R.S.A. No. 4921 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 4921 of 2009 (O&M) Date of Decision : 12.1.2010 Pavittar Singh .......... Appellant Versus Dalip Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. R.L. Batta, Sr. Advocate with Ms. Geeta Sharma, Advocate for the appellant. **** VINOD K. SHARMA, J. The defendant / appellant has filed this regular second appeal, to challenge the judgment and decree dated 16.7.2009, passed by the learned Courts below, in a suit for mandatory injunction, filed by the plaintiff / respondent. Though, in the grounds of appeal, as many as seven substantial questions of law were raised, but Mr. R.L. Batta, the learned Sr. Advocate appearing on behalf of the appellant, in view of the previous litigation, did not press any of the substantial questions of law, except the following :- “Whether the licence in favour of the appellant / defendant, under the facts and circumstances of the case, was irrevocable, because appellant spent huge amount in installation of machinery and construction, for proper working, with the implied consent of the respondent?” R.S.A. No. 4921 of 2009 2 The facts in brief are, that Pavittar Singh-appellant had previously filed a suit No. 651 on 9.12.1995 for perpetual injunction restraining the defendant- Dalip Singh and Harbhajan Kaur, their agents, servants, associates etc. from dispossessing or causing to dispossess illegally and forcibly, the appellant from the property No. H-5, Sarabha Nagar, Ferozepur Road, Ludhiana, and from interfering, in any manner, whatsoever in possession and in the business of the appellant, being run in the said property, on the basis of oral and documentary evidence. In the suit referred to above, the case set up by the appellant was, that he was the sole proprietor of Vishavkarma Auto Centre, and was doing the business of service station since August, 1991, and the property in dispute was taken on rent by him from the respondent / plaintiff on the terms settled orally. The suit was contested by the plaintiff / respondent, wherein he had denied the relationship of landlord and tenant, between the parties, by taking a positive stand, that the appellant / defendant was merely a licencee, whose licence stood revoked. In the replication filed, the stand taken in the plaint was reiterated. On the pleadings of the parties, the learned trial Court, in the previous suit, framed the following issues:- “1. Whether the suit of the plaintiff is not maintainable? OPD 2. Whether the plaintiff has suppressed the material facts from this Court, if so its effect? OPD R.S.A. No. 4921 of 2009 3 3. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP 4. Relief.” The case of the defendant / appellant was, that in the previous suit no specific issue “whether the appellant was tenant or a licencee”, was framed. However, the appellant / defendant had led evidence to prove his tenancy. The suit filed by the defendant / appellant was dismissed by the learned trial Court on 4.4.2001, by holding the status of defendant / appellant was that of licencee, whose licence stood revoked. The appeal filed by the defendant / appellant was also dismissed by the learned Addl. District Judge, Ludhiana on 14.8.2001. The Regular Second appeal No. 3877 of 2001, filed by the defendant / appellant was dismissed in limine, by this Court on 29.1.2002. Aggrieved by the order passed by this Court, the appellant filed Special Leave Petition in the Hon'ble Supreme Court, which was also dismissed in limine on 3.5.2002. The order passed by the Hon'ble Supreme Court reads as under :- “Heard Mr. P.N. Misra, learned Senior Counsel appearing for the petitioner. We are not inclined to interfere with the order under challenge. The SLP is dismissed. Shri Misra prayed for reasonable time to vacate the premises. Considering the said submission six months' time is granted to the petitioner to deliver vacant possession of the property in question subject to the petitioner filing an undertaking on usual terms before the High Court within four weeks.” R.S.A. No. 4921 of 2009 4 Dissatisfied, with the order passed by the Hon'ble Supreme Court, the appellant / defendant filed review petition No. 856 of 2002, which was also dismissed, by the Hon'ble Supreme Court on 20.7.2002, by passing the following order:- “We have perused the petition for review of our order dated 3rd May, 2002. We do not find any merit in the petition. Accordingly, the review petition is dismissed.” The plaintiff / respondent after decision of Special Leave Petition, filed a suit for mandatory injunction directing the defendant to vacate the property in his possession, as a licencee. The respondent / plaintiff