- (1.) POONAM Srivastava, J. Heard Sri R. B. Singhal learned Counsel appearing for the plaintiff/appellant and Sri K. Ajit, learned Counsel appearing for the defendant/respondents.
(2.) THE second appeal was entertained by this Court. Notices were issued to the defendant/respondents. Execution and operation of the judgment and order, and dispossession of the appellant was stayed by this Court vide order dated 9-1-2006. Sri K. Ajit, Advocate, preferred an application on 24-1-2006 for recalling interim order dated 9-1-2006 for the reason that he filed a caveat on 20-12-2005. Notice was sent to the appellant by registered post on the same day. Acknowledgment has not been received back till date. Second appeal was filed in the Registry without giving any notice to him and interim order was passed behind his back on 9-1-2006. THE application came up alongwith record of second appeal on 28- 1-2006. On 27-4-2006, office was directed to summon the trial Court record by the next date fixed, which was 10-5-2006. As agreed between the Counsels for the parties, second appeal was listed for final disposal at the stage of admission itself. Several dates were fixed and final argument was heard by both the Counsel for the parties on 5-9-2006. After the arguments, judgment was reserved. Second appeal was listed for further arguments on 9-5-2007. During the intervening period the sole appellant died when the appeal was listed for 'further arguments' on 9-5-2007, a substitution application was filed for substituting the heirs of sole appellant. Application was allowed and the heirs were allowed to be brought on record on 17-5-2007. Further arguments of the respective Counsels were heard. Facts of the case are that the appellant instituted an original suit No. 52 of 1990 in the Court of Civil Judge (Senior Division)/judge Small Causes Court, Mainpuri claiming relief of permanent prohibitory injunction to restrain the defendant from dispossessing him from the suit property. The original suit No. 52 of 1990, Vijai Singh v. Munni Devi & Ors. , was clubbed with J. S. C. C. Suit No. 6 of 1990, Satish Chandra & Anr. v. Vijai Singh, for ejectment, arrears of rent and damages for occupation. Both the suit Nos. 52 of 1990 and 6 of 1990 were consolidated by an order dated 4-11-1992. Facts of the case giving rise to the dispute are that the plaintiff/appellant Vijay Singh claims himself to be owner in occupation of house No. 117 situated in Agrawal Mohalla. According to the plaintiff, house in question was purchased for consideration of Rs. 7,000/- on 24-2-1972 by means of a registered sale- deed from one Shri Niwas Jain. The house was in a dilapidated condition, therefore, first floor was demolished in the year 1976 and the plaintiff got it reconstructed. The relationship between the plaintiff and husband of the defendant No. 1 was very cordial. The defendant No. 1 and father of the plaintiff were involved in lending business by pawning movable and immovables. The plaintiff's son was married in the year 1977 and he was in need of money since financial condition of the plaintiff was not good, he had taken a loan of Rs. 15,000/- from Murari Lal husband of the defendant No. 1, in lieu thereof sale- deed was executed. It is contended that Rs. 10,000/- was handed over before the Registrar and Rs. 5,000/- was given elsewhere. It was also agreed upon that the parties will execute a rent deed for an amount of Rs. 225/- per month. It was agreed that the sale-deed will be a sham transaction and rent will be adjusted towards interest of the loan amount. The plaintiff claimed that the said sale-deed was null and void for the reason that after execution of the sale-deed, possession was not transferred. Consideration was not adequate and consequently the title cannot be said to be transferred, thus this deed was never acted upon. Mutation in the Nagar Palika record was not done. The plaintiff claimed that he carried out coal business from the disputed accommodation since the year 1980, which was closed in the year 1986. Later four shops were constructed in the year 1986. Since shops were constructed without permission of Nagar Palika, therefore, prosecution of the plaintiff was initiated at the instance of Nagar Palika. The plaintiff had never tendered rent and Rs. 2,500/- was given towards principal amount of loan by the plaintiff by means of a bankers cheque. The defendants raised no objection at the time of construction and, therefore, they are estopped on the principle of acquiescence from raising any objection and also four shops constructed in the year 1986 are in occupation of tenants of the plaintiff. The sale-deed executed on 4-1-1990 in favour of the defendant Nos. 2 and 3, was also null and void for the reason that previous sale-deed dated 27-7-1978 is itself a nullity, therefore, the defendants had no right or title to execute sale-deed in respect of the disputed property. The plea of adverse possession was also raised by the plaintiff for the reason, no objection was raised regarding title by the defendant No. 1 during the period of last 12 years and actual possession has not been transferred in favour of the defendant Nos. 2 and 3, who are trying to interfere in occupation of the plaintiff. The suit for a decree for declaration and permanent injunction for injuncting the defendants from making any interference in plaintiff's possession was instituted. Subsequently, the plaintiff amended relief clause and deleted relief of declaration, the suit continued for a single relief of injunction only. The defendant/respondents filed their written statement disputing each and every assertion of the plaint. The defendants specifically pleaded that the house in question was transferred and the plaintiff was allowed to occupy the house as a tenant at the rate of Rs. 225/- per month. A rent note was executed. The rent was adjusted towards expenditure incurred in construction and the account noted down in the rent note finds signature of the plaintiff himself.
(3.) THE defendant claimed to have constructed the four shops and according to the terms and conditions of rent note, the plaintiff continued to pay taxes. It was for this reason, his name continued to be recorded in the record of Nagar Palika. THE defendant No. 1 executed sale-deed on 4-1-1990 in favour of the defendant Nos. 2 and 3 and put them in possession. Separate written statements were filed by the defendant Nos. 2 and 3 disputing each and every assertion of the plaint. THE house in question was newly constructed and shops were constructed by the defendant No. 1 in the year 1986. Chabutara in front of the house was demolished and four shops were completed in the year 1988. THE shops were let out to the tenants and the rent was realized by the defendant No. 1. Munni Devi, she let out the house in question to the plaintiff Vijai Singh at a monthly rent of Rs. 225/ -. Subsequently, the plaintiff failed to tender rent to the defendant Nos. 1 and 2. In the circumstances, cause of action arose, J. S. C. C. Suit No. 6 of 1990 for eviction and arrears of rent was instituted. THE defendants are bona fide purchaser and suit has been instituted by the plaintiff on false allegation, therefore, it is liable to be dismissed with cost. THE trial Court framed as many as ten issues. THE trial Court dismissed the suit of the appellant. THE judgment was challenged in civil appeal No. 2 of 1999 before the Additional District and Sessions Judge, Court No. 3, Mainpuri, which was dismissed vide judgment and order dated 17-11-2005. Sri R. B. Singhal, Advocate, filed instant second appeal. A number of substantial questions of law have been framed. Following questions have been pressed and argued by the Counsel for the appellant : (1) Whether the Courts below could decline the relief of injunction since admittedly the appellant is in occupation and he could not be evicted otherwise than in accordance with law? (2) Whether from failure on the part of the defendants by not producing the best evidence, an adverse inference could be drawn under Section 114 (g) of the Evidence Act? (3) Whether power of attorney could depose on behalf of Munni Devi? (4) Whether the Courts below committed manifest error of law in proceeding on an assumption that since no relief of cancellation of sale-deed is claimed the Courts were liable to examine in view of 1965 A. L. J. 426? (5) Whether sale-deed was ever acted upon which could confer any right on the defendants?;