Rajasthan High Court - Jodhpur
Om Prakash And Anr vs Sriniwas And Ors on 5 February, 2022
Author: Devendra Kachhawaha
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
.....
S.B. Civil First Appeal No. 192/2010
1. Firm Dhanraj Dev Kishan, Nokha Mandi, District Bikaner.
2. Dev Kishan son of Shri Dhanraj, by caste Chandak Maheshwari, aged about 71 years, resident of Nokha Mandi, Bikaner.
----Appellants/Defendants Versus Sriniwas son of late Shri Ramchandra, by caste Jhanwar Maheshwari, resident of Nokha Mandi, Tehsil-Nokha, District- Bikaner.
----Respondent/Plaintiff Connected With S.B. Civil First Appeal No. 197/2010
1. Firm Dhanraj Dev Kishan, Nokha Mandi, District Bikaner.
2. Dev Kishan S/o Shree Dhanraj, by caste Chandak Maheshwari, aged about 71 years, resident of Nokha Mandi, Bikaner.
----Appellants/Defendants Versus
1. Sriniwas son of late Shri Ramchandra, by caste Jhanwar Maheshwari, resident of Nokha Mandi, Tehsil-Nokha, District- Bikaner.
----Respondent/Plaintiff
2. LRs of late Shri Hanuman Bux son of Shri Ramchandra 2/1. Smt. Kishna wife of late Shri Hanuman Bux 2/2. Bhatmal son of late Shri Hanuman Bux 2/3. Hari Kishan son of late Shri Hanuman Bux 2/4. Jai Kishan son of late Shri Hanuman Bux 2/5. Mul chand son of late Shri Hanuman Bux 2/6. Pawan Kumar son of late Shri Hanuman Bux 2/7. Smt. Santosh daughter of late Shri Hanuman Bux 2/8. Smt. Vimala daughter of late Shri Hanuman Bux (Downloaded on 09/02/2022 at 08:44:03 PM) (2 of 118) [CFA-192/2010] 2/9. Smt. Nirmala daughter of late Shri Hanuman Bux All by caste Laddha-Maheswhari, resident of Nokha Mandi, District Bikaner.
3. Bhanwarlal son of Shri Duli Chand, by caste Baheti, resident of Nokha Mandi, District-Bikaner.
4. Om Prakash son of Shri Dev Kishan, by caste Chandak, resident of Nokha Mandi, District-Bikaner.
5. Smt. Sanju wife of Shri Shiv Prakash, by caste Chandak, resident of Nokha Mandi, District-Bikaner.
-----Respondents/Defendants ....
S.B. Civil First Appeal No. 206/2010
1. Om Prakash S/o Shri Dev Kishan, aged about 47 years, B/c Chandak, R/o Nokha Mandi, District-Bikaner.
2. Smt. Sanju wife of Shri Shiv Prakash, aged about 40 years, by caste Chandak, R/o Nokha Mandi, Tehsil-Nokha, District- Bikaner.
----Appellants Versus
1. Sriniwas S/o Late Shri Ramchandra, by caste Jhanwar Maheshwari, R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner.
2. Hanuman Bux S/o Shri Ramchand, by caste Laddha, R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner. Since Deceased through legal representatives:-
2/1. Smt. Kishna W/o Late Hanuman Bux 2/2. Bhatmal S/o Late Hanuman Bux 2/3. Hari Kishan S/o Late Hanuman Bux 2/4. Jai Kishan S/o Late Hanuman Bux 2/5. Mool chand S/o Late Hanuman Bux 2/6. Pawan Kumar S/o Late Hanuman Bux 2/7. Santosh D/o Late Hanuman Bux 2/8. Vimala D/o Late Hanuman Bux 2/9. Nirmala D/o Late Hanuman Bux (All are R/o Nokha Mandi, Tehsil-Nokha, District Bikaner).
3. Firm Dhanraj Dev Kishan, R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner.
(Downloaded on 09/02/2022 at 08:44:03 PM)
(3 of 118) [CFA-192/2010]
4. Dev Kishan S/o Shri Dhanraj, by caste Chandak Maheshwari, R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner.
5. Bhanwar Lal S/o Shri Duli Chand, by caste Baheti, R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner.
----Respondents ....
S.B. Civil First Appeal No. 240/2010 Bhanwar Lal S/o Shri Dulichand, age 50 years, by caste Baheti, r/o Nokha Mandi, District-Bikaner.
----Appellant/Defendant Versus
1. Sriniwas s/o Late Shri Ramchandra, by caste Jhanwar Maheshwari, r/o Nokha Mandi, Tesil-Nokha, District-Bikaner.
2. Firm Dhanraj Dev Kishan, Nokha Mandi, District-Bikaner.
3. Dev Kishan s/o Shri Dhanraj, by caste Chandak Maheshwari, r/o Nokha Mandi, Bikaner.
4. Hanuman Bux S/o Shri Ramchand, by caste Laddha, R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner. Since Deceased through legal representatives:-
4/1. Smt. Kishna W/o Late Hanuman Bux 4/2. Bhatmal S/o Late Hanuman Bux 4/3. Hari Kishan S/o Late Hanuman Bux 4/4. Jai Kishan S/o Late Hanuman Bux 4/5. Mul chand S/o Late Hanuman Bux 4/6. Pawan Kumar S/o Late Hanuman Bux 4/7. Santosh D/o Late Hanuman Bux 4/8. Vimala D/o Late Hanuman Bux 4/9. Nirmala D/o Late Hanuman Bux
5. Om Prakash S/o Shri Dulichand, by caste Laddha, R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner.
6. Smt. Sanju wife of Shri Shiv Prakash, by caste Chandak, R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner. (All are R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner).
----Respondents
(Downloaded on 09/02/2022 at 08:44:03 PM)
(4 of 118) [CFA-192/2010]
For Appellant(s) : Mr. Manish Singhvi, Sr. Advocate
Mr. Ravi Bhansali, Sr. Advocate with
Mr. Dhanesh Saraswat
Mr. Dasit Dave (CFA No. 240/2010).
Mr. Sajjan Singh with Mr. Prashant
Tatia (CFA Nos. 192/2020 &
197/2010).
Mr. Manoj Bhandari with Mr. Prateek
Surana (CFA No. 206/2010).
For Respondent(s) : Mr. R.K. Thanvi, Sr. Advocate with
Mr. Narendra Thanvi &
Mr. Mahendra Thanvi.
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Judgment
Reserved on :: 24/11/2021
Pronounced on :: 05/02/2022
Civil First Appeal No. 192/2010 titled as "Firm Dhanraj Dev Kishan & Anr. Vs. Sriniwas" has been filed by the appellants/defendants against the judgment & decree dated 26.03.2010 passed by the Additional District Judge (Fast Track) No.3, Bikaner in Civil Original Suit No. 54/2005 titled as "Sriniwas Vs. Firm Dhanraj Dev Kishan & Anr." whereby, the suit has been decreed and the defendants were directed to hand over the possession of the shop in question to the plaintiff (Sriniwas).
Civil First Appeal No. 197/2010 titled as "Firm Dhanraj Dev Kishan & Anr. Vs. Sriniwas & Ors." has also been filed by the appellants/defendants against the judgment & decree dated 26.03.2010 passed by the Additional District Judge (Fast Track) No. 3, Bikaner in Civil Original Suit No.55/2005 titled as "Sriniwas Vs. Hanuman Bux & Ors." whereby, the suit has been decreed and it has been ordered that the plaintiff (Sriniwas) is the owner of the (Downloaded on 09/02/2022 at 08:44:03 PM) (5 of 118) [CFA-192/2010] property in question, as mentioned in para-12 of the suit and all the proceedings initiated by the defendants were declared ab initio void and at the same time, the defendants were restrained from interfering in the property in question in any manner.
Civil First Appeal No. 206/2010 titled as "Omprakash & Anr. Vs. Sriniwas & Ors." has been filed by the appellants/defendants against the judgment & decree dated 26.03.2010 passed by the Additional District Judge (Fast Track) No.3, Bikaner in Civil Original Suit No. 55/2005 titled as "Sriniwas Vs. Hanuman Bux & Ors." whereby, the suit has been decreed and it has been ordered that the plaintiff (Sriniwas) is the owner of the property in question, as mentioned in para-12 of the suit and all the proceedings initiated by the defendants were declared ab initio void and at the same time, the defendants were restrained from interfering in the property in question in any manner.
Civil First Appeal No. 240/2010 titled as "Bhanwar Lal Vs. Sriniwas & Ors." has been filed by the appellant/defendant against the judgment & decree dated dated 26.03.2010 passed by the Additional District Judge (Fast Track) No.3, Bikaner in Civil Original Suit No. 55/2005 titled as "Sriniwas Vs. Hanuman Bux & Ors." whereby, the suit has been decreed and it has been ordered that the plaintiff (Sriniwas) is the owner of the property in question, as mentioned in para-12 of the suit and all the proceedings initiated by the defendants were declared ab initio void and at the same time, the defendants were restrained from interfering in the property in question in any manner.
(Downloaded on 09/02/2022 at 08:44:03 PM)
(6 of 118) [CFA-192/2010] The facts of the cases are that the plaintiff (Sriniwas) had filed a civil suit (No. 54/2005) against the defendants - Firm Dhanraj Dev Kishan and its proprietor Dev Kishan, inter alia, stating therein that a property owned by the plaintiff had been situated at Nokha Mandi, Bikaner being Shop including Nohra No. 34 and the defendants were the tenants over the property in question; the patta of the property in question had been in the name of late Jamnadas; out of the total portion of the Nohra No.34, some of the portion, measuring 180 dargaji, had been sold to the plaintiff by Gyanprakash Bhadani S/o late Onkardutt Bhadani, predecessor-in-title, on 02.09.1986 for a consideration of Rs.30,000/-. It has been averred in the plaint that during the life- time, Shri Onkardutt had authorised his son Gyanprakash @ Gyandutt Bhadani to collect the rent of Rs.300/- from the defendants; that the original landlord Shri Onkardutt died on 10.10.1981. It has further been averred in the plaint that to recover the due rent of Rs.2400/- and to get the possession of the shop and Nohra from the defendants, Durgadutt S/o Onkardutt had filed a civil suit (No.44/1982) in which, the defendants had denied that Durgadutt is the owner of the property and it has been stated that Gyanprakash is the owner of the property in question and the interim rent had been decided in the suit but despite of that, the defendants had neither deposited the rent nor paid the same, therefore, the defence of the defendants against eviction was strike out; that the rent of the property in question @ Rs.300/- had been paid by the defendants from 01.08.1981 to 31.03.1983 to Gyanprakash against receipts. While stating the pedigree of late Jamnadas, it has been stated that after the death (Downloaded on 09/02/2022 at 08:44:03 PM) (7 of 118) [CFA-192/2010] of Jamnadas, his only son Onkardutt became the owner of the property; Onkardutt had two sons, namely, Durgadutt and Gyanprakash, wife Smt. Surji devi, allegedly mentally retarded, and one daughter Smt. Asha; that Durgadutt is blind by birth and his whereabouts is not known since last eight years; that Onkardutt and Durgadutt had executed a trust-deed dated 22.09.1973 and had got registered a trust in the name of Smt. Surajbai Bhadani Private Trust; that Gyanprakash S/o Onkardutt was declared the landlord and owner of the property and since Gyanprakash was minor at that time, the rent of the property in question was collected by Onkardutt and on being attaining the age of majority, the rent of the property in question was collected by Gyanprakash and receipts for the period from 01.08.1981 to 31.03.1983 had been given to the defendants. It has been averred in the plaint that when the rent was not given by the defendants, a suit for eviction and recovery of due rent, being Civil Suit No. 80/1983 had been filed by Gyanprakash against the defendants; that on 02.09.1986 against a consideration of Rs.45,000/-, the property was sold in favour of the plaintiff; that the plaintiff had asked the defendants to vacate the premises and hand over the possession then, the defendants have pretended that they are in search of suitable property and on getting the same, they vacate the property in question; that on being asking again to vacate the premises, the defendants had denied on 24.03.1991; that on the following grounds, the plaintiff is entitled to get vacate the premises in question from the defendants; (1) default in payment of rent, (2) reasonable and bona fide need of the plaintiff, (3) availability of alternative accommodation with the defendants, (4) (Downloaded on 09/02/2022 at 08:44:03 PM) (8 of 118) [CFA-192/2010] partial eviction is not possible, (5) non-user of the property in question; that on the grounds aforesaid, the plaintiff claimed that the property in question may be got vacated, possession of the property in question may be handed over to the plaintiff and the plaintiff may be ordered to get the due rent of Rs.10,800/- and a decree of eviction may be passed in favour of the plaintiff.
After that defendant amended para 37A of written statement which states that Gyanprakash is the illegitimate child of Onkardutt so he has no right to challenge the lease deed which was executed by Durgadutt on 9.1.1985. Thereafter, defendant has filed the amended written statement, the defendants had denied the averments of the plaint and it has been stated that they have paid the rent to the Gyanprakash by treating him to be the agent of Onkardutt; that on being demanded, the trust deed had not been shown to the defendants by Gyandutt and Durgadutt; that on being inspected the trust deed, it has come to the knowledge of the defendants that Durgadutt had not accepted execution of the trust deed; that on being annoyed, both Gyandutt and Durgadutt had filed separate suits for eviction against defendants Firm; that the suits were dismissed and the appeals against them were also dismissed; that after decision of the suit, the shop and Nohra in question were given on 99 years' lease on 09.01.1985 (sic 09.10.1985) to one Hanuman Bux S/o Ramchandra, resident of Nokha; that so many other facts were pleaded on behalf of the defendants.
(Downloaded on 09/02/2022 at 08:44:03 PM)
(9 of 118) [CFA-192/2010] On the basis of the pleadings of the parties in Civil Suit number 54/2005 for arrears of rent and eviction, the Trial Court had framed the following issues:-
^^01- vk;k izfroknh oknxzLr ifjlj nqdku o xksnke dk fdjk;k 300@& :i;k izfrekg dh nj ls fn- 2-9-86 ls 30-6-91 rd dk vnk u djds fMQkYVj gS \ &&oknh 02- vk;k oknxzLr ifjlj dh oknhx.k dks vius fuft fjgk;"k ,oa O;kikj ds fy, fjtuscy ,.M cksuk&QkbZM vko";drk gS \ &&oknh 03- vk;k izfroknh dks d`f'k mit eaMh] uks[kk }kjk nqdku o xksnke njxth ¼25 QqV x 80 QqV½ ,yksV gks tkus ds ckn izfroknh us viuk O;kikj ifjlj eqruktk ls LFkkukUrfjr dj fy;k gS tks izfroknh ds O;olk; ds fy, mi;qDr gksus ls oknhx.k ifjlj fjDr djkus ds vf/kdkjh gS\ &&oknh 04- vk;k ifjlj eqruktk fjDr u gksus dh lwjr esa izfroknh ds eqdkcys oknhx.k dks vf/kd dfBukbZ gS \ &&oknh 05- vk;k ifjlj eqruktk dk vkaf"kd csn[kyh ls oknhx.k dh vko";drk dh iwfrZ ugha gks ldrh \ &&oknh 06- vk;k ifjlj eqruktk ds fdjk;snkj izfroknh la- 2 us ifjlj eqruktk dk dCtk lcysV ;k vnjokbZt ikVZfon dj fn;k \ &&oknh 07- vk;k ifjlj eqruktk nkok nk;jh ls Bhd iwoZ fiNys ,d o'kZ ls yxkrkj can gS] vkSj blesa izfroknhx.k fiNys ,d o'kZ nkok nk;jh ls ifjlj eqruktk can j[kus ckcr~ mfpr dkj.k ugha gS \ &&oknh 08- vk;k okni= ds iSjk ua- 13¼N½ esa of.kZr rF;ksa ds vk/kkj ij izfroknh us ifjlj eqruktk esa rksM-&QksM-] jn~nkscny ,oa lkjHkwr ifjorZu fd;k gS \ &&oknh (Downloaded on 09/02/2022 at 08:44:03 PM) (10 of 118) [CFA-192/2010] 09- vk;k izfroknhx.k us oknh ds VkbZVy ls bUdkj fd;k gS vkSj oknhx.k dks viuk yS.MyksMZ ifjlj eqruktk ds laca/k esa gksuk ugha ekurk gS \ &&oknh 10- vk;k nkok nk;jh rd 10]800@& :i;k cdk;k fdjk;k oknhx.k izfroknhx.k ls ikus ds gdnkj gS \ &&okknh 11- vuqrks'k \ 10^^,^^ D;k oknhx.k }kjk nkok la- 60@03 rkjh[k 6-1-04 ls fcuk "krZ foMªk dj fy;k x;k vr% dkuwuu ml nkos dk QSlyk oknh ds f[kykQ gksuk le>k tkosxk vkSj bl izdkj Jhfuokl ,oa ohjknsoh }kjk of.kZr [kjhn dk okdk ,oa Kkuizdk"k }kjk vkt rd dk fdjk;k olwy dj ysuk ekuk tkosxk vkSj bl izdkj ekStwnk eqdnesa esa iwoZ ds nkos esa r; fu/kkZfjr fcUnq fd Jhfuokl ,oa ohjknsoh }kjk ifjlj [kjhn djuk lkfcr ugha gS ,oa rkjh[k QSlyk rd dk fdjk;k vcnau gks pqdk gS ds ckcr~ elyk jsltqMhdsVk vkfjt gS ,oa oknhx.k mijksDr fcUnqvksa dks nqckjk fu/kkZfjr djkus ds vf/kdkjh ugha gS \ &&izfroknhx.k^^ In support of plaint, Civil Suit number 54/2005 for arrears of rent and eviction, the witness only PW-1 Sriniwas Jhanwar had been examined and in support of defence, the only witness DW-1 Dev Kishan had been examined.
The Trial Court had decided issues No. 1 & 10 together in the manner that both the issues aforesaid had been decided in favour of the plaintiff and against the defendants. The Trial Court had discussed both these issues in detail and observed that the defendants had made a default in payment of rent and the plaintiff is entitled to vacate the premises in question on this ground. It (Downloaded on 09/02/2022 at 08:44:03 PM) (11 of 118) [CFA-192/2010] had also been observed by the Trial Court that upto the High Court, the plaintiffs had been treated to be the landlord of the properties in question and by virtue of attornment, the defendants are the tenants of the plaintiffs.
Issues No. 2, 3, 4, 5, 6, 7 & 8 had been decided against the plaintiffs as they do not press these issues.
Issue No. 9 regarding denial of title had been decided in the manner that the plaintiffs had been able to prove this issue by their evidence and contentions and by placing the relevant documents on record. While deciding this issue, the Trial Court had observed that it is clear that after the death of Onkardutt, Gyanprakash became the owner of the property and Gyanprakash sold the property in question to the plaintiff and for this reason, the defendants became the tenants of the plaintiffs.
Issue No. 10 "A" regarding application of principle of res judicata had been decided by the Trial Court in the manner that the burden to prove this issue was on the defendants and while discussing this issue in the light of the pronouncements of Hon'ble the Supreme Court and the High Court, it had been held by the Trial Court that the present suit is not barred by the principles of res judicata and in this way, this issue had been decided in favour of the plaintiffs and against the defendants.
While discussing the issue of "Relief", the Trial Court had observed that the plaintiffs are entitled to receive Rs.10,800/- as rent of the shop and godown in question and they have also been entitled to recover the arrears of rent due against the defendants and on this ground of default, the plaintiffs are entitled to a decree (Downloaded on 09/02/2022 at 08:44:03 PM) (12 of 118) [CFA-192/2010] of eviction. The defendants were directed to hand over the possession of the disputed property to the plaintiffs within a period of two months from the date of judgment.
For ready reference, the order dated 26.03.2010 passed by the Trial Court is reproduced herein as under:-
^^%%&@@ vkns"k &&@%% 33- ifj.kker% okn oknhx.k fo:} izfroknhx.k ckcr~ bu[kyk; nqdku o izkIr djus cdk;k fdjk;k izek.kksa ds vk/kkj ij bl vk"k; dk fMØh fd;k tkrk gS fd oknhx.k bu[kyk; dh fMØh izkIr djus ds vf/kdkjh gS rFkk nkok nk;jh rd cdk;k fdjk;k ifjlj nqdku ,oa uksgjk ¼xksnke½ dk 10]800@& :i;s izkIr djus ds vf/kdkjh gS ,oa okLrfod dCtk ifjlj eqruktk ikus rd gtkZuk ckcr~ mi;ksx o miHkksx ifjlj ds 300@& :i;s izfrekg ds fglkc ls oknhx.k izfroknh ls izkIr djus ds vf/kdkjh gS rFkk nkSjkus nkok izfroknhx.k }kjk dqy fdjk;k fnukad 02-09-86 ls nkok nk;jh rd vnk ugha fd;k x;k gS bl vk/kkj ij Hkh fMØh bu[kyk; ifjlj oknhx.k izkIr djus ds vf/kdkjh gS rFkk izfroknhx.k dks ;g vkns"k fn;k tkrk gS fd oks fu.kZ; dh fnuk¡d ls nks ekg ds Hkhrj oknxzLr ifjlj&lEifRr dk dCtk oknhx.k dks lEHkyk nsosA [kpkZ eqdnek i{kdkjku~ viuk&viuk ogu djsaxsA^^ Against the judgment and decree dated 26.03.2010, as aforesaid, passed by the Trial Court, S.B Civil First Appeal No. 192/2010 had been filed on behalf of the defendants on 22.05.2010, within limitation, by the learned counsel Mr. Sajjan Singh.
