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Judgment
Sudhanshu Dhulia, J
All these four second appeals arise out of the judgment and order dated 04.08.2015 passed by 3rd Additional District Judge, Haridwar, where the appellate court while deciding the Civil Appeal Nos. 61 of 2010/ 59 of 2010/ 56 of 2010 and 63 of 2010 by a common judgment and order has set aside the decree of the Trial Court.
Brief facts of this case are as follows:-
The property in question is an old ancestral house situated in District Haridwar. The dispute is regarding the rights on this property between the plaintiff and the defendants. The main contest in the present case is between Sri Baikunthnath Kaushik and Sri Vinod Sagar Kaushik.
In order to fully appreciate the facts of the case, their subjoined pedigree is given below:-
A Civil Suit being Civil Suit No. 180 of 2001 "Baikunthnath Vs. Vinod Sagar Kaushik & others", was filed by Sri Baikunthnath for injunction, where Vinod Sagar Kaushik was the main defendant.
Another suit for permanent prohibitory injunction was filed by Sri Vinod Sagar Kaushik in the same court, which was registered as Civil Suit No. 204 of 2001, in which Sri Baikunthnath was the main defendant.
Another suit was also filed by Sri Vinod Sagar Kaushik which was registered as Civil Suit No. 280 of 2001 which was for cancellation of freehold lease granted by the State in favour of the defendant Sri Baikunthnath.
All the three suits were consolidated and heard together by the learned Civil Judge (S.D.), Haridwar, who vide order dated 29.09.2010 had decreed Civil Suit No. 204 of 2001 of the plaintiff Sri Vinod Sagar Kaushik as far as prohibitory injunction was concerned and had partly decreed another Civil Suit No. 280 of 2001, whereby declaring the freehold lease in favour of Sri Baikunthnath as void. The Civil Suit No. 180 of 2001 filed by Sri Baikunthnath for grant of freehold rights of the entire property in his possession was dismissed.
Against the judgment and order dated 29.09.2010, three appeals were filed by Sri Baikunthnath being Civil Appeal No. 61 of 2010, 59 of 2010 and 56 of 2010 and the fourth appeal was filed by the State Government being Civil Appeal No. 63 of 2010, which was a party and which had granted the freehold lease deed in favour of Sri Baikunthnath.
All the appeals were clubbed together and were heard together by the appellate court. The learned appellate court vide order dated 04.08.2015 had allowed the appeals and set aside the decree granted by the trial court. Aggrieved by the order of the first appellate court, the present second appeals have been filed before this Court by Sri Vinod Sagar Kaushik.
The case which was set up by the plaintiff Sri Vinod Sagar Kaushik before the trial court was that the plot bearing no. 36 in Haridwar was leased in favour of the grandfather of the plaintiff Sri Shiv Chandra. The great grandfather of both the plaintiff and the defendant i.e. Vinod Sagar Kaushik and Baikunthnath respectively was one Sri Shiv Prasad. Sri Shiv Prasad had two sons, Prabudh Lal and Shiv Chandra. It has come on record that Sri Shiv Chandra was a "vaidya" and was engaged in this profession in Haridwar. In the year 1932, the erstwhile Government granted a lease in favour of Sri Shiv Chandra which was valid for a period of 30 years and liable to be renewed after the lapse of 30 years for two consecutive 30 years each i.e. for a total period of 90 years. It is an admitted case that the said lease came to an end in the year 1962 and since then it has not been renewed.
The plaintiff then contends that the law of inheritance would come into play and as the lease was granted in favour of Sri Shiv Chandra his grandfather, he being his legal heir, and none of the other heirs having any objection to the said property, he has the rights over the property and the freehold rights on the property were liable to be given to him. It is an admitted fact that the plaintiff as well as the defendant are Hindus and both Shiv Chandra and Guru Dutt with whom the plaintiff Sri Vinod Sagar Kaushik claims ancestory had died intestate. He therefore claims his rights on the property on the basis of law of inheritance. Meanwhile, the defendant Sri Baikunthnath (plaintiff in Civil Suit No, 180 of 2001) on the basis of his possession on 1/2 portion of the said property moved an application before the concerned authority for granting him freehold rights on half of the said property, and later vide order dated 14.07.1999 freehold deed was given in favour of Sri Baikunthnath by the State Government. The Civil Suit No. 280 of 2001 was filed by the plaintiff Sri Vinod Sagar Kaushik for cancellation of this lease deed dated 14.07.1999 and another Civil Suit No. 204 of 2001 was filed by him for prohibitory injunction against the defendant Sri Baikunthnath restraining him from making any interference on the property.
