Subal Chandra Das v. Dhirendra Chandra Das — 1984 DIGILAW 101 (CAL)

Judgment 1. THIS is an appeal from an appellate decree and it arises out of a suit for recovery of possession of two rooms in the disputed house in premises no. 103 Malllck Colony, p. S. Baranagore in the district of 24 parganas. 2. ONE Swarnamoyee Dasi was a resident of East Pakistan and she came to India as a refugee and lived as a squastter in Mallick Colony within the area of P. S. Baranagore. She came to India with her eledest son Profulla and the third or the youngest son, Dhirendra who is the plaintiff in the present suit. Her second son Amulya was in East pakistan till he came over to India in 1964. The defendants are the sons an wife of Amulya. The Government of west Bengal through the Secretary, refugee Relief and Rehabilitation Department issued a letter of authorisation to occupy a plot in the Squatters Colony being the disputed plot in favour of Swarnamoyee on certain terms and conditions. Thereafter Swarnamovee who bad funds of her own constructed two pucca rooms on the disputed plot in or about 1963 and lived there with her youngest son, the plaintiff. Her eldest son Profulla similarly got possession of another plot in the same colony. In 1964 Amulya came from East Pakistan and started living in one of the two; ground floor rooms in the disputed plot. In 1967 the plaintiff constructed one room with sp lit bamboo walls and roof partly of tins and partly of tiles in the disputed plot for use of Amulya's eldest son Subal (defendant no. 1) who got married. On 27.5.1968 a deed of gift was according to the plaintiff, duly executed by Swarnamoyee in favour of the plaintiff in respect of the disputed land and the structures thereon after it was read over to her and the deed was properly attested by two witnesses. Thereafter in 1969 the plaintiff constructed three rooms on the first floor of the pucca building in the disputed plot along with the stair case room over the roof. The plaintiff inducted tenants in one room in the ground floor and another room in the first floor and realised rent from them. His name was entered in the municipal assessment register as owner of the disputed house and he alone paid municipal tax for the suit premises. The plaintiff inducted tenants in one room in the ground floor and another room in the first floor and realised rent from them. His name was entered in the municipal assessment register as owner of the disputed house and he alone paid municipal tax for the suit premises. The plain tiff granted license to Amulya to occupy one room in the ground floor of the building and the tin cum tiled roof room. Amulya occupied those' two rooms which are the subject matter of the present suit during his life time fill his death which took place on 18. 3. 1973. Before that Swarnamoyee had died in January, 1971. The aforesaid facts have been disclosed in the evidence on record and both the courts below have concurrently found that the deed of gift dated 27. 5. 1968' (Ext. 7) was duly executed by swarnamovee and attested by two witnesses (P. Ws. 2 and 9) and that it was read over and explained to the executant who was an illiterate person before the execution. The courts below have negatived the defence case that the disputed plot was taken by Swarnamoyee as benamdar of her two sons Dhirendra (plaintiff) and Amulya;'that the structures were constructed with their joint funds; that Amulya was in possession of the disputed rooms as cosharer and that after Amulya's death, the defendants have been in possession thereof as Amulya's heirs. The trial court dismissed the suit on the ground that the plaintiff has failed to prove the grant of license to the defendants to occupy the disputed rooms and that the suit property has not been properly described in (he plaint for the purpose of identification. The first appellate court has reversed the decision of the court of first instance, on the findings that after the death of Amulya the plaintiff granted fresh license to the defendants to occupy the disputed rooms, which was terminated before the suit and that the plaintiff, is entitled to recover possession of the disputed rooms from the defendants who are trespassers therein. The first appellate court has also found that the description of the disputed rooms in. the plaint is quite sufficient for identifying them and the defendants have not been in any way misled by such description. 3. The first appellate court has also found that the description of the disputed rooms in. the plaint is quite sufficient for identifying them and the defendants have not been in any way misled by such description. 3. BEFORE this Court, the learned Advocate appearing for the defendants appellants has raised several points to assail the decision of the court of appeal below. It is contended that the letter of authorisation issued by Government to Swarnamoyee to occupy the disputed plot did not create absolute title in her favour to such land and that it was lust an offer made by the Government to her to allot the said plot, on fulfillment of the terms and conditions mentioned therein and that in the absence of any evidence to show that she complied with those terms and conditions, it cannot be said that she had title thereto to be transferred by a deed of gift to the plaintiff. But this point which has been raised for the first time before this Court is inconsistent with the averments in the written statement of the defendants in which the defendants have claimed that the disputed land belonged to their predecessor-in-interest Amulya and the plaintiff as real owners and that it was taken on their behalf by their mother as benamdar. On the basis of such claim the defendants have put forward their case of co-ownership in the suit premises. The point now sought to be raised an behalf of the defendants appellants being inconsistent with their pleading is not permissible and in that view it cannot stand. The courts below have proceeded on the footing that the suit premises belonged to Swarnamoyee who had at least possessory title in respect of the disputed plot and was owner of the structures which stood thereon at the time of execution of the deed of gift on 27. 5. 1968. Such possessory title is good against everybody except the road owner and is sufficient to entitle the holder of the possessory title to sue for eviction of persons in unlawful possession if the property. Lawful possess ion has for its foundation right to possess and it is distinguishable from juridical possession which is protected from eviction Except in due course of law. Lawful possess ion has for its foundation right to possess and it is distinguishable from juridical possession which is protected from eviction Except in due course of law. It has been held by the Supreme Court in somnath vs. Raju AIR 1980 S. C. 846 that mere possessory title is enough to enable a Person to recover possession from another who is not in lawful possession and mere possessory title holds good against everybody except the law full owner. A suit on possessory title can be filed within 12 years of dispossession and the plaintiff can maintain it against any person who does not have better title. In the present" case, Swarnamoyee has possessory title to the disputed plot. She was also the owner of the structures thereon at the time of transferred by deed of gift as the plaintiff in May I968. 