Patna High Court
Union Of India (Uoi) And Ors. vs Bhubneshwar Prasad Jaduka on 20 February, 1985
Equivalent citations: 1985(33)BLJR441
JUDGMENT Satya Brata Sanyal, J.
1. These two second appeals arise out of a Common Judgment, Second Appeal No. 189 of 1975 has been preferred by the defendant Union of India whereas Second Appeal No. 211 of 1975 has been preferred by the plaintiff. This judgment will govern both the appeals.
2. The three substantial questions of law formulated in Second Appeal No. 189 of 1975 are as follows:
(i) Whether the suit premises ceased to be the property of Darbhanga Fad after vesting of the inernediary interest of the Raj in the State of Bihar and if so whether the plaintiff' a purchaser from the Raj after the vesting, had title in the suit premises ?
(ii) whether after vesting, the suit premises could be deemed to have been settled back to Raj Darbhanga under, Sec ion 5 of the Land Reforms Act=if No. whether Raj Darbhanga (vendor) could pass on any valid title to the plaintiff?
(iii) Whether the damages could be granted in favour of the plaintiff up to July 1966 when in the notice under Section 80 C. P. C. the claim was only up to August 1965?
3. In second Appeal No. 211 of 1975 the only substantial question of law formed was whether, the plaintiff is entitled to any interest on the amount of damages awarded to him by the court of appeal below and whether the lower appellate court was right in law in refusing interest, without giving any reason, on the amount of damages determined by it and giving a decree for the same in favour of plaintiff.
4. The suit instituted by the plaintiff was for the following reliefs, namely, a declaration and a decree that is entitled to compensation at the rate of Rs. 150/per month from the defendants. The total claim for money computed at Rs. 6391/. He further prayed for costs as well as future interest against them. The plaintiff based his aforesaid reliefs in the suit on the ground that on 10. I. 1961 the plaintiff purchased the suit properties also with houses, trees etc. standing thereupon in which building Bhawanipur Post Office was functioning with the permission of Raj Darbhanga. The suit plots bear Nos. 3122 and 3123 appertaining to khata No. 220. It is said that the vendor of the plaintiff Raj Darbhanga terminated the permissive possession of the Post Office by service of notice. The plaintiff could not afford to allow the said Post Office to function without payment of rent and damages, since the buildings are situated at very important business place, the monthly rent thereof can never be less than Rs. 150/ per month. The plaintiff repeatedly requested the Superintendent of Post Offices either to vacate the suit premises or to pay damages and compensation for use and occupation and even though the Superintendent of Post Offices agreed to pay compensation at the rate of Rs. 150/ per month but till date nothing had been paid for use and occupation of the said buildings. It is further said that since February 1961 the defendants are in wrongful possession of the suit property. The plaintiff after service of notice under Section 80 of the Code of Civil Procedure instituted the suit claiming damages from August 1963 to July 1966 on 29. 7. 1966, The defendants admitted the suit property by the plaintiff but they denied the right of the plaintiff to obtain damages, much less damages at the rate of Rs 150/ per month, the defendants also denied the Superintendent of Post Office's concession to pay compensation. The main defence, however, is that the land in suit appertains to old plot No. 2231 and the Raj Darbhanga was the proprietor thereof, which had a big zamindari interest at Rajdham.
It had a big cutcherry house and having felt the necessity of a Post Office the Postal department was approached by Darbhanga to open a branch Post Office there. The Postal Department accepted the proposal on being provided with a suitable permanent free building and a branch office was located in one of the rooms of the circle cutcherry in the year 1934.
