Abhishek Agrawal vs Purushottam Chouhan on 7 August, 2009

[Cites 13, Cited by 0]

Chattisgarh High Court

Abhishek Agrawal vs Purushottam Chouhan on 7 August, 2009

1. This second appeal is directed against the judgment & decree dated 30-7-2005 passed by the 8th Additional District Judge, Raipur in Civil Appeal No.1-A/2004 reversing the judgment & decree for eviction passed by the 5th Civil Judge Class-I, Raipur in Civil Suit No.74-A/2000 vide judgment & decree dated 15-11-2003.

2. Judgment & decree impugned are challenged on the ground that learned lower appellate Court while reversing the decree has not considered the entitlement of the appellants for suit for eviction and also on the ground of maintainability of the suit that the lease was permanent lease, therefore, without completion of the period of lease premature suit for eviction was not maintainable.

3. Brief facts giving rise to filing of the present appeal are that the present appellants/plaintiffs are Bhumi Swami of the land in dispute i.e. Khasra Nos.1798 & 1795 area 2 acres new Khasra No.469 situated at Village Kesla. The land was given to the predecessor of respondents namely, deceased Dayabhai on permanent lease for installing rice mill. Previously suit for eviction from the land was filed by the present appellants against deceased Dayabhai and finally eviction claim was denied by the High Court and decided that the land was given to Dayabhai on permanent lease. After the judgment passed by the High Court, deceased Dayabhai filed an application for mutation of his name over the suit land on the basis of the judgment of the High Court and his name was mutated. The present appellants preferred an appeal before the appellate Revenue Court and finally they lost their case before the Revenue Court (appellate Court) whereupon the present appellants served notice to deceased Dayabhai for eviction under the provisions of Section 111 of the Transfer of Property Act, 1882 (for short `the Act of 1882'), but after termination of lease and demand of possession when the possession was not handed over, they filed civil suit for eviction. The present respondents/heirs of deceased Dayabhai contested the claim and specifically pleaded that the land has been recorded in the name of their predecessor Dayabhai, and the present appellants have lost their case up to the High Court, hence the present appellants are not entitled for any eviction from the suit land. The property was on permanent lease to deceased Dayabhai.

4. On the basis of averments of the parties, issues were framed and after affording opportunity of hearing, learned 5th Civil Judge Class-I, Raipur has held that only on the basis of mutation no title is created upon the parties, the respondents are lessee over the land and after termination of lease, the present appellants are entitled for possession of land from the respondents, and decreed the suit.

5. Judgment & decree of the trial Court were challenged before the lower appellate Court and the lower appellate Court has held that previously a suit was also filed between the same parties relating to same property and same cause of action, issues were also same, therefore, subsequent suit is not maintainable, and reversed the decree passed by the trial Court.

6. The present second appeal is admitted on the following substantial questions of law: -

(1) Whether the order of Naib Tehsildar, Raipur passed on 28-

3-1979, declaring Dayabhai, the predecessor of respondent as occupancy tenant is without jurisdiction?

(2) If yes, whether the finding recorded by the 1st appellate Court that the permanent lease being effective against the defendant/tenant decree for eviction could not be passed, was contrary to law?

7. I have heard learned counsel for the parties and perused the impugned judgment as also the record of the Courts below.