Another suit (55/2005) had also been filed by the plaintiff - Sriniwas Jhanwar against the defendants with the prayer that:- (Downloaded on 09/02/2022 at 08:44:03 PM)
(13 of 118) [CFA-192/2010] (1). Lease deed executed by Durgadutt in favour of Hanuman bux dated 09.01.1985 may be declared void ab initio and non effective and/or Plaintiffs may be declared as owner of disputed property and godowns which is mentioned in para 12 of the plaint and/or defendant no. 2 and 3 may be declared tenants of plaintiffs; (2). Civil suit No. 34/94 dated 2.6.1994, Civil Execution Case No. 2/94 (Hanuman Bux Vs. Firm Dhanraj Dev Kishan & Ors) and other proceedings may be declared void ab initio and non effective against the rights of plaintiffs;
(3). Defendants may be restrained by issuing permanent injunction that they may not interfare in the disputed property mentioned at para 12 of the plaint and/or except plaintiffs they may not handover the possession of the disputed property to any other person and/or they may be restrained from doing any act which is against the rights of the plaintiffs; (4). Cost of the plaint may be awarded to the plaintiffs an/or any other relief in favour of the plaintiff and against the defendants may kindly be granted; and.
and all the proceedings taken by the different defendants against the rights & interests of the plaintiff may be declared as without jurisdiction, null & void and in-operative because they have been initiated with collusion, fraud and under conspiracy.
By filing written statement to the suit aforesaid, the defendant No.1 had denied the pedigree of Nathmal, as mentioned in the plaint. It had been averred by the defendant No.1 that the only son of Onkardutt is Durgadutt, neither Gyanprakash is the (Downloaded on 09/02/2022 at 08:44:03 PM) (14 of 118) [CFA-192/2010] son nor Asha is the daughter; Surji devi was not the wedded wife of Onkardutt; Durgadutt had not executed the trust-deed; Onkardutt had no right to form the trust to regulate the properties and, therefore, the said trust is void ab initio. Gyanprakash had never been in possession of the properties in question and he is not the owner of the properties; actual possession over the properties in question is with the defendants No. 2 and 3 which is maintained; lease-deed and decree in favour of Hanuman Bux is not ab initio void; Durgadutt had given the shop and godown on 09.01.1985 through a registered lease-deed for a period of 99 years to Hanuman Bux by executing the lease-deed and Durgadutt had recovered the rent of the property and Hunuman Bux had recovered the total rent from the defendants No. 2 and 3; Hanuman Bux had got in his favour and against the defendants No. 2 and 3, a decree by filing Suit No. 34/1994 "Hanuman Bux Vs. Firm Dhanraj Dev Kishan" from the Court of Civil Judge, Bikaner on 02.06.1994 and pursuant to the execution proceedings, Hanuman Bux got the possession. Therefore, the present suit may be dismissed. By amending para No. 37-A, Durgadutt is the only son of Onkardutt and after death of Onkardutt, he became the owner of the properties in question and he had given the properties in question to the defendant No.1 on lease; Durgadutt had adopted a son and, therefore, the said trust- deed is ab initio void and for this reason, the sale-deed in favour of the plaintiff is also void; plaintiffs had no right to challenge the lease-deed executed in favour of the defendant No.1, therefore, suit may be dismissed.
(Downloaded on 09/02/2022 at 08:44:03 PM)
(15 of 118) [CFA-192/2010] By filing written statement, the defendants No. 2 and 3 had taken the same stand as was taken by the defendant No.1 in his written statement. The shop and godown in question had been taken on rent from Jamnadas and it was decided that the rent would be collected by Jamnadas himself or by sending anyone to recover the rent; after the death of Jamnadas, the only son of Jamnadas, Onkardutt or Gyanprakash or Durgadutt or Onkardutt himself had collected the rent; the rent which has been given to Gyanprakash, had been given on behalf of Onkardutt; Onkardutt resided at Bikaner and owner of the firm resided at Nokha thereby it was a matter of distance. On behalf of Onkardutt, Gyanprakash usually collected the rent and rent upto March, 1983 had been paid; no rent receipt had been given in the name of the trust; the defendants had come to know about formation of the trust after the death of Onkardutt and when Gyanprakash and Durgadutt had claimed themselves to the owners of the properties in question separately; the defendants had requested Gyandutt and Durgadutt to show the trust-deed and they had not showed the trust-deed; then, on being taken duplicate of the trust-deed from the Registrar, Bikaner, it was come in the knowledge of the defendants that the trust was formed by making Durgadutt and Onkardutt and Surjidevi as trustees and the trust-deed was allegedly executed by Onkardutt and Durgadutt but Sub-Registrar, Bikaner had made an endorsement that Durgadutt had not accepted execution of the trust-deed; it appears that due to the lacunae left in the trust-deed, Onkardutt had not taken any proceedings under the trust by treating the same as in-effective, in-operative, sham and bogus; Durgadutt had given the properties in question to (Downloaded on 09/02/2022 at 08:44:03 PM) (16 of 118) [CFA-192/2010] Hanuman Bux on 09.01.1985 through a registered lease-deed for a period of 99 years; the defendants had paid rent of the shop and godown to Hanuman Bux; pursuant to the execution of decree in Suit No. 34/94 "Hanuman Bux Vs. Firm Dhanraj Dev Kishan", Hanuman Bux had got a decree on 02.06.1994 and in execution of the decree, through sale ameen, he got possession on 14.09.1994; possession over the shop and godown in question is with Hanuman Bux and its tenants, therefore, the suit is not maintainable against them. Therefore, suit may be dismissed.
During the pendency of the suit aforesaid, on 19.05.2008, the applicants, namely, Bhanwarlal, Sanju Devi and Omprakash were impleaded as defendants No. 4, 5 & 6 in the suit.
The defendant Bhanwarlal had filed a written statement and had denied the averments made in the plaint and adopted the objections as taken by the other defendants. It had been averred that the defendant No.1 had given the properties in question through a registered lease-deed for a period of 19 years executed on 01.10.2007 and the same was assigned to him on 10.12.2007, meaning thereby, the lease period starts for a period of 19 years from 01.09.2007; the rights under the lease-deed accrued to the defendant Bhanwarlal Baheti.
The defendants - Omprakash and Smt. Sanju Devi had denied the averments taken in the plaint and had adopted the same objections as were raised by the other defendants; the defendant No.1, after getting possession from the defendants No. 2 & 3, by oral agreement accompanied with delivery of possession, had given the shop in question to the defendant (Downloaded on 09/02/2022 at 08:44:03 PM) (17 of 118) [CFA-192/2010] Omprakash on 01.10.1994 on rent of Rs.500/- per month and the defendant Omprakash had executed an acceptance-deed and delivered to defendant No.1 and thereby since times, defendant Omprakash had been the tenant of the defendant No.1; similarly, by the same way, the defendant Smt. Sanju Devi had come in possession of the shop in question on 01.10.1994 on rent of Rs.300/- per month. It has been averred in the written statement that without obtaining the decree of possession, the defendants could not be dispossessed from the shops in question. Therefore, the suit may be dismissed.
By filing subsequent pleadings on behalf of the plaintiff, para No.28 & 29 of the written statement of the defendants had not been accepted as the same were wrongly mentioned. It has been averred by the plaintiff that Nathmal Bhadani had one son Jamnadas and Jamnadas had one son Onkardutt and Onkardutt had two sons Durgadutt, blind by birth and Gyanprakash and one daughter Asha. Regarding formation of trust, it was averred that the trust deed had been registered with Sub-Registrar, Bikaner on 01.12.1973 and the properties in question were settled in favour of Gyandutt and by virtue of that, he is only the owner of the properties in question; that on the basis of Exhibit-18, rent receipt and Exhibit-6 and Exhibit-7, sale-deed dated 02.09.1986, Gyandutt is the landlord and the defendants No. 2 and 3 were his tenants. It had been averred that to save themselves from the decree, the defendants No. 2 and 3 had got executed rent-deeds in favour of near relatives, namely, Bhanwarlal Baheti and defendant No's. 3 son and daughter-in-law, namely, Omprakash (Downloaded on 09/02/2022 at 08:44:03 PM) (18 of 118) [CFA-192/2010] and Smt. Sanju Devi; the defendants No. 4 to 6 were the trespassers over the properties in question; Hanuman Bux had presented himself before the Court and accepted that he was the Munim of the Firm Dhanraj Devkishan; that no lease-deed was executed on 09.01.1985 by Durgadutt and no possession had been taken; to avoid the eviction decree, Devkishan had executed false lease-deed and he did not know Durgadutt; Gyanprakash had sold the properties in question to the plaintiffs on 02.09.1986 and Hanuman Bux had agreed that that possession of the properties in question may be handed over to the plaintiffs, therefore, the suit may be decreed in faovur of the plaintiffs and against the defendants.
On the basis of the pleadings of the parties, Civil Suit number 55/2005 for declaration, the Trial Court had framed the following issues:-
"01- vk;k uFkey th ds oa"k o`{k ds vuqlkj Lo- vkasdkj nRr th ds Kku izdk"k o vk"kk Øe"k% iq= o iq=h Fks o lwjtnsoh mudh iRuh Fkh o nqxkZnRr tUeka/k gksdj xr nl o'kksZa ls ykirk gS rFkk vksadkj nRr o nqxkZnRr us fnukad 1-12-73 dks fookfnr lEifRr dk VªLVukek Kkuizdk"k ds gd esa iathd`r djk;k \ && oknhx.k 02- vk;k Kku izdk"k us fookfnr lEifRr dk fdjk;k viuh vksj ls ekfyd ds :i esa QeZ /kujkt nsofd"ku ls izkIr fd;k \ && oknhx.k 03- vk;k nqxkZnRr dks VªLVukek iathd`r fn- 1-12-73 ds c:, fookfnr tk;nkn esa dksbZ ekfydku gd ugha Fkk o bl dkj.k mDr lEifr dk ,dek= ekfyd Kkuizdk"k Fkk] ftlesa izfroknh la- 2 o 3 fdjk;snkj ds :i esa dkfct Fks \ && oknhx.k (Downloaded on 09/02/2022 at 08:44:03 PM) (19 of 118) [CFA-192/2010] 04- vk;k nqxkZnRr dh rjQ ls izfroknh la- 1 guqekucD"k ds gd esa fu'ikfnr yht MhM fn- 9-1-85 rFkk mlds vk/kkj ij nkok la- 34@94 vuokuh guqekucD"k cuke QeZ /kujkt nsofd"ku esa U;k;ky; flfoy tt ¼o-[k-½ chdkusj }kjk ikfjr fMØh fnukad 2-6-94 QthZ gksdj dkuwuu "kwU; rFkk izHkkoghu djkj fn;s tkus ;ksX; gS\ && oknhx.k 05- vk;k vkSadkjnRr dks ekS:lh lEifRr dk VªLV dk;e djus dk dksbZ gd ugha Fkk vkSj nqxkZnRr us VªLV dk dksbZ fu'iknu rd ugha fd;k rFkk lwjtnsoh ftls VªLVh cuk;k gS] okLro esa ikxy Fkh \ & izfroknhx.k 06- vk;k vkSadkjnRr o lwjtnsoh dh e`R;q ds ckn rFkk vk"kk ds fookg ds mijkUr Kkuizdk"k dks fookfnr lEifr dk tks ekfyd cuk;k gS oks gj izdkj ls fx¶V gksdj mldh dksbZ rk;qu ugha dh xbZ o dksbZ M~;wVh ugha nh xbZ gS \ & izfroknhx.k 07- vk;k bl VªLV dh [kkfe;ksa dks en~nsutj vkSadkjnRr us mDr VªLV dks cksxl o vizHkkoh ekurs gq, mlds rgr dksbZ dk;Zokgh ugha dh \ & izfroknhx.k 08- vk;k vkSadkjnRr ds nsgkUr ds ckn Kku izdk"k o nqxkZnRr ds chp vkSadkjnRr ds okfjl gksus ds ckcr~ ruktk gqvk] ftlesa nqxkZnRr us lwjtnsoh dks vkSadkj nRr dh fookfgrk iRuh ugha ekuk o blfy;s Kkuizdk"k o vk"kk rFkk lwjtnsoh dks dksbZ gd fojklr ugha feyrk \ & izfroknhx.k 09- vk;k fookfnr nqdku o xksnke ij guqekucD"k o mlds fdjk;snkjkas dk dCtk gksus ds dkj.k oknhx.k dk ;g nkok izfroknh la- 2 o 3 ds f[kykQ pyus ;ksX;
ugha jgrk gS \ & izfroknhx.k
(Downloaded on 09/02/2022 at 08:44:03 PM)
(20 of 118) [CFA-192/2010]
09-,- vk;k izfroknh la- 1 izfroknh la- 2 o 3 ls tfj;s vnkyr dCtk ysus ds ckn tokcnkok ds iSjk la- 39 o 40 esa of.kZr lEifr;ksa izfroknh la- 5 o 6 dks fdjk;s ij nh\ ;fn gk¡] rks bldk okn ij D;k vlj gS \ 10- vuqrks'k\"
In evidence and to support the plaint, the plaintiff Sriniwas as PW-1 and Gyanprakash as PW-2 were examined. In defence, defendant No.1 Hanuman Bux, Bhanwarlal (DW-2), Hariprakash (DW-3), Manoj Kumar (DW-4), Sushil Kumar (DW-5), Omprakash (DW-6), Durgadutt (DW-7), Suresh Kumar (DW-8), Sanju Devi (DW-9) and Devkishan (DW-10) were examined.
Before dealing with the issues, the Trial Court had detailed out the different orders passed by it and by the High Court in different appeals or writs in relation to the property in question or suit in question.
The Trial Court had proceeded to decide Issues No. 1, 2 & 3 and Issues No. 5, 6, 7 & 8. The burden to prove issues No. 1, 2 & 3 was on the plaintiffs and the issues No. 5, 6, 7 & 8 were required to be proved by the defendants because all these issues were rebuttal of issues No. 1, 2 & 3. After discussing the facts in detail, taking into consideration the citations, and after discussing the entire evidence of the plaintiffs as well as of the defendants, it had been held that the trust-deed had been proved and as a result, issues No. 1, 2 & 3 were decided in favour of the plaintiffs and at the same time, issues No. 5, 6, 7 & 8 were also decided in favour of the plaintiffs and against the defendants. (Downloaded on 09/02/2022 at 08:44:03 PM)
(21 of 118) [CFA-192/2010] Issue No.4 was decided by the Trial Court in the manner that by virtue of registration of the trust-deed on 01.12.1973, Gyanprakash became the owner of the properties in question and Durgadutt had no right or interests, therefore, the lease-deed dated 09.01.1985 executed by him in favour of the defendant No.1 Hanuman Bux and on the basis of lease-deed, the Suit No. 34/1994 "Hanuman Bux Vs. Firm Dhanraj Dev Kishan" filed before the Court of Civil Judge, Senior Division, Bikaner and decree dated 02.06.1994 was declared fraudulent, void ab initio and in-effective being obtained by playing fraud. The properties in question remained in possession of the defendants No. 2 & 3. The collusive decree dated 02.06.1994 was passed by the learned Trial Court on the admission and on the application of the plaintiffs. In reply to the submissions made on behalf of the plaintiffs, learned counsel appearing on behalf of the defendants stated that no collusion has been made; Durgadutt had right to execute lease- deed and in compelling circumstances, the decree 02.06.1994 got executed.
The learned Trial Court on the basis of the submissions made on behalf of the learned counsel for the parties, on the basis of evidence led in the matter and under the guidance of judicial pronouncements had made its conclusions.
The learned Trial Court found proved the trust-deed and on the basis of Exhibit-6 and Exhibit-7, held that Gyanprakash is the owner of the properties in question. The learned Trial Court also held that all the proceedings taken against the interest of Gyanprakash by the different defendants were declared (Downloaded on 09/02/2022 at 08:44:03 PM) (22 of 118) [CFA-192/2010] conspiratory, collusive and obtained by playing the fraud and, therefore, they were void ab initio and in-effective. In this way, the issue No. 4 was decided in faovur of the plaintiffs and against the defendants.
Issue No. 9 & 9'A' were decided together by the learned Trial Court to avoid repetition of evidence. After discussing the issues in thorough detail, it was held by the learned Trial Court that the plaintiffs had came into knowledge about execution of the lease deed after passing of the Decree No. 34/1994 and, therefore, it cannot be said that the suit is beyond limitation. The learned Trial Court had rejected all the objections raised by the defendants. While deciding issues No. 9 & 9'A' in favour of the plaintiffs, learned Trial Court had observed that the possession over the properties in question were clearly remained with the defendants No. 2 and 3.
While deciding issue No. 10 regarding "Relief", the learned Trial Court held that the suit is required to be decreed in favour of the plaintiffs and all the proceedings taken against the owner of the properties in question, i.e., Gyanprakash, were declared ab initio void and at the same time, the defendants were directed not to interfere with the properties in question and they were restrained from doing any act against the rights of the plaintiffs.
For ready reference, the order dated 26.03.2010 passed by the Trial Court is reproduced herein as under:- (Downloaded on 09/02/2022 at 08:44:03 PM)
(23 of 118) [CFA-192/2010]
"%%&@@ vkns"k @@&%%
60- ifj.kker% okn oknhx.k fo:) izfroknhx.k ckcr~ izkIr djus fMØh ?kks'k.kkRed fd ttesUV o fMØh la- 34@94 guqeku cD"k cuke QeZ /kujkt nsofd"ku vkfn vnkyr flfoy tt ¼oŒ[kŒ½] chdkusj fnukad 02-06-94 ,oe~ mDr fMØh dk vk/kkj nLrkost yht MhM fnukad 09-01-1985 feu tkfuc nqxkZnRr cgd guqekucD"k izfroknh la[;k& ,d gjnks ceqdkcys oknhx.k vf/kdkjghu] QzkWMqysUV o dksY;qflc gksus ls ,fcfufl;ks ok;M ,.M buoSfyM gS ,oa izkIr djus fMØh LFkk;h O;kns"k fo:) izfroknhx.k izek.kksa ds vk/kkj ij fMØh fd;k tkdj vkns"k fn;k tkrk gS fd yht MhM fnukad 09-01-1985 feu tkfuc nqxkZnRr iq= vkSadkj nr Hkknkuh cgd izfroknh la[;k&01 guqekucD"k ceqdkcys oknhx.k ,fcfufl;ks] okbZM] "kwU;] fu'izHkkoh csvlj gS rFkk oknhx.k bl vk"k; dh ?kks'k.kkRed fMØh Hkh izkIr djus ds vf/kdkjh gS fd oknhx.k oknxzLr vpy lEifRr nqdku o xksnke ftldk gokyk nkos dh en la[;k&12 esa fn;k x;k gS ds ekfyd gS] Lokeh o LoRokf/kdkjh rFkk ceqdkcys izfroknh la[;k&nks o rhu ys.MykMZ gS ,oa fMØh la[;k&34@94 guqeku cD"k cuke QeZ /kujkt nsofd"ku vkfn vnkyr flfoy tt] ¼oŒ[kŒ½] chdkusj fnŒ 2-6-94 o btjk; nhokuh la[;k&02@1994 guqeku cD"k cuke QeZ /kujkt nsofd"ku vkfn ds laca/k esa reke dk;Zokfg;ksa ,fcfufl;ks okbM] ,oa ceqdkcys oknhx.k "kwU;] fu'izHkkoh] csvlj ?kksf'kr dh tkrh gS rFkk oknhx.k izfroknhx.k ds fo:) LFkk;h O;kns"k dh fMØh bl vk"k; dh izkIr djus ds vf/kdkjh gS fd izfroknhx.k oknxzLr vpy lEifRr ftudk gokyk nkos dh en la[;k&12 esa fn;k x;k gS esa dksbZ rksM+&QksM+] jn~nkscny] uo&fuekZ.k ugha djkos] u "kDy cnys] u tfj;s jgu] c; ;k vU; fdlh izdkj ls dCtk flok; oknhx.k ds fdlh vU; dks lqiqnZ ugha djsa u dksbZ d`R;&vd`R; djsa ftlls oknhx.k ds gdksa ij dqBkjk?kkr gks ;k gksus dh lEHkkouk gksA [kpkZ eqdnek i{kdkj viuk&viuk ogu djsaxsA" (Downloaded on 09/02/2022 at 08:44:03 PM)
(24 of 118) [CFA-192/2010] Being aggrieved against the judgment, order and decree dated 26.03.2010 passed by the Trial Court, all the defendants have filed separate first appeals before this Court.
Civil First Appeal No. 197/2010 and 192/2010 titled as "Firm Dhanraj Dev Kishan & Anr Vs. Sriniwas & Ors." has been filed by the defendants- Firm Dhanraj Devkishan & its proprietor Dev Kishan against the plaintiff-Sriniwas and other co-defendants. Civil First Appeal No. 206/2010 titled as "Omprakash & Anr. Vs. Sriniwas & Ors." has been filed by the defendants- Omprakash and Smt. Sanju against the plaintiff-Sriniwas and other co-defendants. Civil First Appeal No. 240/2010 titled as "Bhanwar Lal Vs. Sriniwas & Ors." has been filed by the defendant Bhanwar Lal against the plaintiff-Sriniwas and other co-defendants.
Learned Senior Advocate Mr. Manish Singhvi, learned Senior Advocate Mr. Ravi Bhansali assisted by the learned counsel Mr. Dhanesh Saraswat appearing for appellant/defendant - Bhanwar Lal in S.B. Civil First Appeal No. 240/2010 titled as "Bhanwarlal Vs. Sriniwas", stated that initially the written statement of specific denial was filed by the defendant No.1 Hanumanbux. Thereafter, by entering with the collusion with the plaintiff, one affidavit was filed by Hanumanbux in order to support the case of the plaintiff; and Order 19 Rule 2 CPC as well as Section 1 of the Evidence Act, evidence can be produced by affidavit for limited purposes and as per Section 1 of the Evidence act, affidavit is not coming with the purview of definition of evidence and due to reason of collusion, it was stated on behalf of the plaintiff that he does not want to cross-examine on the (Downloaded on 09/02/2022 at 08:44:03 PM) (25 of 118) [CFA-192/2010] affidavit and no opportunity was given to the defendant against whom interest, affidavit was filed. Evidence in the mode of affidavit can be filed when it was demanded by the Court otherwise, not permissible in the mode of affidavit.
A lease deed was executed on 23.11.2007 by Durgadutt in favour of Bhanwarlal.
Suit was filed for declaration to this effect that the lease deed executed in favour of Hanumanbux on 09.01.1985 may be declared as null and void and the relevant decree of eviction dated 02.06.1994 passed by the Civil Judge (Senior Division), Bikaner in Civil Suit No. 34/1994 may kindly be declared as null and void for the reason that the decree is collusive and being obtained by playing fraud with the Trial Court.
