The trial court decreed the plaintiffs' suit and a decree for recovery of possession was passed on the basis of a perfect title found in the plaintiffs. Whether the plaintiffs could get a decree on the basis of their title or not was the moot question to be considered by the Court of appeal below; more so, when the trial Court in arriving at the finding that the 'plaintiffs had a valid title in the suit premises on the basis of their sale deed discussed the evidence (oral and documentary) on the record. The trial Court granted the decree (in parti in favour of the plaintiffs on the ground of equitable relief. Whether the decree could be granted in favour of the plaintiffs on the ground of equitable relief or not was the question to be considered by the lower appellate Court. The view taken by the Court of appeal below to the effect that if the decree for eviction could not be passed, as prayed in relief (a), the question of allowing the prayer in relief (b) did not arise, was not a correct view of law, as already decided by this Court in Second Appeal No. 458 of 1980 (Satyadeo Prasad v. Bibi Zulekha Khatoon), disposed of on 22nd of Mar. 1984.* Once the opportunity to establish title was given to the plaintiffs and plaintiffs did establish their title in the premises in question on the basis of their sale-deeds, there was no reason to deny the equitable relief to the plaintiffs. Such a view has been settled in the case of Satyadeo Prasad v. Bibi Zulekha Khatoon (Supra). The Court of appeal below should have gone into the question of title and seen for itself whether in its opinion, the plaintiffs had established their title in the premises in question, but, as already stated above, the court of appeal below, having taken an erroneous view of law, did not go into this question at all nor did it consider the various circumstances and the evidence, which were taken into consideration by the trial Court.
IN THE HIGH COURT OF PATNA
A.F.A.D. No. 308 of 1980
Decided On: 24.04.1984
Aras Khan Vs. Ali Mian
Hon'ble Judges/Coram:
Ashwini Kumar Sinha , J.
Citation: AIR 1985 Pat 126
1. This is plaintiffs' appeal against a judgment of reversal.
2. The plaintiffs brought a suit for eviction and for realisation of arrears of rent in respect of the suit premises as described at the foot of the plaint.
3. The plaintiffs case was that the suit premises was let out by plaintiff No. 1 to the defendant on a monthly rental of Rs. 25/- in the month of Jan. 1973. The defendant paid rent for some time, but defaulted in making payment of rent from Jan. 1974 to July. 1974, The plaintiffs sent a registered notice calling upon the defendant to pay the arrears of rent and to vacate the premises by 31st of Aug. 1974, but the notice was refused to be accepted. The plaintiffs' further case was that after the termination of tenancy, the defendant was a mere trespasser. As the defendant did not vacate the premises in question, it necessitated the institution of the suit. The defendant contested the suit. The defence was that the plaintiffs had no right, title or interest, whatsoever, in the suit premises. The defendant denied the story of tenancy as propounded by the plaintiffs. The defendant also denied the existence of relationship of landlord and tenant between the plaintiffs and the defendant.
4. The defendant asserted that he purchased 5 dhurs of the suit premises by virtue of two registered sale deeds dated 25th of Aprl., 1972 from one Jamil Ahmad and he has been coming in possession of the same. The defendant also contended that the suit land contained the house, which was also subsequently purchased by him from Jamil Ahmad for which Jamil Ahmad being owner also granted receipt.
5. The further case of the defendant was that the plaintiff No. 1 prevailed upon the owner Jamil Ahmad and managed to get some forged and fabricated document in respect of the suit premises on the basis of which the plaintiffs were trying to oust the defendant from the suit house. The defendant pleaded that the title of the plaintiffs was doubtful and set up a case that he was in possession of the suit premises as a transferee thereof and chus as a real owner he has been paying chowkidari tax for the same and in that view of the matter, the plaintiffs had no cause of action and had no right, title or interest in the land in question.
6. The trial Court decreed the suit in part. It held that the relationship of landlord and tenant was not established. It further held that the defendant had not paid the consideration money to the original owner Jamil Ahmad and, therefore, no title passed to the defendant in the house in question. It further held that the plaintiffs acquired valid title in the lands transferred to them by virtue of the sale deeds which covered the suit house as well and in that view of the matter, the trial Court held that the plaintiffs were entitled to recover possession of the suit house from the defendant on the basis of their title though the story of tenancy had failed. The trial court disallowed the claim for the arrears of rent.
7. The defendant preferred an appeal as against the trial Court decree. The lower appellate Court allowed the defendant's appeal and set aside the judgment and decree of the trial Court. The lower appellate court held that the plaintiffs had not made any alternative prayer for recovery of possession on the ground of trespass nor had paid the court-fee for that. The lower appellate Court held that in the form in which the suit was filed, it was erroneous on the part of the trial Court to have granted relief for recovery of possession. Having taken such a view, the lower appellate Court allowed the defendant's appeal and set aside the judgment and decree of the trial Court.
