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Judgment
This Second appeal has been filed against the judgment and decree dated 19.12.2013 passed by 4th Additional District Judge, Chhindwara in
Civil Appeal No. 70-A/2013, by which learned A.D.J. affirmed the judgment and decree dated 06/12/2005 passed by Civil Judge Class-I,
Saunsar,District-Chhindwara, in Civil Suit No.351- A/1989, whereby learned Civil Judge rejected the applicant''s civil suit for declaration and
injunction that the appellant is entitled to run Saw Mill situated at Civil Lines, Ward No. 2. Sausar, District Chhindwara as a lessee of Madanlal &
Narendra (Defendant No. 7 & 8 of the suit) and respondent/defendant No. 1 to 3 be directed by way of mandatory injunction to renew
appellant''s licence for running Saw-Mill every year and also directed the respondent no. 4 to 6 to continue the electricity supply for running the
said Saw-Mill and respondents be restrained from interfering in the business of appellant of running Saw-Mill from the premises where the said
Saw mill is situated.
Brief facts of the case are that, the appellant/plaintiff filed a civil suit before Civil Judge Class-I, Sausar averring that on 24/10/1970 he took
''Saw mill'' situated at Civil Lines, Ward No.2, Sausar, District Chhindwara and adjoining land (further called as suit saw mill and suit land) from
Madanlal & Narendra of the suit (who died during pendency of first appeal and Madanlal succeeded by his legal Representative No.(7-A to I) but
name of the Legal Representative of Narendra did not incorporate by the appellant in first appeal) on rent for a sum of Rs.200/- per month and on
15/10/70 Madanlal also executed rent note in favour of appellant. In the mill, an electric meter was fitted in the name of Narendra by which
respondent No. 4 to 6 was supplied electricity to run the mill. At the time of taking mill on rent, it was decided that he would run the mill from the
said meter and will pay the electricity bill. On 01/10/73 Madanlal & Narendra enhanced the rent from Rs.200 to Rs.260. Appellant/plaintiff
regularly paid the said rent to Madan Lal and Narendra. In year 1985- 86, Madan Lal,Narendra and respondents no.1 to 6 colluded with each
other for the purpose of evicting the appellant from the suit premises. Madanlal & Narendra raised objection before the Forest Authorities and also
before the officers of the M.P. Electricity Board, and on their objection the electricity supply was ordered to be discontinued by the officials of the
M.P. Electricity Board and further the forest authorities refused to renew the licence of running saw mill for the suit premises which was taken on
lease by the present appellant. So, it be declared that appellant/plaintiff is entitled to run saw mill business on the suit premises and also entitled to
take electric connection and further the respondents be directed to issue licence for running saw mill in favour of the plaintiff. They also be
prevented from discontinuing the electric connection and also be directed to renew the licence of saw mill of plaintiff from time to time.
Defendants No.1 to 3 in their reply opposed the prayer and submitted that Appellant is not entitled to run saw mill from the suit premises.
Defendants No.4 to 6 also in their reply opposed the prayer and submitted that they gave electric connection No.(GP 36) to defendant No.8
Narendra for running suit sawmill and the term of that connection had expired, so appellant is not entitled to renew licence and also the suit is not
maintainable according to Provision of Section 108 (E) of T.P. Act and M.P. Kasth Chiran (Viniyam) Niyam, 1984, (hereinafter referred to as
''TheAct'')
Defendant No.7 Madanlal & 8 Narendra did not file written statement.
The learned Trial Court vide judgment dated 06.12.2005 rejected the appellant''s suit. Being aggrieved from that judgment, the appellant has
filed Civil Appeal No. 70-A/2013 which was also dismissed by 4th ADJ by judgment and decree dated 19.12.2013. Being aggrieved from that
judgment, appellant filed this second appeal.
Learned counsel for the appellant submitted that both the Courts below have failed to see that under the agreement between the plaintiff and
Madanlal and Narendra, defendants No.7 and 8 respectively of the original suit, the appellant is the holder of the property in dispute including the
land as well as the structure that is the saw mill which was situated over the land. Thus, by all means for the purpose of running suit saw mill, the
appellant/plaintiff ought to have been treated as owner of the suit saw mill and he is entitled for getting the licence of running suit saw mill. The
ownership of the saw mill is not defined in any specific words under ''The Act''. Thus, even if the business is owned by independent person, he
ought to be treated as owner of that particular business irrespective of the materials either has been arranged by the person by his own efforts or
has been taken on hire from any person. Thus, so far as saw milling business is concerned, that is owned by the plaintiff/appellant and he is entitled
for renewal of his licence or for continuation of his licence for the purpose of continuing his business. The M.P.E.B was having no authority to
discontinue the electric supply which was earlier made in favour of the appellant/plaintiff, thus the act of the MPEB is also illegal whereas it is
bound to continue the electric supply in favour of the appellant. The tenancy of the appellant was only in respect of the land belonging to
defendants No.7 and 8, whereas the business is owned by the plaintiff/ appellant.Thus, the act of the respondents of discontinuing the electrical
supply and not issuing licence for saw mill is illegal. Learned Courts below have failed to see that the licence was being renewed in favour of the
plaintiff/appellant by the concerning authorities from time to time. Thus, there was no change accorded for the purpose of not renewing the licence
in favour of the plaintiff/appellant, hence, the direction was to be issued to the concerning Authorities for electric supply and the renewal of licence
for the purpose of running saw mill. Learned both the Courts below have misappreciated the evidence on record and have arrived to an erroneous
conclusion while dismissing the suit of the plaintiff/appellant.
