Madhya Pradesh High Court
Smt. Indubai And Anr. vs Jawaharlal And Anr. on 21 August, 1989
Equivalent citations: AIR1990MP80, AIR 1990 MADHYA PRADESH 80
JUDGMENT Gulab C. Gupta, J.
1. This judgment will also govern the disposal of First Appeals Nos. 44/1983, 46/1983 and 47/1983 which involve common legal and Tactual controversy.
2. This is defendant's first appeal under Section 96, C.P.C., against the judgment and decree dated 20lh January, 1983 passed by Shri L.S. Nihalani, First Additional Judge to the Court of District Judge, Raipur, in Civil Suit No. 6-A/ 1967, directing the appellant to deliver vacant possession of the suit land together with mense profits at the rate of Rs. 300/- per month from the date of the suit till delivery of the possession.
3. These four appeals arise out of four different suits which were subsequently consolidated in the trial court and which had a common defendant. Property in dispute in all the appeals is part 'Khairagarh Bada' situate in Rikhiya Para, Raipur. It appears that Raja Kamalnarayan Singh had purchased the entire Bada consisting of 10.32 acres of land on 11-1-1907 from one Kasturchand and since then it remained his family property. It came to be inherited by Raja Birendra Bahadur Singh of Khairagarh who by a sale-deed dated 7-8-1946 (Ex. P-1), sold it to Mohammad Bhai and Pratap Chand Chandak. It is the case of the plaintiff that Mohammed Bhai assigned his half share to Seth Rajab Ali on 7-10-1948 and Pratap Chand Chandak assigned his half share to Shivram Poddar on 24-12-1947, with the result that entire 'Khairagarh Bada' was held by these four with an undivided 1/4th share therein. The case of the plaintiff was that the aforesaid 4 persons constituted themselves into a partnership firm on 9-10-1948 with the object of developing the Bada into a residential locality, carving out plots and selling them to prospective buyers. This business, according to the plaintiff, was conducted up to 1-2-1954 when the partnership was dissolved and unsold plots divided among the partners. According to the deed of dissolution dated 1-2-1954, Mohammed Bhai was given 34033 sq. ft. of land, Rajab Ali was given 36665 sq. ft., Shivram Poddar was given 38065 sq. ft. and Pratap Chand Chandak was given 37935 sq. ft. of land. The plaintiffs in all the four suits pleaded that the defendant, in the month of August, 1949 or thereabout encroached upon the land as shown in the plaint map. According to them, the plot had been occupied by the defendant initially with the permission of the plaintiff with an agreement that the same will be vacated whenever required. The plaintiffs further alleged that the defendant did not vacate the plot on being required but requested that they be sold to him. Since the plaintiffs did not agree to sell the plot and defendant did not vacate the same, he became trespasser liable to be evicted by a decree of the Court. The original defendant Nandoolal resisted these suits on numerous grounds. He claimed to be a partner of the firm and in possession of the suit properties since 1947, because of his share in the business. According to him, he being the most experienced person was required by the plaintiffs to do development and plotting work and sell the plots for the benefit of all. He was promised 1/4th share of the profit earned. According to him, he entered into possession of the properties with a view to carry out the aforesaid business effectively. It was further submitted that the suit had become barred by limitation. It was also submitted that the respondents plaintiffs had brought an earlier suit i.e. Civil Suit No. 31-A of 1951 for obtaining possession of two rooms only. It was claimed that the present suit being based on the same cause of action, was barred by the provisions of Order 2, Rule 2, C.P.C. The learned trial Judge, on the basis of evidence adduced by the parties, held that the suit was neither barred by the provisions of Limitation Act, nor Order 2, Rule 2, C. P.C. It was also held that the appellant was neither the partner of the dissolved firm nor had any title over the suit properties. The suits were accordingly, decreed and hence these appeals.
