of the objection contending that the suit is barred by limitation, it has been held that there is no infirmity in the finding returned by the trial court inasmuch as the cause of action consists of bundle of facts which give cause to enforce the legal right for redressal in a court of law. It must include an act done by the defendant, since in the absence of such an act no cause of action would possibly accrue or would arise. Thus the cause of action as stated by the plaintiff, gives rise to such cause and the suit was instituted within a prescribed period of limitation as provided under Article 58 of the Limitation Act. Whether the plaintiff is entitled to get consequential relief of perpetual injunction restraining the defendants from disturbing the plaintiff in constructing boundary-wall along with northern boundary as described in the Schedule 3B and from damaging the boundary-wall after its construction is over and further from encroaching upon the land of the plaintiff-respondent by turning/keeping their vehicle and from using the said land [described in the schedule 3A] by the respondent without obstruction. It has been further observed that by the declaration [Exbt.A] the plaintiff- Page 13 of 36 respondent had permitted his vendees to use the Schedule- 3A for a very limited purpose of „turning/keeping‟ of own vehicle and thus enjoying the use of the Schedule 3A. A harmonious reading of the declaration in Ext.A makes it abundantly clear that the plaintiff-respondent has made it very clear that the title over the land of Schedule-3A shall always remain with the respondent and can never be acquired or encumbered by his vendees by virtue of the said declaration.
13. The plaintiff-respondent has further asserted that he has been using the land of Schedule-3A measuring 35 ft. in length and 7 ft. in breadth keeping the same vacant for purpose of his use. Thus the intention of the respondent as could be gathered is to maintain his right to use this land being the exclusive title holder. He has merely permitted his vendees to use this land for the limited purpose specifically mentioned in the declaration [Exbt.A]. It is apparent from the bare reading of the declaration that the plaintiff- respondent has permitted the appellants to use the land for passage, for bringing gas-line etc. and for „turning/keeping‟ their vehicle. This declaration is to be constructed keeping in mind that the respondent neither surrendered nor intended to surrender his right to use over that land but he has merely permitted his vendees for limited purpose only. The permission for „turning/keeping‟ their vehicle would only be Page 14 of 36 enforceable if, it does not interfere with the free use of that land by the respondent. In other words, the permission so granted for the limited purpose would entirely be ineffectual if it, in any manner whatsoever, interferes with the free use of this land by the respondent.
14. It is to be noted that the land as described in the Schedule-3A leads to the ejmali road of the family connecting the Durgabari Road. It would be apparent that the defendant-appellants have not taken any plea in their written statement that in the case of construction of the wall, he would not be able to move their vehicle from the garage through the land of Schedule-3A and the defendant- appellants will suffer any irreparable injury if they are restrained from keeping the vehicle on the land as described in the Schedule 3A. However, they have stated that they will not be able to move the vehicle out from the garage. Their garage is beyond the limits of the land as described in the Schedule 3A but in fact, they keep the vehicle on the land of Schedule 3A in the open and obstruct the free use of the land in the Schedule 3A by the plaintiff-respondent, which is instrumental to irreparable loss to the respondent.
15. Having regard to all these aspects of the matter, the first appellate court affirmed the finding of the trial court. Similarly, in respect of the Schedule 3B land which is still vacant, it has been clearly observed that the defendant- Page 15 of 36 appellant does not have any right. The first appellate court has concurred with the finding of the trial court on making certain observations on interpretation of the clause appearing in the declaration [Exbt.A]. It has been observed by the first appellate court as follows:
"In the present context, the act of „turning/keeping their vehicle‟ would be complete as soon as the vehicle enters, takes necessary turn, stops for a reasonable time to allow the passenger(s) to alight therefrom and mover out. I am, therefore, unable to accept the meaning of the words „keeping the vehicle‟ as „parking the vehicle‟ within the meaning of the Declaration (Ext.A)."
Thus, the first appellate court has interfered with the said interpretation of the trial court, despite the concurrence as noted above. The said interpretation lends to the result that „keeping the vehicle‟ would not mean „parking the vehicle‟.