had also filed a contempt petition before the Hon'ble Supreme Court, which was dismissed on 7.7.2003 by issuing a direction, that the suit for eviction filed by the respondent / plaintiff be disposed of as expeditiously as possible. The order passed by the learned Supreme Court in the contempt petition reads as under:- “We are of the view that no case for contempt is made out. The contempt petition is, accordingly dismissed. However, the suit for eviction filed by the petitioner shall be disposed of as expeditiously as possible.” The stand taken by the plaintiff was, that the property in dispute was under the ownership of the plaintiff / respondent, which was lying vacant and unattended, as the previous caretaker Prem Kumar had shown his inability, to look after the property and that the respondent / plaintiff and his family were to stay in England, at that time. The appellant / defendant R.S.A. No. 4921 of 2009 5 being an old friend was allowed to take care of the property in their absence. The case of the plaintiff / respondent was, that since the property was lying unutilized the defendant / appellant was permitted to occupy the property merely, as a licencee, purely on permissive basis, for running business for making his both ends meet. No consideration, was settled between the parties, nor any tenancy came into being between the parties. The whole construction in the property was said to have been raised by the plaintiff / respondent, wherein appellant / defendant raised some temporary installation, for running a service station, which were also raised in absence and without the consent and knowledge of the plaintiff / respondent. The case of the plaintiff / respondent was, that when the appellant was asked to vacate the property, he took a false plea of tenancy at a monthly rent of Rs. 1500/- ( Rupees one thousand and five hundred only) per month, and further that he had spent a sum of Rs. 1,00,000/- (Rupees one lac only) to Rs. 1,50,000/- (Rupees one lac and fifty thousand only) on construction, which was required to be adjusted, out of the rent to be paid monthly to the plaintiff / respondent. As already observed above, the suit filed by the appellant / defendant claiming tenancy in the property stands dismissed upto the Hon'ble Supreme Court. On notice, suit was contested by taking preliminary objection to challenge the locus standi of Harbhajan Kaur, to file the suit by considering, that she was not properly appointed attorney. The plea that the plaintiff had not come to the Court with clean hands was also taken and furthermore it was pleaded that the plaintiff / respondent was a desperate person, and R.S.A. No. 4921 of 2009 6 wanted to get possession of the property, by all means at his command. Allegations of false criminal case having been registered were made. It was also pleaded, that no suit for mandatory injunction lies, as under the terms settled between the parties the appellant / defendant with the consent, knowledge and awareness of the plaintiff, raised construction of permanent character, in the suit property by adding two big sheds, room, water tank, one store and also installed two hydraulic lifts, and further, that the suit property was being used for commercial purpose. It was claimed by the defendant / appellant, that a sum of Rs. 1,49,670/- (Rupees one lac forty nine thousand six hundred and seventy only) was spent on construction etc., which was to be adjusted towards the rent payable for the property at the rate of Rs. 1500/- (Rupees one thousand and five hundred only) per month. The plea that electricity and telephone connections were also taken in the name of the defendant / appellant was raised. For the sake of repetition, it may be mentioned that a plea of tenancy was again pleaded. From the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether the plaintiff is entitled for the mandatory and permanent injunction as prayed for?OPP 2. Whether the plaintiff has no locus standi to file the present suit ?OPD 3. Whether the suit in the present form is not maintainable? OPD 4. Whether suit has not been properly valued for the purposes of court fee and jurisdiction ?OPD R.S.A. No. 4921 of 2009 7 5. Whether suit is bad for non-joinder of necessary parties ? OPD 6-A. Whether the defendant was permitted to raise construction on the property as per his requirement up to the limit of Rs. 1.50 lacs ? OPD 6-B. Whether the amount incurred on the construction was to be adjusted towards the rent payable and the rate of rent was settled @ Rs. 1500/- per month or in the alternative in case it was a license which was granted to the defendant but it was irrevocable ?OPD 6. Relief.” On appreciation