4. THE next point raised on behalf of the appellants is that the courts below have ignored the evidence of P. W. 2 parimal who is one of the attesting witnesses to the disputed deed of gift to the effect that Swarnamoyee after coming to the registration office told him that she did not know for what purpose sue had been brought there although P. W. 9 the scribe has deposed that he had taken instructions from Swarnamoyee to draft a deed of gift on the previous day. It is also pointed out that the disputed deed of gift does not bear any endorsement to show that it was read over and explained to the executant who was an illiterate woman. It is submitted that p. W. 2 the attesting witness has not deposed that the document was read over and explained in his presence. It is therefore contended that the courts below have erred in coming to a finding that the disputed deed of gift is a valid document. But it appears that both the courts below have relied on the evidence of P. W. 1 the plaintiff, and P. W. 9 Anil the scribe to hold that the deed of gift in question was duly executed and attested after it had been read over and explained to Swarnamoyee the executants. P. Ws. 2 and 9 are the attesting witnesses. P. Ws. 2 and 9 are the attesting witnesses. P. W. 1 the plaintiff has de posed that the document was read over and explained to his mother P. W. 9 has corroborated the testimony of P. W. 1 by saying that lie read over and explained the document to the executants be fore execution. The trial court which had the opportunity of seeing the witnesses has relied on the testimony of p. Ws. 1, 2 and 9 and the first appellate v 88 court in consideration of their evidence has also placed reliance on them. It cannot be said that the concurrent findings of the courts below are perverse or such as cannot be reasonably arrived at on the materials on record, although there are some infirmities in the evidence as pointed out by the learned Advocate for the appellant. Although another reasonable view is possible, that is no ground for this Court to interfere with the concurrent findings of fact of both the trial court and the first appellate court on the question whether the document was read over and explained to the executants who was an illiterate lady. I, therefore, cannot uphold the contention raised on behalf of the appellants that the courts below have erred in their finding that the deed of gift 13 a valid document. The third point raised oh behalf of the appellants is that there is nothing to show that the plaintiff granted fresh license to the defendants to occupy the disputed premises after the death of amulya and therefore the suit for eviction of the defendants as "ex-licensees on termination of their license is bad land cannot be maintained. No doubt the first appellate court has found that the plaintiff granted fresh license to the (defendants after the death of Amulya there is evidence accepted by the courts below that the plaintiff granted license to Amulya to occupy the disputed premises. There is evidence of P. W. 1 to that effect which has been accepted by the trial court and the first appellate court. It is settled law that personal license is personal privilege which comes to an end on the death of either the license or the licensor as it does not create any interest in the land or property it is not heritable. Therefore on the death of Amulya the license granted to him ceased. 5. It is settled law that personal license is personal privilege which comes to an end on the death of either the license or the licensor as it does not create any interest in the land or property it is not heritable. Therefore on the death of Amulya the license granted to him ceased. 5. THE next question is on what basis did the defendants occupy the two disputed premises. It has been frankly admitted by the learned Advocate appearing on behalf of the respondents that there is no direct evidence to show that the plaintiff granted license afresh to the defendants. It has however been submitted that in the facts and circumstances of the case an implied license in favour of the defendants can be presumed, which was terminated when the plaintiff asked the defendant to vacate the disputed premises and thereafter instituted the present suit. No doubt that is a theory which is consistent with the proved facts and circumstances of the case. Even if there is no proof of grant of fresh license in favour of the defendants to occupy the disputed premises, the position of the defendants can not be in any way better than that of trespasser as they have nothing to show that they have any legal right to occupy the disputed premises. The plaintiffs have also sued the defendants as tress passers on termination of license. In any event, in such a situation I am not in clined to interfere with the decree for recovery of possession passed by the first appellate court as it would be futile to drive the plaintiff to file another suit for eviction of the defendants who are in unlawful possession of the disputed premises. In this connection the learned advocate for the respondents has rightly referred to the Bench decision of this Court in Rasul Jehan Begum vs. Ram Singh I. L. R. 22 Cal. 589 and the decision of the Supreme Court in the case of Bhagwati v. Chandra Moni, AIR 196 SSC 735. In the latter decision in a suit for ejectment of a tenant in the absence of proof of tenancy of' the defendant, the High Court in first appeal found that the defendant was in possession as licensee and decreed the suit for ejectment. In the latter decision in a suit for ejectment of a tenant in the absence of proof of tenancy of' the defendant, the High Court in first appeal found that the defendant was in possession as licensee and decreed the suit for ejectment. The Supreme Court upheld the decision of the High Court holding that it would be futile to make the plaintiff file another suit for ejectment on that basis. In view of the position of law, arising out of the aforesaid decisions and the facts and circumstances of the case, i find that the first appellate court was right in decreeing the suit for recovery of possession of the disputed premises from the defendant. 6. THE appeal, therefore, fails. The judgment and decree of the court of appeal below are affirmed. But considering the background of this case the relationship between the parties, I allow the defendants one year's time to vacate the disputed premises on condition of their paying to the plaintiff or depositing in the trial court Rs.50/- per month as damages of use and occupation, month by month, by the 15th of the next succeeding month and the first of such deposit will be made by the end of April, 1984. In default of payment of two succeeding amounts of such damages, the plaintiff will be at liberty to re cover possession of the disputed premises in execution of the decree. There will be no order as to costs throughout.