Punjab-Haryana High Court
M/S Bharat Tyre Resoling Corp. & Ors vs Babu Singh & Ors on 29 August, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
RSA-2593-2011 1
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
Date of decision : 29.08.2014
1. RSA-2593-2011
M/s Bharat Tyre Resoling Corporation, Hisar Road, Sirsa and others
... Appellants
Versus
Babu Singh and others
... Respondents
2. RSA-2597-2011
M/s Bharat Tyre Resoling Corporation, Hisar Road, Sirsa and others
... Appellants
Versus
Babu Singh and others
... Respondents
CORAM: HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr.S.K.Jain, Advocate
for the appellants (in both appeals).
Mr.Vikas Kumar, Advocate
for respondent No.1 (in both appeals).
REKHA MITTAL, J.
By way of this order, I shall dispose of RSA-2593-2011 & RSA-2597-2011 "M/s Bharat Tyre Resoling Corporation, Hisar Road, Sirsa and others Vs. Babu Singh and others" as these have emerged out of same judgment and decree dated 04.03.2011 passed by the Additional District Judge, Sirsa accepting the appeals filed by Babu Singh (respondent) against the judgment and decree dated 10.11.2009 passed by the trial Court. For the sake of convenience, the facts are taken from RSA-2593-2011.
M/s Bharat Tyre Resoling Corporation, Hisar Road, Sirsa, a DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 2 partnership firm was allotted shop bearing No.92, 60 square yards in the Auto Market, Sirsa in the year 1985. The aforesaid firm through its partner Lakhbir Singh along with others (stated to be partners of the said firm) filed suit for injunction restraining the defendant/respondent Babu Singh from interfering in possession of the aforesaid shop. During pendency of the suit, the plaintiffs/appellants amended the plaint to add the relief for mandatory injunction directing the defendant to hand over possession of the shop in dispute which was alleged to be forcibly occupied by the defendant/respondent during pendency of suit.
Babu Singh respondent filed a separate suit for grant of permanent injunction restraining the appellants from interfering in his possession of the shop in dispute and further restraining them from alienating the suit property. In both the suits, the respective defendants filed their written statements contesting the claim of each other. In the suit filed by the appellants, following issues were framed:-
1. Whether the plaintiff is owner in possession of the shop detailed in the heading of the plaint?OPP
2. Whether the plaintiff is entitled to decree for permanent injunction as prayed for?OPP
3. Whether the suit of the plaintiff is not maintainable in the present form?OPD
4. Whether the plaintiff is guilty of suppression of true and material facts from the court?OPD
5. Whether the plaintiff has no cause of action and locus standi to file and maintain the present suit?OPD
6. Relief.
In Civil Suit No.853/2003 filed by Babu Singh, the Court framed the following issues:-
DAVINDER KUMAR2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 3
1. Whether the plaintiff is in possession of the suit land?OPP
2. Whether the plaintiff is entitled to decree for permanent injunction as prayed for?OPP
3. Whether the suit of the plaintiff is not maintainable in the present form?OPD
4. Relief.
Both the suits were consolidated and decided by the trial Court vide judgment dated 10.11.2009 whereby the suit filed by the appellants for mandatory injunction was decreed and a relevant extract from the judgment /decree reads as follows:-
".......civil suit No.23 of 2003, the suit of the plaintiff M/s Bharat Tyre Resoling Corporation bearing case no.23 of 2003 succeeds with costs and a decree of mandatory injunction directing the defendant Babu Singh to hand over the vacant possession of the shop in question to the plaintiffs being its original owners after being get vacated the same from tenant is passed in favour of the plaintiffs and against the defendant qua the suit property mentioned in the headnote of the plaint."
However, suit bearing No.853 of 2003 filed by respondent Babu Singh was dismissed with no order as to costs.
Babu Singh preferred two separate appeals to express his grievance against decree passed in favour of the appellants and dismissal of his suit. Both the appeals were heard together and disposed of vide impugned judgment and decree dated 04.03.2011.
Counsel for the appellants contends that the first appellate Court committed a grave error in reversing the findings of the trial Court holding the appellants entitle to recover possession of the suit property as DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 4 the respondent entered into possession during pendency of suit for permanent injunction filed by them. It is further argued that the respondent failed to adduce evidence on record in regard to rights of Kamaljit Singh in the suit shop to claim his ownership on the basis of rights given to him by said Kamaljit Singh in the light of documents Ex.D8 & D9. It is further argued that the learned appellate Court held the appellants to be owners to the extent of 9/10 shares in the suit property but still passed a decree restraining them from selling the suit land when otherwise no injunction can be granted against the true owner to alienate property to the extent of his share.
