Bashir Mohd. S/O Ibrahim vs Regional Manager, Rajasthan ...
2021 Latest Caselaw 1597 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 64/2019

       Bashir Mohd. S/o Ibrahim, R/o Baharli Bundi, District
       Bundi (Raj.) Since Deceased Through-
1/1    Smt. Sultana Begam Widow Of Bashir Mohd, R/o Baharli
       Bundi, District Bundi (Raj.).
1/2    Shehzad Begam D/o Bashir Mohd, R/o Baharli Bundi,
       District Bundi (Raj.).
1/3    Shamin Begam D/o Bashir Mohd, R/o Baharli Bundi,
       District Bundi (Raj.).
1/4    Nasim Bano D/o Bashir Mohd, R/o Baharli Bundi, District
       Bundi (Raj.).
1/5    Nazma D/o Bashir Mohd, R/o Baharli Bundi, District Bundi
       (Raj.).
1/6    Aaysha Begam D/o Bashir Mohd, R/o Baharli Bundi,
       District Bundi (Raj.).
1/7    Rubina D/o Bashir Mohd, R/o Baharli Bundi, District Bundi
       (Raj.).
1/8    Mumtaz D/o Bashir Mohd, R/o Baharli Bundi, District
       Bundi (Raj.).
1/9    Nasir Khan S/o Bashir Khan, R/o Baharli Bundi, District
       Bundi (Raj.).
1/10   Tikka Khan S/o Bashir Mohd, R/o Baharli Bundi, District
       Bundi (Raj.).
1/11   Yahiya Khan S/o Bashir Khan, R/o Baharli Bundi, District
       Bundi (Raj.).
                                                         ----Plaintiff-Appellants
                                    Versus
1.     Regional       Manager,           Rajasthan               State   Industrial
       Development          And        Investment            Corporation      Ltd.,
       Indraprastha Industrial Area, Kota (Raj.)
2.     Managar, RIMDC Ltd., Jaipur Udyog Bhawan, Tilak Marg,
       Jaipur (Raj.).
3.     Assistant Resident Engineer, REMDC Ltd. Indraprastha
       Industrial Area, Kota (Raj.).
4.     Assistant Resident Engineer, RIMDC Ltd., Nainwa Road,
       Bundi (Raj.).

                     (Downloaded on 17/02/2021 at 11:48:43 PM)
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5.     Narendra Gupta S/o Chandmal, R/o New Colony, Kota
       Road, Bundi (Raj.).
                                                 ----Defendant-Respondents

Connected With S.B. Civil Second Appeal No. 143/2019 Bashir Mohd. S/o Ibrahim, R/o Baharlibundi, District Bundi (Raj) Since Deceased Through:

1/1 Smt. Sultana Begam Widow Of Bashir Mohd., R/o Baharlibundi, District Bundi (Raj) 1/2 Shehzad Begam D/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj) 1/3 Shamim Begam D/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj) 1/4 Nasim Bano D/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj) 1/5 Nazma D/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj) 1/6 Aaysha Begam D/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj) 1/7 Rubina D/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj) 1/8 Mumtaz D/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj) 1/9 Nasir Khan S/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj) 1/10 Tikka Khan S/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj) 1/11 Yahiya Khan S/o Bashir Mohd, R/o Baharlibundi, District Bundi (Raj)

----Plaintiff-Appellants Versus

1. Regional Manager, Rajasthan State Industrial Development And Investment Corporation Ltd., Indraprastha Industrial Area, Kota (Raj)

2. Manager, RIMDC Ltd., Jaipur Udyog Bhawan, Tilak Marg, Jaipur (Raj)

3. Assistant Resident Engineer, RIMDC Ltd., Indraprastha Industrial Area, Kota (Raj)

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4. Assistant Resident Engineer, RIMDC Ltd., Nainwa Road, Bundi (Raj)

5. Narendra Gupta S/o Chandmal, Resident Of New Colony, Kota Road, Bundi (Raj)

----Defendant-Respondents

For Appellant(s) : Mr. Rajendra Prasad, Sr. Advocate assisted by Mr. Madhusudan, Adv.

