Andhra HC (Pre-Telangana)
Sheriff Iqbal Hussain Ahmad vs Kota Venkata Subbamma And Others on 25 January, 1994
Equivalent citations: AIR1994AP164, 1994(1)ALT229, AIR 1994 ANDHRA PRADESH 164, (1994) 1 LS 207, (1994) 3 CIVLJ 224, (1994) 2 CURCC 152, (1994) 1 CIVILCOURTC 457, (1994) 1 ANDH LT 229, (1994) 1 APLJ 349
JUDGMENT
1. At issue in these two Letters Patent Appeals is:
"When a specific relief for possession is sought for by a civil action in common law remedy, can a discretion be exercised by the Court to grant a decree for compensation/ damages by invoking the doctrine of equity, in spite of the factual finding that the plaintiff has got right to recover possession."
2. The facts briefly stated, thus, are:
Plaintiffs 1 and 2 had instituted O.S. No. 37/71 and O.S. No. 248/71 for recovery of possession of suit schedule properties. In O.S. No. 37/71, the property comprised is, structures covering 72 sq. yards and odd. In O.S. No. 248/71, it is structures covering 49 sq. yards and odd. The property in O.S. No. 37/71 was purchased by D2 and D3 by a registered sale deed dated 27-11-1969. Ex. A115 is the registration extract. The property in O.S. No. 248/71 was purchased by D7 and another and the latter's LRs. are D2 to D6. DI was a lessee of the suit proeprties. The property in O.S. No. 248/71 was sold on 19-11-1969. Ex. A116 is the registration extract. Plaintiff No. 1 is sister's son of plaintiff No. 2. Plaintiff No. 2 was gifted the suit property by her father under Ex. Al dated 21-4-1926. She was married to P.W. 2 after 5 years of the said gift, but they had no issues and plaintiff No. 1 (P.W. 3) was brought up by 2nd plaintiff and her husband (P.Ws. 1 and 2). The suit properties were in turn gifted by the 2nd plaintiff to the 1st plaintiff under Ex. A2 dated 15-7-1948. Under the said deed, Ex. A2, plaintiff No. 2 reserved her right to enjoy the property till her death. Dl is closely related to the plaintiffs. He had premises adjoining the suit properties. While the assessment number of the suit properties was 7928, Dl had his property adjoining the suit properties bearing assessment No. 7927. The suit properties were leased out to Dl with effect from 1-1-1959 on a monthly rent of Rs. 45/-, He paid the rents till 30-11-1969. He in turn inducted other tenants. On 2-9-1969, he proposed the sale of his building and suggested the 2nd plaintiff to sell the suit properties also. But, admittedly, no purchaser was brought to plaintiffs or any agreement was entered into. The 1st defendant had been running a partnership firm along with other partners. Dl and his other partners had executed the original of Exs. Al 15 Al 16. P.W. 1 is the 2nd plaintiff, P.W. 2 is her husband and P.W. 3 is the 1st plaintiff. The defence set up by the defendants was that the plaintiffs are not the owners and that they did not exercise their ownership rights over the suit properties and that the gifts made either to 2nd plaintiff by her father or by 2nd plaintiff to the 1st plaintiff were 'invalid. It was also pleaded that the 1st defendant exercised his ownership rights and that he was the ostensible owner and in any event, he had acquired right by prescription and as such sales effected under originals of Exs. Al 15 and Al 16 were valid and binding. They also set up the plea that they are the bona fide purchasers for valuable consideration and that they cannot be subjected to either eviction or liable to pay damages. Triable issues were framed and on appreciation or oral and documentary evidence adduced by either parties, the trial Court held that the 2nd plaintiff became the owner of the suit property by virtue of Ex. Al and then the 1st plaintiff by viretue of gift under Ex. A2 and that the said gifts were true, valid and acted upon and that, the first defendant and his co-vendors had no title to the suit properties and that they did not acquire any prescriptive rights and they were not treated as ostensible owners even. In the result, the trial Court has recorded a finding that the plaintiffs are entitled to recover the suit schedule properties after ejecting the defendants therefrom. Having held so, the trial Court has granted a decree in O.S. No. 37/71 to pay the plaintiffs Rs. 18650/- towards the site and building and Rs. 11,350/- in O.S. No. 248/71 towards the value of the site and the building and at 12% interest from 1-12-1969 till the date of decree and 6% interest on the principal amount from the date of decree till realisation: It was also held by the trial Court that the said amounts due to the plaintiffs are in the nature of unpaid purchase money. It was held that they shall also be entitled to a charge on the newly constructed building and the site for recovery of principal amount, interest and costs.
