RSA/2/2004 of Ramashis Prasad Vs Surush Prasad and ano. on 5 October 2005

1. Shri suresh prasad

2. Shri Jitendra prasad,Both sons of Late Bhawan Shah,R/o Upper Bazar, Rangpo,P.O. Rangpo, East sikkim ,..... Defendants/Respondents.

Forappellant-plaintiff : Mr. A. Moulik, senior counsel assisted Qy Mr.N.G. Sherpa, counsel.N.G. Sherpa, counsel.

Fordefendan,ts-respondents : Mr. A. K. Upadhyaya, senior counsel assist:ed byMiss S. Pradhan, counsel.Miss S. Pradhan, counsel.

PRESENT : THE HON'BLE MR. JuSTICE N. SuRJAMANI SINGH, JUDGE.

Last date ooffaearing22±September,2005.

DATE OF JUDGMENT : 5" OCTOBER, 2005.

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N. S. S_inah, J.

The judgment and decree dated 25th September, 2004 passed by the learned District Judge (E & N) Sikkim.

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•` at Gangtok in Title Appeal No,3 of 2004 (reference Civil Appeal No,5 of 2003) is the subject matter underchallenge in this Second Appeal. The facts of the case in ashort compass are as follows:- The plaintiff, namely, Shri Ramashis Prasad, th.eappellant herein, instituted a suit before the trial Courtunder Civil Suit No.18 of 2001, later on re-numbered asCivil Suit No.3 of 2002 of the Court of Civil Judge, East atGangtok against the present respondents (defendants) forthe following releifs:- A decree for:- ``i) declaring that the plaintiff is the realowner of the Pan Gumti disclosed inthe schedule to the plaint;owner of the Pan Gumti disclosed inthe schedule to the plaint;

ii) declaring that the defendant Nos:1and 2 are trespassers in respect ofthe schedule premises and thereforerecovery of possession of theschedule premises by evicting thedefendant No:2 therefrom and alsoby evicting his agents, subordinatesetc. from the suit premises includingthe defendant No:1 in case he takesover possession of the suit premisesagain during pendency of the case;and 2 are trespassers in respect ofthe schedule premises and thereforerecovery of possession of theschedule premises by evicting thedefendant No:2 therefrom and alsoby evicting his agents, subordinatesetc. from the suit premises includingthe defendant No:1 in case he takesover possession of the suit premisesagain during pendency of the case;

iii) Cost of the proceedings;

iv) Any other relief or reliefs as thisHon'ble Court may deem fit andproper in . the facts andcircumstances of the case;'',Hon'ble Court may deem fit andproper in . the facts andcircumstances of the case;'', by contending, ;'nfer a/t.a, that the appellant is the exclusive owner of a pan gumti made of wooden wall and +\c,, plane sheets on the top measuring 10' x 61/2' situated atRangpo Upper Bazar near Gully in between the shop houseof M/s. Tapsiram Ramprit Ram in the upper row of theRangpo Bazar, Sikkim which is morefully described in theschedule of the plaint, which is hereinafter referred to as`suit- pan gumti' and, that the permission was granted by\the Executive Officer, Bazar Department to the appellant-plaintiff for putting up a pan gumti of standard size atRangpo Bazar vide, office letter No.3226/B dated 6thMarch, 1974 and thereafter, the Local Self GovernmentDepartment also granted a trade licence on 16th April,1975 in the name of the plaintiff to run pan shop, maniharietc. in the suit-pan gumti and the appe[lant renewed thetrade licence from time to time thus running his businesspersonally in the said suit-pan gumti. It is also the case ofthe appellant-plaintiff that on the request of the defendantNo.1, the respondent No.1 herein, the plaintiff out ofsympathy allowed the defendant No.1 to run business inthe said .suit-pan gumti in the year 1993 as the plaintiffhad other business to run with a condition that thedefendant No.1 is to continue his business temporarily inthe suit-pan gumti but in the year 2000 the defendantNo.1 shifted to his business on a rented shop owned byone Dwarka Prasad Sharma, Mandir Bazar Gate and that, •J,•\