Admittedly, the suit was filed on 20.02.1996, therefore, the suit was hopelessly time barred for declaration of lease deed of 1985 to be null and void.
It was clearly pleaded in para number 26 of the plaint that the suit was filed within limitation on the basis of the pleadings mentioned at para number 23 of the plaint, i.e., on the basis of knowledge because admittedly, the lease deed was executed in the year 1985 and it is settled position of law that if the plaintiff comes with a case that due to some reason, the suit is within limitation, it was the duty of the learned Trial Court to frame specific issue in this regard and burden will be on the plaintiff although no separate issue was framed by the learned Trial Court in regard to limitation but by giving finding in regard to issue No. 9 and 9A, that point was covered by the learned Trial Court and it (Downloaded on 09/02/2022 at 08:44:03 PM) (26 of 118) [CFA-192/2010] was wrongly held that the suit was filed within limitation from the date of knowledge, i.e., 24.07.1996 when threatening regarding material addition and alteration and raising of new construction was given by the defendants because in earlier suit which was filed by the same plaintiff - Sriniwas (Suit No. 54/2005) for arrears of rent and eviction against the firm Dhanraj Devkishan and its proprietor Devkishan. In para number 13G, one of the ground was taken on the basis of material alterations, new construction etc. and that suit was filed on 05.07.1991, therefore, it is wrong to say that the fact of execution of the lease deed in the year 1985 came within the knowledge of the plaintiff Sriniwas first time only in the year 1996. It is also stated that Durgadutt was a necessary party to that suit, therefore, the suit was liable to be dismissed on the ground of non-joinder of the party itself and it was also clear from the written statement which was filed on 22.05.1992.
It is also stated that in another case where title in the cloud, relief of declaration of title, it cannot be held that Gyanprakash @ Gyandutt was the absolute owner of the property in question. It is also stated that the relief for possession was not sought for. It is also stated that the suit for declaration of lease deed dated 09.01.1985 was time barred and the second prayer became meaningless and it will not survive that the decree dated 02.06.1994 goes and in that situation, it cannot be said that the lease deed dated 09.01.1985 was not properly executed or the decree was collusive and on the same ground, it cannot be held that the decree was a collusive decree.
(Downloaded on 09/02/2022 at 08:44:03 PM)
(27 of 118) [CFA-192/2010] Section 3 of the Limitation Act says that vague averments in the suit with regard to limitation are not permissible. In the present case, even after the statement of Durgadutt as DW-7, the Trial Court was not bothered to direct the plaintiff to implead/join Durgadutt as a defendant while deciding issue No.10 in favour of the plaintiff in which it was to be decided that Durgadutt was missing from 10 to 12 years prior to the date of filing of the suit.
It is also stated that the suit was filed on the basis of sale- deeds (Ex. 6 &7) and the sale-deeds were executed by Gyanprakash @ Gyandutt on the basis of the trust deed, which shows that the plea was falsely taken by the plaintiff with the intention to claim sole ownership and since dispute arises between Gyanprakash @ Gyandutt and Durgadutt, both the brothers, in regard to ownership over the property in question after the death of Onkardutt, suits for arrears of rent and eviction were filed by both the brothers. In that view of the matter, both were necessary parties to the present suit, therefore, the suit was liable to be dismissed on the ground of non-joinder of the necessary parties.
It was wrongly mentioned in the plaint that Durgadutt was missing since last 10 to 12 years whereas, no Missing Person Report (MPR) was filed, no advertisement was published in the newspapers, during trial, he had appeared before the learned Trial Court and examined as DW-7.
Proviso to Section 34 of the Specific Relief Act states that:-
"Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."(Downloaded on 09/02/2022 at 08:44:04 PM)
(28 of 118) [CFA-192/2010] Section 42 of the Specific Relief Act states that:-
"42. Injunction to perform negative agreement.
-- Notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement:
Provided that the plaintiff has not failed to perform the contract so far as it is binding on him."
Hon'ble the Apex Court has held that it is relevant that what relief is sought for, no declaration to this effect was sought that Durgadutt is missing since last 10 to 12 years from the date of filing of the suit.
While reading proviso to Section 34 of the Specific Relief Act, learned counsel for the appellant further stated that mere declaration, without claiming consequential reliefs, cannot be sought. In support of this argument, learned counsel for the appellant has referred to and relied upon the judgment of Hon'ble the Supreme Court rendered in the case of Inacio Martins through Lrs Vs. Narayan Hari Naik & Ors., reported in 1993 (3) SCC 123, vide para 6. Lastly, learned counsel for the appellant stated that the relief as sought for was incomplete. Therefore, the above suit for declaration was not maintainable.
Learned counsel further stated that as per the pleadings and the evidence, as available on record, it is clear that the property in (Downloaded on 09/02/2022 at 08:44:04 PM) (29 of 118) [CFA-192/2010] question was an ancestral property; initially, the patta was issued in the name of Jamnadas S/o Nathmal; the property in question was not self acquired property of Onkardutt; the plaint was filed before amendment of 2005 and at that time, there was four owners of the property in question as per Section 6 of the Hindu Succession Act. It was admitted by the plaintiff as well as by the seller Gyanprakash @ Gyandutt that Surjidevi was of unsound mind, therefore, she was not competent to execute the trust deed but despite of that, she was added as one of the trustee in the trust deed, therefore, the constitution of the trust deed itself was bad. Learned counsel further stated that if the trust deed is not valid and the transactions of the sale on the basis of the trust deed is also invalid. As the title over the property in question was in cloud, therefore, the entire suit was liable to be collapsed.
While referring to para numbers 2, 3 and 4 of the trust deed dated 22.09.1973, it is stated that these paragraphs are important and while referring to para number 4 and 5 at page number 1 of the trust deed, it was mentioned that for the benefit of Durgadutt, another trust deed will be executed/created but as per the pleadings and evidence, available on record, no such trust was created. Learned counsel also stated that it is not possible that a person, not taking care of the rights of his son, who was blind by birth and his wife, who was of unsound mind, would create trust only in favour of one son. The thumb impressions of Durgadutt, Surjidevi and Gyanprakash @ Gyandutt were also available on the trust deed dated 22.09.1973. Learned counsel stated that it is an undisputed fact that Durgadutt was blind by birth, Surjidevi was of (Downloaded on 09/02/2022 at 08:44:04 PM) (30 of 118) [CFA-192/2010] unsound mind and Gyanprakash @ Gyandutt was a minor son having age of 12 to 13 years, therefore, it can be said that the alleged trust deed was not executed as per the legal requirements of the Indian Trust Act.
While reading the provisions contained under Sections 19, 20 and 77 of the Indian Trust Act, learned counsel for the appellant stated that how the trust can be created and extinguished. Section 77 of the Act states that how the trust will be extinguished. In the present case, for the some conditions, as mentioned in Clause (iv) of the trust deed dated 22.09.1973 which were not fulfilled at the time of execution of the sale deeds (Ex. 6 & 7) because Surjidevi was alive on 02.09.1986, which is the date of sale, therefore, Gyanprakash @ Gyandutt was not entitled to devolve the property in question and, therefore, sale is a nullity because the sale deeds were executed on the basis of the trust deed and as stated above, on the basis of this arguments advanced earlier by the learned counsel for the appellants in this case, it is clear that on the basis of trust deed, right of sole ownership was not created in favour of Gyanprakash @ Gyandutt.
Learned counsel for the appellant has referred to different provisions of Indian Trust act. Therefore, it would be very appropriate to deal with the relevant provisions of law, i.e., Section 3, Section 19 and Section 20 of the Indian Trust Act,1882:-
Section 3. Interpretation-clause--"trust":-- A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of (Downloaded on 09/02/2022 at 08:44:04 PM) (31 of 118) [CFA-192/2010] another and the owner: "author of the trust":
"trustee": "beneficiary": "trust-property": "beneficial interest" : "instrument of trust":-- the person who reposes or declares the confidence is called the "author of the trust": the person who accepts the confidence is called the "trustee": the person for whose benefit the confidence is accepted is called the "beneficiary": the subject-matter of the trust is called "trust-property" or "trust-money": the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the "instrument of trust": "breach of trust":--a breach of any duty imposed on a trustee, as such, by any law for the time being in force, is called a "breach of trust": "registered":--and in this Act, unless there be something repugnant in the subject or context, registered" means registered under the law for the registration of documents for the time being in force:
"notice":--a person is said to have "notice" of a fact either when he actually knows that factor when, but for wilful abstention from inquiry or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent, under the circumstances mentioned in the Indian Contract Act, 1872 (9 of 1872), section 229; Expressions defined in Act 9 of 1872:--and all expressions used herein and defined in the Indian Contract Act, 1872 (9 of 1872), shall be deemed to have the meanings respectively attributed to them by that Act.
Section 19. Accounts and information.--A trustee is bound (a) to keep clear and accurate accounts of the (Downloaded on 09/02/2022 at 08:44:04 PM) (32 of 118) [CFA-192/2010] trust- property, and (b), at all reasonable times, at the request of the beneficiary, to furnish him with full and accurate information as to the amount and state of the trust-property.
Section 20 deals with Investment of trust-money As per the trust deed dated 22.09.1973, Gyanprakash @ Gyandutt and Asha Devi were the beneficiaries of the trust and the beneficiaries cannot be made the trustees of the trust, managing the property in question.
Section 77 sub-clause (i) of the Indian Trust Act is very important for final adjudication in regard to the rights of the Gyanprakash @ Gyandutt and the plaintiff Sriniwas.
As per Chapter VI contained in Indian Trust Act, discussing the rights and liabilities of the beneficiary, creation of the trust deed dated 22.09.1973 in the present case is bad in the eye of law.
As per Sections 3, 19 and 20 of the Indian Trust Act, creation of the trust deed dated 22.09.1973 is bad in the eye of law.
Issue in regard to collusive decree dated 13.11.2007 : The property purchased from Durgadutt was not under challenge.
It is further stated that affidavit is not treated as evidence. Section 5 of the Indian Evidence Act says that evidence can be given on every facts in issue.
Section 3 of the Indian Evidence Act defines facts in issue. Section 1 of the Indian Evidence Act bars affidavit to be taken as evidence.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(33 of 118) [CFA-192/2010] Affidavit is not deposition, therefore, the decree as passed by the learned Trial Court ought to be reversed. Lastly, it was argued that the beneficiaries have not right to file the suit on the basis of the sale-deeds (Ex.6 & 7).
In support of his contentions, learned Senior Advocate Dr. Manish Singhvi assisted by Mr. Dhanesh Saraswat appearing on behalf of the appellant - Bhanwar Lal (CFA No. 240/2010) has referred to and relied upon the following judgments:-
1. Dy. Commissioner, Hardoi Vs. Rama Krishna Narain & Ors., reported in AIR 1953 SC 521;
2. Anathula Sudhakar Vs. LRs P. Buchi Reddy & Ors., reported in (2008) 4 SCC 594;
3. Muni Lal Vs. Oriental Fire & General Insurance Co. Ltd. & Ors., reported in (1996) 1 SCC 90;
4. Noharlal Verma Vs. District Cooperative Central Bank Ltd.
Jagdalpur, reported in (2008) 14 SCC 445;
5. Union of India & Ors. Vs. West Coast Paper Mills Ltd. & Anr., reported in (2004) 2 SCC 747; and
6. Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr., reported in (2005) 4 SCC 370.
Learned counsel Mr. Manoj Bhandari appearing on behalf of the appellant/defendant - Omprakash and Smt. Sanju, in S.B. Civil First Appeal No. 206/2010 titled as "Om Prakash Vs. Sriniwas" stated that in addition to the arguments advanced by the other counsel, stated that after the compromise decree of the suit which was filed by Hanumanbux against the firm Dhanraj (Downloaded on 09/02/2022 at 08:44:04 PM) (34 of 118) [CFA-192/2010] Devkishan and Devkishan, another lease deed was executed in favour of Bhanwarlal by Shri Hanumanbux for a period of 19 years and the same was registered but that deed was never challenged by any of the parties and inspite of that, the learned Trial Court observed that since the earlier decree in favour of Hanumanbux was set aside, consequential proceedings have no force.
While deciding issue No.4, the learned Trial Court, vide para 37, page number 63 to 65 of the impugned judgment, wrongly held that the decree passed in favour of Hanumanbux was a collusive decree only on the basis of presumptions and without any legal evidence.
Rent was paid by the appellant (Om Prakash) to Bhanwarlal and this fact was not considered by the learned Trial Court. It is further stated that the trust deed which was allegedly executed by Onkardutt in favour of Gyanprakash @ Gyandutt was the basis of sale-deeds as well as plaint but the same was not proved according to law of evidence. Without proving the trust deed, it cannot be presumed that at the time of sale, Gyanprakash @ Gyandutt has right of absolute ownership. The sale-deeds cannot be executed by Gyanprakash @ Gyandutt without the consent of mother Surjidevi. Defendant Nos. 3, 5 and 8 were the tenants of defendant No. 4 Bhanwarlal. It is further stated that no relief for getting the possession was sought for in the plaint and, therefore, the possession of the appellant cannot be disturbed.
Learned counsel Mr. Sajjan Singh along with Mr. Prashant Tatia appearing on behalf of the appellants/defendants in S.B. Civil (Downloaded on 09/02/2022 at 08:44:04 PM) (35 of 118) [CFA-192/2010] First Appeal No. 192/2010 and 197/2010 titled as " Firm Dhanraj Devkishan Vs. Sriniwas", Shri Sajjan Singh, learned counsel appearing for the appellants in CFA No.197/10 submits that a suit for declaration was filed by Sriniwas against six defendants namely, DW-1 Hanuman Bux, DW-2 Firm Dhanraj Devkishan, DW-3 Devkishan, DW-4 Bhanwarlal, DW-5 Omprakash and DW-6 Smt. Sanju on the ground that the property in question was sold by Gyanprakash @ Gyandutt, the alleged sole owner of the property, by virtue of the trust deed executed by Onkardutt to the plaintiff and some of the portion to the mother of the plaintiff- Vira Devi and by virtue of the sale deed, the plaintiff became owner of the property. Earlier a suit being Original Civil Suit No.44/82 (Durgadutt Vs. Devkishan) was filed by Durgadutt, which was decided on 26.07.1982, for arrears of rent and eviction against the tenant Firm Dhanraj Devkishan and Devkishan in person. In that suit, it was pleaded by the defendants that Durgadutt is not the landlord of the property and his landlord is Gyanprakash @ Gyandutt. The rent upto March, 1983, was paid to Gyanprakash @ Gyandutt. It is also stated that one suit was filed by Hanuman Bux against tenants, on the basis of the lease deed executed by Durgadutt in favour Hanuman Bux, as per the plaintiff/respondents in that suit, collusive decree was obtained and in execution of that decree, in paper the possession was handed over to the decree holder but infact the tenant remain in physical possession. The present suit was filed with the following reliefs :
(Downloaded on 09/02/2022 at 08:44:04 PM)
(36 of 118) [CFA-192/2010]
(i) The lease deed executed on 09.01.1985 may be declared ineffective, void ab initio and null & void up to the extent of plaintiff;
(ii) For declaration that the plaintiffs are owner of defendants no.2 & 3 for the rented shop and godown;
(iii) The decree passed in Civil Suit No.33/94 (Hanuman Bux Vs. Firm Dhanraj Devkishan and Others) by the Civil Judge (Senior Division), Bikaner dated 02.06.1994 and all the proceedings of Civil Suit No.2/94 shall be declared void ab initio, null and void.
It is further prayed that permanent injunction to this aspect shall be granted that defendants shall be restrained by decree of permanent injunction that they will not damage and change the property mentioned in para no.12 of the plaint and no construction, addition and alteration shall be made by the defendants.
Lastly, it was prayed that decree of this aspect may also be passed that the defendant will not transfer the property by way of sale or mortgage or by any other manner to any other person and the defendant shall be restrained to do any act which may adversely affect the rights of the plaintiffs.
On the basis of written statement of DW1-Hanuman Bux, DW2 & 3, DW4-Bhanwarlal, DW5-Omprakash and DW6-Smt. Sanju, total ten issues were framed including amended issue no.9A and after evidence of both the sides, the parties, the suit was wrongly decreed in favour of plaintiff-respondent no.1 Sriniwas.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(37 of 118) [CFA-192/2010] While passing the impugned judgment, learned trial court decided jointly issues no.1 to 3 and 5 to 8. The burden of issues no.1 to 3 are on the plaintiffs-respondents and burden of issues no.5,6,7 & 8 was on the defendant appellant and remaining respondents.
Learned counsel for the appellant-defendant further stated that the patta of the disputed property (land) was issued in the name of Jamnadas S/o Nathmal Bhadani, resident of Bikaner and Onkardutt was the only son of Jamnadas. As per the plaintiff, one trust-deed was executed by Onkardutt and Durgadutt in favour of Gyanprakash @ Gyandutt. As per the plaintiff, the disputed property was given on rent by Onkardutt whereas, as per tenants, the property was given on rent by Jamnadas himself. It is an admitted fact that the rent upto 31.08.1981 was paid to Onkardutt. Learned counsel for the appellant-defendant also stated that since Durgadutt was blind by birth, one trust deed was executed by Onkardutt in favour of Gyanprakash @ Gyandutt on 22.09.1973. Learned counsel stated that this pleading of the plaintiff was wrong that by virtue of this trust deed, Durgadutt has no right to execute a lease deed in favour of Hanumanbux. Since the trust deed was not executed as per law, rights of Durgadutt, who is blind by birth, Smt. Surjidevi, wife of Onkardutt and minor daughter Asha were not protected and no reason was given that why trust deed was executed in favour of Gyanprakash @ Gyandutt only. He further stated that as per condition number 4 of the trust deed, it is condition precedent that the trust deed would come into force only after death of Onkardutt as well as his (Downloaded on 09/02/2022 at 08:44:04 PM) (38 of 118) [CFA-192/2010] wife Smt. Surjidevi and when Gyanprakash @ Gyandutt become adult and it was also a condition that the trust deed will not come into effect prior to marriage of Asha. All these conditions were not fulfilled at the time of execution of the sale deed of the disputed property in favour of plaintiff Sriniwas and Vira devi in the year 1986. Onkardutt had passed away on 10.10.1981 and Smt. Surjidevi had expired on 21.10.1995, much after the execution of the sale deed. It was also not proved that Asha was married before the execution of the sale deed, therefore, Durgadutt was very well competent to execute the lease deed in favour of Hanumanbux. He further stated that on behalf of the above mentioned lease deed, rent was taken by Hanumanbux and number of rent receipts were issued by Hanumanbux and the same were filed in another rent suit filed by Sriniwas and Viradevi but since, the defence in relation to default in payment of rent was struck off by the learned Trial Court in the suit for eviction and arrears of rent, therefore, those rent receipt could not be marked as exhibits. He further stated that on the basis of lease deed, suit was filed by Hanumanbux against the firm Dhanraj Dev Kishan (Appellants of CFA No. 197/2010). The suit was decreed and in execution of that decree, possession of the disputed property was handed over to the decree-holder Hanumanbux in the presence of Sale Ameen in the year 1994. Report of the Sale Ameen regarding handing over of the possession was also submitted on record, therefore, it was wrongly held by the learned Trial Court that the decree was collusive decree and in fact, physical possession was not handed over to the decree-holder Hanumanbux. It is further stated that the property in question (Downloaded on 09/02/2022 at 08:44:04 PM) (39 of 118) [CFA-192/2010] was not self acquired property of Onkardutt, it was an ancestral property and pattas were issued in favour of Jamnadas and Jamnadas was alive at the time of birth of Durgadutt. In that view of the matter, it was also wrong to say that after death of Jamnadas, Gyanprakash @ Gyandutt was only the heir of Jamnadas and Durgadutt was not competent to create trust deed in favour of Gyanprakash @ Gyandutt only.
As per Clause (iv) of the trust deed dated 22.09.1973, it will come into force when conditions mentioned in that clause will fulfilled, i.e., (i) After death of Onkardutt and Surjidevi; (ii) When Gyanprakash @ Gyandutt will become adult; (iii) After the marriage of Asha. At the time when the sale deeds were executed by Gyanprakash @ Gyandutt on 02.09.1986, as per evidence available on record, Surjidevi was alive and she was expired on 21.10.1995. Similarly, the date of marriage of Asha was not disclosed by PW-1 and PW-2, therefore, it cannot be held that the right of ownership was created in favour of Gyanprakash @ Gyandutt at the time of execution of the sale-deeds (Ex. 6 & 7) because the word "AND" was used in between the names of Onkardutt and Surjidevi, it means that death of both was the condition precedent and it was also necessary that Gyanprakash @ Gyandutt would attained the age of majority thus, only two conditions were fulfilled at the time of execution of the sale-deeds, i.e., Onkardutt was expired on 10.10.1982 and Gyanprakash @ Gyandutt attained the age of majority in the year 1978, remaining two conditions, as mentioned in Clause(iv) were not fulfilled which is reproduced hereinbelow :
(Downloaded on 09/02/2022 at 08:44:04 PM)
(40 of 118) [CFA-192/2010] ^^4- vksadkjnÙk rFkk lwjt ckbZ dh ftUnxh dh lekfIr ij tc Hkh KkunÙk ckfyd gks tk;xk ;g VªLV Lor% lekIr gksdj KkunÙk bl VªLV dh laifÙk dk Lokeh gks tk;sxkA fdUrq lqJh vk"kk dh "kknh ls iwoZ ,slk u gks ldsxkA 5- Jherh lwjtckbZ VªLVh dks vf/kdkj gksxk fd bl VªLV ds iz;ksstu dh iwfrZ gsrq vxj vko";d le>s rks tqt ;k dqy VªLV laifÙk dks fdlh Hkh izdkj ls eqUrfdy dj ldsxhA vksadkjnÙk dh ftUnxh esa ,slk bUrdky mldh lgefr dss fcuk u gks ldsxkA^^ It is also stated that without trust deed, Gyanprakash @ Gyandutt was having only one-fourth share in the property. It is also questioned that whether the trust deed could come into force at that time because even after attaining the age of majority by Gyanprakash @ Gyandutt in the year 1978, as per statement of PW-2 Gyanprakash @ Gyandutt himself, the rent was received by Onkardutt himself upto the month of August, 1981. It is also stated that none of the rent receipts were issued by the trust, all the rent receipts were issued in the personal capacity of Onkardutt or by Gyanprakash @ Gyandutt. It is also an admitted position of fact that no notice, written information has been given by Gyanprakash @ Gyandutt after the death of Onkardutt and there is no evidence that the fact of death of Onkardutt was within the knowledge of the tenant-Devkishan since creation of the trust deed in the year 1973 till execution of the sale deeds in the year 1986; not a single receipt was issued by the trust or being a trustee by Gyanprakash @ Gyandutt or anyone, it means that the trust was never act upon before the date of execution of the sale deeds, therefore, the sale deeds (Ex. 6 &7) executed by Gyanprakash @ Gyandutt is without right of absolute ownership. (Downloaded on 09/02/2022 at 08:44:04 PM)
(41 of 118) [CFA-192/2010] It is also stated that as per clause (iv) of the trust deed, even in emergent situation, the right to sale was given to Surjidevi, not to Gyanprakash @ Gyandutt. The reason of sale was given at page number -1 of the sale deed (Ex.6) that the illness of Surjidevi and as per plaintiff, Surjidevi was of unsound mind but no prior permission was obtained from any competent Court for execution of the sale deeds on behalf of Surjidevi, therefore, the sale deeds (Ex. 6 & 7) executed by Gyanprakash @ Gyandutt in favour of the plaintiff - Sriniwas are void ab initio.
