Amar Nath Arora (Deceased) through LRs vs Anand Prakash Goyal (deceased) through LRs

Sharad Kumar Sharma, J

The appellant(s) before this Court are the plaintiffs in a regular Suit, as instituted by them, being Original Suit No. 421 of 1994, Amar Nath Arora (deceased) represented through LRs v. Anand Prakash Goyal (deceased), represented through LRs before the Court of Munsif Dehradun. In the Suit in question, which was instituted by the plaintiff/appellant (since deceased) now represented by substituted heirs, the suit was filed on 19th December 1994. The plaintiff had instituted the said Suit in relation to the property, which was, more particularly, described at the foot of the plaint, which is quoted hereunder:-

"Schedule of the premises in the Suit

Property bearing No. 48/1 Shivaji Marg (Vanwali Road), Dehradun bounded and butted as under:-

North - Shops belonging to the defendant in occupation of the other tenant "जिनसे धारीलाल किरायेदारी में हैं, श्री इन्दरलाल, श्री सेवाराम, श्री विपिन

South - Property of Smt. Janki Devi

East - Property of Shri Pulel Singh

West - Mahant Road.

"कि जो कागल संख्या 9क में शब्द ए,बी,सी,डी,ई,एफ,जी,एच,ए तथा लाल रंग की रेखाओं से अंकित है, उक्त सम्पत्ति कागज संख्या 32ग/6 में ए,बी,सी,डी,ई,एफ,जी,एच,ए से प्रदर्शित है।"

In the suit in question, the plaintiffs-appellants herein, had sought a decree in the nature of permanent prohibitory injunction, as against the defendants-respondents, for restraining their act or any action of forceful eviction of the plaintiffs-appellants from the property in question. The reliefs, which have been sought in the suit in question as filed on 19th December 1994, was modulated in the following manner:-

"(a) That by a decree of permanent prohibitory injunction the defendant be restrained from interfering into the peaceful possession of the plaintiff over the suit premises and from restraining the defendant from forcibly evicting the plaintiff from the said premises described in the schedule below.

(b) That full costs of the suit be awarded to the plaintiff.

(c) That any other relief which the learned Court deem proper in the circumstances of the case be also awarded to the plaintiff."

In the Suit, which was instituted for the relief of permanent prohibitory injuction, the plaintiffs-appellants had admitted the fact that in relation to the property in dispute, as given in the schedule of the plaint, a tenancy right was created in favour of the predecessor of the plaintiff-appellant way back in 1954, by one late Smt. Gyan Devi, who was the mother of the defendant-respondent and the purpose for the tenancy as depicted in the plaint was for the purposes of running a Dairy business.

It is contended by the plaintiff-appellant herein that the ownership of property over which the said tenancy right, which was created as back as in 1954, by late Smt. Gyan Devi, ultimately, on her death stood automatically devolved on her son namely Anand Prakash, and subsequently it stood vested with the present defendant-respondent.

Plaintiffs/defendants' case was that after creation of the said tenancy, the plaintiff-appellant has installed an electric and water supply connection, and consequently, admittedly, he has also raised other constructions over the property in question. He, in the plaint, particularly, as per the pleadings, which has been raised in para 13 of the plaint, it had projected the cause of action for the plaintiffs/appellants, it has arisen by contending thereof that the defendants-respondents, about couple of days back to the date of institution of the Suit, had visited the spot and they had made an attempt of forceful eviction of the plaintiff and threatened the plaintiffs-appellants to get them evicted from the property in question by use of force.

The plaintiffs-appellants' case in the Suit was that after the creation of the tenancy in favour of the predecessor of the plaintiff, by late Smt. Gyan Devi in 1954, he has been exclusively utilising the property in question, thereafter the plaintiff/appellant had made certain constructions, both by kutchha and permanent structures on the land or the portion of the property, which was let out to the plaintiff/appellant for the purposes of and the extent of the tenancy, which was created in favour of the plaintiff/appellant in 1954. He has made reference to the notice dated 6th September 1978, which was issued to him by the landlord for vacating the premises in view of the violation of the provisions contained under Section 20 of the Act No.13 of 1972. The said notice, though, it was replied by the plaintiff-appellant herein, by submitting a reply to the said effect on 22nd October 1978, which was made as Exhibit in the proceedings of the Suit, which was numbered as Paper No. 53 (ga), which was filed before the Court below.