8. Mr. G.D. Vaswani, learned counsel for the appellants, argued that according to the previous judgment between the parties in Second Appeal No.565/1964 which is binding upon both the parties, the land was given to Dayabhai on permanent lease and the same was for indefinite duration. But after the decision of previous suit, deceased Dayabhai applied for mutation of his name over the property on the basis of aforesaid judgment and his name was mutated. The present appellants preferred appeal before the revenue Court, but finally they lost the case, then they have terminated the lease under Section 111 of the Act of 1882 and demanded vacant possession and the same has not been complied by deceased Dayabhai on which they filed the suit. Learned counsel further argued that the land was given on lease for the purpose of installing rice mill and Dayabhai has installed rice mill, therefore, no any Bhumi Swami right has been accrued in favour of deceased Dayabhai. The present appellants have not transferred the land to deceased Dayabhai and no title has been acquisitioned, therefore, in absence of acquisition of title upon the suit land in favour of Dayabhai, the mutation proceeding was illegal. Learned counsel submitted that parties were competent to lease the property in accordance with Section 168 of the Chhattisgarh Land Revenue Code, 1959 (for short `the Code') and the lease was not unauthorized in accordance with Section 169 of the Code, therefore, no right was accrued in favour of deceased Dayabhai. However, filing of mutation application and mutation of name by deceased Dayabhai gives cause of action in favour of the appellant to determine the lease under Section 111 (g) of the Act of 1882, because Dayabhai had claimed title over the property. Learned counsel further submitted that the revenue Courts were having no jurisdiction to mutate the name of deceased Dayabhai in absence of any acquisition of right or title in his favour. Learned counsel placed reliance in the matter of Mantoo Sarkar v. Oriental Insurance Co. Ltd. & Anr.1 in which it has been held by the Apex Court that objection as to jurisdiction is permissible when objection to jurisdiction is as regards the subject matter of the suit. Learned counsel also argued that the Court is empowered to declare any legal character or any right as to any property in accordance with Section 34 of the Specific Relief Act, 1963.

9. On the other hand, Mr. B.P. Gupta, learned counsel for the respondents, vehemently argued that the present appellants have lost their case against the order of mutation up to the High Court, therefore, the present suit was not competent. According to the pleading of the plaintiffs, Bhumi Swami right was conferred upon deceased Dayabhai and the present respondents are heirs of Dayabhai, therefore, the appellants are not entitled for eviction and termination of lease was ab initio void. This is second suit based on same cause of action between the same parties relating to the same issue, therefore, the second suit is barred and decision of first case reached into its finality. Even mutation without acquisition of right or title does not give any cause of action for termination of permanent lease to the present appellants and the present appellants have not claimed relief of declaration of the order of mutation void and without obtaining decree of declaration, the present appellants are not entitled for any relief. In accordance with the provisions of Order 7 Rules 1 (g) & 7 of the C.P.C. the appellants were under obligation to claim such relief in specific terms, but they have not claimed any relief in such terms. Lease for more than one year by Bhumi Swami is an unauthorized lease under Section 169 of the Code contesting the right of Bhumi Swami and accrues the right of an occupancy tenant upon the lessee, and occupancy tenancy right has been conferred upon Dayabhai in accordance with Section 190 of the Code. Learned counsel further argued that making any new case in second appeal is exceeding jurisdiction and any relief relating to mutation order would amount to making out a new case which is not permissible under Section 100 of the C.P.C. at the stage of second appeal. Learned counsel placed reliance in the matter of Babu Ram alias Durga Prasad v. Indra Pal Singh (Dead) by LRs2 in which it has been held by the Apex Court that High Court has no jurisdiction in second appeal to make out a new case and render its finding thereon in absence of any issue before the Courts. Learned counsel further placed reliance in the matter of Tirumala Tirupati Devasthanams v. K.M. Krishnaiah3 in which it has been held by the Apex Court that in absence of any issue before the trial Court and the first appellate Court, second appellate Court could not, for the first time give a finding upon any such issue.

10. First substantial question of law is related to legality of order of revenue Court dated 28-3-1979.

11. Both the parties have specifically alleged in their pleadings relating to the order dated 28-3-1979 passed by the Tahsildar by which the Naib Tahsildar has passed the order under Section 110 of the Code and recorded finding that legal interest in the land has been acquisitioned in favour of deceased Dayabhai in accordance with the judgment passed by the High Court on 30-11-1967 and deleted the disputed land from the holdings of Nathmal, predecessor of the appellants, and mutated in the name of Dayabhai vide order Ex.P-2. The appellants have not claimed any relief for declaration of the aforesaid order, but the learned trial Judge has framed specific issue No.9 which is as follows: -

"D;k jktLo U;k;ky; ds vkns"k fnukad 28-3-79 ds vuqlkj izfroknhx.k oknxzLr Hkqeh ds Lokeh gS?"

