Chattisgarh High Court
Yusuf Gouri vs Smt. Pratibha Gupta on 18 October, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 124 of 2022
Yusuf Gouri S/o Ismail Gouri Aged About 61 Years Caste -
Muslman, Amar Gadda Bhandar, Teli, Occupation - Business, Near
Karande Medical Store Juni Hatri Rajnandgaon Tahsil and Distt.-
Rajnandgaon Chhattisgarh --- Appellant
Versus
1. Smt. Pratibha Gupta W/o Krishna Swaroop Gupta Aged About 53
Years Caste - Agrahari , Occupation - Advocate, Village G.E. Road
Rajnandgaon Tahsil and Distt. - Rajnandgaon Chhattisgarh
2. Smt. Sarojni Gupta W/o Late. Dr. Rajesh Swaroop Gupta R/o Village
Mahesh Nagar, Rajnandgaon Tahsil and Distt. - Rajnandgaon
Chhattisgarh
3. Md. Islamuddin Bdgujar S/o Haji Sirajuddin Bdgujar Aam Mukhtyar
Promod Das Bairagi Caste - Muslman Teli, Occupation -
Business,village - Telipara Azad Chowk, Rajnandgaon Tahsil and
Distt. - Rajnandgaon Chhattisgarh
4. Pramod Das Bairagi S/o Surajman Bairagi Caste - Waisnav , Village
- Ward No. 39, Basantpur, Rajnandgaon Tahsil and Distt. -
Rajnandgaon Chhattisgarh
5. Haji Sadruddin Badgujar S/o Late Sirajuddin Caste - Muslman Teli,
Occupation - Business, Village - Manavmandir Road, Raja Textiles
Rajnandgaon Tahsil and Distt. - Rajnandgaon Chhattisgarh
---- Respondents
For Appellant Mr. Abdul Wahab Khan, Advocate.
For Respondents 1 & 2 Mr. Manoj Parajpe, Mr. Shobhit Koshta &
Mr. Sunil Otwani Advocates.
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
Per Goutam Bhaduri, J
18-10-2022
1. Heard finally with the consent of the parties taking into
consideration that the nature of dispute is of eviction and plaintiffs
are senior citizens.
2. The instant appeal is against the judgment and decree dated
29.7.2022 passed by the Court of Additional District Judge (FTC),
Rajnandgaon in Civil Suit No.17-A/2007 whereby the suit for
declaration and eviction was allowed, however, the claim for
mesne profit was denied. The appeal is preferred by Yusuf Gowri,
who was defendant No.1 before the trial Court. The cross
objections has also been preferred by the plaintiff/respondents 1 &
2 for grant of mesne profits.
3. The suit was preferred by Smt. Pratibha Gupta and one Smt.
Sarojani Gupta for declaration of possession, eviction and mesne
profit. According to the plaintiffs, they own a superstructure of four
storey building which is recorded in sheet No.48A, Plot No.130 ad-
measuring 74 square meters situated at Juni Hatri Rajnandgaon,
which is more particularly shown in Annexure-A being part of the
plaint. According to the plaintiffs, in the suit premises initially one
Dr. Shrote was running his Clinic, who was tenant of one Mahant
Dharmendra Das. It is stated that Dharmendra Das got the suit
premises vacated from Dr.Surekha Shrote, thereafter executed a
sale-deed on 29.11.2008 (registered on 27.4.2009) and plaintiffs
became the sole owners of the subject suit property. According to
the plaint averments, initially the property was owned by one
Mahant Ram Sewak Das Ji Vaishnav, who declared Dharmendra
Das Vaishanav to be his successor. Consequently after death of
Ram Sewak Das Vaishnav, Dharmendra Das Vaishnav being
disciple became sole and exclusive owner of the suit property. As
per plaint averments, after such purchase, names of the plaintiffs
were mutated in Nazul records and in this regard order was passed
on 21.8.2013.