The suit in question, after its institution and after referring to the cause of action of the effort of forceful eviction, as made by the defendant/respondent to evict the plaintiffs/appellants from the property, which was let out to them and which was the subject matter of the Suit. When the suit was instituted, the notices were issued to the defendants/respondents, and the defendants have filed their written statement being paper No. 37A, and in their written statement, thus preferred by the defendants/respondents they have specifically in their written statement has come up with the case that the alleged plea raised by the plaintiff, pertaining to the efforts being made with regards to the eviction of the plaintiffs/appellants from the property in question is concocted, as the said plea of forceful eviction was specifically denied by the defendants/respondents in their written statement, that the plea of the alleged effort of the defendants for getting a forceful eviction of the plaintiffs/appellants from the property in question, in fact, is not tenable, because at the behest of the defendants/respondents, they have contended that in fact they have never made any efforts to evict the plaintiff/appellant, from the property in question. In order to elucidate his augment, the learned counsel for the plaintiffs/appellants, herein to the Second Appeal has sought to extract the contents of para numbers 22, 23, 24 and 25 of the written statement in order to show that from the very pleadings raised in the said paragraphs by the defendants/respondents, it shows their intention and the bent of mind in fact was to make an effort for a forceful eviction of the plaintiff/appellant from the property in question. Para nos. 22 to 24 of the written statement read as under:-

"22. That the plaintiff is a tenant of a portion of open 1 and of property No. 48, Kanwali Road, Dehradun. The open land in his tenancy is 12'x30' for the use of his cattle and the remaining portion of the said property including the open land and the constructed portion was in possession of the Defendant. In the constructed portion of the said building the defendant was using as godown for storing tools and other materials of his contract-work of building construction and other goods.

That the plaintiff had evil design to take illegal possession of the property of the defendant and he his sons threatened the defendant on 7.12.94 and 10.12.94 and showed his intention to take illegal possession of the remaining open plot and constructed area of the defendant.

That on 19.12.94 the plaintiff filed the present suit in this Hon'ble Court, showing himself as tenant in possession of whole of the property No. 48, Shivaji Marg except the shops situated in front portion of the property and by playing fraud on this Hon'ble Court obtained an interim injunction. On the night of 21.12.94 on the eve of winter vacation, with the intention of taking unauthorised possession of the property of the defendant, he broke open locks of the defendant's godown illegally and committed theft of the property of the defendant which was kept in the said godown.

That the plaintiff with the intention of taking unauthorised possession and making unauthorised use of the open plot of the defendant made it temporary tin sheds on the remaining portion and fixed pegs in the open land and started making illegal use of the whole open plot and constructed portion of the defendant against his wishes and despite his protest."

After having perused the contents of the para 23 to 25, as referred to by the learned counsel for the plaintiff-appellant in order to project that it gave a cause of action for them to institute the Suit for grant of a decree of permanent prohibitory injunction, as instituted on 19th December 1994, is absolutely untenable and de hors to the interpretation of the pleadings, which has been projected in the aforesaid paragraphs of the written statement. In the aforesaid paragraphs, the pleading which has been sought to be extracted is in order to substantiate the cause of action at the behest of the plaintiff/appellant to protect the sustainability of the Suit, as in fact the paras referred, it was simply a narration of an act of inference at the behest of the defendants/respondents, the said argument is not sustainable, because if the said paragraphs are read they simply narrate a fact with regards to the extent of tenancy, the purpose for which the tenanted portion was being utilised and various other aspects pertaining to the illegal possession, which was taken by the plaintiff/appellant in supersession to the area, of which the actual tenancy was created in his favour in 1954. The contents of the aforesaid paragraphs cannot be extracted under any imagination as to be the extract to interpret a cause of action at the behest of plaintiff/appellant to institute the Suit.

