Andhra HC (Pre-Telangana)
S. Prakash Rao And Ors. vs S. Shyam Rao on 28 December, 2001
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT Bilal Nazki, J.
1. This is an appeal filed by the plaintiffs against the judgment and decree of IV Senior Civil Judge, City Civil Court, Hyderabad. The plaintiffs filed the suit for declaration and injunction. The declaration sought was that the plaintiffs 1 to 3 were owners of A, B and C schedule properties. Consequent to the declarati on they sought injunction that defendants should not interfere with their posses sion and enjoyment of the suit property. It was claimed that the 1st plaintiff w as the absolute owner of A schedule property, second plaintiff was owner of B sc hedule property and the third plaintiff was owner of C schedule property and the y had been in possession and enjoyment of the same from the date of partition da ted 25th November,1971. The defendant is owner of the first floor of the premise s of the building. The said property was open land purchased by father of the pl aintiffs and defendants. As the parties are brothers their father had purchased the land from one Hanumaiah in 1952 through a registered sale deed and thereafte r the father constructed a zinc sheet roof house of 3 rooms and whole of the fam ily that is the plaintiffs, defendant and their parents were living in the said house. Their father wanted to construct a pucca house in place of the old zinc s heet roof house in view of growing family members. Therefore, with the consent o f all others he proposed to transfer the said house in the name of the defendant to enable him to obtain house construction loan from the Government as he was a Government servant. The said property was nominally transferred in the name of the defendant for seeking loan for construction of the house. The plaintiffs fur ther contended that they made their own contributions towards the construction o f house and construction work commenced in the year 1970. It was completed in th e year 1971. The construction was supervised by the plaintiffs, defendant and th eir father and a double storeyed house was constructed. After completion of the construction the plaintiffs, defendant, their parents and sisters shifted to the new building. The defendant occupied the entire first floor. The plaintiffs, th eir parents and sisters occupied the ground floor. The plaintiffs further conten ded that in the presence of well wishers and elder members of their family i.e., Ramaswamy, Danaiah and other family members there was a oral partition and the entire property was divided in to four parts and respective shares were given to the parties. The plaintiffs 1 and 2 got schedule A and B properties, 3rd plaint iff was allotted open terrace over the first floor and defendant was allotted th e first floor. This settlement was made in the presence of above elders on 25-11
-71. Since then both the parties have been separately occupying the allotted portions in the ground floor, 1st floor and the terrace. The plaintiffs and defendant are paying property tax in respect of the said property. They are also paying electricity, water consumption charges. It was further stated that the sale deed executed by their father towards defendant No.1 was nominal and it was only to enable the defendant to obtain loan for construction. The defendant had issued a notice on 14-10-91 wherein the defendant alleged that the plaintiffs were tenants in the suit property. It is submitted that the defendant had started harassing the plaintiffs therefore the suit was filed. The defendant filed a written statement and thereafter amended it setting a counter claim for ejectment and recovery of possession. In the written statement/ counter claim the defendant claimed that he was owner of the whole house, the plaintiffs were his tenants and he was not aware of any partition. He further contended that his father was in need of money and he was trying to alienate the suit property, their father offered it to all of his sons, nobody except him came forward to purchase and he purchased it with his own money and constructed the house after obtaining permission from the Municipality. He obtained loan of Rs. 21,600/- which was granted to him in four instalments. Out of love and affection he had leased out the property to the plaintiffs. He denied that any amount had been spent by the plaintiffs for the construction of the house. He further alleged that the plaintiffs had purchased other property. The first plaintiff was also working in the Government department and he was asked by the defendant to leave the house after he constructed his house thereafter the disputes started. He claimed for recovery of possession of A B and C schedule properties. A rejoinder was also filed to the counter claim of the defendant. On the basis of pleadings the following issues have been framed by the trial court;
1) Whether the first plaintiff is declared as owner of ground floor as prayed for?
2) Whether the 2nd plaintiff is declared as owner of ground floor for B schedule as prayed for?
3) Whether 3rd plaintiff is declared as owner of ground floor?
4) Whether the plaintiffs are entitled for permanent injunction as prayed for?
5) To what relief?
2. Following additional issues have also been framed on 26-6-98.
1) Whether the defendants are entitled for declaration of title?
2) Whether the defendants are entitled for recovery of possession from the plaintiffs?
3) Whether the plaintiffs are liable to be evicted from the suit premises?
4) To what relief?
3. On considering the evidence the trial court dismissed the suit and decreed the counter claim of the defendant declaring him as the absolute owner of the suit premises.
4. Going by the findings on the issues, two important questions arise for disposal of this appeal. The first question is whether the sale deed executed by the father of the parties towards the defendant was a nominal sale deed. The second question is, whether the house was intended to be constructed for all brothers and whether all the brothers had contributed towards its construction.
