1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B.CIVIL SECOND APPEAL NO.111/2012 M.M.Sebastiyan versus Urban Improvement Trust, Udaipur Date of Judgment :: 21.07.2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.Muktesh Maheshwari, for the appellant.
Mr.Deelip Kawadia, for the respondent.
---- BY THE COURT: This second appeal under Section 100 CPC is directed against judgment and decree dated 29.03.2012 passed by Additional District Judge No.1, Udaipur, whereby, the judgment and decree dated 28.02.1998 passed by Additional Civil Judge (Senior Division) No.2, Udaipur has been set aside and the suit filed by the appellant-plaintiff has been dismissed.
The facts in brief may be noticed thus: the appellant- plaintiff filed a suit for injunction on 01.12.1990, inter alia, with the averments that plot No.96, Moti Magri, Udaipur was allotted by defendant-Urban Improvement Trust, Udaipur (‘UIT’) to Mr.John Mathew on 31.12.1971; Mr.John Mathew executed an agreement to sale dated 16.09.1972 in plaintiff’s favour for a sum of Rs.8,500/-; Mr.John Mathew died, whose father Mr.K.M.2 John was his only legal representative; Mr.K.M.John executed another agreement on 21.06.1973; the plot is in possession of the plaintiff since the agreement executed by Mr.John Mathew; Mr.John Mathew had constructed a boundary wall around the plot; UIT was requested several times to transfer the plot in plaintiff’s name, which was not done, on the other hand plaintiff was informed that if he wanted to get the plot regularized then he should deposit money in terms of letter dated 17.12.1977; the amount was deposited by a Cheque dated 02.11.1979, drawn on the Canara Bank; repeated requests were made to UIT to regularize the plot; by letter dated 23.11.1979 plaintiff was asked to meet the Chairman, UIT; when the plaintiff met with the Chairman, he was assured that plot would be regularized in his name; on receiving the assurance, the plaintiff deposited the entire consideration and maintained his possession; in plaintiff’s absence, the possession was sought to be illegally removed, on getting information, the defendant was prevented and was told that it had no right to dig the plot; defendant assured that the action would not be repeated in future; however, occasionally in his absence, workers of UIT visit the plot and attempt to trespass and, therefore, permanent injunction was sought seeking restrain against the defendant, its servants, agents and workers from interfering with the possession of the plaintiff and if during the pendency of the suit defendant illegally possess the plot then its possession be removed.
A written statement was filed by the defendant-UIT3disputing the plaint averments.
It was, inter alia, claimed that allotment letter dated 31.12.1971 was issued to Mr.John Mathew, however, the allottee did not deposit the consideration in terms of the allotment letter with the defendant, therefore, neither any licence nor any lease deed was executed in Mr.John Mathew’s favour and, therefore, qua the said plot Mr.John Mathew had no title, interest or right; in absence of any right Mr.John Mathew could not have transferred the plot to plaintiff and the so called transfer in his favour is void; fact of Mr.John Mathew’s death was denied for want of knowledge and his father being his only legal representative was also denied; right of Mr.John Mathew’s father was also denied and the document was claimed as void; the title was claimed in the UIT and the possession was also claimed; plaintiff’s possession was denied and it was claimed that the boundary wall around the plot was constructed by UIT; it was pleaded that regularization in favour of plaintiff was not possible and the Trust was not bound; the plot was liable to be sold by auction; averments relating to construction of boundary wall etc.were made; further averments were made regarding the scheme under which the plot was allotted to Mr.John Mathew and the fact that the required amount was not paid and on account of violation of condition of allotment regarding non-transferability of the plot, the allotment stood cancelled.
A replication was filed by the plaintiff and it was claimed that possession was handed over to Mr.John Mathew on 4 06.01.1972 and a licence deed dated 07.01.1972 was executed.
The trial court framed seven issues and on behalf of the parties oral and documentary evidence was led.
