State Of Andhra Pradesh vs M. Janakiramaiah
1987 Latest Caselaw 322 Del

JUDGMENT

Goswamy, J.

(1) This second appeal by the plaintiff is directed against the judgment and decree dated 4.9.1979 passed by the Additional District Judge, Delhi where by its first appeal against the dismissal of the suit was also dismissed.

(2) The case of the plaintiff as set out in the plaint is that it is having Guest House run by it at I, Ashoka Road, New Delhi. The defendant who was in the service of the Andhra Pradesh Government was transferred and posted as an Accountant at Delhi on 1.8. 1966 and was allotted Maiz Khana Mubarak which is a part of the Guest House free of rent. The defendant retired on7.3.1970. He was, however, reappointed and finally retired on 30.4.1971.A notice was given to the defendant to vacate the rent free accommodation allotted to him but he failed to vacate the premises leading to the filing of the suit.

(3) The plaintiff has also claimed possession and mesne profits.

(4) The case of the defendant as pleaded in the written statement is that the premises known as Maiz Khana Mubarak was not the property of the plaintiff as it was personally owned by his H.E.H. Nizam of Hyderabad and it does not form the property of the State. It was further 'pleaded that the accommodation was allotted to the defendant by one Mr. E. Edwards who was the then Superintendent of Hyderabad House. The defendant, however,admitted that the State Government has a Guest House at I, Ashoka Road and that he was an employee of the plaintiff and had worked as Accountant and retired on 7.3.1970. The plaintiff filed its replication and controverter c in the written statement. The pleas in the plaint, were reiterated.

(5) On the pleadings of the parties, the learned trial Judge framed the following issues:

1. Whether the plaintiff is the owner of the disputed premises andthe suit has been filed by a competent person ? OPP.2. Whether the plaintiff is entitled to any arrears of rent ordamages, if any, to what extent ? OPP.3. Whether the plaintiff's entitled to the possession of the disputed premises ? OPP.4. Relief.

(6) The learned trial Judge on issue No. 1 found that the suit had been filed by a competent person but the plaintiff had failed to prove its ownership of the disputed premises. Issues Nos. 2 and 3 were left undecided in view of the findings recorded under issue No. 1. Consequently, the suit was dismissed.

(7) The State of Andhra Pradesh filed an appeal against the judgment and decree of the trial Court. The appeal was heard by the Additional District Judge who agreed with the findings recorded by the learned trial Judge on issue No. 1 and as a result dismissed the appeal. The State of Andhra Pradesh has preferred this second appeal in this Court. Along with the appeal, an application under order 41 rule 27 of the Code of Civil Procedure was alsofiled. The admitted facts are that on 25.1.1950. there was an agreement between the Governor General of India and his H.E.H., Nizam Hyderabad and the said agreement is Ex. P.7. Article 2 of the said agreement which is relevant c purpose of this is, as follows :- "ART.II (1) His Exalted Highness the Nizam of Hyderabad shall been titled to the full ownership, use and enjoyment of all the jewels,jewellery, ornaments, shares securities and other private properties,moveable as well as immoveable (as distinct from State properties)belonging to him on the date of this Agreement.(2) His Exalted Highness the Nizam of Hyderabad has furnished to the Government of India lists of all the moveable and immoveable properties held by him as such private properties."

(8) In order to prove issue No. 1, the plaintiff examined Mr. N.N. Chibber,Officer-in-charge, Andhra Pradesh Guest House as PWI. He proved the authority of the Special Commissioner to institute the suit. It is not necessary to deal further with this question as the finding is in favor of the plaintiff and has not been challenged, either in the first appeal or in the second appeal before me. As regards the ownership of the disputed accommodation, hed eposed that the defendant was transferred to Delhi on 1.8.1966. The disputed accommodation was given to the defendant for his residence and was allottement free. The defendant retired w.e.f. 8.3.1970 but he continued to work till the after-noon of 1.5.1971 when another employee in his place was posted. He also proved the agreement executed between the Government of India andthe Nizam Hyderabad which is Ex.P.7. He also filed a copy of the inventory of the private properties of the ruler of Hyderabad which is Ex.P.8. Hedeposed that the suit property does not form part of the private properties of the ruler of Hyderabad and as such it was to be considered to be the property of the State Government under the agreement. In cross-examination,he admitted that there was no specific order of allotment of the disputedpremises in favor of the defendant but this was a rent free c for the Accountant and all previous Accountants had occupied the saidpremises. On the posting of the defendant, the accommodation was allotted to him. The accommodation was to be treated as rent free' accommodation. He further deposed that the disputed accommodation is a part of the Guest Houseused for residential quarters of the Staff of the Andhra Pradesh Government.He admitted that there were six other parts of the inventory since the documentEx. P.8 was Volume Vii but these six parts were not relevant as they related to other sets of properties and had nothing to do with the property belonging to the Nizam of Hyderabad.

