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Thursday, October 1, 2015

Suit for Mandatory injunction to evict the licensee from suit schedule land - Mere denial of title and absence of proof of tenancy does not cloth with any rights to remain in land and liable to be evicted on the demand of Title Holder =Trial court allowed - Appellant court and high court went wrong = plaintiff/appellant Delhi Diocesan Trust Association, instituted suit (No.264 of 2004) for mandatory injunction against the defendant/respondent with the pleading that the plaintiff is the owner of the land in question. The land was given to one Anjana Devi (grandmother of the respondent) in 1971, on license, on payment of Rs. 5,000/- per annum. When Anjana Devi failed to surrender the possession after the expiry of license, a deed was executed on 06.03.1997, extending the period of license for one more year. She was using the land as Nursery. When Anjana Devi failed to deliver possession of the land to the plaintiff, license in her favour was terminated by getting served a notice on her. The occupation of the land thereafter, by the respondent (grand son of Anjana Devi), is unauthorized. As such, the suit was filed against him by the plaintiff. Relation between Anjana Devi and the defendant are not disputed in the pleadings. Papers on record show that Anjana Devi, when apprehended dispossession, filed a suit for permanent injunction but later withdrew the same, and appears to have executed a deed on 06.03.1997, whereby one more year was allowed to her to run nursery of plants on payment of Rs. 5,000/-. Defendant has not pleaded that lease was created independently in his favour. The trial court after going through the evidence on record found that PW-6 Edwin Jacob to whom the defendant claims to have paid rent has supported the case of the plaintiff. He (PW-6 Edwin Jacob) has stated that he had letter of authority (Exhibit P-10) from the plaintiff/church. He (PW- 6) has further stated that defendant was a licensee in open piece of land, adjoining to residential complex of the Church and said piece was part of land of the Church. This witness has further clarified that in the first round of litigation initiated by grandmother of defendant, after it was agreed between parties that license shall be renewed for one more year for Rs.5,000/-, the suit was withdrawn by her. Not only this, DW-1 Ashwani Kumar himself in cross-examination admitted that local committee of the Church stood merged with the plaintiff. As such, plaintiff clearly failed to prove that he was a tenant in the open land as pleaded by him. On going through the judgment (Annexure P-15) passed by first appellate court, it reflects that in paragraph 16, said court has also found that the defendant failed to prove himself to be statutory tenant as pleaded by him. In the circumstances, we are of the opinion that the first appellate court has erred in not accepting the finding of the trial court, and reversing the same. The High Court has also erred in ignoring the title of the plaintiff, based on judgment (Exhibit P-9) passed in Civil Suit No. 66 of 1978 between Haryana Church Welfare Association and the defendant’s grandmother, particularly in view of the fact that DW-1 Ashwani Kumar (defendant) has admitted in the cross examination that the local church merged with the plaintiff/church. For the reasons as discussed above, we set aside the judgment and decree passed by the first appellate court and that of the High Court. The decree passed by the trial court is restored. The defendant is directed to vacate the land in question within a period of two months from today. Appeal accordingly stands disposed of. No order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  8008  OF 2015
              (Arising out of S.L.P. (Civil) No. 25427 of 2014)


Delhi Diocesan Trust Association                     … Appellant


                                   Versus

Ashwani Kumar                                 …Respondent











                               J U D G M E N T


Prafulla C. Pant, J.


Leave granted.

2.    This appeal is directed against the order dated 01.04.2014, passed  by
High Court of Punjab and Haryana at Chandigarh in regular Second Appeal  No.
1282 of 2011 (O & M), whereby said court has dismissed the second appeal.

3.    We have heard learned counsel for the parties and perused  the  papers
on record.

4.    Brief facts of the case are that  plaintiff/appellant  Delhi  Diocesan
Trust  Association,  instituted  suit  (No.264  of   2004)   for   mandatory
injunction against the  defendant/respondent  with  the  pleading  that  the
plaintiff is the owner of the land in question. The land was  given  to  one
Anjana Devi (grandmother of the respondent) in 1971, on license, on  payment
of          Rs. 5,000/- per annum. When Anjana Devi failed to surrender  the
possession after the expiry of license, a deed was executed  on  06.03.1997,
extending the period of license for one more year.  She was using  the  land
as Nursery. When Anjana Devi failed to deliver possession  of  the  land  to
the plaintiff, license in her favour was  terminated  by  getting  served  a
notice on her. The occupation of the  land  thereafter,  by  the  respondent
(grand son of Anjana Devi), is unauthorized. As such,  the  suit  was  filed
against him by the plaintiff.