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instead of handing over vacant possession of the suit-pangumti to the plaintiff, the defendant No.1 had mostillegally handed over possession of it to his youngerbrother Jitendra Prasad, defendant No.2 in the month ofAugust, 2000, for which the appellant-plaintiff raisedprotest against such activities of defendant Nos. 1 and 2but, the defendant No.2 did not vacate the suit premises.According to the appellant-plaintiff, no permission wasgranted to the defendant No.2, i.e., the respondent No.2herein, for running his business in the suit-pan gumti andas such, he has been possessing and running the saidbusiness in the suit-pan gumti without any authority oflaw. As the plaintiff required the suit premises forbusiness of his son in the said suit-pan gumti, theappe]]ant herein filed the suit for the reliefs sought for inthe plaint as stated above.

The defendant Nos.1 and 2, i.e., the presentrespondent Nos.1 and 2, contested the suit by filing jointwritten statement wherein they claimed that suit is notmaintainable in law or, in fact as the plaintiff has no cause\of action nor /ocus sfand/. to file the suit. It is also thecase of the respondents-defehdants that the suit-pangumti was in a dilapidated condition lying unused andvacant in the year 1993 as the Department of U.D.&H.D.

had cancelled the licence of the plaintiff and thereafter,the Department of U.D.&H,D. let out the place to thedefendant No.1 in the year 1993 by granting a relatedlicence in the name of the defendant No.1 vide, licenceNo.358(174)uD and HD/93 dated 22nd July, 1993 anddefendant No.1 after getting licence from the saiddepartment, renovated and repaired the suitLpan gumt:iand accordingly, he has been running his business in thesuit-pan gumti as on today.

2. On the basis of the related pleadings of theparties, the learned trial Court framed the followingissues:- "1. Whether the plaintiff has locus standi tofile the present Suit for evicting of thedefendant?file the present Suit for evicting of thedefendant?

2. Whether the plaintiff is entitled torecovery of possession of the schedulepremises by evicting the defendant no.1and 2 or there agents therefrom.recovery of possession of the schedulepremises by evicting the defendant no.1and 2 or there agents therefrom.

Whether the defendant is the licenseeunder UD and HD in respect of thepremises."under UD and HD in respect of thepremises."

Supporting the respective cases, the appellant- plaintiff exam,ined three witnesses including himself andlikewise, the defendants examined six witnesses incl`uding themselves and parties had produced their respectivedocumentary evidence, Upon hearing the parties, thelearned, trial Court decreed the suit under the related •cy/+\

decree dated 20th November, 2003 passed in Civil SuitNo.3 of 2002. Being dis-satisfied with the impugnedjudgment and decree passed by the learned trial Court,the respondents-defendants preferred appeal before theFirst Appellate Court under Title Appeal No.3 of 2004(reference Civil Appeal No,5 of 2003) and the FirstAppellate Court upon hearing the parties, the appealpreferred by the present respondents, was allowed thussetting aside tpe related judgment and decree passed bythe learned trial Court in Civil Suit No.3 of 2002 anddismissing the suit filed by the present appellant-plaintiff.Being aggrieved by the impugned judgment and decreepassed by the First Appellate Court, the present appellant-plaintiff preferred this Second Appeal.

3, Supporting the case of the appellant, Mr, A.Moulik, learned senior counsel contended that the findingsof the First Appellate Court to the effect that thedefendant-respondent No.1 was the owner of the suit-pangumti is not a legally sound finding and is not based onany evidence and the First Appellate Court did not properlyconsider and examine the trade licence exhibit Dl issuedby the authority concerned to and in favour of therespondent No.1 /.nasmuch as it reflects the appellant,Ramashis Prasad as owner of the sLiit-pan gumti, The.