4. The Plaintiffs further stated that defendant No.1 Yusuf Gowri was
carrying on business of making cotton mattresses, beside the suit
premises and requested the plaintiffs to allow him to use premises
for storing the mattresses in ground floor. Consequent thereupon,
the ground floor was given as a licencee to defendant No.1 Yusuf
Gowri. Subsequently, it is alleged that durng passage of time,
defendant no.1 taking the advantage of plaintiffs' liberality broke
open the lock of first floor and second floor of the said premises
and took over the possession. It was further stated that without
consent of the plaintiffs, defendant No.2 namely-Md. Islamuddin
Badgujar was inducted as a sub-tenant by defendant No.1 Yusuf
Gowri. In the suit, defendant No.3 Pramod Das Bairagi was
arrayed as defendant No.3 and Haji Sadruddin Badgujar was
arrayed as defendant No.4. The plaintiffs further amended the
plaint and added the pleading that defendant No.4 Haji Sadruddin
Badgujar was also put into possessio, thereby further eviction was
sought against defendants No.1 to 4. The plaintiffs further
contended that since defendant No.1, who was inducted as
licencee, committed breach of trust, as such his licence was
terminated by notice dated 13.2.2017 and was asked to vacate
the premises by 31.3.2017 but they failed to do so, therefore, the
suit was filed for declaration, possession and mesne profit.
5. Per contra, in written statement filed by defendants 1 & 2, they
denied all the plaint allegations and stated the property initially
belonged to one Mahant Ram Sewak Das and he being a monk
(Mahant) does not have any right to transfer the property in favor
of a third party. The sale-deed dated 29.11.2008 (registered on
27.4.2009) was also denied. It was stated that the plaintiffs being
ladies were never put into possession of the subject suit premises.
Consequently, the sale-deeds were sham and bogus. It was
further stated that in respect of property of the like nature, which
belongs to religious trust, there cannot be transfer of the property
and the suit filed for eviction is only on the ground of
presumption. It was stated that the plaintiffs were never contacted
by the defendants, therefore, the question of permissive
possession was denied.
6. The defendants further pleaded that the suit premises was given
by Mahant Ram Sewak Das to the defendant before rainy season
of 1991, and since then, they are in possession of the suit property
without any disturbance whatsoever. It is further pleaded that
Dharmendra Das, who claimed himself to be the owner of the suit
premises, had orally asked the appellant/ defendant to vacate the
premises in the year 1997, but since the house was given by Late
Mahant Ram Sewak Das to them in 1991, they are in continuous
peaceful possession for the last 27 years and they were carrying
on business in shop. With respect to the termination of license,
declaration was sought in the counter claim that as the defendants
are in possession since 1991 they have become absolute owners
by way of adverse possession and plaintiffs could not get the right
and title by virtue of the sale-deed executed in their favor. It was
stated that the original owner of property was Mahant Ram Sewak
Das through whom the defendants came in possession and on the
basis of forged documents, the plaintiffs got their names mutated
in the Nazul records, which do not confer any title to them. It was
further stated that since the sale-deed executed by Dharmendra
Das itself was forged and the adverse possession would be against
Dharmendra Das as they are in continuous possession since 1991,
the plaintiffs were not entitled for any relief.
7. Learned trial Court below on the basis of facts and pleadings
framed 7 issues. Issue no. 1 was to the fact that whether the
plaintiffs are owners of property situated over Plot No.130 Sheet
No.48 measuring 74 square meters. Issue No.2 was that whether
the plaintiffs were entitled to get the vacant possession of the
suit premises. The Court held it in affirmative. In respect of issue
no.3 about mesne proft, the Court held that the plaintiffs are not
entitled to get the mesne profit. In respect of ownership of house
situated in ground floor based on adverse possession and
permanent injunction in favour of defendant no.1, which are
covered under issue No.4 & 5 the Court held that the defendants
have not become owners. With respect to issue no.6, the Court
held that the suit is not barred under the Indian Limitation Act and
Issue no.7 pertains to suit expenses.