16. Can the defendant-appellant be allowed to raise a plea that the plaintiff-respondent is bound to provide that the space as described in the Schedule B for turning of their vehicle? Both the courts below have concurred that the Defendant-appellants do not have any right even to temporary or momentary occupartion over the land as described in the Schdule-3B. So far the recovery of the land by removing the temporary construction over the land as described in the Schedule-3C, the first appellate court has specifically observed that the construction had started unauthorisedly and subsequently the plaintiff-respondent did Page 16 of 36 allow the said construction to be used for a very limited period. But on expiry of that period when the defendant- appellants denied to remove the construction/structure, it gave rise to the cause of action for suing the defendant- appellants. It is also admitted by the defendant-appellants that the part of the room has been constructed over the land as described in the Schedule-3C. On its western part, the steps are lying within the land in the Schedule-3A, which is owned by the plaintiff-respondent exclusively. The owner has a right to recover possession from a permissive occupier by removing his construction. Thus, the first appellate court has concurred with the finding of the trial court. The other issues may not be very relevant for determining the present appeal.
As stated, being aggrieved by that judgment dated 22.09.2014 as passed by the first appellate court, this appeal has been filed.
17. At the time of admitting the said appeal, the following substantial questions of law were formulated:
(i) Whether the findings of the trial Court affirmed by the appellate Court in respect of the cause of action and in respect of the limitation were according to law?
(ii) Whether the judgment and decree passed by the trial Court and affirmed by the appellate Court suffer from perversity for non-consideration of the document marked Exbt.A?
The appellant was provided leave for raising any other substantial question of law but they did not raise any other substantial question of law.
Page 17 of 36
18. Mr. S. Deb, learned senior counsel as well as Mr. S. M. Chakraborty, learned senior counsel appearing for the appellants have submitted that the impugned judgment stands on incorrect reading of the registered declaration [Exbt.A] which was executed by the plaintiff-respondent creating the limited right to use in favour of the transferee [Exbt.A] or the succeeding purchasers. The said declaration dated 11.05.1992, according to Mr. Deb, learned senior counsel, has clearly provided that there is a vacant land on the southern side of the land purchased by the predecessor of the defendant-appellants measuring 35ft x 7ft from east to west comprised in Dag No.11418/51014 and Khatian No.30113 of Mouja Agartala, sheet No.14. On the southern side of that land the „septic tank‟ of the plaintiff-respondent and on the southern side of that septic tank there situate his own building. The said land measuring 35ft x 7ft was kept vacant for movement and use of the plaintiff-respondent. On the northern side of his residential plot measuring 37ft x 9 ft 6 inch there is another road connecting the Durgabari Road and he can enter into his land by that road also. On the western side of his land there is an ejmali path and drain for use of his brothers. It has been recited in the declaration that Purnima Chowdhury, Suchitra Chowdhury, Sikha Chowdhury and Sikha Saha (Roy Chowdhury) purchased his land. Smt. Purnima Chowdhury and others would enter their Page 18 of 36 land by the road situated on the northern side of his residential building measuring 9‟-6‟‟ in width and the vacant land measuring 35ft x 7inch spread over east to west or vice versa. The said space can be used by them for their movement. Even for turning the vehicle or keeping the vehicle they can use that land heritably. But the ownership of the land shall stand with the plaintiff-respondent. In this regard, no objection can be raised by their successors. It has been clarified in the said declaration that if Purnima Chowdhury and others sell their purchased property to a third party, then the third party-purchaser will be entitled to use that ejmali road and the said vacant land (35ft x 7ft). But under no circumstances, they will claim any other right, including the ownership right over the said land. But they can draw their water supply, electricity and gas line along or over that land. The said registered declaration [Exbt.A], according to Mr. Deb, learned senior counsel has been wrongly interpreted by both the courts below. According to him, the said declaration has created the right not only of the movement but of „parking‟ the vehicle over the said vacant land (35ft x 7ft) as described in the Schedule-3C.
19. Further, Mr. Deb, learned senior counsel has strenuously contended that the suit was hopelessly barred by limitation and both the courts below has wrongly construed the starting point of limitation and thus read the evidence Page 19 of 36 perversely. According to him, the cause of action arose sometime in 2005, but the suit was not filed within three years and an imaginary cause has been shown on 05.08.2010. On the basis of that imaginary cause of action the suit was filed. According to Mr. Deb, learned senior counsel on a bare reading of the plaint, it would be apparent that there are multiple causes of action. While determining the issue of limitation both the trial court and the first appellate court had made out a third case which was never projected in the plaint.
