Punjab-Haryana High Court
Mulakh Raj vs Sewa Samiti (Regd.) And Anr. on 28 May, 1992
Equivalent citations: (1993)103PLR177
JUDGMENT A.S. Nehra, J.
1. This appeal is directed against the judgment and decree dated 22-9-1990 passed by the Additional District Judge, Faridabad, by which the appeal filed by the plaintiff-appellant was dismissed and the judgment and decree dated 28-9-1989 passed by the trial Court (dismissing the suit filed by the plaintiff-appellant) was upheld.
2. Briefly stated, the facts as contained in the amended plaint are that the appellant had khokha on the land belonging to the Sewa Samiti. The Sewa Samiti decided to construct pucca shops for the benefit of the khokha-holders and it was agreed that costs of construction would be borne by the khokha-holders and each khokha-holder would pay Rs. 250/- per month as rent to respondent No. 1 for the shops constructed by it in lieu of their khokha; that the plaintiff-appellant paid the costs of construction of the shop to the Sewa Samiti which, in turn, gave him shop No. 34 in lieu of his khokha on the main road; that the plaintiff appellant was in actual possession of shop No. 34 and paid rent of this shop amounting to Rs. 1,750/- for the period from February 1984 to August 1984, vide receipt dated 8-3-1584; that, during the pendency of construction of shop No. 34 in lieu of the khokha, the plaintiff-appellant took shop No. 29 from respondent No. 1 at a monthly rent of Rs. 500/- including electricity charges and paid rent at this rate, vide receipt No. 793 dated 8-3-1984; that, however, later on, respondent No. 1 stopped accepting the rent of shop No, 29 as it wanted to dispossess the plaintiff-appellant forcibly; that, since on 4-6-1984 the General Secretary of the Sewa Samiti and other persons came to the shop of the plaintiff-appellant and tried to dispossess him forcibly, the plaintiff-appellant filed a suit for injunction and obtained ex parte injunction from the Court on 5-6-1984; that, however, respondent No. 1, with the help of respondent No. 2, forcibly dispossessed the plaintiff-appellant; and that, consequently, the plaintiff-appellant got the plaint amended and the relief of possession about shop No. 29 was also claimed.
3. The respondents contested the suit and filed separate written statements, taking identical pleas. They stated that the plaintiff appellant was one of the khokha-holders on the land of respondent No. 1 and respondent No. 1 had agreed to construct pucca shops for the khokha-holders on the terms and condition them; that the cost of construction of the shops was to be donated by the khokha-holders and the rent was agreed individually with each khokha-holder; that the plaintiff-appellant had agreed to pay rent at the rate of Rs. 250/- per month of shop No. 34 which was allotted to him and possession was also given to him after construction that an amount of Rs. 1,750/- was paid by the plaintiff appellant to respondent No. 1 as part of donation and not rent; that at the request of the plaintiff appellant, respondent No. 1 had given shop No. 29 (which was already constructed) to the plaintiff-appellant for use as a licensee till his shop No. 34 was constructed; that it was further agreed that the plaintiff-appellant would pay to respondent No. 1 a sum of Rs. 500/- per month as donation and he would immediately vacate shop No. 29 after shop No. 34 was constructed; that the respondents denied that a sum of Rs. 2,000/- was paid by the plaintiff appellant to respondent No. 1 as rent for shop No 29 that the construction of shoo No. 34 was completed in March 1984 and it was allotted to the plaintiff-appellant; and that, thereafter, respondent No. 1 stopped accepting the donation from the plaintiff-appellant for shop No. 29 and requested the plaintiff-appellant to vacate shop No. 29 and shift to shop No. 34. The respondents denied that they had taken possession of shop No. 29 forcibly but asserted that, on 8-6-1984, the plaintiff-appellant himself had vacated the shop and delivered possession to respondent No. 1. They further stated that since on 10-6-1984 the plaintiff-appellant had executed a writing whereby he admitted that he had vacated shop No. 29 of his own accord, therefore, the plaintiff-appellant had no locus standi to file the, suit for possession.
4. On the pleadings of the parties, the following issues were framed on 14-11-1985 :-
1. Whether the plaintiff has paid rent from 1-12-1983 to 31-3-1984, vide receipt dated 8-3-1984 ?
2. Whether the defendant No. 1 has stopped accepting rent of shop No. 29, described in para 2 of the plaint, from 1-4-1984 and has dispossessed the plaintiff forcibly from the shop, in dispute, on 8-6-1984 and handed over the possession of shop to defendant No. 2 ? if so, to what effect ?