(9) In defense, the defendant examined one shri Ghulam Dastgir Khan asDW1 and himself as DW2 DW1 deposed that the property in dispute where the defendant was residing is a part of the property belonging to Nizam of Hyderabad in his personal capacity and not as ruler of Hyderabad. In cross-examination, he admitted that I, Ashoka Road is the Hyderabad House and a State Guest House of the Andhra Pradesh Government. He also admitted thatI, Ashoka Road belongs to the Andhra Pradesh Government after the agreement. He further admitted that the property in dispute where the defendant resides is within the compound of I, Ashoka Rood. The defendant himself appearing as DW2 deposed that I, Ashoka Road was the personal property ofthe Nizam Hyderabad and one E. Edward was looking after this property on behalf of Nizam Hyderabad inl966. The said Mr. Edward was kind to thedefendant and he permitted the defendant to occupy the property. Since then has been continuously occupying the property without payment of any rent to anybody. In cross-examination, he denied the suggestion that Mr. Edward had permitted him to occupy the suit property in capacity being an officer of the Andhra Pradesh Government. He, however, admitted that Mr. Edward was Superintendent of the Hyderabad House in 1966. He also admitted that the Government of Andhra Pradesh have constructed residential quarters for the employees in the State Guest House I, Ashoka Road, New Delhi and that some of the officers and employees of the Andhra Pradesh Government have been provided with rent free accommodation in the said building. He also admitted that right from 1966 water and electricity charges were being recovered from him for use of the water and electricity and this recovery was being made by the Andhra Pradesh Government from his salary bills. He went on to say that the property belonged to Nizam Hyderabad but admitted that till that date when he was being examined no representative of Nizam of Hyderabad had come to manage the property. He also admitted that the property in dispute had no separate number and it was included in I, Ashoka Road,New Delhi.

(10) In spite of this clear evidence on record, both the courts below recorded the finding on issue No. 1 to the effect that the plaintiff had failed to prove the ownership. The main reason rather the only reason given by the two courts below is that admittedly the inventory filed by the Platintiffis volume Vii and there is no explanation as to why the remaining volumesi.e. volumes 1 to 6 were not filed. The courts were of the opinion that it maybe that' certain other properties belonging personally to the Nizam ofHyderabad are mentioned in volumes 1 to 6. They, however, completely overlooked the statement of PW1 to the effect that volumes 1 to 6 were not relevant as the entire property of Nizam Hyderabad was contained in volume Vii only.(11) However, to get rid of this objection, the plaintiff filed anapplication under 0. 41, R. 27 of the Code of Civil Procedure for additional evidence.The application was allowed by the learned Single Judge of this Court by order dated 14.9.1984 and the plaintiff-appellant was permitted to produce volumes I to Vi containing the inventories of private properties. The appellant was directed to summon witness to produce the six volumes on 24.9.1984.Consequently, the appellant summoned S. Narender Singh Minocha, Desk Officer in the Ministry of Home Affairs, New Delhi with the relevantdocuments. He was examined by this Court on 24/09/1984. Hedeposed to the effect that he was dealing with the files pertaining to private properties of Nizam Hyderabad and he had brought with him volumes Ito Vi containing the inventory of private properties of the rulers. He statedthat volume I contains the inventory of private properties of the ruler of Banganapalee (A.P.). Volume Ii contains the inventory of private propertiesof his Highness Nawab of Bhupal. Volume Iii contains the inventory of private properties of the rules of states merged in Bihar, Volume Iv contains the inventory of private properties of the rulers merged in Bombay. Volume Contains the inventory of private properties of the rules of Cooch Vihar, West Bengal and volume Vi contains the inventory of the rulers of states merged in Himachal Pradesh. He also produced volume Vii containing the inventoryof private properties of the ruler of Hyderabad. These seven volumes were exhibited as Ex. X/l to Ex. X/7 respectively.

(12) After the aforesaid evidence was recorded, the defendant having found that he had no legs to stand, arrived at a settlement with the State of Andhra Pradesh. Consequently, the statement of the respondent as also of the Advocate of the appellant were recorded. The respondent agreed that a decree as claimed for possession and mesne profits be passed but if he delivers possession of the premises in dispute to the State of Andhra Pradesh on or before the 31st day of December. 1984, the decree for mesne profits will be deemed to have been statisfied. On considering the financial position ofthe respondent, the appellant agreed to the statement made by the respondent.Consequently, the decree for possession and mesne profits was passed by a learned Judge of this court on 26/09/1984 and in terms of the statement between the parties.

