Madhya Pradesh High Court
Dr.Hemant Kumar vs Senodical Board on 20 August, 2018
Author: Rohit Arya
Bench: Rohit Arya
1 F.A.No.106/1999
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
First Appeal No.106 of 1999
Dr. Hemant Kumar Hala alias Sem and another
Vs.
Senodical Board of Health Services and others
________________________________________________________
Shri A.M.Mathur, Sr. Advocate assisted by Shri Abhinav Dhanodkar,
Advocate for the appellants.
Shri Ravish Agarwal, Sr. Advocate assisted by Shri Anshuman Singh
Singh and Ms. Darshana Baghel, Advocate for respondents No.1 &
2/plaintiffs.
Whether Approved for reporting: Yes
(1) Section 52 of the India Easements Act,1882 defines "licences".
(2) A license is not annexed to the property in respect of which it is enjoyed,
nor it is a transferable or heritable right, but is a right purely personal
between grantor and licensee.
(3) Licensee after revocation of license is under an obligation to surrender
the possession of the property to the licensor. He cannot avoid action for
recovery of the possession after revocation of the license claiming change of
his status after termination of license and shall deemed to be occupant of the
property through the lessor or licensor, i.e., original owner and be continued
to be a licensee qua the licensor.
(4) 'Gratuitous licensee';
A person having no independent right qua the suit premises though
staying with the original licensee in the suit 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
consequences.
(5) Trespass, trespasser; concept and meaning -
Trespass, in its widest sense, signifies any transgression or offence
against the law of nature, of society, or of the country, whether relating to a
man's person or to his property. But the most obvious acts of trespass are-
(1) trespass quare clasum fregit "because he (the defendant) broke or
entered into the close" or land of the plaintiff; and (2) trespass de bonis
asportatis, wrongful taking of goods or chattels. Here we are concerned with
the former, i.e., trespass to land.
'Trespasser' means a person who has been one from the very
beginning and not one who had original title but lost the same because of
efflux of time or by operation of law.
Where a person forcibly enter on the land of another with strong hand
2 F.A.No.106/1999
and against the will of the owner called a trespasser;
Mere possession is not sufficient and the ingredients of animus possidendi
must be existing either at the commencement of the possession or
continuation thereof.
Ex-licensee may be treated as trespasser after revocation or termination
of license if the licenser does not take prompt action to evict the licensee
from the suit property
(6) Applicability - Section 50 of the Bombay Trust Act has no
application inasmuch as at the time of institution of the suit, if a person was
in the employment and stood retired from service as well as the other
persons lived with him as 'gratuitous licensee'. The death of the original
licensee during pendency of the suit shall not render the suit not
maintainable for want of permission from the Charity Commissioner
Significant paragraphs: 1, 4, 9 to 20
Appeal dismissed.
________________________________________________________
Reserved on : 21/06/2018
ORDER
(20/08/2018) Rohit Arya, J This appeal by defendants No.4 and 5 under section 96 CPC is directed against the judgment and decree dated 08/02/1999 in civil suit No.35A/1991 by the trial Court decreeing the suit for eviction, mesne profits and for possession commanding (i) defendants to handover possession of bungalow No.44, Neemuch (for short, 'the suit property') to the authorized persons of the plaintiff together with open land and the erected structures thereupon as described with red ink in Schedule 'A' and exhibit P/10; (ii) defendants No.4 and 5 upon expiry of the licence on 02/10/1979 are liable to pay Rs.200/- per month as compensation with effect 02/10/1979 till delivery of possession and (iii) costs, expenses and counsel's fee of the plaintiffs payable by the defendants.
2. Plaintiffs inter alia pleaded that the plaintiff No.1 is a society registered under the Registration of Societies Act, 1960 bearing registration No.S-7664 dated 27/05/1975 issued by the Registrar of Societies Delhi Administration, New Delhi.
Plaintiff No.1 has been constituted by the Synod of Church of North India. There are several Regional Boards of Health Services functioning under it and one amongst them is "Central Regional Board of Health Services" commonly known as "C.R.B.H.S." of which one Dr. Sunderlal Daniel, its Chairman has signed the plaint on behalf of the 3 F.A.No.106/1999 plaintiff No.1. The "C.R.B.H.S." controls and manages the hospitals commonly known as "Christian Hospitals" or "Mission Hospitals"
including the Christian Hospital, Neemuch. Plaintiff No.1 is the user and occupier of the suit premises described in paragraph 4 of the plaint owned by the plaintiff No.2.