20. Appearing for the plaintiff-respondent, Mr. K.N. Bhattacharjee, learned senior counsel has submitted that the cause of action comprises a bundle of facts, one of which may give cause to enforce the legal injury for redress in a court of law and give the plaintiff right to claim relief against the defendant. It must include some act done by the defendants since in the absence of such an act no cause of action would possibly accrue or would arise. The reference has been made to a decision of the apex court in South East Asia Shipping Co. Ltd. Vs. Nav Bharat Enterprises Pvt. Ltd reported in (1996) 3 SCC 443.
21. Mr. Bhattacharjee, learned senior counsel has further submitted that there can be no right to sue until at least a clear and unequivocal threat to infringe the right emerges. In the case in hand, according to Mr. Page 20 of 36 Bhattacharjee, learned senior counsel, it is on first week of April, 2010 the said cause of action arose and subsequently arose on 05.08.2010. Even if, for purpose of counting the limitation, the first cause of action is treated as the starting point of limitation, the suit is within the period of limitation in terms of Section 58 of the Limitation Act. In this regard, Mr. Bhattacharjee, learned senior counsel has relied on a decision of the apex court in Rashtriya Ispat Nigam Ltd Vs. Prathyusha Resources and Infra Private Limited and Another reported in (2016) 12 SCC 405. In that report, the apex court has held as under:
"We shall now consider the settled law on the subject. This Court in a catena of judgments has laid down that the cause of action arises when the real dispute arises i.e. when one party asserts and the other party denies any right. The cause of action in the present case is the claim of the respondent/claimant to the determination of base year for the purposes of escalation and the calculation made thereon, and the refusal of the appellant to pay as per the calculations."
22. To elucidate further, Mr. Bhattacharjee, learned senior counsel has emphatically submitted that when the defendant-appellant refused to remove the construction from the Schedule-3C land in the first week of April, 2008, the first cause of action arose and thereafter on 05.08.2010 when the defendant-appellants raised objection asking the plaintiff-respondent to stop piling of the construction materials for the boundary wall along the northern boundary of the land as described in the Schedule-3B. According to Mr. Bhattacharjee, learned senior counsel, cause of action Page 21 of 36 comprises a bundle of facts. Thus, against the concurrent finding in respect of the cause of action vis-a-vis the maintainability of the suit, the ground framed on limitation cannot be re-agitated in the second appeal, inasmuch as the question of limitation is a mixed question of law and fact. In this regard, he has relied further on a decision of the apex court in Workmen of M/s. Binny Ltd. vs. Management of Binny Ltd. and Another reported in AIR 1986 SC 509 where the apex court has held as under:
"The respondent company pleaded in their return that consequent to the amalgamation, the respondent company (Binny & Company Limited) became a single unit and all the employees were covered by the same terms of the Payment of Bonus Act. They denied that the business activities of the former Binny & Co. Limited constituted a separate department or undertaking as envisaged in the Payment of Bonus Act. According to them there was only a single balance- sheet for the whole Binny Limited. They admitted that separate profit and loss account was prepared for the year 1969 for the finance, trading and agency division and the garment factory (former Binny & Company Limited) as required in the scheme of amalgamation, but no separate balance-sheet was prepared. The company relied uponSection 3 of the Payment of Bonus Act which stated that the various companies which have been amalgamated should be treated as part of the same establishment under the Act for the purpose of computation of bonus."
23. In continuation, Mr. Bhattacharjee, learned senior counsel has expanded his submission having stated that when the real dispute arises then only the cause of action arises. He has referred to a decision of the apex court in C. Mahammad Yunus vs. Syed Unnissa and Ors. reported in AIR 1961 SC 808 where the apex court after observing that the suit for declaration with a consequential relief for Page 22 of 36 injunction is not a suit for declaration simpliciter has observed that the period for the right to sue prescribed by Article 120 has to be computed from the date of right to sue accrues and there could be right to sue until there is an accrual of the right asserted in the suit and its infringement or at least „a clear and unequivocal threat to infringe that right‟. This law has been reinstated in Daya Singh & Anr. vs. Gurdev Singh & Ors. reported in AIR 2010 SC 3240. Even in Rashtriya Ispat Nigam Ltd (supra) it has been observed by the apex court that the cause of action arises when the real dispute arises meaning when the one party asserts and the other party denies any right.
