Delhi District Court
Sh. Satya Prakash vs Smt. Phoolwati Devi on 1 October, 2011
1/18
IN THE COURT OF SH. S. S. MALHOTRA, ADDL. DISTRICT
JUDGE/EAST/KARKARDOOMA COURTS:DELHI
RCA 41/11
Date of filing of appeal : 04.03.2010
Date of arguments : 02.09.2011
Date of order : 01.10.2011
IN THE MATTER OF :
Sh. Satya Prakash
S/o Sh. Kunwar Pal Singh
R/o 1/4325, Ram Nagar Extn.,
Mandoli Road, Shahdara, Delhi .....Appellant
Versus
Smt. Phoolwati Devi
W/o Sh. Kunwar Pal Singh
R/o Village Naglu Sathu
P.O. Mendu, Thana Saasni,
District Hathras, U.P. ......Respondent
ORDER:
1 Vide this order, I shall dispose off the appeal of the appellant/defendant under order 41 rule 1 CPC against the judgment/decree dated 20.01.2010 of the Ld. Trial Court by which the Ld. Trial Court has decreed the amended suit of the plaintiff for permanent injunction and possession in favour of the plaintiff. 2 Before coming to the grounds of the appeal, briefs facts stated by the appellant 2/18 pertaining to the present proceedings are that plaintiff initially filed a suit for permanent and mandatory injunction which she subsequently amended as a suit for permanent injunction and possession and the defendant/appellant filed written statement to the amended plaint as well. However, subsequently the defendant also filed an amendment application for amending the written statement which application was illegally and irrationally declined by the Ld. Trial Court and after framing up of the issues the Ld. Trial Court called for the witnesses but unfortunately ld. Counsel for appellant could not place on record various documents provided by the appellant nor could summon the requisite witnesses, despite having provided the names of the witnesses in the list of witnesses and consequently the appellant could not be represented properly before the Ld. Trial Court, due to lack of professional and timely advice to him by the ld. previous counsel and as such the Ld. Trial Court decreed the suit of the plaintiff illegally and against which judgment/decree, the present appeal is being filed by the appellant/defendant on various grounds. It is further submitted that he has also filed an application under order 41 rule 27 CPC simultaneously seeking permission to lead additional evidence. 2 Now coming to the facts as mentioned in the grounds of appeal.
3 The appellant has stated that the order of Ld. Trial Court has been passed illegally by giving unnecessary weightage to the licensor and licensee relationship and the entire judgment of the Ld. Trial Court is based on this relationship despite the fact that the respondent has failed to prove the creation of license, terms of license or valid termination of license. It is further submitted that the Ld. Trial Court has failed to appreciate that there was no cause of action at all for filing the present suit. The 3/18 service of alleged undated notice of termination of alleged license has not been proved. The order of the Ld. Trial Court is based on presumption and conjectures and the Ld. Trial Court has failed to appreciate the provision of Section 60 of the Indian Easements Act, 1882 which interalia creates a legal bar from termination of licensorlicensee agreement when the licensee while acting upon the terms and conditions of the license has executed some work of permanent character on the property and has incurred expenses on such work. In the present case it is submitted that the appellant has invested huge amounts in the construction of the building apart from four rooms, which were constructed by the plaintiff/respondent. It is further submitted that Ld. Trial Court has failed to appreciate that there was no relationship of licensor and licensee as appellant was/is in exclusive possession with his lock and key and once the possession has been transfered exclusively to the appellant, there is no relationship of licensor and licensee and in any case the court was supposed to frame an issue with respect to section 60 of the Indian Easements Act, 1882 and should have given its finding on the same and since no such finding has been given on this legal provision, the order of the Ld. Trial Court is bad in the eyes of law. It is further submitted that the plaint had not disclosed any cause of action particularly on the alleged date of 9.03.2001. The alleged manhandling ipso facto can not be a cause of action for termination of the alleged license, nor the issuance of a legal notice on 23.03.2001 can be a valid cause of action to file the present suit legally and despite the fact that the suit was without any cause of action, the Ld. Trial Court has decreed the suit. It is further submitted that the property was not purchased by the respondent at all nor she was having sufficient funds as she was not a working woman. The 4/18 relationship in between the parties, was and is of fiduciary in nature and the property was constructed with the funds of the appellant and as such the appellant is entitled to the protection of Section 60 of the Indian Easements Act, 1882. The order of the Ld. Trial Court is also bad in the eyes of law as the Ld. Trial Court did not allow the amendment in the written statement and the same has defeated the cause of justice and even the application filed by the defendant under order 18 rule 17 CPC was also dismissed irrationally and illegally by the Ld. Trial Court. It is further submitted that the Ld. Trial Court has not appreciated the evidence and pleadings in right perspective and adopted a totally presumptive and subjective approach in decreeing the suit of the plaintiff and as such the Ld. Trial Court failed to apply his judicial mind to the material on record in an objective and irrationale manner which has resulted in giving the present judgment against the defendant. In these circumstances, he has prayed that the appeal of the appellant be allowed and the order of the Ld. Trial Court be set aside.
