Panchugopal
Barua & Ors Vs. Umesh Chandra Goswami & Ors [1997] INSC 159 (12
February 1997)
A.S.
ANAND, S.B. MAJMUDAR DR.
ANAND. J.
ACT:
HEAD NOTE:
This
appeal by special leave is directed against the judgment and order of the High
Court of Gauhati dated 12.8.88 in Second Appeal No. 85/79 and has arisen in the
following circumstances:
Shri Durga
Charan Barua, predecessor in interest of the appellant, allowed respondent No.
1 Umesh Chandra Goswami, to make permissive use of a plot of land in Jorahat
town for a period of two years commencing from 1.6.63 and to raise temporary
structure thereon for the said period for the purpose of his residence. There
was an understanding between them that the respondent would remove the
structure and deliver khas possession of the suit land after the expiry of the
period of two years. On the failure of the respondent to handover the vacant
possession of the suit land to the predecessor-in- interest of the appellants,
a registered notice was served on the respondent to deliver the possession by 31st March, 1966. The respondent did not deliver
possession and the predecessor in interest of the appellant thereupon, in 1966,
filed a suit in the Court of Munsif, Jorahat, for a decree of khas possession
and compensation. It was registered as title suit No. 65/66.
After
survey commission, it was found that the value of the suit land exceeded the
pecuniary jurisdiction of the Munsif's court and therefore the suit was brought
to the court of Assistant District Judge, Jorahat and registered there as title
suit No. 36/67. The case set up in the plaint by the plaintiff was that he had
allowed the defendant to make permissive use of the suit land by raising
temporary structure thereon for a period of two years with effect from 1st of
June, 1963 but inspite of a clear understanding between the plaintiff and the
defendant that the latter would vacate and deliver khas possession of the suit
land by removing his temporary structures from the land at his own cost at the
end of the period of two years, he had failed to hand back the possession of
the suit land. The defendant resisted the suit and in the written statement
inter-alia pleaded that "the defendant did not occupy any land as a
permissive user under the plaintiff .......... the defendant has occupied the
land under the contract of purchase and never gave any understanding to the
plaintiff to remove his structures." While title suit No. 36/67 filed by
the predecessor-in-interest of the appellants was pending, the
defendant-respondent also filed a suit in the Court of Assistant District
Judge, Jorahat, being title suit No.23/69
for a decree of specific performance of an oral agreement to sell the suit land
against the predecessor-in- interest of the appellant.. It was pleaded by the
defendant (respondent No. 1 herein) that he had entered into an oral agreement
with Shri Durga Charan Barua for sale of the disputed plot of land and had been
delivered possession of the same in pursuance of the aforesaid agreement by him
after receiving Rs. 7860.00 as sale price. That after being handed over the
possession of the suit land, as the prospective purchaser, he had constructed a
house over it and since Shri Durga Charan Barua had failed to execute the sale
deed, a decree for specific performance of the oral agreement by calling upon Shri
Barua to execute the sale deed be passed in his favour. Both the suits i.e.
Suit No. 36/67 and Suit No. 23/69 were clubbed and tried together.
During
the pendency of the suit, Shri Durga Charan Barua died and his legal representatives
were brought on the record. The trial court by a common judgment and order
decreed suit No. 36/67 filed by late Shri Durga Charan Barua directing khas
possession to be given to the plaintiff by the defendant and dismissed suit No.
23/69 filed by respondent No. 1 by returning a finding that there was no
evidence to show that respondent No. 1 had entered into any agreement to
purchase the suit land with late Shri Durga Charan Barua nor was there any
evidence to show that he had paid the sum of Rs. 7860/- to Durga Charan Barua.
The trial court held that the story of an oral agreement to sell the suit land
was a concocted one. Aggrieved by the judgment and decree of the trial court,
respondent No. 1 preferred two separate appeals before the District Judge, Jorahat.
