Himachal Pradesh High Court
______________________________________________________________________ vs Bawa Jang Bahadur on 15 December, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 302 of 2008 Reserved on: 25.11.2016 .
Date of Decision: 15.12.2016 ______________________________________________________________________ Smt. Surjit Verma .....Appellant.
Vs.
Bawa Jang Bahadur .....Respondent.
Coram:
of
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 No. For the appellant: Mr. G.C. Gupta, Senior Advocate, with For the respondent:
rt Ms. Meera Devi, Advocate.
Mr. Pankaj Chauhan, Advocate.
Ajay Mohan Goel, Judge :
By way of this appeal, the appellant/plaintiff has challenged the judgment and decree passed by the Court of learned Additional District Judge, Shimla in Civil Appeal No. 18-S/13 of 2007 dated 19.03.2008, vide which learned appellate Court while upholding the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No. 3, Shimla dated 16.03.2007, has dismissed the appeal filed against the same by the present appellant.
2. Brief facts necessary for the adjudication of the appeal are that appellant/plaintiff filed a suit for declaration as well as for permanent prohibitory injunction on the grounds that main building consisting of different flats in Bawa Estate, Shimla-3, opposite Railway Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 2Board Building, was owned by late Shri Bawa R. Singh, which was purchased by him in an open auction from custodian after its original owner migrated to Pakistan at the time of partition. As per the plaintiff, .
she was inducted as tenant by the aforesaid owner of the property in respect of two storeyed Flat, i.e. Flat No. 8, each consisting of one big hall room, one glazed verandah, kitchen, bath room and latrine in the main building of Bawa Estate somewhere in the year 1983 at a rent of `175/-
of per month inclusive of all charges. As per the plaintiff, since then she continued to be in peaceful possession of the said property. It was further her case that late Bawa R. Singh as well as his wife Smt. Manorama rt Rattan Singh executed an affidavit dated 20.05.1986 in lieu of services rendered by plaintiff to them to the effect that rent upto 07.05.1986 stood received by the land owner and plaintiff was not in arrears of rent and further that from the said date onwards, plaintiff would not pay any rent of the set to any person including interest and would be sole owner of the set occupied by her. As per the plaintiff, it was also mentioned in the said affidavit by Bawa R. Singh that a petition filed for ejectment of the plaintiff by his attorney was frivolous and had been rendered infructuous in view of the execution of the said affidavit. It was further the contention of the plaintiff that in fact she was being treated as adopted daughter by Bawa R. Singh as well as his wife. As per the plaintiff, Bawa R. Singh died in the year 1986 and thereafter his property was inherited by his widow Smt. Manorama Rattan Singh. She also executed a similar affidavit in favour of the plaintiff on 05.06.1986. Manorama Rattan Singh died on ::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 3 05.11.1992 and after her death, plaintiff was coming in peaceful possession of the property as its absolute owner and was having interest in the property known as Bawa Estate to the extent of share of late Smt. .
Manorama Rattan Singh. Further as per the plaintiff, after the death of Manorama Rattan Singh, defendant started claiming himself to be owner of the property including the set in occupation of the plaintiff and started demanding rent from her. As per the plaintiff, she had also learnt that by of suppression of facts and by way of fraud, defendant had obtained letter of administration of late Smt. Manorama Rattan Singh, in which plaintiff was not impleaded as a party, which letter of administration as per the rt plaintiff was fraudulently obtained by him. Thereafter, he started filing ejectment petitions against the plaintiff one after the other and obtaining ex parte orders for ejectment of the plaintiff. As per the plaintiff, she was absolute owner in possession of the Flat in her occupation and was also entitled to the possession of share of deceased Manorama Rattan Singh in property known as Bawa Estate and defendant had no right, title or interest over the same. It was on these bases that the suit was filed by the plaintiff seeking a decree for declaration to the effect that plaintiff was absolute owner in possession of the suit property and after the death of Smt. Manorma Rattan Singh, defendant had no right, title or interest in the same and was not entitled to receive any rent from the plaintiff. She also prayed for a decree of permanent prohibitory injunction for restraining the defendant from claiming any rent or from interfering with the possession of the plaintiff qua the suit property.