24. In order to buttress his contention Mr. Bhattacharjee, learned senior counsel has relied on another decision of the apex court in Dudh Nath Pandey vs. Suresh Chandra Bhattasali reported in AIR 1986 SC 1509 where the supreme court had occasion to asses the scope of fresh appraisal of evidence on the finding on limitation. In Dudh Nath Pandey (supra), the apex court has observed that the finding on the question of limitation by the first appellate court on appraisal of the evidence after taking into consideration the entire circumstances in the case was a finding of fact which could not have been set aside by the High Court in its exercise of power under Section 100 of the CPC. On placing reliance on the law as enunciated by the Page 23 of 36 apex court in Dudh Nath Pandey (supra), Mr. Bhattacharjee, learned senior counsel has asserted that in the present case the finding on the limitation is the concurrent finding of fact and there is no perversity and as such this court should discard that challenge.
25. In sequel, Mr. Bhattacharjee, learned senior counsel has relied on another decision in Karnataka Board of Wakf vs. Anjuman-E-Ismail Madris-Un-Niswan reported in AIR 1999 SC 3067 where the apex court has considered the aspect of re-appreciating the evidence to appreciate the concurrent finding of fact in a second appeal. The apex court in Karnataka Board of Wakf (supra) has observed that unless there exists perversity in returning the concurrent finding, the High Court while exercising his jurisdiction in a second appeal should not in a casual manner for satisfying its subjective domain interfere with the concurrent finding of the two courts below.
26. Mr. Bhattacharjee, learned senior counsel has clearly submitted that while reading the declaration [Exbt.A], the first appellate court has committed no error. He has further submitted that from the map as attached to the plaint, being the part of pleadings, it would be apparent that there is no ambiguity in the relief as claimed by the plaintiff- respondent. The location of Schedule-2A and Schedule-2B vis-a-vis the Schedule-3C and Schedule-3A has clearly been Page 24 of 36 delineated, even the location of Schedule-3B is well delineated and in this regard no objection cannot be raised by the defendant-appellants. Finally, Mr. Bhattacharjee, learned senior counsel has submitted that it is true that the defendant-appellant No.1 is the full blood brother of the plaintiff-respondent, but this cannot be treated as an element to over-ride the claim of the plaintiff-respondent by way of making an substantive assignment. The law shall take its course with all its rigours. The mandatory provisions of law cannot be given a go-bye in the manner as proposed. Moreover, the element of adjustment was only the case of the defendant-appellants. They have asserted their rights on the basis of the declaration in [Exbt.A]. In this regard Mr. Bhattacharjee, learned senior counsel has relied on a decision of the apex court in State of M.P. and Another vs. Dharam Bir reported in (1998) 6 SCC 165 where the apex court while dealing with the aspects of „human approach‟ has observed that:
"The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the Page 25 of 36 respondent is allowed to continue on this post merely on the basis of his concept of "human approach", it would be at the cost of a duly selected candidate who would be deprived of cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification. The Courts as also the Tribunal have no power to override the mandatory provisions of the Rules on sympathetic consideration that a person, though not possessing the essential educational qualifications. should be allowed to continue on the post merely on the basis of his experience. Such an order would amount to altering or amending the Statutory provisions made by the Government under Article 309 of the Constitution."
[Emphasis added]
27. Mr. Bhattacharjee, learned senior counsel has further submitted that in a second appeal, a new plea cannot be raised before the High Court and in this regard he has referred a decision of the apex court in Karunanidhi vs. Seetharama Naidu and Others reported in (2017) 5 SCC 483.
28. Mr. Bhattacharjee, learned senior counsel has added to contend that the plea of adjustment has been raised as additional plea and it cannot be considered by this court in this appeal.
29. In reply, Mr. S. Deb, learned senior counsel appearing for the appellants has submitted that the High Court can interfere with the finding of facts when the finding recorded by the courts below are found to be perverse. Even re-appreciation of evidence is permissible in exceptional circumstances. He has place his reliance in order to buttress on D.R. Rathna Murthy vs. Ramappa reported in (2011) 1 SCC 158.
Page 26 of 36
"Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances."
In this regard the reference to Rajappa
Hanamantha Ranoji vs. Mahadev Channabasappa
reported in (2000) 6 SCC 120, Hafazat Hussain vs. Abdul Majeed reported in (2001) 7 SCC 189 and Bharatha Matha vs. R. Vijaya Renganathan reported in (2010) 11 SCC 483 has been made.