5. Before deciding these two questions a preliminary objection raised by the learned counsel for the appellant has to be decided first. The learned counsel for the appellant submitted that a counter claim cannot be putforth in view of Order 8 Rule 6 of C.P.C. He submits that a counter claim can only be filed in money suits and Rule 6-A is controlled by Rule-6. It will be pertinent to reproduce rule 6 and 6-A of Order 8 C.P.C.
6. Order-8, Rule-6 Particulars of set-off to be given in written statement.
6 (1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.
Effect of set off - (2) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.
Counter claim by defendant 6A. (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up by way of counter-claim against the claim of the plaintiff, and right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court.
(4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints."
7. Mr. Pratap Reddy, learned senior counsel appearing for the appellants referred to number of judgments in this connection. He referred to Jashwant Singh Vs. Darshan Kaur (1) L. Manohar Lal Vs. Madan Lal (2) Hyderabad Roller Flour Mill Co.Ltd ., Vs. Vallabhdass (3) Sheobachan Vs. Madho Saran (4) and Raman Sukumaran Vs. V elayudhan Madhavan (5) but the learned counsel appearing for the respondents sub mits that this was the position before incorporation of rule 6A but after the amendment in Code of Civil Procedure and incorporation of rule 6A in Order-8 the whole law on the subject has changed and in order to avoid the multiplicity of the suits the parliament thought it proper that in all types of suits counter claims could be filed. He relied on Jag Mohan Chawla Vs. Dera Radha Swami Satsang (6) Kavindra Jain Vs. Amritlal (7) M/s Anand Enterprises, Bangalore Vs. Syndicate Bank, Bangalore (8) Gaya Prasad Vs. Smt. Jamwanti Devi (9) and Ramsewak Kashinath Vs. Sarafuddin (10). There are number of judgments of various High Courts, some of them are pre-amendment and some of them are after amendment of the Code of Civil Procedure. Generally speaking some of the High Courts took one view whereas the other High Courts took the other view, but, since the matter is no longer res integra and there are authoritative pronouncements from the Supreme Court therefore we will not be dealing in detail with the judgments which have been cited at the Bar and which have been referred to above. In this connection we refer to two judgments of Supreme Court being Gurbachan Singh Vs. Bhag Singh (11) and Jag Mohan Chawla Vs. Dera Radha Swami Satsang (12). In Gurbachan's case (11 supra) the plaintiffs filed a suit for perpetual injunction against the defendants. The defendants filed the written statement contending that the plaintiffs and some of the defendants had trespassed into their land of an extent 3 kanals and they were in unlawful possession. The defendants raised a counter claim in the written statement for possession. The trial court while dismissing the suit of the plaintiffs granted a decree of possession in favour of the defendants. On appeal it was confirmed by the High Court. Second appeal was also dismissed by the High Court. The contention raised before the Supreme Court was that, in a suit for perpetual injunction the respondents could not lay any counter claim for possession, but the Supreme Court found;
" It is true that Rule 6A (a) was introduced by Amendment Act of 1976. Preceding the amendment, it was settled law that except in a money claim, counter claim or set off cannot be set up in other suits. The Law Commission of India had recommended, to avoid multiplicity of the proceedings, right to the defendants to raise the plea of set off in addition to a counter claim in Rule 6 in the same suit irrespective of the fact whether the cause of action for counter claim or set off had accrued to defendant either before or after the filing of the suit. The limitation was that the counter claim or set off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time limit for delivering the written statement has expired, whether such counter claim is in the nature of a claim for damages or not. Further limitation was that the counter claim should not exceed the pecuniary limits of the jurisdiction of the Court. In other words, by laying the counter claim pecuniary jurisdiction of the court cannot be divested and the power to try the suit already entertained cannot be taken away by accepting the counter claim beyond its pecuniary jurisdiction. Thus considered we hold that in a suit for injunction, the counter claim for possession also could be entertained, by operation of Order 8 Rule 6A(1) of C.P.C."
