Sri Krishna v. Prescribed Authority and others
Case Details
Court No. - 38 Case :- SECOND APPEAL No. - 135 of 2014 Appellant :- Sri Krishna Deceased And 8 Others Respondent :- Babu Ram Deceased And 13 Others Counsel for Appellant :- Amit Saxena,Abhinava Krishna Srivasta,Arun Kumar Tiwari,Atul Dayal Counsel for Respondent :- Ram Nath,Ram Sajiwan Mishra Hon'ble Salil Kumar Rai,J. Heard the counsel for the parties. This is a Second Appeal challenging the judgment and decree dated 14.4.2011 passed by the Additional Civil Judge (S.D), District Kanpur Nagar in Original Suit No.2223 of 1992 decreeing the aforesaid case as well as against the judgment and decree dated 6.11.2013/14.11.2013 passed by the Additional District Judge, Court No. 3 Kanpur Nagar dismissing Civil Appeal No.79 of 2011 filed against the decree of the trial court. The appeal was admitted by this Court vide its order dated 29.5.2017 on the following substantial questions of law. “1. Whether the courts below have erred in ignoring the judgment and decree of the court dated 24.08.1979 in suit no.288 of 1973, Sri Krishna Vs. Prescribed Authority and others? 2. Whether Kanpur Development Authority was not a necessary party in the proceedings? 3. Whether the decree and judgment of the Court below is bad by nonjoinder of the party?”
Legal Reasoning
The facts of the case relevant to answer the substantial questions of law framed by the Court are that Original Suit No. 2223 of 1992 was instituted by the plaintiff, i.e., respondent no. 1, impleading the respondent no.2 as defendant no.1 and the appellant as defendant no.2. The suit was for arrears of rent and ejectment of the defendants from the suit property which was described in the plaint as Plot No.3/54 located at Nawabganj, Kanpur Nagar. It was stated that Plot No. 3/54 was re-numbered as Plot No.3/235 and was purchased by the plaintiff from Syed Mohd. Ahmad vide sale deed dated 18.7.1975. It is the admitted case of the parties that Syed Mohd. Ahmad was the erstwhile owner of Plot No.3/54. It was further averred in the plaint that Plot No.3/54 was let out to Mahavir Thekedar i.e., defendant no. 2 by Syed Mohd. Ahmad on 15.7.1965 but defendant no.2 was not allowed to raise any constructions over the same. It was further stated in the plaint that Mahavir Thekedaar sub let Plot No.3/54 to defendant no. 2 i.e., the appellants, who have made illegal constructions over the same. It was averred in the plaint that because the suit property was sub let by defendant no.2 to defendant no.1 without the permission of the plaintiff and because the defendants had defaulted in payment of rent as well as because the suit property was required by the plaintiff for his own purpose, a notice under Section 106 of the Transfer of Property Act, 1882 terminating their tenancy was issued and served on the defendants. However, the defendants/tenants did not vacate the suit property despite services of notice and hence the suit for arrears of rent and ejectment. The defendant no.1 filed his written statement admitting the case of the plaintiff. The defendant no. 2, who is appellant in the present appeal, contested the case and in his written statement denied that the plaintiff was the owner of the suit property. The case of the defendant no. 2 was that Plot No.3/54 and 3/235 were different and adjacent plots. It was alleged in the written statement that the previous number of Plot No.3/235 was 3/63 and the defendant no. 2 was the owner of Plot No.3/235. The defendant no. 2 admitted his tenancy over Plot No. 3/54 on the pleading that he was inducted as tenant on Plot No.3/54 by its original owner Syed Mohd. Ahmad. On the aforesaid plea, the defendant no.2 i.e., appellant in the present appeal, prayed that the suit was liable to be dismissed as the plaintiff was not the owner of Plot No.3/235. It is relevant to note that the 2 appellant/defendant no.2 does not deny the claim of the plaintiff that the plaintiff was owner of Plot No.3/54. The relevant issues framed by the trial court were as to whether the plaintiff was the owner of the suit property i.e., Plot No.3/235 and whether the previous number of Plot No.3/235 was 3/54. The other relevant issues framed by the trial court were as to whether the defendant no.1 was a sub tenant of the plaintiff in the suit property and whether the plaintiff was entitled for a decree of eviction against the defendant no.2. The trial court as well as the lower appellate court after considering the municipal records and Tax Assessment Register recorded a finding that Plot No.3/54 was re-numbered as Plot No.3/235 and the previous number of Plot No.3/235 was not 3/63. On the aforesaid findings, the plea of the plaintiff that he was the owner/landlord of the suit property was accepted by the trial court. Consequently, after recording a finding that the tenancy of the defendants stood terminated by notice under Section 106 of the Transfer of Property Act, the trial court held that the plaintiff was entitled to a decree for arrears of rent and for eviction of the defendant no. 2 from the suit property. The said decree was challenged by the defendant no. 2 in Civil Appeal No.79 of 2011 which as noted earlier has been dismissed by the lower appellate court. It transpires that in order to establish his case that the previous number of Plot No.3/235 was 3/63 and not 3/54, the defendant no. 2 filed as evidence the judgment dated 28.4.1979 passed by the 9th Additional Munsif, Court No.9, District Kanpur in Original Suit No.288
Legal Reasoning
of 1973. (Shri Krishna versus Prescribed Authority, Kanpur & others). In the aforesaid judgment, the trial court had held that Plot No.3/235 vested in Kanpur Development Authority after the same was acquired. It is apt to note that Original Suit No.288 of 1973 was instituted by defendant no.2. In the aforesaid case, the trial court also 3 held that old number of Plot No.3/235 was 3/63. In the present proceedings the defendant no.2 i.e., appellant, pleads that the aforesaid judgement operated as res-judicata in the present case which plea was rejected by the trial court. It is in the aforesaid context, that substantial question no.1 as noted above was framed by this Court vide order dated 29.5.2017. Original Suit No.288 of 1973 was filed by the present appellants for a decree of permanent prohibitory injunction restraining the Prescribed Authority, Kanpur Municipality as well as Kanpur Development Authority from demolishing the constructions of the defendant no.2/appellant existing over the suit property and the same was filed on the plea that the aforesaid public authorities were acting in collusion with and at the instance of the plaintiff in the present case. The impleadment application filed by the erstwhile owner i.e., Syed Mohd.Ahmad, in Original Suit No.288 of 1973 was dismissed. It was argued by the counsel for the appellants, that in its judgment dated 28.4.1979 passed in Suit No.288 of 1973, the trial court had recorded a specific finding that Plot No.3/63 was re-numbered as Plot No.3/235, therefore, the findings recorded in the said judgment operated as resjudicata in the present proceedings and the judgment was relevant evidence under Section 40 of the Evidence Act, 1872. It was argued that in Original Suit No.288 of 1973 Plot No.3/235 was held to have vested in Kanpur Development Authority, therefore, Kanpur Development Authority was a necessary party in the present proceedings and therefore, Original Suit No.2223 of 1992 was liable to be dismissed on ground of non-joinder of necessary parties as Kanpur Development Authority was not impleaded as a defendant in the present suit. Rebutting the arguments of the counsel for the appellants, the counsel for the plaintiff-respondent no. 1 has supported the reasons and the findings recorded by the Courts below in their impugned 4 judgments dated 14.4.2011 and 6.11.2013 and has argued that the findings recorded by the courts below are findings of facts which are not amenable to interference under Section 100 C.P.C. It was argued that the present plaintiff was not a party in Original Suit No.288 of 1973 and therefore, the judgment in Original Suit No.288 of 1973 did not operate as res-judicata in the present proceedings and was not relevant under Section 40 of the Evidence Act, 1872 and therefore, the trial court did not commit any error in ignoring the aforesaid judgment. It was argued that in the present proceedings, the issue was regarding the title of the petitioner and as to whether the plaintiff was entitled to a decree of eviction against the defendant no.2. It was argued that in the aforesaid circumstances, Kanpur Development Authority was not a necessary party in the present proceedings and therefore, Original Suit No.2223 of 1992 was not liable to be dismissed for non-joinder of necessary parties. It was argued that the substantial questions of law framed by this Court vide its order dated 29.5.2017 do not arise in the present second appeal and in any case, the said questions are to be answered in negative and the appeal is liable to be dismissed. I have considered the rival submissions of the counsel for the parties and perused the lower court records. The entitlement of the plaintiff-respondent no.1 for a decree of eviction against the defendant no.2/appellant is dependent on the findings regarding the old number of Plot No.3/235. The contention of defendant is that the previous number of Plot No.3/235 was 3/63 and the plaintiff contends that the previous number of Plot No. 3/235 was 3/54. As noted earlier, it is the admitted case of the defendant no. 2/appellant that plaintiff is the owner of Plot No.3/54. It is also the admitted case of the appellant that he was inducted as tenant in the Plot No.3/54 by its erstwhile owner Syed Mohd.Ahmad from 5 whom the plaintiff purchased Plot No.3/54 through sale deed dated 18.7.1975. A reading of the judgment dated 28.4.1979 passed in Original Suit No.288 of 1973 indicates that the aforesaid suit was instituted on the plea that demolitions were being carried out by the public bodies at the instance of Syed Mohd.Ahmad, the erstwhile owner of Plot No.3/54. Apparently, on the plea of defendant no.2 i.e., appellant in the present case, the public bodies were acting as agents of Syed Mohd.Ahmad. In the circumstances, in view of this Court, Syed Mohd..Ahmad was a necessary, and in any case, a proper party in Original Suit No.288 of 1973. However, the impleadment application filed by Syed Mohd.Ahmad for being impleaded in Original Suit No.288 of 1973 was rejected. The consequence of the order rejecting the impleadment application filed by Syed Mohd.Ahmad was that the contention of the appellant regarding the old number of Plot No.3/235 and the status of the appellant on the suit property i.e., property involved in Original Suit No.288 of 1973 could not be contested by Syed Mohd.Ahmad or anyone claiming through him. A reading of the judgment dated 28.4.1979 also shows that no issues were framed by the trial court in the aforesaid case regarding the previous number of Plot No.3/235. The judgment dated 28.4.1979 indicates that it was the admitted case of the parties in Original Suit No.288 of 1973 that old number of Plot No.3/235 was Plot No.3/63 and the decree in the said case has been passed on the aforesaid findings. Apparently, there was no contest between the parties in Original Suit No.288 of 1973 regarding the old number of Plot No.3/235 and the issue was not substantially involved in Original Suit No.288 of 1973. At this stage, it would be relevant to reproduce Section 11 of the Code of Civil Procedure, 1908. 6 “Section 11. Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.--The expression former suit shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.--Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. [Explanation VII.--The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.--An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.” As noted above, the plaintiff in the present proceedings was not a party in Original Suit No.288 of 1973. Further, the issue regarding old number of Plot No.3/235 was also not substantially involved in Original Suit No.288 of 1973. In the circumstances, the findings, in the judgment passed by the trial court in Original Suit No.288 of 1973 would not operate as res- 7 judicata in the present proceedings and the said decree does not bar a trial regarding the title of the plaintiff over Plot No.3/235 and the same would not be relevant under Section 40 of the Evidence Act, 1872. In view of the aforesaid, no illegality was committed by the Courts below in not considering the judgment dated 28.4.1979 passed in Original Suit No.288 of 1973. The substantial question of law no.1 is answered accordingly and in the negative. The findings recorded by the Courts' below regarding old number of Plot No.3/235 i.e., the old number of Plot No.3/235 was 3/54 as pleaded by the plaintiff and not Plot No.3/63 as pleaded by the defendant no.2/appellant are findings of facts recorded after considering the Tax Assessment Registrar and other municipal records. There is no perversity or any other illegality in the aforesaid findings giving rise to any substantial questions of law regarding the said findings. In the present proceedings, only the status of the defendant no.2 and the entitlement of the plaintiff for a decree of eviction against the defendant no.2, was in issue before the trial court and, therefore, Kanpur Development Authority was not a necessary or even a proper party in the proceedings and therefore, Original Suit No.2223 of 1992 was not liable to be dismissed for non- joinder of necessary parties. The other substantial questions of law are also answered accordingly. For all the aforesaid reasons, the Second Appeal lacks merit and is dismissed.
Decision
No order as to costs. Order Date :- 5.1.2023 IB 8 Court No. - 38 Case :- SECOND APPEAL No. - 135 of 2014 Appellant :- Sri Krishna Deceased And 8 Others Respondent :- Babu Ram Deceased And 13 Others Counsel for Appellant :- Amit Saxena,Abhinava Krishna Srivasta,Arun Kumar Tiwari,Atul Dayal Counsel for Respondent :- Ram Nath,Ram Sajiwan Mishra Hon'ble Salil Kumar Rai,J. Orders on Civil Misc.Delay Condonation Application No.24 of 2022 and Civil Misc. Substitution Application No.25 of 2022 The present substitution application is to substitute the legal representatives of opposite party nos. 2/4 and 2/5. However, the opposite party nos. 2/4 and 2/5 were only proforma respondents as admittedly they are not in the possession of the suit property and therefore, no purpose would be served to substitute the heirs of opposite party nos. 2/4 and 2/5. The Court has proceeded to decide the Second Appeal without passing any orders on the present substitution application. The substitution application is disposed of with the aforesaid observations. Order Date :- 5.1.2023 IB 9