For Respondent(s) : Mr. R.K. Agrawal, Sr. Advocate assisted by Mr. Mamun Khalid, Adv.

HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

Judgment

Date of Pronouncement ::: February 15th, 2021

Since both the second appeals arise out of common

judgments and decrees passed by the Courts below, hence same

are being decided by a common Judgment.

The plaintiffs appellants by filing second Appeal No.

64/2019 have challenged the impugned judgment and decree

dated 08.01.2019 passed by the Court of Additional District Judge

No.1 Bundi (Raj.) [for short 'the First Appellate Court'] in civil

Appeal No. 02/2011 (CIS No. 59/2014) whereby the first appellate

court dismissed the appeal filed by the plaintiffs appellants and

partly maintained the judgment and decree dated 20.11.2006

passed by the Court of Additional Civil Judge (Jr. Division) No. 2,

Bundi [for short 'the trial Court'] in Civil Suit No. 21/2000

(19/1989) and quashed the judgment and decree passed by the

trial court qua issue No.2(a).

By filing Civil Second Appeal No. 143/2019 the plaintiffs

appellants have challenged the judgment and decree dated

08.01.2019 passed by the Court of Additional District Judge No. 1,

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Bundi (Raj.) [for short 'the First Appellate Court'] in Civil Appeal

No. 02/2011 (CIS No. 59/2014) whereby the First Appellate Court

while allowing the cross appeal No. 30/2001 filed by the

respondent No. 5 against the judgment & decree dated

20.11.2006 passed by the Court of Additional Civil Judge (Jr.

Division) No.2, Bundi with regard to issue No. 2(a) and 6 directed

the present appellants to handover the possession of the plot

within a period of one month and also to make payment of Rs.

2,000/- as compensation to the defendant No.5.

Facts of the case in nutshell are that the plaintiff filed a

civil suit on 04.02.1989 before the Additional Civil Judge No. 2

which was registered at No. 21/2000 (19/1989) against the

defendants No.1 to 4-RIICO and defendant No.5- Mr. Narendra

Gupta for declaration as well as permanent and mandatory

injunction with the averments that he was allotted a plot bearing

No. 26 by the RIICO on 08.07.1975 in Industrial Area, Bypass

Road, Bundi ad-measuring 2975.6 sq. meters; the lease deed was

executed by the RIICO in his favour on 27.09.1975 and the

possession of the said plot was taken by him on 29.09.1975. After

the allotment of the said plot, he carried out construction on the

plot and started the mechanical work on it. The plaintiff built a tin

shed over the said plot and the other tools of the plaintiff were

also lying on the said plot for the purpose of carrying out the

mechanical work. The cause of action for the present suit arose

when defendant No. 5 Narendra Gupta came to the plot of the

plaintiff and started interfering with the possession of the plaintiff

on the basis that the said plot had been allotted to the defendant

No.5. The plaintiff further averred in the suit that the plot No. 26

was never cancelled by the RIICO nor any show cause notice for

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cancellation of the said plot was given to him by the RIICO and

that RIICO never took possession of the said plot from him.

Therefore, the defendant No.5 had no right to interfere the

plaintiff from carrying out the work over the said plot. Accordingly,

the plaintiff sought a declaration to declare him as the leaseholder

of the said plot No. 26 and in case the defendant Nos. 1 to 4 have

cancelled the allotment then the same may be set aside and any

allotment made in favour of the defendant No.5 may also be set

aside.

Defendants-respondents No.1 to 4 did not file any

written statement of denial. However, the defendant No.5 filed

written statement of denial alleging therein that the allotment of

the plot made in favour of the plaintiff was cancelled by the RIICO

in the year 1979 as the plaintiff allegedly could not fulfill the terms

and conditions of the lease. After the cancellation of the said plot,

the same was allotted to the defendant No.5 by the RIICO on

20.12.1988 and the possession of the said plot was stated to be

with the defendant No.5. The defendant No.5 further alleged that

the plaintiff constructed a small room just before filing of the civil

suit. In the written statement, the defendant No.5 additionally

submitted that the valuation of the said plot has not been done

properly and the required Court fee was not paid by the plaintiff.

