Himachal Pradesh High Court
Ajay Aggarwal vs Arun Kumar on 26 February, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.29 of 2019.
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Date of decision: 26th February, 2019.
Ajay Aggarwal .......Appellant/Plaintiff.
Versus Arun Kumar ......Respondent/Defendant.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1. No For the Appellant : Mr. Naresh Sharma, Advocate.
For the Respondent : Nemo.
Tarlok Singh Chauhan, Judge (Oral).
Plaintiff is the appellant, who after having lost in both the learned Courts below, has filed the instant appeal.
2. The parties hereinafter shall be referred to as the plaintiff and defendant.
3. Plaintiff filed a suit for recovery of Rs.24,000/- and in addition thereto sought decree for mandatory injunction directing the defendant to remove the unauthorized/illegal structure/framework and to remove the structure used for closing the portion of the verandah of the building known as "Bhagwan Niwas", Cart Road, Shimla. It was averred that Smt. Gita was owner in possession of the suit land constructed over Khasra 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 2 No.594, Bazar Ward, Shimla, which was purchased by her from MST 'Deva Trust, Jagadhari, Haryana, from whom the plaintiff had .
purchased one flat along with attic in the first floor vide sale deed dated 10.11.1998. The defendant on 26.12.1998 purchased flat from Usha Sood, who, in turn had purchased the same from Gita on 22.10.1997.
4. After purchasing the flat, the plaintiff let out the portion of the roof situated towards Cart Road, Shimla, in favour of 'M/s Kawasaki Traders' for putting a hoarding for a sum of Rs.4,000/- per month. In the third week of February, 2006, the defendant raised an illegal construction by way of angle iron and channel over the suit land and despite the matter being reported to the Municipal Authorities, no action was taken, constraining the plaintiff to file the suit.
5. The defendant filed written statement raising therein various preliminary objections regarding maintainability, lack of particulars, valuation, identification of property, estoppel and the suit being time barred. On merits, it was averred that the plaintiff was not in possession of the flat which he claimed to have purchased from Gita Devi and the same is in continuous use and occupation of Narinder Kumar and his father Avadh Bihari. The attic portion situated over the property was purchased by the defendant and had not been sold to the plaintiff, as alleged. He ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 3 further claimed himself to be a bonafide purchaser of the flat and the attic, which according to him, was an integral part of the flat.
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6. In addition to the written statement, the defendant also filed a counter-claim, wherein, he sought declaration to the effect that the terms and conditions of the sale deed dated 22.10.1997 and 05.11.1998 be declared illegal, null and void and also sought decree for permanent prohibitory injunction for restraining the plaintiff from interfering in the flat, attic portion as well as common toilet and other portion of the top floor of the building in question.
7. From the pleadings of the parties, the learned trial Court on 19.09.2007 framed the following issues:-
"1. Whether the plaintiff is entitled for the recovery of Rs.24,000/- as prayed for? OPP.
2. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed for? OPP.
3. Whether the plaintiff has cause of action to file the present suit? OPP.
4. Whether the suit is not maintainable? OPD.
5. Whether the plaintiff is estopped from filing the present suit by his own acts, deeds, conducts etc.? OPD.
6. Whether the suit is time barred? OPD.
7. Whether the terms and condition pertaining to and dealing with attic portion of the flat of the defendant situated on Top Floor of building known as Bhagwan Niwas incorporated in sale deeds dated 05.11.1998 ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 4 and 22.10.1997 are illegal, null and void, as alleged by way of counter claim? OPD.
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8. Whether the defendant is entitled for the relief of mandatory injunction, as prayed for by way of counter claim? OPD.
9. Whether the defendant is entitled for the relief of permanent prohibitory injunction, as prayed for by way of counter claim? OPD.
10. Relief."
8. After recording evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiff and the counter-claim of the defendant was also dismissed. The appeal preferred against the same also met with the same fate, constraining the plaintiff to file the instant appeal. The defendant had also filed an appeal which was also dismissed by the learned first appellate Court.
9. It is vehemently argued by Shri Naresh Sharma, learned counsel for the appellant that the findings recorded by the learned Courts below are based on surmises and conjectures without there being any legal application of mind and, therefore, the same deserve to be set aside.
10. I have heard the learned counsel for the appellant and have also gone through the judgments passed by the learned Courts below.
::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 511. At the outset, it needs to be observed that in case the suit filed by the plaintiff was simpliciter only for recovery of .
