Allahabad High Court
Prag Prasad And Another vs Bal Kishun on 28 April, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED
Case :- SECOND APPEAL No. - 944 of 1978
Appellant :- Prag Prasad And Another
Respondent :- Bal Kishun
Counsel for Appellant :- S.K.Mehrotra,A. Verma,Ashok Kumar Srivastava,D.C.Mukharji,N.K. Srivastava,S.M.K.Chaudhary,Vivek Tripathi
Counsel for Respondent :- S.P.Pathak,D.K.Pathak,Shailesh Kumar Pathak,Shobhit Mohan Shukla
*****
Hon'ble Jaspreet Singh,J.
1. Heard Shri Vivek Tripathi, learned counsel for the appellants and Shri Arun Kumar Pandey holding brief of Shri Shobhit Mohan Shukla, learned counsel for the respondents.
2. The instant second appeal arise out of the judgment of reversal passed by the First Additional District Judge, Sultanpur dated 20.09.1978 in Civil Appeal No.257/1977 reversing and setting aside the judgment and decree of the Civil Judge, Sultanpur dated 12.05.1977 passed in Original Suit No.19/1969, as a result, a suit for cancellation of a sale-deed and mandatory injunction which was dismissed by the trial Court was partially allowed by the lower Appellate Court granting a decree of cancellation but refusing the relief for mandatory injunction.
3. Being aggrieved against the said judgment passed by the lower Appellate Court dated 12.05.1977, the defendants have preferred the instant second appeal which was admitted by this Court on 27.10.1978, however, no substantial question of law was framed.
4. This Court heard learned counsel for the parties over a period of few days and since the appeal was very old, hence, the instead of hearing on formulation of substantial question of law and then postpone the matter for hearing this Court with the consent of the parties formulated the substantial question of law upon which the parties have been heard and noticed in the later part of the judgment.
5. The brief facts giving rise to the instant second appeal are as under:-
6. The plaintiff namely Bal Kishun had instituted a suit for cancellation of the sale-deed which was executed by his son Ram Lakhan in favour of Shiv Shankar dated 17.08.1968. The case set-up by the plaintiff was that the property in question which is part of Plot No.1344 belonged to one Shri Tribhuwan Nath @ Sanda, who was the owner of the said land, the plaintiff Bal Kishun along with his two brothers namely Shrikrishan and Radhey Krishna had taken the land on lease whereupon the plaintiff along with his three brothers had raised the constructions. After the death of the father of the plaintiff and his brothers, a settlement took place and the property in question was mutually divided and the western portion of the said property fell in the share of Bal Kishun, the plaintiff. Whereas the eastern portion fell in the share of Shrikrishan and the middle portion came in the share of Radhey Krishna. Accordingly, the share of the plaintiff Bal Kishun was 11 x 80 ft.
7. It was also pleaded that the plaintiff was primarily residing at his native village and his son Ram Lakhan was residing in disputed house in question. However, the defendant No.2, who is the father of the defendant No.1 by resorting to misrepresentation and fraud surreptitiously got the sale-deed executed from Ram Lakhan in favour of the defendant No.1 whereas Ram Lakhan had no right or title to execute the sale-deed nor any consideration was paid for the said sale. Thus, the sale-deed said to have been executed by Ram Lakhan was liable to be cancelled.
8. The suit came to be contested by the defendants, who clearly pleaded that Ram Lakhan was residing in the said premises while the defendant No.2 negotiated to purchase the house, but it was in the presence of Bal Kishun who was aware of it and had never objected at any point of time. The defendants had purchased the property for a valuable sale consideration of Rs.6,000/- which was paid to Ram Lakhan and it was also pleaded that since Bal Kishun was residing in Village Murui and it was Ram Lakhan, who was residing in the premises and in possession continuously and from the said place he was also doing business, hence, for all practicable purpose he had held out to the entire world that he was the owner and competent to execute the sale-deed. It was also pleaded that Ram Lakhan also had another house on the opposite side of the road and after executing the sale-deed he had shifted to the said house. The defendants after purchasing the disputed house in question had also made improvements and this was also in the notice of the plaintiff, yet no objection was raised and it is only later when the intention of the plaintiff become bad that he instituted a suit and that too without impleading his son Ram Lakhan as a party and thus for all the reasons the suit was not maintainable and was liable to be dismissed.