4. The submission of the learned counsel for the appellant in all these appeals, in the main, are three namely, (i) that, the original defendant being in possession of two rooms and the suit plot since 1946 of licensee. Suit No. 137-A/1951 had the effect of barring these suits under Order 2, Rule 2, C.P.C. (ii), the land being mourusi and not Malik Makbuza, the suit for possession should have been filed within three years under Article 1 of Schedule II of C.P. Tenancy Act, 1920 and (iii) the respondent-plaintiffs had failed to prove their case of licence and hence their suits should fail. The learned counsel for the respondents in reply submitted that the cause of action for two suits being different, there was no scope of applying Order 2, Rule 2, C.P.C. and hence the present suit is not barred. It is also submitted that the suit was not barred by Article 1 of Schedule II of C.P. Tenancy Act, 1920, as the land was not Mourusi but was held in Malik Makbuza right. In this connection Court's attention was drawn to the fact that plaint para 2 alleged Malik Makbuza right of the plaintiffs upon the suit land, which was originally admitted. According to the learned counsel, though this ad mission had been subsequently withdrawn, it deserves notice for appreciation of other evidence on record. The learned counsel also submitted that the plaintiffs suit is based on title which has been proved and even impliedly admitted by the appellant-defendant and hence the burden of proving to the contrary rested with the appellant. Since the said burden has not been discharged the suit has rightly been decreed.
5. As regards plea, based on Order 2, Rule 2 of the C.P.C. it is no longer in dispute that the Civil Suit No. 137/1951 was filed by four persons through whom the present plaintiffs claim, for obtaining possession of two rooms situate on the suit land. Judgment in the said suit (Ex. P-13) would indicate that the property concerned in the said suit was two rooms situated in the North--East corner plot in 'Khairagarh Bada'. It was alleged that the defendant Nandoolal was permitted to occupy those two rooms as a licensee without any licence-fee or rent in the month of Nov. 1946 on the condition that he would vacate those rooms when called upon. The defence of the defendant Nandoolal was that he was a partner with 1/4th interest and not licensee. His claim was negatived and it was held that he was a mere licensee. The suit was accordingly, decreed and defendant Nandoolal was directed to deliver possession of rooms marked as Nos. 1 and 3 in the plaint map. Map (Ex. D/4) gives the situation of the said rooms by demarcating it in red. Plaint-Map in the instant suit, when read along with Map (Ex. D/4), would clearly show that the two rooms covered by the earlier suit form part of North-East corner plot. If both these maps are understood with reference to a Map of 'Khairagarh Bada' (Ex. P-7), it would appear that though the whole Bada was divided into residential plots, the North East corner plot was not so divided and remained separate. It was only at the time of dissolution of the partnership that this plot was divided into four and one part each given to a partner. The plot on which two rooms covered by the earlier suit existed seems to have been allotted to the share of Pratap Chand Chandak. Civil Suit No. 7-A is the suit relating to the said plot. With the identification of properties of two suits being established, it may be ascertained if the cause of action in these two suits is the same or different.
6. Judgment in the earlier suit (Ex. P-13) clearly indicates that it was based on the allegation that defendant Nandoolal was permitted to occupy two rooms as a licensee without any licence fees or rent in the month of Nov. 1946, on the condition that he will vacate the same whenever required. It was further alleged that since the said defendant did not vacate those rooms even though required, the cause of action for filing the suit arose in favour of the plaintiff. Clearly, therefore, the cause of action in the earlier suit was refusal of the licensee to vacate the rooms when required. The plaint in the present suit originally alleged that the defendant Nandoolal had encroached upon the suit land in August, 1949 or thereafter and was there-fore a trespasser. In spite of these allegations para 10 to the plaint states that the cause of action arose within the jurisdiction of the Court in April, 1949. The appellant-defendant in his written statement denied these allegations in toto and submitted that he did not take wrongful possession of the plot as alleged. He specifically pleaded that not only the suit plot but plots of other three suits were occupied by him at the request of other partners and thereafter he arranged his residence on the same. Though he did not give the exact date of occupation, he stated in para 6-B that the persons had requested him to occupy after 7-8-1946 and therefore he remained on the said plot doing the work from August, 1946. The appellant-defendant also mentioned Civil Suit No. 137-A/1951 decided on 22-4-1952 in the Court of Civil Judge, Class-11, Raipur and submitted that the two rooms form part of the plot in his occupation since August, 1946. The plaint was amended after the aforesaid written statement by adding para 8(a) into it. This new paragraph reads as under :
"8(a) The plaintiff admits that the plot in suit was occupied by the defendant with permission of the plaintiff agreeing that he will vacate after some time when asked by the plaintiff but afterwards, even though asked by the plaintiff the defendant did not vacate the plot and requested that the plaintiff should agree to sell the suit plot, but the plaintiff did not agree to sell the suit plot and asked the defendant to vacate the same. His occupation therefore became that of a trespasser."
