Punjab-Haryana High Court
Shanti Devi vs Nand Kishore And Ors. on 7 August, 2003
Equivalent citations: AIR2004P&H46, (2004)136PLR377, AIR 2004 PUNJAB AND HARYANA 46, (2003) 4 RECCIVR 648, (2004) 1 PUN LR 377, (2004) 2 LANDLR 65
JUDGMENT M.M. Kumar, J.
1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff-appellant is not entitled to a decree of permanent injunction restraining defendant-respondents from interfering in her peaceful possession. It has further been held by the lower Appellate court that defendant-respondents are entitled to the relief of counter claim seeking direction to the plaintiff-appellant restraining her from opening the gate fixed by her on her house towards Raj Colony and also to remove the same immediately as it has been fixed after the filing of the suit.
2. Brief facts of the case necessary to decide the controversy raised in the instant appeal are that the plaintiff-appellant Shanti Devi filed a civil suit seeking permanent injunction restraining defendant-respondents from closing the gate of the courtyard of her house situated in Raj Colony, Samani Gate, Patiala. Further prayer was also made for restraining defendant-respondents from interfering in the peaceful possession of the plaintiff-appellant over her house with its courtyard. The plaintiff-appellant made averments that she had purchased a plot measuring 144 sq. yds. through registered sale deed and thereafter constructed a house thereon. In the courtyard she is claimed to have fixed a gate described as AB in the site plan with the permission of the original owner of the suit property under an agreement dated 26.12.1986 (16.12.86). She further claimed that she is in peaceful actual and continuous possession of the property in dispute since the date of its purchase. It is alleged that defendant-respondents have started threatening the plaintiff-appellant to close the gate AB of the courtyard of her house and despite request made by her the threat continued which resulted into filing of the suit. The stand taken by the defendant-respondents in their written statement-cum-counter claim is that the plaintiff-appellant has no property in Raj Colony and her building is situated in Dhillon Colony, Patiala. They denied all the pleas of the plaintiff-appellant. In the counter claim set up by the defendant-respondents a direction has been sought to restrain her from opening the afore-mentioned gate AB which is fixed by her after the filing of the suit towards Raj Colony. It is further prayed that the aforementioned gate be removed immediately and the suit of the plaintiff-appellant be dismissed with costs and the counter claim he allowed. The Courts below framed the following issues:
"I, Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPD
2. Whether the plaintiff has no cause of action to file the present suit? OPD
3. Whether the suit is bad for non-joinder of necessary parties? OPD
4. Whether the defendants are entitled to the relief of counter claim as prayed for? OPD
5. Whether the defendants have no cause of action to file the counter claim? OPD
6. Relief.
3. On issue No. 1, the learned trial Court reached the conclusion that the construction of the house of the plaintiff-appellant is admitted by defendant-respondents and defendant-respondents were restrained from interfering in the peaceful possession of the house. On the question of counter claim, Issue No. 4 was framed and it was decided against the defendant-respondents. The Civil Judge dismissed the suit as well as the counter claim. The basis of dismissal of the suit was that the plaintiff-appellant failed to prove that she has fixed a gate AB as per Ex.P2 site plan with the consent of the owner as per the agreement entered into between her and the owner dated 26.12.1986 (16.12.1986?) She also failed to prove on record how much land she purchased vide sale deed dated 24.7.1985 as she sale deed was not placed on record.
4. Lower Appellate Court maintain the findings with regard to dismissal of the suit of the plaintiff-appellant but reversed the finding recorded on the counter claim. The basic reason for recording the finding in favour of counter-claim is that the plaintiff-appellant has raised illegal construction without getting the plan sanctioned from the Municipal Committee and both Dhillon Colony and Rai Colony are different and distinct colonies. The views of the Addl. District Judge, in this regard reads as under:
"The point that arises for determination under this issue is whether the appellant owned any land in Rai Colony because it is an admitted case of the appellant that the house in dispute is situated in Dhillon Colony and although the appellant while appearing as PW1 has not uttered a word about the construction of the boundary wall on the land in Raj Colony but in the cross-examination she has categorically admitted that the land was purchased by her from Jeona Ram and Satinder and after purchasing the land she got passed the plan from the Municipal Committee. It is an admitted fact that the sale deed of land executed by Jeona Ram was not produced on record. Neither the sale deed of land purchased from Satinder Singh nor the plan got sanctioned from the Municipal Committee has been placed on record to supplement her plea that the construction was made by her after getting the plan sanctioned from the municipal committee, in the absence of which adverse inference has to be drawn that no sanction was obtained from the municipal committee and rather the appellant has illegally encroached upon the road in front of the house of Smt. Kamla, who has purchased the plot in dispute vide sale deed Ex.D2 and this fact is proved from the testimony of DW2 Rachna Ram, who has proved that when the property, subject matter of Ex.D2 was sold to Smt. Kamla, there was one room in which there were ventilators which were quite old and if it is so, then certainly it is to be seen whether boundary wall raised in the front of the house of Smt. Kamla by the appellant is legal or illegal. The simple answer to this is that it is illegal encroachment effected by the appellant without any permission of municipal authorities, because it is cardinal principle of law that the plaintiff has to stand on his own legs and in this case it was obligatory on the appellant to prove that the land on which gate fixed on the side of Raj Colony in front of the house of Kamla belonged to her. There is not an iota of evidence to this effect. The oral statement of PW2 Avtar Singh Mason and PW4 Mewa Lal cannot be said to be the trump card of the appellant. No record of Municipal Committee has been produced on record by the appellant to prove this fact and the admissions made by the appellant that both Dhillon Colony and Raj Colony are different and distinct colonies and all the respondents are residing in Raj Colony, prove the fact that under the garb of this suit, the appellant wants to legalise the illegal construction raised by her and as such I do not find any illegality or irregularity committed by the lower court while returning finding on issue No. 1 against the appellant and the findings are hereby affirmed.
