Sabir Hussain And Another @APPELLANT@Hash Basheer Ahmed

Kumar Sharma, J

This is one of those unfortunate litigation, in which, the respondent father, who is now of 87 years of age, has to face the ordeal of litigation as

against his real sons. The father, respondent herein, at the ripe age of 85 years, despite of the fact that he had six grown-up major sons, is running for

his livelihood by earning from a small shop lying in the disputed property, more particularly, as described in the plaint i.e. situated in Mohalla Manglore

Road, Gooler Ghati, Teshil Ramnagar, District Nainital. The Chauhadi of the property has been more particularly described in para 2 of the plaint. The

cause of action shown to have arisen when the defendants to the suit, the appellants herein, on 20.04.2016, taking advantage of the age and feebleness

of the father, had started making efforts to throw him out of the property, in question, from where he used to earn his livelihood by conducting a small

business of footwear and cosmetics by making interference in self acquired owned property by placing their material in the property, despite the fact

that they have their own portion of the property in the close vicinity.

Owing to the aforesaid forceful eviction, the respondent had to lodge various complaints to the S.S.P., S.H.O. Kotwali and District Magistrate,

Ramnagar, District Nainital against defendants to protect him from the atrocities of his sons. When the plaintiff respondent found himself to be in a

precarious situation and helpless, he invoked Sections 5 and 6 of the Specific Relief Act and instituted a Suit on 29th July, 2016, being Suit No.27 of

2016, Basheer Ahmed Vs. Sabir Hussain and another, praying for a degree of mandatory injunction for eviction of the appellants, herein, from the

property, in question, which they have forcefully occupied.

The Suit was also based on a foundation that he is unable to desist the act of forceful interference and occupation of the premises for the reason

that the defendant No.1, i.e. the appellant no.1 herein, has an antecedents of having a criminal bend of mind and is aggressive in nature, which is

adequately reflected in the pleadings raised in para 10 of the Suit, wherein, plaintiff has shown that defendant / appellant, herein, had been a convict in

a proceeding of Criminal Case No.1853 of 2000, arising out of FIR No.567 of 2000, under Sections 420, 467 and 471 I.P.C. and have been convicted

by the judgment dated 24th January, 2002, which has been affirmed by the Appellate Court by the judgment dated 13th May, 2002, and had to undergo

a sentence of three years. The action alleged of forceful occupation has taken place by the plaintiff only after being released from jail in October,

2015, when the defendant, appellant No.1 herein, returned to home, he forcefully occupied the premises, in dispute, of the plaintiff/respondent. It is not

only that but rather, he is also an accused of Criminal Case no.840 of 2007, under Section 138 of N.I. Act, in which, defendant / appellant had been

convicted for one year imprisonment. The plaintiff respondent had further pleaded in para 12 that defendant No.1/appellant, in fact, has himself has

instituted a Suit, being Suit No.59 of 2015, as against his other brothers, in which, the suit filed by him, he has shown his father to have died. However,

the Suit has been dismissed by the learned Trial Court by the judgment dated 9th April, 2018. Being aggrieved against the said judgment, the

plaintiff/respondent had preferred a Civil Appeal and the Civil Appeal No.28 of 2018, Basheer Ahmad Vs. Sabir Hussain and another has been

allowed by the judgment dated 30.10.2018 and 2& D;K }KJK IZâ€UXR HKOU IJ VOS/KKFUD :I as a consequent thereto, the judgment of the

Trial Court dated 09.04.2018 has been set aside and the Suit of the plaintiff/appellant to the First Appeal has been decreed, resulting into decree of

eviction, as against the present appellants to the Second Appeal.

The First Appellate Court, while rationally exercising power under Order 41 Rule 31 of the C.P.C. had framed following points for determination :-

“5-

1- /

2- /

3- â€​

The First Appellate Court had considered the points of determination/issues which have been framed by the learned Trial Court and while dealing

with the same, the Appellate Court has considered the impact of the document i.e. paper No.19 Ga / 2, which was a nazul lease deed executed in

favour of the plaintiff/respondent, herein, on 17.06.1989, the execution of which has not been disputed by defendant/appellant, wherein, by the said

lease deed, the plaintiff respondent have been granted a right to raise the construction over the property, thus leased and it was only after sanction

granted by the Competent Authority that the plaintiff respondent has raised the construction on the leased hold property executed by the State

Government on 17.06.1989.

