Rajasthan High Court - Jodhpur
Om Prakash And Anr vs Sriniwas And Ors on 5 February, 2022
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
.....
S.B. Civil First Appeal No. 192/2010
1. Firm Dhanraj Dev Kishan, Nokha Mandi, District Bikaner.
2. Dev Kishan son of Shri Dhanraj, by caste Chandak
Maheshwari, aged about 71 years, resident of Nokha Mandi,
Bikaner.
----Appellants/Defendants
Versus
Sriniwas son of late Shri Ramchandra, by caste Jhanwar
Maheshwari, resident of Nokha Mandi, Tehsil-Nokha, District-
Bikaner.
----Respondent/Plaintiff
Connected With
S.B. Civil First Appeal No. 197/2010
1. Firm Dhanraj Dev Kishan, Nokha Mandi, District Bikaner.
2. Dev Kishan S/o Shree Dhanraj, by caste Chandak
Maheshwari, aged about 71 years, resident of Nokha
Mandi, Bikaner.
----Appellants/Defendants
Versus
1. Sriniwas son of late Shri Ramchandra, by caste Jhanwar
Maheshwari, resident of Nokha Mandi, Tehsil-Nokha, District-
Bikaner.
----Respondent/Plaintiff
2. LRs of late Shri Hanuman Bux son of Shri Ramchandra
2/1. Smt. Kishna wife of late Shri Hanuman Bux
2/2. Bhatmal son of late Shri Hanuman Bux
2/3. Hari Kishan son of late Shri Hanuman Bux
2/4. Jai Kishan son of late Shri Hanuman Bux
2/5. Mul chand son of late Shri Hanuman Bux
2/6. Pawan Kumar son of late Shri Hanuman Bux
2/7. Smt. Santosh daughter of late Shri Hanuman Bux
2/8. Smt. Vimala daughter of late Shri Hanuman Bux
(2 of 118) [CFA-192/2010]
2/9. Smt. Nirmala daughter of late Shri Hanuman Bux
All by caste Laddha-Maheswhari, resident of Nokha Mandi,
District Bikaner.
3. Bhanwarlal son of Shri Duli Chand, by caste Baheti, resident
of Nokha Mandi, District-Bikaner.
4. Om Prakash son of Shri Dev Kishan, by caste Chandak,
resident of Nokha Mandi, District-Bikaner.
5. Smt. Sanju wife of Shri Shiv Prakash, by caste Chandak,
resident of Nokha Mandi, District-Bikaner.
-----Respondents/Defendants
....
S.B. Civil First Appeal No. 206/2010
1. Om Prakash S/o Shri Dev Kishan, aged about 47 years, B/c
Chandak, R/o Nokha Mandi, District-Bikaner.
2. Smt. Sanju wife of Shri Shiv Prakash, aged about 40 years,
by caste Chandak, R/o Nokha Mandi, Tehsil-Nokha, District-
Bikaner.
----Appellants
Versus
1. Sriniwas S/o Late Shri Ramchandra, by caste Jhanwar
Maheshwari, R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner.
2. Hanuman Bux S/o Shri Ramchand, by caste Laddha, R/o
Nokha Mandi, Tehsil-Nokha, District-Bikaner.
Since Deceased through legal representatives:-
2/1. Smt. Kishna W/o Late Hanuman Bux
2/2. Bhatmal S/o Late Hanuman Bux
2/3. Hari Kishan S/o Late Hanuman Bux
2/4. Jai Kishan S/o Late Hanuman Bux
2/5. Mool chand S/o Late Hanuman Bux
2/6. Pawan Kumar S/o Late Hanuman Bux
2/7. Santosh D/o Late Hanuman Bux
2/8. Vimala D/o Late Hanuman Bux
2/9. Nirmala D/o Late Hanuman Bux
(All are R/o Nokha Mandi, Tehsil-Nokha, District Bikaner).
3. Firm Dhanraj Dev Kishan, R/o Nokha Mandi, Tehsil-Nokha,
District-Bikaner.
(3 of 118) [CFA-192/2010]
4. Dev Kishan S/o Shri Dhanraj, by caste Chandak Maheshwari,
R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner.
5. Bhanwar Lal S/o Shri Duli Chand, by caste Baheti, R/o Nokha
Mandi, Tehsil-Nokha, District-Bikaner.
----Respondents
....
S.B. Civil First Appeal No. 240/2010
Bhanwar Lal S/o Shri Dulichand, age 50 years, by caste Baheti,
r/o Nokha Mandi, District-Bikaner.
----Appellant/Defendant
Versus
1. Sriniwas s/o Late Shri Ramchandra, by caste Jhanwar
Maheshwari, r/o Nokha Mandi, Tesil-Nokha, District-Bikaner.
2. Firm Dhanraj Dev Kishan, Nokha Mandi, District-Bikaner.
3. Dev Kishan s/o Shri Dhanraj, by caste Chandak
Maheshwari, r/o Nokha Mandi, Bikaner.
4. Hanuman Bux S/o Shri Ramchand, by caste Laddha, R/o
Nokha Mandi, Tehsil-Nokha, District-Bikaner.
Since Deceased through legal representatives:-
4/1. Smt. Kishna W/o Late Hanuman Bux
4/2. Bhatmal S/o Late Hanuman Bux
4/3. Hari Kishan S/o Late Hanuman Bux
4/4. Jai Kishan S/o Late Hanuman Bux
4/5. Mul chand S/o Late Hanuman Bux
4/6. Pawan Kumar S/o Late Hanuman Bux
4/7. Santosh D/o Late Hanuman Bux
4/8. Vimala D/o Late Hanuman Bux
4/9. Nirmala D/o Late Hanuman Bux
5. Om Prakash S/o Shri Dulichand, by caste Laddha, R/o
Nokha Mandi, Tehsil-Nokha, District-Bikaner.
6. Smt. Sanju wife of Shri Shiv Prakash, by caste Chandak,
R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner.
(All are R/o Nokha Mandi, Tehsil-Nokha, District-Bikaner).
----Respondents
(4 of 118) [CFA-192/2010]
For Appellant(s) : Mr. Manish Singhvi, Sr. Advocate
Mr. Ravi Bhansali, Sr. Advocate with
Mr. Dhanesh Saraswat
Mr. Dasit Dave (CFA No. 240/2010).
Mr. Sajjan Singh with Mr. Prashant
Tatia (CFA Nos. 192/2020 &
197/2010).
Mr. Manoj Bhandari with Mr. Prateek
Surana (CFA No. 206/2010).
For Respondent(s) : Mr. R.K. Thanvi, Sr. Advocate with
Mr. Narendra Thanvi &
Mr. Mahendra Thanvi.
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Judgment
Reserved on :: 24/11/2021
Pronounced on :: 05/02/2022
Civil First Appeal No. 192/2010 titled as "Firm Dhanraj Dev
Kishan & Anr. Vs. Sriniwas" has been filed by the
appellants/defendants against the judgment & decree dated
26.03.2010 passed by the Additional District Judge (Fast Track)
No.3, Bikaner in Civil Original Suit No. 54/2005 titled as "Sriniwas
Vs. Firm Dhanraj Dev Kishan & Anr." whereby, the suit has been
decreed and the defendants were directed to hand over the
possession of the shop in question to the plaintiff (Sriniwas).
Civil First Appeal No. 197/2010 titled as "Firm Dhanraj Dev
Kishan & Anr. Vs. Sriniwas & Ors." has also been filed by the
appellants/defendants against the judgment & decree dated
26.03.2010 passed by the Additional District Judge (Fast Track)
No. 3, Bikaner in Civil Original Suit No.55/2005 titled as "Sriniwas
Vs. Hanuman Bux & Ors." whereby, the suit has been decreed and
it has been ordered that the plaintiff (Sriniwas) is the owner of the
(5 of 118) [CFA-192/2010]
property in question, as mentioned in para-12 of the suit and all
the proceedings initiated by the defendants were declared ab initio
void and at the same time, the defendants were restrained from
interfering in the property in question in any manner.
Civil First Appeal No. 206/2010 titled as "Omprakash & Anr.
Vs. Sriniwas & Ors." has been filed by the appellants/defendants
against the judgment & decree dated 26.03.2010 passed by the
Additional District Judge (Fast Track) No.3, Bikaner in Civil Original
Suit No. 55/2005 titled as "Sriniwas Vs. Hanuman Bux & Ors."
whereby, the suit has been decreed and it has been ordered that
the plaintiff (Sriniwas) is the owner of the property in question, as
mentioned in para-12 of the suit and all the proceedings initiated
by the defendants were declared ab initio void and at the same
time, the defendants were restrained from interfering in the
property in question in any manner.
Civil First Appeal No. 240/2010 titled as "Bhanwar Lal Vs.
Sriniwas & Ors." has been filed by the appellant/defendant against
the judgment & decree dated dated 26.03.2010 passed by the
Additional District Judge (Fast Track) No.3, Bikaner in Civil Original
Suit No. 55/2005 titled as "Sriniwas Vs. Hanuman Bux & Ors."
whereby, the suit has been decreed and it has been ordered that
the plaintiff (Sriniwas) is the owner of the property in question, as
mentioned in para-12 of the suit and all the proceedings initiated
by the defendants were declared ab initio void and at the same
time, the defendants were restrained from interfering in the
property in question in any manner.
(6 of 118) [CFA-192/2010]
The facts of the cases are that the plaintiff (Sriniwas) had
filed a civil suit (No. 54/2005) against the defendants - Firm
Dhanraj Dev Kishan and its proprietor Dev Kishan, inter alia,
stating therein that a property owned by the plaintiff had been
situated at Nokha Mandi, Bikaner being Shop including Nohra No.
34 and the defendants were the tenants over the property in
question; the patta of the property in question had been in the
name of late Jamnadas; out of the total portion of the Nohra
No.34, some of the portion, measuring 180 dargaji, had been sold
to the plaintiff by Gyanprakash Bhadani S/o late Onkardutt
Bhadani, predecessor-in-title, on 02.09.1986 for a consideration of
Rs.30,000/-. It has been averred in the plaint that during the life-
time, Shri Onkardutt had authorised his son Gyanprakash @
Gyandutt Bhadani to collect the rent of Rs.300/- from the
defendants; that the original landlord Shri Onkardutt died on
10.10.1981. It has further been averred in the plaint that to
recover the due rent of Rs.2400/- and to get the possession of the
shop and Nohra from the defendants, Durgadutt S/o Onkardutt
had filed a civil suit (No.44/1982) in which, the defendants had
denied that Durgadutt is the owner of the property and it has been
stated that Gyanprakash is the owner of the property in question
and the interim rent had been decided in the suit but despite of
that, the defendants had neither deposited the rent nor paid the
same, therefore, the defence of the defendants against eviction
was strike out; that the rent of the property in question @
Rs.300/- had been paid by the defendants from 01.08.1981 to
31.03.1983 to Gyanprakash against receipts. While stating the
pedigree of late Jamnadas, it has been stated that after the death
(7 of 118) [CFA-192/2010]
of Jamnadas, his only son Onkardutt became the owner of the
property; Onkardutt had two sons, namely, Durgadutt and
Gyanprakash, wife Smt. Surji devi, allegedly mentally retarded,
and one daughter Smt. Asha; that Durgadutt is blind by birth and
his whereabouts is not known since last eight years; that
Onkardutt and Durgadutt had executed a trust-deed dated
22.09.1973 and had got registered a trust in the name of Smt.
Surajbai Bhadani Private Trust; that Gyanprakash S/o Onkardutt
was declared the landlord and owner of the property and since
Gyanprakash was minor at that time, the rent of the property in
question was collected by Onkardutt and on being attaining the
age of majority, the rent of the property in question was collected
by Gyanprakash and receipts for the period from 01.08.1981 to
31.03.1983 had been given to the defendants. It has been averred
in the plaint that when the rent was not given by the defendants,
a suit for eviction and recovery of due rent, being Civil Suit No.
80/1983 had been filed by Gyanprakash against the defendants;
that on 02.09.1986 against a consideration of Rs.45,000/-, the
property was sold in favour of the plaintiff; that the plaintiff had
asked the defendants to vacate the premises and hand over the
possession then, the defendants have pretended that they are in
search of suitable property and on getting the same, they vacate
the property in question; that on being asking again to vacate the
premises, the defendants had denied on 24.03.1991; that on the
following grounds, the plaintiff is entitled to get vacate the
premises in question from the defendants; (1) default in payment
of rent, (2) reasonable and bona fide need of the plaintiff, (3)
availability of alternative accommodation with the defendants, (4)
(8 of 118) [CFA-192/2010]
partial eviction is not possible, (5) non-user of the property in
question; that on the grounds aforesaid, the plaintiff claimed that
the property in question may be got vacated, possession of the
property in question may be handed over to the plaintiff and the
plaintiff may be ordered to get the due rent of Rs.10,800/- and a
decree of eviction may be passed in favour of the plaintiff.
After that defendant amended para 37A of written statement
which states that Gyanprakash is the illegitimate child of
Onkardutt so he has no right to challenge the lease deed which
was executed by Durgadutt on 9.1.1985. Thereafter, defendant
has filed the amended written statement, the defendants had
denied the averments of the plaint and it has been stated that
they have paid the rent to the Gyanprakash by treating him to be
the agent of Onkardutt; that on being demanded, the trust deed
had not been shown to the defendants by Gyandutt and
Durgadutt; that on being inspected the trust deed, it has come to
the knowledge of the defendants that Durgadutt had not accepted
execution of the trust deed; that on being annoyed, both
Gyandutt and Durgadutt had filed separate suits for eviction
against defendants Firm; that the suits were dismissed and the
appeals against them were also dismissed; that after decision of
the suit, the shop and Nohra in question were given on 99 years'
lease on 09.01.1985 (sic 09.10.1985) to one Hanuman Bux S/o
Ramchandra, resident of Nokha; that so many other facts were
pleaded on behalf of the defendants.
(9 of 118) [CFA-192/2010]
On the basis of the pleadings of the parties in Civil Suit
number 54/2005 for arrears of rent and eviction, the Trial Court
had framed the following issues:-
^^01- vk;k izfroknh oknxzLr ifjlj nqdku o xksnke dk fdjk;k [email protected]& :i;k
izfrekg dh nj ls fn- 2-9-86 ls 30-6-91 rd dk vnk u djds fMQkYVj gS \
&&oknh
02- vk;k oknxzLr ifjlj dh oknhx.k dks vius fuft fjgk;"k ,oa O;kikj ds fy,
fjtuscy ,.M cksuk&QkbZM vko";drk gS \ &&oknh
03- vk;k izfroknh dks d`f'k mit eaMh] uks[kk }kjk nqdku o xksnke njxth
¼25 QqV x 80 QqV½ ,yksV gks tkus ds ckn izfroknh us viuk O;kikj ifjlj
eqruktk ls LFkkukUrfjr dj fy;k gS tks izfroknh ds O;olk; ds fy,
mi;qDr gksus ls oknhx.k ifjlj fjDr djkus ds vf/kdkjh gS\ &&oknh
04- vk;k ifjlj eqruktk fjDr u gksus dh lwjr esa izfroknh ds eqdkcys oknhx.k
dks vf/kd dfBukbZ gS \ &&oknh
05- vk;k ifjlj eqruktk dk vkaf"kd csn[kyh ls oknhx.k dh vko";drk dh iwfrZ
ugha gks ldrh \ &&oknh
06- vk;k ifjlj eqruktk ds fdjk;snkj izfroknh la- 2 us ifjlj eqruktk dk
dCtk lcysV ;k vnjokbZt ikVZfon dj fn;k \ &&oknh
07- vk;k ifjlj eqruktk nkok nk;jh ls Bhd iwoZ fiNys ,d o'kZ ls yxkrkj can
gS] vkSj blesa izfroknhx.k fiNys ,d o'kZ nkok nk;jh ls ifjlj eqruktk can
j[kus ckcr~ mfpr dkj.k ugha gS \ &&oknh
08- vk;k okni= ds iSjk ua- 13¼N½ esa of.kZr rF;ksa ds vk/kkj ij izfroknh us
ifjlj eqruktk esa rksM-&QksM-] jn~nkscny ,oa lkjHkwr ifjorZu fd;k gS \
&&oknh
(10 of 118) [CFA-192/2010]
09- vk;k izfroknhx.k us oknh ds VkbZVy ls bUdkj fd;k gS vkSj oknhx.k dks
viuk yS.MyksMZ ifjlj eqruktk ds laca/k esa gksuk ugha ekurk gS \
&&oknh
10- vk;k nkok nk;jh rd 10][email protected]& :i;k cdk;k fdjk;k oknhx.k izfroknhx.k
ls ikus ds gdnkj gS \ &&okknh
11- vuqrks'k \
10^^,^^ D;k oknhx.k }kjk nkok la- [email protected] rkjh[k 6-1-04 ls fcuk "krZ foMªk dj
fy;k x;k vr% dkuwuu ml nkos dk QSlyk oknh ds f[kykQ gksuk le>k
tkosxk vkSj bl izdkj Jhfuokl ,oa ohjknsoh }kjk of.kZr [kjhn dk okdk ,oa
Kkuizdk"k }kjk vkt rd dk fdjk;k olwy dj ysuk ekuk tkosxk vkSj bl
izdkj ekStwnk eqdnesa esa iwoZ ds nkos esa r; fu/kkZfjr fcUnq fd Jhfuokl ,oa
ohjknsoh }kjk ifjlj [kjhn djuk lkfcr ugha gS ,oa rkjh[k QSlyk rd dk
fdjk;k vcnau gks pqdk gS ds ckcr~ elyk jsltqMhdsVk vkfjt gS ,oa oknhx.k
mijksDr fcUnqvksa dks nqckjk fu/kkZfjr djkus ds vf/kdkjh ugha gS \
&&izfroknhx.k^^
In support of plaint, Civil Suit number 54/2005 for arrears of
rent and eviction, the witness only PW-1 Sriniwas Jhanwar had
been examined and in support of defence, the only witness DW-1
Dev Kishan had been examined.
The Trial Court had decided issues No. 1 & 10 together in the
manner that both the issues aforesaid had been decided in favour
of the plaintiff and against the defendants. The Trial Court had
discussed both these issues in detail and observed that the
defendants had made a default in payment of rent and the plaintiff
is entitled to vacate the premises in question on this ground. It
(11 of 118) [CFA-192/2010]
had also been observed by the Trial Court that upto the High
Court, the plaintiffs had been treated to be the landlord of the
properties in question and by virtue of attornment, the defendants
are the tenants of the plaintiffs.
Issues No. 2, 3, 4, 5, 6, 7 & 8 had been decided against the
plaintiffs as they do not press these issues.
Issue No. 9 regarding denial of title had been decided in the
manner that the plaintiffs had been able to prove this issue by
their evidence and contentions and by placing the relevant
documents on record. While deciding this issue, the Trial Court
had observed that it is clear that after the death of Onkardutt,
Gyanprakash became the owner of the property and Gyanprakash
sold the property in question to the plaintiff and for this reason,
the defendants became the tenants of the plaintiffs.
Issue No. 10 "A" regarding application of principle of res
judicata had been decided by the Trial Court in the manner that
the burden to prove this issue was on the defendants and while
discussing this issue in the light of the pronouncements of Hon'ble
the Supreme Court and the High Court, it had been held by the
Trial Court that the present suit is not barred by the principles of
res judicata and in this way, this issue had been decided in favour
of the plaintiffs and against the defendants.
While discussing the issue of "Relief", the Trial Court had
observed that the plaintiffs are entitled to receive Rs.10,800/- as
rent of the shop and godown in question and they have also been
entitled to recover the arrears of rent due against the defendants
and on this ground of default, the plaintiffs are entitled to a decree
(12 of 118) [CFA-192/2010]
of eviction. The defendants were directed to hand over the
possession of the disputed property to the plaintiffs within a
period of two months from the date of judgment.
For ready reference, the order dated 26.03.2010 passed by
the Trial Court is reproduced herein as under:-
^^%%&@@ vkns"k &&@%%
33- ifj.kker% okn oknhx.k fo:} izfroknhx.k ckcr~ bu[kyk; nqdku o izkIr
djus cdk;k fdjk;k izek.kksa ds vk/kkj ij bl vk"k; dk fMØh fd;k tkrk gS
fd oknhx.k bu[kyk; dh fMØh izkIr djus ds vf/kdkjh gS rFkk nkok nk;jh
rd cdk;k fdjk;k ifjlj nqdku ,oa uksgjk ¼xksnke½ dk 10][email protected]& :i;s
izkIr djus ds vf/kdkjh gS ,oa okLrfod dCtk ifjlj eqruktk ikus rd
gtkZuk ckcr~ mi;ksx o miHkksx ifjlj ds [email protected]& :i;s izfrekg ds fglkc
ls oknhx.k izfroknh ls izkIr djus ds vf/kdkjh gS rFkk nkSjkus nkok
izfroknhx.k }kjk dqy fdjk;k fnukad 02-09-86 ls nkok nk;jh rd vnk ugha
fd;k x;k gS bl vk/kkj ij Hkh fMØh bu[kyk; ifjlj oknhx.k izkIr djus ds
vf/kdkjh gS rFkk izfroknhx.k dks ;g vkns"k fn;k tkrk gS fd oks fu.kZ; dh
fnuk¡d ls nks ekg ds Hkhrj oknxzLr ifjlj&lEifRr dk dCtk oknhx.k dks
lEHkyk nsosA [kpkZ eqdnek i{kdkjku~ viuk&viuk ogu djsaxsA^^
Against the judgment and decree dated 26.03.2010, as
aforesaid, passed by the Trial Court, S.B Civil First Appeal No.
192/2010 had been filed on behalf of the defendants on
22.05.2010, within limitation, by the learned counsel Mr. Sajjan
Singh.
Another suit (55/2005) had also been filed by the plaintiff -
Sriniwas Jhanwar against the defendants with the prayer that:-
(13 of 118) [CFA-192/2010]
(1). Lease deed executed by Durgadutt in favour of Hanuman bux
dated 09.01.1985 may be declared void ab initio and non effective
and/or Plaintiffs may be declared as owner of disputed property
and godowns which is mentioned in para 12 of the plaint and/or
defendant no. 2 and 3 may be declared tenants of plaintiffs;
(2). Civil suit No. 34/94 dated 2.6.1994, Civil Execution Case No.
2/94 (Hanuman Bux Vs. Firm Dhanraj Dev Kishan & Ors) and
other proceedings may be declared void ab initio and non effective
against the rights of plaintiffs;
(3). Defendants may be restrained by issuing permanent
injunction that they may not interfare in the disputed property
mentioned at para 12 of the plaint and/or except plaintiffs they
may not handover the possession of the disputed property to any
other person and/or they may be restrained from doing any act
which is against the rights of the plaintiffs;
(4). Cost of the plaint may be awarded to the plaintiffs an/or any
other relief in favour of the plaintiff and against the defendants
may kindly be granted; and.
and all the proceedings taken by the different defendants against
the rights & interests of the plaintiff may be declared as without
jurisdiction, null & void and in-operative because they have been
initiated with collusion, fraud and under conspiracy.