In the year 1938 the present building with quarters comprising post office room, Postmaster's quarter, latrine, kitchen, form room and runner's room was constructed with some vacant land around. The said post office was upgraded to sub-Post Office on 15.8 57. Old plot No. 2231 was renumbered as H. S. plot Nos. 3122 and 3123 measuring 18 Decimals with houses and structures ; since its construction without payment of any rent to Raj Darbhanga. The property after the said construction was deemed to be the property of the Post Office and the same was never treated to be the property of Raj Darbhanga. There was no agreement that at any time in future the land in suit along with structures would revert back to Raj Darbhanga nor was there any agreement that at any time in future the Postal Department would be required to pay rent and damages for the use and occupation of the suit premises. It is contended that during the revisional survey in the remarks column inadvertently it was not shown that the post office was in possession of the structures and the rent free character of the land owner which the said structures stood. It was further pleaded that Raj Darbhanga had an intermediary interest in the suit properties which had vested in the State under provisions of the Bihar Land Reforms Act and since vesting Raj Darbhanga ceased to have any manner of right, title and interest in the suit properties, and, therefore, the purchase by the plaintiff is a bag of wind. Alternatively it was contended that the plaintiff is not entitled to any rent for use and occupation since the land, structures standing thereupon were always treated to be the property belonging to the Postal Department. Assuming that any damages and/or rent is payable, the maximum that it could fetch is Rs. 40/- per month. It has further been urged that if any damage for use and occupation is at all payable it could be only from 6. 1. 66 when the pleader's notice was served determining the permissive tenancy and not from August, 1963.
5. The court of appeal below held that Raj Darbhanga built a structure for housing Bhawanipur Post Office and the Union of India was in occupation thereof under permission from Raj Darbhanga. The house having been occupied under a permission from the owner the disputed permise must be taken to be homestead within the meaning of the Bihar Land Reforms Act. It also held that on the 3rd November, 1951, the date of notification, vesting the estate in the (Exhibit 3) Union of India occupied the suit premises under permission from Raj Darbhanga and they were not occupying the said premises on their own right. As such, Raj Darbhanga was in constructive possession of the suit premises. It was, therefore, held that the suit premises was settled back by the State of Bihar with Raj Darbanga under Section 5 of the Bihar Land Reforms Act. It also held that Raj Darbhanga having had subsisting title in the suit premises, even after its intermediary interest vested in the State of Bihar, it could confer a good title on the plaintiff by executing the sale deed on 10.1.196] (Exhibit 1). The status of the Union of India was that of a licensee and Raj Darbhanga was competent to withdraw its permission for the continuance of the post office and it correctly did so by terminating the licence of notice on 1. 11. 1960 (Ext. 2). The plaintiff was allowed a decree at the rate of Rs. 50/- per month by way of damages from Aguust 1963 to July 1966 for the use and occupation of the suit premises. The plaintiff's claim for interest on the amount of damages, however, was rejected.
6. It may be stated here that the original plaintiff died on 7. 12. 1977 leaving behind his son and widow. In Second Appeal No 211 of 1975, where the plaintiff was the appellant, both the heirs were substituted by the order dated 30. 4. 1981. In Second Appeal No. 189 of 1975, where the plaintiff was the respondent, the said appeal stood dismisse. 1 as against one of the heirs for non-compliance of a peremptory order passed by the Court on 7. 9. 82. On 17. 12. 84 the son of the deceased plaintiff was allowed to be substituted after condonation of delay. The position, therefore, remains that in Second Appeal No. 189 of 1975 the appeal stood dismissed against one of the heirs of the said respondent. .