After hearing the parties, the learned trial court came to the conclusion that the defendant has not produced any document regarding canceling the allotment and obtaining the possession and, therefore, it cannot be accepted that defendant cancelled the allotment on account of non-deposit of balance consideration amount and took possession; the defendant had ignored the violation of the allotment conditions by Mr.John Mathew and gave notice (Ex.-5) to the plaintiff seeking balance consideration amount, regarding which a Cheque was deposited by the plaintiff and, therefore, now the defendant cannot raise objection regarding Mr.John Mathew’s right to transfer the plot and cannot claim that the plaintiff has no right; on account of construction of boundary wall and raising of the foundation in the plot it cannot be said that the UIT has taken possession and it can not also be said that the plaintiff was dispossessed from the plot and his rights have come to an end; the suit was properly valued; the suit was maintainable, the plea raised by the defendant that simple suit for injunction without possession was not maintainable was negated and the suit filed by the plaintiff was decreed with an injunction against the respondent not to enter into the plot No.96, not to dispossessed the plaintiff and not to raise any construction thereon.
Feeling aggrieved, the UIT filed fiRs.appeal under Section 5 96 CPC.
The fiRs.appellate court after hearing the parties came to the conclusion that Mr.John Mathew was simply a licensee and no lease deed was executed in his favour and, therefore, the licensee could not have sold the property, under the license, the licence could not have been transferred and, therefore, the plaintiff does not get any right based on the agreement to sale executed in his favour, adequate stamp duty was not paid on the documents, they were not registered and the witnesses to the said documents were not produced.
The licence stood cancelled on account of violation of terms of the licence regarding raising of construction within stipulated time, which was not raised, the plaintiff was not in possession of the suit plot and, therefore, the suit for injunction was not maintainable and in view of the findings allowed the appeal filed by the UIT and dismissed the suit filed by the plaintiff.
It is submitted by learned counsel for the appellant that there is no evidence available on record, whereby the possession of the suit plot was taken back from Mr.John Mathew, his father or the plaintiff, the property is an open plot and merely by raising construction, it cannot be said that UIT has taken possession of the plot in question.
It was also submitted that in view of the fact that legally possession was not taken from the plaintiff, the suit seeking injunction without declaration was maintainable, the fiRs.appellate court was not justified in reversing the findings recorded by the trial court and in view of the law laid down by this Court in Abdul Latif & Ors.v.Nagar 6 Vikas Pranyas, Udaipur: 2006 (4) WLC66 the appeal involves substantial questions of law and the same deserves to be admitted.
Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the appellant.
It was emphasized that the learned trial court itself has recorded finding regarding possession of UIT on the plot in question, however, the said aspect has been wrongly ignored and suit filed by the plaintiff has been decreed and, therefore, the fiRs.appellate court was justified in reversing the decree passed by the trial court.
It was submitted that the plaintiff is not even a licensee and except for the allotment letter issued in favour of Mr.John Mathew, no admissible evidence is available on record so as to arm the plaintiff from seeking injunction.
The claim regarding deposit of the balance consideration is also baseless inasmuch as the amount sought to be deposited by the plaintiff was never accepted by the UIT and the Cheque was returned back way back in the year 1981.
The plaintiff cannot be permitted to become owner of the suit plot by way of filing a simple suit for injunction without any right, title or interest in the suit property and, therefore, the appeal deserves to be dismissed; even otherwise the same does not involve any substantial question of law.
I have considered the rival submissions and have perused the judgments passed by both the courts below and the record of both the courts below.
7 From the record it is revealed that the plot in question was alloted to Mr.John Mathew and a licence dated 07.01.1972 was issued in his favour.
The important terms of the license, inter alia, required erecting building within a period of three yeaRs.a prohibition on transfer/assignment of the license.
As claimed by the plaintiff, Mr.John Mathew executed an agreement to sale in plaintiff's favour and the said transaction was reiterated by Mr.K.M.John , father of Mr.John Mathew on 21.06.1973 after death of Mr.John Mathew on 10.11.1972.
