HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved. Court No. - 30 Case :- SECOND APPEAL No. - 709 of 2015 Appellant :- Dharma Veer Singh Respondent :- Smt. Sushma Counsel for Appellant :- V.P. Gupta Counsel for Respondent :- Sanjeev Kumar Hon'ble Mrs. Sunita Agarwal,J.
This is a defendant's appeal filed against the judgment and decree passed by the Trial Court and affirmed by the Appellate Court in Original Suit No.206 of 2009 (Smt. Sushma Vs. Dharam Veer Singh).
A suit for mandatory injunction was filed by Smt. Sushma daughter of Lilpat on the ground that the defendant was inducted as a licensee in March 1996 by her father. Even after expiry of the period of license, he did not vacate the house in question. The father of the plaintiff died in January 1997, leaving behind his widow, two daughters, the plaintiff and her sister Km. Poonam. Her mother Smt. Vidhyavati also died within a short time thereafter. The plaintiff was minor at the time of death of her parents. After some time she made oral request to the defendant to vacate the house in question but received no response. Ultimately, a notice dated 17.3.2009 was sent through registered post, which was duly served upon the defendant. Despite clear intention shown by the plaintiff in the notice dated 17.3.2009, the defendant had continued in possession of the house in question. The defendant neither responded to the notice nor vacated the house in question and hence the cause of action for filing the suit arose after expiry of the period given in the notice.
A relief for mandatory injunction was sought with the relief for a direction to the defendant to handover the vacant possession of the house in question.
In the written statement, the defendant admitted the pedigree i.e. the plaintiff being daughter of Lilpat & having inherited the house from her father. However, he contested the suit on the ground that the plaintiff had not come with the clean hands. In Original Suit No.554 of 1996 (Dharam Veer Singh Vs. Lilpat) the plaintiff and her sister Km. Poonam were impleaded as legal heirs of Lilpat after his death. They had entered into a compromise with the defendant accepting his ownership right over the suit property. The said suit was decided on the basis of this compromise which was made part of the decree.
In replication, the plaintiff had asserted that she had no knowledge of the Original Suit No.554 of 1996, nor she had ever appeared therein. She was not aware of the order, if any, passed in the said suit. The land in question, was never transferred to the defendant either by the plaintiff or her father. After expiry of the licence, the possession of the defendant is only of a trespasser and he is liable to be evicted from the disputed property.
In documentary evidences, along with list 19-Ga, a copy of the compromise paper 20-Ga, a photostat copy of the receipt on stamp paper 21-Ga and along with list 24-Ga, original receipt paper 25-Ga, were filed by the defendants, whereas the plaintiff had filed documentary proof of her ownership to the suit property. The Trial Court framed four issues on the dispute raised by the parties:-
(1) Whether the defendant is in illegal possession of the suit property?
(2) Whether the defendant is liable to be evicted from the suit property?
(3) Whether the suit is undervalued?
(4) To what relief the plaintiff is entitled?
Issue nos. 2 and 3 were decided together and findings of fact have been recorded that the house in question was allotted to Lilpat, father of the plaintiff by Gram Sabha. After death of her father, mother and sister, the plaintiff is the sole owner of the suit property.
So far as the claim of title by the defendant is concerned, it was found that he had admitted that the original owner of the suit property was Lilpat whereas his contention was that he had purchased it for a sum of Rs. 7,000/- from Lilpat. He deposed that sale consideration was paid by him on 30.3.1996 in front of the witnesses. Original receipt paper 25-Ga Exhibit Ka-3, was made the basis of title asserted by the defendant.
Looking to this document, the Trial Court had recorded that this receipt cannot be said to be a document of transaction of an immovable property. This document is inadmissible in evidence as a proof of transaction or transfer of title being an unregistered document. The title in the property could not be said to have been transferred to the defendant. As the defendant had failed to establish his title over the suit property and in view of his admission regarding ownership of Lilpat, it was found that he could at best be said to be a licensee in the possession of house of Lilpat. After termination of licence, his possession is only that of a trespasser.