By filing written statement to the suit aforesaid, the
defendant No.1 had denied the pedigree of Nathmal, as mentioned
in the plaint. It had been averred by the defendant No.1 that the
only son of Onkardutt is Durgadutt, neither Gyanprakash is the
(14 of 118) [CFA-192/2010]
son nor Asha is the daughter; Surji devi was not the wedded wife
of Onkardutt; Durgadutt had not executed the trust-deed;
Onkardutt had no right to form the trust to regulate the properties
and, therefore, the said trust is void ab initio. Gyanprakash had
never been in possession of the properties in question and he is
not the owner of the properties; actual possession over the
properties in question is with the defendants No. 2 and 3 which is
maintained; lease-deed and decree in favour of Hanuman Bux is
not ab initio void; Durgadutt had given the shop and godown on
09.01.1985 through a registered lease-deed for a period of 99
years to Hanuman Bux by executing the lease-deed and Durgadutt
had recovered the rent of the property and Hunuman Bux had
recovered the total rent from the defendants No. 2 and 3;
Hanuman Bux had got in his favour and against the defendants
No. 2 and 3, a decree by filing Suit No. 34/1994 "Hanuman Bux
Vs. Firm Dhanraj Dev Kishan" from the Court of Civil Judge,
Bikaner on 02.06.1994 and pursuant to the execution
proceedings, Hanuman Bux got the possession. Therefore, the
present suit may be dismissed. By amending para No. 37-A,
Durgadutt is the only son of Onkardutt and after death of
Onkardutt, he became the owner of the properties in question and
he had given the properties in question to the defendant No.1 on
lease; Durgadutt had adopted a son and, therefore, the said trust-
deed is ab initio void and for this reason, the sale-deed in favour
of the plaintiff is also void; plaintiffs had no right to challenge the
lease-deed executed in favour of the defendant No.1, therefore,
suit may be dismissed.
(15 of 118) [CFA-192/2010]
By filing written statement, the defendants No. 2 and 3 had
taken the same stand as was taken by the defendant No.1 in his
written statement. The shop and godown in question had been
taken on rent from Jamnadas and it was decided that the rent
would be collected by Jamnadas himself or by sending anyone to
recover the rent; after the death of Jamnadas, the only son of
Jamnadas, Onkardutt or Gyanprakash or Durgadutt or Onkardutt
himself had collected the rent; the rent which has been given to
Gyanprakash, had been given on behalf of Onkardutt; Onkardutt
resided at Bikaner and owner of the firm resided at Nokha thereby
it was a matter of distance. On behalf of Onkardutt, Gyanprakash
usually collected the rent and rent upto March, 1983 had been
paid; no rent receipt had been given in the name of the trust; the
defendants had come to know about formation of the trust after
the death of Onkardutt and when Gyanprakash and Durgadutt had
claimed themselves to the owners of the properties in question
separately; the defendants had requested Gyandutt and Durgadutt
to show the trust-deed and they had not showed the trust-deed;
then, on being taken duplicate of the trust-deed from the
Registrar, Bikaner, it was come in the knowledge of the defendants
that the trust was formed by making Durgadutt and Onkardutt
and Surjidevi as trustees and the trust-deed was allegedly
executed by Onkardutt and Durgadutt but Sub-Registrar, Bikaner
had made an endorsement that Durgadutt had not accepted
execution of the trust-deed; it appears that due to the lacunae left
in the trust-deed, Onkardutt had not taken any proceedings under
the trust by treating the same as in-effective, in-operative, sham
and bogus; Durgadutt had given the properties in question to
(16 of 118) [CFA-192/2010]
Hanuman Bux on 09.01.1985 through a registered lease-deed for
a period of 99 years; the defendants had paid rent of the shop and
godown to Hanuman Bux; pursuant to the execution of decree in
Suit No. 34/94 "Hanuman Bux Vs. Firm Dhanraj Dev Kishan",
Hanuman Bux had got a decree on 02.06.1994 and in execution of
the decree, through sale ameen, he got possession on
14.09.1994; possession over the shop and godown in question is
with Hanuman Bux and its tenants, therefore, the suit is not
maintainable against them. Therefore, suit may be dismissed.
During the pendency of the suit aforesaid, on 19.05.2008,
the applicants, namely, Bhanwarlal, Sanju Devi and Omprakash
were impleaded as defendants No. 4, 5 & 6 in the suit.
The defendant Bhanwarlal had filed a written statement and
had denied the averments made in the plaint and adopted the
objections as taken by the other defendants. It had been averred
that the defendant No.1 had given the properties in question
through a registered lease-deed for a period of 19 years executed
on 01.10.2007 and the same was assigned to him on 10.12.2007,
meaning thereby, the lease period starts for a period of 19 years
from 01.09.2007; the rights under the lease-deed accrued to the
defendant Bhanwarlal Baheti.
The defendants - Omprakash and Smt. Sanju Devi had
denied the averments taken in the plaint and had adopted the
same objections as were raised by the other defendants; the
defendant No.1, after getting possession from the defendants No.
2 & 3, by oral agreement accompanied with delivery of
possession, had given the shop in question to the defendant
(17 of 118) [CFA-192/2010]
Omprakash on 01.10.1994 on rent of Rs.500/- per month and the
defendant Omprakash had executed an acceptance-deed and
delivered to defendant No.1 and thereby since times, defendant
Omprakash had been the tenant of the defendant No.1; similarly,
by the same way, the defendant Smt. Sanju Devi had come in
possession of the shop in question on 01.10.1994 on rent of
Rs.300/- per month. It has been averred in the written statement
that without obtaining the decree of possession, the defendants
could not be dispossessed from the shops in question. Therefore,
the suit may be dismissed.
By filing subsequent pleadings on behalf of the plaintiff, para
No.28 & 29 of the written statement of the defendants had not
been accepted as the same were wrongly mentioned. It has been
averred by the plaintiff that Nathmal Bhadani had one son
Jamnadas and Jamnadas had one son Onkardutt and Onkardutt
had two sons Durgadutt, blind by birth and Gyanprakash and one
daughter Asha. Regarding formation of trust, it was averred that
the trust deed had been registered with Sub-Registrar, Bikaner on
01.12.1973 and the properties in question were settled in favour
of Gyandutt and by virtue of that, he is only the owner of the
properties in question; that on the basis of Exhibit-18, rent receipt
and Exhibit-6 and Exhibit-7, sale-deed dated 02.09.1986,
Gyandutt is the landlord and the defendants No. 2 and 3 were his
tenants. It had been averred that to save themselves from the
decree, the defendants No. 2 and 3 had got executed rent-deeds
in favour of near relatives, namely, Bhanwarlal Baheti and
defendant No's. 3 son and daughter-in-law, namely, Omprakash
(18 of 118) [CFA-192/2010]
and Smt. Sanju Devi; the defendants No. 4 to 6 were the
trespassers over the properties in question; Hanuman Bux had
presented himself before the Court and accepted that he was the
Munim of the Firm Dhanraj Devkishan; that no lease-deed was
executed on 09.01.1985 by Durgadutt and no possession had
been taken; to avoid the eviction decree, Devkishan had executed
false lease-deed and he did not know Durgadutt; Gyanprakash
had sold the properties in question to the plaintiffs on 02.09.1986
and Hanuman Bux had agreed that that possession of the
properties in question may be handed over to the plaintiffs,
therefore, the suit may be decreed in faovur of the plaintiffs and
against the defendants.
On the basis of the pleadings of the parties, Civil Suit
number 55/2005 for declaration, the Trial Court had framed the
following issues:-
"01- vk;k uFkey th ds oa"k o`{k ds vuqlkj Lo- vkasdkj nRr th ds Kku izdk"k o
vk"kk Øe"k% iq= o iq=h Fks o lwjtnsoh mudh iRuh Fkh o nqxkZnRr tUeka/k
gksdj xr nl o'kksZa ls ykirk gS rFkk vksadkj nRr o nqxkZnRr us fnukad 1-12-73
dks fookfnr lEifRr dk VªLVukek Kkuizdk"k ds gd esa iathd`r djk;k \
&& oknhx.k
02- vk;k Kku izdk"k us fookfnr lEifRr dk fdjk;k viuh vksj ls ekfyd ds :i
esa QeZ /kujkt nsofd"ku ls izkIr fd;k \ && oknhx.k
03- vk;k nqxkZnRr dks VªLVukek iathd`r fn- 1-12-73 ds c:, fookfnr tk;nkn esa
dksbZ ekfydku gd ugha Fkk o bl dkj.k mDr lEifr dk ,dek= ekfyd
Kkuizdk"k Fkk] ftlesa izfroknh la- 2 o 3 fdjk;snkj ds :i esa dkfct Fks \
&& oknhx.k
(19 of 118) [CFA-192/2010]
04- vk;k nqxkZnRr dh rjQ ls izfroknh la- 1 guqekucD"k ds gd esa fu'ikfnr yht
MhM fn- 9-1-85 rFkk mlds vk/kkj ij nkok la- [email protected] vuokuh guqekucD"k
cuke QeZ /kujkt nsofd"ku esa U;k;ky; flfoy tt ¼o-[k-½ chdkusj }kjk
ikfjr fMØh fnukad 2-6-94 QthZ gksdj dkuwuu "kwU; rFkk izHkkoghu djkj fn;s
tkus ;ksX; gS\ && oknhx.k
05- vk;k vkSadkjnRr dks ekS:lh lEifRr dk VªLV dk;e djus dk dksbZ gd ugha
Fkk vkSj nqxkZnRr us VªLV dk dksbZ fu'iknu rd ugha fd;k rFkk lwjtnsoh ftls
VªLVh cuk;k gS] okLro esa ikxy Fkh \ & izfroknhx.k
06- vk;k vkSadkjnRr o lwjtnsoh dh e`R;q ds ckn rFkk vk"kk ds fookg ds mijkUr
Kkuizdk"k dks fookfnr lEifr dk tks ekfyd cuk;k gS oks gj izdkj ls fx¶V
gksdj mldh dksbZ rk;qu ugha dh xbZ o dksbZ M~;wVh ugha nh xbZ gS \
& izfroknhx.k
07- vk;k bl VªLV dh [kkfe;ksa dks en~nsutj vkSadkjnRr us mDr VªLV dks cksxl o
vizHkkoh ekurs gq, mlds rgr dksbZ dk;Zokgh ugha dh \
& izfroknhx.k
08- vk;k vkSadkjnRr ds nsgkUr ds ckn Kku izdk"k o nqxkZnRr ds chp vkSadkjnRr
ds okfjl gksus ds ckcr~ ruktk gqvk] ftlesa nqxkZnRr us lwjtnsoh dks vkSadkj
nRr dh fookfgrk iRuh ugha ekuk o blfy;s Kkuizdk"k o vk"kk rFkk lwjtnsoh
dks dksbZ gd fojklr ugha feyrk \
& izfroknhx.k
09- vk;k fookfnr nqdku o xksnke ij guqekucD"k o mlds fdjk;snkjkas dk dCtk
gksus ds dkj.k oknhx.k dk ;g nkok izfroknh la- 2 o 3 ds f[kykQ pyus ;ksX;
ugha jgrk gS \ & izfroknhx.k
(20 of 118) [CFA-192/2010]
09-,- vk;k izfroknh la- 1 izfroknh la- 2 o 3 ls tfj;s vnkyr dCtk ysus ds ckn
tokcnkok ds iSjk la- 39 o 40 esa of.kZr lEifr;ksa izfroknh la- 5 o 6 dks
fdjk;s ij nh\ ;fn gk¡] rks bldk okn ij D;k vlj gS \
10- vuqrks'k\"
In evidence and to support the plaint, the plaintiff Sriniwas
as PW-1 and Gyanprakash as PW-2 were examined. In defence,
defendant No.1 Hanuman Bux, Bhanwarlal (DW-2), Hariprakash
(DW-3), Manoj Kumar (DW-4), Sushil Kumar (DW-5), Omprakash
(DW-6), Durgadutt (DW-7), Suresh Kumar (DW-8), Sanju Devi
(DW-9) and Devkishan (DW-10) were examined.
Before dealing with the issues, the Trial Court had detailed
out the different orders passed by it and by the High Court in
different appeals or writs in relation to the property in question or
suit in question.
The Trial Court had proceeded to decide Issues No. 1, 2 & 3
and Issues No. 5, 6, 7 & 8. The burden to prove issues No. 1, 2 &
3 was on the plaintiffs and the issues No. 5, 6, 7 & 8 were
required to be proved by the defendants because all these issues
were rebuttal of issues No. 1, 2 & 3. After discussing the facts in
detail, taking into consideration the citations, and after discussing
the entire evidence of the plaintiffs as well as of the defendants, it
had been held that the trust-deed had been proved and as a
result, issues No. 1, 2 & 3 were decided in favour of the plaintiffs
and at the same time, issues No. 5, 6, 7 & 8 were also decided in
favour of the plaintiffs and against the defendants.
(21 of 118) [CFA-192/2010]
Issue No.4 was decided by the Trial Court in the manner that
by virtue of registration of the trust-deed on 01.12.1973,
Gyanprakash became the owner of the properties in question and
Durgadutt had no right or interests, therefore, the lease-deed
dated 09.01.1985 executed by him in favour of the defendant
No.1 Hanuman Bux and on the basis of lease-deed, the Suit No.
34/1994 "Hanuman Bux Vs. Firm Dhanraj Dev Kishan" filed
before the Court of Civil Judge, Senior Division, Bikaner and
decree dated 02.06.1994 was declared fraudulent, void ab initio
and in-effective being obtained by playing fraud. The properties in
question remained in possession of the defendants No. 2 & 3. The
collusive decree dated 02.06.1994 was passed by the learned Trial
Court on the admission and on the application of the plaintiffs. In
reply to the submissions made on behalf of the plaintiffs, learned
counsel appearing on behalf of the defendants stated that no
collusion has been made; Durgadutt had right to execute lease-
deed and in compelling circumstances, the decree 02.06.1994 got
executed.
The learned Trial Court on the basis of the submissions made
on behalf of the learned counsel for the parties, on the basis of
evidence led in the matter and under the guidance of judicial
pronouncements had made its conclusions.
The learned Trial Court found proved the trust-deed and on
the basis of Exhibit-6 and Exhibit-7, held that Gyanprakash is the
owner of the properties in question. The learned Trial Court also
held that all the proceedings taken against the interest of
Gyanprakash by the different defendants were declared
(22 of 118) [CFA-192/2010]
conspiratory, collusive and obtained by playing the fraud and,
therefore, they were void ab initio and in-effective. In this way,
the issue No. 4 was decided in faovur of the plaintiffs and against
the defendants.
Issue No. 9 & 9'A' were decided together by the learned Trial
Court to avoid repetition of evidence. After discussing the issues in
thorough detail, it was held by the learned Trial Court that the
plaintiffs had came into knowledge about execution of the lease
deed after passing of the Decree No. 34/1994 and, therefore, it
cannot be said that the suit is beyond limitation. The learned Trial
Court had rejected all the objections raised by the defendants.
While deciding issues No. 9 & 9'A' in favour of the plaintiffs,
learned Trial Court had observed that the possession over the
properties in question were clearly remained with the defendants
No. 2 and 3.
While deciding issue No. 10 regarding "Relief", the learned
Trial Court held that the suit is required to be decreed in favour of
the plaintiffs and all the proceedings taken against the owner of
the properties in question, i.e., Gyanprakash, were declared ab
initio void and at the same time, the defendants were directed not
to interfere with the properties in question and they were
restrained from doing any act against the rights of the plaintiffs.
For ready reference, the order dated 26.03.2010 passed by
the Trial Court is reproduced herein as under:-
(23 of 118) [CFA-192/2010]
"%%&@@ vkns"k @@&%%
60- ifj.kker% okn oknhx.k fo:) izfroknhx.k ckcr~ izkIr djus fMØh ?kks'k.kkRed
fd ttesUV o fMØh la- [email protected] guqeku cD"k cuke QeZ /kujkt nsofd"ku vkfn
vnkyr flfoy tt ¼oŒ[kŒ½] chdkusj fnukad 02-06-94 ,oe~ mDr fMØh dk vk/kkj
nLrkost yht MhM fnukad 09-01-1985 feu tkfuc nqxkZnRr cgd guqekucD"k
izfroknh la[;k& ,d gjnks ceqdkcys oknhx.k vf/kdkjghu] QzkWMqysUV o dksY;qflc
gksus ls ,fcfufl;ks ok;M ,.M buoSfyM gS ,oa izkIr djus fMØh LFkk;h O;kns"k fo:)
izfroknhx.k izek.kksa ds vk/kkj ij fMØh fd;k tkdj vkns"k fn;k tkrk gS fd yht
MhM fnukad 09-01-1985 feu tkfuc nqxkZnRr iq= vkSadkj nr Hkknkuh cgd izfroknh
la[;k&01 guqekucD"k ceqdkcys oknhx.k ,fcfufl;ks] okbZM] "kwU;] fu'izHkkoh csvlj
gS rFkk oknhx.k bl vk"k; dh ?kks'k.kkRed fMØh Hkh izkIr djus ds vf/kdkjh gS fd
oknhx.k oknxzLr vpy lEifRr nqdku o xksnke ftldk gokyk nkos dh en
la[;k&12 esa fn;k x;k gS ds ekfyd gS] Lokeh o LoRokf/kdkjh rFkk ceqdkcys
izfroknh la[;k&nks o rhu ys.MykMZ gS ,oa fMØh la[;k&[email protected] guqeku cD"k cuke
QeZ /kujkt nsofd"ku vkfn vnkyr flfoy tt] ¼oŒ[kŒ½] chdkusj fnŒ 2-6-94 o
btjk; nhokuh la[;k&[email protected] guqeku cD"k cuke QeZ /kujkt nsofd"ku vkfn ds
laca/k esa reke dk;Zokfg;ksa ,fcfufl;ks okbM] ,oa ceqdkcys oknhx.k "kwU;] fu'izHkkoh]
csvlj ?kksf'kr dh tkrh gS rFkk oknhx.k izfroknhx.k ds fo:) LFkk;h O;kns"k dh
fMØh bl vk"k; dh izkIr djus ds vf/kdkjh gS fd izfroknhx.k oknxzLr vpy
lEifRr ftudk gokyk nkos dh en la[;k&12 esa fn;k x;k gS esa dksbZ rksM+&QksM+]
jn~nkscny] uo&fuekZ.k ugha djkos] u "kDy cnys] u tfj;s jgu] c; ;k vU; fdlh
izdkj ls dCtk flok; oknhx.k ds fdlh vU; dks lqiqnZ ugha djsa u dksbZ
d`R;&vd`R; djsa ftlls oknhx.k ds gdksa ij dqBkjk?kkr gks ;k gksus dh lEHkkouk
gksA [kpkZ eqdnek i{kdkj viuk&viuk ogu djsaxsA"
(24 of 118) [CFA-192/2010]
Being aggrieved against the judgment, order and decree
dated 26.03.2010 passed by the Trial Court, all the defendants
have filed separate first appeals before this Court.
Civil First Appeal No. 197/2010 and 192/2010 titled as "Firm
Dhanraj Dev Kishan & Anr Vs. Sriniwas & Ors." has been filed by
the defendants- Firm Dhanraj Devkishan & its proprietor Dev
Kishan against the plaintiff-Sriniwas and other co-defendants.
Civil First Appeal No. 206/2010 titled as "Omprakash & Anr. Vs.
Sriniwas & Ors." has been filed by the defendants- Omprakash and
Smt. Sanju against the plaintiff-Sriniwas and other co-defendants.
Civil First Appeal No. 240/2010 titled as "Bhanwar Lal Vs. Sriniwas
& Ors." has been filed by the defendant Bhanwar Lal against the
plaintiff-Sriniwas and other co-defendants.
Learned Senior Advocate Mr. Manish Singhvi, learned
Senior Advocate Mr. Ravi Bhansali assisted by the learned counsel
Mr. Dhanesh Saraswat appearing for appellant/defendant -
Bhanwar Lal in S.B. Civil First Appeal No. 240/2010 titled as
"Bhanwarlal Vs. Sriniwas", stated that initially the written
statement of specific denial was filed by the defendant No.1
Hanumanbux. Thereafter, by entering with the collusion with the
plaintiff, one affidavit was filed by Hanumanbux in order to
support the case of the plaintiff; and Order 19 Rule 2 CPC as well
as Section 1 of the Evidence Act, evidence can be produced by
affidavit for limited purposes and as per Section 1 of the Evidence
act, affidavit is not coming with the purview of definition of
evidence and due to reason of collusion, it was stated on behalf of
the plaintiff that he does not want to cross-examine on the
(25 of 118) [CFA-192/2010]
affidavit and no opportunity was given to the defendant against
whom interest, affidavit was filed. Evidence in the mode of
affidavit can be filed when it was demanded by the Court
otherwise, not permissible in the mode of affidavit.
A lease deed was executed on 23.11.2007 by Durgadutt in
favour of Bhanwarlal.
Suit was filed for declaration to this effect that the lease
deed executed in favour of Hanumanbux on 09.01.1985 may be
declared as null and void and the relevant decree of eviction dated
02.06.1994 passed by the Civil Judge (Senior Division), Bikaner in
Civil Suit No. 34/1994 may kindly be declared as null and void for
the reason that the decree is collusive and being obtained by
playing fraud with the Trial Court.
Admittedly, the suit was filed on 20.02.1996, therefore, the
suit was hopelessly time barred for declaration of lease deed of
1985 to be null and void.
It was clearly pleaded in para number 26 of the plaint that
the suit was filed within limitation on the basis of the pleadings
mentioned at para number 23 of the plaint, i.e., on the basis of
knowledge because admittedly, the lease deed was executed in
the year 1985 and it is settled position of law that if the plaintiff
comes with a case that due to some reason, the suit is within
limitation, it was the duty of the learned Trial Court to frame
specific issue in this regard and burden will be on the plaintiff
although no separate issue was framed by the learned Trial Court
in regard to limitation but by giving finding in regard to issue No.
9 and 9A, that point was covered by the learned Trial Court and it
(26 of 118) [CFA-192/2010]
was wrongly held that the suit was filed within limitation from the
date of knowledge, i.e., 24.07.1996 when threatening regarding
material addition and alteration and raising of new construction
was given by the defendants because in earlier suit which was
filed by the same plaintiff - Sriniwas (Suit No. 54/2005) for
arrears of rent and eviction against the firm Dhanraj Devkishan
and its proprietor Devkishan. In para number 13G, one of the
ground was taken on the basis of material alterations, new
construction etc. and that suit was filed on 05.07.1991, therefore,
it is wrong to say that the fact of execution of the lease deed in
the year 1985 came within the knowledge of the plaintiff Sriniwas
first time only in the year 1996. It is also stated that Durgadutt
was a necessary party to that suit, therefore, the suit was liable to
be dismissed on the ground of non-joinder of the party itself and it
was also clear from the written statement which was filed on
22.05.1992.
