Himachal Pradesh High Court
M/S.Byford Private Ltd.& Others vs Ajit Lajwanti Gujral Trust & Another on 16 September, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.487 of 2005.
.
Judgment Reserved on: 09.08.2016.
Date of decision: 16.09.2016
M/s.Byford Private Ltd.& Others ....Appellants-Defendants
Versus
Ajit Lajwanti Gujral Trust & Another ..Respondents-Plaintiffs
of
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
rt
Whether approved for reporting ?1 Yes.
For the Appellants: Mr.Ajay Kumar, Senior Advocate with
Mr.Dheeraj Vashisht, Advocate.
For Respondents No.1: Mr.Bhupinder Gupta, Senior Advocate
and 2. with Mr.Neeraj Gupta, Advocate.
For Respondents No.3: None.
and 4.
Sandeep Sharma,J.
This appeal has been filed by the appellants-
defendants against the judgment and decree dated 16.08.2005, passed by the learned Additional District Judge, Fast Track Court, Shimla, District Shimla, H.P., reversing the judgment and decree dated 7.9.1999, passed by the learned Sub Judge Ist Class, Court No.2, Shimla, whereby the suit filed by the respondents-plaintiffs has been decreed.
1Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 21:14:41 :::HCHP 22. Briefly stated fact as emerged from the record are that the plaintiffs filed a suit for possession of three plots of land .
measuring 1.3 bighas comprised in Khasra Nos. 670/1, 672 and 674, Khewat No.50, Khatauni No.62, of Jamabandi for the year 1986-87, situated at village Badhal, Tehsil and District Shimla alongwith the construction standing thereupon and for recovery of Rs.19,000/- on account of mesne profits for the last three of years/use and occupation charges and future mesne profits at the rate of Rs.6000/- per month from the date of filing of the suit.
rt Plaintiffs set up a case that late Smt.Lajwanti Gujral wife of Sardar Ajit Singh being owner of the suit property and several other properties, situated in village Badhal created a lease for 20 years in respect of suit property in favour of appellants-
defendants M/s. Byford Private Limited. In the year 1970 Smt.Lajwanti Gujral expired but during her life time she had executed a Will with respect to her entire property including suit property, whereby she bequeathed entire property in favour of plaintiff No.2. It was averred in the plaint that Smt.Lajwanti Gujral and her husband late Sardar Ajit Singh wanted to create some charitable Trust qua some part of property. Accordingly, plaintiff No.2 solely with a view to honour their wish created a Trust; namely; Ajit Lajwanti Gujral Trust, Kachi Ghati, Tara Devi, Shimla, after becoming the owner of the entire property of ::: Downloaded on - 15/04/2017 21:14:41 :::HCHP 3 Smt.Lajwanti Gujral on the basis of will executed by her.
Aforesaid Trust was created by plaintiff No.2 in the year 1982 and .
as such, immediately after the death of Smt.Lajwanti Gujral, plaintiff No.2; namely; Rajindr Singh asked defendant No.1 who was a lessee under Lajwanti Gujral, to attorn in his favour. But, defendant No.1 instead of accepting title of plaintiff No.2 asked him to get his title cleared from the Court. It also emerged from of the plaint that rest of the property of Lajwanti Gujral was illegally occupied by the persons namely; Nanak Singh and Parveen Singh.
rt
3. Plaintiffs also filed a suit in this Court against the aforesaid Nanak Singh and Parveen Singh for possession of rest of the property. Similarly, Nanak Singh also filed a suit claiming himself to be President of some Society known as Gurdwara Lal Ajit Sabha, but plaintiff in the plaint claimed that aforesaid suits have no bearing on the case in hand, since the status of the defendants was only that of the lessees under Lajwanti Gujral and after her death under the plaintiff. Plaintiff also alleged that the lease created by Smt.Lajwanti Gujral, in favour of defendant No.1, was expired on 10.7.1989 and the plaintiffs thus, became entitled to recover the possession of the suit property from defendants. Plaintiff also claimed that defendants not only refused to handover the possession of the suit property after ::: Downloaded on - 15/04/2017 21:14:41 :::HCHP 4 expiry of lease but also started collecting material for the construction of some structure on the suit land unauthorisedly.
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4. Record reveals that only defendants No.1 to 3 contested the suit, whereas remaining defendants were proceeded ex-parte. Defendants No.1 to 3 by way of written statement denied the claim of the plaintiff put forth in the plaint by stating that suit was liable to be stayed under Section 10 of the Code of of Civil Procedure (for short `CPC') because of previously instituted two civil suits i.e. one suit filed by the plaintiff against Nanak rt Singh and Parveen Singh and another suit filed by Nanak Singh against the plaintiffs in this Court, which were pending at that relevant time. Defendants also stated that plaintiffs were estopped to sue by their acts, deeds and conduct. On merits, defendants admitted that Lajwanti Gujral had created a lease for 20 years on monthly rent at the rate of Rs.500/- in favour of defendant No.1 in the year 1969 and that the lease was for a fixed term of 20 years, but defendants stated that Lajwanti Gujral was not the absolute owner of the property and she was only given a life estate by her husband late Sardar Ajit Singh. As per defendants late Sardar Ajit Singh provided in will that on her death the entire property, including the suit property would go to a charitable Trust and as such Lajwanti Gujral was not competent to execute will bequeathing the property to anybody. However, defendants ::: Downloaded on - 15/04/2017 21:14:41 :::HCHP 5 in alternative denied that Lajwanti Gujral made any will in favour of plaintiff No.2. Defendants claimed that they rightly refused to .
pay the rent to the plaintiff No.2 after the death of Lajwanti Gujral since they were considering themselves to be the owners of the property and so that they had become the owners by way of adverse possession. Defendants, in the alternative, also pleaded that they had become the owners of the suit land by operation of of Section 104 of the H.P. Tenancy and Land Reforms Act (hereinafter referred to as the ` H.P. Tenancy Act').
5. rtLearned trial Court vide judgment and decree dated 7.9.1999 dismissed the suit of the plaintiff by holding that the plaintiffs are not owners of the suit property or entitled to recover the possession of the same as prayed for. Learned trial Court also not held plaintiffs entitled to use and occupation charges.
Similarly, learned trial Court, while dismissing the suit of the plaintiffs, also held that the defendants have not become the owners of the suit property as claimed by way of adverse possession or conferment of proprietary rights.
6. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, plaintiffs filed an appeal before the learned Additional District Judge, Fast Track Court, Shimla, who vide impugned judgment and decree dated 16.8.2005 allowed the appeal, whereby plaintiffs were held ::: Downloaded on - 15/04/2017 21:14:41 :::HCHP 6 entitled for possession of the suit property. Learned first appellate Court, while accepting the appeal, held that appellants .
had been successful in establishing the title and possession of appellant No.1 in the suit property. Learned first appellate Court specifically returned the findings that the possession of respondents became unauthorized after 10.7.1989 and as such besides holding plaintiff entitled for possession also held entitled of to fair rent from 1.4.1990.
7. In the aforesaid background, present appellants-
rt defendants, being aggrieved and dissatisfied with the impugned judgment and decree dated 16.8.2005 passed by learned Additional District Judge, Fast Track Court, Shimla, filed instant Second Appeal, which was admitted by this Court vide order dated 20.9.2003 on the following substantial questions of law:-
"1. Whether the findings of the courts below are result of misreading and misinterpretation of law?
2. Whether a suit can be maintained against a Trust in the absence of trustee?
3. Whether a judgment, which is not inter-se between the parties, can form basis of a decree on the ground of resjudicata?"
8. At this stage, it may be noticed that present appellants-defendants, during the pendency of present appeal, moved an application bearing No.CMP No.9199 of 2015 under ::: Downloaded on - 15/04/2017 21:14:41 :::HCHP 7 Order 41 Rules 27 and 33 read with Section 151 CPC, praying therein for placing on record copy of notification dated 2.8.2006, .
issued by Government of Himachal Pradesh including area wherein tenanted premises are situated, in the limits of Municipal Corporation, Shimla. However, this Court vide order dated 1st October, 2015 ordered that application referred hereinabove would be considered at the time of final hearing. Similarly, of present appellants-defendants also moved CMP No.3363 of 2016 under Section 100 CPC read with Order 42 Rule 2 and Section rt 151 CPC, praying therein for amendment of existing substantial questions of law as well as framing of additional substantial question of law.
9. Shri Ajay Kumar Sood, learned Senior Counsel, representing the appellants, vehemently argued that the impugned judgment passed by the learned Additional District Judge, Shimla, is not sustainable in the eye of law since same is not based upon correct appreciation of evidence adduced on record by the respective parties. Mr.Sood contended that bare perusal of impugned judgment itself suggests that the learned appellate Court has erred gravely and acted with material illegality, irregularity and impropriety in passing the impugned judgment and decree merely on the basis of conjectures and surmises.
::: Downloaded on - 15/04/2017 21:14:41 :::HCHP 810. Mr.Sood further contended that learned first appellate Court has erred gravely and acted with material .
illegality and irregularity by misinterpreting the law as applicable to the facts of this case. During arguments having been made by him, Mr.Sood, made this Court to travel through the issues framed by the learned trial Court to suggest that suit of the plaintiff was dismissed by the trial court on merits by deciding of issues No.1 to 5 against the plaintiffs after critical analysis of the evidence of the parties, whereas learned first appellate Court rt simply based his entire decision on document Ex.PW-1/S, i.e. common judgment and decree dated 16.1.1998, passed by learned Additional District Judge, Shimla, in two Civil Suits i.e. Civil Suit No.38-S/1 of 95/81, titled: Shri Gurudwara Laj Ajit Memorial Sabha through its President Shri Nanak Singh vs. Shri Gurudweara Singh Sabha, Cart Road, Motor Stand, Shimla through its President Shri Baldev Singh and Civil Suit No.6-S/1 of 96/83, titled: Ajit Lajwanti Gujral Trust & Others vs. Shri Nanak Singh Gandhi & Others (hereinafter referred to as `Ex.PW-1/S'), which was, admittedly, not a judgment and decree inter-se parties. Learned first appellate Court instead of analyzing the evidence adduced on record by both the parties solely relied upon Ex.PW-1/S i.e. judgment and decree passed in some other case where present appellants were ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 9 not party and such grave illegality has been committed by learned first appellate Court while passing the impugned judgment and .
decree and as such same deserves to be quashed and set aside.
11. Mr.Sood argued with full vehemence that learned first appellate Court, while holding present appellants in un- authorised possession of the suit property after 10.7.1989, failed to address the actual controversy involved in the suit because at of no point of time learned first appellate Court referred to evidence led on record by the parties qua the issues framed by learned trial Court.
rt Mr.Sood, while referring to the impugned judgment, passed by learned first appellate Court, stated that Court below not bothered or cared to address the facts of the case or the evidence on the case file and the issues involved in the present suit and whether the plaintiffs had been able to prove any of the issue by leading proper and legal evidence in the matter and as such he prayed for setting aside of the impugned judgment, which, as per him, was illegal and erroneously decided by learned first appellate Court in absence of any proof on any of the issues.
Mr.Sood forcefully contended that Ex.PW-1/S was not inter partes and as such it was neither admissible in evidence in the present case nor it could be operated as a res judicata between the parties under Indian Evidence Act, 1872 (for short `Evidence Act').
