Ashim Kumar Banerjee, J.@mdashWIMCO Ltd. owned a large chunk of land where quarters were constructed to house its employees. The appellant was an Ex-Employee of WIMCO Ltd. He was allotted a quarter on the land in question, having survey No. 316. There had been litigation between the employees and the WIMCO on their dues. Many workers declined to vacate their quarters on the plea of non-payment of wages.
2. WIMCO had office and factory at Port Blair for manufacturing of match splints. The lands at Lillypur, Haddo were allotted by the Government in 1958. The appellant was a mazdoor in the Port Blair factory with effect from January 19, 1953, and was transferred to other cadre with effect from January 01, 1966 and on May 30, 1979, he was promoted to the post of Supervisor Grade-II and finally the Head Clerk on and from January 01, 1986.
3. Being the employee of the company, he was allotted a residential quarter till March, 1970. From April, 1970, he was permitted to occupy a portion of the company''s duly allotted land at Lillypur at a nominal rent of Rs. 1/- per month. So, the authority deducted the same from his monthly wages. WIMCO''s wage clerk mistakenly did not effect such deduction for the period from September, 1972 to July, 1981. It again started from September, 1981 that would reflect from the wage book. In 1970, the appellant constructed a small hutment on the company''s land and started residing with his family. Gradually, he constructed a double storied house. On September 21, 1981, he addressed a letter to WIMCO expressing his desire to dispose of the house and vacate the company''s land under his occupation. He requested the WIMCO to purchase his house and offered a price of Rs. 1.50 lakhs so that he could construct a new house elsewhere. WIMCO did not accept the offer. However, in order to tide over the occupation problem, the company took the ground floor on rental basis to house its employees at a monthly rate of Rs. 300/-. The parties entered into a tenancy agreement on May 22, 1982. On February 24, 1986, appellant again renewed his proposal for outright sale of super-structure at a price of Rs. 3.00 lakhs. The land under his occupation was 350 Sq.mtrs of constructed area and garden area of 1623 Sq.mtrs having a total of 1973 sq.mtrs comprising in survey no. 316/P4, that continued to remain with him since cessation of his employment. WIMCO closed their Port Blair factory. Earlier the Union submitted a charter of demand on March 29, 1985 for revision of the grade, wages, scale etc. that was pending before the Industrial Tribunal.
4. The Industrial Tribunal published its Award by notification dated June 21, 1991 against WIMCO. WIMCO filed a writ application before this Court, being C.O. No. 10282(W) of 1991. WIMCO, subsequently, entered into a compromise with the workmen and filed a compromise before the writ court. The terms of settlement entered into between the WIMCO and the workmen union on July 03, 1992 would, inter alia, record, the Union and the workmen agreed to confirm that after receipt of the full and final settlement of their accounts from the company, they would not raise any dispute in any Forum either collectively or individually. The terms of settlement also recorded, the employees, who were occupying company quarters, would be paid their dues as per the settlement only after giving vacant possession of the quarters. It is an admitted position, the appellant received the money and declined to vacate the quarter. The appellant''s name appeared in the signatories to the said terms of settlement, as I find from the evidence.
5. WIMCO, subsequently, conveyed the property in favour of the respondent-plaintiff vide conveyance dated October 16, 1995 that would include survey No. 316 and the plaintiff thus became lawful owner of the suit property. After the land being mutated in favour of the plaintiff, the respondent-plaintiff asked the appellant to vacate the premises, and on his refusal, filed a suit for eviction, inter alia, praying for a declaration that the plaintiff was entitled to occupy, use and enjoy to the exclusion of all others, the plot being survey No. 316/P4 and a decree declaring the appellant-defendant no. 1 to be a rank trespasser having no manner of right, title, interest. The appellant appeared and contested the suit by filing his written statement. In the written statement, he contended, he constructed the house on the land that did not belong to the company. He also pointed out, WIMCO earlier had initiated an eviction proceeding against him before the Tehsildar that had been dismissed. Hence, the present owner, being the plaintiff, was not entitled to claim any relief against him.
6. The plaintiff deposed, through one A.N. Chengappa, being the Assistant General Manager and the concerned Patwari, being PW-1 and PW-2 respectively. The Assistant General Manager would reiterate the plaint case so discussed above. The concerned Patwari produced the original register and the map that were tendered in evidence. In cross-examination, he described this plot being Survey No. 316. He admitted that there had been no record of Survey No. 316 or any part thereof.
7. The appellant examined himself as also one of his colleagues. The appellant deposed, the entire cost of construction of hutment was borne by him. He denied that the settlement had been reached between the WIMCO and himself after the closure of the factory. He admitted, the WIMCO allotted quarters to some employees. He also did not recollect any rent that was deducted from his salary. He, however, admitted, he did not have any document to the effect, he had constructed the hut or paid any amount towards land revenue. He had no record showing encroachment of government land. He feigned ignorance about the compromise which WIMCO had with the employees union. Subsequently, he admitted the settlement. DW-2 deposed, the appellant cleaned the land in 1959 and began to stay there by constructing a hut. He denied that the land would belong to WIMCO. During cross-examination, he also could not produce any document about the land allotment. He, however, admitted the government scheme for the said purpose. He feigned ignorance about realization of the rent by WIMCO from the employees on account of quarter.
8. Hearing the suit, the learned Civil Judge Senior Division vide judgment and order dated March 17, 2003 decreed the suit on contest and directed the appellant to deliver khas possession of the suit premises.
9. Being aggrieved, the appellant preferred the appeal before the learned Additional District Judge, who affirmed the judgment and decree of the trial court vide judgment and order dated April 12, 2011. The appellant, thus, preferred the second appeal, that the Division Bench admitted vide order dated July 25, 2011. I heard the same on the above mentioned date.
