Laxmi Thakur And Ors vs Nirmala Bai And Ors.

Nirmala Bai and Sunil Kumar were plaintiffs before the trial Court who had filed a suit for mandatory injunction against defendants to vacate the suit house of which the plaintiffs respondents are owner. It was also averred by the plaintiff that part of the house which has been shown in the map near the stairs has been occupied by the defendants and they may be evicted from area of 77.5 ft.. It was averred by plaintiffs respondents that suit house namely house nos. 166 and 167 belonged to their forefathers namely Chhedi Lal. Chhedi Lal had two sons and one daughter namely Rajendra, Raj, and Chanda. Rajendra was married to Nirmala and Sunil is their son. Raj Singh was married to Lakshmi and they had two sons namely Chandan Singh and Rakesh Singh. After death of Chhedi Lal suit house has been sold by Kusum wife of Chhedi Lal, Rajendra, Raj Singh, and Chanda Devi to Malti Devi Gupta by registered sale-deed dated 24/01/1969. Later on, Rajendra who was Railway driver retired and he was having enough money to buy back the house. Rajendra purchased the house from Malti Devi by registered sale-deed dated 8/2/1996. Raj and Lakshmi were not having any house therefore they made a prayer that they may be permitted to live in one room which they will vacate. Later on, plaintiff told them to vacate the house but they did not vacate the house. In the circumstances, legal heirs of Rajendra namely his wife Nirmala and Sunil Kumar has filed a suit of mandatory injunction for eviction of defendants appellants.

That as per appellants Raj Singh as well as Chanda Devi have never sold their ancestral house and did not sign the registered sale-deed dated 24/01/1969. The suit house is their joint family property. Rajendra Singh was in the habit of drinking and gambling, therefore, he had mortgaged suit house to Malti Devi Gupta. Interest in the suit house was never transferred to Malti Devi. Rajendra Singh and Raj Singh jointly lived in the house and Malti Devi had never given any part of the house on rent to Rajendra Singh or Raj Singh separately. Sale-deed dated 24/01/1969 was not valid. It was further submitted by the defendant appellant that Raj Singh was mentally challenged person/stupid, therefore, registered sale-deed dated 24/01/1969 was not valid and they have interest over the suit property and prayed for dismissal of suit.

Learned trial Court after considering deposition of plaintiffs as well as defendants and also considering the judgment passed in earlier civil suit no. 26A/75 dated 26/11/1979 held that registered sale-deed dated 24/01/1969 was held to be a valid document and said finding has attained finality. Registered sale- deed dated 24/1/1969 has not been challenged by the defendants nor they have taken any action to get ex-parte judgment and decree dated 26/11/1979 to be set-aside. The finding in respect of registered sale-deed dated 24/01/1969 in civil suit no.206A/75 is final and binding on the appellants and defendants. Trial Court further gave a finding that Raj Singh and appellants/defendants were licensee and were living in the house of Rajendra Singh with their permission. They were licensee and therefore suit for mandatory injunction for revision can be brought against the defendants. Plaintiff has given a notice Exhibit P/62 to defendant for delivery of possession. By said notice, license is said to have been terminated and therefore plaintiff can ask for eviction of defendants. Learned trial Court decreed the suit and granted mandatory induction for eviction of defendants from house nos.166 and 167 Bai Ka Bagicha, Jabalpur and also to give vacant possession of land shown in map as अ, ब, स, द and क, ख, ग, घ ।

Judgment and decree passed by the trial Court dated 27.10.2018 in civil suit no. 1202A/2013 was challenged before the Appellate Court. Appellate Court affirmed that judgment and decree passed by the trial Court vide its judgment and decree dated 21/01/2020.

Appellant defendant has filed the present second appeal and has proposed following substantial questions of law: -

(I) Whether in the facts and circumstances of the case the judgment and decree passed by Courts below are vitiated by law as once the Court concludes that appellants are tenants, they cannot be evicted on the basis of licensee by respondents because they have obtained symbolic possession from predecessor who obtained ex-parte decree of eviction against the appellant as her tenant?