::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 1012. Mr.Sood further contended that aforesaid judgment Ex.PW-1/S has no relevance in the present case and plaintiffs .
were required to prove its case on its own fact since Evidence Act does not make finding of fact arrived at on the evidence before the Court in one case evidence of that fact in another case where the parties are not the same. Mr.Sood also argued that the learned first appellate Court failed to take note of the accepted legal of proposition that a judgment is not admissible or relevant unless it fulfills the mandatory requirements of Sections 40 to 43 of the rt Evidence Act and as such judgment, which is not inter partes, could be made basis by the learned first appellate Court for deciding the appeal at hand. Mr.Sood further contended that the judgment, which was not inter partes, could not operate as res judicata and could not be made sole basis of deciding a suit of title and possession, especially when plaintiffs miserably failed to lead evidence to prove the issue involved in the present case, though Mr.Sood, fairly conceded that Ex.PW-1/S was further upheld by the Hon'ble High Court and Hon'ble Apex Court. While concluding his arguments, Mr.Sood, persuaded this Court to peruse evidence led on record by plaintiffs to demonstrate that the plaintiffs miserably failed to prove that it was a legally and validly constituted Trust. Similarly, Mr.Sood made this Court to peruse evidence adduced on record by the plaintiffs to ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 11 demonstrate that at no point of time plaintiffs were able to prove will of late Smt.Lajwanti Gujral on the basis of which they .
claimed title of the suit property. Lastly, Mr.Sood stated that it is ample clear from the judgment passed by learned trial Court that the plaintiffs were not able to prove creation of Trust, if any, because at no point of time PW-1 was able to place on record Trust Deed, authorization letter authorizing him to file suit on of behalf of Trust and will, if any, executed by late Smt.Lajwanti Gujral.
13. rt At this stage, Mr.Sood, apart from making aforesaid arguments, invited the attention of this Court to CMP No.9199/2015 filed by appellants under Order 41 Rules 27 and 33 read with Section 151 CPC for placing on record additional documents and prayed that the same may be decided at first instance before adverting to the merits of the case since documents intended to be placed on record would have great bearing on the merits of the case.
14. Mr.Sood stated that during the pendency of the suit, State of Himachal Pradesh vide notification dated 2.8.2006 included certain new areas in Municipal Limits of Municipal Corporation, Shimla. Mr.Sood, while referring to para-3 of the application, submitted that area in question, where suit property is situated, has also been included in the limits of Municipal ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 12 Corporation, Shimla vide aforesaid notification. As per Mr.Sood, with the inclusion of the suit property in the Municipal .
Corporation area, suit itself has become infructuous and as such in view of subsequent development, the application may be allowed and they be permitted to place on record copy of notification.
15. Similarly, Mr.Sood also invited the attention of this of Court to CMP No.3363 of 2016 filed by appellants under Section 100 read with Order 42 Rule 2 and Section 151 CPC for rt amendment and reframing of substantial questions of law.
16. Mr.Sood, while making arguments, also invited the attention of this Court to the substantial questions of law framed on 20.9.2005, whereby question No.2 was framed by this Court as under:-
2. Whether a suit can be maintained against a Trust in the absence of trustee?
17. As per Mr.Sood, keeping in view the controversy at hand, aforesaid issue should have been framed as under:-
"2. Whether a suit can be maintained by a Trust in the absence of Trustees?"
Since suit was filed against the appellants by an alleged Trust, Mr.Sood stated that there appears to be typographical mistake while framing the said question of law and as such it needs to be re-framed accordingly.
::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 1318. Mr.Sood, while referring to para-4 of the aforesaid application, also stated that in the instant case, judgment passed .
in some other case and exhibited as Ex.PW-1/S, has been relied upon by the learned first appellate Court for passing impugned judgment against the appellants, which was not admissible in evidence under Sections 40 to 43 of the Indian Evidence Act and could not be made basis for passing impugned judgment by the of learned first appellate Court and as such substantial question No.3 requires to be recast and substantial questions No.3 to 5 as rt submitted with the grounds of appeal required to be reframed.
He also submitted that now since the suit property has come in the limits of Municipal Corporation of Shimla, another substantial question of law requires to be framed as under:-
"What is the legal effect on the present suit after the inclusion of the suit property in the urban limits of Municipal Corporation, Shimla during pendency of this RSA?"
19. Mr.Sood in support of aforesaid contentions placed reliance on the judgments passed by Hon'ble Apex Court as well as by this Court in Sunder Dass vs. Ram Parkash 1977(2) R.C.R. 143, Mani Subrat Jain vs. Raja Ram Vohra, AIR 1980 SC 299, Lakshmi Narayan Guin and others vs. Niranjan Modak, AIR 1985 SC 111, Anthony vs. K.C. Ittoop & Sons and Others, (2000)6 SCC 394, Vishwanath Sitaram vs. Sau.Sarla Vishwanath Agrawal, AIR 2012 SC 2586. Sunit ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 14 Kumar vs. Laxmi Chand, 2009(2) Shim.L.C. 448 and Shyam Sunder Lal vs. Shagun Chand, AIR 1987 Allahabad 214.
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20. Mr.Bhupender Gupta, learned Senior Counsel, supported the judgment and decree passed by the learned first appellate Court. Mr.Gupta, while referring to the impugned judgment, vehemently argued that bare perusal of same suggests that same is based upon correct appreciation of the evidence as of well as law and as such no interference, whatsoever, of this Court is warranted in the present facts and circumstances of the case.
rt Mr.Gupta, strenuously argued that there is no illegality, infirmity and perversity in the impugned judgment passed by the learned first appellate Court, rather same is based upon the correct appreciation of facts as well as law.
21. Mr.Gupta, while refuting the contention put forth on behalf of learned Senior Counsel representing the appellants, submitted that learned first appellate Court rightly placed reliance upon Ex.PW-1/S because, admittedly, vide Ex.PW-1/S, Court below held plaintiff No.2 Rajinder Singh Gujral to be the owner of the suit property pursuant to will executed by late Smt.Lajwanti Gujral. Mr.Gupta, while inviting the attention of this Court to judgment Ex.PW-1/S, strenuously argued that bare perusal of the said judgment Ex.PW-1/S suggests that will executed by late Smt.Lajwanti Gujral was held to be valid one and ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 15 for all intents and purposes plaintiff No.2 Rajinder Singh was held to be owner of the suit property on the basis of will executed .
by late Smt.Lajwanti Gujral. Mr.Gupta, forcefully contended that bare perusal of the written statement filed by appellants clearly suggests that rent was denied to plaintiff No.2 solely on the ground that at first instance he should prove his title.
22. Mr.Gupta, invited the attention of this Court to the of written statement filed by defendants, wherein it was stated that two civil suits were pending; meaning thereby that defendants rt were denied rent as well as acknowledging plaintiff No.2 to be owner for want of title, which issue was ultimately decided vide Ex.PW-1/S, wherein plaintiff No.2 was held to be owner of the suit property pursuance to will executed by late Smt.Lajwanti Gujral, which was also held to be valid. Mr.Gupta invited the attention of this Court to the admission made on behalf of defendants in the written statement that they had procured legal opinion of Mr.K.D. Sood, Advocate, wherein he advised that they should wait for outcome of both the afore-mentioned Civil Suits.
23. In the aforesaid background, Mr.Gupta, forcefully contended that learned trial Court had fallen in grave error while not acknowledging Ex.PW-1/S, which could be material document to decide the controversy at hand. Mr.Gupta, refuted the contention put forth on behalf of counsel representing the ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 16 appellants that learned first appellate Court failed to take note of the mandatory requirements of Sections 40 to 43 of the Evidence .
Act by stating that judgment Ex.PW-1/S had direct bearing upon the present suit because in that case issue with regard to title of suit property was decided. As per Mr.Gupta, once defendants specifically raised the issue of title, learned trial Court while deciding the controversy at hand ought to have relied upon of Ex.PW-1/S with a view to go to the root of the controversy. With a view to substantiate the aforesaid arguments, Mr.Gupta invited rt the attention of this Court to Section 13 of the Evidence Act.
Mr.Gupta, while refuting the arguments made by Mr.Sood that the plaintiffs led no evidence to prove that it was a legally and validly constituted Trust, submitted that had learned trial Court taken cognizance of Ex.PW-1/S, wherein issue of execution of will by late Smt.Lajwanti Gujral as well as constitution of Trust by plaintiff was specifically dealt with by the trial Court, all objections/contentions raised/made by appellants-defendants would have answered automatically.
24. Mr.Gupta also stated that learned trial Court below miserably failed to appreciate the evidence led on record by the plaintiffs, wherein, PW-1 Baldev Singh categorically stated that property earlier belonged to Sardar Surjeet Singh, who made will in favour of Smt.Lajwanti in the year 1970. He also stated that ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 17 Smt.Lajwanti made a will in favour of plaintiff No.2 Shri Rajinder Singh, as a consequent of that, mutation was attested in favour of .
plaintiff No.2 vide Jamabandi Ex.PW-1/A to E. He categorically stated that Chairman, Gurudwara Singh Sabha was ex-officio Chairman and there were six trustees. PW-1 Baldev Singh also stated that Trust was made in the year 1982, copy of which is mark `A'. Mr.Gupta, further contended that if, for the sake of of arguments, it is conceded that PW-1 Baldev Singh was not able to prove validity of constituted Trust, learned trial Court could not rt dismiss the suit on that ground, especially when PW-2 Rajinder Singh, who became owner of the property, was one of the plaintiff.
Mr.Gupta, also invited the attention of this Court to the statement of PW-1 wherein he stated that PW-2 Rajinder Singh Gujral issued notice to defendants after becoming owner;
meaning thereby that the suit at hand was instituted by PW-2 also and as such learned trial Court below could not dismiss the suit on the ground that plaintiffs were not able to prove that they were owners of the suit land and entitled to recover the possession of the suit land. While concluding his arguments in the case, Mr. Gupta vehemently argued that had trial Court below placed reliance upon Ex.PW-1/S, judgment dated 16.1.1998 would not have been passed by learned trial Court because all issues pertaining to execution of will, title and creation of Trust ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 18 were decided in that judgment which has been upheld up to Hon'ble Apex Court.
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25. Mr.Gupta, while opposing the prayer made in the applications moved under Order 42 Rule 2 read with Section 151 CPC and Order 41 Rules 27 & 33 read with Section 151 CPC filed on behalf of the appellants, stated that there is no subsequent development which may defeat the decree passed by the appellate of Court in favour of plaintiffs. Mr.Gupta, stated that merely the fact that the property is located in the area which stands included rt in the Municipal Corporation would not give any right to the appellants to submit that the suit has become infructuous, rather applicants-appellants solely with a view to defeat the mandate of impugned judgment are trying to misrepresent the true facts by placing reliance upon notification issued by State of Himachal Pradesh including area of suit property in Municipal Corporation, Shimla. Mr.Gupta, with a view to refute the aforesaid contention put forth on behalf of counsel representing the appellants, forcefully argued that relationship of landlord and tenant was not at all admitted by the appellants in the written statement and as such appellants are estopped from contending that the suit has become infructuous and the provisions of H.P. Urban Rent Control Act, 1987 (hereinafter referred to as `H.P. Rent Act') are applicable. With a view to substantiate his aforesaid arguments ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 19 he invited the attention of this Court to the written statement filed by the appellants-defendants, wherein appellants claimed .
title to the suit property by claiming ownership on the ground of adverse possession. Mr.Gupta also persuaded this Court to peruse the impugned judgment to demonstrate that even at the stage of first appellate Court appellants made submissions with regard to application of provisions of H.P. Rent Act in the of controversy at hand which was dismissed by the Court by returning findings that possession of the applicants over the suit rt property was unauthorized after 10.7.1989 and as such suit was decreed. Mr.Gupta, contended that once it stands proved on record that possession of appellants was unauthorized after 10.7.1989, they cannot be termed as `tenants' in any capacity so as to invoke the provisions of H.P. Rent Act. He further contended that it is well settled law that the suit for possession can always be filed against an unauthorized occupant and there is no legal impediment to pass the decree in favour of the owners and as such application filed during the pendency of present appeal, which is nothing but a ploy to delay the proceedings, is absolutely untenable and such additional or alternative plea is not available to the appellants-applicants at this stage.
26. Mr.Gupta, while opposing the applications, as referred above, stated that in view of his aforesaid arguments, ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 20 there is no need, if any, for framing of additional substantial question as prayed in CMP No.3363 of 2016. Mr.Gupta, opposed .
the prayer of appellants for placing on record additional documents as well as framing of issues as prayed for in the aforesaid application on the ground that there is no explanation worth name with regard to delay in filing the present application.