9. The trial Court upon exchange of the pleadings framed ten issues. However, the main issues upon which the trial was contested was (i) whether the plaintiff is the owner of the house in dispute and it was constructed by him as alleged in Paragraph-10 of the plaint, if so its effect. (ii) Whether Ram Lakhan vendor of the defendant No.1 had a right to transfer the disputed house and execute the sale-deed as alleged by the defendants, if so its effect. (iii) Whether Bal Kishun, the plaintiff was present at the time of talks going on in respect of sale of the disputed house between the defendant and the vendor, if so its effect. (iv) Whether the defendants after the impugned sale-deed raised further constructions within the knowledge of the plaintiff and the plaintiff never raised any objections and the suit is barred by the principles of estoppel and acquiescence, if so, its effect. (v) Whether the plaintiff is entitled to the relief of possession as alleged in Paragraph-28 of the written statement, if so, its effect.
10. The parties led their respective evidence and the trial Court recorded a finding that the plaintiff Bal Kishun was not the owner of the disputed house and it also recorded a finding that Ram Lakhan had a right to transfer the house in favour of the defendants. It also returned a finding that Bal Kishun was present at the time the talks were going on for the sale of the house between Ram Lakhan and the defendants. The trial Court also concluded that after the purchase of the disputed house, the defendants raised further construction which was never objected by the plaintiff and the suit was barred by the principles of estoppel and acquiescence and in light of the aforesaid findings it was held that the plaintiff was not entitled to any relief and the suit came to be dismissed by means of the judgment and decree dated 12.05.1977 passed by the Civil Judge, Sultanpur.
11. The plaintiff preferred a regular civil appeal under Section 96 CPC which came to be allowed partially by the first Additional District Judge, Sultanpur by means of the judgment and decree dated 20.04.1978. The lower Appellate Court reversed the findings of the trial Court and granted decree of cancellation of the sale-deed dated 17.08.1968, however, it refused the relief of mandatory injunction specifically holding that there was no prayer for possession and without possession, a decree of mandatory injunction was infructuous.
12. Being aggrieved against the aforesaid judgment passed by the lower Appellate Court dated 20.09.1978 the defendants have come up before this Court in second appeal.
13. Learned counsel for the parties were heard for the purpose of formulation of the substantial question of law. Since, at the time of admission in the year 1978, the appeal was admitted but the substantial questions of law were not framed, accordingly; the following substantial questions of law arise in the instant second appeal:-
(a) Whether the lower Appellate Court erred in ignoring the evidence on record which clearly established that Bal Kishun was aware of the entire negotiation relating to the sale of the disputed house.
(b) Whether the defendants were entitled to the benefit of being a bonafide purchaser for valuable consideration without notice and was protected in terms of Section 41 of the Transfer of Property Act.
(c) Whether the lower Appellate Court was justified in granting the relief of cancellation of a sale-deed where the consequential relief was refused with a specific finding that the possession was not with the plaintiff and this being indirectly a declaration, which in absence of a consequential relief would be barred by the proviso appended to Section 34 of the Specific Relief Act.
14. Learned counsel for the parties agreed that no other substantial question of law is involved and they have made their submissions in light of the aforesaid substantial questions of law and with their consent, the Court has heard learned counsel for the parties on the merits of the appeal.
15. Before proceeding any further, it will be relevant to notice that the original plaintiff as well as the original defendants No.1 and 2 both have died. The legal heirs of the deceased respondents are on record and are represented by Shri Shobhit Mohan Shukla and Arun Kumar Pandey, learned counsel for the plaintiff-respondents whereas Shri Vivek Tripathi appears for the legal heirs of the defendants-appellants. Another development which has taken place during pendency of the instant appeal is that the legal heirs of the defendants-appellants namely Amit Kumar, Priyanka Kumari and Varsha Rani, children of Shiv Shankar transferred the said disputed house in favour of Izhar Ahmad son of Sarfaz Ahmad through sale-deed dated 16.11.2011. Later Shri Izhar Ahmad also transferred the said house in favour of Smt. Hasina Bano through registered sale-deed dated 16.11.2011 and it is now Smt. Hasina Bano who is in possession and she has moved an application bearing C.M. Application No.21/2022 dated 14.12.2022 through her counsel Shri Shailesh Kumar Pathak for impleadment.