The concept of lease, as in terms of the provisions contained under the Transfer of Property Act to be read with the provision of Nazul Manual.

Section 105 of the Transfer of Property Act reads as under :-

“105. Lease defined.â€"A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied,

or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered

periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

Lessor, lessee, premium and rent defined.â€"The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and

the money, share, service or other thing to be so rendered is called the rent.â€​

As would be apparent that the leases granted for construction purposes, under nazul manual would be governed by Chapter-V of Transfer of

Property Act, which deals with the leases granted for non agricultural purpose, which is the case at hand of the plaintiffs, that lease granted in 1989

was for raising construction, and admittedly, the construction was raised also on the leased property. If this be so, its tenure is to be regulated by the

tenure of lease itself and the covenant of usage as settled by the State as it is in the instant case. Even otherwise also on simplicitor interpretation, the

lease is not a transfer or conferring of title but rather only a right to enjoy such property for certain specified period, under certain specified terms,

which are specified and too terms of the payment of premium agreed to be paid periodically.

Once the lease under Section 105 of the Act, provides a right to enjoy the property, it has to be separated from the right of possession from a right

of ownership and that is which the provision uses the word “enjoy†and not “possession†[See AIR 1984 ALL 140 Shafiq Ahmad Vs. Smt.

Sayeedan]. Para 6 of this judgment reads as under :-

“6. As a result of the purchase the interest of the lessor and the lessee in the whole of the property in dispute became vested at the same time in

the defendant-appellant in his same capacity as an individual. The owner normally has the right to use and enjoy the thing owned, the right to manage

it, i. e. the right to decide how it shall be used and right to the income from it. The owner has a liberty to use the thing (See Sal-mond on

Jurisprudence, 12th Edition, page 246). A lease is that form of encumbrance which consists in a right to the possession and use of property owned by

some other person. It is the outcome of the separation of ownership and possession (ibid, page 424). This also follows from the definition of the

expression 'lease' given in Section 105 of the Transfer of Property Act as meaning a transfer of a right to enjoy the property, made for a certain time,

express or implied, or in perpetuity, in consideration of a price paid or promised. The right to enjoy the property is carved out of ownership and

conveyed to the lessee. Upon the lessee acquiring the ownership itself in the property, his right to retain enjoyment thereof in capacity as a lessee

evidently loses its identity.â€​

Though the Madhya Pradesh High Court was dealing with the case of Joint Hindu Family rights of its members in relation to the lease property, has

held that property allotted to an individual cannot be joint family property. [See AIR 1992 MP 231, Badrilal and others Vs. Rampyari and others]. Para

14 and 25 of the judgment read as under :

“14. The questions as to the nature of right held by a tenure holder in agricultural holdings governed by the tenancy laws from time to time and

whether that right and the incidents relating thereto were capable of being determined by reference to the principles of personal law, have been

subject-matter of several decisions which may now be noticed.

This Court is, therefore, unhesitatingly of the opinion that the two Courts below did err in law in holding that the suit property though allotted by the

State in the name of Shobharam alone yet was a property belonging to the joint family of the two brothers in accordance with the principles of Hindu

Law governing joint Hindu families and joint Hindu family properties.â€​

The Division Bench of the High Court in the case of Angu Pillai Vs. M.S.M. Kasiviswanathan Chettiar reported in AIR

1974 Mad 16, reversed the decision of the trial Judge, holding that the said document did not constitute a valid mortgage by deposit of title, stating:

(AIR p. 20, para 13)

“13. The only question, in these circumstances, is whether, by depositing Exts. A-23 to A-26 a valid equitable mortgage was created in favour of

the plaintiff. Section 58 of the Transfer of Property Act inter alia provides that where a person in any of the towns mentioned therein delivers to a

creditor or his agent documents of title to immovable property with intent to create a security thereon, the transaction is called a mortgage by deposit

of title deeds. It would be seen from this provision that three essentials are required for an equitable mortgage, namely, (1) a debt, (2) deposit of title

deeds, and (3) the intention that the delivery should be security for the debt. In the instant case, the first and third essentials are satisfied. The only

question is whether Exts. A-23 to A-26 are documents of title within the meaning of Section 58. The trial court, relying upon the decisions of the

