BHAGAT RAM v. RAKESH KAPOOR — 1980 DIGILAW 47 (HP)

JUDGMENT V. P. Gupta, J. —This regular second appeal has been filed by Bhagat Ram defendant-appellant against the judgment and decree passed by the Additional District Judge, Mandi dated 22nd June, 1979, by which the appeal of the appellant has been dismissed and the judgment and decree passed by the Additional Sub-Judge, Mandi, dated 30th October, 1978 decreeing the suit of the plaintiff-respondent has been affirmed. 2. The brief facts of the case are that Rakesh Kapoor plaintiff filed a suit for mandatory injunction against Bhagat Ram defendant to the effect that the defendant be directed to vacate permanently the land described in the plaint along with the house and the cow-shed situate on this land, and also to return the tools and plants, etc. described in the plaint or to pay Rs. 100/-in lieu of these tools and plants, and not to interfere with the plaintiffs possession on the said land, the house and the cow-shed. The allegations in the plaint are that the plaintiff is the owner in possession of 32-12-10 bighas of land situate in village Panjheti, Tehsil Saddar, District Mandi, as detailed in the plaint that the defendant was appointed as a servant by the plaintiffs father to look after the disputed land and a regular agreement was executed by the defendant on 24th February 19 ?2 for this purpose, according to which the services of the defendant were for a period of one year and the term of the defendants service expired on 23rd February, 1973 and that thereafter the plaintiff requested the defendant to hand over the possession of the property as well as the tools, etc. to the plaintiff and even a notice was issued to the defendant to perform his obligation as a servant on 30th March, 1973, but the defendant did not concede to the plaintiffs request. The plaintiff has further alleged that the defendant was only a servant and he was in occupation of the disputed property as a licensee and as such on the expiry of the date of the licence the defendant is under an obligation to perform his duty and to hand over the possession of the disputed property to the plaintiff. This suit was filed on 19th April, 1973 in the court of the Senior Sub-Judge, Mandi. 3. This suit was filed on 19th April, 1973 in the court of the Senior Sub-Judge, Mandi. 3. The suit was contested by the defendant-appellant, and it was alleged that the suit is not maintainable in the present form, that the plaintiff has no enforceable cause of action, that the suit is bad for non-joinder of parties, that the relationship of landlord and tenant existed between the parties and as such the jurisdiction of civil court is barred, and that the valuation for purposes of court-fee and jurisdiction is incorrect. It was also alleged that the defendant never executed the alleged agreement, dated 24th February, 1972, that the defendant, in fact, is in possession of the land as a tenant on payment of 1/4th of the produce as rent, that the alleged agreement, if any, is a result of fraud and misrepresentation and that the defendant is an illiterate innocent man and the plaintiffs father being a clever man had been fraudulently getting thumb impressions of the defendant on certain documents, after telling the defendant that the same pertained to the clearance of receipt of rent of the produce. It was also asserted that the defendant had himself planted fruit trees and that he never agreed to get Rs. 400/- per annum, as salary. It was also alleged that the defendant filed an application for correction of revenue entries, when he came to know that his name has not been recorded in the revenue papers as a tenant, and that on this application the plaintiffs father put undue pressure upon the defendant through the police authorities so that the defendant may be compelled to give up the possession of the suit land and thus surrender the tenancy in favour of the plaintiff. It was also alleged that the construction of the house and the cattle-shed had been made by the defendant at his own costs and tools, etc. also belong to the defendant. All other allegations of the plaint were denied. 4. After replication the following issues were framed on 7th December, 1973 ; 1. Whether the suit is not maintainable in the present form ? (OPD) 2. Whether the plaintiff has no cause of action against the defendant ? (OPD) 3. Whether the suit is bad for misjoinder of parties, if so, its effect ? (OPD) 4. 4. After replication the following issues were framed on 7th December, 1973 ; 1. Whether the suit is not maintainable in the present form ? (OPD) 2. Whether the plaintiff has no cause of action against the defendant ? (OPD) 3. Whether the suit is bad for misjoinder of parties, if so, its effect ? (OPD) 4. Whether relationship of landlord and tenant exists between the parties and as such the court has no jurisdiction to try the present suit ? (OPD) 5. Whether the suit is properly valued for the purposes of court fee and jurisdiction ? If not, what is its valuation ? (OPP) 6. Whether the defendant was allowed to occupy the property in dispute till 23-2-73 as servant of the plaintiff as such a licensee ? (OPP) 7. Whether the defendant was to restore the suit property to the plaintiff after expiry of his terms of service ? (OPP) 8. Whether the plaintiffs father got some documents thumb marked by the defendant by fraudulent means, as alleged in para 3 of the written statement ? (OPD) 9. Whether the fruit trees on the suit land in dispute have been planted by the defendant ? If so, its effect ? (OPD) 10. Whether the cow-shed and the house in dispute had been constructed by the defendant at his own cost. If so, its effect ? (OPD) 11. Relief. 