Such issue has been decided by the trial Court as negative, however, the appellate Court has reversed the judgment & decree substantially on the ground that the lease was permanent lease, therefore, without completion of the period of lease premature suit for eviction was not maintainable.

12. It is clear from the pleadings of the parties and issue No.9 framed by the trial Court that after affording opportunity of hearing to the parties the trial Court has decided issue No.9 framed on the basis of pleadings of the parties. Para 9 of Ex.P-1, the judgment passed in Second Appeal No.565/1964 by the High Court, shows that the land was leased out to deceased Dayabhai, the lease was perpetual in nature and the defendants were clearly protected by the doctrine of part performance. Para 9 of the judgment dated 30-11-1967 passed in Second Appeal No.565/1964 reads as follows: -

"9. Even otherwise, if there was no ambiguity in the terms used in the document, I am of the view that the words "Jab Tak"

clearly indicate that the lease was to continue so long as the defendant ran his rice mill on the land, that is, the lease was of indefinite duration. On this view, the defendant is clearly protected by the doctrine of part performance in-as-much as all the conditions pre-requisite of section 53-A of the Transfer of Property Act stand established. The decision of their Lordships of the Supreme Court in Manik Lal v. Jimwala, AIR 1950 SC 1, directly applies to the facts of the present case."

13. The word `lease' has been defined in Section 105 of the Act of 1882 which reads as follows: -

"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."

14. Lease does not create any title upon the lessee, lease is a transfer of a right to enjoy such property for certain time, express or implied, or in perpetuity, in consideration of a price paid or promised. A lessor has right to determine the lease under Section 111 of the Act of 1882.

15. According to the plaintiffs/appellants, lease has been terminated under clause (g) of Section 111 of the Act of 1882 which reads as follows: -

"111. Determination of lease.-A lease of immoveable property determines-

(a)*** *** ***

(b)*** *** ***

(c)*** *** ***

(d)*** *** ***

(e)*** *** ***

(f)*** *** ***

(g)by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease:

(h)*** *** *** Sub-clause (2) of clause (g) of Section 111 of the Act of 1882 gives cause of action in favour of lessor for termination of lease on the basis of setting up of a tile in a third person or by claiming title in himself by the lessee.

16. In this case, lease has been terminated vide notice Ex.P- 3 in which it has been specifically mentioned that Dayabhai has denied the title of the appellants and mutated his name over the property as Bhumi Swami, therefore, he has lost his right as a lessee under Section 11 of the Act of 1882.

17. As regards the question of making new case at the stage of second appeal, as has been held by the Apex Court in the matters of Babu Ram & Tirumala Tirupati (supra), making of new case is not permissible at the stage of second appeal and second appellate Court could not for the first time, give finding upon new issue which was not raised and considered before the first appellate Court & the trial Court.

18. Legality & propriety of the order of Naib Tahsildar is not an issue before this Court, it was an issue before the trial Court as issue No.9 and the trial Court has given its finding upon the said issue. The matters of Babu Ram & Tirumala Tirupati (supra), which have been relied upon by learned counsel for the respondents, are distinguishable on facts to that of the present case.

19. Mutation of the name of Dayabhai after recording the finding that interest has been created in favour of Dayabhai was definitely without jurisdiction and was coram non juris as held by the Apex Court in the matter of Mantoo Sarkar (supra). Objection as to jurisdiction regarding subject matter of suit is permissible. Para 18 of the said judgment reads thus, "18. We, however, while taking that factor into consideration must place on record that we are not oblivious of the fact that a decision rendered without jurisdiction would be coram non juris. Objection in regard to jurisdiction may be taken at any stage. (See Chief Engineer, Hydel Project v. Ravinder Nath, [(2008) 2 SCC 350]) wherein inter alia the decision of this Court in Kiran Singh v. Chaman Paswan, [AIR 1954 SC 340] was followed, stating:

"26. The Court also relied upon the decision in Kiran Singh v. Chaman Pawan [AIR 1954 SC 340] and quoted (in Harshad Chiman Lal case {[(2005) 7 SCC 791], SCC pp. 804-805, para 33} therefrom: {Kiran Singh case (supra), AIR p.342, para 6}:

`6...It is fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, ....strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."

