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2020 Supreme(All) 178
IN THE HIGH COURT OF ALLAHABAD
PRADEEP KUMAR SRIVASTAVA, J.
Dharmendra Yadav – Appellant
Versus
Girish Kumar Sahni – Respondent
Second Appeal No. 1045 of 2019
Decided on : 18-01-2020
Advocate Appeared:
For the Appellant :Nikhil Mishra, Sri Manish Goyal, Senior Advocate
For the Respondent: Sunil Dutt Kautilya, Vineet Kumar Singh
Headnote:
Easement Act – Section 60(b) – Code of Civil Procedure, 1908 – Order 7 Rule 11(D) – Special Relief Act – Section 41 – Civil suit was filed by respondent against appellant for mandatory injunction in respect of disputed shop alleging that plaintiff purchased said disputed shop from Allahabad Development Authority by registered sale deed –Defendant gave proposal for purchasing disputed shop and also promised to get sale deed executed within 6 months after paying sale amount – Relationship between parties was cordial and defendant requested plaintiff to give him disputed shop on licence – Because of cordial relationship and on assurance of defendant, he gave shop to defendant on his request on licence –Defendant, however, neither made payment of sale amount to plaintiff nor he took any step for execution of sale deed – Realizing dishonest intention of defendant, plaintiff refused to sell said shop to him and asked him to vacate the shop and demanded damages – Defendants' brother had purchased shop and defendant without any permission of plaintiff demolished intervening wall existed between shops and converted same into one shop –Plaintiff gave notice to defendant revoking licence and asking possession of disputed shop with monthly damages –Defendant did not deliver back possession of shop nor paid damage – Suit was filed by plaintiff – After considering pleadings and evidence of parties gave finding that defendant-appellant made construction of permanent nature in disputed shop but, learned appellate court has ignored this fact and has even not considered this aspect –Second appeal has been filed by defendant-appellant against judgment and decree passed by Additional District Judge in Civil Appeal arising out from Original Suit between both parties by which Additional District Judge, has partly reversed judgment of learned trial court in Original passed by which Civil Judge (SD), Allahabad and has decreed the suit in toto – Held, Court finds that all questions raised by appellant-defendant involves only question of fact which have been adequately addressed by lower appellate court –There is no concealment of any such fact with regards to the terms of allotment which was not in knowledge of appellant-defendant – There is no vagueness in plaint assertion –Judgment of lower appellate court is based on material on record and nothing substantial has been missed, misread and ignored so far as pleading and evidence of parties is concerned –No error in finding that defendant is not entitled to benefit of section 60(b) of the Easement Act – Despite fact that same was not discussed in depth and detail, as discussed above, finding recorded so by lower appellate court is pure question of fact and on basis of above discussion, Court finds that no otherwise conclusion was possible on basis of facts alleged and evidence produced by parties –Lower appellate court, by impugned judgment, has reversed judgment of lower court so far as it was decided against respondent-plaintiff, on sound reasons considering evidence and law applicable to facts and circumstances of case – Court finds that no substantial question of law is involved in this second appeal – Appeal Dismissed. (Paras 40 to 42)
Facts of Case:
Civil suit was filed by respondent against appellant for mandatory injunction in respect of disputed shop alleging that plaintiff purchased said disputed shop from Allahabad Development Authority by registered sale deed –Defendant gave proposal for purchasing disputed shop and also promised to get sale deed executed within 6 months after paying sale amount – Relationship between parties was cordial and defendant requested plaintiff to give him disputed shop on licence – Because of cordial relationship and on assurance of defendant, he gave shop to defendant on his request on licence –Defendant, however, neither made payment of sale amount to plaintiff nor he took any step for execution of sale deed – Realizing dishonest intention of defendant, plaintiff refused to sell said shop to him and asked him to vacate the shop and demanded damages – Defendants' brother had purchased shop and defendant without any permission of plaintiff demolished intervening wall existed between shops and converted same into one shop –Plaintiff gave notice to defendant revoking licence and asking possession of disputed shop with monthly damages –Defendant did not deliver back possession of shop nor paid damage – Suit was filed by plaintiff – After considering pleadings and evidence of parties gave finding that defendant-appellant made construction of permanent nature in disputed shop but, learned appellate court has ignored this fact and has even not considered this aspect –Second appeal has been filed by defendant-appellant against judgment and decree passed by Additional District Judge in Civil Appeal arising out from Original Suit between both parties by which Additional District Judge, has partly reversed judgment of learned trial court in Original passed by which Civil Judge (SD), Allahabad and has decreed the suit in toto.