The learned counsel for the respondent-plaintiff frankly admitted that para 8 and para 8(a) are contrary to each other, and cannot be read together. According to the learned counsel, para 8(a) appears to have been inserted by way of amendment by mis-lake. Since according to him, even the application of Rule of Harmonious Construction would not permit these paragraphs to be read together, this Court, should ignore paragraph 8(a) altogether. The submissions of the learned counsel will, however, require consideration on the context of settled legal principle which must first be stated for guidance.
7. In Madan Gopal v. Mamraj Maniram, AIR 1976 SC 461 it was held that Courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trival grounds. In Manjushri v. B. L. Gupla, AIR 1977 SC 1158, it was laid down that pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people. In Harisb Chandra v. Triloki Singh, AIR 1957 SC 444, it was clarified that the substance of the case should be kept in view and not merely the words used in the pleadings. In Udhav Singh v. M. R. Scindia, AIR 1976 SC 744 the Court emphasised that pleading must be read as a whole and Courts should not look merely to the form of pleading or pick out from it isolated words or sentences. These principles were accepted by this Court in J. B. Mangharam & Co. v. E.S.I. Corporation AIR 1969 Madh Pra 110 and Omprakash v. Kanhaiyalal 1973 MPLJ 474. These principles must therefore be accepted as well settled and followed in the present case to properly understand the meaning of paras 8 and 8(a) of the plaint. It must, however, be kept in view that though the law permits alternative relief on incon-sislent allegations, it does not permit incon-sistent pleas. Pleas which are mutually dis-tractive of each other are normally not allowed. Application of this principle would not entitle this Court to assume that paras 8 and 8(a) are inconsistent and mutually dis-tructive unless the court reaches such a conclusion on appreciation of allegations in the plaint by reading them together and giving a liberal construction with intention to avoid inconsistency. This court in search for harmony between the two does not appear to be futile in the context of chronology of events leading to insertion of para 8(a) by way of amendment. Original para 8 of the plaint contained the bald statement that the defendant had encroached upon the suit land in August 1949 or thereabout and had constructed shade upon it. It did not give the manner of encroachment or any other details. These facts were denied in the written statement where a claim of title based on partnership arrangement was put forth. The defence of permissive occupation was also set up by the defendant in reply to the plea of alleged encroachment. It was in reply to this defence plea that the para 8(a) was inserted by way of amendment. It is also necessary to remember that the amendment application was moved on 30-10-1979 and was allowed in spite of opposition by the defendant. The trial Court by its order dated 4-12-1981 allowed this amendment on the reasoning that "by the proposed amendment the plaintiff wants to show as to how occupation of the plot by the defendant became that of a trespasser. This proposed amendment by the plaintiff does not change the nature of the suit nor is it likely to cause any prejudice to the defendant." It appears that though this order was challenged was not pressed at the time of hearing. It Under the circumstances, it will have to he assumed that the paragraph No. 8(a) was inserted into the plaint with view to clarify para 8 and not by way of any new or inconsistent plea. If the logic of the learned trial Judge has to be accepted, para 8(a) was by way of clarification of para 8 of the plaint. This history would, therefore, oblige this Court to first read the two paragraphs in a manner as to achieve the aforesaid purpose. The two paragraphs when read as aforesaid, do not contradict each other nor are they contrary to each other as submitted by the learned counsel for the respondent. Para 8(a) in the opinion of this Court, has the effect of explaining how the defendant became encroacher and trespasser. Again the word 'encroachment' appearing in para 8 will not be taken out of the said para and read in isolation. Its meaning has to be gathered and understood by reading paras 8 and 8(a) together. So read it would only mean that words 'encroachment' and 'Trespasser' have been used in the same sense and intend to convey the same meaning. The words 'encroachment' in law connotes unauthorised occupation from the beginning. But the 'trespass' does not necessarily indicate illegality from the beginning. A valid entry in the beginning may subsequently turn out to be a trespass in taw. It would, therefore, appear that the effort of the amendment was only to show how occupation of the suit plot by the defendant became an encroachment subsequently and how he became a trespasser thereby. These paragraphs read