Kumari Sushila Yadav vs Lt. Col. (Retd) Atul Chaudhary
2015 Latest Caselaw 3446 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Reserve: February 09, 2015
                                          Date of Decision: April 29, 2015


+     CS(OS) 364/2014

      KUMARI SUSHILA YADAV                    ..... Plaintiff
                   Through: Mr. Sanjeev Sindhwani, Sr. Adv.
                            with Mr. K. K. Sharma and
                            Mr.Ashutoh Chaudhri, Advocates.

                           Versus

      LT. COL. (RETD) ATUL CHAUDHARY             ..... Defendant
                      Through: Ms. Lata Krishnamurti, Ms. Pritha
                               Srikumar, Mr. Karan Kalia,
                               Mr.P.R. Mala and Mr. Pranav
                               Diesh, Advocates.

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

IA No. 12579/2014

1. This is an application filed by the plaintiff under Order 12 Rule 6 CPC seeking a decree of possession and leaving the issue of damages, mesne profits, etc. to be decided on merits.

2. The plaintiff has filed the accompanying suit seeking a decree of possession regarding the suit property bearing No. E-39A, East of Kailash, New Delhi-110065 and other reliefs of damages, mesne profits, etc. It is the contention of the plaintiff that she is a senior citizen aged 88

years and the absolute owner of the suit property vide perpetual lease deed dated 02.04.1971. The property was converted into a freehold vide conveyance deed dated 17.01.2005. As per the plaint in 2008 defendant No.1 who is the plaintiff's nephew (son of her elder brother) who was residing in Canada came back to India and on whose request, the plaintiff permitted defendant No. 1 to reside in a portion of the suit property as he had no suitable accommodation to reside in. He was said to have been residing in the front portion of the ground floor and lower ground floor. It is urged that the defendant became dishonest, broke upon the locks, illegally trespassed and took illegal possession of the front portion of the first and second floor of the suit property which was lying locked and started additions and alterations. Defendant No.1, it is stated, started construction on the third floor without the consent of the plaintiff contrary to the sanction plan. A complaint was filed with the MCD and the police. Appropriate authorities acted on the complaint and demolished the unauthorised construction. It is urged that the possession of the defendant is purely permissive and the defendants are living gratuitously. A notice was issued on 31.03.2012 whereby the plaintiff has withdrawn her consent/permission to use and occupy the premises. It is further urged that defendant No.1 is surreptitiously without the consent and knowledge of the plaintiff using the front portion of the first and second floor of the suit property as a Guest House and earning Rs.2 lacs per month depriving the plaintiff, a senior citizen of rental income. Hence, the present suit is filed.

3. The defendants have filed their written statement. They have defended the suit in the written statement essentially on the ground that

they have with the express consent of the plaintiff carried out works of permanent character on the suit property and have incurred heavy expenses. Hence it is argued that the license of the defendants is irrevocable under Section 60(b) of the Indian Easements Act, 1882. In the written statement, it is further averred that the property E-39 A, East of Kailash, New Delhi measures 460 sq. yards. It is admitted that the property stands in the name of the plaintiff. It is urged that the suit plot is divided roughly into two equal halves on which two distinct houses stand which accommodate the two respective families of the two brothers of the plaintiff. The plaintiff is an unmarried spinster. The Eastern Wing of the property is said to be in possession of the defendants and the other half portion which is called the Western Wing is in possession of the children of late Sh. Satish Chandra Yadav, the uncle of defendant No. 1 and the other brother of the plaintiff. It is urged that the plaintiff and defendant No.1 had a very cordial and close relationship. It is stated that the plaintiff has no children of her own and virtually raised defendant No.1, the elder brother's son as her own son. It is urged that the present suit is essentially instigated and is in reality being prosecuted by the wife and children of late Sh. Satish Chandra Yadav(younger brother of the plaintiff) who is the uncle of the first defendant. These persons, it is said, are residing in the Western Wing. It is urged that the plaintiff had two brothers and one sister. The sister late Ms. Saroj Nalini is also unmarried. The two brothers, late Sh. Surender Kumar Yadav, (defendant No.1 being the son of late Sh.Surender Kumar Yadav) and the other brother being late Sh.Satish Chandra Yadav. It is the family of late Sh. Satish Chandra Yadav who is said to be staying in the other half, namely, Western Wing

