Khadin Husain..........................................Defendant-Respondent.
along with connected Second Appeal No.350 of 2014 Smt.(Dr.)Shahnaz and others.................. Defendant- Appellants vs.
Jafar Husain..............................................Plaintiff-Respondent Khadin Husain..........................................Defendant-Respondent.
Hon'ble Shabihul Hasnain, J Since in both these second appeals common question of law and facts are involved and have been filed against the same judgment and decree dated 7.8.2014 passed by Addl. District Judge, Court No. 12, Lucknow, they are being decided by this common order.
These Second appeals have been preferred against the judgment and decree dated 7.8.2014 passed by Addl. District Judge, Court no. 12, Lucknow, in (i) R.C.A. No.160 of 2011 Jafar Husain vs. Mohammad Anwar Rizvi and others, allowing the said R.C.A. and setting aside the judgment and decree dated 18.8.2011 passed by Civil Judge (SD), Mohanlalganj, Lucknow, whereby the regular suit no. 9 of 2008 filed by the appellant Jafar Husain against the respondents was decreed, and (ii) in cross R.C.A. No. 154 of 2011 Smt. Shahnaz Bano and others vs. Jafar Husain In short the facts of the case are that plaintiff and the defendants are real brothers and sisters. Plaintiff Jafar Husain filed a suit for mandatory injunction against the defendants, claiming himself to be the owner and landlord of House No.466/72Ka/1(New No.466/270), situate in Aliya Colony, Peer Bukhara Hardoi Road, old P.S. Chowk, Lucknow, to vacate the house in question in their occupation and restraining them from using the same, and to handover its vacant possession to the plaintiff. Plaintiff further prayed that the defendants be directed to pay Rs.2000/- per month as pendent e lite damage for unlawful occupation and use, till the date of actual vacation on payment of additional court-fee.
Case of the plaintiff before the trial court was that he has purchased the land of the aforesaid house vide registered sale deed dated 1.12.1995 from its farmer owner. The construction of the said house was done by the plaintiff from his own income. The plaintiff- respondent gave a portion of the house to the defendant- appellant on license. In the month of January, 2004, the plaintiff requested the defendants to vacate the accommodation occupied by them as a licensee but the defendants did not pay any heed to his request for vacating the same. It has been alleged in the plaint that on 16.3.2004, a notice for terminating the license of the defendant- appellant was served upon him. Since the defendant on 21.12.2007 refused to vacate the house in question, the suit for mandatory injunction was filed by the plaintiff against the defendants.
The defendants filed written statement claiming themselves to be the co-owners of the said property. The father of the plaintiff and the defendants Late Ata Husain, had invested the money from his own income and funds and constructed the house and as such the plaintiff and defendants have inherited the property of their father, jointly. It has been admitted by the defendants in their written statement that being the elder son, the plaintiff got sale deed executed in his favou5r and so far the construction is concerned, the plaintiff and the defendants had constructed the house in dispute from his own income and funds and as such the defendants and plaintiff are co-owners of the said property in dispute.
The defendants had further taken a plea that the plaintiff should have filed the suit for possession, which could have been equally efficacious relief for the plaintiff by usual mode of proceedings, hence the suit for mandatory injunction filed by the plaintiff is barred by the provisions of Section 41(h) of the Specific Relief Act, 1963.
On the pleadings of the parties, the the trial court framed the following issues :-
1- Whether the plaintiff is the owner of the disputed house ?
2- Whether the defendants are in possession as licensee ?
Issues no. 1 to 3 were decided by the trial court together. After discussing the oral and documentary evidence produced by the parties in their support, the trial court held that the plaintiff is the owner of the disputed house. Since the defendants failed to establish that the plaintiff got the sale deed executed in his favour by fraud or, that the construction raised of the house in question was done by his father, hence the defendants are not the co-owners of the house in question.
Regarding Section 41(h) of Specific Relief Act, it has been held that the suit was filed with a delay of three years and eight months, hence the suit for mandatory injunction should not have been filed, rather suit for possession ought to have been filed. Therefore, the suit was barred by Section 41(h) of the Act. After expressing the aforesaid opinion, the suit by the plaintiff was dismissed with costs.
Thereupon, two civil appeals were filed by both the plaintiff and defendants. The appellate Court while affirming the finding given by the trial court, with regard to ownership of the house in question in favour of the plaintiff, upset the opinion expressed by the trial court with respect to the provision of Section 41(h) of Specific Relief Act, and held that the suit is not barred by the said provision, hence the plaintiff cannot be compelled to file a suit for possession. Further, while deciding the point for determination regarding accrual of cause of action, the appellate Court held that the cause of action has arisen to the plaintiff for filing the suit for mandatory injunction. Thus, the appeal filed by the plaintiff-respondent was allowed.
I have heard the learned counsel for the parties and gone through the entire record of the case and find that there is no illegality or irregularity in the order passed by the appellate Court in deicing the question with respect to Section 41(h) of the Specific Relief Act, along with the other issues with respect to owner ship of the house in question.
There is concurrent findings of fact recorded by both the courts below with regard to plaintiff's owner ship of the house in question and nothing has been brought by the defendant to establish that the plaintiff got the sale deed executed in his favour by fraud. This Court is of the view that these findings, in the established facts and circumstances of the case, cannot be disturbed in this second appeal. The case put forth by the defendants that their father Ata Husain got possession of the plot in 1987 and constructed the house by en-cashing his F.D.R. and so they claim themselves to be owner of the house in question, and also that the sale deed of the house in question was got executed in the name of elder son of Ata Husain, namely the plaintiff, is not sufficient to establish his co-ownership in the alleged house.
Since the plaintiff has been held to be owner of the house in question and is residing in the same accommodation, he cannot be compelled to file a suit for possession, as held by the Appellate Court. This question of law has rightly been adjudicated upon, which cannot be said to be unreasonable. This Court does not find any ground to interfere with the finding recorded by the first appellate Court that the suit is not barred by the provision of Section 41(h) of the Specific Relief Act, hence the plaintiff cannot be compelled to file a suit for possession. Thus, while deciding the point for determination regarding accrual of cause of action, the appellate Court further rightly held that the cause of action has arisen to the plaintiff for filing the suit for mandatory injunction. Consequently, the appeal filed by the plaintiff-respondent Jafar Husain was allowed and the suit filed by him was decreed.
This Court is of the firm opinion that nothing material has been brought on record to establish that any substantial question of law is involved to be decided by this Court in these two second appeals. Therefore, both these second appeals fail and are dismissed.
Sadiq/- 3.4.2016 RKM