Punjab-Haryana High Court
Ramesh Kumar And Another vs Bhagwan Dass Devki Nandan Dharamshala ... on 2 February, 2012
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S. A. No.46 of 2012 (O&M)
Date of Decision: February 02,2012
Ramesh Kumar and another
... Appellants
Versus
Bhagwan Dass Devki Nandan Dharamshala Trust (Registered) and
another
.... Respondents
CORAM : HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present: Mr. S.C. Chhabra, Advocate
for the appellants.
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G.S. SANDHAWALIA, J.
C.M. No.136-C of 2012 Application is allowed. The documents mentioned in the application are taken on record.
R.S.A. No.46 of 2012
1. The present appeal filed by the defendant arises from the concurrent findings recorded by the Court below, whereby the suit of the plaintiff/respondent for possession has been allowed. The plaintiffs had filed the suit for the relief of possession directing the defendants to remove their wooden kiosk and malba and the counter being used for running a tea stall over the property of plaintiff shown in colour detailed in the title of the suit plaint and directing the defendants to pay the plaintiffs the damages for use and occupation of the said land, after holding inquiry to the mesne profits as per Order 20 Rule 12 of C.P.C. from the date of illegal occupation i.e. 01.12.1991 till the date of delivery.
2. The case of the plaintiff is that it was a registered trust and Sh. Lalit Mohan Goyal or Brij Bhushan any of the trustee was authorized to file the suit vide a meeting dated 19.01.1995 and the suit was filed by Sh. Lalit Mohan Goyal. It is alleged that the plaintiffs trust was the owner of the R.S.A. No.46 of 2012 (O&M) -2- Dharamshala known as Dharamshala Bhagwan Dass Devki Nandan situated opposite Railway Station, Ferozepur Cantt, which is meant for providing facilities to the persons visiting from outside. This Dharamshala has two doors. One of the door leads to Temple and rooms constructed and other door is on the corner of Dharamshala which leads to vacant site of Dharamshala along with boundary wall of Northern Railway Divisional, Hospital, Ferozepur. It is alleged that in front of the second door, the defendants have placed the wooden kiosk and counter for running the business of tea stall and were totally blocking the passage leading to the vacant site of the Dharamshala and due to the blockage caused it was impossible for the officials of the Dharamshala to approach the site of the vacant area. The land in possession of the defendants was measuring 18'-3" x 14'-3". It is further alleged that the water coming from the Dharamshala collected in the pits behind the kiosk and there was no approach left by the defendants to those pits, which was close to the adjoining the Northern Railway Division Hospital. Besides this, huge bushes had grown which provided shelter to deadly insects. The defendants were in authorized occupation of site since December, 1991 and had also got an electricity connection there. The plaintiff through his trustee had requested the defendants to remove the construction but they were not agreeing and they were in illegal occupation since December 01, 1991. Thus, they were entitled for the mesne profit from said defendant. It is alleged that earlier Ramesh Kumar had filed a suit for permanent injunction against the trust wherein possession over the plot was shown in red colour where wooden kiosk measuring 8' x 7'-6" was placed for running the business. In the said suit, the trust undertook to take possession after due process of law and the defendants removed the second door of the Dharamshala in the first week of January, 1995 and bricked the said portion of wall in order to destroy the evidence of entry R.S.A. No.46 of 2012 (O&M) -3- gate on back side of the wooden kiosk and Brij Mohan, one of the trustee gave application to the police and on their intervention, the said gate was re-affixed. Accordingly, the present suit was filed thereafter. In the written statement filed by the defendants/appellants the competency of Sh. Lalit Mohan was challenged on the ground that he is neither trustee nor the trust was registered. It is alleged that vide order dated 21.04.1994, the earlier suit was dismissed so, therefore, the present suit was barred under Order 2 Rule 2 C.P.C. since in the earlier suit, the decree for mandatory injunction for removal of wooden kiosk was sought and no relief of possession was sought. The site plan attached with the plaint was alleged to be wrong and defendant Nos.1 and 2 were neither occupiers of wooden kiosk nor in possession rather they had been impleaded just to harass them. The court fees on the suit filed was also less. It was also alleged on merits that the vacant land shown to be the land of the Dharamshala and that Ramesh Kumar had placed his wooden kiosk measuring 8' x 5" on a total area of plot measuring 15' -3" on southern side, 18'-6" on the northern side 14' on the eastern side and 16'-6" on the western side and is there since 1986. It was denied that wooden kiosks were placed in the year 1991. It is alleged that now it had come to their knowledge that the plaintiff was not the owner of the property and the gate had been opened by the plaintiff with the help of the police and in fact the kiosk was kept with the consent of the the plaintiff. It is denied that sullage water of drain comes from Dharamshala within the Dharamshala and collected in the pits. It is further alleged that in case the owner was found to be the trust then they were entitled to get rent at the rate of Rs.120/- as agreed to and got by the plaintiff from defendant Ramesh Kumar till November, 1993.