Rangoon High Court in V.E.R.M.A.R. Chettyar Firm v. Ma Joo Teen held that the said documents were not documents of title and that, therefore, no

valid equitable mortgage was created. We are clearly of the opinion that this conclusion cannot be sustained. The expression ‘documents of

title’ occurring in Section 58 has been the subject of consideration in some decisions. The law in regard to equitable mortgage is precisely the

same in England as it is in India.â€​

It was further noticed: (AIR pp. 20-21, para 15)

“15. In Indian law, deposit of patta has been held to constitute a valid equitable mortgage, though patta is not in itself a deed of title, but is only an

evidence of title. This Court has consistently taken the view that the main object of tender of patta is merely to give information of the land revenue

payable and the details of the property and that the exact weight to be given to the patta would depend upon the circumstances of the case. In

Donganna v. Jammanna it is pointed out that in case of pattas in respect of a land in zamindari, if the land be at the disposal of the landlord at the time

of granting the patta, prima facie such patta would not be a mere bill of rent but something more and that if it is not so, it would not create any rights in

the pattadar in derogation of the rights of a person who would be entitled to the land subject to the proper and regular payment of rent. The question

directly arose before a Bench of this Court in Official Assignee of Madras v. Basudevadoss Badrinarayan Doss as to whether a deposit of patta is

enough to constitute an equitable mortgage. The Bench answered the question in the affirmative. Srinivasa Aiyangar, J. who delivered the leading

judgment in that case, has pointed out that the answer to the question as to whether the pattas in respect of a land is a document which would be

sufficient, by being deposited, to evidence the intention required for an equitable mortgage would vary according to the conditions of the country and

the consciousness on the part of the members of the community and that though a patta is not a document of title, still a deposit of the same with intent

to create an equitable mortgage would create an equitable mortgage.â€​

It is a right which has been determining in favour of the lessee by the specific terms and covenant contained in the lease itself. Apparently, the

First Appellate Court, on the scrutiny of the lease, paper 19 Ga/2 has found that a right of use and the right to use the property leased by raising

construction was granted to the plaintiff and under no legal proposition, the lease thus granted would ever confer a title over the property in favour of

the plaintiff. This aspect about the impact of nazul lease over the rights of the property in dispute was an aspect which was skipped to be considered

by Trial Court in its true perspective. As far as the impact of lease is concerned, the learned counsel for the appellant had not been able to place any

law to the contrary pertaining to the fact as to how and up to what extent the lease hold right could be dealt by the lessee, and if the lessee’s rights

are governed by its terms, then anybody claiming under the principle lessee cannot claim a right beyond the lease deed itself.

This is being observed for the reason that the appellants, herein, in the proceedings before the First Appellate Court has contended and had rather

argued his rights over the property on the ground that the property thus leased to the plaintiff respondent on 17.06.1989 was bequeathed to them by

the plaintiff by oral hibba in the presence of two witnesses, namely Mohd. Tahir and Mohd. Irfan. The giving over of the property by oral hibba was a

stand which was rightly not accepted by the Fist Appellate Court because, hibba which is a bequeath, it could only be executed in relation to a

property of which a person holds titles. If the plaintiff/respondent was having only a lease hold rights under the lease deed of 17.6.1989, and the

property thus leased would under terms of paper 19Ga/2 i.e. lease deed, continue to be a property belonging to the State Government and in that

event, he could not have given it by oral hibba of the property by executing the lease deed, so claimed by the appellant and once it is not his property,

the title of which is not vested with the plaintiff/respondent, the theory of oral hibba as pleaded before the Appellate Court is not acceptable.

Consequently, having heard counsel for the appellant at length, this Court is of the view that since the plaintiff / respondent was not having title

which vested with State, he could not have given it to the appellant by Hibba, the theory on this they rely. There arises no substantial question of law

to be considered and answered by this Court. The Second Appeal fails and is dismissed. The appellants are directed to vacate the premises forthwith

within a period of two months from today, failing which, it will be open to the plaintiff respondent to get the decree executed and the Executing Court,

considering the age of the plaintiff respondent would expedite the proceedings of execution.