This Court has gone through the record and arguments put forth by learned counsel for the appellant
First of all from the record of first appellate court, it appears that defendant /respondent no. 8 Narendra Kumar had died on 29/05/11 during
pendency of first appeal. On that appellant filed an application under Order 22 Rule 4 C.P.C. on 10/08/11 to bring the legal representative of
Narendra Kumar on record in place of Narendra Kumar which was allowed by the first appellate court by order dated 10/08/11 and notice was
also issued to the legal representatives of Narendra Kumar. Counsel also appeared on behalf of legal representative of Narendra Kumar in the first
appeal and final arguments were also presented by him. But appellant did not incorporate the name of legal representative of Narendra Kumar in
his appeal memo of first appeal due to which their names were not mentioned in the judgement of first appellate court . It also appeared from the
record that the appellant also did not make legal representative of Narendra Kumar a party in this second appeal. On the contrary appellant filed
this appeal making Narendra Kumar as respondent no.8 who died on 29/05/11. So this second appeal is not maintainable solely on the ground
that appellant filed this appeal without impleading necessary party (legal representative of Narendra Kumar) as respondent.
Even otherwise Apex court in the case of Dinesh Kumar Vs Yusuf Ali reported in AIR 2010 SC 2679 after considering their previous
judgements held that the law on the subject emerges to the effect that Second Appeal under Section 100 of CPC is maintainable basically on a
substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the courts
below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to
re-appreciate the evidence.
In this case both the courts below after appreciating all the evidence rejected the appellant''s suit holding that appellant filed application for
permitting him to run suit Saw-Mill before forest authority under Section 4 of ''The Act'' which was rejected by the forest authority. In ''The Act''
against rejection of application, provision of appeal is also mentioned, so after rejection of his application, the right of appeal was available to
appellant but appellant did not avail that remedy. So he is not entitled to get injunction looking to the provision of Section 41-h of Specific Relief
Act. It also appears from the evidence that the respondents No. 4 to 6 gave electric connection for running Saw-Mill to Narendra Kumar Sengar
(Defendant No.8) and not in the name of appellant because forest authority suspended the permission of running Saw-Mill, so defendant No. 4 to
6 did not commit any mistake in disconnecting the electric connection of said Saw-Mill, because according to Section 7 of ''The Act'' no electric
connection will continue in Saw-Mill which has no licence of running Saw-Mill so respondents No.4 to 6 did not commit any mistake in
disconnecting the electric connection given by them for running Saw- Mill to Narendra Kumar Sengar.
These findings of both the courts below are based on the evidence on record and not based on irrelevant material. So in the light of above
Apex Court judgement, this court has no jurisdiction to interfere in these findings in second appeal. There is no question of law involved in the
appeal.
Only contention of learned counsel for the appellant is that the appellant took the suit sawmill and suit land from Madanlal and Narendra on
rent following the agreement and they did not file any suit for declaration or eviction nor there is any counterclaim thereof, hence that lease is
continued. Once the plaintiff/appellant is continuing to hold the premises, he is entitled to continue his business also from the same premises. Under
the agreement executed between the plaintiff and Madanlal and Narendra defendants No.7 and 8 of the original suit, the appellant is the holder of
the property in dispute including the land as well as the structure that is the suit saw mill which was situated over the land. Thus, so far as saw
milling business is concerned, that is owned by the plaintiff/appellant and he is entitled for renewal of his licence or for continuation of his licence for
the purpose of continuing his business and the defendant no. 4 to 6 were having no authority to disown the electric supply which was earlier made
in favour of the appellant/plaintiff, thus the act of the MPEB is also illegal whereas it is bound to continue the electric supply in favour of the
appellant. The tenancy of the appellant was only in respect of the land belonging to defendants No.7 and 8, whereas the business is owned by the
plaintiff/ appellant. Thus, the act of the respondents of discontinuing the electrical supply and not issuing licence for saw mill is illegal.
But his contention has no force. Appellant filed the suit for mandatory injunction that respondent/defendant No. 1 to 3 be directed that they
should renew appellant''s license for running Saw- Mill every year and also directed respondents no. 4 to 6 to continue the electricity supply for
running suit Saw-Mill and respondents be restrained from interfering in appellant''s business of running Saw- Mill from the premises where the said
Saw mill is situated.
It is apparent from record that appellant filed application for permitting him to run suit Saw-Mill before forest authority under Section 4 of ''The
Act'' which was rejected by the forest authority. In ''The Act'' against rejection of application, provision of appeal is also mentioned, so after
rejection of his application, the right of appeal was available to appellant but appellant did not avail that remedy. According to section 41(h) of the
Specific Relief Act, an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust. So appellant is not entitled to get injunction. It also appears from the evidence that the respondents
No. 4 to 6 gave electric connection for running Saw-Mill to Narendra Kumar Sengar (Defendant No.8) and not in the name of appellant because
forest authority suspended the permission of running Saw-Mill, so defendant No. 4 to 6 did not commit any mistake in disconnecting the electric
connection of said Saw-Mill, because according to Section 7 of ''The Act'' no electric connection will continue in Saw-Mill which has no licence of
running Saw-Mill, so respondents No.4 to 6 did not commit any mistake in disconnecting the electric connection given by them for running Saw-
Mill to Narendra Kumar Sengar.
Hence, learned Trial Court as well as appellate Court did not commit any mistake in rejecting appellant''s suit, so appeal is rejected.
No order as to cost. Decree be prepared accordingly.