Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1841 (HP)

Nashraf Hussain v. Amna Begum

2015-12-10

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 31.8.2005 rendered by the Additional District Judge, Sirmaur District at Nahan in Civil Appeal No. 17-N/13 of 2003. 2. “Key facts” necessary for the adjudication of this appeal are that respondent-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit for possession of suit property detailed in the plaint against the appellants-defendants (hereinafter referred to as the ‘defendants’ for convenience sake) and proforma respondents-defendants (hereinafter referred to as the ‘proforma defendants’ for convenience sake). According to the plaintiff, her predecessor-in-interest due to close relationship allowed Sh. Dashondi to occupy the suit property for his use and enjoyment. Thus, simple licence was created in favour of Sh. Dashondi. After the death of Dashondi, his successors including the defendants were allowed to enjoy and occupy the suit property as licencee. The plaintiff got issued a notice to the heirs of Sh. Dashondi terminating their licence whereby they were requested to hand over the vacant possession of the suit property, which was in dilapidated condition, to the plaintiff. Defendants started collecting building material on 3.5.1999 and started raising unauthorized construction over it. 3. Suit was contested by defendant Nos.1 to 6. Defendants Mohammad Usman and Musharaff filed joint written statement. Defendant No.11 admitted the claim of the plaintiff. Defendant Nos. 1 and 2, in their joint written statement, denied the claim of the plaintiff. They denied that due to close relationship, predecessor-in-interest of plaintiff allowed their predecessor-in-interest to occupy the suit property on licence basis. They also denied that licence was ever created in favour of their predecessor-ininterest allowing the defendants to use and occupy the suit property as licencee. In fact, the grand-father of defendants had constructed the house on the suit property and their father late Sh. Dashondi was also born in that house. He used to work as mason. He died on 28.9.1976. In March, 1952 Sh. Dashondi had covered the Dehlis (verandah) with roof and constructed a gate. He was coming in possession of the suit property as exclusive owner. 4. Defendant Nos. 3 to 6 also took similar preliminary objections and on merits they denied the allegations of plaintiff. They adopted the written statement filed by defendant Nos.1 and 2. 5. In March, 1952 Sh. Dashondi had covered the Dehlis (verandah) with roof and constructed a gate. He was coming in possession of the suit property as exclusive owner. 4. Defendant Nos. 3 to 6 also took similar preliminary objections and on merits they denied the allegations of plaintiff. They adopted the written statement filed by defendant Nos.1 and 2. 5. Issues were framed by the Senior Sub Judge, Sirmaur District at Nahan on 10.5.2001 and additional issues were also framed on 27.3.2002. He decreed the suit on 27.11.2002. Defendants, namely, Mohd. Usman, Musharaf (correct name Nashraf Hussain), Gulam Sabir and Saleem Hussain sons of Dashondi filed an appeal against the judgment and decree dated 27.11.2002 before the Additional District Judge, Sirmaur District at Nahan. He dismissed the same on 31.8.2005. He dismissed the same on 31.8.2005. Hence, the present appeal. It was admitted on 1.12.2005 on the following substantial questions of law: 1. Whether findings of both the courts below are erroneous and perverse in holding that the status of defendants-appellants and their predecessor Shri Dashondi Khan was that of a licensee only, without there being any evidence regarding creation of license by the plaintiff and revocation thereof? Could both the courts below presume the creation of such license ignoring the admissions made by other co-owners in Civil Suit filed for partition by the plaintiff-respondent, that the land stood sold to Sh. Dashondi Khan long back, in which no challenge to such transaction was made by the plaintiff herself who impliedly admitted the title of Shri Dashondi Khan over such land? 2. Whether both the courts below have committed grave illegality and error of jurisdiction in ignoring the provisions of Specific Relief Act wherein the comparative hardship and compensating the plaintiff in monetary terms ought to have been considered? 3. Whether both the courts below have failed to determine the correct value of suit filed by the plaintiff-respondent for removal of the structures from the land in question? Was not the suit beyond the pecuniary jurisdiction of the trial court on account of the market value of the structures on the basis of which the plaint ought to have been returned for presentation in proper court? 4. Was not the suit beyond the pecuniary jurisdiction of the trial court on account of the market value of the structures on the basis of which the plaint ought to have been returned for presentation in proper court? 