In earlier suit, trial Court has held Raj Singh and plaintiff is to be tenant of Malti Devi Gupta but said finding will not operate as res judicata as both suits were filed in different capacities. In earlier suit Malti Gupta was the owner and Rajendra Singh and Raj Singh were tenants but later on property has been purchased by Rajendra Singh by registered sale-deed dated 08/02/1996 therefore later on Rajendra Singh has become the owner of the suit property and he has filed the subsequent suit as owner of the suit property. Respondent plaintiff had permitted Raj Singh to live in one room of the suit house. The findings regarding the status of appellant defendant as tenant will not act as issue estoppel in subsequent suit because parties, issues and their status have changed in the subsequent suit. The matter is not materially and substantially in issue in the subsequent suit, therefore, findings of earlier suit will not operate as issue estoppel as far as status of appellant respondent as tenant is concerned.

Appellant defendant has not taken any defence in their written statement that they are not licensee but tenants in the suit house. It was neither stated by appellant defendants in their written statement nor produce any evidence to show that they were tenants of Malti Gupta and therefore the license could not have been terminated by the plaintiffs and they could not file suit for mandatory injunction for eviction of defendants. In absence of any pleadings in the written statement that appellant defendants are tenants of Malti Gupta and no such substantial question of law as proposed arises in this appeal.

(ii) Whether in the facts and circumstances of the case judgment and decree of the Court below suffers from great infirmity of law in relying the sale-deed dated 24/01/1969 and decree obtained by Malti vide Exhibit P/1 and Exhibit P/14 against late Raj Singh Thakur who was mentally not fit and disabled?

Appellant defendant has taken the ground in the written statement that deceased-father of defendants Raj Singh was mentally challenged/mentally retarded person therefore sale-deed dated 24/1/1969 does not bind the defendants appellants. The judgment and decree passed in civil suit no. 26-A/75 could not be relied upon by the Court below as Raj Singh was mentally challenged. Appellant defendant did not file any suit to challenge registered sale-deed dated 24/01/1969 neither they set up a counter-claim in the suit challenging the said sale-deed and setting up their right or interest in the suit property. Defendant appellant has neither filed any suit nor any application to set-aside ex parte judgment and decree dated 26/11/1979 though they were having knowledge of ex-parte judgment and decree after filing of suit by the plaintiff. Appellant-defendants can also prove the mental retardation of Raj Singh by leading cogent evidence before the Court but appellant defendant has failed in doing so. In one another suit which was filed for eviction of Raj Singh a decree of eviction was passed against him and held to be a man of normal reasoning and balance and documents Ex-P/8 to Ex-P/18 was filed in suit to show normal mental fitness of Raj Singh. In view of above the finding in civil suit no.26A/75 in respect of sale-deed dated 24/1/1969 is binding upon the defendant appellants.

(iii) Whether in facts and circumstances of the case judgment and decree passed by Courts below is not binding on appellants as sale-deed dated 24/09/1969 is not signed by Chanda bai who is also the one fourth sharer and signed by Raj Singh Thakur who was mentally not fit?

Finding regarding mental retardation of Raj Singh has already been given in proposed substantial question number two mentioned above. So far as the fact that Chanda, daughter of Chhedi Lal has not signed the sale-deed therefore sale-deed dated 24/1/1969 is bad and is not binding on defendant is concerned, there is clear finding by the Courts below that no action has been taken by Chanda Bai challenging the said sale-deed neither she had filed any suit for declaring the said sale-deed to be not binding on her nor she claimed any rights over the suit house. Learned Court below has also given a finding that Chanda Bai is in regular touch with the plaintiffs respondents and she was aware of all the facts in view of the same as Chanda himself did not raise any question in respect of registered sale-deed, therefore, such plea was not considered by the Courts below. I do not find anything illegal or perverse in the findings of the Courts below. In view of aforesaid discussion, third proposed substantial question of law also does not arise in the second appeal.

Second Appeal filed by the appellants is dismissed.