The original plaintiff No.2 incorporated under the Companies Act, 1956 (for short, 'the Act, 1956') and by virtue of title deed executed and registered on 20/11/1973 at sl.No.1804 with the Sub- Registrar, Neemuch is the owner of the immovable properties mentioned therein including the suit property situated in the city of Neemuch and commonly known as "Mission Compound". Rt. Revd. J.A. Gonsalves of Indore and Revd. M.B.Singh of Rasalpura, Mhow have signed the plaint as constituted attorneys of the plaintiff No.2.
By trial Court's order dated 18/09/1997, subsequent events were allowed to be brought on record and the plaint was amended to the effect; "United Church of Northern India Trust Association"
('UCNITA') has transferred in rights from trustee to trustee, Church of North India Trust Association ('CNITA') by a registered deed dated 20/12/1994 (exhibit P/21), therefore, CNITA is plaintiff No.2 through its Secretary who authorized by power of attorney to I.D.Maganjee, Neemuch. The CNITA has been registered under section 25 of the Act, 1956 bearing registration No.7936 with its registered office at 16 Pandit Pant Marg, New Delhi-110001.
Accordingly, the name of original plaintiff No.2 - UCNITA was deleted and the name of CNITA has been substituted.
It appears that the Company Law Board, Western Region Bench, At Mumbai on 16/12/1996 (exhibit P/26) has also permitted the amendment in clause 3 of the Memorandum of Association of the UCNITA, substituting "CNITA" for 'UCNITA'.
It is further pleaded that the erstwhile 'United Church of Northern India Trust Association" ('UCNITA') had several "Church Councils" for different areas and for Malwa area, known as "Malwa Church Council" ("M.C.C."). The M.C.C., had formed a body called the "Masihi Sewa Mandal" (M.S.M.) in turn had several respective Boards and committees, such as Prachar Ayog, Shiksha Ayog, Chikitsa Ayog, etc., The "Church of North India Association" ('CNITA') came into existence on 29/11/1970 consequent upon unification of six churches including the 'United Church of Northern India Trust Association"
('UCNITA').
Two storeyed main bungalow, which is part of the suit premises 4 F.A.No.106/1999 described in Annexure 'A' was let to the original defendant No.1, Dr. Habil Lazarus Hall free of rent as an employee for use as his residence. However, the defendant No.1 did not vacate the bungalow after cessation of the employment with the plaintiff No.1 on 01/10/1979 though he had handed over the charge on 02/10/1979 to Dr. S. Daniel and Mrs. C. Noah, both respectively Chairman and Secretary of C.R.B.H.S., in the presence of the persons mentioned therein.
Defendant No.1 in collusion and conspiracy with defendants No.2 to 5 started asserting his tenancy and possession of the said bungalow from defendants No.2 and 3. Though efforts were made by the plaintiffs to ensure amicable vacation of the said bungalow by defendant No.1 but all in vain. On 14/01/1981 a notice was sent to the defendant No.1 on phonogram to vacate the suit premises but, instead of vacating the said bungalow, the defendant No.1 in collusion and conspiracy with defendants No.2 to 5 intended as well as threatened to wrongfully sell the same.
Defendants No.4 and 5 are members of the family of defendant No.1 who are son and daughter-in-law and in that capacity lived with defendant No.1 in the said bungalow.
The plaintiffs further pleaded that the said bungalow can reasonably fetch rent of Rs.200/- per month. Hence, the defendant No.1 is liable to pay rent, mesne profits or damages with effect from 01/10/1979 till the date of filing the suit.
It also pleaded that without prejudice to the contentions in the plaint, in case the Court comes to the conclusion that the plaintiff No.1 is not the tenant of the plaintiffs in the said bungalow, then in that case, he was a licensee and he is liable for eviction from the suit bungalow since his licence has come to an end from the date of cessation of the employment. Relief for possession is also sought in case the plaintiffs are not found to be in possession of open land.
3. Defendants No.2 and 4 only chose to file the written statement which though lengthy but evasive containing bald denials of almost each and every averment made in the plaint related to right, title and interest of the plaintiffs in the suit property and status of defendants No.1, 2, 4 and 5 qua the plaintiffs. Besides, questioning the valuation, stamp duty and jurisdiction of the Court.
It was further inter alia pleaded that though the defendants No.1, 4 and 5 were residing in bungalow No.44 but, it was never let to the defendant No.1. The defendant No.1 was never an employee of the plaintiffs No.1 and 2. Defendant No.1 was appointed as 5 F.A.No.106/1999 Superintendent by the "Masihi Seva Mandal. Defendant No.1 passed away on 27/01/1984. Defendants No.1, 4 and 5 were occupants of the suit property. Defendants No.4 and 5 were also employees of Chikitsa Ayog of the said Mandal. Defendant No.2 was stated to be a legally and validly constituted attorney of Malwa Church Council/ Masihi Seva Mandal and the defendant No.3 is a simple representative for the registered organization. In fact, the suit property is of the ownership of Malwa Church Council and Masihi Seva Mandal. They are registered societies under the Societies Registration Act of Madhya Pradesh. Hence, for non-joinder of necessary parties, the suit must be dismissed.