It is also stated that in another case where title in the cloud,
relief of declaration of title, it cannot be held that Gyanprakash @
Gyandutt was the absolute owner of the property in question. It is
also stated that the relief for possession was not sought for. It is
also stated that the suit for declaration of lease deed dated
09.01.1985 was time barred and the second prayer became
meaningless and it will not survive that the decree dated
02.06.1994 goes and in that situation, it cannot be said that the
lease deed dated 09.01.1985 was not properly executed or the
decree was collusive and on the same ground, it cannot be held
that the decree was a collusive decree.
(27 of 118) [CFA-192/2010]
Section 3 of the Limitation Act says that vague averments in
the suit with regard to limitation are not permissible. In the
present case, even after the statement of Durgadutt as DW-7, the
Trial Court was not bothered to direct the plaintiff to implead/join
Durgadutt as a defendant while deciding issue No.10 in favour of
the plaintiff in which it was to be decided that Durgadutt was
missing from 10 to 12 years prior to the date of filing of the suit.
It is also stated that the suit was filed on the basis of sale-
deeds (Ex. 6 &7) and the sale-deeds were executed by
Gyanprakash @ Gyandutt on the basis of the trust deed, which
shows that the plea was falsely taken by the plaintiff with the
intention to claim sole ownership and since dispute arises between
Gyanprakash @ Gyandutt and Durgadutt, both the brothers, in
regard to ownership over the property in question after the death
of Onkardutt, suits for arrears of rent and eviction were filed by
both the brothers. In that view of the matter, both were necessary
parties to the present suit, therefore, the suit was liable to be
dismissed on the ground of non-joinder of the necessary parties.
It was wrongly mentioned in the plaint that Durgadutt was
missing since last 10 to 12 years whereas, no Missing Person
Report (MPR) was filed, no advertisement was published in the
newspapers, during trial, he had appeared before the learned Trial
Court and examined as DW-7.
Proviso to Section 34 of the Specific Relief Act states that:-
"Provided that no court shall make any such
declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits
to do so."
(28 of 118) [CFA-192/2010]
Section 42 of the Specific Relief Act states that:-
"42. Injunction to perform negative agreement.
-- Notwithstanding anything contained in clause (e)
of section 41, where a contract comprises an
affirmative agreement to do a certain act, coupled
with a negative agreement, express or implied, not
to do a certain act, the circumstance that the court is
unable to compel specific performance of the
affirmative agreement shall not preclude it from
granting an injunction to perform the negative
agreement:
Provided that the plaintiff has not failed to
perform the contract so far as it is binding on him."
Hon'ble the Apex Court has held that it is relevant that what
relief is sought for, no declaration to this effect was sought that
Durgadutt is missing since last 10 to 12 years from the date of
filing of the suit.
While reading proviso to Section 34 of the Specific Relief Act,
learned counsel for the appellant further stated that mere
declaration, without claiming consequential reliefs, cannot be
sought. In support of this argument, learned counsel for the
appellant has referred to and relied upon the judgment of Hon'ble
the Supreme Court rendered in the case of Inacio Martins
through Lrs Vs. Narayan Hari Naik & Ors., reported in 1993
(3) SCC 123, vide para 6. Lastly, learned counsel for the appellant
stated that the relief as sought for was incomplete. Therefore, the
above suit for declaration was not maintainable.
Learned counsel further stated that as per the pleadings and
the evidence, as available on record, it is clear that the property in
(29 of 118) [CFA-192/2010]
question was an ancestral property; initially, the patta was issued
in the name of Jamnadas S/o Nathmal; the property in question
was not self acquired property of Onkardutt; the plaint was filed
before amendment of 2005 and at that time, there was four
owners of the property in question as per Section 6 of the Hindu
Succession Act. It was admitted by the plaintiff as well as by the
seller Gyanprakash @ Gyandutt that Surjidevi was of unsound
mind, therefore, she was not competent to execute the trust deed
but despite of that, she was added as one of the trustee in the
trust deed, therefore, the constitution of the trust deed itself was
bad. Learned counsel further stated that if the trust deed is not
valid and the transactions of the sale on the basis of the trust
deed is also invalid. As the title over the property in question was
in cloud, therefore, the entire suit was liable to be collapsed.
While referring to para numbers 2, 3 and 4 of the trust deed
dated 22.09.1973, it is stated that these paragraphs are important
and while referring to para number 4 and 5 at page number 1 of
the trust deed, it was mentioned that for the benefit of Durgadutt,
another trust deed will be executed/created but as per the
pleadings and evidence, available on record, no such trust was
created. Learned counsel also stated that it is not possible that a
person, not taking care of the rights of his son, who was blind by
birth and his wife, who was of unsound mind, would create trust
only in favour of one son. The thumb impressions of Durgadutt,
Surjidevi and Gyanprakash @ Gyandutt were also available on the
trust deed dated 22.09.1973. Learned counsel stated that it is an
undisputed fact that Durgadutt was blind by birth, Surjidevi was of
(30 of 118) [CFA-192/2010]
unsound mind and Gyanprakash @ Gyandutt was a minor son
having age of 12 to 13 years, therefore, it can be said that the
alleged trust deed was not executed as per the legal requirements
of the Indian Trust Act.
While reading the provisions contained under Sections 19, 20
and 77 of the Indian Trust Act, learned counsel for the appellant
stated that how the trust can be created and extinguished. Section
77 of the Act states that how the trust will be extinguished. In the
present case, for the some conditions, as mentioned in Clause (iv)
of the trust deed dated 22.09.1973 which were not fulfilled at the
time of execution of the sale deeds (Ex. 6 & 7) because Surjidevi
was alive on 02.09.1986, which is the date of sale, therefore,
Gyanprakash @ Gyandutt was not entitled to devolve the property
in question and, therefore, sale is a nullity because the sale deeds
were executed on the basis of the trust deed and as stated above,
on the basis of this arguments advanced earlier by the learned
counsel for the appellants in this case, it is clear that on the basis
of trust deed, right of sole ownership was not created in favour of
Gyanprakash @ Gyandutt.
Learned counsel for the appellant has referred to different
provisions of Indian Trust act. Therefore, it would be very
appropriate to deal with the relevant provisions of law, i.e.,
Section 3, Section 19 and Section 20 of the Indian Trust
Act,1882:-
Section 3. Interpretation-clause--"trust":-- A
"trust" is an obligation annexed to the ownership of
property, and arising out of a confidence reposed in
and accepted by the owner, or declared and
accepted by him, for the benefit of another, or of
(31 of 118) [CFA-192/2010]
another and the owner: "author of the trust":
"trustee": "beneficiary": "trust-property":
"beneficial interest" : "instrument of trust":--
the person who reposes or declares the confidence
is called the "author of the trust": the person who
accepts the confidence is called the "trustee": the
person for whose benefit the confidence is accepted
is called the "beneficiary": the subject-matter of the
trust is called "trust-property" or "trust-money": the
"beneficial interest" or "interest" of the beneficiary
is his right against the trustee as owner of the
trust-property; and the instrument, if any, by which
the trust is declared is called the "instrument of
trust": "breach of trust":--a breach of any duty
imposed on a trustee, as such, by any law for the
time being in force, is called a "breach of trust":
"registered":--and in this Act, unless there be
something repugnant in the subject or context,
registered" means registered under the law for the
registration of documents for the time being in
force:
"notice":--a person is said to have "notice" of a
fact either when he actually knows that factor
when, but for wilful abstention from inquiry or gross
negligence, he would have known it, or when
information of the fact is given to or obtained by his
agent, under the circumstances mentioned in the
Indian Contract Act, 1872 (9 of 1872), section 229;
Expressions defined in Act 9 of 1872:--and all
expressions used herein and defined in the Indian
Contract Act, 1872 (9 of 1872), shall be deemed to
have the meanings respectively attributed to them
by that Act.
Section 19. Accounts and information.--A trustee is
bound (a) to keep clear and accurate accounts of the
(32 of 118) [CFA-192/2010]
trust- property, and (b), at all reasonable times, at the
request of the beneficiary, to furnish him with full and
accurate information as to the amount and state of the
trust-property.
Section 20 deals with Investment of trust-money
As per the trust deed dated 22.09.1973, Gyanprakash @
Gyandutt and Asha Devi were the beneficiaries of the trust and
the beneficiaries cannot be made the trustees of the trust,
managing the property in question.
Section 77 sub-clause (i) of the Indian Trust Act is very
important for final adjudication in regard to the rights of the
Gyanprakash @ Gyandutt and the plaintiff Sriniwas.
As per Chapter VI contained in Indian Trust Act, discussing
the rights and liabilities of the beneficiary, creation of the trust
deed dated 22.09.1973 in the present case is bad in the eye of
law.
As per Sections 3, 19 and 20 of the Indian Trust Act,
creation of the trust deed dated 22.09.1973 is bad in the eye of
law.
Issue in regard to collusive decree dated 13.11.2007 : The
property purchased from Durgadutt was not under challenge.
It is further stated that affidavit is not treated as evidence.
Section 5 of the Indian Evidence Act says that evidence can
be given on every facts in issue.
Section 3 of the Indian Evidence Act defines facts in issue.
Section 1 of the Indian Evidence Act bars affidavit to be
taken as evidence.
(33 of 118) [CFA-192/2010]
Affidavit is not deposition, therefore, the decree as passed by
the learned Trial Court ought to be reversed. Lastly, it was argued
that the beneficiaries have not right to file the suit on the basis of
the sale-deeds (Ex.6 & 7).
In support of his contentions, learned Senior Advocate Dr.
Manish Singhvi assisted by Mr. Dhanesh Saraswat appearing on
behalf of the appellant - Bhanwar Lal (CFA No. 240/2010) has
referred to and relied upon the following judgments:-
1. Dy. Commissioner, Hardoi Vs. Rama Krishna Narain & Ors.,
reported in AIR 1953 SC 521;
2. Anathula Sudhakar Vs. LRs P. Buchi Reddy & Ors., reported
in (2008) 4 SCC 594;
3. Muni Lal Vs. Oriental Fire & General Insurance Co. Ltd. &
Ors., reported in (1996) 1 SCC 90;
4. Noharlal Verma Vs. District Cooperative Central Bank Ltd.
Jagdalpur, reported in (2008) 14 SCC 445;
5. Union of India & Ors. Vs. West Coast Paper Mills Ltd. & Anr.,
reported in (2004) 2 SCC 747; and
6. Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr.,
reported in (2005) 4 SCC 370.
Learned counsel Mr. Manoj Bhandari appearing on behalf of
the appellant/defendant - Omprakash and Smt. Sanju, in S.B.
Civil First Appeal No. 206/2010 titled as "Om Prakash Vs.
Sriniwas" stated that in addition to the arguments advanced by
the other counsel, stated that after the compromise decree of the
suit which was filed by Hanumanbux against the firm Dhanraj
(34 of 118) [CFA-192/2010]
Devkishan and Devkishan, another lease deed was executed in
favour of Bhanwarlal by Shri Hanumanbux for a period of 19 years
and the same was registered but that deed was never challenged
by any of the parties and inspite of that, the learned Trial Court
observed that since the earlier decree in favour of Hanumanbux
was set aside, consequential proceedings have no force.
While deciding issue No.4, the learned Trial Court, vide para
37, page number 63 to 65 of the impugned judgment, wrongly
held that the decree passed in favour of Hanumanbux was a
collusive decree only on the basis of presumptions and without
any legal evidence.
Rent was paid by the appellant (Om Prakash) to Bhanwarlal
and this fact was not considered by the learned Trial Court. It is
further stated that the trust deed which was allegedly executed by
Onkardutt in favour of Gyanprakash @ Gyandutt was the basis of
sale-deeds as well as plaint but the same was not proved
according to law of evidence. Without proving the trust deed, it
cannot be presumed that at the time of sale, Gyanprakash @
Gyandutt has right of absolute ownership. The sale-deeds cannot
be executed by Gyanprakash @ Gyandutt without the consent of
mother Surjidevi. Defendant Nos. 3, 5 and 8 were the tenants of
defendant No. 4 Bhanwarlal. It is further stated that no relief for
getting the possession was sought for in the plaint and, therefore,
the possession of the appellant cannot be disturbed.
Learned counsel Mr. Sajjan Singh along with Mr. Prashant
Tatia appearing on behalf of the appellants/defendants in S.B. Civil
(35 of 118) [CFA-192/2010]
First Appeal No. 192/2010 and 197/2010 titled as " Firm Dhanraj
Devkishan Vs. Sriniwas",
Shri Sajjan Singh, learned counsel appearing for the
appellants in CFA No.197/10 submits that a suit for declaration
was filed by Sriniwas against six defendants namely, DW-1
Hanuman Bux, DW-2 Firm Dhanraj Devkishan, DW-3 Devkishan,
DW-4 Bhanwarlal, DW-5 Omprakash and DW-6 Smt. Sanju on the
ground that the property in question was sold by Gyanprakash @
Gyandutt, the alleged sole owner of the property, by virtue of the
trust deed executed by Onkardutt to the plaintiff and some of the
portion to the mother of the plaintiff- Vira Devi and by virtue of
the sale deed, the plaintiff became owner of the property. Earlier a
suit being Original Civil Suit No.44/82 (Durgadutt Vs. Devkishan)
was filed by Durgadutt, which was decided on 26.07.1982, for
arrears of rent and eviction against the tenant Firm Dhanraj
Devkishan and Devkishan in person. In that suit, it was pleaded
by the defendants that Durgadutt is not the landlord of the
property and his landlord is Gyanprakash @ Gyandutt. The rent
upto March, 1983, was paid to Gyanprakash @ Gyandutt. It is also
stated that one suit was filed by Hanuman Bux against tenants, on
the basis of the lease deed executed by Durgadutt in favour
Hanuman Bux, as per the plaintiff/respondents in that suit,
collusive decree was obtained and in execution of that decree, in
paper the possession was handed over to the decree holder but
infact the tenant remain in physical possession. The present suit
was filed with the following reliefs :
(36 of 118) [CFA-192/2010]
(i) The lease deed executed on 09.01.1985 may be declared
ineffective, void ab initio and null & void up to the extent of
plaintiff;
(ii) For declaration that the plaintiffs are owner of defendants no.2
& 3 for the rented shop and godown;
(iii) The decree passed in Civil Suit No.33/94 (Hanuman Bux Vs.
Firm Dhanraj Devkishan and Others) by the Civil Judge (Senior
Division), Bikaner dated 02.06.1994 and all the proceedings of
Civil Suit No.2/94 shall be declared void ab initio, null and void.
It is further prayed that permanent injunction to this aspect
shall be granted that defendants shall be restrained by decree of
permanent injunction that they will not damage and change the
property mentioned in para no.12 of the plaint and no
construction, addition and alteration shall be made by the
defendants.
Lastly, it was prayed that decree of this aspect may also be
passed that the defendant will not transfer the property by way of
sale or mortgage or by any other manner to any other person and
the defendant shall be restrained to do any act which may
adversely affect the rights of the plaintiffs.
On the basis of written statement of DW1-Hanuman Bux,
DW2 & 3, DW4-Bhanwarlal, DW5-Omprakash and DW6-Smt.
Sanju, total ten issues were framed including amended issue
no.9A and after evidence of both the sides, the parties, the suit
was wrongly decreed in favour of plaintiff-respondent no.1
Sriniwas.
(37 of 118) [CFA-192/2010]
While passing the impugned judgment, learned trial court
decided jointly issues no.1 to 3 and 5 to 8. The burden of issues
no.1 to 3 are on the plaintiffs-respondents and burden of issues
no.5,6,7 & 8 was on the defendant appellant and remaining
respondents.
Learned counsel for the appellant-defendant further stated
that the patta of the disputed property (land) was issued in the
name of Jamnadas S/o Nathmal Bhadani, resident of Bikaner and
Onkardutt was the only son of Jamnadas. As per the plaintiff, one
trust-deed was executed by Onkardutt and Durgadutt in favour of
Gyanprakash @ Gyandutt. As per the plaintiff, the disputed
property was given on rent by Onkardutt whereas, as per tenants,
the property was given on rent by Jamnadas himself. It is an
admitted fact that the rent upto 31.08.1981 was paid to
Onkardutt. Learned counsel for the appellant-defendant also
stated that since Durgadutt was blind by birth, one trust deed was
executed by Onkardutt in favour of Gyanprakash @ Gyandutt on
22.09.1973. Learned counsel stated that this pleading of the
plaintiff was wrong that by virtue of this trust deed, Durgadutt has
no right to execute a lease deed in favour of Hanumanbux. Since
the trust deed was not executed as per law, rights of Durgadutt,
who is blind by birth, Smt. Surjidevi, wife of Onkardutt and minor
daughter Asha were not protected and no reason was given that
why trust deed was executed in favour of Gyanprakash @
Gyandutt only. He further stated that as per condition number 4
of the trust deed, it is condition precedent that the trust deed
would come into force only after death of Onkardutt as well as his
(38 of 118) [CFA-192/2010]
wife Smt. Surjidevi and when Gyanprakash @ Gyandutt become
adult and it was also a condition that the trust deed will not come
into effect prior to marriage of Asha. All these conditions were not
fulfilled at the time of execution of the sale deed of the disputed
property in favour of plaintiff Sriniwas and Vira devi in the year
1986. Onkardutt had passed away on 10.10.1981 and Smt.
Surjidevi had expired on 21.10.1995, much after the execution of
the sale deed. It was also not proved that Asha was married
before the execution of the sale deed, therefore, Durgadutt was
very well competent to execute the lease deed in favour of
Hanumanbux. He further stated that on behalf of the above
mentioned lease deed, rent was taken by Hanumanbux and
number of rent receipts were issued by Hanumanbux and the
same were filed in another rent suit filed by Sriniwas and Viradevi
but since, the defence in relation to default in payment of rent was
struck off by the learned Trial Court in the suit for eviction and
arrears of rent, therefore, those rent receipt could not be marked
as exhibits. He further stated that on the basis of lease deed, suit
was filed by Hanumanbux against the firm Dhanraj Dev Kishan
(Appellants of CFA No. 197/2010). The suit was decreed and in
execution of that decree, possession of the disputed property was
handed over to the decree-holder Hanumanbux in the presence of
Sale Ameen in the year 1994. Report of the Sale Ameen
regarding handing over of the possession was also submitted on
record, therefore, it was wrongly held by the learned Trial Court
that the decree was collusive decree and in fact, physical
possession was not handed over to the decree-holder
Hanumanbux. It is further stated that the property in question
(39 of 118) [CFA-192/2010]
was not self acquired property of Onkardutt, it was an ancestral
property and pattas were issued in favour of Jamnadas and
Jamnadas was alive at the time of birth of Durgadutt. In that view
of the matter, it was also wrong to say that after death of
Jamnadas, Gyanprakash @ Gyandutt was only the heir of
Jamnadas and Durgadutt was not competent to create trust deed
in favour of Gyanprakash @ Gyandutt only.
As per Clause (iv) of the trust deed dated 22.09.1973, it will
come into force when conditions mentioned in that clause will
fulfilled, i.e., (i) After death of Onkardutt and Surjidevi; (ii)
When Gyanprakash @ Gyandutt will become adult; (iii)
After the marriage of Asha. At the time when the sale deeds
were executed by Gyanprakash @ Gyandutt on 02.09.1986, as per
evidence available on record, Surjidevi was alive and she was
expired on 21.10.1995. Similarly, the date of marriage of Asha
was not disclosed by PW-1 and PW-2, therefore, it cannot be held
that the right of ownership was created in favour of Gyanprakash
@ Gyandutt at the time of execution of the sale-deeds (Ex. 6 & 7)
because the word "AND" was used in between the names of
Onkardutt and Surjidevi, it means that death of both was the
condition precedent and it was also necessary that Gyanprakash @
Gyandutt would attained the age of majority thus, only two
conditions were fulfilled at the time of execution of the sale-deeds,
i.e., Onkardutt was expired on 10.10.1982 and Gyanprakash @
Gyandutt attained the age of majority in the year 1978, remaining
two conditions, as mentioned in Clause(iv) were not fulfilled which
is reproduced hereinbelow :
(40 of 118) [CFA-192/2010]
^^4- vksadkjnÙk rFkk lwjt ckbZ dh ftUnxh dh lekfIr ij tc
Hkh KkunÙk ckfyd gks tk;xk ;g VªLV Lor% lekIr gksdj
KkunÙk bl VªLV dh laifÙk dk Lokeh gks tk;sxkA fdUrq lqJh
vk"kk dh "kknh ls iwoZ ,slk u gks ldsxkA
5- Jherh lwjtckbZ VªLVh dks vf/kdkj gksxk fd bl VªLV ds
iz;ksstu dh iwfrZ gsrq vxj vko";d le>s rks tqt ;k dqy VªLV
laifÙk dks fdlh Hkh izdkj ls eqUrfdy dj ldsxhA vksadkjnÙk dh
ftUnxh esa ,slk bUrdky mldh lgefr dss fcuk u gks ldsxkA^^
It is also stated that without trust deed, Gyanprakash @
Gyandutt was having only one-fourth share in the property. It is
also questioned that whether the trust deed could come into force
at that time because even after attaining the age of majority by
Gyanprakash @ Gyandutt in the year 1978, as per statement of
PW-2 Gyanprakash @ Gyandutt himself, the rent was received by
Onkardutt himself upto the month of August, 1981. It is also
stated that none of the rent receipts were issued by the trust, all
the rent receipts were issued in the personal capacity of Onkardutt
or by Gyanprakash @ Gyandutt. It is also an admitted position of
fact that no notice, written information has been given by
Gyanprakash @ Gyandutt after the death of Onkardutt and there
is no evidence that the fact of death of Onkardutt was within the
knowledge of the tenant-Devkishan since creation of the trust
deed in the year 1973 till execution of the sale deeds in the year
1986; not a single receipt was issued by the trust or being a
trustee by Gyanprakash @ Gyandutt or anyone, it means that the
trust was never act upon before the date of execution of the sale
deeds, therefore, the sale deeds (Ex. 6 &7) executed by
Gyanprakash @ Gyandutt is without right of absolute ownership.
(41 of 118) [CFA-192/2010]
It is also stated that as per clause (iv) of the trust deed,
even in emergent situation, the right to sale was given to
Surjidevi, not to Gyanprakash @ Gyandutt. The reason of sale was
given at page number -1 of the sale deed (Ex.6) that the illness of
Surjidevi and as per plaintiff, Surjidevi was of unsound mind but
no prior permission was obtained from any competent Court for
execution of the sale deeds on behalf of Surjidevi, therefore, the
sale deeds (Ex. 6 & 7) executed by Gyanprakash @ Gyandutt in
favour of the plaintiff - Sriniwas are void ab initio.