Coming to issue No. 4, regarding the counter claim of the respondent, once it has been held under issue No. 1 that the appellant has raised illegal construction without getting the plan sanctioned from the Municipal Committee, then certainly the plea of the respondents have to be accepted. The argument of the Id. counsel for the appellant that this gate was installed much before the filing of the suit, is without any merit, because when the appellant has failed to prove on record that the gate at point AB installed by her is part of the property purchased by her from Satinder Singh and Jeona Ram, because neither any sale deeds have been produced on record nor vendors have been examined to substantiate the case of the appellant, in the absence of which it cannot be said that the appellant is the owner of the property situated in the Raj Colony and also have right to affix a gate at point AB. The argument of the Id. counsel for the appellant that it was obligatory for the respondent to prove on record that gate at point AB was installed much prior to the filing of suit and that no evidence has been produced on record by the respondents to show that this street is a public street and as such the counter claim be dismissed, but I do not find force in this argument of the Id. counsel for the appellant. The appellant was supposed to prove her case on record as she has come to the court and rather she has withheld the evidence, for which adverse inference is drawn against her. In fact the lower court has committed grave illegally while returning finding on issue No. 4 in favour of the appellant and as such the finding of the lower court on this issue are reversed and this issue is also decided in favour of the respondents and against the appellant."
5. Shri Sarjit Singh, learned senior counsel has argued that the trial Court after giving the finding that the construction of the house has been admitted by the defendant-respondents under Issue No. 1, could not have dismissed the suit of the plaintiff-appellant for permanent injunction. According to the learned counsel the plaintiff-appellant is entitled to enjoy peaceful possession of her house without any interference by any stranger. Learned counsel has also argued that there was no appeal filed by the defendant-respondents against the finding of the trial Court dismissing the counter claim but still the finding on the counter claim has been reversed. Learned counsel has pointed out that the findings of trial Court with regard to counter claim have attained finality in the absence of any appeal by the defendant-respondents.
6. I have thoughtfully considered the submissions made by the learned counsel and do not find any substance in them. Both the Courts below have concurrently found that the plaintiff-appellant has miserably failed to prove that she has constructed the gate AB in her courtyard with the consent of her vendor Shri Jeona Ram and Satinder Singh in accordance with the averments made by her in the plaint that the gate. 'AB' was constructed in pursuance of an agreement dated 26.12.1986 (16.12,1986) entered into between her and the original owner. That agreement has not been produced on record. It is admitted case of the plaintiff-appellant that the house in dispute is situated in Dhillon Colony. She has failed to depose when she appeared as PW1 about the construction of the boundary wall on the land falling in Raj Colony. The sale deed of land executed by Jeona Ram and/or Satinder Singh has not been produced on record nor any sanctioned site plan from the Municipal Committee has been produced on record. An adverse inference has been drawn to conclude that the plaintiff-appellant has illegally encroached on the land of Smt. Kamla, defendant-respondent No. 8 who had purchased the plot in dispute vide sale deed Ex.D2. The plaintiff-appellant was required to stand on her own legs and it was obligatory on her part to prove that the land on which gate is affixed is on the side of Raj Colony in front of the house of Kamla, defendant-respondent No. 8, in fact belonged to her. Raj Colony and Dhillon Colony are two different and distinct colonies and the defendant-respondents are residing in Raj Colony. Therefore, there is no room to interfere in the pure findings of facts recorded by both the Courts below under Section 100 of the Code.