It is also stated that as per para 9 of the written statement submitted by the defendant No. 1-Hanumanbux, it was pleaded that Durgadutt was a necessary party to the suit but he has not been impleaded as party to the suit. On the basis of simple pleading, without any documentary or oral evidence, it cannot be presumed that Durgadutt was missing since 10 to 12 years on the date when suit was filed and no presumption regarding civil death of Durgadutt can be drawn.
The lease deed (Ex.39) executed by Durgadutt in favour of Hanumanbux in the year 1985 was rightly executed by Durgadutt in favour of Hanumanbux because undisputedly, Durgadutt was the elder son of Onkardutt and after the death of Onkardutt, suits seeking eviction and recovery of arrears of rent were filed by both the sons against the tenant and there was no dispute in regard to ownership over the property in question and no suit for partition or proceedings for succession have been initiated by either of the sons. There is no specific pleading in the plaint that on what basis, the decree passed in favour of Hanumanbux against the firm Dhanraj Devkishan and proprietor Devkishan is fraudulent (Downloaded on 09/02/2022 at 08:44:04 PM) (42 of 118) [CFA-192/2010] simply because, a defendant appeared before the Court without service and a compromise was submitted by the parties to the suit on the basis of settlement, out of the Court, it cannot be held that the decree is fraudulent. It is further stated that all the grounds were taken in the written statement which were necessary and can be taken as per law.
The date of death of Jamnadas and Surjidevi and date of marriage of Asha were intentionally not mentioned in the plaint because Durgadutt was born during the lifetime of Jamnadas, for this reason, it can not be said that Onkardutt was the sole owner of the property in question after the death of Jamnadas and Surjidevi was passed away in the year 1995, therefore, Gyanprakash @ Gyandutt will not become the sole owner of the property in question keeping in view the conditions as mentioned in Clause (iv) of the trust deed dated 22.09.1973.
It is also stated that the facts, as mentioned at page number-1 of the sale deeds (Ex.6 & 7), are false because as per Clause (iv) of the trust deed, at the time of execution of the sale deeds, Gyanprakash @ Gyandutt was not the sole owner of the property in question.
The learned Trial Court has decided eight (08) issues together/jointly on the ground that all the issues are co-related with each other.
It is further stated that the judgment on the suit filed for eviction and arrears of rent was based upon the findings arrived in the suit for declaration and findings arrived at in that suit were based upon the suit which was filed by other person against other persons; and neither the plaintiff was a party to that suit nor the (Downloaded on 09/02/2022 at 08:44:04 PM) (43 of 118) [CFA-192/2010] defendant was a party to that suit and on the basis of the findings of that suit, it was held that since the lease deed was proved in that suit by the evidence of the attesting witnesses of document etc., therefore, Gyanprakash @ Gyandutt was became the sole owner of the property in question at the time of execution of the lease deed. Attesting witnesses or their legal representatives were not came in the witness box, therefore, it was not proved that who put their signatures on the document as attesting witnesses. It is settled position of law that the parties are not bound by the judgment of earlier suit when they are not the parties in the earlier suit and judgment passed by the Court concerned is a judgment in personam, not judgment in rem.
Trust deed in the present suit was exhibited during the statement of PW-2 Gyanprakash @ Gyandutt, who was admittedly 13 years old minor child at the time of creation of the trust deed which was executed in the year 1973; and the statement of Gyanprakash @ Gyandutt was recorded in the year 2007, i.e., after a lapse of 34 years, therefore, on the basis of statement of PW-2, it was wrongly held that the document i.e. Trust deed dated 22.09.1973 was proved by PW-2 Gyanprakash @ Gyandutt.
It is also stated that on the basis of the written statement (Ex.14) of the proprietor Devkishan which was filed in the suit for eviction and arrears of rent filed by Durgadutt wherein, Devkishan pleaded that during the lifetime of Onkardutt, the rent was received by Gyanprakash @ Gyandutt on behalf of Onkardutt and even till the year 1983, rent was received by Gyanprakash @ Gyandutt, therefore, Gyanprakash @ Gyandutt was his landlord and Durgadutt was not his landlord. It was presumed by the (Downloaded on 09/02/2022 at 08:44:04 PM) (44 of 118) [CFA-192/2010] learned Trial Court that it is an admission on behalf of the tenant Devkishan that Gyanprakash @ Gyandutt was the owner of the property in question whereas as per Section 3 of the Rajasthan Premises (Control of Rent) Act, 1950, a person who receiving the rent is landlord and suit for eviction and arrears of rent etc. can be filed by that person but on that basis, he has not right to transfer the property.
It is further stated that earlier in the year 1983, one suit was filed by Gyanprakash @ Gyandutt against one Motilal and Durgadutt which was decided on 17.12.2005 and, therefore, in the present suit which was filed in the year 1996, it was wrongly said that Durgadutt was missing since 10 to 12 years, because in that suit, it is not the case that the Durgadutt is missing. It is also relevant question that whether service upon a blind person can be accepted through publication in a daily newspaper and it is also a relevant question that such notice was published in which of the newspaper, whether newspaper of local area or whether newspaper of State level or National level. Only on the basis of those judgments, it was presumed that Durgadutt was missing from last 10 to 12 years at the time of filing of the suit.
Rent Deed was executed by Ramchandra in favour of Jamnadas in the year 1959, i.e., the grand-father of Gyanprakash @ Gyandutt and at that time, Gyanprakash @ Gyandutt was not born and Onkardutt and Durgadutt were alive.
No proceedings were initiated against Hanumanbux for filing a wrong suit and for receiving rent from the tenant.
It is one of the part of issue No.1 that Durgadutt was missing for last 10 to 12 years; no evidence to this effect was adduced on (Downloaded on 09/02/2022 at 08:44:04 PM) (45 of 118) [CFA-192/2010] behalf of the plaintiff and even no Missing Person Report was filed or no news or advertisement in regard to missing of the Durgadutt was published in any of the newspaper and during the pendency of the suit, Durgadutt appears before the Court and his statement was recorded as DW-7 but this aspect of the matter was overlooked by the learned Trial Court at the time of arriving finding upon issue No.1.
As per page number 1 of the trust deed dated 22.09.1973, the trust was created for the benefit of Onkardutt, Surjidevi i.e., wife of Onkardutt and minor daughter Ms. Asha and the minor son Gyanprakash @ Gyandutt and the trust was named as "Smt. Suraj Bai Bhadani Private Trust".
It is also stated that formation of the trust creates doubt because the trust was created by two persons, i.e., Onkardutt and Durgadutt and both of them became trustees of the trust and subsequently, Surjidevi was also added as a trustee as well as beneficiary of the trust.
The trust deed was wrongly accepted as genuine document in the findings of the learned Trial Court arrived at page number 48 to 50 of the impugned judgment on the basis of the findings given in other suits which were filed by other persons and against other persons.
In support of his contentions, learned counsel Mr. Sajjan Singh appearing on behalf of the appellant-defendant Dhanraj Dev Kishan (CFA No. 197/2010) has referred to and relied upon the following judgments:-
(Downloaded on 09/02/2022 at 08:44:04 PM)
(46 of 118) [CFA-192/2010]
1. T.V. Ramakrishna Reddy Vs. M. Mallappa, reported in AIR 2021 SC 4293;
2. Union of India Vs. Vasavi Cooperative Housing Society Ltd.
& Ors., reported in AIR 2014 SC 937;
3. Union of India Vs. Ibrahim Uddin & Anr., reported in 2012 (8) SCC 148;
4. Noharlal Verma Vs. District Cooperative Central Bank Ltd.
Jagdalpur, reported in (2008) 14 SCC 445;
5. Nazir Mohd. Vs. J. Kamala, reported in AIR 2020 SC 4321;
6. Kantilal and ors. Vs. LRs of Deepchand and ors., reported in 2015 (3) DNJ (Raj.) 1308;
7. Kotha Seshamma and ors. Vs. Pittala venkayya and ors., reported in AIR 1957 (AP) 386;
8. T.A.V. Trust, Alleppey Vs. C.I.T. Kerala, reported in 1999 (3) SCC 7;
9. Shiv Kumar Vs. Union of India, reported in 2019 (10) SCC 229;
10. Bhaskar Woman Joshi Vs. Shri Narayan Rambilas agarwal, reported in AIR 1960 SC 301;
11. Balasubramanian & Anr. Vs. M. Arokiasamy (dead) through LRs, reported in 2021 (3) Cur. CC (SC) 504;
12. Manjeet Singh Vs. S.G.P.C., reported in 2001 (2) PLR 663;
13. LIC Vs. Anuradha, reported in 2004 (10) SCC 131;
14. N.Kamalam and anr. Vs. Ayyasamy & Anr., reported in 2001 (7) SCC 503;
(Downloaded on 09/02/2022 at 08:44:04 PM)
(47 of 118) [CFA-192/2010]
15. Laxmi Narayan Vs. Poonam Chand, reported in 1998 DNJ
(Raj.) 61;
16. Sona Bala Bora and ors. Vs. Jyotirindra Bhattacharjee,
reported in 2005 (4) SCC 501;
17. Govinda Swami Niacker Vs. K.N. Srinivasa, reported in AIR 1940 Madras 73;
18. State of Bihar Vs. Radhakrisha Singh, reported in 1983 (3) SCC 118;
19. Himani Alloys Limited Vs. Tata Steel Limited, reported in 2011 (15) SCC 273; and
20. Bhagwat Sharan through LRs Vs. Purushottam, reported in AIR 2020 SC 2361.
While apprising the facts of the suit for arrears of rent and eviction in CFA No. 192/2010 , Mr. Sajjan Singh, learned counsel appearing on behalf of the appellant contended that as per para no.3 of the plaint, eastern portion of the shop was sold by Gyan Prakash Bhadani son of Onkardutt, resident of Bikaner in favour of plaintiff No.1 - Sriniwas and eastern portion of the Godown (Nohra) was sold by Gyan Prakash in favour of plaintiff no.2-Vira Devi. It is contended by the learned counsel that as per para no.5 of the plaint, the disputed property i.e. the shop and Nohara was given on rent by Onkardutt son of Jamnadas at the rate of Rs.300/- per month, Onkardutt having two sons, one Durgadutt, who is blind by birth and another Gyanprakash @ Gyandutt, whereas the property was actually rented out by Jamnadas himself. Learned counsel further contends that Onkardutt passed (Downloaded on 09/02/2022 at 08:44:04 PM) (48 of 118) [CFA-192/2010] away on 10.10.81 and during his life time, the rent was received by Onkardutt himself and later on, on his behalf, Durgadutt or Gyanprakash collected the rent as an agent. After death of Onkardutt, one suit was filed by Durgadutt, which is registered as Civil Original Suit No.44/82, for arrears of rent, use & occupation charges and eviction, which was exhibited as Exhibit-13. The written statement was filed in that suit by the appellant-Dev Kishan, which was exhibited as Exhibit-14 and on the basis of that written statement, it was stated by the plaintiff-Gyanprakash and held by learned trial court that as per the pleading of Sriniwas in that written statement Gyanprakash is his landlord and he denied the title of Durgadutt; that pleading was made on behalf of Sriniwas on the ground that during life time of Onkardutt mostly the rent was received by Gyanprakash on behalf of Onkardutt and legally the person, who is receiving the rent is landlord. One agreement to sell was executed between Gyanprakash and Bherudan. One suit for specific performance was pending and during pendency of that suit, the sale deed was executed on 02.09.1986.
It is further submitted that earlier lease deed was executed in favour of Hanuman Bux and one suit was filed on behalf of Hanuman Bux against defendant-appellant and possession of the disputed property was handed over to Hanuman Bux in the year 1994 through Sale Ameen in execution of that decree.
There is serious dispute in regard to the title of the property on the basis of the trust deed (Exhibit-12), Gyandutt not became owner at the time of sale deed dated 02.09.1986 because (Downloaded on 09/02/2022 at 08:44:04 PM) (49 of 118) [CFA-192/2010] condition imposed in clause 4 of the trust deed is not complete, therefore, the sale deed in favour of Gyanprakash is not conclusive proof of the title. Sriniwas resident of Nokha Mandi, Bikaner, is not bonafide purchaser because he knew the fact in regard to title of the disputed property. It is further submitted that the property is not self acquired property of Onkardutt, the patta was issued in favour of Jamnadas father of Onkardutt, Surji Devi, mother of Gyanprakash, who expired on 31.10.1995 and she was alive at the time of sale deed dated 02.09.1986 and since, the condition imposed in clause 4 of the trust deed is not fulfilled, the trust was not dissolved on the date of the sale deed, thus, Gyanprakash has no right to sell the entire property. The question as to whether Gyanprakash is entitled to sell the entire property or the sale is bogus, apart from share of Gyanprakash in the disputed property. It was stated in the sale deed Exhibits-8 & 9, that Surji Devi was of unsound mind and still permission was not obtained by the competent court in regard to share of Surji Devi and minor daughter Asha. It is further stated that as per clause 5 of the trust deed even for emergent situation or in need of the family, Surji Devi can sell the property but no such liberty was granted to Gyanprakash. In light of clause 5 of the trust deed, without consent of Surji Devi, the property cannot be sold by Gyanprakash or any other person. There is no evidence that for last 10 - 12 years Durgadutt was missing as there was no missing person report or finding of any competent court in this regard is available on record. The finding/evidence regarding missing of Durgadutt cannot be arrived on record because his statement was recorded in another Suit being Suit No.55/05.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(50 of 118) [CFA-192/2010] Admittedly, Durgadutt, Surji Devi and Ms Asha were alive at the time of sale deed Exhibits-8 & 9 and neither they are party to the sale deed nor witness of the sale deed, therefore, the sale deed in favour of Sriniwas is void ab initio.
The trust deed was not proved by any competent witness, who is competent to prove the trust deed as per the provisions of the Indian Evidence Act. It is further stated that the rent was never received by trust or on behalf of the trust. It is also stated that the person who collected the rent is landlord not the owner of the property and who can collect the rent, can file the suit for arrears of rent and eviction etc. but on the basis of that, he cannot become the owner of the property and cannot sell the rented property. It is further stated that no attornment was made in favour of Sriniwas or Vira Devi. Without attornment, the tenant is not liable to pay the rent to the purchaser and there is no evidence of attornment because no notice was given by the seller or purchaser and statement of seller was not recorded before learned trial court. It is also stated that where title of purchaser/owner is bonafidely disputed by the tenant, it is duty of the purchaser that he proves the attornment and also establish it, otherwise only on the basis of that, suit filed by one person claiming ownership of the property, the tenant cannot be made liable to pay to that person specially when suit for eviction and arrears of rent was filed after the death of Onkardutt, one by Durgadutt, another by son Gyanprakash, and one more by Hanumanbux and one by present plaintiff-Sriniwas and Vira Devi. (Downloaded on 09/02/2022 at 08:44:04 PM)
(51 of 118) [CFA-192/2010] In support of his contentions, learned counsel Mr. Sajjan Singh appearing on behalf of the appellant-defendant Dhanraj Dev Kishan (CFA No. 192/2010) has referred to and relied upon the following judgments:-
1. Mahendra Rahunathdasa Vs. Vishvanath, reported in AIR 1997 SC 2437;
2. Gordhan Das through his LRs Vs. Somdutt, reported in 2007 (6) WLC 56;
3. Himani Alloys Limited Vs. Tata Steel Limited, reported in 2011 (15) SCC 273;
4. Karachi Wine Store Vs. Mohammed Rafiq, reported in 1988 (2) R.L.R. 633; and
5. Bhagwandas Vs. Brijmohan and anr., reported in 2007 WLC
382.
It has been prayed by the learned counsel appearing on behalf of the appellants that the present appeals may kindly be allowed and the judgments/orders under challenge may kindly be set aside.
Per contra Learned counsel Mr. Narendra Thanvi along with Mr. Mahendra Thanvi appearing on behalf of the respondent/plaintiff - Sriniwas Jhanwar (CFA Nos.192/2010, 197/2010, 240/2010 and 206/2010), stated that Onkardutt was passed away on 10.10.1981; rent upto the date of 31 st August, 1981 was received by Onkardutt; thereafter, rent was received by Gyanprakash @ Gyandutt; earlier, one suit for eviction and arrears of rent was filed by Durgadutt against the tenant Firm Dhanraj (Downloaded on 09/02/2022 at 08:44:04 PM) (52 of 118) [CFA-192/2010] Devkishan which was registered as civil Suit No. 45/1991; written statement was filed by the defendant - Firm Dhanraj Devkishan; that written statement was exhibited as Ex. 14; in paragraph number 21 of the written statement, the facts mentioned at paragraph number 21 of the plaint were denied and it was stated that the facts, as mentioned at paragraph number 21 of the plaint were false; in paragraph number 38 of written statement of rent suit, it was stated that when the rent was paid to Gyanprakash @ Gyandutt and Durgadutt, it was paid treating them one unit and while believing on their statement that after the death of their father, they were the landlord of the property; defendant had no intention to disobey any order of the Court; there was no intention of attornment in favour of anyone; when the dispute between both the brother came into the knowledge of the defendant, payment of rent was stopped; in that case, provisional rent was determined on 18.05.1983.
Learned counsel further stated that without handing over the possession of the property in question, the lease deed executed in favour of Hanumanbux is void; Hanumanbux was a clerk of the Firm Dhanraj Devkishan.
It was mentioned at Page No.2 of the judgment passed in Civil Suit No.54/2005, i.e. suit for eviction and arrears of rent and etc. titled as Sriniwas Vs. Firm-Dhanraj Dev Kishan and Dev Kishan (hereinafter referred to as 'the suit for eviction') that in the life time of Onkardutt, the rent of disputed shop and godown (Nohara) @ Rs.300/- per month was paid by tenant to Gyanprakash @ Gyandutt Bhadani because attornment was made (Downloaded on 09/02/2022 at 08:44:04 PM) (53 of 118) [CFA-192/2010] by Onkardutt in favour of Gyanprakash @ Gyandutt therefore, as per the pleadings and evidence, Gyanprakash @ Gyandutt became landlord of the tenant and relation of landlord and tenant established.
Onkardutt passed away on 10.10.1981 and even after death of Onkardutt, the rent was paid to Gyanprakash @ Gyandutt as per Page No.3 of the impugned judgment passed in the suit for eviction and the rent upto 31.07.1981 was paid to Onkardutt and in life time of Onkardutt, the rent for the period from 01.08.1981 to 01.09.1983 was paid by defendant-Devkishan to Gyandutt and the rent receipts were issued by Gyanprakash.