of the suit property. The father of the first defendant, namely, late Sh. Surender Kumar Yadav is said to have passed away on 16.11.1967 when the first defendant and his sister were minors. It is urged that the plaintiff has looked after the first defendant's affairs through his college days and even thereafter. The first defendant thereafter joined the army. The first defendant had a very close bonding with the plaintiff. It is urged that the plaintiff as she had no children of her own and in keeping with her late parents' wishes as regards distribution of the family's property, wished to eventually leave the suit property equally to her two nephews i.e. sons of her two respective brothers. The plaintiff represented to defendant No. 1 that since in any event eventually he would be entitled to a share in the property, she would permit him to put up construction on the site immediately and to reside there with his family. It is urged that relying on these representation and acting upon the license given by the plaintiff, the first defendant began investing his hard earned money in putting up permanent constructions on the Eastern Wing of the suit property. It is submitted that since the plot stood in the name of the plaintiff, plan sanctions and permissions were obtained in her name. However, the constructions have been put up by the first defendant out of his funds and that of his wife's fund. It is stated that in or around 1982 the first defendant and his family moved into the suit property. During this period though the first defendant was posted in the army and was posted in the border region but the family continued to reside in the suit property continuously from 1982-83. In 1982, the basement and ground floor of the Eastern Wing was constructed. In 1997 it is stated that the first defendant took voluntary retirement from the army and took up a job in

Canada. However, it is urged that despite working in Canada, the defendant continued to retain a portion of Eastern Wing where his belongings remained. It is urged that the tenant Balbir Verma vacated the portion of the Eastern Wing under his occupation in December 2007. The first defendant received the possession of the said portion from the tenant and acting upon the license granted by the plaintiff, the defendants have said to have undertaken further construction reducing the set back. At that time the first and second floor were also put up in the Eastern Wing. Second defendant, that is the wife of the first defendant is said to have looked after the new construction, procurement of materials and day to day supervision and hence it is urged that the entire building of Eastern Wing of the suit property from the basement upwards including ground, first and second floor have been built at the entire cost and expense of the defendants. Various documents are relied upon to show that the construction was carried out at the expense of the defendant.

4. In the present application, the plaintiff has urged that in the written statement the defendants have admitted that the plaintiff is the owner of the suit property and that the plaintiff has granted license to the defendants to use and occupy the suit property. Based on these admissions, it is stated that the present suit is liable to be decreed. Regarding the contention of the defendants of having raised construction on the suit property, this contention has been denied. It is stated that the plaintiff alone has raised the entire super structure of which she is the exclusive owner. It is stated that the falsity of the claim of the defendant is apparent as no proper records have been filed to show the amount spent on construction. Whatever documents have been filed pertains to

unauthorised and illegal construction being raised on the third floor and certain renovation work carried on other floors. Hence, it is urged that the defendants cannot take the benefit of Section 60(b) of the Indian Easements Act as the plaintiff has objected to the unauthorised construction being raised by the defendants.

5. Learned senior counsel appearing for the plaintiff has reiterated the averments made in the application. It is reiterated that in the written statement, the defendants admit the title of the plaintiff. It is pointed out that the defendants only tried to construct the third floor of the suit property which in 2010 was demolished by the MCD. The entire construction carried out, namely, the ground floor, first floor and second floor is done by the plaintiff. It is pointed out that the documents filed by the defendants to claim irrevocable license under Section 60 (b) of the Indian Easement Acts are sham. It is pointed out that from the year 2008 to 2014 the total withdrawal was only of Rs.52 lacs collectively for six years. Withdrawal roughly was about Rs. 70,000/- per month which is quite inadequate for carrying out any construction as claimed by the defendants. Regarding the bills filed, it is pointed out that there are only bills pertaining to 90 bags of cement. Some bills are for iron and wood. Bills, it is urged, are hence clearly a sham.

6. Learned counsel for the defendants has strongly argued that the license to construct was given by the plaintiff and in terms of Section 60(b) of the Indian Easements Act, the license of the defendants is irrevocable. It is repeatedly urged that the suit has been filed by the plaintiff at the instigation of other nephew, namely, the children of late Sh.Satish Chandra Yadav who are manipulating the present litigation.

Reliance is placed on the judgment of the Supreme Court in the case of Ram Sarup Gupta (dead) by LRs. vs. Bishun Narain Inter College & Ors., (1987) 2 SCC 555 to contend that the license of the defendants is irrevocable and the present eviction proceedings are misplaced. Reliance is also placed on the judgment of the Supreme Court in the case of Himani Alloys Limited vs. Tata Steel Limited, (2011) 15 SCC 273 to contend that the powers under Order XII Rule 6 CPC would not be applicable in the facts and circumstances of this case.

