Gauhati High Court
Dipali Roychoudhury And Sons vs Union Of India And Ors on 28 January, 2015
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL APPELLATE JURISDICTION)
R.S.A.No. 78 of 2003
APPELLANT :
M/S Dipali Roychoudhury and Sons,
Formerly registered partnership firm, now a
Proprietorial concern of Dipali Roy Choudhury
carrying on business, amongst other,
at East Bazar, Karimganj,
District - Karimganj.
-Versus-
RESPONDENTS:
1. Union of India, Represented by the General Manager, N. F. Railway, P.O. Maligaon Headquarters, PIN - 781011.
2. The Divisional Manager (Commercial), N.F.Railway, Lumding, P.O. Lumding, Assam.
3. The Assistant Engineer-II, N. F. Railway, Badarpurghat, P.O. Badarpurghat, District - Karimganj.
4. The Station Superintendent, Karimganj Junction, N. F. Railway, P.O. & District - Karimganj.
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BEFORE
HON'BLE MR. JUSTICE SUMAN SHYAM
For the appellant : Ms. B. Sarma, Advocate.
For the respondents : Sri J.Singh, SC N.F. Rly.
Dates of hearing : 20.01.2015 & 22.01.2015
Date of delivery of : 28 .01. 2015.
Judgment.
JUDGMENT AND ORDER
1. Heard Ms. B. Sarma, learned counsel for the appellant. None appears for the respondents.
2. This Second Appeal has been filed against the judgment and decree dated 28.04.2003 passed by the learned Civil Judge (Senior Division), Karimganj in Title Appeal no.40/1995 setting aside the judgment and decree dated 28.06.1995 passed by the learned Munsiff No.2, Karimganj in Title Suit No.276/1991 decreeing the suit partly.
3. The Second Appeal was admitted to be heard on the following two substantial questions of law :-
a) Whether there was any misconstruction of the contents of the documents marked as Exts.1, 2, 3 and 12 causing/making any mis-reading/misappreciation of the evidence on record by Court below leading to a wrong judgment.Page 2 of 8
b) Whether the learned First Appellate Court committed any error for not making proper decision in accordance with the Rules 31 and Order XLI of the C.P.C.
4. The Appellant as Plaintiff had instituted Title Suit No 276 of 1991 in the court of Munsiff No 2, karimganj praying for a decree declaring her right over the suit land, a decree of permanent injunction and for other consequential reliefs. The Plaintiff's case in brief is that M/S G. C. Roy Choudhury & J. C. Roy was a licensee under the Union of India represented by the General Manager, N.F.Railway in respect of the suit land described in Schedule-I to the plaint. The godown made of CI sheet roof described in Schedule-II of the plaint was under the possession of the said partnership firm M/S G. C. Roy Choudhury & J. C. Roy. After dissolution of the said firm the properties and assets of the firm fell in the shares of the plaintiff who claims to have stepped into the shoes of M/S G. C. Roy Choudhury & J. C. Roy as a licensee under the defendants. The plaintiff further claims that even the defendants have recognized the plaintiff as a licensee by issuing communications to her and realizing license fee pertaining to the suit property. However, by issuing the letter dated 03.08.1990 (Ext-4) the defendant No.2 had asked the plaintiff to vacate the suit land along with the godown and hand over vacant possession of the same to the Defendant No 4. Being aggrieved with such notice asking her to vacate the suit land and godwon, the plaintiff had instituted Title Suit No.276/1991 praying for declaration of her right over the suit land as a licensee under the Union of India; declaration of a maliki right over property included in Schedule-II and for permanent injunction. Page 3 of 8
5. The defendants contested the suit by filing written statement, inter alia, contending that there was no cause of action for the suit and that the suit itself was not maintainable. The pleaded stand of the defendants was that M/S G. C. Roy Choudhury & J. C. Roy was a temporary licensee under the defendants appointed for certain specific purposes but since the said firm had violated the very condition on which they were permitted to use the land , hence, the licence in favour of M/S G. C. Roy Choudhury & J. C. Roy was never renewed after 31.03.1985. The defendants refused to acknowledge the plaintiff as a licensee and disputed her status as a successor- in- interest of M/S G. C. Roy Choudhury & J. C. Roy terming her occupation of the suit land as well as suit godown as unauthorized.
6. Based on the pleadings of the parties, the learned trial Court framed as many as five issues and one additional issue which are indicated herein below :-
ISSUES
1) Whether there is cause of action for the suit?
2) Whether the suit is maintainable?
3) Whether the plaintiff is a licensee in respect of the suit land under the Govt.?
4) Whether the plaintiff is entitled to a decree as prayed for?
5) To what relief is the plaintiff entitled ?
Additional Issue
1) Whether the plaintiff is liable to be evicted from the suit land?