Mr.Gupta strenuously argued that when this notification had of come in existence on 2.8.2006, what prevented the present appellants to move this application in the year 2015 i.e. after 9 rt years of issuance of this notification. Similarly, Mr.Gupta argued that why appellants failed to move an application for recasting of issues, if any, for almost 10 years. Otherwise also notification had come in existence on 2.8.2006 and as such any application for re-casting issues in light of issuance of notification after 10 years cannot be allowed at this stage because same has been filed solely with a view to delay the proceedings and defeat the mandate of impugned judgment.
27. Before resorting to explore the answer to substantial question of law, it would be appropriate for this Court to decide both the aforesaid applications at first instance. Perusal of the averments contained in the aforesaid applications as well as reply thereto clearly suggests that vide notification dated 2.8.2006 area in question, where the property, subject matter of the suit, is ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 21 situated, stands included in the limits of Municipal Corporation, Shimla.
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28. In view of above, now this Court needs to ascertain that "what would be the effect of issuance of notification dated 2.8.2006 on the suit filed by the plaintiff for possession of suit property against present appellants-defendants?" Admittedly, when the suit for possession was filed, property in question was of not governed by H.P. Rent Act. Though record reveals that during the pendency of trial, defendants had moved an application under rt Order 7 Rule 11 CPC to show that w.e.f. 11.1.1997 area became part of Municipal Corporation, Shimla, and as such they claimed themselves to be tenants holdings over even after termination of tenancy and as such they claimed that they cannot be ejected by way of civil suit and relief, if any, can be claimed against them under H.P. Rent Act which would govern the relationship between landlord and tenant. But, it appears that thereafter area in question was again excluded from the limits of Municipal Corporation, Shimla, which was again included vide aforesaid notification dated 2.8.2006.
29. As per Mr.Sood, notification dated 2.8.2006 has direct bearing upon the present case because once property in question stands included in Municipal Area, same would be governed with the provisions of H.P. Rent Act. As per Mr.Sood, ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 22 admittedly, when suit was filed, suit property was not within the limits of Municipal Corporation but during the pendency of .
present appeal it has been included in the Corporation and as such present suit cannot be allowed. Since property is located within the Municipal Corporation, plaintiffs have remedy, if any, under the H.P. Rent Act for eviction of the tenanted premises.
30. Since, appellants-defendants, in view of notification of dated 2.8.2006 issued by State of Himachal Pradesh, wherein suit property has been included in the limits of Municipal rt Corporation, Shimla, claimed that they being tenants over holdings can only be evicted by resorting to the provisions of Rent Act. It would be appropriate to refer the definition of "tenant", as provided in sub-section (j) of Section 2 of H.P. Rent Act, which is as under:
"2(j) "tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after termination of the tenancy and in the event of the death of such person such of his heirs as are mentioned in Schedule-I to this Act and who were ordinarily residing with him at the time of his death, subject to the order of succession and conditions specified, respectively in Explanation-I and Explanation-II to this clause, but does not include a person placed in occupation of a building of rented land by its tenant, except with the written consent of the landlord, or a person to whom the collection of rent or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a municipal corporation or a ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 23 municipal committee or a notified area committee or a cantonment board."
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31. Perusal of definition, as reproduced above, suggests that any person by whom or on whose account rent is paid of residential or non-residential building or rented land and includes a tenant continuing in possession after termination of the tenancy.
of
32. Section 14 of H.P. Rent Act provides the provisions of `Eviction of Tenants', which reads as under:-
rt "Section 14(1) A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act."
33. To initiate proceedings, if any, under Section 14 of the H.P. Rent Act, landlord at first instance is under obligation to prove that occupant of premises, which is being sought to be evicted by resorting to provisions of Section 14, is a "tenant"
within the meaning of Section 2(j) as reproduced hereinabove.
34. In view of detailed discussion made hereinabove, by no stretch of imagination appellants-defendants can claim themselves to be "tenants" in terms of Section 2(j) of the H.P. Rent Act and as such plea advanced on their behalf with regard to ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 24 application of H.P. Rent Act for eviction of suit property is baseless and same deserves to be rejected out rightly.
.
35. In the present case, undisputedly present appellants were inducted as lessee in the year 1969 by late Smt.Lajwanti Gujaral for 20 years i.e. up to 10.7.1989 and after expiry of lease, plaintiff No.2 filed suit for possession. As per Mr.Sood proceedings arising out of Civil Suit No.411/1 of 95/90 is still in of continuation in the shape of present appeal and as such still relationship of landlord and tenant exists between the parties. As rt per appellants-defendants, they enjoy the status of `tenants holding over' qua the premises even after termination of lease dated 10.7.1989 and as such eviction, if any, can be effected by resorting to the provisions of H.P. Rent Act. Whereas, as per Mr.Gupta, since relationship of landlord and tenant was not admitted by appellants at any stage, rather, appellants claimed themselves to be owners by way of adverse possession and as such plea, if any, of applicability of H.P. Rent Act cannot be allowed to raise at this stage.
36. Apart from above, learned appellate Court, while accepting the appeal of plaintiffs, specifically held the possession of appellants over the suit property as unauthorized after 10.7.1989, meaning thereby that there was no relationship of landlord and tenant after 10.7.1989.
::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 2537. Close scrutiny of factual matrix available on record suggests that admittedly appellants were inducted as tenants in .
the suit property by predecessor-in-interest of plaintiffs and for vacation of tenanted premises, proceedings at first instance were initiated by the plaintiffs by way of filing suit for possession, which was dismissed by learned trial Court by holding that the plaintiffs are not the owners of the suit property and as such they of are not entitled for recovery of possession. But in appeal, first appellate Court upset the findings of the trial Court and held rt plaintiff No.2 to be the owner of the suit property by holding present appellants in unauthorized possession of the suit property after 10.7.1989. At this stage, this Court needs to examine that what is the status of appellants, after 10.7.1989 i.e. date of expiry of lease; first, whether he is a trespasser or he is tenant in terms of Section 14 of the H.P. Rent Act. It is undisputed that plaintiffs filed suit against present appellants on 5.4.1990 i.e. after expiry of lease by late Smt.Lajwanti Gujral in the year 1969. It is also not disputed that late Smt.Lajwanti Gujral had created lease for 20 years on monthly rent of Rs.500/-
in favour of defendant No.1 in the year 1969 and lease was on fixed term of 20 years and as such same was to be expired on 10.7.1989.
::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 2638. At this stage, it would be apt to reproduce following paras of plaint filed by the plaintiffs:
.
"5. That the property mentioned in para 4 above is owned by Plaintiff No.2 through its trustees, namely, President, Shri Gurdwara Singh Sabha, Shimla, S.Jagat Singh, Plaintiff No.2, and Proforma-Defendants 5 to 7.
6. That Smt.Lajwanti the owner of the aforementioned property known as Rockdene Estate, Tara Devi, through deed of lease duly executed by her on 30.8.1967 granted lease of 3 of Plots of land measuring 1 Bighas 3 Biswas comprised in Khasra No.670/1, 672 and 674 entered at Khewat No.50, Khatauni No.62 of Jamabandi for the year 1986-87, situated at Mauza Badhal, Tehsil and District Shimla rt alongwith building standing thereupon for commercial purposes to Defendant No.2 for a period of 5 years, which deed of lease was got duly registered with Sub Registrar, Kasumpti in the then Mahasu District on 30.8.1967.
7. That before the expiry of the term of lease, due to the change in the name of the lessee, namely, Defendant No.2 and due to the other circumstances, earlier lease created on 30.8.1967, was revoked with effect from 11.7.1969 and a fresh lease was made by Smt.Lajwanti on 11.7.1969 with respect to the same property namely, 4 Plots of land measuring 1 Bighas 3 Biswas comprised in Khasra Nos.670/1, 672 and 674 entered at Khewat No.50, Khatauni No.62 of Jamabandi for the year 1986-87, alongwith building standing thereupon in favour of Defendant No.1 through its Managing Director, Shri Bhupinder Sahni. The period of this lease was fixed at 20 years expiring on 10.7.1989.
8. That Plaintiff No.2, who acquired all rights, title and interest held by Smt.Lajwanti in the property known as Rockdene Estate, Taradevi, in connection with his service had been on foreign assignment with United Nations Development Programme and it has not been possible for him to properly look after and manage his property. Plaintiff No.2 had been ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 27 getting looked after and managed the property through Care Takers, but with a view to protect the property and fulfil the wishes of late S.Ajit Singh and Smt.Lajwanti, created a trust of the .
property i.e. Plaintiff No.1. Plaintiff No.2, after death of Smt.Lajwanti, contacted the Managing Director of Defendant No.1 and requested him to pay to him the rent of the property leased out to Defendant No.1, but Defendant No.1, instead of making payment of the rent, wanted Plaintiff No.2 to get his title cleared from Court of law and asked Plaintiff No.2 that he will pay the rent of the property only when title of Plaintiff No.2 is cleared from a competent court of law.
of That Plaintiff No.2 got served notice upon Defendant No.1 calling upon Defendant No.1 to pay rent, yet because of his engagement, he could not take any action in the matter. It may further be submitted that Civil Suit No.44 of rt 1983 has been instituted by Plaintiffs 1 & 2 in the Hon'ble High Court of Himachal Pradesh in which Plaintiffs have claimed decree for possession with respect to the rest of the property in occupation of one S.Nanak Singh and S.Parveen Singh, who are claiming to have acquired titled in part of Rockdene Estate, Taradevi, i.e. agricultural portion of the land, other than the land, which is the subject-matter of this suit. The said suit is still pending in the Hon'ble High Court. In Civil Suit No.13 of 1981 has also been instituted by Shri Nanak Singh Gandhi claiming himself to be the President of one Society known as Gurdwara Lal Ajit Sabha, who are claiming title to only a part of the Rockdene Estate other than the property, which is the subject-matter of this Civil Suit, as such, pendency of these Civil Suits has no bearing on the present suit.
9. That Defendant No.1 has been in occupation of the property as a lessee on the basis of deed of sale executed on 11.7.1969 by Smt.Lajwanti. Defendant No.1 has failed to pay the agreed rent i.e. Rs.500/- per month to Plaintiff No.2. Nothing has been paid since the month of August, 1970 till date.
10. That Plaintiff has also come to know that Defendant No.1 has sublet part of the leased property in favour of Defendant No.4 without the written consent of the Plaintiff.::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 28
11. That period of lease has since come to an end on 10.7.1989.
.
12. That the lease granted by Smt.Lajwanti, predecessor of Plaintiffs in favour of Defendant No.1 now stands determined by efflux of time. Defendant No.1 has no right to continue occupying the property. There is also forfeiture of lease due to non-payment of arrears of rent since the month of August, 1970 by Defendant No.1 to Plaintiff No.2 and thereafter to Plaintiff No.1. As the tenancy stands determined by efflux of time and by forfeiture, therefore, there of was no necessity to have served a notice terminating the lease. Moreover, it may be submitted that Defendant No.1 has either sublet or assigned his rights in the lease in a portion of the property in favour of Defendant No.4, rt therefore also, there is breach of an express condition of the lease under which Defendant No.1 was prohibited not to transfer or sublet his rights under the lease without the written consent of the lessor. Defendant No.1 appears to have also created some interest in favour of Defendant No.3. Plaintiffs are not aware of the exact constitution of Defendant No.3, but Plaintiffs have come to know that Defendant No.3 is also a sister concern of Defendant No.1."
39. Careful perusal of contents of the plaint, as referred hereinabove, clearly suggests that plaintiffs specifically claimed that lease granted by Smt.Lajwanti Gujral, predecessor-in-
interest of plaintiff No.2, in favour of appellant-defendant No.1 stands determined by efflux of time and defendant has no right to continue occupying the property. Plaintiffs specifically averred in the plaint that there is forfeiture of lease due to non-payment of arrears of rent since month of August, 1970 by defendant No.1 to plaintiff No.2 and as such tenancy stands determined by efflux of ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 29 time and by forfeiture. Plaintiffs further stated in plaint that defendants have no right to change the nature of property or to .
raise any construction thereupon, especially when the period of lease has expired and plaintiffs have no intention either to extend the period of lease or to have the property occupied by defendants. As such, defendants were requested to handover the possession of the property to the Plaintiffs on the expiry of the of lease.