It is also stated that as per para 9 of the written statement
submitted by the defendant No. 1-Hanumanbux, it was pleaded
that Durgadutt was a necessary party to the suit but he has not
been impleaded as party to the suit. On the basis of simple
pleading, without any documentary or oral evidence, it cannot be
presumed that Durgadutt was missing since 10 to 12 years on the
date when suit was filed and no presumption regarding civil death
of Durgadutt can be drawn.
The lease deed (Ex.39) executed by Durgadutt in favour of
Hanumanbux in the year 1985 was rightly executed by Durgadutt
in favour of Hanumanbux because undisputedly, Durgadutt was
the elder son of Onkardutt and after the death of Onkardutt, suits
seeking eviction and recovery of arrears of rent were filed by both
the sons against the tenant and there was no dispute in regard to
ownership over the property in question and no suit for partition
or proceedings for succession have been initiated by either of the
sons. There is no specific pleading in the plaint that on what
basis, the decree passed in favour of Hanumanbux against the
firm Dhanraj Devkishan and proprietor Devkishan is fraudulent
(42 of 118) [CFA-192/2010]
simply because, a defendant appeared before the Court without
service and a compromise was submitted by the parties to the suit
on the basis of settlement, out of the Court, it cannot be held that
the decree is fraudulent. It is further stated that all the grounds
were taken in the written statement which were necessary and
can be taken as per law.
The date of death of Jamnadas and Surjidevi and date of
marriage of Asha were intentionally not mentioned in the plaint
because Durgadutt was born during the lifetime of Jamnadas, for
this reason, it can not be said that Onkardutt was the sole owner
of the property in question after the death of Jamnadas and
Surjidevi was passed away in the year 1995, therefore,
Gyanprakash @ Gyandutt will not become the sole owner of the
property in question keeping in view the conditions as mentioned
in Clause (iv) of the trust deed dated 22.09.1973.
It is also stated that the facts, as mentioned at page
number-1 of the sale deeds (Ex.6 & 7), are false because as per
Clause (iv) of the trust deed, at the time of execution of the sale
deeds, Gyanprakash @ Gyandutt was not the sole owner of the
property in question.
The learned Trial Court has decided eight (08) issues
together/jointly on the ground that all the issues are co-related
with each other.
It is further stated that the judgment on the suit filed for
eviction and arrears of rent was based upon the findings arrived in
the suit for declaration and findings arrived at in that suit were
based upon the suit which was filed by other person against other
persons; and neither the plaintiff was a party to that suit nor the
(43 of 118) [CFA-192/2010]
defendant was a party to that suit and on the basis of the findings
of that suit, it was held that since the lease deed was proved in
that suit by the evidence of the attesting witnesses of document
etc., therefore, Gyanprakash @ Gyandutt was became the sole
owner of the property in question at the time of execution of the
lease deed. Attesting witnesses or their legal representatives were
not came in the witness box, therefore, it was not proved that who
put their signatures on the document as attesting witnesses. It is
settled position of law that the parties are not bound by the
judgment of earlier suit when they are not the parties in the
earlier suit and judgment passed by the Court concerned is a
judgment in personam, not judgment in rem.
Trust deed in the present suit was exhibited during the
statement of PW-2 Gyanprakash @ Gyandutt, who was admittedly
13 years old minor child at the time of creation of the trust deed
which was executed in the year 1973; and the statement of
Gyanprakash @ Gyandutt was recorded in the year 2007, i.e.,
after a lapse of 34 years, therefore, on the basis of statement of
PW-2, it was wrongly held that the document i.e. Trust deed dated
22.09.1973 was proved by PW-2 Gyanprakash @ Gyandutt.
It is also stated that on the basis of the written statement
(Ex.14) of the proprietor Devkishan which was filed in the suit for
eviction and arrears of rent filed by Durgadutt wherein, Devkishan
pleaded that during the lifetime of Onkardutt, the rent was
received by Gyanprakash @ Gyandutt on behalf of Onkardutt and
even till the year 1983, rent was received by Gyanprakash @
Gyandutt, therefore, Gyanprakash @ Gyandutt was his landlord
and Durgadutt was not his landlord. It was presumed by the
(44 of 118) [CFA-192/2010]
learned Trial Court that it is an admission on behalf of the tenant
Devkishan that Gyanprakash @ Gyandutt was the owner of the
property in question whereas as per Section 3 of the Rajasthan
Premises (Control of Rent) Act, 1950, a person who receiving the
rent is landlord and suit for eviction and arrears of rent etc. can
be filed by that person but on that basis, he has not right to
transfer the property.
It is further stated that earlier in the year 1983, one suit was
filed by Gyanprakash @ Gyandutt against one Motilal and
Durgadutt which was decided on 17.12.2005 and, therefore, in the
present suit which was filed in the year 1996, it was wrongly said
that Durgadutt was missing since 10 to 12 years, because in that
suit, it is not the case that the Durgadutt is missing. It is also
relevant question that whether service upon a blind person can be
accepted through publication in a daily newspaper and it is also a
relevant question that such notice was published in which of the
newspaper, whether newspaper of local area or whether
newspaper of State level or National level. Only on the basis of
those judgments, it was presumed that Durgadutt was missing
from last 10 to 12 years at the time of filing of the suit.
Rent Deed was executed by Ramchandra in favour of
Jamnadas in the year 1959, i.e., the grand-father of Gyanprakash
@ Gyandutt and at that time, Gyanprakash @ Gyandutt was not
born and Onkardutt and Durgadutt were alive.
No proceedings were initiated against Hanumanbux for filing
a wrong suit and for receiving rent from the tenant.
It is one of the part of issue No.1 that Durgadutt was missing
for last 10 to 12 years; no evidence to this effect was adduced on
(45 of 118) [CFA-192/2010]
behalf of the plaintiff and even no Missing Person Report was filed
or no news or advertisement in regard to missing of the Durgadutt
was published in any of the newspaper and during the pendency
of the suit, Durgadutt appears before the Court and his statement
was recorded as DW-7 but this aspect of the matter was
overlooked by the learned Trial Court at the time of arriving
finding upon issue No.1.
As per page number 1 of the trust deed dated 22.09.1973,
the trust was created for the benefit of Onkardutt, Surjidevi i.e.,
wife of Onkardutt and minor daughter Ms. Asha and the minor son
Gyanprakash @ Gyandutt and the trust was named as "Smt. Suraj
Bai Bhadani Private Trust".
It is also stated that formation of the trust creates doubt
because the trust was created by two persons, i.e., Onkardutt and
Durgadutt and both of them became trustees of the trust and
subsequently, Surjidevi was also added as a trustee as well as
beneficiary of the trust.
The trust deed was wrongly accepted as genuine document
in the findings of the learned Trial Court arrived at page number
48 to 50 of the impugned judgment on the basis of the findings
given in other suits which were filed by other persons and against
other persons.
In support of his contentions, learned counsel Mr. Sajjan
Singh appearing on behalf of the appellant-defendant Dhanraj Dev
Kishan (CFA No. 197/2010) has referred to and relied upon the
following judgments:-
(46 of 118) [CFA-192/2010]
1. T.V. Ramakrishna Reddy Vs. M. Mallappa, reported in AIR
2021 SC 4293;
2. Union of India Vs. Vasavi Cooperative Housing Society Ltd.
& Ors., reported in AIR 2014 SC 937;
3. Union of India Vs. Ibrahim Uddin & Anr., reported in 2012
(8) SCC 148;
4. Noharlal Verma Vs. District Cooperative Central Bank Ltd.
Jagdalpur, reported in (2008) 14 SCC 445;
5. Nazir Mohd. Vs. J. Kamala, reported in AIR 2020 SC 4321;
6. Kantilal and ors. Vs. LRs of Deepchand and ors., reported in
2015 (3) DNJ (Raj.) 1308;
7. Kotha Seshamma and ors. Vs. Pittala venkayya and ors.,
reported in AIR 1957 (AP) 386;
8. T.A.V. Trust, Alleppey Vs. C.I.T. Kerala, reported in 1999
(3) SCC 7;
9. Shiv Kumar Vs. Union of India, reported in 2019 (10) SCC
229;
10. Bhaskar Woman Joshi Vs. Shri Narayan Rambilas agarwal,
reported in AIR 1960 SC 301;
11. Balasubramanian & Anr. Vs. M. Arokiasamy (dead) through
LRs, reported in 2021 (3) Cur. CC (SC) 504;
12. Manjeet Singh Vs. S.G.P.C., reported in 2001 (2) PLR 663;
13. LIC Vs. Anuradha, reported in 2004 (10) SCC 131;
14. N.Kamalam and anr. Vs. Ayyasamy & Anr., reported in
2001 (7) SCC 503;
(47 of 118) [CFA-192/2010]
15. Laxmi Narayan Vs. Poonam Chand, reported in 1998 DNJ
(Raj.) 61;
16. Sona Bala Bora and ors. Vs. Jyotirindra Bhattacharjee,
reported in 2005 (4) SCC 501;
17. Govinda Swami Niacker Vs. K.N. Srinivasa, reported in
AIR 1940 Madras 73;
18. State of Bihar Vs. Radhakrisha Singh, reported in 1983
(3) SCC 118;
19. Himani Alloys Limited Vs. Tata Steel Limited, reported in
2011 (15) SCC 273; and
20. Bhagwat Sharan through LRs Vs. Purushottam, reported
in AIR 2020 SC 2361.
While apprising the facts of the suit for arrears of rent and
eviction in CFA No. 192/2010 , Mr. Sajjan Singh, learned counsel
appearing on behalf of the appellant contended that as per para
no.3 of the plaint, eastern portion of the shop was sold by Gyan
Prakash Bhadani son of Onkardutt, resident of Bikaner in favour of
plaintiff No.1 - Sriniwas and eastern portion of the Godown
(Nohra) was sold by Gyan Prakash in favour of plaintiff no.2-Vira
Devi. It is contended by the learned counsel that as per para no.5
of the plaint, the disputed property i.e. the shop and Nohara was
given on rent by Onkardutt son of Jamnadas at the rate of
Rs.300/- per month, Onkardutt having two sons, one Durgadutt,
who is blind by birth and another Gyanprakash @ Gyandutt,
whereas the property was actually rented out by Jamnadas
himself. Learned counsel further contends that Onkardutt passed
(48 of 118) [CFA-192/2010]
away on 10.10.81 and during his life time, the rent was received
by Onkardutt himself and later on, on his behalf, Durgadutt or
Gyanprakash collected the rent as an agent. After death of
Onkardutt, one suit was filed by Durgadutt, which is registered as
Civil Original Suit No.44/82, for arrears of rent, use & occupation
charges and eviction, which was exhibited as Exhibit-13. The
written statement was filed in that suit by the appellant-Dev
Kishan, which was exhibited as Exhibit-14 and on the basis of that
written statement, it was stated by the plaintiff-Gyanprakash and
held by learned trial court that as per the pleading of Sriniwas in
that written statement Gyanprakash is his landlord and he denied
the title of Durgadutt; that pleading was made on behalf of
Sriniwas on the ground that during life time of Onkardutt mostly
the rent was received by Gyanprakash on behalf of Onkardutt and
legally the person, who is receiving the rent is landlord. One
agreement to sell was executed between Gyanprakash and
Bherudan. One suit for specific performance was pending and
during pendency of that suit, the sale deed was executed on
02.09.1986.
It is further submitted that earlier lease deed was executed
in favour of Hanuman Bux and one suit was filed on behalf of
Hanuman Bux against defendant-appellant and possession of the
disputed property was handed over to Hanuman Bux in the year
1994 through Sale Ameen in execution of that decree.
There is serious dispute in regard to the title of the property
on the basis of the trust deed (Exhibit-12), Gyandutt not became
owner at the time of sale deed dated 02.09.1986 because
(49 of 118) [CFA-192/2010]
condition imposed in clause 4 of the trust deed is not complete,
therefore, the sale deed in favour of Gyanprakash is not conclusive
proof of the title. Sriniwas resident of Nokha Mandi, Bikaner, is
not bonafide purchaser because he knew the fact in regard to title
of the disputed property. It is further submitted that the property
is not self acquired property of Onkardutt, the patta was issued in
favour of Jamnadas father of Onkardutt, Surji Devi, mother of
Gyanprakash, who expired on 31.10.1995 and she was alive at the
time of sale deed dated 02.09.1986 and since, the condition
imposed in clause 4 of the trust deed is not fulfilled, the trust was
not dissolved on the date of the sale deed, thus, Gyanprakash has
no right to sell the entire property. The question as to whether
Gyanprakash is entitled to sell the entire property or the sale is
bogus, apart from share of Gyanprakash in the disputed property.
It was stated in the sale deed Exhibits-8 & 9, that Surji Devi was
of unsound mind and still permission was not obtained by the
competent court in regard to share of Surji Devi and minor
daughter Asha. It is further stated that as per clause 5 of the trust
deed even for emergent situation or in need of the family, Surji
Devi can sell the property but no such liberty was granted to
Gyanprakash. In light of clause 5 of the trust deed, without
consent of Surji Devi, the property cannot be sold by Gyanprakash
or any other person. There is no evidence that for last 10 - 12
years Durgadutt was missing as there was no missing person
report or finding of any competent court in this regard is available
on record. The finding/evidence regarding missing of Durgadutt
cannot be arrived on record because his statement was recorded
in another Suit being Suit No.55/05.
(50 of 118) [CFA-192/2010]
Admittedly, Durgadutt, Surji Devi and Ms Asha were alive at
the time of sale deed Exhibits-8 & 9 and neither they are party to
the sale deed nor witness of the sale deed, therefore, the sale
deed in favour of Sriniwas is void ab initio.
The trust deed was not proved by any competent witness,
who is competent to prove the trust deed as per the provisions of
the Indian Evidence Act. It is further stated that the rent was
never received by trust or on behalf of the trust. It is also stated
that the person who collected the rent is landlord not the owner of
the property and who can collect the rent, can file the suit for
arrears of rent and eviction etc. but on the basis of that, he
cannot become the owner of the property and cannot sell the
rented property. It is further stated that no attornment was made
in favour of Sriniwas or Vira Devi. Without attornment, the tenant
is not liable to pay the rent to the purchaser and there is no
evidence of attornment because no notice was given by the seller
or purchaser and statement of seller was not recorded before
learned trial court. It is also stated that where title of
purchaser/owner is bonafidely disputed by the tenant, it is duty of
the purchaser that he proves the attornment and also establish it,
otherwise only on the basis of that, suit filed by one person
claiming ownership of the property, the tenant cannot be made
liable to pay to that person specially when suit for eviction and
arrears of rent was filed after the death of Onkardutt, one by
Durgadutt, another by son Gyanprakash, and one more by
Hanumanbux and one by present plaintiff-Sriniwas and Vira Devi.
(51 of 118) [CFA-192/2010]
In support of his contentions, learned counsel Mr. Sajjan Singh
appearing on behalf of the appellant-defendant Dhanraj Dev
Kishan (CFA No. 192/2010) has referred to and relied upon the
following judgments:-
1. Mahendra Rahunathdasa Vs. Vishvanath, reported in AIR
1997 SC 2437;
2. Gordhan Das through his LRs Vs. Somdutt, reported in
2007 (6) WLC 56;
3. Himani Alloys Limited Vs. Tata Steel Limited, reported in
2011 (15) SCC 273;
4. Karachi Wine Store Vs. Mohammed Rafiq, reported in
1988 (2) R.L.R. 633; and
5. Bhagwandas Vs. Brijmohan and anr., reported in 2007 WLC
382.
It has been prayed by the learned counsel appearing on
behalf of the appellants that the present appeals may kindly be
allowed and the judgments/orders under challenge may kindly be
set aside.
Per contra Learned counsel Mr. Narendra Thanvi along with
Mr. Mahendra Thanvi appearing on behalf of the
respondent/plaintiff - Sriniwas Jhanwar (CFA Nos.192/2010,
197/2010, 240/2010 and 206/2010), stated that Onkardutt was
passed away on 10.10.1981; rent upto the date of 31 st August,
1981 was received by Onkardutt; thereafter, rent was received by
Gyanprakash @ Gyandutt; earlier, one suit for eviction and arrears
of rent was filed by Durgadutt against the tenant Firm Dhanraj
(52 of 118) [CFA-192/2010]
Devkishan which was registered as civil Suit No. 45/1991; written
statement was filed by the defendant - Firm Dhanraj Devkishan;
that written statement was exhibited as Ex. 14; in paragraph
number 21 of the written statement, the facts mentioned at
paragraph number 21 of the plaint were denied and it was stated
that the facts, as mentioned at paragraph number 21 of the plaint
were false; in paragraph number 38 of written statement of rent
suit, it was stated that when the rent was paid to Gyanprakash @
Gyandutt and Durgadutt, it was paid treating them one unit and
while believing on their statement that after the death of their
father, they were the landlord of the property; defendant had no
intention to disobey any order of the Court; there was no intention
of attornment in favour of anyone; when the dispute between both
the brother came into the knowledge of the defendant, payment of
rent was stopped; in that case, provisional rent was determined
on 18.05.1983.
Learned counsel further stated that without handing over the
possession of the property in question, the lease deed executed in
favour of Hanumanbux is void; Hanumanbux was a clerk of the
Firm Dhanraj Devkishan.
It was mentioned at Page No.2 of the judgment passed in
Civil Suit No.54/2005, i.e. suit for eviction and arrears of rent and
etc. titled as Sriniwas Vs. Firm-Dhanraj Dev Kishan and Dev
Kishan (hereinafter referred to as 'the suit for eviction') that in the
life time of Onkardutt, the rent of disputed shop and godown
(Nohara) @ Rs.300/- per month was paid by tenant to
Gyanprakash @ Gyandutt Bhadani because attornment was made
(53 of 118) [CFA-192/2010]
by Onkardutt in favour of Gyanprakash @ Gyandutt therefore, as
per the pleadings and evidence, Gyanprakash @ Gyandutt became
landlord of the tenant and relation of landlord and tenant
established.
Onkardutt passed away on 10.10.1981 and even after death
of Onkardutt, the rent was paid to Gyanprakash @ Gyandutt as
per Page No.3 of the impugned judgment passed in the suit for
eviction and the rent upto 31.07.1981 was paid to Onkardutt and
in life time of Onkardutt, the rent for the period from 01.08.1981
to 01.09.1983 was paid by defendant-Devkishan to Gyandutt and
the rent receipts were issued by Gyanprakash.
It is also argued that the rent was paid while admitting
Gyanprakash landlord and owner of the property. Earlier one suit
was filed by Durgadutt against the tenant for rent and eviction,
which was registered as Civil Suit No.44/1982 and in written
statement of that suit, it was admitted by tenant that Durgadutt is
not landlord of the property and Gyanprakash is his landlord and
the rent was regularly paid to Gyanprakash. One another suit was
filed by Hanumanbux against the tenants on the basis of lease
deed executed by Durgadutt in favour of Hanuman Bux in that suit
collusive decree was passed in favour of Hanuman Bux, which is
exhibited as Exhibit-12, and the relief of possession was sought
for in the plaint and it is wrong to say that the relief for possession
was not sought by the plaintiff. Pleading of defendant was
mentioned at Page No.11 of the judgment passed in Civil Suit
No.54/2005, in which it is stated that by the tenant that no
attornment was made in favour of the plantiffs. There is no
(54 of 118) [CFA-192/2010]
information of sale s given to defendants-tenants and it was not
assured by defendants or any of the partner that in future rent will
be paid to the plaintiff. The facts mentioned in rejoinder are
mentioned at Page No.11 of the above judgment, in which it is
pleaded that earlier one suit was filed by Gyanprakash against
Firm-Dhanraj Dev Kishan and Dev Kishan, which is registered as
Civil Suit No.80/1983 and arrears of rent was demanded from
April, 1983. Since Gyanprakash is sole owner of the property by
virtue of trust deed dated 22.9.1973; the property was sold to the
plaintiff vide sale deed dated 02.09.1986 (Exhibits-6 & 7). During
pendency of the present suit, Bhanwarlal, Omprakash and Sanju
Devi were impleaded as defendants and it is also stated that in
suit for eviction, provisional rent was determined and against that
order, a revision was filed and the same was dismissed. The issues
were framed on the basis of pleadings of both the sides, which are
available at Page Nos.21 to 23 of the impugned judgment. One
defence was taken by the defendant that the trust deed dated
22.9.1973 is not a trust deed but a gift deed and that point was
earlier decided by the learned trial court vide order dated
07.03.2005 and the same was challenged before Hon'ble High
Court by way of a writ petition, which was dismissed on
30.03.2005 and the document was treated as the trust deed.
Since issues no.1 to 3, 5 to 8, are co-related and the same were
decided jointly in the impugned judgment. The trust deed dated
22.9.1973 was executed by Onkardutt and Durgadutt in regard to
clause 4 of the trust deed, it was argued that issue 'rFkk' used
between Onkardutt and Surjidevi may be read as 'vkSj' death of
(55 of 118) [CFA-192/2010]
both the persons are not necessary and admittedly, Onkardutt
passed away on 10.10.1981, Gyandutt attained the age of
majority, therefore, he became sole owner of the property by
virtue of the trust deed dated 22.9.1973. It is further stated that
as per Page No.23 of the judgment, two witnesses produced on
behalf of the plaintiff and ten witnesses produced on behalf of the
defendants and after hearing both the parties, the impugned
judgment was correctly passed by the learned trial court in favour
of the plaintiff and against the defendant. It is rightly held that
since after March, 1983, the rent was received by Gyanprakash
and the rent receipts were issued and therefore, he is only
landlord for defendants no.2 & 3. Another aspect in this finding is
also correct that in Civil Suit No.44/1982, which was filed by
Devkishan in the court of Civil Judge, Bikaner on 26.07.1982, for
arrears of rent and eviction and in that suit, written statement was
filed by the defendants on 09.03.1983 and in that written
statement, it is admitted that Gyanprakash is landlord of the
disputed property and attornment was made in favour of
Gyanprakash and due rent was determined on 18.05.1983 and in
that suit and as per determination, due rent till date was
Rs.5629.50 but the same was not deposited by tenant and the
defence was struck-off . Since the rent from 01.04.1983 was not
paid to Gyanprakash, one suit for eviction and arrears of rent was
instituted by Gyanprakash against the tenant, which was
registered as Civil Suit No.80/1983, in that suit, ex parte
proceedings were initiated against the tenants no.2 & 3 on
25.10.1983. One inter-pleader suit was registered as Civil Suit
No.57/1983, which was filed by the defendants-tenants and since
(56 of 118) [CFA-192/2010]
the due rent was not deposited in that suit, the same was
dismissed on 29.10.1983 by the learned trial court and an appeal
against that suit was also dismissed.