16. The Court has heard the learned counsel for the parties on the application for impleadment and considering the controversy involved and noticing that the case of third party transferee is covered by Section 52 of the Transfer of Property Act and the children of the original defendants-appellants are already before the Court and are represented by Vivek Tripathi, learned counsel, accordingly, the outcome of the appeal shall needless to say will bind Smt. Hasina Bano even though she herself is not a party.
17. Having considered the submissions of the learned counsel for the respective parties and from a perusal of the material on record, the undisputed facts are that in respect of the disputed house in question whether it relates to Bal Kishun or his son Ram Lakhan, there is no documentary evidence for tracing the original title. The parties may have led certain documentary evidence but looking at the controversy which is engaging the attention of the Court in appeal, the said documentary evidence is of not much relevance as it relates to certain revenue entries. However, the only documentary evidence worthy of consideration is the impugned sale-deed dated 17.08.1968.
18. The record would primarily indicate that the trial Court had framed expressive issues and noticing the oral evidence led by the parties, the trial Court recorded a finding of fact that Bal Kishun was not the owner and the property belonged to Ram Lakhan. It also recorded a finding that Bal Kishun was aware of the entire negotiation in respect of the sale of the disputed house and even though the defendants were in possession of the disputed house and made improvements after purchase of the said house yet it was not objected by the plaintiff and in the aforesaid circumstances, the suit came to be dismissed.
19. From a perusal of the judgment passed by the lower Appellate Court, it would reveal that the lower Court has also come to a conclusion that the parties did not lead any worthy documentary evidence and the matter turned on the oral evidence led by the parties. It is thereafter that the lower Appellate Court taking note of the evidence led by both the plaintiff and the defendants reversed the findings and also noticed that since the house did not belong to Ram Lakhan but was of Bal Kishun, accordingly, the decree of cancellation was passed but at the same time the decree of mandatory injunction was refused specifically noticing that the plaintiff was not in possession.
20. Taking note of the aforesaid findings which categorically refused a relief sought by the plaintiffs-respondents seeking a decree of mandatory injunction and holding that the plaintiff was not in possession and though the second appeal was filed and the plaintiff-respondents did not file any cross appeal or cross objection in terms of Order 41 Rule 22 CPC against the said adverse finding. This Court would also be required to look into the effect of this finding which is against the plaintiff and that it has not been assailed since 1978.
21. In the aforesaid backdrop, it may first be noticed that admittedly the plaintiff was not in possession and a finding was also returned to the aforesaid effect by the lower Appellate Court while it refused the relief for mandatory injunction. Order 41 Rule 22 CPC which was amended in 1976 enabled a respondent in an appeal to assail any finding or an issue which may have been decided against him even though the ultimate suit or appeal, as the case may be, is in favour of such a respondent.
22. In the instant case, though the appeal was partially allowed in favour of the plaintiffs-respondents while the defendants approached this Court in second appeal yet the plaintiffs-respondents did not file any cross objection or cross appeal against refusal of relief of mandatory injunction including the findings that the plaintiff was not in possession.
23. It will also be pertinent to notice that Order 41 Rule 22 CPC also prescribes a limitation i.e. the cross objection must be filed within thirty days from the date, a copy of the appeal is served on the respondents. The said cross objection not having been filed in the instant case and thus the said findings against the respondent herein remain intact and this Court now proceeds to consider the entire controversy on the facts as noticed above.
24. At the very outset, it may be noticed that one Bal Kishun had instituted a suit for seeking cancellation of the sale-deed which was executed by his own son Ram Lakhan in favour of Shiv Shankar. The suit was instituted seeking cancellation of the sale-deed executed by Ram Lakhan with the allegation that he did not have right to sell the property yet he was not impleaded as a party in the suit. In the facts of the case, it was incumbent upon Bal Kishun to have impleaded Ram Lakhan as a party. Even though Bal Kishun did not implead his son as a party yet in the evidence it was clearly demonstrated that there was no animosity between Bal Kishun and Ram Lakhan and for the said reasons at least he should have been produced as a witness but even that was not done.
