| SooperKanoon Citation | sooperkanoon.com/1175310 |
| Court | Mumbai Nagpur High Court |
| Decided On | Jul-07-2014 |
| Case Number | Second Appeal Nos. 19 of 2013 & 168 of 2013 |
| Judge | A.B. CHAUDHARI |
| Appellant | The Shriram Education Society, Dharampeth, Nagpur, thr. Its Secretary and Others |
| Respondent | The Nagpur Improvement Trust, Nagpur, thr. its Chairman, Civil Lines and Others |
Oral Judgment:
1. Second Appeal No.19/2013 has been filed by original plaintiff, The Shriram, Education Society, Dharampeth, Nagpur and ors., feeling aggrieved by rejection of the cross-objection that was filed before the lower appellate court in Reg. C. A. No.766/2012 for claiming the relief of declaration that was not granted by the trial court by judgment and decree dated 02.03.1993 in Spl. C. S.No.823/1987.
2. Second appeal No.168/2013 has been filed by original defendant-Nagpur Improvement Trust, against the judgment and decree passed by learned trial Judge in Spl. C. S. No.823/1987 decided on 02.03.1993 and confirmed by judgment and decree dated 05.11.2012 in Reg. C. A. No.766/2012 by learned District Judge-11, Nagpur, by which the suit filed by the original plaintiffs was partly decreed restraining the defendant-Nagpur Improvement Trust from dispossessing the plaintiffs except by due process of law.
FACTS:
3. The original plaintiffs, The Shriram Education Society, (hereinafter referred to as âThe Societyâ) and nine other trustees filed Spl. C.S.No.823/1987 against the defendant-Nagpur Improvement Trust (hereinafter referred to as âNITâ) for declaration and perpetual injunction and claimed a declaration that the NIT had no right to take back possession of the two plots admeasuring together 2.94 Acres and perpetual injunction prohibiting NIT from taking possession thereof or disturbing the same. The suit was lodged on 23.12.1987 in the civil court. The trial Court also issued ad interim injunction on 24.12.1987 which was confirmed on 09.10.1989 and on Civil Application No.2241/1993 in F.A.No. 563/1993, this Court ordered status quo on 12.11.1993. In response to the suit summons, the defendant NIT entered appearance and filed adjournment applications Exh.9, 10, 11, 12, 13, 14 and 15 and, thereafter, did not appear before the court nor filed any written statement or reply. At the stage of evidence, the plaintiff tendered evidence of only one witness PW1-Anandvardhan s/o Chandranarayan Trivedi, Exh.23 who deposed and proved Exh.27, 28, 29 and 30 only and closed the case. The defendant NIT remained absent and hence there was no cross-examination. Thereafter, the plaintiff filed written notes of arguments Exh.35. The learned trial Judge, thereafter delivered the judgment holding that the plaintiff failed to prove any right over the suit property that too after expiry of period of lease and, therefore, was not entitled to any declaration that the defendant NIT could not take back the possession of the suit plots. The trial Court, however, held that the plaintiff was in possession and was âholding overâ and therefore, the defendant-NIT was restrained from dispossessing the plaintiff except by due process of law. The defendant NIT filed Reg. C. A.No.766/2012 before the District Judge, Nagpur while the Society filed Cross-Objection in the said appeal claiming the relief of declaration that was denied by the trial Judge. The appeal was taken up for final hearing by District Judge-11, Nagpur along with cross-objection and both; the appeal as well as cross-objection; have been dismissed. The lower appellate court, however, held that the society was not âholding overâ as held by the trial Judge but it was required to be treated as âtenant at sufferanceâ. Hence, these two second appeals by the rival parties.
ARGUMENTS:
4. Mr. S. P. Dharmadhikari, learned Senior Advocate with Mr. Shukul, learned counsel for appellant in S. A. No.19.2013 and for respondent in S.A.No.168/2013 made the following averments:
(i) The original defendant-NIT did not file written statement nor appeared in the suit at any stage thereafter and hence the suit was proceeded ex-parte. Therefore, the averments in the plaint made by plaintiffs are deemed to be admitted and hence the decree passed by the trial Judge is required to be confirmed.