Civil Suit No.54/2005 which was earlier registered as Civil
Suit no.45/1991, for arrears of rent and eviction, titled as
Sriniwas and Others Vs. Firm Dhanraj Dev Kishan and Dev Kishan
and others in the Court of District Judge, Bikaner. In that suit, rent
was determined on 30.01.1993 for the period from 05.07.1988 to
04.01.1993 i.e. 54 months @ Rs.300/- per month and it was held
that Rs.16,200/- was the due rent and infact along with interest
due rent was Rs.17,200/-. The order of the rent determination
was exhibited as Exhibit-8 in the present suit and against that
order, an appeal was preferred by the defendants-tenants and the
same was dismissed, therefore, defence of the tenant was struck-
off by the learned trial court vide order dated 31.08.1994, that
order was exhibited as Exhibit-9, against that order, the appeal
was preferred and the same was dismissed by order/judgment
dated 16.07.1996, that order/judgment is exhibited as Exhibit-10.
Gyanprakash, predecessor-in-title, was examined before
learned trial court as PW2 and he has proved the document trust
deed dated 22.9.1973 by his evidence and relevant finding of the
learned trial court is available at Page No.44 of the impugned
judgment. Since he identified the signature of Onkardutt i.e.
father of the witness, signature of attesting witnesses, Bahadur
Singh Kochar, Noor ahmad Gajdhar because both the persons
signed the document in present of Gyandutt and it is also made
clear that Onkardutt, Durgadutt, Bahadur Singh Kochar and Noor
Ahmad Gajdhar are not alive. Signatures of Asha on sale deed
(57 of 118) [CFA-192/2010]
(Exhibits-6 & 7) as well as of Kisturchand were also identified by
PW2 Gyanprakash and it is also stated that Kisturchand is not
alive now. It is also admitted that the sale deed was executed by
Gyanprakash, after attaining the age of majority, therefore, it is
rightly held by the learned trial court that the trust deed dated
22.9.1973 as well as sale deed (Exhibits-6 & 7) were proved by
evidence of the plaintiff. It was also admitted in the written
statement at para no.27 of the written statement that the rent
upto March, 1983, was paid to Gyanprakash but wrongly said that
the rent was paid in the capacity of agent and in the capacity of
nominee. It is also wrongly pleaded that fact of death of
Onkardutt was not within the knowledge of defendants-tenants.
A specific pleading in regard to title and ownership was made
in para no.5 of the plaint. It is also stated that earlier one suit was
filed by Gyandutt against Motilal and Durgadutt, in that suit, one
of the issue was
"1- vk;k oknh c:os VªLVukek fnukad 22-9-73 oknxzLr vpy laifr dk vdsyk
ekfyd gS +\ ---- ih -----^^
In that case, Gyandutt (PW1), Modaram (PW2), Bahadur
Singh (PW3), Noor Ahmad (PW4) and Kisturchand (PW5) were
examined and on the basis of their statements and on the basis of
Trustnama, in view of the above, the trust deed was proved and
Gyandutt was found sole owner of the property and that judgment
dated 10.09.1991 was exhibited before learned trial court as
Exhibit-27.
Exhibit-29 is the judgment passed in Civil Suit No.103/1990
titled as Gyandutt @ Gyanprakash Vs. LRs of Motilal and
(58 of 118) [CFA-192/2010]
Durgadutt and Exhibit-27 is judgment of remand and after adding
additional issue of this fact that whether Surji devi was not legally
wedded wife of Onkardutt; Ms. Asha was not legitimate child of
Onkardutt and Durgadutt is only legal representative of Onkardutt
but the issue was not proved by the defendant and the judgment
passed thereafter, which was exhibited as Exhibit-30. The two
issues which were relevant in the instant case which were already
framed (Exhibit 30) are -:
1- vk;k oknh tfj, VªLVukek fnukad 22-9-73 edku eqruktk dk
Lokeh Lor% vf/kdkjh ,oa dkfct gS \ & oknh
5- vk;k fnukad 22-9-73 dks fu'ikfnr lqjtckbZ Hkknk.kh izk- VªLV
oS/k :i ls] fu'ikfnr fd;k x;k] izHkko esa vk;k vkSj bl vk/kkj ij
oknh okn izLrqr djus dk vf/kdkjh gS \ & oknh
Although, the statement of Durgadutt was recorded as DW7
but he did not prove the fact that Surjidevi is not legally wedded
wife of Onkardutt and Gyanprakash and Asha are not legitimate
child of Onkardutt. It is also not proved that earlier Surjidevi was
wedded wife of Hauda and Gyanprakash and Asha are son and
daughter of Hauda. It is further stated that it is an important
question that, what is the effect of clause 4 of Exhibit-3 and when
Gyandutt became absolute owner of the property.
It is further stated that following are the important questions
for adjudication of the present case :
(i) Attornment;
(ii) Whether, attornment was made in favour of Gyandutt after
death of Onkardutt.
So far as attornment is concerned, it was argued that as per
the finding on Page No.55 of the impugned judgment, learned trial
(59 of 118) [CFA-192/2010]
court rightly held that Exhibit-34, written statement of the tenant,
it was admission of tenant that attornment was made in favour of
Gyanprakash.
(iii) Whether, what right accrued on the basis of trust deed and
whether right of transfer given to Gyanprakash ?
It is also argued that the lease deed in favour of Bhanwarlal
was not submitted on record. As per para 46 of the impugned
judgment, lease deed Exhibit-A/1 was not proved. It is also
argued that as per para 27(3) of the plaint, it was rightly held by
the learned trial court at para 54 of Page No.94 that objection of
the plaintiff regarding relief for possession was not sought in the
plaint is wrong, therefore, it is wrong to say that the suit for
possession was not filed by the plaintiff.
It is further argued that it is not the case of the appellant
that Exhibits-6 & 7, sale deeds were not exhibited only
competence of the seller challenged.
It is also stated that as per Order 8 Rule 2 CPC, new facts
must be specifically pleaded. The suit was filed by the plaintiff
within limitation from the date of knowledge, the fact of execution
of lease deed came within the knowledge of the plaintiff on
24.07.1996, when threatening was given by tenants-defendants.
It is further stated that the lease deed was void ab initio so now
there is no need to challenge the validity of the lease deed. It is
further stated that till the date of adverse effect, the plaintiff need
not to challenge the said lease deed and fraudulent decree was
obtained on the basis of above lease deed, no there is no need to
file suit for cancellation of that decree.
(60 of 118) [CFA-192/2010]
The cause of action for suit for declaration arises on the date
when decree was passed in Civil Suit No.34/1994 vide judgment
dated 02.06.1994 (i.e. Exhibit-12) therefore, the suit is within
limitation from the decree obtained by fraud because Article 59 of
the Limitation Act states that the starting point of limitation is
from the date of when fact of fraudulent decree first time came in
the knowledge.
Lease deed is not coming within the definition of title when
the trust deed came within the definition of title.
Lease deed does not affect right of the plaintiff. Suit is only
filed for cancellation of lease deed. 1994 is the start point of
limitation. The lease deed is ignorable because it was not executed
by the competent person.
Lease deed of 1985 is non est in the eyes of law because
possession was taken only in execution of decree passed in favour
of Hanuman Bux.
For appeal of Omprakash and Sanju Devi, it is stated that
when main lease deed in favour of Hanuman Bux declared null and
void, no need to challenge the subsequent lease deeds, challenge
to the validity of first lease deed is sufficient, therefore, lease deed
in favour of Bhanwarlal is void ab initio.
It is argued by the learned counsel Mr. Narendra Thanvi
appearing on behalf of the respondent-plaintiff that the suit for
eviction was filed on the ground of default in payment of rent and
other grounds on 05.07.1991; written statement was filed on
22.05.1992; application for amendment under Order 6 Rule 17
CPC was filed on 05.03.2005 which was allowed and the amended
written statement was filed and on the basis of additional
(61 of 118) [CFA-192/2010]
pleadings, issue No. 10-A was framed by the learned Trial Court. It
was admitted by the defendants-tenants in the earlier suit filed by
Durgadutt for eviction and arrears of rent which was registered as
Suit No. 44/1982, that Durgadutt is not the landlord of the tenants
and Gyanprakash @ Gyandutt is the landlord of the property in
question. The plaintiff (Sriniwas) purchased the property in
question on 02.09.1986 from Gyanprakash @ Gyandutt and as per
Section 109 of the Transfer of the Property Act, attornment came
into force automatically in favour of the plaintiff (Sriniwas) and no
notice was required. In support of this argument, learned counsel
for the respondent-plaintiff has refereed to and relied upon the
judgment reported in Dr. Ambica Prasad Vs. Mohd. Alam & Anr.,
reported in 2015 (3) CCC 45 (SC).
It is further stated that notice under Section 106 of the
Transfer of Property Act was sufficient and no other notice was
required. In support of this argument, learned counsel for the
respondent-plaintiff has referred to and relied upon the judgment
rendered in the case of LRs of late Shri Gurubux Singh Vs. Khem
Singh reported in 2014 Supplementary CCC 330.
In para 29 of the written statement, it is stated that the
landlord Onkardutt was living at Bikaner whereas the property in
question was situated at Nokha Mandi, District Bikaner and
Gyanprakash @ Gyandutt was receiving the rent on behalf of
Onkardutt and the rent was paid to Gyanprakash @ Gyandutt in
the capacity of an agent of Onkardutt, therefore, it was wrongly
held that even after the death of Onkardutt, the rent was paid to
Gyanprakash @ Gyandutt.
(62 of 118) [CFA-192/2010]
It is further stated that provisional rent was determined by
the learned Trial Court and the same was challenged in appeal and
the appeal was dismissed.
Learned counsel also referred and relied upon the judgement
LRs of Ramdev Kajaria Vs. Vijay Narayan, reported in 2005 (4)
RLW 2288 which is related to striking out of defence tenant.
It is further stated that if the provisional rent was not
deposited as per Section 13(4) of the Rent Control Act, the benefit
of first default cannot be given by the learned Trial Court under
Section 13(6) of the Act of 1950. In support of this argument,
learned counsel for the respondent-plaintiff has referred to and
relied upon the judgments Heera Lal Vs. Mandir Shri Thakurji
Sangria & Anr. reported in 2005 (2) RLW Rajasthan 1114,
Head Note B and Kanti Lal Vs. Legal Representatives of late Smt.
Chand Kumari reported in 2004 (2) RLW 1190.
Sale-deeds (Ex. 8 & 9) based on the trust deed and the
same were proved as Exhibit 12.
The foundation of the suit was the trust deed which was
exhibited as Ex. 12 in the present suit and as Exhibit 3 in the suit
for declaration.
Findings on issue No. 9 at page 39 of the impugned
judgment are correct because Durgadutt was not admitted as
landlord of the property and predecessor of plaintiff, Gyanprakash
@ Gyandutt was found to be the landlord of the property. Even it
was admitted before Hon'ble the High Court in its order dated
17.05.1994 that the plaintiff was the owner of the defendants for
the disputed property.
(63 of 118) [CFA-192/2010]
Findings at page number 40 and onwards are also correct. It
was rightly held by the learned Trial Court at page 44 of the
impugned judgment that in other suit, it was decided that
possession of Hanumanbux was symbolic and defendants were not
in physical possession.
Finding in regard to issue No. 10-A, started from page 46, on
the basis of the fact that earlier suit was filed/decided on
06.01.1994, the principles of res judicata were not applicable in
the present case. The rent till 06.01.2004 can be treated as
abandoned and the present suit was filed for recovery of rent for
the subsequent period from 02.09.1986 and onwards upto the
date of sale deeds (Ex.8 & 9), therefore, it was rightly held by the
learned Trial Court that the principles of res judicata were not
applicable to the present suit and, therefore, the same was
maintainable which was filed by the subsequent purchaser, the
plaintiffs (Sriniwas & Viradevi).
In support of his contentions, learned counsel Mr. Narendra
Thanvi & Mr. Mahendra Thanvi appearing on behalf of the
respondent-plaintiff (Sriniwas Jhanwar) in CFA No. 192/2010 has
referred to and relied upon the following judgments:-
1. LRs of late Shri Gurubux Singh Vs. Khem Singh, reported in
2014 (Suppl.) Civil Court Cases, Page 330;
2. Dr. Ambica Prasad Vs. Mohd. Alam & Anr., reported in 2015
Vol. 3 Civil Court Cases, Page 045;
3. Ramadhar Shrivas Vs. Bhagwandas, reported in 2006 Vol.
1 Civil Court Cases, Page 450;
(64 of 118) [CFA-192/2010]
4. M/s. Payal Vision Ltd. Vs. Radhika Choudhary, reported in
2012 Vol. 4 Civil Court Cases, Page 788;
5. Kanti Lal Vs. Legal Representatives of late Smt. Chand
Kumari, reported in 2004 Vol. 2 R.L.W., Page 1190;
6. N.R. Narayan Swamy Vs. B. Francis Jagan, reported in 2001
AIR SC Page 2469;
7. LRs of Ramdev Kajaria Vs. Vijay Narayan, reported in 2005
Vol. 4 R.L.W. Page 2288;
8. Heera Lal Vs. Mandir Shri Thakurji Sangria & Anr., reported
in 2005 Vol. 2 R.L.W. Page 1114;
In support of his contentions, learned counsel Mr. Narendra
Thanvi & Mr. Mahendra Thanvi appearing on behalf of the
respondent-plaintiff (Sriniwas Jhanwar) in CFA Nos. 197/2010,
240/2010 & 206/2010 has referred to and relied upon the
following judgments:-
1. M/s. Umed Realators, Vani, District Yavatmal & Ors. Vs.
Smt. Shobha Wd/o Mahadev Deshpandey & Ors., reported
in 2017 Vol.2 Civil Court Cases, Page 703;
2. Daya Singh & Anr. Vs. Gurdev Singh (Dead) by LRs & Ors.,
reported in 2010 Vol. 1 Civil Court Cases, Page 290;
3. Santosh Vs. Jagat Ram & Anr., reported in 2010 Vol.2 Civil
Court Cases, Page 227;
4. M/s. Mawadi Moulding Factory Vs. Andhra Pradesh State
Electricity Board & Ors., reported in 1976 AIR SC Page
2403;
(65 of 118) [CFA-192/2010]
5. LRs of Moti Lal, Adopted son of late Shri Labh Chand, by
caste Joshi Vs. Gyandutt @ Gyanprakash S/o late
Onkardutt, by caste Bhadani Brahmin & Anr. (S.B. Civil
Second Appeal No. 119/2011, decided on 13.03.2015); and
6. Ajab Singh & Ors. Vs. Pandit Babu Ram & Ors., reported in
2012 Vol. 4 Civil Court Cases, Page 423.
It has been prayed by the learned counsel appearing on
behalf of the respondent-plaintiff that the appeals may kindly be
dismissed and the judgments/orders under challenge may kindly
be upheld.
In reply to the arguments advanced by the learned counsel
for the respondent-plaintiff, learned Senior Counsel Mr. Manish
Singhvi in rejoinder arguments stated that the pleadings in regard
to knowledge, as mentioned at para No. 23 of the plaint, are
vague and incorrect because in earlier suit which was filed by the
same plaintiff (Sriniwas) against the tenants-defendants No. 2 and
3, i.e., Firm Dhanraj Devkishan and Devkishan for eviction and
arrears of rent which was earlier registered as Civil Suit No.
120/91 and subsequently registered as Civil Suit No. 54/2005. As
per para 40 of the written statement, existence of lease deed
dated 09.01.1985 came to the knowledge of the plaintiff on
22.05.1992 when the written statement was filed by the
defendants in Civil Suit No. 54/2005 in which, it was clearly stated
that the lease deed for a period of 99 years was executed by
Durgadutt for disputed shops and godowns on 09.01.1985 in
favour of Hanumanbux S/o Ramchandra Laddha and thereafter,
rent was regularly demanded by Hanumanbux. There was no
(66 of 118) [CFA-192/2010]
simplicitor disclosure of the facts, pleadings in written statement
were clear so, right to sue accrues by written statement dated
22.05.1992 itself.
While reading provision of Article 58 and 59 of the Indian
Limitation Act, learned counsel for the appellants stated that the
plaintiff had sought cancellation of the document i.e. lease deed
dated 09.01.1985 which shall be covered by Article 59 of the
Indian Limitation Act and as per that provision, an instrument or
decree can be set aside or cancelled within three years from the
date of knowledge about the existence of the instrument or
decree. Learned counsel also stated that it was specific pleading of
the defendants that the plaintiffs are not the landlord and
Hanumanbux is their landlord by virtue of lease deed dated
09.01.1985.
It is stated that in para 27 (i) of the plaint, relief was sought
for declaration of lease deed dated 09.01.1985 which was
executed by Durgadutt in favour of Hanumanbux may kindly be
declared void ab initio , non-effective against the plaintiffs and the
plaintiffs may be declared as owners of the disputed property. If
suit is for any other declarations then Article 58 of the Indian
Limitation Act would be applicable, it means that the relief of
declaration cannot be granted without claiming the relief of
possession.
It is further stated that how the decree which was passed in
relation to the dispute between the landlord and tenant gave a
cause of action to the plaintiffs of this case.
It is stated that the written statement which was filed in a
suit for eviction and arrears of rent was exhibited as Exhibit 14
(67 of 118) [CFA-192/2010]
and as per para 40 of the Exhibit 14, cause of action arises on the
date of filing of the written statement, i.e., 22.05.1992, therefore,
the pleadings, as mentioned at para 23 of the plaint, i.e., the suit
for declaration, in regard to the knowledge, is false, therefore, it is
wrong to say that for the first time, on 24.07.1996, when the fact
of decree passed in Civil Suit No. 34/1994 titled as "Hanumanbux
Vs. Firm Dhanraj Devkishan & Ors" came within the knowledge of
the plaintiffs and thereafter, on inquiry, the fact of execution of the
lease deed dated 09.01.1985 also came within the knowledge of
the plaintiffs.
Learned counsel for the appellants also stated that a bare
perusal of paragraph 26 of the plaint in regard to the pleadings
about suit valuation and limitation, it reveals that the suit was not
valued for permanent injunction and no court fees was paid for
permanent injunction but despite of that, the decree for
permanent injunction was granted by the learned Trial Court.
While drawing attention of the Court towards paragraph 27,
sub paragraphs (ii) & (ii) of the plaint, it is stated that the said
paragraphs are related to the relief of declaration whereas, sub
paragraph (iii) is related with the prohibitory injunction. It is
stated that no relief for possession was sought for and without
claiming the relief of possession, the suit simplicitor for
declaration, cannot be maintainable, as per Order 2 Rule 2 of the
CPC and as per Section 34 of the Specific Relief Act.
It is further stated that Durgadutt was a party to the trust
deed as well as lessor of the lease deed under challenge and he
was examined before the Court as DW-7 but despite of that, he
was not impleaded as a party to the suit as defendants, therefore,
(68 of 118) [CFA-192/2010]
the suit was liable to be dismissed on the ground of non-joinder of
the party and, therefore, the version of the plaintiffs was false and
baseless that at the time of filing of the suit, Durgadutt was
missing since last 10 to 12 years and for the sake of arguments, if
this fact was not brought at the time of filing of the suit, why he
has not impleaded as party to the suit when he himself had
appeared before the Court and deposed as DW-7 in the present
suit.
It is also argued that Section 41, 42, 43 of the Indian
Evidence Act provided that which of the judgments passed in the
earlier suits/proceedings will be binding in the subsequent
suits/proceedings and which of the judgment is called judgment-
in-personam and which of the judgment is called judgment-in-rem
and since the judgments relied upon by the learned Trial Court
while passing the impugned judgment are not the judgment-in-
rem, therefore, it is argued that the judgments were not
applicable to the present suit.
It is stated that the 'lease deed' is not a 'sale deed',
therefore, Durgadutt was not required to be impleaded as a party
in the suit.
Joining the rejoinder arguments, learned counsel Mr. Sajjan
Singh Rajpurohit, appearing on behalf of the appellant (in CFA No.
192/2010) stated that when the trust was accomplished, when
Gyanprakash @ Gyandutt became absolute owner of the disputed
property and when attornment was made, nothing is clear from
the pleadings of the plaintiff, therefore, the pleadings of the
plaintiff in this regard are vague.
(69 of 118) [CFA-192/2010]
Meaning of the trust itself is very clear, therefore, the
learned Trial Court has wrongly held that the trustees of the trust
would be a settler or a beneficiary. As per Section 3 of the Indian
Trust Act, trust is not a juristic person; property vests into trust,
not in trustee. In the present case the trust deed was executed in
1973. it is further stated that formation of Trust is void because
the settler and executor of trust deed had no vested property in
question into any trustee, thus in absence of any trustee, the
formation and execution of trust is void ab initio. The meaning of
trust as provided under section 3, creation of trust is not proved in
view of section 6, nor trust is created as provided under section 7
and in view of section 11, execution of trust is not in existence,
nor it was extinguished, in view of section 77 of Indian Trust Act
1882.
Findings at page number 24 of the impugned judgment are
perverse because possession was handed over to Hanumanbux in
pursuance of the proceedings of execution of the decree passed in
the earlier suit. During the course of cross-examination, it was
suggested to DW-1 that possession was part with Hanumanbux. It
is stated that since the possession was handed over to
Hanumanbux in execution of the decree of the Court, it cannot be
held that only the symbolic possession was given. The findings of
the learned Trial Court were based upon the findings of other suit
in which, the parties were not similar and the disputed property
was also different. It is not necessary to disclose the complete
status at the time of interlocutory proceedings. In written
statement, all necessary facts were disclosed by the defendants. It
(70 of 118) [CFA-192/2010]
is also stated that the disputed property was an ancestral
property.
While replying to the arguments of learned counsel Mr.
Narendra Thanvi, learned Senior Counsel Mr. Manish Singhvi
appearing for the appellants in CFA No. 240/2010 stated that as
per Article 58 of the Limitation Act, even in case of continuous
cause of action, the suit has to be filed within the period of
limitation. In the present case when written statement was filed in
earlier suit i.e in the year 1992, the right to sue first accrues. Even
as per Article 94 of the Indian Limitation Act, the right to sue
accrue in the year 1992. As per Article 58 of the Indian Limitation
Act, the right to sue accrues in the year 1992. As per plaintiff
himself, material additions and alterations and new construction
was raised by the defendants and material alteration was one of
the ground of eviction in the earlier suit. If there is a judgment in
which, the appellant was not a party, the doctrine of res judicata
would not applies.
While submitting compendium in regard to Section 41 to 43
of the Indian Evidence Act, learned counsel for the appellant
stated that Section 43 applies in the present case.
In the earlier suit, issues No. 2 to 8 were not decided and
the same were dismissed as not pressed, therefore, the judgment
was not passed on the facts-in-issue.
It is further stated that interpretation of the learned Trial
Court was wrong then, there was no need to mention all the
conditions of clause (iv) and only one condition was sufficient
whereas, there were three conditions : (i) death of parents, (ii)
attaining the age of majority by Gyanprakash @ Gyandutt and (iii)
(71 of 118) [CFA-192/2010]
marriage of Asha and this issue was not proved according to law
and the Court comes to the conclusion that the trust deed was not
proved as per the provisions of the Indian Evidence Act then, the
sale-deeds (Ex. 6 & 7) which were executed on the right accrues
on the basis of trust deed dated 22.09.1973, no absolute right of
ownership can be drawn in favour of the plaintiffs.