4 The appellant/defendant has filed an application under order 41 rule 27 CPC thereby stating that he has filed the present appeal seeking setting aside the judgment and decree dated 20.01.2010 of the Ld. Trial Court and it is submitted that despite due diligence, the original receipts/bills of building material purchased and payments to the labour charges and transport charges for such building materials for the construction on the suit property by the appellant, could not be brought on record of the Ld. Trial Court, although the same were delivered to the counsel appearing in the Ld. Trial Court and even the witnesses were not summoned for oral evidence by the counsel for the appellant herein and the appellant was unaware of this fact of non 5/18 filing of the documentary evidence as well as nonsummoning of the witnesses for oral evidence. It is further submitted that the client is always dependent upon the lawyers for such type of legal work and judicial notice of these facts has to be taken by the court under the provision of Indian Evidence Act having the regard to the common course of natural events, human conduct and public and private business and it is submitted that the appellant in these circumstances, could not file these documents before the Ld. Trial Court and as such he filed the application under order 41 rule 27 CPC seeking permission to lead additional evidence to prove such facts and documents on record.
5 Notice of this appeal was sent to the respondent and respondent has filed reply to the appeal taking various preliminary objections that the present appeal is based on two contradictory facts as stated by the appellant, firstly, that the appellant himself is not admitting the relationship of licensor and licensee and secondly he is claiming the benefit of the provision of section 60 of the Indian Easement Act, by which he claims a benefit of being licensee by arguing that the court has not granted any benefit of section 60 of Indian Easement Act and therefore, the appeal of the appellant is liable to be dismissed on this vague and contradictory ground taken by the appellant. It is further submitted that the appellant has failed to point out any infirmity or illegality in the order of the Ld. Trial Court rather his appeal is contradiction with the facts pleaded by him before the Ld. Trial Court and pleaded before this court and arguments which are being advanced. It is further submitted that the appellant had contested the suit before the Ld. Trial Court on the ground that the appellant is not a licensee and in the present appeal he is claiming that he is protected 6/18 under the provision of section 60 of the Indian Easement Act which is altogether contradictory plea and the plaintiff has not produced any evidence on the averments taken by him before the Ld. Trial Court to prove that he is not a licensee under the respondent and a decree has been passed in favour of the respondent on the admission of the appellant that the suit property was purchased by the plaintiff which is not challenged in the present appeal. It is further submitted that the appeal of the appellant is without any affidavit of the appellant and the same is liable to be dismissed.