7. When the two appeals were taken up for hearing, Mr. S.C. Mukherji, who appeared for the appellants in Second Appeal No. 211 of 1975 and for one of the substituted heirs of the respondent in Second Appeal No. 189 of 1975, raised a preliminary objection that Second Appeal No. 189 of 1975 has abated as a whole since any variance of the order of the court below would bring into conflict two decrees, one of which has become fianl so far as the widow of the deceased respondent is concerned. Mr. Aftab Alam, learned Counsel appearing for the Union of India, on the other hand, submitted that upon the death of the respondent, his son having been brought on the record in accordance with law, would be deemed to be respondent of the estate of the deceased respondent and the case would be governed by the doctrine of representation and as such there is no question of two conflicting decrees and/or abatement of the appeal as a whole. Learned Counsel for the represent in support of his proposition strongly relied on a Full Bench decision of this Court in the case of Jagarnath Singh v. Srimati Singhashan Kuer and Ors. 1984 P.L.J.R. 217. as well as the case of Daya Ram v. Shvam Sunderi ., the case of N. Joyaram Reddiv. The Revenue Divisional Officer . as well as the case of Mohammad Arif v. Allah Rabbul Alamin A.I.R. 1982 S.C. 948. Mr. Mukherji on the other hand, submitted that it is not a case where while taking steps for substitution of the heirs of the deceased sole respondent, some of the heirs were left out either by inadvertance or the whereabouts of the other heirs were not known to the party resorting to substitution. It is a case where steps for substitution of both the heirs were taken but the appeal was allowed to be dismissed as against one of the heir who had a joint interest in the decree. Therefore, the cases relied upon by the learned lawyer, Mr. Aftab Alam are of no help. According to learned Counsel, therefore, the doctrine of representation is not applicable as that would be undoing a final order of dismissal of the appeal against one of the respondents. According to learned Counsel, the order has attained finality since no steps were taken to restore the appeal as against the said person. He in support of his point relied on various decisions of this Court as well as the Supreme Court.
8. In Jagarnath Singh's case (supra) this Court had occasion to deal with the question of doctrine of representation as well as substitution or partial substitution of the heirs of a deceased party in great detail. S.K. Choudhuri, J., speaking for the Court, also dealt with the exceptions where the said doctrine of representation would be inapplicable. It was held in the said case that when one or more heirs of the deceased defendant or respondent are on record, the estate would be deemed to be fully represented in the suit or appeal as the case may be and the same will not abate for not bringing on record the other left out heirs. This principle will also apply where some of the heirs who at their own initiative got themselves on record and it would be deemed that they would be representing the entire estate of the deceased. There may also be cases where by over sight or on account of some doubt as to whether a certain person is a legal heir or left out for any other valid reason, the estate could be represented by the heirs brought on the record and the left out heirs may subsequently apply to be brought on record and there would be no question of abatement. S.K. Choudhuri, J. has, however, laid down certain exceptions to the aforeraid rule with a note of caution that this is not exhaustive of the law of exception. The said principle would be inapplicable, according to my Lord, where the heirs on record collude, where a special case could have been put forward by the left out heirs and they were prevented by opportunity to present their case and where there is an act of deliberate omis sion to include an heir while bringing the other heirs on record. The Full Bench decision of this Court takes notice more or less of all the decisions cited by the learned lawyer for the respondents. I am, therefore, not discussing them separately. In my opinion, the decisions cited are no authority for the proposition where the appeal stood dismissed against one of the legal representatives of the deceased respondent by virtue of certain deliberate omission and the order dismissing the appeal as against the said legal heir has attained finality. In N. Jayaram Reddi's case (supra) there was an appeal and a cross appeal and the parties were arrayed in a rival position. Steps were taken for substitution in the main appeal but substitution was not affected in the cross-appeal. It was held that the appeals having been heard together and not one after the other, the legal representatives of the deceased were all throughout before the Court of course in one capacity as legal representatives of the deceased appellant but not so described as the legal representatives of the deceased respondent, which, according to the Supreme Court, made no difference and as such the Government Appeal was held to have not abated. This again is a case where in the courts below no steps for substitution were taken in the appeal and the case related to an abatement under Order 22 C. P. C. The cases cited by Mr. Mukherji are all cases of abatement giving rise to two inconsistent decrees following from non-substitution of the legal heirs of the deceased party. In my opinion, even the argument of Mr. Mukherji that the widow being a co-owner cannot represent the interest of others is also not very relevant because of the view I am going to take.
