Allahabad High Court
Sadare Alam And 2 Others vs Ram Awadh And 15 Others on 25 July, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 08.03.2022
Delivered on 25.07.2022
Case :- MATTERS UNDER ARTICLE 227 No. - 636 of 2021
Petitioner :- Sadare Alam And 2 Others
Respondent :- Ram Awadh And 15 Others
Counsel for Petitioner :- Prem Narayan Tiwari,Sr. Advocate Sri Anil Bhushan
Counsel for Respondent :- Brajesh Kumar Dwivedi,Shiv Om Vikram Singh Chauhan
Hon'ble Saral Srivastava,J.
1. Heard Sri Anil Bhushan, learned Senior Advocate assisted by Sri P.N. Tiwari, learned counsel for the petitioners, and Sri Shiv Om Vikram Singh Chauhan, learned Senior Advocate assisted by Sri Vishnu Gupta, learned counsel for the respondents.
2. The petitioners are plaintiffs in Original Suit No.2314 of 2020 and have assailed the order dated 20.01.2021 passed by the District Judge, Azamgarh, allowing the appeal of respondents-defendants (first set) by which appellate court has set aside the order dated 22.12.2020 passed by the trial court granting the temporary injunction to the petitioners-plaintiffs.
3. The petitioners-plaintiffs instituted Original Suit No.2314 of 2020 restraining respondents-defendants (first set) (respondent nos.1 & 2 in the writ petition) not to interfere in the possession of the petitioners-plaintiffs, and further respondents-defendants (first set) be restrained from raising any construction over the suit property and not to excavate mud from the suit property i.e. Arazi no.606 area 1.5440 hectare shown as ''ABCDEFGH' in the map at the foot of the plaint.
4. The suit has been instituted on the ground that petitioners-plaintiffs and respondents-defendants (second set) are the joint owners of the suit property, and the suit property has not been partitioned between the petitioners-plaintiffs and respondents-defendants (second set) by metes and bounds. It is stated that on the north side of the suit property, a brick kiln (Bhatta) was being run by the respondents-defendants (first set). It is further pleaded that respondents-defendants (first set) have no concern with the suit property. The respondents-defendants (first set) are Bhu-mafias and have been threatening the petitioners-plaintiffs since 14.11.2020 to excavate mud from the suit property and dispossess them. The said action of the respondents-defendants (first set) gave the cause of action to the petitioners-plaintiffs to institute the aforesaid suit. In the said suit, petitioners-plaintiffs also filed 6C-2 application praying for a temporary injunction.
5. The respondents-defendants (first set) filed an objection to the temporary injunction application stating therein that they are in possession of the suit property. It is stated that on account of the Pandemic of COVID-19, the raw material of the respondents-defendants (first set) namely, coal, mud, sand, etc. were lying on the suit property. It is further stated that petitioners-plaintiffs have issued a licence in favour of the respondents-defendants (first set) to run a brick kiln which is still in existence. It is further stated that on account of closure of brick-kiln, respondents-defendants (first set) are suffering a loss of Rs.1 lakh per day. It is further pleaded that no prima facie case and balance of convenience are in favour of the petitioners-plaintiffs and it is respondents-defendants (first set) who shall suffer irreparable loss if they are not allowed to run brick-kiln.
6. The trial court vide order dated 20.11.2020 granted an ex-parte order of status quo restraining the respondents-defendants (first set) not to interfere in the possession of the petitioners-plaintiffs. The trial court in granting the temporary injunction considered three ingredients namely, prima facie case, the balance of convenience, and irreparable loss. In recording the finding, the trial court found that the suit property is jointly owned by the petitioners-plaintiffs and respondents-defendants (second set). It further found that petitioners-plaintiffs granted lease in favour of the respondents-defendants (first set) to run brick-kiln which has expired on 28.11.2020, and after the expiry of the lease, the possession of respondents-defendants (first set) is illegal because suit property has not yet been partitioned and fresh lease deed has been issued by the respondents-defendants (second set) on 20.11.2020, but no lease has been executed by the petitioners-plaintiffs, therefore, possession of the respondents-defendants (first set) over the suit property is illegal after the expiry of alleged lease dated 28.11.2019. Accordingly, the trial court found that petitioners-plaintiffs have been able to make out a prima facie case.