8. The learned counsel appearing for the plaintiffs-appellants submitted that the judgment of the Court of appeal below was not in accordance with law, inasmuch as the lower appellate Court, while reversing the judgment and decree of the trial Court, has not taken into consideration any of the reasonings given by the trial Court and submitted that on this ground alone, the judgment under appeal was fit to be interfered with. The learned counsel further submitted that the trial court having held that the plaintiffs had acquired valid title to the property in suit and having decreed the suit on that basis, it was incumbent upon the Court of appeal below to have gone into that question before setting aside the judgment and decree of the trial Court. The learned counsel further submitted that the burden of proving Exhibit 'A' (the receipt) was on the defendant who relied upon it and the court of appeal below had wrongly placed onus upon the plaintiffs.
9. The trial Court, while decreeing the suit in pan, dealt with the question of title of the plaintiffs as well as of the defendant and on a detailed consideration of evidence (oral and documentary) came to the conclusion that the plea of the defendant that he had acquired title on the basis of his own sale deed was not acceptable and on further detailed consideration of the evidence (oral and documentary) adduced by the plaintiffs, held that the plaintiffs had acquired a valid title in the lands, which included the house in question as well.
10. The legislature has entrusted a very important duty to the first appellate Court and it is for that court to decide finally all questions of fact on which the disposal of the suit might depend. It must also appear on a perusal of the judgment passed by the lower appellate Court that it has made a sincere endeavour to make proper appraisement of the merits of the cases put forward by the parties. In a case of reversal, it is all the more important for the Court of appeal below to consider the evidence and the reasonings of the trial Court and only thereafter to give its reasons for not agreeing with the findings of the trial Court. A perusal of the judgment must show that the lower appellate Court has applied its mind to the evidences on record.
11. The trial court decreed the plaintiffs' suit and a decree for recovery of possession was passed on the basis of a perfect title found in the plaintiffs. Whether the plaintiffs could get a decree on the basis of their title or not was the moot question to be considered by the Court of appeal below; more so, when the trial Court in arriving at the finding that the 'plaintiffs had a valid title in the suit premises on the basis of their sale deed discussed the evidence (oral and documentary) on the record. The trial Court granted the decree (in parti in favour of the plaintiffs on the ground of equitable relief. Whether the decree could be granted in favour of the plaintiffs on the ground of equitable relief or not was the question to be considered by the lower appellate Court. The view taken by the Court of appeal below to the effect that if the decree for eviction could not be passed, as prayed in relief (a), the question of allowing the prayer in relief (b) did not arise, was not a correct view of law, as already decided by this Court in Second Appeal No. 458 of 1980 (Satyadeo Prasad v. Bibi Zulekha Khatoon), disposed of on 22nd of Mar. 1984.* Once the opportunity to establish title was given to the plaintiffs and plaintiffs did establish their title in the premises in question on the basis of their sale-deeds, there was no reason to deny the equitable relief to the plaintiffs. Such a view has been settled in the case of Satyadeo Prasad v. Bibi Zulekha Khatoon (Supra). The Court of appeal below should have gone into the question of title and seen for itself whether in its opinion, the plaintiffs had established their title in the premises in question, but, as already stated above, the court of appeal below, having taken an erroneous view of law, did not go into this question at all nor did it consider the various circumstances and the evidence, which were taken into consideration by the trial Court.
12. In view of the settled principles of law, as already stated above, the Court of appeal below should have taken into consideration the reasonings of the trial Court and the evidence on the record which it did not do; more so, when the Court of appeal below was reversing the judgment and decree of the trial Court.
13. Thus, there is enough force in the first submission advanced by the learned counsel for the appellants and the appeal must succeed on this ground alone. In view of the fact that the appeal succeeds on the very first submission, it is not necessary to deal with the other two submissions advanced by the learned counsel for the appellants.
14. In the result, the appeal is allowed and the judgment and decree of the court of appeal below are set aside. The case is sent back to the Court of appeal below for a fresh decision in accordance with law after hearing the parties, on the materials already on the records. However, there will be no order as to costs. The parties will be entitled to argue all the points available to them in law.
15. It is pertinent to observe that if the Court of appeal below, ultimately, holds that the plaintiffs were entitled to equitable reliefs, as granted by the trial Court, then the lower appellate court will direct the plaintiffs to pay the court-fees on the value of the property.
No comments:
Post a Comment