Smt. Usha Sah & Ors. ..... Appellants vs Smt. Kamla Sah & Ors on 19 June, 2020

[Cites 12, Cited by 0]

Uttarakhand High Court

Smt. Usha Sah & Ors. ..... Appellants vs Smt. Kamla Sah & Ors on 19 June, 2020

Equivalent citations: AIR 2021 UTTARAKHAND 54, AIRONLINE 2020 UTR 311

Instant first appeals, preferred under section 96 of Code of Civil Procedure, (hereinafter to be referred as CPC) are directed against the judgment and decree dated 28.11.2015 passed by Civil Judge, (Senior Division), Nainital, in Suit No.58 of 2006, partially decreeing the respondents/plaintiffs' suit for mandatory injunction as well as dismissing the counter claim of the appellants/defendants.

2. Brief facts of the case, as pleaded in the plaint, are that predecessors-in-interest of the parties viz. Late Sri Lalit Prasad Shah and Late Sri Mohan Chandra Shah were the joint owners of the suit property. After their death, the respondents/plaintiffs and appellants/defendants became the joint owner and in possession of the suit property being H.No.49-50 situated at Mallital Bazar, Nainital. The name of the parties got mutated in the Nagar Palika Parishad Nainital. After the death of predecessors-in-interest of appellants/defendants Late Sri Mohan Prashad Shah, a family arrangement was taken place between the parties, which was reduced in writing on 05.07.2005. As per the family arrangement dated 05.07.2005, the property was divided between the parties, like under:-

1. Lalit Prashad Shah S/o Late Sri Shiv Lal Shah

a) Shop no.50 (ground floor)

b) Total second floor of H.No. 49-50 from the front of the building to back of the building up to the path and in the front of the building towards Bazar 1/2 portion of the third Floor (towards shop no.50) to the side of Meena Bazar shop.

c) In the upper side of House no.50 towards the Meena Bazar side, in which the kitchen of Sri Lalit Prashad Shah Exists.

2. Sri Kaushal Shah & Romit Shah sons of late Sri Mohan Chandra Shah:-

a) Shop no.49 (Ground floor) b- Whole first floor and Godown of House no.49-50

3. Sri Kaushal Shah S/o Mohan Chandra Shah:-

a) Half portion of third floor of H.No.49-50, towards H.No.47-48

b) Shop of back side of H.No.49

4. Romit Shah S/o Late Mohan Chandra Shah

a) Fourth storey of H.No.49-50

b) The back side shop of H.No.50.

3. It is pleaded that it was also agreed between the parties that the possession of their respective shares will be taken by the parties after laying the R.C.C. lintels of their part in the process of renovation of the building. An application for sanction of plan was moved before the sanctioning authority in the joint names of Late Lalit Prasad Shah and defendant nos.2 and 3. It is further pleaded that the defendant nos.2 and 3 have started the construction of entire first floor of suit property after demolishing the whole building towards Bara Bazar Mallital. After the completion of the construction of first floor i.e. after laying the lintel in the first floor, the plaintiffs have to start the construction of the whole second floor which came into their share as per the family arrangement dated 05.07.2005. Plaintiff nos.1 and 2 resides at Ramnagar. They were aware of the construction. The plaintiffs were under the impression that when the defendants will complete the construction, they will inform the plaintiffs and then the plaintiffs will start their construction. When the defendants did not respond, and showed their ill intention for not complying with the family arrangement dated 05.07.2005, and also threatened the plaintiffs to sell or alienate the property, the plaintiffs constrained to institute the suit being 4 Original Suit No.58 of 2006 against the appellants/defendants for the following relief:-

A- That a decree for permanent prohibitory injunction may kindly be passed in favour of the plaintiffs and against the defendants, by restraining to the defendants from making any further construction, from letting out or alienate or giving the possession of any part of the H.No.49-50 to any one in any manner and also to restrain to the defendants from making any interference in using the H.No.49-50 Mallital Bazar, Nainital by the plaintiffs till the partition of the joint suit property.