Section 77 of the Indian Trust Act, 1882 defines that how the
trust was extinguished and as per that provision, the trust in the
present case was not extinguished before the date of sale, i.e.,
02.09.1996.
Gyanprakash @ Gyandutt was one of the beneficiary of the
property, not the owner of the property.
Section 3 of the Indian Trust Act says that what is the
meaning of the trust, how the trust would be created and who
would the author of the trust and as per that provision, the author
of the trust would not become the owner of the trust property. At
the time of sale, the trustees, i.e., Durgadutt and Surjidevi, both
were alive and there is no evidence that marriage of Asha was
solemnized before that date, therefore, the sale-deeds based upon
above mentioned trust deed dated 22.09.1973 were wrongly
found genuine by the learned Trial Court.
Hanumanbux taken possession of the disputed property in
execution of the decree passed in the earlier suit and the
possession was handed over by the Sale Ameen.
In the alternative, it is stated by the learned counsel for the
appellants that the sale-deeds were not challenged in another
suit; landlord would not be the absolute owner of the property;
(72 of 118) [CFA-192/2010]
title is under cloud; some of the necessary issues were not
framed, therefore, remand the matter.
Heard Learned Counsel appearing for the parties extensively
and perused the record. I have given my thoughtful consideration
to the arguments advanced by the learned counsel appearing on
behalf of respective parties and to the numerous judgments cited
at Bar to buttress their arguments/submissions.
Now, it would be appropriate to deal with each of the
judgments cited by the learned counsel appearing on behalf of the
appellants as well as by the respondents.
In support of the contentions for Civil First Appeal no.
240/2010, learned counsel for the appellants relied upon the
following judgments-
In the case of Dy. Commissioner, Hardoi (supra), Hon'ble
the Supreme Court, while relying on the Full Bench decision of
Allahabad High Court, as reported in AIR 1997 All. 18, it has been
held that, if necessary party is not impleaded, it clearly becomes a
case of non-joinder of parties.
The relevant portion of the decision of Allahabad High Court
is reproduced herein as under:-
"In Benares Bank Ltd., Benares v. Bhagwandas (1), a
Full Bench of the Allahabad High Court considered
this question and expressed the same opinion as had
been expressed in the Oudh decisions referred to
above. Mr. Justice Braund, who was one of the
Judges constituting the Full Bench, with great
reluctance shared the opinion of the majority merely
out of respect for the opinion of Pathak J. and it
(73 of 118) [CFA-192/2010]
appears that, left to himself, he would have held
otherwise. The majority judgment was delivered by
Pathak J. He enunciated two tests for deciding
whether a certain person was a necessary party in a
proceeding: (1) that there must be a right to some
relief against such party in respect of the matter
involved in the proceedings in question, and (2) it
should not be possible to pass an effective decree in
the absence of such party, and proceeded to observe
that the creditors of a landlord who have claimed
relief under the Encumbered Estates Act are
necessary parties to the proceedings under that Act
and that the object of the Act is to compel the
landlord to surrender his entire property for the
benefit of his creditors and to liquidate the debts of
all the creditors in accordance with and to the extent
permitted by the Act. There can be no question that
these are the true tests for determining whether a
person is a necessary party to certain
proceedings.............."
Now, coming to the facts of the present case that, Shri
Durgadutt was the trustee of the trust deed dated 01.12.1973.
Durgadutt was a lessor of the lease deed dated 09.01.1985 which
is sought to be quashed. No instrument can be set aside by the
Trial Court without making lessor as a party. The lessor and lessee
both have to made party if there is quashment/setting aside of
valid instrument registered. Durgadutt was an essential party
under Order 1 Rule 10 CPC.
If necessary parties not impleaded, it clearly becomes a case
of non-joinder of parties, therefore, in the instant case,
admittedly, Durgadutt was not impleaded in the proceedings, it is
a clear case of non-joinder of necessary party.
(74 of 118) [CFA-192/2010]
In the case of Anathula Sudhakar (supra), Hon'ble the
Supreme Court has laid down the requisites of filing of a civil suit.
While dealing with the issue at hand, it has been held as under:-
"13.3.... Where the title of the plaintiff is under a cloud
or in dispute and he is not in possession or not able to
establish possession, necessarily, the plaintiff will have
to file a suit for declaration, possession and injunction."
Here, in the present case, firstly, there is a serious doubt or
cloud over the title of the plaintiff. It is in this context that several
issues were framed with regard to formation of trust itself and
consequent transfer to plaintiff herein vide sale deed dated
02.09.1986. Secondly, admittedly, the plaintiff was not in
possession. Therefore, the suit ought to have included the prayer
of possession.
The view as expressed in the case of Anthula Sudhakar
(supra) has been reiterated in the case of Muni Lal Vs.
Oriental Fire & General Insurance Co. Ltd. & Ors., reported in
(1996) 1 SCC 90, the relevant portion is quoted herein below:-
"93....... Mere declaration without consequential relief
does not provide the needed relief in the suit; it would
for the plaintiff to seek both the reliefs. The omission
thereof mandates the Court to refuse to grant the
declaratory relief."
Here, in the present case, the prayer in sub-clause (iii) of
Clause 27 was caused in negative terms, and seeking an
injunction not to grant possession to any other person. It did not
mean or could be construed that possession has to be granted to
the plaintiffs herein. It is, therefore, clear that in absence of any
consequential relief sought in the plaint or even granted by the
(75 of 118) [CFA-192/2010]
court of first instance, the present suit in its present form shall not
survive.
In the case of Noharlal Verma (supra), it has been
specifically laid down that even in absence of a plea of limitation
raised by the defendants, the Court, if it is satisfied that the suit is
barred by limitation, it ought to be dismissed. The relevant portion
of the judgment is reproduced herein below:-
"33........ Bare reading of the aforesaid provision leaves
no room for doubt that if a suit is instituted, appeal
preferred or application is made after the prescribed
period, it has to be dismissed even though no such plea
has been raised or defence has been set up."
Here, in the present case, the plaintiff states that it is only
on 24.07.1996, i.e., for the first time, he came to know about the
decree dated 02.06.1994 and in the process of lease deed dated
09.01.1985 whereas the lease deed dated 09.01.1985 was
specifically mentioned in the written statement filed by the
defendants/ respondents No. 2 & 3 on 22.05.1992 in Suit No.
45/1991, herein in the earlier suit filed by Sriniwas (plaintiff)
himself in which, it was categorically mentioned that the lease
deed has been executed by Durgadutt in favour of Hanuman Bux
on 09.01.1985 is exhibited as Exhibit P/14 in the present suit was
categoric at para number 40. Thus, the existence of the lease
deed dated 09.01.1985 came to be known to the plaintiff on
22.05.1992 when the written statement was filed by the
defendant(s) in Civil Suit No. 54/2005 (45/1991) and the suit was
filed and registered on 07.02.1996 way beyond the period of three
years. Thus, in the present suit, Article 59 of the Limitation Act
(76 of 118) [CFA-192/2010]
would be applicable, and the suit ought to have been dismissed in
exercise of power under Section 3 of the Limitation Act.
As far as Article 58 of the Limitation Act is concerned, it shall
only happen once the right to sue first accrues. It would be
relevant to mention that the defendant Nos. 2 & 3 and the
plaintiffs were party of the earlier suit and were pursuing
adversarial proceedings. The defendant therein had raised the
contention which was hostile/animus to the rights of Sriniwas in
the year 1992 itself. Therefore, the right to sue arose in the year
1992 itself. The assertion made in para 40 of the earlier written
statement (exhibited as A/14 in the present suit) jeopardized the
rights of Sriniwas sufficiently to accrue a right to sue for first time.
Thus, 'first time' is important in Article 58 to Schedule of the
Limitation Act. In this regard, relevant extract from the judgment
in the case of Union of India & Ors. Vs. West Coast Paper
Mills Ltd. & Anr., reported in (2004) 2 SCC 747 is reproduced
herein as under:-
"21. A distinction furthermore, which is required to be
noticed is that whereas in terms of Article 58 the period
of three years is to be counted from the date when 'the
right to sue first accrues'; in terms of Article 113
thereof, the period of limitation would be counted from
the date 'when the right to sue accrues'. The distinction
between Article 58 and Article 113 is, thus, apparent
inasmuch as the right to sue may accrue to a suitor in
a given case at different points of time and, thus,
whereas in terms of Article 58 the period of limitation
would be reckoned from the date on which the case of
action arose first whereas, in the latter the period of
limitation would be differently computed depending
(77 of 118) [CFA-192/2010]
upon the last day when the cause of action therefore
arose."
Thus, according to Article 58 itself, the suit is also barred by
limitation. Moreover, no satisfactory right to sue has been
indicated in the plaint.
In the case of Iqbal Singh Marwah & Anr. (supra), Hon'ble
the Supreme Court, while dealing with the issue of findings
recorded in one proceeding may not be treated as final or binding
in the subsequent proceeding. Relevant portion of the judgment is
reproduced herein as under:-
24........ There is neither any statutory provision nor
any legal principle that the findings recorded in one
proceeding may be treated as final or binding in the
other, as both the cases have to be decided on the
basis of the evidence adduced therein......."
Here, in the present case, despite of framing of five issues
pertaining to validity of the trust deed, the Trial Court, with due
respect, has abdicated its responsibility to decide the aforesaid
five issues qua the trust deed dated 01.12.1973. Thus, the Trial
Court in the impugned order has committed grave error in placing
reliance only on past judgment. The relevant fact, if at an, has
been treated as 'proved fact'. This is the fundamental error
committed by the Trial Court.
In support of the contentions for Civil First Appeal no.
192/2010, learned counsel for the appellants relied upon the
following Judgments-
(78 of 118) [CFA-192/2010]
In the case of Mahendra Rahunathdasa (supra), while
dealing with the issue of attornment, Hon'ble the Supreme Court
has held as under:-
"7. Attornment would, however, be desirable as it
means the acknowledgment of relation of tenant to a
new landlord. It also implied continuity of tenancy."
As in the instant case, plaintiff has failed to attorn and
establish a relation of new landlord and tenant between the
parties. Thus, the instant suit seeking eviction on the ground of
default in payment of rent is liable to be dismissed.
To substantiate the submission regarding conditions to be
satisfied for eviction, learned counsel for the appellant has
referred to the following observation of Hon'ble the Supreme Court
in the above case, which reads as under:-
"5. ....... Two conditions must be satisfied for eviction of
a tenant on the ground of default in payment of rent or
permitted increase. Firstly, there must be a default in
payment of rent. The default may continue for six
months or more. Secondly, before filing a petition for
eviction, a notice in writing under Section 106 of the
Transfer of Property Act shall be given to the tenant
giving one month's time."
As in the instant case, there is no attornment or
acknowledgement given by the defendant, therefore, there is no
question arise as to payment of rent.
In the case of Gordhan Das through his LRs (supra),
while dealing with the issue of abandonment of claim, a co-
ordinate Bench of this Court has observed as under:-
(79 of 118) [CFA-192/2010]
"14. Once the suit is filed and is withdrawn
unconditionally, then even if the principle of res
judicata may not apply in strict sense because there is
no adjudication on issue but at the same time, the
plaintiff is debarred from seeking decree on the
grounds on the principle of abandonment of claim."
In the case of Himani Alloys Limited (supra), while dealing
with the issue of admission, Hon'ble the Supreme Court has
observed as under:-
"10. It is true that a judgment can be given on an
"admission" contained in the minutes of a meeting. But
the admission should be categorical. It should be a
conscious and deliberate act of the party making it,
showing an intention to be bound by it. Order 12 Rule 6
being an enabling provision, it is neither mandatory nor
peremptory but discretionary. The court, on
examination of the facts and circumstances, has to
exercise its judicial discretion, keeping in mind that a
judgment on admission is a judgment without trial
which permanently denies any remedy to the
defendant, by way of an appeal on merits. Therefore
unless the admission is clear, unambiguous and
unconditional, the discretion of the Court should not be
exercised to deny the valuable right of a defendant to
contest the claim. In short the discretion should be
used only when there is a clear "admission" which can
be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs.
United Bank of India [2000 (7) SCC 120], Karam Kapahi vs. Lal
Chand Public Charitable Trust [2010 (4) SCC 753] and Jeevan
Diesels and Electricals Ltd. vs. Jasbir Singh Chadha [2010 (6) SCC
601]...."
As in the present case, there was no such clear admission on
the part of the plaintiff in the minutes regarding attornment,
(80 of 118) [CFA-192/2010]
therefore, there was no admission which could result in the
judgment under Order 12 Rule 6 CPC.
In the case of Karachi Wine Store (supra), while dealing
with the issue regarding eviction of tenant on the ground of denial
of title, Hon'ble the Supreme Court has held as under:-
"10. Section 116 of the Evidence Act lays down that
no tenant of immovable property or person claiming
through such tenant, shall during the continuance of
tenancy be permitted to deny that the landlord of such
tenant had at the beginning of the tenancy a title to
such immovable property. In Kumar Krishna Prasad
Lal Singha Deo Vs. Baraboni Coal Concern Ltd. & Ors.,
AIR 1937 Privy Council 25, the judicial committee of
the privy council has laid down that the principle of
estoppel contained in Section 116 of the Evidence Act
does not apply to disentitle a tenant to dispute the
derivative title of one who claims to have since become
entitled to reversion, through in such cases there may
be other grounds of estoppel, e.g., by attornment
acceptance of rent etc. in view of the said decision it
must be held that though the principle of estoppel
contained in Section 116 of the Evidence Act does not
apply to a case where a person claims to be a landlord
on the basis of derivative title, but in such a case the
principle of estoppel would be attracted if the tenant
has attorned to the new owner of the premises."
"11. As pointed in Halsbury's Laws of england, (Fourth
Edition) Vol. 27, page 10, para 3, a person in
occupation of property may establish the relationship
of landlord and tenant between himself and another
person by attornment, that is by acknowledging that he
is tenant to that other person. An attornment estops
the tenant from disputing the landlord's title. In
(81 of 118) [CFA-192/2010]
V.Satyamarayanaraju and another v. J. Hanumayamma
and another, AIR 1967 SC 174, it has been laid down
that attornment is one mode of recognising a person as
one's landlord, just as payment of rent is another mode
for the purpose. In that case the Supreme Court has
referred to para 745 of Foa'a General Law of Landlord
and Tenant, wherein it is stated that recognition as
landlord by the tenant may be by express agreement
by attornment or other formal acknowledgment(as by
paying a nominal sum of money), by payment of rent,
or of a nominal sum as rent, or by submission of
distress."
"15. in Raja Mohammad Amir Ahmad Khan v Muncipal
Board of Sitapur and another , AIR 1965 SC 1923, the
Supreme Court has laid down that the disclaimer or
repudiation odd the landlord's title must be clear and
unequivocal and that unless there is a disclaimer or
repudiation in char and unequivocal terms, whether the
same be in a pleading or in other documents, no
forfeiture is incurred. In that case the tenant had filed a
claim before the Land Acquisition Officer wherein he
had asserted that the " land acquired is part of Jali
Kothi or Bungalow Merrett Sahib belonging to me". The
Supreme Court held that words 'belonging to me' did
not amount to disclaimer of the tenancy and a
repudiation of the landlord's title and that though the
word "belonging" no doubt was capable of denoting an
absolute title, the word was nevertheless not confined
to connoting that sense and that word could signify
even possession of an interest less than that of full
ownership. According to the Supreme Court there was
no disclaimer or repudiation of landlord's title by the
tenant and, therefore, he had not incurred forfeiture of
his tenancy."
(82 of 118) [CFA-192/2010]
"26......the present case thus fails within the ambit of
the principle laid down by this court in Narsingh Das v
Mst. Amar Knawar wherein it has been held that the
tenant from whom rent is demanded by a transferor or
an assignee may not be convinced that the latter had
right to demand rent and therefore in order to
safeguard his own interest so that he may not have to
pay rent to a wrong person, he may dispute the title as
assignee and put him to proof......"
In the case of Bhagwandas (supra), while dealing with the
issue regarding eviction of tenant on the ground of denial of title,
Hon'ble the Supreme Court has held as under:-
"31. In my considered view, the eviction on this
ground (denial of title) cannot be granted. Firstly,
because even in rejoinder, particularly paragraph 8, the
plaintiff has admitted that the defendants have
accepted him as landlord and that relationship of
landlord and tenant was established between the
parties and that the tenancy has been attorned;
though, in paragraph 12 of the rejoinder, the plaintiff
has averred that the defendants having denied the title,
he is entitled to decree for eviction. In view of the
categorical stand set up by the plaintiff in para 8 of
rejoinder that the defendants have accepted the
plaintiff as their landlord and that the relationship of
landlord and tenant is established between them, the
plaintiff cannot claim decree for eviction on the ground
of denial of title........"
As in the instant case, there is no acknowledgment between
landlord and tenant, therefore, when there is no attornment then,
it cannot estops the tenant from disputing the title of landlord and
thus, in the considered opinion of this Court, the decree for
(83 of 118) [CFA-192/2010]
eviction as passed against the defendant is liable to be quashed
and set aside.
In support of his contentions for Civil First Appeal no.
197/2010, learned counsel relied upon the following Judgments-
In the case of T.V. Ramakrishna Reddy (supra), while
dealing with the issue of declaration of title, Hon'ble the Supreme
Court has held as under:-
"9. The issue is no more res integra. The position has
been crystalised by this Court in the case of Anathula
Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others 1 in
paragraph 21, which read thus: The issue is no more
res integra. The position has been crystalised by this
Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead)
by L.Rs. and others (2008) 4 SCC 594, in paragraph
21, which read thus: 21. To summarise, the position in
regard to suits for prohibitory injunction relating to
immovable property, is as under:
(d) Where there are necessary pleadings
regarding title, and appropriate issue relating to
title on which parties lead evidence, if the matter
involved is simple and straightforward, the court
may decide upon the issue regarding title, even
in a suit for injunction. But such cases, are the
exception to the normal rule that question of title
will not be decided in suits for injunction. But
persons having clear title and possession suing
for injunction, should not be driven to the
costlier and more cumber some remedy of a suit
for declaration, merely because some meddler
vexatiously or wrongfully makes a claim or tries
to encroach upon his property. The court should
use its discretion carefully to identify cases
where it will enquire into title and cases where it
(84 of 118) [CFA-192/2010]
will refer to the plaintiff to a more
comprehensive declaratory suit, depending upon
the facts of the case."
10. It could thus be seen that this Court in unequivocal
terms has held that where the plaintiff's title is not in
dispute or under a cloud, a suit for injunction could be
decided with reference to the finding on possession. It
has been clearly held that if the matter involves
complicated questions of fact and law relating to title,
the court will relegate the parties to the remedy by way
of comprehensive suit for declaration of title, instead of
deciding the issue in a suit for mere injunction."
Thus, in the instant case, the plaintiff did not file a suit for
declaration of title and recovery of possession but only filed suit to
declare instruments void. Hence, the suit is liable to be dismissed
only on this ground, as there is no declaratory relief.
The issue regarding declaration of title has already been
dicussed in the cases, Union of India Vs. Vasavi Cooperative
Housing Society Ltd. & Ors., reported in AIR 2014 SC 937 and
Union of India Vs. Ibrahim Uddin & Anr., reported in 2012 (8)
SCC 148.
The issue regarding limitation has already been discussed
while dealing with the same judgment [Noharlal Verma Vs.
District Cooperative Central Bank Ltd. Jagdalpur, reported in
(2008) 14 SCC 445)], as cited by the learned counsel Dr. Manish
Singhvi, therefore, there is no need to discuss the judgment as
rendered in the case of Nazir Mohd. Vs. J. Kamla, reported in
AIR 2020 SC 4321, on the issue of limitation.
(85 of 118) [CFA-192/2010]
In the case of Kanti Lal & Ors. Vs. LR's of Deepchand &
Ors., reported in 2015 (3) DNJ (RAJ) 1308, a co-ordinate Bench
of this Court, while dealing with the issue of validity of trust deed,
has held as under":-
"11. The Trust could not be created by the father
Maanmal on 23/12/1957 in favour of his minor sons,
since the property in question was admittedly an
ancestral and a joint family property and even with the
relinquishment of right by the elder brother Roop
Chand in the said suit house in favour of Maanmal by
the second document of relinquishment deed (`दसरबर')
on 23/12/1957, the said joint family property vested in
the Hindu Undivided Family of which Maanmalwas the
Karta. Without the partition taking place between the
father, mother and the sons, the definite share of the
father was not ascertainable on 23/12/1957 and the
Trust by father in favour of minor children as
beneficiaries in respect of joint property could not be
created, as the indeterminate share of father in the
joint property was not transferable by father in favour
of his minor children and unless the property is
transferable to the beneficiaries, the Trust of that
property cannot be created. Having a beneficial interest
in the property as a minor children did invalidate the
creation of Trust and that precisely is the purport of
Section 8 of the Act, 1882, which is quoted below for
ready reference:-
"8. Subject of Trust.- The subject-matter of a
trust must be property transferable to the
beneficiary. It must not be merely beneficial
interest under a subsisting trust."
(86 of 118) [CFA-192/2010]
As in the instant case, the trust deed dated 22.09.1973 is
void, because admittedly, the property in question is an ancestral,
Jamnadas died ecstasy after 1959, thus the property in question
is vested into successor in view of Section 6 and Section 8 of the
Hindu Succession Act 1956. Moreover, Gyanprakash was never
remained settler of trust in question. Admittedly, the property in
question is an ancestral, thus it cannot be diverted into trust and
trustees for benefit of beneficiaries, therefore, execution of Trust
Deed is void and without jurisdiction.
In the case of Kotha Seshamma (supra), while dealing with
the issue regarding alienation of ancestral property ,High Court of
Andhra Pradesh has held as under:-
"It is open to coparceners to recover possession of
ancestral or joint family property wrongfully alienated
by the father or manager on the footing that they were
entitled to the estate as a joint undivided one. If,
however, the non-alienating coparcener challenges a
sale made by the father or manager of joint family
property and institutes a suit to recover only his share
of the property alienated, there by impliedly admitting
the right of the alienee to the other shares in that
property, there is no reason why the other coparceners
should be prejudiced thereby or lose their right to a
similar share. If the alienation is vulnerable, the other
coparceners who have a right of suit could attack it
alone."
In the instant case, the property in question is ancestral, thus,
it cannot be diverted into trust and trustees for the benefit of
beneficiaries, therefore, execution of trust deed is void and
(87 of 118) [CFA-192/2010]
without jurisdiction. There is no need for further elaboration on
this issue, as the same has already been discussed here-in-above.