In paragraph 8 of the written statement, it was admitted that the defendants No.4 and 5 are members of the family of the defendant No.1 and in that capacity they are living in the suit property (bungalow). They were inducted by the defendants No.2 and 3 and continuously residing there in since the year 1956 and since 01/10/1979.
It is denied that the plaintiffs can fetch rent of Rs.200/- per month. As per assessment of the year 1948, the rent comes to Rs.20/- per month only.
It is also pleaded that the suit by a registered public trust without permission of the Registrar and Commissioner is not maintainable.
It is denied that the defendants occupied the suit premises as licensee for want of any details as regards licence, contract of licence and the date of induction as licensee, etc., Hence the alleged termination or revocation of the licence by plaintiffs claiming as owners of the suit property is patently illegal and unsustainable. In fact, plaintiffs were never in possession of the suit premises.
With the aforesaid submissions, suit was sought to be dismissed.
4. The trial Court has framed as many as 32 issues.
The trial Court upon critical evaluation of the evidence on record has found that the suit property was transferred to the Canadian Commission by registered sale deed dated 01/06/1912 (exhibit P/2). Likewise, another bungalow No.56 was transferred to the Canadian Commission vide registered sale deed dated 21/06/1900 (exhibit P/1). These documents being more than 30 years old held to be admissible in evidence and the veracity of the contents whereof are unquestionable. Moreso, no documentary evidence to the contrary has been placed on record.
6 F.A.No.106/1999Challenge to the ownership documents referred to above by the defendants based on registration certificate D/10 related to Masihi Seva Mandal or Chikitsa Ayog are found to be misplaced and misconceived as by no stretch of imagination the same can be construed as title document of the suit property of the aforesaid society. There is no documentary evidence in support of the aforesaid plea.
Vide exhibit P/16, the aforesaid properties were transferred to the United Church of Northern India Trust Association by Canadian Mission from trust to trust or trustee to trustee by way of registered instrument dated 20/11/1973 registered in the office of Sub Registrar, Neemuch. The said document bears the signature of defendant No.1 Dr. Habil Lazarus Hall also as a witness and there is no violation of any law as alleged by the defendants.
While dealing with chronology of events as regards the status of the plaintiffs No.1 and 2 based on documentary evidence in paragraphs 14, 15 and 17, the trial Court has recorded a finding that the United Church of Northern India Trust Association ("UCNITA") was a religious and charitable trust. Under it constitution, several "Church Councils" for different areas were constituted. For Malwa area, it had constituted "Malwa Church Council" ("M.C.C."). The M.C.C., has constituted the "Masihi Seva Mandal" (M.S.M.). The denial of defendants that UCNITA has never constituted the aforesaid bodies instead the same were of Canadian Mission, known as 'Mission' in the year 1904 and renamed as Masihi Seva Mandal was found to be not proved as no documentary evidence is placed on record in support of such evasive statement; on the contrary exhibit P/16 is the conclusive evidence as regards transfer of the suit property by the Canadian Mission to United Church of Northern India Trust Association ("UCNITA"). Thereafter, by a deed of transfer dated 20/12/1994 (exhibit P/21), the suit property was further transferred from one trustee to another trustee in favour of CNITA; the conclusive proof of right, title and interest of "CNITA" to the suit property.
"The 'UCNITA' had reorganized itself by forming the Union of five similar National bodies known as 'Church of North India' ("CNI") for different areas. The CNI in its new set up has constituted several Dioceses substituting the erstwhile church councils. One such Diocese is the Diocese of Bhopal which continued the work of erstwhile Malwa Church Council. CNI has further constituted separate Synodical Boards for medical, educational and other programmes conducted under its control. As such, "Malwa Church Council' did not exist 7 F.A.No.106/1999 thereafter.
The trial Court further held that defendant No.2 has been restrained from interfering in the working of the Managing Committee bodies constituted by CNI by a judgment and decree dated 11/09/1990 in civil suit No.36A/1988 (exhibits P/11 and P/12) whereunder a finding has been recorded that "Malwa Church Council" and "Masihi Seva Mandal" have merged into the Church of North India. The statement of defendant No.2 about the existence of 'Masihi Seva Mandal' and 'Malwah Church Council' was held to be factually incorrect.
Consequently, returned a finding that the suit property is of the ownership of Church of North India.
