Judgment:
Vijender Jain, J.
1. This appeal is filed by the appellant aggrieved by the judgment and decree passed by the trial court. Respondent filed a suit for possession. The respondent and the appellant are the sister-in-law and brother-in-law. The case of the respondent was that she was the owner of the property consisted of plot No.46 (Part), ad measuring 100 sq. yds approximately situated in Partap Nagar, Near Mayur Vihar Phase-1, Delhi having purchased from its previous owner Sh.Indraj Singh Verma in January, 1981.
2. The case of the respondent was that as the appellant was in personal difficulty in finding accommodation and was permitted to stay in the suit property temporarily as a licensee and till date he has not paid even a single penny for use and occupation of the suit property and when she had to marry her son she demanded the possession of the suit property which was denied by the appellant. A notice, thereforee, was issued on 5.3.1999 for termination of license and thereafter, the suit for possession was filed. Following issues were framed from the pleadings of the parties:-
1. Whether the suit of the plaintiff is properly valued for the purpose of court fee and jurisdiction? OPP.
2. Whether the property in question is purchased and owned by the deft as claimed in para 1 of preliminary objection of the WS? OPD.
3. Whether the plaintiff has validly terminated the tenancy of the deft? OPP.
4. Whether the plaintiff is entitled to the possession of the suit property? OPP.
5. Whether the plaintiff is entitled to damages, if so, at what rate and for which period? OPP.
6. Relief.
3. Mr.Vashisht, learned counsel appearing for the appellant, has contended that he filed an application under Order 41 Rule 27 CPC along with the appeal for leading additional evidence by way of oral examination of the remaining witnesses in terms of list of witnesses which was filed by the appellant before the trial court and he be given an opportunity to lead additional evidence. Another contention which has been raised before us by the counsel for the appellant was that assuming that it was a license, still the appellant, in view of the fact that respondent has allowed the appellant to construct on the property the same he would be covered under Section 60 of the Easements Act. In support of his contention learned counsel for the appellant has cited : AIR2000SC614 .
4. Let us first deal with the prayer of the appellant for leading additional evidence. The plaintiff's evidence was closed on 10.12.1998 and the case for defendant's evidence was posted for 19.1.1999. Thereafter, some amendment was sought by the appellant which was allowed by the trial court but the same order was set aside by the High court. Again the matter was listed for defendant's evidence on 26.7.2000.
5. We have perused the record of the trial court. Various opportunities was granted to the appellant to produce the evidence on 21.9.2000, 23.11.2000, 30.1.2001 and thereafter, on 15.03.2001 on which date the defendant was examined as DW-1. On all these dates the defendant neither summoned any witness nor he brought any witness as per the list. We have perused the order of trial court dated 15.3.2001. By recording all these dates in the order, trial court had observed that it was a ploy to delay the trial of the case and trial court held that the request for adjournment was tainted with mala fides and closed the evidence of the defendant. In view of various opportunities granted to the appellant by the trial court, where the appellant not only summoned the witness for date fixed he even did not bring any witness to support his case, the application filed along with this appeal is misconceived and to delay the hearing of the appeal, thereforee, we find no merit in the submissions of the counsel for the appellant and no case has been made out for leading additional evidence.
6. With regard to the next contention of learned counsel for the appellant that assuming that appellant was a licensee since he had constructed some portion on the land, Section 60 of the Easements Act will come into play, at the out set we must observe that no such pleadings or averments has been made by the appellant before the trial court. The application which was filed by the appellant for amending the written statement plea was taken to justify the possession by adverse possession that amendment was allowed by the trial court, however, the revision(CR No.394/99) filed against the said order was set aside by this court on the ground that a person who had come forward with a plea that he had acquired title by purchase cannot be heard to say that he had perfected title by adverse possession. Mr.Vashisht has contended that in the preliminary objections appellant has stated that the defendant had constructed two rooms on his own funds. Even said stand of the appellant dose not help the appellant. If we take into consideration pleadings of the appellant, appellant has been taking inconsistent pleas which have been discussed by the learned trial court in detail.
7. In para 13 of the impugned judgment while discussing issue No.2, the trial court had observed that in reply to the legal notice Ex.PW-1/6, the appellant has claimed that he had sent the reply Ex.PW-1/12, wherein the appellant had claimed that he became owner of the suit property as per family settlement. Thereafter, the appellant took up the position that the said plot was purchased by him from Sh.Indraj Singh Verma in the year 1981. The appellant specifically denied that he was the licensee under the respondent. On the other hand, respondent proved on record the agreement of sale Ex.PW1/3 and General power of attorney Ex.PW1/4. The receipt duly registered with the Sub Registrar showing that the amount paid to Sh.Indraj Singh Verma on the day, the agreement to sell and General Power of Attorney executed by Sh.Indraj Singh Verma in favor of the respondent. Thereafter, appellant wanted to take the plea of adverse possession by amending the written statement, which was not allowed by the High court. He is taking different stands. No evidence was brought before the trial court that the property was purchased by the appellant, thereforee, the trial court rightly held that at best his possession was that of a licensee. The authority cited by learned counsel for the appellant is of no help because in the said case a suit for injunction filed by the plaintiff on the ground of defendant being a licensee and in the written statement the defendant pleaded that he was not a licensee but a lessee. In such circumstances, the supreme court held that he may be entitled to benefit of Section 60(b) of Easements Act, 1882. No such plea has been taken by the appellant in the written statement and no such issue has been framed by the trial court. After the amendment having been set aside by the High court, appellant did not challenge the said order before the higher court.
8. In view of the facts and circumstances of the case, we do not find any force in the arguments of learned counsel for the appellant, that trial court having come to the conclusion that the appellant was a licensee ought to have declared that the said license was irrevocable. When the appellant has taken the plea that he was owner in possession of the suit property by virtue of family settlement and thereafter, when the appellant again has taken a plea that the property in question was purchased by him from Sh.Indraj Singh Verma there was no question on the part of trial court holding that the appellant was a licensee and that license was irrevocable. As a matter of fact appellant denied in the written statement that he was a licensee. If appellant was not a licensee as per his own stand how trial court could have declared the said license irrevocable. There is no substance in the arguments of appellant on this score also.
9. We have perused through the entire evidence, pleadings as well as judgment of the trial court. No evidence was brought before the trial court by the appellant which was pleaded in the pleadings or what has been argued before us by Mr.Vashisht.
10. We do not find any infirmity with the judgment passed by the trial court. There is no merit in this appeal. The same is dismissed.