30. It has been also asserted that the right to sue accrues when the right to sue first accrues. In L.C. Hanumanthappa vs. H.B. Shivakumar reported in (2016) 1 SCC 332, the apex court has laid down the law as under:
"We have heard learned counsel for the parties. It is not disputed that Article 58 of the Limitation Act would apply to the amended plaint inasmuch as it sought to add the relief of declaration of title to the already existing relief for grant of permanent injunction."
31. It has been further contended that while enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the earlier Act. The word "first" has been used between the words "sue" and "accrued". This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violations Page 27 of 36 of the right will not give rise to a fresh cause and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the day when the right to sue first accrued. In this regard, a decision of the apex court in Khatri Hotels (P) Ltd. vs. Union of India reported in (2011) 9 SCC 126 has been pressed to elucidate. In Khatri Hotels (supra) the apex court had occasion to observe as under:
"While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word `first' has been used between the words `sue' and `accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued."
The said law has been restated in Board of Turstees of Port of Kandla vs. Hargovind Jasraj and Anorther reported in (2013) 3 SCC 182.
32. Mr. Bhattacharjee, learned senior counsel has rejoined with leave of the court, by stating that the declaration [Exbt.A] has created a notional right of use without transfer of any character and part of the title.
33. Mr. S. Deb, learned senior counsel has reiterated that injunction against the „parking‟ emanates from a complete non-reading of Exbt.A and as such the finding is wholly perverse. In the second appeal this court can Page 28 of 36 appreciate the evidence for purpose of ascertaining the correct position of fact.
34. True it is that that the first appellate court has issued the decree of perpetual injunction against the defendant-appellants in respect of Schedule-3B land and declared the limited right of use over the Schedule-3C land. There is no doubt the construction as made by the defendant-appellants over a part of the Schedule-3C along with the steps has been sought to be recovered by removing all construction and obstruction, if any. It has been accordingly directed.
35. Having appreciated the rival contentions, this court is of the view that from a bare reading of the declaration [Exbt.A] it would appear that, the limited right of use has been created by the said declaration in favour of the successor of the predecessor of the defendant-appellants and as such whatever right has been created by the declaration [Exbt.A] it can be enjoyed by the defendant-appellants. Therefore, to determine this appeal what rights have been created by Exbt.A, the said instrument is required to be revisited. By the declaration the plaintiff-respondent had created rights in favour of Smt. Purnima Chowdhury, Smt. Suchitra Chowdhury, Smt. Sikha Chowdhury and Smt. Sikha Saha (Roy Choudhury) and their successors. For purpose of Page 29 of 36 appreciation, the relevant part from the said declaration may gainfully be extracted:
"I do hereby admit, promise and declare that the land of mine with rayati jote title, which I have sold out to Smt. Purnima Chowdhury, Smt. Suchitra Chowdhury, Smt. Sikha Chowdhury and Smt. Sikha Saha (Roy Chowdhury), and accordingly they have also become the owners over the said land by way of purchase; Smt Purnima Chowdhury and others, along with their successors shall use and enjoy possession over the „ejmali‟ road measuring 9‟-6‟‟ inches in breadth, towards the northern direction from Durgabari „bari‟(sic) as well as the drain, by virtue of being the title-holder with all of my rights. And to the further north of the same, Smt. Chowdhury and others, along with theirs successors, shall be able to make movements over my own land measuring 35‟- 0‟‟ feet in length from east to west and 7‟ - 0‟‟ feet in breadth, and shall be entitled to use the same for turning their own vehicle(s), for keeping the vehicles(s) and to use the same in succession by renovating it. But the entire ownership title of the same remains and shall remain with me. Neither me, nor my son(s), grandson(s) or any of my successors have or shall have any objection to it. If Smt. Purnima Chowdhury and others want to sell out their purchased property to any other third party or parties then the purchaser(s) and subsequent purchasers shall be entitled to use the land of the „ejmali‟ road and my own vacant land. Under no circumstances shall Smt. Chowdhury and others be entitled to rayati jote title of my vacant land, nor shall they be able to raise any claim of title over it. If smt. Chowdhury and others raise any claim of title over my vacant land then it shall not be legally accepted. They will be able to take (their) water (connection), electricity (connection) and gas line to their own respective lands over the said land."