This contention, while reference is made by the plaintiff/appellant to the contents of para Nos. 22 to 25 of the written statement, which was filed on 6th March 1995, cannot be derived and to be read for the purposes of giving him the cause of action to institute the Suit on 19th December 1994. Because for the purposes of determining the cause of action to institute the Suit, it would always relate back to a particular set of circumstances or an action taken against the plaintiff/appellant, exactly at the time when the Suit itself was thought to be instituted. He cannot derive a pleading of a fact, raised in the written statement which is raised at a later stage in the written statement in order to support his cause of action in a Suit, which was instituted prior in time, because the cause of action invariably in any proceedings is the sole foundation on which an aggrieved person invokes Section 9 of the CPC to institute a suit, hence the cause, as projected in para 13 of the plaint, with regards to an act of interference at the behest of the defendant/respondent since has been categorically denied by the defendant/respondent in their written statement that no such effort or action was ever taken by the defendant/respondent of forceful interference in the possession of the plaintiff/appellant, the pleadings or the statement cannot be isolatedly extracted to substantiate his cause for instituting the Suit. Hence in that view of the matter, when there is specific denial by the defendant/respondent that there was no effort made by them to get the plaintiff/appellant forcefully evicted from the tenement in question the contention of the cause of action cannot be sustained.

In order to support his contention further with regards to the plea of cause of action, the plaintiff/appellant has yet again sought to extract the excerpts of the notice, which was issued under Section 20 of the Act No. 13 of 1972 being Paper No. 53 (ga), which was in relation to the tenancy which was created of 70 ft x 20 ft. of the land in favour of the plaintiff/appellant way back in 1954.

Even the said notice paper No. 53 (ga), which was issued under Section 20 of the Act No. 13 of 1972, by the respondent-landlord, it simply expressed an opinion that the utilisation of the property by the plaintiff-appellant at that point of time when the notice was issued, in fact, was in contravention to the provisions contained under Section 20 of the Act No. 13 of 1972, and that might have been extracted only in order to and for the purpose of initiating the proceedings for eviction under the special statute of the Act No.13 of 1972. Even the said notice and its contents cannot be extracted at the behest of the plaintiff/appellant, and that too in a suit, which he has instituted on 19th December 1994, more particularly, when the legal subsistence of the said notice dated 6th November 1978, itself has lost its significance when the proceedings at the behest of the said notice being Paper No. 73 (ga), was never initiated by the defendant/respondent, seeking an eviction of the plaintiff/appellant for violation of the terms and conditions of utilisation of the tenement in contravention to the provisions contained under Section 20 of the Act No. 13 of 1972 and of the tenancy of 1954.

On framing of the issues by the learned trial Court, the learned trial Court has after considering the rival contentions raised by the parties has framed the following issues:-

(1) क्या वादी, विवादित सम्पत्ति जो कि वादपत्र के शैडूल में वर्णित है, का किरायेदार है और उस पर अध्यासित है?

(2) क्या प्रतिवादी ने वादी को जबरदस्ती बेदखल करने की धमकी दी?

(3) क्या वादी ने वाद का मूल्यांकन कम किया है और न्यायशुल्क अपर्याप्त अदा किया है?

(4) क्या वादी का वाद विबंधन के प्रावधान से बाधित है?

(5) वादी, किस अनुतोष को पाने का अधिकारी है?

(6) क्या प्रतिवादी ने वादपत्र की सूची के साथ संलग्न मानचित्र में अक्षर "एफ" एवं "जी" से दर्शित दीवार को तोड़ने का प्रयास किया, यदि हां तो प्रभाव?

The two prime issues, which would be of consideration in the present Second Appeal for the determination of the controversy would be pertaining to the finding, which has been recorded on issue Nos. 1 and 2, which were to the effect that as to what was the extent of tenancy created as per the schedule of the property as given in the plaint map and as to whether there was any cause of action of eviction at the behest of the act of defendant/respondent so as to give a reason for the plaintiff/appellant to institute the suit. On the exchange of the pleadings and during the course of the trial, the plaintiff-appellant has appeared in the witness box as PW1 and he also adduced the evidence of PW2 Mr. Raje Singh and PW3 Mr. Ram Prakash to show that the cause of action, has accrued to him to institute the suit for grant of permanent prohibitory injunction and in support thereto, he has tried to extract the contents of the notice, which was placed on record i.e. dated 2nd October 1978 (paper No. 53 (ga).