40. It clearly emerge from the plaint filed by the plaintiffs rt that suit was filed for recovery of possession specifically stating therein that lease granted in favour of defendant No.1 stands determined by efflux of time and plaintiffs have no intention either to extend the period of lease or to have the property occupied by defendants; meaning thereby that after expiry of lease on 10.7.1989, the relationship of tenant and landlord, if any, stood terminated.
41. Though, defendants resisted the claim of the plaintiffs on various grounds, especially title of plaintiff No.2, but it remains fact that at no point of time lease executed by late Smt.Lajwanti Gujral was renewed after 10.7.1989. Since appellants-defendants disputed the claim of plaintiff No.2 of having acquired the status of owner in terms of will executed by late Smt.Lajwanti Gujral, defendants claimed themselves to be ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 30 owners by way of adverse possession. Perusal of written statement filed by the defendants further reveals that defendants-
.
appellants claimed ownership by way of Section 104 of H.P. Tenancy Act also.
42. At this stage, it would be profitable to reproduce relevant paras of written statement filed on behalf of defendants No.1 to 3:-
of "Preliminary Objections:-
1. That the present suit is liable to be stayed under Section 10 of the Code of Civil Procedure for the rt reasons that the matter in issue in the present suit is also directly and substantially in issue in previously instituted two civil suits with respect to the same property between the plaintiffs on the one hand and Nanak Singh Gandhi, Parveen Singh, and Gurudwara Lal Ajit Sabha, Kachi Ghati, Shimla on the other hand in Civil Suit No.44 of 1983 titled Ajit Lajwanti Gujral Trust vs. Nanak Singh Gandhi and others and civil suit No.12 of 1981 titled Gurudweara Lal Ajit Memorial Sabha v/o Gurdwara Singh Sabha etc. In the said suits pending before the Hon'ble High Court of Himachal Pradesh, Shimla, the parties are claiming title to the properties of Shri Ajit Singh.
As such the dispute with respect to the title of the suit property and estate of Shri Ajit Singh original owner is subjudice before the Hon'ble High Court of Himachal Pradesh, Shimla, between the plaintiffs on the one hand and aforesaid persons on the other hand.
Therefore, the present suit is directly hit by Section 10 CPC and is liable to be stayed till judicial finding is given regarding title of the suit property.
Written Statement on Merits:-
1. Contents of para No.1 of the plaint, as stated, are incorrect and, therefore, the same are denied by the replying defendants. To the best of the ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 31 information of the replying defendants late Sardar Ajit Singh s/o Sardar Sobha Singh, husband of Smt.Laj Wanti, was the absolute owner of the property in question. He had .
granted life estate in favour of Smt.Laj Wanti with right of maintenance etc. during her life time from the suit property and as per his Will Shri Ajit Singh had created a trust and after the death of Smt.Laj Wanti the trust was to be dissolved and the entire property owned by him was to be donated to a Charitable Institution. So far as Smt.Lajwanti is concerned, she did not have ownership rights in the suit property. She had only a life estate in the said property and of could create lease for her maintenance. She could not alienate or dispose of the suit property.
2. Contents of para No.2 of the plaint, as stated, rt are absolutely wrong, false and baseless to the very knowledge of the plaintiffs and, therefore, denied by the replying defendants. It is denied that Smt.Lajwanti was the sole owner of the property. It is also denied that after her death the property has allegedly devolved upon the plaintiff No.2. It is also denied that Smt.Lajwanti executed any so-called Will on 2.2.68 or on any other date in favour of plaintiff No.2. To the best of the information of the replying defendants, she did not execute any alleged Will. Moreover, as submitted above Smt.Lajwanti could not make any Will as she did not have any such right to make any disposition or alienation of the suit property by Will. In fact, the legality and validity of so-
called Will of Smt.Lajwanti which is the basis of suit is being hotly contested in the High Court of Himachal Pradesh, Shimla, in Civil Suit No.13 of 81 and Civil Suit No.44 of 83. The present suit is also not competent and maintainable unless and until the plaintiffs obtain probate or letters of administration with respect to alleged Will u/s 214 of the Indian Succession Act or until and unless they establish their title to the suit property in a competent court of law.
3. Contents of para No.3 of the plaint are absolutely wrong, false and baseless to the very knowledge of the plaintiffs and as such the same are emphatically denied and repudiated by the replying defendants. Title to the property of ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 32 late Shri Ajit Singh s/o Shri Sobha Singh is under dispute in the aforesaid two civil suits pending in the Hon'ble High Court of Himachal Pradesh, Shimla. It is denied that the plaintiff .
No2 has been coming in actual possession of any part of the property of late Ajit Singh. In case he is in possession of any property of late Sardar Ajit Singh, the same is unlawful and as a trespasser and usurper.
4. Contents of para No.4 of the plaint, as stated, are wrong, and therefore, the same are denied by the replying defendants. The question of transfer of properties mentioned in para No.4 of of the plaint in favour of so-called plaintiff No.1 trust does not arise at all because the plaintiff No.2 was at no point of time owner of the suit property. The properties have never been transferred to the so-called trust. The existence, rt legality and validity of plaintiff No.1 Trust is also denied and disputed by the replying defendants. There does not exist any such trust as claimed by the plaintiffs. The so-called Trust does not exist in the eyes of law secondly there has been no proper, legal or valid transfer of the suit property in favour of so-called trust. Therefore, the present suit is neither competent nor maintainable on behalf of the present plaintiffs against the replying defendants. There does not exist any legally constituted Trust. Plaintiff No.1 has got nothing to do with the suit property.
8. Contents of para No.8 of the plaint as stated, are absolutely wrong, false and baseless and, therefore, the same are emphatically denied and repudiated by the replying defendants. After the death of Smt.Lajwanti, the plaintiff No.2 did serve a notice on the replying defendants but he was asked by the replying defendants because to the information of the replying defendants Sardar Ajit Singh had made a Will whereby he had created a Trust and life estate in favour of Smt.Lajwanti and after her death had Willed away the suit property to be donated to some charitable institution. Otherwise also, the plaintiffs on the one hand and one Gurudwara Lal Ajit Memorial Sabha through its president Shri Nanak Singh Gandhi and others are involved in litigation in the High Court of Himachal Pradesh, Shimla, in ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 33 Civil Suit No.13 of 1981 and 44 of 83 claiming title to the suit property and others properties of late Sardar Ajit Singh. In the said suits the so- called Will of Smt.Lajwanti on the basis of which .
plaintiff No.2 is claiming title to the suit property is also under dispute. In view of the matter being subjudice before the Hon'ble High Court, the present suit is liable to be stayed, because any finding given in this suit will effect the aforesaid two civil suits pending in the High Court. It may also be submitted that if plaintiff No.2 has succeed in manipulating in getting some entries made in the revenue records in his favour on the basis of so called Will of of Smt.Lajwanti the same are not binding on the replying defendants. Such entries also do not confer any ownership right or title in the plaintiff No.2 because the very basis of such entries, the so-called Will of Smt.Lajwanti, is a rtfictitious bogus and illegal document. plaintiff No.2 could not inherit any property from Smt.Lajwanti nor she was competent to The make any Will qua the suit property. Otherwise also, the genuineness authenticity or validity of the so-called Will is denied and disputed by the replying defendants. The plaintiffs be put to strict proof thereof.
11. Contents of para No.11 of the plaint are admitted in so far as they pertain to matters of record. Rest of the allegations which are contrary to the record are denied. However, it is further submitted that after the death of Smt.Lajwanti, the replying defendants stopped making payment of rent in the absence of any lawful claimant. They started treating themselves as owners of the suit property. They have acquired ownership rights in the suit property by way of adverse possession as they have openly been holding themselves out as owners of the said property after August 1970. In any case, it is further submitted in the alternative, the ownership rights qua the said property have vested in the replying defendants by virtue of the provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972. By operation of law, the replying defendants have become owners of the suit property as they were tenants in the suit property on the date of coming into operation of the said Act.
Ownership rights have vested in the replying ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 34 defendants as per provisions of Section 104 of the said Act.
15. Contents of para No.15 of the plaint are .
absolutely wrong, false and baseless and, therefore, denied by the replying defendants.
The plaintiffs have no locus standi to claim possession. Therefore, the question of payment of rent or use and occupation charges does not arise at all. The defendants have become owners of the suit property by adverse possession or by operation of law as submitted above."
of
43. Aforesaid stand taken by the defendants itself suggests that defendants were aware of the fact that after rt 10.7.1989, they were ceased to be tenants over the suit property and as such claimed ownership by way of adverse possession or H.P. Tenancy Act. Since suit for possession was filed after expiry of lease i.e. 10.7.1989 by the plaintiffs terming defendants in unauthorized occupation in leased premises, defendants challenged the title of the plaintiffs in garb of Civil Suits No.38- S/1 of 95/81, titled: Shri Gurudwara Laj Ajit Memorial Sabha through its President Shri Nanak Singh vs. Shri Gurudwara Singh Sabha, Cart Road, Motor Stand Shimla & Another and Civil Suit No.6-S/1 of 96/83 titled: Ajit Lajwanti Gujral Trust & Others vs. Shri Nanak Singh Gandhi & others, allegedly filed by Nanak Singh and Parveen Singh against the present plaintiffs, wherein they claimed themselves to be owners in possession of the suit property by way of adverse possession.
::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 3544. Perusal of averments contained in the aforesaid paras of the written statement clearly suggests that after .
10.7.1989, i.e. after expiry of lease, defendants claimed themselves to be the owners of the suit property in question. In para-11, as referred hereinabove, defendants specifically stated that after the death of Smt.Lajwanti replying defendants themselves stopped making payment of rent and they started of treating themselves to be owners of the suit property. Defendants further stated that they have acquired ownership right in the suit rt property by way of adverse possession as they have openly been holding themselves out as owners of the said property after August, 1970. Rather, defendants raised the plea of having become owners of the suit property by virtue of provisions of Tenancy Act, as they were tenant in the suit property on the date of coming into operation of the said Act. Defendants further claimed that ownership rights have vested upon them as per provisions of Section 104 of the H.P. Tenancy Act.
45. After bestowing my thoughtful consideration on the aforesaid factual matrix as well as pleadings (referred hereinabove) made by the parties, I am of the view that after expiry of lease i.e. 10.7.1989, defendants cannot claim themselves to be tenant over the suit property because admittedly after 10.7.1989, at no point of time, lease was renewed, rather ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 36 defendants themselves challenged the status of plaintiff No.2, who admittedly acquired the status of owner in terms of will .
executed by late Smt.Lajwanti Gujral.
46. Though perusal of plaint itself suggests that plaintiffs filed a suit for recovery of possession against defendants on three grounds; (i) that lease granted by predecessor-in-interest of the plaintiff No.2 in favour of defendant No.1 stands of determined by efflux of time; (ii) there is forfeiture of lease due to non-payment of arrears of rent since month of August, 1970 by rt defendant No.1 to plaintiff No.2 and (iii) period of lease has expired and plaintiffs have no intention either to extend the period of lease or to have the property occupied by defendants.
