Allahabad High Court
Subodh Kumar Agarwal vs Sri Manoj Kumar Agarwal on 18 November, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on- 22.09.2025 Judgment Delivered on-18.11.2025 Neutral Citation No. - 2025:AHC:205116 Court No. - 38 Case :- FIRST APPEAL No. - 623 of 2019 Appellant :- Subodh Kumar Agarwal Respondent :-Sri Manoj Kumar Agarwal Counsel for Appellant :- Anil Kumar Pandey, Arvind Srivastava Counsel for Respondent :- Chhaya Gupta, Sujeet Kumar, Udayan Nandan Hon'ble Sandeep Jain, J.
1. The instant appeal under section 96 of the CPC has been preferred by the defendant in O.S. no. 1213 of 2014 Manoj Kumar Agarwal versus Subodh Kumar Agarwal against judgment and decree dated 1.7.2019 passed by the court of Additional Judge Small Causes Court, Agra, whereby plaintiff 's suit for the relief of mandatory injunction has been partially decreed.
Plaint Case
2. The plaintiff-respondent Manoj Kumar Agarwal filed O.S.no.1213 of 2014 with the averments that he was the owner of the entire property No. 25/161, Santosh Bhawan, Gandhinagar, By-pass road, Agra by virtue of the registered gift deeds dated 6.7.2009 and 9.5.2014 executed by his mother Smt. Santosh Kumari, in his favour. He further submitted that much before execution of the above registered gift deeds, the defendant had been occupying a portion of the above property on first floor towards South shown by letters 'ABCDEF' and a staircase, as shown in the map attached with the plaint, as licencee on behalf of his mother Smt. Santosh Kumari. After the execution of the above registered gift deeds, the plaintiff became owner of the entire above-mentioned property including the property in the occupation of the defendant, in which the defendants occupation was under the permission of plaintiff, merely as licencee. The defendant is the real brother of the plaintiff. For the past some time, the plaintiff was asking the defendant to vacate the property in suit but the defendant was not willing as such, plaintiff through his counsel Shri Navin Kumar Gupta, Advocate served upon the defendant by registered post A.D. a notice dated 4.8.2014, revoking the permission/licence granted to the defendant in respect of the disputed property, which was duly served upon the defendant but he failed to comply as such, the plaintiff was compelled to file the suit for the relief of mandatory injunction.
3. The plaintiff further averred that at present, the disputed premises could be easily let out at the rent of ₹ 30,000/- per month, as such, pendentilite and future mesne profits were claimed by the plaintiff at the above-mentioned rate.
4. The plaintiff claimed the following reliefs: -
(A) A decree for mandatory injunction, directing the defendant to vacate the property in suit and to restore back its actual vacant possession to the plaintiff within the time fixed by this Hon'ble court.
(B) A decree for pendentilite and future mesne profits @ ₹ 30,000/- per month with 10% increase every year alongwith 18% interest be passed in favour of the plaintiff against the defendant. Court fees on this amount shall be paid at the time of execution.
(C) Costs of the suit be awarded to the plaintiff against the defendant.
(D) Any other relief, which the court thinks fit and proper, be also granted to the plaintiff against the defendant.
Written Statement of defendant
5. The defendant appellant Subodh Kumar Agarwal submitted his written statement in the trial court in which he denied the plaint averments. He averred that the plaintiff was not the full owner of the alleged property. The gift deeds dated 6.7.2009 and 9.5.2014 were illegal, fraudulent and void document because his mother Smt. Santosh Kumari had no right to execute the alleged gift deeds. It was further averred that he was residing in the disputed property since childhood and he was not a licencee on behalf of his mother. He further submitted that at the relevant time, his mother was not the owner of the property. The defendant admitted that the plaintiff was his real brother. It was further averred that no request was ever made by the plaintiff to him to vacate the disputed property. The plaintiff had no right to file the suit against him. The notice, if any, was unauthorised and without title to the property. Question of mesne profits does not arise. No cause of action had accrued to the plaintiff to file the suit. The property was worth more than ₹ 5 crores. Since, as per the plaint allegations, the defendant was a trespasser therefore, the plaintiff ought to have paid court fees on the valuation of the house. The suit was undervalued and the court fees paid was insufficient. The plaintiff should have sought the relief of possession. The plaintiff was not entitled to the relief of mandatory injunction as the defendant was in possession, as the co-owner of the disputed property. The plaintiff 's suit was barred by principle of estoppel and acquiescence.
6. It was further averred that relief of mandatory injunction can only be claimed when the defendant was in possession to some obligation with the plaintiff. The plaintiff was also like the defendant, co-owner of the disputed property. The alleged licence was never granted, which was a cock and bull story as the defendant was residing in the premises since his childhood. The alleged gift deeds were invalid, unauthorised and had been executed under coercion and undue influence. Smt. Santosh Kumari was bedridden, had a fragile health and was not having senses, was hard of hearing and had almost lost vision. No gift could have been executed through power-of-attorney. In fact, power-of-attorney itself showed the physical and mental disability of Smt. Santosh Kumari and it also showed that under duress and coercion her husband got power-of-attorney executed in his favour, as she was not even able to move, in collusion with the plaintiff. She was an old and infirm person.
7. It was further averred that since the plaintiff admitted that the defendant was in possession of the disputed property, therefore, the essential ingredients of the gift were missing and therefore, the gifts were void. The gift deed dated 6.7.2009 was incomplete since, it was a partial gift, therefore, subsequently gift deed dated 9.5.2014 was executed. It was not explained by the plaintiff why two gifts of the same property were executed at two different times and that too, after a gap of 5 years. The circumstances proved that the gifts were got executed in suspicious circumstances, which were void. The defendant had constructed one room, one latrine, one kitchen, staircase and lobby from his own funds in the disputed premises, without any objection as co-owner thereof and therefore, question of alleged licence does not arise. The details of licence were wanting. The suit filed by the plaintiff was frivolous, vexatious and liable to be dismissed with costs of ₹ 50,000/- to the defendant.
Issues framed by the trial court
8. The trial court framed the following issues: -
(A) Whether the plaintiff was the owner of the disputed property described in the plaint? OPP (B) Whether the defendant was in occupation in the disputed property as a licencee of the plaintiff? OPP (C) Whether the plaintiff was entitled to get the possession of disputed property mentioned in the plaint through decree of mandatory injunction? OPP (D) Whether the plaintiff was entitled to get pendentilite and future mesne profit from the defendant regarding the disputed property at the rate of ₹ 30,000/- per month alongwith interest? OPP (E) Whether any cause of action has arisen to the plaintiff to file the present suit? OPP (F) Whether the suit was insufficiently valued? OPD (G) Whether the court fees paid was insufficient? OPD (H) Whether the suit was barred by the principle of estoppel and acquiescence? OPD (I) Whether the court lacked jurisdiction to hear and decide the suit? OPD (J) Whether the plaintiffs' suit was not legally maintainable? OPD (K) Whether plaintiff was entitled to any relief?
Documents filed by the parties
9. In the trial court the plaintiff filed the original sale deed dated 15.9.1969 executed by Deoki Nandan Bibhab, Managing Director of the Development Trust(P) Ltd, Agra in favour of Smt. Santosh Kumari Agarwal, the sanctioned building plan of the year 1969-70 and another dated 28.7.1984, original gift deeds dated 06.7.2009 and 9.5.2014, copy of registered legal notice dated 4.8.2014 given by plaintiff to the defendant, original postal receipt, house tax receipt, carbon copy of FIR, etc.
10. In the trial court the defendant filed his original passport, ration card, his marriage card, original life insurance premium receipt, certified copy of the will dated 1.5.2002 executed by his mother Smt. Santosh Kumari, original legal notice dated 25.11.2013 sent by plaintiffs' counsel Navin Kumar Gupta, Advocate to the defendant, photo copy of his driving licence, voter card, bank passbook, electricity bills, certified copy of the gift deed dated 9.5.2014,etc. Oral evidence by the parties
11. In the trial court the plaintiff Manoj Kumar Agarwal examined himself as PW-1 and Prakash Kaushal as PW-2. The defendant Subodh Kumar Agarwal examined himself as DW-1.
Findings of the trial court
12. Issue No. 6,7 & 9: These issues were decided by the trial court on 28.3.2017. The trial court opined that the plaintiff had valued the suit at ₹ 40,000/-, against which no contra evidence was submitted by the defendant to prove that the valuation was erroneous, as such the trial court concluded that the valuation made by the plaintiff was proper. The trial court concluded that since the plaintiff had paid the maximum court fees payable for the relief of mandatory injunction of ₹ 500/-as such, the court fees paid by the plaintiff was sufficient. The trial court concluded that since the disputed property was situated in Agra, as such, the court had the jurisdiction to hear and decide the suit. All the 3 issues were decided against the defendant.
13. Issue no.1 & 2 : The trial court decided both these issues jointly. The trial court opined that the land of the disputed property was purchased by Smt. Santosh Kumari and she had the right to execute the gift deeds regarding the disputed property in favour of the plaintiff. The trial court further opined that Dr. Mohan Lal Agarwal, who was the husband of Smt. Santosh Kumari, was not the owner of the disputed property. It was further opined that the second gift deed was executed after a gap of about five years from the first gift deed and through the second gift deed, the remaining disputed property was gifted to the plaintiff. The trial court further opined that since the defendant had made life of his mother miserable, as such, no property was gifted to the defendant by his mother. It was further opined that the other siblings of the defendant had not objected to the gift deeds, which proved that the gift deeds were genuine and were not influenced by coercion and fraud. The trial court opined that the burden was upon the defendant to prove that the gift deeds were illegal and fraudulent, but the defendant failed to prove the same. It was also opined that Smt. Santosh Kumari had earlier executed a will, which was cancelled at the time of executing the gift deed in favour of the plaintiff. It was further held that the defendant was the licencee of Smt. Santosh Kumari in the disputed property, which was subsequently gifted by her to plaintiff and till the licence of defendant was revoked by the plaintiff, by giving legal notice, he was residing as a licencee in the disputed property. Accordingly, both the issues were decided in favour of the plaintiff.