25. The allegation in the plaint was primarily two fold that Ram Lakhan did not have title and that no sale consideration was received. Insofar as the issue regarding receipt of sale consideration is concerned, the same at best could have been proved only if Ram Lakhan entered into the witness box to make a statement that he did not receive it. A registered sale-deed which is impugned was on record which categorically notes that a sum of Rs.6,000/- was paid and it was received by Ram Lakhan for his business purpose and, therefore, prima-facie the contents of the deed had sanctity and it could not have been brushed aside merely on the basis of the statement of the plaintiff, who was not admittedly a party to the said deed. Moreover the person, who was the author and executant of the said deed would be the best person to state whether he received or not received the said consideration but he never appeared in the witness box and in the aforesaid circumstances an adverse inference ought to have been drawn against the plaintiff as he did not implead his son nor produced him as a witness, but this aspect of the matter was not appropriately considered by the lower Appellate Court.
26. There is another way to look at the issue involved and that is admittedly the case of the plaintiff Bal Kishun that he had taken the land of the disputed house along with his two brothers from the erstwhile Zamindar Shri Tribhuvan Nath and thereafter they had raised their construction and it was divided amongst three brothers and Bal Kishun is said to have received western portion which is not disputed. From a perusal of the evidence on record, another fact which can be seen is that at the time when the land was taken from Shri Tribhuvan Nath and the house was constructed, Ram Lakhan was a minor. Later at subsequent point of time, it was a fact admitted to Bal Kishun that he was primarily residing in the native village and Ram Lakhan was residing in the disputed house exclusively and was doing his business and Bal Kishun used to visit Ram Lakhan occasionally. This would also have been to be seen in context with the fact that the disputed house was not located within the municipal limit and as such there was not much documentary evidence to indicate that who was the owner of the said house. Even Bal Kishun could not establish any document by virtue of which he had received the said land on lease from Shri Tribuhuvan Nath, the erstwhile Zamindar, but nevertheless since they have been in possession for long time, therefore, it is treated to be the property belonging to Bal Kishun.
27. In the aforesaid backdrop, if the statement of the defendant is seen, he has categorically pleaded and stated before the Court on oath that he had made necessary inquires and it revealed that Ram Lakhan was the owner, who was in possession and was doing business from the disputed house. It is also stated in the testimony that the defendant used to come to the market twice a week and always found Ram Lakhan to be there and he also projected and held out himself to be the owner in possession. There is clear statement of the defendant on oath that he negotiated with Ram Lakhan and on some occasions even Bal Kishun was present and this could not be disputed. Bal Kishun also did not raise any objection to the negotiation and he allowed his son Ram Lakhan to go ahead which finally culminated in the sale-deed and the transaction was concluded after the sale consideration was received by Ram Lakhan and the sale-deed was executed in favour of the defendant and he was put in possession.
28. Another relevant fact is that upon selling the house, Ram Lakhan shifted to another house which was on opposite side of the road and in this entire period, after the defendant purchased the house, he had also made improvments in the disputed house and during this time even though Bal Kishun had visited his son Ram Lakhan, who had by now shifted in the other house across the road and also noticing that the defendants was in possession of the disputed house and was carrying out the necessary improvements did not object to the same. These facts go a long way to establish the conduct of the parties and it is in this context Section 41 of the Transfer of Property Act needs to be noticed, which read as under:
"Section 41. Transfer by ostensible owner.--Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
29. It is in light thereof that the defendants had also taken a plea that they are the bonafide purchasers for valuable consideration without notice. The said plea along with the plea of estoppel and acquiescence is to be seen in light of Section 41 of the Transfer of Property Act. Admittedly, Bal Kishun did not initiate any action against his own son. Even assuming the son had executed the sale-deed by resorting to fraud even then it was incumbent upon Bal Kishun to have pleaded the said facts with particulars in terms of Order 6 Rule 4 CPC. However, in this light, if the plaint is seen, it would indicate that certain grounds had been taken in Paragraph 10 of the plaint for seeking cancellation which primarily relates to title and if that was the core issue then it was necessary for Bal Kishun to have impleaded his son Ram Lakhan as a party and even though if he was not ready to file the suit as co-plaintiff but he could have been impleaded as a defendant, but it has not been done. There is evidence to the effect that there was no animosity between Bal Kishun and his son Ram Lakhan and for the said reason it becomes more imperative to notice the circumstances that where the son has executed the sale-deed which is being challenged by the father on the basis of title that too without impleading the son or even without producing him as a witness which raises question on the conduct of both father and son and in the aforesaid circumstances, the plea of Section 41 of the Transfer of Property Act assumes significance.