Further, the plaintiff/appellant in support of his contention has also adduced evidences as referred in para 11 of the said judgement including the receipts of the rent and the receipts of various other amenities, which were allegedly installed by him over the tenement in question. As far as the installation of the amenities over the tenement in question are concerned, that in itself will have no relevance for the purposes of determining the expanse of tenancy created in his favour in 1954, and it will further also not have any bearing in relation to the adjudication of the suit in question on its own merits. What is relevant to be considered here is that though a finding has been recorded by both the Courts below concurrently, with regards to the expanse of the tenancy, which was created in favour of the plaintiff/appellant in 1954, but at this stage, this Court is of the view that since the learned trial Court, while considering the implications of issue No. 2 and 6, which was framed by the learned trial Court with regards to the cause of action and with regards to an act of the defendant of demolishing of the wall shown by figure "f" and "g", whether that itself gave a cause of action to institute the suit or not. The learned trial Court while determining the finding on issue Nos. 2 and 6 have considered the evidence both oral and documentary, which were placed on record, wherein a finding has been recorded by the learned trial Court, particularly, as contained in para 27 of the judgement that in fact the cause of action, which has been projected by the plaintiff in para 13 of the suit itself was non sustainable cause of action, particularly, when the cause itself was nullified after appreciation of the evidence by the trial Court. Hence, this Court is of the view that in such an eventuality, there cannot be a proceeding in premonition of an action, which may or is likely to be taken by the defendant/respondent in the absence of the actual action or an act of eviction being taken and that act of eviction is proved by the plaintiff on appreciation of evidence to provide him a cause of action to institute the suit.

The action which has been sought to be agitated in the present suit was nothing but a presumption or an anticipation, which the plaintiff had in accordance to his view or to his own conception, which he has pleaded in para 13 of the plaint, which runs de hors to the very pleadings of the written statement wherein the defendant/respondent has raised and has specifically denied that the alleged act of forceful interference over the tenement over which the tenancy was created in 1954, hence the cause of action pleaded was concocted and it was not an actual act which has happened in order to provide a cause of action to the plaintiff/appellant to institute the suit. Even the manner in which the interpretation has been given to the notice by the plaintiff-appellant and that to, to the notice issued under Section 20 on 2nd October 1978, yet again that notice if it is read in its totality, it was with regards to a proposed contemplated action under the Act No. 13 of 1972, for the violation of the provisions contained under Section 20 of the Act No. 13 of 1972 and the said notice, which was issued it was way back in 1978, its contents could not be extracted for the purposes of deriving a cause of action to institute the suit on 19th December 1994 after lapse of 16 years of issuance of notice paper No. 53 (ga) on 2nd October 1978, there is no rational in this argument of the plaintiff/appellant, just to overcome his status of being tenant of the property.

Consequently, the learned trial Court on appreciation of evidence has dismissed the suit by the judgement dated 28th March 2014. Being aggrieved against the said judgement, the plaintiff/appellant had invoked the provisions contained under Section 96 of the Code of Civil Procedure by filing a Civil Appeal No. 72 of 2013, Amar Nath Arora v. Anand Prakash Goyal, and the appellate Court too on considering the rival contentions, had framed the points of determination, as referred in para 10 of the appellate judgement, by exercising its powers under Order 41 Rule 31, and it contained an issue in it as to whether at all the defendant/respondent ever intended to evict the plaintiff/appellant from the tenement over which the tenancy was created in 1954, by exercise of force by any introvert act or contrary to the provisions of law. The learned appellate Court too while considering the said issue with regards to an act of forceful eviction has recorded a finding to the effect that on perusal of the evidence on record and the case as built-up by the parties to the proceedings in fact as per the finding, which has been recorded, particularly, as contained in para 32 and 36 of the appellate Court's judgement, the plaintiff-appellant has failed to establish that there was any cause of action for him to institute the Suit.