::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 43. The suit so filed by the plaintiff was contested by the defendant, who inter alia took the stand that no services were rendered by the plaintiff, who was a working lady in the Excise Department and in .
fact father of defendant was in unconscious position and had lost all his senses and since he was on his death bed, it was not possible for him to have had executed any affidavit dated 20.05.1986. It was further mentioned in the written statement that even Manorma was suffering of from chronical diseases and was paralysed and discarded the plaintiff from the day plaintiff had refused to return her jewellery by playing tricks upon her. As per defendant, Set No. 8 was never given to plaintiff and the rt question of ownership of plaintiff over the same did not arise. As per him, since 1986, plaintiff was discarded by Manorma and it was one Dhani Devi and the defendant who had served Manorma till her death. On these bases, it was contended by the defendant that plaintiff was not entitled for permanent prohibitory injunction nor was entitled for any decree for declaration.
4. By way of replication, plaintiff reiterated her stand taken in the plaint.
5. On the basis of pleadings of the parties, learned trial Court framed the following issues:
"1. Whether the plaintiff is entitled for the relief of declaration to the effect that plaintiff is owner in possession i.e. Flat No. 8 situated at main building Bawa Estate, Shimla? OPP
2. Whether the plaintiff is entitled for decree of permanent prohibitory injunction as prayed? OPP ::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 5
3. Whether the suit is not maintainable in the present form? OPD
4. Relief.
.
6. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed:
"Issue No. 1: No.
Issue No. 2: No.
of
Issue No. 3: No.
Relief: Suit of the plaintiff is dismissed as per the
operative portion of the judgment.
7.
rt
Accordingly, learned trial Court dismissed the suit so filed by the plaintiff by holding that plaintiff had failed to prove that late Sh.
Bawa Rattan Singh and his wife Manorama Rattan Singh, in view of the services rendered by her to them, executed the affidavit in her favour.
Learned trial Court also held that records demonstrate that the plaintiff was inducted as tenant in the demised premises by late Sh. Bawa Rattan Singh and after the death of Bawa Rattan Singh and Smt. Manorama Rattan Singh, the suit property had been inherited by the defendant. It was held by the learned trial Court that it was apparent that the defendant was owner in possession of the suit property and plaintiff was statutory tenant of Flat No. 8. Learned trial Court thus held that plaintiff was not entitled for relief of declaration and injunction.
8. Feeling aggrieved by the judgment and decree so passed by the learned trial Court, plaintiff filed an appeal. In the appeal so filed, ::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 6 various grounds were taken by the plaintiff to assail the judgment and decree passed by the learned trial Court.
9. While deciding the appeal, learned appellate Court returned .
the findings that documents relied upon by the plaintiff before the learned trial Court were in the form of affidavits and realizing that no title could pass on to her through such affidavits, in appeal, "in a way it is conceded that the appellant has no title." Learned appellate Court further of held that what was argued (by the plaintiff) was that on the basis of these documents, she was not liable to pay any rent and the submission therefore was rtthat a decree for injunction restraining respondent/defendant from claiming rent should have been passed.
Thereafter, learned appellate Court went on to dismiss the appeal and uphold the judgment and decree passed by the learned trial Court by holding that there was absolutely no evidence on record about interference by respondent/defendant in the possession of the plaintiff over disputed Flat and her only case was that defendant was claiming rent which he was not entitled to. Learned appellate Court held that defendant could not be restrained from filing eviction petition from claiming rent and filing of petition to claim rent was not an act of interference. Learned appellate Court held that plaintiff was not entitled to any injunction. Learned appellate Court also held that plaintiff had the liberty to put up defence in the proceedings initiated for recovery of rent that she was not liable to pay the same, however, defendant could not be ::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 7 legally restrained from filing such legal proceedings. On these bases, learned appellate Court dismissed the appeal so filed by the appellant.
10. Feeling aggrieved by the judgments and decrees so passed by .
both the learned Courts below, the plaintiff has filed this appeal, which was admitted on 20.08.2008 on the following substantial question of law:
"Whether the judgment of the first appellate Court is not sustainable in view of the fact that the Appellate Authority has failed to make any of discussion with respect to the relief of declaration sought by the appellant?
11. rt Mr. G.C. Gupta, learned Senior Counsel appearing of the appellant has challenged the judgment and decree so passed by the learned appellate Court on the ground that the findings returned by the learned appellate Court were perverse as there was no concession made by the appellant before the first appellate Court that she had no title over the suit property. As per Mr. Gupta, the findings so returned by the learned appellate Court were based on conjectures and in fact there was no such contention ever made before the learned first appellate Court by the plaintiff, as was held by the learned appellate Court. Mr. Gupta further argued that even otherwise, the judgment passed by the learned appellate Court was not sustainable in the eyes of law, as learned appellate Court neither took into consideration the grounds which were taken in the appeal filed before it against the judgment and decree passed by the learned trial Court by the plaintiff, nor there was either any discussion on the said grounds of appeal or any adjudication on the ::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 8 same. It was argued by Mr. Gupta that learned appellate Court while deciding the appeal failed to appreciate that it being the first Court of appeal, was bound to have had taken into consideration the entire .
