Delhi High Court
Madan Lal vs Ram Saroop on 6 May, 2013
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.97 of 2004
Decided on : 06th May, 2013
MADAN LAL ...... Appellant
Through: Mr. L.N. Jha, Advocate.
Versus
RAM SAROOP ...... Respondent
Through: Mr. Yogendra Gautam, Advocate for LRs
of the respondent.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal under Section 100 CPC against the order dated 12.2.2004 passed by the learned Additional District Judge, which has been pending in this court for the last almost nine years.
2. A substantial question of law prima facie arising from the appeal was framed by this court on 20.3.2013 which reads as under :
"Whether the finding arrived at by the first appellate court reversing the finding passed by the trial court allowing the appeal can be said to be perverse?"R.S.A. No.97/2004 Page 1 of 7
3. I have heard the learned counsel for the appellant and have also gone through the record. The respondent herein, Ram Saroop, filed a suit bearing No.378/1979 against the appellant herein, Madan Lal, for possession and for recovery of `20/- as damages for the use and occupation of the premises bearing No.280 situated at Abadi Kakker, Pul Mithai, Subzi Mandi, Delhi. The case which was setup by the plaintiff/respondent was that his father Moolchand was the owner of the suit property having purchased the same from one Baldev Dass vide a registered sale deed on 18.4.1911. The property, after construction, was given Municipality Nos.9347-9348, which formed a part of the said property No.280 along with property No.9344-9346. It was the case of the plaintiff/respondent that so far as property No.9344-9346 is concerned, it was sold by Moolchand, his father to one Smt. Devi in the year 1942 during his lifetime. Moolchand died in the year 1955 and he had also permitted the appellant/defendant to occupy a room on the ground floor, more particularly, shown in pink in the site plan attached to the suit free of charge as a licensee. It was alleged that the plaintiff/respondent along with his brother Manohar Lal allowed the appellant/defendant to continue to occupy the premises as a licensee and R.S.A. No.97/2004 Page 2 of 7 on 10.5.1978, the brother of Moolchand relinquished all his right, title and interest in the said property in favour of the respondent/plaintiff for consideration and the document so executed by him was duly registered with the Sub-Registrar on 10.5.1978. Since the respondent/plaintiff required the said room and the chappar, he asked the appellant/defendant to vacate the same vide notice dated 9.8.1978 revoking the license granted to the appellant/defendant which he failed to do. Consequently, the respondent/plaintiff filed a suit for possession with mesne profits/damages @ `20/- per month. The defendant/appellant filed his written statement and contested the claim of the plaintiff/respondent. He claimed to have become owner of the suit property by adverse possession as he was alleged to be in possession for the last more than 12 years. It was also alleged by the appellant/defendant that Moolchand was not the owner of the property No.9347 but one Gokul Bhagat was the actual owner and after his death, Ram Prashad and Chunni Lal became the joint owners. It was also stated that Ram Prashad had also expired and his widow Kokila Devi became the owner and after the death of Chunni Lal, his adopted son, namely, the defendant/appellant, became the joint owner R.S.A. No.97/2004 Page 3 of 7 along with Kokila Devi. It was stated that neither the respondent/plaintiff nor his brother had anything to do with the suit property.
4. On the pleadings of the parties, following issues were framed :-
"1. Whether the defendant was licensee of the plaintiff as alleged in the plaint? OPP
2. Whether the defendant has become the owner of the suit property by adverse possession as alleged in the preliminary objection No.1? OPD
3. Whether the defendant became joint owner of the property as alleged in para 1 on merits in the written statement? OPD\
4. Whether the suit has been properly valued for the purposes of court fee and jurisdiction? OPP
5. To what amount, if any, is the plaintiff entitled to account of damages for use and occupation/mesne profits, at what rate and for what period? OPP
6. Relief."
5. Both the parties adduced their evidence and the trial court vide its judgment/order dated 9.5.1994 held that the appellant/defendant had acquired the title of the suit property by adverse possession and, therefore, the respondent/plaintiff was not entitled to the possession. So far as the appellant being licensee in the suit property is concerned, a R.S.A. No.97/2004 Page 4 of 7 finding was returned that the respondent/plaintiff was not successful in proving that the appellant/defendant was the licensee in respect of the suit property. Hence, the suit filed by the respondent/plaintiff was dismissed.
6. Feeling aggrieved by the said judgment dated 9.5.1994 passed by the learned Sub Judge, the plaintiff/respondent herein filed an appeal bearing R.C.A. No.21/01/94 titled Ram Sarup vs. Madan Lal, which was allowed on 12.2.2004 by the learned appellate court holding that the appellant/defendant was a licensee in respect of the suit premises. It was also observed by the learned appellate court that originally Gokul Bhagat was the licensee but after his death, his brother Ganga Ram was in occupation and from Ganga Ram, the present appellant/defendant came into possession and, therefore, he could not be said to be a trespasser. It was also held by the appellate court since the appellant was a licensee, therefore, he could not be considered to be holding the possession of the premises as adverse and hostile to the owner so as to entitle him to the benefit of adverse possession. The appellate court referred to the judgment passed by our own High Court in case titled Harbans Kaur & Others vs. Bhola Nath & Another; 57 (1995) DLT 101 apart from the R.S.A. No.97/2004 Page 5 of 7 judgments of Apex Court in cases titled Sheodhari Rai & Others vs. Suraj Prasad Singh & Others; AIR 1954 SC 758, Gaya Parshad Dikshit vs. Dr. Nirmal Chander & Another; AIR 1984 SC 930, Thakur Kishan Singh vs. Arvind Kumar; AIR 1995 SC 73 and Basanti Dei vs. Bijayakrushna Patnaik & Others; AIR 1976 Orissa 218 that a license could not set up the plea of ownership by adverse possession.
7. On the basis of this legal position, the court set aside the judgment and decree dated 9.5.1994 passed by the trial court and came to the conclusion that the appellant/defendant being in possession of the suit premises as a licensee, could not be considered to be in adverse possession.
8. I have heard the learned counsel for the appellant as well as the learned counsel for the respondent. However, the learned counsel though got a question regarding perversity of the appellate court's judgment being framed by this court, but he has not been able to show from the evidence or from the reading of the judgment that there is any perversity in the finding returned by the first appellate court which is based on a settled and a sound principle of law that the question of ownership by R.S.A. No.97/2004 Page 6 of 7 adverse possession would arise only when the possession of a person is hostile to the actual ownership or in other words, he could not be in possession of the premises in question in the capacity of a tenant, licensee or in permissive occupation by the owner himself. If he is to put into possession by the owner then he cannot setup the defence of adverse possession and claim himself to be the owner. This principle has not only been laid down by the Supreme Court in case titled Thakur Kishan Singh vs. Arvind Kumar; AIR 1995 SC 73 but also in judgments of our own High Court in cases titled Praveen Narang vs. Dinesh Gulati & Another; 161 (2009) DLT 585 and Poonam Sharma vs. Prem Nath Anand Buildcon Private Limited & Others; 186 (2012) DLT 472.
9. In view of the aforesaid reasons, I feel that neither there is any substantial question of law involved in the instant matter nor has the appellant been able to show any perversity in the order passed by the first appellate court.
10. Accordingly, the appeal is dismissed.
V.K. SHALI, J.
MAY 06, 2013/'AA' R.S.A. No.97/2004 Page 7 of 7