Through this second appeal, the appellants have assailed the judgment and decree dated 14.10.2009 passed by the Ist Appellate Court, Special Judge (E.C.Act), Jhansi in Civil Appeal No.13 of 2008- Shyam Lal Vs. Munna and others upsetting the judgment and decree dated 21.1.2008 passed by learned Judge, Small Cause/ Addl. Civil Judge(Senior Division), Jhansi in O.S.No.161 of 2003- Shyam Lal Vs. Munna & others. The suit seeking mandatory injunction against the defendants has been allowed and decreed. Brief facts of the case are as follows:
A suit No.161 of 2003 was preferred by Shyam Lal, son of Bhaggu in respect of house no.91, Saiyyar Gate, Jhansi seeking mandatory injunction against the defendants appellants herein and for the relief that the possession of house may be handed over to the owner as the defendants were licensee only and his licence was revoked by notice dated 9.4.2003. Damages were also sought for the use and occupation of the said premises. The trial court had dismissed the suit by its judgment and decree dated 21.1.2008 recording a finding of fact that the plaintiff respondent herein had failed to prove that the defendant appellants were his licensee and he has also failed to prove his title over the house in dispute. The appeal was preferred in the first appellate court which had allowed the appeal, setting aside the judgment of the trial court, Judge Small Causes and finally, the suit was decreed.
The defendant had submitted that the disputed house was ancestral property of Gabde who had five sons Bhaggu, Ram Prasad, Batto, Ram Charan, Ram Swaroop. Bhaggu had only one son Shyam Lal plaintiff who had filed the suit seeking mandatory injunction. The respondents claiming themselves to be legal heirs of other four brothers and claimed that the property was a Joint Hindu Family property and they had a right to live and occupy the property.
It was pleaded before the trial court that house no.91, Saiyyar Gate, Jhansi was infact owned by Bhaggu Bhagat. It was acquired by him or came in his share. It was recorded in the municipal records as property of Bhaggu Bhagat in the year 2 1935. Shyam Lal being only son of Bhaggu Bhagat became owner of the property in the year 1991 and thereafter it was highlighted before the trial court that in the municipal records specific entry was made in the year 1935, the property was recorded in the name of Bhaggu Bhagat and after his death in the year 1991, it became his son's property. The property remained recorded in the name of Bhaggu Bhagat from 1935 to 1991. For the tax assessment, the same entry continued after death of Bhaggu Bhagat upto the year 1991 when plaintiff Shyam Lal's name was recorded in the municipal record. Stress was laid on the fact that Bhaggu Bhagat and after his death Shyam Lal were paying water tax, house tax and other related tax. When Bhaggu Bhagat had died, the plaintiff Shyam Lal applied for mutation in his name. The notice was issued by Nagar Palika calling upon all the concerned parties to stake claim in the property. None of the respondents came forward seeking recording of their names in the municipal records. As far as induction of the defendants appellants in the property is concerned, it was pleaded before the Court that since they were members of the same Khandan, they were permitted to live in a portion of the premises for some time. When the premises were not vacated , legal notice was sent terminating the licence. The defendants appellants were mere licensee neither tenant nor landlord nor owner of the property. The plaintiff had produced the registry receipt in respect of the notice , electricity bill, House tax bill , photo copy of the newspaper cutting published at the time of the mutation of the property, copy of the assessment of house tax water tax etc., bills and other documents in support of his submission that right from 1935 till date the plaintiff's father and after his death he himself remained owner and title holder of the house in dispute. Their title was never challenged by any one.
The defendants appellants herein had categorically denied the title of the plaintiff before the courts below and before this Court also. According to them the above said house is a Joint Hindu Family property. All the members of the Hindu Family were living together. It was categorically submitted that mere entries in the tax assessment register would not create a title in favour of a person although it was admitted before the court that the entry in the municipal record and house tax and water tax assessment registers remained in the name of Bhaggu Bhagat and Shyam Lal but these entries did not create right to claim title in the property in dispute. In support of the submissions, learned counsel for the appellants has placed reliance on AIR SCW Vol (3) 2481 and 2009 RD 445. The plaintiffs ought to have proved his 3 title independently on its own legs. They cannot rely on the weakness of the other side and he should have proved his case independently. In support of this submission Sri Rishikesh Tripathi, learned counsel for the appellant has placed reliance on ARC 1993(2) 394. Two elderly ladies were produced as witnesses in defence whose testimony was relied upon by the trial court but the first appellate court has dismissed the oral evidence on the ground that these elderly ladies had not seen the events themselves and only on hearsay version They had stated that the house was constructed by the great grand father (Ajia Sasur). In addition to this a Khatauni paper no.98C was filed. The first appellate court has recorded a finding of fact that this Khatauni relates to an agricultural land and not in respect of the house No.91, Saiyyarpur Gate, Jhansi. The court has placed reliance on a Supreme Court decision of AIR 1984 SC 1171-K.O.Reddy Vs. B.V.N.Reddy to record a finding that there may be a joint Hindu Family but all the properties relating to the family cannot be said to be a joint Hindu family property. If a member of a Joint Hindu family purchases the property himself and if he acquires the property, it shall be his own personal property. It is not a case of blending. This house right from 1935 had remained in the name of Bhaggu Bhagat and thereafter Shyam Lal . No member of alleged Joint Hindu Family had raised any objection nor it was a joint Hindu Family property in any other manner.
The first appellate court and this Court has also taken note of the fact that in respect of the above said house, the house tax, water tax, electricity charges and other charges were paid by the plaintiff himself. There is no material to show by the defendants that they had shared the house tax and other taxes. Munna one of the witnesses (respondent herein) had stated before the court that he does not know as to what amount of tax was being paid by him, when the last contribution was made by him and on which date. The court has appreciated the statement and other material.
An accounts diary was also produced by the defendant to show that they had spent some money for the repair of the house. This diary was disbelieved in the light of the principles contained in section 35 of Indian Evidence Act. It was not a diary which was being maintained regularly and the nature of entries were such that the Ist appellate court had recorded a finding of fact that it could not be treated to be a proper evidence to be relied upon. The defendants had tried to prove their case on the basis of oral statement of Smt. Sukhiya, D.W.1 and Smt. Bhuwan, D.W.4. The 4 postal receipts, money order coupon, receipts of Life Insurance Corporation, Central Bank of India. Electricity bill receipts etc. were produced. The first appellate court has made a detailed analysis of documentary and oral evidence while recording finding.
The argument of the learned counsel for the appellant is that while reversing the finding of the trial court, the first appellate court ought to have recorded reasons. This exercise has been done in the present case. The first appellate court has written its judgment in 13 pages dealing with each and every issues assessing its value. The first appellate court has given weightage to the evidence that the house no.91, Saiyyar Gate, Jhansi had remained in the name of Bhaggu Bhagat and thereafter Shyam Lal right from 1935. The house tax and water tax and other municipal dues were paid by these persons. It was never shared by any members of the Joint family. If there existed a joint Family each adult earning member could have shared the burden. How it could be fastened on the late Bhaggu and Shyam Lal while others were enjoying the use and occupation of the property. Certainly the total evidence weighs against the defendants respondents.
At last Sri Tripathi had submitted that the findings are perverse and it gives rise to question of law.This Court while scrutinising the appeal in the light of section 100 C.P.C. has carefully gone through the material on record, findings & evidence etc. The first appellate court had taken into account all the seven issues framed by the trial court. It has dealt with all the issues , taken note of the findings recorded by the trial court and had given detailed reasons in respect of the each finding. While upsetting the judgment of trial court, it has recorded its own reasons and analysed the rights of the parties. The defendants appellants had certainly failed to prove as to by what authority of law they were living on the premises no.91, Saiyyar Gate, Jhansi. They failed to prove that they were members of Joint Hindu Family of Bhaggu. They had failed to substantiate their submissions regarding their entitlement of entry in the property. As far as title is concerned, no documentary or oral evidence was placed by them to show that they had right to live in the said house except with the permission of the plaintiff respondent herein alone. The landlord had terminated the licence by sending a registered notice on 9.4.2003. The record reveals that neither they were lawful tenant nor title holder nor owners nor were share holders in the property. No substantial question of law as suggested by the learned counsel for the appellant in the memo of appeal is made out. In view of 5 the above, there is nothing on record to persuade the Court to form any other opinion other than the one recorded by the first appellate court. No substantial question of law arises to be considered in this Second Appeal to persuade this Court to take a different view of the matter. No ingredients or elements as required to be attracted under section 100 of the Code of Civil Procedure are available in this case. This Court has also scrutinized this case in the light of the law laid down by the Hon'ble Apex Court in the Judgements reported in AIR 2008 SC1749, Kashmir Singh Vs. Harnam Singh and another, AIR 1999 SC2213, -Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others and (1995) 6 SCC 213- Kashibai w/o Lachiram and another Vs. Parwatibai w/o Lachiram and others and do not find any ingredients as required under section 100 of the Code of Civil Procedure to be attracted in the present case. The appeal is dismissed. Consequences shall follow. VPC/21.1.2010