14. Issue no.3: It was opined by the trial court that defendant was not the co-owner in the disputed property. It was also opined that all the constructions in the disputed property were made by Smt. Santosh Kumari after getting the building plan sanctioned. There was no proof that the defendant got any building plan sanctioned in his name and had made a permanent construction on the disputed property. It was concluded by the trial court that the plaintiff was entitled to get the possession of the disputed property through decree of mandatory injunction.
15. Issue no.4: The trial court concluded that plaintiff failed to prove that he was entitled to get ₹ 30,000/- per month as pendentelite mesne profit alongwith interest from the defendant. The issue was decided against the plaintiff.
16. Issue no.5,8,10 & 11: The trial court opined that since plaintiff was the owner of the disputed property, in which the defendant was residing as licencee, the plaintiff was entitled to file the suit for obtaining possession of the disputed part of the property, which was in possession of the defendant. The trial court also opined that after giving legal notice to the defendant, the instant suit was filed by the plaintiff, which shows that there was no estoppel or acquiescence on the part of the plaintiff. The trial court also opined that plaintiff 's suit was legally maintainable. The trial court concluded that the plaintiff proved that he was the owner of the disputed property on the basis of gift deeds executed in his favour and the defendant was only licencee in the above property, as such, plaintiff 's suit for the relief of mandatory injunction was decreed against the defendant, aggrieved against which, the defendant is in appeal before this Court.
Submissions of the learned counsel of defendant-appellant
17. Shri Arvind Srivastava, learned counsel for the appellant submitted that the trial court has erred in decreeing the suit. Learned counsel submitted that the plaintiff cannot claim the relief of possession in the garb of mandatory injunction. If the defendant was in possession of the disputed property, then the plaintiff should have claimed the relief of possession and paid court fees on advalorem basis. In this case the plaintiff has not paid the court fees on advalorem basis, which is illegal, as such, no relief of possession in the garb of mandatory injunction would have been granted to the plaintiff. Learned counsel further submitted that Smt. Santosh Kumari was not the owner of the disputed property, she was only the benami owner, as such, she had no right to execute the alleged gift deeds in favour of plaintiff.
18. Learned counsel further submitted that at the time of alleged execution of gift deeds, Smt. Santosh Kumari was old, infirm, mentally incapacitated, under influence of plaintiff and under the coercion of plaintiff had executed the alleged gift deeds in favour of the plaintiff, which are illegal and void, on the basis of which no title is conveyed to the plaintiff in the disputed property.
19. It was further submitted that the defendant was living since childhood in the disputed property and after the death of his parents, the defendant became co-owner of the disputed property along with his siblings, as such, defendant was not licencee in the disputed property. It was further submitted that since, defendant was not the licencee in the disputed property as such, no licence whatsoever could have been terminated by the plaintiff by giving legal notice to the defendant and such termination, has got no legal sanctity in the eye of law.
20. It was further submitted that since defendant was a co-owner in the disputed property as such, the plaintiff had no cause of action to file the instant suit. It was further submitted that as co-owner, defendant had raised permanent constructions in the disputed property. It was further submitted that the sale deeds and the gift deeds submitted by the plaintiff were forged and fabricated, in which there were several interpolations, which renders them illegal, on the basis of which no title vested in the plaintiff or his predecessors. It was further submitted that the documents during trial were not exhibited by the court, as such, could not be read in evidence. It was further submitted that since the defendant had raised constructions in the disputed property, as such, his licence was irrevocable. The appellate Court cannot grant pendentelite and mesne profit to the plaintiff in exercise of its power under Order 41 Rule 33 CPC. With these submissions it was prayed that the appeal be allowed and the suit be dismissed.
Submissions of the learned counsel of plaintiff-respondent
21. Shri P.K.Jain learned Senior Counsel for the respondent assisted by Ms. Chhaya Gupta, Advocate submitted that the land beneath the disputed house was purchased by Smt. Santosh Kumari in the year 1969. Thereafter, a building plan was got sanctioned from the competent authority in the year 1969-70 and 1984 and constructions were raised on the land. Learned counsel submitted that the defendant had made the life of his mother Smt. Santosh Kumari miserable, as such, she willingly decided to gift the whole property to his son- plaintiff through two gift deeds. Learned counsel submitted that in the gift deed executed in the year 2009 whole property was not gifted to the plaintiff. Some property was remaining with Smt. Santosh Kumari, which was gifted through subsequent gift deed in the year 2014. Learned counsel submitted that the defendant was not having any right whatsoever in the disputed house because his mother was the absolute owner of the disputed property, which was gifted to the plaintiff. Learned counsel submitted that the defendant was residing as licencee in the disputed house, which was revoked by the plaintiff by giving legal notice and when the defendant failed to hand over the vacant possession of the disputed property to the plaintiff, the plaintiff was compelled to file the instant suit. Learned counsel submitted that since there was relationship of licensor-licencee between the plaintiff and defendant, as such, the plaintiff revoked the licence by giving legal notice and thereafter, the plaintiff claimed the possession of the disputed property. Learned counsel submitted that the defendant has himself filed certified copy of the will executed by his mother, which mentions that Smt. Santosh Kumari was the absolute owner of the disputed property. Learned counsel submitted that since the defendant was relying on the above will executed by his mother, as such, the defendant cannot take a plea, that his mother was not the absolute owner of the disputed property.
22. Learned counsel submitted that the defendant has alleged that a fraud was committed by the plaintiff upon Smt. Santosh Kumari. The gift deeds were allegedly executed by her under coercion and undue influence since she was old, infirm and mentally incapacitated at the time of executing the gift deeds in favour of the plaintiff, but, the specific averments of fraud were missing from the written statement submitted by the defendant. Learned counsel submitted that the defendant was bound to disclose when, how, by whom and in which manner fraud was committed by the plaintiff, but the written statement was silent on these facts. Learned counsel submitted that there cannot be a vague and general allegation of fraud.
23. Learned counsel further submitted that there was no interpolations in the sale deed and gift deeds. The above documents were registered in accordance with the Registration Act and as such, there was a presumption regarding their genuineness and authenticity, which has not been rebutted by the defendant. The plaintiff has duly proved the execution of gift deeds by examining the attesting witness PW-2.
24. Learned counsel further submitted that no permanent constructions were raised by the defendant on the disputed property. All the constructions were raised by Smt. Santosh Kumari after getting the building plan sanctioned from the competent authority. There was no evidence on record to prove that any building plan was got sanctioned by the defendant. Learned counsel submitted that in the absence of sanctioned building plan in favour of defendant, it cannot be presumed that the defendant had raised constructions on the disputed property.
25. Learned counsel submitted that even if the trial court has rejected the plaintiffs claim for pendentelite mesne profits at the rate of ₹ 30,000/- per month but, even then, the appellate court can in exercise of its power under Order 41 Rule 33 CPC grant the above relief to the plaintiff. Learned counsel submitted that at the time of admission of this appeal this Court had ordered the defendant appellant to pay ₹ 10,000/- per month towards use and occupation of the disputed property, and the plaintiff respondent is entitled to get the above amount, which is being deposited by the defendant during the pendency of this appeal. With these submissions, it was prayed that the appeal is meritless and be dismissed.
26. I have heard the learned counsel of both the sides, perused the pleadings, documents, evidence on record and the case law submitted by them.
27. On the basis of the submissions of the learned counsel of the parties, pleadings, documents and evidence on record, the following issues arise for determination in this appeal: -
(a)Whether Smt. Santosh Kumari was the sole owner of the disputed property, which was gifted to the plaintiff by disputed gift deeds?
(b)Whether the gift deeds executed by Smt. Santosh Kumari in favour of plaintiff were void due to fraud, coercion and undue influence exercised by plaintiff?
(c)Whether the defendant was co-owner of the disputed property?
(d)Whether the defendant was residing as a licencee in the disputed property?
(e)Whether the plaintiff was entitled to claim the possession of the disputed part of the property, which was in the occupation of defendant as licencee, by filing the suit for the relief of mandatory injunction?
(f)Whether the defendant had raised permanent constructions in the disputed part of the property, which was in his occupation, rendering the licence irrevocable?
(g)Whether there were interpolations in the sale deed and gift deeds executed in favour of the plaintiff and his predecessor Smt. Santosh Kumari, so as to render them illegal and inadmissible?
(h)Whether the documents submitted by the plaintiff were not exhibited by the trial court, which rendered them inadmissible in evidence?
(i)Whether the appellate court in exercise of its power under Order 41 Rule 33 CPC can award damages @ ₹ 10,000/-per month to the plaintiff-respondent, against the defendant-appellant for its unauthorised use and occupation of the disputed property, during the pendency of this appeal, till its actual vacant possession is not handed to the plaintiff ?
Oral evidence of the parties
28. The plaintiff Manoj Kumar Agarwal PW-1 in his examination-in-chief affidavit proved the plaint averments. He proved that the land of house No. 25/161 was purchased by his mother Smt. Santosh Kumari through registered sale deed dated 15.9.1969 from Development Trust Private Limited, and thereafter, according to the sanctioned building plan, from her own funds constructed two storeyed house on it. Dr. Mohanlal Agarwal was the father of plaintiff and defendant. He further deposed that Smt. Santosh Kumari without any coercion, willingly, executed a registered gift deed of a part of above property on 6.7.2009 in his favour, which was accepted by him. In this gift deed his father was one of the executant, along with his mother. He further deposed that again his mother gifted the remaining part of the above property through gift deed dated 9.5.2014. This gift deed was also executed willingly and without coercion in his favour. This gift was also accepted by him. He further deposed that through the above gift deeds he became the sole owner of the above property.
