Himachal Pradesh High Court
Sham Lal vs Smt. Mathi on 24 December, 2001
Equivalent citations: AIR2002HP66
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.J. Khurana, J.
1. The appellant before this Court is the defendant. He is aggrieved by the judgment and decree dated 22-9-1994 of the learned District Judge. Shimla, affirming the judgment and decree dated 6-3-1990 of the learned Sub-Judge, 1st Class (4). Shimla.
2. The subject matter of the dispute between the parties comprises of a two sto-reyed house and a single storeyed kitchen located in the land measuring 3 biswas comprising in khasra No. 369J, khewat No. 3 and khatauni No. 4 in village Chhakrall, Pargana Majhola. Tehsil and District Shimla, hereinafter referred to as the property in dispute.
3. Smt. Mathi and Smt. Sunehroo daughter of Parsu, claiming themselves to be the owners of the property in dispute filed a suit for possession of the properly in dispute on the allegations that the defendant was coming in possession thereof since 1968 without any right, title or interest therein. They also claimed raesne profits/damages/compensation amounting to Rs. 500/- for the use and occupation of the property in dispute by the defendant at the rate of Rs. 15/- per month.
4. The defendant while resisting the suit asserted that he was coming in possession of the property in dispute under an agreement dated 14-8-1965 that previously also a suit was filed against him. being Civil Suit No. 31-1 of 1969 for possession of the property in dispute by way of his ejectment on the allegations that he was a tenant in respect of the property in dispute. In such suit the plea taken by the defendant was that the property was let out to him along with some agricultural land. No independent tenancy qua the property in dispute was created. Such suit was dismissed. It was further pleaded that the suit was barred by principle of res judicata as well as under Order 2. Rule 2, Code of Civil Procedure. An objection as to Jurisdiction of Civil Courts was also raised.
5. On the pleadings of the parties, following Issues were framed by the learned trial Court :--
1. Whether the plaintiff is entitled to the possession of the suit land as alleged? . . . OPP.
2. If Issue No. 1 is decided in affirmative then whether the plaintiff is entitled to mesne profits of Rs. 500/-? . . . OPP.
3. Whether the suit is barred by res judicata ? . . . OPD.
4. Whether the suit is barred under Order 2, Rule 2, C. P. C. as alleged? . . . OPD.
5. Whether the Civil Court has no jurisdiction to entertain the present suit as alleged? . . . OPD.
6. Relief.
6. Be it stated that Smt. Sunehru one of the plaintiffs abovenamed died on 13-1-1987 during the pendency of the case in the courts below. The surviving plaintiff Smt. Mathi was her only legal heir who had succeeded to the estate of the deceased. Therefore, in terms of Order 22, Rule 2. Code of Civil Procedure, the suit proceeded at the instance of the surviving plaintiff Smt. Mathl.
7. The learned trial Court found Issues Nos. 1 and 2 in favour of the plaintiff and issues Nos. 3 to 5 against the defendant. Consequent upon such findings the suit of the plaintiff for possession and recovery of mesne profits to the tune of Rs. 500/- was decreed vide judgment and decree dated 6-3-1990. The appeal carried by the defendant before the learned District Judge was dismissed on 22-9-1994. The learned District Judge agreed with the findings of the learned trial Court on all the issues.
8. The present second appeal was ad-mitted for hearing on 22-3-1995 on the following substantial questions of law :--
1. Whether a subsequent suit for possession on the basis of title is barred by principle of resjudicata when earlier suit on the basis of tenancy stands finally dismissed with regard to suit property?
2. Whether the plea available to plaintiff in the earlier suit is not taken, is barred by the provisions of Order 2, Rule 2. Code of Civil Procedure?
3. Whether a person put in possession in part performance of an agreement can be ousted by the owner who has inducted him under Section 53-A of the Transfer of Property Act?
4. Whether civil court has no jurisdiction in case defendant is found to be inducted as tenant in agricultural land along with house mentioned in the suit being agricultural house thereon?
9. I have heard the learned counsel for the parties and have also gone through the record of the case.
Question No. 1.
10. Admittedly, the plaintiff had earlier filed a suit, being Civil Suit No. 31/1 of 1969, for possession of the property in dispute by way of ejectment of the defendant and for recovery of rent of Rs. 210/-. It was averred In said suit that the defendant was Inducted as a tenant qua the property in dispute in January, 1968. Ex. D-2 (DX) is the copy of the plaint in such suit, while Ex. D3 (DY) is the copy of written statement filed by the defendant in the said case. The case set up by the defendant therein is the same as has been set out in the present case to the effect that the property in dispute forms part and parcel of the agricultural tenancy. Ex. D1 is the copy of judgment dated 31-12-1975 of the Senior Sub Judge. Shimla, passed in the said suit. While dismissing the suit, it was held under Issues Nos. 3 and 5 in the said case to the following effect :--
(a) The plaintiff had failed to prove that the property in dispute was let out to the defendant. Therefore, the defendant was not held to be a tenant under the plaintiff qua the property in dispute.
(b) The defendant was put into possession of the property in dispute by the plaintiff in pursuance of the agreement dated 14-8-1965 (Ex. DA in the said case).
11. In the said suit, a plea was also raised by the plaintiff that even if the tenancy in favour of the defendant was not established, the plaintiff was entitled to possession of the property in dispute on the basis of better title. Negativing such plea, it was observed by the learned Senior Sub Judge, as under :--
"I hold that the plea of the learned counsel for the plaintiff's that even if the plaintiffs fail to establish the alleged tenancy of the house, the plaintiffs having a better title should be put in possession of the house is not well founded as the defendant having come in possession of the property of the plaintiffs in pursuance of a valid contract, Copy Ex. DA, has every right to continue in its possession and this fact furnishes a complete defence to the action commenced by the plaintiffs on the strength of their title."