But, apart from above, defendants themselves in their written statement claimed themselves to be the owners of the property by way of adverse possession. In written statement filed by defendants, they specifically claimed that after death of Smt.Lajwanti, they have become owners of the property by way of adverse possession or in the alternative by way of conferment of proprietary rights under H.P. Tenancy Act; meaning thereby that after 10.7.1989 there was no relationship, whatsoever, of landlord and tenant between plaintiffs and defendants and both the parties admitted the aforesaid fact in their respective pleadings filed before the learned trial Court below. It stands proved on ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 37 record that issue with regard to execution of will by late Smt.Lajwanti Gujral as well as acquiring of status of owner of the .
property pursuant to will by Shri Rajender Singh, stands decided by passing of judgment Ex.PW-1/S which has got approval up till Hon'ble Apex Court. Hence, in view of above, defendants cannot be allowed to raise plea that since they were tenants of Lajwanti Gujral, they can be evicted only in accordance with law after of issuance of notification dated 2.8.2006. Moreover, learned District Judge vide impugned judgment categorically held rt defendants in unauthorized possession after 10.7.1989 and interestingly in the present appeal, there is no challenge, whatsoever, to the aforesaid findings of learned first appellate Court holding defendants in unauthorized possession after 10.7.1989. Rather, careful perusal of grounds of appeal clearly suggests that till the filing of appeal, appellants-defendants had been claiming themselves to be in adverse possession of the suit property. At this stage, it would be appropriate to reproduce paras 4 and 5 of the grounds of appeal:-
"4. That the plaintiffs having led no evidence to prove that it was a legally and validly constituted Trust and even having not proved the so called deed of Trust, the First Appellate Court ought to have dismissed the appeal. The respondents had also not even proved the so called Will of the deceased on the basis of which they claimed title to the suit property. As such, the First Appellate Court ought to have dismissed the suit and Appeal as well.::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 38
The learned First Appellate Court has wrongly held the Plaintiffs, who possess no right or title or interest in the suit property, as full owners thereof without .
there being an iota of evidence in this behalf.
5. That the learned First Appellate Court failed to take note of the fact that the appellants had spent substantial amount running into lakhs in improving and developing the property. The learned First Appellate Court also failed to give any finding on the point that the Appellants of were in adverse possession of the suit property and that the plaintiffs were complete strangers to the same having no right, title or interest in the same. They had no locus standi to file the suit and rt had no right, title or interest in the suit property and the learned First Appellate Court has set aside the judgment of the trial Court without any reasons or justification."
47. Careful perusal of grounds of appeal clearly suggests that defendants themselves denied the relationship of tenant and landlord, if any, between them and plaintiffs because in the present appeal, defendants have not acknowledged the title of plaintiff No.2. Since appellants themselves have not admitted the relationship of landlord and tenant in the written statement as well as in the present appeal, they are estopped to contend at this stage that suit has become infructuous and the provisions of H.P. Rent Act are applicable. Bare perusal of written statement, as has been discussed above, clearly suggests that at no point of time defendants acknowledged the title of plaintiff No.2, rather they ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 39 claimed themselves to be the owners of the suit property by way of adverse possession. As of today question of title in favour of .
plaintiffs has attained finality up to Hon'ble Supreme Court and Plaintiff-Trust has been held to be owner of the property in question. It may be noticed that factum of passing judgment Ex.PW-1/S and its having attained finality till Hon'ble Apex Court has not been disputed by the learned counsel for the parties of present before this Court in this case.
48. In the aforesaid circumstances, by no stretch of rt imagination, appellants can be held to be tenants, if any, in terms of lease executed in the year 1969, which admittedly expired on 10.7.1989. Possession of appellants after 10.7.1989 is definitely unauthorized and in no terms they can be termed as tenants in any capacity so as to invoke the provisions of Rent Act. No doubt, appeal filed by the parties is continuation of the original proceedings, but in the present case pendency of appeal may not be the ground available to the appellants to claim the status of tenant because admittedly as has been discussed above after 10.7.1989 appellants-defendants at best can be termed as trespassers but definitely not tenants. Hence continuation of present appeal arising out of Civil Suit No.411/1 of 95/90, which is subject matter of this appeal, may not be of any consequence as far as inclusion of area of suit property in ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 40 Municipal Corporation, Shimla, during the pendency of present appeal in terms of notification dated 2.8.2006, is concerned.
.
49. In view of above, this Court sees no force in the prayer made by the appellant in CMP No.9199 of 2015, whereby permission has been sought to place on record copy of notification dated 2.8.2006. Accordingly, the same is dismissed.
50. Similarly, in view of detailed discussion made of hereinabove, prayer made by the appellant in CMP No.3363 of 2016 for framing additional issue with regard to effect, if any, of rt the inclusion of the suit property in urban area of the Municipal Corporation, Shimla, cannot be allowed. However, perusal of substantial question No.2 framed on 20.9.2005 i.e. "Whether a suit can be maintained against a Trust in the absence of trustee?", clearly suggests that same has not been framed properly, keeping in view the facts of the case. Hence, this application is partly allowed.
51. Admittedly, in the present case, suit has been filed by Trust against the defendants, whereas, perusal of substantial question of law No.2 suggests that suit has been filed against Trust which is factually incorrect. In view of above, prayer of applicant for reframing issue No.2 has considerable force, accordingly, same is reframed as under:-
"2. Whether the suit or appeal in the absence of all Trustees of alleged appellant Trust was competent and if no to what effect?"::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 41
52. Since this Court has come to conclusion while deciding application under Order 42 Rule 27 CPC, as has been referred hereinabove, preferred on behalf of applicants-appellants .
that appellants cannot be held to be tenants, if any, in terms of lease executed in the year 1969, which admittedly expired on 10.7.1989, there is no question, if any, of applicability of H.P. Rent Act in terms of notification dated 2.8.2006 issued by State of Himachal Pradesh including therein area of suit property in MC, Shimla. Accordingly, aforesaid judgments having been relied of upon on behalf of the applicants-appellants in this regard may not be of any help in view of aforesaid findings returned by the Court and as such same are not being discussed.
rt
53. Now this Court would be adverting to the merits of the case on the basis of following substantial questions of law No.1 and 3, already framed on 20.9.2005, and newly re-framed substantial question No.2:
"1. Whether the findings of the courts below are result of misreading and misinterpretation of law?
2. Whether the suit or appeal in the absence of all Trustees of alleged appellant Trust was competent and if no to what effect?"
3. Whether a judgment, which is not inter-se between the parties, can form basis of a decree on the ground of resjudicata?"
54. Keeping in view the controversy at hand, this Court intends to take substantial question of law No.3 at first instance.
Question No.3:
55. Perusal of impugned judgment clearly suggests that learned first appellate Court, while allowing the appeal of the plaintiffs, placed reliance upon judgment and decree dated 16.1.1998, Ex.PW-1/S. Learned first appellate Court was of the view that burden of proof qua title can be discharged by leading ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 42 evidence raising high degree of probability and in this case, whatever was possible for the plaintiffs, that was tendered in .
evidence and there is no reliable evidence led by the defendants to prove the absence of title with the plaintiffs. Learned first appellate Court further concluded that presumption of truth attached to the Jamabandi has not been rebutted, rather, documents placed on record by the plaintiffs do prove existence of of title; firstly with Shri Rajinder Singh and subsequently, on execution of trust deed, with plaintiff No.1. Accordingly, learned rt first appellate Court while placing reliance upon judgment Ex.PW-
1/S, tendered in evidence by plaintiff before trial Court, came to the conclusion that plaintiff No.1 is entitled to possession of the suit property on the strength of title which stands duly proved on record after 10.7.1989 when the possession of the appellants-
defendants became unauthorized.
56. In the present case, as emerged from the record, plaintiffs filed a suit for recovery of possession in the Court of learned Sub Judge Ist Class claiming themselves to be the owners of the property, descriptions whereof have been given above, specifically stating therein that Smt.Lajwanti Gujral wife of Sardar Ajit Singh, erstwhile owner of the suit property, had created lease for 20 years in respect of the suit property in favour of defendants. Plaintiffs further claimed that in the year 1970 ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 43 Smt.Lajwanti Gujral died, but during her life time she made a will bequeathing her entire property including suit property in favour .
of plaintiff No.2. Since late Sardar Ajit Singh wanted to create some charitable Trust in respect of part of his property, plaintiff No.2, after becoming the owner of the entire property of Lajwanti Gujral on the basis of will, solely with a view to honour their wish, created a Trust in the name of Ajit Lajwanti Gujral Trust, Kachi of Ghati, Taradevi, Shimla. Since plaintiff No.2 entered into the steps of late Smt.Lajwanti, he requested defendant No.1 who was rt lessee under Lajwanti Gujral to attorn in his favour, but defendant No.1 instead of accepting the request of plaintiff No.2 asked him to get his title clear from the Court. Defendants by way of written statement refuted the claim of plaintiff No.2 having acquired the title of the property on the strength of will executed by late Smt.Lajwanti Gujral. Defendants specifically stated in the written statement that the suit is liable to be stayed under Section 10 CPC for the reasons that matter in issue in the present suit is directly and substantially is issue in previously instituted two civil suits with respect to the same property between the plaintiffs on one hand and Nanak Singh Gandhi, Parveen Singh and Gurudwara Lal Ajit Memorial Sabha, Kachi Ghati, Shimla on the other hand in Civil Suits No.44 of 1983, titled: Ajit Lajwanti Gujral Trust and Others vs. Nanak Singh Gandhi and Others and ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 44 Civil Suit No.12 of 1981, titled: Gurudweara Lal Ajit Memorial Sabha vs. Gurdwara Singh Sabha etc. Defendants further stated .
that in the aforesaid pending civil suits before this Court, the parties are claiming title to the properties of Shri Ajit Singh and as such dispute with respect to the title of the suit property and estate of Shri Ajit Singh, original owner, is sub-judice before this Court between the plaintiffs on one hand and aforesaid persons of on the other hand and as such the suit is directly hit by Section 10 CPC and is liable to be stayed till judicial finding is given rt regarding title of the suit property.
57. Careful perusal of the written statement, relevant paras of which have already been reproduced above, also suggests that appellants-defendants also challenged the authority of late Smt.Lajwanti Gujral to execute a will of the suit property including suit property in favour of plaintiff No.2. Defendants by way of written statement also stated that there does not exist any Trust as claimed by plaintiffs and there has been no proper legal or valid transfer of the suit property in favour of so-called Trust and as such suit being neither competent nor maintainable should be dismissed. Defendants specifically in para-8 of the written statement stated that since litigation in this Court i.e. Civil Suit No.13 of 1981 and Civil Suit No.44 of 1983 claiming the title of the suit property and other properties of late Sardar Ajit ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 45 Singh are pending, wherein question with regard to title of the suit property and will of Smt.Lajwanti Gujral in favour of plaintiff .
No.2 is under challenge, is pending, recording of name of plaintiff No.2 in revenue records on the basis of will of Smt.Lajwanti Gujral is not binding upon them. Defendants further stated that as there was no lawful and rightful claimant to the estate of Sardar Ajit Singh, after the death of Smt.Lajwanti, they had no of option but to stop payment of rent. But, most interestingly in paras 11 and 15 of the written statement, as have been rt reproduced above, defendants totally denied the status of landlord being clamed by plaintiffs by stating that after death of Smt.Lajwanti they have stopped making payment of rent in the absence of any lawful claimant and they started treating themselves to be owners of the suit property, since they have acquired ownership rights of the suit property by way of adverse possession. Defendants specifically stated that they have openly been holding themselves to be the owners of the said property after August, 1970. Apart from above, defendants-appellants claimed that they have become owners of the property by virtue of provisions of Tenancy Act by operation of law as they were tenants in the suit property on the date of coming into operation of the said Act. Since defendants while refuting the claim of the plaintiffs put forth in plaint specifically referred two civil suits, as ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 46 mentioned above, wherein admittedly present plaintiffs were parties either in capacity of plaintiffs or in capacity of defendants, .
plaintiffs with a view to prove that late Smt.Lajwanti Gujral had executed will bequeathing her entire property including suit property in favour of plaintiff No.2 and further to prove that plaintiff No.2 after acquiring status of owner created Trust i.e. plaintiff No.1 tendered judgment passed by Additional District of Judge, Shimla in the suits referred hereinabove as Ex.PW-1/S. At this stage, it may be noticed that initially aforesaid suits were rt filed before this Court, but lateron for want of pecuniary jurisdiction the same were transferred to the District Judge.
