First Appeal No. 108 of 1995

25th September, 1996

Petitioner Counsel: Mr. H.V. GALA
Respondent Counsel: Mr. A.P. REGE

Cases Cited:
AIR 1972 SC 2685 [Para 7]
AIR 1994 SC 1199 [Para 11]

JUDGMENT

JUDGMENT :- This appeal is filed against the judgment and decree passed by the learned Judge, City Civil Court, Greater Bombay dated 26.10.94 in S.C.Suit No.6829/75 by the original defendant No.1, the appellant herein.

2. The suit was filed by Respondent No.1 and his widowed mother-original Plaintiff No.1 who died during the pendency of the suit, against the present appellant-defendant No.1 and one Lalchand Gurjan Yadav as Defendant No.2 who died pendency of the suit but his legal heirs were not brought on record and the learned Judge in the order of decree declared a suit abated against Defendant No.2. The Respondent Nos.2 to 22 herein are the tenants of the suit property and Respondents Nos. 23 to 25 are the legal heirs of the deceased plaintiff No.1.

3. The facts of the suit in brief are that, one Shri Jamnaprasad Yadav, the deceased father of the Respondent No.1 owned two plots of land admeasuring 250 sq.yards bearing C.T.S.No.376(Pt.) and 277 sq.mts. bearing C.T.S.No.377 out of Survey No.194(Pt.) situated at Kanjur Village, Bhandup, Bombay on tenancy basis alongwith one Ramdas Shirvalkar Yadav and Ramdhani Dattani from Khot of Bhandup Shri Pratapsingh Mathuradas since 1950. It is the case of the plaintiff that in addition to the said plots, said Jamnaprasad Yadav was in open, continuous and uninterrupted possession of adjoining plot out of Survey No.194 bearing C.T.S. No.374 and claimed to be the owner of the said plot by adverse possession. The plan attached with the plaint showing the structures of chawls constructed thereon have been owned by said Shri Jamnaprasad individually and jointly with Shri Ramdas Shirvalkar and Ramdhani Dattani. It is the case of the plaintiff that the entire plot consisting of about 1650 sq.yard together with structures was alleged to be in possession of said Jamnaprasad during his lifetime and after his death, the plaintiffs alleged to be in possession since May, 1972. It is the case of the plaintiff that the structures of chawls on C.T.S.No.376(Pt.) and 377(Pt.) of Survey No.194(Pt.) were constructed in or about 1952 by said Jamnaprasad and the same were rented out to the tenants by him. It is alleged in the plaint that the said Jamnaprasad had put up a structure consisting of 14 rooms known as Chawl No.4 on C.T.S.No.374 of Survey No.194(Pt.) in or about 1965-66 which is the disputed subject matter of the suit and this appeal.

4. It reveals from the record that in the year 1964, survey of the structures constructed on the plot bearing C.T.S.No.376(Pt.) and 377(Pt.) of Survey No.194(Pt.) was carried out and they were surveyed by the City Survey Department and it was noted in the right of record the name of said Jamnaprasad as owner of the constructed structures known as chawls while the plot bearing C.T.S.No.374 of Survey No.194(Pt.) was shown as open land. It is stated that the plaintiff received Sanads in respect of Plot bearing C.T.S.No.376 and 377 in 1973. It is also stated that plaintiff did not receive Sanad or any card in respect of C.T.S.No.374 of Survey No.194 (i.e. disputed plot) though alleged structures-chawl No.4 were there on the land since 1965-66.

5. It is further stated that because of old age of Jamnaprasad who was 90 years old and as he was unable to manage the suit property, he had asked the original defendant No.2 deceased Lalchand Yadav who was his nephew, to look after the management of the suit property and entrusted to collect the rent of chawl No.4. It is alleged in the plaint that though the defendant No.2 was collecting rent, he was not giving account to said Jamnaprasad. The said Jamnaprasad died in 1988. It is alleged that defendant No.2 sold away the suit property bearing Chawl No.4 to the present appellant-defendant No.1 by executing the sale deed in 1973. Since then, the appellant-defendant No.1 was collecting the rent. It also reveals from the record that appellant-defendant No.1 has also purchased the land bearing Survey No.194, C.T.S.No.374(Pt.) from the original landlord Bandu Khot. A receipt executed by the original landlord in favour of the defendant No.1 is on record. It is stated that the plaintiff issued notices to the tenants of Chawl No.4 to stop the rent paying to Defendant No.1 but despite the notices, tenants continued to pay rent to the appellant-defendant No.1. Therefore, the suit for permanent injunction against the defendants Nos.1 & 2 was filed by the plaintiff, wherein following reliefs were sought for :-

(a) For a declaration that the Plaintiff and Defendant Nos.23 to 25 are the owners of Chawl No.4 on C.T.S.No. 374 (Part) and Chawl No.2 and the shed on C.T.S.No.376 (Part) on C.S.No.194(Pt.) Kanjur Village, Bhandup, Bombay No.400 078, and that Defendants Nos.1 and 2 have absolutely no right, title or interest of any nature whatsoever to the same.

(b) For a permanent injunction restraining the defendants Nos.1 and 2 from interfering with the Plaintiffs' management or entering upon the said Chawl No.4 on C.T.S.No.374 and Chawl No.2 and the shed on C.T.S.No.276(Part) on C.S.No.194 (pt.) of Kanjur Village, Bhandup, Bombay-400 078 and from collecting rents from the defendants 3 to 22 or any other occupants of the suit property.

(c) That the Defendants Nos.3 to 22 be restrained by an order and injunction from paying any rent to Defendants Nos.1 and/or 2 in respect of their respective rooms.

(d) For directing the defendant No.1 to give account of the wrongful collection of rent collected by him so far and for passing a decree against the Defendant No.1 for the amount of mesne profits or damages caused to the Plaintiffs that may be found due to the Plaintiffs by the defendant No.1.

(e) That Court Receiver, High Court, Bombay or any other fit and proper person be appointed as Receiver of the suit property viz. Chawl No.4 on C.T.S.No.374(pt.), Chawl No.2 and shed on C.T.S.No.376(pt.) Kanjur Village, Bhandup, Bombay-400 078 with all powers under Order 40 rule 1 of the Code of Civil Procedure.

(f) For interim reliefs in terms of prayers (c) & (e) hereinabove.

(g) Cost of this suit be awarded to the Plaintiffs.

(h) Such other and further reliefs as the circumstances and nature of the case may require or this Honorable court may deem fit to grant to the Plaintiff.

6. The court issued Chamber Summons against Defendants Nos.1 and 2 and they filed written statement in response to Notice of Chamber Summons and denied the plea of the plaintiff in the plaint. It has been contended on behalf of the defendant No.2 that the defendant No.2 had constructed the suit Chawl No.4 in 1972 and thereafter the same was sold away to defendant No.1 by executing the sale deed. The Defendant No.1 has contended that he had purchased the suit Chawl No.4 from defendant No.2 in 1973 and thereafter, has also purchased the land of Plot No.194 bearing C.T.S.No.374 from the original landlord Khot of Bhandup. The Khot of Bhandup has passed a receipt in favour of defendant No.1 in 1975 and since then, the defendant No.1 is a full owner of the constructed Chawl and the land. It reveals that pending the suit, defendant No.2 Lalchand Yadav died in 1988 but his heirs were not brought on record by the plaintiff. It is also contended on behalf of the plaintiff that defendant No.2. had not filed his written statement in the suit. Further, it reveals that the original plaintiff No.1 also died pending the suit and her heirs had been joined as defendant Nos.23 to 25 but they were not served with the plaint and they did not appear in the suit. The following were the issues framed by the court and the, same were decided after recording the evidence by judgment and order dated 26.10.94 and the decree was passed:-

Issues:-

1. Do the plaintiffs prove that late Jamnaprasad Gachai Yadav took on tenancy basis plots of land admeasuring 250 sq.yds. (200 Sw.metrs.) out of Survey No.194(Pt.), CTS No.376(Pt.) and the land admeasuring 277 sq.yds. (232) sq.mets.) out of survey No.194(pt.), CTS.No.377 of Kanjur Village, Bhandup, Bombay, alongwith Ramdas Shivalkar Yadav and Shri Ramdhari Dattadin?

2. Do the plaintiffs prove that said late Jamnaprasad was in open, continuous and uniterrupted possession of the plot of land bearing Survey No.374(Pt.) of Kanjur Village, Bhandup, Bombay, since 1950?

3-A) Do the plaintiffs prove that the structures on C.T.S.No.376(Pt.) and 377 (Pt.) were constructed in 1952?

3-B) Do the plaintiffs prove that the structure on plot of land bearing C.T.S.No.374, Chawl No.4 consisting of 14 rooms was constructed in 1965-66 by him?

4. Do the plaintiffs prove that the said late Jamnaprasad who was not keeping well before his death, in May 1972, requested the Defendant No.2 to help him in the management of the suit property and in recovery of the rents from various tenants and that since middle of 1971, he-the Defendant No.2 started collecting rents from the various tenants on behalf of the said Jamnaprasad?

5. Does the Defendant No.1 prove that he purchased the property bearing C.T.S.No.374 for consideration by an Agreement of Sale dtd.19th November, 1972 and subsequent Deed of Conveyance dtd.6th April, 1974 from the Defendant No.2 and that since then he has been in continuous use, occupation and possession of the said land?

6. Whether the Defendant No.2 had a right to sell and convey the said property in favour of the Defendant No.1?

7. Do the plaintiffs prove that the Defendant No.2 though received the rent, failed and neglected to give the accounts of rent so collected to late Jamnaprasad and after his death to the plaintiffs?

8. Do the plaintiffs prove that the Defendant No.1 unlawfully collected the rent from the tenants and whether he is liable to give the accounts of the rent so collected. If so, since when?

9. Whether the suit as filed is maintainable in absence of relief for cancellation of Agreement of Sale dtd.19th November, 1972 and a Deed of Conveyance dtd. 6th April, 1974 executed by the Defendant No.2 in favour of the Defendant No.1?

10. Are the plaintiffs entitled for a declaration that they are the owners of Chawl No.4 on CTS.No.374(Pt.) and Chawl No.2 and a shed on CTS.No.376 (Pt.) on CTS.No.194(Pt.) of Kanjur Village, Bhandup, Bombay-78 as prayed for in prayer clause (a) of the Plaint?

11. Are the plaintiffs entitled for an order of perpetual injunction in terms of prayer clause (b) of the Plaint?

12. Is the Defendant No.1 is liable to give the accounts of the rent alleged to have been wrongfully collected from the various tenants?

13. Are the Plaintiffs entitled for a decree against the Defendant No.1 for the amount of mesne profits or damages caused to the plaintiffs and the amount that may be found due from the Defendant No.1?

7. It has been contended by the learned counsel Mr.Gala on behalf of the appellant that the suit was not maintainable in view of the admitted fact that the defendant No.1 is in possession of the suit chawl and the plaintiff has not asked for possession of the suit chawl but he has merely sought for declaration that he is the owner of the suit property. In support of his arguments, the learned counsel relied on Ram Saran v. Ganga Devi, AIR 1972 S.C. 2685-

"Specific Relief Act (1877), S.42-Where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable."

It is further observed in para 4 of the said judgment that -

"We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable".

8. In the light of the above observations of the Supreme Court, I do find much force in the arguments of the learned counsel. In his oral evidence, Respondent No.1 Plaintiff No.2 has admitted in cross-examination -

"It is not correct to say that the defendant No.1 continues to recover the rent from the tenants, after the reply of the said notice. My case is that though the defendant No.2 was called to manage the suit property and recover the rent, he recovered the rent but misappropriated the same and thereafter sold the suit chawl to the defendant No.1 and handed over possession to the defendant No.1

9. This is a clear admission and plea of the plaintiff that appellant was in possession of the suit chawl No.4 and admittedly, there is no prayer as regards seeking possession of the suit chawl No.4 in the plaint. It could be seen from the prayer clause enumerated hereinabove. Prayer (b) is as under:-

(b) For a permanent injunction restraining the defendants No.1 and 2 from interfering with the Plaintiffs' management or entering upon the said Chawl No.4 on C.T.S.No.374 and Chawl No.2 and the shed on C.T.S.No.376(Part) on C.S.No.194(pt.) of Kanjur Village. Bhandup, Bombay-400 078 and from collecting rents from the defendants 3 to 22 or any other occupants of the suit property.

10. Having regard to the facts of this case, in my view, the case is squarely covered by the aforesaid Supreme Court judgment and therefore, the suit is not maintainable.

11. The next contention is that the suit is abated as the heirs of the original defendant No.2 and the heirs of the plaintiff No.1 not brought on record. It has been argued by the learned counsel Mr.Gala on behalf of the appellant that the suit was abated as the heirs of the defendant No.2 were not brought on record and the copy of the amended plaint was not served upon the defendant No.2. It has been argued by the learned counsel Mr.Rege on behalf of the Respondent No.1 that the defendant No.2 expired in 1988 without filing the written statement and the amendment was made in 1994. Hence, the question of serving him with the amended plaint does not arise. It has been contended on behalf of the respondent that as per Order 8, Rule 10, if the defendant fails to file written statement, the court has to pass decree against him. Further, it has been contended that Order 22, Rule 1, if right to sue survives, the suit does not abate due to death of the defendant. It is contended that under Order 22, Rule 4, if the defendant does not file written statement, the court could not pass decree against him if the defendant has expired. In support of his arguments, he has relied on Smt.Gema Coutinho Rodrigues v. Bricio Francisco Pereira and ors. AIR 1994 S.C.1199.

"Civil P.C. (5 of 1908), O.22, Rr.2,3. O.32, R.15- Right to sue-Survival of-Suit filed by Next friend of plaintiffs-Death of plaintiff-No application filed to bring legal heirs on record-Surviving plaintiff already on record-Death of surviving plaintiff-Next friend being legal heir, filing application for bringing herself on record-Plea that suit abates as all legal heirs ought to have been brought on record on death of first plaintiff-Held, if one heir has been brought on record, substantially representing deceased plaintiff, suit does not abate-Right to sue survives or vests in that one heir".

Having regard to the facts and circumstances of this case, it is not possible to agree with the arguments of the learned counsel Mr.Rege appearing on behalf of the respondent plaintiff. Order 8, Rule 10 of C.P.C., does not apply to this case because the amended plaint was not served on the defendant No.2 or his heirs and therefore, they were not required to file written statement and it could not be held that the defendant was in default of not filing the written statement and the court cannot pronounce the judgment against the defendant. Further, Order 22, Rule 4 of C.P.C. does not apply because it is an exception to the rule that heirs of the deceased defendant must be brought on record. The court can exempt the plaintiff from bringing the heirs of the deceased defendant on record but in this case, neither the plaintiff applied for such exemption nor the court granted such exemption suo motu. On the contrary, the court declared the suit as against defendant No.2 as abated contrary to the finding of the court that the defendant No.2 had no right to sell and transfer the property in favour of defendant No.1. The court has in terms held in the absence of deceased defendant No.2's heirs.

12. Order 8 Rule 10 reads as under:-

"Procedure when party fails to present written statement called for by Court. - Where any party from whom a written statement (is required under Rule 1 or Rule 9) fails to present the same within the time (permitted or fixed by the Court; as the case may be, the Court shall) pronounce judgment against him, or make such order in relation to the suit as it thinks fit (and on the pronouncement of such judgment, a decree shall be drawn up)".

13. In the instant case, it is an admitted fact that defendant No.2 had filed his written statement in the notice of Chamber Summons and thereafter, the plaint came to be amended in 1994. Copy of the amended plaint was not served upon the defendant No.2 or his heirs. Therefore, it cannot be held that defendant has failed to file his written statement. Consequently, the court cannot pronounce the judgment against the defendant. Further, Order 22, Rule 4 reads as under :-

"Procedure in case of death of one of several defendants or of sole defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as it has been pronounced before death took place".

The power giving exemption to the plaintiff from the necessity of substituting the legal representative of any such representative who has failed to file written statement or who having filed it, has failed to appear and contest the suit at the hearing, the judgment in such case be pronounced against the said defendant.

14. Order 22, Rule 4(5)(b) reads as under:-

"the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act".

15. It is a rule of law that while invoking the benefit of Order 22, Rule 4, the plaintiff has to apply to the court for pronouncing the judgment or the court itself suo motu acts upon it. In the instant case, neither the plaintiff has applied for under Order 22, Rule 4 nor the court has suo motu exempted the plaintiff from bringing the heirs of deceased defendant on record. On the contrary, the court declared that the suit as against defendant No.2 abated. This being the legal position, the suit is liable to be dismissed on the above two grounds. On merits of the case, the burden of proof was on the plaintiff to prove that the suit chawl No.4 was constructed by his father. It is an admitted fact that the defendant Nos.1 and 2 were in possession of the suit chawl on the date of filing the suit. The plaintiff has not adduced any evidence to prove that the chawl was constructed by the plaintiff. The plaintiff has no personal knowledge to whom and at what cost his father had constructed the chawl. There is no any corroboration to his bare words that his father has constructed a chawl. The plaintiff could not produce any relevant bill pertaining to the said chawl for the period from 1965. That the finding regarding the bill is contrary to the evidence. On that count also, the suit is liable to be failed and required to be dismissed.

16. Hence, this appeal is allowed. The judgment and order passed by the learned Judge is set aside. The Receiver is directed to hand over the possession of the suit property to the Appellant. No order as to costs.

Appeal allowed.