7. The argument of the learned Senior Counsel that the trial Court having found the construction of the house should have decreed the suit does not require any consideration because no prayer was made in the suit for permanent injunction restraining defendant-respondents from interfering in the peaceful possession of the house in question. The principal bone of contention was concerning the relief of permanent injunction in respect of gate AB of the courtyard of the house. Therefore, that relief cold not have been given and the arguments is liable to be rejected.
8. The other argument that the learned Appellate Court could not have reversed the finding recorded by the trial Court dismissing the counter claim of the defendant-respondents would also not call for any detailed examination in view of the provisions made in Order 41 Rule 22 of the Code wherein provision has been made giving right to the defendant-respondents to raise objection to the decree as if they had preferred separate appeal. The provisions of Order 41 Rule 22 are reproduced below for facility of a ready reference.
"22. Upon hearing respondent may object to decree as if he preferred a separate appeal.- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour and may also take any cross-objection to the decree which he could have taken by way of appeal.
Provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate court may see fit to allow.
Explanation.- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree or in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part in favour of that respondent.
(2) From of objection and provisions applicable thereto - Such cross objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable apply to an objection under this rule."
9. A perusal of Rule 22 of Order 41 of the Code shows that a provision has been made granting two distinct rights to the respondents in appeal filed against the original decree. The first right to make submission in support of the decree of the trial court on any of the grounds on which that Court has decided against the respondents. The second right is the right of filing cross-objections to the decree. In cases where the trial Court has accepted the decree completely in favour of the respondent he can support the decree in his favour passed by the trial Court on any of the grounds or the issue decided against him without filing any cross objection. But if the decree is passed against the respondent then he cannot challenge the same in appeal without filing cross objection.
10. The afore-mentioned provision must be read with Order 41 Rule 33 which confers ample power on the Court to pass any decree and make any order which ought to have been passed or made. The provisions of Order 41 Rule 33 of the Code reads as under:
"33. Power of Court of appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decree, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
11. A perusal of Rule 33 of the Order 41 of the Code makes it evident that wide powers have been conferred on the Appellate Court to pass any decree which in law ought to have been passed and which in fact have not been passed by the Subordinate Courts. The Appellate Court may pass a decree or an order which would advance the interest of justice. The afore-mentioned provision came up for consideration before the Supreme Court in the case of Giant Ram v. Ramji Lal, A.I.R. 1969 S.C. 1144. While interpreting the expression "which ought to have been passed", their Lordships observed as under:
"The expression "Which ought to have been passed" means "which ought in law to have been passed". If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the Subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require."
The afore-mentioned interpretation has also been accepted by the Supreme Court in Kok Singh v. Deokabai, A.I.R. 1976 S.C. 634 wherein the argument similar to the one raised by the counsel for the plaintiff-appellant, in the instant appeal, was rejected by the Supreme Court in the following words:
"The second point raised by the appellate was that the respondent did not appeal from the decree of the trial Court negativing her claim in the suit for a charge on the property. It was contended that the High Court was wrong in granting a decree for encroachment of the charge as the decree of the trial Court became final so far as the respondent was concerned as she did not file any appeal therefrom. We are unable to accept this contention. Under Order 41, Rule 33 of the C.P.C. the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree."
A reference may also be made to the views of the Constitution Bench of the Supreme Court expressed in the case Pannal Lal v. State of Bombay, A.I.R. 1963 S.C. 1516. It is apposite to reproduce paras 12 and 18 of the judgment.
"Even a bare reading of Order 41 Rule 33 is significant to convince any one that the wide wording, was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as "the case may require". In the present case, if there was no impediment in law the High court, therefore, though allowing the appeal of the State by dismissing the plaintiffs suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the section make this position abundantly clear the illustration puts the position beyond argument". xx xx xx xx xx xx xx xx "In our opinion, the view that has now been accepted by all the High Courts that Order 41 Rule 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under Order 41 Rule 22 can be directed against the other respondents, is correct. Whatever may have been the position under the old Section 561, the use of the word "cross objection" in Order 41 Rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant."
12. When the facts of the instant case are examined in the light of the principles enunciated in the afore-mentioned judgments, it becomes evident that the lower Appellant Court could have passed such a decree which was just and proper and which ought to have been passed. Once it was found that the plaintiff-appellant has failed to produce on record any site plan sanctioning the construction of gate AB an adverse inference was to be drawn against her. As a consequence the gate which is shown to have been constructed during the pendency of the suit and was encroachment upon the plot purchased by defendant-respondent No. 8 was liable to be removed by issuing a mandatory injunction as claimed in the counter claim of the defendant-respondents. The suit of the plaintiff-appellant has been dismissed. Therefore, the appeal is without any merit an is thus liable to be dismissed.
For the reasons recorded above this appeal fails and the same is dismissed.