It is also argued that the rent was paid while admitting Gyanprakash landlord and owner of the property. Earlier one suit was filed by Durgadutt against the tenant for rent and eviction, which was registered as Civil Suit No.44/1982 and in written statement of that suit, it was admitted by tenant that Durgadutt is not landlord of the property and Gyanprakash is his landlord and the rent was regularly paid to Gyanprakash. One another suit was filed by Hanumanbux against the tenants on the basis of lease deed executed by Durgadutt in favour of Hanuman Bux in that suit collusive decree was passed in favour of Hanuman Bux, which is exhibited as Exhibit-12, and the relief of possession was sought for in the plaint and it is wrong to say that the relief for possession was not sought by the plaintiff. Pleading of defendant was mentioned at Page No.11 of the judgment passed in Civil Suit No.54/2005, in which it is stated that by the tenant that no attornment was made in favour of the plantiffs. There is no (Downloaded on 09/02/2022 at 08:44:04 PM) (54 of 118) [CFA-192/2010] information of sale s given to defendants-tenants and it was not assured by defendants or any of the partner that in future rent will be paid to the plaintiff. The facts mentioned in rejoinder are mentioned at Page No.11 of the above judgment, in which it is pleaded that earlier one suit was filed by Gyanprakash against Firm-Dhanraj Dev Kishan and Dev Kishan, which is registered as Civil Suit No.80/1983 and arrears of rent was demanded from April, 1983. Since Gyanprakash is sole owner of the property by virtue of trust deed dated 22.9.1973; the property was sold to the plaintiff vide sale deed dated 02.09.1986 (Exhibits-6 & 7). During pendency of the present suit, Bhanwarlal, Omprakash and Sanju Devi were impleaded as defendants and it is also stated that in suit for eviction, provisional rent was determined and against that order, a revision was filed and the same was dismissed. The issues were framed on the basis of pleadings of both the sides, which are available at Page Nos.21 to 23 of the impugned judgment. One defence was taken by the defendant that the trust deed dated 22.9.1973 is not a trust deed but a gift deed and that point was earlier decided by the learned trial court vide order dated 07.03.2005 and the same was challenged before Hon'ble High Court by way of a writ petition, which was dismissed on 30.03.2005 and the document was treated as the trust deed. Since issues no.1 to 3, 5 to 8, are co-related and the same were decided jointly in the impugned judgment. The trust deed dated 22.9.1973 was executed by Onkardutt and Durgadutt in regard to clause 4 of the trust deed, it was argued that issue 'rFkk' used between Onkardutt and Surjidevi may be read as 'vkSj' death of (Downloaded on 09/02/2022 at 08:44:04 PM) (55 of 118) [CFA-192/2010] both the persons are not necessary and admittedly, Onkardutt passed away on 10.10.1981, Gyandutt attained the age of majority, therefore, he became sole owner of the property by virtue of the trust deed dated 22.9.1973. It is further stated that as per Page No.23 of the judgment, two witnesses produced on behalf of the plaintiff and ten witnesses produced on behalf of the defendants and after hearing both the parties, the impugned judgment was correctly passed by the learned trial court in favour of the plaintiff and against the defendant. It is rightly held that since after March, 1983, the rent was received by Gyanprakash and the rent receipts were issued and therefore, he is only landlord for defendants no.2 & 3. Another aspect in this finding is also correct that in Civil Suit No.44/1982, which was filed by Devkishan in the court of Civil Judge, Bikaner on 26.07.1982, for arrears of rent and eviction and in that suit, written statement was filed by the defendants on 09.03.1983 and in that written statement, it is admitted that Gyanprakash is landlord of the disputed property and attornment was made in favour of Gyanprakash and due rent was determined on 18.05.1983 and in that suit and as per determination, due rent till date was Rs.5629.50 but the same was not deposited by tenant and the defence was struck-off . Since the rent from 01.04.1983 was not paid to Gyanprakash, one suit for eviction and arrears of rent was instituted by Gyanprakash against the tenant, which was registered as Civil Suit No.80/1983, in that suit, ex parte proceedings were initiated against the tenants no.2 & 3 on 25.10.1983. One inter-pleader suit was registered as Civil Suit No.57/1983, which was filed by the defendants-tenants and since (Downloaded on 09/02/2022 at 08:44:04 PM) (56 of 118) [CFA-192/2010] the due rent was not deposited in that suit, the same was dismissed on 29.10.1983 by the learned trial court and an appeal against that suit was also dismissed.
Civil Suit No.54/2005 which was earlier registered as Civil Suit no.45/1991, for arrears of rent and eviction, titled as Sriniwas and Others Vs. Firm Dhanraj Dev Kishan and Dev Kishan and others in the Court of District Judge, Bikaner. In that suit, rent was determined on 30.01.1993 for the period from 05.07.1988 to 04.01.1993 i.e. 54 months @ Rs.300/- per month and it was held that Rs.16,200/- was the due rent and infact along with interest due rent was Rs.17,200/-. The order of the rent determination was exhibited as Exhibit-8 in the present suit and against that order, an appeal was preferred by the defendants-tenants and the same was dismissed, therefore, defence of the tenant was struck- off by the learned trial court vide order dated 31.08.1994, that order was exhibited as Exhibit-9, against that order, the appeal was preferred and the same was dismissed by order/judgment dated 16.07.1996, that order/judgment is exhibited as Exhibit-10.
Gyanprakash, predecessor-in-title, was examined before learned trial court as PW2 and he has proved the document trust deed dated 22.9.1973 by his evidence and relevant finding of the learned trial court is available at Page No.44 of the impugned judgment. Since he identified the signature of Onkardutt i.e. father of the witness, signature of attesting witnesses, Bahadur Singh Kochar, Noor ahmad Gajdhar because both the persons signed the document in present of Gyandutt and it is also made clear that Onkardutt, Durgadutt, Bahadur Singh Kochar and Noor Ahmad Gajdhar are not alive. Signatures of Asha on sale deed (Downloaded on 09/02/2022 at 08:44:04 PM) (57 of 118) [CFA-192/2010] (Exhibits-6 & 7) as well as of Kisturchand were also identified by PW2 Gyanprakash and it is also stated that Kisturchand is not alive now. It is also admitted that the sale deed was executed by Gyanprakash, after attaining the age of majority, therefore, it is rightly held by the learned trial court that the trust deed dated 22.9.1973 as well as sale deed (Exhibits-6 & 7) were proved by evidence of the plaintiff. It was also admitted in the written statement at para no.27 of the written statement that the rent upto March, 1983, was paid to Gyanprakash but wrongly said that the rent was paid in the capacity of agent and in the capacity of nominee. It is also wrongly pleaded that fact of death of Onkardutt was not within the knowledge of defendants-tenants.
A specific pleading in regard to title and ownership was made in para no.5 of the plaint. It is also stated that earlier one suit was filed by Gyandutt against Motilal and Durgadutt, in that suit, one of the issue was "1- vk;k oknh c:os VªLVukek fnukad 22-9-73 oknxzLr vpy laifr dk vdsyk ekfyd gS +\ ---- ih -----^^ In that case, Gyandutt (PW1), Modaram (PW2), Bahadur Singh (PW3), Noor Ahmad (PW4) and Kisturchand (PW5) were examined and on the basis of their statements and on the basis of Trustnama, in view of the above, the trust deed was proved and Gyandutt was found sole owner of the property and that judgment dated 10.09.1991 was exhibited before learned trial court as Exhibit-27.
Exhibit-29 is the judgment passed in Civil Suit No.103/1990 titled as Gyandutt @ Gyanprakash Vs. LRs of Motilal and (Downloaded on 09/02/2022 at 08:44:04 PM) (58 of 118) [CFA-192/2010] Durgadutt and Exhibit-27 is judgment of remand and after adding additional issue of this fact that whether Surji devi was not legally wedded wife of Onkardutt; Ms. Asha was not legitimate child of Onkardutt and Durgadutt is only legal representative of Onkardutt but the issue was not proved by the defendant and the judgment passed thereafter, which was exhibited as Exhibit-30. The two issues which were relevant in the instant case which were already framed (Exhibit 30) are -:
1- vk;k oknh tfj, VªLVukek fnukad 22-9-73 edku eqruktk dk Lokeh Lor% vf/kdkjh ,oa dkfct gS \ & oknh 5- vk;k fnukad 22-9-73 dks fu'ikfnr lqjtckbZ Hkknk.kh izk- VªLV oS/k :i ls] fu'ikfnr fd;k x;k] izHkko esa vk;k vkSj bl vk/kkj ij oknh okn izLrqr djus dk vf/kdkjh gS \ & oknh Although, the statement of Durgadutt was recorded as DW7 but he did not prove the fact that Surjidevi is not legally wedded wife of Onkardutt and Gyanprakash and Asha are not legitimate child of Onkardutt. It is also not proved that earlier Surjidevi was wedded wife of Hauda and Gyanprakash and Asha are son and daughter of Hauda. It is further stated that it is an important question that, what is the effect of clause 4 of Exhibit-3 and when Gyandutt became absolute owner of the property.
It is further stated that following are the important questions for adjudication of the present case :
(i) Attornment;
(ii) Whether, attornment was made in favour of Gyandutt after death of Onkardutt.
So far as attornment is concerned, it was argued that as per the finding on Page No.55 of the impugned judgment, learned trial (Downloaded on 09/02/2022 at 08:44:04 PM) (59 of 118) [CFA-192/2010] court rightly held that Exhibit-34, written statement of the tenant, it was admission of tenant that attornment was made in favour of Gyanprakash.
(iii) Whether, what right accrued on the basis of trust deed and whether right of transfer given to Gyanprakash ?
It is also argued that the lease deed in favour of Bhanwarlal was not submitted on record. As per para 46 of the impugned judgment, lease deed Exhibit-A/1 was not proved. It is also argued that as per para 27(3) of the plaint, it was rightly held by the learned trial court at para 54 of Page No.94 that objection of the plaintiff regarding relief for possession was not sought in the plaint is wrong, therefore, it is wrong to say that the suit for possession was not filed by the plaintiff.
It is further argued that it is not the case of the appellant that Exhibits-6 & 7, sale deeds were not exhibited only competence of the seller challenged.
It is also stated that as per Order 8 Rule 2 CPC, new facts must be specifically pleaded. The suit was filed by the plaintiff within limitation from the date of knowledge, the fact of execution of lease deed came within the knowledge of the plaintiff on 24.07.1996, when threatening was given by tenants-defendants. It is further stated that the lease deed was void ab initio so now there is no need to challenge the validity of the lease deed. It is further stated that till the date of adverse effect, the plaintiff need not to challenge the said lease deed and fraudulent decree was obtained on the basis of above lease deed, no there is no need to file suit for cancellation of that decree.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(60 of 118) [CFA-192/2010] The cause of action for suit for declaration arises on the date when decree was passed in Civil Suit No.34/1994 vide judgment dated 02.06.1994 (i.e. Exhibit-12) therefore, the suit is within limitation from the decree obtained by fraud because Article 59 of the Limitation Act states that the starting point of limitation is from the date of when fact of fraudulent decree first time came in the knowledge.
Lease deed is not coming within the definition of title when the trust deed came within the definition of title.
Lease deed does not affect right of the plaintiff. Suit is only filed for cancellation of lease deed. 1994 is the start point of limitation. The lease deed is ignorable because it was not executed by the competent person.
Lease deed of 1985 is non est in the eyes of law because possession was taken only in execution of decree passed in favour of Hanuman Bux.
For appeal of Omprakash and Sanju Devi, it is stated that when main lease deed in favour of Hanuman Bux declared null and void, no need to challenge the subsequent lease deeds, challenge to the validity of first lease deed is sufficient, therefore, lease deed in favour of Bhanwarlal is void ab initio.
It is argued by the learned counsel Mr. Narendra Thanvi appearing on behalf of the respondent-plaintiff that the suit for eviction was filed on the ground of default in payment of rent and other grounds on 05.07.1991; written statement was filed on 22.05.1992; application for amendment under Order 6 Rule 17 CPC was filed on 05.03.2005 which was allowed and the amended written statement was filed and on the basis of additional (Downloaded on 09/02/2022 at 08:44:04 PM) (61 of 118) [CFA-192/2010] pleadings, issue No. 10-A was framed by the learned Trial Court. It was admitted by the defendants-tenants in the earlier suit filed by Durgadutt for eviction and arrears of rent which was registered as Suit No. 44/1982, that Durgadutt is not the landlord of the tenants and Gyanprakash @ Gyandutt is the landlord of the property in question. The plaintiff (Sriniwas) purchased the property in question on 02.09.1986 from Gyanprakash @ Gyandutt and as per Section 109 of the Transfer of the Property Act, attornment came into force automatically in favour of the plaintiff (Sriniwas) and no notice was required. In support of this argument, learned counsel for the respondent-plaintiff has refereed to and relied upon the judgment reported in Dr. Ambica Prasad Vs. Mohd. Alam & Anr., reported in 2015 (3) CCC 45 (SC).
It is further stated that notice under Section 106 of the Transfer of Property Act was sufficient and no other notice was required. In support of this argument, learned counsel for the respondent-plaintiff has referred to and relied upon the judgment rendered in the case of LRs of late Shri Gurubux Singh Vs. Khem Singh reported in 2014 Supplementary CCC 330.
In para 29 of the written statement, it is stated that the landlord Onkardutt was living at Bikaner whereas the property in question was situated at Nokha Mandi, District Bikaner and Gyanprakash @ Gyandutt was receiving the rent on behalf of Onkardutt and the rent was paid to Gyanprakash @ Gyandutt in the capacity of an agent of Onkardutt, therefore, it was wrongly held that even after the death of Onkardutt, the rent was paid to Gyanprakash @ Gyandutt.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(62 of 118) [CFA-192/2010] It is further stated that provisional rent was determined by the learned Trial Court and the same was challenged in appeal and the appeal was dismissed.
Learned counsel also referred and relied upon the judgement LRs of Ramdev Kajaria Vs. Vijay Narayan, reported in 2005 (4) RLW 2288 which is related to striking out of defence tenant.
It is further stated that if the provisional rent was not deposited as per Section 13(4) of the Rent Control Act, the benefit of first default cannot be given by the learned Trial Court under Section 13(6) of the Act of 1950. In support of this argument, learned counsel for the respondent-plaintiff has referred to and relied upon the judgments Heera Lal Vs. Mandir Shri Thakurji Sangria & Anr. reported in 2005 (2) RLW Rajasthan 1114, Head Note B and Kanti Lal Vs. Legal Representatives of late Smt. Chand Kumari reported in 2004 (2) RLW 1190.
Sale-deeds (Ex. 8 & 9) based on the trust deed and the same were proved as Exhibit 12.
The foundation of the suit was the trust deed which was exhibited as Ex. 12 in the present suit and as Exhibit 3 in the suit for declaration.
Findings on issue No. 9 at page 39 of the impugned judgment are correct because Durgadutt was not admitted as landlord of the property and predecessor of plaintiff, Gyanprakash @ Gyandutt was found to be the landlord of the property. Even it was admitted before Hon'ble the High Court in its order dated 17.05.1994 that the plaintiff was the owner of the defendants for the disputed property.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(63 of 118) [CFA-192/2010] Findings at page number 40 and onwards are also correct. It was rightly held by the learned Trial Court at page 44 of the impugned judgment that in other suit, it was decided that possession of Hanumanbux was symbolic and defendants were not in physical possession.
Finding in regard to issue No. 10-A, started from page 46, on the basis of the fact that earlier suit was filed/decided on 06.01.1994, the principles of res judicata were not applicable in the present case. The rent till 06.01.2004 can be treated as abandoned and the present suit was filed for recovery of rent for the subsequent period from 02.09.1986 and onwards upto the date of sale deeds (Ex.8 & 9), therefore, it was rightly held by the learned Trial Court that the principles of res judicata were not applicable to the present suit and, therefore, the same was maintainable which was filed by the subsequent purchaser, the plaintiffs (Sriniwas & Viradevi).
In support of his contentions, learned counsel Mr. Narendra Thanvi & Mr. Mahendra Thanvi appearing on behalf of the respondent-plaintiff (Sriniwas Jhanwar) in CFA No. 192/2010 has referred to and relied upon the following judgments:-
1. LRs of late Shri Gurubux Singh Vs. Khem Singh, reported in 2014 (Suppl.) Civil Court Cases, Page 330;
2. Dr. Ambica Prasad Vs. Mohd. Alam & Anr., reported in 2015 Vol. 3 Civil Court Cases, Page 045;
3. Ramadhar Shrivas Vs. Bhagwandas, reported in 2006 Vol.
1 Civil Court Cases, Page 450;(Downloaded on 09/02/2022 at 08:44:04 PM)
(64 of 118) [CFA-192/2010]
4. M/s. Payal Vision Ltd. Vs. Radhika Choudhary, reported in 2012 Vol. 4 Civil Court Cases, Page 788;
5. Kanti Lal Vs. Legal Representatives of late Smt. Chand Kumari, reported in 2004 Vol. 2 R.L.W., Page 1190;
6. N.R. Narayan Swamy Vs. B. Francis Jagan, reported in 2001 AIR SC Page 2469;
7. LRs of Ramdev Kajaria Vs. Vijay Narayan, reported in 2005 Vol. 4 R.L.W. Page 2288;
8. Heera Lal Vs. Mandir Shri Thakurji Sangria & Anr., reported in 2005 Vol. 2 R.L.W. Page 1114;
In support of his contentions, learned counsel Mr. Narendra Thanvi & Mr. Mahendra Thanvi appearing on behalf of the respondent-plaintiff (Sriniwas Jhanwar) in CFA Nos. 197/2010, 240/2010 & 206/2010 has referred to and relied upon the following judgments:-
1. M/s. Umed Realators, Vani, District Yavatmal & Ors. Vs. Smt. Shobha Wd/o Mahadev Deshpandey & Ors., reported in 2017 Vol.2 Civil Court Cases, Page 703;
2. Daya Singh & Anr. Vs. Gurdev Singh (Dead) by LRs & Ors., reported in 2010 Vol. 1 Civil Court Cases, Page 290;
3. Santosh Vs. Jagat Ram & Anr., reported in 2010 Vol.2 Civil Court Cases, Page 227;
4. M/s. Mawadi Moulding Factory Vs. Andhra Pradesh State Electricity Board & Ors., reported in 1976 AIR SC Page 2403;(Downloaded on 09/02/2022 at 08:44:04 PM)
(65 of 118) [CFA-192/2010]
5. LRs of Moti Lal, Adopted son of late Shri Labh Chand, by caste Joshi Vs. Gyandutt @ Gyanprakash S/o late Onkardutt, by caste Bhadani Brahmin & Anr. (S.B. Civil Second Appeal No. 119/2011, decided on 13.03.2015); and
6. Ajab Singh & Ors. Vs. Pandit Babu Ram & Ors., reported in 2012 Vol. 4 Civil Court Cases, Page 423.
It has been prayed by the learned counsel appearing on behalf of the respondent-plaintiff that the appeals may kindly be dismissed and the judgments/orders under challenge may kindly be upheld.
In reply to the arguments advanced by the learned counsel for the respondent-plaintiff, learned Senior Counsel Mr. Manish Singhvi in rejoinder arguments stated that the pleadings in regard to knowledge, as mentioned at para No. 23 of the plaint, are vague and incorrect because in earlier suit which was filed by the same plaintiff (Sriniwas) against the tenants-defendants No. 2 and 3, i.e., Firm Dhanraj Devkishan and Devkishan for eviction and arrears of rent which was earlier registered as Civil Suit No. 120/91 and subsequently registered as Civil Suit No. 54/2005. As per para 40 of the written statement, existence of lease deed dated 09.01.1985 came to the knowledge of the plaintiff on 22.05.1992 when the written statement was filed by the defendants in Civil Suit No. 54/2005 in which, it was clearly stated that the lease deed for a period of 99 years was executed by Durgadutt for disputed shops and godowns on 09.01.1985 in favour of Hanumanbux S/o Ramchandra Laddha and thereafter, rent was regularly demanded by Hanumanbux. There was no (Downloaded on 09/02/2022 at 08:44:04 PM) (66 of 118) [CFA-192/2010] simplicitor disclosure of the facts, pleadings in written statement were clear so, right to sue accrues by written statement dated 22.05.1992 itself.
While reading provision of Article 58 and 59 of the Indian Limitation Act, learned counsel for the appellants stated that the plaintiff had sought cancellation of the document i.e. lease deed dated 09.01.1985 which shall be covered by Article 59 of the Indian Limitation Act and as per that provision, an instrument or decree can be set aside or cancelled within three years from the date of knowledge about the existence of the instrument or decree. Learned counsel also stated that it was specific pleading of the defendants that the plaintiffs are not the landlord and Hanumanbux is their landlord by virtue of lease deed dated 09.01.1985.
It is stated that in para 27 (i) of the plaint, relief was sought for declaration of lease deed dated 09.01.1985 which was executed by Durgadutt in favour of Hanumanbux may kindly be declared void ab initio , non-effective against the plaintiffs and the plaintiffs may be declared as owners of the disputed property. If suit is for any other declarations then Article 58 of the Indian Limitation Act would be applicable, it means that the relief of declaration cannot be granted without claiming the relief of possession.
It is further stated that how the decree which was passed in relation to the dispute between the landlord and tenant gave a cause of action to the plaintiffs of this case.
It is stated that the written statement which was filed in a suit for eviction and arrears of rent was exhibited as Exhibit 14 (Downloaded on 09/02/2022 at 08:44:04 PM) (67 of 118) [CFA-192/2010] and as per para 40 of the Exhibit 14, cause of action arises on the date of filing of the written statement, i.e., 22.05.1992, therefore, the pleadings, as mentioned at para 23 of the plaint, i.e., the suit for declaration, in regard to the knowledge, is false, therefore, it is wrong to say that for the first time, on 24.07.1996, when the fact of decree passed in Civil Suit No. 34/1994 titled as "Hanumanbux Vs. Firm Dhanraj Devkishan & Ors" came within the knowledge of the plaintiffs and thereafter, on inquiry, the fact of execution of the lease deed dated 09.01.1985 also came within the knowledge of the plaintiffs.
Learned counsel for the appellants also stated that a bare perusal of paragraph 26 of the plaint in regard to the pleadings about suit valuation and limitation, it reveals that the suit was not valued for permanent injunction and no court fees was paid for permanent injunction but despite of that, the decree for permanent injunction was granted by the learned Trial Court.
While drawing attention of the Court towards paragraph 27, sub paragraphs (ii) & (ii) of the plaint, it is stated that the said paragraphs are related to the relief of declaration whereas, sub paragraph (iii) is related with the prohibitory injunction. It is stated that no relief for possession was sought for and without claiming the relief of possession, the suit simplicitor for declaration, cannot be maintainable, as per Order 2 Rule 2 of the CPC and as per Section 34 of the Specific Relief Act.
It is further stated that Durgadutt was a party to the trust deed as well as lessor of the lease deed under challenge and he was examined before the Court as DW-7 but despite of that, he was not impleaded as a party to the suit as defendants, therefore, (Downloaded on 09/02/2022 at 08:44:04 PM) (68 of 118) [CFA-192/2010] the suit was liable to be dismissed on the ground of non-joinder of the party and, therefore, the version of the plaintiffs was false and baseless that at the time of filing of the suit, Durgadutt was missing since last 10 to 12 years and for the sake of arguments, if this fact was not brought at the time of filing of the suit, why he has not impleaded as party to the suit when he himself had appeared before the Court and deposed as DW-7 in the present suit.
It is also argued that Section 41, 42, 43 of the Indian Evidence Act provided that which of the judgments passed in the earlier suits/proceedings will be binding in the subsequent suits/proceedings and which of the judgment is called judgment- in-personam and which of the judgment is called judgment-in-rem and since the judgments relied upon by the learned Trial Court while passing the impugned judgment are not the judgment-in- rem, therefore, it is argued that the judgments were not applicable to the present suit.
It is stated that the 'lease deed' is not a 'sale deed', therefore, Durgadutt was not required to be impleaded as a party in the suit.