together would indicate that the case of the plaintiffs is that though initially the occupation of the suit plot by the defendant was permissive, it became encroachment after he refused to vacate the same on being required to do so, and thereafter the defendant became a trespasser. This interpretation of the two paragraphs is in accord with the evidence adduced by the parties before the paragraph 8(a) was inserted into the plaint. Ramnarayan Chandak (PW 9) while giving his evidence on 9-2-1979, had deposed that he has seen the suit land which was in possession of the defendant. According to him, the defendant occupied the suit land in 1949 when it was vacant and only 3-4 rooms were constructed on a side. He also stated that some shops were constructed on the said land about 15-16 years before. In his cross-examination (Para 11) he admitted that houses constructed on the suit land might have been constructed 20 years before. Prabhunath Shukla (DW 1) claims to be the Pujari of temple situate in the Bada and has deposed on oath that the defendant had occupied the suit land in 1949 and at that time there were 4 rooms thereupon. According to him, other rooms were subsequently constructed by the defendant. Magan Lal (DW 1) has deposed that the defendant used to stay at Nagpur before 1948 and started living at Khairagarh Bada thereafter. It would, therefore, appear that though para 8 of the plaint alleged encroachment in August 1949 no witness deposed anything about the said encroachment. Evidence of witnesses on the contrary indicated permissive possession of the defendant. If in such a factual situation, the amendment in paragraph 8(a) was inserted to clarify the nature of entry of the defendant on the plot. It would be a natural conduct of the plaintiff. Under the circumstances aforesaid meaning of two paragraphs would be fully justified.
8. It may, therefore be examined if the relief claimed by the plaintiff in these suits was available to their predecessor-in-title at the time of earlier suit and can be said to have been given up on the principle of Order 2 Rule 2, C.P.C. In this connection it may also be examined if these suits are based on the same cause of action. This examination appears to be necessary to give effect to the principle underlying Order 2 Rule 2. C.P.C., that the defendant should not be vexed twice for one or the same cause of action. In Md. Khalil Khan v. Malibub All Mian AIR 1949 PC 78, it was clarified that this rule is directed against two evils namely splitling of claims and splitting of remedies. This is also the decision of this Court in Praphullachandra v. Rajbai AIR [964 Madh Pra 129. The Supreme Court in Gurbux Singh v. Bhooralai AIR 1964 SC 1810 held that, in order that a plea of the bar under Order 2 Rule 2, CPC, should succeed, the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; and (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. The Privy Council case noticed earlier provided a rough test to determine whether the cause of action in two suits was the same and is that, whether the same evidence will sustain in both suits. It was, however, clarified by the Privy Council that the cause of action refers entirely to the grounds set out in the plaint as the cause of action or in other words to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. It was further clarified that though causes in two suits may be the same, the facts alleged may not be identical in two cases. In Union of India v. P. V. Jagannalh, AIR 1968 Madh Pra 204 this Court while examining this part of the provision had observed that subsequent bar to sue for the relief omitted earlier was in the nature of penalty for omission to sue for the whole claim. In spite of it, it is clear that rule does not apply when the right to relief in respect of which further suit is brought, did not exist at the time of the previous suit. As regards property suits, the law appears to be that where the facts complained of are the same, there is only one cause of action though the reliefs sought may relate to different facts or different portions of the properties (See Venkatanarasimham v. Subbareddi, AIR 1944 Mad 435, Venimadho v. Mirzapur Electric Supply Co., AIR 1944 All 123 and Sher Ali v. Torap Ali AIR 1942 Cal 407. Application of these principles would justifiably lead this Court to hold, in the context of facts and circumstances of this case that in ease, it is found that appellants defendants" possession of two rooms involved in earlier suit and plot constitute two distinct licences or trespasses, bar of Order 2 Rule 2, C.P.C. would not be attracted. But on the same principle, if it is found that the defendants occupation of the land and rooms constituted one act, the cause of action in two suits will have to be held identical. In such a situation it will have to hold that the respondents plaintiffs by not claiming relief of possession of the plot in the earlier suit, are now estopped from bringing the suit for this purpose.