On the said pleadings, the following issues were framed:
"1. Whether the plaintiff is a registered trust and Lalit Mohan Goyal is competent to file the present suit? OPP R.S.A. No.46 of 2012 (O&M) -4-
2. Whether the plaintiff trust is owner of the property in dispute and entitled to possession thereof? OPP
3. Whether the plaintiff is entitled to damage or use and occupation of the disputed property by the defendants, if so at what rate and to what amount? OPP
4. Whether this suit is barred by principle of resjudicata? OPD
5. Whether the suit is barred under Order 2, Rule 2 CPC?OPD
6. Whether the site plan of the property in dispute filed with the plaint is wrong? If so what is the correct site plan thereof?OPD
7. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? If so how much is deficient? OPD
8. Whether the suit is bad for mis-joinder of the parties? OPD
9. Whether the defendants are entitled to special costs under Section 35-A CPC? OPD
10. Relief."
3. The Courts below came to the conclusion that in the earlier litigation and in the plaint filed by defendant Ramesh Kumar, he himself stated that Sh. Lalit Mohan Goyal, is the trustee of the Dharamshala and, therefore, he was held competent to file the present suit. The learned trial Court noticed that on the issue of resjudicata no judgment of any Court had been placed on the file, through which the controversy between parties had been finally decided on merits and benefit was being taken of order dated 21.04.1994 which was one litigation, dismissed under Order 9 rule 2 CPC. It was held accordingly that as per the proviso of said order the said suit could be filed and the present suit having been filed on 23.01.1995 and registered on 24.01.1995 was maintainable and, therefore, it could not be held to be barred by the principle of resjudicata. On the issue accordingly it was also noticed that the earlier suit was for mandatory injunction for R.S.A. No.46 of 2012 (O&M) -5- removal of kiosk whereas the present is also for possession after removal of the kiosk and thus bar of Order 2 Rule 2 CPC was not attracted. The earlier litigation by Ramesh Kumar was taken into consideration in which he admitted that the site where he placed khokha is owned by the defendant and Sh. Lalit Mohan Goyal is the managing trustee and the site plan with the plaint is Ex.D2 and the said case was withdrawn on 13.12.1994 as per order Ex.D3. The defendant in their earlier litigation had admitted that the plaintiffs were the owners of the suit property, therefore, they cannot turn around and say that the Dharamshala is not the owner of the plot rather in his cross examination stated that the property could be of railway or Dharamshala. Accordingly, it was held that the plaintiff was the owner. On the question of damages, it was noticed that the defendants had filed the complaint on 06.01.1995 (EX.D-5) wherein he has alleged having taken on rent these premises at the rate of Rs.170/- per month, though in the written statement, he alleged the rate of Rs.120/- per month. So accordingly, the mesne profit was assessed at Rs.120/- per month, and accordingly, the suit was decreed for possession and the defendants were directed to remove the wooden kiosk and malba and pay Rs.120/- per month for use of the said land from the date of the suit till actual delivery of possession.
4. The appeal filed by the defendants was dismissed by the District Judge on 01.08.2000 wherein an application, wherein an application under Order 41 Rule 27 CPC had not been decided. The regular second appeal no. 3177 of 2000 filed by the appellants was accordingly allowed on 12.05.2011 on this ground and the matter was remanded to the Lower Appellate Court to re-decide the same afresh along with the application under Order 41 Rule 27 CPC.
