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2015 DIGILAW 473 (UTT)

KARAN MESIEH v. NAV JYOTI SOCIETY

2015-09-29

U.C.DHYANI

body2015
JUDGMENT U.C. Dhyani, J. (Oral) Present second appeal has been preferred by the defendant / appellant being aggrieved against the judgment and order dated 17.08.2015, passed by learned Addl. District Judge II, Haridwar, in Civil Appeal no. 95 of 2013, Nav Jyoti Society vs Karan Mesieh, whereby the civil appeal filed by the plaintiff / respondent was allowed and the judgment and decree dated 13.12.2013, passed by learned Civil Judge (Junior Division), Haridwar, in O.S. no. 316 of 2002 was partly decreed directing the defendant / appellant to handover vacant possession of the suit property to the plaintiff / respondent within thirty days. 2. Brief facts giving rise to the present second appeal are as follows: (i) Original suit no. 316 of 2002 was filed by the plaintiff for granting the relief of recovery of possession against the defendant and for recovery damages at the rate of Rs. 2,000/- per month from the defendant in respect of the property in dispute, consisting of one room, one kitchen and one toilet situated at Jwalapur within the premises of St. Mary Senior Secondary School and Holy Family Church, Jwalapur, Tehsil and District Haridwar. Learned trial court framed seven issues in the suit and decided issue nos. 1, 3, 4, 5 and 6 in favour of the defendant and issue no. 7 in favour of plaintiff and after recording categorical findings issuewise, dismissed the suit of the plaintiff vide judgment and decree dated 13.11.2013. (ii) Learned trial court decided issue nos. 1, 3, 4, 5 and 6 in favour of the defendant and issue no. 7 in favour of the plaintiff and dismissed the suit of the plaintiff, but learned First Appellate Court without reversing / setting aside the findings recorded by the trial court, allowed the first appeal in a casual manner vide judgment and order dated 17.08.2015. (iii) Neither learned First Appellate Court decided any single issue nor framed any point while deciding the appeal, thereby committed illegality in allowing the appeal. (iv) Learned First Appellate Court allowed the appeal on the ground that the defendant was watchman in the Institution and he was permitted to live in the accommodation in question with the condition that whenever required, he shall vacate the same, but the plaintiff did not place any document before the courts below showing that conditional permission was granted to the defendant. Rather the defendant placed on record letter dated 11.12.1995, which shows that the then Father M.A. Joseph had given the permission to respondent to construct one house and one kitchen in school premises. It is nowhere stated in the plaint that defendant is the licensee of plaintiff. (v) It was stated that the license of the defendant was terminated through a registered notice. Hence, according to the plaintiff, the defendant was its licensee, but the defendant neither accepted nor rejected it in his written statement. Hence, there was no question to believe that defendant was the licensee of the plaintiff. (vi) The findings recorded by the First Appellate Court were perverse inasmuch as the plaintiff did not produce any evidence before the trial court that the plaintiff got constructed the accommodation in question with the expenses of the plaintiff society. (vii) Learned First Appellate Court has erred in law in recording a finding that the defendant was licensee of the plaintiff. (viii) Learned First Appellate Court has committed illegality in allowing the appeal without setting aside the findings recorded by the court below. (ix) The judgment and decree impugned is wholly illegal, arbitrary and as such liable to the set aside. 3. Plaintiff filed an O.S. no. 316 of 2002 against the defendant for eviction. The defendant contested the suit. On the basis of the pleadings of the parties, seven issues were framed by the trial court. The same read as under: (1) Whether the plaintiff served notice according to law before filing the suit? (2) Whether the valuation is incorrect? (3) Whether the defendant is occupying the accommodation in question as licensee with condition that he shall vacate it whenever required by the plaintiff? (4) Whether the license was terminated by a notice dated 11.11.2002? (5) Whether the respondent was given permission to live in the rooms after getting the same constructed by the then Manager? (6) Whether the plaintiff is entitled to get desired relief? (7) Whether the tin shed was not included in notice under Section 106 of Transfer of Property Act? 4. PW1 Father Fedrick D’souza, PW2 Father Titus were examined on behalf of the plaintiff. Certain documents were also filed on behalf of the plaintiff. DW1 Karan Mesieh, DW2 Nanu and DW3 Rajnish were examined on behalf of the defendant. Documents were also filed on behalf of the defendant. 4. PW1 Father Fedrick D’souza, PW2 Father Titus were examined on behalf of the plaintiff. Certain documents were also filed on behalf of the plaintiff. DW1 Karan Mesieh, DW2 Nanu and DW3 Rajnish were examined on behalf of the defendant. Documents were also filed on behalf of the defendant. On the basis of the evidence of the parties, the suit of the plaintiff was dismissed vide judgment and decree dated 13.11.2013, passed by learned Civil Judge (Jr. Div.), Haridwar. Aggrieved against the same, a civil appeal was preferred before District Judge, which was decided by learned Addl. District Judge II, Haridwar, vide judgment and decree dated 17.08.2015. Appeal was allowed. The judgment and decree dated 13.11.2013, passed in O.S. no. 316 of 2002 was set aside. The suit was partly decreed as regards eviction of the defendant. The defendant was directed to vacate the suit property and handover the possession to the plaintiff within 30 days. Aggrieved against the same, present second appeal has been filed by the defendant (appellant herein). 5. Learned counsel for the plaintiff / respondent contended that the defendant is a licensee of the plaintiff and he was only given permission to live in the accommodation in question with the condition that whenever the same is required by the plaintiff, the defendant shall vacate the premises. Defendant’s license was terminated by a registered notice, although a notice was not required to terminate the license. The decisions of Rabu Ram and another vs Kunj Behari Lal and another, 1989 ACJ 38 and Ram Kishan and others vs Ram Chandra, 2002 (2) JCLR 974 (ALL) were cited in support thereof. 