Court No. - 53 Case :- SECOND APPEAL No. - 879 of 2019 Appellant :- Gopal Sharma Respondent :- Mangey Ram And 5 Others Counsel for Appellant :- Prateek Kumar,Mr. Pramod Jain Hon'ble Jayant Banerji,J.
Heard Sri Pramod Jain, learned Senior Advocate assisted by Sri Prateek Kumar, learned counsel for the appellant.
This second appeal has been filed challenging the judgement and decree dated 18.5.2019, passed by the Additional District Judge, Court No.12, Meerut in Civil Appeal No. 20 of 2014 ( Gopal Sharma Vs. Smt. Krishna Devi and others).
The plaintiff-appellant filed a suit bearing Original Suit No. 312 of 2010 claiming the following reliefs:-
A- That, the defendants are directed by the decree of the Hon'ble Court to get the sale-deed of building number-457/7 located at Jagriti Vihar, Meerut City executed in favour of the plaintiff by Uttar Pradesh Housing and Development Council, Meerut. If it, by any reason, is not possible, the defendants be ordered to get the sale-deed of the aforesaid building executed in their own favour by the Uttar Pradesh Housing and Development, Meerut and then execute the same in favour of the plaintiff within the stipulated time period or if during the pendency of the suit it is found that defendant no.- 01 got the sale-deed executed in his favour by the Uttar Pradesh Housing and Development Council, still defendants be ordered to execute the aforesaid building in the favour of plaintiff at his cost within the time period stipulated by Hon'ble Court or defendants 02 and 03 be ordered to execute building number-457/7 located at Jagriti Vihar, Meerut City in favour of plaintiff within the time stipulated by the Court. In case of default by defendant no. 3, the aforesaid building shall be executed by the Court in favour of plaintiff.
B. That the decree of permanent prohibitory order of the Court be issued in favour of the plaintiff and against the defendants to the effect that neither defendant no- 01 himself nor with the help of any of his servant, assistant, relative, representative or non social element shall intervene with the peaceful possession of plaintiff in House No.- 457/7 located at Jagriti Vihar, Meerut City in any way.
C. That, the defendants be made to pay the plaintiff all expenses of the plaintiff's case.
D. That, the defendants be made to give the plaintiff such other reliefs as the Court deems fit.”
(English translation by Court).
The contention was that the Avas Vikas Parishad, the defendant nos. 2 and 3 had allotted a house in favour of Mangey Ram, the deceased defendant. Since defendant No.1 had no further need of the property situated at 33/3, Scheme No. 07, Shastri Nagar, Meerut1, the possession of the property was given to the plaintiff-appellant on agreement that the property would be transferred in future with the condition that plaintiff-appellant would make payment of installments directly to the defendant-respondent nos. 2 and 3 and, accordingly, the defendant no.1 had agreed that whatever documents were required to be executed before the defendant-respondent nos. 2 and 3, the same would be executed by him. Thereafter, it was alleged that defendant No.1 was taking steps for eviction of the plaintiff from the property in dispute, therefore, the plaintiff-appellant sent a letter dated 18.6.2010 to the defendant-respondent nos. 2 and 3 asking them to execute sale deed in favour of the plaintiff-appellant but no reply was received. In the meantime, defendant no.1 died and his heirs were brought on record. It was alleged that pursuant to the hire purchase tenancy agreement dated 14.12.1988, the property in dispute was handed over to the plaintiff- appellant by the defendant No.1. A written statement was filed by the defendant-respondent denying the allegations made by the plaintiff- appellant. It was further stated that the Avas Vikas Parishad was not initially impleaded as a party and, therefore, the plaint was liable to be rejected under Order 7 Rule 11 CPC. It was also stated that no registered document has been made by late Mangey Ram, defendant no.1 in favour of the plaintiff-appellant in respect of the property in dispute. It was also denied that defendant no.1 had executed any document on 13.12.1987. It was stated that the house was given to plaintiff-appellant in view of the close relationship with him and the amount deposited by him could only be a license fee and that the plaintiff cannot claim any other right.
1 The property.
The trial court framed 9 issues as follows:
1. Whether the plaintiff, on the basis of the grounds given in plaint, is entitled to the sale deed of the property in dispute ?
2. Whether the property in dispute is in possession of the plaintiff ?
3. Whether the case of the plaintiff is undervalued ?
4. Whether the court fee paid by the plaintiff is insufficient ?
5. Whether the case of the plaintiff is barred under O-VII, R-11 of C.P.C.?
6. Whether the case of the plaintiff is barred under section- 88 of U.P. Urban and Development Act ?
7. Whether the case of the plaintiff is barred under sections 34 & 41 of Specific Relief Act ?
8. Whether the case of the plaintiff is barred under O-XXVII, r-5 of C.P.C.?
9. Whether the plaintiff is entitled for relief ?
(English translation by Court).
While deciding issue Nos.1 and 2, the trial court recorded a categorical finding that the plaintiff-appellant in his cross examination has stated that an agreement was executed in his favour but that document is not in the category of agreement since it was not a registered document. The trial court further observed that on the basis of an unregistered document, no person can claim any title over a property and, accordingly, the suit was dismissed. Challenging the same, an appeal was filed.
The lower appellate court framed four points of determination as follows:-
1. Legal status of the defendant deceased Mangeram regarding the allotted building in question.
2. Validity of registration and transfer of possession by the defendant deceased Mangeram ?
3. Status of ownership and possession over the building in question?
4. Right of the appellant/plaintiff to get the sale-deed executed regarding the building in question ?
(English translation by Court) The lower appellate court held that with regard to the property, the documents paper Nos. 12C and 17C, being certificates dated 17.3.1987 and 12.1.1989 respectively were signed by the parties in presence of witnesses, and thus there was no need for their registration. The lower appellate court, therefore, held that the plaintiff-appellant is in possession of the property in dispute since 12.1.1989. The lower appellate court held that no direction can be given to the defendant- respondent for execution of a sale deed at the present stage, since no sale deed has been executed in their favour. Therefore, the lower appellate court observed that at this stage, the decree of mandatory injunction cannot be granted in favour of the plaintiff-appellant. Accordingly, the appeal was partly allowed restraining the defendant- respondent Nos. 1/1, ½ and 1/3 from interfering in the peaceful possession of the plaintiff-appellant without adopting due procedure.
It needs to be noted that the defendant-respondents do not appear to have challenged the judgement and decree dated 18.5.2019 before this Court yet. Therefore, the validity of the findings of the lower appellate court on the points of determination is not being scrutinized. That may be looked into in case the defendant-respondent choose to file any appeal.
The only contention raised by the learned counsel for the appellant is that the lower appellate court erred in not decreeing mandatory injunction.
Sri Pramod Jain, learned Senior Advocate has referred to the documents enclosed as Annexure No.3 to the affidavit filed in support of the stay application in an attempt to demonstrate that a due nomination as contemplated under sub-clause (n) of the Clause 2 of the Hire Purchase Tenancy Agreement was made by the defendant no.1 in favour of the plaintiff-appellant. In support of his contention, attention has been drawn to page No. 126 which is an allotment letter, in which in the right margin, c/o Gopal Sharma 33/3, Shastri Nagar, Meerut is written.
Learned counsel has also referred to page nos. 133 and 140 of the paper book which were filed in the court below as paper No. 17-C and 12-C respectively.
The plaintiff-appellant filed an appeal under Section 96 of CPC before the court below challenging the decree dismissing his suit.
The court below found that the possession of the house in dispute is with the plaintiff-appellant and it is in the knowledge of defendant nos. 1, 2 and 3. The finding with regard to continuous title and possession of the property in dispute was also recorded by the lower appellate court on the basis of the paper nos. 12C and 17C, therefore, the decree of the trial court dated 30.1.2014 was set aside and it was directed that the plaintiff-appellant shall not be evicted from the house in dispute without due procedure being adopted by the defendant- respondents.
In any view of the matter, the decree of mandatory injunction being sought by the plaintiff-appellant is dependent on the sale deed being executed by the defendant nos. 2 and 3 in favour of the heirs of defendant No. 1 Mangey Ram. The claim of the plaintiff-appellant to a decree of mandatory injunction in respect of house in dispute would only lie where the plaintiff-appellant is able to establish that the defendants-respondents are bound by any valid and lawful agreement. The defendants -respondent, Avas Vikas Parishad would be bound by the terms of hire purchase tenancy agreement entered into between itself and the defendant no.1 Mangey Ram. Clause 2(n) of the agreement, which has been referred to by the learned counsel for the appellant, is as follows:-
“2(n). The hire purchaser shall, by writing under his own hand, nominate during his life time the nominee whom he wishes to transfer his share or interest in the property including his rights in the future ownership of the plot/house in the event of his death and deposit the same with the Avas Ayukt. The owner shall effect the transfer accordingly on receiving a proof of the death of the hire purchaser which will be subject to all subsisting liabilities and obligation of the hire purchaser towards the owner and public bodies. The nominations so made may be revoked and another substituted in the same manner as aforesaid by the hire purchaser.
Provided that in the absence of such nomination by the hire purchaser the heir/heirs of the hire purchaser shall be accepted by the owner as the beneficiary/beneficiaries of these presents”.
There are no pleadings in the suit nor any grounds of appeal before the lower appellate court in this regard. Moreover, there is no material evidence on record nor there is any finding recorded by the courts below that the hire purchaser (defendant no.1) by writing under his own hand, nominated the plaintiff-appellant expressing his wish to transfer his share or interest in the property including his rights in the future ownership of the plot/house in the event of his death and whether that was deposited before the Avas Ayukt. Clause 2(h) of the agreement also contains restrictive covenants. There were no pleadings and therefore, no issue framed with regard to right of defendant no.1 and plaintiff-appellant with regard to any nomination made or to any entitlement in favour of the plaintiff-appellant under the aforesaid hire purchase tenancy agreement. Moreover, the courts below have considered various provisions governing any transfer of the property by the defendant-respondent in favour plaintiff-appellant which reflect various restrictions on transfer.
As observed above, the validity of the finding recorded by the lower appellate court with regard to any entitlement and possession of the plaintiff-appellant on the basis of paper Nos. 12C and 17C, may be a matter of scrutiny in any second appeal filed by the defendant- respondent. However, in view of the findings of facts recorded by the court below, no substantial questions of law, as framed in the memorandum of appeal, exist meriting admission of this appeal.
This appeal, is, accordingly, dismissed.
Order Date :- 30.7.2019 sfa/
(Jayant Banerji, J)