-: 1 :- [CASE NUMBER]. HIGH COURT OF MADHYA PRADESH, JABALPUR BENCH INDORE ( Single Bench ) ( Hon'ble Shri Justice [ENTITY] ) [CASE NUMBER]. [ENTITY] s/o [ENTITY] VERSUS M/s [ENTITY], Mumbai and others
Shri [ENTITY], learned counsel for the appellant.
O R D E R ( Passed on this 26th day of July, 2018 )
THE present appeal is filed being aggrieved by judgment and decree dated 20.12.2014 passed in [CASE NUMBER] by Civil Judge, Class-I, [ENTITY] and judgment and decree dated 31.08.2016 passed in [CASE NUMBER] by District Judge, [ENTITY] by which civil suit as well as the first appeal both have been dismissed.
[2] Facts of the case, in short, for disposal of this appeal are as under :-
(a) The appellant/plaintiff filed the suit for declaration and permanent injunction against the defendants.
The plaintiff is a retired employee of defendant Nos.1 and 2. He was appointed as labour on 05.07.1969. By virtue of his employment, he was allotted House No.31, L.I.G., Jawahar Nagar, [ENTITY], area 93.61 sq.mt. According to the plaintiff
-: 2 :- [CASE NUMBER].
he is residing in the said house since 1981-82 and paying the costs of the house by way of deduction from his salary @ 10%. The defendant Nos.1 to 5 came up with the Housing Scheme by which 61 houses constructed by M. P. Housing Board were given to the employees of defendant Nos.1 and 2 under "Hire Purchase Agreement". The said scheme was made applicable for 15 years. A joint meeting was held between Union and the defendants on 23.08.1978 in which terms and conditions of the said scheme were settled. The plaintiff has alleged that the defendant Nos.1 and 2 being employer deducted the costs of the house from his salary and other employees but did not deposit with the Housing Board. Thereafter the Housing Board had sold those 61 houses in total consideration of Rs.19,82,475-00 by registered sale- deed dated 11.10.2004 to defendant Nos.1 and 2. According to the plaintiff the said sale-deeds ought to have been executed in his favour or in favour of suitably placed employee and by doing so the defendant Nos.1 and 2 cheated them. Therefore, the cause of action accrued in favour of the plaintiff to file suit seeking declaration to the effect that the sale-deed dated 11.10.2004 is not binding on him and the defendants be restrained to interfere into his peaceful possession.
(b) The defendant Nos.1 and 2 filed the written- statement by submitting that the Housing Board constructed various houses and the defendants took them for their employees and by way of agreement dated 24.12.1981 it was given to the plaintiff being an employee and the same was liable to be vacated after retirement from the service. After
-: 3 :- [CASE NUMBER].
retirement, the plaintiff and other employees refused to vacate the premises and against them proceedings under [SECTION] of the [ACT] were initiated.
(c) The defendant Nos.3 to 7 also filed the written-statement by submitting that the houses were constructed and thereafter sold to the defendant Nos.1 and 2. There was no agreement between the plaintiff and the Housing Board.
(d) On the basis of pleadings, the Trial Court framed 8 issues for adjudication.
(e) The plaintiff examined himself as PW-1 and the defendants examined [ENTITY] as DW-1. The defendants got exhibited 116 documents as Exs.D/1 to D/116 to establish that the houses were purchased by the defendant Nos.1 and 2 for their employees and they were allotted to them for residential purpose by virtue of their employment.
(f) Learned Civil Judge vide judgment and decree dated 20.12.2014 has dismissed the suit. Thereafter the plaintiff filed the first appeal before the District Judge. Vide judgment and decree dated 31.08.2016 the District Judge has also dismissed the appeal. Hence, the present second appeal before this Court.
[3] I have heard Shri [ENTITY], learned counsel for the appellant and perused the records.
[4] Shri [ENTITY], learned counsel appearing on behalf of the appellant submitted that both the Courts below have failed to consider that agreement dated 31.12.1980 (Ex.D/2) was executed in english language and
-: 4 :- [CASE NUMBER].
the plaintiff is layman and not so literate to understand the contents of the agreement. There was understanding between the Union and the defendants for purchase of the houses for the employees and the costs of purchase was liable to be paid by way of deduction @ 10% from the salary. The deductions were made but the same was not deposited before the Housing Board and later on the defendant Nos.1 and 2 got executed the sale-deed in their names. The findings given by the Courts below are perverse and contrary to the evidence. Hence, the appeal is liable to be admitted. The appellant has suggested 6 substantial questions of law in this appeal, which are as follows :-
"1. Whether under the facts & circumstances of the case, the learned first Appellate Court was justified in confirming the Judgment & Decree passed by the Trial Court, whereby the Suit filed by the Plaintiff was dismissed ?
2. Whether under the facts & circumstances of the case, learned lower Appellate Court was justified in appreciating the entire evidence available on record in proper manner by itself, being last Court of facts ?
3. Whether under the facts & circumstances of the case, learned Lower Appellate Court was justified in rejecting the application under [SECTION] of [ACT] filed by the Plaintiff for taking additional documents on the record mainly on the ground of delay & without considering their evidentiary value in proper perspective ?
4. Whether under the facts & in the circumstances of the case, allotment list Exh. P/1, Order Exh. P/7, receipts Exh. P/5 & P/6 are not sufficient document & the Statement of DW-1 with regard to monthly deduction of 10% from Salary are not sufficient to prove the case of the Plaintiff, who is a layman ?