Counsel for respondent No.1, on the other hand, contends that there is no merit in the plea of the appellants that the respondent entered in possession of the shop in dispute during pendency of the suit when as a matter of fact, he came in possession of the suit property in the year 1999, got the plan sanctioned from Municipal Committee, Sirsa, raised construction on the plot and is in peaceful possession of the shop which was sought to be encroached upon by the appellants compelling him to file the suit for injunction. It is further argued that the appellants filed the suit for injunction claiming themselves to be in possession with an intent to interfere in possession of the respondent under the guise of interim stay sought to be obtained but failed in their nefarious design as the Court did not grant any ad-interim injunction in their favour and rather appointed the local Commission to visit the spot to know factual position of the shop in dispute and the local Commission made a report that it was the respondent who was found at the spot during his visit. It is further argued that the DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 5 learned trial Court without there being even an iota of evidence on record to prove possession of the plaintiffs at the time of institution of the suit much less the respondent having got possession of the shop during pendency of the suit still accepted the claim of the appellants for mandatory injunction but the error committed by the trial Court was rightly rectified by the first appellate Court, by accepting the appeals filed by the respondent. It is further submitted that there is no illegality in the judgment passed by the first appellate Court, therefore, the appeals filed by the appellants are liable to be dismissed with compensatory costs.
I have heard counsel for the parties and perused the records of the trial Court as well as appellate Court.
The substantial questions of law which arise for decision are:-
1. Whether the judgment and decree passed by the appellate Court reversing the judgment of the trial Court allowing the relief of mandatory injunction in favour of the appellants is perverse and liable to be set aside.
2. Whether the judgment passed by the appellate Court restraining the appellants from alienating the shop in dispute despite their being held entitle to ownership to the extent of 9/10 shares can be allowed to sustain.
Perusal of the pleadings of the parties, relief claimed by them in separate suits, issues framed and the findings recorded by the Courts below makes it evident that there is dispute between the parties in regard to two major issues i) possession of the shop in dispute; ii) ownership of the said shop. It is pertinent to mention at the outset that for adjudication of the DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 6 controversy raised in the suit filed by the appellants, there was no requirement for the Court to decide the question of ownership even though the appellants have claimed themselves to be owner in possession of the suit shop but as the respondent filed suit claiming injunction qua dispossession and against alienation of the shop in dispute by the appellants, the question of ownership of the shop also became relevant. First of all, I would discuss the question of possession of the shop in dispute.
The appellants filed the suit for permanent injunction against interference in their possession of the suit shop on 23.01.2003. Later they moved an application for amending the plaint to add the relief of mandatory injunction directing the respondent to hand over possession on the premise that the respondent has illegally and forcibly entered into possession of the said shop on 16.06.2003. The trial Court appointed the local Commission in order to know factual position of the shop in dispute. The local Commission submitted the report on 17.06.2003 stating that the respondent was found at the spot during his visit in pursuance of the directions of the Court. From plea of the appellants, it becomes an admitted position of the case that the respondent is in possession of the shop in dispute at least with effect from 16.06.2003. The learned appellate Court has commented adversely against conduct of the appellants in filing application for amendment on 15.04.2005 raising a plea that the respondent has taken forcible possession of the shop on 16.06.2003 approximately two years prior to filing of application and the said fact creating a suspicion in their plea that the respondent had entered into possession of the suit shop during pendency of the suit filed by the appellants. Counsel for the appellants has failed to submit any explanation DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 7 much less a convincing one that if it was true that the respondent had forcibly taken possession on 16.06.2003, why the appellants remained silent for about two years in not expressing any grievance against their forcible dispossession by the respondent during pendency of proceedings before the court. Counsel for the respondent is right in his submissions that there is not even an iota of evidence to prove that the respondent took over possession of the suit shop on 16.06.2003 during pendency of the suit. It appears that as the local Commission found the respondent in possession of the shop, the appellants on the basis of an afterthought but after considerable delay of about two years filed the application for amendment to seek mandatory injunction on the plea that the respondent has forcibly entered into possession on 16.06.2003. The learned trial Court fell into a grave error in accepting plea of the appellants for grant of mandatory injunction directing the respondent to hand over vacant possession of the shop in dispute. However, the learned appellate Court rectified the error committed by the trial Court by accepting the claim of the respondent that the appellants are not entitled to interfere in his possession of the suit property except in due course of law. From the evidence on record, it becomes an established position that the respondent is in possession of the suit shop prior to the institution of the suit by the appellants in January 2003 and the appellants cannot be allowed to take law in their hands and interfere in possession of the respondent over the suit shop except in accordance with law.
Now coming to the second question regarding ownership of the shop, the trial Court held the appellants to be owners and entitle to recover its possession by way of mandatory injunction. The learned appellate Court, DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 8 in view of its observations in para 16 has held the appellants to be owner to the extent of 9/10th share and the respondent (appellant therein) has obtained ownership rights from one of the partners of the firm namely Kamaljit Singh who was owner to the extent of 1/10th share in the suit land.
There is no dispute between the parties that the allotment in regard to property bearing No.92 was made by the Municipal Committee, Sirsa in favour of partnership firm namely M/s Bharat Tyre Resoling Corporation, Hisar Road, Sirsa in the year 1985. The respondent has not disputed that three payments in regard to said allotment i.e. Rs.2000/- on 13.12.1985, Rs.6000/- on 11.04.1994 and Rs.12,000/- on 10.02.1997 were made to the Municipal Committee, Sirsa by the partnership firm.