8. The plaintiffs on their behalf examined Smt. Pratibha Gupta as
P.W.1 and another witness Rakesh Thakur as P.W.2. In defence,
defendant no.1 Yusuf Gouri examined himself as D.W.1 and other
witnesses Narendra Snha as P.W.2 and Sheikh Anwar as D.W.3.
9. The court below after hearing counsel for the parties and
considering the evidence adduced on record held that the plaintiffs
are owners of the suit property and they are entitled to get the
vacant possession from defendants 2 & 4 and further directed that
defendants 1, 2 & 4 shall hand over the vacant possession to the
plaintiffs within 30 days. The Court has further issued a permanent
injunction against the defendants from interfering with the suit
property. Feeling aggrieved by the said judgment, defendant
no.1 Yusuf Gour has filed this appeal.
10. (a) Learned counsel for the appellant would submit that
the plaintiffs have claimed ownership on the basis of sale deed
Ex.P-1 dated 29.11.2008, which is stated to be executed by
Dharmendra Das in favour of the plaintiffs but Dharmendra Das
was not in possession of the suit premises at any point of time. He
would submit that only on false pretext, the suit was fled for
ejectment and possession. Neither any document nor any tenancy
agreement was placed to show that the plaintiff has given it on
lease or license. He further submits that defendants/appellant
were in possession since 1991 and the names of the purchasers
got recorded in Najul records without their knowledge and since
they were in continuous possession from 1991 without any
interruption they would become absolute owners by adverse
possession.
10 (b) Referring to Ex.D-1 to D-4 learned counsel submits
that the possession of the defendants appellants would be evident
that he paid taxes of Municipality as also the electricity charges in
respect of the suit premises which would go to show the nature of
possession. Referring to the statement of P.W.1, learned counsel
would further submit that the plaintiffs were literate people and
the defendants/ appellant was allowed to keep mattresses in the
suit premises but what is the date, further when possession was
forcibly taken has not been disclosed and if the forcible possession
according to the plaintiffs was taken-over at any point of time,
then in such a case, it should have followed by a criminal
complaint inasmuch as the plaintiffs were advocates by profession.
Therefore, the very fact that the defendant/appellant was allowed
as a licensee by the plaintiffs would be negated.
10 (c) He would further submit that if the statement of P.W.1
is examined as against the documents filed by the defendant, it
would go to show that the defendant was in possession of the suit
premises since 1991. Therefore, the right of ownership vested in
them by efflux of time. It is stated that the learned trial Court has
failed to appreciate all these facts and arrived at wrong finding,
which requires to be set aside.
10 (d) He further submits that the cause of action never
accrued in favour of the plaintiffs and therefore the suit itself was
liable to be dismissed.
11. (a) Per contra, learned counsel for the respondents/plaintiffs
would submit that the suit was fled against 4 persons namely
Yusuf Gouri, Mohd. Islamuddin who is brother of defendant no.1;
Pramod Das Bairagi who earlier contested the suit of ownership
and Haji Sadruddin Badgujar who occupied some part of the suit
property. He would submit that in respect of sale deed executed
on 29.11.2008 which was registered on 27.04.2009 by
Dharmendra Das after appropriate stamp was paid, the property
was transferred from the date of execution of agreement in the
name of plaintiffs/respondents. He would further submit that
thereafter by order dated 22.05.2009, names of plaintiffs were
recorded in the Najul. It is submitted that when the aforesaid sale
deed was challenged by Pramod Das Bairagi in Civil Suit No.14-
A/2010 (Pramod Das Bairagi Versus Mahant Dharmendra Das and
others), by order dated 26.10.2017 (Ex.P-7) the competent Court
has held that Dharmendra Das was the sole owner of the subject
property. He refers to Ex.P-11C and submits that against the order
dated 26.10.2017, First Appeal bearing No.F.A.No.72/2017 was
fled before the High Court, which resulted into dismissal.
Therefore, the finding of the competent civil court exists and
ownership right of the seller Dharmendra Das cannot be put into
question.
11 (b) He further refers to the notice Ex.P-12 and would submit
that the appellants were allowed to keep their goods in the ground
floor but subsequently they broke open the lock and took-over the
first floor and second floor of the premises. Under the
circumstances their liicense was revoked by notice Ex.P-12 which
was served upon them and despite notice when the premises was
not vacated, the cause of action arose.
