Rajasthan High Court
Shakir Hussain Son Of Ali Mohammad vs Altaf Hussain Son Of Ali Mohammad on 27 June, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 252/2020
1. Shakir Hussain Son Of Ali Mohammad, House No. 141-C,
Indra Gandhi Kachchi Basti, Vigyan Nagar, Kota.
2. Sharifan Wife Of Shakir Hussain, House No. 141-C, Indra
Gandhi Kachchi Basti, Vigyan Nagar, Kota.
----Appellants
Versus
Altaf Hussain Son Of Ali Mohammad, House No. 141-C, Indra
Gandhi Kachchi Basti, Vigyan Nagar, Kota.
----Respondent
For Appellant(s) : Mr. Naseemuddin Qazi
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
27/06/2022
1. Appellants-defendants have filed this second appeal under
Section 100 of CPC assailing the judgment and decree dated
29.02.2020 passed in Civil First Appeal No.21/2018 by the court of
Additional District & Sessions Judge No.3, Kota affirming the
judgment and decree dated 23.01.2018 passed by the court of
Additional Senior Civil Judge No.6, Kota in Civil Suit No.46/2015
whereby and whereunder civil suit filed by respondent-plaintiff for
declaration and possession has been decreed against appellants.
2. Heard learned counsel for appellants and perusal of both
impugned judgments.
3. It appears that the dispute is between father and son,
appellant-defendant No.1 is son of respondent and having
possession over one room, kitchen, Varanda at first floor in the
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House bearing No.141-C Indra Gandhi Kachchi Basti, Vigyan
Nagar, Kota.
4. Respondent-plaintiff claimed that the said property was
purchased by him and was allotted by the Urban Improvement
Trust, Kota through registered patta (Exhibit-1) and he permitted
his son (defendant No.1) to reside in portion of the house at first
floor.
5. It appears that defendant started to create hindrance in
peaceful life of plaintiff and also claimed his ownership over the
property in question, plaintiff instituted the present suit for
declaration and possession.
6. The trial court on rival pleadings of both parties settled the
issues and recorded the evidence of both parties.
7. Plaintiff produced the registered patta (Exhibit-1 & Exhibit-
2). In rebuttal, defendant No.1-son alleged that he incurred some
amount in raising construction of the house and therefore, he is
also co-owner of the suit property.
8. It is not in dispute that the title of document of the suit
property stands in the name of plaintiff-father and defendant
No.1-son has no documentary evidence either to show his title or
to prove that he incurred any amount in raising construction.
9. The trial court, on the strength of documentary evidence,
observed that the plaintiff is absolute owner of the suit property
and defendant is residing in the portion of the suit property with
plaintiff's permission as licensee. The plea of defendant that he
incurred some amount in raising construction of house was turn
down due to lack of evidence and in absence of evidence to
controvert documents of plaintiff, following the principle of
Sections 91 and 92 of the Evidence Act. The trial court, vide
(3 of 4) [CSA-252/2020]
judgment dated 23.01.2018 decreed the plaintiff's suit and
directed the defendant to hand over the vacant possession of the
portion of the plaintiff's house.
10. The defendant preferred first appeal challenging the
judgment and decree dated 23.01.2018 and the first appellate
court, re-appreciated the evidence and re-heard the matter as a
whole and found that the title documents of the property stands in
the name of plaintiff and defendant is in possession as licensee
with permission of plaintiff.
11. Having considered the relationship between parties and as
per material available on record, the first appellate court
concurred with the fact findings recorded by the trial court and
dismissed the first appeal vide judgment dated 29.02.2020.
12. Learned counsel for appellants, during course of appeal
raised an argument that even if defendant would be treated as
licensee in the suit property however, since he incurred some
expenses in raising the construction of permanent nature
therefore, by virtue of Section 60 of the Easement Act, 1882, his
licence has become irrevocable. It appears from the record that no
such defence was taken by defendant in his written statement,
rather the defendant contested the suit claiming his co-ownership
in the suit property. The defendant cannot be allowed to take a
new defence at the stage of second appeal which is unfounded
and foreign to the pleadings. Once the defendant has taken a
defence of claiming co-ownership, he cannot be allowed to take a
different stand at the stage of second appeal.
13. This Court finds that both courts below, placing reliance of
Sections 91 and 92 of the Evidence Act has recorded fact findings
that on the basis of documentary evidence the plaintiff (father) is
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owner of the suit property and further on the basis of evidence
has observed that defendants (son and son's wife) are having
possession as licensee with permission of father, this Court does
not find any illegality, perversity or jurisdictional error in the
decree impugned. Both the impugned judgments and decree are
based on appreciation of evidence and within parameters of law.
No substantial question of law is found to be involved in the
present appeal, hence the second appeal is dismissed.
14. However, considering the fact that appellant No.1 is son of
the respondent and residing on first floor with his wife, three
months time is granted to appellants to vacate and hand over the
possession to the respondent-plaintiff. In case, the appellant
would not vacate the property by his own, the respondent would
be free to proceed for execution of the decree.
15. Stay application as well as any other pending application(s),
if any, stand(s) disposed of.
(SUDESH BANSAL),J
SAURABH/16
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