Joining the rejoinder arguments, learned counsel Mr. Sajjan Singh Rajpurohit, appearing on behalf of the appellant (in CFA No. 192/2010) stated that when the trust was accomplished, when Gyanprakash @ Gyandutt became absolute owner of the disputed property and when attornment was made, nothing is clear from the pleadings of the plaintiff, therefore, the pleadings of the plaintiff in this regard are vague.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(69 of 118) [CFA-192/2010] Meaning of the trust itself is very clear, therefore, the learned Trial Court has wrongly held that the trustees of the trust would be a settler or a beneficiary. As per Section 3 of the Indian Trust Act, trust is not a juristic person; property vests into trust, not in trustee. In the present case the trust deed was executed in 1973. it is further stated that formation of Trust is void because the settler and executor of trust deed had no vested property in question into any trustee, thus in absence of any trustee, the formation and execution of trust is void ab initio. The meaning of trust as provided under section 3, creation of trust is not proved in view of section 6, nor trust is created as provided under section 7 and in view of section 11, execution of trust is not in existence, nor it was extinguished, in view of section 77 of Indian Trust Act 1882.
Findings at page number 24 of the impugned judgment are perverse because possession was handed over to Hanumanbux in pursuance of the proceedings of execution of the decree passed in the earlier suit. During the course of cross-examination, it was suggested to DW-1 that possession was part with Hanumanbux. It is stated that since the possession was handed over to Hanumanbux in execution of the decree of the Court, it cannot be held that only the symbolic possession was given. The findings of the learned Trial Court were based upon the findings of other suit in which, the parties were not similar and the disputed property was also different. It is not necessary to disclose the complete status at the time of interlocutory proceedings. In written statement, all necessary facts were disclosed by the defendants. It (Downloaded on 09/02/2022 at 08:44:04 PM) (70 of 118) [CFA-192/2010] is also stated that the disputed property was an ancestral property.
While replying to the arguments of learned counsel Mr. Narendra Thanvi, learned Senior Counsel Mr. Manish Singhvi appearing for the appellants in CFA No. 240/2010 stated that as per Article 58 of the Limitation Act, even in case of continuous cause of action, the suit has to be filed within the period of limitation. In the present case when written statement was filed in earlier suit i.e in the year 1992, the right to sue first accrues. Even as per Article 94 of the Indian Limitation Act, the right to sue accrue in the year 1992. As per Article 58 of the Indian Limitation Act, the right to sue accrues in the year 1992. As per plaintiff himself, material additions and alterations and new construction was raised by the defendants and material alteration was one of the ground of eviction in the earlier suit. If there is a judgment in which, the appellant was not a party, the doctrine of res judicata would not applies.
While submitting compendium in regard to Section 41 to 43 of the Indian Evidence Act, learned counsel for the appellant stated that Section 43 applies in the present case.
In the earlier suit, issues No. 2 to 8 were not decided and the same were dismissed as not pressed, therefore, the judgment was not passed on the facts-in-issue.
It is further stated that interpretation of the learned Trial Court was wrong then, there was no need to mention all the conditions of clause (iv) and only one condition was sufficient whereas, there were three conditions : (i) death of parents, (ii) attaining the age of majority by Gyanprakash @ Gyandutt and (iii) (Downloaded on 09/02/2022 at 08:44:04 PM) (71 of 118) [CFA-192/2010] marriage of Asha and this issue was not proved according to law and the Court comes to the conclusion that the trust deed was not proved as per the provisions of the Indian Evidence Act then, the sale-deeds (Ex. 6 & 7) which were executed on the right accrues on the basis of trust deed dated 22.09.1973, no absolute right of ownership can be drawn in favour of the plaintiffs.
Section 77 of the Indian Trust Act, 1882 defines that how the trust was extinguished and as per that provision, the trust in the present case was not extinguished before the date of sale, i.e., 02.09.1996.
Gyanprakash @ Gyandutt was one of the beneficiary of the property, not the owner of the property.
Section 3 of the Indian Trust Act says that what is the meaning of the trust, how the trust would be created and who would the author of the trust and as per that provision, the author of the trust would not become the owner of the trust property. At the time of sale, the trustees, i.e., Durgadutt and Surjidevi, both were alive and there is no evidence that marriage of Asha was solemnized before that date, therefore, the sale-deeds based upon above mentioned trust deed dated 22.09.1973 were wrongly found genuine by the learned Trial Court.
Hanumanbux taken possession of the disputed property in execution of the decree passed in the earlier suit and the possession was handed over by the Sale Ameen.
In the alternative, it is stated by the learned counsel for the appellants that the sale-deeds were not challenged in another suit; landlord would not be the absolute owner of the property; (Downloaded on 09/02/2022 at 08:44:04 PM)
(72 of 118) [CFA-192/2010] title is under cloud; some of the necessary issues were not framed, therefore, remand the matter.
Heard Learned Counsel appearing for the parties extensively and perused the record. I have given my thoughtful consideration to the arguments advanced by the learned counsel appearing on behalf of respective parties and to the numerous judgments cited at Bar to buttress their arguments/submissions.
Now, it would be appropriate to deal with each of the judgments cited by the learned counsel appearing on behalf of the appellants as well as by the respondents.
In support of the contentions for Civil First Appeal no. 240/2010, learned counsel for the appellants relied upon the following judgments-
In the case of Dy. Commissioner, Hardoi (supra), Hon'ble the Supreme Court, while relying on the Full Bench decision of Allahabad High Court, as reported in AIR 1997 All. 18, it has been held that, if necessary party is not impleaded, it clearly becomes a case of non-joinder of parties.
The relevant portion of the decision of Allahabad High Court is reproduced herein as under:-
"In Benares Bank Ltd., Benares v. Bhagwandas (1), a Full Bench of the Allahabad High Court considered this question and expressed the same opinion as had been expressed in the Oudh decisions referred to above. Mr. Justice Braund, who was one of the Judges constituting the Full Bench, with great reluctance shared the opinion of the majority merely out of respect for the opinion of Pathak J. and it (Downloaded on 09/02/2022 at 08:44:04 PM) (73 of 118) [CFA-192/2010] appears that, left to himself, he would have held otherwise. The majority judgment was delivered by Pathak J. He enunciated two tests for deciding whether a certain person was a necessary party in a proceeding: (1) that there must be a right to some relief against such party in respect of the matter involved in the proceedings in question, and (2) it should not be possible to pass an effective decree in the absence of such party, and proceeded to observe that the creditors of a landlord who have claimed relief under the Encumbered Estates Act are necessary parties to the proceedings under that Act and that the object of the Act is to compel the landlord to surrender his entire property for the benefit of his creditors and to liquidate the debts of all the creditors in accordance with and to the extent permitted by the Act. There can be no question that these are the true tests for determining whether a person is a necessary party to certain proceedings.............."
Now, coming to the facts of the present case that, Shri Durgadutt was the trustee of the trust deed dated 01.12.1973. Durgadutt was a lessor of the lease deed dated 09.01.1985 which is sought to be quashed. No instrument can be set aside by the Trial Court without making lessor as a party. The lessor and lessee both have to made party if there is quashment/setting aside of valid instrument registered. Durgadutt was an essential party under Order 1 Rule 10 CPC.
If necessary parties not impleaded, it clearly becomes a case of non-joinder of parties, therefore, in the instant case, admittedly, Durgadutt was not impleaded in the proceedings, it is a clear case of non-joinder of necessary party. (Downloaded on 09/02/2022 at 08:44:04 PM)
(74 of 118) [CFA-192/2010] In the case of Anathula Sudhakar (supra), Hon'ble the Supreme Court has laid down the requisites of filing of a civil suit. While dealing with the issue at hand, it has been held as under:-
"13.3.... Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily, the plaintiff will have to file a suit for declaration, possession and injunction."
Here, in the present case, firstly, there is a serious doubt or cloud over the title of the plaintiff. It is in this context that several issues were framed with regard to formation of trust itself and consequent transfer to plaintiff herein vide sale deed dated 02.09.1986. Secondly, admittedly, the plaintiff was not in possession. Therefore, the suit ought to have included the prayer of possession.
The view as expressed in the case of Anthula Sudhakar (supra) has been reiterated in the case of Muni Lal Vs. Oriental Fire & General Insurance Co. Ltd. & Ors., reported in (1996) 1 SCC 90, the relevant portion is quoted herein below:-
"93....... Mere declaration without consequential relief does not provide the needed relief in the suit; it would for the plaintiff to seek both the reliefs. The omission thereof mandates the Court to refuse to grant the declaratory relief."
Here, in the present case, the prayer in sub-clause (iii) of Clause 27 was caused in negative terms, and seeking an injunction not to grant possession to any other person. It did not mean or could be construed that possession has to be granted to the plaintiffs herein. It is, therefore, clear that in absence of any consequential relief sought in the plaint or even granted by the (Downloaded on 09/02/2022 at 08:44:04 PM) (75 of 118) [CFA-192/2010] court of first instance, the present suit in its present form shall not survive.
In the case of Noharlal Verma (supra), it has been specifically laid down that even in absence of a plea of limitation raised by the defendants, the Court, if it is satisfied that the suit is barred by limitation, it ought to be dismissed. The relevant portion of the judgment is reproduced herein below:-
"33........ Bare reading of the aforesaid provision leaves no room for doubt that if a suit is instituted, appeal preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up."
Here, in the present case, the plaintiff states that it is only on 24.07.1996, i.e., for the first time, he came to know about the decree dated 02.06.1994 and in the process of lease deed dated 09.01.1985 whereas the lease deed dated 09.01.1985 was specifically mentioned in the written statement filed by the defendants/ respondents No. 2 & 3 on 22.05.1992 in Suit No. 45/1991, herein in the earlier suit filed by Sriniwas (plaintiff) himself in which, it was categorically mentioned that the lease deed has been executed by Durgadutt in favour of Hanuman Bux on 09.01.1985 is exhibited as Exhibit P/14 in the present suit was categoric at para number 40. Thus, the existence of the lease deed dated 09.01.1985 came to be known to the plaintiff on 22.05.1992 when the written statement was filed by the defendant(s) in Civil Suit No. 54/2005 (45/1991) and the suit was filed and registered on 07.02.1996 way beyond the period of three years. Thus, in the present suit, Article 59 of the Limitation Act (Downloaded on 09/02/2022 at 08:44:04 PM) (76 of 118) [CFA-192/2010] would be applicable, and the suit ought to have been dismissed in exercise of power under Section 3 of the Limitation Act.
As far as Article 58 of the Limitation Act is concerned, it shall only happen once the right to sue first accrues. It would be relevant to mention that the defendant Nos. 2 & 3 and the plaintiffs were party of the earlier suit and were pursuing adversarial proceedings. The defendant therein had raised the contention which was hostile/animus to the rights of Sriniwas in the year 1992 itself. Therefore, the right to sue arose in the year 1992 itself. The assertion made in para 40 of the earlier written statement (exhibited as A/14 in the present suit) jeopardized the rights of Sriniwas sufficiently to accrue a right to sue for first time. Thus, 'first time' is important in Article 58 to Schedule of the Limitation Act. In this regard, relevant extract from the judgment in the case of Union of India & Ors. Vs. West Coast Paper Mills Ltd. & Anr., reported in (2004) 2 SCC 747 is reproduced herein as under:-
"21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when 'the right to sue first accrues'; in terms of Article 113 thereof, the period of limitation would be counted from the date 'when the right to sue accrues'. The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the case of action arose first whereas, in the latter the period of limitation would be differently computed depending (Downloaded on 09/02/2022 at 08:44:04 PM) (77 of 118) [CFA-192/2010] upon the last day when the cause of action therefore arose."
Thus, according to Article 58 itself, the suit is also barred by limitation. Moreover, no satisfactory right to sue has been indicated in the plaint.
In the case of Iqbal Singh Marwah & Anr. (supra), Hon'ble the Supreme Court, while dealing with the issue of findings recorded in one proceeding may not be treated as final or binding in the subsequent proceeding. Relevant portion of the judgment is reproduced herein as under:-
24........ There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein......."
Here, in the present case, despite of framing of five issues pertaining to validity of the trust deed, the Trial Court, with due respect, has abdicated its responsibility to decide the aforesaid five issues qua the trust deed dated 01.12.1973. Thus, the Trial Court in the impugned order has committed grave error in placing reliance only on past judgment. The relevant fact, if at an, has been treated as 'proved fact'. This is the fundamental error committed by the Trial Court.
In support of the contentions for Civil First Appeal no. 192/2010, learned counsel for the appellants relied upon the following Judgments-
(Downloaded on 09/02/2022 at 08:44:04 PM)
(78 of 118) [CFA-192/2010] In the case of Mahendra Rahunathdasa (supra), while dealing with the issue of attornment, Hon'ble the Supreme Court has held as under:-
"7. Attornment would, however, be desirable as it means the acknowledgment of relation of tenant to a new landlord. It also implied continuity of tenancy."
As in the instant case, plaintiff has failed to attorn and establish a relation of new landlord and tenant between the parties. Thus, the instant suit seeking eviction on the ground of default in payment of rent is liable to be dismissed.
To substantiate the submission regarding conditions to be satisfied for eviction, learned counsel for the appellant has referred to the following observation of Hon'ble the Supreme Court in the above case, which reads as under:-
"5. ....... Two conditions must be satisfied for eviction of a tenant on the ground of default in payment of rent or permitted increase. Firstly, there must be a default in payment of rent. The default may continue for six months or more. Secondly, before filing a petition for eviction, a notice in writing under Section 106 of the Transfer of Property Act shall be given to the tenant giving one month's time."
As in the instant case, there is no attornment or acknowledgement given by the defendant, therefore, there is no question arise as to payment of rent.
In the case of Gordhan Das through his LRs (supra), while dealing with the issue of abandonment of claim, a co- ordinate Bench of this Court has observed as under:- (Downloaded on 09/02/2022 at 08:44:04 PM)
(79 of 118) [CFA-192/2010]
"14. Once the suit is filed and is withdrawn
unconditionally, then even if the principle of res judicata may not apply in strict sense because there is no adjudication on issue but at the same time, the plaintiff is debarred from seeking decree on the grounds on the principle of abandonment of claim." In the case of Himani Alloys Limited (supra), while dealing with the issue of admission, Hon'ble the Supreme Court has observed as under:-
"10. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear "admission" which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [2000 (7) SCC 120], Karam Kapahi vs. Lal Chand Public Charitable Trust [2010 (4) SCC 753] and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh Chadha [2010 (6) SCC 601]...."
As in the present case, there was no such clear admission on the part of the plaintiff in the minutes regarding attornment, (Downloaded on 09/02/2022 at 08:44:04 PM) (80 of 118) [CFA-192/2010] therefore, there was no admission which could result in the judgment under Order 12 Rule 6 CPC.
In the case of Karachi Wine Store (supra), while dealing with the issue regarding eviction of tenant on the ground of denial of title, Hon'ble the Supreme Court has held as under:-
"10. Section 116 of the Evidence Act lays down that no tenant of immovable property or person claiming through such tenant, shall during the continuance of tenancy be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property. In Kumar Krishna Prasad Lal Singha Deo Vs. Baraboni Coal Concern Ltd. & Ors., AIR 1937 Privy Council 25, the judicial committee of the privy council has laid down that the principle of estoppel contained in Section 116 of the Evidence Act does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to reversion, through in such cases there may be other grounds of estoppel, e.g., by attornment acceptance of rent etc. in view of the said decision it must be held that though the principle of estoppel contained in Section 116 of the Evidence Act does not apply to a case where a person claims to be a landlord on the basis of derivative title, but in such a case the principle of estoppel would be attracted if the tenant has attorned to the new owner of the premises."
"11. As pointed in Halsbury's Laws of england, (Fourth Edition) Vol. 27, page 10, para 3, a person in occupation of property may establish the relationship of landlord and tenant between himself and another person by attornment, that is by acknowledging that he is tenant to that other person. An attornment estops the tenant from disputing the landlord's title. In (Downloaded on 09/02/2022 at 08:44:04 PM) (81 of 118) [CFA-192/2010] V.Satyamarayanaraju and another v. J. Hanumayamma and another, AIR 1967 SC 174, it has been laid down that attornment is one mode of recognising a person as one's landlord, just as payment of rent is another mode for the purpose. In that case the Supreme Court has referred to para 745 of Foa'a General Law of Landlord and Tenant, wherein it is stated that recognition as landlord by the tenant may be by express agreement by attornment or other formal acknowledgment(as by paying a nominal sum of money), by payment of rent, or of a nominal sum as rent, or by submission of distress."
"15. in Raja Mohammad Amir Ahmad Khan v Muncipal Board of Sitapur and another , AIR 1965 SC 1923, the Supreme Court has laid down that the disclaimer or repudiation odd the landlord's title must be clear and unequivocal and that unless there is a disclaimer or repudiation in char and unequivocal terms, whether the same be in a pleading or in other documents, no forfeiture is incurred. In that case the tenant had filed a claim before the Land Acquisition Officer wherein he had asserted that the " land acquired is part of Jali Kothi or Bungalow Merrett Sahib belonging to me". The Supreme Court held that words 'belonging to me' did not amount to disclaimer of the tenancy and a repudiation of the landlord's title and that though the word "belonging" no doubt was capable of denoting an absolute title, the word was nevertheless not confined to connoting that sense and that word could signify even possession of an interest less than that of full ownership. According to the Supreme Court there was no disclaimer or repudiation of landlord's title by the tenant and, therefore, he had not incurred forfeiture of his tenancy."(Downloaded on 09/02/2022 at 08:44:04 PM)
(82 of 118) [CFA-192/2010] "26......the present case thus fails within the ambit of the principle laid down by this court in Narsingh Das v Mst. Amar Knawar wherein it has been held that the tenant from whom rent is demanded by a transferor or an assignee may not be convinced that the latter had right to demand rent and therefore in order to safeguard his own interest so that he may not have to pay rent to a wrong person, he may dispute the title as assignee and put him to proof......"
In the case of Bhagwandas (supra), while dealing with the issue regarding eviction of tenant on the ground of denial of title, Hon'ble the Supreme Court has held as under:-
"31. In my considered view, the eviction on this ground (denial of title) cannot be granted. Firstly, because even in rejoinder, particularly paragraph 8, the plaintiff has admitted that the defendants have accepted him as landlord and that relationship of landlord and tenant was established between the parties and that the tenancy has been attorned; though, in paragraph 12 of the rejoinder, the plaintiff has averred that the defendants having denied the title, he is entitled to decree for eviction. In view of the categorical stand set up by the plaintiff in para 8 of rejoinder that the defendants have accepted the plaintiff as their landlord and that the relationship of landlord and tenant is established between them, the plaintiff cannot claim decree for eviction on the ground of denial of title........"
As in the instant case, there is no acknowledgment between landlord and tenant, therefore, when there is no attornment then, it cannot estops the tenant from disputing the title of landlord and thus, in the considered opinion of this Court, the decree for (Downloaded on 09/02/2022 at 08:44:04 PM) (83 of 118) [CFA-192/2010] eviction as passed against the defendant is liable to be quashed and set aside.
In support of his contentions for Civil First Appeal no. 197/2010, learned counsel relied upon the following Judgments-
In the case of T.V. Ramakrishna Reddy (supra), while dealing with the issue of declaration of title, Hon'ble the Supreme Court has held as under:-
"9. The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others 1 in paragraph 21, which read thus: The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others (2008) 4 SCC 594, in paragraph 21, which read thus: 21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumber some remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it (Downloaded on 09/02/2022 at 08:44:04 PM) (84 of 118) [CFA-192/2010] will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction." Thus, in the instant case, the plaintiff did not file a suit for declaration of title and recovery of possession but only filed suit to declare instruments void. Hence, the suit is liable to be dismissed only on this ground, as there is no declaratory relief.
The issue regarding declaration of title has already been dicussed in the cases, Union of India Vs. Vasavi Cooperative Housing Society Ltd. & Ors., reported in AIR 2014 SC 937 and Union of India Vs. Ibrahim Uddin & Anr., reported in 2012 (8) SCC 148.
The issue regarding limitation has already been discussed while dealing with the same judgment [Noharlal Verma Vs. District Cooperative Central Bank Ltd. Jagdalpur, reported in (2008) 14 SCC 445)], as cited by the learned counsel Dr. Manish Singhvi, therefore, there is no need to discuss the judgment as rendered in the case of Nazir Mohd. Vs. J. Kamla, reported in AIR 2020 SC 4321, on the issue of limitation.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(85 of 118) [CFA-192/2010] In the case of Kanti Lal & Ors. Vs. LR's of Deepchand & Ors., reported in 2015 (3) DNJ (RAJ) 1308, a co-ordinate Bench of this Court, while dealing with the issue of validity of trust deed, has held as under":-
"11. The Trust could not be created by the father Maanmal on 23/12/1957 in favour of his minor sons, since the property in question was admittedly an ancestral and a joint family property and even with the relinquishment of right by the elder brother Roop Chand in the said suit house in favour of Maanmal by the second document of relinquishment deed (`दसरबर') on 23/12/1957, the said joint family property vested in the Hindu Undivided Family of which Maanmalwas the Karta. Without the partition taking place between the father, mother and the sons, the definite share of the father was not ascertainable on 23/12/1957 and the Trust by father in favour of minor children as beneficiaries in respect of joint property could not be created, as the indeterminate share of father in the joint property was not transferable by father in favour of his minor children and unless the property is transferable to the beneficiaries, the Trust of that property cannot be created. Having a beneficial interest in the property as a minor children did invalidate the creation of Trust and that precisely is the purport of Section 8 of the Act, 1882, which is quoted below for ready reference:-
"8. Subject of Trust.- The subject-matter of a trust must be property transferable to the beneficiary. It must not be merely beneficial interest under a subsisting trust."(Downloaded on 09/02/2022 at 08:44:04 PM)
(86 of 118) [CFA-192/2010] As in the instant case, the trust deed dated 22.09.1973 is void, because admittedly, the property in question is an ancestral, Jamnadas died ecstasy after 1959, thus the property in question is vested into successor in view of Section 6 and Section 8 of the Hindu Succession Act 1956. Moreover, Gyanprakash was never remained settler of trust in question. Admittedly, the property in question is an ancestral, thus it cannot be diverted into trust and trustees for benefit of beneficiaries, therefore, execution of Trust Deed is void and without jurisdiction.