7. The trial court found that petitioners-plaintiffs are doing agriculture and cultivation over the suit property, therefore, the balance of convenience lay in favour of petitioners-plaintiff. It further held that if respondents-defendants (first set) are permitted to excavate mud from the suit property, that will cause irreparable injury to the petitioners-plaintiffs. Accordingly, it passed the order granting the temporary injunction in favour of petitioners-plaintiffs.
8. Against the order of the trial court, respondents-defendants (first set) preferred Misc. Appeal No.23 of 2020 which was allowed by the appellate court vide order dated 20.01.2021 holding that as admittedly, a lease was executed by petitioners-plaintiffs for a period from 28.11.2019 to 28.11.2020, and respondents-defendants (first set) was in possession on account of lease granted in their favour, therefore, a six-month notice under Section 106 of Transfer of Property Act, 1882 (hereinafter referred to as 'Act, 1882') is necessary to evict the respondents-defendants (first set), and since no notice has been given by the petitioners-plaintiffs as required under Section 106 of the Act, 1882, therefore, no cause of action arose to the petitioners-plaintiffs to institute the present suit.
9. The appellate court further found that the balance of convenience also lay in favour of the respondents-defendants (first set) and they shall suffer irreparable loss if the temporary injunction is allowed to be continued. Accordingly, it allowed the appeal and set aside the order passed by the trial court vide impugned order.
10. Challenging the aforesaid order, learned Senior Counsel for the petitioners-plaintiffs has contended that the order of the appellate court allowing the appeal is per se illegal since no notice under Section 106 of the Act, 1882 is required to be given before the institution of the suit. He submits that the finding returned by the appellate court is illegal and based upon the misinterpretation of the law. He further submits that the trial court has given elaborate reason in recording a finding that petitioners-plaintiffs have prima facie case and balance of convenience lay in favour of petitioners-plaintiffs, and if the temporary injunction is not granted, that shall cause irreparable injury to the petitioners-plaintiffs.
11. It is further contended that without upsetting the finding returned by the trial court, the appellate court has acted illegally in setting aside the order of the trial court.
12. Per contra, learned Senior Counsel for the respondents has contended that evidence on record establishes that respondents-defendants (first set) are in possession of the suit property, therefore, in the absence of any prayer for a decree of possession, suit for injunction is not maintainable. He further contends that an unregistered lease deed shall be treated as the lease from month to month and the status of the lessee is that of a tenant by holding over, in such view of the fact, the status of respondents-defendants (first set) is that of the tenant by holding over and they are entitled to protect their possession.
13. Lastly, it is urged that final relief cannot be granted by way of the temporary injunction, therefore, it is submitted that the order of the appellate court does not require any interference by this Court under its supervisory jurisdiction.
14. I have considered the rival submission of the parties and perused the record.
15. The facts emanating from the record are that admittedly, suit property belongs to petitioners-plaintiffs and respondents-defendants (second set). It is also not in dispute that suit property is jointly owned by petitioners-plaintiffs and respondents-defendants (second set), and partition of the suit property has not taken place by metes and bounds. The petitioners-plaintiffs to succeed in obtaining the temporary injunction have to establish that they have a prima facie case in their favour, the balance of convenience lay in their favour, and if the temporary injunction is not granted, that shall cause irreparable injury to the petitioners-plaintiffs.
16. In the instant case, respondents-defendants (first set) state that they are in possession of the suit property since 1996. The petitioners-plaintiffs and the respondents-defendants (second set) permitted the respondents-defendants (first set) to run the brick-kiln business on the suit property for one year from 28.11.2019. Each petitioners-plaintiffs, as well as respondents-defendants (second set), permitted respondents-defendants (first set) on Rs.100/- stamp separately on 28.11.2019. The language and contents of the document granting right to use property are written on Rs.100/- non-judicial stamp and the contents of the said document are identical. It is pertinent to note that the permissive right granted by petitioners-plaintiffs by document dated 28.11.2019 is termed by respondents-defendants (second set) as the lease.
