Judgment:
Ajay Tewari, J.
C.M. No. 1014-C of 2007
1. This is an application for leading additional evidence.
2. No reply has been filed by the respondent opposing the prayer made in the application.
3. In my opinion, this evidence having come into being during the pendency of this appeal, and that the certified copy of the statement suffered by the respondent himself being necessary to decide the real controversy between the parties, CM is allowed and Annexure A-1 is taken on record.
R.S.A. No. 3067 of 1985
4. This appeal has been filed against the judgment of the lower appellate Court modifying that of the trial Court and thereby dismissing the suit of the plaintiffs/appellants. Cross objections have been filed by the respondent against those findings of the lower appellate Court whereby lack of title in the respondent has been decided. However, it may be mentioned that the appeal was originally admitted on 12.12.1985 in the presence of counsel for the respondent but cross objections were filed only on 28.11.2006. Originally, the appeal had been allowed and the cross objections had been rejected but in SLP, the Hon'ble Supreme Court set aside the judgment of this Court since no substantial question of law had been formulated, and remanded the case back for decision after formulating substantial questions of law.
5. By way of C.M No. 7035-C of 2009, the following questions of law were pro-posed:
i) Whether the finding of the lower appellate Court under issue No. 4 that the suit is not maintainable in the present form is manifestly wrong and not sustainable in law?
ii) Whether the lower appellate Court was in error in reversing the findings of the trial Court under issues No. 4 and 5 on illegal, conjectural and erroneous grounds?
iii) Whether the lower appellate Court was justified, without reversing the findings of the trial Court on the question of relationship of the parties being that of a licencee and licensor and holding that the suit was not maintainable ?
iv) Whether the lower appellate Court erred in law in coming to the conclusion that a licencee did not exist and the present suit did not lie in its present form as also that the property has not been properly valued for the purposes of court fee?
v) Whether the finding recorded by the lower appellate Court on issues No. 4 and 5 regarding the maintainability of the suit and court fee are totally perverse and against evidence available on record and the same are liable to be set aside?
vi) Whether the lower appellate Court has wrongly interpreted the facts and law to give wrong finding under issues No. 4 and 5 that go contrary to the well established principles of law?
vii) Whether after giving up the plea of adverse possession and failing to prove that he is the owner of the property in dispute, the defendant-respondent could still contend that he is not a licensee?
viii) Whether the lower appellate Court has made out a case which was not pleaded by the defendant-respondent?
6. It is not disputed that both the Courts have held that the property in dispute was owned by the appellants and that the respondent was not able to establish his plea that the property in dispute was originally joint which had fallen to his share in a partition which took effect in Bhadon 1971.
7. As indicated above, the trial Court had decreed the suit of the appellants for mandatory injunction directing the respondent to vacate the premises in dispute, while the lower appellate Court even though confirmed the findings of ownership of the appellants held that the appellants had not been able to prove license in favour of the respondent and, thus, dismissed the suit on the ground of maintainability leaving the appellants to file a fresh suit for possession. It also deserves to mention here that in the written statement the respondent had taken the plea of exclusive ownership not only on the ground of partition but also alternatively on the ground of adverse possession. It is not disputed that during the first appeal, the respondent gave up the plea of adverse possession, thus, admitting that he had entered possession with the consent of the appellants.
8. Counsel for the appellants has argued that once it was held by both the Courts below that the appellants were owners of the property in dispute and the respondent had given up his plea of adverse possession it had to be held that he had entered into possession with the consent of the appellants and was, thus, an implied licencee. Reliance has been placed on Ram Sarup Gupta (Dead) by L.Rs v. Bishun Narain Inter College and Ors. 0043/1987 : (1987)2 S.C.C. 555, wherein the Hon'ble Supreme Court held as follows :
9. Licence as defined by Section 52 of the Act means grant of permission, by a person to the other, a right to do or continue to do, in or upon, the immovable property of the grantor, something which would, in the absence of such right, be unlawful. Such right does not amount to an easement or any interest in the property. The rights so conferred is licence. The grant of licence may be express or implied which can be inferred from the conduct of the grantor. Section 60 provides that a licence may be revoked by the grantor unless: (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the licence, has executed a work of permanent character and incurred expenses in the execution. Revocation of licence may be express or implied. Section 62 enumerates circumstances on the existence of which the licence is deemed to be revoked. One of such conditions contemplates that where licence is granted for a specific purpose and the purpose is attained, or abandoned, or if it becomes impracticable, the licence shall be deemed to be revoked. Sections 63 and 64 deal with licensee's right on revocation of the licence to have a reasonable time to leave the property and remove the goods which he may have placed on the property and the licensee is further entitled to compensation if the licence was granted for consideration and the licence was terminated without any fault of his own. These provisions indicate that a licence is revocable at the will of the grantor and the revocation may be expressed or implied. Section 60 enumerates the conditions under which a licence is irrevocable. Firstly, the licence is irrevocable if it is coupled with transfer of property and such right is enforced and secondly, if the licensee acting upon the licence 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 licence may enter into agreement with the licensee making the licence 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 licence irrevocable yet it may not be so if the parties agree to the contrary. In Muhammad Ziaul Haque v. Standard Vacuum Oil Co, the Calcutta High Court held that where a licence 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 licence which may not prima facie fall within either of the two categories of licence (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. Bombay High Court has also taken the same view in M.F.De Souza v. Childrens Education Uplift Society. The parties may agree expressly or impliedly that a licence which is prima facie revocable not falling within either of the two categories of licence 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 licence may be oral also in that case, terms, conditions and the nature of the licence, can be gathered from the purpose for which the licence is granted coupled with the conduct of the parties and the circumstances which may have led to the grant of the licence.
