Gokul vs Sunil
2023 Latest Caselaw 7314 MP

                                                               1
                            IN      THE       HIGH COURT OF MADHYA PRADESH
                                                    AT INDORE
                                                         BEFORE
                                           HON'BLE SHRI JUSTICE PRANAY VERMA
                                                    ON THE 4 th OF MAY, 2023
                                                SECOND APPEAL No. 1174 of 2022

                           BETWEEN:-
                           GOKUL S/O RAMLAL UJJAINIYA, R/O 33/2 VINOBHA
                           GALI, KHACHROD, DISTRICT UJJAIN (MADHYA
                           PRADESH)

                                                                                           .....APPELLANT
                           (BY SHRI GAGAN PARASHAR - ADVOCATE)

                           AND
                           1.    SUNIL S/O MADANLAL UJJAINIYA GANESH
                                 COLONY,   KHACHROD, DISTRICT  UJJAIN
                                 (MADHYA PRADESH)

                           2.    RAVINDRA S/O MADANLAL UJJAINIYA GANESH
                                 COLONY,   KHACHROD,  DISTRICT    UJJAIN
                                 (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (NONE)

                                 This appeal coming on for admission this day, th e court passed the

                           following:
                                                                ORDER

1. Heard on the question of admission.

2. This appeal has been preferred by the plaintiff under Section 100 of the CPC being aggrieved by the judgment and decree dated 02.08.2021 passed in Civil Appeal No.3/2001 by the District Judge, Khachrod, District Ujjain affirming the judgment and decree dated 09.09.2019 passed in Civil Suit No.1/2018 by the Civil Judge, Class-I, Khachrod, District Ujjain, whereby his

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 08-05-2023 16:30:50

claim for possession of the suit property from the defendants had been dismissed.

3. As per the plaintiff, he had given the suit property to the defendants for occupation as a licensee about 2 years prior to filing of the suit for keeping shoes and slippers. He is the owner of the entire house and is in possession of the remaining part. He wants to reconstruct the entire house hence terminated the license of the defendants by his notice dated 10.11.2017 and upon failure of defendants to vacate the suit property has instituted the claim

3. The claim was contested by the defendants contending that the entire house was earlier held by Madanlal, their father after which the same has

devolved upon the plaintiff and them. The plaintiff is not the sole owner of the house. The suit property was not given by the plaintiff to them on license and they are residing therein in their own right.

4. Courts below have dismissed the plaintiff's claim upon recording of finding to the effect that he has failed to prove that the suit property was given by him to defendants on license, hence the question of termination of the license and seeking possession from the defendants does not arise at all.

5. Learned counsel for the appellant submits that the Courts below have erred in dismissing the claim of plaintiff by ignoring the material evidence available on record. The factum of creation of license had been duly proved by the plaintiff which had been affirmed by the statement of his sister Leelabai (PW-3). The defendants have themselves admitted that they are having alternate accommodation and are residing over there. No evidence was led by them to prove their title to the portion in which they are residing nor has any finding being recorded by the Courts below as regards their title. The claim has hence been illegally dismissed.

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 08-05-2023 16:30:50

6. I have heard learned counsel for the appellant and have perused the record.

7. The claim had been instituted by plaintiff solely on the basis of contention of defendants to be his licensee in the disputed part of the house. The plaintiff as PW-1 in paragraph 15 of his deposition categorically admitted that defendants are residing in the disputed property since the time of their father. In view of such admission the creation of license as contended by plaintiff has rightly not been believed by both the Courts below. It is not a case of plaintiff that even though defendants had been residing since the time of their father but had subsequently accepted and admitted their possession in the suit property to be on the basis of a license and had admitted plaintiff to be their lessor. Since the creation of license itself has not been proved by plaintiff, the question of its termination and seeking possession from defendant does not arise. In view of categoric statement of the plaintiff himself the statement of his sister looses significance. Since the claim is by plaintiff for possession based upon license the fact of defendants having any other accommodation or failing to prove their title to the suit property is immaterial.

8. Thus the Courts below have not committed any error in dismissing the claim of plaintiff. Their judgments are based upon a thorough and proper evaluation of the entire oral as well as the documentary evidence available on

record. No fault can be found with their reasonings and findings. No substantial question of law arises for determination in this appeal which is consequently dismissed in limine.

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 08-05-2023 16:30:50

(PRANAY VERMA) JUDGE ns

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 08-05-2023 16:30:50