12. It is admitted case of the parties that the plaintiff had gone in appeal before the learned District Judge, Shimla, being Civil Appeal No. 13-S/13 of 1976 against the dismissal of the suit vide judgment Ex. D-1. It is also admitted that such appeal was dismissed on 22-7-1977 as having been withdrawn. The certified copy of the order dated 22-7-1977 was tendered into evidence by the defendant and the same is available on the record of the learned trial Court at page No. 168. though the exhibit mark thereon is not decipherable. Consequent upon the dismissal of the appeal as having been withdrawn, the judgment dated 31-12-1975, Ex. D1, of the learned Senior Sub Judge, Shimla, in the earlier suit between the parties, being Suit No. 31/1 of 1969 became final between the parties. In such suit the status in which the defendant is in possession of the property in dispute stood finally settled and as such is not open to be reagitated in the present suit. The same operates as res judicata between the parties.
13. In view of the judgment Ex. D1 it is not open to the plaintiff to aver that defendant is in unauthorised possession of the property in dispute since the defendant has been held to be in possession under a valid agreement dated 14-8-1965. Similarly, It is also not open to the defendant to re-agitate that the property in dispute is part and parcel of the agricultural tenancy created by the plaintiff in his favour. Therefore, the present suit as framed, on the face of it, would be barred by principles of res judicata. Question No. 1 is answered accordingly.
Question No. 2.
14. The case of the defendant is that the relief for possession of the property in dispute on the ground putforward by the plaintiff in the present case was available to her at the time of filing of the earlier suit No. 31/1 of 1969. Such a relief could have been claimed in the alternative. On the failure of the plaintiff to claim the relief in the earlier suit, the present suit is barred under Order 2, Rule 2, Code of Civil Procedure.
15. It is well settled that it is the "cause" which gives occasion to and forms the foundation of the suit. The test for finding out whether the subsequent suit would be barred because of an earlier suit is --whether the claim in the subsequent suit is, in fact, found on a cause of action distinct from that which was in foundation of the former suit. 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.
16. Reading the plaint of the present case and that En the earlier suit (Ex. U2) it is evident that the two suits are based on different causes of action. Therefore, the bar under Order 2, Rule 2. Code of Civil Procedure, would not apply in the present case. The question is answered accordingly.
Question No. 3.
17. Section 53-A, Transfer of Property Act, 1882. provides :--
"Part performance :--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty :
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract.
and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed, therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract :
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
18. The conditions necessary for making out the defence of part perform to an action brought by the owner for possession of the property are :
(i) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
(ii) that the transferee has in part performance of the contract taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract;
(iii) that the transferee has done some act in furtherance of the contract; and
(iv) that the transferee has performed or is willing to perform his part of the contract.
A person seeking protection of doctrine of part performance as enunciated in Section 53-A of the Transfer of Property Act has thus to plead and prove inter alia that he has in part performance of the contract taken possession of the property or any part thereof and in case he was already in possession, he continues to be in such possession in part performance of the contract and has done some act in furtherance of the contract. In addition he has also to allege and prove that he has performed or is willing to perform his part of the contract. Now these pleas do involve questions of fact and if they had been raised by the defendant before the trial court, it was open to the plaintiff to counteract them by pleading and proving that the defendant had not taken possession of the property in part performance of the contract or if he was already in possession, he had done no act in furtherance of the contract and that the defendant had neither performed nor was willing to perform his part of the contract. In the abse'nce of such pleas having been raised by the defendant, the plaintiff had been allowed no opportunity to counteract such pleas and under the circumstances if the defendant-appellant is now allowed for the first time In this second appeal to raise such pleas it would certainly amount to providing a handicap to the opposite party. The plea that the defendant is protected by the doctrine of part performance, therefore, cannot be allowed to be raised at this stage.
19. In the present case no case seeking protection under Section 53-A, Transfer of Property Act, 1882 was set up by the defendant in his written statement. Nor such a plea was raised before the first Appellate Court. The plea is sought to be raised for the first time before this Court in second appeal. Being pleas Involving questions of fact, cannot be permitted to be raised for the first time in the present second appeal.
20. In Sallajananda Pandey v. Lakhichand Sao. AIR 1951 Pat 502, a suit was filed by the plaintiff therein for possession of the land on the averments that the defendant had taken wrongful possession thereof. The defendant while resisting the suit pleaded that he was holding the suit land as part of 46 Blghas of coal bearing land in the village pursuant to an unregistered grant. A plea as to protection under Section 53-A, Transfer of Property Act. 1882 was so sought to be raised for the first time tn second appeal before the High Court. It was held that the plea of protection under Section 53-A. being question of fact ought to have been raised before the trial Court and put in Issue.
21. To the similar effect it has been held by this Court in Sohan Singh v. Gulzari, 1996 (2) Sim LC 95 : (AIR 1997 Him Pra 12).
22. The question, therefore, does not arise in the present appeal on the failure of the defendant to raise the same before the trial Court by way of necessary pleadings.
Question No. 4.
23. This question also does not arise since the defendant has not been found to be a tenant in respect of agricultural property. The present suit as framed is a suit for possession based on title which is cognizable by a Civil Court,
24. As a result of the above findings, the present appeal is allowed. The judgments and decrees of the two courts below are set aside and the suit of the plaintiff is dismissed leaving the parties to bear their own costs.