6 On merits, it is submitted that the contents of the appeal are vague and some blank space have been left in the documents supplied to the respondent and it is specifically denied that the Ld. Trial Court has decreed the suit illegally as is being alleged. As far as reply to the grounds of the appeal are concerned, it is denied that the Ld. Trial Court has passed the order based on the relationship of the licenser and licensee or the respondent has failed to prove the creation of license, terms of license and valid termination of license as alleged and it is submitted that the appellant denied the fact of his status as licensee even before the Ld. Trial Court as well as in this para. It is further submitted that if the appellant is not admitting the relationship of licensee and licensor, then the appellant can not take benefit of section 60 of the Indian Easement Act before this court. It is also denied that no cause of action has arisen on 9.03.2001 or 23.03.2001 as alleged and it submitted that the appellant and his wife are trying to grab the property of the respondent as they have been threatening the respondent and also have not handed over the vacant and peaceful possession of the suit property to the respondent despite service of legal notice and 7/18 despite the judgment of the Ld. Trial Court. The postal receipts are stated to be duly proved alongwith legal notice and other facts are denied word by word by the respondent.
7 It is further submitted that the appellant before the Ld. Trial Court in his written statement has stated that the property in question was got purchased by the plaintiff's husband i.e. defendant's father after selling some ancestral property in the village and the property in question had no construction when it was purchased. Subsequently the defendant himself collected his earnings and contributed his shares in constructing the existing structure of the property in question. Keeping in view this fact it is submitted that the defendant is entitled only to his share in the property in question and as such he is residing in the property in question in the same capacity. The appellant has not led any evidence to prove the fact as stated by him in the written statement that the suit property was purchased from the funds received after selling the ancestral property or the property is an ancestral one as is being alleged. The reliance on the provision of section 60 of the Indian Easements Act are also stated to be not applicable to the present case as even if the appellant is held to be a licensee then he has not made any construction with the permission of the licensor. Therefore, he is not entitled to any benefit of section 60 of the Indian Easements Act. It is further submitted that the Ld. Trial Court could not have considered the legal position of section 60 of the Indian Easements Act as this plea was never raised in the written statement of the defendant and in absence of any plea, no issue could have been framed or disposed off. The appellant never raised any plea before the Ld. Trial Court or in this appeal that he has made improvement in the suit property on the 8/18 directions of the respondent and as such the provision of section 60 of the Indian Easements Act are not applicable.
8 It is further submitted that the decree was passed by the Ld. Trial Court on the valid cause of action which can not be challenged in any manner as the ownership of the plaintiff was duly admitted by the appellant before the Ld. Trial Court. In these circumstances, it is prayed that the appeal of the appellant be dismissed. It is denied that the appellant was dependent upon his lawyer for technical procedure or he could not bring the entire record. He has also denied that the Ld. Trial Court was not gracious enough to allow the amendment in the written statement. It is also denied that the application of the appellant under order 18 rule 17 CPC was also dismissed irrationally and illegally and it is submitted that all the above said allegations are baseless, false, vague and liable to be rejected. It is further submitted that the present appeal is not supported by any documentary evidence to the effect that there was any fault on the part of the lawyer of the appellant. It is further submitted that the amendment application as well as application under order 18 rule 17 CPC was dismissed by the Ld. Trial Court after proper hearing and on merit and the appellant had not filed any revision/appeal against the dismissal of the amendment application which itself shows that the appellant was very much satisfied with the order of the Ld. Trial Court at that time. It is further submitted that mere assertion that the Ld. Trial Court has not appreciated the evidence and pleadings in right perspective or has adopted a totally presumption and subjective approach in decreeing the suit without any basis is not enough to set aside the legal order of the Ld. Trial Court and in these circumstances, it is prayed that the appeal of the appellant be dismissed.
9/18 9 In reply to the application under order 41 rule 27 CPC, it is submitted that the applicant has not filed any confirmation/documentary evidence from his counsel so as to appreciate that he could not bring the record due to fault of the counsel. The present application is not supported by the affidavit of that counsel who has not performed his duties towards the appellant. The present application has also not mentioned any facts which put the applicant in the state of unawareness with respect to the fact non filing of documentary evidence as well as non summoning of witnesses by the counsel. It is further submitted that it is the admitted fact that the possession of the suit property is presently lying with the appellant and it is also admitted fact that the appellant raised construction over the suit property voluntarily and without the consent of the respondent. It is even submitted that the respondent who is mother of the appellant is ready to give the share of the appellant after partition of the suit property amongst her all sons but not in the present circumstances and in these circumstances the present application is futile exercise which shall not render any consequence on the present case and it is prayed that the application under order 41 rule 27 CPC be dismissed.