7. For the purpose of application of Order XII Rule 6 CPC, I may refer to the judgment of the Division Bench of this Court in the case of Vijay Mayne vs. Satya Bhushan Kumar 142 (2007) DLT 483 (DB) where in paragraph 12 this Court held as under:-

"12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncement as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely, in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their

detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored."

8. Reference may also be had to judgment of this Court in the case of Usha Rani Jain vs Nirulas Corner House Pvt.Ltd., ILR (2005) II DELHI 349 where in paragraph 18 the Court held as follows:-

"18. The object of Order XII Rule 6 CPC is to enable a party to obtain a speedy judgment, at least, to the extent of the admissions of the defendant to which relief the plaintiff is entitled to. The rule permits the passing of the judgment at any stage without waiting for determination of other questions. It is equally settled that before a Court can act under Order 12 Rule 6, the admission must be clear, unambiguous, unconditional and unequivocal. Admissions in pleadings are either actual or constructive. Actual admissions consist of facts expressly admitted either in pleadings or in answer to interrogatories. In a suit for ejectment, the factors which deserves to be taken into consideration in order to enable the Court to pass a decree of possession in favour of the plaintiff primarily are:- A. 1)Existence of relationship of lessor and lessee or entry in possession of the suit property by defendant as tenant;

B 2) Determination of such relation in any of the contingencies as envisaged in Section 111 of the Transfer of Property Act."

9. Hence, admissions can be inferred from vague and evasive denials or admissions can even be inferred from the facts and circumstances of the case. In the facts and circumstances of the present case, I am unable to persuade myself about existence of any admission which would entitle the plaintiff to a decree based on admissions.

10. The entire defence of the defendants centres around an irrevocable licence said to have been given under Section 60 (b) of the Indian Easements Act. Section 60(b) of the said Act reads as follows:

"60. License when revocable.- A license may be revoked by the grantor, unless:-

(a)...

(b) The licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution."

11. I may refer to the judgment of the Supreme Court in the case of Ram Sarup Gupta vs. Bishun Narain Inter College (supra). That was the case in which one Raja Ram Kumar Bhargava had permitted a society to run an English Middle School. The premises were permitted to be occupied by the school free of rent. With the passage of time and the School with its progress to meet the need of additional accommodation carried out constructions in the open land attached to the main building to provide class rooms and other facilities to the students. In the meantime, the said Raja Ram Kumar Bhargava sold the land to clear some of his debts. The purchaser of the land after having terminated the license of the school filed the suit for possession. It was in these facts that the Supreme Court held as follows:-

" 9. ....... Section 60 enumerates the conditions under which a license is irrevocable. Firstly, the license is irrevocable if it is coupled with transfer of property and such right is enforced and secondly, if the licensee acting upon the license executes work of permanent character and incurs expenses in execution. Section 60 is not exhaustive. There may be a case where the grantor of the license may enter

into agreement with the licensee making the license irrevocable, even though, neither of the two clauses as specified under Section 60 are fulfilled. Similarly, even if the two clauses of Section 60 are fulfilled to render the license irrevocable yet it may not be so if the parties agree to the contrary. In Muhammad Ziaul Hague v. Standard Vacuum Oil Company, 55 Calcutta Weekly Notes 232, the Calcutta High Court held that where a license is prima facie irrevocable either because it is coupled with a grant or interest or because the licensee erected the work of permanent nature there is nothing to prevent the parties from agreeing expressly or by necessary implication that licence nevertheless shall be revocable. On the same reasoning there is nothing to prevent the parties agreeing expressly or impliedly that the license which may not prima facie fall within either of the two categories of license (as contemplated by Section 60) should nevertheless be irrevocable. The same view was taken by Das, J. (as he then was) in Dominion of India v. Sohan Lal AIR 1950 EP 40. Bombay High Court has also taken the same view in M.F. De Souza v. Children's Education Uplift Society, AIR 1959 BOM 533. The parties may agree expressly or impliedly that a license which is prima facie revocable not falling within either of the two categories of license as contemplated by Section 60 of the Act shall be irrevocable. Such agreement may be in writing or otherwise and its terms or conditions may be express or implied. A license may be oral also in that case, terms, conditions and the nature of the license, can be gathered from the purpose for which the license is granted coupled with the conduct of the parties and the circumstances which may have let to the grant of the license.

....