4. The defendants contested the suit and filed their written statement denying the plaint averments.

In the written statement, they specifically pleaded that no family arrangement was reduced in writing on 05.07.2005. The suit property is a joint property of Late Sri Lalit Prasad Shah and Late Sri Mohan Chandra Shah and an oral partition of the property had taken place wherein the shops came in the share of the plaintiffs which have been sold by them, and only a kitchen on the fourth floor is in the share of the plaintiffs. The predecessors in interest of the appellants/defendants initiated the legal proceedings and spent ` 10.00 Lacs to get the property vacated from the tenants but not a single penny was given by the predecessors in interest of the plaintiffs. It is further stated that these shops have been sold to the tenants. It was also alleged that the plaintiffs have not paid the amount towards getting the map sanctioned in the joint names. It was orally decided that the contract 5 shall be given to a contractor to demolish the house for an amount of ` 4.00 lacs and the defendant no.3 has paid the amount to the contractor. Construction was started by the defendants. Plaintiffs have filed the suit for prohibitory injunction without their being any valid ground. The construction material was at site and due to the interim injunction granted by the trial court, the construction material could not be utilized which was washed away during rainy season, which caused a loss of ` 30,000/- to the defendants. Thus, for the damages caused to the defendants, the defendants raised a counter claim for a decree of recovery of ` 30,000/- from the plaintiffs along with interest @ 16% per annum.

5. Despite opportunity granted, the respondents/plaintiffs did not file any written statement to rebut the counter claim raised by the appellants/defendants. However, they moved an amendment application under Order VI Rule 17 read with Section 151 of CPC, seeking addition of following relief in the plaint:-

"A-1 That a decree of permanent mandatory injunction may kindly be passed in favour of the plaintiffs and against the defendants, by directing the defendants to construct the R.C.C. slab over the semi-constructed first floor of the suit property as provided in the family settlement deed 5.7.2005 within a stipulated time."

It is worth noting that the Statute does not provide such relief of 'permanent mandatory 6 injunction', but the relief, as sought in the plaint, has been quoted above.

6. The defendants filed their additional written statement against the amended plaint and denied the plaint averments. After hearing the counsel for the respective parties and on perusal of material, the trial court, allowed the amendment application.

7. On pleadings of parties, the trial court framed the following issues:-

i) Whether on 05.07.2005 a written family settlement was entered into between defendant nos.2 and 3 and predecessors of plaintiffs Sri Lalit Prasad Shah?

ii) Whether the plaintiffs are entitled to get the relief sought?

iii) Whether the defendants are entitled to receive the compensation mentioned in the counter claim?

iv) Whether the suit is barred by the provisions of Order VII Rule 11 of CPC?

v) Relief?

8. On behalf of the plaintiffs/respondents, plaintiff no.2 Arvind Shah was examined as PW2 who has deposed that after the death of Late Sri Mohan Chandra Shah, a mutual family settlement was entered into between the defendants and predecessor of plaintiffs Sri Lalit Prasad Shah, on the request of defendant nos.2 and 3, which was reduced in writing on 05.07.2005. As per the said family settlement, it was agreed between the parties that entry point of the 7 suit property will remain the same whereas R.C.C. lintel slab will be constructed during renovation. In cross-examination, he stated that suit property is a four storey building and that ground floor shops have been sold to the tenants. He also stated that the family settlement is not registered. It would be worth mentioning here that neither the original copy of alleged family arrangement was brought on record nor the same is proved nor the same is registered.

9. On behalf of the defendants, DW1 Romit Shah was examined. In examination-in-chief, he supported the averments made in the written statement and additional written statement. In cross-

examination, he stated that due to interim injunction order, construction could not be completed by the defendants. He admitted that an oral partition took place in 2005, according to which, the defendants had to raise construction till first floor. Due to the order of interim injunction passed by the trial court, further construction was stopped.

10. In documentary evidence, on behalf of the plaintiffs, Xerox copy of partition deed paper no.10C/1 to 2, death certificate of Sri Lalit Prasad Shah, copy of letter sent to Secretary, Lake Development Authority paper no.12C, tax assessment list for the period 01.04.2005 to 31.03.2005 of Nagar Palika, Nainital, photocopy of renovation plan, etc. were filed.

11. On behalf of defendants, original copy of quotation/estimate dated 15.01.2006, carbon copy of account statement dated 28.04.2007, receipts dated 8 24.09.2005, 25.01.2006 and 08.09.2005 issued by Lake Development Authority, Nainital, receipts issued by Nagar Palika Parishad, Nainital, copy of water bill w.e.f. October 2004 to March 2005, etc. were filed.