9. As held earlier the cause of action in the present suit is revocation of license by the respondent plaintiff and occupation of the appellants of the plot in spite of the license being revoked in August, 1949, when the plaintiff became a trespasser. There is, however, discrepancy between paragraphs 8 and 8(a) and para 10 where cause of action is said to have arisen in April 1949 which may lead to the conclusion that the lieencc was revoked in April 1949. The plaint however, docs not give either the date or months or year of the entry of the appellant-defendant on the plot. The plaint also docs not allege anything in relation to the two rooms concerned in earlier suit. But for the reason alone it cannot be inferred that two distinct licences were granted in favour of the defendant. The map attached to the earlier decree (Ex.D/4) indicates that besides two rooms, there we re other construction existing on the said plot by the side of Ramsagarpara Manohar Talkies Road. No witness has, in this case, stated that the property in possession of the defendant was as a result of two separate licences granted in his favour. Evidence as discussed above, very clearly indicates that the defendant was in possession of the suit plot when the Civil Suit No. 137,' 1951 was filed. This indeed is the ease of the respondents-plaintiffs in this suit. The judgment Ex.P-13 clearly indicates that defendant claimed ownership of the property as partner. But his claim was negatived on the basis of partnership dated 9-10-1943. This partnership deed is also referred to in para 4 of the plaint. In the earlier suit, the plaintiffs claimed that the defendant is merely a licensee though the claim of the defendant is based on ownership. It would, therefore, appear that the material facts of the two cases are also identical. Now if the suit plot was in possession of the defendant at the time when earlier suit was filed and the defendant was even then claiming possession based on ownership, the question that one may like to ink is as to why if the intention of the plaintiffs was to repudiate the defendant's claim based on ownership, they did not claim relief in relation to these plots as well. In the absence of any explanation from the respondent-plaintiff it may he reasonable to assume that they accepted claim of the defendant over the suit plot and, therefore did not include the same in that suit. The cause of action being defendant's occupation as a licensee which licence had been revoked, the plaintiff could have, if they wanted, sought eviction of the defendant from the plot as well. The only conclusion that can therefore be drawn is that they have given up that relief at that time. Having given up their claim to possession of that part of the property held by the defendant as their licensee, they must suffer the bar of Order 2 Rule 2, CPC and be estopped from claiming that very relief in this suit. In this view of the matter, the present suit would, in the opinion of this Court be barred by Order 2 Rule 2, C.P.C.
10. The learned trial Judge has discussed this question in para 43 of the impugned judgment and has rejected the appellants-defendants' claim on the ground that the defendant started annexing suit land right from the year 1949 and that the process of annexation was gradual and continuous. In so holding the learned trial judge has borrowed more from his imagination than from facts on record. It is nobody's case that the defendant had been annexing land from 1949 and the process of annexation was gradual and continuous. The learned trial Judge has also not taken notice of map Ex. D/4 showing position of the property in the earlier suit nor has he considered the admitted allegation that the suit land was also in possession of the defendant at the time the earlier suit was filed. Apparently, the learned trial Judge has not decided the serious and important question of law as carefully as was expected of him. This Court, is therefore, unable to sustain his conclusion. Since it is the considered view of this Court that the suit is barred by principles contained in Order 2 Rule 2, C.P.C., it is really not necessary to examine other submissions in any greater details.
11. In spite of it, it is the considered view of this Court, that the present suit was not barred by Limitation as submitted by the appellants-defendants. It is true that document Ex. D/6 which pertains to the year 1929-30 describes possession of the respondent/ plaintiff as Maurusi hut this would not be of any consequence, in view of Khasra Ex.p. 12, pertaining to 1949-50 showing them in possession of properly of Malik Makbuza. Since the document Ex.P 12 has presumptive value, it was for the appellant-defendant to rebut the said presumption of correctness by showing possession subsequent to 1949-50 as Maurusi whieh they have admittedly not done. Under the circumstances, there would be no occasion to apply Section 104 of the C. P. Tenancy Act, 1920 or Article 1 Schedule II thereof. It is also the considered opinion of this Court that the appellants-defendants have no title over the suit land whereas the title of the plaintiffs respondents is satisfactorily established by evidence on record.
12. In view of the discussion aforesaid, these appeals succeed and are allowed. The impugned judgment and decree are set aside and the suit for the possession filed by the respondents/plaintiffs is dismissed being barred under Order 2 Rule 2, C.P.C. In view of the peculiar facts and circumstances of the case, the parties will bear their own costs of the litigation throughout.