Dinanath Badriprasad Shreshta Vs. Chandradevi Mahanprasad Upadhya - Court Judgment

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property - possession - sections 5, 6 and 37 of specific relief act, 1963 - appeal against decree declaring respondent is co-owner of suit premises and relief granted to restrain appellant from disturbing possession of respondent from suit premises - respondent failed to establish that she had any kind of title to suit property much less title as co-owner - respondent not in any way entitled for relief prayed for in suit - impugned decree liable to be quashed. - article 14: [r.m. lodha, s.a. bobde & s.b. deshmukh, jj] retiral benefit - classification between part time lecturers and full time teachers held, the part-time lecturers form a class by themselves and the said classification between part time lecturers and full-time teachers for purpose of granting retrial benefits cannot be said to be unconstitutional or bad in law -- consumer protection act, 1986 -- article 16; right to pension held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. retirement benefit; differentiation between full time teachers and part-time lecturers government resolution providing for retrial benefits to full-time teaching staff part-time lecturer were not entitled to said benefit held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. - the plaintiff's case is that, because of the love and affection that the plaintiff's family had towards the defendants and because of the excellent relations between the defendant and the plaintiff's family, a family arrangement was arrived at under which it was contemplated that the plaintiff's premises at bellasis road would be disposed of for premium and monies received therefrom would be utilised for payment of the initial deposit required to be paid to the maharashtra housing board for allotment of the suit premises in the name of the defendant. the plaintiff emphasises that this was a family arrangement and though the allotment was to be in the name of the defendant, it was agreed and arranged that the suit premises were being acquired for the benefit of the defendant as well as the plaintiff's family. it is not in dispute that the defendant and the plaintiff are not related by blood, but it is claimed that there were stronger bonds of love and affection between the two families as a result of which the plaintiff's family virtually treated the defendant as an adopted son of the plaintiff's. true, that evidence is given on the point of love and affection between the plaintiff's family and the defendant. in our judgment, however strong the bonds of love and affection towards the defendant, they could make him an adopted member of the plaintiff's family. it is trite law that no one can confer better title, than he has. though we are not satisfied that the material on record bears out a case of the so called family arrangement, even if we assume that such a case had been made out, we do not see how such a case could have justified a declaration of co-ownership of the plaintiff. even on this consideration, we are afraid that the suit of the plaintiff must fail. 10. considered from all angles, therefore, we are of the view that the suit of the plaintiff must fail.b.n. srikrishna, j.1. this appeal challenges the judgment and decree made in the suit by which it is declared that the present respondent (original plaintiff) is a co-owner of the suit premises and relief granted of restraining the appellant, his agents, servants and persons claiming through him from disturbing the possession of the plaintiff and/or dispossessing the plaintiff and the family members from the suit premises and restraining the appellant from inducting any person or persons in the suit premises and from dealing with, disposing of or alienating the right, title and interest in the suit premises or any part thereof whatsoever.2. the facts necessary for disposing of this appeal are as under :--sometime in the year 1943 the defendant came to bombay and had been residing with the plaintiff and her family then consisting of her husband, two sons and daughters in b.i.t. block tenements situated at bellasis road, byculla. the defendant was aged about 8 or 9 years at that time. both, the plaintiff's family and the defendant's family belonged to nepal and it is the case of the plaintiff that as there were no facilities of education there, the defendant's late father requested the plaintiff's late husband to take the defendant to bombay and bring him up so that the defendant could get education and opportunities for development of the defendant's innate musical talent. the defendant continued to reside with the family of the plaintiff at the bellasis road premises. sometime in or about 1970, by which time the defendant was a major, the defendant became eligible for and obtained allotment of housing board premises situated at maharashtra housing board premises at 4/39, m.i.c. colony, d.n. nagar, andheri admeasuring 620 sq.ft. comprising four rooms (hereinafter referred to as the suit premises).it is the case of the plaintiff that the defendant did not have the wherewithal for making the initial payment of rs. 5,000/- to the maharashtra housing board for allotment of the suit premises and also for making the periodical payments of instalments under the hire purchase scheme floated by the maharashtra housing board. the plaintiff's case is that, because of the love and affection that the plaintiff's family had towards the defendants and because of the excellent relations between the defendant and the plaintiff's family, a family arrangement was arrived at under which it was contemplated that the plaintiff's premises at bellasis road would be disposed of for premium and monies received therefrom would be utilised for payment of the initial deposit required to be paid to the maharashtra housing board for allotment of the suit premises in the name of the defendant. the plaintiff emphasises that this was a family arrangement and though the allotment was to be in the name of the defendant, it was agreed and arranged that the suit premises were being acquired for the benefit of the defendant as well as the plaintiff's family. it is not in dispute that the defendant and the plaintiff are not related by blood, but it is claimed that there were stronger bonds of love and affection between the two families as a result of which the plaintiff's family virtually treated the defendant as an adopted son of the plaintiff's. though an arrangement to dispose of the bellasis road premises was arrived at sometime in the year 