11(c) Learned counsel for the respondents/plaintiffs further
submits that in the written statement, the defendant assailed only
the title of the seller disputing the sale-deed and claimed that the
defendants are in possession way back from the year 1991 but no
document has been placed to show that how they came into
possession since 1991. In order to rebut the contention, learned
counsel refers to Ex.P-4 which is an order dated 01.05.2004 and
submits that earlier civil suit was fled by Dharmendra Das (the
seller) against Dr.Sulekha Shrote who was tenant in the suit
premises wherein she was carrying on practice , therefore, the
plea of defendants that they were in possession of the suit
premises since 1991 is automatically negated.
11(d) With respect to the adverse possession, he would submit
that inconsistent pleas with respect to title/ownership and adverse
possession have been taken which mutually destruct with each
other, so the same cannot be entertained. It is, therefore, stated,
that the finding of the trial Court to the effect that the defendants
were licensees and did not vacate the premises after revocation of
license and also parted with possession is established.
Consequently the finding of the trial Court is well merited which do
not call for any interference.
11(e) In respect of counter claim, learned counsel submits
that after termination of licence when the occupation became
illegal, the appellant/defendant was carrying on his business and
at part was residing therein. Therefore, the defendants had
commercially gained, and at the same time the plaintiffs was
deprived of enjoying fruits of the property, therefore, it needs to
be compensated by way of mesne profits and accordingly, the
decree be modified to the above extent.
12. We have heard learned counsel for the parties at length and have
also perused the record.
13. The first plea which has been raised by the defendant is about the
acquisition of ownership by virtue of sale deed (Ex.P.1). Ex.P.1 is a
sale deed executed by Dharmendra Das, the disciple of late Ram
Sewak Das in favour of Pratibha Gupta and Smt. Sarojini Gupta for
a sale consideration of Rs.17 lakhs, which was registered on 27th
April, 2009. Thereafter, names of purchasers Smt. Pratibha Gupta
and Sarojini Gupta were recorded in revenue case no.205/A-6/year
2008/2009 on 22nd May, 2009 which is marked as Ex.P-2. The
order sheet of the said mutation proceeding would show that
before the mutation was recorded, the same was published in the
news paper inviting objection and objection having not been
received, the name of plaintiffs were mutated.
14. At para 5 of the plant, the pleading was made that seller namely
Mahant Dharmendra Das who was declared as a disciple of late
Ram Sewak Das having legally inherited the property had
executed the sale deed. Ex.P-7 is an order dated 26.10.2016
passed by the District Judge, Rajnandgaon in Civil Suit No.14-
A/2010. The said suit was filed by Pramod Das Bairagi against
Mahant Dharmendra Das as defendant no.1, plaintiffs Smt.
Pratibha Gupta and Sarojni Gupta as defendants 2 & 3 and the
State as D.W.4. In such case, the court held that Dharmendra Das
was declared as disciple, who had legally inherited all the rights of
assets of late Ram Sewak Das and was appointed as Sarvarakar.
The order further records that the same suit property which was
under challenge was held to be legally sold to defendants 2 & 3
Pratibha Gupta & Sarojni, who are plaintiffs in the instant case. In
the said suit, the plaintiff though was Pramod Das Bairagi, who is
defendant no.3 in the instant case was represented through his
General Power of Attorney Holder. Mohd. Islamuddin Badgujar is
arrayed as defendant no.2 in the instant case. Having aggrieved
by such finding wherein the sale deed Ex.P.1 was held to be valid,
an appeal was filed by Pramod Das before the High Court. The
High Court vide order dated 01.9.2017 (Ex.P.10) and 03.10.2017
(Ex.P.11C passed in F.A.No.72/2017 observed that since the
power of attorney holder on the bass of which appeal was filed was
not placed on record, consequently the appeal suffered dismissal.