12. The trial court, having considered the pleadings and the evidence led by the parties, recorded its findings on all the issues, and by judgment and decree dated 28.11.2015, dismissed the respondents/plaintiffs' suit for prohibitory injunction as well as the counter claim raised by the appellants/defendants. However, the suit for a decree of mandatory injunction was partly allowed, thereby directing the respondents to construct RCC slab above the semi-constructed first floor within two months.

13. I have heard learned counsel for the parties and perused the entire record.

14. Order XLI Rule 31 of the CPC provides the guidelines for the appellate court to decide the matter. For ready reference, Order XLI Rule 31 of the CPC is quoted as under: -

"31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state--

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time it is pronounced be signed and 9 dated by the Judge or by the Judges concurring therein."

Findings on issue no.(i)

15. The trial court has decided issue no.1 in favour of the respondents/plaintiffs and has held that partition deed was executed between the parties, which was reduced in writing on 05.07.2005. This issue was formulated by the trial court on the basis of pleading made by the respondents/plaintiffs in the plaint. Thus, burden lies upon the respondents/plaintiffs to prove this issue. The defendants have specifically denied that any family arrangement was reduced in writing on 05.07.2005.

16. Section 101 of the Indian Evidence Act, would be apt to mention here, which is quoted here:-

"101. Burden of proof.-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

17. In order to prove the fact that the family arrangement was executed between the parties and it was reduced in writing on 05.07.2005, plaintiffs have not led any evidence, neither oral nor documentary. A xerox copy of alleged family arrangement dated 05.07.2005 paper no.10C/1 to 10C/2 was filed before the court below, which was not even legible. Neither 10 the family arrangement was a registered document, nor original family arrangement was produced at any time before the Court below.

18. As per Section 17 of the Registration Act, 1908, all transactions that involve the sale of an immovable property for a value exceeding ` 100, should be registered.

19. Section 49 of the Registration Act would be apt to mention, which is reproduced hereunder:-

"49. Effect of non-registration of documents required to be registered.-

No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall-

(a) affect any immovable property comprised therein, order

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."

20. In K.B. Saha and Sons Private Limited vs. Development Consultant Limited2, it was held as under:-

"34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evidence that:

1. A document required to be registered, if unregistered is not admissible into evidence under section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."

21. In Bondar Singh and others vs. Nihal Singh and others3, it was also held that an unstamped and unregistered sale deed does not convey title to the vendee and is not admissible in evidence and only can be looked into for collateral purposes.

22. In H. Siddiqui vs. A. Ramalingam1, it was held by Hon'ble Apex Court that though the provisions 12 of Section 65 of the 1872 Act permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.

23. In view of the findings recorded on issue no.(i), it is held that the plaintiffs have failed to prove the execution of written family arrangement dated 05.07.2005. Photocopy of the family arrangement dated 05.07.2005 is a secondary evidence and is not admissible in evidence. The trial court has committed illegality in deciding issue no.1 in favour of the respondents/plaintiffs and has recorded a perverse finding therein that a written family arrangement was executed between the parties. Findings recorded by the trial court on issue no.1 are based on surmises and conjectures. Same, being perverse, are set-aside. Since 13 the respondents/plaintiffs could not prove issue no.1, issue no.1 is decided in negative.

Findings on issue no.(ii)

24. On issue no.2, the trial court has recorded a finding that as the defendants are also having share in the suit property along with the plaintiffs, a decree of permanent prohibitory injunction cannot be passed in favour of the plaintiffs, but on the basis of family settlement dated 05.07.2005, a decree of permanent mandatory injunction can be passed by directing the defendants to construct RCC slab above the semi- constructed first floor. Issue no.2 was accordingly decided in favour of the respondents/plaintiffs, and a decree of permanent mandatory injunction was passed in their favour.

25. At the first instance, the respondents/plaintiffs filed the suit for a decree of permanent prohibitory injunction stating that the suit property is a joint property and the defendants are threatening to raise the construction and alienating the property in dispute. However, after the filing of the written statement by the appellants/defendants and raising counter claim for a decree of recovery of damages, respondents/plaintiffs got amended their plaint, seeking a relief of permanent mandatory injunction, which relief has already adverted to by this Court in preceding paragraphs.