(ii) Both the courts below committed error in law in not granting decree for declaration as claimed by the plaintiffs, when as a matter of fact, the allotment of the suit plots were made by the NIT to the society for the purpose of running school or educational institution and, therefore, obviously for making permanent construction with irrevocable allotment or lease whatsoever be called. In that event, the allotment or lease becomes irrevocable and the question of taking back the possession or cancellation of lease did not at all arise.
(iii) The school was, in fact, constructed in some portion of the land and the rest of the land was being utilised as playground and thus the NIT had no cause or reason to take back the plots from the society by making any cancellation.
(iv) The cancellation allegedly made by the NIT in March1969 was admittedly unilateral and that being without any show cause notice to the society, such a cancellation was void being in violation of the principles of natural justice.
(v) Both the courts below have recorded concurrent findings of facts that the possession was delivered with allotment of plots respectively were made to the society by the NIT. Once being in possession by allotment of plots, the society could not be dispossessed otherwise than in due course of law or for any reasons valid in law. The findings recorded by the trial court as well as by the appellate court that the society was âholding overâ or was a âtenant at sufferanceâ is not legal and correct. In the alternative, finding regarding âholding overâ the society being in possession of the suit plots will have to be confirmed and in that event the NIT does not have any right to take back possession otherwise than in due course of law as held by the trial Judge and confirmed by the lower appellate court.
(vi) The society had filed cross-objection before the District Judge in the appeal that was filed by the NIT but surprisingly enough, not a single contention was raised in the cross-examination and argued before the District Judge have been considered by the lower appellate court but the same has been dismissed mechanically and without application of mind and hence the matter can be remitted to the lower appellate court for considering the cross-objection.
(vii) The cancellation of allotment of irrevocable grant of allotment or lease, as the case may be, in favour of the society must be held to be nullity for the reasons stated as above. He, therefore, prayed for dismissal of Second Appeal No. 168/2013 filed by the NIT and for allowing Second Appeal No.19/2013.
5. Per contra, Mr. Mishra, learned counsel for the NIT-appellant in Second Appeal No. 168/2013 and respondent in S. A. No.19/2013, vehemently submitted that though it is true that the NIT did not file written statement and did not thereafter appear in the suit and suffered an ex parte decree, still it is well settled that the civil court is not supposed to make a decree blindly or mechanically without finding out whether the plaintiff proves his case or not by oral as well as documentary evidence. According to Mr. Mishra, merely because NIT did not appear before the civil Court, it cannot be punished as held by the Apex Court in the case of Maya Devi ..vs.. Lalta Prasad; 2014 AIR SCW 1412. According to Mr. Mishra, both the courts below have concurrently found that the society was not entitled to any declaration in the absence of any legal right in their favour and that is the correct finding about possession at the time of alleged allotment of plots since there is absolutely no evidence on record to show that any possession was delivered by the NIT or its officer to the society either in the year 1951 or 1955 or at any point of time thereafter. According to him, in fact, the possession was never delivered nor the society was at any point of time in possession of the suit plot either in the year 1951 or 1955. Learned counsel for the NIT then argued that Rules of 1955 namely; Land Disposal Rules, 1955 framed by the NIT do not have any application in the present case because the alleged allotment in the instant case were made before the said rules coming into force with effect from 22.07.1955 while the alleged allotments are of the dated 01.04.1951 and 28.03.1955. According to him, the alleged allotment of two plots was thus governed by pure and simple contract between the NIT and the Society as per the documents on record. There is absolutely no agreement, contract etc and the documents proved by the society before the trial court are only in the nature of offer and not a concluded contract. According to Mr. Mishra, at any rate, the amount that was required to be paid was at the rate of Rs.5,000/- per acre and for 2.94 Acre lands, the amount was also not paid by the society as per the said stipulation, which clearly means that the society did not complete the contract and thus, there was no completed contract between the parties in the absence of which the civil court could not have enforced it. According to him, the trial court as well as the lower appellate court committed error in recording a finding that the possession was with the society when as a matter of fact, the possession was never proved to have been delivered to the society and in that case the question of issuing any injunction did not arise. Hence, the error is required to be corrected by allowing the appeal filed by the NIT. The cross-objection even if has not been dealt with by the lower appellate court in all details, it has considered the same and, therefore, rightly rejected the same. Mr. Mishra, therefore, prayed for allowing the appeal filed by the NIT and for dismissing the appeal of the Society.