"10. पक्षकारों की ओर से प्रस्तुत किये गये उपर्युक्त तर्कों के आलोक में अपील के स्तर पर निम्न अवधार्य बिन्दु विचार हेतु सामने आते हैं-

क्या वादीगण व प्रतिवादीगण के बीच वादपत्र के अन्त में वर्णित व मानचित्र 9ए1 में प्रदर्शित सम्पूर्ण सम्पत्ति के संबंध में मकानदार व किरायेदार का संबंध हैं?

क्या प्रतिवादी पक्ष द्वारा बिना विधिक प्रक्रिया अपनाये वादीगण को विवादित सम्पत्ति से बेदखल करने का प्रयास किया गया है?

क्या वादीगण द्वारा किये गये वाद का मूल्यांकन व अदा किया गया न्यायशुल्क अपर्याप्त है?

क्या वादीगण का वाद विबन्धन के सिद्धांत से बाधित है?

क्या विचारण न्यायालय द्वारा तथ्यों, साक्ष्यों एवं विधि का उचित विश्लेषण न कर त्रुटिपूर्ण निर्णय पारित किया गया है?"

The learned counsel for the appellant before this Court has made reference to the two authorities of the Hon'ble Apex Court as reported in 1989 4 SCC 131, Krishna Ram Mahale (Dead), by his LRs v. Mrs. Shobha Venkat Rao, particularly, so far it postulates to law laid down a ratio that if a person is in a possession of the property, even though without any right or title vested in him, yet he cannot be evicted from the same without due process of law. There cannot be any controversy or debate with regards to the aforesaid ratio, but extraction of the said defence on the basis of said ratio as laid down by the said judgement could only be attracted when the party seeking a shelter of the said ratio is able to establish by evidence and document on record that there was or there has had been an actual deliberate act of interference of making any deliberate act of eviction.

In the case at hand, rather to the contrary, the defendants/respondents' case in the written statement was that they have never made any effort for eviction by use of any force as pleaded in the written statement and consequently, the Courts too have held that in fact there was no cause of action for the plaintiff/appellant to institute the suit for the grant of decree permanent prohibitory injunction. Similarly, the learned counsel for the appellant has also placed reliance on a judgement, as reported in 2004 (1) SCC 769, Rame Gowda (Dead) by LRs. v. M. Varadappa Naidu (Dead) by LRs. and another, as referred to the ratio as propounded in para 8 of the said judgement which is quoted hereunder.

"8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."

With all reverence at command of this Court, to the arguments as raised by the learned counsel for the appellant, this Court is of the view that the ratio as propounded therein would only come into picture, when the fact of being in a peacefully possession is established and when the act of forceful interference is also simultaneously established beyond doubt by the plaintiff/appellant, who is claiming for grant of decree of permanent prohibitory injunction.

Hence, the protection granted by the said ratio as against the person, who is in actual possession of the property by any forceful act, is an act which in fact has not yet come into existence in the present case in order to give a cause of action to institute the suit. Consequently, this Court is of the view that the manner in which an interpretation has been given by the appellant to the contents of the Notice in 1978, to the contents of the pleadings of the written statement, or to the contents of the cross examination of DW2 before the DW1, by extracting the excerpts of paper No. 37A2, these plea will not be available to the plaintiff/appellant, in order to substantiate that there was a cause of action for him to institute the suit for grant of a permanent prohibitory injunction. Rather to the contrary, this Court is of the view that the manner in which the proceedings have been taken it was a deliberate and conspired act of plaintiff/appellant in order to protect the tenancy, which was created in his favour way back in 1954, though it has been already observed concurrently by both the Courts below that the extent of occupancy of the plaintiff/appellant over the tenanted area, happens to be much beyond the area, for which the tenancy was actually created in his favour in 1954, but at this stage, this Court is not considering with that aspect because this Court is of the considered view that since at the time when the suit itself was instituted on 19th December 1994, in fact, there was no cause of action prevailing for the plaintiff/appellant to institute the suit for grant of decree permanent prohibtory injunction.

Hence, in that limited view only, this Court is of the view that the Second Appeal is concluded by concurrent finding of facts so far it relates to the cause of action, which is the basic foundation required as a precondition for inception of the proceedings under Section 9 of the Code of Civil Procedure. Accordingly, this Court does not find any merit in the Second Appeal, consequently, the present Second Appeal is hereby dismissed. However, there would be no order as to cost.