1970, it appears that the bellasis road premise were actually transferred in the year 1983. the evidence on record shows that the actual transfer of name from the plaintiff to the name of the new tenant, by name raut, took place only in january 1983. it is not inconceivable that in the year 1970, certain arrangement was arrived at as a result of which monies were to be generated. plaintiff contributed a sum of rs. 5000/- towards allotment of the suit premises in the name of the defendant. though it is the case of the plaintiff that thereafter also a number of monthly instalments were paid by her, there is serious dispute about the said fact. the receipts issued by the maharashtra board stand in the name of the defendants as he was the allottee of the suit premises. after the bellasis road premises were physically handed over to raut (presumably in the year 1970-71), the plaintiff and her family moved to and started residing in the suit premises along with the defendant. this continued, without difficulty, till or about the year 1982. the defendant got married in the year 1982 and started demanding with the plaintiff that the plaintiff and her family vacate the premises as the defendant desired to set up his marital home in the suit premises. the defendant who had initially recorded the names of the plaintiff and her family members as relatives in the records of the maharashtra housing board, had these names cancelled. he also started taking steps to evict the plaintiff and her family from the suit premises. being apprehensive, the plaintiff moved the present suit and sought a declaration that she was co-owner of the suit premises and a consequential injunction to restrain the defendant from disturbing the possession of the plaintiff and her family members.3. the learned single judge recorded evidence and raised the following 11 issues :---1. whether this honourable court has jurisdiction to try and dispose of this suit.2. whether the plaintiff proves that the plaintiff along with the defendants purchased and suit premises situated at 4/39, m.i.g. colony, d.n. nagar road, andheri (west), bombay-400 058. 3. whether the defendant is fully owner of the suit premises. 4. whether plaintiff proves that she has contributed a sum of rs. 5000/- as stated in the plaint. 5. whether entry of names in 'c' form is a nomination form and whether the same creates any right in favour of the plaintiff. 6. whether the plaintiff is entitled to claim co-ownership of the suit flat with the defendant on account of the provisions of the maharashtra housing and area development act and of benami transactions (prohibition) act. 7. whether the plaintiff proves that she has paid any monies towards the rent, monthly instalments and electricity charges (a) before filing this suit (b) after filing the suit as alleged in para 6 of the plaint in view of what is stated in para 5 of the defendant's written statement. 8. whether the occupation of the suit flat by the plaintiff and her family members is unauthorised. 9. whether there is any understanding or agreement in writing or otherwise between plaintiff and defendant in respect of the suit flat as alleged in para 3 of the supplementary written statement and the plaintiff had assured the defendant of vacating the suit flat. 10. whether the plaintiff is entitled to any reliefs as prayed or the suit liable to be dismissed with costs. 11. generally.4. issue no. 1 is answered in the affirmative. issue nos. 3, 6, 8 and 9 are answered in the negative. the learned single judge answered the other issue in favour of the plaintiff and granted the declaration and injunction as sought in the suit. hence, this appeal.5. the learned counsel for the appellant raised a basic contention to impugn the correctness of the judgment and decree under appeal. the learned counsel contended that a persual of the plaint, without doubt, suggest that the suit was a suit for declaration of title coupled with a prayer for injunction consequent upon declaration of title. title of immovable property can only arise under a registered conveyance or by adverse possession and by no other means, submits the counsel. curiously, the only claim to title made in the entire suit is the so called family arrangement. this family arrangement too is not reduced to writing, but pleaded orally. though the plaintiff's counsel insisted that this family arrangement was duly arrived at in view of the fact that the defendant was an adopted son of the plaintiff, we find that there is neither pleadings nor evidence on record to support this. on the other hand, the plaintiff in her examination in chief categorically admits that the defendant was in no way related. true, that evidence is given on the point of love and affection between the plaintiff's family and the defendant. in our judgment, however strong the bonds of love and affection towards the defendant, they could make him an adopted member of the plaintiff's family. adoption of the defendant to the plaintiffs family should have been pleaded in its material particulars, and proved thereafter by leading cogent and credible evidence as to the date of adoption, the manner of adoption, the deed of adoption and all ceremonies of adoption. adoption is a peculiar procedure known to hindu law and though both the parties are hindus, no such material is placed on record. in the absence of such material, the learned single judge has rightly disbelieved the story of adoption, though he accepted the case of family arrangement.6. turning to the material on record to support the case of family arrangement, learned counsel for the plaintiff drew our attention to certain documents on record. in fairness to her, we must scan those documents and deal with them. the first document is the order of allotment dated 18-12-1970 (exhibit k-1-part of exhibit 16 collectively). this order of allotment merely shows that in respect of the premises at 1/61 b.i.t. block, 3rd floor, bellasis road, byculla, bombay-400 008, the tenant was smt. chandrakumari (the plaintiff). it also describes the relationship of the applicant and tenant as under :-chandrakumari - aunt. geetadevi - sister.vijayraj - brother.binadevi - sister.deepakraj - brother.