On the basis of pleadings of both the parties, the Court

below framed seven issues.

The plaintiff to support his case examined four

witnesses and got exhibited four documents. The defendant No.5

to prove his case got recorded statements of five witnesses and

exhibited ten documents. The Court below vide its judgment and

decree dated 08.09.2000 dismissed the suit filed by the plaintiff

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by awarding compensation of Rs. 2,000/- to the defendant No.5.

The plaintiff aggrieved and dissatisfied with the judgment and

decree dated 08.09.2000 passed by the court below preferred an

appeal before the First Appellate Court. The First Appellate Court

while allowing the appeal vide its judgment and decree dated

05.08.2006 remanded the matter to the trial Court for deciding

issues No. (i) and (ii) afresh after hearing both the parties.

After remand by the First Appellate Court, the trial

Court further on the basis of pleadings of both the parties framed

issues No. 1(a) and 2(a). The trial Court vide its judgment and

decree dated 20.11.2006 dismissed the suit filed by the plaintiff.

After dismissal of the suit by the trial Court, sole

plaintiff appellant Bashir Mohd. died and his legal heirs were taken

on record who filed first appeal No. 2/2011 before the First

Appellate Court. The First Appellate Court vide its impugned

judgment and decree dated 08.01.2019 dismissed the first appeal

filed by the plaintiffs affirming the judgment and decree passed by

the trial Court. The plaintiffs/appellants aggrieved with the

findings recorded by the first appellate court preferred two

separate appeals before this Court.

Arguments in Appeal No.64/2019:

Learned Senior counsel for the plaintiffs/ appellants

argued that both the Courts below committed an error in deciding

issue No. 2 against the plaintiffs. The cancellation of the plot of

the plaintiff was absolutely contrary to the principle of natural

justice. Admittedly, before cancellation, neither any show cause

notice was issued to the plaintiff nor an opportunity of hearing was

afforded to the plaintiff by the RIICO. It is a settled law that the

instrumentality of State is required to act in a just and fair

(7 of 13) [CSA-64/2019]

manner. In the present case, the RIICO straight away passed an

order of cancellation of the lease deed behind the back of the

plaintiff in violation of the principle of natural justice and the

cancellation order was also not served upon the plaintiff. Thus, the

order of cancellation of the lease deed is absolutely contrary to the

principle of natural justice and the same is illegal and arbitrary.

Learned counsel further argued that both the Courts below have

committed an error in considering the fact that the show cause

notice/cancellation order was never served upon the plaintiff. The

presumption of service upon the plaintiff in the present case is

absolutely contrary to law. Both the Courts below failed to

consider that the possession of the said plot was handed over to

the plaintiff at the time of execution of the lease deed dated

29.09.1975. The First Appellate Court in its impugned order has

wrongly observed that the Court under Section 151 CPC can issue

such directions. The finding of the First Appellate Court that the

possession can be directed to be handed over to the defendant

No.5 under Section 151 CPC even without there being any counter

claim by the defendant No.5, is contrary to law. Both the Courts

below committed an error in considering the statement of PW-5,

Mr. K.R. Gupta. Both the Courts below erred in drawing wrong

inference of the letter (Ex. A-6) written by plaintiff to the RIICO.

The First Appellate Court committed gross error of law in

overlooking the objection raised by the plaintiff and also in holding

that the cancellation of allotment was rightly made by the RIICO,

as the plaintiff was not able to carry out the required construction.

Therefore, there was no occasion for the Courts below to draw an

inference that the defendant No. 5 was having the possession and

he was dispossessed by the plaintiff illegally.

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Arguments in appeal No. 143/2019:

Learned Senior counsel for the plaintiff appellants

argued that both the Courts below have failed to consider that no

counter claim was filed by the defendant No.5 in the present case.