5. The parties went to trial in the court of Senior Sub Judge Mandi and during the course of the trial the case was entrusted to the court of Additional Sub-Judge Mandi on 7th April, 1976. 6. The Additional Sub-Judge, Mandi, vide his judgment and decree, dated 30th October, 1978, decided issues 5, 6 and 7 in favour of the plaintiff and against the defendant, and similarly issues 1 and 4, and 8 to 10 were decided against the defendant. On these findings the suit of the plaintiff was decreed. 7. The defendant filed an appeal before the District Judge, Mandi, against the judgment and decree of the Additional Sub-Judge, Mandi, and the appellate court also affirmed the findings of the Additional Sub-Judge and dismissed the appeal of the defendant-appellant on 22nd June, 1979. 8. I have heard Shri Manohar Lal Sharma Advocate for the appellant and Shri Kedar Ishwar Advocate for the respondent at great length. 9. 8. I have heard Shri Manohar Lal Sharma Advocate for the appellant and Shri Kedar Ishwar Advocate for the respondent at great length. 9. A preliminary objection was raised by the learned counsel for the respondent that this second appeal is not maintainable because the property involved in the suit is of the value of Rs. 350/- as has been mentioned in para 10 of the plaint and that both the courts below have come to a concur rent finding of fact. The learned counsel for the appellant contended that the real dispute in this appeal pertains to property worth more than Rs. 2,22,750/- and to substantiate this contention an application, CMP 669/80, under Order 41, Rule 27, C.P.C. read with section 151, C.P.C. was filed on 30th May, 1980. Reply to this CMP was filed by the plaintiff-respondent and in reply it was admitted that the property in dispute is worth more than Rs. 20,000/-. 10. After hearing the learned counsel for the parties and upon perusal of the plaint, the written statement and the grounds of appeal, I am of the view that this appeal is competent. The defendant-appellant has claimed the house and the cattle-shed to be his ownership in the written statement and the value of these two structures, as given out in the document of the Patwari attached with CMP 669/80, is Rs. 30,000/-. The application of the defendant-appellant, i.e. CMP 669/80, is also supported by an affidavit and the factum that the value of the disputed property is of more than Rs. 20,000/-is also admitted by the plaintiff-respondent in his reply to the CMP. 11. In view of these circumstances and the facts as narrated above the present appeal is competent under para 32 of the Himachal Pradesh (Courts) Order, 1948, and as such the preliminary objection raised by the respondents counsel is over-ruled. The CM.P. 66V/8O stands disposed of. 12. On merits, Shri Sharma, the learned counsel for the appellant firstly stated that he does not want to challenge the findings of the courts below on issues 1 to 3 and 5 and that he was only challenging the findings of the courts below on issues 4 and 6 to 10, meaning thereby that Shri Sharma firstly conceded that the form of the suit and the amount of court-fee affixed on the plaint is correct. However during the course of arguments, Shri Sharma wanted to contest the findings of both the courts below on all the issues and prayed that his concession with respect to the conceding of issues 1 to 3 and 5 be treated as withdrawn, la such circumstances, Shri Sharma was allowed to argue the case on all the points upon which he wanted to address the arguments. 13. The first contention of Shri Sharma was that the frame of the suit is bad and that the suit is not maintainable for mandatory injunction because the plaintiff was not in possession of the suit property and after the expiry of the licence (even if the allegations of the plaintiff with respect to status of defendant as licensee are taken to have been proved) the possession of the defendant-appellant is that of a trespasser and, therefore, the suit should have been for possession and not for mandatory injunction. On the basis of this contention, he further developed his argument and contended that for a suit for possession, the court-fee should have been fixed on the market value of the house and the cattle-shed and with respect to the agricultural land assessed to land revenue on 10 times the land revenue. The next contention of Shri Sharma was that the defendant-appellant is a tenant of the suit land and is not a licensee/servant of the plaintiff and that the agreements produced by the plaintiff have been got executed by fraud and mis representation and are very suspicious documents. He has further referred to the statements of various witnesses produced by the parties to substantiate his contention and has also referred to documents produced by the parties. 