17. To consider the nature of right over the property given by the petitioners-plaintiffs on Rs.100/- stamp appearing on page no.29 of the supplementary counter affidavit of the respondent nos.1 & 2, it would be relevant to reproduce the contents of document herein below:-
"हम की सदरे आलम पुत्र सुलेमान अंसारी ग्रा० पो० सिकरौर सहबरी जिला-आजमगढ़ के निवासी है। हम अपनी जमीन को जो सिकरौर बाजार से पूरब नहर माईनर के पास सड़क से उत्तर स्थित है। उस जमीन (606) को हम श्री सुनील यादव पुत्र श्री राम अवध यादव ग्राम सिकरौर सहबरी जिला-आजमगढ़ को भट्ठा चलाने के लिए आज दिनाँक-28.11.2019 से एक वर्ष के लिए जमीन भट्ठा चलाने हेतु दे दिए। आज जिस हालत में जमीन है, हम उस हालत मे जमीन वापिस देगें। इसी लिए यह एकरार नामा लिख दिया ताकी समय पर काम आवे।"
18. The recitation in the said document is clear that permission has been granted to the respondents-defendants (first set) for one year from 28.11.2019. It further recites that respondents-defendants (first set) shall return the land in the same condition in which the land was on the date of grant of rights to the respondents-defendants (first set).
19. According to the respondents-defendants (first set), after the expiry of the aforesaid period, the respondents-defendants (second set) have separately granted fresh permission on Rs.50/- non-judicial stamp on 28.10.2020 appearing on page 35 of the supplementary counter affidavit which is reproduced herein below:-
"हम कि गुफरान अहमद व इरफान अहमद व रिजवान अहमद सुल्तान अहमद पुत्र गण पुत्रगण शमतुदीन व अन्जुम आरा पत्नी सुफियान अहमद व वसीम अनवर व असद मो० अकरम पुत्रगण सुफियान उर्फ उजमा व साफिया पुत्रीगण सुफियान अहमद ग्राम व पो० सिकरौर सहबरी, परगना माहुल, तहसील मार्टीनगंज, जिला आजमगढ़ के निवासी है। प्रथम पक्ष सुनील यादव पुत्र राम अवध यादव ग्राम सिकरौर सहबरी, पर० माहुल, तहसील मार्टीनगंज, जिला आजमगढ़-द्वितीय पक्ष हम प्रथम पक्ष द्वितीय पक्ष को स्टार स्वास्तिक स्टार ईट भट्ठा उद्योग लगाने हेतु अपनी निम्नलिखित गाटा सं० 606 रकवा-1.544 हे० मैं अपने हिस्से से 1/3 भाग पर किराये पर दिया है जिस पर द्वितीय पक्ष अपनी चिमनी व आपिस लगाकर उद्योग चला रहे है जिसकी किरायेनामा की अवधि समाप्त हो रही है। इसलिए हम प्रथमपक्ष द्वितीयपक्ष को एक वर्ष के लिए एकरारनामा कर रहे है। द्वितीय पक्ष से एक लाख रूपया जरिया चेक सं०55943 बैक सलाना के तौर पर ले रहे है। द्वितीय पक्ष अपना ईट भट्ठा उद्योग करके एक वर्ष तक चलायेगे। इसमे हम प्रथम पक्ष की कोई आपत्ति न है न ही भविष्य में होगी। यह एकरार नामा सिर्फ माह 12 हेतु ही है। अतः यह खूब सोच समझ कर स्वेच्छा से यह एग्रीमेण्ट तहरीर कर दिया गया कि प्रमाण रहे और समय पर काम आवे।
दिनांक 28-10-2020"
20. The perusal of the alleged permission granted by the respondents-defendants (second set) dated 28.10.2020 reveals that respondents-defendants (second set) have granted the right to use the suit property to the extent of their 1/3rd share in the suit property.
21. In such a factual backdrop, it is to be seen as to what is the nature of possession of respondents-defendants (first set) after the expiry of permission granted by petitioners-plaintiffs on 28.11.2019 extracted above.
22. learned counsel for the respondents contends that conditional lease was granted by petitioners-plaintiffs and respondents-defendants (second set) in favour of the respondents-defendants (first set), and even if the document is unregistered, that shall be treated as lease month to month and status of respondents-defendants (first set) is that of the tenant by holding over and in such view of the fact, they are entitled to protect their possession.
23. To test the legality of the said argument of learned counsel for respondents-defendants (first set), Court has to be prima facie satisfy at this stage that said contention of respondents has substance in law.