In the case of Bhaskar Woman Joshi (supra), while dealing
with the issue of creation of trust deed, Hon'ble the Supreme
Court has held as under:-
"7......The question in each case is one of determination
of the real character of the transaction to be
ascertained from the provisions of the deed viewed in
the light of the surrounding circumstances. If the
words are plain and unambiguous, they must in the
light of the evidence of surrounding circumstances be
given their true legal effect. If there is ambiguity in the
language employed, the intention may be ascertained
from the contents of the deed with such extrinsic
evidence as may be law be permitted to be adduced to
show in what manner the language of the deed was
related to existing facts. Oral evidence of intention is
not admissible in interpreting the covenants of the
deed but evidence to explain or even to contradict the
recitals as distinguished from the terms of the
document may of course be given."
As in the instant case, formation of trust deed is void because
the settler and the executor of the trust deed had no vested
property in question into any of the trustee, thus, in absence of
any trustee, the formation and execution of the trust is void ab
initio. The meaning of the trust as provided under Section 3 of the
Indian Trust Act, 1882 (in short, 'the Act'), creation of trust is not
proved in view of Section 6 of the Act, nor trust is created as
provided under Section 7 of the Act and in view of Section 11 of
the Act, execution of the trust is not in existence, nor it was
extinguished, in view of Section 77 of the Act.
(88 of 118) [CFA-192/2010]
In the cases, T.A.V. Trust Alleppey (supra), Shiv Kumar
(supra), Balasubramanian & Anr. (supra) and Manjeet
Singh (supra), while dealing with the issue of essentials for
creation of trust deed, similar view has been expressed by the
Court.
In the case of LIC Vs. Anuradha (supra), while dealing
with the issue regarding presumption of civil death, Hon'ble the
Supreme Court has held as under:-
"14. If an issue may arise as to the date and time of
death, the same shall have to be determined on
evidence - direct or circumstantial and not by
assumption or presumption. The burden of proof would
lay on the person who make assertion of death having
taken place at given date or time in order to succeed in
his claim. Rarely it may be permissible to proceed on
premise that the death had occurred on any given date
before which the period of seven years absence was
shown to have elapsed."
As in the instant case, admittedly, Durgadutt was blind. It
was not proved by the plaintiff (Sriniwas Jhanwar) that Durgadutt
was missing for alleged period, nor there could have been
occasion to declare and presumed his civil death. Durgadutt
appeared as DW-7 in the instant case.
In the cases of N.Kamalam (supra) Laxmi Narayan
(supra), the issue regarding validity of the creation of trust deed
on the basis of non-joinder of necessary party has already been
discussed in the preceding paragraphs, therefore, there is no need
to reiterate it again.
(89 of 118) [CFA-192/2010]
In the cases of Sona Bala Bora (supra) and Govinda
Swami (supra), the issue regarding dissolution of trust deed,
has already been discussed in the preceding paragraphs,
therefore, there is no need to reiterate it again at this juncture.
In the case of State of Bihar (supra), while dealing with
the issue regarding findings recorded in one proceeding may not
be treated as final and binding in subsequent proceeding.
As in the instant case, earlier judgments rendered in Motilal
Vs. Gyanprakash's case and in other cases, which have been
placed on record by the plaintiffs and the trust deed proved on the
basis of such judgments by the learned Trial Court is perverse
because the present parties to the instant suit were not remained
parties in the said disputes, nor Durgadutt was served and
appeared in the Motilal and other cases (Ex. 26 to Ex.30), thus,
said judgments are not binding against the present defendant -
appellant. The judgments are not judgment in rem (as per Section
41, 42 & 43 of the Indian Evidence Act, 1872) but same are
judgment in personam.
In the case of Himani Alloys Limited (supra), the issue
regarding judgment given on "admission" has already been
discussed in the preceding paragraphs, therefore, there is no need
to reiterate it again.
In the case of Bhagwat Sharan (supra), while dealing with
the issue regarding approbate and reprobate of the party, Hon'ble
the Supreme Court has held as under:-
"24. .......... It is trite law that a party cannot be
permitted to approbate and reprobate at the same
(90 of 118) [CFA-192/2010]
time. This principle is based on the doctrine of
election. In respect of wills, this doctrine has been held
to mean that a person who takes benefit of a portion of
the will cannot challenge the remaining portion of the
will. In the Rajasthan State Industrial
Development & Investment Corporation & Anr.
Vs. Diamond & Jem Development Limited & Anr.
(AIR 2013 SC 12412), Hon'ble the Supreme Court has
made the observation that a party cannot be permitted
to "blow hot & cold", "fast & loose", or "approbate &
reprobate". Where one party knowingly accepts the
benefits of a contract or conveyance or an order, it is
estopped to deny the validity or binding effect on him
of such contract or conveyance or order."
In support of the contentions for Civil First Appeal No.
192/2010, learned counsel for the respondent-plaintiff has relied
upon the following judgements, as mentioned hereinbelow.
Principally, I am agreed with the ratio laid down by
Hon'ble the Apex Court and High courts in the cases cited by
the learned counsel for respondent-plaintiff but the facts and
circumstances of these cases are different from the present
case which will be now discussed in detail below.
In the case of LRs of late Shri Gurubux Singh (supra),
while dealing with the issue regarding attornment, a co-ordinate
Bench of this Court has held as under:-
"20. The expression entitled to receive the rent in the
aforesaid definition signify that the transfer of interest
of the landlord in favour of any other person is not
prohibited, as a transferee of the lessor is entitled to
collect rent in terms of the lease as of right and
becomes a landlord under Section 3(iii) of the Act.
(91 of 118) [CFA-192/2010]
Tenant cannot dispute the right of the transferee
landlord to maintain an eviction petition under the Act
or to claim rent. Hence, in the case of a valid transfer
of premises by the lessor by way of sale, as the
trnsferee would be entitled to receive the rent of the
premises, he would fall within the definition of landlord.
24. No attornment of tenancy is necessary in law as
the above Section creates a statutory attornment and
the Section does not insist that the transfer of the
lessor's right can take effect only if the tenant attorns
as attornment by tenant is unnecessary to confer
validity to the transfer of lessor's right. However, the
Section protects payment of rent by the tenant to the
transferor without notice of the transfer. The transfer of
ownership of the premises to the respondent by the
previous lessor results in statutory attornment by the
tenant in favour of the lessor's transferee and
consequently jural relationship of landlord and tenant,
the said right of transferee under Section 109 is not
curtailed or modified by the T.P. Act.
26. As such, from the above, it is apparent that neither
any attornment was necessary on part of the tenant for
conferring the right to receive the rent, nor any notice
in this regard was necessary for the purpose of alleged
attornment."
As in the instant case, before filing for the suit there was
enough time available with plaintiff-respondent for attornment and
to establish a relation of new landlord and tenant but the plaintiff-
respondent failed to establish the same but on the other hand in
case cited above by the learned counsel for the respondent-
plaintiff the initial suit was filed by Maji Leel Kanwar and during
the pendency of the suit she transferred/vested the property to
the trust, which in turn transferred the same to the plaintiff within
(92 of 118) [CFA-192/2010]
the short span of two months from the date of filing of the suit.
The very fact that by way of application under Order XXII, Rule 3
and 10 CPC, the fact of transfer by Maji Leel Kanwar to the trust
and by the Trust to plaintiff was bought on record and to the
notice of plaintiff during the suit , the same was the only practical
way of bringing the above information to the notice of the court
and subsequently to the defendant.
In the case of Dr. Ambica Prasad (supra), while discussing
the issue regarding attornment, Hon'ble the Supreme Court has
held as under:-
"13. From the definition of 'landlord', it is clear that
the definition is couched in a very wide language,
according to which not only the owner but also any
person receiving rent, whether on his own account or
on behalf of or for the benefit of any other person or as
a trustee, guardian, or receiver for any other person, is
also the landlord.
14. For the purpose of eviction of tenant on the
ground of personal need or reasonable requirement,
one must show that he is owner of the building.
18. From perusal of the aforesaid Section, it is manifest
that after the transfer of lessor's right in favour of the
transferee, the latter gets all rights and liabilities of the
lessor in respect of subsisting tenancy. The Section
does not insist that transfer will take effect only when
the tenant attorns. It is well settled that a transferee of
the landlord's rights steps into the shoes of the landlord
with all the rights and liabilities of the transferor
landlord in respect of the subsisting tenancy. The
section does not require that the transfer of the right of
the landlord can take effect only if the tenant attorns to
him. Attornment by the tenant is not necessary to
(93 of 118) [CFA-192/2010]
confer validity of the transfer of the landlord's rights.
Since attornment by the tenant is not required, a notice
under Section 106 in terms of the old terms of lease by
the transferor landlord would be proper and so also the
suit for ejectment.
In the above case cited by the learned counsel, the fact that
the ownership of the appellant by the virtue of the deed of
exchange has neither been denied nor been disputed by the
respondent-tenant. Admittedly, the respondent-tenant was paying
electricity and other charges of the tenanted premises to the
appellant but depositing the rent in court in the name of the
previous owner, despite knowing that the appellant was the
landlord of the premises. In the above mentioned case respondent
already knows that who is the actual owner of the premises as he
is paying rent and other charges to him in capacity of owner,
Therefore, Attornment by the tenant is not necessary where as in
the present case in hand there was no attornment by the plantiff-
respondent as to establish the relation of new landlord and the
tenant between the parties after transfer of property by sale,
although that sale of property is valid or not is also in question in
the present case.
In the case of Ramadhar Shrivas (supra), while dealing
with the issue regarding attornment, Hon'ble the Supreme Court
has held as under:-
"17. ......... ......... Since Hira Lal was the owner of the
property and defendant Bhagwan Das was occupying
the property and paying Rs.10/- per month as rent to
Hira Lal, after the sale of property by Hira Lal to
plaintiff, Bhagwan Das became tenant of the plaintiff."
(94 of 118) [CFA-192/2010]
In the present case admittedly there is no attornment or
acknowledgement given by the plaintiff - defendant Sriniwas
Jhanwar to the appellant-respondents but in the case cited above
the plaintiff- Ramadhar even after the disposal of previous
proceeding in civil court as well as appeal, issued a notice of the
defendant on 9th June,1991, by registered AD. In the said notice ,
the plaintiff through his advocate asked the defendant-
Bhagwandas to hand over possession of "Dhalia" and to pay
arrears of rent stating therein that the plaintiff had become the
owner of suit property as he had purchased the property by the
registered sale-deed from Hiralal and he was occupying it as the
owner of the property.
In the case of M/s. Payal Vision Ltd. (supra), while
discussing the issue regarding Denial of Title, Hon'ble the
Supreme Court has held as under:-
"15. ............. ........... the challenge to the title of plaintiff
qua the suit property was based on a document
anterior to the commencement of the tenancy in
question. It also meant that challenge was in substance
a challenge to the landlord's title on the date of
commencement of tenancy......... .......... ........."
In the case of Kanti Lal (supra), while dealing with the issue
regarding Denial of Title, a coordinate Bench of this Court has
held as under:-
"39. ........ ........ ........ The denial of title and
renunciation of the character of the tenant is
unambiguous, clear and without any reservation and it
continued even after when the plaintiff sought decree
against the respondent-tenant on the said grounds
(95 of 118) [CFA-192/2010]
falling under Section 13(1)(f) of the Act of 1950 and
the conduct of the respondent-defendant tenant has
not been condoned by the plaintiff-appellant. The
Division Bench of this Court in Lalu Narayan's case and
Single Bench of this court in Shiv Narayan's case held
that decree for eviction can be passed even if there is
no plea in the plaint and no specific issue was framed
on the point of denial of title of the plaintiff-landlord,
therefore, the plaintiff is entitled for the decree for
eviction against the defendant and the issue framed by
this court on 25.8.2003 is decided in favour of the
appellant-plaintiff.
As in the instant case, there is no acknowledgement between
landlord and tenant, therefore, as there is no attornment then, it
cannot estops the tenant from disputing the title of the landlord
whereas in both the cases cited above the jural relationship of
landlord and tenant was admitted between the parties and the
rate of rent is also settled by them and the same is being admitted
in both the cases cited above.
In the case of N.R. Narayan Swamy (supra), while dealing
with the issue regarding filing of second suit for eviction is
maintainable, Hon'ble the Supreme Court has held as under:-
"10. The expression subject matter is not defined in
Civil Procedural Code. It does not mean property.
That expression has a reference to a right in property
which the plaintiff seeks to enforce. That expression
includes the cause of action and relief claimed. Unless
the cause of action and relief claimed in the second
suit are the same as in the first suit, it cannot be said
that the subject matter of the second suit is same as
that in the previous suit.
(96 of 118) [CFA-192/2010]
11. The Court further observed that the mere identity
of some of the issues in two suits would not bring
about identity of the subject matter in two suits."
In the case of LRs of Ramdev Kajaria (supra), while
discussing the issue regarding striking out of defence of tenant, a
co-ordinate Bench of this Court has held as under:-
"6. .................. ...................... in view of the assumed
waiver against the land lord, may be that this
additional consequence cannot flow, but then that by
itself does not entitle the tenant to the benefit of
Section 13(6) of the Act, notwithstanding his having
failed to make the deposit, or make the payment as
required by Sub-section (4). Waiver, if at all attracted,
is attracted only against the plaintiffs right to have the
defence struck off. Consequently, he loses his right to
have the defence struck out, but then it does not have
the effect of attracting the fiction in favour of the
tenant about his having made deposit, or payment as
required by Sub-section (4). Question as to whether
the tenant has made deposit, or payment as required
by Sub-section (4) for the purpose of Sub-section (6) it
is required to be considered independently, and as a
fact, to strike out his defence. In the present case, as
noticed above, in view of the fact that rent for the
period March, 1994 was not deposited within the
extended permissible time under Section 13(4),
obviously it has to be concluded that the tenant has not
wake deposit or payment as required by Sub-section
(4). That being the position, benefit of Section 13(6)
cannot be extended to the tenant except by doing
violence to the language of the statute i.e. the tenant
could be conferred benefit thereof notwithstanding
having made payment or deposit as required by
Section 13(4) simply because his defence has not been
struck off, or cannot be struck off. this is not the
(97 of 118) [CFA-192/2010]
situation contemplated by the bare language of Section
13(6)."
In the case of Heera Lal (supra), while dealing with the issue
regarding striking out of defence of tenant, a co-ordinate Bench of
this Court has held as under:-
"47. The matter could be viewed from yet another
angle. So far the question of default is concerned, the
default in payment of rent is itself a ground for eviction
under Section 13(1)(a) of the Act and a decree for
eviction on its basis can always be granted. The only
restriction on such a decree for eviction comes from
Section 13(6) of the Act by virtue of which the court
would not grant a decree for eviction on the ground of
default, if the tenant complies with the requirements of
Section 13(4) of the Act, i.e., of payment of the
determined amount under Section 13(3) of the Act and
so also continuous timely payment during pendency of
the suit provided of course that such benefit has not
previously been taken by the tenant. This benefit of
'first default' could be granted only when there is a
compliance of Section 13(4) of the Act. Obviously, in
the case of non-compliance of Section 13(4) of the Act,
the benefit of "first default" could also not be granted
and, therefore, whether defence against eviction is
struck out or not, a decree for eviction would
nevertheless follow, if ground of default is established."
In the instant case in hand, firstly, the relation of new
landlord and tenant has not been established between the parties
as there was no attornment and the sale of the property is also in
question. Secondly, in the view of dismissal of the previous suit
no. 16/2003 dated 06.01.2004, the plaintiff has abondoned and
waived their claims, thus, the rent if payable upto 06.01.2004 is
not recoverable, thus, it cannot be said that the defendant has
(98 of 118) [CFA-192/2010]
committed second default and subsequently, the
appellant/respondents are entitled to get benefit of first default as
provided under Section 13(6) Rent Control Act,1950 whereas in
both the cases cited by the counsel for the plaintiff-respondent the
tenant was not entitled to the benefit under section 13(6) of the
act as the tenant has not made the payment of the rent and
violated the requirements which is mandate and beyond repair
under section 13(4) of the Act.
In support of the contentions for Civil First Appeal Nos.
197/2010, 240/2010 and 206/2010, learned counsel for the
respondent-plaintiff further relied upon the following judgements:-
1. M/S Umed Realators, Wani, District Yavatmal & ors. vs
Smt.Sobha wd/o Mahadeo Dehpande & ors.(supra)
As per the case cited by learned counsel for respondent-
plaintiff it has been held that a document which is treated to be
void ab initio, can be ignored at nullity and it is not necessary to
have the same set aside on the other hand in the present case the
Lease deed dated 09.01.1985 in favour of Hanuman Bux by
Durgadutt cannot be said void as the creation and execution of the
trust deed dated 22.09.1973 is in question and not been proved.
2. Daya Singh & Anr. Vs. Gurdev Singh (Dead) by LRs &
Ors.(supra)
As per the case cited above, it is clearly averred that the
right of sue accrued when such rights was infringed by the
defendants, about a week back when the plaintiffs had for the first
time come to know about the wrong entries in the record of rights
and when defendants had refused to admit the claim of the
(99 of 118) [CFA-192/2010]
plaintiffs and admittedly the suit was filed just after a week on 21 st
August, 1990 where as in the present case the right to sue first
arose in the year 1992 itself when plaintiff was party to the earlier
suit and pursuing adversarial proceedings i.e. on 22.05.1992 in
the Suit No.45/1991.Also looking to the assertion made in para 40
of earlier written statement (exhibited as A/14 in present suit)
made it clear that right to sue first time accrues to Sriniwas in
year 1992 itself and subsequently, the present case in hand
cannot be said within the ambit of limitation.
3. Santosh Vs. Jagat Ram & Anr., (supra)
As per the present case in hand there was the earlier one
another suit (45/1991) which was filed by the Sriniwas (plaintiff-
respondent) in which he come to know about the existence of the
lease deed dated 09.01.1985 when the written statements was
filed on 22.05.1992 and admittedly, the suit was filed on
07.02.1996. Therefore, as per the Limitation act present suit is
said to be barred by the limitation on the other hand as per the
case cited above although the suit was filed for about five years
after the passing of the consent decree but the fact of fraudulent
decree came in notice for the first time just two and half months
before filing of the suit when respondents started interfering with
the ownership and possession over the suit land, therefore, as
looking to Article 59 of the Act the consent decree was set aside
and suit was held within the limitation because the cause of action
arose just two and half months before the filing of the suit
therefore, the said suit was held well within the limitation period.
(100 of 118) [CFA-192/2010]
4. The Land Acquisition Officer, City Improvement Trust
Board, Bangalore vs H. Narayanaiah (supra)
As per the case cited above, it is correctly held that
judgement not inter- se parties would be relevant if they relate to
similarly situated properties and contain determination of value on
date fairly proximate to the relevant date but here in the present
case disputed property is situated at Nokha mandi, Bikaner where
as the disputed property in earlier suit was situated at Mohalla
Hamalo ki Bari, Bikaner i.e. totally different places and also there
are considerable differences in the value of both the properties.
5. LRs of Moti Lal, Adopted son of late Shri Labh Chand, by
caste Joshi Vs. Gyandutt @ Gyanprakash S/o late
Onkardutt, by caste Bhadani Brahmin & Anr. (supra)
As per the present case in hand it is admitted that despite of
framing of five issues pertaining to validity of the trust deed dated
01.12.1973, trial court without examining the same , held that
trust deed is valid by only placing reliance on the past judgement
(Lr's of Motilal vs Gyanprakash) despite of the fact that present
parties to the instant suit were not parties in the said suit, thus it
cannot be said to be binding as that judgement is in personam
and not judgement in rem.
6. Ajab Singh & Ors. Vs. Pandit Babu Ram & Ors(supra)
In the case relied by the counsel for the respondent-plaintiff
in the light of Section 34 of specific relief act, 1963 any person
entitled to any legal character, or to any right as to any property,
may institute a suit against any person denying, or interested to
deny, his title to such character or right, and the court may in its
discretion make therein a declaration that he is so entitled, and
(101 of 118) [CFA-192/2010]
the plaintiff need not in such suit ask further relief and admittedly
in the case cited above the land in dispute was of defendant no.2
and the same was in his possession but in the present case the
prayer is made in negative terms for seeking an injunction not to
grant possession to any other person. Also here in the present
case the title of the respondent- plaintiff over the disputed
property is under the cloud or in dispute and also the plaintiff-
respondents are not in the possession of the disputed property.
And still plaintiff- respondent did not filed the suit for declaration
of the title and recovery of possession but only to declare
instrument void so in absence of any consequential relief sought in
the plaint, the present suit in its present from shall not survive.
After having given a thoughtful consideration to the law laid
down by Hon'ble the Apex Court, this Court and various other High
Courts and facts, evidences and circumstances of this case,
finding of this Court in regard to Civil Suit No. 55/2005 (Civil First
Appeal Nos. 197/2010, 240/2010 and 206/2010) are given below:
In the light of the discussions made hereinabove in regard to
the citations relied upon by both the sides and the law laid down
in these cases as well as applicability of these judgments in the
facts and circumstances of this case in regard to issue Nos. 1 to 3
and 5 to 8, this Court is of the opinion that the findings of the Trial
Court on the suit filed for eviction and arrears of rent is based
upon the findings of the suit filed for declarations and injunction
and number of important questions/points have been discussed in
the case of declarations, therefore, it is appropriate to deal with
the arguments of both the sides which are related for the just
decision of issue Nos. 1 to 3 and 5 to 8 and the main points are-:
(102 of 118) [CFA-192/2010]
Both the suits were filed by the plaintiffs on the basis of the
sale-deeds executed by Gyanprakash @ Gyandutt on the basis of
the trust deed dated 22.09.1973 executed in his favour and which
is bonafidely and seriously under challenge and the trust deed is
the basis of the right of the plaintiffs because right of the
ownership of the plaintiffs is based upon the sale-deeds in their
favour and competency of Gyanprakash @ Gyandutt in regard to
execution of the sale-deeds is depend upon the trust deed dated
22.09.1973, therefore, first of all, it is to be determined that
whether, the trust deed was legally executed, when it came into
force, when it was extinguished, whether, Gyanprakash @
Gyandutt became the sole owner of the property and legally
possessed the right of sale and whether, the plaintiff (Sriniwas)
was the rightful owner of the property on the basis of the sale-
deeds.
It is also an admitted position that the initially, the patta was
issued in the name of Jamnadas and Onkardutt was only son of
Jamnadas. Onkardutt is having two sons, elder was Durgadutt and
younger was Gyanprakash @ Gyandutt, one wife - Surjidevi and
one minor daughter Asha. At the time of execution of the sale-
deeds, all the heirs of Onkardutt were alive; date of marriage of
Asha was not disclosed. Trust deed was executed not only by
Onkardutt but also by Durgadutt and Gyanprakash @ Gyandutt
was the beneficiary of the trust.
As per the arguments advanced by both the sides in regard
to conditions of Clause Nos. 4 and 5 of the trust deed are most
relevant. It is to be determined that whether, the right to sue was
(103 of 118) [CFA-192/2010]
accrued in favour of the plaintiff for filing the suit for rent and
eviction as well as suit for declarations and injunction.
