Allahabad High Court

Mahipal Singh And 6 Others vs M/S Agni Chemicals Pvt. Ltd. on 2 January, 2023

Bench: J.J. Munir




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6							Reserved
 

 
Case :- SECOND APPEAL No. - 402 of 2022
 

 
Appellant :- Mahipal Singh And 6 Others
 
Respondent :- M/S Agni Chemicals Pvt. Ltd.
 
Counsel for Appellant :- Mr. Bhanu Bhushan Jauhari, Advocate
 
Counsel for Respondent :- Mr. Shyam Lal, Advocate
 

 
Hon'ble J.J. Munir,J.

This second appeal by the defendant arises out of a decree passed by both the Courts below decreeing a suit for possession and mesne profits.

2. Heard Mr. Bhanu Bhushan Jauhari, learned Counsel for the defendant-appellants (for short, 'the defendant') in support of the motion under Order XLI Rule 11 of the Code of Civil Procedure, 1908, and Mr. Shyam Lal, learned Counsel appearing on behalf of the sole plaintiff-respondent (for short, 'plaintiff').

3. Original Suit No. 524 of 2005 was instituted by the plaintiff, M/s. Agni Chemicals Pvt. Ltd., Swaley Nagar, Nawadiya through its Managing Director, Mahesh Agnihotri against Mahipal Singh son of Trilok Singh, seeking a decree for possession and mesne profits relating to the house, described at the foot of the plaint with reference to its boundaries. The said house is also shown in the plaint map in red colour. The said house will be called 'the suit property'.

4. It is the plaintiff's case that the defendant was a Chowkidar with the plaintiff up to 31.03.2001. During this period of time, the plaintiff provided the defendant with a tin-shed worked house in order to facilitate the defendant in the discharge of his duties. Thus, the defendant holds the suit property as a licensee. Before the defendant was licensed the suit property, his father Trilok Singh was in the plaintiff's employ. He too had been given the suit property on a license as part of his service facility. After the defendant's father passed away, the suit property was given to the defendant on a mere licence during the period of his service. On 31.03.2001, the defendant left the Company's service. However, he did not vacate the suit property.

5. It is the plaintiff's case that the defendant ought to have handed over possession of the licensed property, because it was with him as part of his terms and conditions of service. The defendant was asked repeatedly to deliver up possession of the suit property, but he did not. The defendant turned dishonest and wants to usurp the suit property. He reared a number of cattle heads utilizing the suit property, and started off a venture in the supply of milk. Whenever the plaintiff would ask of the defendant to vacate the suit property, the defendant and his relatives would turn belligerent.

6. In order to usurp the suit property, the defendant claimed it to be his own and instituted O.S. No. 313 of 2002 against Mahesh Agnihotri, the Managing Director of the plaintiff, seeking a permanent injunction restraining Mahesh Agnihotri from interfering with the defendant's possession over the suit property. O.S. No. 313 of 2002, after trial, was decreed for the relief that the plaintiff in that suit, that is to say, the defendant here, shall not be dispossessed, except in accordance with law. The suit property was adjudged to be the plaintiff's property and, therefore, relief to the defendant was not given in that suit on the basis of his title; his possession alone was protected against an act of forcible dispossession. The plaintiff, accordingly, caused a notice dated 24.05.2005 to be served through registered post upon the defendant, terminating his license. The defendant still did not vacate.

7. It is in these circumstances that the present suit for possession has been brought against the defendant after revocation of his license and also for recovery of mesne profits to the tune of Rs. 36,000/- claimed for period of three years, besides mesne profits pendente lite at the rate of Rs. 1000/- per month.