All other issues were, accordingly, decided in favour of the plaintiff and the decree for mandatory injunction was granted asking the defendant to handover vacant possession of the suit property to the plaintiff.
The Lower Appellate Court, in view of the grounds taken in appeal recorded that the only question to be examined, was as to who was the actual owner of the suit property. The documents of title produced by the defendant were examined and it was found that the alleged compromise dated 30.3.1996 was never made part of the decree. In fact, the Original Suit No.554 of 1996 filed by the defendant-appellant for permanent injunction against Lilpat was dismissed on 07.07.1999 in the absence of both the parties. A certified copy of the order dated 07.07.1999 was placed on record by the plaintiff. This suit was never restored, nor any order was produced by the defendant. No reliance could be placed upon the alleged compromise to assert the title by the defendant. So far as the original receipt paper 25-Ga and photostat copy paper 21-Ga is concerned, it was found that this document is written on a five rupees stamp paper and could not be said to be a document of transfer of title to the defendant. The suit was, accordingly, dismissed by both the Courts below.
In the present appeal, the counsel for the appellant raised two legal propositions for the admission of the appeal:-
(1) A suit for mandatory injunction was not maintainable in view of Section 41 of the Specific Reliefs Act and the plaintiff should have brought a suit for possession.
(2) As per plaint version, the house in question was given on lease for a period of two months in March 1996 by the father of the plaintiff. However, the suit has been filed in the year 2009 and is, therefore, clearly barred by limitation.
In support of his submissions, learned counsel for the appellant has placed reliance upon the judgments of this Court in the case of State of U.P. & Another Vs. Tara Singh Jaiswal, 2012 LawSuit(AII) 2174 and Swami Sadguru Sharnanand Ji Maharaj Vs. Hari Kumar & Ors; 2013 LawSuit(AII) 982.
On the other hand, learned counsel for the respondent has placed reliance upon the judgment of this Court in the case of Ram Shankar Shukla v. Ganesh Sewa Ashram Sanstha LAWS(ALL)-2006-4-166 AWC-2006-2-3050.
Having carefully considered the submissions of learned counsel for the appellant and having perused the records it is found that indisputably, the defendant has not claimed adverse possession over suit property rather he claimed his title through Lilpat the actual owner on the basis of two documents, namely the receipt which is claimed to be the document of transfer of title by Lilpat, the predecessor of the plaintiff in favour of the defendant. The second document is the alleged compromise stated to have been entered into between the plaintiff and the defendant in a suit for injunction filed by him in the year 1996. Both these documents have been examined by the Courts below and a finding of fact had been recorded that these documents do not confer any right or title in favour of the defendant.
These findings of facts could not be assailed by the defendant in the present appeal. However, a new ground has been taken that the suit itself was not maintainable being hit by Section 41 of the Specific Relief Act and, further, being beyond limitation. Admittedly, no such ground has been taken before the Court below, rather the defendant had contested the suit pleading his title over the suit property.
Further, looking to the plaint averments, these issues do not arise in the facts and circumstances of the present case. The plaintiff has come with a clear case that the defendant was inducted in the suit property as a licensee by her father. He had continued in its possession thereof as a licensee till a notice dated 17.3.2009 was served upon him by registered post. By means of this notice dated 17.3.2009, the plaintiff had revoked the license and asked the defendant to vacate the suit property.
Even if it is accepted that the defendant's license had expired in the year 1996 during the lifetime of the plaintiff's father Lilpat, even then his possession over the suit property had continued as a licensee after the death of Lilpat. The plaintiff, who had inherited the property from her father had allowed it to be occupied by the defendant treating him as a licensee. By the notice dated 17.3.2009, she made her intention clear that she would not allow him to continue further. The service of notice is not denied by the defendant. With the service of the notice, the licence has been revoked by the plaintiff.
The Apex Court in the case of Sant Lal Jain Vs. Avtar Singh, 1985 SC 857 has held that a licensee must be deemed to be always a licensee. It is open to him during the subsistence of the license or in the suit for recovery of possession of the property instituted after the revocation of the license to set up title to the property in himself or anyone else.
