IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1168 of 2004 Date of Decision : August 18, 2009 Rehti Devi and another .....Appellants Versus Parmod Goel and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. Vijay Singh, Advocate for Mr. Ashish Aggarwal, Advocate for the appellants. Mr. Gorakh Nath, Advocate for respondent No.1. T.P.S. MANN, J. Suit filed by Dharampal Gupta, now represented by his widow and three sons, for mandatory injunction for issuing a mandate to Parmod Goel-defendant to demolish the construction raised by him, was dismissed by learned Civil Judge (Junior Division), Karnal on December 20, 2001. The first appeal filed by the plaintiff was dismissed by learned Additional District Judge, Karnal on 5.11.2003. Aggrieved of the same, two of the legal representatives of Dharampal Gupta-plaintiff are now before this Court in a second appeal filed by them under Section 100 of the Code of Civil Procedure. According to the plaintiff, he was owner in possession over the two shops situated on the ground floor, besides the open R.S.A. No. 1168 of 2004 -2- compound situated at back of the said shops comprised in property No. 154, Sector 19, situated on G.T. Road, near Committee Chowk, Karnal. Initially, he, alongwith his father Lajja Ram, was in possession of the said property as tenant under one Nawab Mohammad Sijad Ali Khan. After the said property was declared as an evacuee property, the plaintiff, alongwith his father, continued to occupy it as tenant under the Custodian till 1958. Thereafter, it was illegally transferred in the names of Prem Parkash and four other persons. The plaintiff never admitted the title of Prem Parkash and others nor he paid any rent to them. He continued to remain in possession on the disputed property from the year 1958 and his possession was open, peaceful, hostile, uninterrupted, without payment of any rent, etc. to its recorded owner and, therefore, became owner of the said property by way of adverse possession. The defendant, who was running a shop on the northern side just adjacent to the showroom of the plaintiff, raised the construction over the open space without any right and title over the same. The plaintiff requested the defendant to admit his claim but the latter declined. Hence, the suit by him. The defendant opposed the suit by taking various preliminary objections. On merits, he admitted the possession of the plaintiff on the two shops under the name of M/s Liberty Leather Footwears. However, he himself was in possession of one showroom, one kotha and some vacant land since long and due to heavy rains, the kotha fell down. The defendant reconstructed the kotha on its original foundation and, therefore, it was wrong for the plaintiff to plead that the construction raised by him was over the land which belonged to the plaintiff. R.S.A. No. 1168 of 2004 -3- From the pleadings of the parties, the trial Court framed the following issues :- 1. Whether the plaintiff is the owner and in part possession of the property in dispute ? OPP. 2. Whether the defendant without any right or authority has forcibly and illegally raised the impugned construction shown as red in the plan attached, if so, its effect ? OPP. 3. Whether the defendant is the owner of the property over which recent constructions have been made ? OPD. 4. Whether the plaintiff has no locus standi to file and maintain the present suit ? OPD. 5. Whether the suit is not maintainable in the present form ? OPD. 6. Whether no cause of action arose in favour of the plaintiff ? OPD. 7. Whether the plaintiff has not come to the Court with clean hands, if so, its effect? OPD. 8. Whether the suit (sic) is liable to be prosecuted for contempt of Court proceedings ? OPP. 9. Relief. After hearing learned counsel for the parties and going through the evidence brought on the record, learned trial Court decided issues No.1,2 and 8 against the plaintiff and issue No.3 against the R.S.A. No. 1168 of 2004 -4- defendant. As regards issues No.4 to 7, which included issue No.4 relating to the maintainability of the suit, onus of which was on the defendant to prove, the trial Court observed that counsel for the defendant did not press those issues nor there was any evidence regarding these issues on the file. Accordingly, all these issues were decided against the defendant. As a sequel to the findings on the various issues, learned trial Court proceeded to dismiss the suit. The appeal preferred by the plaintiff through his legal representatives came to be decided by learned Additional District Judge, Karnal. Before adverting to the merits of the case, learned lower appellate Court in paras 9 and 10 of its judgment, spelt a number of reasons as to why the suit filed by the plaintiff was not maintainable. After holding so, learned lower appellate Court devoted less than 10 lines for discussing the merits of the case in respect of