10 I have heard the arguments and perused the record.
11 The matter was also sent meanwhile to the Mediation Centre but it could not be settled in the Mediation Centre. It is also observed by the court that the appellant has delayed the proceedings to larger extent and could not argue the matter for sufficient period and ultimately a cost was imposed upon the appellant and only thereafter, the appellant argued the matter. Ld. Counsel for appellant has aruged that his application under order 41 rule 27 CPC be decided first prior to the appeal and then he would be 10/18 allowed to be heard on merits. However, the court vide order dated 2.09.2011 has held that the application under order 41 rule 27 CPC as well as main appeal would be heard and decided simultaneously and if needs so arises the application under order 41 rule 27 CPC may be decided first which depends upon the facts and circumstances and after hearing all the arguments at length, the court is of the opinion that the application as well as appeal can be decided simultaneously. Accordingly, the court is disposing off the application of the appellant under order 41 rule 27 CPC first. 12 Before appreciating the contentions of ld. Counsel for appellant it is necessary to mention that this is a suit of the plaintiff which was initially filed by the plaintiff as a suit for permanent injunction and mandatory injunction in the year 2001 i.e. 25.04.2001. The Ld. Trial Court after completion of pleadings framed issues on 31.01.2003. The appellant thereafter was proceeded exparte once which order was subsequently set aside and ultimately after going all the ups and downs of the file, the matter reached the stage of final arguments on 5.10.2005. Thereafter, the matter started getting late and the plaintiff filed an application under order 6 rule 17 CPC for amending the suit i.e. from the suit for mandatory injunction, she amended the suit and she claimed the relief of the possession instead of mandatory injunction which application was allowed and the plaintiff was directed to pay the appropriate court fees and defendant was allowed to file written statement to the amended plaint. The defendant/appellant instead of amending the plant on facts which were amended by the plaintiff filed altogether a different written statement taking inconsistent plea to the previous written statement and plaintiff had to file an application under order 6 rule 7 CPC that those amendments which are not corresponding to the amendment 11/18 sought by the plaintiff be ordered to be removed from the amended plaint. That application took considerably a long time and ultimately the court allowed the application under order 6 rule 7 CPC of the plaintiff and defendant was directed to file written statement only to those amendments which were sought by the plaintiff in the plaint. The defendant thereafter filed the said written statement but again filed an application under order 6 rule 17 CPC seeking permission to amend the written statement. That application was dismissed by the court by a detailed order and defendant has not filed any revision or appeal against the order of that order of dismissal of application under order 6 rule 17 CPC. The matter again was fixed for final arguments and at that stage the defendant filed an application under order 18 rule 17(A) CPC seeking permission to lead additional evidence which permission to seek additional evidence was partly with respect to same facts which the defendant intended to mention in the amended written statement by filing an application under order 6 rule 17 CPC and which application was also disallowed and the defendant choose to file an application under order 18 rule 17 CPC seeking permission to lead additional evidence. That application of the defendant was also dismissed by the Ld. Trial Court and the defendant thereafter went in revision before the Hon'ble High Court challenging the order of the Ld. Trial Court of dismissal the application under order 18 rule 17 (A) CPC. The Hon'ble High Court in CM(M) 1520/09 has strongly deprecated the conduct of the defendant and has held as follows: ''I thus do not find the petitioner/defendant to have even made out a case for grant of an opportunity to lead additional evidence. If in spite of findings as in the present case of the trial court, of the 12/18 malafide conduct of a party of having delayed the final arguments for over four years, this court merely for the reason being approached and without any case being made out grants another opportunity, the same will subvert the procedure which the trial courts are expected to follow.
