Court No. - 53
Case :- SECOND APPEAL No. - 1118 of 2019 Appellant :- Ajay Nigam (Advocate) And Another Respondent :- Km. Asha Nigam Counsel for Appellant :- Rishi Chadha, Ajay Nigam Counsel for Respondent :- Swapnil Kumar
Hon'ble Pankaj Bhatia,J.
Heard Sri Ajay Nigam, learned Advocate in person, assisted by Sri Rishi Chadha, learned counsel for the appellants and Sri Swapnil Kumar, learned counsel appearing for the respondent.
The brief facts leading to the filing of the present second appeal are that the plaintiff-respondent filed a Suit No. 5 of 2008 (Km. Asha Nigam v. Ajay Nigam and another) in the Court of Civil Judge (Senior Division), Court No. 5 Agra against the appellants claiming a mandatory injunction as well as mesne profit in respect of the property situate at first floor and ground floor of House No. B-10-A at New Agra, District Agra. The case of the plaintiff-respondent was that she is the absolute owner of the property bearing no. B-10-A by virtue of a registered sale deed dated 19.7.1971 and the appellant nos. 1 and 2 being her nephew and his wife were in occupation of the said house and were a licensee. It was further pleaded that the license was revoked on 22.11.2007 through a notice but the appellants failed to vacate the property, as such, the Suit No. 5 of 2008 came to be filed.
The appellants herein put in appearance and contested the suit on various grounds. It was pleaded that the appellant no. 1 was residing in the property in question since his childhood and in fact the respondent is the real sister of the father of the appellant no. 1. It was further pleaded that the respondent herein is not the absolute owner of the property in question as claimed by her, although the sale deed was executed in her favour, she did not have the requisite funds to purchase the property and as such the property in question was an HUF property. It was further pleaded that the property baring no. B-10-A is not the same as the property bearing Nagar Nigam No. 36/160 as disclosed in the plaint and further the boundaries of the property as disclosed in the plaint were not correct. Thus, in sum and substance the defence of the appellants before the trial court was that the respondent is not the absolute owner of the property in question and the property is an HUF property and further the description of the property in the plaint was not proper.
The Trial Court after the exchange of pleadings and evidence by both the sides recorded a categorical finding that the property in question was self owned property of the respondent. The Trial Court further recorded that grand father of the appellant no. 1 had died in the year 1965 much prior to the purchase of the property by the respondent on 19.7.1971. It was further recorded that the Prem Bahadur Nigam (Father of Respondent No. 1), who died in 1965 was survived by his three sons namely, S.P. Nigam (father of the appellant no. 1), P.D. Nigam, Pramod Kumar Nigam and the respondent. The Trial Court also recorded that no suit has been filed for declaration or for partition in respect to the property in question, which is claimed to be an HUF property by the appellants herein. The Trial Court further returned a finding that from the evidence on record, it cannot be said that the respondent did not have the requisite funds for purchasing the property and furthermore there was no evidence led to demonstrate that any funds were given by the father of the appellant no. 1 or his two uncles for purchasing the property in question. Thus, the Trial Court returned a finding that the respondent is absolute owner of the property in question by virtue of sale deed dated 19.7.1971, executed in her favour. While returning a finding on the second issue pertaining to the description of the property in question, the Trial Court returned a categorical finding that the property was clearly described and was clearly identifiable on account of the evidence adduced before the Trial Court including the copy of the sale deed filed by the appellant himself and the municipal receipts.
The trial court thereafter proceeded to hold that by virtue of Sections 52 and 54 of the Indian Easement Act, the appellants were the licensee as they were neither the owner nor lessee and their occupation in the property in question was that of a licensee.
The said judgment passed by the trial court dated 18.2.2017 was challenged by filing an appeal before the Appellate Court being First Civil Appeal No. 49 of 2017. The Appellate Court dismissed the appeal, which was challenged by filing a second appeal before this Court being Second Appeal No. 29 of 2018. The said Second Appeal No. 29 of 2018 was decided vide judgment and order dated 11.9.2018 and the matter was remanded with the following directions:-
"After hearing rival contentions, this court finds that the judgement of the lower appellate court is neither in accordance with Order 41, Rule 31 C.P.C., nor the issues decided by the trial court have been considered in the light of the grounds raised in appeal. A very cursory and general point of determination was framed by the lower appellate court and even the same has not been answered anywhere in the judgement. The issues decided by the trial court have only been reiterated none of the issues have been discussed with reference to the objections raised on behalf of the defendants. Such a cursory approach of the appellate court, which is the first court of appeal and can very well go into any question of law and fact both raised before it, cannot be justified.
In view of the above the judgement and decree passed by the lower appellate court is set aside. The matter is remanded for decision of the Civil Appeal of the defendants-appellants in accordance with law within a period of three months. The parties are directed to appear before the lower appellate court on 03.10.2018. The lower appellate court shall hear and decide the Civil Appeal within three months from 03.10.2018 and no adjournment shall be granted to the defendants-appellants on cost of less than Rs. 1,000/-."
After the remand, the Appellate Court proceeded to frame as many as six points for determination and proceeded to dismiss the appeal by means of the impugned judgment.
The Appellate Court while considering the first point of determination appraised the evidence on record and returned a finding that the respondent was the absolute owner of the property in question by virtue of a sale deed executed in her favour and the property is not the property of HUF and has not been purchased from the nucleus/fund of any HUF.
The Appellate Court further while returning finding on point nos. 2 and 3 as framed by the Appellate Court returned a finding that the appellants herein were in occupation of the property as a licensee and further after the revocation of the license the appellants were liable to be evicted from the property in question.
The learned counsel for the appellants has argued that the judgment and orders of both the Courts below are wholly untenable as none of the directions passed by this Court in Second Appeal No. 29 of 2018 were followed by the Appellate Court while passing the judgment and order impugned dated 2.4.2019. He has further argued that the property described in the plaint is vague and is not the same as the property in occupation by the appellants.
The next argument of the counsel for the appellants is that the suit was barred under Order 7 Rule 3 C.P.C. It was further argued that the very basis of the suit being the sale deed by which the respondent claims to be the owner of the property in question had not been filed. He further argues that the property in question was purchased from the funds of the HUF and thus the respondent cannot be treated to be the sole owner of the property in question. He further argues that although it was pleaded no finding has been returned by the Courts below with regard to the ownership of the property being an HUF property as claimed by the appellants in their pleadings.
Sri Swapnil Kumar, learned counsel for the respondent has argued that the Courts below have considered the entire evidence and pleading on record and have returned a finding that the property in question is not an HUF property. He further argues that the Courts below have returned a finding that the property in question is a self acquired property of the respondent which has been determined after appreciation of the evidence on record.
He has further drawn my attention to the findings recorded by the Courts below to the effect that the father of the respondent and grand father of the appellant no. 1 had died in the year 1965 and there was no averment to the effect that there was a nucleus of any HUF and without any pleading or proof that the nucleus of the HUF existed, no claim could be considered. He has further argued that no suit for partition has been filed either by the appellants or any of the uncles of the appellant no. 1 to lay claim over the property as an HUF property nor has any one other than the appellants plead or establish that the property was an HUF property.
In sum and substance, Sri Swapnil Kumar, learned counsel for the respondent submits that no question of law much less a substantial question of law arises in the present case and the second appeal is liable to be dismissed.
Considering the arguments raised at the bar with regard to the first argument of counsel for the appellants that the mandate of this Court while remanding the matter by judgment dated 11.9.2018 was not followed, is wholly incorrect as this Court had directed the appeal to be decided in accordance with Order 41 Rule 31 C.P.C.. A perusal of the impugned judgment dated 2.4.2019 makes it clear that the Appellate Court had framed as many as six points of determination in consonance with the mandate of Order 41 Rule 31 C.P.C. and thus the submission of the counsel for the appellants deserves to be rejected.
The next question argued by the learned counsel for the appellants that the property was not property described, a perusal of the judgments reveal that the Trial Court as well as Appellate Court had returned categorical finding that the property was clearly identifiable on the basis of the sale deed (filed by the appellant himself) as well as the municipal records, nothing has been pointed out to demonstrate that the said finding relying upon the evidence is perverse in any manner. Thus, the said argument of the counsel for the appellants does not merit acceptance and is rejected.
The next argument of the counsel for the appellants that the respondent was not the absolute owner of the property in question and the said property was actually an HUF property is liable to be rejected as the Trial Court and the Appellate Court have rightly, after the appreciation of the evidence, held that there were sufficient evidence on record to establish that the property in question was purchased in the year 1971 out of the own funds of the respondent and further there was no suit or proceedings initiated by any of the alleged coparceners to get their rights declared in respect of the alleged HUF property.
Coupled with the fact that the finding has been returned after appreciation of evidence, one more thing which is important is that the father of the respondent had died in the year 1965 and the property in question was purchased in the year 1971, thus there possibly could not have an HUF as argued by the counsel for the appellants. There is nothing on record to demonstrate that there was any material/evidence to the effect that there was a nucleus of an HUF in existence or any funds were contributed by any other brother or the deceased father for purchasing the property in question. Thus, the argument of the counsel for the appellants falls flat as it is well settled that to establish that a property is actually an HUF property it is essential to plead and establish that there existed a nucleus and the funds were added to the nucleus and were used for purchasing any property in question.
On the basis of the facts, as discussed, no question of law much less a substantial question of law arises meriting entertainment of the second appeal. The second appeal, as such, is dismissed without costs.
Order Date :- 29.11.2019 SR