Gauhati High Court
Assam Apex Weavers & Artisans Co-Op. ... vs Bani Hazarika on 7 August, 2015
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
RSA No. 100 of 2008
Assam Apex Weavers & Artisans
Cooperative Federation Limited (ARTFED)
& another.
... ... ... Appellants/Defendants
-Versus-
On the death of Shri Subodh Ch.
Hazarika his legal heirs -
Smti. Banee Hazarika & others.
... ... ... Respondents/Plaintiffs.
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the appellants : Mr. J. Sharma, Advocate.
For the respondents : Mr. S. Ali, Advocate.
Date of hearing : 23.07.2015.
Date of Judgment : 07.08.2015.
JUDGMENT AND ORDER (CAV)
1. This Second Appeal has been preferred against the
concurrent judgment and decree dated 30.04.2008 passed by the Page 1 of 18 Court of Additional District Judge (FTC) No.4, Guwahati in Title Appeal No.24/2005 setting aside the judgment and decree dated 31.08.2005 passed by the Civil Judge (Senior Division) No.1, Kamrup, Guwahati in Title Suit No.57/2001 dismissing the suit filed by the respondent/plaintiff.
2. The case of the plaintiff as projected in the plaint is that the original plaintiff, Subodh Chandra HJazarika, was the owner in possession in respect of a plot of land measuring 4 katha 8 ½ lechas covered by dag No.1027, 1030 and 1035 of KP Patta No.437 of village Sahar Guwahati, Mouza Ulubari which has been more fully described in Schedule-A to the plaint. The plaintiff had constructed a double storied RCC building over the plot of land and also an Assam Type house and Assam Type chali over the schedule-A land which is covered by Municipal Holding No.44(A) of Ward No.XXIII of the Gauhati Municipal Corporation. The defendant No.1 was inducted as a tenant under the plaintiff in the year 1961 in respect of the aforesaid two storied RCC building and the Assam Type house and tin chali on condition of paying a monthly rent of Rs.1600/- as per the English calendar whereby the rent would become payable within the 7th day of the following month. Later on, by mutual agreement between the parties the rent was enhanced to Rs.2200/-. It is the case of the plaintiff that the defendants were very irregular in payment of monthly rent and had Page 2 of 18 become defaulter with effect from the month of March, 1988. There was a vacant area falling within the Schedule-A land situated by the side of land appurtenant to the aforementioned building and house let out to the defendant No.1 by the plaintiff. The said vacant portion of land was never let out to the defendant No.1 nor do they have any manner of right, title or interest over the said vacant land belonging to the plaintiff. However, notwithstanding the same, on 27.09.1993, the defendants had encroached upon the said portion of the vacant land described in Schedule -B to the plaint and had undertaken construction of a house with brick walls and concrete posts which has been completed upto the plinth level. The said construction, as indicted in the Schedule-B of the plaint, had been stealthily undertaken by the defendants over the vacant portion of land forming a part of Schedule-A land without the consent, knowledge and permission of the plaintiff and as such the aforesaid construction being completely unauthorized and in violation of the conditions of tenancy is illegal and is liable to be declared so.
3. The plaintiff has further stated that on 28.09.1993 when he had visited the suit premises he had found that the defendants with the help of labourers had constructed the house over the Schedule-B land. The plaintiff had therefore instituted the above noted Title Suit praying for a decree of permanent injunction as well as a decree Page 3 of 18 seeking mandatory injunction directing the defendants to dismantle the house/building constructed by them over the Schedule-B land.
4. On receipt of summons the defendants had entered appearance and contested the suit by filing written statement whereby various pleas pertaining to maintainability of the suit including that of want of cause of action, suit being bad for non- joinder and mis-joinder of necessary parties as well as on account of waiver, acquiescence and estoppels had been taken by the defendants. While denying the averments made in the plaint, the case of the defendants as projected in the written statement is that they were inducted as tenant in respect of the suit premises as far back as in the year 1961 at a time when the old house was standing thereupon and the defendants had started their business in the said house. Later on, by an agreement dated 21.04.1978, the plaintiff had allowed the defendants to raise new structures and/or to repair the existing structure with their own cost and thereafter adjust the cost of such construction from the monthly rent at the rate of Rs.200/- per month. Thereafter, since the defendants were in requirement of larger space for the purpose of expansion of their business, they had approached the plaintiff and made a request for providing more space. On such request the plaintiff had agreed to enter into an agreement dated 30.08.1979 whereby total area of land measuring 1 bigha 1 lecha with the standing structures thereon Page 4 of 18 was leased out to the defendants on a long term basis. By the aforesaid agreement dated 30.08.1979 the defendants were also authorized to make construction of new structure and/or to carry out renovation etc. by obtaining financial assistance under the NCDC scheme of Co-operative Societies. It is the case of the defendants that by entering into the agreement dated 30.08.1979 the plaintiff had agreed to permit the defendants to continue to run their business indefinitely and for a long period of time i.e. as long as the answering defendants felt it necessary to continue their business and possession. The plaintiff had further assured the defendants that the amount so incurred by the defendants for making constructions, as aforesaid, would be adjusted from the monthly rent in accordance with the agreement dated 21.04.1978 at the rate of Rs.200/- per month. Accordingly, the defendants had started raising construction, the total cost of which comes to Rs.3,88,724.60 paisa.