7. On examination of the pleadings of the parties as well as the evidence on record the learned trial Court answered the Issue No.3 in Page 4 of 8 favour of the plaintiff holding that the plaintiff was a licensee under the defendants in respect of the suit land and since she has not violated any terms and conditions of the license, hence, the plaintiff was entitled to declaration of her maliki right in respect of the suit godown. The learned trial Court held that the plaintiff was not liable to be evicted from the suit land and accordingly the plaintiff's suit was partly decreed.
8. Being aggrieved by the said judgment and decree of the trial Court the Union of India and three others as appellants had preferred Title Appeal No.40/1995 in the Court of learned Civil Judge (Senior Division), Karimganj . The said Title Appeal was allowed by the First Appellate Court by setting aside the judgment and decree dated 28.06.1995 passed by the trial Court thereby dismissing the plaintiff's suit. While reversing the findings and conclusions of the learned trial court in respect of Issue No.3, which was the key issue having a direct bearing on the outcome of the plaintiff's suit, the learned Lower Appellate Court held that there was nothing on record to show that the Plaintiff was a licensee under the defendants in respect of the suit property. Although some communications have been made by the defendants with the plaintiff vide letters Exts.2, 3 and 12 asking the plaintiff for renewal of the license however, the same were made on a mistaken understanding of the facts and as such, later on the defendant had rectified the said position by issuing appropriate communications viz., Ext.1. The learned Appellate Court has held that even if it is presumed that the plaintiff was in fact a licensee under the defendants yet there was nothing on record to Page 5 of 8 show that the plaintiff had ever paid any license fee or renewal fee or even made offering of traffic for kerosene oil which was, admittedly, one of the original conditions of issuing license to the firm M/S G. C. Roy Choudhury & J. C. Roy. The learned Court below further held that even if it is supposed that the plaintiff firm is a licensee, yet the defendants would have a right to ask the licensee to vacate possession of the licensed premises at any time. As such, the learned Appellate Court did not find any illegality in issuance of the Ext-4 notice asking the plaintiff to vacate the suit property. Accordingly, the suit of the plaintiff was dismissed.
9. I have considered the submissions made by Smti B. Sharma , learned counsel for the appellant and also perused the records. Ms Sharma submits that the Appellant/ Plaintiff being the successor-in- interest of the firm M/s G.C.Roy Choudhury & J.C. Roy she was entitled to continue in possession of the suit premises as a licensee more so because she had not violated any of the terms and conditions of the licence. Ms Sharma further submits that the allegation brought about by the Respondents / Defendants against the appellant that she had raised illegal construction over the suit land is also not factually correct. As such , the judgment and decree under appeal are not sustainable in law.
10. From a perusal of the materials on record I do not find anything that can establish the fact that the plaintiff has ever been recognized as a licensee by the defendants. There is no contract agreement by and in between the Plaintiff and the Defendants in respect of the suit Page 6 of 8 property . There is nothing on record to show that the plaintiff had ever paid any license fee/rent for use and occupation of the property of the N.F. Railway which is a public property. A perusal of Ext. E letter dated 06.02.1992 issued by the Divisional Manager, N.F. Railway, Lumding, would go to show that no license fee was ever realized from the plaintiff by the defendants. In fact, the defendants had realized rent/license fee in respect of the suit property from M/S G. C. Roy Choudhury & J. C. Roy only upto 31.03.1986 whereafter there was no renewal of the license. Therefore, there was no basis for the plaintiff to claim that she was a licensee under the defendants.
11. It is settled law that in the case of a licensee there is no transfer of interest in the immoveable property and the licensee merely occupies the same as a permissive user under the owner/ licensor. The Hon'ble Apex Court in its judgment and decision rendered in the case of TULSI VS. PARO reported in (1997) 2 SCC 706 has held that :
"A licensee has no right in the property, not to speak of any right to the exclusive possession of the property and animus of possession always remains with the licensor; the licensee gets the possession only with the consent of the licensor and is liable to vacate when so asked."
Even assuming that the plaintiff was, in fact, a licensee under the defendants, as claimed by her, even in that case she was under an obligation to vacate the suit premises upon receipt of the Ext-4 notice.
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12. It is trite law that a licensee would have a limited right to possess the immovable property and the said right would come to an end once the licensor asks for the property to be vacated. The licensee, at best, would be entitled to a notice affording a reasonable time to vacate the property, which Notice had admittedly, been issued to the Plaintiff in the instant case. However, upon receipt of the notice (Ext-4), instead of complying with the same, the plaintiff had approached the learned trial Court by filing the title suit and since then has continued to remain in possession of the suit property on the strength of the orders passed by the Court. In the facts and circumstances of the case, the plaintiff did not have any right to continue to occupy the suit properties after the notice in the form of Ext-4 was issued to her by the defendants to vacate the suit land and godown.
13. In view of the foregoing discussions, I do not find any infirmity in the judgment and decree dated 28.04.2003 passed by the learned Lower Appellate Court warranting interference by this Court. Consequently, this Second Appeal would stand dismissed. The stay order passed earlier shall stand vacated. No order as to cost.
Records be sent back.
JUDGE T U Choudhury Page 8 of 8