5.     Defendant/respondent  contested  the  suit,  and  filed  his  written
statement. In his written  statement,  the  defendant  pleaded  that  he  is
tenant over the land in question.  He  further  pleaded  that  suit  in  the
present form is not maintainable as the property lies in urban area  and  he
can be evicted only under Haryana Urban (Control of Rent and Eviction)  Act,
1973.  He further denied the title of the appellant.

6.    The trial court framed necessary issues,  recorded  the  evidence  and
after hearing the parties, decreed the suit vide judgment  and  order  dated
30.07.2008. Aggrieved by said  judgment  and  decree  passed  by  Additional
Civil Judge (Senior Division), Karnal, the defendant preferred Civil  Appeal
No. 233 of 2008 before the first appellate court. Said court, vide  judgment
and order dated 06.10.2010, allowed  the  civil  appeal,  and  reversed  the
decree passed by the trial court.  On this, second appeal was filed  by  the
plaintiff before the High Court which was dismissed by the order  challenged
before us.

7.    Learned counsel for the plaintiff/appellant argued before us that  the
first appellate court has reversed  findings  of  the  trial  court  on  the
conjectures and surmises holding that the  plaintiff  failed  to  prove  his
title, and the High Court has erred in law in  upholding  the  same.  It  is
contended that Anjana Devi had admitted  the  title  of  plaintiff  and,  as
such, the defendant who is in unauthorized occupation in her  place,  cannot
escape from dispossession merely by denying the title. It is also  submitted
that once the suit is filed by the plaintiff against the defendant,  license
if any, automatically stood terminated.

8.    In reply to the above, learned  counsel  for  the  respondent  pleaded
that the respondent is tenant  of  the  land,  and  his  tenancy  cannot  be
terminated without following the procedure prescribed  under  the  law.  But
the defendant failed to show us any document supporting his  case,  that  he
was lessee in the property. He further failed to show the  payment  of  rent
to the lessor. The Managing Committee to whom he pleads  to  have  paid  the
rent, its Manager (PW6) has categorically denied it.

9.    Relation between Anjana Devi and the defendant  are  not  disputed  in
the pleadings. Papers on record show  that  Anjana  Devi,  when  apprehended
dispossession, filed a suit for permanent injunction but later withdrew  the
same, and appears to have executed a deed on 06.03.1997,  whereby  one  more
year was allowed to her to run nursery of plants on payment of Rs.  5,000/-.
Defendant has not pleaded  that  lease  was  created  independently  in  his
favour.  The trial court after going through the evidence  on  record  found
that PW-6 Edwin Jacob to whom the defendant claims to  have  paid  rent  has
supported the case of the plaintiff. He (PW-6 Edwin Jacob) has  stated  that
he had letter of authority (Exhibit P-10) from the plaintiff/church. He (PW-
6) has further stated that defendant was a licensee in open piece  of  land,
adjoining to residential complex of the Church and said piece  was  part  of
land of the Church. This witness has further clarified  that  in  the  first
round of litigation initiated by grandmother  of  defendant,  after  it  was
agreed between parties that license shall be renewed for one more  year  for
Rs.5,000/-, the suit was withdrawn by  her.  Not  only  this,  DW-1  Ashwani
Kumar himself in cross-examination admitted  that  local  committee  of  the
Church stood merged with the plaintiff. As such,  plaintiff  clearly  failed
to prove that he was a tenant in the open land as pleaded by him.

10.   On  going  through  the  judgment  (Annexure  P-15)  passed  by  first
appellate court, it reflects that in  paragraph  16,  said  court  has  also
found that the defendant failed to prove himself to be statutory  tenant  as
pleaded by him. In the circumstances, we are of the opinion that  the  first
appellate court has erred in not accepting the finding of the  trial  court,
and reversing the same. The High Court has also erred in ignoring the  title
of the plaintiff, based on judgment (Exhibit P-9) passed in Civil  Suit  No.
66 of 1978 between Haryana Church Welfare Association  and  the  defendant’s
grandmother, particularly in view  of  the  fact  that  DW-1  Ashwani  Kumar
(defendant) has admitted in the cross  examination  that  the  local  church
merged with the plaintiff/church.

11.   For the reasons as discussed above, we  set  aside  the  judgment  and
decree passed by the first appellate court and that of the High  Court.  The
decree passed by the trial court is restored. The defendant is  directed  to
vacate the land in question within  a  period  of  two  months  from  today.
Appeal accordingly stands disposed of.  No order as to costs.



                                                           ……………….....…………J.
                                                               [Dipak Misra]



                                                             .……………….……………J.
                                          [Prafulla C. Pant]



New Delhi;
September 28, 2015.



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