CONSIDERATION:
6. I have heard learned counsel for the rival parties at length. These appeals were taken up for final hearing with the consent of both the parties in view of the order made by this Court on 07.10.2013 for listing of both these appeals for final hearing in January2014 and the subsequent application for early hearing that was filed by the NIT. The NIT has also filed one affidavit dated 26.06.2014 in which it is stated that the suit land/plots are required for implementation of Metro Rail project in the city of Nagpur, which is a joint venture of Union of India and State Government and, therefore, the said 2.94 Acres of land in the heart of the city is required for the purpose of Metro Station, parking and its ancillary activities including the entry and exit gates. I have seen the said affidavit. According to me, it is not necessary to consider the said affidavit since the same is by way of subsequent event. That apart, this Court, while admitting the appeal had framed following substantial questions of law:-
(1) Whether the first appellate Court was justified in holding the respondents were tenants in sufferance especially after holding that there was no valid list of the suit property and as such it was not their case as pleaded in the plaint?
(2) Whether the first appellate Court was justified in observing that the appellant has not followed due process of law although the action of taking possession was undertaken after decision of representation made by the respondents in pursuance of interim directions given by it?
(3) Was the appellate Court right in exercising its powers according to law in observing that application for restoration of possession vide Exh.28 has to be allowed especially after refusing to grant declaration as prayed for by the respondents in their cross-objection?
7. Upon hearing learned counsel for the rival parties and upon perusal of the entire evidence, documentary as well as oral and the judgment and reasons recorded therein, I will have to reframe the substantial questions of law as under:
(1) Whether the finding of fact recorded by both the courts below that Shriram Education Society was placed in possession of the suit plots after allotment in the year 1951 and 1955 respectively, is perverse and contrary to the oral as well as documentary evidence on record and the society was never actually placed in possession of the suit plots and the findings by both the courts below are perverse and illegal?
Answer: Yes.
(2) Whether the findings of facts recorded by both the courts below; the trial court holding that Shriram Education Society was âholding overâ and the lower appellate court holding that the society was âtenant at sufferanceâ are rendered illegal and perverse in the light of the answer to substantial question no.1 hereinabove?
Answer: Yes.
(3) Whether the society was entitled to declaration that the NIT had no right to take back the possession of two plots admeasuring 2.94 Acres when as a matter of fact, the society was never placed in possession of the entire area of 2.94 Acres as per the answer given to question No.1?
Answer: No.
(4) Whether the alleged allotment of two plots in the year 1951 and 1955, the society could be termed as completed contract between the parties in the absence of any pleadings and proof about lease, either oral or written with its terms and conditions and agreed payment?
Answer: No.
(5) What order?
As per final order.â
8. Before taking up the aforesaid questions for consideration, it would be appropriate to consider the first submission made by Mr. Dharmadhikari, learned Senior Advocate for the Society that the written statement having not been filed by the defendant-NIT, oral evidence of the PW1Anandvardhan Trivedi not being challenged and non participation of the NIT in the suit must result into grant of all reliefs prayed in the suit to the society-plaintiffs. It is true that in the suit after entering appearance, the defendant-NIT made application for adjournments on few occasions but did not file written statement and thereafter abandoned the court proceedings in the suit. It does not mean that in such an event the trial Judge would make a decree in the suit in terms of the prayer made in the suit in the absence of requisite and satisfactory evidence before it by merely acting on the plaint averments or untrustworthy and insufficient evidence before it. In my opinion, the civil court cannot make a decree by mechanically relying on the principle that the averments made in the plaint if not denied are deemed to be admitted. In the reasoned judgment of the apex Court in this context in the case of Maya Devi (supra), in para 28 extracted portion, the apex Court stated thus:
â28. .....The absence of Defendant does not absolve the Trial Court from fully satisfying itself of the factual and legal veracity of the Plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the Trial Court as well as the Executing Court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff. Reference to Shantilal Gulabchand Mutha v. Tata Engineering and Locomotive Company Limited (2013) 4 SCC 396, will be sufficient. The failure to file a Written Statement, thereby bringing Order VIII, Rule 10 of the CPC into operation, or the factum of Defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order VIII, Rule 10, CPC and on the invocation of Order IX of the CPC the Court is nevertheless duty-0bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted.â
Keeping in mind above principle, I take up the first question of law framed for answering it.