24. To test the bona fides of the argument of learned counsel for the respondents, it would be useful to have a glance at Section 105 of the Act, 1882 which defines the lease which is being extracted herein below:-
"105. Lease defined.--A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.--The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service, or other thing to be so rendered is called the rent."
25. Perusal of Section 105 of the Act, 1882 clearly shows that one of the ingredients for a document to be termed as a lease is that transfer of right by lesser to the lessee to enjoy immovable property must be in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the lesser by the lessee to accept the transfer of such permission. Premium and rent are also defined in Section 105 of the Act, 1882 which provides that price is called 'premium' and money, share, service, or other thing to be so rendered is called 'rent'.
26. Now, in the light of the above, this Court proceeds to consider the question as to whether permission granted by the petitioners-plaintiffs to respondents-defendants (first set) on Rs.100/- on non-judicial stamp on 28.11.2019, extracted above, is a lease or not.
27. Perusal of the said permission dated 28.11.2019, extracted above, reveals that petitioners-plaintiffs have granted permission to respondents-defendants (first set) to run the brick-kiln business on the suit property for one year w.e.f 28.11.2019, but said permission lacks essential ingredients of lease since there is no recitation in the said permission as to what is the premium or rent to be paid by the respondents-defendants (first set) to the petitioners-plaintiffs and respondents-defendants (second set) in lieu of transfer of suit property.
28. At this stage, it is also pertinent to point out that in the objection filed by the respondents-defendants (first set) to the 6-C application, there is no pleading by the respondents-defendants (first set) that they were paying any premium or rent.
29. In such view of the fact, this Court prima facie find that the permission dated 28.11.2019 being termed as 'lease' by the respondents-defendants (first set) is not a lease, hence, the contention of learned counsel for the respondents that respondents became tenant by holding over lacks substance.
30. It is pertinent to note that the question of giving notice contemplated under Section 106 of the Act, 1882 arises only when a valid lease was executed between the parties.
31. In view of the aforesaid fact, this Court finds that the appellate court has erred in holding that notice under Section 106 of the Act, 1882 was mandatory before the institution of the suit by the petitioners-plaintiffs.
32. In such view of the fact, the judgement of this Court relied upon by the learned counsel for the respondents in the case of Rahul Dixit and Another Vs. Chandra Kumar Agarwal 2019(1) ADJ 593 is not applicable in the facts of the present case.
33. This Court finds that it has come on record that respondents-defendants (first set) are in possession of the suit property, therefore, in the absence of any prayer for the decree of possession by the petitioners-plaintiffs, the suit for temporary injunction is not maintainable.
34. To test the said argument, the court is to see what is the nature of possession of respondents-defendants (first set).
35. This Court has reproduced the permission which has been granted by the petitioner-plaintiff on 28.11.2019 which reveals that it lacks ingredients of a lease as the said permission does not disclose the premium or rent which was to be paid by the respondents-defendants (first set) in lieu of transfer of possession for the enjoyment of the suit property.
36. The Apex Court in various pronouncements has held that where the nature of possession of the defendant is that of trespasser or unlawful, the plaintiff is not supposed to pray for the relief of possession, and suit for injunction is sufficient.
37. In this regard, it would be apposite to reproduce paragraphs 7 & 8 of the judgement of the Apex Court in the case of Sant Lal Jain Vs. Avtar Singh AIR 1985 SC 857 which are being reproduced herein below:-
"7. In the present case it has not been shown to us that the appellant had come to the court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.
8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licence and seek his remedy separately in case he has acquired title to property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from some one else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession."
38. Thus, in view of the discussion in the foregoing paragraphs, this Court prima facie believes that permission dated 28.11.2019 can not be termed as lease. Accordingly, the possession of respondents-defendants (first set) after the expiry of one year from 28.11.2020 prima facie does not appear to be lawful possession, therefore, in view of the judgement of the Apex Court in the case of Sant Lal Jain (supra), this Court prima facie believes that the suit for injunction is maintainable.
39. It is further pertinent to mention that judgement of the Apex Court in the case of Lalli Yeshwant Singh (Dead) Vs. Rao Jagdish Singh 1968 AIR SC 620 is not applicable in the facts of the present case as in that case, the tenant was forcefully evicted by the landlord without taking any recourse to law and in such view of the fact, the Apex Court held that tenant can maintain a suit under Section 6 of the Specific Relief Act.