36. Interpretation of that clause as appearing in the declaration [Exbt.A], as extracted, has become the bone of contention. The trial court has observed that Ext.A categorically declares that the plaintiff retains his title over the land belonging to Schedule 3A, 3B and 3C and hence he is entitled to enjoy the land in any manner he likes. Further it has been observed that:
Page 30 of 36
"Thus from these evidences it can be concluded that the defendants objected to something for which they are not entitled to. It has already been decided that on the 3B schedule land only the plaintiff has exclusive title and right to use the same. Defendants without holding any right is not entitled to raise any objection for constructing a wall by the plaintiff for better enjoyment of his own land i.e Schedule 3B land. Though is such a situation it agreeable that the defendants will face some problems in moving their vehicle if plaintiff constructs the said wall, but in absence of any legal right in favour of the defendants to prevent the plaintiff in doing so this Court is in not in a position to help the defendants. While dealing with this kind of situations the observation of Hon‟ble Apex Court in State of Madhya Pradesh vs. Dharam Bir 1998 SC was The Court has to remain impartial and not swayed by sympathy, in order to deliver any justice for ensuring that the faith of public in the justice delivery system is not eroded."
[Emphasis added]
37. On the basis of that finding, the decree was issued declaring that the defendants have no right to erect construction over the Schedule-3C land of the plaint and they have no right to create disturbance on the land of the Schedule-3B. Further, the decree has been issued for recovery of the possession of the land on the Schedule-3C and for that purpose the defendants have been directed to remove the construction and the part of room over the Schedule-3C within two months from the date of passing of this judgment, alternatively the plaintiff shall be at liberty to remove the said construction etc. at the cost of the defendants. Further, the decree has been passed by perpetually restraining the defendants from entering and interfering with the possession of the Schedule 3B from encroaching upon the said land by their vehicle or by disturbing the possession of the plaintiff in any way including Page 31 of 36 creating obstruction in construction of a wall along the northern boundary of the land as described in the Schedule- 3B. By a further decree, the defendants have been restrained from creating obstruction or disturbance so that the plaintiff cannot use and enjoy the space of the land of Schedule-3A as the passage.
38. The first appellate court has in modification issued a specific decree by restraining the appellants from „parking‟ their vehicle within the land in the Schedule-3A and from encroaching upon the land in the Schedule-3B. The first appellate court while interpreting the extent of use in terms of the declaration has observed as under:
"The language used in the Declaration in giving permission for specific purpose of keeping/turning the vehicle has to be strictly constructed to mean „turning of their vehicle within the limits of Schedule 3A, and not beyond that‟. The appellants are, therefore, inherently obliged under the Declaration in question to have any vehicle of the size of the vehicle should always be comfortable enough to turn the same within the limits of the land of Schedule 3A. The Ld. Trial Court has rightly held that permission to turn the vehicle has been given within specified area of the land of Schedule 3A, and not beyond that. The appellants, in the absence of a specific legal permission, cannot be permitted to use the land of Schedule 3B for keeping/turning their vehicle and to obstruct the construction of the said boundary wall. I, therefore, uphold the findings of the Ld. Trial Court except the finding on the parking of the vehicle. Point No.2 is accordingly decided in favour of the respondent."
While interpreting the phrase viz. „turning/keeping‟ of the vehicle as appearing in the
declaration [Exbt.A], the first appellate court has observed that "keeping their vehicle" cannot be read as having the Page 32 of 36 same, or nearly the same meaning of the words "parking their vehicles". „Parking‟ is the act of stopping a vehicle in a „Car Park‟ or „by the side of the road where it can be left‟.
39. The final question that falls for consideration that whether the interpretation of the first appellate court in respect of the limited right created by the declaration [Exbt.A] is wholly perverse and unsustainable. This court has revisited the clauses for purpose of a keen reading but does not find any difficulty in understanding the clear meaning of the clause. This court finds that the interpretation as provided by the first appellate court is a true meaning of the declaration, if read harmoniously. Moreover, the dominant possession of the title holder cannot be truncated by way of interpretation. The right that has been created cannot be expanded by any court going beyond the declaration [Exbt.A]. Tool of purposive interpretation cannot be adopted on the clause of the declaration [Exbt.A]. The meaning of keeping appears very restrictive in the declaration. But the restrictive meaning has to be adopted by this court to make a balance between the property right and its use. Mere etymological meaning sometimes does not serve the purpose, inasmuch as the entire declaration has to be read to get the intention of the declarant (the plaintiff- respondent).
