Punjab-Haryana High Court
Smt. Bimla Devi And Others vs Shri Chotte Lal And Another on 25 March, 2010
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.3019 of 2009(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3019 of 2009(O&M)
Date of decision: 25.3.2010
Smt. Bimla Devi and others ......Appellant(s)
Versus
Shri Chotte Lal and another ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. Amit Jaiswal, Advocate for the appellants.
Mr. S.M. Sharma, Advocate.
Rakesh Kumar Garg, J.
This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for mandatory injunction was decreed and the defendant-appellants were directed to hand over the vacant possession of the demised premises to the plaintiff-respondent.
As per the averments made in the civil suit, the plaintiff- respondent was owner of House No.1717, Chirimar Mohalla, Ambala, which he purchased in the year 1980 vide registered sale deed. Bishan Dass, brother of the plaintiff-respondent, had died in the year 1965 leaving behind his three daughters and one son. The plaintiff brought up all the children and arranged marriage of the daughters. Roshan Lal, the deceased-husband of appellant No.1 and son of Bishan Lal was living with the plaintiff-respondent and was brought up by him after the death of Bishan Lal. The plaintiff-respondent incurred all the expenses of his marriage and after his marriage he allowed him to live in his house as licensee on the first floor without payment of any license fee. However, the RSA No.3019 of 2009(O&M) 2 deceased Roshan Lal and his wife began to misbehave and create troubles for the respondents with a view to grab the said house. They threatened the plaintiff-respondent to implicate him in false cases. The respondent terminated the license through a legal notice, which the appellant refused to receive. It was further averred that the portion under license with the appellants can easily fetch a rate of Rs.2000/- per month. The respondent also claimed mesne profits at the rate of Rs.2,000/- per month and claimed Rs.1,000/- as mesne profits from 18.5.2001 to 3.6.2001.
The defendant-appellants filed joint written statement and raised various preliminary objections. It was further pleaded that the appellants were the owners of the suit property along with the plaintiff- respondent. It was also pleaded that that the suit of the plaintiff was not maintainable as a compromise was arrived at on 18.8.2001 between the parties in which the plaintiff-respondent agreed to get another house purchased in the name of the appellants and only after getting the new house purchased for which the plaintiff had to pay the price, the appellants were liable to vacate the suit property. It was further pleaded that Roshan Lal, deceased husband of the appellant No.1, was living with the plaintiff- respondent as a son. The aforesaid Roshan Lal had also contributed for the purchase of the house in question but the same was purchased in the name of the plaintiff-respondent being the head of the family. The license was denied and it was submitted that Roshan Lal, predecessor-in-interest of the appellants, occupied the house as owner. Receipt of notice was denied. All the other allegations contained in the plaint were denied and dismissal of the suit was prayed. On the pleadings of the parties, the following issues were framed by the trial Court:
"1. Whether the plaintiff is owner of the house in dispute? OPP RSA No.3019 of 2009(O&M) 3
2. Whether the license of the defendant has been terminated through valid legal notice? OPP
3. Whether the defendant is owner of the suit property? OPD
4. Whether the suit is not maintainable? OPD
5. Relief."
After hearing both the sides, the trial Court decreed the suit in favour of the plaintiff-respondent.
Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendant-appellants filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 13.6.2009.
Still not satisfied, the defendants have filed the present appeal challenging the judgment and decrees of the Courts below.
Challenging the judgment and decrees of the Courts below, learned counsel appearing on behalf of the appellants has vehemently argued that both the Courts below have failed to appreciate the agreement dated 18.8.2001 entered between the parties executed in the presence of witnesses and the plaintiff-respondent had admitted his thumb impressions on the documents and the plaintiff-respondent has also not disputed the contents of the aforesaid agreement and therefore, the aforesaid agreement had affected the change in the status of the appellants and they ceased to be mere licensees, hence, they were entitled to protect their possession on the basis of the said agreement. In support of his case, learned counsel for the appellants relied upon judgment of this Court cited as Dominion of India v. R.B. Sohan Lal AIR (37) 1950 East Punjab 40 and M.F. De Souza v. Childrens Education Uplift Society AIR 1959 Bombay 533 Punjab 40, to submit that a license can be irrevocable under RSA No.3019 of 2009(O&M) 4 term of contract between the parties and if parties enter into a contract and arrive at a solemn agreement to the effect that the licence shall be irrevocable or shall be limited for a particular duration, it follows that the licensor will be bound by his engagement and will not be entitled to terminate the licence.
On the basis of the aforesaid arguments, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal.
"(i) Whether the findings of both the Courts below are perverse and based on misreading of the evidence on the record of the case?
(ii) Whether the appellants are the licencees in the suit property?
(iii) Whether the agreement dated 18.8.2001 (Ex.DX) has the effect of changing the status of the appellants and they ceased to be mere licencees?
(iv) Whether the Court can look into any evidence extraneous to the terms of contract/agreement which has been reduced to a form of document?"
I have heard learned counsel for the appellants and perused the impugned judgment and decrees.
On appreciation of evidence both the Courts below have recorded a finding of fact that the plaintiff-respondent is the exclusive owner of the property in question. The contention put forth by the appellants that late Roshan Lal had contributed financially towards purchase of the said house and that the appellants were co-owners is not supported by any evidence on record. The Courts below have also rightly ignored the agreement, Ex.DX, as an agreement cannot confer ownership RSA No.3019 of 2009(O&M) 5 on the defendant-appellants. In fact the Courts below have recorded a finding of fact that the agreement Ex.DX is the result of fraud having been practiced upon the plaintiff. A finding of fact has been recorded that the respondent put his thumb impressions on the agreement Ex.DX under pressure as Roshan Lal had threatened to commit suicide. Thus, no fault can be found with the findings of the Courts below in this regard. The judgments cited by the learned counsel for the appellants are not applicable in the present case.
It may also be noticed that the argument raised by the learned counsel for the appellants before this Court was not raised before the Courts below and thus, in view of the Bachhaj Nahar v. Nilima Mandal and another 2008 JT (13) SC 255, the said question cannot be raised before this Court in second appeal for the first time.
Hence, no substantial question of law arises in this appeal. No merits.
Dismissed.
March 25, 2010 (RAKESH KUMAR GARG) ps JUDGE