Punjab-Haryana High Court
Ram Kishan vs Bhagwan-Sarup Nagar on 26 October, 2005
Equivalent citations: (2006)142PLR754
Author: Jasbir Singh
Bench: Jasbir Singh
JUDGMENT Jasbir Singh, J.
1. Respondent-plaintiff filed a suit for mandatory injunction with a prayer that the appellant-defendant be directed to hand over possession to him, of the demised premises description of which was given in his plaint. He also claimed Rs. 3,900/- towards mesne profits for use and occupation of the said property by the appellant. It was case of the respondent that he was owner of house No.5912-13. Appellant is his real cousin and as such, he had inducted him as a licensee in two rooms, one on northeast corner and the other on the southwest of the property, in dispute. Thereafter, when the appellant started mis-behaving the respondent by issuing notice to him on 27.9.1991 revoked his licence. Even then appellant has failed to vacate portion of the house in question. Respondent further claimed mesne profit @ Rs. 200/-per month for use and occupation of the demised premises by the appellant.
2. Upon notice, appellant put in appearance and controverted all allegations levelled by the respondent in his plaint. It was case of the appellant that the suit property is exclusively in continuous peaceful possession of the defendant for the last more than 50 years as its owner without paying any rent to any body including the plaintiff. It was denied that he was ever inducted as a licencee by the respondent. It was further stated that the respondent never came in possession of the property, in dispute, in any capacity. It was also averred that the suit for mandatory injunction was not maintainable. Respondent filed replication wherein he controverted the plea raised by the appellant in his written statement and reiterated the averments made by him in his plaint. On the basis of pleadings of the parties, trial Court framed the following issues:-
1. Whether the plaintiff is entitled for the relief of injunction as alleged in the plaint? OPP
2. Whether the plaintiff is entitled to recover Rs. 3,900/- as mesne profits as alleged in the plaint? OPP
3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Whether the suit of the plaintiff is not maintainable? OPD
5. Whether the plaintiff has no cause of action to file the present suit? OPD.
Thereafter, both the parties led evidence and on conclusion thereof, trial Court held that the respondent was successful in proving him as owner of the property, in dispute, despite that all issues were decided against him. Respondent went in appeal, which was allowed vide judgment and decree dated 29.4.2000. Findings given by the Trial Court were reversed and suit filed by the respondent was decreed. Hence, this Regular Second Appeal.
3. When this appeal was admitted, following question of law was noticed by this Court:-
Whether the learned lower Appellate Court could reverse the findings without considering the documents Ex.D-1, D-2 and D-3?
4. Shri R.S. Longia, Advocate appearing for the appellant has vehemently contended that without referring to the documents brought on record by the appellant and also other evidence on record, appellate Court below has reversed the well reasoned judgment of the trial Court. He further asserted that even findings given by the trial Court regarding ownership were not justified in view of evidence on record. Shri Longia, by referring to evidence of the respondent contended that there is no corroborative evidence to prove that the respondent is owner of the property in dispute. He has further stated that in view of the facts of this case, suit for mandatory injunction was not maintainable. He also argued that the Courts below have wrongly relied upon judgment of the Rent Controller Ex.P-9, as the appellant was not a party in those proceedings. Furthermore, the Rent Controller has no jurisdiction to decide question of title amongst the parties. He prayed that the appeal be allowed, judgment and decree under challenge be set aside.
5. Arguments raised by counsel for the appellant have vehemently beer, controverted by Shri C.B.Goel, Advocate appearing for the respondent. He stated that there existed ample evidence on record to prove that the respondent is owner of the property in dispute. He further argued that the findings given by the trial Court regarding ownership were not challenged by the appellant in appeal, as such, in the second appeal he has no right to lay challenge to those findings. By referring to judgment rendered by the Rent Controller, Ex.P-1, P-5, P-6 and Mark A and B, counsel asserted that the findings regarding ownership in favour of the respondent were correct. He further by referring to ratio of judgment in Sant Lal Jain v. Avtar Singh . argued that the suit for mandatory injunction was maintainable. He prayed that the appeal having no substance be dismissed.
6. After hearing counsel for the parties, this Court feels that the present appeal deserves to be allowed. It is apparent from the records that the appellant Court, while reversing judgment of the trial Court, has not even noticed the documentary and oral evidence, brought on record by the appellant. Similarly, while deciding question of .title, Court has not said a word about the documents Ex.D-1 to Ex.D-7, though D-1 and D-2 were relied upon by the trial Court to say that creation of licence 5-6 years earlier to the filing of the suit by the respondent in favour of the appellant was not proved on record. As is evident from the judgment and decree passed by both the Courts below, oral and documentary evidence led by the appellant, while deciding question of title, was not even discussed, as such, it is a fit case, where interference can be made by this Court in Regular Second Appeal.