14. The learned counsel for the respondent on the other hand contended that a suit for mandatory injunction is quite competent in the circumstances of the present case and that the valuation fixed for the purposes of court-fee and jurisdiction is also correct. It was further contended that the defendant- appellant was a licensee/servant and was not a tenant of the suit property. It was also contended that both the lower courts have arrived at concurrent findings after appreciation of the evidence and as such these findings should not be disturbed lightly. 15. I have carefully considered the contentions of the learned counsel for the parties and have also gone through the record^ of the case. 16. It was also contended that both the lower courts have arrived at concurrent findings after appreciation of the evidence and as such these findings should not be disturbed lightly. 15. I have carefully considered the contentions of the learned counsel for the parties and have also gone through the record^ of the case. 16. To decide as to whether the suit has been correctly valued for the purposes of court-fee and jurisdiction, the allegations in the plaint have to be looked into, and if it is held that the suit for mandatory injunction is competent then the valuation put by the plaintiff on the plaint will be deemed to be correct, because in that case the suit will be governed under the provisions of section 7 (iv) (d) of the Court-fees Act. On the other hand, if it is held that the suit for mandatory injunction is not competent and that only a suit for possession is to be filed then the valuation has to be calculated in accordance with section 7 (v) of the Court-Fees Act. The learned counsel for the parties are also in agreement on this legal aspect and, therefore, the only matter to be decided is as to whether the suit for mandatory injunction as framed in the present case is competent or not. In view of the above admitted position, I will now deal with the fact as to whether a suit for mandatory injunction against the defendant who is alleged to be a licensee by the plaintiff is maintainable or not. The learned counsel for the appellant in support of his contention has relied upon Jagdish Chandra Ghose und others v. Basant Kumar Bose and another, [AIR 1963 Patna 308], and has contended that even if the allegations of the plaint are taken to be correct, then too, after the termination/revocation of the licence the possession of the defendant is that of a trespasser and the plaintiff has to sue for possession and has to pay court-fee in accordance with the provisions of section 7 (v) of the Court Fees Act and a suit for mandatory injunction is not maintainable. From the respondents side the authorities which have been relied upon are Prabirendra Nath Nanday and another v. Narendra Nath Nanday [AIR 1958 Calcutta 1/9], Delhi Gate Service Private Ltd. v. M/S Caltex (India) Ltd, New Delhi [AIR 1962 Punjab 370], Pooran Chand and another v. Malik Muhhbain Singh, [1963 P.L.R. 490] and Th. MiIkha Singh and others v. Th. Diana and others, [AIR 1964 Jammu & Kashmir 99], and on the basis of these authorities it was contended that the suit for mandatory injunction is maintainable and the court-fee has been correctly paid. 17. It may be mentioned here that the Calcutta case of Prabirendra Nath Nanday and anothers (supra) has been considered in the Patna case Jagdish Chandra Ghose and others (supra) and it was held that a suit for recovery of possession is competent against a licensee after the termination of the licence as a licensee is a trespasser after the termination of the licence. 18. In Th. Milkha Singh and others case {supra) all the authorities of Prabirendra Nath Nanday and another ; Jagdish Chandra Ghose and others ; and Delhi Gate Service Private Ltd. (supra) have been referred to and discussed. 19. In Th. Milkha Singh and others case (supra) the matter as to whether a suit for mandatory injunction is maintainable or not has been discussed at great length by a Division Bench of that Court and similarly the matter of court-fee which is to be revived on the plaint in such a case has also been discussed in detail. 20. I have gone through the various authorities referred to above and I am inclined to agree with the view which has been adopted by the Jammu & Kashmir High Court in Th. Milkha Singh and others case (supra), and which view has also been followed by the Punjab High Court in Delhi Gate Service Private Ltd., and Pooran Chand and anothers case (supra) 21. In the present case the plaintiff has alleged that the possession of the defendant was that of a licensee and that the terms of this licence expired on 23rd February, 1973 and thereafter the plaintiff has a right to compel the defendant to perform his part of the obligation for putting the plaintiff in possession of the property over which the defendant was enjoying possession with the permission of the plaintiff during the tenure of the licence. This suit was filed on 19th April, 1973, i.e. soon after the expiry of the period of licence and the service of notice upon the defendant. The plaintiff cannot be said to be negligent or having delayed the filing of the suit. 22. Section 39 of the Specific Relief Act reads as follows ; "39. Mandatory injunction.