8. Therefore, the Supreme Court authoritatively held that in a suit for injunction a counter claim for possession could also be entertained by operation of Order 8 Rule 6A (1)of the Code of Civil Procedure. In Jag Mohan Chawla's case also (12 supra) the same question was raised. In para-5 of the judgment the Supreme Court went in detail and considered the earlier judgments also on the subject. Since the whole law has been discussed in this paragraph the whole paragraph is reproduced;
"5. The question, therefore is: whether in a suit for injunction, counter claim for injunction in respect of the same or a different property is maintainable? W hether counter claim can be made in different cause of action? It is true that p receding CPC Amendment Act,1976 Rule 6 of Order 8 limited the remedy to set off or counter claim laid in a written statement only in a money suit. By CPC amendm ent Act,1976, Rules 6A to 6G were brought on statute. Rule 6A(1) provides that a defendant in a suit may, in addition to his right of pleadings a set off under rule 6, set up by way of a counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant agains t the plaintiff either before or after the filing of the suit but before the def endant has delivered his defence or before the time limited for delivering his d efence has expired, whether such counter claim is in the nature of a claim for d amage or not. A limitation put in entertaining the counter claim is as provided in the proviso to sub-rule (1), namely, the counter claim shall not exceed the p ecuniary limits of the jurisdiction of the Court. Sub-rule (2) amplifies that su ch counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. The plaintiff shall be given liberty to file a writte n statement to answer the counter claim of the defendant within such period as m ay be fixed by the court. The counter claim is directed to be treated, by operat ion of sub rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmid as Dahyabhai Kabarwala V. Nanabhai Chunilal Kabarwala , had come to consider the case of suit and cross suit by way of counter claim. Therein, suit was filed for enforcement of an agreement to the effect th at partnership between the parties had been dissolved and the partners had arriv ed at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and thereby decree for settlemen t of accounts was sought. Therein the legal representatives of the deceased part ner contended in the written statement, not only denying the settlement of accou nts but also made a counter claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint. They also sough t a prayer to treat the counter claim as a cross suit. The trial court dismissed the suit and the counter claim. On appeal, the learned Single Judge accepted th e counter claim on a plaint in a cross suit and remitted the suit for trial in a ccordance with law. On appeal, per majority, this court had accepted the respond ents' lea in the written statement to be a counter claim for settlement of their claim and defence in written statement as a cross suit. The counter claim could be treated as a cross suit and it could be decided in the same suit without rel egating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, C.P.C. but the object of the amendments in troduced by Rules 6A to6G are conferment of a statutory right to the defendant t o set up a counter claim independent of the claim on the basis of which the plai ntiff laid the suit, on his own cause of action. In sub-rule (1) of rule 6A, the language is so couched with words of wide width as to enable the parties to bri ng his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby, it is no longer confined to mon ey claim or to cause of action of the same nature as original action of the plai ntiff. It need not relate to or be connected with the original cause of action o r matter pleaded by the plaintiff. The words "any right of claim in respect of a cause of action accruing with the defendant" would show that the cause of actio n from which the counter claim arises need not necessarily arise from or have an y nexus with the cause of action of the plaintiff that occasioned to lay the sui t. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection, the legislature intended to try both the suit and the counter claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6C to seek deletion of the counter claim. It is seen that the trial court had not found it necessary to delete the counter claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter claim. Nonetheless, in the same suit, both the claim in the suit and the counter claim could be tried and decided and disposed of in the same suit. In Mahendra Kumar V. State of Madhya Pradesh, where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter claim had arisen before filing of the written statement, the counter claimw as maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal."
9. In view of this authoritative pronouncement of the Supreme Court we hold that the counter claim in the present case could validly be raised and could validly be decided. Therefore, the preliminary objection raised by Mr. Pratap Reddy deserves to be rejected and is accordingly rejected.
Now, coming to the questions which we have framed herein above, the first quest ion is whether the sale deed in favour of defendant by his father was nominal. T he trial court has found that there is no evidence whatsoever on behalf of the p laintiffs to show that it was a nominal sale deed. There is a presumption in fav our of the sale deeds, however it can be rebutted, but the onus was on the plain tiffs to show that the sale deed was nominal. It was contended by Mr. Pratap Red dy that no money was passed as consideration when the sale deed was executed, bu t we have not found any evidence to that effect. Secondly he contended that part ies were living in the house which would show that the sale deed was nominal. Th at would not be a conclusive proof of sale deed being nominal in view of the con ditions and the social parameters in which the Indian Society lives. It is not u nusual in Indian society that brothers and sisters would be allowed by other bro thers and sisters to live in their house even gratis. Since the plaintiffs were living in the house it would not certainly be a proof to show that the sale deed executed by the father towards the defendant was sham. On the other hand, it is admitted and also conclusively proved that after the sale deed was executed the defendant obtained loan from his employer for construction of the house. Munici pality gave permission in his name and the house in fact was mortgaged to Govern ment. It is also proved and admitted that the loan was discharged by the defenda nt himself. We have not seen any evidence nor has it been suggested that this lo an was discharged by other brothers as well. It was being deducted for 20 years form the salary of the defendant. Therefore, we agree with the learned trial cou rt that the plaintiffs have failed to show that the sale deed Ex.B1 was nominal.