While answering issue Nos.17 to 21 in paragraph 21, the trial Court relied upon exhibits P/22 and P/23, i.e, extract of salary registers of doctors maintained in Christian Hospital, Neemuch of the Central Regional Board of Health Services wherein the defendants No.1, 4 and 5 are shown to have been paid salary and relying upon the oral evidence led in that behalf has recorded a finding that the aforesaid defendants were inducted in the suit house as licensee by virtue of being in employment of the hospital.
The defendants failed to prove that 'Masihi Seva Mandal' or 'Malwa Church Council' having independent existence as alleged by the defendant No.2 and inducted the defendants No.1, 4 and 5 as licensee. Hence, concluded that the status of the defendants No.1, 4 and 5 was that of licensee of plaintiffs.
The trial Court has also referred to the order of the labour Court, Ratlam dated 08/10/1987 (exhibit P/9) to reinforces the finding that the defendants No.4 and 5 are admittedly employees of the C.R.B.H.S. Upon the aforesaid critical evaluation of the evidence on record and the analysis, the trial Court returned a finding that the plaintiff No.2 hold a title to the suit property and the defendant No.2 has no right, title and interest in any manner whatsoever thereupon, i.e., the suit property.
The trial Court has further held that section 50 of the Bombay Trust Act has no application to the facts of the case as defendants No.1, 4 and 5 being licensee of the plaintiffs were under an obligation to vacate the suit premises no sooner the employment ceases to exist. Upon cessation of employment, the suit property occupied by them shall revert back to the plaintiffs/owners thereof but, upon failure to vacate the suit premises, the licensee is liable for eviction.
While answering ancillary issues related to Court fee, valuation, etc., the trial Court has returned affirmative findings in favour of the 8 F.A.No.106/1999 plaintiffs and decreed the suit.
5. Shri A.M.Mathur, learned senior counsel appearing for the appellants contends that:
(i) the trial Court has not correctly appreciated the evidence on record and the impugned judgment suffers from patent perversity;
(ii) the trial Court committed grave illegality having held that section 50 of the Bombay Trust Act (for short, 'the Act') is not applicable to the factual matrix of the case;
(iii) has made a feeble attempt to question locus standi of the plaintiffs to maintain the suit asserting their right, title and interest over the suit property;
(iv) the defendant No.1 after cessation from his employment on 01/10/1979 had become the trespasser alongwith defendants No.4 and 5 who are living with him in the suit property before institution of the instant suit, therefore, the permission of the Charity Commissioner was required under section 50 of the Act. In absence whereof, the suit was not maintainable [Relied upon: (a) D.H.Maniar and others Vs. Waman Laxman Kudav, AIR 1976 SC 2340 (para 10) and (b) Church of North India Vs. Lavajibhai Ratanjibhai and others, [(2005) 10 SCC 760 (paras 35, 58, 76 & 99)];
(v) in absence of pleadings in the plaint that defendants No.4 and 5 are licensee of the plaintiffs, the plaintiffs cannot be permitted to set up the case against them, as such irrespective of evidence to that effect on record;
hence the trial Court travelled beyond the pleadings of the plaintiffs while decreeing the suit.
6. Shri Ravish Agarwal, learned senior counsel appearing for the plaintiffs supported the findings returned by the trial Court and contends that the trial Court had framed 32 issues covering the disputed questions of fact raised in respective pleadings and answered each one of them upon due consideration of the evidence on record ranging from (i) the right, title and interest of the plaintiffs; (ii) the status of defendants No.1, 4 and 5 at the time of their induction, the nature of possession and continuity of possession of defendants No.4 and 5 on the suit property after cessation of the employment of defendant No.1 on 01/10/1979; (iii) the status of defendant No.2.
9 F.A.No.106/1999Learned senior counsel referring to evidence on record inter alia contended that;
(i) Dr. Hemant Kumar Halla alias Sam (D.W.1) has specifically admitted in paragraph 4 of his cross- examination that he was in the service of the Hospital till 1983 and had been removed by the Church of North India. He admitted in paragraph 12 of his statement that the salary register of Hospital (exhibit P/7) has been signed by his father, Dr. Habil Lazarus Halla (Defendant No.1). In paragraph 11, he has admitted that the salary registers (exhibits P/22 and P/23) have been signed by the defendants No.1, 4 and 5;
(ii) in the judgment dated 04/03/1998 (exhibit P/24) passed in civil suit No.112A/1981, it was held that in respect of issue No.7 - paragraph 11 of the judgment that the defendant No.1 was in employment of the S.B.H.S., (plaintiff No.1) and Mission Hospital was being run by the S.B.H.S. (plaintiff No.1).