Rs. 24,000/-, then the regular second appeal in terms of Section 102 of the Code of Civil Procedure, itself would not have been maintainable. However, since the subject-matter involves other issue like grant of decree of injunction, the appeal is maintainable (See: Nagar Palika Thakurdwara versus Khalil Ahmed and others, (2016) 9 SCC 397.
12. Even after having concluded that the appeal is maintainable, yet the appeal deserves to be dismissed as it raises no question of law much less substantial question of law, as is evident from further discussion.
13. Plaintiff in support of his claim had examined one Rajiv Kuthiala as PW-1, who is running Advertising Agency under the name and style of 'M/s Kawasaki Advertising Company' and the plaintiff is known to this witness for the last 10-12 years. This witness had installed a hoarding on the roof of the building for the last 17-18 years. According to him, a deed was executed between this witness and the plaintiff in the year 2006 whereby the rent of Rs.4,000/- was fixed for placing hoarding. Four months' advance was also paid to the plaintiff, but since the size of the hoarding was not permissible, the hoarding had to be removed on the directions of the Municipal Corporation, Shimla.
::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 6He further deposed that prior to the execution of the agreement with the plaintiff, a contract was executed with Kochhar, Bansi .
Ram and Ganpat Ram, who used to pay rent to the owner of the roof. Thereafter, the plaintiff purchased the rights qua the roof and it was after perusing the sale deed that the hoarding was put.
14. In cross examination, this witness stated that records qua the size of the board, name of the place, where the hoarding was to be placed, was though maintained, but he could not tell about the area/flat/roof or other details regarding the set in question. However, he maintained that the hoarding was installed over the roof of the flat of the plaintiff. He could not also disclose about the number of the flat and voluntarily deposed that the attic was in his possession. He could not disclose as to who was the owner of the flat below the attic and stated that the plaintiff was having a flat in the same building.
He admitted that the defendant had put his hoarding in front of the hoarding placed by this witness.
15. PW-2 Gulab Singh is the Registration Clerk, who proved the sale deed No. 372 dated 22.10.1997 as Ex.PW-2/A, sale deed No.433 dated 05.11.1998 as Ex.PW-2/B and sale deed No. 520 dated 26.12.1998 as Ex.PW-2/C. ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 7
16. PW-3 is the plaintiff himself, who filed his affidavit Ex.PW-3/A in his examination in chief, which is verbatim .
reproduction of the plaint. Apart from this, he also placed on record certain documents.
17. In cross examination, this witness deposed that when he purchased the flat, the same was in possession of Narinder Kumar. He admitted that he had never received vacant possession of the set purchased by him, but voluntarily stated that symbolic possession of attic was handed over to him and he never entered the flat purchased by him. He stated that there were two passages for the attic, one from the roof and second from the flat purchased by Narinder. He admitted that the husband of Usha Sood was tenant over the set purchased by the defendant which was earlier purchased by Gita Devi. Vide sale deed Ex. PW-2/A, Gita Devi had sold the set to Usha Sood, who in turn, vide sale deed Ex.PW-2/C had sold the same to the defendant.
18. PW-4 Kulbhushan supported the case of the plaintiff by stating that there was a passage to the attic from verandah.
19. The defendant examined Raj Pal as DW-1, who categorically stated that as per the records of the Municipal Corporation, Shri Ajay Aggarwal was having one set in 'Bhagwan ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 8 Niwas and Narain Niwas. One A.B. Lal was recorded as a tenant in the flat consisting of three rooms, one kitchen and bathroom.
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20. DW-2 J.K. Mahindroo deposed that he had inspected the building in question including the flat of the defendant and proved his report Ex.DW-2/A and spot map Ex. DW-2/B. He stated that there was no attic and the portion between the roof and the ceiling was too narrow as it was not possible for anyone to even stand there. In cross-examination, this witness deposed that no notice was given to the plaintiff before conducting the inspection. He denied that in order to reach attic, the passage is from inner portion of the house of Narinder.
21. DW-3 Amit Aggarwal deposed that he was residing in one set of the building in question as a tenant and the same was owned by the plaintiff. In the flats of the plaintiff and defendant, there was no attic. In order to enter the attic/ceiling, the passage is from inside of both the flats. This witness admitted that the plaintiff had filed a rent petition against Narinder. However, he denied that the hoarding of 'M/s Kawasaki Advertiser' had been installed over the roof of the plaintiff. He further deposed that the defendant had purchased the flat from Usha.