of evidence, the learned Courts below have recorded a concurrent finding of fact, that the plaintiff / respondent was entitled to mandatory and permanent injunction, as prayed for. The Court held, that the plaintiff had the locus standi to file the suit and further that the suit in the present form was maintainable. The suit was held to be properly valued for the purposes of Court fee and jurisdiction, and further, that the suit was not bad for non-joinder of necessary parties. Issues No.6-A and 6-B were also decided against the defendants. Consequently, the suit was decreed and the defendant / appellant has been asked to hand over the vacant possession of the property to plaintiff / respondent. It may be mentioned here, that the defendant / appellant even denied the title of the plaintiff / respondent, which was not permissible under Section 116 of the Evidence Act. In a suit between landlord and tenant, the question of title of the leased property is irrelevant, in view of R.S.A. No. 4921 of 2009 8 settled law by the Hon'ble Supreme Court in the case of Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, Anar Devi V. Nathu Ram, (1994) 4 SCC 250, D. Satyanarayana v. P. Jagdish, (1987) 4 SCC 424, and S. Thangappan v. P. Padmavathy, (1999) 7 SCC 474. The learned Courts below also took note of the fact, that the appellant had violated, the undertaking given by the defendant / appellant before the Hon'ble Supreme Court on 3.5.2002 wherein he had undertaken to vacate the premises in dispute within six months. Mr. R.L. Batta, learned Sr. counsel appearing on behalf of the appellant in support of the substantial question of law raised above, to challenge the judgment and decree, contended, that a specific plea was taken by way of preliminary objection No.6, that no suit for mandatory injunction was competent, as under the terms settled between the parties, the defendant with the consent, knowledge and awareness of the plaintiff raised construction of permanent character in the suit property, such as renovating the whole construction, adding two big sheds, room, water tank, one store and installing two hydraulic lifts in the suit property, and that the suit property being used for commercial purpose i.e. running authorized automobile service station under the name and style Vishavkarma Auto Centre, on which he had spent a sum of Rs. 1,49,670/- (Rupees one lac forty nine thousand six hundred and seventy only) were agreed to be adjusted towards rent, made the licence irrevocable. The learned senior counsel for the appellant, also referred to para 2 of the plaint, wherein it was pleaded by the plaintiff / respondent, that the property was unattended. The plea was further raised, that the construction was raised by implied consent of the plaintiff / respondent. R.S.A. No. 4921 of 2009 9 The contention of the learned senior counsel, therefore, was that in view of the construction of permanent nature, with the implied consent of the plaintiff / respondent the licence became irrevocable. In support of this contention the learned senior counsel for the appellant placed reliance on the judgment of the Hon'ble Kerala High Court, in the case of Gopalan Nair, Plaintiff, Appellant v. Thevi Amma Thankamma and another, defendants, Respondents, AIR 1969 Kerala 23, wherein the Hon'ble Kerala High Court was pleased to lay down as under :- “8. The next question is whether the licence was revoked by the alleged demolition of the building. Immediately after the institution of the suit, a commission was taken out to inspect the property and submit a report. Ext. P-11 is the report of the Commissioner. It shows that at the time of his inspection, there was a foundation of a building about 30 years old, on which basements and side walls were under construction, and that there were also an old roof over this foundation resting on temporary pillars. The learned Munsiff held that the foundation was only 3 years old, and that the roof found by the Commissioner was that of some other old building, which the first defendant had brought into this property. He had stated no reason for rejecting the Commissioner's opinion. It is impossible to transfer the old roof of a building as such to another place. If it were a question of demolishing it and reassembling it over another structure, it can be easily found out. It is also almost difficult to reassemble it on temporary pillars. The learned Munsiff's finding is contrary to the evidence, and is a pure conjecture,which R.S.A. No. 4921 of 2009 10 cannot stand scrutiny. If the foundation and roof were old, they show that what was being done is only replacing of the walls of the old building, as alleged by the contesting defendants. If the foundation is only 3 years old as the learned Munsiff held, it is a new construction in the place of the old construction, which was commenced without any objection from the defendants trespassed on the plaintiff's property and commenced the impugned construction two weeks before the institution of the suit. So, in any view of the matter, the first defendant did not surrender or abandon his rights as a licensee and commenced the construction long before the institution of the suit. The objection to the construction was raised by the plaintiff, only in the course of the construction and after it had reached a substantial stage, Section 60 of the Act provides that a licence may be revoked by the grantor, unless the licensee acting upon licence has executed a work of a permanent character and incurred expenses in the execution. Foundation of a building is a work of a permanent character involving expenses; and the grantor would not be entitled to revoke the licence after such a work has been executed. It is also obvious that the licensee has neither surrendered the licence, nor abandoned it. The plaintiff is, therefore, not entitled to recover the plaint property after demolishing the building, which the first defendant has constructing therein.” The reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of Ram Sarup Gupta (dead) by L.Rs., R.S.A. No. 4921 of 2009 11 Appellants v. Bishun Narain Inter College and others, Respondents, AIR 1987 Supreme Court 1242, wherein the Hon'ble Supreme Court was pleased to lay down as under :- “In the instant case, the school was run by the society. The school was not recognised by the Education Department of the government as it had no endowment and no building of its own. After protracted correspondence with the authorities of the Education Department, the licenser, the President of the Society informed the Inspector of Schools that he has given away the premises occupied by the school free of rent which may be considered his permanent contribution to the cause of the school. In pursuance to the declaration made by the licenser the Education Department of the State Government recognised the institution. Thereafter the licenser did not realise rent from the school and he allowed the school to occupy the building and the open land attached to it for the use of the school. The school and the subsequently formed college both were managed by committee of management of which the licenser continued to be the President till 1961 and thereafter his wife became the President, which office she continued to occupy since then. Meanwhile to meet the need of the additional accommodation the management made permanent constructions by on the open land attached to the main building, without any objections by the licenser or any of his family members. Subsequently, the licencer along with his three minor sons executed a sale deed R.S.A. No. 4921 of 2009 12 transferring the property in dispute occupied by the school along with other property to plaintiff, the transferee. The transferee after purchasing the property served notice on the school and its managing committee terminating their license and directed them to restore the possession of the property to him within a specified period. Since the property was not restored to him, he filed a suit for possession against the defendants, the college and the members of the committee of management of the college. Held, that in view of the licenser's donation of the property to the school, and his subsequent conduct, the lincensee could reasonably entertain a belief that the licenser had permitted the construction on the land, and in pursuance thereof, the licensee made constructions and incurred expenses. The result was that the defendants “acting upon the license” had executed works by incurring expenses which rendered the license irrevocable. In view of the fact that the licenser was the President of the school since 1938 to 1961 and thereafter his wife has continued to be the President, it could not be said that he had no knowledge of the constructions. If the license did not permit the school to execute any permanent constructions, licenser would have certainly raised objections. His conduct of acquiescence to the raising of constructions was eloquent enough to show that the license was irrevocable.” This plea before the learned lower appellate Court was answered by the plaintiff / respondent as under :- R.S.A. No. 4921 of 2009 13 “17. On the other hand, to rebut the submissions of learned counsel for the appellant, the learned counsel for the respondent had vehemently contended that the learned lower court after duly appreciating the evidence, rightly decreed the suit of the respondent. It was further submitted that earlier the present appellant had filed civili suit No. 651 of 9.12.95 for permanent injunction against the present respondent and another and same was decided on 4.4.01 and it was categorically held that present appellant is a licensee and it was no where held that the license is not irrevocable. It was further submitted that in the said civil suit the appellant had taken the plea that he was a tenant but his pleas/ submissions were never accepted by the learned lower court. The said civil suit was decreed in favour of the present respondent and the present appellant fought the litigation up-till the Hon'ble Supreme Court but he lost the litigation and now the appellant in the case is not treated as a tenant, them, he should be treated as a licensee and his license is irrevocable, the appellant is barred for taking such a plea. It was further submitted that since the matter already stands adjudicated earlier up-till the Hon'ble Supreme Court and, as such, the appellant can not take such a plea that Section 11 of the CPC is not applicable in the present case. On this point, learned counsel for the respondent fortified this R.S.A. No. 4921 of 2009 14 Court with the following authorities :- 1. 2006(4) CCC, page 741, in the case titled as Kapoor Chand Vs. Hardam Singh. 2. AIR(33), 1946, Allahabad-546 in the case titled as Udrej Singh and another versus Ram Bahal Singh and others. 3. 2005(3) CCC, page 228 (SC) in the case titled as Amarindra Komalam and another versus Usha Sinha and another. 4. AIR, 2000 Supreme Court, page 538 in the case titled as Sajjadanashin Sayed (dead) by LRs Vs. Musa Dada Bhai Ummer and others. 5. AIR Supreme Court, Page 948 (V.52- C151) in the case titled as Ishar Singh versus Sarwan Singh and others. 6. 2000(2) Apex Court Journal, Page 78 (SC) in the case titled as Rajinder Kumar Versus Kalyan (dead) by LRs. 7. 2008(2) Apex Court Judgments, Page 755 (SC) in the case titled as Dadu Dayalu Mahasabha Jaipur (Trust) Vs. Mahant Ram Niwas and another. 18. It was further submitted by learned counsel for the respondent that though now the appellant has raised the plea that the respondent is not owner of suit property, but, though, the same stands proved on record by placing on record the copy of sale deed Ex.P3, the option before the appellant regarding the ownership could have raised in the suit for permanent injunction, which was so filed by the appellant himself against the respondent and now the appellant is R.S.A. No. 4921 of 2009 15 barred for raising such a plea that respondent is not owner of suit property. On this point, learned counsel for the respondent also cited the authority of 2005 (3) CCC, Page 183 in the case titled as Aanaimutu Thevar (dead) by LRs Vs. Alagammal and Others. 19. It was further submitted by learned counsel for the respondent that in case the appellant had made the sheds and is running the service station by the name of M/s Vishwakarma Auto Center, no consent was given to the appellant for raising the sheds etc. So in case the sheds have been constructed for running the service station, it would not amount to raising permanent structure acting upon the license and, as such, the appellant can not take such a plea that the license is irrevocable as he had raised the permanent construction over the suit property. To support the said contentions, learned counsel for the respondent had also cited the following authorities : 1. 1998(2) Latesh Judicial Reports Page 337 in the case titled as Smt. Akbari Begum and Others Vs. Mohammad Farookh. 2. AIR 1975 Kerala, Page 99 in the case titled as Saurav Vs. Viswanatha Menon and another. 3. AIR 2007 (NON) Page 169 in the case titled as Thomas Cook (India Ltd.) Vs. Hotal Imperial and others. 4. 2003(4) Indian Civil Cases Page 757 R.S.A. No. 4921 of 2009 16 in the case titled as Union of India and Others Vs. Seldah Cold Storage and Transport Limited and others. 5. AIR 1967, Calcutta, Page 204. 6. 2008(1) CCC Page 313.” 20. It was further submitted by learned counsel for the respondent that earlier also in the suit for permanent injunction so filed by the appellant before the learned lower court, similar evidence was led by him to establish the fact that he had got electric connection, telephone connection installed in the suit property and even he had been paying sales tax to the concerned department, the same was very much appreciated and the learned Civil Judge had rightly concluded that the appellant is not a tenant and is simply a licensee and the verdict of the learned civil Judge had been upheld up-till the Hon'ble Supreme Court