Perusal of judgment Ex.PW-1/S clearly suggests that all the issues i.e. (i) with regard to execution of will by late Smt.Lajwanti Gujral in favour of plaintiff No.2 Rajinder Singh Gujral; (ii) creation of Trust by plaintiff No.2 after acquiring the status of owner on the strength of will executed by late Smt.Lajwanti Gujral, were duly approved in favour of plaintiff. Since this Court had an occasion to peruse judgment dated 16.1.1998, which was duly exhibited by trial Court as Ex.PW-1/S, it can be safely stated that all the issues as referred above were decided in favour of the plaintiffs. Learned Court of Additional District Judge, Shimla, vide judgment dated 16th January, 1998 concluded that Lajwanti Gujral had executed valid will bequeathing her entire property ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 47 including suit property in favour of plaintiff No.2, who rightly acquired the status of owner on the strength of said will. While .
deciding the civil suit, referred hereinabove, learned Additional District Judge specifically stated that Rajinder Singh Gujral had all authority to create Trust i.e. Shri Gurdwara Lal Ajit Sabha Trust, Kachi Ghati, Taradevi, Shimla. Plaintiffs with an intention to prove that they have acquired the status of owner of the suit of property on the strength of will executed by late Smt.Lajwanti Gujral as well as thereafter creation of Trust by plaintiff No.2 rt placed on record the aforesaid judgment Ex.PW-1/S. But perusal of judgment passed by the trial Court in the present case suggests that the same was not taken into cognizance by Court below on the ground that the plaintiffs have not shown as to under which provisions of law, the judgment is relevant in this case and can be relied upon by the plaintiffs to prove that the plaintiff No.1 is a Trust and juristic person. Learned trial Court also concluded that the suit in which the judgment was passed, it was alleged by the plaintiffs in the plaint that these suits had no bearing on the present suit. Accordingly, learned trial Court concluded that this judgment is thus, not shown to be relevant under Sections 10, 11 CPC or Sections 41, 42, 43 or Section 116 of the Evidence Act and as such judgment being a judgment-in-
personam cannot prove the title of plaintiff No.1, whereas, ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 48 learned first appellate Court while allowing the appeal placed reliance upon the judgment passed by Hon'ble Apex Court in .
Srinivas vs. Narayanan, AIR 1954 SC 379, wherein it has been held:-
"11. ... ... ... ...We are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties and an issue was actually framed on that question. Moreover, there was a of prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgments are admissible under Section 13 of the Evidence Act as assertion of Rukmani Bai that the properties now in dispute belonged to the joint rt family."
58. Reliance has also been placed upon the judgment of Hon'ble Apex Court in Tirumala Tirupati Devathanams vs. K.M. Krishnaiah, AIR 1998 SC 1132, wherein the Court has held as under:-
"9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the privy Council. In Srinivas Krishna Rao Kango vs. Narayandevji Kango, AIR 1954 SC 379, speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das vs. Sant Ram, AIR 1954 SC 606 held that a previous judgment no inter partes, was admissible in evidence under section 13 of the Evidence Act as a `transaction' in which a right to property was `asserted' and ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 49 `recognised'. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni vs. Brajmohini, (1992) ILR 29 Cal. 190 (198) (PC) that a previous judgment, not inter partes was .
admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni vs. Brajmohini and Ram Ranjan Chakerbati vs. Ram Narain Singh [1895 ILR 22 Cal 533 (PC)] by sir John Woodroffe in his commentary on the Evidence Act (1931, P 181) was not accepted by Lord Blanesburgh in collector of Gorakhpur vs. Ram Sunder [AIR 1934 PC 157 (61 IA 286)]."
of
59. Appellants-defendants, by way of instant petition, rt laid challenge to the judgment passed by learned Additional District Judge on the ground that Ex.PW-1/S is not permissible or relevant unless it fulfill the mandatory requirement of Sections 42 and 43 of the Evidence Act. Mr.Sood, learned Senior Counsel appearing for the appellants-defendants, vehemently argued that judgment which is not inter parte could not be made admissible in evidence except for limited purpose for bringing them to array as parties in the earlier case and such decree passed in such case with respect to the property. As per Mr.Sood, document Ex.PW-
1/S, which is judgment and decree dated 16.1.1998 passed by Additional District Judge in Civil Suits as referred above, was not inter parte and as such specifically in terms of Evidence Act, it was neither admissible in evidence in the present case nor it operated as res judicata between the parties and as such he ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 50 prayed for setting aside and quashing of the impugned judgment passed by learned Court below.
.
60. On the other hand, Mr.Bhupender Gupta, learned Senior Counsel for the plaintiffs, vehemently argued that there is no illegality and infirmity in the judgment passed by learned first appellate Court below where it has placed reliance upon judgment Ex.PW-1/S. With a view to substantiate the aforesaid arguments, of Mr.Gupta invited the attention of this Court to the written statement filed by the defendants, wherein they specifically rt prayed for stay of the suit on the ground of pendency of two Civil Suits No.38-S/1 of 95/81, titled: Shri Gurudwara Lal Ajit Memorial Sabha through Shri Nanak Singh vs. Shri Gurudwara Singh Sabha, Cart Road, Shimla and Civil Suit No.6-S/1 of 96/83 titled: Ajit Lajwanti Gujral Trust vs. Shri Nanak Singh Gandhi specifically stating that since there was a dispute with regard to title of the suit property, same may be stayed till disposal of the aforesaid suits. As per Mr.Gupta, since by way of aforesaid judgment Ex.PW-1/S issue with regard to title, execution of will by late Smt.Lajwanti and creation of Trust by plaintiff No.2 stood determined, tendering of aforesaid judgment in evidence had great importance and it could not be ignored by the trial Court below while deciding the suit filed by the plaintiffs. During arguments having been made by him, he specifically referred to ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 51 Section 43 of the Indian Evidence Act to state that judgment, order, or decree, which is a "fact in issue", or is relevant under .
some other provisions of this Act can be tendered in evidence in terms of Section 43.
61. As per Mr.Gupta, controversy decided vide judgment Ex.PW-1/S was/is a "fact in issue" in the present suit and as such same was ought to have been taken into consideration by of the trial Court below and as such there is no illegality and infirmity in the judgment passed by learned first Appellate Court, rt where he while allowing the appeal specifically took cognizance of Ex.PW-1/S.
62. In the aforesaid background, this Court solely with a view to test the correctness and genuineness of the arguments having been made on behalf of both the parties deems it fit to refer to the provisions of Sections 40 to 43 of the Indian Evidence Act, 1872, which are reproduced here-in-below:-
"40. Previous judgments relevant to bar a second suit or trial.--The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.
41. Relevancy of certain judgments in probate, etc., jurisdiction.--A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but ::: Downloaded on - 15/04/2017 21:14:42 :::HCHP 52 absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
.
Such judgment, order or decree is conclusive proof--
that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, [order or decree] declares it to have accrued to that person;
of that any legal character which it takes away from any such person ceased at the time from which such judgment, [order or decree] declared that it had ceased or should cease;
rt and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, [order or decree] declares that it had been or should be his property.
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41.- Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.--Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act."
63. Perusal of Section 40 suggests that existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.
::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 5364. But, Section 41 provides that judgment, order or decree of a competent Court, in the exercise of probate, .
matrimonial admiralty or insolvency jurisdiction is relevant and as such judgment, order or decree is conclusive proof, whereas Section 42 specifically provides that judgments, orders or decrees other than those mentioned in section 41 are relevant, if they relate to matters of a public nature relevant to the enquiry; but of such judgments, orders or decrees are not conclusive proof of that which they state.
65. rt Close scrutiny of aforesaid Sections 40, 41 and 42 clearly suggests that judgment, order or decree of a competent Court, in exercise of probate, matrimonial admiralty or insolvency jurisdiction has relevance in other cases and can be a conclusive proof while determining the controversy/case in other pending cases.
66. Section 42 clearly bars placing reliance on judgments, orders or decrees other than as mentioned in Section
41. But Section 43 specifically provides that judgments, orders or decrees other than mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a "fact in issue", or is "relevant" under some other provisions of this Act; meaning thereby that the judgments, orders or decrees other than as mentioned in Sections 40, 41, and 42 can be placed ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 54 reliance in pending proceedings of other suit, if the existence of such judgments, orders or decrees is a "fact in issue" or "relevant"
.
under some other provisions of this Act.
67. Now, it would be profitable to refer to the meaning of expression "Facts in Issue", as prescribed in Section 3 of Indian Evidence Act, which is reproduced here-in-below:
"The expression "facts in issue" means and includes -
of any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceedings, necessarily follows:
rt Explanation.-Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue."
68. Careful perusal of expression "Facts in Issue" as prescribed in Section 3 of the Indian Evidence Act suggests that "facts in issue" means and includes any fact from which, either by itself or in connection with other facts, the existence, non-
existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
69. If, in the present case, facts are analyzed in light of aforesaid legal position, it clearly emerge from reading of Section 43 of the Act that judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42 can also be placed reliance, if the existence of such judgments, orders or decrees is a "fact in ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 55 issue" or is relevant under other provisions of this Act. Similarly, perusal of Section 3 wherein facts in issue has been defined .
suggests that any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability asserted or denied in any suit or proceedings necessarily follows. Explanation of "Facts in issue" further provides that whenever, under the provisions of of the law for the time being in force relating to Civil Procedure, any Court records an "issue of fact", the fact to be asserted or denied rt in the answer to such issue, is a "fact in issue".
70. Plain reading of aforesaid definition of "Facts in issue"
suggests that findings returned by the Court with regard to existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceedings, would be termed as "Facts in issue".
71. In the present case, as has been discussed in detail, plaintiffs sought recovery of possession of the suit property on the expiry of lease deed dated 10.7.1989. Whereas defendants have denied the claim of the plaintiffs by stating that since issue with regard to the title of the suit property is pending before Court by way of civil suits, referred hereinabove, proceedings initiated by the plaintiffs or recovery of possession may be stayed.
Defendants also disputed the status of the plaintiffs by claiming ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 56 themselves to be the owners of the suit property in terms of adverse possession or in the alternative by way of proprietary .
rights. Since defendants specifically objected the suit on the ground of pendency of aforesaid suits, wherein issue with regard to execution of will by late Smt.Lajwanti Gujral, who had leased out the property in favour of defendants, acquiring the title of owner by plaintiff No.2, on the strength of will executed by of Smt.Lajwanti Gujral and creation of Trust by plaintiff No.2 was pending before Court of learned Additional District Judge, who rt vide judgment Ex.PW-1/S held the plaintiff No.2 to be the owner of the suit on the strength of validly executed will, by late Smt.Lajwanti Gujral, learned trial Court ought to have taken note of Ex.PW-1/S which was duly tendered by the plaintiff in the evidence in the suit filed for recovery of possession. Since controversy decided vide judgment Ex.PW-1/S had direct bearing on the present suit filed by the plaintiffs, plaintiffs rightly placed reliance on the same by tendering the same as Ex.PW-1/S. Admittedly, vide Ex.PW-1/S learned Additional District Judge, decided the issue of title, execution of will and creation of Trust, which had direct bearing on the present, suit, wherein defendants themselves refuted the claim of plaintiffs on the aforesaid ground which were admittedly decided vide judgment Ex.PW-1/S in favour of plaintiffs. Moreover, perusal of aforesaid civil suits, ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 57 wherein judgment Ex.PW-1/S was passed, present plaintiffs were the parties either in the shape of plaintiffs or in defendants.
.
Section 43 of the Evidence Act specifically provides that judgment other than those mentioned in Sections 40, 41, and 42 are irrelevant, unless the existence of such judgment, order or decree, is a "fact in issue", or is relevant under some other provisions of this Act. In the instant case, as has clearly emerged from the of pleadings available on record, findings returned by the learned Additional District Judge vide Ex.PW-1/S was "fact in issue"
rt whereby relevant issues which had direct bearing upon the suit were decided by the learned Additional District Judge. Section 3 wherein "fact in issue" has been defined specifically provides that "fact in issue" means and includes any fact from which either by itself or in connection with other facts, the existence, non-
existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding. The explanation to aforesaid definition specifically provides that the findings of Court while ascertaining/examining the issue on fact would be termed as "fact in issue".