5. Keeping in view this direction, the District Judge, Ferozepur heard the and dismissed the same vide the impugned judgment dated R.S.A. No.46 of 2012 (O&M) -6- 27.9.2011 while deciding the application under Order 41 Rule 27 of the Code of Civil Procedure. From the impugned judgment it would be clear that counsel for the plaintiff trust suffered a statement that he had no objection if the copy of the Jamabandi for the year 1988-89 Ex. P6 was tendered into evidence and the certified copy of the judgment dated 25.10.2007 Ex.P5 was taken on record. Thereafter, when the appeal came up for hearing the present appellants moved another application before the Lower Appellate Court under Order 41 Rule 27 of the Code of Civil Procedure for production of additional evidence i.e. Jamabandi for the year 1998-99 and report dated 4.2.2010. The said application was pressed on the ground that a decree had been obtained against the Board of Faras Mission Har Batreen Church USA on the basis of fabricated Jamabandi for the year 1998-99 pertaining to Khasra No.836. The Lower Appellate Court, however, came to the conclusion that there was never any dispute regarding site in question and whether it was part of Khasra No.836 and the litigation since 1994 was that the possession of the site in question was with the appellants and the appellants were trying to confuse the whole issue and to increase the scope of the present litigation without appreciating the fact that Khasra No.836 was never the subject matter of litigation. Accordingly, the Lower Appellate Court rejected the application for production of the Jamabandi for the year 1998-99 for Khasra No.836 and report of the office of the Deputy Commissioner dated 4.2.2010 as not relevant or material for the adjudication of the appeal. However, the rights of the appellants to challenge the exparte judgment and decree dated 25.7.2010 (sic 25.10.2010) passed in respect of Khasra No.836 was kept open. The Lower Appellate Court also noticed that the appellant had earlier instituted the suit for permanent injunction restraining the plaintiff from interfering in its peaceful possession and the certified copy of the plaint Ex. D1 were taken into consideration. The fact this suit was R.S.A. No.46 of 2012 (O&M) -7- dismissed as withdrawn on 31.12.1994 and fact that the ownership of the Trust had been admitted and the plea of monthly rent of Rs.120/- had been taken was noticed and the suit having been dismissed in view of the statement made by the Trust that they would take possession in accordance with law. Accordingly, it was held to be an admission against the appellants which could not be withdrawn and there would be heavy onus upon the appellants whether admission was made under misconception and mistaken impression which the appellant Ramesh Kumar failed to discharge. Accordingly, the plea of the appellant that the site belongs to somebody else and not the plaintiff was rejected since the suggestion was that it is belonged to Railways remained a mere suggestion and there was nothing on record to suggest that the Railways Department had ever claimed the site in question. Accordingly, the appeal was rejected and the judgment of the trial Court was upheld.
6. Counsel for the appellants has raised the submission that the admission was not binding upon and could be withdrawn and placed reliance upon Balraj Taneja and another Vs. Sunil Madan and another 1999 (Suppl.) Civil Court Cases 1 (SC), Razia Begum Vs. Shebzadi Anwar Begum and Ors. AIR SC 886 and Stanley Parker Jones Vs. Bansraj Laltaprasad Mishra 2001(3) Latest Judicial Reporters 254 (Bombay High Court). The submission of the counsel though attractive but is totally unfounded as the facts of the present case go on to show that a desperate attempt is being made to stay on in possession of the land in question though admittedly in the earlier litigation pertaining to the suit for permanent injunction initiated by Ramesh Kumar himself, he had conceded that the Trust was the owner and they were tenants at a monthly rent of Rs.120/- and running a tea shop therein. The suit was dismissed as withdrawn on the undertaking given by the Trust that they would proceed in accordance with law and accordingly, the present suit was filed on R.S.A. No.46 of 2012 (O&M) -8- 24.1.1995. The judgment of the Apex Court in Basant Singh Vs. Janki Singh and others, AIR 1967 Supreme Court 341 goes on to show that the admission cannot be treated as conclusive and it is open to the parties to show that it is not true. In the said case, the admission made by the party in a plaint signed and verified was held against him in suit and it was held that it is open to the party to show that plaint was properly read out and the site plan was not correctly reflecting the situation. In the present case, the appellants have failed to show any circumstance as to how the earlier admission was made and further has failed to justify their earlier admission of ownership of the plaintiff.
7. The next contention of the counsel was that the suit was not maintainable and an ejectment application under the provisions of the Rent Act should have been filed. The said submission is without any substance. Since neither any such issue was framed as there was no pleadings regarding this and even otherwise plaintiff did not admit that there was any tenancy and the relationship of the landlord and tenant was absent and the suit for possession was rightly held maintainable.
8. Counsel thereafter contended that the judgment dated 25.10.2007 Ex. P5 whereby the plaintiff had been declared the owner of two marlas of land in Khasra No.836 in a suit filed against the Board of Faras Mission Har Batreen Church USA pertained to the same land in dispute. The perusal of the said judgment goes on to show that it pertains to Khasra No.836 and there is reference of another tenant namely Krishan Lal and the Lower Appellate Court rightly observed that by filing the second application for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, the appellants only wanted to confuse the whole issue as the dispute never pertained to Khasra No.836. Reference was then made to the judgment dated 10.11.2011 wherein a suit for mandatory injunction filed by the plaintiff against the appellants and the Punjab State R.S.A. No.46 of 2012 (O&M) -9- Electricity Board were dismissed. The said suit pertained to the removal of the electricity meter in the Kiosk in question and it had been held that electric meter had been installed at the instance of the defendant Ramesh Kumar and the original electricity bill was in his name and no such mandatory injunction could be asked by the plaintiff to remove the said electricity connection. Accordingly, the decision in the said Civil Suit is not helpful to the appellants in any manner.
9. Thus, keeping in view the above factual matrix, it would be apparent that no substantial question of law arises for consideration and the present appeal is, accordingly, dismissed. The judgments and the decree of the Courts below are upheld.
(G.S. SANDHAWALIA)
February 02, 2012 JUDGE
sarita/Pka