That apart, defendants No.4 and 5 had filed a claim against the plaintiffs challenging termination of their service and the order passed by the labour Court dated 08/10/1987 (exhibit P/9) shows that they were in employment with the plaintiffs. Likewise, based on the judgment and decree dated 04/03/1998 passed by the trial Court in civil suit No.112A/1981 (exhibit P/24), it has been held that the defendant No.1 was in employment and the Mission Hospital was being run by the plaintiff No.1. As such, there is overwhelming evidence as regards the status of the defendants No.1, 4 and 5 qua the plaintiffs.
By virtue of their employment, the defendants No.1, 4 and 5 were inducted in the suit property as licensee and were obliged to handover the possession after cessation of employment by the defendant No.1, however, failed to vacate the suit property;
Upon death of defendant No.1 on 27/01/1984 and failure to vacate and hand over the suit property by defendant No.1 during his life time, the defendants No.4 and 5 continued in the suit property as 'gratuitous licensee'. Hence, the plaintiffs entitled to maintain the instant suit for eviction and possession of the suit property against the defendants No.4 and 5 after death of the defendant No.1;
Section 50 of the Act has no application inasmuch as at the time of institution of the suit, the defendant No.1 was in the employment and stood retired from service as well as the defendants 10 F.A.No.106/1999 No.4 and 5 lived with him as 'gratuitous licensee'. Hence, the death of the defendant No.1 during pendency of the suit shall not render the suit not maintainable for want of permission from the Charity Commissioner as defendants No.4 and 5 continued in possession as 'gratuitous licensee'.
Referring to the judgment of the Hon'ble Supreme Court reported in (2003) 6 SCC 151 Sahebgouda Vs. Ogeppa, it is contended that while the provisions ousting or debarring jurisdiction of civil Courts which ordinarily have plenary jurisdiction over all matters; have to be given strict interpretation and the burden is heavy upon the party seeking ouster of jurisdiction.
In the obtaining facts and circumstances, the assertion that section 50 of the Act is applicable is based on ignorance of facts referred in detail above Hence, at the time of institution of the suit, the defendants No.4 and 5 continued in the suit property if not licensee but as 'gratuitous licensee' being in employment of plaintiffs.. Under such circumstances, their possession cannot be termed as 'trespasser'- as claimed. Hence, the suit shall not stand not maintainable treating them as 'trespasser' after death of the defendant No.1 against the defendants No.4 and 5 for want of permission from the Charity Commissioner under section 50 of the Act.
7. Heard.
8. Following questions arise for determination:
(i) Whether the status of the defendant No.1 & defendants No.4 and 5 was that of licensee, 'gratuitous licensee' or trespasser at the relevant point of time?
(ii) Whether the permission of Charity Commissioner under section 50 of the Act was required for institution of the instant suit seeking eviction and possession of the suit premises initially against the defendants No.1, 4 and 5 and after his death on 27/01/1984 during pendency of the suit against the defendants No.4 and 5?
(iii) Trespass meaning of; trespasser? And
(iv) If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then; whether the plea expressly not taken in the pleading would disentitle a party from relying upon and prove the same by cogent evidence?
11 F.A.No.106/19999. Section 52 of the India Easements Act,1882 defines "licences" and the same reads as under:
"52. "License" 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 license."
10. The Madras High Court in a case reported in AIR 1931 Madras 216 Chinnan and others Vs. Ranjithammal, has held that a license is not annexed to the property in respect of which it is enjoyed, nor it is a transferable or heritable right, but is a right purely personal between grantor and licensee. Unless a different intention appears it cannot be exercised by the licensee's servants or agents.
It is further held that representatives of a tenant on sufferance are mere trespassers, since they cannot be regarded as succeeding to any interest in the tenancy; and what is true of a tenant on sufferance is true also of a licensee. From the date of licensee's death, the possession of his heirs becomes adverse to the owner of the property.
11. While referring to English decision in the case of Winter Garden Theatre (London) Ltd., Vs. Millenium Productions Ltd., (1947) All ER 331, Viscount Simon, while discussing the status of a licensee quoted the observations of Vaughan C. J. in 1673 Vaugh 330 and observed a follows:
"The effect of a licence by A to permit B to enter upon A's land or to use his premises for some purpose is, in effect, an authority which prevents B from being regarded as a trespasser when he avails himself of the license."
a division Bench of Jammu & Kashmir reported in 1964 Jammu & Kashmir 99 has lucidly dealt with the concept of "license" and status of "licensee" as under:
"Thus the status of a licensee is essentially different from that of a trespasser or a tenant. In fact, the possession of licensee is not a juridical possession but only an occupation with the permission of the licenser. While the actual occupation remains with the licensee, the control or possession of the property is with the licenser through his licensee. There is always an element of animus possidendi in the possession of a trespasser which is completely absent in the possession of a licensee. In the circumstances, therefore, it cannot be said that the 12 F.A.No.106/1999 moment the licence is terminated, the licensee's possession becomes that of a trespasser."