6. Defendant/appellant was employed as watchman by the plaintiff /respondent society and he cannot acquire any interest in the property of the respondent. A decision rendered by Hon’ble Apex Court in A. Shanmugam vs Ariya Khastria Rajukula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by its President etc., 2012 SCCR 565 is cited in support thereof, which says that “……Watchman, caretaker or a servant employed to look after property can never acquire interest in property irrespective of his long possession…..…..Watchman, caretaker or a servant is under obligation to hand over possession forthwith on demand…... Courts are not justified in protecting possession of a watchman, caretaker or servant, who was only allowed to live in the premises to look after the same. …. Courts are not justified in protecting possession of a watchman, caretaker or servant, who was only allowed to live in the premises to look after the same. …. Protection of court can be granted or extended to person who has valid subsisting rent agreement, lease agreement or license agreement in his favour…..” 7. Learned counsel for the defendant / appellant, on the other hand, submitted that the defendant / appellant was given permission to live in the accommodation in question during his service by the then Manager of the plaintiff society. Father M.A. Joseph and plaintiff society got the accommodation in question constructed after spending an amount to the tune of Rs. 60,000/-. 8. This fact is under no dispute that the plaintiff / respondent brought out a case on the ground that the defendant / appellant was watchman in its Institution and he was permitted to live in the said accommodation with a condition that he shall vacate the said premises whenever it was required by the plaintiff organization. The defendant, according to the plaintiff, was a licensee, although the defendant / appellant never accepted such a plea of the plaintiff. The evidence on record indicated that the plaintiff / respondent permitted the defendant / appellant to live in the accommodation as a watchman. The same does not create any interest to the plaintiff / respondent in the premises in question. 9. In Ram Kishan and others vs Ram Chandra, 2000 (2) JCLR 974 (ALL), it was held by Hon’ble Allahabad High Court that no notice was required for termination of license, as it was not coupled with the grant. In Babu Ram and another vs Kunj Behari Lal and another, 1989 ACJ 38, Hon’ble High Court of Judicature at Allahabad, Bench at Lucknow, held that right of licensee stands automatically extinguished with the filing of suit for permanent injunction by the plaintiff. In Elizabeth and others vs Saramma, AIR 1985 NOC 159 (Ker.), the Hon’ble Kerala High Court observed that irrevocability of license has to be pleaded and proved. In absence of any pleadings or any issue on this point, it can not be said that license was irrevocable. 10. In Elizabeth and others vs Saramma, AIR 1985 NOC 159 (Ker.), the Hon’ble Kerala High Court observed that irrevocability of license has to be pleaded and proved. In absence of any pleadings or any issue on this point, it can not be said that license was irrevocable. 10. In Subal vs Chanchala, AIR 2003 (NOC) 560 (Ori.), Hon’ble Orissa High Court has observed that a lincensee’s claim of construction of a house on suit land as has not been established for want of evidence and, therefore, such a licensee could not be given any protection. In Smt. Purnima Pandey vs C.M.S., S.P.G. Hospital, Varanasi, AIR 2003 All 57 (DB), the Division Bench of Hon’ble Allahabad high Court held that license for running canteen and Public Call Office was given in a Government Hospital. On revocation of license, such licensee cannot challenge it for want of prior notice as he was not entitled to any notice. Permission to affect some work of permanent character within the licensed area would not confer any right on the licensee. In Vishwanath Sawant vs Gandabhai Kikabhai, 1990 (2) Bom CR 406, Hon’ble Bombay High Court held that a personal gratuitous license can be revoked at any time at the whims and fancies of grantor and the nature of the continued occupation by the defendant is nothing but that of a trespasser. 11. Considering the facts and evidence brought on record, learned Lower Appellate Court did not commit any mistake in allowing the civil appeal and directing the respondent (appellant herein) to vacate the suit property and handover the possession to the plaintiff (respondent herein) within 30 days. 12. In view of the above discussion, this Court is of the opinion that no substantial question of law can be framed in present second appeal. Since no substantial question of law arises, therefore, second appeal is dismissed at the admission stage itself. 13. 12. In view of the above discussion, this Court is of the opinion that no substantial question of law can be framed in present second appeal. Since no substantial question of law arises, therefore, second appeal is dismissed at the admission stage itself. 13. However, considering the nature of the litigation and master-servant relationship of respondent and appellant four years’ time is granted to the defendant /appellant in the interest of justice to vacate the premises in question and handover the possession of the same to the plaintiff / respondent, on the following terms and conditions: i) The appellant shall file an undertaking before the trial court on or before 30.10.2015 that he shall vacate the premises in question on or before 28.09.2019 and handover vacant and peaceful possession of the premises in question to the respondent, without changing the nature of property. ii) In future, although, the appellant shall continue to be entitled to house rent allowance for a permissible period of four years, but the appellant shall repay the same every month to the respondent society. iii) Needless to say that the electricity and water charges shall continued to be paid by the appellant to the authorities concerned without looking at the face of the respondent society. iv) In the event of default of any of the aforesaid three conditions, the appellant shall not be entitled to continue in the premises in question upto 28.09.2019 and the decree may be executed forthwith. 14. With the directions as above, present second appeal is finally disposed of. No order as to costs.