12. ...... Reference was made to a number of decisions of the High Court in support of the proposition that a license is irrevocable under Section 60(b) of the Act only if three conditions are fulfilled, namely, (i) the licensee executed

work of a permanent character, (ii) he did so acting upon the license, and (iii) he incurred expenses in doing so. The onus of proving these facts lie upon the licensee and in the absence of any evidence on these questions the license could not be irrevocable under Section 60(b) of the Act......

.....

15. In view of the above discussion we are of the opinion that the pleadings, evidence and the circumstances available on record, have fully established that Raja Ram Kumar Bhargava had granted license to the school in respect of the building and the land attached to it for the purpose of imparting education and the school in furtherance of that purpose constructed additional buildings and it further incurred expenses in carrying out modification and extensive repairs in the existing buildings during the period, Raja Ram Kumar Bhargava continued to be the President of the Managing Committee of the school. He never raised any objection to it and there is nothing on record to show that licensor had retained right to revoke the license. If a person allows another to build on his land in the furtherance of the purpose for which he had granted license, subject to any agreement to the contrary (sic he) cannot turn round, later on, to revoke the license. This principle is codified is Section 60(b) of the Act. Moreover, conduct of the parties had been such that equity will presume the existence of a condition of the license by plain implication to show that license was perpetual and irrevocable. That being so, Raja Ram Kumar Bhargava could not revoke the license or evict the school and the appellant being transferee from him could not and did not acquire any better right. The appellant therefore has no right to revoke the license or to evict the school, so long the school continues to carry on the purpose for which the license was granted. The trial court and the High Court have therefore rightly dismissed the suit."

10. A reference may also be had to the judgment of this High Court in

the case of Bhupinder Singh Bhalla vs. Neelu Bhalla @ Neelam Singh, (2014) 207 DLT 572 where this court while dealing with an application under Order 12 Rule 6 CPC held as follows:-

"3. ..... The defendant avers that during the tenure of license, she constructed super structure with her own funds and resources, with the due authority of the plaintiff, at a cost more than Rs.50.00 lakhs and as such this license has become irrevocable as per Section 60of Indian Easement Act. In view of all these pleas taken by the defendant and her having filed a counter claim against the plaintiff, it cannot be said that the defendant had made unambiguous and unconditional and categoric admissions entitling the plaintiff to a decree under Order 12 Rule 6 CPC. The defendant has raised certain triable issues which could not be adjudicated without trial."

11. Keeping in view the above legal position under Section 60(b) of the Indian Easements Act, there are clear averments in the written statement which would require to permit the defendants to lead their evidence. The defendants have made a categorical averment that they have been given an oral licence. Pursuant to the oral license, it is stated that the Eastern Side portions i.e. the basement and ground floor were built by personal funds and contribution of defendant No. 1. The construction of the ground floor was said to have been completed in 1991-92. The first and the second floor, it is stated have been constructed fully by defendant No.1 in 2008-09 out of his funds transferred through banks by defendant No.1 from Canada. The construction, it is stated, was carried out by defendant and all this has been done with the consent of the plaintiff.

12. The plaintiff is an unmarried spinster who had two brothers.

Defendant No.1 is the son of one of the deceased brothers. The other half of the property is being utilised by the family of the other deceased brother who, it is claimed, are the force behind initiation of the present proceedings. It is urged that it was all along understood that the property would be equally enjoyed by the children of the two brothers and hence the entire defence is founded around the submission that the work of permanent character was executed on the suit property pursuant to a licence given by the plaintiff. The work was done acting upon the license and whose expenses have been incurred by defendant No. 1 from his own account.

13. No doubt the plaintiff has denied these facts. However, existence of the basement, ground, first and second floor and the fact that the defendants are in possession of the same are not in dispute. What is in dispute is as to who has constructed this area. No doubt onus to prove these facts as claimed by the defendants in the written statement would lie upon the defendants. However, this issue would necessarily have to go to evidence to permit the defendants to prove their contentions.

14. The plaintiff is unable to show any admission which would permit passing of a judgment at this stage without waiting for determination of the question raised by the defendants. The pleadings of the parties cannot lead to a conclusion that no defence has been raised by the defendants and that the right of the plaintiff to succeed has been unequivocally admitted by the defendants.

15. There is no merit in the present application and the same is dismissed.

CS(OS) 364/2014 List before the Joint Registrar on 26.05.2015, the date already fixed.

(JAYANT NATH) JUDGE APRIL 29, 2015 rb