As said earlier, Sri Baikunthnath himself had filed a Civil Suit No. 180 of 2001 for injunction against the plaintiff. The defence taken by Sri Baikunthnath was that the lease deed was granted in favour of Sri Shiv Chandra by the State Government in the year 1932. Thereafter his ancestral house which was constructed on the said property i.e. Plot No.36 was on the basis of the map sanctioned by the local body in the year 1933 and the map was sanctioned in the name of his father Sri Indra Dutt. Therefore the house which was constructed was constructed on a sanctioned map in favour of the father of Sri Baikunthnath. Another ground taken was that though his father Sri Indra Dutt was a nephew of Sri Shiv Chandra but he was brought to Haridwar by Sri Shiv Chandra from then village and was always treated him like a son by Shiv Chandra. This is evident from the fact that in the year 1953 a family partition was done of all the ancestral property of both Sri Shiv Chandra and Sri Prabudh Lal, in which, inter alia, Sri Indra Dutt i.e. father of Sri Baikunthnath and Sri Guru Dutt father of Sri Vinod Sagar Kaushik were made joint owners and further distinction and split was made by a family partition dated 07.07.1955.
Family partition dated 07.07.1955 clearly shows that the East side of the property will belong to Sri Indra Dutt (father of Baikunthnath) and West side of the property will belong to Sri Guru Dutt (father of Vinod Sagar Kaushik). Thereafter there is another family partition dated 05.02.1966 which was between Sri Guru Dutt, father of Sri Vinod Sagar Kaushik and Sri Indra Dutt, father of Sri Baikunthnath. Although this settlement (of 1966) was not registered, unlike the family settlements/ partitions of 1953 and 1955, but it still bears the signatures of both the persons. Consequently in the municipal records, names of Sri Indra Dutt and Sri Guru Dutt were recorded as occupying one-half portion of the building. There is an overwhelming evidence before the Court to suggest that Sri Baikunthnath and his predecessors Sri Indra Dutt were physically occupying 1/2 portion of the property which is an ancestral house on Plot No. 36 measuring 265 square meters, and Sri Vinod Sagar Kaushik was occupying remaining 1/2 portion of the property on the Western side. In other words, Sri Baikunthnath is on the East side and Sri Vinod Sagar Kaushik is on the West side of this property. Consequently freehold rights were given on the basis of physical occupation of Sri Baikunthnath on the 1/2 portion of the property on the East side as freehold was done of 1/2 of 265 square meter i.e. only of 132.5 square meter on the basis of this fact.
Although second appeal has been admitted but no substantial question of law has been formulated by the Court as required under Section 100 of CPC, as it was simply admitted on the basis of the ground urged in the appeal. Consequently, after hearing the learned counsels for the parties at some length, following substantial questions of law are being framed:-
"A. Whether the rights of the parties have been correctly determined on the suit property?
B. Whether there has been sufficient compliance of Order XLI Rule 31 of CPC as apparently the first appellate court has not specifically stated as to what were the points for determination before him?"
As far as the first substantial question of law is concerned, this Court is of a considered view that the trial court in this case fell into a grave error in determining the rights of the respective parties on the property basis of inheritable rights. We are not concerned with the entire property of Pandit Shiv Prasad or even Shiv Chandra or Prabudh Lal. We are only concerned with the ancestral house which was constructed on Plot No. 36, a plot which was leased in favour of Sri Shiv Prasad for a period of thirty years, which was never renewed after the period of thirty years. The lease stood lapsed after 1963. After 1962 the rights on the property, particularly on the land will be of the State Government. The overwhelming evidence which is on record also suggests that while Sri Indra Dutt who was occupying the Eastern side of the property, Sri Vinod Sagar Kaushik and his ancestors were on the Western side. This is clearly determinable on the basis of family settlements of 1953, 1955 and 1966, which have been rightly taken into consideration by the first appellate court.
The important piece of evidence placed before the trial court as well as the first appellate court are three family settlements/partitions dated 05.01.1953, 07.07.1955 and 05.02.1966.
Section 17 of the Registration Act, 1908 requires mandatory registration of certain documents. Inter alia, a document which operates to create, declare, assign, limit or extinguish any rights in present or future is liable to be registered. Under Section 49 of the Registration Act, 1908, in case a document was required to be registered under the law but has not been registered can, inter alia, be read as evidence.
In the present case, we are dealing with two family settlements/partitions in writing i.e. family settlement/partition dated 05.01.1953 and family settlement/partition dated 07.07.1955, which have also been duly registered. The third family settlement/partition (05.02.1966), though reduced in writing, but has not been registered. Yet though the evidentiary value of the first two instruments is without doubt, the third family settlement/partition can also be read as an evidence as a corroborative piece of evidence in order to show the conduct of respective parties. This is the settled law most recently emphasized in a judgment of Hon'ble Apex Court in the case of Subraya M.N. v. Vittala M.N. and others reported in (2016) 8 SCC 705, where the Hon'ble Apex Court has said as follows:
"There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties."
All the three family settlements/partitions referred above in seriatim, establish, without any iota of doubt that the property stood divided between Baikunthnath on one hand and Vinod Sagar Kaushik on the other, with 1/2 share each. Baikunthnath occupying the Eastern side of the property and Vinod Sagar Kaushik the Western side.