Though in the aforementioned decision these observations were made since the defendants before raising the objection to the territorial jurisdiction had admitted that the court had the jurisdiction, the force of this decision cannot be ignored and it has to be held that such a decree would continue to be a nullity."

Therefore, such objection may be taken at any stage.

20. Admittedly, the lease was for installing rice mill and the appellants were not prevented under the provisions of the Code for such lease in favour of deceased Dayabhai in accordance with Section 168 (1) of the Code which reads as follows: -

"168. Leases.-(1) Except in cases provided for in sub-section (2) no Bhumiswami shall lease any land comprised in his holding for more than one year during any consecutive period of three years:

Provided that nothing in this sub- section shall apply to the lease of any land-

(i) made by Bhumiswami who is a member of a registered Cooperative Farming Society to such Society;

(ii) held by a Bhumiswami for non-agricultural purposes.

Explanation.-For the purposes of this section-

(a) "lease" means a transfer of a right to enjoy any land, made for a certain time, expressed or implied in consideration of a price paid or promised or of money or any other thing of value to be given periodically to the transfer on by the transferee who accepts the transfer on such terms,

(b) any arrangement whereby a person cultivates any land of a Bhumiswami with bullocks belonging to or procured by such person (lessee) and on condition of his giving a specified- share of the produce of the land to the Bhumiswami shall be deemed to be a lease,

(c) the grant of a right merely to cut grass or to graze cattle or to grow `Singhara' or to propagate or collect lac, pluck, or collect tendu leaves shall not be deemed to be a lease of the land."

21. While deciding the first appeal, learned lower appellate Court has not considered the evidence led by the parties and finding of the trial Court, but substantially dismissed the suit on the ground of maintainability that the lease was permanent lease, therefore, without completion of the period of lease premature suit for eviction was not maintainable.

22. Learned Naib Tahsildar was empowered to mutate the name of Dayabhai on the basis of acquisition of title or interest over the property. However, title or interest has not been created in favour of Dayabhai by any act of the party or operation of law. Judgment of second appeal does not create any title in favour of Dayabhai, it has declared that the lease was perpetual lease. In absence of any creation of right or title over the property, mutation was illegal. Finding of the Naib Tahsildar that Dayabhai was occupancy tenant is without jurisdiction.

23. For the foregoing reasons, substantial issue No.(1) is decided as positive. Substantial issue No.(2) is partially dependent upon the first issue. Learned lower appellate Court has dismissed the appeal on the ground that in the light of nature of lease as permanent lease being effective against the defendant/tenant, decree for eviction could not be passed.

24. In the present case, the lease was permanent lease and premature termination of such lease was not possible, but lease has been terminated under Section 111 (g) of the Act of 1882 when title has been claimed by the lessee and his name has been mutated on the basis of such claim of title which gave cause of action for termination of lease to the plaintiffs and the plaintiffs have terminated the lease. In the written statement, defendants themselves have claimed ownership over the land in para 4 of their written statement which also supports the ground for termination of lease. Lease cannot be determined before expiration of such time but can be determined in accordance with Section 111 of the Act of 1882. In this case, lease has been terminated under Section 111 (g) of the Act of 1882 for which the plaintiffs/appellants were competent on the basis of disclaimer of title of the appellants and claim of title upon the property by the predecessor of the respondent original lessee.

25. Learned lower appellate Court has not considered the ground of termination of lease which was available to the appellants on the basis of specific act of denial of title of the appellants and setting up of title upon himself by original lessee Dayabhai and thereby committed illegality. Finding of the lower appellate Court is contrary to law.

26. On the basis of aforesaid findings, issue No.(2) is also decided as positive.

27. On the basis of findings upon the issues formulated for the decision of this appeal, judgment & decree impugned is not sustainable.

28. In the result, the appeal is allowed. Judgment & decree impugned is hereby set-aside and the judgment & decree passed by the trial Court is restored.

29. Parties shall bear their own costs.

30. Advocate fees as per schedule.

31. Decree be drawn up accordingly.

J U D G E

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Chattisgarh High Court