7. To say that the respondent is owner of the property, in dispute, both the Courts below have relied upon documents Ex. P-1/l-a letter from the municipal committee regarding intimating sanctioning of mutation in favour of the respondent, Ex.P-1-notice for termination of licence, P-2 to P-4 postal receipts and acknowledgment to show service of that notice, P-5 and P-6 i.e. extract from the General Land Register and P-9, judgment passed by the Rent Controller regarding one room in the house, in dispute and also Mark A to C extract from the assessment Register of the Municipal Committee To give finding regarding ownership, Courts have also relied upon general pleas taken by the appellant in his written statement wherein he has stated that 'he was in continuous exclusive possession of the property in dispute for the last more than 50 years as owner without payment of rent to anybody including the respondent.' The above said finding was given without discussing the documents brought on record by the appellant.
8. This Court feels that the evidence referred to above is not sufficient to prove ownership of the responderrt in the property, in dispute. It is not in dispute that appellant and respondent are closely related to each other, as their fathers were real brothers. So far as ownership is concerned, there existed no direct evidence on record. Both the Courts below have tried to draw inference in that regard on the basis of documents, which this Court feels, did not prove the same. Ex.P-1 to P-4 are notice, postal receipt and acknowledgment receipt. To confer right of ownership upon the respondent, these documents are no help. Ex.P-1/1 is copy of the letter written by administrative committee Ambala Sadar to the respondent wherein it has been stated that the property, bearing house No. 5912-13, Sadar Bazar Ambala have been mutated in his name 'for tax purpose only' as required under Section 87 of the HM Act, 1973. Nothing has been brought on record to show on what basis, mutation was sanctioned in favour of the respondent. Similarly extract from the assessment register of the municipal committee cannot be relied upon to say that the person named therein is owner of the property, in dispute. It is specific case of the respondent that initially property was ownership of his father, as to how his father had become owner of the said property; no evidence has been brought on record. Similarly, documents Mark A and B being not proved on record, are of no help to the respondent. Otherwise also, these documents only refer to some assessment, regarding tax, made by the municipal authorities in the .year 1983, The basis on which the said assessment as made has not been brought on record. To claim that the respondent has inherited this property from his father, reliance has been placed upon Will mark C. This Court feels that for want of proof, the said document cannot be read in evidence.
9. Now it is to be seen whether merely on the basis of some mutation entries and extract from the assessment register of the municipal committee, respondent could have been declared as owner of the property, in dispute. Their Lordships of the Supreme Court in 1997(1) R.C.R. (Civil) 565, Sankalchand Jayachandbhai Patel v. Vithalbai Jayachan dbhai Patel while dealing with a similar situation, wherein ownership was claimed on the basis of mutation, has observed thus:-
It is settled law that mutation entries are only to enable the State to collect revenue from the persons in possession and enjoyment of the property and that the right, title and interest as to the property should be established de hors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. Therefore, the view taken by the learned Single Judge, with due respect, is not correct in law. The Civil suit is clearly maintainable. The High Court rightly granted injunction restraining the appellants from alienating result in revision.
To the same effect is the ratio of the Single Bench Judgment of this Court in Makhan Singh and Anr. v. Achhar Smgh and Ors. (2000-3)126 P.L.R. 65.
10. So far as present case is concerned, position is even worst. In letter Ex.P-1, wherein it has been mentioned that mutation has been sanctioned in favour of the respondent, it further been stated that the said mutation was entered only for tax purpose. When the respondent has failed to prove on record any document of title, merely on the basis of some entry/the extract from assessment register maintained by municipal authority, he cannot be declared owner of the said property. Ratio of judgments, referred to above, is fully applicable to the facts of the present case.
11. Admittedly, property, in dispute, initially, was ownership on the basis of possession by this father. To support his claim, he has placed reliance upon Ex.P-5 and P-6 i.e. extract from the general land register maintained by the Cantonment Executive Officer, Ambala, wherein it has been shown that father of the respondent was in possession of the property, in dispute. This Court feels that on the basis of those documents, respondent cannot be declared as owner. Both these documents do not show as to when entry regarding possession was made in favour of father of the respondent and how at what time, he entered in possession of the same and in which capacity. In those documents it has been mentioned that the landlord of the property is Government of India and it was an old grant. To support entries made in those documents, nothing has been brought on record. When the respondent has appeared in the witness box, he lias specifically stated that the property was purchased by him/his father. To support that contention, no document of title was proved on record. Contrary to this, there existed sufficient evidence on record to show that from the day one and for the last more than 50 years, Natha Ram and Ghasi Ram, fathers of the respondent and appellant respectively, were jointly in possession of the property in dispute. To prove that fact, appellant had produced two residents of the locality, namely Rameshwar Kumar Goel (DW-3) and Sham Lal (DW-4), who have categorically affirmed the fact, referred to above. Both these witnesses have deposed that father of the appellant had been residing in this property for the last more than many decades. So far as respondent is concerned, apart from his sole testimony in Court, there existed no other oral corroboration to the averments made by him. Appellant has also brought on record Ex.D-1, a copy of resolution passed in the year 1931 by the municipal committee, on an application made by father of the appellant, whereby that application to open slaughter house, in house No. 5912-13 was rejected on the ground that there already existed another shop for the said purpose in that area. Document Ex.D-2 also supports case of the appellant to claim ownership of the property, in dispute. This document is a copy of an application made by father of the respondent to get loan in the year 1961. Address given in that application is house No. 5912, Sadar Bazar, Ambala, which is part of the property, in dispute. Similarly, document Ex,D-3 is a receipt issued by the Sales Tax Department in the year 1974 wherein again address of appellant's father is shown as house No. 5912, Cross Road, Ambala. Ex.D-4 is a letter addressed to father of the appellant by giving address of the same house. Ex.D-5 to Ex.D-7 are the electricity consumption bills issued to the father of the respondent. All these documents and also documents Ex.P-5 and P-6 relied upon by the respondent, clearly prove that the property, in dispute, was a government property and the predecessor-in-interest of the parties i.e Ghasi Ram and Nathu Ram, were in possession of the same. Documents, Ex.D-1 to D-7 and their impact upon question of title was not discussed by both the Courts below vis-a-vis documents Ex.P-5 and P-6. On analysis of these documents, this Court clearly finds that the respondent has failed to prove that he was owner of the property, in dispute.