On the question of delay in paragraph-7 of the said judgment, it is held that it is for the licensee to show that the suit for mandatory injunction was filed after considerable delay which will dis-entitle the licensor to the discretionary relief. It was further observed by the Apex Court that even if there was some delay, an attempt should be made to avoid multiplicity of suit and the licensor should not be driven to file another round of suit with all attendant delay, trouble and expense. In paragraph 7 of the judgment, it is observed:-
"In the present case it has not been shown to us that the appellant had come to the court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction."
This dictum in Sant Lal Jain (supra) has been followed in Joseph Severance & Others Vs. Benny Mathew & Others, 2005 (7) SCC 667. It was found therein by the Apex Court that no specific plea was taken by the defendants before both the Courts below that the suit should be one for recovery of possession and the suit for injunction was not maintainable. Whether the suit was filed within a reasonable time always being dependent on the circumstances of the case should have been taken at the first instance. As this question was to be factually adjudicated and as such this plea could not be allowed to be taken for the first time in the Second Appeal. It was held that the High Court had erred in allowing the defendant to take this plea for the first time in the Second Appeal and in holding that the plaintiff's suit for mandatory injunction as well as for prohibitory injunction was not maintainable. On the question of possession of licensee, the view taken by the Apex Court in paragraphs 7 & 8 of the judgment of the Apex Court in Sant Lal Jain (Supra) was followed and it has been held that once a licensee is always a licensee.
The relevant observations of the Apex Court in Joseph Severance & Others (Supra) on the plea of delay taken in the Second Appeal in paragraph 15 are as under:-
"The explanation offered by the plaintiffs is plausible. The defendants did not specifically raise any plea that the time taken was unreasonable. No evidence was led. No specific plea was raised before the trial court and first appellate court. The question of reasonable time was to be factually adjudicated. For the first time in the second appeal the dispute essentially founded on factual foundation could not have been raised"
The same view has been taken by the learned Single Judge of this Court in the case of Ram Shankar Shukla (Supra) following the above dictum of the Apex Court. It was found that the Second Appeal raising the question about the maintainability on the plea of acquiescence was liable to be dismissed on the ground that these questions did not arise therein. It was held that such a plea was not taken before the Courts below. The plea of acquiescence or delay on the part of the plaintiff in not instituting the suit at the earliest is essentially a question of fact which needs pleading and evidence. As this question was not raised before the Courts below, the defendant could not be permitted to raise this factual controversy not pleaded in the written statement for the first time in Second Appeal.
Applying these principles, on the facts of the present case it is not possible to hold that there was a delay in filing the suit so as to dis-entitle the plaintiff to get the relief claimed. The suit has been filed soon after sending a registered notice asking the defendant to handover vacant possession of the house in question in the year 2009. By means of this notice the plaintiff who had stepped into the shoes of the licensor and allowed the defendant to occupy the suit property as a licensee had terminated the license. Service of notice is not denied by the defendant and hence his occupation after revocation of the license by the notice dated 17.3.2009 in view of express intention shown by the plaintiff is only that of a trespasser. He cannot be allowed to occupy the suit property. A suit for mandatory injunction for recovery of possession of the property instituted after revocation of license is clearly maintainable. Moreover, the defendant had made an attempt to set up his title over the suit property in which he had utterly failed.
This apart the questions raised by learned counsel for the appellant for admission of the appeal cannot be said to be substantial questions of law inasmuch as these questions do not arise in the present case. To be a substantial question of law, a point of law must be a question which is debatable having material bearing on the decision of the case. The foundation for which must be laid in the pleadings and the question must emerge from the sustainable findings of fact arrived at by the Court of facts and it must be necessary to decide it for the just and appropriate decision of the case [Reference may be made to Santosh Hazari Vs. Purushottam Tiwari, AIR 2001 SC 965 and Govindaraju Vs. Mariamman AIR 2005 SC 1008]. The question of law raised for the first time before the High Court is not a question involved in that case unless it goes to the root of the matter.
In view of the above, no substantial question of law arises in the present appeal.
The appeal is dismissed summarily.
No order as to cost.
Order Date :- 23.12.2015 Jyotsana.
(Sunita Agarwal,J.)