Vide judgment dated 21.8.78 the District Judge dismissed both the appeals and
confirmed the judgment and decree passed by the Trial Court in both cases. The
respondent No. 1 thereupon preferred two second appeals before the High Court
being SA No. 77/79 arising out of suit No. 23/69 and SA No. 85/78 arising out
of judgment and decree in suit No. 36/67. The High Court vide judgment and
order dated 4.8.88 dismissed second appeal No. 77/79 and upheld the concurrent
findings of the two courts to the effect that the story put forward by
respondent No. 1 regarding the existence of an oral agreement to sell, had no
truth in it. The plea put forward by respondent No. 1 of his occupying the suit
land pursuant to the oral agreement to sell was rejected. It was found that
respondent No. 1 had been given possession of the suit land as a licencee by
the plaintiff as alleged in the 12.8.88 allowed second appeal No. 85/79 arising
out of suit No. 36/67 and by the said judgment granted benefit of the provisions
of Section 60(b) of the Indian Easement Act, 1882 (hereinafter called the
`Easement Act') holding the licence to be irrevocable on the principles of
"justice, equity and good conscience". The High Court relying on the
report of the local commissioner of 1975 came to the conclusion that the
structure raised by respondent No. 1 was of a permanent nature and therefore
the protection under Section 60(b) of the Easement Act was available to him and
he could not be evicted from the suit land. The preliminary objection raised by
the appellants, that no plea on the basis of which the benefit of the
provisions of the Easement Act was now being sought for the first time in the
second appeal had been raised in the written statement; that no issue had been
framed and no evidence was led by the parties before the trial court regarding
the availability of the benefit of Section 60(b) of the Act and that even in
the First Appellate Court, no such plea had been raised and, therefore, the
same could not be allowed to be raised for the first time in the High Court in
the Second Appeal, was rejected and the second appeal, was allowed setting
aside the concurrent findings of fact.
While
the appellant filed SLP against the judgment and order of the High Court in
second appeal No. 85/79 (arising out of SLP 2567/89), respondent No. 1 filed a
SLP against the dismissal of the second appeal No. 77/79 (arising out of SLP
14313/88). Vide order dated 3.8.93 special leave was granted in SLP No. 2567/89
but SLP No. 14313/88 filed by the respondent No. 1 was dismissed.
Mr. Hansaria,
learned counsel, appearing for the appellant submitted that not only was the
second appeal filed by respondent No. 1 not maintainable as no substantial
question of law was involved in the appeal but even otherwise no relief could
have been granted to respondent No. 1 on the basis of Section 60(b) of the
Easement Act, as that Act does not apply to the State of Assam. Learned counsel
for the respondent, however, supported the judgment on the same reasoning as given
by the learned Single Judge.
Both
the trial court and the First Appellate Court have concurrently found that the
plea of respondent No. 1 that he had entered into an oral agreement to purchase
the suit land with late Shri Durga Charan Barua and had occupied the same after
being put in possession by Shri Barua, as a prospective purchaser, and had
raised construction thereon as a prospective purchaser was not borne out from
the record and that the story was false and not based on truth. Both the courts
also found, concurrently, that Shri Barua, the predecessor-in-interest of the
appellant had allowed the respondent to make permissive use of the suit land
for a period of two years and had permitted him to raise temporary structures
on the said plot of land for the purpose of his residence. Against these
concurrent findings of fact, the learned Single Judge admitted two second
appeals and subsequently allowed one by setting aside the concurrent findings
of fact and on the basis of a plea, claiming benefit of Section 60(B) of the
Easement Act, raised before the High Court for the first time in the second
appeal granted relief to respondent No. 1 and non-suited the
plaintiff-appellant. We shall deal with that aspect a little later.
It
appears to us that the learned Single Judge of the High Court overlooked the
change brought about in Section 100 C.P.C. by the Amendment Act of 1976 which
has drastically restricted the scope of second appeals. Prior to the amendment,
a second appeal could lie to the High Court on the grounds set out in Clauses
(a) to (c) of Section 100 (1), namely:
(a) the
decision being contrary to law or to some usage having the force of law;
(b) the
decision having failed to determine some material issue of law or usage having
the force of law;
(c) a
substantial error or defect in the procedure provided by this Code or by any
other law for the time being in force, which may possibly have produced error
or defect in the decision of the case upon the merits.
However,
by the amendment of 1976, vital change was introduced by the legislature in
Section 100 C.P.C. The amended Section 100 C.P.C. reads thus:
100.
(1) Save as otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie to the High Court
from every decree passed in appeal by any Court subordinate to the High Court,
if the High Court is satisfied that the case involves a substantial question of
law.
(2) An
appeal may lie under this section from an appellate decree passed ex parte.
(3) In
an appeal under this section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.
(4)
Where the High Court is satisfied that a substantial question of law is
involved in any case, it shall formulate that question.