29. He further deposed that prior to the execution of gift deeds, the defendant was in possession of a portion on the first floor of the above property denoted by 'ABCDEF' along with a staircase, which was shown in the map annexed with the plaint, with the permission of his mother Smt. Santosh Kumari. The portion of the property in possession of the defendant was the disputed property of the suit. He further deposed that after the execution of the above gift deeds in his favour, the defendant's possession was of a licencee in the disputed property, because the defendant was the real brother of the plaintiff. He further deposed that he requested the defendant to vacate the disputed property but when he refused, he gave a legal notice through his advocate Shri Navin Kumar Gupta terminating the licence of the defendant, which was sent by registered post AD on 4.8.2014, which was received by the defendant, but was not complied with, as such, he was compelled to file the suit.
30. PW-1 further proved the documents submitted by him in the suit. He identified the signature and thumb impression of his parents on the gift deeds. He further deposed that the gift was duly accepted by him. He further deposed that Prakash Kaushal, Sardar Singh and Jal Singh were the attesting witnesses of the gift deeds. He identified the signature and thumb impression of the attesting witnesses of the gift deeds. He further deposed that on the basis of the above gift deeds, he was mutated as owner of the property in the records of Nagar Nigam, Agra. He was paying the house tax of the property. His father Dr. Mohanlal Agarwal has died. He denied that the defendant was the co-owner of the property. He further denied that the defendant had raised any construction with his own funds in the disputed property. The constructions were raised by his mother from her own funds.
31. PW-1 in cross-examination admitted that in the year 2002 is mother had executed a registered Will in which it was mentioned that the three brothers continue to reside in the portion in which they were residing. Till the year 2009, two brothers Subodh Kumar and Sudhir Kumar, resided in the upper portion and one brother resided in the lower portion. He admitted that the defendant was residing in the upper portion in three rooms, one latrine, one bathroom, one kitchen and one courtyard. He further deposed that around the year 1970 first storey was constructed, second storey was constructed near the year 1991 92. Besides this, no other construction was raised. In the kitchen of upper portion, meals of defendant were cooked. He admitted that the meals of all the brothers were prepared separately.
32. He further admitted that since the last 10 years his mother was bedridden since her hip bone was fractured, she was unable to move. She used to walk with the help of walker. Her mental capacity was intact. Since, she was about 90 years old, she had age-related problems. She was having good vision, good hearing capacity, her mother was literate, at present her mother cannot write and sign any document. She was having this problem since the last two years.
33. He further disclosed that his father had executed the gift deed willingly, to show his consent. He denied the suggestion that gift deed dated 9.5.2014 was a fabricated document. He further disclosed that in the gift deed executed in the year 2009, the vacant possession of the disputed property, which was in the occupation of the defendant was not handed to him. He further disclosed that her mother had not executed any power-of-attorney. He further disclosed that his name has been mutated in the records of Nagar Nigam. His mother had a bank account, she was a pensioner, how much pension she was getting he was not aware. His mother had permitted the defendant to reside for a short duration. He denied the suggestion that the gift deeds were executed by his mother, due to the pressure exerted by him and his father.
34. Prakash Kaushal PW-2 deposed in his examination-in-chief that Smt. Santosh Kumari had executed a registered gift deed in favour of plaintiff on 9.5.2014, which is paper No. 41-A and Dr. Mohanlal Agarwal and Smt. Santosh Kumari had executed another registered gift deed on 6.7.2009, which is paper No.42-A in favour of the plaintiff. He is one of the witnesses of the above gift deeds and was well conversant with the facts. The gift deed dated 9.5.2014 was executed in favour of plaintiff in his presence and another witness Jal Singh. This gift deed was executed willingly, without coercion, after reading and understanding it, which was signed by the donor Smt. Santosh Kumari and the donee Manoj Kumar Agarwal. This witness identified the signature, photographs and thumb impression of Santosh Kumari and Manoj Kumar Agarwal on paper No. 41-A. He further deposed that prior to registration, the concerned sub-registrar had read and explained the gift deed to the donor and donee, in his presence and Jal Singh. The gift deeds were signed and thumb impression was affixed on it, in the presence of concerned sub registrar.
35. PW-2 also deposed that Dr. Mohanlal Agarwal and Smt. Santosh Kumari had executed a registered gift deed in respect of a part of the house No. 25/161, Gandhi Nagar, Hariparwat Ward, Agra on 6.7.2009 in his presence, which is paper No. 42-A, in favour of the plaintiff. He deposed that the donor and the donee had signed the above gift deed, their photographs, affixed their thumb impression on it, in his presence and another witness Sardar Singh. The concerned sub registrar at the time of registration of the gift deed, had read and explained its contents to the donor and donee, its execution was accepted by the donor and donee in his presence.
36. PW-2 in cross-examination deposed that in the year 2014 he met Smt. Santosh Kumari, at that time she used to walk a lot, she had a good vision and used to give her blessings to him, like a son. She had no problem with her vision and hearing. He admitted that at the time of execution of gift deed on 9.5.2014 besides Smt. Santosh Kumari and Manoj Kumar Agarwal, no other family member was present. Smt. Santosh Kumari willingly executed the above gift deed and she willingly went to the sub- registrar office with plaintiff.
37. He further deposed that the gift deed registered in the year 2009, was executed both by Dr. Mohanlal Agarwal and Smt. Santosh Kumari. He clarified that in the gift deed executed in the year 2009, Smt. Santosh Kumari had retained a small portion in the house for her self use, which was not gifted to the plaintiff, but was subsequently gifted to the plaintiff in the year 2014.
38. Subodh Agarwal DW-1 deposed in his examination-in-chief that the land of the house No. 25/161, Santosh Bhawan, Gandhi Nagar, Agra was purchased by his father Mohanlal Agarwal from his self-earned money, in the name of his wife Smt. Santosh Kumari on 15.9.1969 from Deoki Nandan Vaibhav, Managing Director, Development Trust, which is paper No. 38-A and 40-A, on which in the year 1970, construction on ground floor was undertaken. In the above property, he constructed one room, one latrine, one kitchen, staircase and lobby from his self-earned money in the year 1989, which was never objected to by anyone. He was residing in the above property since childhood, was its co-owner and as co-owner, he was residing in the above property with his family and was in its possession also. His mother Smt. Santosh Kumari had no right to execute the gift deed regarding the disputed property since, she was not the sole owner.
39. He further deposed that her mother Smt. Santosh Kumari had previously on 1.5.2002 had executed a registered will in favour of her three sons, in which separate share of each son was disclosed, the certified copy of which has been filed by him, which is paper no. 51-C/9 to 51-C/18. The defendant has proved the above will. He further deposed that orally also, his mother had made him co-owner of the house. The plaintiff never resided in the disputed house. His mother was educated up to class II, was unable to think and understand, and was ill for quite sometime.
40. He further deposed that the gift deed dated 6.7.2009 was an incomplete, illegal and void document, which was got fraudulently executed because his mother was unable to walk, her condition was not good, she was under treatment. The alleged gift deed was not executed by his mother but was executed by her husband Dr. Mohanlal Agarwal on the basis of power-of-attorney which was mentioned at paper no. 42-A/23. The gift deed cannot be executed on the basis of power-of-attorney, as such the alleged property has not been gifted on the basis of the above gift deed. Further, since the plaintiff does not reside in the disputed house, as such, its possession has not been handed to the plaintiff, in which the defendant along with his family was residing since inception. There are several cuttings in the gift deed, regarding which there was no explanation, which have not been signed by Smt. Santosh Kumari. The plaintiff concealed the first gift deed for five years and didn't disclose it to any family member. The notice dated 25.11.2013, which was paper number 52-C/1, was sent by speed post by the plaintiff through his advocate Navin Kumar Gupta to him, the original of which has been filed by him in the court.
41. He further deposed that the second gift deed dated 9.5.2014 executed by Smt. Santosh Kumari in favour of plaintiff was wrong, false and void, which was executed after five years from the first gift deed, in which it was not disclosed what was the need of its execution. From the inception, he was in possession of his share in the ground floor and first storey. His mother had not kept any share separately for her residence. There was no mention of this fact in the map of the will and the first gift deed, which are paper number 51-C/10 and 42-A/29. The plaintiff was a clever person, who intended to usurp his share, and for this reason, the gift deeds were prepared fraudulently. The signature of witnesses on the gift deeds were forged and for proving this, he has filed the certified copy of the gift deeds. On 7.1.2010 his father Dr. Mohanlal Agarwal died and after some time, the plaintiff had cleverly taken his mother to his residence A-508, Kamla Nagar, Agra, threatened her and prevented her from meeting anyone. He admitted that another legal notice dated 4.8.2014 was sent by the plaintiff through his advocate to him, in which the plaintiff directed him to vacate the house. He deposed that the second gift deed was also fraudulently prepared.
42. He also deposed that no evidence was led by the plaintiff to prove that registered will executed by his mother Smt. Santosh Kumari was cancelled. His mother never directed him to vacate the house because she had no such intention. If she had any such intention, then she could have executed another will, there was no need to execute the gift deed. The plaintiff had only submitted the first gift deed with the Nagar Nigam and has also not intimated that the defendant was residing in the house, with his family. The plaintiff was intending to usurp the share of the defendant, since long time. The plaintiff has made the life of defendant miserable by indulging in assault, robbery and misdeeds. He further deposed that PW-2 Prakash Kaushal was a fictitious and fraudulent witness of the gift deed. He proved his passport, ration card, marriage card, insurance premium receipt, application given to the Nagar Nigam for mutation on the basis of will, driving licence, telephone documents, voter identity card, bank statement, electricity bill, which were related to the disputed property. The plaintiff was not the sole owner in possession of the disputed property on the basis of the alleged gift deeds.