5. Whether under the facts & in the circumstances of the case, learned lower Appellate Court was justified in not drawing an adverse inference against the Defendants as they have not produced the relevant documents despite
-: 5 :- [CASE NUMBER].
demand of the Plaintiff by moving an application ?
6. Whether under the facts & in the circumstances of the case, the Judgment & Decree passed in favour of the similarly situated persons under similar circumstances ought not to have been taken into consideration, while deciding the present case ?"
[5] Admittedly the plaintiff was an employee of defendant Nos.1 and 2 and by virtue of agreement dated 31.12.1980 (Ex.D/2) the house was given to him for residential purpose. The only contention of the plaintiff is that the said agreement was executed in English, therefore, he could not understand its contents. A cyclostyle agreements were executed by the defendant Nos.1 and 2 Company with other 61 employees and out of which most of them were Supervisor who understand English language. Therefore, it cannot be believed that all the 61 employees were under wrong impression that they purchased the house under the hire purchase scheme. In agreement it was specifically mentioned that the house is being allotted by virtue of the employment with the Company and he is not liable to use in the event of termination, dismissal, death, retirement etc. The condition No.2 of the agreement is reproduced below :-
"2. The employee admits that he has been allotted the quarter by virtue of his employment with the Company. The employee/his wife/children/dependent parents shall stop the use of the quarters within 30 days of the happening of any one or more of the following events viz :-
i) Termination of his employment by the Company.
ii) Dismissal or retirement. iii) Death of the employees. -: 6 :- [CASE NUMBER].
iv) Retrenchment or cessation of his service on any ground whatsoever.
v) Isanity, ill-health or any other cause rendering the employee unsuitable for employment with the Company.
vi) Insolvency of the employee.
vii) Any other event which would, in the opinion of the Company, be sufficient for termination of the use of the quarter by the employee under this agreement.
viii) Transfer of the employee from [ENTITY]."
[6] In evidence plaintiff [ENTITY] (PW-
1) has admitted that out of 62 employees, most of them were Supervisors and had knowledge of english. He was not aware that how much salary he was getting in the year 1981 and how much was the 10% deduction of it. He has further admitted that up to 1995 all the houses were repaired by the defendants and the payments were made by the Company.
[7] That in some time in the year 1992 a dispute arose between the defendant Nos.1 and 2 with M. P. Housing Board and the writ petition was filed. In the said writ petition as many as 62 employees who were allotted the said L.I.G. Houses in Jawahar Nagar, [ENTITY] applied for intervention by way of application dated 05.10.1996 but the High Court has rejected the said application as they had no locus for intervention. By order dated 31.01.1997 their application for intervention was dismissed by the High Court on the ground that there was no agreement of contract between the applicants and the Respondents. Some of the employees were prosecuted under [SECTION] of the [ACT]. The Magistrate as well as the Sessions Judge granted them time to vacate the rented premises.
-: 7 :- [CASE NUMBER].
Thereafter they approached this Court by way of petition under [SECTION] of the [ACT]. This Court had also declined to entertain the same and dismissed the petition by order dated 04.07.2001. Thereafter they approached the Supreme Court by way of SLP and that too had been dismissed by order dated 09.07.2002. Some of the employees approached this Court by way of [CASE NUMBER] which had been dismissed as they have a remedy to approach the Civil Court.
[8] In the present case, the Civil Court as well as District Judge both have concurrently held that the plaintiff has no right to continue in the possession after retirement as the said house was allotted by virtue of his service. He has failed to prove that he purchased the said house under the hire purchase scheme. The defendant Nos.1 and 2 purchased the said house along with other houses from the M. P. Housing Board by way of registered sale-deed. The plaintiff has failed to prove that the agreement was executed by keeping him into the dark and the deductions were made from his salary for payment of the installments under the Hire Purchase Scheme.
[9] The Supreme Court in the case of [PRECEDENT] has held that the High Court cannot interfere with the conclusion of fact recorded by the Courts below, however, erroneous the said conclusion may appear. Para-11,12 & 13 of the aforesaid judgment is reproduced herein below :-
"11. On a perusal of the first judgment of the High
-: 8 :- [CASE NUMBER].
Court we are satisfied that the High Court clearly exceeded its jurisdiction under [SECTION] in reversing pure concurrent findings of fact given by the trial court and the then appellate court both on the question of title and that of adverse possession. In the case of [PRECEDENT], this Court held that the High Court had no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. In this connection this Court observed as follows:
"It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact.
As the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding. "
To the same effect is another decision of this Court in the case of [PRECEDENT], where the Court observed as follows:
"But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however, erroneous the said conclusions may appear to be to the High Court, because, as the Privy Council observed, however, gross or inexcusable the error may seem to be there is no jurisdiction under [SECTION] to correct that error."
12. The same view was taken in two earlier decisions of this Court in the cases of [PRECEDENT] and [PRECEDENT].
13. Thus, the High Court in this case had no jurisdiction after reversing the concurrent findings of fact of the Courts below on the question of adverse possession to remand the case to the Additional Judicial Commissioner on the question of title which also was concluded by the concurrent findings of fact arrived at by the two courts as indicated above."
[10] Both the Courts below did not commit error of law as well as of fact while dismissing the suit and the appeal both. Therefore, I do not find any ground and substantial question of law involved in this appeal. In view of the above, this second appeal is dismissed.
[ [ENTITY] ] JUDGE [ENTITY] AK/* Date: 2018.07.26 16:45:06 +05'30'