In the case of Kotha Seshamma (supra), while dealing with the issue regarding alienation of ancestral property ,High Court of Andhra Pradesh has held as under:-
"It is open to coparceners to recover possession of ancestral or joint family property wrongfully alienated by the father or manager on the footing that they were entitled to the estate as a joint undivided one. If, however, the non-alienating coparcener challenges a sale made by the father or manager of joint family property and institutes a suit to recover only his share of the property alienated, there by impliedly admitting the right of the alienee to the other shares in that property, there is no reason why the other coparceners should be prejudiced thereby or lose their right to a similar share. If the alienation is vulnerable, the other coparceners who have a right of suit could attack it alone."
In the instant case, the property in question is ancestral, thus, it cannot be diverted into trust and trustees for the benefit of beneficiaries, therefore, execution of trust deed is void and (Downloaded on 09/02/2022 at 08:44:04 PM) (87 of 118) [CFA-192/2010] without jurisdiction. There is no need for further elaboration on this issue, as the same has already been discussed here-in-above. In the case of Bhaskar Woman Joshi (supra), while dealing with the issue of creation of trust deed, Hon'ble the Supreme Court has held as under:-
"7......The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances. If the words are plain and unambiguous, they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the document may of course be given."
As in the instant case, formation of trust deed is void because the settler and the executor of the trust deed had no vested property in question into any of the trustee, thus, in absence of any trustee, the formation and execution of the trust is void ab initio. The meaning of the trust as provided under Section 3 of the Indian Trust Act, 1882 (in short, 'the Act'), creation of trust is not proved in view of Section 6 of the Act, nor trust is created as provided under Section 7 of the Act and in view of Section 11 of the Act, execution of the trust is not in existence, nor it was extinguished, in view of Section 77 of the Act. (Downloaded on 09/02/2022 at 08:44:04 PM)
(88 of 118) [CFA-192/2010] In the cases, T.A.V. Trust Alleppey (supra), Shiv Kumar (supra), Balasubramanian & Anr. (supra) and Manjeet Singh (supra), while dealing with the issue of essentials for creation of trust deed, similar view has been expressed by the Court.
In the case of LIC Vs. Anuradha (supra), while dealing with the issue regarding presumption of civil death, Hon'ble the Supreme Court has held as under:-
"14. If an issue may arise as to the date and time of death, the same shall have to be determined on evidence - direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who make assertion of death having taken place at given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years absence was shown to have elapsed."
As in the instant case, admittedly, Durgadutt was blind. It was not proved by the plaintiff (Sriniwas Jhanwar) that Durgadutt was missing for alleged period, nor there could have been occasion to declare and presumed his civil death. Durgadutt appeared as DW-7 in the instant case.
In the cases of N.Kamalam (supra) Laxmi Narayan (supra), the issue regarding validity of the creation of trust deed on the basis of non-joinder of necessary party has already been discussed in the preceding paragraphs, therefore, there is no need to reiterate it again.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(89 of 118) [CFA-192/2010]
In the cases of Sona Bala Bora (supra) and Govinda
Swami (supra), the issue regarding dissolution of trust deed,
has already been discussed in the preceding paragraphs,
therefore, there is no need to reiterate it again at this juncture.
In the case of State of Bihar (supra), while dealing with the issue regarding findings recorded in one proceeding may not be treated as final and binding in subsequent proceeding.
As in the instant case, earlier judgments rendered in Motilal Vs. Gyanprakash's case and in other cases, which have been placed on record by the plaintiffs and the trust deed proved on the basis of such judgments by the learned Trial Court is perverse because the present parties to the instant suit were not remained parties in the said disputes, nor Durgadutt was served and appeared in the Motilal and other cases (Ex. 26 to Ex.30), thus, said judgments are not binding against the present defendant - appellant. The judgments are not judgment in rem (as per Section 41, 42 & 43 of the Indian Evidence Act, 1872) but same are judgment in personam.
In the case of Himani Alloys Limited (supra), the issue regarding judgment given on "admission" has already been discussed in the preceding paragraphs, therefore, there is no need to reiterate it again.
In the case of Bhagwat Sharan (supra), while dealing with the issue regarding approbate and reprobate of the party, Hon'ble the Supreme Court has held as under:-
"24. .......... It is trite law that a party cannot be permitted to approbate and reprobate at the same (Downloaded on 09/02/2022 at 08:44:04 PM) (90 of 118) [CFA-192/2010] time. This principle is based on the doctrine of election. In respect of wills, this doctrine has been held to mean that a person who takes benefit of a portion of the will cannot challenge the remaining portion of the will. In the Rajasthan State Industrial Development & Investment Corporation & Anr. Vs. Diamond & Jem Development Limited & Anr. (AIR 2013 SC 12412), Hon'ble the Supreme Court has made the observation that a party cannot be permitted to "blow hot & cold", "fast & loose", or "approbate & reprobate". Where one party knowingly accepts the benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order."
In support of the contentions for Civil First Appeal No. 192/2010, learned counsel for the respondent-plaintiff has relied upon the following judgements, as mentioned hereinbelow.
Principally, I am agreed with the ratio laid down by Hon'ble the Apex Court and High courts in the cases cited by the learned counsel for respondent-plaintiff but the facts and circumstances of these cases are different from the present case which will be now discussed in detail below.
In the case of LRs of late Shri Gurubux Singh (supra), while dealing with the issue regarding attornment, a co-ordinate Bench of this Court has held as under:-
"20. The expression entitled to receive the rent in the aforesaid definition signify that the transfer of interest of the landlord in favour of any other person is not prohibited, as a transferee of the lessor is entitled to collect rent in terms of the lease as of right and becomes a landlord under Section 3(iii) of the Act.(Downloaded on 09/02/2022 at 08:44:04 PM)
(91 of 118) [CFA-192/2010] Tenant cannot dispute the right of the transferee landlord to maintain an eviction petition under the Act or to claim rent. Hence, in the case of a valid transfer of premises by the lessor by way of sale, as the trnsferee would be entitled to receive the rent of the premises, he would fall within the definition of landlord.
24. No attornment of tenancy is necessary in law as the above Section creates a statutory attornment and the Section does not insist that the transfer of the lessor's right can take effect only if the tenant attorns as attornment by tenant is unnecessary to confer validity to the transfer of lessor's right. However, the Section protects payment of rent by the tenant to the transferor without notice of the transfer. The transfer of ownership of the premises to the respondent by the previous lessor results in statutory attornment by the tenant in favour of the lessor's transferee and consequently jural relationship of landlord and tenant, the said right of transferee under Section 109 is not curtailed or modified by the T.P. Act.
26. As such, from the above, it is apparent that neither any attornment was necessary on part of the tenant for conferring the right to receive the rent, nor any notice in this regard was necessary for the purpose of alleged attornment."
As in the instant case, before filing for the suit there was enough time available with plaintiff-respondent for attornment and to establish a relation of new landlord and tenant but the plaintiff- respondent failed to establish the same but on the other hand in case cited above by the learned counsel for the respondent- plaintiff the initial suit was filed by Maji Leel Kanwar and during the pendency of the suit she transferred/vested the property to the trust, which in turn transferred the same to the plaintiff within (Downloaded on 09/02/2022 at 08:44:04 PM) (92 of 118) [CFA-192/2010] the short span of two months from the date of filing of the suit. The very fact that by way of application under Order XXII, Rule 3 and 10 CPC, the fact of transfer by Maji Leel Kanwar to the trust and by the Trust to plaintiff was bought on record and to the notice of plaintiff during the suit , the same was the only practical way of bringing the above information to the notice of the court and subsequently to the defendant.
In the case of Dr. Ambica Prasad (supra), while discussing the issue regarding attornment, Hon'ble the Supreme Court has held as under:-
"13. From the definition of 'landlord', it is clear that the definition is couched in a very wide language, according to which not only the owner but also any person receiving rent, whether on his own account or on behalf of or for the benefit of any other person or as a trustee, guardian, or receiver for any other person, is also the landlord.
14. For the purpose of eviction of tenant on the ground of personal need or reasonable requirement, one must show that he is owner of the building.
18. From perusal of the aforesaid Section, it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to (Downloaded on 09/02/2022 at 08:44:04 PM) (93 of 118) [CFA-192/2010] confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment.
In the above case cited by the learned counsel, the fact that the ownership of the appellant by the virtue of the deed of exchange has neither been denied nor been disputed by the respondent-tenant. Admittedly, the respondent-tenant was paying electricity and other charges of the tenanted premises to the appellant but depositing the rent in court in the name of the previous owner, despite knowing that the appellant was the landlord of the premises. In the above mentioned case respondent already knows that who is the actual owner of the premises as he is paying rent and other charges to him in capacity of owner, Therefore, Attornment by the tenant is not necessary where as in the present case in hand there was no attornment by the plantiff-
respondent as to establish the relation of new landlord and the tenant between the parties after transfer of property by sale, although that sale of property is valid or not is also in question in the present case.
In the case of Ramadhar Shrivas (supra), while dealing with the issue regarding attornment, Hon'ble the Supreme Court has held as under:-
"17. ......... ......... Since Hira Lal was the owner of the property and defendant Bhagwan Das was occupying the property and paying Rs.10/- per month as rent to Hira Lal, after the sale of property by Hira Lal to plaintiff, Bhagwan Das became tenant of the plaintiff." (Downloaded on 09/02/2022 at 08:44:04 PM)
(94 of 118) [CFA-192/2010] In the present case admittedly there is no attornment or acknowledgement given by the plaintiff - defendant Sriniwas Jhanwar to the appellant-respondents but in the case cited above the plaintiff- Ramadhar even after the disposal of previous proceeding in civil court as well as appeal, issued a notice of the defendant on 9th June,1991, by registered AD. In the said notice , the plaintiff through his advocate asked the defendant- Bhagwandas to hand over possession of "Dhalia" and to pay arrears of rent stating therein that the plaintiff had become the owner of suit property as he had purchased the property by the registered sale-deed from Hiralal and he was occupying it as the owner of the property.
In the case of M/s. Payal Vision Ltd. (supra), while discussing the issue regarding Denial of Title, Hon'ble the Supreme Court has held as under:-
"15. ............. ........... the challenge to the title of plaintiff qua the suit property was based on a document anterior to the commencement of the tenancy in question. It also meant that challenge was in substance a challenge to the landlord's title on the date of commencement of tenancy......... .......... ........."
In the case of Kanti Lal (supra), while dealing with the issue regarding Denial of Title, a coordinate Bench of this Court has held as under:-
"39. ........ ........ ........ The denial of title and renunciation of the character of the tenant is unambiguous, clear and without any reservation and it continued even after when the plaintiff sought decree against the respondent-tenant on the said grounds (Downloaded on 09/02/2022 at 08:44:04 PM) (95 of 118) [CFA-192/2010] falling under Section 13(1)(f) of the Act of 1950 and the conduct of the respondent-defendant tenant has not been condoned by the plaintiff-appellant. The Division Bench of this Court in Lalu Narayan's case and Single Bench of this court in Shiv Narayan's case held that decree for eviction can be passed even if there is no plea in the plaint and no specific issue was framed on the point of denial of title of the plaintiff-landlord, therefore, the plaintiff is entitled for the decree for eviction against the defendant and the issue framed by this court on 25.8.2003 is decided in favour of the appellant-plaintiff.
As in the instant case, there is no acknowledgement between landlord and tenant, therefore, as there is no attornment then, it cannot estops the tenant from disputing the title of the landlord whereas in both the cases cited above the jural relationship of landlord and tenant was admitted between the parties and the rate of rent is also settled by them and the same is being admitted in both the cases cited above.
In the case of N.R. Narayan Swamy (supra), while dealing with the issue regarding filing of second suit for eviction is maintainable, Hon'ble the Supreme Court has held as under:-
"10. The expression subject matter is not defined in Civil Procedural Code. It does not mean property. That expression has a reference to a right in property which the plaintiff seeks to enforce. That expression includes the cause of action and relief claimed. Unless the cause of action and relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject matter of the second suit is same as that in the previous suit.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(96 of 118) [CFA-192/2010]
11. The Court further observed that the mere identity of some of the issues in two suits would not bring about identity of the subject matter in two suits."
In the case of LRs of Ramdev Kajaria (supra), while discussing the issue regarding striking out of defence of tenant, a co-ordinate Bench of this Court has held as under:-
"6. .................. ...................... in view of the assumed waiver against the land lord, may be that this additional consequence cannot flow, but then that by itself does not entitle the tenant to the benefit of Section 13(6) of the Act, notwithstanding his having failed to make the deposit, or make the payment as required by Sub-section (4). Waiver, if at all attracted, is attracted only against the plaintiffs right to have the defence struck off. Consequently, he loses his right to have the defence struck out, but then it does not have the effect of attracting the fiction in favour of the tenant about his having made deposit, or payment as required by Sub-section (4). Question as to whether the tenant has made deposit, or payment as required by Sub-section (4) for the purpose of Sub-section (6) it is required to be considered independently, and as a fact, to strike out his defence. In the present case, as noticed above, in view of the fact that rent for the period March, 1994 was not deposited within the extended permissible time under Section 13(4), obviously it has to be concluded that the tenant has not wake deposit or payment as required by Sub-section (4). That being the position, benefit of Section 13(6) cannot be extended to the tenant except by doing violence to the language of the statute i.e. the tenant could be conferred benefit thereof notwithstanding having made payment or deposit as required by Section 13(4) simply because his defence has not been struck off, or cannot be struck off. this is not the (Downloaded on 09/02/2022 at 08:44:04 PM) (97 of 118) [CFA-192/2010] situation contemplated by the bare language of Section 13(6)."
In the case of Heera Lal (supra), while dealing with the issue regarding striking out of defence of tenant, a co-ordinate Bench of this Court has held as under:-
"47. The matter could be viewed from yet another angle. So far the question of default is concerned, the default in payment of rent is itself a ground for eviction under Section 13(1)(a) of the Act and a decree for eviction on its basis can always be granted. The only restriction on such a decree for eviction comes from Section 13(6) of the Act by virtue of which the court would not grant a decree for eviction on the ground of default, if the tenant complies with the requirements of Section 13(4) of the Act, i.e., of payment of the determined amount under Section 13(3) of the Act and so also continuous timely payment during pendency of the suit provided of course that such benefit has not previously been taken by the tenant. This benefit of 'first default' could be granted only when there is a compliance of Section 13(4) of the Act. Obviously, in the case of non-compliance of Section 13(4) of the Act, the benefit of "first default" could also not be granted and, therefore, whether defence against eviction is struck out or not, a decree for eviction would nevertheless follow, if ground of default is established."
In the instant case in hand, firstly, the relation of new landlord and tenant has not been established between the parties as there was no attornment and the sale of the property is also in question. Secondly, in the view of dismissal of the previous suit no. 16/2003 dated 06.01.2004, the plaintiff has abondoned and waived their claims, thus, the rent if payable upto 06.01.2004 is not recoverable, thus, it cannot be said that the defendant has (Downloaded on 09/02/2022 at 08:44:04 PM) (98 of 118) [CFA-192/2010] committed second default and subsequently, the appellant/respondents are entitled to get benefit of first default as provided under Section 13(6) Rent Control Act,1950 whereas in both the cases cited by the counsel for the plaintiff-respondent the tenant was not entitled to the benefit under section 13(6) of the act as the tenant has not made the payment of the rent and violated the requirements which is mandate and beyond repair under section 13(4) of the Act.
In support of the contentions for Civil First Appeal Nos. 197/2010, 240/2010 and 206/2010, learned counsel for the respondent-plaintiff further relied upon the following judgements:-
1. M/S Umed Realators, Wani, District Yavatmal & ors. vs Smt.Sobha wd/o Mahadeo Dehpande & ors.(supra) As per the case cited by learned counsel for respondent-
plaintiff it has been held that a document which is treated to be void ab initio, can be ignored at nullity and it is not necessary to have the same set aside on the other hand in the present case the Lease deed dated 09.01.1985 in favour of Hanuman Bux by Durgadutt cannot be said void as the creation and execution of the trust deed dated 22.09.1973 is in question and not been proved.
2. Daya Singh & Anr. Vs. Gurdev Singh (Dead) by LRs & Ors.(supra) As per the case cited above, it is clearly averred that the right of sue accrued when such rights was infringed by the defendants, about a week back when the plaintiffs had for the first time come to know about the wrong entries in the record of rights and when defendants had refused to admit the claim of the (Downloaded on 09/02/2022 at 08:44:04 PM) (99 of 118) [CFA-192/2010] plaintiffs and admittedly the suit was filed just after a week on 21 st August, 1990 where as in the present case the right to sue first arose in the year 1992 itself when plaintiff was party to the earlier suit and pursuing adversarial proceedings i.e. on 22.05.1992 in the Suit No.45/1991.Also looking to the assertion made in para 40 of earlier written statement (exhibited as A/14 in present suit) made it clear that right to sue first time accrues to Sriniwas in year 1992 itself and subsequently, the present case in hand cannot be said within the ambit of limitation.
3. Santosh Vs. Jagat Ram & Anr., (supra) As per the present case in hand there was the earlier one another suit (45/1991) which was filed by the Sriniwas (plaintiff- respondent) in which he come to know about the existence of the lease deed dated 09.01.1985 when the written statements was filed on 22.05.1992 and admittedly, the suit was filed on 07.02.1996. Therefore, as per the Limitation act present suit is said to be barred by the limitation on the other hand as per the case cited above although the suit was filed for about five years after the passing of the consent decree but the fact of fraudulent decree came in notice for the first time just two and half months before filing of the suit when respondents started interfering with the ownership and possession over the suit land, therefore, as looking to Article 59 of the Act the consent decree was set aside and suit was held within the limitation because the cause of action arose just two and half months before the filing of the suit therefore, the said suit was held well within the limitation period. (Downloaded on 09/02/2022 at 08:44:04 PM)
(100 of 118) [CFA-192/2010]
4. The Land Acquisition Officer, City Improvement Trust Board, Bangalore vs H. Narayanaiah (supra) As per the case cited above, it is correctly held that judgement not inter- se parties would be relevant if they relate to similarly situated properties and contain determination of value on date fairly proximate to the relevant date but here in the present case disputed property is situated at Nokha mandi, Bikaner where as the disputed property in earlier suit was situated at Mohalla Hamalo ki Bari, Bikaner i.e. totally different places and also there are considerable differences in the value of both the properties.
5. LRs of Moti Lal, Adopted son of late Shri Labh Chand, by caste Joshi Vs. Gyandutt @ Gyanprakash S/o late Onkardutt, by caste Bhadani Brahmin & Anr. (supra) As per the present case in hand it is admitted that despite of framing of five issues pertaining to validity of the trust deed dated 01.12.1973, trial court without examining the same , held that trust deed is valid by only placing reliance on the past judgement (Lr's of Motilal vs Gyanprakash) despite of the fact that present parties to the instant suit were not parties in the said suit, thus it cannot be said to be binding as that judgement is in personam and not judgement in rem.
6. Ajab Singh & Ors. Vs. Pandit Babu Ram & Ors(supra) In the case relied by the counsel for the respondent-plaintiff in the light of Section 34 of specific relief act, 1963 any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and (Downloaded on 09/02/2022 at 08:44:04 PM) (101 of 118) [CFA-192/2010] the plaintiff need not in such suit ask further relief and admittedly in the case cited above the land in dispute was of defendant no.2 and the same was in his possession but in the present case the prayer is made in negative terms for seeking an injunction not to grant possession to any other person. Also here in the present case the title of the respondent- plaintiff over the disputed property is under the cloud or in dispute and also the plaintiff- respondents are not in the possession of the disputed property. And still plaintiff- respondent did not filed the suit for declaration of the title and recovery of possession but only to declare instrument void so in absence of any consequential relief sought in the plaint, the present suit in its present from shall not survive.
After having given a thoughtful consideration to the law laid down by Hon'ble the Apex Court, this Court and various other High Courts and facts, evidences and circumstances of this case, finding of this Court in regard to Civil Suit No. 55/2005 (Civil First Appeal Nos. 197/2010, 240/2010 and 206/2010) are given below:
In the light of the discussions made hereinabove in regard to the citations relied upon by both the sides and the law laid down in these cases as well as applicability of these judgments in the facts and circumstances of this case in regard to issue Nos. 1 to 3 and 5 to 8, this Court is of the opinion that the findings of the Trial Court on the suit filed for eviction and arrears of rent is based upon the findings of the suit filed for declarations and injunction and number of important questions/points have been discussed in the case of declarations, therefore, it is appropriate to deal with the arguments of both the sides which are related for the just decision of issue Nos. 1 to 3 and 5 to 8 and the main points are-:(Downloaded on 09/02/2022 at 08:44:04 PM)
(102 of 118) [CFA-192/2010] Both the suits were filed by the plaintiffs on the basis of the sale-deeds executed by Gyanprakash @ Gyandutt on the basis of the trust deed dated 22.09.1973 executed in his favour and which is bonafidely and seriously under challenge and the trust deed is the basis of the right of the plaintiffs because right of the ownership of the plaintiffs is based upon the sale-deeds in their favour and competency of Gyanprakash @ Gyandutt in regard to execution of the sale-deeds is depend upon the trust deed dated 22.09.1973, therefore, first of all, it is to be determined that whether, the trust deed was legally executed, when it came into force, when it was extinguished, whether, Gyanprakash @ Gyandutt became the sole owner of the property and legally possessed the right of sale and whether, the plaintiff (Sriniwas) was the rightful owner of the property on the basis of the sale-
deeds.
It is also an admitted position that the initially, the patta was issued in the name of Jamnadas and Onkardutt was only son of Jamnadas. Onkardutt is having two sons, elder was Durgadutt and younger was Gyanprakash @ Gyandutt, one wife - Surjidevi and one minor daughter Asha. At the time of execution of the sale- deeds, all the heirs of Onkardutt were alive; date of marriage of Asha was not disclosed. Trust deed was executed not only by Onkardutt but also by Durgadutt and Gyanprakash @ Gyandutt was the beneficiary of the trust.