—When, to prevent the breach of an obligation it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts." It is a settled law, that a licensee has no interest in the land and that the possession of a licensee is purely permissive. The licence does not create any estate or interest in the property to which it relates and it only makes an act lawful which without the licence would be unlawful. In such a situation the status of licensee is quite different from that of a trespasser or a tenant. In the case of a licence the actual occupation will be with the licensee but the control or the possession of the property is in fact with the licensor through such a licensee, 23. As the possession or occupation of the licensee is purely permissive under the contract during the continuance of the licence, therefore, the licensee is under a legal obligation to restore the possession of the property to the licensor after the termination of the licence under section 39 of the Specific Relief Act and the licensor can definitely claim the right to enforce the performance of this act/obligation from the licensee. The authority, Jagdish Chandra Ghose and others (supra) referred to by the learned counsel for the appellant also states that it is only after the expiry of a reasonable time from the date of the revocation of the licence that the possession of the licensee will be treated as that of a trespasser. It is nowhere stated as to what is the reasonable time which is referred to in this authority. It is nowhere stated as to what is the reasonable time which is referred to in this authority. A simple reading of this authority clearly leads one to the conclusion that even the Honble Judges of the Patna High Court were also of the view that a licensor has a right to claim the relief by way of mandatory injunction if a suit is filed within a reasonable time after the termination/revocation of the licence. 24. In my view, as stated above, the licensee being under a legal obligation to surrender the possession of the property to the licensor in accordance with the terms and conditions of the licence after the termination/revocation of the licence, cannot be deemed to be a trespasser. 25. In view of the above discussion, I hold that in the present case on the allegations of the plaint, a suit for mandatory injunction is competent and maintainable against the defendant and as such this contention of the learned counsel for the appellant has no force. As a suit for mandatory injunction against the defendant is maintainable, therefore, the plaint is also held to be properly valued and, therefore, the findings of the courts below on issues 1 and 5 are confirmed. 26. The learned counsel for the appellant did not assail the findings of the courts below on issue 2 and 3, and as such the finding on these two issues are also confirmed. 27. On merits, the learned counsel for the appellant has contended that the defendant is an illiterate person and that he had been made to thumb mark the various documents/agreements under fraud and misrepresentation. It was also contended that the amount of Rs. 400/-, which is alleged to be payable to defendant as wages, is a very petty amount and that no person could have accepted such a paltry amount and the very fact that the defendant accepted this amount made all the documents/agreements very suspicious. The learned counsel for the appellant also laid much stress upon the fact that the wages of laborers are very high and that the plaintiff had, in fact, been taking the produce of the land from the defendant on batai basis. On these grounds the learned counsel for the appellant contended that the defendant is, in fact, a tenant of the disputed property and is not a licensee of the same. On these grounds the learned counsel for the appellant contended that the defendant is, in fact, a tenant of the disputed property and is not a licensee of the same. 28, The documents produced on the file prove that for the first time the defendant entered into an agreement in 1964 vide Exhibit PW14/A and agreed to receive a fixed salary for working on the land as a servant and thereafter every year fresh agreements were being executed by the defendant from the year 1965 to 1972. The latest agreement is dated 24th February, 1972 (Exhibit PW 9/1). The persusal of the contents of the agreements executed by the defendant on various dates in different years leads one to the irresistible conclusion that the same are the outcome of the free will of the defendant. One can believe that a single document was got executed by fraud or misrepresentation but it is not at all believeable that the defendant would execute agreement every year and that repeatedly fraud or misrepresentation would be exercised upon the defendant. There is nothing to prove that the said agreement, Exhibit PW 9/1, dated 24th February, 1972, or the agreements of earlier years were executed under fraud or misrepresentation. As the agreements are not held to be executed under fraud or misrepresentation, therefore, the terms of the agreements) are to be referred to for finding out as to whether the defendant is a licensee or a tenant, and if the terms of the documents are clear and unambiguous then no other oral evidence can be looked into. From the terms of the agreement, Exhibit PW 9/1, dated 24th February, 1972 produced on the record, it can safely be concluded that the defendant had accepted his possession as a licensee (servant) on the suit property. Even the agreements which were executed by the defendant in the earlier years from J964 onwards, also prove that the status of the defendant was that of a servant (licensee) and not