Issue Nos. 5 to 8 are, to the some extent, are rebuttal of the
issue Nos. 1 to 3 and, therefore, findings on these issues are co-
related.
This court is of view that right to sue arises in favour of
Sriniwas - Plaintiff through Trust Deed and for the sake of
arguments if it is presumed that the trust deed was validly
executed, but it can always be challenged as to its
contents/recitals. Moreover, interpretation of document is always a
question of law. It is quite clear that Onkardutt has indirectly
given the entire disputed property to Gyanprakash. It has
completely over-ridden the rights of Smt. Surji Devi, Ms.Asha and
even Durgadutt (blind person). Now, another doubt is on creation
of the trust deed can easily be discerned that Smt. Surji Devi was
of unsound mind (according to the plaintiff himself), but still Smt.
Surji Devi has been stated to have signed the trust deed. It would
be pertinent to mention here that the beneficiaries included Ms.
Asha in the trust deed, but Asha has been completely left out on
the dissolution of the trust deed. Thus, a trust deed created is
inconsistent with the provision of Section 6 of the Hindu
Succession Act, therefore, the trust deed is invalid.
Subsequently, there is also improper dissolution of the trust
deed as according to the recital of the trust deed itself (clause IV),
it has been stated that on the death of Onkardutt and Surji Devi,
whenever Gyandutt @ Gyanprakash becomes adult, the trust will
dissolve itself. Thus, the trust deed naturally contemplated both
(104 of 118) [CFA-192/2010]
on the death of Onkardutt and Surji Devi as well as on Gyandutt
becoming major. Surji Devi was admittedly alive on 02.09.1986
when the plaintiff is supposed to become owner of the property
and was died in the year 1995-96, therefore, the trust deed was
subsisting till the death of Surji devi. If Gyanprakash had to be
the sole owner on becoming major, there was no need to mention
about death of Onkardutt and Smt. Surji devi. Therefore, the
dissolution of the trust deed could not occoured and there was no
occasion for Mr. Sriniwas (plaintiff before the Trial Court) to
become owner of the property due to subsequent transfer on
02.09.1986. As it means that sale executed by Predecessor in Title
to be treated as void.
Also, there is no evidence available on record as no witness
has been examined by the learned trial court in order to prove the
document i.e. Trust Deed and as per evidence act,1872 a
document can be proved by :
As per Sections 67 & 47 of Indian Evidence Act,1872, which
reads as under:-
"67. Proof of signature and handwriting of
person alleged to have signed or written
document produced. -- If a document is
alleged to be signed or to have been written
wholly or in part by any person, the signature or
the handwriting of so much of the document as is
alleged to be in that person's handwriting must
be proved to be in his handwriting.
47. Opinion as to hand-writing, when
relevant. -- When the Court has to form an
opinion as to the person by whom any document
(105 of 118) [CFA-192/2010]
was written or signed, the opinion of any person
acquainted with the handwriting of the person by
whom it is supposed to be written or signed that
it was or was not written or signed by that
person, is a relevant fact.
Explanation. --A person is said to be
acquainted with the handwriting of another
person when he has seen that person write, or
when he has received documents purporting to
be written by that person in answer to documents
written by himself or under his authority and
addressed to that person, or when, in the
ordinary course of business, documents
purporting to be written by that person have
been habitually submitted to him."
After the bare perusal of the above-mentioned provisions
and other related provisions of the Evidence Act, this Court is of
the opinion that a document can be proved by following persons:-
(i) by statement of a person, who wrote or signed the
document;
(ii) by calling a person, in whose presence, the document was
signed or written (ocular evidence/attesting evidence);
(iii) by calling a person, who is acquainted with the writing of the
person by whom the document is supposed to have been signed
or written;
(iv) by calling a person, who, in routine has been receiving the
document signed by the person in the course of his business or
official duty though he may have never seen the author signing
the document; and
(106 of 118) [CFA-192/2010]
(v) by proof of an admission made by the person, who is stated
to have signed or written the document to that effect made in
any other judicial proceeding.
In view of the above crystal clear position of law, in the
present case, the witness of the trust deed dated 22.9.1973 can
be proved by remaining trustees, i.e., Surjidevi, Durgadutt or by
attesting witnesses, i.e., Bahadur Singh Kochar, Noor Ahmad
Gajdhar and by Asha (daughter of Onkardutt), as she may be
acquainted with the signature of Onkardutt or by a person, in
whose presence, document was typed and signed by the executor
or by a person, in whose presence, signature and thumb
impressions were taken. But still, none of them, as mentioned
above, have been produced as a witness for evidence.
Apart from the above, another point of consideration before
this court is that whether findings of earlier suit can be treated as
binding in present case. As per Section 41 of the Indian Evidence
Act mandates that any judgment pertaining to probate,
matrimonial, insolvency and admiralty alone are relevant in
subsequent case. The present case does not come within the
purview of the any of the aforesaid categories. Thus, Section 41
would not be applicable in the present case. Section 42 would be
applicable only when the inquiry pertains to the issue of public
nature. While, in the present case, trust deed is not public in
nature. Thus, Section 42 is equally inapplicable. Section 43 would
be relevant when findings given in earlier judgment can only be of
'fact in issue' and not of 'proved fact'. While, in the present case,
past judgment was not fact in issue in the instant case. After the
(107 of 118) [CFA-192/2010]
perusal of the aforesaid sections it can be held that earlier
judgement is not judgement in rem and in fact it is judgement in
personam. Therefore, it can be held that earlier judgement is not
binding in present case.
So far as issue No. 5 is concerned, it was admitted by the
plaintiff and his predecessor-in-title Gyanprakash @ Gyandutt,
that Surjidevi was of unsound mind and Surjidevi was alive at the
time of execution of the sale-deeds and the date of marriage of
Asha was not disclosed.
In view of the above, findings of the learned Trial Court in
regard to issue Nos. 1 to 3 and 5 to 8 are wrong, are not
sustainable and, therefore, the same are set aside.
So far Issue No. 4 is concerned, burden to prove this issue
was casts upon the plaintiff and this issue was wrongly decided in
favour of the plaintiff-respondent because while deciding issue
No.4 in civil suit no. 55/2005, the learned trial court, vide para 37,
page number 63 to 65 of the impugned judgment, wrongly held
that the decree passed in favour of Hanumanbux was a collusive
decree only on the basis of presumptions and without any legal
evidence. As Suit No.34/94 was filed on behalf of Hanumanbux
against the tenant firm Dhanraj Devkishan, was rightly filed and a
decree was passed on the basis of compromise cannot be held to
be collusive decree on the basis that defendant appeared without
service before the Court and submitted compromise. Any
compromise cannot be questioned on the basis that defendant
appeared before the court without service. If parties settled their
dispute, out of the court, they can appear before the court before
filing of written statement and a compromise decree can be
(108 of 118) [CFA-192/2010]
passed by competent civil court and on the basis of such type of
pleading taken in present suit it cannot be held that decree passed
by Civil Judge (Senior Division), Bikaner was collusive.
Now coming to the point of transfer of physical possession
through lease deed, suit was filed by Hanumanbux against the
firm Dhanraj Dev Kishan (Appellants of CFA No. 197/2010). The
suit was decreed and in execution of that decree, possession of
the disputed property was handed over to the decree-holder
Hanumanbux by Sale Ameen in the year 1994. Report of the Sale
Ameen as well as proceeding of handing over of the possession,
was not challenged. A specific plea of remaining appellants that
another lease deed has been executed between Hanumanbux and
Omprakash and Sanju devi for 19 years. Therefore, it was
wrongly held by the learned Trial Court that the decree was
collusive decree and in fact, physical possession was not handed
over to the decree-holder Hanumanbux.
In view of the above, findings of the learned Trial Court in
regard to issue No. 4, is wrong, is not sustainable and, therefore,
the same is set aside.
So far as Issue Nos. 9 and 9-A are concerned, burden to
prove issue No. 9 was casts upon the defendants and burden to
prove issue No.9-A was not casts upon any of the parties but since
both these issues were framed on the basis of the pleadings of the
defendants, therefore, it was the duty of the defendants to prove
these issues. It was held by the learned Trial Court that it cannot
be said that the suit was time barred, this Court is of the opinion
that both these issues are wrongly decided in favour of the
plaintiff and against the defendants on the ground that since the
(109 of 118) [CFA-192/2010]
defendants No. 4 & 5 are the relatives of the defendant No.3 and
the suit was filed from the date of knowledge, i.e., 24.07.1996 but
as discussed above, lease deed which was executed by Durgadutt
in favour of Hanumanbux dated 09.01.1985, as it was clearly
pleaded in para number 26 of the plaint that the suit was filed
within limitation on the basis of the pleadings mentioned at para
number 23 of the plaint, i.e., on the basis of knowledge because
admittedly, the lease deed was executed in the year 1985 and it is
settled position of law that if suit is not filed within 3 years from
the date of document and if the plaintiff comes with certain facts
of a case that the suit is within limitation, it was the duty of the
learned Trial Court to frame specific issue in this regard and
burden will be on the plaintiff although no separate issue was
framed by the learned Trial Court in regard to limitation but by
giving finding in regard to issue No. 9 and 9A, that point was
covered by the learned Trial Court and it was wrongly held that
the suit was filed within limitation from the date of knowledge,
i.e., 24.07.1996 when threatening regarding material addition and
alteration and raising of new construction was given by the
defendants because in earlier suit which was filed by the same
plaintiff - Sriniwas (Suit No. 54/2005) for arrears of rent and
eviction against the firm Dhanraj Devkishan and its proprietor
Devkishan. In para number 13G, one of the ground was taken on
the basis of material alterations, new construction etc. and that
suit was filed on 05.07.1991, therefore, it is wrong to say that the
fact of execution of the lease deed in the year 1985 came within
the knowledge of the plaintiff Sriniwas first time only in the year
1996.
(110 of 118) [CFA-192/2010]
It is also relevant to mention here that from the top of page
number 92 of the impugned judgment, it was held by the learned
Trial Court that issue Nos. 9 & 9-A are decided in favour of the
plaintiff whereas arguments in regard to limitation were discussed
and decided later on at page number 92 to 97 and while not
framing any separate issue that, whether, Durgadutt was
necessary party to the suit, this objection was also decided along
with issue Nos. 9 & 9-A, the point of impleadment of Non joinder
of Necessary party as observed above, Durgadutt was necessary
party, because he was the trustee of the trust deed dated
01.12.1973 and was a lessor of the lease deed dated 09.01.1985.
No instrument can be set aside by the Trial Court without making
lessor as a party. The lessor and lessee both have to be made
party if there is quashment/setting aside of valid instrument
registered. Durgadutt was an essential party under Order 1 Rule
10 CPC. As per trial court, Durgadutt was not seen for 10-12 years
therefore, trial court presumed him to be dead, but in fact, No
Missing Person Report was filed and no notice or advertisement
including photo of Durgadutt has been published in any of the
Newspaper having circulation within the State of Rajasthan. There
is no finding/ observation/ declaration by the court of competent
jurisdiction regarding the fact that Durgadutt is missing for last
10-12 years. Durgadutt, Surjidevi and Ms. Asha were the
necessary parties and without their consent, the trust deed dated
01.12.1973, cannot be dissolved as they are the trustees of the
trust deed. This was a gross error committed by learned trial
court. However, later on Durgadutt appeared and depose in the
court as DW-7 as a defence witness.
(111 of 118) [CFA-192/2010]
It is noticed that as per the evidence and the pleadings, the
defendant Nos. 4 and 5 are in possession of the disputed property
and the possession was handed over to Hanumanbux in execution
of the decree passed in favour of Hanumanbux, therefore, Issue
No. 9 was wrongly decided against the defendants and the
defendant Nos. 4 & 5 are in possession of the property in dispute
pursuant to the lease deed executed by Hanumanbux in favour of
Bhanwarlal Baheti but since, this is a suit for declarations in
regard to lease deeds which were executed by Gyanprakash @
Gyandutt in favour of Hanumanbux and further this is a suit for
declarations to the effect that the lease deeds executed by
Durgadutt in favour of Hanumanbux may be declared null and void
and the collusive decree as passed in favour of Hanumanbux on
the basis of the lease deed may also be declared null and void,
therefore, the possession was rightly handed over by the
defendant No.1 to the defendant Nos. 4 & 5. This fact may affect
the suit for eviction and rent whereas, it is clear that the aforesaid
suit was not filed against the defendant Nos. 4 & 5.
As per plaintiff, the defendant Nos.4 & 5 - Smt. Sanju Devi
and Omprakash, it is stated that they are the sublettee of the
tenant. On the ground of subletting taken by the plaintiff,
separate issue was framed in Civil Suit No. 54/2005 for eviction
and arrears of rent but the same issue was not pressed, therefore,
it cannot be held that the defendant Nos. 4 and 5 are in
possession as sublettee of the tenant.
In view of the above, findings of the learned Trial Court in
regard to issue Nos. 9 and 9 A are wrong, are not sustainable and,
therefore, the same are set aside.
(112 of 118) [CFA-192/2010]
As a result of the discussion foregoing, as the findings on
issue Nos. 1 to 3, 5 to 8, 4, 9 & 9-A are reversed, therefore, the
Appeal Nos. 197/2010 (Firm Dhanraj Devkishan & Anr. Vs.
Sriniwas & Ors.), 206/2010 (Omprakash & Anr. Vs. Sriniwas &
Ors.), 240/2010 (Bhanwarlal Vs. Sriniwas & Ors) are allowed;
consequently, the judgment and decree passed by the learned
Trial Court in Civil Suit No. 55/2005 (Sriniwas Vs. Dhanraj
Devkishan & Ors.) is set aside.
Admittedly, in Civil Suit No. 54/2005 (Civil First Appeal No.
192/2010), which was filed by the plaintiff for arrears of rent and
eviction, 10 issues were framed by the learned trial court but
since, the issue Nos. 2 to 8 were not pressed by the plaintiff,
therefore, these issues were dismissed as not pressed and were
decided against the plaintiff. In that view of the matter, only the
issue Nos. 1 and 10 were decided jointly by the learned Trial Court
and issue No. 10-A, were decided separately.
Since the issue No. 10-A was a legal issue, burden to prove
this issue was casts upon the defendants and as per the
arguments advanced by both the sides and the facts and evidence
available on record, it is undisputed position that earlier suit which
was filed by the predecessor-in-title Gyanprakash @ Gyandutt
against the appellant-tenant which was registered as Civil Suit No.
60/2003 but the same was withdrawn, without seeking any liberty
and that suit was filed for the rent for the period from April, 1983
till the date of filing of the suit and the subsequent suit which was
filed by the purchasers (Sriniwas & Viradevi) for eviction and
arrears of rent for the subsequent period, it is also an admitted
position that in both the suits, arrears of rent was claimed for
(113 of 118) [CFA-192/2010]
different period and it was rightly held by the learned Trial Court
that on the basis of the earlier suit which was withdrawn without
any liberty on 06.01.2004, subsequent suit which was filed by the
purchaser, cannot be barred by the principles of res judicata,
therefore, the findings of the learned Trial Court in regard to issue
No. 10-A is correct and, therefore, the same is affirmed.
Issue Nos. 1 and 10 were co-related and, therefore, they
were jointly decided by the learned Trial Court. Burden to prove
both these issues were casts upon the plaintiffs, and this Court is
of the view that learned trial court wrongly held that since the rent
was paid to Gyan Prakash even after death of Onkar Dutt,
therefore, it was admitted by the tenant that Gyan Prakash is the
sole owner of the property, whereas it is admitted position that
initially the rent was received by Onkardutt and thereafter the rent
was received by [email protected] Gyandutt and others on behalf of
Onkar Dutt as an agent of Onkar Dutt and no evidence of this
aspect is available on record, which proves the fact of death of
Onkar Dutt was within the knowledge of Dev Kishan and after the
death of Onkar Dutt, the rent was paid in the capacity of owner of
the property as stated by the plaintiffs.
As argued in the present by the respondent-plaintiff that
there was a default in payment of rent by appellant defendants as
they have not paid rent, on the contrary it is an admitted position
that the jural relationship between Sriniwas and appellants as a
landlord & tenant has not been established as there is no valid
attornment. Therefore, it is clear from the above discussion that
there is no legal attornment in favour of plaintiff-Sriniwas and
both the suits are based on the ownership which was accrued from
(114 of 118) [CFA-192/2010]
Sale deeds dated 02.09.1986 as per plaintiff which were execute
by [email protected] Gyandutt in favour of Plaintiff(s).
It would be appropriate to deal with the genuineness of the
rent receipts which were exhibited as Exhibit 1 to 7 and the same
were issued by Gyanprakash to Dhanraj, after payment of rent
from the year 1.8.1981 to 31.3.1983. As this fact can only be
proved either by Gyanprakash or by Devkishan or any other
person in whose presence the receipts were issued but there is no
such pleading or evidence available on record, by which the
genuineness of the rent receipts can be proved. Therefore, it
cannot be said that the rent receipts were genuinely proved and
also on the basis of these rent receipts issued, it cannot be said
that Gyanprakash issued those receipts in capacity of owner of the
property or on behalf of Onkardutt, admittedly rent was never
paid to plaintiff- Sriniwas
In considered opinion of this Court, even on the basis of the
fact that after death of original owner of the property, the rent
was paid to his legal representative, it cannot be presumed that it
is admitted by the tenant that he is the sole owner of the property
because if there is no dispute, the rent can be collected by any of
the heirs after death of original owner.
So far as transfer of ownership of the disputed property
through Sale Deed Exhibits-8 & 9 is concerned, although it is
stated by PW1 that these documents were signed by Gyan
Prakash in his presence but the question is as to whether Gyan
Prakash is competent to execute the sale deed Exhibit-9 because
as per above observations, the trust deed dated 22.9.1973 was
not legally proved in Civil First Appeal no.197/2010 as number of
(115 of 118) [CFA-192/2010]
issues has already been dealt in appeal which was filed against the
decree of declaration (CFA 197/2010), whereas, issue No. 10 was
related to relief.
It is an admitted position that the suit was filed on the basis
of the sale-deeds executed in favour of plaintiffs and admittedly,
no rent was paid to the plaintiffs and the question of attornment in
favour of the plaintiffs is seriously in dispute as discussed in
detailed above and it was held while deciding Appeal Nos.
197/2010, 206/2010 and 240/2010, which were filed by the
defendants against the decree passed in the Civil suit No. 55/2005
for declarations and injunction, that the trust deed was not proved
in favour of Gyanprakash @ Gyandutt, Gyanprakash @ Gyandutt
was not become the sole owner of the property at the time of
execution of the sale-deeds, rent receipts were exhibited during
the statement of the plaintiff (Sriniwas) only, no other witness,
i.e., previous landlord Gyanprakash @ Gyandutt or any other
person was examined on behalf of the plaintiff and the findings of
the learned Trial Court were based upon the fact that the right of
defence of the defendants was struck off due to non-payment of
determined rent and in the considered opinion of this Court where
relationship of landlord and tenant was not established, title of the
landlord was seriously and bonafidely disputed, simply on the
basis that the rent was determined by the learned Trial Court, on
the findings which were based upon the findings of other suits, it
cannot be held that relationship of landlord and tenant is
established between the parties and, therefore, the defence was
rightly struck off.
(116 of 118) [CFA-192/2010]
As per law, suit for eviction and rent can be filed by a
landlord, who received the rent or by the original owner of the
property and per findings of Appeal Nos. 197/2010, 206/2010 and
240/2010, which is already discussed above in regard to formation
of the trust and execution of the sale-deeds, Gyanprakash was not
the sole owner of the property, therefore, it cannot be held that
the plaintiff was undisputed owner of the property and since, no
attornment was proved in favour of the landlord, therefore, he
cannot be treated as landlord of the tenant, now, it would be
appropriate to deal with section 44 of Transfer of Property
Act,1882 which is relevant to decide the aspect regarding the sale
of disputed ancestral property by Gyanprakash to Sriniwas -
plaintiff.
Section 44 of Transfer of Property Act,1882, which is
reproduced as under :
"Where one of two or more co-owners of immoveable
property legally competent in that behalf transfers his
share of such property or any interest therein, the
transferee acquires as to such share or interest, and
so far as is necessary to give, effect to the transfer,
the transferor's right to joint possession or other
common or part enjoyment of the property, and to
enforce a partition of the same, but subject to the
conditions and liabilities affecting at the date of the
transfer, the share or interest so transferred. Where
the transferee of a share of a dwelling-house
belonging to an undivided family is not a member of
the family, nothing in this section shall be deemed to
entitle him to joint possession or other common or
part enjoyment of the house." (Emphasis added)
(117 of 118) [CFA-192/2010]
Admittedly, Gyanprakash sold the disputed ancestral
property to Sriniwas, vide sale deed dated 02.09.1986. Sriniwas,
the present respondent herein, is not the member of the pedigree
of Jamnadas, therefore, in opinion of this Court, Section 44 of
Transfer of Property Act, clearly applies to the instant case, as the
property in question is undivided ancestral property and after the
death of Onkardutt, still it has not been determined that who is
the owner of the disputed property or what share of the disputed
property any of them possess. In the opinion of this Court, after
looking to the pedigree, Gyanprakash will be entitled to receive
only ¼th share in the disputed property and that too, after
determination of his share in the ancestral property by the court
of competent jurisdiction. Despite that Gyanprakash sold the
disputed undivided joint family property to Sriniwas(who is not the
member of the family), as not being the actual owner of the
disputed property.
But these important facts were ignored by the learned Trial
Court and only on the basis of the sale deeds (Ex. 8 & 9) (CFA-
192/2010), it was held that plaintiff- Sriniwas is the owner of the
property.
After dealing with all the relevant issues in this case, in the
crux, it can be clearly said that no jural relationship of landlord
and tenant is established between the parties as there is no legal
attornment, therefore, it can be inferred that when the
relationship of landlord and tenant is not established then, there is
no question arises as to deposit/payment of the rent to Sriniwas -
plaintiff / respondent in the capacity of the owner of the property.
Consequently, it is held that application for mense profit which
(118 of 118) [CFA-192/2010]
was filed by Sriniwas - plaintiff / respondent is not maintainable
and the same is dismissed.
As a result of the discussion foregoing, the findings on Issue
No. 10 A is correct and, therefore, the same is affirmed but
findings on issue No. 1 & 10 of impugned judgement is not
sustainable in eyes of the law, therefore, the Appeal No.
192/2010 (Firm Dhanraj Devkishan & Anr. Vs. Sriniwas) is
partly allowed; consequently, the judgment and decree passed
by the learned Trial Court in Civil Suit No. 54/2005 (Sriniwas Vs.
Firm Dhanraj Devkishan & Anr.) is set aside.
In the circumstances of the cases, the parties shall bear
their own costs of these appeals.
A copy of this judgment be placed in each file.
(DEVENDRA KACHHAWAHA),J
Vij./Mohan/
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