(chandrakumari is the plaintiff. geetadevi and binadevi are her daughters, vijayraj and deepakraj are her sons. the next document (exhibit k-2-part of exhibit 1) is a certificate dated 4-12-1978 issued under signature of the plaintiff certifying that dinanath shreshta (upadhya) had been staying at the plaintiff's place with her since childhood; that he was plaintiff's sister's son and that they had been staying in bombay for more than 30 years. it also says that the plaintiff had adopted him and that he has been staying with the plaintiff since childhood. there is also an undertaking dated 4-12-1970 given by the defendant to the maharashtra housing board which says that if the defendant is allotted a tenement, he shall immediately bring his mother/sister to stay permanently with him or till he got married. the defendant further undertakes that if he fails to comply with the above, the board shall have the right to evict him from the premises. there is also an undertaking to surrender the present premises standing in the name of smt. chandrakumari upadhya to the landlord and produce a receipt from him within a month from the date of allotment of the tenement applied for. there is a document (exhibit k-3-part of exhibit 27/i) which is styled as interview sheet of application for allotment of tenements under low income group/middle income group. this document describes the members of the family as 'self, sister who have adopted the applicant, mother, 3 brothers, 3 sisters, niece, total 10 members'. it also refers to verification made from the ration cared indicating that all names and addresses tally, that the mother was at native place at present and give the present address. the endorsement on the document states 'premises stated in the name of his aunty who will be staying with him. undertaking for surrounding these premises taken. (letter from aunty produced) to the effect that the applicant is staying with her (p-13) attached'.7. strongly relying on these documents ms. bagwe, learned counsel for the defendant, contends that these documents are more than adequate to show title to the suit property in favour of the plaintiff. though, in the plaint, the plaintiff sought for declaration of co-ownership of the suit premises, during her evidence before the trial court, the plaintiff pitched her plea a little higher and claimed full ownership of the premises. even after careful reading of the aforesaid documents with the able assistance of the counsel for the plaintiff, we are unable to discern therein any material which could invest title to the suit premises in the plaintiff. apart from these documents, ms. bagwe concedes that there was no other documents investing title to suit premises in the plaintiff. these documents read conjointly do not confer title to the suit premises on the plaintiff. as a matter of fact, at the date of the suit, even the plaintiff did not have ownership title to the property. he had entered into an agreement of sale by hire-purchase, under which title to the property was to be conveyed upon the full amount of consideration being paid by instalment over a period of time. it is admitted that till today there is no conveyance executed. the only person who could have conveyed the title to the suit premises to the plaintiff was the housing board which should have been before the court. curiously, we find that the maharashtra state housing board, which is admittedly the owner of the suit premises, was not made a party to the suit. it is trite law that no one can confer better title, than he has. nemo dat quod non habet, goes the legal maxim. without any further ado, on this discussion itself, the plaintiff should have been non-suited. the reliefs in the suit as framed could not have been granted at all.8. mr. bagwe, however, strongly urged certain equitable consideration. according to her, the conduct of the defendant is that he induced the plaintiff to dispose of an existing premises which her family was occupying as tenant as bellasis road and further induced the plaintiff to part with a sum of rs. 5000/- towards initial deposit for the housing board with an assurance that the premises, though procured in the name of the defendant, would be available jointly for the defendant, the plaintiff and the plaintiff's family. though we are not satisfied that the material on record bears out a case of the so called family arrangement, even if we assume that such a case had been made out, we do not see how such a case could have justified a declaration of co-ownership of the plaintiff. at the highest, the plaintiff might have had an equitable right of estoppel as against the defendant dispossessing her and her family, but it certainly could not have conveyed title in any proportion, much less co-ownership, on the plaintiff. even on this consideration, we are afraid that the suit of the plaintiff must fail. the material on record shown to us also does not satisfy us that the plaintiff could have been declared co-owner of the premises of which admittedly the housing board was the owner.9. this brings us to the second relief granted in the suit of injunction. as we pointed out earlier, this was not a suit simpliciter for the relief of injunction, but it was a suit on title with injunction as consequential relief. since we are of the view that the declaration sought by prayer (a) to the effect that the plaintiff was a co-owner could not have been granted, the consequential prayer (b) for injunction, could not also have been granted by the learned single judge.10. considered from all angles, therefore, we are of the view that the suit of the plaintiff must fail. the plaintiff has not been able to establish that she had any kind of title to the suit property, much less title as a co-owner. consequently, the plaintiff could not have been granted the reliefs prayed for in the suit.11. finally, we come to the issue of sum of rs. 5,000/- which the plaintiff has admittedly paid to the housing board. ms. bagwe, learned counsel for the defendant urges that there is no question of returning this money, since the plaintiff had the benefit of staying free in the premises right from 1970 till today. in our view, considering that the plaintiff disposed of the bellasis road tenement under the peculiar circumstances of the case, justice demands that atleast the amount of rs. 5000/- paid by her should be refunded to her together with interest at 6% simple interest per annum.12. in the result, we allow the appeal and make the following order :---i) the judgment and decree of the learned single judge is quashed and set aside. the suit of the respondent plaintiff is dismissed. ii) it is held that the plaintiff is entitled to refund of a sum of rs. 5,000/- together with simple interest at the rate of 6% per annum from november, 1970 till payment.13. appeal is accordingly allowed. no order as to costs.14. parties to by act on ordinary copy of this order duly authenticated by court associate.15. certified copy expedited.