validity and genuineness of the allotment order dated 6thMarch, 1974 (exhibit P1) which established the ownershipof the said pan gumti in favour of the appellant was notproperly considered by the .First Appellate Court, Mr.Moulik argued. It was also argued that the First AppellateCourt failed to consider the /ocus stand/. of the permissiondated 6th March, 1974 vide, exhibit Pl vis-a-vis the tradelicence issued to the appellant and to the respondent No.1vide, exhibits P2 and Dl respectively while passing theimpugned judgment and decree. Mr. Moulik, learnedsenior counsel further argued that the First Appellate Courtmisappreciated the evidence on record thus dislodging thecorrect findings and the observations and appreciation ofevidence made by the learned trial Court while passing theimpugned judgment and decree. Supporting hiscontention, Mr. Moulik, learned senior counsel relied uponthe following decisions of the Apex Court rendered inIshwar Dass lain (dead) through LRs. Vs. Sohan Lal(dead) by L.Rs. reported .in AIR 2000 SC 426', HafazatHussain vs. Abdul Majeed and others reported .ir\ AIFl2001 SC 3201., Sundra Naickal Vadiyar (dead} byLRs. and another vs. Ramaswami Ayyar (dead) byhis LRs. reported -in AIR 1994 SC 532., State ofHimacfral Pradesh vs. Mal.arani Kam Sundri reported •\Ofy -lr\ AIR 1993 SC 1162., Flajappal Hanamantha RanoiE

vs. Mahadev Channabasapa and others reported .inAIR 2000 SC 2108 ar\d, Jagdish Singh vs. NatthuSingh reported .in AIR 1992 SC 1604.

4, In terms of the provisions of law laid downunder Order XLII of the Code of Civil Procedure, 1908, thisCourt while admitting the appeal formulated the followingsubstantial questions of law for just determination of thereal points in controversies between the parties:- "Whether the findings of the firstAppellate Court with regard to the ownership ofGumti and the construction of schedulepremises are based on no evidence or not?"

Now this Court is to see and examine as towhether the appellate-plaintiff could make out a case inhis favour and, whether the impugned judgment anddecree of the First Appellate Court is t`enable in the eye oflaw or not, and the related findings of the First AppellateCourt are based on evidence or not?

6. I have perused the judgment and decree, of thelearned trial Court as well as the impugned judgment anddecree of the First Appellate Court. For better appreciationin the present matter, the relevant observations andfindings of the First Appellate Court made in the relatedjudgme,nt dated 25th September, 2004 is very much .Of,d\\

relevant and such relevant findings and observations findits place in paragraph Nos. 29 to 37 of the judgment of theFirst Appellate Court and accordingly, it is quoted below:- ``29. The case of the plaintiff is that he isthe absolute owner of the Pan Gumti. Hehad given the same temporarily to thedefendant No.1 who was passing throughdifficult days to help him out of hisdifficulty. The claim of t:he plaintiff is thathe became the absolute owner of the PanGumti by virtue of the permission given tohim by the UD & HD followed by theconstruction of the same by him after heobtained the Trade Licence. It was underhis authority as the owner of the PanGumti that he had temporarily handedover the Gumti to the defendant No.1.

30. In view of the above the plaintiffwould be required to prove that he is theowner of the Pan Gumti and that he hadgranted permission to the defendant No.1to run his business for temporary periodand that he refused to vacate the same ondemand and thereby made himself liableto evicting from the suit premises.

31. In support of his plea theplaintiff/Respondent examined threewitnesses including himself.

32. The Plaintiff/Respondent as PW.1stated that the Pan Gumti was allotted tohim by the LSG, Department in the monthof March 1974. The LSG allotted theparticular plot to him to construct a PanGumti, which he constructed it at the costof Rs.28,000/-. The L.S.G. departmentalso granted him trade licence for runningbusiness of Pan, Manihari, readymadeclothes and shoes etc. and accordingly hestarted his business in the year 1975 andcontinued the same till 1993. In the year1993 the defendant No,1 who was passinghis days in extreme poverty approachedhim for allowing him to run business in

the said Pan Gumti. Since he had gotanother shop in the house of one PramilaPradhan he acceded to the request of thedefendant No.1 and allowed hiin to runbusiness in the said Pan Gumti fortemporary period so that he could earn hislivelihood. In the year 1999 t:hePlaintiff/Respondent required the said PanGumti for his unemployed son andapproached the defendant NO.1 to handover vacant possession to him. However,the defendant No.1 not only refused tovacate the Pan Gumti, but also handedover the same to his brother thedefendant No.2 instead of handing it overto him by shifting his business to anotherrented premises belonging to DwarkaPrasad. He repeated his requests to theplaintiff/Respondent but in vain,