72. In view of the aforesaid discussion, especially where defendants sought stay/dismissal of suit filed by plaintiff on the ground of pendency of suits, wherein learned Additional District Judge, passed judgment Ex.PW-1/S, this Court is of the view that ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 58 document Ex.PW-1/S i.e. judgment passed by the learned Additional District Judge had great relevance in the present suit .
and same could be placed reliance in terms of Section 43 of the Indian Evidence Act being a "fact in issue" and as such this Court sees no illegality and infirmity in the findings returned by the learned appellate Court, whereby while allowing the appeal preferred on behalf of the plaintiffs, it placed reliance upon of document Ex.PW-1/S. Section 13 of the Indian Evidence Act, 1872 is reproduced hereinbelow:
rt"13. Facts relevant when right or custom is in question.--Where the question is as to the existence of any right or custom, the following facts are relevant:--
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized, or exercised or in which its exercise was disputed, asserted or departed from."
73. Apart from above, perusal of judgment relied upon by the learned first appellate Court while allowing the appeal clearly suggests that the judgment not inter parte is also admissible in evidence under Section 13 of the Evidence Act, as evidence on assertion of a right to property in dispute. In the case, referred above, contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 59 evidence was expressly rejected. Hon'ble Apex Court held that previous judgment, which is not inter partes, was admissible in .
evidence under Section 13 of the Evidence Act. Hon'ble Apex Court specifically dealing with the suit for recovery of possession in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and another, AIR 2003 SC 4548 held that in the suit for recovery of possession based on of title it is upon to the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from rt his possession over the suit property and for the possession to be restored with him.
74. In the present case also Ex.PW-1/S was the most effective and valid document with the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and as such this Court is of the view that learned trial Court committed illegality by not placing reliance upon Ex.PW-1/S which could be tendered in evidence in terms of Section 43 being "fact in issue".
75. At this stage Mr.Ajay Kumar Sood, learned Senior Counsel, representing the appellants-defendants, placed reliance upon the following judgments passed by the Hon'ble Apex Court to substantiate his argument that no reliance, if any, could be ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 60 placed upon Ex.PW-1/S in terms of Sections 40 to 43 of Evidence Act.
.
76. In S.P.E. Madras vs. K.V. Sundaravelu, AIR 1978 SC 1017, the Hon'ble Apex Court has held:
"5. The High Court has in fact taken its earlier judgment in Sessions Case No. 34 of 1968, which ended in acquittal, into consideration in the present case, and has reached the conclusion that the present appeal is "not likely to stand".
of Here again, the High Court lost sight of the provisions of sections 40 to 44 of the Evidence Act which state the circumstances in which previous judgments are relevant in civil and criminal cases. Thus section 40 states the rtcircumstances in which a previous judgment may be relevant to bar a second suit or trial, and has no application to the present case for the obvious reason that no judgment, order or decree is said to be in existence in this case which could in law be said to prevent the Sessions Court from holding the trial. Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable. Section 42 deals with the relevancy and effect of judgments, orders or decrees other than those mentioned in section 41 in so far as they relate to matters of a public nature, and is again inapplicable to the present case. Then comes section 43 which clearly states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Act. As it has not been shown that the judgment in Sessions Case No. 34 of 1968 could be said to be relevant under the other provisions of the Evidence Act, it was clearly "irrelevant" and could not have been taken into consideration by the High Court for the purpose of making the impugned order. The remaining section 44 deals with fraud or collusion in obtaining a judgment, or in competency of a court which delivered it, and can possibly have no application in the present case. It would thus appear that the High Court ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 61 not only lost sight of the above facts, but also ignored the provisions of section 215 of the Code of Criminal Procedure and thus committed an error of law in basing the impugned judgment on .
a judgment which was clearly irrelevant."
(p.1019)
77. There cannot be any quarrel with regard to the law as laid down by their Lordships in aforesaid case wherein it has been reiterated that the High Court lost sight of the provisions of of Sections 40 to 44 of the Evidence Act which state the circumstances in which previous judgments are relevant in civil rt and criminal cases. Admittedly Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable. Section 42 deals with the relevancy and effect of judgments, orders or decrees other than those mentioned in Section 41 in so far as those relate to matters of a public nature. Similarly, Section 43 provides that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a "fact in issue", or is relevant under some other provisions of the Act.
78. In the present case, aforesaid judgment cannot be made applicable, especially in view of the distinction carved in Section 43 of the India Evidence Act, wherein it has been specifically provided that judgments, orders or decrees other than those mentioned in Sections 40 to 44 are irrelevant unless the ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 62 existence of such judgment, order or decree is a "fact in issue". It has been discussed in detail in the present case that judgment .
Ex.PW-1/S has direct bearing on the present suit filed by the plaintiffs and issue decided in the same was "fact in issue" in the present suit and same ought to have been placed reliance by the trial Court while dealing with the suit filed by the plaintiffs.
79. In State of Bihar and others vs. Sri Radha of Krishna Singh and others, AIR 1983 SC 684, Hon'ble Supreme Court has held as under:-
rt "122. It is also well settled that a judgment in rem like judgments passed in probate, insolvency, matrimonial or guardianship or other similar proceedings, is admissible in all cases whether such judgments are inter partes or not. In the instant case, however, all the documents consisting of judgments filed are not judgments in rem and therefore, the question of their admissibility on that basis does not arise. As mentioned earlier, the judgments filed as Exhibits in the instant case, are judgments in personam and, therefore, they do not fulfill the conditions mentioned in S.41 of the Evidence Act."
(p.710)
80. This Court, after perusing the aforesaid judgment relied upon by the appellants, sees no reason to differ with the proposition of law laid down and deems it fit to refer to the other relevant paras of this judgment, wherein Hon'ble Apex Court while dealing with the aforesaid Section of Indian Evidence Act carved out principles to be followed while applying aforesaid Sections:
::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 63"133. The cumulative effect of the decisions cited above on this point clearly is that under the Evidence Act a judgment which is not inter parties is inadmissible in evidence except for the .
limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject matter of the suit. In these circumstances, therefore, it is not open to the plaintiffs respondents to derive any support from some of the judgments which they have filed in order to support their title and relationship in which neither the plaintiffs nor the defendants were parties. Indeed, if the judgments are used for the limited purpose of mentioned above, they do not take us anywhere so as to prove the plaintiffs case.
142. Relying on an earlier case of the Privy Council this Court further observed thus:
rt "In Kalka Prasad v. Mathura Prasad (1908-35 Ind App 1666) a dispute arose in 1896 on the death of one Parbati. In 1898 in a suit brought by one Sheo Sahai a pedigree was filed. After this, the suit from which the appeal went up to the Privy Council was instituted in 1901. It was held there that the pedigree filed in 1898 was not admissible having been made post litem motam."
143. Thus, summarising the ratio of the authorities mentioned above, the position that emerges and the principles that are deducible from the aforesaid decisions are as follows:-
(1) A judgment in rem e. g., judgments or orders passed in admiralty, probate proceedings, etc., would always be admissible irrespective of whether they are inter parties or not, (2) judgments in personam not inter parties are not at all admissible in evidence except for the three purposes mentioned above.
(3) on a parity of aforesaid reasoning, the recitals in a judgment like findings given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly inadmissible in a case where neither the plaintiff nor the defendant were parties.::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 64
(4) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little.
.
(5) Statements, declarations or depositions, etc., would not be admissible if they are post litem motam."
(pp.712 & 714)
81. Close scrutiny of aforesaid paras of the judgment of clearly suggests that judgments in personam not inter partes are not at all admissible in evidence except for three purposes:-
(a) rt Firstly, to ascertain what the parties were and what was the decree passed and the properties which were subject matter of the suit, meaning thereby that there is no complete bar in placing reliance on the judgment which was not inter partes, rather reliance can be placed on the judgment while tendering the same is evidence to prove what the parties were and what was the decree passed and the properties which were the subject matter of the suit. In the present case, admittedly, one of the party i.e. plaintiff was party to the judgment passed in Ex.PW-1/S.
(b) Secondly, by placing reliance upon aforesaid judgment Ex.PW-1/S, plaintiffs intended to prove that who were parties before the Court in that suit; and
(c) Thirdly, what was the decree passed and the property which was subject matter of the suit. In the present case, admittedly, for these three reasons, as have been culled out in aforesaid judgment, judgment passed ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 65 vide Ex.PW-1/S was admissible in evidence, especially when defendants themselves sought stay/dismissal of the suit on the ground of pendency of suit, referred .
hereinabove, wherein judgment Ex.PW-1/S was passed. Defendants, by way of written statement specifically challenged the title of the plaintiffs by claiming themselves to be the owners of the property.
82. Apart from above, defendants specifically stated that of since suit with regard to title is pending before the Court, instant suit filed by the plaintiffs for recovery of possession may be stayed rt or dismissed in terms of Section 10 of CPC.
83. In the aforesaid background, judgment Ex.PW-1/S could be best evidence available with the plaintiff to demonstrate that he has acquired the title of the property by way of execution of valid will by Smt.Lajwanti Gujral and as such it can be safely concluded that judgment Ex.PW-1/S is admissible in terms of Section 43 of the Indian Evidence Act being fact in issue.
84. The Hon'ble Apex Court in Rajan Rai vs. State of Bihar, (2006)1 SCC 191, has held as under:-
"8. Coming to the first submission very strenuously canvassed by Shri Mishra, it would be necessary to refer to the provisions of Sections 40 to 44 of the Indian Evidence Act, 1872 (in short `the Evidence Act) which are under the heading "Judgments of Courts of justice when relevant"', and in the aforesaid Sections the circumstances under which previous judgments are relevant in civil and criminal cases have been enumerated. Section 40 states the circumstances in which a ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 66 previous judgment may be relevant to bar a second suit or trial and has no application to the present case for the obvious reasons that no judgment order or decree is said to be in .
existence in this case which could in law be said to prevent the Sessions Court from holding the trial. Section 41 deals with the relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable. Section 42 refers to the relevancy and effect of judgments, orders or decrees other than those mentioned in Section 41 in so far as they relate to matters of a public nature, and is again inapplicable to the present of case. Then comes Section 43 which clearly lays down that judgments, order or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is rtrelevant under some other provisions of the Evidence Act. As it has not been shown that the judgment of acquittal rendered by the High Court in appeals arising out of earlier sessions trial could be said to be relevant under the other provisions of the Evidence Act, it was clearly "irrelevant" and could not have been taken into consideration by the High Court while passing the impugned judgment. The remaining Section 44 deals with fraud or collusion in obtaining a judgment, or incompetency of a court which delivered it, and can possibly have no application in the present case. It would thus appear that the High Court was quite justified in ignoring the judgment of acquittal rendered by it which was clearly irrelevant.
10. A three Judges' Bench of this Court had occasion to consider the same very question in the case of Karan Singh vs. The State of Madhya Pradesh, AIR 1965 SC 1037, in which there were in all 8 accused persons out of whom accused Ram Hans absconded, as such trial of seven accused persons, including accused Karan Singh, who was appellant before this Court, proceeded and the trial court although acquitted other six accused persons, convicted the seventh accused, ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 67 i.e., Karan Singh under Section 302 read with Section 149 IPC. Against his conviction, Karan Singh preferred an appeal before the High Court.
.