22. DW-4, Arun Kumar is the defendant, who in his examination in chief reiterated the stand taken by him in his written statement-cum-counter-claim. He denied the very ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 9 existence of attic and the portion between the ceiling and the roof and stated that the portion between the ceiling and roof was .
too narrow for anyone to even stand.
23. In his cross examination, the witness deposed that he had purchased the flat consisting of two rooms, one kitchen and bathroom from Usha Sood. He feigned ignorance regarding the purchase of flat by the plaintiff, but then stated that the flat to the plaintiff was sold to him r to by one Gita through GPA. He admitted that building in question was three storeyed, however, he denied that there was attic over the top floor. He denied that the entire first floor/top floor along with attic was sold to the plaintiff vide sale deed Ex.PW-2/B. He feigned ignorance regarding mentioning of the fact of purchase of attic in the sale deed Ex.PW-2/B, however, he admitted that there was no reference about sale of the attic in the sale deed executed in his favour. He denied that the portion described as attic was habitable. He, however, admitted that the roof had been leased out by the plaintiff to 'M/s Kawasaki Advertiser', but, denied that he had raised unauthorized construction.
24. Apart from oral evidence, the parties also produced certain documents. Exhibit PW-2/A is the sale deed dated 22.10.1997 executed by Smt. Gita in favour of Smt. Usha Sood, Ex.PW-2/B is the sale deed executed by Smt. Gita on 05.11.1998 ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 10 in favour of plaintiff Ajay Aggarwal, Ex.PW-2/C is the sale deed executed by Smt. Usha Sood on 26.12.1998 in favour of .
defendant Arun Kumar, Ex. PW-3/B-2 to Ex. PW-3/B-11 are the letters issued to 'M's Kawasaki by O.P. Kochhar, Ex. PW-3/C is the legal notice, Ex. PW-3/E-2 and Ex. PW-3/E-3 are the postal receipts, Ex. PW-3/D is the registered letter, Ex.DW-2/A is the technical report and Ex. DW-2/B is the rough site plan.
25. led by the parties.
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r to This in entirety is the oral and documentary evidence It would be noticed that the learned trial Court dismissed the suit as well as counter-claim of the defendant on the ground that in the sale deeds Ex.PW-2/A and Ex.PW-2/B, it has been mentioned that the verandah had already been covered, whereas, the learned first appellate Court dismissed the appeal and the cross objections on the ground that the sale deed Ex.PW-2/B which formed the sheet anchor of the claim of defendant, there is no reference of attic situated over the entire first floor. In para-3 of the sale deed, there is a reference that the covered verandah has been shown in blue line. However, no plan/map has been produced by the plaintiff to base his claim.
Obviously,no exception can be taken to the findings concurrently recorded by both the Courts below as the plaintiff was legally bound to have placed and proved on record the sanctioned ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 11 map/plan and in absence thereof, the Court had no option, but to draw an adverse inference against the plaintiff.
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27. As regards the recovery of Rs.24,000/-, the same has also not been proved by the plaintiff. No doubt, PW-1 has given reference of some agreement between plaintiff and 'Kawasaki Advertisers', but he has not produced those material documents and, therefore, again no fault can be found with the findings
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r to recorded by the Courts below when they again drew adverse inference against the plaintiff.
Here, it would also be pertinent to mention and observe that despite the plaintiff having filed the present appeal, no effort or endeavour has been made by him to place on record all the documents for want of which, the Courts below have drawn adverse inference, which only goes to prove and establish that in case the documents had been placed on record, the same would necessarily have gone against the plaintiff.
29. Even otherwise, as observed earlier, the findings recorded by the learned Courts below are pure findings of fact which are immune from challenge in regular second appeal.
30. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 12 remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judge Bench decision of .
the Hon'ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows:
"15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
31. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus:
"12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 13 been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The .
substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "'substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it ::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 14 is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the .
question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
32. Finally, in paragraph 14, the Hon'ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which read thus:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."::: Downloaded on - 01/03/2019 21:59:27 :::HCHP 15
33. Having said so, this Court has no hesitation to conclude that the appeal raises no question of law much less .
substantial question of law. Therefore, the judgments and decrees passed by the learned Courts below warrant no interference. The findings recorded by the learned Courts below are pure finding of fact.
34. As no question of law much less substantial question 26th February, 2019.
of law arises for consideration in this appeal, therefore, the same is dismissed in limine.
(Tarlok Singh Chauhan)
(krt) Judge
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