Sudhir Bansal And Another vs Girish Bansal
2015 Latest Caselaw 670 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
F.A.F.O. No. 2388 of 2014
 

 
Sudhir Bansal & Anr.		-------				Appellants
 
					Versus
 
Girish Bansal			-------				Respondents
 

 
Hon'ble Krishna Murari, J.

Hon'ble Pratyush Kumar, J.

(Delivered by Hon'ble Krishna Murari, J.)

This FAFO has been filed by the plaintiff-appellants challenging the order dated 07.05.2014 passed by the trial court directing to pay the ad-valorem court fees.

Heard Shri Diwakar Rai Sharma, learned counsel for the appellants and Shri K. Shailendra for the respondents.

Undisputed facts are that suit property, which is in the nature of the shop was purchased by one Premwati, the mother of the appellant no. 1 and defendant-respondent by means of two sale deeds dated 11.01.1969 and 29.05.1974. The shop was given to the defendant-respondent by Smt. Premwati on licence for running a business. Subsequently, the suit property was transferred in favour of plaintiff-appellants by means of registered sale deed dated 09.12.2009. After purchase of the property by the plaintiff-appellants, a legal notice dated 26.03.2010 was served upon the defendant-respondent to handover possession of the same. Thereafter, he filed a suit claiming mandatory injunction for possession. A decree for damages was also claimed. Suit was filed on the allegations that Smt. Premwati, the erstwhile owner transferred the suit property in favour of the plaintiff-appellants by means of a registered sale deed. The licence of defendant-respondent, who was in possession as licensee of Smt. Premwati, was revoked by means of a notice dated 26.03.2010 by the plaintiff-appellants. Proceedings were contested by the defendant-respondent by filing a written statement denying the plaint allegations.

One of the issues framed by the trial court was whether the suit is undervalued and the court fees was sufficient. It was held that suit was properly valued, but court fees of Rs.500/- was insufficient and the plaintiff-appellants were required to pay ad-valorem court fees.

It is contended by the learned counsel for the appellants that after execution of the sale deed in favour of the plaintiff-appellants, they stepped into the shoes of Smt. Premwati and, thus, were the licensors and in a suit for possession, the court fees paid under Section 7 (iv-B) (b) of the Court Fees Act (hereinafter referred to as the Act) was sufficient and the trial court wrongly and erroneously held that ad-valorem court fees under Section 7 (v) of the Court Fees Act was payable.

In reply, it has been contended that after execution of the sale deed by Smt. Premwati in favour of the plaintiff-appellants, his licence came to an end and it was a suit for possession, hence, ad-valorem court fees was payable.

The moot question which arises for consideration is, in the facts and circumstances, whether the court fees is payable by the plaintiff-appellants under Section 7 (iv-B) (b) or ad-valorem court fees under Section 7 (v) is liable to be paid.

It is an admitted case between the parties that defendant-respondent was a licensee of Smt. Premwati, the erstwhile owner since before the transfer of the property by her in favour of the plaintiff-appellants.

In support of the contention, learned counsel for the appellants has relied upon the decision of the Hon'ble Apex Court in the case of Sant Lal Jain Vs. Avtar Singh, AIR 1985 SC 857.

In the said case, the Hon'ble Apex Court has held that after termination of the license, the licensee is under an obligation to surrender the possession to the owner and if he fails to do so, the licensee can be compelled to discharge its obligation by way of mandatory injunction under Section 55 of the Special Relief Act, subject to the condition that suit is brought within a reasonable time.

The law on this point has been laid down by the Hon'ble Apex Court in the following terms.

"After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under S. 55 of the Specific Relief Act. We might further mention that even under English law a suit for injunction to evict a licensee has always been held to be maintainable......

Where a licensor approaches the court for an injunction within a reasonable time after the license is terminated, he is entitled to the injunction. On the other hand, if the licensor causes huge delay the court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent, and in that case the licensor will have to bring a suit for possession which will be governed by S. 7 (v) of the Court-fees Act."

In view of the law settled by the Hon'ble Apex Court, there can be no dispute about the fact that after termination of a license, the licensor can bring a suit for mandatory injunction for possession within a reasonable time and if not brought within a reasonable time and has filed with unnecessary delay, a suit for possession will have to be filed and the court fees payable, would be under Section 7 (v) of the Act. It is only where the suit is filed diligently within reasonable time after termination of license and an injunction suit for possession would be maintainable.