40. The judgement of Apex Court in the case of East India Hotels Limited Vs. Syndicate Bank 1992 (Suppl. 2) SCC 29 is also not applicable in the facts of the present case for two reasons; firstly, there was a difference of opinion between the two Hon'ble Judges of the Apex Court as to whether the suit instituted by the bank under Section 6 of the Specific Relief Act was maintainable or not. Secondly, it was a case where the respondent bank was alleging that its eviction was forceful, therefore, the suit under Section 6 of the Specific Relief Act is maintainable for possession.
41. The instant case is not one where respondents-defendants (first set) have been evicted forcefully by the petitioner-plaintiff and are claiming possession of the property in dispute.
42. Similarly, the judgement of the Apex Court in the case of M/s. Anamallai Club Vs. The Government of Tamil Nadu and Others 1997 (3) SCC 159 is not applicable in the facts of the present case.
43. So far as the judgement of Apex Court in the case of Biswabani (P.) Ltd. Vs. Santosh Kumar Dutta and Others 1980 AIR 226 is concerned, the same is also not applicable in the facts of the present case in view of the finding returned above that the question as to whether the permission dated 28.11.2019 was a lease or not and respondents-defendants (first set) can be described as a lawful tenant can be determined at the final disposal of the suit.
44. It is pertinent to mention that it is not in dispute that property was the joint property of petitioners-plaintiffs and respondents-defendants (second set). The lease which is alleged to have been executed by the respondents-defendants (second set) in favour of respondents-defendants (first set) on 20.11.2020 also discloses that respondents-defendants (second set) have granted a lease to respondents-defendants (first set) to the extent of their share, but the description of the property which has been leased out to the respondents-defendants (first set) by respondents-defendants (second set) has not been given in the said lease deed. In the absence of any description of the property leased out to the respondent-defendant (first set) by the respondent-defendant (second set) and the property being a joint property of petitioners-plaintiffs and respondent-defendant (second set), the possession of the respondent-defendant (first set) on the strength of said lease deed prima facie cannot be said to be lawful for the reason that the property being joint property, it has to be leased out by all co-sharer and the description of the property has to be given in the lease deed specifying which portion of the property has been leased out to respondents-defendants (first set).
45. In such view of the fact, this Court finds that the petitioner-plaintiff has been able to establish a prima facie case in his favour, and in case, the respondents-defendants (first set) are allowed to run brick-kiln business and excavate mud from the suit property during the pendency of the suit, that will change the nature of the property and reduce the fertility of the land as well as it shall cause damage to agriculture which is done by the petitioners-plaintiffs over the suit property.
46. It is also pertinent to mention that excavation of mud and soil from the suit property and running of the brick-kiln business on suit property may also seriously damage the yield of the crop over the suit property and will make the land non-agricultural land which cannot be compensated in terms of money.
47. Thus, in such view of the fact, the contention of learned counsel for the respondents that no final relief at an interim stage by way of injunction can be granted based on the judgement of this Court in the case of Leela Dhar Gera and Another Vs. Special Judge (SC/ST) Act/Additional District Judge, Bareilly and Others passed in Writ Petition No.166 of 2010 is not sustainable. Accordingly, in the opinion of the Court, the aforesaid judgment is not applicable in the present case as the said judgement has been rendered in a different factual scenario.
48. The perusal of the judgement of the appellate court reveals that it has not upset the finding returned by the trial court while granting the injunction, and accordingly, for this reason also, the order of the appellate court is not sustainable.
49. Thus, for the reasons given above, this Court finds that the order of the appellate court is not sustainable in law, and accordingly, it is set aside. The writ petition is allowed and respondents-defendants (first set) are restrained from running the brick-kiln business over the suit property.
50. Considering the nature of the dispute in the present case, this Court finds that it would be appropriate to direct the court below in the interest of justice to decide the suit expeditiously without granting any unnecessary adjournment to either of the parties. In case any adjournment is inevitable, the authority concerned may grant the same by imposing a heavy cost which may not be less than Rs.1,000/-.
Order Date:- 25.7.2022 Sattyarth