3. Whether defendant No. 1 violated the injunction order dated 5-6-1984 ? if so, to what effect ?
4. Whether the suit has become infructuous ?
5. Whether the plaintiff has not come to the Court with clean hands ? .
6. Whether the plaintiff has no cause of action to file the suit ?
7. Relief
5. The trial Court did not give any finding on issue No. 1, Under issue No. 2, it was held that the plaintiff-appellant was not a tenant and was a licensee and that the possession had been taken from the plaintiff-appellant forcibly and now the shop, in dispute, is in possession of respondent No. 2. Issue No. 3 was not pressed, nor any evidence was led to show that intimation regarding the say order has been given to the defendants-respondents on 8-6-1984. It was farther held that there is only a report of refusal dated 7-6-1984 but no process-server was examined by the plaintiff-appellant to prove the report and, as such, it was held that there is no such evidence on the file that the intimation of the stay order had been communicated to the defendants respondents. Issue No. 4 was decided against the appellant and it was held that the question of restoration of possession does not arise and that the suit tiled by the plaintiff-appellant had become infructuous. Issue No. 5 was not pressed. Under issue No, 6, it was held that the plaintiff-appellant has no cause of action and the suit filed by the plaintiff-appellant was dismissed by the trial Court.
6. The learned Counsel for the appellant has submitted that the appellant is a tenant of shop No. 29 at a monthly rent of Rs. 500/- and the Courts below have erred in holding that the appellant is a licensee.
7. A perusal of receipt Exhibit P-50 shows that it was issued by General Secretary of respondent No. 1 on 8.3.1984 for the receipt of Rs. 2000/- from the appellant as donation. It is stated in the end of receipt Exhibit P-10 as under :-
"More than 10,000 people benefitted through your donation".
Therefore, from this receipt, it cannot be inferred that respondent No. 1 had charged Rs. 2000/- as rent. The number of the shop is also not mentioned. To create tenancy, the payment of rent is one of the essential ingredients. There is also no allegation that, after March 1984, rent of this shop has been paid. On the other hand, it was alleged in paragraph 3 of the plaint by the plaintiff appellant that respondent No 1 has stopped accepting the rent of shop No. 29. The appellant has not summoned the record of respondent No. 1 to show that the amount of Rs. 2000/- was accepted as rent by respondent No. 1 from him for shop No. 29. The appellant had moved an application for summoning the record of respondent No. 1 but, since he failed to give any details of the record to be summoned, so the application was rightly dismissed by the trial Court.
8. The case of respondent No. 1 is that the applicant was one of the khokha-holders of its land and it agreed to construct pucca shops for the khokha-holders on the terms and conditions settled between them and the cost of construction was to be donated by the khokha-holders to the Sewa Samiti ; that the rent was agreed individually with each of the khokha-holders ; that the appellant was allotted shop No. 34 and he agreed to pay Rs. 250/- per month and took possession of the same after construction ; that an amount of Rs. 1750/- was paid to it by the appellant on 8.3.1984 as donation and that, since the construction of shop No. 34 was delayed and the khokha of the appellant was to be removed, so till then, the appellant was given shop No 29 to carry on business as licensee. This is admittedly supported by President Hem Raj Bhatia DW-2, Harish Chhabra DW-3 and Gurmukh Dass Arora DW-4, and their testimony has been rightly believed by both the Court below.
9. The intention of the parties is to be seen to determine whether it was a case of tenancy or licence. It is not the case of the appellant that he was allotted two shops, i e., shop No. 34 and shop No. 29, in lieu of the khokha. It has been stated by the appellant in para 1 of the plaint that cost of construction was to be borne by by the khokha holders. The appellant has not led any evidence to show that he had borne the cost of construction of two shops. If the evidence is scrutinized closely, it becomes clear that shop No. 29 was given to the appellant temporally till construction of shop No. 34 was completed and possession was handed over to the appellant. Therefore, the appellant was only a licensee of the disputed shop. No. rent was accepted, It appears that, later on, the appellant became dishonest and he occupied shop No. 34 and also did not vacate shop No. 29.