4. Whether both the courts below have failed to consider the alternative plea of the defendants-appellants of creation of a permanent licensee when it stood duly established on record that the structures were raised by Shri Dashondhi Khan without objection from the owners of the property? Was not the case pleaded by defendants fell within the purview of section 60 of the Easement Act whereby the plaintiff was debarred from claiming mandatory injunction? 5. Whether both the courts below have acted in a highly arbitrary, mechanical, illegal and erroneous manner in not declining the discretionary relief of mandatory injunction to the plaintiff without having been satisfied about essential ingredients, especially when the plaintiff suppressed true and material facts from the court and to circumvent the provisions of law? Was not the suit liable to be dismissed being incompetent as the same was hopelessly barred by limitation? 6. Mr. Bhupender Gupta, learned Senior Advocate, on the basis of the substantial questions of law framed, has vehemently argued that no licence was ever created. He has also argued that comparative hardship and compensating the plaintiff ought to have been considered by both the courts below. He has further argued that the value of the suit land by the plaintiff has not been correctly determined. The alternative plea of creation of permanent licencee has been over looked by the courts below. The discretionary relief in the facts and circumstances of this case could not be granted by both the courts below. Mr. Bhupender Gupta has lastly argued that the suit was barred by limitation. 7. Mr. Naresh K. Gupta, learned counsel for respondent No.1 has supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and have gone through the records carefully. 9. Since all the substantial questions of law are interconnected and interlinked the same are taken up together for determination to avoid repetition of discussion of evidence. 10. 8. I have heard the learned counsel for the parties and have gone through the records carefully. 9. Since all the substantial questions of law are interconnected and interlinked the same are taken up together for determination to avoid repetition of discussion of evidence. 10. According to the copies of Missal Haquiat Ex.P-1 and Ex.P-2, the suit property falling under Khasra No.787, 788, 789 and 790 measuring 101-57 square meters has been shown in the co-ownership of plaintiff to the extent of half share and remaining half share has been shown in the co-ownership of proforma defendant Dilshad, Islam and Tufail Mohd. In the column of possession, name of predecessor-in-interest of contesting defendants has been shown in possession; however, his possession has been shown as ‘Bila Lagan Bawajah Rajamandi, i.e. permissive. It is admitted fact that plaintiff and proforma defendants are owners of the suit property. Though the contesting defendants have taken the plea of adverse possession, but both the courts below have rightly discarded the same. 11. Plaintiff has appeared as PW-1. According to her, the disputed house is owned by her and proforma defendants. She has inherited the same from her father deceased Wali Mohd. The disputed house was given to the predecessor-in-interest of the defendants Sh. Dashondi on licence basis. His possession was permissive. The defendants were also residing as licencee. Her consent was never obtained for addition and alteration. DW-11 Mohad. Usman has stated that the claim of the plaintiff that the defendants are licencee is not correct. They claim themselves to be the owners of the same. He has also deposed that electricity and water connections were obtained in the name of his father in the year 1953. However, fact of the matter is that they have never reported to the Patwari that they are owners of the suit property and the revenue record be corrected in their favour. Rather, the revenue record is in favour of the plaintiff. They neither filed any suit nor issued any notice to the plaintiff and proforma defendants to the effect that they had no concern over the suit property. 12. Mr. Bhupender Gupta, learned senior Advocate has also argued that his clients have become permanent licencee of the plaintiff. DW-11 Mohd. Rather, the revenue record is in favour of the plaintiff. They neither filed any suit nor issued any notice to the plaintiff and proforma defendants to the effect that they had no concern over the suit property. 