9. It is, thus, his argument that the learned lower appellate Court erred in dismissing the suit on the ground of maintainability.
10. Counsel for the respondent has argued that a conspectus of the entire evidence reveals that the property was joint atleast in the beginning. He has further argued that even if the respondent has not been able to establish his plea of partition of 1971 yet the record reveals that the property is joint and, thus, it cannot be held that the respondent is a licencee. Counsel for the respondent has relied upon Masjid Shahid Gary v. Siromani Gurdwara Parbandhak Committee, Amritsar A.I.R. 1938 Lahore 369. In the said case, the suit was filed on the allegations that the 'mosque' in question was in an unauthorised possession of the respondent therein and a suit for declaration and mandatory injunction was filed. It was in that context that the Full Bench held that the suit for mandatory injunction did not He since as per the Full Bench the defendants were in unlawful possession of the property in dispute. In the present case, the original possession of the respondent was not unlawful but was authorized. Consequently, the above said case is not applicable to the present controversy.
11. Counsel for the respondent has also placed reliance upon Abdul Nabi Sahib v. Bajan Sahib and Anr. A.I.R. 1944 Mad 221. In the said case, an agent had renounced the agency, set up title in himself as donee and by adverse possession. It was in that context that a suit for injunction was held to be not maintainable. In the present case, as indicated above, the respondent specifically gave up the plea of adverse possession. Counsel for the respondent has further placed reliance upon Hafiz Mohi-ud-Din v. Fatima Bano A.I.R. 1954 J&K; 38. In that case, as noticed by the J&K; High Court itself no question of possession arose. Consequently, the said judgment is not applicable to the present controversy.
12. On the other hand, learned Counsel for the appellants has relied upon Salochna Devi and Anr. v. Jagat Singh : (2000-2)125 P.L.R. 643, wherein a Single Bench of this Hon'ble Court held as follows:
11. It was found concurrently by the two Courts below on consideration of evidence that the plaintiff was owner of the site in dispute. He raised construction therein at his own expense and he had permitted the defendants who are his daughter and son-in-law to reside in these premises till they could arrange some other alternative accommodation. I do not think there was any misappreciation of evidence by them. Plaintiff's suit was quite maintainable as the defendants were mere licensees and the plaintiff was a licenser. In case of licensee, legal possession is with the licensor. It is only permission with the licensee to use the premises. A licensee continues at the will of the licensor. Said license is terminable at the will of the licensor.
13. Apart from this, it is also necessary to notice that by way of C.M No. l014-C of 2007, the appellants prayed for permission to lead additional evidence in the shape of a statement made by the respondent in another suit on 14.8.2003 urging that since this statement came into effect only during the pendency of the Regular Second Appeal, the same should be allowed to be read into evidence. The said statement along with its certified copy has been ordered to be taken on record as Annexure A-l. In the statement, the respondent has mentioned as follows :
No family partition of ours took place in Bhadon 1971. The house and shop located in the East were given to me by my brother Harish. No separate writing was executed. Harish and Subhash are the sons of my uncle....
14. In view of this categoric statement of the respondent and in view of his unequivocal stand in the written statement claiming exclusive ownership, I am constrained to reject the argument to the effect that the property in dispute still remains joint, since not only is contrary to the case set up in the written statement, it is also contrary (though in a difference sense) to the statement extracted above. In any case, the finding that the property is owned by the appellants exclusively is a pure finding of fact and counsel for the respondent has not been able to persuade me that the finding is either based on no evidence or is based on such misreading of evidence as would perverse the same. In my opinion, out of questions proposed, the only substantial question of law is question No. (vii). In regard to this question, the argument of counsel for the appellants has been extracted above. Counsel for the respondent has, however, argued that once no proof regarding the creation of licence or of any obligation cast on the respondent was led, it cannot be held that the respondent was a licencee. In my opinion, this is not so. Once the respondent specifically gave up his plea of adverse possession, it has to be held that he came into possession with the consent of the appellants and if that be so, it must be held that he would hold the property only during the pleasure of the appellants. It is not disputed that by notice dated 16.8.1978, the respondent was called upon to vacate the premises. In this view of the matter, I hold the proposed question No. 7 in favour of the appellants and against the respondent.
15. Consequently, this appeal is allowed, the finding of the lower appellate Court regarding maintainability of the suit is set aside and the judgment and decree of the trial Court to that effect is restored. The cross objections are rejected.
16. As the main appeal has since been disposed of, all the pending civil miscellaneous applications, if any, also stand disposed of.