As per the arguments advanced by both the sides in regard to conditions of Clause Nos. 4 and 5 of the trust deed are most relevant. It is to be determined that whether, the right to sue was (Downloaded on 09/02/2022 at 08:44:04 PM) (103 of 118) [CFA-192/2010] accrued in favour of the plaintiff for filing the suit for rent and eviction as well as suit for declarations and injunction.
Issue Nos. 5 to 8 are, to the some extent, are rebuttal of the issue Nos. 1 to 3 and, therefore, findings on these issues are co- related.
This court is of view that right to sue arises in favour of Sriniwas - Plaintiff through Trust Deed and for the sake of arguments if it is presumed that the trust deed was validly executed, but it can always be challenged as to its contents/recitals. Moreover, interpretation of document is always a question of law. It is quite clear that Onkardutt has indirectly given the entire disputed property to Gyanprakash. It has completely over-ridden the rights of Smt. Surji Devi, Ms.Asha and even Durgadutt (blind person). Now, another doubt is on creation of the trust deed can easily be discerned that Smt. Surji Devi was of unsound mind (according to the plaintiff himself), but still Smt. Surji Devi has been stated to have signed the trust deed. It would be pertinent to mention here that the beneficiaries included Ms. Asha in the trust deed, but Asha has been completely left out on the dissolution of the trust deed. Thus, a trust deed created is inconsistent with the provision of Section 6 of the Hindu Succession Act, therefore, the trust deed is invalid.
Subsequently, there is also improper dissolution of the trust deed as according to the recital of the trust deed itself (clause IV), it has been stated that on the death of Onkardutt and Surji Devi, whenever Gyandutt @ Gyanprakash becomes adult, the trust will dissolve itself. Thus, the trust deed naturally contemplated both (Downloaded on 09/02/2022 at 08:44:04 PM) (104 of 118) [CFA-192/2010] on the death of Onkardutt and Surji Devi as well as on Gyandutt becoming major. Surji Devi was admittedly alive on 02.09.1986 when the plaintiff is supposed to become owner of the property and was died in the year 1995-96, therefore, the trust deed was subsisting till the death of Surji devi. If Gyanprakash had to be the sole owner on becoming major, there was no need to mention about death of Onkardutt and Smt. Surji devi. Therefore, the dissolution of the trust deed could not occoured and there was no occasion for Mr. Sriniwas (plaintiff before the Trial Court) to become owner of the property due to subsequent transfer on 02.09.1986. As it means that sale executed by Predecessor in Title to be treated as void.
Also, there is no evidence available on record as no witness has been examined by the learned trial court in order to prove the document i.e. Trust Deed and as per evidence act,1872 a document can be proved by :
As per Sections 67 & 47 of Indian Evidence Act,1872, which reads as under:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced. -- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
47. Opinion as to hand-writing, when relevant. -- When the Court has to form an opinion as to the person by whom any document (Downloaded on 09/02/2022 at 08:44:04 PM) (105 of 118) [CFA-192/2010] was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation. --A person is said to be
acquainted with the handwriting of another
person when he has seen that person write, or
when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him."
After the bare perusal of the above-mentioned provisions and other related provisions of the Evidence Act, this Court is of the opinion that a document can be proved by following persons:-
(i) by statement of a person, who wrote or signed the document;
(ii) by calling a person, in whose presence, the document was signed or written (ocular evidence/attesting evidence);
(iii) by calling a person, who is acquainted with the writing of the person by whom the document is supposed to have been signed or written;
(iv) by calling a person, who, in routine has been receiving the document signed by the person in the course of his business or official duty though he may have never seen the author signing the document; and (Downloaded on 09/02/2022 at 08:44:04 PM) (106 of 118) [CFA-192/2010]
(v) by proof of an admission made by the person, who is stated to have signed or written the document to that effect made in any other judicial proceeding.
In view of the above crystal clear position of law, in the present case, the witness of the trust deed dated 22.9.1973 can be proved by remaining trustees, i.e., Surjidevi, Durgadutt or by attesting witnesses, i.e., Bahadur Singh Kochar, Noor Ahmad Gajdhar and by Asha (daughter of Onkardutt), as she may be acquainted with the signature of Onkardutt or by a person, in whose presence, document was typed and signed by the executor or by a person, in whose presence, signature and thumb impressions were taken. But still, none of them, as mentioned above, have been produced as a witness for evidence.
Apart from the above, another point of consideration before this court is that whether findings of earlier suit can be treated as binding in present case. As per Section 41 of the Indian Evidence Act mandates that any judgment pertaining to probate, matrimonial, insolvency and admiralty alone are relevant in subsequent case. The present case does not come within the purview of the any of the aforesaid categories. Thus, Section 41 would not be applicable in the present case. Section 42 would be applicable only when the inquiry pertains to the issue of public nature. While, in the present case, trust deed is not public in nature. Thus, Section 42 is equally inapplicable. Section 43 would be relevant when findings given in earlier judgment can only be of 'fact in issue' and not of 'proved fact'. While, in the present case, past judgment was not fact in issue in the instant case. After the (Downloaded on 09/02/2022 at 08:44:04 PM) (107 of 118) [CFA-192/2010] perusal of the aforesaid sections it can be held that earlier judgement is not judgement in rem and in fact it is judgement in personam. Therefore, it can be held that earlier judgement is not binding in present case.
So far as issue No. 5 is concerned, it was admitted by the plaintiff and his predecessor-in-title Gyanprakash @ Gyandutt, that Surjidevi was of unsound mind and Surjidevi was alive at the time of execution of the sale-deeds and the date of marriage of Asha was not disclosed.
In view of the above, findings of the learned Trial Court in regard to issue Nos. 1 to 3 and 5 to 8 are wrong, are not sustainable and, therefore, the same are set aside.
So far Issue No. 4 is concerned, burden to prove this issue was casts upon the plaintiff and this issue was wrongly decided in favour of the plaintiff-respondent because while deciding issue No.4 in civil suit no. 55/2005, the learned trial court, vide para 37, page number 63 to 65 of the impugned judgment, wrongly held that the decree passed in favour of Hanumanbux was a collusive decree only on the basis of presumptions and without any legal evidence. As Suit No.34/94 was filed on behalf of Hanumanbux against the tenant firm Dhanraj Devkishan, was rightly filed and a decree was passed on the basis of compromise cannot be held to be collusive decree on the basis that defendant appeared without service before the Court and submitted compromise. Any compromise cannot be questioned on the basis that defendant appeared before the court without service. If parties settled their dispute, out of the court, they can appear before the court before filing of written statement and a compromise decree can be (Downloaded on 09/02/2022 at 08:44:04 PM) (108 of 118) [CFA-192/2010] passed by competent civil court and on the basis of such type of pleading taken in present suit it cannot be held that decree passed by Civil Judge (Senior Division), Bikaner was collusive.
Now coming to the point of transfer of physical possession through lease deed, suit was filed by Hanumanbux against the firm Dhanraj Dev Kishan (Appellants of CFA No. 197/2010). The suit was decreed and in execution of that decree, possession of the disputed property was handed over to the decree-holder Hanumanbux by Sale Ameen in the year 1994. Report of the Sale Ameen as well as proceeding of handing over of the possession, was not challenged. A specific plea of remaining appellants that another lease deed has been executed between Hanumanbux and Omprakash and Sanju devi for 19 years. Therefore, it was wrongly held by the learned Trial Court that the decree was collusive decree and in fact, physical possession was not handed over to the decree-holder Hanumanbux.
In view of the above, findings of the learned Trial Court in regard to issue No. 4, is wrong, is not sustainable and, therefore, the same is set aside.
So far as Issue Nos. 9 and 9-A are concerned, burden to prove issue No. 9 was casts upon the defendants and burden to prove issue No.9-A was not casts upon any of the parties but since both these issues were framed on the basis of the pleadings of the defendants, therefore, it was the duty of the defendants to prove these issues. It was held by the learned Trial Court that it cannot be said that the suit was time barred, this Court is of the opinion that both these issues are wrongly decided in favour of the plaintiff and against the defendants on the ground that since the (Downloaded on 09/02/2022 at 08:44:04 PM) (109 of 118) [CFA-192/2010] defendants No. 4 & 5 are the relatives of the defendant No.3 and the suit was filed from the date of knowledge, i.e., 24.07.1996 but as discussed above, lease deed which was executed by Durgadutt in favour of Hanumanbux dated 09.01.1985, as it was clearly pleaded in para number 26 of the plaint that the suit was filed within limitation on the basis of the pleadings mentioned at para number 23 of the plaint, i.e., on the basis of knowledge because admittedly, the lease deed was executed in the year 1985 and it is settled position of law that if suit is not filed within 3 years from the date of document and if the plaintiff comes with certain facts of a case that the suit is within limitation, it was the duty of the learned Trial Court to frame specific issue in this regard and burden will be on the plaintiff although no separate issue was framed by the learned Trial Court in regard to limitation but by giving finding in regard to issue No. 9 and 9A, that point was covered by the learned Trial Court and it was wrongly held that the suit was filed within limitation from the date of knowledge, i.e., 24.07.1996 when threatening regarding material addition and alteration and raising of new construction was given by the defendants because in earlier suit which was filed by the same plaintiff - Sriniwas (Suit No. 54/2005) for arrears of rent and eviction against the firm Dhanraj Devkishan and its proprietor Devkishan. In para number 13G, one of the ground was taken on the basis of material alterations, new construction etc. and that suit was filed on 05.07.1991, therefore, it is wrong to say that the fact of execution of the lease deed in the year 1985 came within the knowledge of the plaintiff Sriniwas first time only in the year 1996.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(110 of 118) [CFA-192/2010] It is also relevant to mention here that from the top of page number 92 of the impugned judgment, it was held by the learned Trial Court that issue Nos. 9 & 9-A are decided in favour of the plaintiff whereas arguments in regard to limitation were discussed and decided later on at page number 92 to 97 and while not framing any separate issue that, whether, Durgadutt was necessary party to the suit, this objection was also decided along with issue Nos. 9 & 9-A, the point of impleadment of Non joinder of Necessary party as observed above, Durgadutt was necessary party, because he was the trustee of the trust deed dated 01.12.1973 and was a lessor of the lease deed dated 09.01.1985. No instrument can be set aside by the Trial Court without making lessor as a party. The lessor and lessee both have to be made party if there is quashment/setting aside of valid instrument registered. Durgadutt was an essential party under Order 1 Rule 10 CPC. As per trial court, Durgadutt was not seen for 10-12 years therefore, trial court presumed him to be dead, but in fact, No Missing Person Report was filed and no notice or advertisement including photo of Durgadutt has been published in any of the Newspaper having circulation within the State of Rajasthan. There is no finding/ observation/ declaration by the court of competent jurisdiction regarding the fact that Durgadutt is missing for last 10-12 years. Durgadutt, Surjidevi and Ms. Asha were the necessary parties and without their consent, the trust deed dated 01.12.1973, cannot be dissolved as they are the trustees of the trust deed. This was a gross error committed by learned trial court. However, later on Durgadutt appeared and depose in the court as DW-7 as a defence witness.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(111 of 118) [CFA-192/2010] It is noticed that as per the evidence and the pleadings, the defendant Nos. 4 and 5 are in possession of the disputed property and the possession was handed over to Hanumanbux in execution of the decree passed in favour of Hanumanbux, therefore, Issue No. 9 was wrongly decided against the defendants and the defendant Nos. 4 & 5 are in possession of the property in dispute pursuant to the lease deed executed by Hanumanbux in favour of Bhanwarlal Baheti but since, this is a suit for declarations in regard to lease deeds which were executed by Gyanprakash @ Gyandutt in favour of Hanumanbux and further this is a suit for declarations to the effect that the lease deeds executed by Durgadutt in favour of Hanumanbux may be declared null and void and the collusive decree as passed in favour of Hanumanbux on the basis of the lease deed may also be declared null and void, therefore, the possession was rightly handed over by the defendant No.1 to the defendant Nos. 4 & 5. This fact may affect the suit for eviction and rent whereas, it is clear that the aforesaid suit was not filed against the defendant Nos. 4 & 5.
As per plaintiff, the defendant Nos.4 & 5 - Smt. Sanju Devi and Omprakash, it is stated that they are the sublettee of the tenant. On the ground of subletting taken by the plaintiff, separate issue was framed in Civil Suit No. 54/2005 for eviction and arrears of rent but the same issue was not pressed, therefore, it cannot be held that the defendant Nos. 4 and 5 are in possession as sublettee of the tenant.
In view of the above, findings of the learned Trial Court in regard to issue Nos. 9 and 9 A are wrong, are not sustainable and, therefore, the same are set aside.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(112 of 118) [CFA-192/2010] As a result of the discussion foregoing, as the findings on issue Nos. 1 to 3, 5 to 8, 4, 9 & 9-A are reversed, therefore, the Appeal Nos. 197/2010 (Firm Dhanraj Devkishan & Anr. Vs. Sriniwas & Ors.), 206/2010 (Omprakash & Anr. Vs. Sriniwas & Ors.), 240/2010 (Bhanwarlal Vs. Sriniwas & Ors) are allowed; consequently, the judgment and decree passed by the learned Trial Court in Civil Suit No. 55/2005 (Sriniwas Vs. Dhanraj Devkishan & Ors.) is set aside.
Admittedly, in Civil Suit No. 54/2005 (Civil First Appeal No. 192/2010), which was filed by the plaintiff for arrears of rent and eviction, 10 issues were framed by the learned trial court but since, the issue Nos. 2 to 8 were not pressed by the plaintiff, therefore, these issues were dismissed as not pressed and were decided against the plaintiff. In that view of the matter, only the issue Nos. 1 and 10 were decided jointly by the learned Trial Court and issue No. 10-A, were decided separately.
Since the issue No. 10-A was a legal issue, burden to prove this issue was casts upon the defendants and as per the arguments advanced by both the sides and the facts and evidence available on record, it is undisputed position that earlier suit which was filed by the predecessor-in-title Gyanprakash @ Gyandutt against the appellant-tenant which was registered as Civil Suit No. 60/2003 but the same was withdrawn, without seeking any liberty and that suit was filed for the rent for the period from April, 1983 till the date of filing of the suit and the subsequent suit which was filed by the purchasers (Sriniwas & Viradevi) for eviction and arrears of rent for the subsequent period, it is also an admitted position that in both the suits, arrears of rent was claimed for (Downloaded on 09/02/2022 at 08:44:04 PM) (113 of 118) [CFA-192/2010] different period and it was rightly held by the learned Trial Court that on the basis of the earlier suit which was withdrawn without any liberty on 06.01.2004, subsequent suit which was filed by the purchaser, cannot be barred by the principles of res judicata, therefore, the findings of the learned Trial Court in regard to issue No. 10-A is correct and, therefore, the same is affirmed.
Issue Nos. 1 and 10 were co-related and, therefore, they were jointly decided by the learned Trial Court. Burden to prove both these issues were casts upon the plaintiffs, and this Court is of the view that learned trial court wrongly held that since the rent was paid to Gyan Prakash even after death of Onkar Dutt, therefore, it was admitted by the tenant that Gyan Prakash is the sole owner of the property, whereas it is admitted position that initially the rent was received by Onkardutt and thereafter the rent was received by Gyanprakash@ Gyandutt and others on behalf of Onkar Dutt as an agent of Onkar Dutt and no evidence of this aspect is available on record, which proves the fact of death of Onkar Dutt was within the knowledge of Dev Kishan and after the death of Onkar Dutt, the rent was paid in the capacity of owner of the property as stated by the plaintiffs.
As argued in the present by the respondent-plaintiff that there was a default in payment of rent by appellant defendants as they have not paid rent, on the contrary it is an admitted position that the jural relationship between Sriniwas and appellants as a landlord & tenant has not been established as there is no valid attornment. Therefore, it is clear from the above discussion that there is no legal attornment in favour of plaintiff-Sriniwas and both the suits are based on the ownership which was accrued from (Downloaded on 09/02/2022 at 08:44:04 PM) (114 of 118) [CFA-192/2010] Sale deeds dated 02.09.1986 as per plaintiff which were execute by Gyanprakash@ Gyandutt in favour of Plaintiff(s).
It would be appropriate to deal with the genuineness of the rent receipts which were exhibited as Exhibit 1 to 7 and the same were issued by Gyanprakash to Dhanraj, after payment of rent from the year 1.8.1981 to 31.3.1983. As this fact can only be proved either by Gyanprakash or by Devkishan or any other person in whose presence the receipts were issued but there is no such pleading or evidence available on record, by which the genuineness of the rent receipts can be proved. Therefore, it cannot be said that the rent receipts were genuinely proved and also on the basis of these rent receipts issued, it cannot be said that Gyanprakash issued those receipts in capacity of owner of the property or on behalf of Onkardutt, admittedly rent was never paid to plaintiff- Sriniwas In considered opinion of this Court, even on the basis of the fact that after death of original owner of the property, the rent was paid to his legal representative, it cannot be presumed that it is admitted by the tenant that he is the sole owner of the property because if there is no dispute, the rent can be collected by any of the heirs after death of original owner.
So far as transfer of ownership of the disputed property through Sale Deed Exhibits-8 & 9 is concerned, although it is stated by PW1 that these documents were signed by Gyan Prakash in his presence but the question is as to whether Gyan Prakash is competent to execute the sale deed Exhibit-9 because as per above observations, the trust deed dated 22.9.1973 was not legally proved in Civil First Appeal no.197/2010 as number of (Downloaded on 09/02/2022 at 08:44:04 PM) (115 of 118) [CFA-192/2010] issues has already been dealt in appeal which was filed against the decree of declaration (CFA 197/2010), whereas, issue No. 10 was related to relief.
It is an admitted position that the suit was filed on the basis of the sale-deeds executed in favour of plaintiffs and admittedly, no rent was paid to the plaintiffs and the question of attornment in favour of the plaintiffs is seriously in dispute as discussed in detailed above and it was held while deciding Appeal Nos. 197/2010, 206/2010 and 240/2010, which were filed by the defendants against the decree passed in the Civil suit No. 55/2005 for declarations and injunction, that the trust deed was not proved in favour of Gyanprakash @ Gyandutt, Gyanprakash @ Gyandutt was not become the sole owner of the property at the time of execution of the sale-deeds, rent receipts were exhibited during the statement of the plaintiff (Sriniwas) only, no other witness, i.e., previous landlord Gyanprakash @ Gyandutt or any other person was examined on behalf of the plaintiff and the findings of the learned Trial Court were based upon the fact that the right of defence of the defendants was struck off due to non-payment of determined rent and in the considered opinion of this Court where relationship of landlord and tenant was not established, title of the landlord was seriously and bonafidely disputed, simply on the basis that the rent was determined by the learned Trial Court, on the findings which were based upon the findings of other suits, it cannot be held that relationship of landlord and tenant is established between the parties and, therefore, the defence was rightly struck off.
(Downloaded on 09/02/2022 at 08:44:04 PM)
(116 of 118) [CFA-192/2010] As per law, suit for eviction and rent can be filed by a landlord, who received the rent or by the original owner of the property and per findings of Appeal Nos. 197/2010, 206/2010 and 240/2010, which is already discussed above in regard to formation of the trust and execution of the sale-deeds, Gyanprakash was not the sole owner of the property, therefore, it cannot be held that the plaintiff was undisputed owner of the property and since, no attornment was proved in favour of the landlord, therefore, he cannot be treated as landlord of the tenant, now, it would be appropriate to deal with section 44 of Transfer of Property Act,1882 which is relevant to decide the aspect regarding the sale of disputed ancestral property by Gyanprakash to Sriniwas - plaintiff.
Section 44 of Transfer of Property Act,1882, which is reproduced as under :
"Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house." (Emphasis added) (Downloaded on 09/02/2022 at 08:44:04 PM) (117 of 118) [CFA-192/2010] Admittedly, Gyanprakash sold the disputed ancestral property to Sriniwas, vide sale deed dated 02.09.1986. Sriniwas, the present respondent herein, is not the member of the pedigree of Jamnadas, therefore, in opinion of this Court, Section 44 of Transfer of Property Act, clearly applies to the instant case, as the property in question is undivided ancestral property and after the death of Onkardutt, still it has not been determined that who is the owner of the disputed property or what share of the disputed property any of them possess. In the opinion of this Court, after looking to the pedigree, Gyanprakash will be entitled to receive only ¼th share in the disputed property and that too, after determination of his share in the ancestral property by the court of competent jurisdiction. Despite that Gyanprakash sold the disputed undivided joint family property to Sriniwas(who is not the member of the family), as not being the actual owner of the disputed property.
But these important facts were ignored by the learned Trial Court and only on the basis of the sale deeds (Ex. 8 & 9) (CFA-
192/2010), it was held that plaintiff- Sriniwas is the owner of the property.
After dealing with all the relevant issues in this case, in the crux, it can be clearly said that no jural relationship of landlord and tenant is established between the parties as there is no legal attornment, therefore, it can be inferred that when the relationship of landlord and tenant is not established then, there is no question arises as to deposit/payment of the rent to Sriniwas -
plaintiff / respondent in the capacity of the owner of the property.
Consequently, it is held that application for mense profit which (Downloaded on 09/02/2022 at 08:44:04 PM) (118 of 118) [CFA-192/2010] was filed by Sriniwas - plaintiff / respondent is not maintainable and the same is dismissed.
As a result of the discussion foregoing, the findings on Issue No. 10 A is correct and, therefore, the same is affirmed but findings on issue No. 1 & 10 of impugned judgement is not sustainable in eyes of the law, therefore, the Appeal No. 192/2010 (Firm Dhanraj Devkishan & Anr. Vs. Sriniwas) is partly allowed; consequently, the judgment and decree passed by the learned Trial Court in Civil Suit No. 54/2005 (Sriniwas Vs. Firm Dhanraj Devkishan & Anr.) is set aside.
In the circumstances of the cases, the parties shall bear their own costs of these appeals.
A copy of this judgment be placed in each file.
(DEVENDRA KACHHAWAHA),J Vij./Mohan/ (Downloaded on 09/02/2022 at 08:44:04 PM) Powered by TCPDF (www.tcpdf.org)