9. I have carefully read the plaint averments in which it is averred that the plot admeasuring 1.95 Acre was granted to the plaintiff on 01.04.1951 with possession and another plot admeasuring 1 Acre was given in possession on 28.03.1955. The allotment was made by the NIT and was accordingly recorded as trust property with the office of Charity Commissioner in Schedule-I. One school building was constructed on some portion of the land (0.50 A) though the School was being run temporarily and was also de-recognised but it was running the school in the building constructed in the portion of the land with rest of the land being enclosed by barbed wire compound and the land was used for playground. Then it is averred that there was a long drawn legal battle between the trustees of the society right after 1955 till it was finally adjudicated in 1985 by order dated 07.02.1985 passed by Jt. District Judge, Nagpur in Misc. C. A. Nos.222 and 223 both of 1984 by which the plaintiff nos.2 to 10 were recognized as trustees of the said society/trust. It is then stated in para 6 of the plaint that the plaintiff took inspection at the time of filing of the suit to find that there was unilateral cancellation of allotment of plot by NIT. They took inspection of record of defendant-NIT and came to know about it but that was done by the NIT without any show cause notice and even the cancellation was made in March1969. According to the plaintiff, even then, they continued in possession of both plots i.e. the suit plots allotted to them in the year 1951 and 1955. In para 11 it is submitted that in the year 1987 some persons from the NIT entered the plots and started digging and, therefore, the police report was lodged and the suit was filed. There are prayer clauses, one is for declaration that the NIT did not have any right to take back possession of the suit plots and the second prayer is for injunction. It was stated in the suit that the decision of cancellation made by the NIT was unilateral and without any show cause notice and without hearing and therefore the same was illegal. These are the averments in the suit.
10. In support of the plaint averments, PW1Anandvardhan appeared as witness in the plaint and none else was examined. This witness has deposed that is age is about 47 years on the date of recording of evidence i.e. on 26.02.1992. It means that his age in the year 1951 was 7 years and in the year 1955, 11 years. He deposed in his evidence as under:
â.....The first plot was allotted in the year 1950. The first plot was admeasuring of 1.94 acres. The N.I.T. had allotted 1.94 acres of lands to the plaintiff, accordingly they have sent us a letter dt. 30th November, 1948 being O.W. No. 860. We deposited Rs.2500/- on 17.8.1950. N.I.T. handed us of its possession on 14.8.1950. N.I.T. had called us to take possession of his portion of the property by its letter dt 12.8.1950 bearing no.ESI/8165. In the mean time in the year 1955 another plot area 1 acres was allotted to the plff. no.1 trust by deft. Deft. Had sent a letter to the Divisional Officer to demarcate this plot up to 2.94 acres. A copy of its was sent to out office. I have produced copy of its letter dt. 6.6.63, which is on the Trust's letter head and bears the rubber stamp of the secretary. The same is marked at Exh.27. Plff. no.1 thereafter had constructed the building on this plot. Which is being used for running the school. The open ground is utilised as play ground. The plff no.1 was paying ground rent to deft. I have produced the letter which is office copy of show cheque was sent to deft. For the ground rent. The office copy is dt. 15.10.1962. It bears signature of C.N. Trivedi. I identify the same which is marked as Exh.28. N.I.T. did not issue us any notice to take possession of this lease plot or to cancel the lease....â
11. As to the first allotment, he deposed that the NIT handed over possession on 14.08.1950. Pursuant to the allotment of first plot in 1950, while the para 2 of the plaint shows that the allotment was made on 01.04.1951. His further evidence shows that in 1955 another plot of 1 Acre was allotted but then there is no proof of document on record about this allotment of 1955. PW1Anandvardhan has not deposed a word about taking possession of the second plot in 1955 or at any point of time thereafter. On the contrary, he has referred to Exh.27, which is letter dated 06.06.1963 issued by the Secretary, NIT addressed to the Divisional Officer, NIT, Nagpur by which the officer was asked to arrange to demarcate 2.94 Acre land allotted to the society between 9.00 to 10 am on 11.06.1963 in the presence of the Secretary of the society. PW1Anandvardhan does not say that any demarcation was made or Secretary of the society was present or that any possession was given to the Secretary of the Society on that particular date namely 11.06.1963 or at any point of time thereafter. He has also not deposed nor it is the case of the society in the plaint that any demarcation of the land was made before 06.06.1963 and possession was given after demarcation was made. The reason is that there is one memorandum dated 13.11.1949 which is an unproved document and its photocopy is on record of the lower Court in which it is stated that the NIT leased out a plot of land, measuring about 1.955 acres, on the North Ambazari Road to Shri Ram Education Society on premium of