In the result, the finding arrived at by the learned trial Court that it
has not been proved that the property which was purchased by
the plaintiffs belonged to Public Trust cannot be discharged by
this Court.
15. Since the issue about the authenticity of the sale deed dated
27.04.2009 has already been arrived at on an earlier ligation
wherein one of the defendant was a party, the same cannot be
agitated time and again in the instant case. Apart from this fact,
defendants 1 & 2 Yusuf Gouri and Islamuddin have not challenged
the sale deed Ex.P.1. As a consequence thereof, when such deed
Ex.P.1 is supported by the earlier order of this Court and having
not been challenged the existence of it whereby the sale was
executed in favour of the plaintiffs cannot be subjected to further
enquiry before this Court in the instant appeal. It appears from
the statement of the plaintiff (P.W.1) Pratibha Gupta, she has
stated that just besides the suit premises, the defendant was
carrying on his business of making cotton beds, Rajayi etc., and
he sought a permission to keep the goods in the ground floor,
which she permitted to defendant no.1. T iis stated that
subsequently, taking advantage of their liberality he broke open
the lock of the first and second floors. Defendant no.1 Yusuf Gouri
claimed that he was in possession of the said property with
permission of late Shri Ram Sewak Das since 1991.
16. A perusal of para 21 of the cross examination of D.W.1 would
show that it was categorically admitted by D.W.1 that he is not in
hold of any document(s) either in respect of sale of suit property
or with regard to permission given by Ram Sewak to stay in the
suit premises to claim his right as a licensee. The defendant No.1
has claimed the possession on the basis of Ex.D-1. Perusal of
Ex.D-1 would show that it was issued in the name of Ram Sewak
Das and at Para 13, D.W.1 admitted that Ex.D-1 is the notice for
arrears of tax given by Municipal Corporation, Rajnandgaon and
the said notice does not bear his signature as receiver of notice
and it was in the name of Ram Sewak Das, Bhagwat Das. He
further admitted the fact that he has not paid the amount of
Rs.87,913/- as demanded the bill. He has admitted the fact that
in municipal records, the said suit property is still recorded in the
name of Ram Sewak and the defendant does not hold any receipt
about payment of taxes.
17. The further claim of defendant is that they were in possession of
the suit premises and were paying the electricity bill and exhibited
3 electricity bills vide Ex.D-2, D-3 and D-4. A perusal of these
electricity bills would show that it was in respect of a Single Phase
Meter Metre whereas at para 24, D.W.1 has stated that the place
which was reflected in electricity bills Ex.D-2, D-3 & D-4 is in front
of mosque. He has admitted the fact that a three phase Electricity
was installed in the name of Ram Sewak Das, but thereafter he
stated that a single phase connection was installed in the name of
Ram Sewak Das and two Metres were installed in the suit
premises. Whereas a perusal of Ex. D-2, D-3 & D-4 would show
that it was in the name of Yusuf Gouri. Further the bills pertain to
2017-2018, therefore, it cannot be inferred through electricity bills
that the premises was in possession of defendants. Consequently,
the inference would be that if the Metre was in the name of Ram
Sewak in respect of suit premises and when the defendant claimed
his possession on the basis of electricity and municipal bills of
2017-2018, then how it can be inferred that defendant no.1 was in
possession of subject suit premises long back since 1991.
18. Further the evidence of P.W.1 when is examined, it makes a
reference to the order of First Civil Judge Class I, Rajnandgaon,
which is an order passed in Civil Suit No.5-A/2003 dated on
01.05.2004 and marked as Ex.P.4. The said Civil suit was fled by
Mahant Dharmendra Das, the seller against one Dr. Surekha
Shrote. The trial Court recorded that defendant Dr. Surekha has
handed over the possession of suit premises and paid the rent. A
perusal of the order would show that the suit was filed for
ejectment and arrears of rent was claimed uptill July 2003 by
Mahant Dharmendra Das in the capacity of landlord. The
necessary inference, therefore, would be that in respect of
premises wherein the defendant claimed to be in possession since
1991, an eviction suit was filed by the erstwhile owner Mr.