10. The learned counsel for the appellant has further contended that respondent No. 1 issued receipt Exhibit D-1 relating to shop No. 34 on 8. 3.1984, which is admittedly given on rent at the rate of Rs. 250/- per month by respondent No. 1 to the appellant and that since, receipt Exhibit D-1 is similar to that of receipt Exhibit P-10, therefore, it should be presumed that receipt P-10 was also issued for having received the amount of Rs. 2000/- as rent. In my opinion, this contention of the learned counsel for the appellant is not tenable. Both the receipts, Exhibits D-1 and P-10, are about donation but the intention of the parties is very much clear that receipt Exhibit D-1 is about rent while receipt Exhibit P-10 is about donation. According to para No. 1 of the plaint, the appellant had occupied shop No. 34 in February 1984. Since shop No. 29 was temporarily given to the appellent till completion of construction of shop No. 34 and its occupation by the appellant, so the licence of the appellant to occupy shop No 29 had come to an end with the occupation of shop No. 34. 61 of the Indian Easements Act, 1882, lays down that revocation may be express or implied. 62 (f) further says that licence is deemed to be revoked when it is granted for a specific purpose and that purpose is obtained. In the present case, since the temporary purpose of granting the licence of shop No. 29 to the appellant came to an end with his occupation of shop No, 34, so, the licence stood revoked. As such, I have no hesitation in holding that the appellant was a mere licensee of shop No. 29 and that licence came to and end with the occupation of shop No. 34 in Feburary 1984. Exhibit P. A., photostat copy of the receipt dated 23.5.1979, and Exhibit P. B., photostat copy of the receipt dated 5.11,1983, have also been placed on the file. These receipts show that respondent No. 1 had received Rs. 4000/- from the appellant for construction of the shop and further, vide receipt Exhibit P. B., the respondent No. 1 had received a sum of Rs. 6000/- against shop allotment. From these documents also, it cannot be inferred that the appellant was a tenant in shop No. 29. These documents only show that respondent No. 1 had taken donation towards cost of construction of one shop and, consequently, the appellant was allotted shop No. 34.
11. Now, further question to be seen is whether the appellant was entitled for the shop, in question. Admittedly, a licensee has got no right, title or interest in the properly about which licence is granted. The learned counsel for the appellant contended that even if the appellant was a licensee and his licence has been terminated, even then also he could not have been dispossessed forcibly, except in due course of law, from the shop in question as be was in settled possession. In support of his argument, he has relied upon Krishna Ram Mahale (dead) by his legal representatives v. Mrs. Shobha Ram Venkat Rao, 1990 (1) R. C. R. 525, In the said authority, it was held that where a person was in settled possession of the property, may be unlawful, he could not be dispossessed by the owner, except in due course of law. There is no dispute about this proposition of law The facts of that authority are that there was a restaurant known as "Meenakshi Bhuvan" ; that defendant No. 3 granted permission to the plaintiff to conduct the business of the said restaurant which, later on, came to be known as "Central Cafe Udipi" ; that an agreement was executed for a period of five years commencing from 25.12.1956 with an option to renew the same; that the plaintiff on 11.1.1958 entered into an agreement with defendant No. 1 to conduct the business for the un-expired period of agreement dated 25 12.1956, which was about 4 years and defendant No. 1 was to pay Rs. 700/- to the plaintiff ; that the business at the spot was actually conducted by defendant No. 2 ; and that ultimately defendant No. 3 unlawfully deprived the plaintiff of the possession of the said premises in collusion with defendants Nos. 1 and 2 and the suit of defendant No. 3 for possession was decreed. The plea taken before the trial Court was that even the period of agreement had expired, so the possession could not be restored to defendant No. 3 but the trial Court took the view that, although the period of agreement as extended had expired, yet the right of renewal remained in favour of the plaintiff". It was farther held that the plaintiffs possession at its inception was lawful and defendant No. 3 could get back the possession only by due course of law. The High Court also dismissed the appeal filed by the defendant No. 3 and further took the view that, although the agreements were termed as "licences", they wore really subleases and hence the possession of the appellant, even after the period of licence, was not, in any way, unlawful or without authority. The Supreme Court took the view that where a person was in settled possession of the property, then even, on the assumption that he had no right to remain on the property, he should not be dispossessed by the owner of the property except by due course of law. In the said authority, the plaintiff was dispossessed by defendant No. 3 when the licence period had not expired and that only expired during the pendency of the case. Therefore, Krishna Ram Mahale's case (supra) is not applicable to the facts of the present case, as the period of licence in the present case had already expired in February 1984.