Rs.5000/- per acre, for a thirty years lease with annual ground rent @ 2% of the premium. However, the whole of the plot is not available for immediate transfer as there is a nallah running through it towards the South. It is also stated that the action is in progress to determine the exact area available and that communication giving this area as well as other terms of lease of the plot will be sent to the society in due course. Like this, I would be referring to some other documents which are unproved though except for the proved documents nothing could be read in the evidence. However, since those unproved documents are not adverse to the interest of the plaintiff, have been read and even then it is found that the plaintiff was never placed in possession of any of the plots. The evidence of PW1-Anandvardhan must be rejected outright for the simple reason that he claimed that the possession was taken in the year 1951 and 1955 when his age of 7 years and 11 years respectively and, therefore, he cannot have any personal knowledge about possession given to the society. His evidence, in my opinion is, therefore, most untrustworthy and compared with the proved documents and even for that matter unproved documents must be held to be dishonest. At any rate, the society did not examine any other witness except PW1Anandvardhan, who was not a competent witness to say that the possession was taken in the year 1951 and 1955 when he was a minor. I had asked a specific question to the learned Senior Advocate Mr. Dharmadhikari as to whether the society possesses a single document or anything in writing to show that the NIT delivered possession of both the plots in the 1951 and 1955 to the society or the society had taken possession of the plots in the year 1951 and 1955 from the NIT, or at any point of time thereafter. I also asked whether there is any other documentary evidence like mutation entries, assessment entries, tax receipts etc. Mr. Dharmadhikari, learned Senior Advocate fairly stated that record does not show any such evidence being filed before the trial Judge. That being so, the only inference will have to be drawn is that there is absolutely no evidence namely documentary evidence in the form of assessment list, mutation entry, city survey, NIT or NMC payment of taxes receipts and so on so forth. Then coming to the oral evidence, I have already discussed that the oral evidence of PW1Anandvardhan is untrustworthy and dishonest for which I have given the reasons above. PW1Anandvardhan did not even by oral evidence at all prove that after issuance of Exh.27, dated 06.06.1963, society received possession after making demarcation or identification of the plots, its area exactly. However, he stated that the School was constructed over some portion of the property and it appears from the contention raised by the NIT that there is some construction made in small corner and that is why it appears that the NIT has left about 0.50 Acre i.e. half acre land of the School. Even the construction of the school appears to be illegal because PW1-Anandvardhan has not filed a single document on record about construction of the school area by any sanctioned or non sanctioned plan nor any payment of local body taxes for the building, if any, nor there is any Architect map or any other evidence to show that really the building was constructed which can be called a legal construction. There is a serious doubt whether really there is any school or building since it was shut down due to de-recognition vide para 4 of plaint. But for the present, it is not necessary for me to comment on the issue because the NIT itself has not included area of the building and some open space i.e. total 0.50 Acre. But then that cannot be said to be legal and it is for the NIT to take action to take possession in relation thereof with which this Court in this suit is not concerned. Exh.28 dated 15.10.1962 is letter issued by the society to the NIT for payment of ground rent in response to the communication dated 10.08.1962 including crossed-cheque of Rs.291/- as ground rent for the year 1960-61. It, thus appears that the society though paid amounts of rent in the year 1962 for 1960-61, it did not receive the possession and the plaintiff-society did not either prove that it received the possession even after 06.06.1963 or thereafter. Exh.29 is the only letter dated 09.12.1997 addressed to the Sitabuildi police station communicating that about 1520 persons were digging the plots and Exh.30 is the another letter dated 12.12.1987 making a grievance about the same along with cheque of Rs.1500/- addressed to NIT. The plaintiff society filed coy of Schedule-I at Exh.26 through PW1Anandvardhan to show that the suit property was included in Schedule-I. Insofar as the inclusion of property as trust property in Schedule-I is concerned, the same does not have any finality nor has any superseding effect over the original owner-NIT which is the authority to allot or lease out the plots. At any rate, the said note in Schedule-I may have presumptive value under the Bombay Public Trusts Act but does not have any overriding effect in the matter of allotment of plots or lease by NIT. The submissions made by Mr. Dharmadhikari, learned Senior Advocate are, therefore, not sound. The above is the only evidence which I have discussed by way of proof in support of the plaint and nothing more.
