DAYA SAH & ORS. Vs. CHANDRA DATT PANDE & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 4747-4749 of 2009, Judgment Date: Oct 07, 2015
NON-
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4747-4749 OF 2009
Daya Sah and Ors. .. Appellants
-vs-
Chandra Datt Pandey and Ors. .. Respondents
J U D G M E N T
C. NAGAPPAN, J.
These appeals are preferred against the common judgment dated 3.1.2008
passed by the High Court of Uttrakhand at Nainital in Second Appeal Nos.
81, 82 and 84 of 2004. The appellants in all the appeals are the same and
respondents are also the same.
The case of the appellants-plaintiffs is that the suit property belongs to
them and it is situated in Haysbarton compound and they had let out to the
defendants land measuring 25x15 ft. on a monthly rent of Rs.30/- per month
and the defendants in contravention of the conditions of the licence had
occupied the land measuring 33.850 sq. meter and made construction and also
encroached 16.988 sq. meter shown in the plaint plan and constructed two
rooms illegally and hence they filed suit no.32/83 for demolition of the
construction; suit no.38/83 for ejectment of the defendants and for
possession in favour of the plaintiffs; and suit no.2/90 for permanent
injunction restraining the defendants not to put illegal construction on
the suit land.
The respondents-defendants denied the tenancy pleaded by the plaintiffs and
contended that the suit land is situate at Habilion compound and it does
not belong to the plaintiffs and on the other hand it is their property and
due to heavy rain in July 1985 their house got damaged and they did the
repairing work in both the rooms and they are in possession for the last 13
years.
All the three suits were tried together and the sole plaintiff examined
himself as PW1 and the defendant examined himself as DW1 and documents were
marked on both sides. The trial court on a consideration of oral and
documentary evidence held that the plaintiff has neither identified the
suit property nor proved his ownership to it and he is not entitled for the
reliefs sought for and dismissed all the suits. The plaintiffs preferred
three appeals and the appellate court confirmed the findings of the trial
court and dismissed the appeals. Aggrieved by the same, the plaintiffs
preferred three independent second appeals and the High Court heard them on
13.6.2007 and held that the courts below had given concurrent findings on
each of the issues and no interference is required under Section 100
C.P.C.; however there was no specific finding on the alleged sale deed
dated 17.1.1927 and hence remanded the case to the trial court for specific
finding on the said sale deed. Both the parties filed independent review
applications and the High Court heard them on 17.11.2007 and recalled the
order of remand dated 13.6.2007. Thereafter the High Court heard both the
parties and by judgment dated 3.1.2008 dismissed all the second appeals.
Challenging the said judgment the plaintiffs have preferred the present
second appeals.
We heard the submissions of Mrs. Rachna Joshi Issar, learned counsel
appearing for the appellants and Mr. Huzefa Ahmadi, senior counsel
appearing on behalf of the respondents. The specific case of the
plaintiffs is that the suit property is situated in Haysbarton compound
owned by them and they let out land measuring 25x15 ft. on monthly rent to
the defendants. The tenancy was denied by the defendants and they
contended that the suit property is situated at Habilion compound and they
had put up construction in the said land. There is a concurrent finding by
the courts below that the plaintiffs failed to identify the suit property
and the suit land is situated at Habilion compound. There is admission on
the part of the plaintiffs as PW1 to the effect that the house of the
defendants is constructed over the land taken on lease by the defendants
from Sri Bachi Gaud Trust and the same land is subject matter of these
suits. The High Court after referring to the above admission held that
there is no need to give emphasis on the alleged sale deed dated 17.1.1927.
Further Sub Divisional Magistrate, Nainital had sent letter 173-C/2 to
the Additional District Magistrate, Nainital regarding survey of Bachi Gaud
Trust Land and in said report house of the defendants have been shown in
Habilion compound. The defendants have also filed copy of tax assessment
by Nagar Palika which were marked as 178-C/4 and 78-C/6.
On behalf of the appellants the earlier judgment of the High Court
remanding the matter to the trial court to render a finding on the alleged
sale deed dated 17.1.1927 was pointed out and it is contended that the High
Court erred in setting aside the said judgment and hearing the matter on
merits. We do not find any merit in the said submission. In fact both the
parties have filed independent review applications pursuant to which the
High Court heard the review applications and recalled its earlier judgment.
Thereafter it heard both the parties and rendered the impugned judgment.
In our view, the High Court has rightly appreciated the evidence on record
and confirmed the concurrent findings of the courts below. We see no
reason to interfere with the impugned judgment.
There are no merits in the civil appeals and they are dismissed. No costs.
……………………….J.
(M.Y. EQBAL)
…………………………J.
(C. NAGAPPAN)
New Delhi;
October 07, 2015.