As far as the other reasoning given by the trial court of the documents being not relevant, the counsel for the petitioner/defendant explains that the documents are receipts of payment of electricity and water bills of the suit property. No error can be found with the reasoning of the trial court of the said documents being not determinative of the title to the property. Though procedure cannot come in the way of substantial justice but equities of both parties are to be balanced. Here the balance is in favour of the respondent/plaintiff and not in favour of the petitioner/defendant who is found to be indulging in dilatory tactics.'' 13 Despite this dismissal of the application of the defendant by the Hon'ble High Court the appellant had not mentioned even an iota in this order in this appeal rather he mentioned that the Ld. Trial Court has dismissed the application of the defendant under order 18 rule 17 (A) CPC illegally and irrationally. In the considered opinion of this court, the language and wording which a lawyer has chosen, in these circumstances, was unwarranted but this court is not referring any opinion and this court is definitely of the opinion on this aspect that the appellant was duty bound to 13/18 disclose such facts in the appeal as well as in the application as filed by him under order 41 rule 27 CPC that he sought permission to lead additional evidence from the Hon'ble High Courts as well after dismissal of the application under order 18 rule 17 CPC by the Ld. Trial Court but he failed.
14 Now coming to the merits of the application. In the present application the defendant is trying to prove only those documents which have been disallowed by the Ld. Trial Court as well as by the Hon'ble High Court and those documents were not even filed before the Ld. Trial Court.
15 I have gone through the provision of order 41 rule 27 CPC. It reads as under: (1)The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
14/18
(2)Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
16 The provisions of order 41 rule 27 CPC inter alia provide that in case any evidence was beyond the control of the defendant at the time when the evidence was being led before the Ld. Trial Court or which the party concerned would not have been able to produce despite due diligence before the Ld. Trial Court and which document is necessary for the disposal of the matter on merits such document may be allowed to be produced and such evidence may be allowed to be adduced under order 41 rule 27 CPC.
17 This court is of the opinion that in the present case there appears to be no due diligence on the part of the appellant for not filing such documents before the Ld. Trial Court at that appropriate stage rather he tried his level best to delay the proceedings on one pretext or other and which fact was observed not only by the Ld. Trial Court but also by the Hon'ble High Court. Even this conduct was observed by this court as appellant was not arguing the matter after filing the appeal and ultimately the court had to impose a cost upon the appellant so as to tell him to argue the matter and only thereafter the appellant argued the matter. Keeping in view the dilatory tactics of the appellant of delaying the matter the court is of the opinion that the provision of order 41 rule 27 CPC are not applicable to the present case. The application of the appellant under order 41 rule 27 CPC is dismissed. 18 Now coming to the main appeal. Arguments of ld. Counsel for appellant are contradictory in the written statement which the defendant filed before the Ld. Trial 15/18 Court where he had taken the defence that he is the owner of the property and his mother was not the owner of the property. He in the written statement alleged that the property was purchased by his father from the ancestral funds and he raised the construction on the same with his own funds. He in the written statement admitted the fact that he has other brother and no relinquishment deed has been executed by his brother either in his favour or in favour of his parents. He subsequently intended to amend the written statement which was declined.
19 The case of the plaintiff from the very beginning is that the defendant was permissive occupier of the plaintiff i.e. licensee under the mother and license has been terminated and therefore, appellant is liable to vacate the suit premises. It is admitted fact that this property was purchased around 40 years back as per the statement of PW1 and PW2 and they deposed that the property was purchased in the year 1966. The defendant submits that his date of birth is 15.08.1954. Therefore, in the year 1966, he was just 12 years of age. This fact confirms that the property has not been purchased by the defendant at all from his funds. Therefore, his claim that he is the owner of the property is not well found and it is well within the knowledge of the defendant even. Once the defendant is not the owner of the property, it is well settled law that by mere raising construction over the property or by contributing the funds in the construction of the property of parents nobody can be held to have become the owner of the suit property. What is the right of the defendant if he has contributed in raising the construction of the joint family property is that he has made the construction for the purpose of welfare of the property and the family. His right in the suit property thereafter is only of a permissive occupier and he can not be 16/18 held to be the owner of the immovable property by such imagination nor he can be held to be the owner of the property and to prove the ownership, certain legal foundations are required to be pleaded and proved. There is no such proof of his becoming the owner of the suit property. Therefore, the court is of the opinion that the Ld. Trial Court has rightly disbelieved the version of the defendant and decreed the suit of the plaintiff. As far as appeal is concerned, in the appeal the defendant has almost taken contradictory stands. The main ground in the present appeal is that even if the defendant is held to be a permissive occupier or a licensee then he claims that he has certain rights under section 60 (b) of the Indian Easements Act and those rights can not be served without the consent of the defendant.