Whatever rights the parties had on the property were liable to be determined not on the basis of their inheritance, but on the basis of the evidentiary value submitted by them as to their actual possession on the property as admittedly freehold rights are to be determined on the basis of the possession of the beneficiary on the property. On the basis of the evidence submitted by Sri Baikunthnath, the State Government had granted freehold right to him on the 1/2 portion of the property. No appeal has been filed before the State Government against the freehold right granted in favour of Sri Baikunthnath. It is ultimately the State Government which has given the freehold rights on its property in favour of Sri Baikunthnath. To that extent, it is clear that both Baikunthnath and Vinod Sagar Kaushik each had 50 per cent right on the property. Half of the portion of Eastern side belongs to Sri Baikunthnath and the remaining 1/2 portion of the property would be of Sri Vinod Sagar Kaushik. It was on the basis of the settlement that each of them was in possession of 50% of his share of the property. Their possession, in a manner of speaking became unauthorized after 1962 i.e. after expiry of the lease period, which was admittedly never renewed. The property is of the State which has granted freehold rights on 1/2 portion of the property to Baikunthnath based on his possession, which is performed within the law.
There are in all three suits filed before the trial court. Two suits are of plaintiff Vinod Sagar Kaushik, out of which O.S. No. 204 of 2001 was only for seeking permanent injunction. In this suit, he had not sought declaration of any title and rightly so as for this he had to establish his claim on the possession of the Eastern side of the property as well, which he failed to do so as in suit No. 180 of 2001 filed by Baikunthnath, there is a clear finding that the possession on the 1/2 portion of the Western Side is of Vinod Sagar Kaushik.
Section 38 of the Specific Relief Act reads as under:
"38. Perpetual injunctions when granted. -
(1) Subject to the other provisions contained in or referred to by this Chapter a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property the court may grant a perpetual injunction in the following cases, namely:-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings."
Under the above provision, an injunction cannot be granted in favour of a person who is not in possession of the property. In any case, in a suit for injunction all which has to be shown is the rightful possession of the person on the property. The Hon'ble Apex Court in the case of Ramji Rai and another v. Jagdish Mallah (Dead) through LRs and another reported in (2007) 14 SCC 200 has elaborated this aspect as under:
"Under Section 38 of the Specific Relief Act, 1963 an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for more injunction without adding a prayer for declaration of his rights."
The first appellate court has therefore rightly determined the respective possession of the two parties on the property. Because of the established possession on the Eastern one-half of the property, the State has rightly given freehold rights on that portion to Baikunthnath.
As far as second substantial question of law is concerned, it is indeed true that under Order XLI Rule 31 of CPC, the requirement is that each point of determination which has to be made by the appellate court has to be clearly spelled out and then a decision has to be given assigning reasons as to why such a decision has been given. Evidently this has not been done.
Order XLI Rule 31 of CPC reads as under:-
"Order XLI Rule 31 Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
Learned counsel for the appellant Sri A.K. Sharma has relied upon a decision of a Coordinate Bench of this Court passed in Second Appeal No. 69 of 2006, Smt. Sugra vs. Parvash Ali & another and connected appeals decided on 29.05.2018, where it has been held by the Court that the matter be remanded back to the court for the reason that the first appellate court has not dealt with in the matter in terms of Order 41 Rule 31 of CPC. The learned Judge while doing so had placed reliance on a judgment of the Hon'ble Apex Court i.e. G. Saraswathi vs. Rathinammal and others, reported in (2018) 3 SCC 340.
It is indeed correct proposition to state that the lower appellate court being the first appellate court must clearly spell out the point for determination and give a decision therein by a reasoned order by re-appreciation of the entire evidence. In case it has not been done, the order is liable to be set aside on that ground alone. Therefore, there is no denying the submission of the learned counsel for the appellant that in case the determination has not been done in the light of Order 41 Rule 31 of CPC, the order is liable to be set aside. The only question is whether this is reflected from the order which is presently in appeal before this Court.
The order of the first appellate court shows that it has spelled out the issues, which were framed by the trial court and thereafter after appreciating the evidence submitted by the rival parties, it has framed three points for determination, which are in para 29, 44 and 45 of the judgment, respectively.
The first point for determination as given in para 29 is as to whether Vinod Sagar Kaushik (i.e. the appellant before this Court) is in possession of the entire property or only in 1/2 portion of the property and whether 1/2 portion of the property is in possession of Baikunthnath, and to which portion are they in possession. This point for determination is in fact the most crucial point for determination which has gone in favour of Baikunthnath i.e. the opposite party before this Court. This point for determination has been discussed from para 29 to para 43 of the judgment of the first appellate court.
The second point for determination as given in para 44 is whether the free hold deed given in favour of Baikunthnath by the State of Uttar Pradesh on 14.07.1999 can be declared as void and whether it is within the jurisdiction of the civil court to do that. This point for determination is determined again in para 44 and has gone against Vinod Sagar Kaushik i.e. the plaintiff in OS No. 280 of 2001.
The third point for determination as made by the first appellate court is as to what relief can be granted and to whom.
All these points for determination were the crucial points for determination and although it has been differently phrased by the trial court as well as by this Court. Therefore, the case of the appellant that the first appellate court has not proceeded with the matter in terms of Order 41 Rule 31 of CPC is wrong, as the order passed by the first appellate court is in terms of Order 41 Rule 31 of CPC.
In view thereof, both the substantial questions of law are decided against the appellant. Consequently, all the second appeals fail and are hereby dismissed.