3. The trial Court held "The purchasers have also failed to prove that they had made proper enquiries to find out the real owner of the suit property before they had purchased the same. They have not examined a single tenant or neighbour to state that the 1st defendant was the ostensible owner." The trial Court also held "in view of my findings on Issues 1 to 3 in both the suits, I find that the plaintiffs are entitled to recover the possession of the suit property after ejecting the defendants from there. But, it has been found that the defendants 2 and 3 in O.S. No. 37/71 have demolished the old building in the site of the plaintiffs as well as the site to which the vendors were entitled and had constructed a new four storied building thereon. It is also stated that the defendants 2 to 7 is O.S. No. 248/71 had made improvement to the old building."
4. The lower Court held that in O.S. No. 37/71 the price was paid only for the site and not for the dilapidated building. D W 3 in O.S. No.248/71 has stated that he did not demolish the building, but spent Rs. 6,000/-for improvements. The trial Court evaluated the cost of the site at Rs. 150/- per sq. yard basing on the monthly rental applying some multiplier and then arrived at Rs. 11,550/ - in O.S. No. 248/71 and Rs. 18,650/- in O.S. No. 37/71. The trial Court held "during the pendency of the suits, the reconstructions appear to have been proceeded with. Considering all the circumstances, I do not think it would be practicable or convenient for the plaintiff to obtain the decree for demolition of the newly constructed building and delivery of vacant possession of their portion of the site together with damages for the demolition of the old building. I am, therefore, of the opinion that the ends of justice would be met with, if the defendants be directed to pay the value of the building together with the site."
5. The defendants 2 and 3 in O.S. No. 37/71 preferred appeal A.S. No. 665/77 and the plaintiffs have preferred cross-objections. Defendants 2 and 7 preferred AS No. 669/77 against the judgment and decree in O.S. No. 248/71 and the plaintiffs have preferred cross-objections. The learned single Judge held "the trial Court was fully justified in coming to the conclusion that initially the 2nd plaintiff and later the 1st plaintiff were the owners of the plaint schedule properties, and the I st defendant or the partnership firm of which he was the managing partner has no right to sell the plaint schedule properties to the defendants." Repelling the argument that the defendants were the bona fide purchasers for valuable consideration, the learned single Judge held "On the evidence, it was clear that the purchasers made no endeavour whatever to verify whether the partnership firm of which the 1st defendant was the Managing partner had title to sell the properties in favour of the defendants and, if so, how the title was derived by either the 1st defendant or the partnership firm. On the contrary, there is a clear indication that the purchasers were aware even before the purchase of the property that the plaintiffs had claims over the property. In his evidence, defendant No. 2 categorically stated that tie was aware even before the purchase of the property that the plaintiffs had claims over the property. In his evidence, defendant No. 2 categorically stated that he was aware of the plaintiffs and defendant No. 1 being closely related to each other. He stated further that some negotiations had taken place in the house of the 2nd plaintiff regarding the sale of the building. It is not, therefore, possible to accept the contention of the learned counsel for the appellants that the defendants were totally unaware of the fact that the plaintiffs were -real owners of the properties." Having held so, the cross-objections were also negatived by the learned single Judge holding that "the question of restoring to the plaintiffs the demolished building does not arise as the building no longer exists and the plaintiffs themselves, for that reason, claimed compensation of Rs. 14,000/- by way of money value. The trial Court found it difficult to restore the possession of the land to the plaintiffs as, admittedly, a substantial portion of the land was already utilised for constructing the four-storied building. On equitable grounds, therefore, the trial Court thought fit to direct the defendants-purchasers to pay the value of the house site and the demolished building to the plaintiffs. In my opinion, no exception can be taken to the direction of the trial Court for payment to the plaintiffs of the value of the site of the demolished building."
6. LPA 34/86 was preferred by the 1st plaintiff against the judgment in AS No. 665 / 1977 and cross-objections. LPA 33/86 was preferred by the 1st plaintiff against the judgment in AS No. 669/77 and cross-objections.
7. The reliefs sought for in the plaint were:
1) For a decree in their favour for evicting the defendants from the suit site and deliver the same to the plaintiffs;
2) direct all or defendants 2 and 3 to restore the building or its value;
3) direct the defendants to pay the costs; and
4) to grant all other suitable reliefs as the nature of the case admits.
Thus, it is manifest from the above that the 1st relief is for possession by evicting the defendants and the 2nd relief is for compensation, in case, restoration of the building demolished is not possible. In so far as the relief of possession is concerned, that is an absolute one and no alternative relief is sought for. But, with regard to restoration of the demolished building, as restoration of the old structure may not be possible, payment of compensation is sought for by way of alternative relief. This significant difference was totally ignored by both the trial Court and the learned single Judge. Even if an alternative prayer is sought for in the relief of possession, the courts should record a finding that it is impossible to grant the main relief and that as such, the alternative relief is being granted. Merely because alternative relief is sought for, no discretion vests in the court to grant either the main relief or alternative relief. The court should first proceed to deal with the grant of main relief and if only the grant of main relief is not possible, then a finding should be recorded to that effect and then proceed to consider the alternative relief.