30. The lower Appellate Court has primarily focused on the issue of title of Bal Kishun but even while holding that Bal Kishun had the title nevertheless, in light of the pleadings as well as the evidence on record, it was incumbent upon the lower Appellate Court to have tested the plea of Section 41 of the Transfer of Property Act in its correct perspective which has been ignored.
31. During pendency of the instant appeal, another factual aspect which occurred of which this Court has taken note is that upon the death of Bal Kishun, the disputed house in question devolved on Ram Lakhan even then in case if Ram Lakhan had executed the sale-deed at a point of time when he allegedly did not have title and subsequently the title has vested in him in light of the death of Bal Kishun, hence, Ram Lakhan would be bound by the principles of acquiescence and estoppel as Ram Lakhan could not ignore or deny the execution of sale-deed and the receipt of the sale consideration.
32. The plea raised by the defendant regarding Section 41 of the Transfer of Property Act and that the defendant was a bonafide purchaser for valuable consideration was established from the evidence on record. The Apex Court in Hardev Singh v. Gurmail Singh (dead) By LRs., (2007) 2 SCC 404 has considered the applicability of Section 41 of the Transfer of Property Act and in Paragraphs 7 to 16 has held as under:-
"7. Although, in this appeal we are not concerned with the applicability of Section 41 of the Act, with a view to appreciate the rival contentions raised by the parties we may notice the provisions of both Sections 41 and 43 of the Act, which are as under:
"41. Transfer by ostensible owner.--Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it:
Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
* * *
43. Transfer by unauthorised person who subsequently acquires interest in property transferred.--Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
8. The distinction between the said two provisions is apparent.
9. Application of Section 41 of the Act is based on the law of estoppel to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained, he could not question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.
10. The ingredients of Section 41 of the Act are:
(1) the transferor is the ostensible owner;
(2) he is so by the consent, express or implied, of the real owner;
(3) the transfer is for consideration;
(4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
11. Section 43, on the other hand, embodies a "rule of feeding the estoppel" and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts thereupon and it is immaterial whether the transferor acts bona fide or fraudulently in making the representation. (See Jumma Masjid v. Kodimaniandra Deviah [AIR 1962 SC 847 : 1962 Supp (2) SCR 554] .)
12. In order to get the benefit of the said provision, the conditions which must be satisfied are:
(1) the contract of transfer was made by a person who was competent to contract; and (2) the contract would be subsisting at the time when a claim for recovery of the property is made.
13. However, the provisions would have no application if the transfer was invalid as being forbidden by law or contrary to public policy, as envisaged under Section 23 of the Contract Act. Thus, no estoppel can be pleaded contrary to the provisions of a statute. The "rule of feeding the estoppel" shall apply in absence thereof.
14. The doctrine of feeding the estoppel envisages that "where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel".
15. The principle is based on an equitable doctrine that a person who promised to perform more than he can perform must make good his contract when he acquires the power of performance. The difference between the ambit of Sections 41 and 43 of the Act is apparent. Whereas Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised therefor, subject to the condition that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit thereof is claimed by him. Section 43, on the other hand, enables the transferee to whom a transferor has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for value without notice is in effect.
16. With the aforementioned propositions in mind, we may notice that the High Court has declined to grant any relief to the respondent herein in terms of Section 41 of the Act, inter alia, on the premise (1) that Harcharan admitted that he had sold the property to the respondent in order to frustrate the claim of Udham Kaur; (2) a public notice was not given; and (3) that the respondent knew regarding the pending litigation, and it was for the respondent to show that he had no knowledge about the litigation."
33. It is taking an overall view of the facts and circumstances including the evidence, this Court is of the clear opinion that the lower Appellate Court has not appreciated the oral testimony in the correct perspective and as such the findings recorded only for cancellation of the sale-deed based on the fact that Ram Lakhan did not have the title but simultaneously failed to consider the plea of Section 41 of the Transfer of Property Act and it has given rise to a wrong conclusion and now when Bal Kishun has expired during pendency of this second appeal and Ram Lakhan stands impleaded in his place, hence, the sale-deed stands protected as Ram Lakhan could not assail or deny the execution of the sale-deed and receipt of sale consideration.