43. DW-1 deposed in cross-examination that when the construction in the disputed property was completed, then he came in the year 1977 1978. He has not read the sale deed of the year 1969, through which the land of the disputed property was purchased from the development trust. The land transaction took place at the rate of ₹ 13 13.50 per square yard. What was the total sale consideration, he was not aware. The stamp paper of the sale deed was purchased by his father in the name of Smt. Santosh Kumari. The building plan of ground floor of property number 25/161 was sanctioned in the name of Smt. Santosh Kumari. When the land was purchased, even at that time, the building plan was sanctioned. His mother Smt. Santosh Kumari had executed a will in the year 2000 in the presence of her whole family. His mother had the right to execute the will regarding the property. The witnesses of will Anil Mittal and Mohanlal Agarwal, are the son-in-law of his maternal aunt. Before executing the will, his mother had made him the co-owner. For construction, he had not got the building plan sanctioned because after construction, it was compounded. In which year the construction was compounded, he does not remember. Since the disputed property was in the name of his mother, compounding was also made in her name. His mother died in the previous month. At the time of his death, his mother was residing with the plaintiff. His father also died in the year 2010, who also resided with the plaintiff. His mother and father resided in the disputed property.
44. He feigned ignorance that in the year 1989 his wife had got registered a FIR against his father, mother and brother. His mother died 92 years old. His mother had signed paper No. 51-C in his presence. Paper number 41-A and 42-A was not signed by his mother, because he was not present. This witness has denied the suggestion that his relations with his parents were not cordial. He became aware of the gift deeds executed by his mother through legal notice sent by the plaintiff. He had no talks with his mother during the pendency of the case. He didn't challenge the gift deeds executed by his mother because he was not having court fees. Since the plaintiff took his mother along with him, he couldn't say to his mother to give her statement in the court. The plaintiff prevented him from meeting his mother. After the death of his father, the plaintiff took his mother along with him and since then, the plaintiff prevented him from meeting his mother. He denied the suggestion that both the gift deeds were executed by his mother willingly in favour of the plaintiff. His elder brother was not having any knowledge of the gift deeds. His elder brother was not in possession of the disputed property, who vacated it in the lifetime of his father.
Appreciation of evidence by this Court
(a)Whether Smt. Santosh Kumari was the sole owner of the whole property, which was gifted to the plaintiff by disputed gift deeds?
(c)Whether the defendant was co-owner of the disputed property?
45. From the perusal of the sale deed dated 15.9.1969 it is evident that, it was executed by Development Trust Private Limited,Agra through its Managing Director Deoki Nandan Bibhab(vendor) in favour of Smt. Santosh Kumari Agarwal(vendee) wife of Dr. Mohanlal Agarwal. It is mentioned in the sale deed that plot No. 79-B, situated at Gandhi Nagar, Agra was purchased for total sale consideration of ₹ 10,000/-, the area of plot was 500 yd. Every cutting in the sale deed, was signed by the vendor. There is nothing in this sale deed to prove or suggest that the land was purchased in the name of Dr. Mohanlal Agarwal and the consideration was also paid by him. The original sale deed has been filed by the plaintiff which is paper No.38-A on record. The plaintiff has also filed the original building plan of the above land sanctioned by the Agra Development Authority dated 28.7.1984 and Prescribed Authority under U.P. (Regulation of Building Operations) Act XXXIV of 1958 Regulated Area, Agra having no. 2/196970, in the name of Smt. Santosh Kumari. The plaintiff also proved that the land of the disputed house was purchased in the name of his mother Smt. Santosh Kumari and after getting the building plan sanctioned from the competent authority, construction was undertaken on it.
46. The defendant has also filed paper No. 51-C which is the certified copy of the registered will executed by his mother Smt. Santosh Kumari dated 01.5.2002, which discloses that she was the sole owner in possession of the residential house number 25/161, Gandhi Nagar, Hariparwat Ward, Agra city. The recitals of the will disclose that the land of the above house number 79-B, area 500 square yard situated in Gandhi Nagar, Agra was purchased from her stridhan on 15.9.1969, which was subsequently registered on 5.11.1969, and construction was also undertaken on it by her, from her stridhan. Subsequently, water and electricity connection were also obtained so that she could reside in it. She specifically mentioned that she was the sole owner in possession of the above house, in which no other person had any ownership, no other person had contributed towards it. The will further disclosed that after the death of Smt. Santosh Kumari the whole property was bequeathed to her husband Dr. Mohanlal Agarwal and if, her husband died during her lifetime, then in the absence of any other written arrangement, the property devolved on her three sons Manoj Kumar Agarwal, Sudhir Kumar Agarwal & Subodh Kumar Agarwal in the manner specified in the will.
47. The defendant has not mentioned anything about the above will in his written statement. There is a complete absence in the pleadings regarding the above will, but the defendant has admitted its execution in his oral evidence. The defendant admitted in the cross-examination that his mother had the right to execute the will regarding the disputed property and the building plan was also sanctioned in the name of his mother, because she was the owner of the house.
48. In view of the above evidence on record, the contention of the defendant that his mother Smt. Santosh Kumari was not the sole owner of the disputed property is untenable. The defendant is claiming himself to be the co-owner of the disputed property but there is no documentary evidence to prove this. Since, the sale deed and the will, specifically mentions that Smt. Santosh Kumari purchased the disputed land with her stridhan and the construction was also undertaken on it by her from her stridhan, as such, the contention of the defendant that the real owner of the disputed property was Dr. Mohanlal Agarwal, the husband of Smt. Santosh Kumari, is liable to be rejected. There is no evidence on record to prove that Smt. Santosh Kumari was the benami owner of the disputed property. The defendant was bound by his above admission that Smt. Santosh Kumari was the sole owner of the disputed property and she had a right to execute the will regarding the disputed property. Besides this, the defendant failed to prove by leading cogent evidence that he was having any ownership in the disputed property.
49. In view of the above analysis, it is proved by documentary and oral evidence that Smt. Santosh Kumari was the sole owner of the disputed property, in which the defendant was not having any ownership or co-ownership right, in any manner whatsoever.
(b)Whether the gift deeds executed by Smt. Santosh Kumari in favour of plaintiff were void due to fraud, coercion and undue influence exercised by plaintiff?
50. It is the case of the plaintiff that his mother Smt. Santosh Kumari was the absolute owner of the disputed property who had executed two registered gift deeds on 6.7.2009 and 9.5.2014 in his favour, on the basis of which he became the owner of the disputed property. The plaintiff has filed the above registered gift deeds in original, which are paper no. 42-A and 41-A respectively, has proved its execution by examining himself as PW-1 and also the attesting witness Prakash Kaushal as PW-2 before the trial court. The plaintiff and PW-2 proved that Smt. Santosh Kumari had willingly, without coercion and undue influence executed the above gift deeds in favour of the plaintiff. The witnesses also proved that at the time of execution of the gift deeds, Smt. Santosh Kumari was mentally fit, had a good vision and hearing capacity, who herself went to the concerned sub-registrar office for executing the gift deeds. It is apparent that in the gift deed dated 6.7.2009 there are two attesting witnesses PW-2 and Sardar Singh and in the gift deed dated 9.5.2014, the attesting witnesses are Jal Singh and PW-2, thus PW-2 was the common attesting witness of both the gift deeds.
51. PW-2 proved that Smt. Santosh Kumari willingly went with the plaintiff to the concerned office of the sub registrar, where the gift deed was read and explained to her, to which she consented and signed, affixed her thumb and finger impression on it, she also signed her photograph. This witness proved that in his presence Smt. Santosh Kumari had signed the gift deeds. In the cross-examination of PW-2 there is no such disclosure, which renders his testimony unreliable.
52. From the perusal of gift deed dated 6.7.2009 paper no.42-A it is evident that it was signed by Mohanlal Agarwal, Smt. Santosh Kumari and Manoj Kumar Agarwal(plaintiff). It is also evident that both Dr. Mohanlal Agarwal and Smt. Santosh Kumari have executed the gift deed as donors of the disputed property. The donee is the plaintiff. It is also evident that the donors have gifted the red portion of the disputed property, shown in the annexed map, to the donee. The gift deed discloses that the total area is 418 m, out of which 223 m is covered on the ground floor, 70 m is covered on the first floor and the remaining area is uncovered. The gift deed also discloses that Smt. Santosh Kumari purchased the land and undertook construction on it after sanctioning the building plan, from her stridhan, obtained water and electricity connection, paid house tax to Nagar Nigam. It also discloses that the plaintiff had offered his selfless services to the donors, due to which, they were very happy and decided to gift the disputed property to the plaintiff (donee), who was also residing in the disputed property, who consented to accept the gift. The gift deed further discloses that Dr. Mohanlal Agarwal had no right in the disputed property, who had gifted some money, from his self-earned money towards the construction of the house and further, both the husband-and-wife unanimously decided to gift the disputed property to the plaintiff, and as such, Dr. Mohanlal Agarwal joined in the execution of the gift deed as consenting party, in order to secure the ownership and rights of the donee.
53. The above gift deed also discloses that previously Smt. Santosh Kumari had executed a will dated 01.5.2002, which was registered on 02.5.2002, which was also cancelled through this gift deed. The gift deed specifically records that since the disputed property was being gifted to the plaintiff, as such, Smt. Santosh Kumari was cancelling the above registered will by making endorsement of cancellation on the back of the above registered will. It also discloses that since Smt. Santosh Kumari was unable to move, she had appointed her husband Dr. Mohanlal Agarwal as her general power-of-attorney for executing the gift deed.