12. While interpreting section 41 of the Presidency Small Cause Courts Act, 1882 and relying upon the judgment of the Calcutta High Court reported in (1948) 52 Cal WN 843, a division Bench of the Bombay High Court reported in AIR 1967 Bombay 9 Mrs. Sakilnabai and others Vs. Salebhai Hasanali Engineer has held as under:
"4. In this very connection and in connection with the contents of S.41 of the Act, in the case of (1948) 52 Cal WN 843 the Calcutta High Court, inter Alia, observed: "According to Section 41, 'occupant'" comprises, a 'tenant or occupier or any person holding under or by assignment from him', and the first paragraph of the section suggests that by 'occupier' is through whom the applicant claims, that is to say, a licensee. The effect of the section, generally stated, therefore, is that the landlord may demand possession from a tenant or a licensee or a person holding under by assignment from such tenant or licensee, as the case may be, and if the demand be not complied with, he may apply for summons against the person who failed to deliver possession on such demand". Raghava Rao J., indeciding the case of 1950-2 Mad LJ 280 dissented from the views expressed by the High Court of Calcutta as quoted above. As we will presently point out, it appears to us that the construction of Section 41 of the Act as decided by the High Court of Calcutta in the manner mentioned above is correct. With respect,we do not agree with Raghava Rao J. that the opinion expressed by the High Court of Calcutta is erroneous."
13. The Hon'ble Supreme Court in the case of Sant Lal Jain Vs. Avatar Singh (1985) 2 SCC 332 held that a licensee after revocation of license is under an obligation to surrender the possession of the property to the licensor. He cannot avoid action for recovery of the possession after revocation of the license claiming change of his status even after termination of license and deemed to be occupant of the property through the lessor or licensor, i.e., original owner and he continued to be a licensee qua the licensor.
14. The Hon'ble Supreme Court has considered the aforesaid three judgments of Madras and Bombay High Courts (supra) reported in (1997) 8 SCC 60 State Bank of India Vs. A.N.Gupta and others. Relevant part of paragraphs 1 and 2 read as under:
"1.......When a licensor seeks possession from the alleged licensee though in a summary manner, he seeks restoration of the estate of immovable property which was permitted to be utilised by the licensee during the currency of the licence. Once the licence is put to an end, the right of reversion 13 F.A.No.106/1999 obviously survives for the licensor and whoever intermeddles with the property after the death of the licensee would obviously be liable to answer the claim of the licensor and in these proceedings it cannot be said that such a cause of action is personal against the licensee and dies with him.
2. In our view, therefore, the decision of learned Single Judge of Madras High Court cannot be sustained on the scheme of the Act and on the contrary, the view propounded by the Calcutta High Court in the aforesaid decision is the correct view. This very question was examined by a Division Bench of the Bombay High Court in its decision in the case of Sakinabai v. Salebhai Hasanali, AIR 1967 Bom. 9. K.K Desai, J., speaking for the Division Bench held:
"Ejectment proceedings under Section 41 of the Presidency Small Cause Courts Act are for enforcing property rights and for recovery of properties. These are not proceedings relating to personal causes of action and they do not die with the death of a party to the proceedings whether he be an applicant or opponent."
15. The Hon'ble Supreme Court reported in (2005) 7 SCC 667 Joseph Severance and others Vs. Benny Mathew and others, it is held as under:
"7. .... 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. 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 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 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."
(Emphasis supplied)
16. The law as regards gratuitous licensee is well settled. The Hon'ble Supreme Court reported in (2000) 4 SCC 119 Anima Mallick Vs. Ajoy Kumar Roy and another has set aside the order passed by 14 F.A.No.106/1999 the High Court observing that where possession is purely gratuitous, the owner has the right to reclaim possession, even without the knowledge of the person in possession. It is held that the respondent therein was using the garage of the appellant on permission having been granted by the sister to the brother. The respondent was not claiming legal interest in the said garage as he was not claiming its ownership because he was not claiming to be a tenant or even a licensee. His possession was purely gratuitous and even if without the knowledge of such person, the owner can reclaim the possession.
17. The Hon'ble Supreme Court reported in (2012) 5 SCC 370 Maria Margarida Sequeira Fernandes and others Vs. Erasmo Jack De Sequeira (Dead) Through LRs., has held as under:
"62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.
63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.
64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts.
65. A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.
66. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and 15 F.A.No.106/1999 documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession."