issues No.1 to 3 and concluded that the plaintiff had absolutely failed to show that he had acquired title to the property in question in any manner. This is clear from the reading of para 11 of the judgment passed by the learned lower appellate Court. Learned counsel for the appellants has submitted that once the defendant-respondent had not pressed issue No.4 relating to maintainability of the suit before the learned trial Court, he was debarred from raising any such argument before the learned lower appellate Court, more so, when he had not filed any appeal against the judgment of the trial Court and only the plaintiff was in the first appeal. The entire discussion by the learned lower appellate Court related to R.S.A. No. 1168 of 2004 -5- issue of maintainability, whereas the evidence and the arguments in respect of the contested issues were not considered in detail. Had the learned lower appellate Court considered issues No. 1 to 3 in detail, chances of some different result being arrived at could not be ruled out. Therefore, it was a fit case for being remanded to the learned lower appellate Court for deciding the appeal afresh in respect of issues No.1 to 3 and, that too, without permitting the defendant-respondent from arguing on the issue regarding maintainability of the suit. Learned counsel for the defendant-respondent opposed the prayer made by learned counsel for the appellants by submitting that sufficient discussion was made by the learned lower appellate Court in para 11 of its judgment regarding contested issues No.1 to 3. Learned counsel for the defendant-respondent, however, admitted that the defendant had not pressed issues No. 4 to 7, including issue No. 4 regarding maintainability of the suit before the trial Court nor led any evidence. In fact, according to him, the suit filed by the plaintiff for the grant of mandatory injunction was maintainable. On the basis of the arguments submitted by learned counsel for the parties, the substantial question of law arises as to whether the learned lower appellate Court could dismiss the suit as not maintainable despite the fact that the issue of maintainability of suit was not pressed by the defendant before the learned trial Court nor any evidence led. Also, whether the learned lower appellate Court did not consider all the evidence while deciding the contested issues No.1 to 3. R.S.A. No. 1168 of 2004 -6- The observations made by the learned trial Court regarding issues No 4 to 7 are as under :- “40. Issues No. 4 to 7 During the course of argument, learned counsel for the defendant has not pressed these issues, nor there is any evidence regarding these issues on the file. Accordingly, all these issues are decided against the defendant.” Learned lower appellate Court in paras 9 and 10 of its judgment discussed the issue of maintainability of the suit in the first instance, the stand of the defendant-respondent that the suit was not maintainable in the given form because the plaintiff was claiming title to the property in question alleging the defendant to be in unauthorized possession, having illegally made construction thereon. The discussion on issue No.4 is as under :- “9. The maintainability of the suit being the basic thing, is being discussed first. It was rightly pointed out by the counsel for the respondent that the suit was not maintainable in the given form because the plaintiff was claiming title to the property in question alleging the defendant to be in unauthorized possession, having illegally made construction thereon. In such event, the plaintiff was required to file a suit for possession. The contention of the counsel for the appellant that the plaintiff had always been the owner in possession of the property, in question and the defendant R.S.A. No. 1168 of 2004 -7- having made encroachment thereon, relief of mandatory injunction was sufficient to be sought, does not hold any ground. Once the plaintiff pleaded that the defendant had taken possession of the property by raising construction illegally and forcibly on it, he was required to seek the relief of possession by filing a suit to that effect. He could not avoid the payment of court fee and other consequences by filing a simple suit for mandatory injunction. 