However, in the case in hand, the question which further arises for consideration in order to come to a conclusion with respect to the applicability of Section 7 (iv-B) (b) of the Act or Section 7 (v) of the Act, is the status of the transferee vis-a-vis licensee of the transferor.

Section 59 of the Indian Easement Act, 1882 prescribes that grantor's transferee is not bound by licensee. The said Section reads as under.

"59. Grantor's transferee is not bound by license.- When the grantor of the license transfers the property affected thereby, the transferee is not as such bound by the license."

In view of the provisions of Section 59 of the Indian Easement Act, the plaintiff-appellants having got the property from the original licensor, i.e., Smt. Premwati by virtue of a transfer, the license granted in favour of the defendant-respondent ceased to exist and there was no relationship of licensor and licensee between the plaintiff-appellants and defendant-respondent.

This view being taken by us finds support from a Division Bench judgment of this Court in the case of Bhoj Raj Vs. Hardeva & Ors., AIR 1923 Allahabad 140.

In the said case, it has been held as under.

"Further the fact that the plaintiff was a transferee from the original licensor, the license had ceased to exist by operation of law and the plaintiff was entitled to a decree."

The defendant-respondent since was not the licensee of the plaintiff-appellants, who acquired rights of the property by transfer from the erstwhile owner, suit filed by them is a suit for possession and the court fees becomes payable under Section 7 (v) of the Act at the ad-valorem value.

Reliance placed by the learned counsel for the appellants on the judgment of the learned Single Judge in the case of Ajab Singh Vs. Sheetal Puri, AIR 1993 Allahabad 138 is also misfounded as the same is also distinguishable on the facts.

In the said case, a suit was filed on the allegation that plaintiff gave a right to the defendant to occupy a room as a licensee with condition that as an when he was allotted a departmental quarter, he will vacate the same. When the plaintiff wanted to construct a house over his plot after demolishing the existing room, a few days before filing the suit, he requested the defendant to vacate the room, but he refused to to so and ultimately vide notice dated 29.09.1981, the license was revoked and thereafter a suit for permanent injunction and pendente lite and future damages was filed. After analysing the fact and the evidence, the Court in paragraphs 15 and 16 has held as under.

"15. In fact all the above circumstances in this case indicate the creation of interest in, and a right of exclusive possession and enjoyment of the property in suit, by the defendant-appellant, and not merely a grant of right to remain in permissive possession.

16. That, the theory of licence is a mere afterthought and product of imagination, is also borne out from the fact that according to plaintiff himself he had to, time and again ask the defendant as to when he would vacate the premises and the defendant each time paid no heed to it. Had it been a licence, on the defendant's first refusal itself steps to revoke the same and demand possession, would have been immediately and promptly taken by the plaintiff, and he would not have waited for the dispute to culminate into a criminal litigation."

Learned Single Judge ultimately in paragraph 23 held that defendant was a tenant and not a licensee of the disputed premises and the suit, accordingly, could not have been filed for recovery of possession or mandatory injunction treating him to be a licensee without terminating his tenancy in accordance with law.

One of the issues raised before the learned Single Judge in the aforesaid case was regarding the sufficiency of the court fees paid in a suit for injunction, which was ultimately dismissed, was whether the court fees was payable under Section 7 (iv-B) (b) of the Act or under Section 7 (v) of the Act and in that connection, following the dictum of the Hon'ble Apex Court in the case of Sant Lal Jain (supra), it was observed as under.

"Once it is held that a suit for mandatory injunction for delivery of possession against the licensee, if brought without undue delay is maintainable, the Court fee payable would be under Section 7 (iv-B) (b) of the Act and not under Section 7 (v) of the Act. On the allegations of the plaint and nature of relief sought, therefore, the Court fee paid in the suit was sufficient and the defendant-appellant's plea that the plaint should have been rejected as insufficiently stamped was rightly turned down by the Courts below."

In the case in hand, the situation is just contra and, thus, none of the case laws relied upon by the learned counsel for the appellants is of any help.

Here the suit has not been filed by the licensor, but by a subsequent purchaser, who is not bound by the terms of the license in view of Section 59 of the Indian Easement Act. Though the situation and the reliefs were couched in different words, but as a matter of fact, it was a simple suit for possession. There was no relationship of licensor and licensee between the plaintiffs and the defendant and, thus, in view of above, the court fees was payable under Section 7 (v) of the Act.

In view of above facts and discussions, we do not find any illegality in the order passed by the trial court holding that plaintiff-appellants were under a liability to pay ad-valorem court fees.

The appeal, accordingly, stands dismissed.

May 26th, 2015

VKS