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2023 Supreme(HP) 38
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Pawan Kumar - Appellant
Versus
Smt. Sunita Rani and Others – Respondents
RSA No. 236 of 2021
Decided On : 04-01-2023
For the appellant : Mr. Navlesh Verma.
For the respondents: Mr. Ashwani K. Sharma with Mr. Ishan Sharma.
Point of Law: Substantial question of law should have foundation in pleadings, should emerge from substantial findings of facts and should not merely be a proposition of law, but should be a debatable question having bearing on merits of case.
Headnote:
Civil Procedure Code, 1908 – Section 100 – Transfer of Property Act, 1882 – Section 53-A – Second Appeal – Default in payment – Exercise of jurisdiction – Parties hereinafter shall be referred to by same status as they held before learned trial Court – Respondents herein were plaintiffs and appellant herein was defendant – Once, defendant had not disputed title of plaintiffs over suit property, he could avoid decree for possession only by proving a better title in him, which he fail. [Para 8]
Finding of the Court: Both learned Courts below have concurrently returned findings of facts that plaintiffs were title holders of the suit property and defendant had failed to establish any better right to hold possession thereof – Findings so returned by both learned Courts cannot be termed to be illegal or perverse as findings so returned are borne from overall assessment of material on record – In absence of any proof of entitlement of defendant to retain possession of suit property, only legal consequence was grant of decree of possession in favour of plaintiffs – Once there was concurrent findings of facts recorded by both learned Courts below, Court in exercise of jurisdiction under Section 100 of CPC will be loath to interfere unless substantial question of law arises from controversy – Impugned decree is based simply on basis of findings of facts – It is more than settled that substantial question of law should have foundation in pleadings, should emerge from substantial findings of facts and should not merely be a proposition of law, but should be a debatable question having bearing on merits of case.
Result: Appeal disposed of.
JUDGMENT :
[Satyen Vaidya, J.]
1. Heard.
2. By way of instant Regular Second Appeal, the appellant has sought to assail judgment and decree dated 11.11.2021, passed by learned District Judge, Kangra at Dharamshala, (H.P.) in Civil Appeal (RBT) No. 63- D/XIII/2020/2019 affirming judgment and decree dated 28.11.2018 passed by learned Civil Judge Court No.1, Dharamshala, in Civil Suit No. 268 of 2013, whereby the suit of the respondents/plaintiffs for possession and use and occupation charges, has been decreed.
3. The parties hereinafter shall be referred to by the same status as they held before the learned trial Court. The respondents herein were the plaintiffs and the appellant herein was the defendant.
4. Plaintiffs filed a suit against the defendant claiming possession of partly constructed building (ground floor) comprised in Khata No. 392, Khatauni No. 543, Khasra Nos. 2073/1759/1490, 2065/1485, measuring 308-18 square meters, situated at Mohal Shyam Nagar, Tehsil Dharamshala, District Kangra, H.P. (for short, ‘suit property’). Plaintiffs claimed title of the suit property by way of its purchase from its previous owner Smt. Kiran Kumari vide sale deed dated 22.07.201. The defendant was alleged to be unauthorised occupant of suit property. Accordingly, the reliefs of possession of the suit property and use and occupation charges at the rate of Rs.10,000/- per month from 27.07.2011 till the date of filing of the suit were claimed.
5. The defendant by way of written statement, contested the suit on the ground that his occupation on the suit property was not unauthorised. He claimed to have been put in lawful possession of the suit property by previous owner Smt. Kiran Kumari vide agreement dated 27.12.2008. The defendant specifically pleaded that Smt. Kiran Kumari had taken a loan of Rs.4,00,000/- from him to discharge her outstanding liabilities and in order to secure such loan had executed the agreement dated 27.12.2008. Smt. Kiran Kumari had agreed to repay the loan amount within twelve months from the date of execution of agreement, failing which, she had further agreed to transfer the suit property in favour of the defendant in lieu of payment of Rs.4,00,000/-. The defendant came up with a further plea that he could recover a sum of Rs.2,00,000/- only from Smt. Kiran Kumari and for balance of Rs.2,00,000/- he had instituted a suit of recovery against her.
6. On the pleadings of the parties, learned trial Court had framed the following issues:
1. Whether the plaintiffs are entitled for the decree of possession, as prayed for? OPP
2. Whether the plaintiff is entitled for the use and occupation charges amounting to Rs.2,40,000/- for the period of two years from 25th July, 2011 to 25th July, 2013 @ 10,000/- per month, as prayed for? OPP
3. Whether the plaintiffs have no cause of action and locus standi to file the present suit, as alleged? OPD
4. Whether the plaintiffs are estopped by their acts, conduct and acquiescence from filing the present suit, as alleged? OPD
5. Whether the suit is misconceived, as alleged? OPD
6. Relief.
Issues No. 1 and 2 were decided in affirmative and the suit of the plaintiffs was party decreed. The plaintiffs were held entitled for decree of possession of the suit property and also for use and occupation charges @ Rs.3000/- per month from 25.7.2011 till 25.7.2013.
7. The defendant preferred an appeal before the learned District Judge, Kangra at Dharamshala against the judgment and decree dated 28.11.2018 passed by learned trial Court. The appeal of the defendant has been dismissed, vide judgment and decree dated 11.11.2021, hence, the instant appeal.
8. The plaintiffs had sought the possession of suit property on the basis of their title. The defendant had not disputed the title of plaintiffs. He had also not set up any title in himself in respect of the suit property. Once, the defendant had not disputed the title of plaintiffs over the suit property, he could avoid the decree for possession only by proving a