pleadings as well as evidence placed on record by the respective parties and thereafter, taking into consideration the grounds of appeal on which the judgment and decree passed by the learned trial Court was assailed, it should have had returned its findings by way of a reasoned judgment, of which took into consideration the grounds assailing the judgment and decree passed by the learned trial Court. On these bases, it was urged by Mr. Gupta that the judgment and decree passed by the learned appellate rt Court was not sustainable in the eyes of law and was liable to set aside.
12. Mr. Pankaj Chauhan, learned counsel for the respondent, on the other hand, argued that there was no perversity with the judgment and decree passed by the learned trial Court, because the tone and tenor of the contentions raised by the plaintiff before the learned appellate Court were self speaking that she had conceded the factum of her title over the suit property and the only relief which could have been prayed by her was that defendant was not entitled to receive any rent from her.
Mr. Chauhan further argued that learned appellate Court had rightly held that the petitions filed by the land owner/defendant to claim rent due to him from the plaintiff could not be termed as interference and no decree of injunction could have been passed restraining the defendant from filing the petitions to claim rent due to him from the plaintiff. On these bases, ::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 9 he urged and argued that there was no merit in the appeal and the same be dismissed.
13. I have heard the learned counsel for the parties and also .
gone through the records of the case as well as the judgments passed by both the learned Courts below.
14. A perusal of the grounds of appeal filed by the plaintiff against the judgment and decree passed by the learned trial Court of demonstrate that said judgment and decree passed by the learned trial Court was assailed by the plaintiff on various grounds, however, learned appellate Court while dismissing the appeal so filed by the plaintiff had rt neither took into consideration the grounds which were so taken in the appeal filed by the plaintiff nor any findings have been returned on them.
Besides this, the findings returned by the learned appellate Court that plaintiff had conceded her claim of title over the suit property is also not borne out from the records. Neither there is any such statement made by the plaintiff either before the learned trial Court or before the learned appellate Court nor this factum can be deduced from any other material on record. Learned counsel for the respondent also could not during the course of arguments justify the reasonings so given by the learned appellate Court from the material on record by way of ocular as well as documentary evidence.
15. In my considered view, the findings so returned by the learned appellate Court cannot be upheld. This is for the reason that the findings so returned by the learned appellate Court are not substantiated ::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 10 from the records of the case, but rather based on conjectures and surmises. From what material on record learned appellate Court drew the above inferences is not apparent or evident from the findings so returned .
by the learned appellate Court.
16. Findings of fact by a Court of law cannot be based on presumptions/conjectures and surmises. It has to be on the basis of material adduced on record by the parties that the Court has to give of definite findings on fact.
17. It is well settled law that the first appellate Court is the final Court of fact ordinarily and therefore a litigant is entitled to a full, fair rt and independent consideration of the evidence at the appellate stage and anything less than this is unjust to him. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court and first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on question of fact and law.
The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues involved in the case alongwith the contentions put forth and pressed by the parties for decision by the appellate Court.
18. In view of the above salutary principles, I am of the considered view that the learned appellate Court has failed to discharge the obligation placed on it as first appellate Court by deciding the appeal on presumptions rather than returning its findings by coming close quarters with the reasoning assigned by the learned trial Court and ::: Downloaded on - 15/04/2017 21:44:58 :::HCHP 11 thereafter assigning its own reasons for arriving at a different finding or while affirming the same. Substantial question of law is answered accordingly.
.
19. In view of the discussion held above, the appeal is allowed and judgment and decree dated 19.03.2008 passed by the Court of learned Additional District Judge, Shimla in Civil Appeal No. 18-S/13 of 2007 are set aside. The case is remanded back to learned appellate Court of with a direction to decide the appeal afresh on merits. Parties through their counsel are directed to put in appearance before the learned appellate Court on 02.01.2017. Keeping in view the fact that case rt pertains to the year 2002, this Court hopes and trusts that learned appellate Court shall adjudicate upon the appeal as expeditiously as possible and preferably within a period of six months. No order as to costs. Miscellaneous application(s), if any, also stands disposed of.
Registry is directed to return back the records of the case to learned appellate Court forthwith.
(Ajay Mohan Goel) Judge December 15, 2016 (bhupender) ::: Downloaded on - 15/04/2017 21:44:58 :::HCHP