Findings of Court:
Court finds that all questions raised by appellant-defendant involves only question of fact which have been adequately addressed by lower appellate court –There is no concealment of any such fact with regards to the terms of allotment which was not in knowledge of appellant-defendant – There is no vagueness in plaint assertion –Judgment of lower appellate court is based on material on record and nothing substantial has been missed, misread and ignored so far as pleading and evidence of parties is concerned –No error in finding that defendant is not entitled to benefit of section 60(b) of the Easement Act – Despite fact that same was not discussed in depth and detail, as discussed above, finding recorded so by lower appellate court is pure question of fact and on basis of above discussion, Court finds that no otherwise conclusion was possible on basis of facts alleged and evidence produced by parties –Lower appellate court, by impugned judgment, has reversed judgment of lower court so far as it was decided against respondent-plaintiff, on sound reasons considering evidence and law applicable to facts and circumstances of case – Court finds that no substantial question of law is involved in this second appeal.
Result: Appeal Dismissed
JUDGMENT :
1. Heard Shri Manish Goyal, Senior Advocate assisted by Shri Nikhil Mishra, learned counsel for the appellant and Shri H.N Singh, Senior Advocate assisted by Shri Vineet Kumar Singh, learned counsel for the respondent.
2. This second appeal has been filed by defendant-appellant Dharmendra Yadav against the judgment and decree dated 21.09.2019 passed by Additional District Judge, Court No. 2, Allahabad in Civil Appeal No. 109 of 2018 arising out from Original Suit no. 1095 of 2011 between both the parties by which the learned Additional District Judge, Court No. 2, Allahabad has partly reversed the impugned judgment of the learned trial court in Original Suit No. 1095 of 2011 passed on 20.09.2018 by which Civil Judge (SD), Allahabad and has decreed the suit in toto.
3. From the perusal of the record attached with this second appeal, it appears that the civil suit no. 1095 of 2011 was filed by the respondent Girish Kumar Sahini (plaintiff in the suit) against the appellant Dharmendra Yadav (defendant in the suit) for mandatory injunction in respect of disputed shop no. 3, Bahuguna Market, Allahabad, alleging that the plaintiff purchased the said disputed shop on 27.03.2003 from Allahabad Development Authority by a registered sale deed. On or around 01.05.2003, the defendant gave a proposal for purchasing the disputed shop on payment of Rs. 4,50,000/-and also promised to get the sale deed executed within 6 months after paying the sale amount. Relationship between the parties was cordial and the defendant requested the plaintiff to give him the disputed shop on licence. Because of cordial relationship and on the assurance of defendant, he gave the shop to the defendant on his request on licence. The defendant, however, neither made the payment of sale amount to the plaintiff nor he took any step for execution of the sale deed. Realizing the dishonest intention of the defendant, in December 2006, the plaintiff refused to sell the said shop to him and asked him to vacate the shop and demanded Rs. 4,500/-monthly as damages. Defendants' brother Rakesh Yadav had purchased the shop no. 4 of Bahuguna Market and the defendant without any permission of the plaintiff demolished the intervening wall existed between shop no. 3 and 4 and converted the same into one shop. The plaintiff gave notice to defendant on 02.09.2011 revoking the licence and asking the possession of the said disputed shop with a monthly damage at the rate of Rs. 4,500/-. The defendant did not deliver back the possession of the shop nor paid the damage. Hence, the suit was filed by the plaintiff.
4. The defendant in his written statement denied the allegations of the plaintiff and stated that the plaintiff entered into an agreement to sell the disputed shop to defendant on a consideration of Rs. 4,50,000/-and the same was paid by the defendant and thereafter the plaintiff delivered the possession of the shop. The plaintiff is bound to execute the sale deed of the disputed shop on the basis of the said agreement to sale. After getting possession of the disputed shop, the defendant made a lot of development and spent enough money on the disputed shop and renovated it for the purpose of business. He was never a licensee nor the possession was delivered to him as licensee and the plaintiff took the whole amount and gave him the shop. The defendant was always ready and prepared to get the sale deed executed. It was agreed between them that the defendant or his brother Rakesh would make the payment of Rs. 4,50,000/-to plaintiff and the plaintiff after purchasing the disputed shop from Allahabad Development Authority will execute sale deed in favour of defendant. In pursuance of the said contract, the defendant paid Rs. 80,000/-by account payee cheque drawn on Oriental Bank of Commerce dated 01.02.2003. The remaining amount of Rs. 3,70,000/-was paid in cash on 01.05.2003. Raising legal pleas of Section 41 of Special Relief Act, Order 7 Rule 11(D) C.P.C., the defendant has