10. The suit is also not maintainable for other reasons because the plaintiff is not sure about the manner in which he acquired title. His pleadings regarding adverse possession are wanting in material particulars because he has not admitted any one to be the actual owner of the property against whom he was claiming adverse possession. He also did not plead as to how and when his possession became adverse. Admittedly, he entered into the property as tenant i.e. earlier his father was the tenant and then he stepped into his shoes. The tenancy was under Sijad Ali Khan and then under the custodian. According to the plaintiff himself, the property was not legally transferred to Prem Parkash etc. and reference was made by the counsel for the appellant to Ex.P.10 where it was mentioned that the property was provisionally, transferred to Prem Parkash etc. He argued that the sale was never completed. In any case all this would have no effect because if the sale was completed and transfer was made in favour R.S.A. No. 1168 of 2004 -8- of Prem Parkash etc., the plaintiff became a tenant under them automatically and if not, he continued to be a tenant under the custodian. It was also mentioned in Ex.P.10 that the tenants were required to pay the outstanding rent. All the documents placed on record by the plaintiff by way of extracts from house tax assessment registers, receipts and the letter of provisional transfer, showed that earlier his father and then he himself remained the tenant. Once a tenant, always a tenant. It was for the plaintiff to rebut the said presumption and to show that he had ceased to be tenant under the actual owner/landlord from a particular point of time and that his possession was hostile to the knowledge of that owner and to the knowledge of the entire world. He rather did not even plead as to who was the owner and, therefore, the ingredients of adverse possession were not even pleaded, what to talk of having been proved. The suit was thus even otherwise not maintainable.” In view of the fact that the issue of maintainability of suit was not pressed by the defendant before the learned trial Court nor any evidence led in that regard and the stand now taken by learned counsel for the defendant-respondent that the suit was maintainable in the given form, the aforementioned discussion by the learned lower appellate Court regarding maintainability of the suit was uncalled for. While discussing contested issues No.1 to 3, the learned lower appellate Court had only the following to observe, as mentioned R.S.A. No. 1168 of 2004 -9- in para 11 of its judgment :- “As regard the merits of the case, though the same need not be gone into in view of the above finding regarding maintainability, it may be mentioned that the plaintiff failed to prove his case because none of the documents placed on record got connected with the site in dispute. Simply because a window was stated by the draftsman to be opening towards the disputed property from the shop of the plaintiff, it would not mean that he became the owner of the property towards which the opening was there. The plaintiff absolutely failed to show that he had acquired title to the property, in question in any manner.” Learned lower appellate Court while deciding contested issues No.1 to 3 observed that none of the documents placed on record were connected with the site in dispute and mere because a window had been opened towards the disputed property from the shop of the plaintiff would not be sufficient to hold that the plaintiff had proved the case. On the other hand, the plaintiff had pleaded a number of circumstances before the learned trial Court in support of his assertions, although those circumstances failed to find favour with the learned trial Court as the suit of the plaintiff was dismissed. None of those circumstances were considered or re-appreciated by the learned lower appellate Court while deciding the appeal. In the first appeal, the learned lower appellate Court was required to appreciate the evidence once again so as to arrive at a final conclusion. In the absence of any material available in the judgment passed by the learned lower appellate Court, it cannot be said that the first appeal filed by the R.S.A. No. 1168 of 2004 -10- plaintiff had been decided by the learned lower appellate Court on merits. It is, therefore, held that the learned lower appellate Court erred in dismissing the suit as having been not maintainable when issue No.4 regarding maintainability of the suit was not pressed before the trial Court by the defendant nor any evidence led in that regard. Moreover, the entire evidence in respect of contested issues No.1 to 3 has not been appreciated by the learned lower appellate Court while dismissing the appeal of the plaintiff-appellant. Resultantly, the appeal is accepted, impugned judgment and decree passed by Additional District Judge, Karnal is set aside and the matter is remanded to the said Court for deciding the appeal afresh, especially in regard to issues No.1 to 3. While deciding so, the learned lower appellate Court shall not consider the question as to whether the suit was maintainable or not. The parties, through their counsel, shall put in appearance before the learned lower appellate Court on September 03, 2009. Before parting with the judgment, it is observed that this Court has not expressed anything on the merits of the case, especially in respect of issues No. 1 to 3. ( T.P.S. MANN ) August 18, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO