It
must be mentioned here that for the purposes of Section 52 of
TPA, 1882 what is important is pendency of suit or proceedings
and not the decision rendered therein or its effect. Therefore,
the lease created in or about the year 1971 in this case would
be a lease created during the pendency of suit or proceedings.
This lease was made without express consent of the mortgagee
and without any permission having been obtained from the
Court. In the case of Sunita Jugalkishore (supra), Hon'ble
Supreme Court has held that if the tenancy or lease is created
by the mortgagors during the pendency of the mortgage
proceedings, it would be hit by the principle of lis pendens and
the mortgagee would be entitled to avoid transfer on the
ground that proceedings relating to mortgage were pending.
Facts of the instant case as discussed earlier clearly show that
this principle of law squarely applies to the present case. The
inevitable conclusion would be that respondents' possession of
the suit property would have to be held as illegal and they
would not be entitled to resist the claim for possession by
auction purchaser, which the appellant is claiming through the
original plaintiff.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH: NAGPUR.
SECOND APPEAL NO.21 of 2009
Tikkamchand Ramvilas Gilda,
Versus
Smt. Jankibai Pyarelal Shrivas,
CORAM:-S. B. SHUKRE, J.
PRONOUNCED ON :28th March, 2014.
Citation;2014(5) ALLMR 237
Read original judgment here;click here
This appeal is preferred against the judgment and
decree passed on 25.9.2001 by the Joint District Judge,
Amravati in Regular Civil Appeal No. 21/1995 filed against the
judgment and decree passed on 26.10.1994 in Regular Civil Suit
No. 402/1990 by the Joint Civil Judge, Senior Division, Amravati,
thereby dismissing the appeal and confirming the decree
passed by the trial Court.
2. The appellant is the grand daughter in law of the
original plaintiff to whom the suit property, which is a shop
situated in a building popularly known as Mathuradas building,
Amravati, was bequeathed by the original plaintiff. Deceased
respondent nos.1 and 2 were original defendant nos.1 and 2
and remaining respondents were substituted as defendant nos.
3(1) to 3(4) after the original defendant no. 3. Nandalal Pyarelal
Shrivas died during the pendency of the suit, they being legal
representatives in the capacity as widow and children of said
Nandalal respectively. For the sake of convenience, the parties
hereto are being referred to as the plaintiffs and defendants.
3. It was the case of the original plaintiff Gangabai
Gilda that she became owner of the joint half share in the
building popularly known as Mathuradas building situated on
Nazul plot bearing Nos. 21/50, 21/51 and 21/52 of sheet No. 56-
A in Ward No. 26(new) bearing Municipal Corporation House No.
271 and 272 by virtue of an auction sale dated 2.3.1960 held
in execution of a decree passed in her favour to the extent of
half share in the said building in a mortgage suit. There was a
challenge made to the said sale by the defendants in the
mortgage suit and litigation went up to Supreme Court.
Auction sale was confirmed by the Supreme Court by the
Judgment and decree passed on 9.4.1974. It was averred that
plaintiff was already put in possession of the suit property by
the Court on 25.11.1960 and this sale became absolute after it
was confirmed on 9.4.1974. However, the joint half share in the
said building came to be defined and separated later on when
there was a compromise decree passed by Additional District
Judge, Amravati on 21.8.1987 in Regular Civil Appeal No.
234/1980. The portion that came to be allotted to the plaintiff
in the compromise decree encompassed within it the shop in
possession of the defendants and this property, hereafter called
as “suit property”, is the subject matter of the present dispute
between the parties.
4. The plaintiff submitted that the suit property was
purchased by her in auction sale, which was then occupied by
one Nandalal Rathi and thereafter at the time of confirmation
of the sale, it came to be occupied by Tekchand Sawaldas and
after some years one Pyarelal Shrivas, the husband of original
defendant no.1 Smt. Janakibai and father of original defendant
nos. 2 and 3 namely Smt. Sharda and Nandalal, entered into
possession of the suit property without consent of the plaintiff.
It was further submitted that since Pyarelal was trespasser
having been in occupation of the suit property without her
consent, the plaintiff orally requested Nandalal, who after death
of his father Pyarelal, started occupying the property, to vacate
the same.
5. The plaintiff also submitted that she had intimated
the original defendant no. 3 Nandalal about confirmation of the
compromise decree dated 21.8.1987 by the High Court in
Second Appeal No. 57/1989 by virtue of which she had become
sole owner of the suit property. She further submitted that she
had also intimated original defendant no. 3 that she had
acquired right to recover damages for use and occupation of
the suit property w.e.f. 1.7.1987. She further submitted that
she learnt that defendant no. 3 had put a slab on the suit
property and extended the area of the suit property by
constructing a new wall without her consent. She protested
against the same by lodging a police complaint with Police
Station, City Kotwali, Amravati and also with Municipal
Corporation, Amravati. She further submitted that possession
of original defendant no. 3 of the suit property being without
consent and having been acquired by him during the pendency
of litigation between herself and the mortgagers, the
defendant's occupation of the suit property was as trespasser
and, therefore, they were liable to vacate the same and pay her
damages for unauthorised use and occupation. Accordingly,
she filed a civil suit for recovery of possession and damages
and mesne profits.
6. Original defendant nos. 1 to 3 resisted the suit by
filing their common written statement. They claimed that
original defendant no.1 being the mother and original
defendant no. 2 being the sister of defendant no. 3 with
defendant no. 3 occupying the suit property as a tenant of the
owners Vijay Kumar and Rajendra Kumar, had no concern with
the suit property. They, therefore, claimed their discharge from
the suit property.
7. Defendant nos. 1 to 3 submitted that building was
known as Mathuradas building being owned by Vijay Kumar and
Rajendra Kumar through father Vijaysingh Mohta. They
submitted that this building was mortgaged by Vijaysingh
Mohta for himself and on behalf of his sons Vijay Kumar and
Rajendra Kumar to the original plaintiff as a security for
repayment of loan of `.15,000/- ( Rupees fifteen thousand only).
They submitted that plaintiff had filed a suit on said mortgage
and it was held that mortgage was without legal necessity in so
far as shares of two sons were concerned and therefore, the
mortgage was released to the extent of their half share
together in the mortgaged property. The suit was decreed in
favour of original plaintiff to the extent of half share of
Vijaysingh Mohta of which he was in possession.
8. It was the case of the defendants that in spite of
sale of joint half share of Vijaysingh Mohta in the said building,
Vijaysingh Mohta continued to remain in possession of entire
building and continued recovering rents from various tenants
and also letting out premises in the usual course of
management of the building. According to the defendants, the
fact that plaintiff had purchased joint half share in the said
building was learnt by them only sometime later.
9. They further submitted that defendant no. 3 was
inducted as tenant of suit property by Vijay Kumar and Rajendra
Kumar on monthly rent of Rs.25/- some time in the year 1966
and they denied that defendant no. 3 was a trespasser. They
submitted that Vijay Kumar and Rajendra Kumar being in
possession of the building in which suit property is situated,
had a right to let out the same in the ordinary course of
management of the building and accordingly, it was let out to
defendant no. 3 and this lease was binding upon the plaintiff
also. They further submitted that plaintiff never informed that
she was owner of joint half share. They learnt about the same
only after present suit was instituted against them. They also
submitted that they had paid the rent up to April 1990 to Vijay
Kumar and were willing to pay the rent to the plaintiff
thereafter. They also submitted that all that plaintiff could ask
for was only payment of rent and not delivery of possession of
the suit property. They also submitted that the suit was not
brought with the permission of the Rent Controller. They denied
that they had made any extension in the suit property and
whatever repairs were carried out by them, were with the
permission of the landlord.
10. After death of original defendant no. 3 Nandalal, his
legal heirs were bought on record and defendant no.3(1), the
daughter, filed her written statement adopting the written
statement filed by original defendant nos. 1 to 3. She,
however, submitted that after the death of Nandalal, she had
become tenant of Vijay Kumar and Rajendra Kumar. She
submitted that since plaintiff became the owner of the suit
property on 21.8.1989 when the compromise decree was
confirmed by High Court, at the most, she could claim the rent
of suit property from her and she had a right to pay the rent.
It was also averred that even if it was held that tenancy of
defendants was invalid still, plaintiff could not recover
possession of the suit property as defendants became owner by
adverse possession and suit was barred by limitation.
11. Learned Civil Judge framed several issues out of
which issues relating to status of defendant no. 3 being
trespasser, bar of suit by limitation and entitlement of plaintiff
to possession of the suit premises and to damages were
answered as in the negative by the trial court. The trial Court
found that defendant no. 3 was inducted as tenant by Vijay
Kumar and Rajendra Kumar during the subsistence of mortgage
in the year 1972 and he was not the trespasser. The trial Court
also found that even though the joint half share in the building
was purchased in auction sale by the plaintiff in the year 1960,
her half share in the building came to be defined only after the
compromise decree passed on 21.8.1987 was confirmed by the
High Court in the year 1989. It further held that at the time of
passing of compromise decree, the plaintiff had accepted
allotment of that portion of the building to her in which the suit
property was situated knowing fully well that there were
inhabitants residing therein as tenants. These facts, according
to the trial Court, only established that defendant no. 3 was not
trespasser in the suit property when he initially occupied it nor
the present defendants made their entry in the suit property as
trespassers. The trial Court also held that the limitation to file
present suit would be governed by Article 65 and since the suit
was filed on the basis of compromise decree dated 21.8.1987,
it was not barred by limitation. The trial Court also found that
since the defendants were in possession of the suit property as
tenants of the previous owner and the claim of the plaintiff for
possession and damages was not maintainable, the trial Court
dismissed the suit.
12. In the appeal filed against the said decree in the
District Court, the learned District Judge came to the
conclusion that the defendants were inducted in the suit
property as tenants by the original landlord Vijay Kumar and
Rajendra Kumar since the year 1971 and such action of letting
out the premises could not be said to be without any right. He
further held that during the period from 1960 to 1976 there
were no proceedings pending in any Court and therefore a lease
created in 1971 could not be said to be a lease made during the
pendency of the suit so as to attract Section 52 of the Transfer
of Property Act, 1882 ( “the TPA, 1882” for short) and that lease
was not hit by doctrine of lis pendens. Learned District Judge
also found that even if it was held that Vijay Kumar and
Rajendra Kumar had inducted the defendants as tenants
without consent of the plaintiff, the possession of the
defendants would be that of trespassers in the eyes of
Gangabai and as defendant no. 3 was occupying the suit
property since the year 1971 without any authority from the
original plaintiff Gangabai, the suit filed in the year 1990 would
be barred by limitation. The learned District Judge also found
that since the time of grant of joint half share in the building in
the year 1960 till the year 1987, plaintiff never protested
against action of Vijay Kumar and Rajendra Kumar in managing
the property and, therefore, there was implied consent of the
plaintiff in letting out suit property to the defendant no. 3. Thus,
learned District Judge, dismissed the appeal confirming the
dismissal of the suit by the trial Court.
13. I have heard Shri V. R. Mundra, learned counsel for
the appellant and Shri P. C. Madkholkar, learned counsel for the
respondents. I have carefully gone through the impugned
judgments and decrees, paper book and record and
proceedings before trial Court.
14. By the orders passed by this Court on various dates
such as 20.1.2009, 22.3.2012, 11.9.2013 and 23.9.2013, this
Court had indicated substantial questions of law on which this
appeal would be heard.
15. In the first of such orders, dated 20.1.2009 it was
mentioned that one of the contentions is induction of defendant
no. 3 as tenant by Vijay Kumar and Rajendra Kumar during the
subsistence of the mortgage and so a question would arise as
to the status of present respondent nos. 3 to 6 as trespassers or
otherwise.
16. In the second order dated 22.3.2012, this Court
gave an indication of another substantial question of law
making reference to the compromise decree of 1987 and it was
stated that the effect of 1987 compromise would require
evaluation.
17. By third order passed on 11.9.2013, a specific
substantial question of law was framed by this Court which was
later on re-formulated on 23.9.2013.
18. Learned counsel for the respondents has taken an
exception to the fact that in this appeal no substantial
questions of law have been formulated nor do they arise for
consideration in this appeal. Therefore, according to him, on
this count itself, the appeal is liable to be dismissed. He has
placed reliance on the law laid down in the case of Taher
Akhatoon Vs. Salambin Mohammad, (1999) 2 SCC 635, in this
regard.
19. Shri Mundra, learned counsel for the appellant has
submitted that initially, substantial questions of law may not
have been formulated by this Court in the form of questions
but the Court had given an indication of the aspects which
required consideration and they were in the nature of
substantial questions of law only and, therefore, it cannot be
said that in this case, no substantial questions of law have
been formulated. He has further submitted that phraseology of
a question is not important and what is important is to indicate
the aspect or point of law which is substantial and which
requires a consideration by the Court. According to him, these
requirements of Section 100 CPC have been fulfilled in this
case.
20. The orders passed by this Court on the dates
aforementioned sufficiently indicate that this Court has
indicated the aspects or points in the nature of substantial
questions of law although some of them may not be in the form
of questions as such. But, as rightly submitted by learned
counsel for the appellant, what we have to look for is the
substance of the matter raised to be a substantial question of
law and not it's form. Therefore, in my view, the requirement
of Section 100, CPC regarding framing of substantial question
of law as laid down in the aforestated case of Taher Akhatoon
(supra) has been substantially met in this case. These
substantial questions of law, some of them being in narrative
form and some of them being in question form, would require
reformulation, so that we can have precise idea of the questions
on which this appeal has been heard and is being now decided
and they are reformulated as under:-
1. Whether the status of respondent nos. 3 to 6
inducted as tenant by Vijay Kumar and
Rajendra Kumar who had mortgaged the
property in favour of present appellant is as
trespassers?
2. What is the effect of compromise decree dated
21.8.1987 of Regular Civil Appeal No.
234/1980 on the rights of Vijay Kumar and
Rajendra Kumar to induct a tenant in the
concerned joint property?
3. When will limitation begin to run against the
co-owner, who is not a party to the alleged
tenancy, for claiming possession from a
person alleging to be a tenant from another
co-owner without the consent of the former?
21. Learned counsel for the appellant has submitted
that defendant no. 3 was inducted as tenant by Vijay Kumar
and Rajendra Kumar sometime in the year 1971 without the
consent of the mortgagee, Gangabai, the original plaintiff and
that was done when the litigation between Gangabai, the
mortgagee and Vijay Kumar and Rajendra Kumar, the
mortgagors was pending. He submitted that since the
defendant no. 3 was inducted as tenant during the pandency of
the litigation, without consent of the plaintiff, tenancy was hit
by the doctrine of lis pendens under Section 52 of TPA, 1882,
and therefore, defendant no. 3 and the remaining defendants
claiming through him were the trespassers in the suit property
and thus liable to be evicted therefrom. He has invited my
attention to the judgment of the Hon'ble Apex Court in the case
of this appellant and other persons, who were inducted in the
same building as tenants by mortgagors without consent of the
present appellant. This case is reported as Sunita Jugalkishore
Gilda Vs. Ramanlal Udhoji Tanna(dead) thr. Lrs. and others,
2013(10) Scale 519. This case lays down the law that when a
property which is subject matter of a suit between mortgagors
and mortgagee is transferred or otherwise dealt with by a party
to the suit during the pendency of the suit, the other party is
entitled to avoid the transfer on the ground that it was done
during the pendency of the suit on the basis of principle of lis
pendens incorporated under Section 52 of the TPA, 1882.
22. Learned counsel for the respondents has submitted
that the judgment in the said case of Sunita Jugalkishore
(supra) is relevant only for the purpose of application of
principle of lis pendens to the transfers made during the
pendency of the suit, without consent of the mortgagee. He
submits that said judgment has no application to the facts of
the present case for the reason that defendant no. 3 has been
inducted as the tenant during the subsistence of a mortgage in
the ordinary course of management of property and in
accordance with law and therefore, the lease so created is
binding upon the plaintiff/ appellant. He has further submitted
that there has been also an admission given in evidence by
father in law of the appellant, late Tikkamchand Ramvilas Gilda
(PW1), that he used to collect rent from the respondents and
this would mean that he had accepted the lease created by the
mortgagors and therefore, permission of the rent controller to
evict the respondents from the suit property was necessary and
same having been not obtained, the suit has been correctly
dismissed by both the Courts below. He has also submitted
that the mortgage proceedings came to an end in the year
1960 after joint half share in the building was purchased in
auction sale by the plaintiff and as lease was created in the
year 1971, there was no litigation pending between the
mortgagee and mortgagors and as such doctrine of lis pendens
has no application to the facts of the present case.
23. In order to appreciate the arguments and make an
attempt to answer the substantial questions of law, it would be
necessary to first consider the facts of the case which are not
in dispute. They are stated in brief as follows:-
Mathuradas building in which the suit property is
situated, was mortgaged by Vijay Singh Mohta for himself and
for his two sons Vijay Kumar and Rajendra Kumar in favour of
the original plaintiff, Gangabai, on 24.3.1953 as security for
repayment of loan of `. 20,000/- that he had obtained from the
plaintiff. The plaintiff lady filed a civil suit bearing no. 3-A/1956
on the file of first Additional District Judge Amravati in which
preliminary decree for sale of joint half share of the plaintiff in
mortgaged property came to be passed on 30.9.1958. Final
decree was passed on 23.10.1959. In execution of final decree,
an auction sale of the mortgaged property was held on
2.3.1960 in which joint half share in the mortgaged property
was purchased by the plaintiff with the permission of the Court.
Auction sale was confirmed by the Civil Judge, Senior Division,
Amravati on 21.9.1960 and the plaintiff was put in possession
of her joint half share in the mortgaged building on 5.11.1960.
Meanwhile, defendant nos. 2 and 3 in the said
mortgaged suit, i.e Vijay Kumar and Rajendra Kumar, preferred
First Appeal No. 72/1959 before the High Court against the
preliminary decree passed on 30.9.1958. Appeal was allowed
by the High Court and preliminary decree passed by the trial
court on 30.9.1958 was set aside and a fresh preliminary
decree was ordered to be drawn. Plaintiff filed Civil Appeal No.
582(n) of 1969 before the Hon'ble Supreme Court against the
judgment and decree passed by High Court in First Appeal No.
72/1959. The appeal was allowed by Hon'ble Supreme Court of
India and the preliminary decree passed by the trial Court came
to be restored by the judgment dated 9.4.1974. This judgment
is reported as Gangabai Vs. Vijaykumar and others, (1974)2
WCC 393 equivalent citation AIR 1974 SC 602.
Defendant nos. 2 and 3 in the said mortgage suit i.e
Vijay Kumar and Rajendra Kumar, thereafter filed a special Civil
Suit No. 76/74 for setting aside the preliminary decree dated
30.9.1958 before the Civil Judge, Senior Division, Amravati. The
suit, however, was dismissed with costs by Civil Court on
31.1.1980. These defendants then preferred Regular Civil
Appeal No. 234/1980 before the District Judge, Amravati in
which a compromise application came to be filed on 21.8.1987.
It was accepted by the District Judge and he passed a
compromise decree dated 12.10.1988. Defendant nos. 2 and 3
to the said proceedings, however, preferred, Second Appeal No.
57/1989 challenging the compromise decree dated 12.10.1988.
The Second Appeal, was dismissed by the High Court vide its
judgment dated 31.8.1989. Thus, the compromise decree
dated 12.10.1988 came to be confirmed. It was by this decree
that the half share of the plaintiff in the mortgaged building
came to be defined and separated and the plaintiff became sole
owner of this portion of the building. The suit property is
situated in the said portion of the building which portion is
allotted as per the compromise decree dated 12.10.1988 to the
plaintiff.
24. In the present case, both the courts below upon
consideration of the evidence on record have found that the
defendant no. 3 was inducted as tenant by Vijay Kumar and
Rajendra Kumar in or about the year 1971. Both the parties do
not dispute these concurrent findings of fact recorded by both
the Courts below. What they dispute is the status of the
defendant no. 3 and the remaining defendants who claim
through defendant no. 3. According to the plaintiff, these
defendants are trespassers having been in unauthorised
occupation of the suit property without consent of the plaintiff
and are the trespassers. The respondents on the other hand
submit that they have entered into possession of the suit
property as lessees of the mortgagors at a time when mortgage
proceedings were pending and if they were held to be not
pending, still, they having been accepted as tenants by the
plaintiff, the suit for recovery of possession without obtaining of
permission of rent controller was not maintainable. According
to the respondents, the lease is also not adversely affected by
the principle of lis pendens under the Section 52 of TPA, 1882.
25. Upon consideration of the facts admitted and which
have been reproduced earlier what emerges on record is that
defendant no. 3 was inducted as tenant by mortgagors Vijay
Kumar and Rajendra Kumar in the year 1971 and that was the
time when the proceedings challenging the preliminary decree
passed on 30.9.1958 in the mortgage suit bearing Civil Suit No.
3-A/1956 were pending before the Hon'ble Apex Court in the
nature of Civil Appeal no. 582/1969. This appeal was allowed
by the Hon'ble Supreme Court on 9.4.1974 whereby the
judgment and decree of the High Court were set aside and the
preliminary decree dated 30.9.1958 passed by the trial Court
was restored. This judgment thus, brought to an end the
mortgage on 9.4.1974, and restored the preliminary decree
dated 30.9.1958 passed by the trial Court. That means, its
effect would relate back to 30.9.1958 when the mortgage
between Vijaysing Mohta and his two sons on one hand and
original plaintiff Gangabai on the other was put to an end and
preliminary decree for sale of joint half share of plaintiff was
passed. Therefore, the question of holding lease created in or
about the year 1971 by the mortgagors in favour of the
respondents as legally valid on the basis of Section 65A of the
TPA, 1882, would not arise. Under sub-Section 2(a) of Section
65 of the TPA, 1882, lease made by a mortgagor while being
lawfully in possession of mortgaged property binds the
mortgagee, if the lease is made in the ordinary course of
management of property and is in accordance with any local
law. But, in the instant case, mortgage itself being not in
existence in 1971, by virtue of judgment of the Hon'ble
Supreme Court confirming the preliminary decree dated
30.9.1958, there was no relationship of mortgagor-mortgagee
at that time and therefore, Section 65-A power to lease was not
available.
26. Learned counsel for the respondents has submitted
that the mortgage proceedings came to an end only in the year
1974 after Civil Appeal was dismissed by the Hon'ble Supreme
Court and since the lease was made in ordinary course of
management of property and in accordance with local law, suit
without permission of the Rent Controller under the provisions
of clause 13 of Rent Control Order was not maintainable. The
mortgage proceedings may have ended in the year 1974, but
the effect of the decision dated 9.04.1974 of Hon'ble Supreme
Court related back to 30.09.1958 as the decision confirmed the
preliminary decree passed on 30.09.1958. Therefore, as said
earlier, the mortgage itself came to an end w.e.f. 30.9.1958 and
so any lease created thereafter would not be covered by
Section 65-A of the TPA, 1882. Thus, there being no valid lease
in existence, the question of permission of Rent Controller
under the said Order for filing of eviction suit would not arise. I,
therefore, find no merit in the said argument of learned counsel
for the respondents.
27. Now, the question that is required to be determined
is whether the lease created in or about the year 1971 was hit
by principle of lis pendens under Section 52 of the TPA, 1882.
The facts of this case sufficiently indicate that proceedings
relating to the mortgage were finally closed on 9.4.1974 when
the Hon'ble Supreme Court allowed the Civil Appeal No.
582/1969 and confirmed preliminary decree dated 30.9.1958
Thus, when the lease was created in favour of defendant no. 3,
a suit involving direct and specific right to immovable property
in question i.e mortgaged property was pending, appeal
proceeding being continuation of the suit, and therefore, this
lease was subject to the provisions of Section 52 TPA, 1882. It
must be mentioned here that for the purposes of Section 52 of
TPA, 1882 what is important is pendency of suit or proceedings
and not the decision rendered therein or its effect. Therefore,
the lease created in or about the year 1971 in this case would
be a lease created during the pendency of suit or proceedings.
This lease was made without express consent of the mortgagee
and without any permission having been obtained from the
Court. In the case of Sunita Jugalkishore (supra), Hon'ble
Supreme Court has held that if the tenancy or lease is created
by the mortgagors during the pendency of the mortgage
proceedings, it would be hit by the principle of lis pendens and
the mortgagee would be entitled to avoid transfer on the
ground that proceedings relating to mortgage were pending.
Facts of the instant case as discussed earlier clearly show that
this principle of law squarely applies to the present case. The
inevitable conclusion would be that respondents' possession of
the suit property would have to be held as illegal and they
would not be entitled to resist the claim for possession by
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auction purchaser, which the appellant is claiming through the
original plaintiff.
28. Learned counsel for the respondents has submitted
that there has been an admission given by PW1 Tikkamchand
Gilda that he had collected rent from the respondents. Upon a
careful perusal of his testimony, what I find is only an admission
in general terms and that too without any specific reference to
these respondents. In his cross examination, he has only
admitted, as seen from paragraph 8 of his deposition, that he
had collected rent. He does not elaborate as to from whom and
for which period or for which month he had collected the rent.
On the contrary, his evidence shows that he had asserted that
lease was without the consent of the original plaintiff and it has
not been controverted by the respondents. This being the
position emerging from the evidence available on record, it
must be held that the original plaintiff has established the fact
that the lease was without her express consent and so, the
question of obtaining any permission from the Rent Controller
for filing an eviction suit would not arise in this case.
29. Learned counsel for the respondents has also
submitted that it is not permissible for this Court to re-
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appreciate the evidence and take another view only because
other view is possible while exercising jurisdiction under Section
100 of C.P.C. He has placed his reliance upon the following
cases:-
1. Navaneethammal Vs. Arjuna Chetty, (1996)6 SCC
166.
2. Gurdev Kaur and others Vs. Kako and others, AIR
2006 SC 1975.
3. Pakeerappa Rai Vs. Seethamma Hengsu dead by
LRS and others, (2001)9 SCC 521.
4. Amol Kishor Mule and another Vs. Vishwanath
Rajaram Shahande and another, 2006(0) BCI 359.
30. In the above cases, it is held that scope of High
Court's jurisdiction under Section 100 CPC is limited to deciding
the substantial question of law involved in the appeal and while
doing so, it is not permissible for the High Court to interfere
with the concurrent findings of Courts below by re-appreciating
the evidence and arriving at another view, only because it is
possible. It is also held that howsoever the findings of facts
might be wrong or grossly inexcusable, unless the same are
perverse or shown to be not based upon evidence on record or
based upon non-consideration of the material evidence or
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consideration of some extraneous material, the findings of
facts must not be upset in the Second appeal under Section 100
C.P.C.
31. In the instant case, It is seen that there is no error
in the finding of fact recorded by the Courts below relating to
induction of defendant no. 3 as tenant in the suit property in or
about the year 1971 and this finding being based upon the
evidence available on record, there is no question of interfering
with the same. However, after having noted existence of this
fact, both the Courts below have committed an error of law in
not appreciating the principle of lis pendens incorporated in
Section 52 and resultantly arrived at conclusions totally
inconsistent with the law applicable to the facts of the case.
Learned Joint District Judge even went a step further in
recording perversely that between period of 1960 to 1976 there
was no proceeding pending in any Court and thus a lease
created in the year 1971, could not be said to be a lease made
during the pendency of the suit so as to attract the provision of
Section 52 of TPA, 1882. This finding of fact is absolutely
perverse as it is not based upon the evidence on record and
facts admitted by rival parties. There is no dispute about the
fact that the proceedings relating to preliminary decree passed
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on 30.9.1958 in a mortgage suit between the plaintiff and
mortgagors Vijaysingh Mohta and two sons were pending
continuously till 9.4.1974 when the Hon'ble Supreme Court
decided the civil appeal No. 582/1969 and confirmed the decree
dated 30.9.1958.
32. The above referred finding recorded by First
Appellate Court was based upon perverse appreciation of
evidence. The finding recorded by both Courts below about in
applicability of doctrine of lis pendens was also the result of
incorrect understanding of the principle of law. Therefore, in
my view, they warrant interference by this Court in exercise of
its jurisdiction under Section 100 of CPC, which exercise, in my
humble opinion, has been done only by following the
propositions of law laid down in the aforesaid cases cited by
learned counsel for the respondents.
33. Learned counsel for the respondents has also
referred to me the case of Krishna Ram Mahale (dead) by his
LRs' Vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097, in order
to support his argument that respondents cannot be
dispossessed by the appellant. With due respect, I must say
that in the said case of Krishna Ram Mahale (supra), there was
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unlawful dispossession of the licencee by the licencor before
expiry of licence period and therefore, licencee filed a suit for
recovery of possession and it was held that licencee was
entitled to a decree for possession of the suit property. These
facts clearly distinguish themselves from the facts of instant
suit in which respondents are still in possession of the suit
property and suit for recovery of possession has been filed by
the appellant on the ground of respondents being trespassers
and in illegal possession of the suit property. I have already
found that respondents being trespassers, cannot resist the suit
for recovery of possession filed by the appellant. Therefore, the
said case of Krishna Ram Mahale (supra) would be of no
assistance to the respondents herein.
34. Learned counsel for the appellant has referred to
me the case of Mangru V. Taraknathji, AIR 1967, SC 1390 to
support his contention that if the mortgagors created a lease
during the pendency of the suit by the mortgagee, lessee is
bound by the result of the litigation. This proposition has
already been considered and applied by Hon'ble Supreme Court
in the case of Sunita Jugalkishore (Surpa), the ratio of which
case has been found to be applicable by me to the facts of the
case. Therefore, there is no need to separately consider the
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law laid down in the in said case of Mangru (supra).
35. Learned counsel for the appellant has also referred
to me the following cases:-
1. Lalji Purushottam Vs. Madhavji Meghaji, AIR 1976
Gujarat 161.
2. Jadavji Purshottam Vs. Dhami Navnitbhai Amaratlal
and others, AIR 1987 SC 2146.
3. M/s Sachalmal Parasram Vs. Mst. Ratanbai and
others, AIR 1972 SC 637.
4. Dev Raj Dogra VS. Gyan Chand Jain, AIR 1981 SC
981.
5. Pomal Kanji Govindji and others Vs. Vrajlal
Karsandas Purohit and others, AIR 1989 SC 436.
6. Devkinandan Vs. Roshan Lal, AIR 1985 Rajasthan
11.
36. Since the case of Sunita Jugalkishore (supra) has
been found to be squarely applicable to the facts of the present
case, I do not think it necessary to consider the above referred
cases.
37. In view of the above, I find that appellant has
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established that the respondents having been inducted by the
mortgagors i.e. Vijay Kumar and Rajendra Kumar, without the
express consent of the plaintiff and without the authority of the
Court during the pendency of the proceedings relating to
mortgage, are in illegal occupation of the property. Thus, their
status is of trespassers. The compromise decree that was
passed in Regular Civil Appeal No. 234/1980 on 21.8.1987 only
defined the half share of plaintiff in the suit building and since
it was confirmed on 12.10.1988 by the High Court in Second
Appeal No. 57/1989, it had the effect of making the plaintiff as
owner of the half portion of the suit building which was allotted
to her in said compromise decree in her own right. But, till that
time, it cannot be said that Vijay Kumar and Rajendra Kumar,
could have created a lease as mortgagors by exercising their
right under Section 65-A so as to bind the mortgagee or the
plaintiff Gangabai. I have already found that after the litigation
relating to mortgage suit was finally concluded on 9.4.1974, the
mortgage came to an end w.e.f. 30.9.1958 when joint half share
in the mortgaged building was purchased by the plaintiff in an
auction sale held in execution of decree passed in Civil Suit No.
3-A/1956. But, at the same time, litigation being pending,
creation of lease in favour of defendant no. 3 was hit by Section
52 of TPA, 1882 and, therefore, the respondents cannot resist
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the claim of the appellant to recover possession of the suit
property. The first and second substantial questions of law are
answered accordingly.
38. Learned counsel for the appellant has submitted
that the trial Court has correctly appreciated the law of
limitation applicable to the facts of the case and he has invited
my attention to the findings recorded by the trial Court in
paragraph 21 of its judgment. He has submitted that trial Court
has correctly held that limitation period in this case would be
governed by Article 65 of the Limitation Act and it would begin
to run from the date on which possession of respondents
became actually adverse to the appellant and this date is
12.10.1988 when the compromise decree was passed in
Regular Civil Appeal No.234/1980.
39. On the other hand, the learned counsel for the
respondents submitted that if the suit is found to be governed
by Article 134, limitation period prescribed therein being of one
year, the suit becomes barred by law of limitation. He
alternately submits that if the suit is held to be governed by
Article 65, still, the suit is barred by limitation, as limitation
period in this suit would start running from 30.9.1958 and not
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from 12.10.1988 as it was on the former date that the
mortgage came to an end and the plaintiff became co-owner of
the mortgaged property, of which suit property is a part.
40. In Article 134 of the Limitation period prescribed is
of one year from the date when sale becomes absolute. Article
134 is applicable to a case where the suit is brought for
delivery of possession by a purchaser of immovable property at
a sale in execution of decree. Here, the suit is not filed for
delivery of possession by purchaser of immovable property
purchased in a auction sale held in execution of a decree. The
suit that is filed is based on a title and is for recovery of
possession from a party who is in illegal occupation of a
property. Such suit is governed by Article 65 and the limitation
prescribed therein is of 12 years from the date on which the
possession of the defendants became adverse to the plaintiff. It
must be noted here that in 1958 auction sale, the plaintiff
became owner of joint half share of the property and plaintiff 's
share was not defined. It was not within the knowledge of the
plaintiff as to which portion of the suit building would be
partitioned and allotted to her. Till the separation of joint half
share in the suit building was done, she only continued to hold
an undefined and undivided interest in the suit building to the
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extent of her half share as owner thereof. It was only in
compromise decree dated 12.10.1988 that her joint half share
was crystallized by its physical separation and then it became
known to her that what was allotted to her as exclusive owner
of the half share was the portion of the building in which suit
property was situated. It was from that time onwards i.e from
12.10.1988, the interest of the defendants or respondents
became adverse to her and therefore the limitation started to
run under Article 65 of the Limitation Act from 12.10.1988.
The suit having been filed in the year 1990 is well within
limitation period of 12 years, and is not barred by law of
limitation. The trial Court has rightly held so. Learned Joint
District Judge, missed these vital aspects of the matter and,
therefore, has committed a serious error of law in recording an
alternative finding that suit is barred by limitation. This finding
is liable to be quashed and set aside. The third substantial
question of law is answered accordingly.
41. After having answered all the substantial questions
of law in the manner as stated earlier, it has to be considered
as to whether or not all the reliefs as prayed for in the suit can
be granted by this Court at this stage. So far as the relief of
delivery of possession of the suit property is concerned, same
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can be granted in the light of the answers given herein above.
However, as regards the relief relating to damages, I am of the
view that considering the fact that the respondents though
trespassers in relation to the appellant/plaintiff, were the
tenants of mortgagors and were also regularly paying rent to
the mortgagors till April, 1990. In such a fact scenario, it would
be inequitable to grant any damages to the appellant/plaintiff
only because respondents/defendants are in occupation of the
suit property without the consent of the plaintiff/appellant.
However, so far as relief of payment of rent is concerned, I find
no difficulty in granting the same by ordering an inquiry for
recovery of rent in terms of provisions of Order 20 rule 12 of
CPC, 1908 from the institution of the suit till delivery of
possession by the respondents/defendants.
42. In the result, appeal deserves to be partly allowed.
Appeal is partly allowed with proportionate costs throughout.
Judgments and decrees of the trial Court and joint District Judge
impugned herein are hereby quashed and set aside.
43. It is directed that respondents/defendants shall
deliver vacant possession of the suit property to the
appellant/plaintiff within a period of six months from the date
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of the order. It is further directed that an inquiry as to the rent
from the institution of the suit until the delivery of possession to
the appellant/plaintiff shall be held in accordance with
provisions of Order 20 Rule 12 of CPC by the Court of Joint Civil
Judge, Senior Division, Amravati.
44. The suit is partly decreed with proportionate costs
in above terms.
45. Decree to be drawn up accordingly.
S. B. SHUKRE, J.
vn*
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must be mentioned here that for the purposes of Section 52 of
TPA, 1882 what is important is pendency of suit or proceedings
and not the decision rendered therein or its effect. Therefore,
the lease created in or about the year 1971 in this case would
be a lease created during the pendency of suit or proceedings.
This lease was made without express consent of the mortgagee
and without any permission having been obtained from the
Court. In the case of Sunita Jugalkishore (supra), Hon'ble
Supreme Court has held that if the tenancy or lease is created
by the mortgagors during the pendency of the mortgage
proceedings, it would be hit by the principle of lis pendens and
the mortgagee would be entitled to avoid transfer on the
ground that proceedings relating to mortgage were pending.
Facts of the instant case as discussed earlier clearly show that
this principle of law squarely applies to the present case. The
inevitable conclusion would be that respondents' possession of
the suit property would have to be held as illegal and they
would not be entitled to resist the claim for possession by
auction purchaser, which the appellant is claiming through the
original plaintiff.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH: NAGPUR.
SECOND APPEAL NO.21 of 2009
Tikkamchand Ramvilas Gilda,
Versus
Smt. Jankibai Pyarelal Shrivas,
CORAM:-S. B. SHUKRE, J.
PRONOUNCED ON :28th March, 2014.
Citation;2014(5) ALLMR 237
Read original judgment here;click here
This appeal is preferred against the judgment and
decree passed on 25.9.2001 by the Joint District Judge,
Amravati in Regular Civil Appeal No. 21/1995 filed against the
judgment and decree passed on 26.10.1994 in Regular Civil Suit
No. 402/1990 by the Joint Civil Judge, Senior Division, Amravati,
thereby dismissing the appeal and confirming the decree
passed by the trial Court.
2. The appellant is the grand daughter in law of the
original plaintiff to whom the suit property, which is a shop
situated in a building popularly known as Mathuradas building,
Amravati, was bequeathed by the original plaintiff. Deceased
respondent nos.1 and 2 were original defendant nos.1 and 2
and remaining respondents were substituted as defendant nos.
3(1) to 3(4) after the original defendant no. 3. Nandalal Pyarelal
Shrivas died during the pendency of the suit, they being legal
representatives in the capacity as widow and children of said
Nandalal respectively. For the sake of convenience, the parties
hereto are being referred to as the plaintiffs and defendants.
3. It was the case of the original plaintiff Gangabai
Gilda that she became owner of the joint half share in the
building popularly known as Mathuradas building situated on
Nazul plot bearing Nos. 21/50, 21/51 and 21/52 of sheet No. 56-
A in Ward No. 26(new) bearing Municipal Corporation House No.
271 and 272 by virtue of an auction sale dated 2.3.1960 held
in execution of a decree passed in her favour to the extent of
half share in the said building in a mortgage suit. There was a
challenge made to the said sale by the defendants in the
mortgage suit and litigation went up to Supreme Court.
Auction sale was confirmed by the Supreme Court by the
Judgment and decree passed on 9.4.1974. It was averred that
plaintiff was already put in possession of the suit property by
the Court on 25.11.1960 and this sale became absolute after it
was confirmed on 9.4.1974. However, the joint half share in the
said building came to be defined and separated later on when
there was a compromise decree passed by Additional District
Judge, Amravati on 21.8.1987 in Regular Civil Appeal No.
234/1980. The portion that came to be allotted to the plaintiff
in the compromise decree encompassed within it the shop in
possession of the defendants and this property, hereafter called
as “suit property”, is the subject matter of the present dispute
between the parties.
4. The plaintiff submitted that the suit property was
purchased by her in auction sale, which was then occupied by
one Nandalal Rathi and thereafter at the time of confirmation
of the sale, it came to be occupied by Tekchand Sawaldas and
after some years one Pyarelal Shrivas, the husband of original
defendant no.1 Smt. Janakibai and father of original defendant
nos. 2 and 3 namely Smt. Sharda and Nandalal, entered into
possession of the suit property without consent of the plaintiff.
It was further submitted that since Pyarelal was trespasser
having been in occupation of the suit property without her
consent, the plaintiff orally requested Nandalal, who after death
of his father Pyarelal, started occupying the property, to vacate
the same.
5. The plaintiff also submitted that she had intimated
the original defendant no. 3 Nandalal about confirmation of the
compromise decree dated 21.8.1987 by the High Court in
Second Appeal No. 57/1989 by virtue of which she had become
sole owner of the suit property. She further submitted that she
had also intimated original defendant no. 3 that she had
acquired right to recover damages for use and occupation of
the suit property w.e.f. 1.7.1987. She further submitted that
she learnt that defendant no. 3 had put a slab on the suit
property and extended the area of the suit property by
constructing a new wall without her consent. She protested
against the same by lodging a police complaint with Police
Station, City Kotwali, Amravati and also with Municipal
Corporation, Amravati. She further submitted that possession
of original defendant no. 3 of the suit property being without
consent and having been acquired by him during the pendency
of litigation between herself and the mortgagers, the
defendant's occupation of the suit property was as trespasser
and, therefore, they were liable to vacate the same and pay her
damages for unauthorised use and occupation. Accordingly,
she filed a civil suit for recovery of possession and damages
and mesne profits.
6. Original defendant nos. 1 to 3 resisted the suit by
filing their common written statement. They claimed that
original defendant no.1 being the mother and original
defendant no. 2 being the sister of defendant no. 3 with
defendant no. 3 occupying the suit property as a tenant of the
owners Vijay Kumar and Rajendra Kumar, had no concern with
the suit property. They, therefore, claimed their discharge from
the suit property.
7. Defendant nos. 1 to 3 submitted that building was
known as Mathuradas building being owned by Vijay Kumar and
Rajendra Kumar through father Vijaysingh Mohta. They
submitted that this building was mortgaged by Vijaysingh
Mohta for himself and on behalf of his sons Vijay Kumar and
Rajendra Kumar to the original plaintiff as a security for
repayment of loan of `.15,000/- ( Rupees fifteen thousand only).
They submitted that plaintiff had filed a suit on said mortgage
and it was held that mortgage was without legal necessity in so
far as shares of two sons were concerned and therefore, the
mortgage was released to the extent of their half share
together in the mortgaged property. The suit was decreed in
favour of original plaintiff to the extent of half share of
Vijaysingh Mohta of which he was in possession.
8. It was the case of the defendants that in spite of
sale of joint half share of Vijaysingh Mohta in the said building,
Vijaysingh Mohta continued to remain in possession of entire
building and continued recovering rents from various tenants
and also letting out premises in the usual course of
management of the building. According to the defendants, the
fact that plaintiff had purchased joint half share in the said
building was learnt by them only sometime later.
9. They further submitted that defendant no. 3 was
inducted as tenant of suit property by Vijay Kumar and Rajendra
Kumar on monthly rent of Rs.25/- some time in the year 1966
and they denied that defendant no. 3 was a trespasser. They
submitted that Vijay Kumar and Rajendra Kumar being in
possession of the building in which suit property is situated,
had a right to let out the same in the ordinary course of
management of the building and accordingly, it was let out to
defendant no. 3 and this lease was binding upon the plaintiff
also. They further submitted that plaintiff never informed that
she was owner of joint half share. They learnt about the same
only after present suit was instituted against them. They also
submitted that they had paid the rent up to April 1990 to Vijay
Kumar and were willing to pay the rent to the plaintiff
thereafter. They also submitted that all that plaintiff could ask
for was only payment of rent and not delivery of possession of
the suit property. They also submitted that the suit was not
brought with the permission of the Rent Controller. They denied
that they had made any extension in the suit property and
whatever repairs were carried out by them, were with the
permission of the landlord.
10. After death of original defendant no. 3 Nandalal, his
legal heirs were bought on record and defendant no.3(1), the
daughter, filed her written statement adopting the written
statement filed by original defendant nos. 1 to 3. She,
however, submitted that after the death of Nandalal, she had
become tenant of Vijay Kumar and Rajendra Kumar. She
submitted that since plaintiff became the owner of the suit
property on 21.8.1989 when the compromise decree was
confirmed by High Court, at the most, she could claim the rent
of suit property from her and she had a right to pay the rent.
It was also averred that even if it was held that tenancy of
defendants was invalid still, plaintiff could not recover
possession of the suit property as defendants became owner by
adverse possession and suit was barred by limitation.
11. Learned Civil Judge framed several issues out of
which issues relating to status of defendant no. 3 being
trespasser, bar of suit by limitation and entitlement of plaintiff
to possession of the suit premises and to damages were
answered as in the negative by the trial court. The trial Court
found that defendant no. 3 was inducted as tenant by Vijay
Kumar and Rajendra Kumar during the subsistence of mortgage
in the year 1972 and he was not the trespasser. The trial Court
also found that even though the joint half share in the building
was purchased in auction sale by the plaintiff in the year 1960,
her half share in the building came to be defined only after the
compromise decree passed on 21.8.1987 was confirmed by the
High Court in the year 1989. It further held that at the time of
passing of compromise decree, the plaintiff had accepted
allotment of that portion of the building to her in which the suit
property was situated knowing fully well that there were
inhabitants residing therein as tenants. These facts, according
to the trial Court, only established that defendant no. 3 was not
trespasser in the suit property when he initially occupied it nor
the present defendants made their entry in the suit property as
trespassers. The trial Court also held that the limitation to file
present suit would be governed by Article 65 and since the suit
was filed on the basis of compromise decree dated 21.8.1987,
it was not barred by limitation. The trial Court also found that
since the defendants were in possession of the suit property as
tenants of the previous owner and the claim of the plaintiff for
possession and damages was not maintainable, the trial Court
dismissed the suit.
12. In the appeal filed against the said decree in the
District Court, the learned District Judge came to the
conclusion that the defendants were inducted in the suit
property as tenants by the original landlord Vijay Kumar and
Rajendra Kumar since the year 1971 and such action of letting
out the premises could not be said to be without any right. He
further held that during the period from 1960 to 1976 there
were no proceedings pending in any Court and therefore a lease
created in 1971 could not be said to be a lease made during the
pendency of the suit so as to attract Section 52 of the Transfer
of Property Act, 1882 ( “the TPA, 1882” for short) and that lease
was not hit by doctrine of lis pendens. Learned District Judge
also found that even if it was held that Vijay Kumar and
Rajendra Kumar had inducted the defendants as tenants
without consent of the plaintiff, the possession of the
defendants would be that of trespassers in the eyes of
Gangabai and as defendant no. 3 was occupying the suit
property since the year 1971 without any authority from the
original plaintiff Gangabai, the suit filed in the year 1990 would
be barred by limitation. The learned District Judge also found
that since the time of grant of joint half share in the building in
the year 1960 till the year 1987, plaintiff never protested
against action of Vijay Kumar and Rajendra Kumar in managing
the property and, therefore, there was implied consent of the
plaintiff in letting out suit property to the defendant no. 3. Thus,
learned District Judge, dismissed the appeal confirming the
dismissal of the suit by the trial Court.
13. I have heard Shri V. R. Mundra, learned counsel for
the appellant and Shri P. C. Madkholkar, learned counsel for the
respondents. I have carefully gone through the impugned
judgments and decrees, paper book and record and
proceedings before trial Court.
14. By the orders passed by this Court on various dates
such as 20.1.2009, 22.3.2012, 11.9.2013 and 23.9.2013, this
Court had indicated substantial questions of law on which this
appeal would be heard.
15. In the first of such orders, dated 20.1.2009 it was
mentioned that one of the contentions is induction of defendant
no. 3 as tenant by Vijay Kumar and Rajendra Kumar during the
subsistence of the mortgage and so a question would arise as
to the status of present respondent nos. 3 to 6 as trespassers or
otherwise.
16. In the second order dated 22.3.2012, this Court
gave an indication of another substantial question of law
making reference to the compromise decree of 1987 and it was
stated that the effect of 1987 compromise would require
evaluation.
17. By third order passed on 11.9.2013, a specific
substantial question of law was framed by this Court which was
later on re-formulated on 23.9.2013.
18. Learned counsel for the respondents has taken an
exception to the fact that in this appeal no substantial
questions of law have been formulated nor do they arise for
consideration in this appeal. Therefore, according to him, on
this count itself, the appeal is liable to be dismissed. He has
placed reliance on the law laid down in the case of Taher
Akhatoon Vs. Salambin Mohammad, (1999) 2 SCC 635, in this
regard.
19. Shri Mundra, learned counsel for the appellant has
submitted that initially, substantial questions of law may not
have been formulated by this Court in the form of questions
but the Court had given an indication of the aspects which
required consideration and they were in the nature of
substantial questions of law only and, therefore, it cannot be
said that in this case, no substantial questions of law have
been formulated. He has further submitted that phraseology of
a question is not important and what is important is to indicate
the aspect or point of law which is substantial and which
requires a consideration by the Court. According to him, these
requirements of Section 100 CPC have been fulfilled in this
case.
20. The orders passed by this Court on the dates
aforementioned sufficiently indicate that this Court has
indicated the aspects or points in the nature of substantial
questions of law although some of them may not be in the form
of questions as such. But, as rightly submitted by learned
counsel for the appellant, what we have to look for is the
substance of the matter raised to be a substantial question of
law and not it's form. Therefore, in my view, the requirement
of Section 100, CPC regarding framing of substantial question
of law as laid down in the aforestated case of Taher Akhatoon
(supra) has been substantially met in this case. These
substantial questions of law, some of them being in narrative
form and some of them being in question form, would require
reformulation, so that we can have precise idea of the questions
on which this appeal has been heard and is being now decided
and they are reformulated as under:-
1. Whether the status of respondent nos. 3 to 6
inducted as tenant by Vijay Kumar and
Rajendra Kumar who had mortgaged the
property in favour of present appellant is as
trespassers?
2. What is the effect of compromise decree dated
21.8.1987 of Regular Civil Appeal No.
234/1980 on the rights of Vijay Kumar and
Rajendra Kumar to induct a tenant in the
concerned joint property?
3. When will limitation begin to run against the
co-owner, who is not a party to the alleged
tenancy, for claiming possession from a
person alleging to be a tenant from another
co-owner without the consent of the former?
21. Learned counsel for the appellant has submitted
that defendant no. 3 was inducted as tenant by Vijay Kumar
and Rajendra Kumar sometime in the year 1971 without the
consent of the mortgagee, Gangabai, the original plaintiff and
that was done when the litigation between Gangabai, the
mortgagee and Vijay Kumar and Rajendra Kumar, the
mortgagors was pending. He submitted that since the
defendant no. 3 was inducted as tenant during the pandency of
the litigation, without consent of the plaintiff, tenancy was hit
by the doctrine of lis pendens under Section 52 of TPA, 1882,
and therefore, defendant no. 3 and the remaining defendants
claiming through him were the trespassers in the suit property
and thus liable to be evicted therefrom. He has invited my
attention to the judgment of the Hon'ble Apex Court in the case
of this appellant and other persons, who were inducted in the
same building as tenants by mortgagors without consent of the
present appellant. This case is reported as Sunita Jugalkishore
Gilda Vs. Ramanlal Udhoji Tanna(dead) thr. Lrs. and others,
2013(10) Scale 519. This case lays down the law that when a
property which is subject matter of a suit between mortgagors
and mortgagee is transferred or otherwise dealt with by a party
to the suit during the pendency of the suit, the other party is
entitled to avoid the transfer on the ground that it was done
during the pendency of the suit on the basis of principle of lis
pendens incorporated under Section 52 of the TPA, 1882.
22. Learned counsel for the respondents has submitted
that the judgment in the said case of Sunita Jugalkishore
(supra) is relevant only for the purpose of application of
principle of lis pendens to the transfers made during the
pendency of the suit, without consent of the mortgagee. He
submits that said judgment has no application to the facts of
the present case for the reason that defendant no. 3 has been
inducted as the tenant during the subsistence of a mortgage in
the ordinary course of management of property and in
accordance with law and therefore, the lease so created is
binding upon the plaintiff/ appellant. He has further submitted
that there has been also an admission given in evidence by
father in law of the appellant, late Tikkamchand Ramvilas Gilda
(PW1), that he used to collect rent from the respondents and
this would mean that he had accepted the lease created by the
mortgagors and therefore, permission of the rent controller to
evict the respondents from the suit property was necessary and
same having been not obtained, the suit has been correctly
dismissed by both the Courts below. He has also submitted
that the mortgage proceedings came to an end in the year
1960 after joint half share in the building was purchased in
auction sale by the plaintiff and as lease was created in the
year 1971, there was no litigation pending between the
mortgagee and mortgagors and as such doctrine of lis pendens
has no application to the facts of the present case.
23. In order to appreciate the arguments and make an
attempt to answer the substantial questions of law, it would be
necessary to first consider the facts of the case which are not
in dispute. They are stated in brief as follows:-
Mathuradas building in which the suit property is
situated, was mortgaged by Vijay Singh Mohta for himself and
for his two sons Vijay Kumar and Rajendra Kumar in favour of
the original plaintiff, Gangabai, on 24.3.1953 as security for
repayment of loan of `. 20,000/- that he had obtained from the
plaintiff. The plaintiff lady filed a civil suit bearing no. 3-A/1956
on the file of first Additional District Judge Amravati in which
preliminary decree for sale of joint half share of the plaintiff in
mortgaged property came to be passed on 30.9.1958. Final
decree was passed on 23.10.1959. In execution of final decree,
an auction sale of the mortgaged property was held on
2.3.1960 in which joint half share in the mortgaged property
was purchased by the plaintiff with the permission of the Court.
Auction sale was confirmed by the Civil Judge, Senior Division,
Amravati on 21.9.1960 and the plaintiff was put in possession
of her joint half share in the mortgaged building on 5.11.1960.
Meanwhile, defendant nos. 2 and 3 in the said
mortgaged suit, i.e Vijay Kumar and Rajendra Kumar, preferred
First Appeal No. 72/1959 before the High Court against the
preliminary decree passed on 30.9.1958. Appeal was allowed
by the High Court and preliminary decree passed by the trial
court on 30.9.1958 was set aside and a fresh preliminary
decree was ordered to be drawn. Plaintiff filed Civil Appeal No.
582(n) of 1969 before the Hon'ble Supreme Court against the
judgment and decree passed by High Court in First Appeal No.
72/1959. The appeal was allowed by Hon'ble Supreme Court of
India and the preliminary decree passed by the trial Court came
to be restored by the judgment dated 9.4.1974. This judgment
is reported as Gangabai Vs. Vijaykumar and others, (1974)2
WCC 393 equivalent citation AIR 1974 SC 602.
Defendant nos. 2 and 3 in the said mortgage suit i.e
Vijay Kumar and Rajendra Kumar, thereafter filed a special Civil
Suit No. 76/74 for setting aside the preliminary decree dated
30.9.1958 before the Civil Judge, Senior Division, Amravati. The
suit, however, was dismissed with costs by Civil Court on
31.1.1980. These defendants then preferred Regular Civil
Appeal No. 234/1980 before the District Judge, Amravati in
which a compromise application came to be filed on 21.8.1987.
It was accepted by the District Judge and he passed a
compromise decree dated 12.10.1988. Defendant nos. 2 and 3
to the said proceedings, however, preferred, Second Appeal No.
57/1989 challenging the compromise decree dated 12.10.1988.
The Second Appeal, was dismissed by the High Court vide its
judgment dated 31.8.1989. Thus, the compromise decree
dated 12.10.1988 came to be confirmed. It was by this decree
that the half share of the plaintiff in the mortgaged building
came to be defined and separated and the plaintiff became sole
owner of this portion of the building. The suit property is
situated in the said portion of the building which portion is
allotted as per the compromise decree dated 12.10.1988 to the
plaintiff.
24. In the present case, both the courts below upon
consideration of the evidence on record have found that the
defendant no. 3 was inducted as tenant by Vijay Kumar and
Rajendra Kumar in or about the year 1971. Both the parties do
not dispute these concurrent findings of fact recorded by both
the Courts below. What they dispute is the status of the
defendant no. 3 and the remaining defendants who claim
through defendant no. 3. According to the plaintiff, these
defendants are trespassers having been in unauthorised
occupation of the suit property without consent of the plaintiff
and are the trespassers. The respondents on the other hand
submit that they have entered into possession of the suit
property as lessees of the mortgagors at a time when mortgage
proceedings were pending and if they were held to be not
pending, still, they having been accepted as tenants by the
plaintiff, the suit for recovery of possession without obtaining of
permission of rent controller was not maintainable. According
to the respondents, the lease is also not adversely affected by
the principle of lis pendens under the Section 52 of TPA, 1882.
25. Upon consideration of the facts admitted and which
have been reproduced earlier what emerges on record is that
defendant no. 3 was inducted as tenant by mortgagors Vijay
Kumar and Rajendra Kumar in the year 1971 and that was the
time when the proceedings challenging the preliminary decree
passed on 30.9.1958 in the mortgage suit bearing Civil Suit No.
3-A/1956 were pending before the Hon'ble Apex Court in the
nature of Civil Appeal no. 582/1969. This appeal was allowed
by the Hon'ble Supreme Court on 9.4.1974 whereby the
judgment and decree of the High Court were set aside and the
preliminary decree dated 30.9.1958 passed by the trial Court
was restored. This judgment thus, brought to an end the
mortgage on 9.4.1974, and restored the preliminary decree
dated 30.9.1958 passed by the trial Court. That means, its
effect would relate back to 30.9.1958 when the mortgage
between Vijaysing Mohta and his two sons on one hand and
original plaintiff Gangabai on the other was put to an end and
preliminary decree for sale of joint half share of plaintiff was
passed. Therefore, the question of holding lease created in or
about the year 1971 by the mortgagors in favour of the
respondents as legally valid on the basis of Section 65A of the
TPA, 1882, would not arise. Under sub-Section 2(a) of Section
65 of the TPA, 1882, lease made by a mortgagor while being
lawfully in possession of mortgaged property binds the
mortgagee, if the lease is made in the ordinary course of
management of property and is in accordance with any local
law. But, in the instant case, mortgage itself being not in
existence in 1971, by virtue of judgment of the Hon'ble
Supreme Court confirming the preliminary decree dated
30.9.1958, there was no relationship of mortgagor-mortgagee
at that time and therefore, Section 65-A power to lease was not
available.
26. Learned counsel for the respondents has submitted
that the mortgage proceedings came to an end only in the year
1974 after Civil Appeal was dismissed by the Hon'ble Supreme
Court and since the lease was made in ordinary course of
management of property and in accordance with local law, suit
without permission of the Rent Controller under the provisions
of clause 13 of Rent Control Order was not maintainable. The
mortgage proceedings may have ended in the year 1974, but
the effect of the decision dated 9.04.1974 of Hon'ble Supreme
Court related back to 30.09.1958 as the decision confirmed the
preliminary decree passed on 30.09.1958. Therefore, as said
earlier, the mortgage itself came to an end w.e.f. 30.9.1958 and
so any lease created thereafter would not be covered by
Section 65-A of the TPA, 1882. Thus, there being no valid lease
in existence, the question of permission of Rent Controller
under the said Order for filing of eviction suit would not arise. I,
therefore, find no merit in the said argument of learned counsel
for the respondents.
27. Now, the question that is required to be determined
is whether the lease created in or about the year 1971 was hit
by principle of lis pendens under Section 52 of the TPA, 1882.
The facts of this case sufficiently indicate that proceedings
relating to the mortgage were finally closed on 9.4.1974 when
the Hon'ble Supreme Court allowed the Civil Appeal No.
582/1969 and confirmed preliminary decree dated 30.9.1958
Thus, when the lease was created in favour of defendant no. 3,
a suit involving direct and specific right to immovable property
in question i.e mortgaged property was pending, appeal
proceeding being continuation of the suit, and therefore, this
lease was subject to the provisions of Section 52 TPA, 1882. It
must be mentioned here that for the purposes of Section 52 of
TPA, 1882 what is important is pendency of suit or proceedings
and not the decision rendered therein or its effect. Therefore,
the lease created in or about the year 1971 in this case would
be a lease created during the pendency of suit or proceedings.
This lease was made without express consent of the mortgagee
and without any permission having been obtained from the
Court. In the case of Sunita Jugalkishore (supra), Hon'ble
Supreme Court has held that if the tenancy or lease is created
by the mortgagors during the pendency of the mortgage
proceedings, it would be hit by the principle of lis pendens and
the mortgagee would be entitled to avoid transfer on the
ground that proceedings relating to mortgage were pending.
Facts of the instant case as discussed earlier clearly show that
this principle of law squarely applies to the present case. The
inevitable conclusion would be that respondents' possession of
the suit property would have to be held as illegal and they
would not be entitled to resist the claim for possession by
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auction purchaser, which the appellant is claiming through the
original plaintiff.
28. Learned counsel for the respondents has submitted
that there has been an admission given by PW1 Tikkamchand
Gilda that he had collected rent from the respondents. Upon a
careful perusal of his testimony, what I find is only an admission
in general terms and that too without any specific reference to
these respondents. In his cross examination, he has only
admitted, as seen from paragraph 8 of his deposition, that he
had collected rent. He does not elaborate as to from whom and
for which period or for which month he had collected the rent.
On the contrary, his evidence shows that he had asserted that
lease was without the consent of the original plaintiff and it has
not been controverted by the respondents. This being the
position emerging from the evidence available on record, it
must be held that the original plaintiff has established the fact
that the lease was without her express consent and so, the
question of obtaining any permission from the Rent Controller
for filing an eviction suit would not arise in this case.
29. Learned counsel for the respondents has also
submitted that it is not permissible for this Court to re-
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appreciate the evidence and take another view only because
other view is possible while exercising jurisdiction under Section
100 of C.P.C. He has placed his reliance upon the following
cases:-
1. Navaneethammal Vs. Arjuna Chetty, (1996)6 SCC
166.
2. Gurdev Kaur and others Vs. Kako and others, AIR
2006 SC 1975.
3. Pakeerappa Rai Vs. Seethamma Hengsu dead by
LRS and others, (2001)9 SCC 521.
4. Amol Kishor Mule and another Vs. Vishwanath
Rajaram Shahande and another, 2006(0) BCI 359.
30. In the above cases, it is held that scope of High
Court's jurisdiction under Section 100 CPC is limited to deciding
the substantial question of law involved in the appeal and while
doing so, it is not permissible for the High Court to interfere
with the concurrent findings of Courts below by re-appreciating
the evidence and arriving at another view, only because it is
possible. It is also held that howsoever the findings of facts
might be wrong or grossly inexcusable, unless the same are
perverse or shown to be not based upon evidence on record or
based upon non-consideration of the material evidence or
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consideration of some extraneous material, the findings of
facts must not be upset in the Second appeal under Section 100
C.P.C.
31. In the instant case, It is seen that there is no error
in the finding of fact recorded by the Courts below relating to
induction of defendant no. 3 as tenant in the suit property in or
about the year 1971 and this finding being based upon the
evidence available on record, there is no question of interfering
with the same. However, after having noted existence of this
fact, both the Courts below have committed an error of law in
not appreciating the principle of lis pendens incorporated in
Section 52 and resultantly arrived at conclusions totally
inconsistent with the law applicable to the facts of the case.
Learned Joint District Judge even went a step further in
recording perversely that between period of 1960 to 1976 there
was no proceeding pending in any Court and thus a lease
created in the year 1971, could not be said to be a lease made
during the pendency of the suit so as to attract the provision of
Section 52 of TPA, 1882. This finding of fact is absolutely
perverse as it is not based upon the evidence on record and
facts admitted by rival parties. There is no dispute about the
fact that the proceedings relating to preliminary decree passed
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on 30.9.1958 in a mortgage suit between the plaintiff and
mortgagors Vijaysingh Mohta and two sons were pending
continuously till 9.4.1974 when the Hon'ble Supreme Court
decided the civil appeal No. 582/1969 and confirmed the decree
dated 30.9.1958.
32. The above referred finding recorded by First
Appellate Court was based upon perverse appreciation of
evidence. The finding recorded by both Courts below about in
applicability of doctrine of lis pendens was also the result of
incorrect understanding of the principle of law. Therefore, in
my view, they warrant interference by this Court in exercise of
its jurisdiction under Section 100 of CPC, which exercise, in my
humble opinion, has been done only by following the
propositions of law laid down in the aforesaid cases cited by
learned counsel for the respondents.
33. Learned counsel for the respondents has also
referred to me the case of Krishna Ram Mahale (dead) by his
LRs' Vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097, in order
to support his argument that respondents cannot be
dispossessed by the appellant. With due respect, I must say
that in the said case of Krishna Ram Mahale (supra), there was
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unlawful dispossession of the licencee by the licencor before
expiry of licence period and therefore, licencee filed a suit for
recovery of possession and it was held that licencee was
entitled to a decree for possession of the suit property. These
facts clearly distinguish themselves from the facts of instant
suit in which respondents are still in possession of the suit
property and suit for recovery of possession has been filed by
the appellant on the ground of respondents being trespassers
and in illegal possession of the suit property. I have already
found that respondents being trespassers, cannot resist the suit
for recovery of possession filed by the appellant. Therefore, the
said case of Krishna Ram Mahale (supra) would be of no
assistance to the respondents herein.
34. Learned counsel for the appellant has referred to
me the case of Mangru V. Taraknathji, AIR 1967, SC 1390 to
support his contention that if the mortgagors created a lease
during the pendency of the suit by the mortgagee, lessee is
bound by the result of the litigation. This proposition has
already been considered and applied by Hon'ble Supreme Court
in the case of Sunita Jugalkishore (Surpa), the ratio of which
case has been found to be applicable by me to the facts of the
case. Therefore, there is no need to separately consider the
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law laid down in the in said case of Mangru (supra).
35. Learned counsel for the appellant has also referred
to me the following cases:-
1. Lalji Purushottam Vs. Madhavji Meghaji, AIR 1976
Gujarat 161.
2. Jadavji Purshottam Vs. Dhami Navnitbhai Amaratlal
and others, AIR 1987 SC 2146.
3. M/s Sachalmal Parasram Vs. Mst. Ratanbai and
others, AIR 1972 SC 637.
4. Dev Raj Dogra VS. Gyan Chand Jain, AIR 1981 SC
981.
5. Pomal Kanji Govindji and others Vs. Vrajlal
Karsandas Purohit and others, AIR 1989 SC 436.
6. Devkinandan Vs. Roshan Lal, AIR 1985 Rajasthan
11.
36. Since the case of Sunita Jugalkishore (supra) has
been found to be squarely applicable to the facts of the present
case, I do not think it necessary to consider the above referred
cases.
37. In view of the above, I find that appellant has
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established that the respondents having been inducted by the
mortgagors i.e. Vijay Kumar and Rajendra Kumar, without the
express consent of the plaintiff and without the authority of the
Court during the pendency of the proceedings relating to
mortgage, are in illegal occupation of the property. Thus, their
status is of trespassers. The compromise decree that was
passed in Regular Civil Appeal No. 234/1980 on 21.8.1987 only
defined the half share of plaintiff in the suit building and since
it was confirmed on 12.10.1988 by the High Court in Second
Appeal No. 57/1989, it had the effect of making the plaintiff as
owner of the half portion of the suit building which was allotted
to her in said compromise decree in her own right. But, till that
time, it cannot be said that Vijay Kumar and Rajendra Kumar,
could have created a lease as mortgagors by exercising their
right under Section 65-A so as to bind the mortgagee or the
plaintiff Gangabai. I have already found that after the litigation
relating to mortgage suit was finally concluded on 9.4.1974, the
mortgage came to an end w.e.f. 30.9.1958 when joint half share
in the mortgaged building was purchased by the plaintiff in an
auction sale held in execution of decree passed in Civil Suit No.
3-A/1956. But, at the same time, litigation being pending,
creation of lease in favour of defendant no. 3 was hit by Section
52 of TPA, 1882 and, therefore, the respondents cannot resist
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the claim of the appellant to recover possession of the suit
property. The first and second substantial questions of law are
answered accordingly.
38. Learned counsel for the appellant has submitted
that the trial Court has correctly appreciated the law of
limitation applicable to the facts of the case and he has invited
my attention to the findings recorded by the trial Court in
paragraph 21 of its judgment. He has submitted that trial Court
has correctly held that limitation period in this case would be
governed by Article 65 of the Limitation Act and it would begin
to run from the date on which possession of respondents
became actually adverse to the appellant and this date is
12.10.1988 when the compromise decree was passed in
Regular Civil Appeal No.234/1980.
39. On the other hand, the learned counsel for the
respondents submitted that if the suit is found to be governed
by Article 134, limitation period prescribed therein being of one
year, the suit becomes barred by law of limitation. He
alternately submits that if the suit is held to be governed by
Article 65, still, the suit is barred by limitation, as limitation
period in this suit would start running from 30.9.1958 and not
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from 12.10.1988 as it was on the former date that the
mortgage came to an end and the plaintiff became co-owner of
the mortgaged property, of which suit property is a part.
40. In Article 134 of the Limitation period prescribed is
of one year from the date when sale becomes absolute. Article
134 is applicable to a case where the suit is brought for
delivery of possession by a purchaser of immovable property at
a sale in execution of decree. Here, the suit is not filed for
delivery of possession by purchaser of immovable property
purchased in a auction sale held in execution of a decree. The
suit that is filed is based on a title and is for recovery of
possession from a party who is in illegal occupation of a
property. Such suit is governed by Article 65 and the limitation
prescribed therein is of 12 years from the date on which the
possession of the defendants became adverse to the plaintiff. It
must be noted here that in 1958 auction sale, the plaintiff
became owner of joint half share of the property and plaintiff 's
share was not defined. It was not within the knowledge of the
plaintiff as to which portion of the suit building would be
partitioned and allotted to her. Till the separation of joint half
share in the suit building was done, she only continued to hold
an undefined and undivided interest in the suit building to the
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extent of her half share as owner thereof. It was only in
compromise decree dated 12.10.1988 that her joint half share
was crystallized by its physical separation and then it became
known to her that what was allotted to her as exclusive owner
of the half share was the portion of the building in which suit
property was situated. It was from that time onwards i.e from
12.10.1988, the interest of the defendants or respondents
became adverse to her and therefore the limitation started to
run under Article 65 of the Limitation Act from 12.10.1988.
The suit having been filed in the year 1990 is well within
limitation period of 12 years, and is not barred by law of
limitation. The trial Court has rightly held so. Learned Joint
District Judge, missed these vital aspects of the matter and,
therefore, has committed a serious error of law in recording an
alternative finding that suit is barred by limitation. This finding
is liable to be quashed and set aside. The third substantial
question of law is answered accordingly.
41. After having answered all the substantial questions
of law in the manner as stated earlier, it has to be considered
as to whether or not all the reliefs as prayed for in the suit can
be granted by this Court at this stage. So far as the relief of
delivery of possession of the suit property is concerned, same
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can be granted in the light of the answers given herein above.
However, as regards the relief relating to damages, I am of the
view that considering the fact that the respondents though
trespassers in relation to the appellant/plaintiff, were the
tenants of mortgagors and were also regularly paying rent to
the mortgagors till April, 1990. In such a fact scenario, it would
be inequitable to grant any damages to the appellant/plaintiff
only because respondents/defendants are in occupation of the
suit property without the consent of the plaintiff/appellant.
However, so far as relief of payment of rent is concerned, I find
no difficulty in granting the same by ordering an inquiry for
recovery of rent in terms of provisions of Order 20 rule 12 of
CPC, 1908 from the institution of the suit till delivery of
possession by the respondents/defendants.
42. In the result, appeal deserves to be partly allowed.
Appeal is partly allowed with proportionate costs throughout.
Judgments and decrees of the trial Court and joint District Judge
impugned herein are hereby quashed and set aside.
43. It is directed that respondents/defendants shall
deliver vacant possession of the suit property to the
appellant/plaintiff within a period of six months from the date
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of the order. It is further directed that an inquiry as to the rent
from the institution of the suit until the delivery of possession to
the appellant/plaintiff shall be held in accordance with
provisions of Order 20 Rule 12 of CPC by the Court of Joint Civil
Judge, Senior Division, Amravati.
44. The suit is partly decreed with proportionate costs
in above terms.
45. Decree to be drawn up accordingly.
S. B. SHUKRE, J.
vn*
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