34. There is another issue which is involved in the present case and that is the plaintiff had filed a suit for cancellation of the sale-deed but never sought any relief for possession. Merely a relief of mandatory injunction which was claimed would not entitle the plaintiff to the relief of possession. Moreover, the plaintiff had also sought a relief of damages but that was deleted and the suit was primarily confined only to the relief of cancellation and mandatory injunction in the nature of relief of possession which are quite separate and distinct remedies as recognized in law. Only in certain clear cases such as licence where a licensor cancels a licence and soon thereafter institutes a suit seeking a relief of mandatory injunction commanding the defendants to put the plaintiff in control of the licenced property. This is solely on the ground that in a case of licence the rights remain vested with the licensor and only a limited use is conferred on the licencee and not full fledged possession is with the licencee, hence, the rights remain with the licencor, so he may file and maintain a relief of mandatory injunction.
35. This aspect has been considered in Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857 and Even this Court in Ajab Singh v. Shital Puri (deceased by LRs), 1993 SCC OnLine All 26 has held as under:-
"25. The plea that only a suit for possession and not mandatory injunction would lie against a person in occupation of the property as licensee after termination of licence is, however, unsustainable. The possession of the licensee for all practical purposes being of owner himself, once the licence is terminated the licensee is bound to restore the possession to the owner and in the event of default, the owner is entitled to mandatory injunction to direct delivery of possession. In Sant Lal Jain v. Autar Singh, reported in 1985 All CJ 563 : ((1985) 2 SCC 332 : AIR 1985 SC 857), the law on this point has been laid down by the Supreme Court in the following terms (at p. 859 of AIR):--
"After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under S. 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict the licensee has always been held to be maintainable....... where a licensor approached the Court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licensor causes huge delay, the Court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent and in that case, the licensor will have to bring a suit for possession which will be governed by S. 7(v) of the Court-Fees Act.""
36. In the aforesaid situation where the lower Appellate Court had clearly held that the plaintiff was not in possession and it refused the relief of mandatory injunction and this part of the judgment of the lower Appellate Court has not been assailed in a cross appeal or cross objection as noticed in the preceding paragraphs and this finding has attained finality against the plaintiff-respondents. Now the effect of this would that even though the sale-deed in favour of the defendant stood cancelled by the lower Appellate Court and the possession throughout remained with the defendants, who subsequently in the year 2011 through his legal heirs transferred the disputed property to Izhar Ahmad who subsequently transferred to Smt. Hasina Bano, who is said to be in possession and till date the plaintiffs or his legal heirs have not instituted any proceedings for seeking possession and certain rights have definitely come to be accrued in favour of the defendants and their subsequent transferees. The sale-deed came to be cancelled in the year 1977 with the decision of the lower Appellate Court and the second appeal was filed before this Court in the year 1978 and there is a finding against the plaintiff on the issue of possession since 1978 and the plaintiff and his legal heirs did not institute any suit for possession against the defendants and 40 years have lapsed and in this entire period, the property has changed hands thrice and there is no relief claimed by the plaintiff for possession till date and in the aforesaid circumstances, there can be no way the rights could now vest with the plaintiff and he missed the boat and make no effort to seek possession.
37. In the aforesaid backdrop of facts and discussions, which have been noticed hereinabove, this Court finds that the lower Appellate Court reversed the findings on the basis of oral evidence which was not seen in the correct perspective. It also failed to note the provisions of Section 41 of the Transfer of Property Act and failed to construe the oral evidence in context with the ingredients required and present to establish the plea of Section 41 of the Transfer of Property Act. Thus, for the detailed reasons as noticed above, this Court finds that the judgment and decree passed by the lower Appellate Court cannot be sustained and is accordingly set aside. The judgment and decree passed by the trial Court dated 12.05.1977 passed in Original Suit No.19/1969 is affirmed. The appeal is allowed. In the facts and circumstances, there shall be no order as to cost.
38. The record of the trial Court be returned expeditiously.
Order Date :- 28th April, 2023 Rakesh/-