(13) In spite of the compromise having been arrived at between theparties, the respondent challenged the decree before the Supreme Court. The settlement was set aside by the Supreme Court and the case was remanded back to this Court for decision in accordance with law ignoring the compromise. Thereafter the appeal came up for hearing before this Court on several occasions but had to be adjourned on the request of the respondent on various grounds. Finally, it was heard on 26.3.1987 by me and the pronouncement of judgment was kept under abeyance at the request of the counsel for the respondent on the ground that the respondent may agree to settlement. However, later I was informed by the learned counsel that there was no settlement.

(14) I have looked into the entire record and have also heard the learned counsel for the parties. Prima facie the question to be decided seems to be question of fact but I find that the findings are based on misreading of documents and the oral evidence. The learned trial Judge as also the lower appellate court decided issue No. 1 against the plaintiff only on the ground that the plaintiff had failed to produce volumes I to Vi which contain the private properties of the rulers and it may be that some further property ofthe ruler of Hyderabad was mentioned in these volumes. The learned Add].District Judge also observed in the judgment that from the evidence ofDWs. 1 and 2 it appears that the property in dispute was given to the respondent by one Mr. E. Edward who was an employee of the Nizam Hyderabad and was Superintendent of Hyderabad House.

(15) After giving my careful consideration, I am of the opinion thatthe evidence on record has been misread inasmuch as PW1 has specifically stated that the entire private property of the Nizam Hyderabad is Containedin volume Vii and volumes I to Vi are irrelevant for the purpose of the properties of the Nizam Hyderabad. As regards the statement of DW1hedoes not even mention the name of E. Edward and has categorically admitted that at I, Ashoka Road there is a State Guest House of the Andhra PradeshGovt. He also admitted that I, Ashoka Road Hyderabad House and theproperty in dispute where the respondent is residing is situated within the compound of the said building. Even the respondent as DW2 has admitted thatMr. E.Edward was a Superintendent of the Hyderabad House in 1966. The Hyderabad House admittedly belongs to the State of Andhra Pradesh and as such Mr. Edward was an employee of the Andhra Pradesh Government.The respondent also admitted that the Andhra Pradesh Government has constructed residential quarters for its employees the said Guest House situated at I, Ashoka Road, New Delhi and the Officers and the employees of the Andhra Pradesh Government are residing in those premises. Hefurther admitted that electricity and water charges for the premises in disputewere being recovered from him by the State of Andhra Pradesh.

(16) In any case even if there was any doubt, the same stands removed after the application under Order 41 Rule 27 of the Code of Civil Procedure was allowed and by way of additional evidence, the remaining six volumes ofthe property were proved and placed on record. The additional evidence proves beyond any doubt that the private property of Nizam of Hyderabad is contained only in volume Vii and the property in question does not form part of the same. Therefore, I have no hesitation in deciding issue No. 1in favor of the plaintiff and against the defendant.

(17) Issue No. 2: The case of the plaintiff-appellant in the plaint is that the defendant is liable to pay rent from 1.5.1971. to 31.1.1971 at the rate of Rs. 90.00 per month, which is the standard rent payable in respect of the suit premises. With effect from 1.8.1971, the defendant is liable to pay damages at the rate of Rs. 290.00 per month which is the penal rent payable by the defendant in accordance with the existing rules. In the written statement,no dispute regarding this calculation has been raised and this plea has only been denied on the ground that since the plaintiff is not owner of the property,the question of payment of the rent, does not arise. In order to prove thisissue, the plaintiff-appellant examined PW1, who deposed that the standard rent of the disputed accommodation is Rs. 90.00 per month and the penal rent is Rs. 290.00 per month. He further deposed that the standard rent and the Penal rent have been fixed on the basis of calculations, taking into consideration, the constructions by the Engineer namely Shri Chari. The calculations made by the Engineer, which are Ex. P. 5 and Ex. P.6 have also been proved by the said witness. Not only that there is no evidence in rebuttal, the defendant has not even cross-examined the plaintiff on this aspect of his statement. I have looked into the calculations and I do not find any error in the same. Inany case, taking into consideration, the construction and the location of thepremises, the damages claimed, cannot be considered to be excessive.

(18) For the reasons recorded above, the appeal is allowed and thejudgment and decree dated 4.9.1979 passed by the Additional District Judge and dt. 30.11.1978 passed by the Sub-ordinate Judge 1st Class are set aside.Consequently, I pass a decree for possession of the suit premises in favor ofthe plaintiff-appellant and against the defendant. A decree for a sum ofRs. 6070.00 as arrears of rent and/or damages for use and occupation for the period 1.5.1971 to 31.7.1973 is passed in favor of the plaintiff and against the defendant. A further decree for future damages at the rate of Rs. 290.00per month from the date of the institution of the suit till recovery of possession is also passed in favor of the plaintiff-appellant and against the defendant. However, considering the circumstances of the case, I leave the parties to bear their own costs.