The defendant No.5 in the suit filed by the plaintiff cannot seek

dispossession of the plaintiff from the plot without there being any

counter claim filed by the defendant No.5. Thus, the First

Appellate Court committed an error in directing the plaintiff to

handover the possession. The First Appellate Court committed an

error in reversing the finding of the trial Court qua issue No.2(a).

The powers under Section 151 CPC cannot be exercised by the

Court for passing an order or direction, which is absolutely

contrary to the provisions of CPC. The plaintiff cannot be directed

to be dispossessed from the plot in question in the suit filed by the

plaintiff himself. The finding of the First Appellate Court that the

possession can be directed to be handed over to the defendant

No.5 under Section 151 CPC even without there being any counter

claim by the defendant No.5, is contrary to law. The First

Appellate Court committed an error in allowing the cross appeal

filed by the defendant No.5. Both the Courts below committed an

error in considering the evidence of PW-5, Mr. K.R.Gupta. The

First Appellate Court failed to consider that the cancellation of the

registered lease deed by the defendants No. 1 to 4 was illegal, as

the registered lease deed could only be cancelled by the decree of

competent Civil Court.

In support of his submissions, learned Senior counsel

has placed reliance upon following judgments:-

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1. Anukampa Avas Vikas Pvt. Ltd. and Ors. vs. State of Rajasthan and Ors. Reported in RLW 2009 (3) Raj. 2295;

2. ITC Ltd. vs. State of Uttar Pradesh and Ors. Reported in AIR2012 SC 1820;

3. Pradeep Chimanajirao Rane vs. Chandrakant Raghunath More reported in 2013 SCC OnLine Bom 1719;

4. Nanasaheb S/o Sakharam Bhalekar vs. Dattu S/o Dhondiba Bhalekar and Ors. Reported in 1990 SCC OnLine Bom 370;

5. M/s. Karm Bhoomi Estates v. Raj. State Industrial Development & Investment Corporation Ltd., decided on February 3, 2015; and

6. S.B. Civil Writ Petition No. 3413/2014, K.K. Velusamy vs. N. Palanisamy reported in (2011) 11 SCC 275.

Learned Senior counsel for the defendants / respondents opposed the submissions advanced by the learned counsel for the plaintiffs/ appellants and supported the judgment and decree passed by the first appellate court. In support of his submissions, learned counsel has placed reliance upon following judgments:-

1. South Eastern Coalfields Ltd. vs. State of M.P. and Ors. Reported in (2003) 8 SCC 648;

2. Amarjeet Singh vs. Devi Ratan reported in (2010) 1 SCC 417; and

3. S.B. Civil First Appeal No. 86/1979, Pt. Bansidhar Sharma Devagya (since deceased) through LRs Vijay Kumar Sharma & Ors. vs. The State of Rajasthan and Ors. Decided on 20.04.2018.

I have heard learned counsel appearing for the

respective parties, perused the impugned judgments passed by

the courts below and carefully scanned and scrutinized the entire

material made available to the Court.

Both the courts below decided issue Nos. 1 & 2 against

the appellant/plaintiff and held that the allotment of the plot had

been cancelled by the RIICO in the year 1979. With regard to

issue No.3, both the courts below held that the plaintiff had

possession on the said plot just before filing of the suit. Initially,

the trial court in exercise of its powers under section 151 CPC

directed to remove the construction of the said plot within a period

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of one month from the date of the order. The trial court vide its

judgment and decree dated 08.09.2000 dismissed the suit filed by

the plaintiff and awarded a compensation of Rs.2,000/- to the

defendant No.5. It is not in dispute that the plaintiff filed a civil

regular civil first appeal against the aforesaid judgment and

decree dated 8.9.2000. The First Appellate Court vide its order

dated 05.08.2006 allowed the appeal filed by the plaintiff and held

that the trial court ought to have framed the following issues,

which are ad-infra:-

1. Whether the plaintiff was entitled to get declaration from the court being a lease-holder of the said plot; ?

2. Whether the defendant No.5 could get the possession of the said plot from the plaintiff in exercise of powers under section 151 CPC ?