(5)
The appeal shall be heard on the question so formulated and the respondent
shall, at the hearing of the appeal, be allowed to argue that the case does not
involve such question: Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the Court to hear, for reasons to
be recorded, the appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves such
question." A bare look at Section 100 C.P.C. shows that the jurisdiction
of the High Court to entertain a second appeal after the 1976 amendment is
confined only to such appeals as involve a substantial question of law,
specifically set out in the memorandum of appeal and formulated by the High
court. Of course, the proviso to the Section shows that nothing shall be deemed
to take away or abridge the power of the Court to hear, for reasons to be
recorded, the appeal on any other substantial question of law, not formulated
by it, if the Court is satisfied that the case involves such a question. The
proviso presupposes that the court shall indicate in its order the substantial
question of law which it proposes to decide even if such substantial question
of law was not earlier formulated ate by it. The existence of a
"substantial question of law" is thus, the sine-qua-non for the
exercise of the jurisdiction under the amended provisions of Section 100 C.P.C.
Generally
speaking, an appellant is not to be allowed to set up a new case in second
appeal or raise a new issue (otherwise than a jurisdictional one), not
supported by the pleadings or evidence on the record and unless the appeal
involves a substantial question of law, a second appeal shall not lie to the
High Court under the amended provisions. In the present case, no such question
of law was formulated in the memorandum of appeal in the High Court and grounds
(6) and (7) in the memorandum of the second appeal on which reliance is placed
did not formulate any substantial question of law. The learned single Judge of
the High Court also, as it transpires from a perusal of the judgment under
appeal, did not formulate any substantial question of law in the appeal and
dealt with the second appeal, not on any substantial question of law, but
treating it as if it was a first appeal, as of right, against the judgment and
decree of the subordinate Court. The intendment of the legislature in amending
Section 100 C.P.C. was, thus, respected in its breach. Both the trial court and
the lower appellate court had decided the cases only on questions of fact, on
the basis of the pleadings and the evidence led by the parties before the Trial
Court. No pure question of law nor even a mixed question of law and fact was
urged before the Trial Court or the First Appellate Court by the respondent.
The High Court was, therefore, not justified in entertaining the second appeal
on an altogether new point, neither pleaded nor canvassed in the subordinate
courts and that too by overlooking the changes brought about in Section 100
C.P.C by the Amendment Act of 1976 without even indicating that a substantial
question of law was required to be resolved in the second appeal. to say the
least, the approach of the High Court was not proper. It is the obligation of
the courts of law to further the clear intendment of the legislature and not to
frustrate it by ignoring the same.
In the
case of Chevalier I.I. Iyyappan and another vs. The Dharmodayam Co., Trichur, [AIR 1966 SC 1017], Kapoor, J.
speaking
for a three Judges bench considered the case of a party, which had tried to
change its stand at the appellate stage by raising a plea of licence and its
irrevocability, a plea not raised at the Trial Court nor adjudicated upon at
any stage. It was noticed:
"The
appellant in this Court has mainly relied on the plea that he had been granted
a executed a work of a permanent character and incurred expenses in the
execution thereof and therefore under Section 60(b) of the Indian Easements
Act, 1882 (5 of 1882), hereinafter referred to as the `Act', which was applicable
to the area where the property is situate and therefore the license was
irrevocable. Now in the trial court no plea of license or its irrevocability
was raised but what was pleaded was the validity of the trust in Exhibit X.
In the
judgment of the trial court no such question was discussed. In the grounds of
appeal in his appeal to the High Court which the appellant took against the
decree of the trial court the relevant grounds are 9 to 13.