Dharmendra Das against tenant and thereafter the suit premises
was got vacated. So, the claim of defendant no.1 that he was in
possession of the suit premises since 1991 is negated and
falsified. This fact is further fortified by examination of the
statement of Yusuf Gouri (D.W.1) wherein at Para 12 of the cross
examination, it is stated that before 7-8 years of the date of such
statement, a Mosque situated at Gol Bazar was reconstructed and
in the front portion of the mosque, he was residing in rented
premises of Mosque and he had electricity in the rented house of
mosque. Therefore, the reference to Ex.D-2 to D-4 can be related
to such statements which shows that the electricity bills were in
the name of Yusuf Gouri and the statement which was recorded in
2022 would only falsify the claim of possession by defendant since
1991.
19. The defendant witness namely Narendra Singh (D.W.2) and Shekh
Anwar (D.W.3) in their statements have deposed that
reconstruction of mosque was done in the year 2010 and in the
lane adjacent to it, Yusuf Bai used to keep the cotton mattresses,
and thereafter he shifted in the adjacent shop. Likewise, D.W.3
has stated that Yusuf Gouri was actual tenant in the shop of
mosque. When these statements are read with pleadings and
statement of P.W.1 wherein she stated that on certain point of
time she allowed defendant No.1 to keep his goods in the
premises appears to be more logical and acceptable evidence to
hold that defendant no.1 was never in possession of the suit
premises since 1991. Therefore, the findings recorded by the
learned court below appears to be justified.
20. Now further coming to another aspect about the counter claim,
defendant no.1 had stated that since 1991 he was in possession of
the suit premises with the permission of Mahant Ram Sewak Das,
therefore, he has become the owner on the basis of adverse
possession. The counter claim further pleaded that the seller
Dharmendra Das, who sold the property to the plaintiff also never
objected to such possession and it is pleaded that by virtue of
adverse possession, since he was in possession long-back from
1991, he would become the absolute owner as against
Dharmendra Das too. Reading of such pleading along with
statement would show that at one point of time, the defendant has
raised the plea of ownership by virtue of adverse possession and
tried to establish ownership on other. The Supreme Court in
Narasamma Versus A. Krishnappa (dead) through L.Rs.
(2020) 15 SCC 218 has observed that simultaneously the pleas
on title and adverse possession are mutually inconsistent and will
remain as contradictory pleas. In this behalf, the Court referred to
four earlier decisions, which succinctly set forth the legal position.
Paras 32, 33, 34 & 35 are relevant here and quoted below :
"32. The question which confronts us is not the aforesaid, but
whether simultaneously a plea can be taken of title and adverse
possession i.e., whether it would amount to taking contradictory
pleas. In this behalf, we may refer to the four judgments cited by
the learned counsel for the respondent herein, which succinctly set
forth the legal postion.
33. In Karnataka Board of Wakf vs. Union of India
(2004) 10 SCC 779 it has been clearly set out that a plaintiff filing
a title over the property must specifically plead it. When such a
plea of adverse possession is projected, it is inherent in the nature
of it that someone else is the owner of the property. In that
context, it was observed in para 12 that "..... The pleas on title and
adverse possession are mutually inconsistent and the latter does
not begin to operate until the former is renounced."
34. The aforesaid judgment in turn relied upon the
judgment in Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639,
which observed in para 4 as under : (SCC pp. 640-41) :
"4. As regard the first plea, it is inconsistent with the
second plea. Having come into possession under the
agreement, he must disclaim his right thereunder and
plead and prove assertion of his independent hostile
adverse possession to the knowledge of the transferor
or his successor-in-title or interest and that the latter had
acquiesced to his illegal possession during the entire
period of 12 years i.e. upto completing the period of his
title by prescription nec vi, nec clam, nec precario.
Since the appellant's claim is founded on Section 53-A,
it goes without saying that he admits by implication that
he came into possession of the land lawfully under the
agreement and continued to remain in possession till
date of the suit. Thereby the plea of adverse possession
is not available to the appellant."