33. Sri M. L. Sharma PW.2 stated thatthe site of the said suit property wasallotted to the Plaintiff/Respondent by thethen Bazar Department and he waspermitted to put up a Pan Gumti on thesame location where it exists. Afterconstructing the Pan Gumti theplaintiff/Respondent carried on businessupto the year 1993. In the year 1993 theplaintiff/Respondent perm itted thedefendant No,1 the son of his uncle tocarry on business in the suit premisestemporally until his financial conditionimproved and shifted his own business toanother premises taken on rent from onePramila Pradhan. At that time he wasPanchayat President of Central PandamPanchayat Unit and Rangpo Bazar and inthat capacity he had submitted verificationreport on the basis of verbal No objectionof the plaintiff who had informed him thathe had given the suit property to thedefendant/Appellant No.1 to run thebusiness temporarily on condit:ion that hewill vacate the premises later on. On thebasis of the such statement from theplaintiff/ respondent and the defendants/appellants the Panchayat had issued a report to the effect that the Panchayat aswell as the plaintiff/Respondent had noobjection if the trade licence was issued tothe defendant No.1. The defendant/appellant No.1 thereafter continued hisbusiness in the suit premises upto theyear 2000 and t:hen shifted his business toanother premises owned by one DwarkaPrasad. However instead of handing overthe suit property to the plaintiff/respondent he pilt the defendant/appellant No.2 his younger brother inpossession of the suit premises as told tohim by the defendant/appellant No.1 whohad come to visit him.

34. Sri P.P. Khati PW.3 stated that theGumti in question was constructed by theplaintiff/respondent in or about the year1974, after the L.S.G. had allotted theplace. The plaintiff/respondent carried onbusiness in t:he said Pan Gumti till theyear 1993 after which he permitted thedefendant/appellant No.1 to run hisbusiness in the same Gumti. It was toldto him by the plaintiff as well as thedefendant No.1 that the defendant/appellant No.1 was allowed to run theshop in the Gumti for a temporary period,as his financial condition was not good,

35. The statements of the witnesses ofthe plaintiff in the cross-examinationwould go to show that they have beendiscredited on material points leaving theversion of the plaintiff unsupported anduncorrobo`rated. The deposition of Sri M.L. Sharma PW.2 to the effect that theplaintiff in I:he year 1993 allowed thedefendant No.1 to run the Pan Gumti tohelp him out does not seem to have comefrom any independent source in so far asin his cross-examination he has admittedthat he had no personal knowledge in thisregard. His statement may be reproducedas follows;, "It is true that from plaintiff only I

came to know that defendant No.1

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requested him to allow him to rLln thePan Ghumti and seeing his povertyplaintiff allowed him to do the businesstemporarily thereon."

36. The statement of Sri P.P. Khati (P.3)the next witness of the plaintiff does notstand in any better footing in this regard.Even though in his examination in chief hestated that the Gumti in question wasconstructed by the plaintiff in the year1974 and after running Pan Shop till 1993the plaintiff permitted the defendant No,1to run the said business for a temporaryperiod as his financial condition was notgood. In his cross/examination he hasvery fairly admitted that his knowledgewas based on what the plaintiff had toldhim. He conceded that; ``It is true thatthe plaintiff told me that he hadpermitted defendant to run the said PanGumti for temporary period as hisfinancial condition was not good." It isalso pertinent to reproduce the nextfollowing statement as follows:- ``It is not a fact that plaintiff did nto te[[ me that he had given pan Gumti fortemporary period to the defendant as hisfinancial condition was not good .... "

37. Of equal relevance is the followingstatement of the witness:- "It js trLie that except the plaintiff nobody informed me at any point of timethat Ramasis Prasad had permitteddefendant to run the said Pan Gumtj fortemporary period as defendants'condition was not good."