(Emphasis supplied)
18. Further, the status of 'gratuitous licensee' has been explained by the Hon'ble Supreme Court reported in (2017) 2 SCC 759 Behram Tejani and others Vs. Azeem Jagani after considering catena of decisions, including that of Maria Margarida Sequeira Fernandes and others (supra) and in (2004) 1 SCC 769 Rame Gowda Vs. Varadappa Naidu held that a person having no independent right qua the suit premises though staying with the original licensee in the suit 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 consequences.
19. Trespass, in its widest sense, signifies any transgression or offence against the law of nature, of society, or of the country, whether relating to a man's person or to his property. But the most obvious acts of trespass are-(1) trespass quare clasum fregit "because he (the defendant) broke or entered into the close" or land of the plaintiff; and (2) trespass de bonis asportatis, wrongful taking of goods or chattels. Here we are concerned with the former, i.e., trespass to land.
By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing. [Camden. LCJ in Entick v. Carrington, (1765) 19 How. St. Tr.1066].
"The house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose." [Lord COKE in Semayne's case (1605) 3 Rep.186] Trespass to land. If the defendant placed a part of his foot on the plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it. [Ellis v. Loftus Iron Co., (1874) LR 10 CP 10, per COLERIDGE C.J. At 12].
The term "trespass" in S.297, Indian Penal Code (45 of 1860), appears to mean any violence or injurious act committed in such place and with such knowledge or intention as is defined in that section. [14 Cr LJ 117 : 17 CWN 534:40 C.548 :18 IC 677 (678)] "The word 'trespasser" has an ugly sound, but it covers the wicked and the innocent. The burglar and the arrogant squatter are 16 F.A.No.106/1999 trespassers, but so are all sorts of comparatively innocent and respectable persons such as a walker in the countryside who unhindered strolls across an open field. Perhaps much of the trouble in this areas has arisen from 'the simplistic stereotype' of the definition. The Courts are therefore beginning to recognize that the duty of the occupier may vary according to the nature of the trespasser." R.F.V. HEUSTON, Salmond on the Law of Torts, 278 (17 th ed.1977).
'Trespasser' under the Act means a person who has been one from the very beginning and not one who had original title but lost the same because of efflux of time or by operation of law. [Nellimarale Jute Mills Cl. Ltd., v. Rampura Industries & Investments Ltd., (2004) 13 SCC 448, 451, para 11].
After termination or revocation of licence if the licensor does not take prompt action to evict the licensee from the premises, the ex- licensee would be treated as trespasser. The licensee may have to continue to be in possession of the premises for some time to wind-up the business if any. In such a case a licensee cannot be treated as a trespasser. [Joseph Severance v. Benny Mathew, (2005) 7 SCC 667, 672, para 7].
20. Aforesaid detailed discussion on facts and law, leave no cavil of doubt that the present plaintiff No.2 holds the right, title and interest on the suit property, bungalow No.44, Neemuch through the registered instruments [exhibits P/2, P/16 & P/21]; initially to the Canadian Commission by registered sale deed dated 01/06/1912 (exhibit P/2). The aforesaid property was transferred to the United Church of Northern India Trust Association by Canadian Mission from trustee to trustee by way of registered instrument dated 20/11/1973 registered in the office of Sub Registrar, Neemuch (exhibit P/16). The said document bears the signature of defendant No.1 Dr. Habil Lazarus Hall also as a witness. Thereafter by a deed of transfer dated 20/12/1994 (exhibit P/21), the suit property was further transferred from one trustee to another trustee in favour of CNITA. There is no documentary evidence on record in contrast thereto. Hence, the challenge to the ownership documents by the defendants based on registration certificate D/10 related to Masihi Seva Mandal or Chikitsa Ayog are found to be misplaced and misconceived. In the year 1970, the 'UCNITA' has reorganized itself by forming the Union of five similar National bodies known as 'Church of North India' ("CNI") for different areas. The CNI in its new set up has further constituted several 17 F.A.No.106/1999 Dioceses substituting the erstwhile church councils. One of such Diocese is the Diocese of Bhopal which continued the work of erstwhile Malwa Church Council. The CNI has further constituted several Synodical Boards for medical, educational and other programmes conducted under its control. As such, "Malwa Church Council' did not exist thereafter.
The defendant No.2 has been restrained from interfering in the working of the Managing Committee bodies constituted by CNI by a judgment and decree dated 11/09/1990 in civil suit No.36A/1988 (exhibits P/11 and P/12) whereunder a finding has been recorded that "Malwa Church Council" and "Masihi Seva Mandal" have merged into the Church of North India. The statement of defendant No.2 about the existence of 'Masihi Seva Mandal' and 'Malwah Church Council' was rightly held to be factually incorrect after CNI came into existence. Consequently, correctly returned a finding that the suit property is of the ownership of Church of North India.