Page 33 of 36
40. The ordinary meaning of „keep‟ according to the Stroud‟s Judicial Dictionary of Words and Phrases (7th Edition) is a phrase for a particular purpose and it is used for that purpose on more than one occasion. But how many or how frequent those occasions shall be a question of fact to be determined in each case (Marks vs. Benjamin, 9 L.J. M.C. 20). It is a common knowledge that the word keep or for that matter, keeping has its different etymological dimensions and uses. In the manner, the word „keeping‟ has appeared in the declaration, it has to be understood in that context and manner of the said instrument.
41. The plaintiff-respondent has clearly retained his title and his right to use the space, but created a limited right of use in favour of the predecessor of the defendant- appellants or their successors. Thus, there cannot be any amount of doubt that whatever right has been created by the said instrument, can be enjoyed by the defendant- appellants. Therefore, the defendant-appellants have the right to use the land as described in Schedule-3A for purpose of their easement, for taking the vehicle to their garage which is situated on their own land and to take out the vehicle from the garage. They can also keep the vehicle in a stationary condition for purpose of alighting or boarding the vehicle. For that purpose the vehicle can be kept on the said passage for a reasonable time, but it cannot be parked there Page 34 of 36 and as such the interpretation as provided by the first appellate court is acceptable in the context. The fundamental intention which flows from the text of the said declaration is that by such uses, the defendant-appellants cannot obstruct the enjoyment of the plaintiff-respondent under any circumstances. As such, the vehicle can be kept for a reasonable time in the manner, as stated above, on the said land without obstructing the enjoyment of the plaintiff- respondent.
42. Therefore, this court does not find any perversity in the finding of the first appellate court which has affirmed the judgment of the trial court with modification. By restraining the defendant-appellants from parking the vehicle over the land as described in the Schedule A of the plaint, the first appellate court has made the decree complete. The declaration and the other directions by way of decree, therefore do not warrant any interference from this court.
43. So far the question of limitation is concerned in para-6 of the plaint the plaintiff has asserted as under:
"But after the puja the defendants were not removing the construction from the land of schedule 3C inspite of demand by the plaintiff. This way the time passed and the defendants kept the plaintiff under assurance to remove the part of the room in schedule 3C but they did not and have not kept their promise. So in the 1st week of April 2010 the plaintiff again asked the defendants to remove the part of the room on schedule 3C but this time the defendants told him clearly that they would not do so."Page 35 of 36
The cause of action arises from a clear refusal by the defendant-appellant. As such, the right of the plaintiff- respondent was infringed and was threatened to infringe for the first time on that occasion.
44. From scrutiny of the written statement, it is observed that the said statement has been flatly denied. But the defendant-appellants‟ case has not been unfolded why they were not removing the said construction erected on the Schedule-3A land. In the para-4 of the written statement, they have only averred that the statement about the limitation in para-9 is wholly imaginary, but such position has not been taken in respect of para-6 of the plaint. The plaintiff-respondent has proved that statement in respect of cause of action by adequate evidence. In para-5 of his examination-in-chief filed under Order 18 Rule 4 of the CPC the plaintiff-respondent has categorically stated as under:
"So in the 1st week of April 2010 I again asked the defendants to remove the part of the room on schedule 3C but this time the defendants told me clearly that they would not do so. I have become entitled to seek recovery of possession of the land of schedule 3C removing the part of the room constructed upon the land of schedule 3C and in case the defendants do not remove the same within such time as may be allowed by the Court, then I may be allowed to remove the same at the cost of the defendants."
There had been no cross-examination in this regard.
45. Moreover, in the examination-in-chief filed by the defendant-appellant No.1, there is no assertion in contra- Page 36 of 36
distinction of the asserted fact by the plaintiff and as such, both the courts have rightly accepted the first week of April, 2010 for accrual of the cause of action. Hence the suit which was filed on 01.10.2010 is within the period of limitation as prescribed under Article 58 of the Schedule to the Limitation Act, 1963. For arriving at such finding, the aid of the reports which have been relied on by the learned counsel for the parties, are not essential but supplemental. For that reason, further reference to those reports have been avoided. The determination of limitation fundamentally hinges on the fact as established by evidence. So far this case is concerned, it is not a case of multiple causes of action as asserted and hence, according to this court, the objection raised in this regard is without any substance and accordingly the same is discarded.
Having observed thus, the judgment of the first appellate court stands affirmed.
In the result, the appeal stands dismissed.
Draw the decree accordingly.
Send down the LCRs thereafter.
JUDGE Moumita