THE JUDGMENT OF THE TRIAL COURT:
10. The learned Civil Judge discussed the evidence as well as dealt with the contentions raised by the appellant. With regard to discrepancy in the survey number, the learned Judge observed, when a land was divided or sub-divided in the fractional numbers that would also appear after the original survey number. The holding register would show survey no. 316 having an area of 6221 sq.mtrs recorded in favour of the plaintiff whereas the appellant possessed 1973 sq.mtrs being a part of the original holding, that might have resulted in inclusion of P4 in the Record of Rights. However, since the original survey number was the same, there was no confusion. Regarding claim of the appellant on the land in question, learned Judge considered the evidence and observed, he ultimately admitted the amicable statement. His name appeared in the certified copy of the order of this Court, being Exhibit-I. He admitted, there was no document to show that he had constructed the hut on the land of the government. Admittedly, he was in possession of the suit property that belonged to the plaintiff, hence, decreed the suit.
11. The learned Additional District Judge, while affirming the decision of the learned Civil Judge observed, the plaintiff deposed, the appellant received the settlement money, however, did not vacate the suit premises. The plaintiff also proved the title through the conveyance executed by WIMCO. The appellant could not rebut such evidence in cross-examination. He also did not question the conveyance or the mutation. The conveyance was tendered in evidence without any objection. The appellant also admitted, he came to possess the quarter as an employee of WIMCO. He also admitted not having any document that he had constructed a hut in the suit property encroaching upon the same by adverse possession or not having filed any suit claiming right, title over the suit property by way of adverse possession, no such case was made out in the written statement. Once a settlement was entered into and money was paid, he ceased to become a licensee.
CONTENTION:
12. In a second appeal, the appellant could only raise substantial questions of law. At the time of admission, this Court, however, did not frame any such question for determination. At the time of hearing, Mr. N.A. Khan, would refer to substantial questions of law appearing at page 119-122 framed by him.
13. I have gone through the same. None of the fourteen grounds mentioned therein would hardly raise any legal issue, for to speak of substantial. However, since the Division Bench admitted the appeal, I permitted the learned counsel to argue the appeal.
14. Mr. N.A. Khan, learned counsel appearing for the appellant would contend, the appellant encroached upon the government land in 1959 and, thereafter, constructed his house. He offered his house to WIMCO for purchase that WIMCO failed. Learned Civil Judge could not properly appreciate such issue. He would also contend, PW-2-Patwari categorically deposed, the land was not sub-divided. Hence, the Civil Judge could not have dealt with the issues of variation of survey number relying on sub-division. Similarly, the Additional District Judge, being the first appellate court, misconstrued the evidence of Patwari. No ground of appeal on which the first appeal was preferred, was dealt with by the learned Judge. Mr. Khan, would contend, in 1991, the Tehsildar rejected the eviction proceedings at the instance of the WIMCO whereas ATI filed the suit in 1997, after about six years. Hence, the suit was barred by limitation. Even if the settlement was taken into account, the suit would be hopelessly barred by limitation as the settlement had arrived in 1991. Mr. Khan would also question the authority of the plaintiff to file the suit. According to him, ATI was a corporate entity, the suit filed through the General Manager without any proper resolution authorizing him to file the same on behalf of the ATI, would not be maintainable. According to him, section 5 of the Specific Relief Act read with Order 29 of the Code Civil Procedure was not followed.
15. Mr. Khan would further submit, when WIMCO lost the eviction proceeding before the Tehsildar, the subsequent suit by ATI would also not maintainable as it could not have better title than the WIMCO. He prayed for setting aside the decree of the trial court, so merged in the order of affirmation by the first appellate court.
16. Per contra, Mr. Jayapal, appearing for the respondent-plaintiff would contend, the issue now raised by Mr. Khan was never raised either in the written statement or at any time during the trial or at the first appellate stage. This factual issue raised by Mr. Khan would thus not be available to him to urge before the second appellate court.
MY VIEW:
17. I have considered the revival contentions. The concurrent findings of the two Courts referred to above, would conclusively support the decree that would raise no question of law for to speak of substantial, that would come within the domain of the second appellate court. However, the Division Bench admitted the appeal without framing any questions of law. The second appellate court is competent to frame the questions. Despite my best endeavour, difficulty, I could not do so. I wonder, how this second appeal could be maintainable in absence of any legal issue, being raised on behalf the appellant.
18. WIMCO was admittedly the owner of the plot being survey No. 316. It was not the case of the plaintiff, he did not possess a part of it rather, he would contend, he trespassed and constructed his house. Such positive case was never made in the written statement. Two courts held against him on the factual issue as to the discrepancy in plot number. On the issue of vacating the quarter, I would refer to section 630 of the Companies Act 1956 that imposed a bounden duty on an ex-employee of a company to handover the company property back and his failure to do so would itself be an offence triable in according with the Code of Criminal Procedure. The authority, however, filed the eviction proceeding. The Tehsildar dismissed it in absence of his competence that would not operate as res judicata on the successor-in-interest, in any event, such plea was never taken. The decision of the Tehsildar could not have any effect on the Civil Court. The Civil Court, on appreciation of the evidence held, he was in wrongful possession as he was bound by the settlement. He got the terminal dues as per the settlement, hence, he was obliged to vacate the premises in question. On the authority, I find, suit was filed by the corporate entity itself and in any event, such plea was not taken in the written statement. On the plea of limitation, I hold, it was a continuing cause of action and the suit was not barred. This point was also not taken before the Courts below. I again observe, the concurrent findings of the two Courts did not raise any question of law that would deserve interference at the second appellate stage.
RESULT:
19. The appeal fails and is hereby dismissed without any order as to costs.