12. Now, coming to the unproved documents, though it cannot be termed as legal evidence, I find Exh.24 is list of 10 documents out of which as stated earlier Exh.27 to 30 were only proved as stated above and then the original documents were taken back by the plaintiffs by obtaining order from the court after the decision of the suit by application Exh.47 dated 05.03.1993. All other documents mentioned in the list except Exh.26 were not at all proved. There is a document dated 17.08.1950 which is stamp receipt of Rs.2500/- dated 16.08.1950 addressed to the society, memorandum dated 13.11.1949 about which I have already made a discussion. The document with the list Exh.24 nowhere shows any execution of lease deed or any terms and conditions or the concluded contract reduced to writing. Then there is unproved letter dated 12.08.1950 in which it is stated that the society should contact the Divisional Officer Division-II, NIT Nagpur and take over possession of the site admeasuring 2 Acres on or before 14.08.1950. This letter was neither proved nor there is any proof to show that any possession was delivered and taken by the society.
To sum up, there are only four documents from Exh.26 to 30 and nothing more and rest of the documents are not proved documents. Even those unproved documents, as stated earlier did not take case of the plaintiff-society any further.
13. In my opinion, all the above important aspects have not at all been taken into consideration by the courts below. There is absolutely no proof either by oral or by documentary evidence that the possession of the plots was handed over or taken over by the society either in the year 1951 or in the year 1955. In the result, I must say that the society was never placed in possession of the plots. All the submissions made by the learned counsel for the society being based on the presumption that possession was given, hence must be rejected. Therefore, the substantial question of law no.1 is answered in the affirmative. Consequently, substantial question of law no.2 also will have to be answered in the affirmative.
14. In view of my answers to question nos.1 and 2 above, question no.3 will have to be answered in the Negative.
15. Though, it is alleged by the plaintiff that there was allotment of both the plots in the year 1951 and 1955 and that has not been proved by any proof, documentary or oral, even assuming that the allotments were made, the plaintiff was required to show that the contract between NIT and Society was completed and society had paid all the charges as agreed, the terms and conditions were finalised, the demarcation was made, possession was given and a document to that effect was reduced to writing for showing completed contract. But there is neither any deposition nor any document in the plaint to that effect. The NIT is not a private person. It is a statutory body under the NIT Act and, therefore, in the absence of legal and proper allotment, the alleged allotment propounded by the society cannot be given any importance. That being so, I hold that there was no completed contract even though Rules, 1955 were not applicable nor any terms and conditions set out or completed nor any possession was at all delivered to the Society. Hence, I answer question no.4 in the negative.
16. In the result, I pass the following order.
ORDER
Second Appeal No.168/2013:
(1) Second Appeal No. 168/2013 filed by Nagpur Improvement Trust is allowed.
(2) The judgment and decree dated 02.03.1993 passed by 7th Jt. Civil Judge (Senior Division), Nagpur in Special Civil Suit No. 823/1987 as well as judgment and decree passed by District Judge11, Nagpur dated 05.11.2012 in Regular Civil Appeal No.766/212, both are set aside.
(3) Special Civil Suit No.823/1987 is dismissed.
(4) No order as to costs.
Second Appeal No. 19/2013:
(1) Second Appeal No.19/2013 filed by Shriram Education Society and others is dismissed.
(2) No order as to costs.