5. The defendants have further stated that besides incurring the cost of construction, they had also paid an amount of Rs.26,019/- as Municipal taxes pertaining to the tenanted premises and also paid advance rent of Rs.44,390/- to the plaintiff on different dates. As such, the plaintiff had asked the defendants not to pay the rent to him and adjust the entire amount/ cost of construction as well as the other expenses incurred by them from the monthly rent with a further assurance that he would not demand rent from the Page 5 of 18 defendants until such time the entire outstanding amount stood adjusted against the rent. Accordingly, the defendants continued to occupy the Schedule-A premises as well as the B-schedule land without paying any rent. On the basis of such pleadings the defendants had prayed for dismissal of the suit with cost.
6. On the basis of the pleadings of the parties, the learned trial Court had framed as many as four issues which are as follows :-
1. Is there any cause of action for the suit?
2. Whether the suit is maintainable in its present form and manner?
3. Whether the defendant made construction of the building in schedule B land illegally?
4. Whether the plaintiff is entitled to get relief/reliefs as prayed for?"
7. In the course of trial both the plaintiffs as well as the defendants side had examined witnesses and exhibited documentary evidence.
8. Since the Issue No.2 raises a question regarding maintainability of the suit, hence the learned trial Court had taken up the said issue first in point of time. After considering the arguments made by the learned counsels for the parties and on appraisal of the evidence available on record, the learned trial Court had arrived at a finding that since the plaintiff has not claimed for a decree of right, title and interest as well as a decree Page 6 of 18 for recovery of possession over the B-scheduled property, hence, the plaintiff's suit praying for a decree of permanent injunction and temporary injunction would not be maintainable in the present form. Having held as above, the trial Court had dismissed the suit filed by the plaintiff as not maintainable in the eye of law.
9. Being highly aggrieved and dissatisfied with the judgment and decree dated 30.01.2005 passed by the trial Court in Title Suit No.268/1993 (re-numbered as Title Suit No.57/2001) the plaintiff as appellant had preferred Title Appeal before the Court of Additional District Judge (FTC) No.4, Kamrup, Guwahati which was numbered and registered as Title Appeal No.24/2005. After hearing the parties and on consideration of the materials available on record, the learned Lower Appellate Court had allowed the appeal by reversing the judgment and decree passed by the trial Court, inter alia, holding that since the defendants have admitted the title of the plaintiff over the suit land by further admitted the tenancy and in view of the fact that the defendants have failed to prove their version of the story by leading cogent evidence so as to prove that the plaintiff/landlord had permitted them to occupy the B- scheduled property and make constructions thereupon on the basis of a long terms lease, hence, the suit filed by the plaintiff was maintainable in the facts and circumstances of the case. Accordingly, it was held that the construction attempted and/or Page 7 of 18 carried out by the defendants over the B-scheduled land was unauthorized and illegal and therefore a decree of permanent injunction restraining the defendants from making any construction or raising any structure over the Schedule-A land as well as a decree of mandatory injunction directing the defendants to dismantle the house/building described in Schedule-B to the plaint was granted.
10. Being aggrieved by the judgment and decree dated 30.04.2008 passed by the learned First Appellate Court allowing the Title Appeal No.24/2005, the defendants as appellants have preferred the instant Second Appeal which was admitted by this Court to be heard on the following substantial questions of law :-
"1. Whether the learned lower appellate court is justified in granting perpetual and mandatory injunction by overriding the mandatory requirements of law as provided in Section 38 and 39 of the Specific Relief Act?
2. Whether the learned lower appellate court is justified in entertaining the suit without compliance with the provision contained in Section 34 of the Specific Relief Act in the case in which right to the property is in question?
3. Whether the learned lower appellate court is justified in not accepting the tenancy agreement (Ext-A) which is a vital in the matter of determination of the question of mandatory injunction in respect of dismantling of the structure of tenanted premises?Page 8 of 18
11. I have heard Mr. J. Sharma, learned counsel for the appellants. Also heard Mr. S. Ali, learned counsel appearing for the respondents.