9. In this case the legal representatives of the deceased were actually brought on record as required under Order 22 of the Code of Civil Procedure. Subsequently some heir was not served with notice and the appeal as against the said respondent stood dismissed by an order of this Court. Therefore, the question is not abatement of this Court. Therefore, the question is not abatement of he appeal but the competency of the appeal in the absence of that person. No other question, therefore arises as canvassed by the learned lawyers of the respective parties. A situation similar to that arose in the case of Nani Bai v. Gita Bai A.I.R. 1985 S.C. 706.. While rejecting the doctrine of representation in a situtation of that kind with reference to the provisions of Order 22 of the Code of Civil Procedure, it was observed;
If subsequently, some of the heirs thus substituted are not served, the question is not one of abatement of the suit, or of the appeal but as to whether the suit or the appeal was competent in the absence of those persons.
In the case the court held that the persons against whom the appeal stood dismissed were a necessary party or not and/or their interest was joint or not, there was no material available on the record. In that context it further observed:
The only question which may or may not be ultimately found to be material on a proper investigation, may be whether the decree to be passed would be binding on those who had not been served.
I think this principle governs the instant case. The widow of the deceased respondent obtained a decree for damages as also an adjudication in her favour that the property has not vested in the State and her husband had acquired the-property validly and it belonged to him and as a co-owner she shall have 8 annas interest in the said property. If any decree be passed in Second Appeal No. 189 of 1975 in favour of the Union of India it would not be binding on the widow as the appeal against her stands finally dismissed. This will mean two inconsistent judgments and decrees which is impermissble. Even Jayaram Reddi's case (supra), to which my attention has been drawn, is of no assistance to the learned Counsel for the respondents inasmuch as that was a case where steps for substitution were not taken and, therefore, it was merely a case of abatement of the appeal. It was not a case where the appeal stood dismissed against some of the respondents, In that view of the matter, the principle of abatement in a cross-appeal and its impact on the two appeals do not require consideration. I am, therefore, of the opinion that the appeal filed by the Union of India (Second Appeal No. 189 of 1975) is incompetent and has to be dismissed on that ground alone.
10. For appreciation of the point whether the concerned structures vested in the State under the Bihar Land Reforms Act, it has to be borne in mind that a new building was constructed by Raj Darbhanga with quarters for the staff having al provisions and requirements of a dwelling house. This has been the finding of the court of appeal below, may further be remembered that the said construction was not meant to be used by the Amlas of the State for management of the estate. The courts below have further found that the defendants have not been able to lay any material on record to show that there was an agreement that they shall be allowed to stay free of rent for and indefinite period. The court below by reference to the plaint of Title suit No. 118 of 1969 (Ext. 14) and the written statement of the Union of India in the said cafe (Ext. 15) concluded that the assertion of the present plaintiff in that suit that the Union of India was occupying the building under permissive possession was not denied. On the contray, it admitted- the plaintiffs averment to the effect. The evidence referred to by the lower appellate court in rendering the finding that the Union of India was in permissive possession is unassailable.
11. In this context the court of appeal below has also referred to the litigation between the State of Bihar and Raj Darbhanga with respect to certain plots of this particular khata No. 220 and from the certified copy of the judgment Ext. 12) in the said suit it is manifest that the plots in question were not even claimed by the State of Bihar as having vested in the State. The court of appeal below after having referred to this exhibit concluded that:
The conduct of the State of Bihar in not claiming there plot Nos. 3122 and 3123 in the aforesaid title suit is also consistent with the view that these plots were settled back with Raj Darbhanga.