Efforts made by the plaintiff seeking regularization of the plot in his favour did not succeed, and from the material available on record i.e.Ex.-A/1 to A/7 and Ex.-A/14 to A/16, it is apparent that the Urban Improvement Trust raised construction of the boundary wall and also the foundations within the plot were filled for the purpose of constructing staff quarteRs.The plaintiff chose to file the suit for mere injunction against the defendant seeking protection of his possession and from interference based on the agreement to sale/agreement executed by Mr.John Mathew and his father Mr.K.M.John .
No any relief seeking declaration of title was prayed for by the plaintiff.
The trial court apparently found the facts regarding the possession of the suit property in favour of UIT, however, declined to rely on the said facts as in the opinion of the trial court, the possession was not obtained after cancelling the license.
The trial court was overawed by the fact that UIT in fact 8 entered into correspondence with the plaintiff for regularization, however, the trial court lost sight of the fact as to the right/title and locus of the plaintiff to maintain the suit based on the two agreements in his favour.
Admittedly, no lease deed was executed in favour of Mr.John Mathew and the licence in question from its very terms and in view of express provisions of Section 56 of the Easements Act, 1882 was not transferable.
Further, the licence by its very nature is personal to the licensee and is not annexed to the property in respect of which it is enjoyed and is neither transferable nor a heritable right and, therefore, neither the licence could be transferred by Mr.John Mathew nor on death of Mr.John Mathew, as the licence granted in his favour expired, Mr.K.M.John had apparently no right to execute any document in plaintiff's favour.
Even otherwise in face of the document already executed by Mr.John Mathew, the execution of another agreement by Mr.K.M.John appears to be only an exercise in excess.
As such once it is concluded that Mr.John Mathew was merely a licensee with no transferable and/or heritage rights, the plaintiff does not get any right, title or interest in the suit property based on the agreements executed by Mr.John Mathew and/or his father Mr.K.M.John.
So far as the issue raised by learned counsel for the appellant regarding maintainability of the suit for injunction is concerned, from what has been noticed hereinbefore the documentary evidence including Ex.-A/1 to A/7 and Ex.-A/14 to 9 A/16, which are documents relating to grant of contract for construction of boundary wall around the plot, payment made for construction and pertaining to construction of staff quarters on the plot etc.available on record, clearly establish possession of the UIT and, therefore, the suit filed by the plaintiff merely seeking injunction was apparently not maintainable.
The judgment of this Court in the case of Abdul Latif (supra) has no applicability to the facts of the case as in the case of Abdul Latif, it was found as a fact that the plaintiffs therein were in possession of the suit property since long.
Hon'ble Supreme Court in the case of Ramji Rai & Anr.v.Jagdish Mallah (dead) through LRs and Anr.: (2007) 14 SCC200 held and observed as under:- “8.
On the finding of facts, we do not wish to interfere.
There is no reason to reveRs.the concurring findings.
However, suffice it to state that the lower appellate court should have dismissed the suit filed by the appellants only on the ground that the appellants had failed to prove that they were in possession of the disputed lands.
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 mere injunction without adding a prayer for declaration of his rights.”
.
Further, Hon'ble Supreme Court in Anathula Sudhakar v.P.Buchi Reddy (dead) by LRs.and Ors.: (2008) 4 SCC594 laid down the principles regarding maintainability of the suit as under:- “21.
To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: 10 (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction.
Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue.
The prayer for injunction will be decided with reference to the finding on possession.
But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar).Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction.
Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction.
But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.
But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property.
The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
.
In view of the law laid down by Hon'ble Supreme Court as noticed hereinabove, the suit filed by the plaintiff was even otherwise not maintainable.
11 In view of the above, the fiRs.appellate court was justified in reversing the findings recorded by the trial court and apparently no substantial question of law is involved for consideration in the present second appeal.
Consequently, there is no substance in the second appeal and the same is, therefore, dismissed.
The stay application is also dismissed.
No costs.
(ARUN BHANSALI).J.
PKS