12. Questioning the maintainability of the suit filed by the plaintiff Mr. Sharma has strenuously argued that in the absence of any relief for declaration of right, title and interest of the plaintiff over the suit land as well as a decree for recovery of possession, the suit filed by the plaintiff merely seeking a relief of injunction under Section 37 and Section 39 of the Specific Relief Act, 1963 would not be maintainable in the eye of law. By relying upon a judgment and decision of the Hon'ble Apex Court reported in (2008) 4 SCC 594 [ANATHULA SUDHAKAR vs. P. BUCHI REDDY (DEAD) AND OTHERS] Mr. Sharma submits that the Hon'ble Apex Court had reiterated the general principles of law as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as the consequential relief. Since the title of the plaintiff itself is yet to be established in respect of the B-schedule property, hence, the learned First Appellate Court could not have granted a decree for mandatory injunction directing the defendants to dismantle the structure without there being any prayer for recovery of possession in respect of the B-schedule property.
Page 9 of 18
13. Mr. Sharma further submits that it is settled law that injunction is not a matter of charity. Granting of injunction must be in exercise of judicial discretion and in such case where the essential ingredients for the grant of injunction exist in a chain. In support of his aforesaid argument Mr. Sharma has relied upon two decisions of this Court reported in (1986) 1 GLR 338 [Shri Prabhat Ch. Pradhani and others v. Shri Sachindra Deb Nath and others]and (1995)1 GLR 43 [Md. Saifullah Wakf Estate and another v. Sara Devi Agarwalla alias Madhania]. Since the plaintiff has failed to present the suit in proper form, hence, the decree of injunction granted by the First Appellate Court is not sustainable in the eye of law and hence is liable to be set aside by this Court.
14. Mr. S. Ali, learned counsel for the respondents, on the other hand, has argued that as would be evident from the pleadings contained in the plaint, the B- schedule property forms a part of the Schedule-A land which constitute the sum total of the land owned by the original plaintiff. He submits that since the defendants have not questioned the title of the plaintiff over any part of the Schedule-A land, hence this is not a case where the title of the plaintiff over the suit property was in dispute warranting adjudication by the Civil Court. By referring to the provisions of Section 37 and Section 39 of the Specific Relief Act, 1963 Mr. Ali Page 10 of 18 submits that the Court is vested with ample power to prevent any breach of right of the plaintiffs by restraining the commission of act and also pass an order of mandatory injunction compelling the performance of any act so as to prevent the breach of an obligation. In the instant case, the plaintiff has adduced sufficient evidence on record to establish his pleaded case to show that the defendants being tenants were making unauthorized and illegal constructions over the B-schedule land in utter violation of the conditions of tenancy. The defendants although claimed to have obtained the consent and permission of the plaintiff carrying out such construction on the basis of an agreement of long term lease they have not been able to produce any evidence in support of their claim. The document in the form of Ext-A relied upon by the defendants has been held to be inadmissible evidence in the eye of law and the said order of the Court has also attained finality in the eye of law. Since the defendants have failed to prove their version of the case, the learned First Appellate Court was wholly justified in the eye of law to decree the suit filed by the plaintiff by issuing an order of perpetual injunction and mandatory injunction after final adjudication of the rights and obligations of the parties based on evidence on record.
15. I have considered the rival submissions made by and on behalf of the parties and have also perused the materials on Page 11 of 18 record. From the pleadings of the parties what can be seen is that it is the admitted position of fact that the defendant No.1 had entered as a tenant under the plaintiff in the year 1961 in respect of a two storied RCC building covered by CI sheet roof and the Assam Type house described in Schedule-A to the plaint on condition of payment of monthly rent at the rate of Rs.1600/- which was subsequently enhanced to Rs.2200/- per month. The agreement dated 21.04.1978 entered by and between the parties is also an admitted document which goes to show that out of the monthly rent of Rs.1600/- the defendants were entitled to adjust an amount of Rs.200/- per month towards the cost of construction/renovation carried out by the defendants which was subject to a maximum limit of Rs.50,000/-. On the basis of the documentary evidence as well as the oral evidence adduced by the plaintiff's side, it is seen that the plaintiff could prima facie discharge his burden to prove and show that the defendants had encroached upon the vacant land described in Schedule-B to the plaint and also made an attempt to carry out construction over the said plot of land without obtaining any permission from the plaintiff/landlord.
16. The defendants side had claimed that by virtue of a subsequent agreement dated 30.08.1979 marked as Ext-A the plaintiff/landlord had not only allowed the defendants to occupy a plot of land measuring 1 bigha 1 lecha on a long term lease basis Page 12 of 18 but had also authorized the defendants to carry out construction of permanent nature and/or extend the existing constructions with a further assurance to allow them to occupy the suit land until such time the defendants desire to do so. The defendants had further claimed to have incurred an expenditure of Rs.3,88,724.60 paisa towards cost of construction besides additional amount on account of payment of Municipal taxes pertaining to the tenanted premises. They have also claimed to have paid advance rent to the plaintiff pursuant whereto the plaintiff had asked them not to pay any monthly rent until such time the entire amount is invested by the defendants stood completely adjusted. However, during the course of the trial the defendants could not lead convincing evidence to prove and establish their version of the case. A perusal of the oral testimony of the DWs 1 and 2 goes to show that they have admitted the fact that no evidence has been produced by them in support of their claim made in the written statement.