12. Mr. S. K. Vij, learned counsel for the appellant has contended that the appellant filed a suit for permanent injunction on 5.6.1984 and the appellant was granted temporary injunction restraining the Sewa Samiti from dispossessing the appellant from shop No. 29 ; that Mr. Satish Bhatia, General Secretary of the Sewa Samiti refused to accept the stay order and the appellant was forcibly dispossessed on 8.6.1984 and that, therefore, the appellant amended his suit and a prayer for restoration of possession of the shop, in question was made in the amended suit. It has been further submitted by the learned counsel for the appellant that, since the appellant has been dispossessed forcibly after the grant of stay order by the Court, therefore, the appellant was entitled for the restoration of possession of the shop, in question, and the Court should have granted the relief of restoration of possession under Order 7 Rule 7, Code of Civil Procedure.
13. Mr. M.S. Jain, Senior Advocate, learned counsel for the respondents, has submitted that the finding on issue No. 3 was not challenged by the appellant before the lower appellate Court ; that no evidence was led by the appellant to show that intimation regarding the stay order was served upon the respondents; and that no process-server has been examined by the appellant to prove the report dated 7.6.1984. The learned counsel for the respondents has further contended that the finding on issue No. 3 was not challenged in the Grounds of Appeal before the Additional District Judge and that, therefore, the appellant cannot be permitted to argue that the respondents have violated the injunction order dated 5.6.1984. In reply to the argument raised by the learned counsel for the respondents, Mr. S. K Vij, learned counsel for the appellant has stated that the report of refusal, made by the process-server, is per se admissible in evidence without any further proof, because the endorsement has been made by a public servant is the discharge of duty. In support of his argument, he has relied upon Gian Singh v. Shrimati Devinderjit Kaur, (1987-2) 92 P. L. R. 239.
14. After hearing the learned counsel for the parties, I have gone through the report of the process-server, dated 7.6.1984, in which it has been stated that Shri Satish Bhatia, General Secretary of the Sewa Samiti, refused to accept the summons and, therefore, a copy of the summons has been affixed at the outer-door, of the Samiti. This report of the-process-server is not in accordance with the procedure prescribed in Order 5, Rule 17, Code of Civil Procedure, because the name and address of the person by whom the office of the Samiti was identified and in whose presence the copy was affixed, are no mentioned. Therefore, this report is not admissible in evidence. Gian Singh's case (supra) is not applicable to the facts of the present case because, in that case, registered notices were sent and the report was made by the post-man. The report made by the process-server is not admissible, because the same is not in accordance with the provisions of Order 5 Rule 17, Code of Civil Procedure. The appellant has failed to prove that the respondents have violated the injunction order dated 5.6.!984. Therefore, he is not entitled to the restoration of possession of shop No. 29 from the respondents.
15. The learned counsel for the respondents has further submitted that even if it is presumed that the appellant has been dispossessed forcibly, and was in settled possession, even then as the suit by the appellant, for possession, was filed under 6 of the Specific Relief Act, 1963, which was dismissed by the trial Court, therefore, no appeal was maintainable before the Additional District Judge in view of 6 (3) of the Specific Relief Act, 1963.
16. The counsel for the appellant has submitted that the appellant filed a suit for injunction and the relief of possession was claimed later on, because he was dispossessed during the pendency of the suit and that the Court could suo moto grant the relief of mandatory injunction directing respondent No. 1 to restore the possession.
17. After hearing the learned counsel for the parties, I am of the opinion that the contention of the learned counsel for the appellant is not tenable. The appellant amended his plaint and claimed the relief of possession and also paid tie Court-fee for the relief of possession. It was, therefore, a suit for possession for all intents and purposes and the appeal is specifically barred under 6 (3) of the Specific Relief Act. The appeal filed by the appellant before the Additional District Judge and that before this Court are not maintainable in view of the provisions of 6 (3) of the Specific Relief Act, 1963.
18. The upshot of the above discussion is that this appeal fails and the same is dismissed. However, in the peculiar circumstances of the case, the parties are left to bear their own costs.