8. The defendant contested the suit and filed a written statement denying the plaint allegations. It was the defendant's case that the plaintiff is not a Private Limited Company. The company, which has been described in the plaint, has been wound up a long time ago. The plaintiff has no right to institute the suit. The defendant is owner in possession of the suit property, which is a house admeasuring 130 square yards, situate at Swaley Nagar, Nawadiya. The suit property has been inherited by the defendant from his father, Trilok Singh. The defendant's father lived in the said property, which was a kachcha house with a thatched roof along with his family. The plaintiff or his father never interfered with the defendant's possession or that of his children. The defendant's father passed away about 20 years ago. The defendant is still residing in the suit property. He has a ration card and a Voter ID, disclosing his address to be that of the suit property. The plaintiff has no right, title or interest in the suit property. The defendant had instituted O.S. No. 313 of 2002 against Mahesh Agnihotri, which was decreed on 30.04.2005. Agnihotri had appealed the said decree vide Civil Appeal No. 28 of 2005, which is pending. The defendant was never employed as a Chowkidar in the plaintiff's establishment nor has the plaintiff ever licensed the suit property or any other property to him. The plaintiff never served upon the defendant any notice, asking him to vacate the house.

9. An additional written statement was filed by the defendant, where it was averred that the plaintiff's appeal against the decree dated 30.04.2005 passed in O.S. No. 313 of 2002 had been dismissed. It was also averred in the additional written statement that there is no company by the name, M/s. Agni Chemicals Pvt. Ltd. nor Mahesh Agnihotri its Managing Director. It is averred in the additional written statement that the land, whereon the suit property stands and its surrounding land has a number of tenants in occupation, with whom litigation is pending. It is averred that this property was purchased by Mahesh Agnihotri's father. He plotted the entire land and sold it to different persons, charging price as he wished. Mahesh Agnihotri's brother Ramesh Agnihotri is already dead, who has his own successors and LRs, all of whom ought to have been impleaded in this suit. A plea of non-joinder has, thus, been raised. It is also the defendant's case in the additional written statement that the defendant is in occupation of the suit property for the past 45 years, without any demur or objection by the plaintiff or his father. It is then averred that the plaintiff has no interest in the suit property, entitling him to relief.

10. On the pleadings of parties, the following issues have been framed (translated into English from Hindi):

"1. Whether the plaintiff is the owner of the house in dispute?

2. Whether the defendant is in wrongful occupation of the house in dispute for the past 3 years, entitling the plaintiff to recover Rs.36,000/- as mesne profits?

3. Whether the plaintiff is entitled to recover Rs. 1000/- per month as mesne profits?

4. Whether the suit is undervalued and the court-fee paid insufficient?

5. Whether the suit is barred by the provisions of Order VII Rule 11 CPC?

6. Whether the plaintiff has no right to sue?

7. Whether the suit is barred by time?

8. Whether the suit is bad for non-joinder of necessary parties?

9. Whether the plaintiff is entitled to the relief claimed?"

11. The parties have led documentary evidence and the plaintiff has led oral evidence too, which has been summarized in the judgments of the Courts below. It need not be recapitulated here.

12. Mr. Bhanu Bhushan Jauhari, learned Counsel for the defendant has argued that the Courts below have held that the decision in O.S. No. 313 of 2002 operates as res judicata in the present suit, which is erroneous for more than one reason. He submits that the former suit was instituted by the defendant against Mahesh Agnihotri in his personal capacity, whereas the present suit has been instituted by a body corporate, M/s. Agni Chemicals Pvt. Ltd. through its Managing Director, Mahesh Agnihotri. The submission, therefore, is that the parties to the suit are not the same so as to attract the bar of res judicata based on the findings recorded in the former suit.

13. It is next submitted on the strength of a Division Bench decision of this Court in Sri Pal and others v. Swami Nath and others, AIR 1968 All 282 to the effect that a mere finding in a suit recorded against a party would not operate as res judicata, where the decree has been passed in his favour. It has been urged that the reason is that no appeal can be preferred from a mere finding by the party who has got the decree with an adverse finding on some issue.

14. So far as the second submission of Mr. Johari is concerned, the same is stated to be rejected. The reason is that the decree in O.S. No. 313 of 2002 did not go entirely in the defendant's favour. Rather, the defendant's case for a permanent injunction based on title was not accepted. To the contrary, the plaintiff's title was accepted in the former suit with settled possession for the defendant. It is on this ground that the defendant was not granted an injunction perpetually protecting his possession against the plaintiff, but an injunction forbearing the plaintiff from dispossessing the defendant otherwise than in due course of law. The defendant could have appealed from the part of the decree passed in O.S. No. 313 of 2002 that did not accept and protect his claimed title. But, he did not. Therefore, the principle that excludes the operation of an adverse finding as res judicata in a subsequent suit, where the decree has gone entirely in favour of the party against whom that finding has been recorded, would not apply in this case.