During the pendency of his appeal, accused Ram Hans was apprehended and put on trial and upon its conclusion, the trial court recorded order of his acquittal, which attained finality, no appeal having been preferred against the same. Thereafter, when the appeal of accused Karan Singh was taken up for hearing, it was of submitted that in view of the judgment of acquittal rendered in the trial of accused Ram Hans, the conviction of accused Karan Singh rt under Section 302 read with Section 149 IPC could not be sustained, more so when other six accused persons, who were tried with Karan Singh, were acquitted by the trial court and the judgment of acquittal attained finality. Repelling the contention, the High Court after considering the evidence adduced came to the conclusion that murder was committed by Ram Hans in furtherance of the common intention of both himself and accused Karan Singh and, accordingly, altered the conviction of Karan Singh from Section 302/149 to one under Section 302/34 IPC. Against the said judgment, when an appeal by special leave was preferred before this Court, it was contended that in view of the verdict of acquittal of accused Ram Hans, it was not permissible in law for the High Court to uphold conviction of accused Karan Singh. This Court, repelling the contention, held that decision in each case had to turn on the evidence led in it. Case of accused Ram Hans ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 68 depended upon evidence led there while the case of accused Karan Singh, who had appealed before this Court, had to be decided only on the .
basis of evidence led during the course of his trial and the evidence led in the case of Ram Hans and the decision there arrived at would be wholly irrelevant in considering merits of the case of Karan Singh, who was appellant before this Court. This Court observed at page 1038 thus: (SCR pp.3-4)-
of " As the High Court pointed out, that observation has no application to the present case as here the acquittal of Ramhans was not in any proceeding to which the appellant was a party. rt Clearly, the decision in each case has to turn on the evidence led in it; Ramhans's case depended on the evidence led there while the appellant's case had to be decided only on the evidence led in it. The evidence led in Ramhans's case and the decision there arrived at on that evidence would be wholly irrelevant in considering the merits of the appellant's case."
In that case, after laying down the law, the Court further considered as to whether the High Court was justified in converting the conviction of accused Karan Singh from Section 302/149 to one under Section 302 read with section 34 IPC after recording a finding that the murder was committed by Ram Hans in furtherance of common intention of both himself and accused Karan Singh. This Court was of the view that in spite of the fact that accused Ram Hans was acquitted by the trial court and his acquittal attained finality, it was open to the High Court, as an appellate court, while considering appeal of accused Karan Singh, to consider evidence recorded in the trial of Karan Singh only for a limited purpose to find out as to whether Karan Singh could have shared common intention with accused Ram Hans to commit murder of the deceased, though the same could not have otherwise affected the acquittal of Ram Hans. In view of the foregoing discussion, we are clearly of the view that the judgment of acquittal rendered in the trial of other four accused ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 69 persons is wholly irrelevant in the appeal arising out of trial of appellant Rajan Rai as the said judgment was not admissible under the provisions of Sections 40 to 44 of the Evidence .
Act. Every case has to be decided on the evidence adduced therein. Case of the four acquitted accused persons was decided on the basis of evidence led there while case of the present appellant has to be decided only on the basis of evidence adduced during the course of his trial."
(pp.194-197) of
85. In view of detailed analysis of pleadings available on record as well as law referred hereinabove, this Court is of rt the view that Ex.PW-1/S was admissible to be tendered in evidence in terms of Section 43 of Evidence Act being "fact in issue". At the cost of repetition, it may be stated that defendants themselves prayed for stay of the suit on the grounds of Civil Suit Nos.44/83 and 12/81, wherein judgment Ex.PW-1/S was passed, meaning thereby that the decision in suits referred hereinabove had direct bearing on the suit filed by the plaintiffs against the present appellants-
defendants.
86. At this stage, it would be appropriate to refer to para-1 of preliminary objections of the written statement, which has been reproduced above, wherein defendants themselves stated that present suit is liable to be stayed under Section 10 of CPC for the reasons that the matter in ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 70 issue in the present suit is also directly in issue in previously instituted two civil suit with regard to the same property .
between the plaintiffs on one hand and Nanak Singh Gandhi on the other hand. Since defendants themselves stated that the matter in issue in the present suit is directly and substantially in issue in previously instituted two civil suits No.44/83 and 12/81, wherein admittedly present plaintiffs of were party, they cannot be allowed to state at this stage that the judgment passed by learned Additional District Judge in rt aforesaid civil suits, referred in para-1 of preliminary objections by defendants, cannot be relied upon in present suit in terms of Sections 41, 42 and 43 of Indian Evidence Act. Rather, keeping in view the candid admission made by the defendants in written statement, wherein defendants themselves admitted that the matter in issue in the present suit is directly and substantially in issue in previously instituted civil suits, this Court is of the view that learned first appellate Court rightly placed reliance upon the judgment Ex.PW-1/S passed in the aforesaid civil suits, which had admittedly direct bearing upon the present suit filed by the plaintiffs. Hence, this Court after seeing Ex.PW-
1/S as well as pleadings of the parties i.e. plaint and written statement has no hesitation to conclude that learned first ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 71 appellate Court placed reliance on the judgment Ex.PW-1/S in the present proceedings in terms of Section 43 being "fact .
in issue". Substantial question of law No.3 is answered accordingly.
Questions No.1 and 2:
87. Now, this Court would be adverting to of substantial questions No.1 and 2. This Court, while exploring answer to substantial question No.3, had an rt occasion to travel through the entire evidence, be it oral or documentary, on record adduced by the parties and as such it sees no force in the submissions having been made on behalf of learned counsel representing the appellants-
defendants that Courts below have fallen in error while appreciating the evidence adduced on record. Shri Ajay Kumar Sood had strenuously argued that first appellate Court has not dealt with the evidence in its right perspective, rather he has acted with material illegality and irregularity in passing the impugned judgment and decree. He also stated that learned first appellate Court, while passing impugned judgment and decree, mis-interpreted the law as applicable to the facts of the present case and as such prayed for quashing of the impugned judgment. Since this Court while ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 72 answering question No.3 has already dealt with issue of application of Sections 41, 42 and 43 of the Indian Evidence .
Act to ascertain the correctness and genuineness of the judgment passed by the learned first appellate Court and has been held that Ex.PW-1/S could be placed reliance in terms of Section 41 being fact in issue, it sees no force in the contention put forth on behalf of the appellants-defendants.
of While answering question No.3 it has been already held that there is no illegality and irregularity in the judgment passed rt by the learned first appellate Court wherein he allowed the appeal of the present plaintiffs' specifically holding that Ex.PW-1/S could be relied upon in evidence. This Court is also of the view that Ex.PW-1/S could be read in evidence in terms of Section 43 being "fact in issue" and as such contention put forth on behalf of the counsel for the appellants that learned Court below misinterpreted the law has no force and is rejected in view of the detailed discussion made hereinabove.
88. As far as misreading of evidence, as alleged by the appellants-defendants, is concerned, this Court is of the view that since first appellate Court solely placed the reliance upon document Ex.PW-1/S, it had no occasion to refer to the other part of evidence. Once Ex.PW-1/S was taken into ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 73 consideration by the first appellate Court while accepting the appeal of the plaintiff, there was no need to look into the .
other part of evidence adduced on record solely for the reason that bare perusal of judgment Ex.PW-1/S clearly suggests that plaintiff No.2 was held to be owner of the suit property on the strength of will, which was held to be validly executed by Smt.Lajwanti Gujral in favour of plaintiff No.2.
of Similarly, perusal of Ex.PW-1/S suggests that question of creation of Trust by plaintiff No.1 was duly proved on record rt by the present plaintiffs in that case by placing copy of Deed of Trust created by plaintiff No.2 after acquiring title of ownership on the strength of will. Since learned first appellate Court held that document Ex.PW-1/S could be placed reliance upon, it was sufficient for that Court to conclude that aforesaid property belongs to validly created Trust, who is entitled to file suit for recovery of possession against defendants, who admittedly after 10.7.1989 was in authorized possession of the premises.
89. Apart from above, this Court had an occasion to peruse the statements made by the plaintiff during trial which clearly suggests that PW-1 Baldev Singh, who happened to be a President of plaintiff-Trust specifically placed on record copy of Jamabandi Ex.PW-1/A as well as ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 74 copy of Trust Deed mark `A' to suggest that Trust was created by plaintiff No.2 Rajinder Singh Gujral and on the .
strength of same mutation was entered in favour of the Trust qua the suit property. He also exhibited the notice issued to defendants through counsel Ex.PW-1/F, receipt Ex.PW-1/G, H and J, acknowledgement Ex.PW-1/L and Ex.PW-1/M. Aforesaid PW also received reply Ex.PW-1/Q and letter of Ex.PW-1/R from the defendants. In reply to aforesaid legal notices got issued by PW-1 in the capacity of President of rt plaintiff Trust, defendants nowhere in their reply vide Ex.PW-1/Q and Ex.PW-1/R disputed the title of plaintiff No.1, rather vide Ex.PW-1/R they enclosed copy of opinion of Advocate Shri K.D. Sood, wherein he opined that till the time suit already pending, as referred hereinabove, is decided they may defer making payment of rent in favour of Shri Rajinder Singh Gujral, plaintiff No.2; meaning thereby that defendants while answering legal notice issued by the plaintiffs nowhere raised issue with regard to creation of Trust/existence of Trust after the death of Smt.Lajwanti Gujral. Though perusal of record suggests that plaintiffs were not able to place on record original copy of Trust Deed but in his statement he categorically stated that Chairman, Gurudwara Singh Sabha, was ex-officio Chairman and there ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 75 were six trustees; namely; Sardar Jagat Singh, Jasbir Kaur, Surjit Kaur Kalra, Iqbal Singh and Sardar Jagdish. While .
making statement he stated that Trust was made in the year 1982, copy of which is mark `A'. He also stated that in the year 1969 defendants were inducted as lessee in the suit land by late Smt.Lajwanti Gujral. It has also come in statement that after becoming owner plaintiff No.2 Rajinder of Singh Gujral issued notice to the defendants and notice through counsel was also issued. In view of aforesaid candid rt and specific statement of PW-1 wherein he stated that after death of late Smt.Lajwanti, plaintiff No.2, acquired the status of owner and got legal notice issued to defendants asking them to vacate the premises and make payment of rent, this Court is of the view that learned trial Court was not right in returning the findings that the plaintiff has not proved that they are owners in possession of the suit land and are entitled to recover the possession of the suit property.
Plaintiffs categorically stated with regard to creation of Trust and other six trustees, named above, and he also disclosed the names of those trustees. Even cause title of the suit suggests that all other trustees; namely; Smt.Jasbir Kaur, Giani Iqbal Singh and Smt.Surjit Kalra, were impleaded as proforma defendants in the suit and as such this Court sees ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 76 no illegality and infirmity in the impugned judgment and sees no force in the contention of the counsel representing .
the appellants-defendants.
90. Apart from above, if for the sake of arguments this contention put forth on behalf of the counsel representing the appellants is accepted that PW-1 who was of the President of plaintiff No.1-Trust was unable to prove the creation of Trust and authorization, if any, on behalf of Trust to initiate proceedings against the defendants, in that event rt also, there is plaintiff No.2 Rajinder Singh Gujral, who admittedly acquired the status of owner after death of Smt.Gujral qua the suit property, which stands duly proved vide judgment Ex.PW-1/S. PW-1 in his statement categorically stated that before the death of Smt.Lajwanti Gujral, she made a will in favour of plaintiff No.2 and on the strength of same, mutation was attested. He categorically stated that Rajinder Singh, plaintiff No.2, executed a trust deed as per wishes of his parents, and he being the Chairman of Gurudwara Singh Sabha filed the present suit.
Since, suit in question was filed by both i.e. plaintiff No.1 Trust and another by plaintiff No.2 who admittedly acquired the status of owner after the death of Smt.Lajwanti which stand duly proved by Ex.PW-1/S, non-placing of original ::: Downloaded on - 15/04/2017 21:14:43 :::HCHP 77 Trust Deed was not of serious consequence, which could entail dismissal of suit by the learned trial Court below.
.
Leaving everything aside, when judgment Ex.PW-1/S has been already held admissible in evidence in terms of Section 43 of the Indian Evidence Act, all issues regarding title would automatically be decided in favour of the plaintiffs.
Both the questions are answered accordingly.
of
91. In view of the detailed discussion made hereinabove, this appeal is dismissed.
rt The judgment passed by the learned first appellate Court below is upheld and that of the learned trial Court is set aside and the suit filed by the plaintiffs is decreed.
There shall be no order as to costs.
92. Interim order, if any, is vacated. All miscellaneous applications are disposed of.
September 16, 2016 (Sandeep Sharma)
(aks) Judge.
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