38. It is therefore clear from the abovethat the plaintiff's evidence is vague,uncertain and unconvincing in the absenceof corroborative evidence of reliablesource. The version t:hat the plaintiff afterobtaining the permission constructed thePan Gumti at the cost of Rs.28,000/- lackscorroboration. No evidence in support ofthis claim had been brought on record.The next claim of the plaintiff that in the year 1993 he allowed the defendant No.1to run the Pan Gumti on his request so asto help him out for a temporary period oncondition that he will vacate the sameafterwards also remains uncorroboratedby any independent and reliable evidence,

39. Therefore on the basis of theevidence on record it cannot be said thatthe plaintiff has discharged the burden,which falls squarely on him because of thestand taken by the defendants in thecase.„

So far as the case of the defendants-respondents is concerned, the First Appellate Court was ofthe view that it is on a better footing. It may be notedthat even though the permission to run a pan gumti wasobtained by the appellant-plaintiff in his name in the year1974; it was on the initiation of Janaki Prasad with whomappellant-plaintiff was living at the relevant time, and afterthe permission was obtained, it was again, the said JanakiPrasad who constructed the pan gumti at his initiative andexpense and it was after the pan gumti was constructed byhim that the appellant-plaintiff started the pan shopbusiness in the said pan gumti till the year 1986 afterwhich he shifted the business to another place therebyabandoning the said pan gumti and it was only in the year1993 that respondent-defendant No.1 obtained a licence ofhis own and in his name and started business in the suit-pan gumti after carrying out necessary repairs and +\ty, renovations. According to me, evidence of DWs 1 to 6 arequite consistent and corroborative each other.

8. In paragraph 54 of the impugned judgment theFirst Appellate Court had exhaustively dealt with therelated point and appreciated the evidentiary value oftrade licence exhibit P2 which was only renewed up-to theyear 1985-86, and was of the view that in terms of theRule 9 of the Sikkim Trade Licence and the MiscellaneousProvisions Rules, 1985, the trade licence exhibit P2 shouldbe treated as having been in force only up-to 1985-86 andthe appellant-plaintiff had failed to show by any evidenceadduced by him that he had renewed his trade licenceafter 1985-86 up-to 1993 the period during which heclaims to have run the business in the suit-pan gumti andthe plaintiff has neither produced any copy of trade licencethe validity of which was extended during these period nordid he adduce any reliable evidence to show that he wascarrying on business in the suit premises during therelevant period. The First Appellate Court was of the viewthat the evidence on record shows that respondent-defendant No.1 is a licensee under the U.D.&H.D.Department in his own right on and after he obtained thetrade licence and started business in the suit-pan gumtiafter renovating and compensating the plaintiff for the.I

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usable materials in the gumti. According to me, from theavailable materials on record, it is seen that these relatedfindings of the First Appellate Court are based on sufficientevidence and materials of records and as such, thesefindings are reasoned findings and apart from that theFirst Appellate Court rightly `passed the impugnedjudgment and decree in accordance with law. I am also ofthe view that the case laws cited by Shri Moulik, learnedsenior counsel do not help the case of the appellant-plaintiff, but it helps the case of the respondents.

9, For the reasons, observations and discussionsmade above, I am of the view that the appellant-plaintiffcould not make out a case to justify interference with theimpugned judgment and decree dated 25th September,2005 passed by the learned District Judge, East & NorthSikkim at Gangtok in Title Appeal No,3 of 2004 (referenceCivil Appeal No.5 of 2003).

10. In the result, the present appeal is devoid ofmerit and accordingly, it is dismissed with costs ofRs.5,000/- (Rupees five thousands) thus affirming theimpugned judgment and decree passed by the learnedDistrict Judge, East and North` Sikkim at Gangtok in TitleAppeal No.3 of 2004. However, it is madeiclear that suchcost of Rs.5,000/- (Rupees five thousands) shall be.-, .ivy /

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treated as part of the funds of the Sikkim Bar Association,for which, the appellant-plaintiff shall deposit such costs ofRs.5,000/- (Rupees five thousands) with the Registry ofthis Court within a period of one week from today andafter such deposit, t:he General Secretary of the Sikkim BarAssociation is at liberty to withdraw the same from theRegistry of the Court.

„,il[CJ-JLJi-]( N. Sumani Singh )Judge05-10-2005( N. Sumani Singh )Judge05-10-2005