54. The gift deed dated 9.5.2014 paper no.41-A discloses that it was executed by Smt. Santosh Kumari in favour of plaintiff. The recitals of the gift deed disclose that the land was purchased from the stridhan of Smt. Santosh Kumari and construction on it, was also undertaken on it, from her stridhan. It also discloses that Smt. Santosh Kumari got the building plan sanctioned in the year 1971, obtained water and electricity connection, recorded herself as owner in the Nagar Nigam and was paying house tax, etc. It also discloses that the plaintiff offered his selfless, untiring services and care to the donor, due to which she was very happy and gifted the disputed house to the plaintiff, her son, who was also residing in the disputed house. It also discloses that previously some portion of the disputed property was not gifted to the plaintiff, which was now being gifted. The gift deed specifically mentions that the plaintiff has now become the sole owner in possession of the entire disputed property. It further discloses that the donor's husband Dr. Mohanlal Agarwal was not having any right, title and interest in the disputed property, who had previously, willingly consented to become co-donor on the request of the plaintiff, who has now died. It further discloses that her son Subodh Agarwal (defendant) was given permission for short duration by her, to reside in the disputed property but subsequently, the defendant and his family members made her life miserable due to their conduct, who have been ordered to reside elsewhere, after terminating their permission. The green portion of the property shown in the annexed map, was gifted to the plaintiff. It further discloses that the plaintiff has a right to evict the defendant and his family, from the disputed property by initiating appropriate legal proceedings. It further discloses that the remaining portion of ground floor having covered area 64.45 m and 198.21 square meter constructed area on the first floor, was now being gifted.
55. The defendant has taken a defence that the above gift deeds were got executed by the plaintiff in his favour from Smt. Santosh Kumari by practising coercion, undue influence and fraud on her, as such, the gift deeds are void, on the basis of which, no right title and interest has vested in the plaintiff, regarding the disputed property. It was further averred by the defendant that at the time of execution of the above gift deeds, Smt. Santosh Kumari was not in a fit mental condition, was not having proper vision, was hard of hearing, was ill, confined to bed, as such, she was not in fit mental and physical condition to execute the above gift deeds. Learned counsel for the appellants has submitted that fraud was committed by making interpolations in the sale deed paper no.38-A and gift deeds paper no.41-A and 42-A by adding the word Smt. Santosh Kumari ahead of the word Dr. Mohanlal Agarwal without having any signature verifying it. It was further submitted that fraud was also evident from the map of gift deed dated 6.7.2009 which was totally contrary to the earlier map annexed with the will dated 1.5.2002 and with the subsequent gift deed dated 9.5.2014. It was further submitted that the columns meant for the signature of the witnesses were left blank and signature of only one witness was present.
56. The Apex Court in the case of Ramesh B. Desai and others vs. Bipin Vadilal Mehta and others (2006) 5 SCC 638 has held that Order 6 Rule 4 CPC requires that complete particulars of fraud shall be stated in the pleadings. It was further held that particulars of alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard.
57. In the written statement the defendant has simply stated that the gift deeds were invalid, unauthorised and were executed under coercion and undue influence. It was further stated that Smt. Santosh Kumari was bedridden, had a fragile health and was having no senses, was hard of hearing and has almost lost vision. It was further stated that since gift was executed through power-of-attorney, which itself shows the physical and mental disability of Smt. Santosh Kumari and it also shows that under duress and coercion, her husband got power-of-attorney executed in his favour as she was not even able to move, in collusion with the plaintiff. She was old, infirm person.
58. It is also apparent that the written statement does not disclose that fraud has been practised by the plaintiff by making interpolations in the sale deed and gift deeds by adding Smt. Santosh Kumari before the name of Dr. Mohanlal Agarwal. There is no pleading in the written statement about the manner in which fraud was allegedly committed by the plaintiff, but it has been vehemently argued by the learned counsel for the defendant-appellant. From the law laid down by the Apex Court in the case of Ramesh B. Desai (supra), it is apparent that without proper pleading of fraud, no evidence can be looked into and no arguments whatsoever on fraud, are required to be considered by the court.
59. It is apparent from the written statement that the plea of coercion and undue influence has been taken by the defendant only on the ground that Smt. Santosh Kumari was old and infirm lady, who was bedridden, who was hard of hearing and had poor vision but, these facts are not substantiated from the evidence of PW-1 and PW-2. Smt. Santosh Kumari was about 80 years old at the time of execution of the gift deeds, but only due to her advanced age, it cannot be presumed that she was not in a fit mental and physical condition at the time of execution of gift deeds in favour of plaintiff.
60. It is also apparent that Smt. Santosh Kumari had not appointed her husband Dr. Mohanlal Agarwal as her power-of-attorney, at the time of execution of gift deed dated 6.7.2009 and this gift deed, as well as the subsequent gift deed dated 9.5.2014, had been executed by Smt. Santosh Kumari in her individual capacity. As herein-before analysed, Dr. Mohanlal Agarwal was not having any right, title and interest in the disputed property and he had merely joined as a consenting party on the request of plaintiff in the gift deed dated 6.7.2009. The gift deed dated 6.7.2009 does not prove that it was executed by Dr. Mohanlal Agarwal as power-of-attorney on behalf of his wife Smt. Santosh Kumari.
61. The recitals of gift deed dated 9.5.2014 also prove that the relations of Smt. Santosh Kumari and defendant was not cordial, which is also proved from the evidence of plaintiff PW-1 and DW-1and due to this, Smt.Santosh Kumari resided with the plaintiff, after the death of her husband Dr. Mohanlal Agarwal in the year 2010.
62. Section 123 of the Transfer of Property Act, 1882 reads as under: -
123. Transfer how effected-For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid are by delivery.
Such delivery may be made in the same way as goods sold may be delivered.
63. The Apex Court in the case of Renikuntla Rajamma (Deceased) through LR.'s Vs. K. Sarwanamma (2014) 9 SCC 445 (By 3 Judges), while analysing the ingredients of a valid gift, held as under: -
''11......When read with Section 122 of the Act, a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. That such acceptance must be given during the lifetime of the donor and while he is still capable of giving is evident from a plain reading of section 122 of the Act. A conjoint reading of Sections 122 and 123 of the Act makes it abundantly clear that ''transfer of possession'' of the property, covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua-non for the making of a valid gift under the provisions of Tranfer of Property Act, 1882.
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16. The matter can be viewed from yet another angle. Section 123 of the T.P. Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word ''transfer must be effected'' used by Parliament insofar as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or ''by delivery''. The difference in the two provisions lies in the fact that insofar as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property.'' (emphasis supplied)
64. It is apparent from Section 123 of the Transfer of Property Act that a gift of immovable property can also be made on behalf of the donor on the basis of power-of-attorney, as such, even though in the instant case the gift deed dated 6.7.2009 was executed by Smt. Santosh Kumari in her individual capacity but, if for the sake of argument, it is assumed that it was executed by her husband Dr. Mohanlal Agarwal as power-of-attorney holder on behalf of Smt. Santosh Kumari, even then, no illegality was committed in executing the gift deed in favour of plaintiff.
65. It is also apparent that since possession was not an essential prerequisite for the making of a valid gift in the case of immovable property, the disputed property which was in the possession of the defendant at the time of execution of gift deeds by Smt. Santosh Kumari, was also gifted by her to the plaintiff and since, the gift was executed in accordance with Section 123 of the Transfer of Property Act and it was accepted by the plaintiff, the gift was valid and legal.
66. In view of the aforesaid facts, there is no evidence on record to prove that the gift deeds were executed by Smt. Santosh Kumari under coercion and undue influence of the plaintiff. There is also no evidence to prove that any fraud was committed by the plaintiff on Smt. Santosh Kumari at the time of executing the above gift deeds in his favour.
(d)Whether the defendant was residing as a licencee in the disputed property?
(e)Whether the plaintiff was entitled to claim the possession of the disputed part of the property, which was in the occupation of defendant as licencee, by filing the suit for the relief of mandatory injunction?
67. From the analysis made herein-before it is proved that the defendant was not having any independent right, title and interest in the disputed property. Even though, the defendant pleaded that he was the co-owner of the disputed property but, the defendant failed to prove this fact. No documentary evidence of title in the disputed property was led by the defendant before the trial court and in its absence, it cannot be presumed that defendant was having co-ownership in the disputed property. The plaintiff PW-1 proved that the defendant was residing as a licencee in the disputed house at the time of execution of gift deeds in favour of the plaintiff. The gift deed dated 9.5.2014 specifically mentions that the defendant was given permission for a short duration to reside in the disputed house by Smt. Santosh Kumari but the defendant and his family members, made the life of Smt. Santosh Kumari miserable, tormented her on one pretext or the other and as such, Smt. Santosh Kumari terminated his licence and ordered the defendant to reside elsewhere. It is also mentioned in this gift deed that the plaintiff (donee) has a right to eject the defendant himself or through court, and obtain the possession of the disputed property from the defendant.
68. The Apex Court in the case of Sant Lal Jain vs. Avtar Singh (1985) 2 SCC 332 held as under:-
6. Now the parties are bound by the following factual findings recorded by the learned Additional District Judge in the first appeal, namely: (1) that the appellant who had become the sole proprietor of M/s Jain Motors in 1967 though at the time of the lease of the property by the original owner Lt.-Col. Sadan Singh to Jain Motors in 1963 he was only one of its partners, was the lessee of the property; (2) that the respondent had become a licensee of the suit shed under the appellant when the appellant was in possession of the whole of the demised premises including the suit shed as tenant under the original owner; (3) that the licence in favour of the respondent had been revoked before the institution of the present suit and (4) that subsequent to the decision in the first appeal on December 7, 1978 the respondent had purchased the entire property from the original owner by a sale-deed dated August 27, 1979. In these circumstances, there is no merger of the lease of the whole property by its original owner in favour of the appellant by reason of the sale of the entire property by the original owner in favour of the respondent or of the licence given by the appellant to the respondent which had been revoked prior to the date of the suit. The lease in favour of the appellant continues, and it is not disputed that under the Act of 1949 referred to above, even the tenant of a vacant land in Patiala town cannot be evicted therefrom except in accordance with the provisions of that Act. In K.K. Verma v. Union of India Chagla, C.J. presiding over a Division Bench has observed that in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment. In Milka Singh v. Diana it has been observed that the principle that once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed:
After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under Section 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict a licensee has always been held to be maintainable.
... where a licenser approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licenser causes huge delay, the court may refuse the discretion to grant an injunction on the ground that the licenser had not been diligent and in that case, the licenser will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act.