20 I have also gone through the provision of Section 60 (b) of the Indian Easements Act. It reads as under:
License when revocable: A license may be revoked by the grantor, unless
(a) It is coupled with a transfer of property and such transfer is in force.
(b) the licensee, acting upon the license, has executed a
work for a permanent character and incurred expenses in the
execution.
21 It is argued by the ld. Counsel for appellant that he has raised the construction
with his own funds. He was having his own earning. His mother was not having any earnings and therefore, all the constructions have been raised by him and since he has raised the construction over the immovable property as a licensee with the consent of 17/18 the plaintiff his license can not be terminated without his consent and without giving proper notice.
22 On the other hand ld. Counsel for respondent has argued that this issue was never raised at all before the Ld. Trial Court and as such the Ld. Trial Court had no need to consider the legal position of section 60 (b) of the Indian Easement Act and in any case whatsoever construction has been raised by the appellant, it can not make him the owner of the suit property and it is further argued that he has not made any construction on the saying of the respondent or with the consent of the respondent. The appellant has not been able to prove before the Ld. Trial Court that he has taken any permission from the respondent for raising construction in the suit property. Therefore, even the provision of section 60 (b) of the Indian Easement Act are of no assistance to the appellant in the present matter.
23 I have also perused the provision of section 60 of the Indian Easement Act and from this fact the contention of ld. Counsel for respondent seems to be well found that the appellant has failed to prove both the facts that he is the owner of the suit property or he has become the owner of the suit property by raising construction or that he has raised the construction with the consent of the owner. If the appellant would have taken this stand from the very beginning and would have pleaded such facts, definitely then, the Ld. Trial Court was duty bound to frame this issue and then to dispose off that issue. This plea is being taken for the first time in the appeal and even the appeal as has been framed by the appellant is contradictory as the appellant so far is not sure as to what is his legal status in the immovable property. At one place he claims that he is the owner of the suit property and at other place he claims 18/18 that his license has not been properly terminated. Thus the appellant has also not been able to prove that he has ever become the owner of the suit property and property was purchased by the plaintiff's husband with the funds by selling the ancestral property. All the pleas which are taken by the appellant have not been proved by the appellant. On the other hand respondent has been able to successfully prove that he has served the legal notice upon the appellant thereby terminating the license of the appellant. Cause of action has been disclosed by the plaintiff. If the plaintiff alleges that the cause of action has arisen on a particular date, then the plaintiff has to prove it. If the defendant intends to disprove, he has to prove it with strict evidence. Defendant has not led any evidence on this aspect after taking plea. The plaintiff has proved the same in his evidence. As far as ground that no cause of action has been arisen on 9.03.2011 and 23.03.2001, the appellant has also not been able to prove this aspect. Keeping in view totality of the facts and circumstances, the court is of the opinion that there is no merits in the appeal nor there is any illegality or irregularity or legal infirmity in the order of Ld. Trial Court. In these circumstances, the appeal of the appellant under order 41 rule 1 CPC is dismissed.
23 TCR be sent back to the court concerned with copy of this order and appeal file be consigned to the Record Room.
ANNOUNCED IN OPEN COURT (S.S. MALHOTRA)
ON 1st DAY OF OCTOBER 2011 ADDL. DISTRICT JUDGE/
KARKARDOOMA COURTS/ DELHI