15. There could be some substance in Mr. Jauhari's submission that parties to the two suits are not the same, inasmuch in the former suit, Mahesh Agnihotri has been impleaded as a party defendant in his personal capacity, whereas the present suit has been brought by him on behalf of a body corporate, that is to say, M/s. Agni Chemicals Pvt. Ltd., acting as its Managing Director. But, this question is of little consequence for another reason.

16. The Lower Appellate Court has recorded a categorical finding based on two admissions made by the defendant: one in Paragraph No. 5 of the additional written statement and the other, in Paragraph No. 2 of the defendant's affidavit filed in lieu of his examination-in-chief, paper No. 42-Ga. In Paragraph No. 5 of the additional written statement, the defendant has admitted that the suit property, which seems to bear reference to a larger tract of adjoining land has a number of tenants with whom litigation is going on. The suit property, where again there appears to be reference to a larger tract of land, was purchased by Mahesh Agnihotri's father. No doubt, this part of the admission is followed by an assertion that Mahesh Agnihotri is carving out plots in the said land, transferring these to third parties for price according to his wish.

17. In substance, the first part of Paragraph No. 5 of the additional written statement carries a categorical admission to the effect that the suit property is part of an apparently larger tract of land, that was purchased by Mahesh Agnihotri's father. The defendant has, thus, clearly admitted the plaintiff's title. The Lower Appellate Court has specifically recorded a finding of fact, based on the admission aforesaid, regarding title in the plaintiff's favour. Likewise, in Paragraph No. 2 of the affidavit, paper No. 49-Ga, there is an admission by the defendant about the plaintiff's title in the following words:

"2- .........श्री अग्निहोत्री कभी इस कम्पनी के डायरेक्टर नहीं थे ना हैं और यह कम्पनी विधि की दृष्टि मे मान्य नही है कम्पनी की सम्पत्ति महेश अग्निहोत्री के पिता रामस्वरूप अग्निहोत्री ने खरीदी थी यह संयुक्त हिन्दू परिवार की सम्पत्ति है और राम स्वरूप के समस्त वालिकान व पक्षकार होना न्यायोचित है। ........."

(emphasis by Court)

18. The Courts below, particularly, the Lower Appellate Court has also taken into account the aforesaid admission in the defendant's affidavit filed in Court in lieu of his examination-in-chief to find title in the plaintiff's favour. So far as the findings based on admissions are concerned, a distinction has been drawn on principle between admissions in pleadings or judicial admissions that are admissible under Section 58 of the Indian Evidence Act on one hand and evidentiary admissions on the other, which are admissions made in evidence led at the trial. This distinction has been succinctly brought out and the principle enunciated in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and others, (1974) 1 SCC 242. In Nagindas Ramdas (supra), a Three Judge Bench of their Lordships of the Supreme Court held:

"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."

(emphasis by Court)

19. It is clear from the aforesaid principle that admissions made by parties or their agents in judicial proceedings, particularly pleadings, stand on a higher footing than admissions that are evidence at the trial. Here, one of the admissions is clearly in pleadings, that is to say, in Paragraph No. 5 of the written statement, which is supported by the same admission in the evidence also. There is an acknowledgment of the fact that the suit property, that has been loosely referred to as "this land" clearly means the suit property and the adjoining larger chunk of land that was purchased by Mahesh Agnihotri's father. It is not difficult to infer in substance, as the two Courts of fact below have done, that the land belongs to Mahesh Agnihotri's family, which became the Private Limited Company's holding.

20. There is ample evidence to show that the defendant is nothing more than a licensee. He and his father both occupied the suit property as licensees on account of their employment with the Company. The Courts below have held it for a fact that the plaintiff's title is proved and the defendant is clearly a licensee. The said findings are findings of fact, about which there is no perversity. Even if the finding about res judicata is kept aside, the impugned judgments are unexceptionable and merit no interference in the exercise of this Court's jurisdiction under Section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration.