RSA No.2780 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on May 21,2010. Om Parkash and others --Appellants vs. Umed Singh and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Ashok Aggarwal,Sr.Advocate, with Mr.Amit Aggarwal,Advocate,for the appellants Mr.SanjayVij,Advocate,for the respondents Rakesh Kumar Jain, J, Om Parkash, Naresh, Birbal, Jal Singh and Ram Niwas (hereinafter referred to as Om Parkash etc.), filed a Civil Suit No.1131 of 19.1.1993 against Umed Singh, Daya Nand, Kure Ram and Dakha (hereinafter referred to as Umed Singh etc.), for permanent injunction to restrain them from raising any construction over the plot bearing Khewat No.223, Khata No.307, Khasra No.294 measuring 8 biswas Pukhta, situated in the revenue estate of Shekhupur (Rampura), Tehsil and District Gurgaon (hereinafter referred to as the suit property) on the ground that the same has been sold to them by Badlu son of Ballu through his power of attorney- Zile Singh vide a registered sale deed dated 11.7.1990 for a consideration of Rs.75,000/-. They also prayed for a decree for mandatory injunction directing the defendants to hand over vacant possession of the suit property to them. RSA No.2780 of 2009 (O&M) 2 The defendants contested the suit with the pleadings that Badlu was the original owner who had allowed the predecessor-interest of the defendants to use the suit property for their residential purposes as licensees who are in possession for over more than 50 years. Earlier, predecessor-in-interest of the defendants constructed kacha houses, but about 12 years back, the said houses were demolished by them and pucca houses have been constructed. They are paying chuhla tax and having electric connections in their names after the construction of pucca houses, the licence in their favour had become irrevocable and the plaintiffs have no right to seek injunction as prayed for. While this suit was pending, the defendants in the aforesaid case filed Civil Suit No.1535 of 8.11.1995, which was instituted on 7.12.1993. Not only, five plaintiffs of Civil Suit No.1131 of 1993 but also Badlu son of Ballu and Zile Singh son of Parbhu Ram were arrayed as defendant No. 1 and 2 in the said suit. During the pendency of the suit No.1535, by way of an application filed under Order 1 Rule 10 of Code of Civil Procedure, 1908 (for short,CPC) Dinesh Kumar son of Ram Kishan was also impleaded as defendant No.8. In the second suit filed by the defendants Umed Singh etc, it was, inter-alia, alleged that the suit property which was owned by defendant No,1 Badlu, had been given to Chhajju Ram, Sohan Lal and Tek Chand sons of Ram Rikh for construction of their residential houses over it. Said Chhajju Ram, Sohan Lal and Tek Chand are predecessors-in- interest of Umed Singh etc. who had initially raised kacha construction over the suit property, but 12 years ago, the plaintiffs after demolishing kacha RSA No.2780 of 2009 (O&M) 3 construction had raised pucca residential houses. There are three electric connections in the names of the plaintiffs existing over the suit land for their residential houses. One of the said electric connection was obtained in or around the year 1980. In the second suit, Umed Singh etc. challenged the sale deed dated 11.7.1990 and mutation No. 1934 sanctioned on the basis of the said sale deed on the ground that defendant No.1 Badlu inconnivance with his son-in-law Zile Singh (defendant No.2) had illegally sold the suit property to the plaintiffs in Civil Suit No.1131 of 1993 i.e.Om Parkash etc, but the said sale deed does not confer any right on them as they had become owners by way of adverse possession. During the pendency of the suit, an application under Order 6 Rule 17 CPC, was filed by Umed Singh etc. in order to include following pleadings in the plaint which reads as under:- “That without prejudice to the rights of the plaintiffs in any manner it is respectfully submitted alternatively that in case this Hon'ble Court comes to the conclusion that the plaintiffs and their predecessors-in-interest were licensees over the suit land, in that event, it is submitted that the licence is irrevocable because the plaintiffs and their predecessors have constructed their pucca residential houses upon the suit land incurring huge expenses. Thus, the plaintiffs are entitled to continue in possession of the suit land” On the basis of the amended plaint in the second suit, namely Civil Suit No.1535 of 1995, Umed Singh etc. prayed for a decree for RSA No.2780 of 2009 (O&M) 4 declaration that they are owners in possession of the suit land and the sale deed dated 11.7.1990 purported to have been executed by defendant No.2. (Zile Singh) on behalf of defendant No.1.(Badlu) in favour of Om Parkash etc. (defendant Nos. 3 to 8) and consequent mutation No.1934 on its basis and other revenue entries are illegal, non-est and not binding on them. Consequential relief of permanent injunction was also sought to restrain Om Parkash etc. from taking forcible possession of the suit land causing damage to their houses or creating any type of hindrance over the passage shown in red colour in the site plan marked by letters DEFG. It was further prayed that in case, the defendants (Om Parkash etc.) succeed in causing any damage to the houses of the plaintiffs (Umed Singh etc.) or in creating any obstruction over the passage shown in the red colour in the site plan annexed with the plaint, in that event, a decree for mandatory injunction be also passed in their favour to restore the suit property in the original shape. In both the suits, written statements and replications were filed. Learned trial court vide its order dated 23.11.1994 consolidated both the suits as the question of fact and law in both the suits could have been decided by a common judgment. From the resume of pleadings of the parties in both the suits, the following facts could be summarised:- (i) The suit property was owned by Badlu son of Ballu; (ii) Badlu gave the suit property 50 years ago to Chhajju Ram, Sohan Lal and Tek Chand sons of Ram Rikh, who are predecessor-in-interest of Umed Singh,Jal Singh, Daya Nand,Kure Ram Sultan and Dakha who is now further represented through her legal representative' RSA No.2780 of 2009 (O&M) 5 (iii) Predecessor-in-interest of Umed Singh etc. had raised construction of kacha houses over the suit property; (iv) The kacha construction was demolished 12 years back by Umed Singh etc. and have constructed pucca residential houses over the suit property keeping some portion vacant for passage and are paying chuhla tax as well as having electricity connections in their respective houses; (v) Zile Singh on the basis of power of attorney of Badlu dated 0.8.9.1987 sold the suit property by way of registered sale deed dated 11.7.1990 against a sale consideration of Rs.75,000/- to Om Parkash,Naresh, Birbal, Jal Singh and Ram Niwas; (vi) Om Parkash etc.vendees from Badlu of suit property, initiated legal proceedings by way of Civil Suit No.1131of 1993 praying for permanent injunction and mandatory injunction.Umed Singh etc. who are in possession over the suit property also filed subsequent Civil Suit No. 1535 of 7.12.1993 seeking declaration that they have become owner of the property in dispute by way of adverse possession and the sale deed in favour of Om Parkash etc. is illegal, not binding on them and also sought prohibitory injunction; (vii) Dinesh Kumar was also arrayed as respondent No.8 in Civil Suit No.1535 of 1993. (viii) By way of misc.application, plaint of Civil Suit No.1535 was got amended by Umed Singh etc.and para No.7-A was added to contend that they are licensees and since they have raised pucca construction, therefore, licence has become irrevocable. In both the aforesaid cases, Umed Singh etc. are claiming themselves to be in possession as licensees with irrevocable licence and Om Parkash etc. are claiming themselves to be the owners of the suit property by way of registered sale deed. The trial Court, who had consolidated both the suits, framed issues on 28.11.1994 which reads as under:- RSA No.2780 of 2009 (O&M) 6 1) Whether the plaintiffs are owners in possession of the suit land described in para No.1 of the plaint ? OPP 2). Whether the sale deed dated 11.7.1990 in favour of defendant No.3 to 8 is illegal,void, nonest,nullity and not binding on the plaintiffs as alleged ? OPP 3) Whether the suit is not legally maintainable ? OPD 4) Whether the plaintiffs have no cause of action for filing the present suit ? OPD 5) Whether the plaintiffs are licensees over the suit property and the defendants No. 3 to 8 are entitled to seek restoration of possession by way of mandatory injunction? OPD 3 to 8 6) Whether the plaintiffs have no locus standi to file the suit?OPD 7) Whether the plaintiffs are estopped from claiming any right,title or interest in Khasra No. 294 by their acts, conduct and acquiescence? OPD defts No.s 3 to 8. 8) Whether the suit is cosllusive and benami as alleged? if so its effect ? OPD by defts No.3 to 8 9).Relief: Vide order dated 27.2.2001, and 13.6.2001, following additional issues were also framed:- 1. Whether the plaintiffs are entitled to continue the possession of the suit land as alleged in Para No.7(a) of the plaint ?OPP 5A) If issue No.5 is proved whether the plaintiffs are not entitled to seek possession of the suit property as claimed? OPD Both the parties led their respective oral as well as documentary evidence in support of their case. Learned trial Court vide its judgment and decree dated 15.10.2007 partly decreed Civil Suit No.1535 of 1993 titled as Umed Singh etc Vs. Badlu etc. in which the defendants were perpetually RSA No.2780 of 2009 (O&M) 7 restrained from forcibly dispossessing the plaintiffs from the suit property except in due course of law. The defendants were also perpetually restrained from interferring in the enjoyment and possession of the plaintiffs over the suit land and also from demolishing any part of the suit property. Civil Suit No.1131 of 1993 titled as Om Parkash etc. Vs. Umed Singh etc was dismissed. Actually Om Parkash etc. were aggrieved against the judgment and decree of the trial Court and hence, they preferred Civil Appeal No.95 of 2007 Om Parkash etc. Vs. Umed Singh etc and Civil Appeal No.96 of 2007 Om Parkash etc. Vs.Umed Singh etc. Civil Appeal No. 95 of 2007 was filed in resperct of Civil Suit No.1131 of 1993, whereas Civil Appeal No. 96 of 2007 was filed in respect of Civil Suit No.1535 of 1995. Learned First Appellate Court vide its judgment and decree dated 28.2.2009 dismissed both the afore-said appeals. Om Parkash etc. have now preferred two appeals before this Court bearing RSA No.2781 of 2009 in Civil Appeal No.95 of 2007 in Civil Suit No. 1131 of 1993 and RSA No. 2780 of 2009 in Civil Appeal No.96 of 2007 in Civil Suit No. 1535 of 1995, both titled as Om Parkash etc. Vs.Umed Singh etc. In both the appeals, notice of motion was issued on 3.9.2009 and vide order dated 29.10.2009, records of the Courts below were requisitioned. Opening his submissions, Mr.Ashok Aggarwal, learned senior counsel appearing on behalf of the appellants Om Parkash etc, has argued that admittedly, Civil Suit No.1535 of 1995 filed by Umed Singh etc has RSA No.2780 of 2009 (O&M) 8 not been decreed by the Courts below on the ground that they have become owners of the suit property by way of adverse possession but on the ground that they are in possession as licensees of an irrevocable licence. He thus, submitted that only question to be decided by this Court is about the rights of Umed Singh etc. as licensees in terms of the provisions of Indian Easement Act,1882 (for short,the Act). Before adverting to the provisions of the Act, he has pointed out certain admitted facts which need to be mentioned and are reproduced hereunder:- (i) Predecessor-in-interest of Umed Singh etc.were the licencees; (ii) Predecessors-in-interest of Umed Singh etc.being the licensees had raised kacha construction of the houses which has been demolished by Umed Singh etc. 12 years ago and pucca houses have been constructed by them only; (iii) Om Parkash etc. have purchased the suit property from the predecessors of licensees, namely Badlu. On these admitted facts, it is argued that rights under a licence are not inheritable or transferable, therefore, it came to an end with the death of the original licensee, namely predecessor-in-interest of Umed Singh etc. and Umed Singh etc. had no legal right to take a plea that licence in their favour has become irrevocable after they had raised pucca construction over the suit property. In this regard, he has referred to Sections 52,59 and 60 of the Act, which reads as under:- 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 RSA No.2780 of 2009 (O&M) 9 the property, the right is called a licence. 59.Grantor's transferee not bound by licence- When the grantor of the licence transfers the property affected thereby, the transferee is not as such bound by the licence. 60. Licence when revocable. A licence may be revoked by the grantor,unless- (a) it is coulped with a transfer of property and such transfer is in force; (b) the licencee acting upon the licence, has executed a work of permanent character and incurred expenses in the execution. To lend support to his submissions, learned counsel for the appellants has relied upon a Division Bench judgment of Madras High Court in the case of Chinnan and others Vs. Ranjithammal AIR 1931 Madras 216 and a Single Bench judgment of this Court in the case of Kaushalya Devi Vs. Bhola Nath and anr. 1987 P.L.J.366. On the other hand, Mr.Sanjay Vij, learned counsel appearing for the respondents Umed Singh etc. has argued that though rights of Umed Singh etc. has not been perfected by way of adverse possession, yet, no right would vest in Om Parkash etc. in view of the fact that licence has never been revoked by Badlu, who had granted the licence and the suit property has been converted into pucca construction. In support of his arguments, reliance has been placed upon Jai Narain Vs. Sri Ram Narain (deceased by LRs.) and others AIR 1989 Allahabad 182 and decision of Madhya Pradesh High Court in the case of Manoolal Balchand Vs. Kaluram Gulabchand AIR 1958 Madhya Pradesh 343. RSA No.2780 of 2009 (O&M) 10 I have heard both the learned counsel for the parties and have perused the record with their assistance. Although substantial questions of law have been framed in the memo of appeal, yet after hearing the learned counsel for the parties, I find that following substantial questions of law are involved in these appeals, namely:- (i) Whether rights under a licence are transferable/heritable or they are purely personal rights between the grantor and the licensee ? (ii) Whether licence in favour of predecessor -in- interest of Umed Singh etc.stood terminated with their death ? (iii) Whether successor- in- interest of the original licensee could claim protection of Section 60 of the Act , if pucca construction is raised by them and not by their predecessor-in-interest? As a matter of fact, core issue in this case is as to whether right under a licence is heritable or not because in case of pucca construction, muchless of permanent character, the licence becomes irrevocable which cannot be later on revoked either by grantor or by subsequent purchaser from the grantor. However, the word used in Section 60 (b) of the Act is the licensee who were, admittedly, the predecessor-in-interest of Umed Singh etc. who had admittedly, raised kacha construction, therefore, licence in their hands qua the suit property had never became irrevocable, rather licence in the hands of Umed Singh etc., after the death of their predecessor-in-interest, when Umed Singh etc. raised pucca/permanent construction,claims to have become irrevocable, therefore, the question would again be as to whether Umed Singh etc. could have inherited the rights of licensee from their predecessor-in- RSA No.2780 of 2009 (O&M) 11 interest. In this regard, Division Bench judgment of Madras High Court categorically holds in case of Chinnan and others (Supra) that “license is not annexed to the property nor is it transferable or heritable right, but is a right purely personal between grantor and licensee” In Kaushalya Devi's Case (Supra) same view has been taken by this Court that “a licence is not annexed to the property in respect of which it is enjoyed nor it is a transferable or heritable right but a right purely personal between grantor and license”. Thus, after the death of predecessor-in-interest, namely, Chhajju Ram, Sohan Lal and Tek Chand sons of Ram Rikh, licence came to an end as it was not annexed to the property in respect to which it was to be enjoyed and was also not transferable or heritable. Insofar as the judgment relied upon by learned counsel for the respondents in the case of Jai Narain (Supra) is concerned, in that case, the question was as to where a licence is given to one to build a house on a piece of land and acting upon that licence, he builds a house keeping a portion of the house of the land vacant so that it might be used as a sohan darvaza (court yard), the licence would be irrevocable under Section 60 (b) of the Easements Act both in regard to the site of the house as well as the piece of land, which is appurtenant thereto. Allahabad High Court in this regard held that Section 60 (b) of the Act would not only be applicable to the constructed house but also to the land appurtenant thereto. Thus, this judgment is not applicable to the facts and circumstances of the present case . In the other case of Manoolal Bal Chand (Supra), the question was “whether a grantor can put to an end to an irrevocable licence by a transfer of the suit property ?. In this case, it was held that “where licence RSA No.2780 of 2009 (O&M) 12 has become irrevocable as provided under Section 60 (b) of the Act, licensor cannot put to an end an irrevocable licence by transfer of the property affected by the licence and a transfer does not ipso facto extinguish a licence. As the grantor of the licence cannot himself revoke it, the transferee also cannot revoke it. The transferee also does not get any better rights than those possessed by the transferor”. In my view, this judgment is also not applicable because in these cases, Umed Singh etc. are not held to be the licensees in view of the fact that the rights under the licence are not inheritable. They are rather totally strangers to the suit property and as the licence in their favour is not sustainable as it is not irrevocable, provisions of Section 59 of the Act apply to the facts and circumstances of these cases with full rigour as it provides that where grantor of a licence transfers the property, the transferee is not bound by the said licence, meaning thereby that the transferee is not bound by licence. In view of my aforesaid discussion, I am of the view that both the appeals deserve to be allowed. Consequently, RSA No.2780 of 2009 in Civil Appeal No.96 of 2007 in Civil Suit No. 1535 of 1995, is allowed and Civil Suit No. 1535 of 1995 is hereby dismissed whereas RSA No.2781 of 2009 in Civil Appeal No. 95 of 2007 in Civil Suit No. 1131 of 1993, is allowed and Civil suit No.1131 of 1993 is hereby decreed as prayed for with costs through out. May 21,2010 (Rakesh Kumar Jain) RR Judge RSA No.2780 of 2009 (O&M) 13