The defendant No.1 by virtue of his working as Superintendent of the Hospital was permitted to use the suit premises as resident without rent. The defendants No.4 and 5 being son and daughter-in- law lived with him though in the employment of the Hospital. The defendant No.1 retired on 01/10/1979 and handed over the charge to the authorized representative of the plaintiffs on 02/10/1979 (exhibit P/8). The defendant No.1 having not responded to phonogram dated 14/01/1981, the plaintiffs had filed the instant suit; as such within reasonable time of two years giving sufficient time to the defendant No.1 to vacate the suit property. As the induction of the defendant No.1 alongwith defendants No.4 and 5 in the suit property was permissive in nature, by no stretch of imagination can turn hostile to the original owner for the reason that the defendant No.1 ceased to be in the employment. Mere possession is not sufficient and the ingredients of animus possidendi must be existing either at the commencement of the possession or continuation thereof.
In the case of D.H.Maniar and others (supra), section 15A of the Bombay Rent Act has made a provision to extend the benefit of status of tenant to a person in occupation of any premises or part thereof as a licensee as on 1 st day of February, 1973. In the aforesaid case, as the license had come to an end before that date, the occupant was not treated to be a licensee for extending such a benefit. In that context, the Hon'ble Supreme Court has said that a tenant continuing in possession after expiration of the licensee, his status is trespasser or a person who has no semblance of any right to 18 F.A.No.106/1999 continue in occupation of the premises, therefore, by no stretch of imagination can be said to be a licensee.
In the opinion of this Court, the aforesaid judgment is not of any assistance to the appellants for the reason; eviction suit has been filed consequent upon cessation of employment within reasonable to evict the defendant No.1/licensee and defendants No.4 and 5 relatives who were admittedly lived with him; permissive possession.
Another judgment in the case of Church of North India (supra) is distinguishable on facts and has no bearing to the factual matrix in hand.
Relevant extract of section 50 of the Act is quoted below :
"50. Suit by or against or relating to public trusts or trustees or others -
(i) ... ... ...
(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust ........ from a trustee, ex-trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee."
In the backdrop of the concept and meaning of trespass and trespasser detailed above and the law enunciated by the Hon'ble Apex Court (supra), this Court is of the view that the word "trespasser" used in section 50 of the Act has to be understood where a person forcibly enter in the property of another with strong hand and against the will of the owner called a trespasser or ex-licensee may be treated as trespasser after revocation or termination of license if the licenser does not take prompt action to evict the licensee from the suit property. Consequently, in the obtaining facts and circumstances, the permissive possession shall not turn to hostile possession, i.e., Defendants No.4 and 5 to claim protection under section 50 of the Act. It is accordingly held that section 50 of the Act has no application to the factual matrix of the case in hand.
In the considered opinion of this Court, the suit property is of the ownership of plaintiffs. The defendants No.1, 4 and 5 are licensee & 'gratuitous licensee of the suit property, respectively.
The question (i) is answered in affirmative in favour of the plaintiffs and against the defendants/appellants.
Consequently, questions (ii) & (iii) are also answered in affirmative in favour of the plaintiffs and against the defendants/appellants.
The last contention raised by Shri Mathur, learned senior counsel related to finding of the trial Court as regards defendants No.4 19 F.A.No.106/1999 and 5 are licensee is erroneous and untenable for want of pleading in the opinion of this Court, is misconceived and de hors the facts for more than one reasons; (i) in paragraph 12 of the plaint, the plaintiffs have averred that in case the defendants No.1, 4 and 5 are not held to be tenants and licensee of the suit property by virtue of employment, the defendant No.1 was inducted for his residence purpose where he lived with defendants No.4 and 5; son and daughter-in-law; (ii) defendant No.4 has also admitted in paragraph 4 of his cross- examination that he was in employment till 1983 and he has been removed by the Church of North India. He has also admitted in paragraph 12 the payment of salary as reflected in the salary registers, exhibits P/7, P/22 and P/23. Further, the defendants No.4 and 5 have challenged their termination before the labour Court by C.R.B.H.S., The award of the labour Court is dated 08/10/1987 (exhibit P/9). As such, there was overwhelming material on record to demonstrate that both the parties were aware of each others case. Hence, the aforesaid argument cannot be countenanced. [Bhagwati Prasad Vs. Chandramaul, AIR 1966 SC 735 & Ram Sarup Gupta (Dead) By LRs., Vs. Bishun Narain Inter College and others (1987) 2 SCC 555 referred to].
Accordingly question (iv) is also answered in affirmative in favour of the plaintiffs and against the defendants/appellants.
The appeal sans merit and is hereby dismissed.
(Rohit Arya) Judge 20- 08-2018 b/-
Digitally signed by M V R BALAJI SARMA Date: 2018.08.20 18:15:45 +05'30'