The trial court vide its judgment and decree dated

20.11.2006 again dismissed the suit filed by the plaintiff. However,

the issue No.2(a) was decided against the defendant No.5 and

held that the defendant No.5 cannot get the possession of the said

plot by the order of the Court in exercise of the power under

section 151 CPC. Both- the plaintiff and the defendant No.5

challenged the order of the trial court. The plaintiff filed first

appeal and the defendant No.5 also filed a cross appeal

challenging the finding of the trial court on issue No.2(a). The First

Appellate court vide its judgment dated 08.01.2019 dismissed the

first appeal filed by the plaintiffs and upheld the judgment of the

trial court dismissing the suit. The First Appellate Court allowed

the cross-appeal filed by the defendant No.5 and directed the

appellants/plaintiffs to hand over the possession of the said plot.

Both the courts below held that the allotment of the plot in

question was cancelled by the RIICO as there was breach of the

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condition of allotment by the plaintiff and the plaintiff was duly

served with the cancellation notice issued by the RIICO. Thus, the

concurrent findings recorded by both the courts below are findings

of fact which warrant no interference in both the second appeals,

by this Court.

Regarding the order of the Court below passed in

exercise of its powers under Section 151 CPC, learned counsel for

the appellants/plaintiffs submitted that the powers under Section

151 CPC cannot be invoked by the Court to pass an order or

direction for which there is separate provision under the CPC. In

the present case, there is a provision under Order 8 Rule 6A to 6G

to file counter-claim. Therefore, the Court under Section 151 CPC

cannot grant a relief which could only be granted under Order 8

Rule 6A to 6G CPC. The powers under Section 151 CPC cannot be

exercised beyond the pleadings of the parties, more-so when the

RIICO did not file any written statement.

It is pertinent to note that after remand the trial Court decided issue No.2 (a) which was framed ad-infra:-

"Whether the defendant No.5 is entitled to claim possession from the plaintiffs by the order of the Court in exercise of powers under section 151 CPC ?"

The First Appellate Court on issue No.2 (a) regarding

getting possession of the plot by the defendant No.5 by an order

of the Court in exercise of its powers under Section 151 CPC held

that the aforesaid issue has been wrongly decided by the trial

court. The First Appellate Court also directed the plaintiff to

remove the construction within a period of one month from the

date of the order and give the possession of the said land to the

defendant No.5. Thus, when in the suit plaintiff failed to establish

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lawful possession and declaration, it is not open for the

appellant/plaintiff to raise such objection that the defendants

should have filed a separate civil suit or the defendants should

have filed a counter claim seeking dispossession of the

appellant/plaintiff from the plot in question at the stage of second

appeal, where the appellant/plaintiff failed to establish lawful

possession after cancellation of the allotment on the said plot, the

allotment of the said plot made in favour the appellant /plaintiff

was cancelled by the RIICO in the year 1979. The plaintiff also

failed to carry out construction on the said plot. After cancellation

of the said plot, same was allotted to the defendant No.5 by the

RIICO on 20.12.1988 as per the rules and the lawful possession of

the said plot was proved to be with the defendant No.5.

It is pertinent to note that after cancellation, the RIICO

made allotment of the plot in favour of the defendant No.5 and

the land was never utilized by the plaintiff/appellant. The

defendant No.5 was found lawful possession holder. If such rights

of lawful possession holder are evaded, the relief can be granted

to the aggrieved party by invoking the inherent powers of the

Court under section 151 CPC. Thus, it is the duty of the Court to

pass a decree for appropriate relief and the First Appellate Court

can modify the decree of the trial court to give proper and

appropriate relief as required in the facts of the case.

In view of above, the plaintiff/appellant failed to get

himself declare the lease-holder of the plot No.26, which after

cancellation allotted to the defendant No.5 and the

plaintiff/appellant also found out of possession. Thus, no

substantial question of law is involved in these second appeals and

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the findings of fact recorded by the Court below do not warrant

any interference by this Court.

In the result, both the second appeals filed by the

appellant/plaintiff are bereft of any merit and accordingly stand

dismissed. Parties shall bear their own costs.

(GOVERDHAN BARDHAR),J

NK Sharma/43-44

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