12. Mr. Aftab Alam referring to a Full Bench decision of this Court in the case of Mosst. Bibi Sayeeda v. State of Bihar 1985 P.I.J.R. 66., strenuously urged that the question whether the concerned constructions are a dwelling house is the core of the matter. If it is not, the question of its being retained by the ex-intermediary be deemed settlement under Section 5 will not at all arise. It is true that in the case of Bibi Sayeeda it was held that the dominant idea of a homestead must be "for the purpose of dwelling or be capable of being used as a dwelling house and not for any other purpose in order to constitute a building as homestead." In the said case the question was whether the Patna Market has vested in the State of Bihar and the court held that the building in question fall in the category of hat or bazar as envisaged under Section 7-A and. therefore, they vested absolutely in the State. This is not the position in the instant case. From the finding of the court of appeal below it appears that there ai e a number of buildings, some of which are purely for dwelling purposes with kitchen and other ancillaries along with the main building where the post office is to carry on its business. In the case of Kanpur Sugar Works Ltd, v. State of Bihar and Ors. ., It was clearly laid down that not only the dwelling house is homestead, but also garage, kitchen, clubs dispensary, office building, godown, water tank, cattle shed and way bridge would be also a homestead. Even the building where the post office is situated can be used for dwelling purposes, here being kitchen and latrine available therefore in the same compound. I, therefore, do not find any substance in the argument of learned Counsel that the building in question is not a homestead within the meaning of Section 2 (j) of the Bihar Land Reforms Act.
13. The next question is whether Raj Darbhanga having permitted the post office and its staff to carry on their business and stay in the said building without charging any rent can take the benefit of Section 5 of the Act. To my mind this question is no longer res integra in view of the decision of the Supreme Court in the case of Brij Kishore Prasad Singh v. Jaleshwar Prasad Singh .. The Supreme Court in this case drew a distinction between the word possession in Section 5 and the words khas possession under Section 6 of the said Act. After having compared the meaning of the two expressions, it held with reference to the word possession in Section 5 that it would mean constructive possession as well. 1 am, therefore, absolutely clear in my mind that Raj Darbhanga was in constructive possession of the property in question by permitting the post office to operate from the said building. Non-charging of rent from the post office is wholly irrelevant for the decision of the question whether the construction in question vested in the State of Bihar. I, therefore, find that the lower appellate court has taken the correct view in this case that the plaintiff acquired valid title from Raj Darbhanga by his purchase in the year 1961 and he had perfect title to the said property which entitled him to recover possession and claim damages. Mr. Aftab Alam did not press any other point in support of his appeal. Therefore, I am not called upon to decide question No. 3 framed by this Court at the time of the admission of the appeal.
14. Now coming to the appeal of the plaintiff (second Appeal No. 221 of 1975), the only question 1 am called upon to decide is whether the plaintiff is entitled to any interest on the amount of damages awarded by the court of appeal below. Mr. Mukherji appearing for the plaintiff, however, wanted to assail the quantum of damages awarded by the lower appellate court but I refuse to consider the said question in view of the question framed at the time of the admission of the appeal and I see no good reasons to deviate from the said substantial question. In the plaint the plaintiff claimed interest on the amount of damages from August 1963 to July 1966, pendente lite interest as well as further interest till the realisation of dues. It is true that the court of appeal below has not given any reasons for not allowing any interest whatsoever. I do not think that the plaintiff is entitled to any interest prior to the date of the institution of the suit as the plaintiff had not been able to prove contract for the same. But I fail to understand why the plaintiff shall not be entitled to any interest from 29.7. 1976 that is, the date of the institution of the suit till realisation of the dues. I so order because the defendant Union of India's stand throughout has been that the property belonged to Raj Darbhanga and as a matter of fact the Subdivisional Officer determined fair rent at the rate of Rs. 150/- per month but the court of appeal below after considering the various circumstances allowed damages at the rate of Rs. 50/- per month. I, therefore, allow the appeal to the extent that the plaintiff shall be entitled to interest pendente lite as well as from the date of the decree till realisation of the dues at the rate of nine percent per annum, the prevailing rate of interest being twelve to fifteen per cent.
15. In the result, second Appeal No. 189 of 1975 is dismissed with costs. Hearing fee Rs. 500/-. Second Appeal No. 211 of 1975 is allowed with costs. No. separate hearing fee is assessed because both the appeals were heard together.