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Naushe Ali Khan Vs. Mohammad Siddiq and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1940 of 1973
Judge
Reported inAIR1981All307
ActsTransfer of Property Act, 1882 - Sections 108; Specific Relief Act, 1963 - Sections 10
AppellantNaushe Ali Khan
RespondentMohammad Siddiq and ors.
Appellant AdvocateN.A. Kazmi, Adv.
Respondent AdvocateN.C. Rajvanshi, Adv.
DispositionAppeal allowed
Excerpt:
civil - mandatory injunction - section 10 of specific performance act,1963 and section 108 (c) and (e) of transfer of property act,1882 - suit premise demolished by landlord during proceeding - clause (e) not applicable - plaintiff entitled to benefit under clause (c) - defendant liable to give back to plaintiff the premise in its original condition - mandatory injunction is justified and maintainable. - - the principle is well embedded in jurisprudence that there is no legal wrong which is not capable of being remedied. for instance on a small piece of land about 100 square yards a fabulously rich person may be able to invest a sum of rs. 10,000/-.a person of poor means may be able to build a hut for himself for a meagre sum of few hundreds......laiq ahmad filed a suit to restrain the plaintiff appellant from taking possession of the house in dispute. his attempt however proved abortive although he carried the matter to this court. in the meanwhile laiq ahmad transferred the house to madan lal who in his turn executed a sale deed thereof in favour of defendant respondents 1 and 2. immediately after purchasing the house in dispute defendant respondents started demolishing the same. plaintiff filed a suit being suit no. 291 of 1965 to restrain defendant respondents 1 and 2 from demolishing the accommodation in dispute. plaintiff appellant succeeded in obtaining an order of ad interim injunction but before the said order could be served defendant respondents 1 and 2 had succeeded in demolishing the structure and only the.....
Judgment:

S.J. Hyder, J.

1. Plaintiff's suit for mandatory injunction directing the defendant respondents 1 and 2 to restore the accommodation in dispute to its original condition within three months of the date of the decree and in the alternative allowing the plaintiff to reconstruct the house at a cost not exceeding Rs. 1000/- was decreed by the primary court. On appeal preferred by the defendant respondents 1 and 2 the Court of first appeal, hereinafter referred to as the court of appeal, set aside the decree and dismissed the suit of the plaintiff.

2. The facts found by the two courts below may now be stated. The property in dispute is a house. It was declared as evacuee property and vested in the Custodian who allotted the same to the appellant by his order dated 6-11-1950 on payment of Rupees 8/- p. m. as rent. The house was subsequently auctioned and was purchased by Laiq Ahmad defendant respondent 3. An order granting formal possession to Laid Ahmad was issued by the competent officer on January 5, 1963. However Laiq Ahmad managed to obtain an order of actual delivery of possession from the office of the competent officer. The said order of actual delivery of possession was executed with police help and Laiq Ahmad obtained actual possession of the house. Plaintiff appellant thereupon moved the competent officer who directed that possession of the accommodation may be restored to the plaintiff appellant. Laiq Ahmad filed a suit to restrain the plaintiff appellant from taking possession of the house in dispute. His attempt however proved abortive although he carried the matter to this court. In the meanwhile Laiq Ahmad transferred the house to Madan Lal who in his turn executed a sale deed thereof in favour of defendant respondents 1 and 2. Immediately after purchasing the house in dispute defendant respondents started demolishing the same. Plaintiff filed a suit being suit No. 291 of 1965 to restrain defendant respondents 1 and 2 from demolishing the accommodation in dispute. Plaintiff appellant succeeded in obtaining an order of ad interim injunction but before the said order could be served defendant respondents 1 and 2 had succeeded in demolishing the structure and only the four walls of the house remained. Plaintiff appellant obtained possession over the dilapidated house on November 9, 1967 and thereupon commenced this suit.

3. Defendant respondents contested the suit on various grounds and they raised a number of pleas in their written statement. On the pleadings of the parties the primary court framed a number of issues. All material issues were decided in favour of the plaintiff appellant and the suit was decreed as stated above.

4. Before the court below only two points were urged on behalf of the defendant respondents 1 and 2. In the first place they contended that a mandatory injunction directing the landlord to reconstruct the accommodation in dispute was not legally maintainable. In the second it was urged that the decree by the trial court was incapable of execution. Both the submissions urged on behalf of the defendant respondents 1 and 2 found favour with the court of first appeal. It was for that reason that the plaintiff's suit was dismissed.

5. The court of first appeal has relied on Clause (e) of Section 108 of the Transfer of Property Act for coming to the conclusion that the only option which the plaintiff appellant had was to treat the lease as void and it was not open for him to compel the landlord to restore the accommodation to its original condition. The reasoning employed by the court below is wholly erroneous and cannot be sustained. Clause (e) of Section 108 of the Transfer of Property Act refers to a case where leasehold premises are destroyed by fire, tempest, violence of an army or mob or any other irresistible force. It does not cover a case where destruction is caused by landlord himself. In other words Clause (e) of Section 108 of the Transfer of Property Act is referable to the principle of vis major. It does not arm an unscrupulous landlord with the power to destroy an accommodation let out to a tenant by using force or other deceitful means. In fact Clause (c) of Section 108 of the Act specifically enjoins that the lessor shall be deemed to contract with the lessee that if the latter pays the rent reserved by the lease and performs contract binding on the lessee, he may hold the property during the time limited by the lease without any interference. It does not lie in the mouth of the landlord who violates the above covenant of quiet enjoyment enshrined in Clause (c) of Section 108 of the Transfer of Property Act to urge that the victim of his own wrongful act is wholly without remedy. The principle is well embedded in jurisprudence that there is no legal wrong which is not capable of being remedied. In the instant case, according to the findings of the two courts below defendant respondents 1 and 2 have taken law into their own hands and have sought to deprive the plaintiff of his valuable tenancy right in the house in dispute by using unlawful force. The finding of the court of appeal on the question is therefore not maintainable and must be set aside.

6. On the second point urged before it the court of appeal held that the constructions on the site of the house in dispute were likely to involve an expenditure to the tune of Rs. 25,000/-and it was therefore wholly unreasonable to expect that the plaintiff appellant would be able to make any construction within Rs. 1000/-. Now the value of a building constructed on a particular piece of land may involve any amount of expenditure which a person is capable of incurring. For instance on a small piece of land about 100 square yards a fabulously rich person may be able to invest a sum of Rs. 1 lakh and a person of modest means may do the same for a sum of Rs. 10,000/-. A person of poor means may be able to build a hut for himself for a meagre sum of few hundreds. The actual amount spent on the constructions was therefore wholly an irrelevant consideration and on its basis, it could not have been held that the decree passed by the trial court was incapable of execution. Findings on the two questions referred to above recorded by the court of appeal are therefore not maintainable and must be set aside.

7. The result is that this second appeal succeeds and is hereby allowed. The decree of the first court of appeal is set aside and that of the trial court is restored.


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