17. As has been indicated herein before, Ext-A has already been held to be a document inadmissible in evidence on account of the fact that the same was not a registered document as is required in case of a long term lease agreement nor have the defendants been able to produce the original copy of the said document. From an examination of the oral evidence led by the parties it could further be seen that the defendants side could not bring on record Page 13 of 18 sufficient evidence so as to prove and establish their version of the story, particularly, that part of the claim that the plaintiff had permitted them to occupy land measuring 1 bigha 1 lecha with a further permission to construct permanent structure over the said plot of land at their own cost and thereafter adjust the amount so spent from the monthly rent.
18. In the instant suit the plaintiff has consistently claimed to be the owner of an area of land measuring 4 katha 8 ½ lechas only and not 1 bigha 1 lecha, as indicated by the defendants. The defendants have not denied or disputed the title of the plaintiff over the Schedule "A" property nor have they denied the tenancy in respect of the same. The plaintiffs case is that schedule "B" land forms part of the Schedule "A" land. The defendants have not been able to disprove the said fact. Since, the title of the plaintiff over the Schedule "A" was not in dispute therefore, there was no requirement for the plaintiff to seek a decree for declaration of his title over the suit property.
19. That apart, the relationship of landlord-tenant between the plaintiff and the defendant is also admitted. Therefore, until the contrary is proved, the plaintiff would be deemed to be in constructive possession of the tenanted premises through the tenant and would be entitled to recover possession in respect of the same by filing an ejectment suit under the Rent Control Law in the Page 14 of 18 event there is a violation of the terms and conditions of tenancy. But does not mean that till such time a decree of ejectment is obtained by the landlord any illegal and unauthorized construction carried out by the tenant cannot be prevented by an order of injunction.
19. In the case of Anathula Sudhakar (supra) the Hon'ble Apex Court while discussing the principles pertaining to maintainability of a suit for permanent injunction simpliciter has observed as follows :-
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant Page 15 of 18 asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
20. It is true that when the plaintiff is not in possession of the suit land and when the title itself is disputed, a suit for permanent injunction simpliciter would not be maintainable in the absence of a decree for declaration of the right, title and interest and recovery of possession. In the instant case not only is the tenancy admitted but the defendants have not succeeded in establishing their right to enjoy the Schedule "B" property based on any independent lease agreement for usage of the land alone. The defendants have not made any counter-claim claiming any independent right title or interest over the suit land. Hence, they would not have any right to occupy or make construction over the schedule"B" land without the consent of the owner. Therefore, a suit for permanent injunction restraining the defendants from making any construction over the suit land at the instance of the plaintiff / land lord would be maintainable.
21. However, the position will be different in case of a decree of mandatory injunction compelling the performance of certain act Page 16 of 18 by the defendants. Section 39 of the Specific Relief Act, 1963 lays down the provision for granting mandatory injunction of the Court. Section 39 is quoted herein below for ready reference :-
"39. Mandatory injunction.-- 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."
22. From a reading of the aforesaid provision it is clear that the Court may grant an injunction to prevent the breach complained of or to compel performance of the requisite act. In the instant case, the plaintiff has prayed for a decree of mandatory injunction requiring the defendant to dismantle the unauthorized construction carried out over Schedule-B plot of land. It is correct that a tenant cannot carry out any unauthorized construction over any portion of the land belonging to the landlord without the prior consent and such an activity, if carried out, would be in violation of the terms and conditions of tenancy rendering the tenant to be evicted from tenanted premises. However, even in such a case, the tenant cannot be evicted from the premises in question save and except in execution of a decree passed by civil court. Until such time the tenant is in possession of the tenanted premises including any other part being trespassed, his possession over the same cannot be Page 17 of 18 interfered with. Since a decree for mandatory injunction, in the nature prayed for by the plaintiff requiring dismantling of the construction, would amount to interference with the possession of the defendants over the premises under their occupation, hence such a decree would not be sustainable till such time the tenant continues in possession of the premises. In view of what has been observed herein before, I am of the opinion that the decree for mandatory injunction granted by the lower Appellate Court is not sustainable in the facts and circumstances of the case. The impugned judgment and decree, therefore, stands interfered with to the above extent.
23. In view of what has been observed herein before, the substantial question of law stands answered accordingly. The decree for mandatory injunction granted by the Court below stands interfered with.
24. In the result, the Second Appeal is partly allowed. However, having regard to the facts and circumstances of the case, there would be no order as to cost.
Registry may send back the LCR.
Prepare a decree accordingly.
JUDGE T U Choudhury Page 18 of 18