7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.
8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from someone else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession.
69. The Apex Court in the case of Joseph Severance & Ors. vs. Benny Mathew & Ors. (2005) 7 SCC 667 held as under:-
7. There was no specific plea taken by the defendants that the suit should be one for recovery of possession and the suit for injunction is not maintainable. In fact, before the trial court and the first appellate court the stress was on something else i.e. the effect of Section 60(b) of the Easements Act, 1882 (in short the Easements Act) and the alleged non-maintainability of the suit on the ground of non-joinder of necessary parties. Before the High Court the plea was taken for the first time that the suit was not maintainable being one for mandatory injunction and for prohibitory injunction and not one for recovery. Strictly speaking, the question is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. The correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the licence. The licensee may have to continue to be in occupation of the premises for sometime to wind up the business, if any. In such a case the licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the licence the licensor does not take prompt action to evict the licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee's occupation does not become hostile possession or the possession of a trespasser the moment the licence comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises, the suit will be maintainable.
70. The Apex Court in the case of Prabhudas Damodar Kotecha & Ors. vs. Manhabala Jeram Damodar & Anr. (2013) 15 SCC 358, held as under:-
47. Let us now examine the definition of licence under Section 52 of the Easements Act which provides that:
52.Licence defined.Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.
This Court in State of Punjab v. Brig. Sukhjit Singh [(1993) 3 SCC 459] has observed that payment of licence fee is not an essential attribute for subsistence of licence. Section 52, therefore, does not require any consideration, material or non-material to be an element, under the definition of licence nor does it require that the right under the licence must arise by way of contract or as a result of a mutual promise.
48. We have already referred to Section 52 of the Easements Act and explained as to how the legislature intended that expression to be understood. The expressions licensor and licensee are not only used in various statutes but are also understood and applied in various fact situations. The meaning of that expression licence has come up for consideration in several judgments. Reference may be made to the judgment of this Court in C.M. Beena v. P.N. Ramachandra Rao [(2004) 3 SCC 595] , Sohan Lal Naraindas v. Laxmidas Raghunath Gadit [(1971) 1 SCC 276] , Union of India v. Prem Kumar Jain [(1976) 3 SCC 743 : 1976 SCC (L&S) 499] and Chandy Varghese v. K. Abdul Khader [(2003) 11 SCC 328] .
49. The expression licensee has also been explained by this Court in Surendra Kumar Jain v. Royce Pereira [(1997) 8 SCC 759] .
50. In P.R. Aiyar's The Law Lexicon, 2nd Edn., 1997, license has been explained as:
A license in respect to real estate is defined to be an authority to do a particular act or series of acts on another's land without possessing any estate therein.
51. The word licensee has been explained in Black's Law Dictionary, 6th Edn. to mean:
Licensee.A person who has a privilege to enter upon land arising from the permission or consent, express or implied, of the possessor of land but who goes on the land for his own purpose rather than for any purpose or interest of the possessor.
52. Stroud's Judicial Dictionary of Words and Phrases, 6th Edn., Vol. 2 provides the meaning of the word licensee to mean a licensee is a person who has permission to do an act which without such permission would be unlawful.
53. We have referred to the meaning of the expressions licence and licensee in various situations rather than one that appears in Section 52 of the Easements Act only to indicate that the word licence is not popularly understood to mean that it should be on payment of licence fee, it can also cover a gratuitous licensee as well. In other words, a licensor can permit a person to enter into another's property without any consideration, it can be gratuitous as well.
71. The Apex Court in the case of Gowri vs. Shanthi and another (2014) 11 SCC 664 held as under: -
13. From the narration of events and the findings of the Court as noted above, the admitted position which emerges on record is that settlement deed dated 25-4-1949 executed by Sundaramurthy in favour of his sister Jagadambal is found to be genuine. The courts have rejected the challenge of the respondents to the said settlement deed. This finding has become final. Another finding which has attained finality is that Jagadambal had subsequently purchased the leasehold property from the temple authorities and had become the absolute and exclusive owner of the suit property. There is thus, no question of inheritance of this property by the respondents as daughters of Sundaramurthy. Since Jagadambal was found to be the absolute owner of the property, the possession of the part of this property with the respondents has to be permissive as rightly found by the trial court. It is not their case that they were inducted as tenants or in any other capacity which would confer upon them any right to stay therein. On the contrary, the case put up by them was that they are entitled to inherit one-third share each in the said property by virtue of succession which is found to be a baseless scheme. On these facts, we are of the opinion that the trial court was right in passing the decree of mandatory injunction in a suit which was filed by Jagadambal. The lis was between Jagadambal and the respondents. It is only when during the pendency of the appeal Jagadambal died, the present appellant was brought on record in substitution of the deceased as her legal heir. In the appeal the High Court was concerned with the validity of the judgment and decree passed by the trial court wherein Jagadambal was the plaintiff. After dismissal of appeal i.e. AS No. 1173 of 2004 on 24-8-2011 [Shanthi v. Gowri, First Appeal No. 1173 of 2004, decided on 24-8-2011 (Mad)] , the High Court should have dismissed the other appeal i.e. AS No. 1175 of 2004 as well. Inter se rights of the appellant herein and the respondents as sisters was neither an issue before the High Court nor could it be dealt with. Notwithstanding the above, we find that the High Court has relegated parties to fresh proceedings on the premise that there is a dispute over the title and that needs to be determined for which appropriate suit needs to be filed. These observations of the High Court that there is a dispute over the title is clearly erroneous.
14. So far so good. It would mean that the suit which was decreed by the trial court in favour of Jagadambal was rightly decreed and the High Court could not have upset the decree, more particularly when it had dismissed another appeal of the respondents i.e. AS No. 1173 of 2004 vide judgment dated 24-8-2011 [Shanthi v. Gowri, First Appeal No. 1173 of 2004, decided on 24-8-2011 (Mad)] holding that sale deed which had been executed by the temple authorities in favour of Jagadambal on 31-3-1950 was valid and Jagadambal had become the absolute owner of the property. Thus, she had a right to file suit for mandatory injunction seeking to evict the respondents herein who were in permissive possession. However, Jagadambal has since passed away and the question of inheritance of the property of Jagadambal is at large and has not been decided in the instant proceedings. No doubt, on the death of Jagadambal the appellant herein was impleaded as her LR. However, that may be because of the reason that the respondents who are also nieces of Jagadambal, were already on record.
15. Even when no fresh suit is required, the issue will still be as to whether the appellant has a right to execute the decree passed in favour of the deceased Jagadambal. It would depend on the other related question viz. who are the successors-in-interest of the deceased and whether the respondents also get share in the property as LR of the deceased. The appellant is claiming to be the sole successor-in-interest, who has inherited the property on the basis of some will executed by Jagadambal in her favour. Here, the High Court has observed in the impugned judgment that the deceased had admittedly written three wills under different circumstances which require scrutiny of the Court. Nobody, has filed any suit for relief of declaration. This is the reason which has prompted the High Court to direct the parties to file fresh suit with regard to title over the suit property. However, we are of the view that for this reason appeal should not have been allowed as mentioned above. The decree passed in favour of Jagadambal by the trial court was justified and the appeal of the respondent should have been dismissed affirming that decree. At the same time, the High Court could clarify that whether the appellant can get the fruits of the said decree and is competent to file the execution or not would depend upon her proving that she has inherited the suit property and is the sole owner thereof. This can be claimed in the execution or by filing the fresh suit with regard to title over the said property, more so when there are three wills purportedly executed by the deceased Jagadambal which has surfaced.
72. It is apparent from the above law laid down by the Apex Court in the case of Sant Lal Jain(supra), Joseph Severance(supra) and Gowri(supra) that after the termination of the licence, the licencee is under an obligation to surrender his possession to the owner and if he fails to do so, a suit for mandatory injunction can be filed to compel the licencee to discharge this obligation. It was further held that the plaintiff cannot be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction. It was further held that the defendant was a licencee and he must be deemed to be always a licencee. It was not open to him during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence, to set up title to the property in himself or anyone else. It was his plain duty to surrender possession of the property as a licencee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. It was further held that, he need not do so if he has, acquired title to the property from the licensor or from someone else lawfully claiming under him, in which case there would be clear merger.
73. It is apparent that the defendant is neither co-owner nor tenant in the disputed property. His possession was only permissive. From the law laid down by the Apex Court in Prabhudas Damodar Kotecha (supra), it is evident that the defendant was only a gratituous licencee of the plaintiff and his predecessor Smt. Santosh Kumari in the disputed property. It is also apparent that his licence was terminated by giving valid legal notice by the plaintiff, the receipt of which was acknowledged by the defendant in his written statement and oral evidence, as such, after termination of the licence, the defendant was bound to handover the vacant possession of the disputed property to its owner i.e. plaintiff, but the defendant failed to do so, as such, the plaintiff was compelled to file the suit for the relief of mandatory injunction, for obtaining the possession of the disputed property, which was in occupation of the defendant. It is apparent that the plaintiff has not committed any illegality in filing the suit for the relief of mandatory injunction for claiming possession of the disputed property, after terminating the licence of the defendant.
74. Learned counsel for the defendant has submitted that defendant was the licencee of his mother Smt. Santosh Kumari and after the execution of alleged gift deed dated 9.5.2014, since Smt. Santosh Kumari transferred her rights to the plaintiff, the alleged licence ceased to exist by operation of law and the only remedy left for the plaintiff was to file a suit for possession and a suit for mandatory injunction was not maintainable. Learned counsel in support of his submission relied upon the case law of this Court in Sudhir Bansal and another Vs. Girish Bansal 2015(5) ADJ 624 (Division Bench).
75. I have perused the above case law submitted by the learned counsel for the defendant. The Division Bench of this Court, after considering section 59 of the Indian Easement Act held that since the plaintiff appellants have got the property from the original licensor i.e., Smt. Premwati, by virtue of a transfer, the licence granted in favour of the defendant respondent ceased to exist and there was no relationship of licensor and licencee between the plaintiff appellants and defendant respondent. It was further held that since the defendant respondent was not the licencee of the plaintiff appellants, who acquired rights of the property by transfer from the erstwhile owner, suit filed by them is a suit for possession and the court fees becomes payable under Section 7(v) of the Court Fees Act at the advaloram value. It was further held that since the suit was not filed by the licensor, but by subsequent purchaser, who was not bound by the terms of the licence in view of Section 59 of the Indian Easement Act. Though the situation and the reliefs were couched in different words, but as a matter of fact, it was a simple suit for possession. There was no relationship of licensor and licencee between the plaintiffs and the defendant and, thus, in view of the above, the court fees was payable under Section 7(v) of the Act.
76. Section 59 of the Indian Easements Act reads as under: -
59. Grantor's transferee not bound by licence- When the grantor of the licence transfers property affected thereby, the transferee is not as such bound by the licence.
77. From the plain language of section 59 of the Indian Easements Act it is evident that when the property affected by licence is transferred, then the transferee is not bound by the earlier licence. Nowhere, the section bars creation of a new licence between the transferee and the original licencee. This section only mandates that the original licencee cannot enforce the licence on the transferee and the transferee is not bound by the previous licence. In the instant case, the first gift deed was executed on 6.7.2009 by Smt. Santosh Kumari in favour of the plaintiff and the subsequent gift deed was executed on 9.5.2014, but no legal action was taken by the plaintiff for the eviction of the defendant from the disputed property, soon after the execution of the first gift deed, which implies that a fresh relationship of licensor and licencee developed between the plaintiff and the defendant. This is further affirmed from this fact that the legal notice was given by the plaintiff to the defendant on 4.8.2014, for revoking the licence granted to the defendant. It is especially mentioned in the plaint that after the execution of gift deeds in favour of the plaintiff by his mother, the defendant's occupation was under the permission of plaintiff, as licencee. It is apparent that in this case there was no express licence. The conduct of the plaintiff also proves that new relationship of licensor and licencee developed between him and the defendant, after execution of gift deeds in favour of the plaintiff.
78. Section 54 of the Indian Easements Act reads as under:-
54. Grant may be express or implied- The grant of licence may be express or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a licence.
79. It is apparent from section 54 of the Indian Easements Act that the licence may be granted orally or in writing. In the instant case, an oral licence was granted to the defendant by the plaintiff, since, the plaintiff and defendant were real brothers. In view of the above facts, the law laid down by the Division Bench of this Court in Sudhir Bansal(supra) is not applicable to the facts of this case, and is clearly distinguishable and is confined to the peculiar facts of that case. It is well settled by the Apex Court in the case of Sant Lal Jain(supra) and Gowri(supra) and that after termination of licence, the plaintiff can claim the possession of the property through relief of mandatory injunction, which has been done by the plaintiff in the instant case, which cannot be said to be illegal, in any manner whatsoever.
(f)Whether the defendant had raised permanent constructions in the disputed part of the property, which was in his occupation, rendering the licence irrevocable?
80. It is the case of the defendant that in the disputed portion of the property, which was in his occupation, he had raised permanent constructions as such, if there was any licence granted to him to reside in the disputed property, such licence has become irrevocable due to the permanent constructions raised by him in his portion.
81. The plaintiff has duly proved that the land of the disputed property was purchased by Smt. Santosh Kumari and after getting the building plan sanctioned from the competent authority, constructions were raised by her on the land from her stridhan. The plaintiff has duly filed the original sanctioned building plan on record which are paper no.39-A and 40-A. These building plan duly prove that Smt. Santosh Kumari had obtained permission for raising the constructions on the land. Contrary to it, the defendant has not led any evidence to prove that any building plan was got sanctioned by him and thereafter, he raised the constructions on the disputed portion of the property, which was in his occupation. DW-1 admitted in cross-examination that the constructions were raised without getting the building plan sanctioned, which were later on compounded in the name of his mother Smt. Santosh Kumari, because she was the owner of the property. In view of this, the defendant failed to prove that he raised independent constructions on his portion of the property, rendering the licence irrevocable.
(g)Whether there were interpolations in the sale deed and gift deeds executed in favour of the plaintiff and his predecessor Smt. Santosh Kumari, so as to render them illegal and inadmissible?
82. The Apex Court in the case of Vimal Chand Ghevarchand Jain & Ors. vs. Ramakant Eknath Jajoo (2009) 5 SCC 713, has held as under: -
22.The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction. Evidently, with a view to avoid confrontation in regard to his signature as an attesting witness as also that of his father as vendor in the said sale deed, he did not examine himself. An adverse inference, thus, should have been drawn against him by the learned trial court. (See Kamakshi Builders v.Ambedkar Educational Society[(2007) 12 SCC 27: AIR 2007 SC 2191].)
83. The Apex Court in the case of Prem Singh & Ors. vs. Birbal & Ors. (2006) 5 SCC 353, has held as under: -
27.There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.
84. It is the case of the defendant that there are several cuttings/interpolations in the sale deed of the disputed land executed in favour of Smt. Santosh Kumari and the gift deeds executed by Smt. Santosh Kumari in favour of the plaintiff. The plaintiff has filed the above original sale deed and gift deeds which are paper no.38-A,41-A and 42-A from the perusal of which, it is evident that every cutting/interpolation has been signed by the executor of the document. All the above documents are registered documents, as such, there is a presumption of genuineness as per section 58 and 60 of the Indian Registration Act which has not been rebutted by the defendant, by leading cogent evidence. The gift deeds bear photographs of the donor and donee, impressions of all the 10 fingers and endorsement of the concerned sub-registrar. The defendant has filed the certified copy of the above gift deeds to show that there are certain interpolations and cuttings in the gift deeds, but since the original gift deeds have been filed by the plaintiff, as such, merely on the basis of its certified copy, it cannot be presumed that the original gift deeds are fraudulent, on the basis of which no title is conferred in the disputed property, on the plaintiff. It is also well settled that where a original document is produced before a court in primary evidence, it cannot be discredited on the basis of secondary evidence(certified copy).
(h)Whether the documents submitted by the plaintiff were not exhibited by the trial court, which rendered them inadmissible in evidence?
85. It has been vehemently argued by the learned counsel for the appellant that the original documents submitted by the plaintiff were not exhibited, as such, they are inadmissible in evidence and on the basis of these documents, the plaintiff 's suit could not have been decreed by the trial court. In support of his above contention learned counsel has relied upon the case law of New Okhla Industrial Development Authority v. Kendriya Karamchari Sahkari Grih Nirman Samiti Ltd. 2017 (11) ADJ 522.
86. The Constitution Bench of the Apex Court in the case of Neeraj Dutta vs. State (Govt. of NCT of Delhi) (2023) 4 SCC 731, held as under: -
60. Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence. When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act. Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, the contents of the document must be proved either by the production of the original document i.e. primary evidence or by copies of the same as per Section 65 as secondary evidence. So long as an original document is in existence and is available, its contents must be proved by primary evidence. It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed. Primary evidence is the best evidence and it affords the greatest certainty of the fact in question. Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence. What is to be produced is the primary evidence i.e. document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents. Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
61.***
62. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence. Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) [Amarjit Singh v. State (Delhi Admn.), 1994 SCC OnLine Del 739 : 1995 Cri LJ 1623 (Del)] (Amarjit Singh). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.
(emphasis supplied)
87. The Apex Court in the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple & another (2003) 8 SCC 752, held as under: -
19.Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the court to the person from whose custody it was produced.
20.The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v.State of Madras[AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
21.The Privy Council in Padman v. Hanwanta [AIR 1915 PC 111 : 19 CWN 929] did not permit the appellant to take objection to the admissibility of a registered copy of a Will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed: (AIR p. 112) The defendants have now appealed to His Majesty-in-Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the Will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.
22.Similar is the view expressed by this Court in P.C. Purushothama Reddiar v. S. Perumal[(1972) 1 SCC 9 : (1972) 2 SCR 646] . In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed: (SCC p. 15, para 19)
19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility see Bhagat Ram v. Khetu Ram[AIR 1929 PC 110].
88. Section 99 of the CPC reads as under: -
Section 99: No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction-No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:
Provided that nothing in this section shall apply to non-joinder of a necessary party.
89. The Apex Court in the case of Vimla Devi & others vs. National Insurance Co. Ltd and another (2019) 2 SCC 186, while considering the effect of non-exhibiting the documents by the court, held as under: -
''20.8. Seventh, if the Court did not exhibit the documents despite the appellants referring them at the time of recording evidence than in such event, the appellants cannot be denied of their right to claim the compensation on such ground. In our opinion, it was nothing but a procedural lapse, which could not be made basis to reject the claim petition. It was more so when the appellants adduced oral and documentary evidence to prove their case and the respondents did nothing to counter them.'' (emphasis supplied)
90. From the perusal of the record of the lower court it is evident that the original documents were filed by the plaintiff before the trial court on 11.4.2017 by list of documents paper no.37-C, on which only an endorsement of 'seen' was recorded on behalf of the defendant. It is clear that the documents were neither 'opposed' nor 'not admitted' by the defendant, at the time of filing. Further, the plaintiff moved an application 45-C on the same date i.e. 11.4.2017 on the ground that the original documents filed by it can be manipulated by the defendant, as such, the original documents be kept in a sealed cover, in the safe of the court, which was not opposed by the defendant. Application 45-C was allowed by the court on 11.4.2017 and consequently, the original documents were ordered to be kept in a sealed cover, and a photocopy of them was kept on the file of the court.