8. The relief of seeking eviction of the defendants and consequent delivery of possession to the plaintiffs is traceable to Section 5 of the Specific Relief Act which reads:
"A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908."
Order 21, Rule 35 of Civil Procedure Code states "where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it is adjudged or such person he may appoint to receive delivery on his behalf'and if necessary by removing any person bound by the decree who refused to vacate the property." What is relevant and worthy of notice js that the plaintiff gets or the defendant is obliged or constrained to give the very property and not merely damages for retaining or continuing to retain the property. The confirmed and concluded findings of fact are that the plaintiffs are the legal owners of the suit schedule properties, that the defendants were aware of want of title of their vendor i.e. the 1st defendant, that they were aware of the ownership of the plaintiffs, that the 1st defendant was not the ostensible owner, thus, ruling out the application of doctrine, of Holding Out. As such, there was no discretion left either for the trial court or the learned single Judge, but to grant specific relief of possession and there cannot be any exception to it. On proof of plaintiffs' title to the property, the court has to grant a decree for possession for it has no discretion to deny it. The court cannot give any equitable relief to mitigate or sustain the consequences laid down by the statute. The plain provisions of the statute cannot be whittled away by the application of equitable doctrines.
9. Equity is not available where effective and appropriate remedy is available. Equity cannot be invoked to offset the appropriate and specific remedy available through the common, general or express law of the land. Equity always follows the law, but is not vice versa. Even where equities are equal, law prevails. But, in the instant case, the question of invocation of equity in favour of the defendants does not and cannot arise at all. Equity is basically a gloss or appendage to the common law and not a rival or competing system. Equity does not destroy the law nor create it, but assists it. Even if the court feels that by enforcing the express law of the land, hardship is caused to the defendant there cannot be any equitable intervention. If a person is deprived of his property or any right or interest therein, he should, more as a rule than by way of exception, be entitled to get the very property or to have and enjoy the very right or interest which is his and of which he is being deprived rather than pecuniary satisfaction in form of damages. Right to recover property vested under law is different from right to acquire property vested in equity. The obligation or duty in the former arises under the general and common law and is an incident of ownership or possession while under the latter arises through the voluntary acts of the parties and is an incident of contract. In the former, specific relief should be granted while in the latter equitable jurisdiction can be invoked in favour of either of the parties depending upon the relevant I factors.
10. In view of what is stated supra, we hold that the plaintiffs are entitled for the grant of specific relief of possession of the suit schedule properties. In so far as the relief of restoration of the demolished property is concerned, the grant of the same may not be possible for the reason that the new structures have been constructed in one case and improvements made in the other case and as, such, we hold that the same shall be treated as accretions to the suit schedule sites held by the plaintiffs. As the defendants had knowledge of the rights and title of the plaintiffs, as they have purchased from a person not having any rights, as they are not bona fide purchasers of the suit schedule properties and went to the extent of even not describing the same but grabbing the same under the guise of mentioning the unconcerned municipal number but stating the comprehensive boundaries surreptiously including the suit schedule properties, as they had undetaken constructions in spite of the protests by the plaintiffs and legal notice issued on their behalf and even during the pendency of the suits, application of Section 51 of the Transfer of Property Act cannot arise at all. This is the clearest case of grabbing the property of unwilling vendors and yet, strangely, the trial court permitted the defendants to retain the property on inapplicable equitable doctrine which was erroneously affirmed by the learned single Judge and if the said judgments and decrees are allowed to stand, it would only result in court executing the contract of sale and also enforcing the same and fix thc_gon_sideration amount and direct the defendants to pay the same under the guise of termiogjt as damages or compensation, as the case may be. It has to fee borne in mind that it needs always to be remembered that impermissible and unrestricted equitable jurisdiction would defeat the most important object or aspect of law. Not only that, it would introduce uncertainty in law and insecurity in legal rights resulting in arbitrariness in the administration of justice. In the circumstances, we set aside the judgments and decrees rendered by the trial court as also the judgments and decrees rendered by the learned single Judge of this court and pass a decree in both the suits as mentioned below:
(a) that the plaintiffs in both the Suits --O.S. No. 37/71 and O.S. No. 248/71 -- shall be entitled to the possession of the sites and the structures standing thereon and the respective defendants viz. defendants Nos. 2 and 3 in O.S. No. 37/71 and defendants Nos. 2 to 7 in O.S. No 248/ 71 and the persons claiming through or under them shall vacate and handover the possession to the plaintiffs;
(b) That the plaintiffs shall not be entitled for restoration of old structures which were demolished or compensation in lieu thereof, but are entitled to retain the structures but or improved by the respective defendants over the suit schedule sites treating them as accretions to their suit schedule properties without any liability or payment of any compensation or damages to their respective defendants; and
(c) The plaintiffs shall be entitled for costs throughout viz. in the suits, first appeals, cross-objections and these letters patent appeals.
11. L.P. As, are allowed as indicated above with costs.
12. Appeals allowed.