The plea of the respondent is that one of the partners of the firm namely Amar Singh son of Jangir Singh passed away and after his death, the partnership firm stood dissolved and thereafter the firm was never constituted by Lakhbir Singh and others. Another plea raised by the respondent is that the partners of the previous firm gave the shop in dispute to Kamaljit Singh, one of the partners and permitted him to carry on business in the shop in dispute under the name of M/s Bharat Tyre Resoling Corporation, Hisar Road, Sirsa. He has further alleged that in the year 1999, he entered into partnership with said Kamaljit Singh to carry on business under the aforesaid name and the partnership deed Ex.D8 was executed between the respondent and Kamaljit Singh in the year 1999 and the said partnership between Kamaljit Singh and the respondent stood dissolved in the year 2000 vide dissolution deed Ex.D9 but said Kamaljit Singh transferred his rights in the shop in dispute in favour of the respondent. DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 9
The appellants have not denied that one of the partners of the partnership firm namely Amar Singh passed away. The appellants sought to rely upon the partnership deed Mark A to contend that even after death of Amar Singh, the partnership firm did not get dissolved in the light of terms and conditions incorporated in the partnership deed Mark A. The learned trial Court relied upon the said document to hold in favour of the appellants. The respondent has admitted the existence of the partnership firm initially constituted and has not disputed about the partners of the said firm but he has not admitted the partnership deed sought to be relied upon by the appellants. The appellants failed to prove the partnership deed in accordance with law, therefore, they cannot derive any strength to their contentions from the recitals in the partnership deed Mark A. Under these circumstances, the picture remains blurred in regard to the status of the partnership firm after death of Amar Singh. Admittedly, there is no plea of the appellants that after death of Amar Singh, the partnership firm was reconstituted by a fresh partnership deed. Even there is no evidence on record to substantiate contention of the respondent that Kamaljit Singh one of the partners in the partnership firm was permitted to carry on business under the name of the firm much less having been given the rights of ownership in the shop in dispute. Kamaljit Singh was not examined by the respondent to corroborate his version and prove the documents Ex.D8 and D9. None of the appellants is a signatory to the documents Ex.D8 & D9. At the same time, there is no evidence led by the appellants as to how the respondent entered into possession of the shop in dispute when otherwise their plea that he recovered possession illegally and forcibly on 16.06.2003 DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 10 is not sustainable in view of the discussion hereinabove.
It is strange and beyond comprehension as to on what basis, the appellate Court held Kamaljit to be owner in the shop to the extent of 1/10th share and the appellants to be owner of the remaining 9/10 shares. As a matter of fact, there is no clear much less cogent and convincing evidence on record to decide the question of ownership of the shop in dispute. However, the only fact which is established on record is that property bearing No.92 was allotted by the Municipal Committee, Sirsa in 1985 in favour of the partnership firm constituted by Lakhbir Singh and others either in 1985 or prior thereto. The appellants examined Suresh Chander, Clerk, Municipal Committee, Sirsa and he did not bring the record in regard to property in dispute as it was statedly produced before this Court in CWP No.5214/1997. The witness deposed that the record pertaining to shop No.92, Auto Market, measuring 60 square yards is also appended with the aforesaid writ petition. During cross-examination, he has admitted that Municipal Committee is receiving installments from the allottees and is also approving the site plan subject to outcome of pending writ petition. However, it has come on record that the respondent submitted a site plan with the Municipal Committee, Sirsa which was approved by the said authority, but submission of site plan and approval thereof itself is not sufficient to determine ownership rights of the parties in the shop in dispute. Under these circumstances, I am of the considered opinion that findings recorded by the trial Court or the Court in appeal in regard to ownership of the shop in dispute cannot be affirmed and required to be left open to be decided in appropriate proceedings without prejudice to rights of either of DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document RSA-2593-2011 11 the parties by the findings recorded in the present litigation.
The learned appellate Court held the appellants to be owner of the shop to the extent of 9/10 shares and Kamaljit Singh through whom the respondent is claiming right of ownership to the extent of 1/10 share. Babu Singh respondent has not filed any appeal or cross objections against the findings of the appellate Court holding the appellants to be owners to the extent of 9/10 shares i.e. 90%. The learned appellate Court committed a serious error in allowing the claim of the respondent seeking injunction against the appellants restraining them from alienating the property in dispute. As neither the appellants nor the respondent was able to lead clear, cogent and convincing evidence on record to decide the question of ownership, the judgment and decree passed by the appellate Court restraining the appellants from alienating the suit property cannot be allowed to sustain. If the appellants or the respondent ever take any steps to alienate the shop in dispute, it would be for the vendee from them to make necessary verification regarding their ownership rights.
In view of what has been discussed hereinabove, the appeals are partly allowed in the aforesaid terms. The decree passed by the appellate Court restraining the appellants from alienating the shop in dispute is set aside. However, the appellants will not interfere in possession of the shop in dispute by the respondent except in due course of law.
No order as costs.
(REKHA MITTAL) JUDGE August 29, 2014.
Davinder Kumar DAVINDER KUMAR 2014.09.12 16:52 I attest to the accuracy and integrity of this document