35. In order to establish adverse possession, an inquiry is
required to be made into the starting point of such adverse
possession and, thus, when the recorded owner got dispossessed
would be crucial. Please see P.T. Munichikkanna Reddy v.
Revamma (2007) 6 SCC 59."
(Emphasis supplied)
Since the inconsistent pleas were taken, as per the admission
exists of defendant no.1, the plaintiffs' rights cannot be denied in
respect of his property which was acquired by Ex.P-1 and vesting
of ownership to the exclusion would be in favour of plaintiffs by
virtue of sale deeds.
21. During the course of submission before this Court, time and again
it was raised that there was no cause of action against the
defendant to file suit by the plaintiff. P.W.1 in the pleading and
deposition has stated that when appellant/defendant no.1
encroached upon the 1st floor and 2nd floor and thereafter
inducted others into possession, the permissive possession was
cancelled and by notice vacant possession was sought for. The
notice dated 13.02.2017 Ex.P.12 followed by the postal receipts
Ex.P-13, P-14 & P-15 and acknowledgements Ex. P-16 & P-17 have
been placed on record. A perusal of the said notice would show
that the licence given to defendant was cancelled and the vacant
possession of the suit premises was sought for.
22. Admittedly, after the license was revoked the position of the
defendant would become that of trespasser and the occupancy
would be illegal. This fact cannot be ignored that the defendants
are in possession of the suit premises despite the fact that plaintiff
purchased the same in the year 2008. Drawing the analogy laid
down by Hon'ble Supreme Court in case of Martin & Harris
Private Limited Versus Rajendra Mehta 2022 SC OnLine SC
792 and in Indian Oil Corporation Ltd. Versus Sudera
Realty Private Limited, the appellant in the instant case after
expiry of termination of licence and enjoying the fruits of the
property certainly has deprived the legal owner of enjoying the
fruits of property. Therefore, in the considered opinion of this
Court the plaintiffs/respondents 1 & 2 (herein) would be entitled to
get mesne profits. In view of the same, the cross objections filed
by respondents 1 & 2 is allowed and we direct that an amount of
Rs.5000/- per month would be paid as mesne profit from
13.02.2017 till the premises got vacated from the respondents.
23. In a result, the appeal preferred by the appellant sans merit and is
dismissed and the cross objection of respondents 1 & 2 is allowed
to the above extent.
24. In the facts of the case, the appellant shall bear the cost of the suit
and appeal. Accordingly, a decree be drawn.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Rao
HEAD-NOTES
(1) Merely on the basis of electricity and municipal bills
produced, it cannot be inferred that the tenant was in
possession of the suit premises since long back to claim his right
as a liicensee.
vuqKfIr/kkjh ds :i esa vius vf/kdkj dk nkok djus ds fy, fctyh ,oa uxj
fuxe ns;dksa ds izLrqrhdj.k ek= ds vk/kkj ij ;g vuqekfur ugha fd;k tk
ldrk fd fdjk;snkj yacs le; ls oknxzLr ifjlj ds vkf/kiR; esa FkkA
(2) The pleas on title and adverse possession are mutually
inconsistent and the latter does not begin to operate until the
former is renounced.
tc gd ,oa izfrdwy dCts ds laca/k esa fd;k x;k vfHkopu ijLij vlaxr gks]
,slh fLFkfr esa mRrjorhZ ¼izfrdwy dCtk½ rc rd izofrZr ugha gksxk tc rd
iwoZorhZ ¼gd½ dk R;tu ugha gks tkrkA
(3) In order to establish adverse possession, an enquiry is
required to be made into the starting point of such adverse
possession and, thus, when the recorded owner got
dispossessed would be crucial.
izfrdwy dCts dks izekf.kr djus gsrq] ,sls izfrdwy dCts dk izkjafHkd fcanq ls
tkWp fd;k tkuk vko';d gS rFkk ,sls dCts ds laca/k esa vfHkys[k ij ukfer
Lokeh dc ls csn[ky gqvk gS] ;g ns[kuk Hkh egRoiw.kZ gksxkA