Another ground which was agitated before the trial court was of an oral partiti on. They relied on an alleged partition effected in 1971. Although there is no p artition deed but a schedule was put into service which according to the plainti ffs prove that there was a partition. This schedule as is pointed out by the tri al court as well is not signed by any of the parties. It does not at all show th at it is part of partition. It merely shows which are the portions occupied by w hich of the parties. It has two witnesses one Ramaswamy and the other Sri Danaia h. It is curious that the witnesses have signed it but the parties have not sign ed it. No explanation has been given for such an omission. Mr. Ramaswamy and Mr. Danaiah are both brothers-in-law of P.W.1 who is the first plaintiff. Mr. Sharf uddin who was examined as P.W.2 in his statement has stated that he had joined service on 17-11-1959 and the 1st plaintiff had joined after him. He had worked with the 1st plaintiff for 4 years in Public Works Department. Now, many things emerge out of this statement. The schedule of partition was not signed by any of the party. Mr. Sharfuddin states that he was employed in the year 1959 and the 1st plaintiff joined service after him, in any case the 1st plaintiff was in service in 1960. If the father of the parties wanted to execute a nominal sale deed to get money for construction of a new house why did he ask the defendant only and why not the elder son who was already in Government service. If the house was constructed for all the brothers and sisters why was no portion given separately to sisters. It is the admitted case that ground floor and first floor are of same measurements. It is unthinkable that in a property which is equally shared by all the brothers one brother will get whole of the floor and on the other hand another floor equivalent in size would have to be shared by three brothers, sisters, parents and grand-mother. This also suggests that the house has been constructed by the defendant only and he had allowed one floor to be used by his brothers, sisters, parents and grand-mother. Even in this schedule we do not find mention of any terrace, hence the claim of one of the brothers that he got the terrace in partition is also unthinkable. One brother would get full floor having a kitchen, drawing room, two bed rooms, toilets and another brother would get only a terrace in partition. Therefore, we agree with the trial court that there was no partition in fact between the parties. Coming to the assertion that taxes, water bills and electricity charges were being paid by the plaintiffs, we are not surprised by that. Since they were living in that house and they were using the house therefore it was not unusual to pay those bills.
10. Coming to the second question that, whether there was any contribution towards construction of the house by the plaintiffs, we have not found any evidence to show that they have contributed towards the construction of the house. P.W.1 in his statement stated that he had not filed any recorded proof to show that he had paid Rs.10,000/- to defendant. He stated that he had paid the said amount in the year 1971. He admitted that in Ex.A6 which was a reply notice in which he had stated that he had paid Rs. 10,000/- towards improvement and maintenance of the building. He also admitted that before the Rent Controller in R.C.No. 713/91 he had stated that rent was being deducted from the salary of defendant. Only 1st plaintiff was examined other plaintiffs did not come to the Court as witnesses. P.W.2 was Mr. Sharfuddin whose statement has already been discussed herein above. Therefore, it has not been shown that the plaintiffs had contributed towards the construction of the house.
11. It was also contended by the learned counsel for the appellants that, in the counter claim the declaration with respect to ownership was not sought by the defendant therefore even if the trial court was right in dismissing the suit of the plaintiffs he could have not decreed the counter claim of the defendant. On the face of it, it is a technical objection. In the counter claim/ written statement the defendant paid the Court fee, submitted that he was the exclusive owner of the property in question and sought a decree for eviction of plaintiffs 1 to 3. Expressly a decree for declaration was not sought. It could be a point for argument whether in such a case in which the defendant sought eviction of the plaintiffs in counter claim he is also needed to seek a declaration that he was owner, but in the factual matrix of this case it would not at all be necessary to go into such a question because the parties clearly knew what was the case in between them. After the written statement/ counter claim was filed as early as on 26-6-98 additional issues were framed and the first additional issue was, "Whether the defendants are entitled for declaration of title." The appellants never complained about framing of this issue and went into trial with their eyes open knowing fully well that one of the issues in the trial would be whether the defendant was entitled to a declaration for title. In these circumstances, the argument is rejected.
12. However, there is another angle to this case. The trial court has found that the plaintiffs were tenants of the defendant. We have not found any evidence in that direction. Mere assertion by the defendant in his statement or in the counter claim would not entitle him to rents. In our view the plaintiffs have been living in the house because of the close relationship between the parties. The defendant had reserved one floor for himself and one floor he had given to all his brothers, sisters, parents and grand-mother and the plaintiffs were paying their own electricity and water charges. Therefore, we set aside the finding that the plaintiffs were the tenants of the defendant. However, now that the defendant does not want the plaintiffs to remain in possession and a decree of eviction has already been passed and confirmed by us, therefore, we direct that from today the plaintiffs shall pay an amount of Rs. 600/- per month towards the defendant by way of mesne profits till the day of eviction.
The appeal is accordingly disposed of declaring the defendant to be the absolute owner of the suit property. A decree be drawn for eviction of plaintiffs accordingly. Decree be also drawn for mesne profits @ Rs.600/- per month from today till the date of eviction.