The
Court on the basis of the above facts and circumstances observed that it was
not open to the party to change his case at the appellate stage and since the
plea of licence or its irrevocability had not been raised before the Trial
Court, the same could not have been raised in the High Court and upheld the judgment
of the High Court refusing the permission to raise such a plea at the appellate
stage for the first time. That judgment clearly applies to the facts of the
present case. The learned Single Judge noticed this judgment but opined that
the decision could not prevent the appellant in the High Court from taking the
plea regarding the protection of Section 60(b) of the Act "inasmuch as the
granting of licence and raising of structure is the case of the plaintiff
himself". Even after noticing that the appellant had specifically raised
the defence both in the Trial Court and in the First Appellate Court that he
had raised the construction as a prospective owner, the learned Single Judge
went on to say that since the plaintiff's case in the plaint was that a licence
had been granted to the appellant to raise the structure, relief could be
granted to the defendant on the plea raised by the plaintiff himself ignoring
the stand of the defendant as the plaintiff had to succeed or fail on the
strength of his own case and not on the weakness of the defence. There may not
be any quarrel with the abstract proposition of law that a plaintiff can
succeed on the strength of his own case and not on the weakness of the defence
but what the High Court seems to have completely overlooked is that the
plaintiff's case specifically was that he had allowed the defendant to make
permissive use of the suit land as a licencee and had permitted the raising of
temporary structure thereon for a period of two years beginning 1st June, 1963
and that the defendant acting on the licence had raised a temporary structure
on the suit land and contrary to the understanding had refused to hand back the
possession of the suit land after the expiry of two years. This plea of the
plaintiff had to be taken as a whole and could not be dissected for the purpose
of granting relief to the respondent by accepting a part of it. On the
plaintiff's plea, taken as a whole, the question of irrevocability of the licence
could not at all arise because for granting relief on the principles contained
in Section 60(b) of the Easements Act, a licence becomes irrevocable provided
the following three conditions are satisfied:
(1) that
the occupier must be a licensee;
(2) that
he should have acted upon the licence;
(3) and
executed a work of permanent character and incurred expenses for the execution
of the work.
The
learned Single Judge of the High Court relied upon the report of the Advocate
Commissioner to opine that the structure raised by the defendant on the suit
property was of a permanent character. In doing so he ignored not only the
other evidence on the record but also that the report of the Advocate
Commissioner was submitted in 1975, while the question of raising construction
was to be considered in relation to the period of the licence i.e. 1.6.1963 and
1.6.1965. According to the plaintiff-appellant only temporary construction had
been permitted and raised at the site and when request was made by the
appellant to the licencee to vacate and handover khas possession the same did
not evoke any response. On the strength of the plaintiff- appellant's case, as
noticed above, the High Court fell in error in holding that the licence could
not be revoked because of the raising of permanent structure by the licencee, a
case totally inconsistent with the defence raised in the Trial Court and the
First Appellate Court by respondent No. 1. Such a plea ought not to have been
allowed to be raised at the stage of the second appeal in the High Court for
the first time in the second appeal. However, since the High Court has
interfered with concurrent findings of fact recorded by the two courts below,
we do not propose to rest our judgment only on the ground of non-
maintainability of the second appeal and proceed to examine the merits of the
judgment under appeal also.
The
main submission made by learned counsel for the appellant-defendant (respondent
herein) in the High Court was that the defendant could not have been asked to
vacate the premises in as much as the licence granted to him had become
irrevocable in view of the provisions of Section 60(b) of the Easements Act
because the appellant acting upon the licence had constructed structures of a
permanent character on the suit land by spending money on it, thereby
satisfying all the requirements of the said Section. The preliminary objection
of the plaintiff-respondents (appellants herein) that no new plea regarding the
irrevocability of the licence, could be allowed to be raised for the first time
in the High Court as such a plea had not been urged either in the pleadings or
during the arguments before the Trial Court or before the First Appellate Court
and no evidence had been led in support of the new plea was rejected. It was
observed:
"Before
the submission advanced by Shri Goswami is examined, it would be apposite to
state at the threshold that the aforesaid point was not urged in the way it has
been advanced in this Court either before the Trial Court or before the learned
District Judge. Shri Barua appearing for the respondent, therefore, raised an
objection that this new plea may not be allowed to be raised for the first time
in this Court. In this connection, he referred to C. Iyyappan V. Dharmodayam
Co, AIR 1966 SC 1017, in para 8 of which this aspect of the matter has been
dealt with. In that case also a plea was sought to be taken that the appellant
before the Court was protected by Section 60(b) of the Act. The plea, however,
was not allowed to be raised because in the trial court no plea of licence or
its irrevocability was raised; the defence taken was entirely different. This
decision taken was entirely different. This decision cannot prevent the
appellant from taking the plea of protection under Section 60(b) of the Act in
the present case inasmuch as the granting of licence and raising of the
structure is the case of the plaintiff himself. It is no doubt true that the defence
taken by the defendant in the trial court was not one which had been advanced
by Shri Goswami. It was relating to agreement to purchase the suit land
following which the defendant had come to occupy the suit land; but this is not
enough. In my view to disallow the appellant to raise the point urged by Shri Goswami
inasmuch as the same is a question of law and is based on the pleading of the
plaintiff," is not proper.