12. Mr. Bhupender Gupta, learned senior Advocate has also argued that his clients have become permanent licencee of the plaintiff. DW-11 Mohd. Usman, in his deposition, has nowhere stated that they have become permanent licencee of the suit property and their licence is irrevocable as they have done acts of permanent nature over the suit property without objection of true owner. The use of the property by the defendants was only permissive. The plaintiff was within her right to revoke the licence and was entitled for possession of the suit property. Both the courts below have rightly come to the conclusion that defendants were merely licencee. The construction was raised by the defendants without the permission of the plaintiff. The area of the suit property is 101.57 square meters. 13. PW-2 Kailash has deposed that according to average costs, the value of 100 square meters in Muhal Haripur was Rs. 1,48,000/-. The document Ex.PX was prepared on the basis of average costs with effect from 1.1.1999 to 31.12.1999. The average cost relied upon by the defendant was with effect from March, 1999 to February, 2000. The present suit has been filed on 4.5.1999. Thus, the average cost with effect from 1.1.1999 to 31.12.1999 was to be considered. Thus, the trial court had the pecuniary jurisdiction to decide the same and the suit was correctly valued. The plaintiff was entitled to file the suit for possession and the decree would be for the benefits of all joint owners. 14. The suit has been filed after the termination of the licence. It is always open to the parties to recover possession after the termination of the licence. Thus, the suit was filed within limitation. The plaintiff has not suppressed true facts or material facts from the court. The trial court has given findings strictly in accordance with law on the issues framed on 10.5.2001 and 27.3.2002. The plea of adverse possession in the present case was not taken by the learned counsel for the appellants before this Court. 15. The plaintiff has not suppressed true facts or material facts from the court. The trial court has given findings strictly in accordance with law on the issues framed on 10.5.2001 and 27.3.2002. The plea of adverse possession in the present case was not taken by the learned counsel for the appellants before this Court. 15. The Division Bench of Gujarat High Court in Virji Lavji Makwana vs. Partners of Business running the name of Rainbow Screen Shades and others, AIR 1979 Gujarat 178 has held that the relationship of licensor and licensee can conceivably arise in the following circumstances: “(1) A property owner may have an occasion to oblige a relation or friend in need of accommodation and in view of the special relationship may grant the premises for temporary use without intending to create a lease so that the premises not needed by him at the moment may not remain idle whilst his needy friend or relative suffers avoidable hardship; (2) An owner of property may suddenly have an occasion to go to some other place for a temporary period and instead of allowing the premises to remain idle he permits some one in whom he has trust to occupy the same to meet the temporary need of the latter which may coincide with his own temporary period of absence; (3) A property owner may accept some one as a paying guest while he himself retains possession of the property as the principal occupant; (4) In such cases even if some occupation fees are charged it would not matter as in essence the relationship of licensor and licensee can be spelled out in view of the backdrop.” 16. Learned Single Judge of Delhi High Court in M/s Hyco Products (P) Ltd. vs. Smt. Shashi Hasija, AIR 2009 Delhi 96 has held that licence confers a right to do or continue to do something in or upon immovable property of grantor which but for the grant of the right may be unlawful. Learned Single Judge of Delhi High Court in M/s Hyco Products (P) Ltd. vs. Smt. Shashi Hasija, AIR 2009 Delhi 96 has held that licence confers a right to do or continue to do something in or upon immovable property of grantor which but for the grant of the right may be unlawful. Learned Single Judge has held as under: “[26] 'Licence' is defined in Section 52 of the Easements Act, 1882, as under : "Where one person grants to another, or to a definite number of other persons, 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 and such right does not amount to an easement, or an interest in the property, the right is called a licence." [27] A licence confers a right to do or continue to do something in or upon immovable property of grantor which but for the grant of the right may be unlawful, but it creates no estate or interest in the immovable property of the grantor. A lease on the other hand creates an interest in the property demised.” 17. In the present case, the possession always remained with the plaintiff and her predecessor-in-interest. The relationship between plaintiff and predecessor-in-interest of the defendants was of licensor and licensee. 18. The courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 19. The substantial questions of law are answered accordingly. 20. In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.