Nagar(D) by LRS Vs. Ram Kishan  INSC 73 (16 January 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 258 OF 2009 (Arising out
of SLP(C) 14865 OF 2006) Bhagwan Sarup Nagar (D) ...Appellants By Lrs.
Versus Ram Kishan ...
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Punjab and
Haryana High Court allowing the appeal filed by the respondent. The appeal was
filed under Section 100 of the Code of Civil Procedure, 1908 (in short the
`CPC'). Appellant as plaintiff has filed a suit for mandatory injunction with a
prayer that the defendant-respondent be directed to ensure possession to him of
the demised premises description of which was given in the plaint. He also
claimed Rs.3,900/- towards mesne profit for use and occupation of the property
by the respondent. It was the case of the plaintiff that he was the owner of
the house and the defendant was his cousin and he had inducted him as a
licensee in two rooms.
Thereafter, when the
defendants started misbehaving, he issued a notice to him on 27.9.1991 revoking
his licence. Since he failed to vacate the portion of the house in dispute,
mesne profit was claimed and the occupation of the demised property was also
claimed. The defendant took the plea that the property was exclusively in
continuous peaceful possession of the defendant for last more than 50 years as
its owners without paying rent to anybody including the plaintiff. It was also
denied that he was ever inducted as a licencee. Five issues were framed by the
trial court. It is to be noted that replication was filed by the plaintiff.
After considering the evidence brought on record it was held that the plaintiff
was the owner of the property in dispute but all the issues were decided
against him. The issues were as follows:
1. Whether the
plaintiff is entitled for the relief of injunction as alleged in the plaint?
2. Whether the
plaintiffs entitled to recover Rs.3,900/- as mesne profits as alleged in the
3. Whether the plaintiff
has no locus standi to file the present suit? OPD.
4. Whether the suit
of the plaintiffs not maintainable? OPD.
5. Whether the
plaintiff has no cause of action to file the present suit? OPD.
finding of the trial court was reversed by the First appellate court and the
suit filed by the plaintiff was decreed. When the second appeal was admitted,
the following question was formulated:
learned lower Appellate Court could reverse the findings without considering
the documents Ex.D1, D2 and D3."
High Court came to hold that the appeal was bound to succeed as the plaintiff
has failed to prove his ownership. Mere fact that adverse possession has been
claimed by the defendant paled into insignificance and no benefit of the same
can be given to the plaintiff.
support of the appeal learned counsel for the appellant submitted that the
approach of the High Court was clearly erroneous. It is not a fact that Exh. D1
to D7 were not considered. In fact the trial court observed as follows:
"Now coming to
with regard of creation of relationship of Plaintiff and Defendant as licensor
and licensee between the parties, nothing is stated by the Plaintiff in his
pleadings when Defendant was inducted as a licensee in the portion of the House
No. 5912-13 whereas in his statement as PW-1 he has stated in the cross
examination that Defendant was inducted into the Property as licensee about six
years earlier. Whereas from the perusal of the oral as well as documentary
evidence produced by the Defendant on the file it goes to show that portion of
the house has been coming in possession initially of Ghasi Ram father of the
Defendant and after his death in possession of the Defendant since 1931. These
facts stand proved from the copy of the resolution of the committee dated
19-8-31 Ex. D-1 vide which application of the Defendant for opening the
slaughter house in House N0.5912-13 was rejected. Thus it shows that on 19.8.31
father of he Defendant was in possession of the house on 19.8.31. Similarly
Defendant has filed a loan application Ex. D-2 before the secretary Punjab
Khadi & Village Industries Board, Chandigarh for carrying on a business
under the Tanners production Co. Op. Society Ltd. In this house. Central Sales
tax receipt Ex. D-3, electricity bills since 1984 on wards in the name of Ghasi
Ram Show the continuous possession of the Defendant in portion of the house. It
is pertinent to mention here that apart form the bar statement of Plaintiff
there is not an iota of supporting evidence of any person from the locality in
order to prove that Defendant was inducted as a licenses about 5/6 years
earlier. Neither any suggestion 4 was put to the Defendant in
cross-examination regarding the creation of the license about 5/6 years
earlier. It is well settled that suggestion not put up on any point to the
Defendant regarding the matter in dispute. The claim of the Defendant regarding
the denial of the relationship as licensor and licensee is deemed to be
it appears that the High Court proceeded on an erroneous impression as if the
First appellate court has reversed the finding regarding ownership. As a matter
of fact the First Appellate Court had concurred with the finding.
is to be noted that the High Court's observations regarding non- consideration
of Exh.D1 to D7 by the trial court, are as follows:
deciding question of title, trial court has not said a word about the documents
Ex.D1 to D7, though D1 and D2 were earlier to the filing of the suit by the
respondent in favour of the appellant was not proved on record."
quoted portion of the trial court's judgment shows that the conclusions of the
High Court are erroneous.
noted above the First Appellate Court also held that it was established that
the plaintiff is the owner of the property in dispute. The First Appellate
Court observed as follows:
in the written statement claimed his continuous long possession over the house
for the last 56 years without paying any rent. Meaning thereby, the defendant
has taken a plea of adverse possession. In other words the ownership of the
plaintiff stands admitted by the defendant. So from every angle it stands proved
that the plaintiff is the owner of the property in dispute."
being the position the High Court has fallen into grave error by overlooking
the aforesaid conclusions and in allowing the second appeal.
In the aforesaid
background we are of the view that the second appeal needs to be heard afresh
by the High Court. The matter is, therefore, remanded to the High Court for a
fresh consideration in accordance with law.
is allowed. No costs.
(Dr. ARIJIT PASAYAT)
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