12. Further contention of counsel for the respondent that once all the documents, referred to above were discarded by the Rent Controller, vide judgment Ex.P-9, no benefit of these documents could be extended to the appellant, is of no force.
13. Reading of judgment passed by Rent Controller Ex.P-9, clearly shows that the appellant was not a party to that litigation and the property involved was another part of the house, in dispute, which admittedly, subsequently was sold to Shri Janki Parshad against whom respondent had filed application for ejectment. In Judgment Ex.P-9, to say that there existed relationship of landlord and tenant between the parties, in those proceedings, Rent Controller had placed reliance upon a judgment passed by Sub-Judge First Class Ambala Cantt. on 4.9.1966. As the said judgment has not been brought on record m this case, it is not known as to on what basis that judgment was passed, on the basis of which, respondent was held entitled to get possession of the room in dispute, in the earlier litigation. It is also apparent from the records that in execution to judgment passed in the year 1966 some compromise was signed by the respondent in that litigation, wherein he admitted the appellant as owner of the room, in dispute. Reading of judgment passed by the Rent Controller, Ex.P-9, did not show that any of the documents Ex.D-1 to D-7 were taken note of and discarded by the Rent Controller. In judgment P-9 to declare the respondent as owner of one room, which is not in dispute in the present litigation, (though part of the same house), grounds were altogether different, as such finding given by the Rent Controller, cannot be read against the appellant in the present litigation.
14. Further contention of the counsel for the respondent that once appellant has failed to lay challenge to the adverse finding regarding ownership before the appellate Court below, it is not open to him to contend, to the contrary, before this Court in Second Appeal, is also liable to be rejected. This Court feels that as the suit filed by the respondent was dismissed, though finding regarding ownership was recorded against the appellant, it was not necessary for him to challenge that finding by filing an appeal or cross objections. Their Lordships of Supreme Court in 2003(2) R.C.R. (Civil) 248, Ba-narsi and Ors. v. Ram Phal while dealing with similar situation, in para No. 9 of the judgment observed thus:-
A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him.
Appeal and cross-objection both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was well settled position of law under the unamended C.P.C.
In view of the ratio of the judgment of Hon'ble Supreme Court, referred to above, contention raised, stands rejected.
15. Courts below have also wrongly relied upon general plea regarding adverse possession, taken by the appellant in para No. 1 (on merits) of his written statement, which reads as under;-
That para No. l of the plaint is absolutely wrong hence denied. It is specifically denied that the plaintiff is owner of House No. 5912-13 Nagar Mandi, Ambala Cantt, as alleged. The suit property is exclusively in the continuous peaceful possession of defendant for last about 50 years as its owner without paying any rent or hire to anybody including the plaintiff.
This Court feels that if both the Courts below have read this paragraph in toto, their opinion regarding ownership of the property, in dispute, would have been different.
16. A reading of this paragraph indicates that in the first part, ownership of the respondent has specifically been denied and then it has been said by the appellant that he had been in possession of the property, in dispute for the last more than about 50 years as its owner and without payment of any rent or hire to anybody including the plaintiff. It was a general plea taken by him, it did not mean that he has accepted the respondent as owner of the property, in dispute.
17. Once, it has come on record, as discussed in earlier paragraph of this judgment, that the respondent has failed to prove his ownership, ground to declare him as owner, merely because adverse possession has been claimed by appellant, against everybody, pales into insignificance and no benefit of the same can be given to the respondent. Once, it has been found as a matter of fact by this Court that the respondent was not owner of the property, in dispute, suit filed by him for mandatory injunction was also not maintainable.
18. In view of reasons given above, this appeal succeeds, judgment passed by the appellate Court below is set aside, finding recorded by the trial Court regarding ownership is also reversed. Consequently, suit filed by the respondent stands dismissed with no order as to costs.