91. It is also evident from the trial court record that ultimately after the conclusion of hearing and recording of evidence of both the parties, at the stage of arguments, the original documents were taken out from the safe of the court and again kept on the file of the court on 25.3.2019 and due to this, since, the original documents were in the sealed cover, due to the order of the trial court, they could not be exhibited by the trial court during recording of evidence of the plaintiff. It is apparent that it is the duty of the court to mark exhibit on the documents in accordance with Order 13 Rule 4 CPC, for which, the plaintiff cannot be faulted in any manner whatsoever. At no point of time, burden was upon the plaintiff to mark exhibits on the original documents submitted by him before the trial court. It is well settled that mere marking of exhibit on the document does not prove its execution and contents and the same has to be proved in accordance with law. In the instant case, the plaintiff has proved by leading cogent evidence the execution and the contents of the sale deed executed in favour of his mother Smt.Santosh Kumari and also the gift deeds executed by Smt.Santosh Kumari in favour of the plaintiff by examining himself as PW-1 and attesting witness Prakash Kaushal as PW-2.
92. From the law laid down by the Apex Court in the case of Vimla Devi(supra) it is apparent that non-exhibiting of the documents submitted by the plaintiff by the trial court, is merely a procedural lapse or irregularity falling within the ambit of Section 99 of the CPC, on the basis of which, the decree of the trial court cannot be set aside, if the plaintiff has otherwise proved its case on merits.
93. It is also apparent that the issue of non-exhibiting of original documents submitted by the plaintiff was never raised before the trial court by the defendant and it was raised for the first time, before this Court, in appeal. If this issue had been raised earlier before the trial court, then certainly, the trial court would have rectified the error/lapse by marking exhibits on the relevant documents. This also proves that the defendant was not serious about raising this issue before the trial court itself and no prejudice has been caused to the defendant by the above procedural lapse on the part of the court.
94. It is also well settled that ''Actus Curiae Neminem Gravabit'', meaning thereby that an act of the Court shall prejudice no man. This principle states that a party should not suffer a loss due to a mistake or error made by the court, and the court should take steps to correct its own mistakes. It is vital that nobody faces injustice by the negligence on part of the Court. This maxim is fully applicable in the facts and circumstances of this case.
95. In view of the above facts, merely due to procedural lapse on the part of the trial court in not marking exhibits on the original documents submitted by the plaintiff, cannot be deemed to be fatal to the plaintiffs case, more particularly when the plaintiff has proved its case by leading cogent evidence.
(i)Whether the appellate court in exercise of its power under Order 41 Rule 33 CPC can award damages @ ₹ 10,000/-per month to the plaintiff-respondent, against the defendant-appellant for its unauthorised use and occupation of the disputed property, during the pendency of this appeal, till its actual vacant possession is not handed to the plaintiff ?
96. The Apex Court in the case of Eastern Coalfields Ltd. versus Rabindra Kumar Bharti (2022)12 SCC 390 has held that Order 41 Rule 33 CPC vests the appellate court with extraordinary jurisdiction to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between one respondent and another respondent. Since the purpose of this rule is to effectuate full justice in cases presenting exceptional circumstances, the principle underlying this rule, inter alia, permits the appellate Court to render a judgment in favour of a non-appealing party, notwithstanding the absence of a cross appeal. There are only two requirements that need to be satisfied for the section to be invoked:-
(i)the parties before the appellate court should be the same as the parties before the lower court; and
(ii)the issue before the appellate court should properly arise out of the judgment of the lower court.
97. The Apex Court in the case of Vaibhav Jain vs. Hindustan Motors Private Ltd. (2025) 2 SCC 208,while discussing the power of the appellate court under Order 41 Rule 33 CPC, held as under:-
30. In Banarsi v. Ram Phal [Banarsi v. Ram Phal, (2003) 9 SCC 606] this Court dealt with the scope of Order 41 Rule 22 [ 22. Upon hearing respondent may object to decree as if he had preferred a separate appeal.(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may deem fit to allow.Explanation.A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.(2) Form of objection and provisions applicable thereto.Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.(3) Omitted (by Act 46 of 1999, w.e.f. 1-7-2002)(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.] CPC (post 1976 amendment) and the power of an appellate court under Order 41 Rule 33CPC. While dealing with the scope of Rule 22 of Order 41, the Court observed : (SCC pp. 616-17, paras 10-12)
10. There may be three situations:
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the Explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without his cross-objection; the amendment made in the text of sub-rule (1), read with the Explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.
12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage.
(emphasis in original)
31. In respect of the power of an appellate court under Order 41 Rule 33CPC, the Court, after observing that the true scope of the power could be best understood when read along with Rule 4 [ 41. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.] of Order 41, held : (Ram Phal case [Banarsi v. Ram Phal, (2003) 9 SCC 606] , SCC p. 619, para 15) 15 [Ed.: Para 15 corrected as per Official Corrigendum No. F.3/Ed.B.J./65/2003.] . Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually, the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations : first, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.
(emphasis supplied)
32. From the decision above, which has been consistently followed, it is clear that for exercise of the power under Rule 33 of Order 41CPC the overriding consideration is achieving the ends of justice; and one of the limitations on exercise of the power is that that part of the decree which essentially ought to have been appealed against, or objected to, by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party.
98. It is apparent that the plaintiff claimed decree for pendentilite and future mesne profits @ ₹ 30,000/- per month with 10% increase every year alongwith 18% interest against the defendant but this relief was refused by the trial court because in its opinion, the plaintiff failed to prove that he was entitled to the above relief from the defendant. It is also true that the plaintiff has not challenged the above finding by filing a cross appeal.
99. It is also evident that during the pendency of this appeal, the defendant-appellant moved stay application which was allowed by this Court by order dated 24.9.2019, which reads as under: -
Till then, operation of impugned judgment and decree, shall remain stayed subject to deposit of damages @ ₹ 10,000/- per month by appellant with the trial court from the date of decree. The amount of arrears from the date of decree will be deposited by appellant within 15th October,2019 and will be continued to deposit at the same rate by 10th of every next month. The amount so deposited will be got deposited by trial court in fixed deposit scheme in some Nationalised Bank, which will be renewed from time to time and shall abide the decision of appeal.
In case appellant fails to deposit the amount of arrears of damages by 15th October, 2019, or regularly thereafter the stay order shall automatically stands vacated.''
100. It is apparent that the defendant is enjoying the possession of the disputed property, to which he was not legally entitled, on the basis of the above stay order passed by this Court on 24.09.2019. The stay order itself was conditional, which mentions that if the appeal is dismissed, then the respondent is entitled to get the damages @Rs.10,000/- per month, which have been deposited by the appellant during the pendency of the appeal. In view of this, the defendant-appellant is bound to pay damages @ ₹ 10,000/-per month from the date of the decree of the trial court, which has been imposed by this Court, as a condition precedent for staying the impugned judgment and decree, vide order dated 24.9.2019, which is much less than the damages @ ₹ 30,000/- per month claimed by the plaintiff before the trial court and the plaintiff-respondent is entitled to receive the above damages for the use and occupation of the disputed property by the defendant-appellant during the pendency of the appeal till it's vacant possession is not handed to the plaintiff. It is also apparent that after having enjoyed the use and occupation of the disputed property on the basis of stay order granted by this Court, the appellant cannot say that he is not bound to pay the damages in accordance with that order, after the dismissal of this appeal.
101. The Apex Court in the case of Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira (Dead) through Lrs (2012) 5 SCC 370 (By 3 Judges), was examining the question of injunction between the plaintiff - brother, who was given the property in question as a caretaker, the owner being sister of the plaintiff. An argument was raised before the Apex Court that the possession of a caretaker can never be a possession in one's right and no suit for injunction under Section 6 of the Specific Relief Act was maintainable. It was held as under:
(1)No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(2)Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
(3)The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
(4)The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.
(5)The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.
102. The Apex Court in the case of Behram Tejani v. Azeem Jagani (2017) 2 SCC 759, where the respondent in appeal filed a suit claiming injunction, restraining the defendants from dispossession of the plaintiff from the suit premises, held as under:
14. Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances, the City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We, therefore, allow the appeal, set aside the judgment under appeal and restore the order dated 29-4-2013 passed by the Bombay City Civil Court in Notice of Motion No. 344 of 2013 in Suit No. 408 of 2013.
103. In the instant case also, the defendant-appellant is residing as a licensee in the property owned by the plaintiff, which was prievously owned by his mother, who has failed to prove his ownership in the disputed property. The defendant is neither a tenant nor a lessee of the plaintiff, whose licence has been duly terminated by the plaintiff by giving a valid notice and as such, merely on the basis of his long possession in the disputed property as a brother of the plaintiff, he is not entitled to defend his possession in the disputed property. The law laid down by the Apex court in the case of Maria Margarida Sequeira Fernandes (supra) and Behram Tejani (supra) are fully applicable in the facts and circumstances of this case. It is proved that the defendant was residing gratuitously in the disputed property and merely on the basis of his long possession of the disputed property, it cannot be said that he has acquired any right or title in the disputed property. The defendant is bound to hand-over the possession of the disputed property, as and when demanded by the plaintiff.
Conclusion
104. In view of the aforesaid analysis, the trial court has not erred in decreeing the plaintiff 's suit for the relief of mandatory injunction. Accordingly, this appeal has got no merits and is liable to be dismissed.
105. This appeal is hereby dismissed. Consequently, the impugned judgment and decree dated 01.7.2019 of the trial court in O.S. no.1213 of 2014 is affirmed. Costs easy.
106. The plaintiff-respondent is also entitled to get damages @ ₹ 10,000/- per month from the defendant-appellant, as imposed by this Court vide order dated 24.9.2019 from the date of decree of the trial court i.e 01.07.2019, till the actual and vacant possession of the disputed property is handed to the plaintiff by the defendant, in pursuance of the decree of the trial court, as affirmed by this Court.
107. Interim order, if any, stands vacated.
108. Office is directed to send back the original trial court record, forthwith.
109. Office is directed to prepare the decree, accordingly.
Order Date:- 18.11.2025 Jitendra/Himanshu/Mayank (Sandeep Jain, J.)