26. Section 39 of the Specific Relief Act, 1963 would be relevant for the purpose, which is extracted hereunder;-

"39. Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."

27. A perusal of relief A-1 of the plaint would reveal that such relief is not defined in any of the statute. Moreover, it has been held by this Court on issue no.1 that the written family arrangement dated 05.07.2005 is not proved and the photocopy of the same is not admissible in evidence, thus, no breach has been occasioned on the part of the appellants/defendant, which can be enforced. Relief of permanent mandatory injunction, as sought by the respondents/plaintiffs is not tenable and the issue no.1 has already been decided against the respondents/plaintiffs. In such view of the matter, respondents/plaintiffs are not entitled for any relief. Issue no.2 is decided in negative.

Findings on issue no.(iii)

28. On issue no.3, the trial court observed that if the defendants were aggrieved by the order of interim injunction granted in favour of the plaintiffs/respondents, they could have taken proper recourse for their grievance, and decided issue no.3 in 15 favour of the plaintiffs and against the defendants. Findings recorded by the trial court are perverse and illegal, since it was the admitted case of the respondents/plaintiffs that partition took place between the parties, pursuant to which the appellants were raising the construction. A perusal of the plain would reveal that respondents/plaintiffs have taken a contradictory plea. On one hand, they have averred that the suit property is a joint property of the parties whereas on the other hand, they have taken a contradictory plea that a family arrangement was made on 05.07.2005 between the predecessors in interest of the parties and the appellants/defendants are not complying with the same. On filing of the suit, an ex- parte interim injunction was passed in favour of the respondents/plaintiffs, which caused loss to the appellants/defendants, as the construction material which was lying on the site, washed away during rainy season. It would be relevant to mention that against the counter claim filed by the appellants/defendants, no written statement was filed by the respondents/plaintiffs, meaning thereby that there is no denial of the counter claim at the hand of the respondents/plaintiffs. Non-denial of counter claim would amount to admission of the respondents/plaintiffs but the trial court did not consider this legal proposition while recording its findings on issue no.3. The trial court has committed illegality in deciding issue no.3 against the appellants/defendants. Findings recorded by the trial court on issue no.3 are illegal and are set-aside. It is held that the plaintiffs themselves took a contradictory plea and obtained interim injunction due to which the 16 appellants/defendants could not raise further construction and their construction material washed away in rain. It is also worth noting that initially a temporary injunction was granted in favour of the respondents/plaintiffs which continued till the decision of the suit. However, subsequently, the trial court has dismissed the suit for prohibitory injunction of the respondents/plaintiffs. Issue no.3 is decided in favour of the appellants/defendants and it is held that due to the illegal act of the respondents/plaintiffs, the appellants/defendants sustained a loss of ` 30,000/- thus they are entitled to get the damages alongwith simple interest @ 6 per cent per annum from the date of institution of suit till the date of its realization.

Findings on issue no. (iv)

29. On issue no.4, the trial court has recorded a finding that the suit is not barred by the provisions of Order VII Rule 11 of CPC. I do not find any illegality or perversity in the findings so recorded by the trial court on this issue. Thus, the finding recorded by trial court on issue no.4 is affirmed.

Findings on issue no. (v)

30. In view of the findings recorded on issue nos.(i) to (iii), this Court is of the view that the counter claim filed by the appellants/defendants is liable to be allowed and they are entitled to get a decree for recovery of ` 30,000/- alongwith simple interest @ 6 per cent per annum from the date of institution of suit 17 till the date of its realization. Issue no.(v) is accordingly decided in favour of the appellants/defendants.

31. For the reasons recorded above, impugned judgment and decree dated 28.11.2015 passed by Civil Judge (Senior Division) in suit no.58 of 2006, decreeing the respondents/plaintiffs' suit for a relief of mandatory injunction, is hereby set-aside. Counter claim filed by the appellants/defendants is allowed. Let decree be prepared accordingly.

32. Appeals stand allowed.

33. In facts and circumstances of the case, parties shall bear their own costs.

34. Lower court record be sent back.

(Lok Pal Singh, J.) 19.06.2020 Rajni

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