The
learned Single Judge noticed that the Easement Act had no application to the
State of Assam, but went on to opine that the defendant was protected by
Section 60(b) of the Act which `operates' in this case relying upon the view
expressed by Tek Chand, J. in Jagat Singh V. District Board, [AIR 1940 Lahore,
409] which had relied upon the opinion of The approach of the learned Single
Judge in our opinion was erroneous. Once it was found that the Easement Act had
no application to the State of Assam, the question of "clearing the way
for Section 60(b) of the Act to operate" cannot at all arise. Of course,
the principles of "justice, equity and good conscience" on which
Section 60(b) of the Easement Act rests may apply in the facts and circumstances
of a given case but that is not to say that though the Easement Act does not
apply, provisions of Section 60(b) of the Easement Act still
"operate". Since, the legislature did not intend the Act to apply to Assam, the learned Single Judge could not
have defeated that intendment by holding that "the defendant of the
present case was protected by Section 60(b) of the Act." It is not
permissible to extend the provisions of an Act, made not applicable by the
legislature to a State, by a judicial order as it amounts to enacting
legislation by the High Court, a power not vested in the judiciary.
Even
otherwise, the grant of relief to the respondent even on the principles of
"justice, equity and good conscience" which doctrine appears to have
been pressed into aid, was on the facts and circumstances of the case, not
permissible. A court of equity, it should be remembered, must so act as to
prevent perpetration of a legal fraud. It is expected to do justice by
promotion of honesty and good faith, as far as it lies within its power. A
party seeking relief in equity must come to the court with clean hands. In the
present case, the respondent herein denied that he was a licencee of the
appellant or had been given permissive use to raise temporary structures on the
suit land for a period of two years. He set up a `title' to the suit land as a
`prospective purchaser' on the basis of an `oral agreement to sell in himself
claiming to have occupied the suit land in his capacity as a "prospective
purchaser". All the three courts, including the High Court, found that
plea of the respondent to be `false' in the suit for specific performance filed
by the respondent. S.L.P. against the judgment and decree, was also dismissed
by this Court. How then could the respondent be found entitled to any relief in
equity, when his defence was based on falsehood? We have noticed the conduct of
the respondent in denying the title of the appellant herein and putting forward
a plea which has been concurrently found by all the courts to be false. He,
therefore, certainly did not come to the Court with clean hands. Thus, even if
it be assumed for the sake of argument, that the principles of `justice, equity
and good conscience' underlying the provisions of Section 60(b) of the
Easements Act, could be attracted in a given case in the State of Assam where
the Easements Act had not been extended, the conduct of the respondent
disentitled him to any relief on the basis of `equity, justice and good
conscience'. The reliance placed by the High Court on the Division Bench
judgment of the Lahore High Court in the case of Jagat Singh and others vs.
District Board (supra) is misplaced. Indeed in the Province of Punjab, the Easements Act was not in force and Tekchand, J.
speaking for the Curt invoked the common law doctrine of `equity, justice and
good conscience', which the learned Judge found to be substantially the same as
that contained in Section 60 of the Easements Act, to decide the Letters Patent
Appeal. On facts, it was found that the land in dispute was being actually used
by the District Board for the purpose for which it had been given to it on licence.
It was also established on facts that more than 10 years ago, the defendant had
erected a boundary wall and a pucca gate at a considerable cost and that those
works were of a permanent character. It was in this fact situation that Tekchand,
J.
held
that even if the Easements Act was not applicable to the Province of Punjab, it
was not open to the appellant to revoke the licence, on their option and resume
the land, since construction of permanent character had been build by the
defendant acting upon the licence granted by the appellant to him on principles
of `justice, equity and good conscience'. The fact situation in Jagat Singh's
case (supra) was, thus, totally different. The licencee therein had raised a
permanent construction acting upon the licence after incurring expenditure for
raising the permanent construction and it was for that reason that the court
held that the licence could not be revoked at the sweet will of the licensor.
In the present case, the respondent has categorically denied to be a licencee
of the appellant or that he had raised any construction acting on the licence.
He
was, thus, not entitled to any relief in the second appeal. The judgment of the
High Court under the circumstances cannot be sustained. This appeal succeeds
and is allowed. The judgment and order of the High Court are hereby set aside
and the judgment and decree of the Trial Court, as confirmed by the First Appellate
Court, are restored. We, however, make no order as to costs.
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