that of a tenant. The oral evidence of the defendant to the effect that he had been paying rent by division to the plaintiff or to his father is inadmissible and is otherwise insufficient to rebut the overwhelming documentary evidence which has been produced and proved by the plaintiff. The oral evidence of the plaintiff is also on conformity with the documentary evidence. The oral evidence of the defendant to the effect that he had been paying rent by division to the plaintiff or to his father is inadmissible and is otherwise insufficient to rebut the overwhelming documentary evidence which has been produced and proved by the plaintiff. The oral evidence of the plaintiff is also on conformity with the documentary evidence. The defendant has appeared in the witness-box as his own witness and he stated that he is a tenant of the suit land for the last 16 years on 1/4th batai rent but the possession of the defendant is nowhere recorded as a tenant in the revenue records and if the defendant had been in possession as a tenant for such a long period then the entries in the revenue record would have shown this status of the defendant and the silence of the defendant in not getting himself recorded as a tenant leads to the presumption that the defendant was not a tenant of the suit land. The defendant has led oral evidence to prove that he had been paying batai produce rent to the plaintiff but no receipt of rent has been produced and it is not believeable that the defendant would pay the rent without obtaining a receipt. The oral evidence of the defendant with respect to the payment of rent is also not convincing and the same is discrepant and unreliable as has been discussed by the courts blow. In the cross-examination, the defendant as D. W. has further stated that he neither purchased the stamp papers nor got any agreements executed. He has denied his thumb impressions on the agreements, which were proved by the plaintiff. The defendant has also stated that Tek Chand, the father of the plaintiff, never got his thumb impressions affixed on any papers and further that Tek Chand never got the thumb impressions of the defendant by practising fraud upon him or by stating that some receipts are to be taken from the defendant. In short, the defendant has stated that he never thumb marked any papers at the asking of Tek Chand. The defendant has also denied the contents of his written statement wherein it has been recited that some documents/agreements were got executed from the defendant under fraud and misrepresentation. He also denied the contents of the reply of the notice, Exhibit DW 11/A, which was given by him. The defendant has also denied the contents of his written statement wherein it has been recited that some documents/agreements were got executed from the defendant under fraud and misrepresentation. He also denied the contents of the reply of the notice, Exhibit DW 11/A, which was given by him. The defendant also stated that he (even at the time of his statement) was paying the produce of the land to the plaintiff. 29. A bare reading of the defendants statement clearly leads to the conclusion that he is trying to conceal the truth and is also suppressing the true facts by denying the averments made by him in his written statement and also by denying the contents of the notice which was given by him in reply to the plaintiffs notice. In any case, if the statement of the defendant is to be believed then he had not executed any agreements or even receipts with respect to the wages received by him. The plaintiff has proved all the documents by overwhelming, disinterested and reliable evidence and these documents are alleged to be thumb marked defendant. If actually these documents did not bear the thumb impressions of the defendant then the defendant could very easily get the thumb impressions on these documents compared with his thumb impressions and thus falsify the plaintiffs case. The defendant, however, took no such steps. The defendant, on the other hand, took a different stand in the written statement and did not stick to his pleadings while giving his statement in the court. In view of the above discussion, the only conclusion which can be arrived at is, that the defendant did execute the documents and the receipts which are duly proved by the plaintiffs witnesses and the plaintiff himself. The oral evidence of the defendant including his own statement is highly discrepant and is not worth believing. Both the lower courts have appreciated the evidence produced by the parties and have come to a concurrent findings of fact and there is no reason to disturb these concurrent findings of fact. Hence it is held that the possession of the defendant was that of a licensee only and that he has failed to prove his status as a tenant on the disputed property. 30. Hence it is held that the possession of the defendant was that of a licensee only and that he has failed to prove his status as a tenant on the disputed property. 30. The learned counsel for the appellant did not urge any other point and did not assail the findings of the courts below on any other issue. 31. The result, therefore, is that this appeal fails and the same is dismissed. The judgments and decrees passed by the courts below are affirmed. 32. The parties are left to bear their own costs throughout. Appeal dismissed.