JUDGMENT
Nirmal Yadav, J.
1. This is plaintiffs’ regular second appeal directed against the judgment and decree dated 9.9.1985 passed by Additional District Judge (I), Faridkot whereby the judgment and decree dated 30.4.1981 passed by Sub Judge 1st Class, Palwal decreeing the suit of the plaintiff for mandatory injunction, has been reversed and suit of the plaintiff has been dismissed being not maintainable. The defendant has also filed Cross-Objection No. 25-C of 2006 impugning the findings of the 1st Appellate Court whereby verdict of the trial Court on issues No. 1, 2, 7 and 10 has been affirmed. Hence, both RSA No. 3067 of 1985 and Cross-Objection No. 25-C of 2006 are being decided by this common judgment.
2. The bone of contention between the parties is a three-storied house, as depicted in site-plan, Ex. P3. Appellants/plaintiffs filed a suit for mandatory injunction with a direction to respondent/defendant to vacate and handover the possession of the suit property. According to plaintiffs they were owners in possession of the suit property. In the year 1971, defendant-Rameshwar Dayal Mangla alias Ramesh Chand, who is their first cousin, approached them to allow him to occupy the suit property as a licencee as he needed some accommodation. Out of love and affection, the plaintiffs allowed him to use the property as a licencee on the express condition that he would vacate and handover the vacant possession of the premises as and when required by them.
3. The suit was resisted by the defendant stating that plaintiffs are not the owners in possession of the suit property. They have no locus standi to file the suit. The suit is not maintainable in the present form and it is not properly valued for the purposes of court fee and jurisdiction. It was further stated that since the plaintiffs never remained in possession of the suit property for the last more than 21 years prior to filing of the suit, therefore, the defendant had become its owner by adverse possession. It was further stated that defendant is exclusive owner in possession of the suit property as it fell to his share in a family partition, which took place in the year 1971. On the basis of pleadings of the parties, the following issues were struck:
1. Whether the plaintiffs are the owners in possession of the property shown with letters A B C D on the ground floor and with letters HIJO on the second floor, as described in para No. 1 of the plaintiff? OPP
2. Whether the aforesaid properties were given to the defendants/lessees? If so, it effect? OPP
3. Whether the plaintiff is entitled to ad-interim injunction as prayed? OPP
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the suit is valued properly for the purposes of court fees and jurisdiction? OPP
6. Whether the suit is within time? OPP
7. Whether the defendant has become the owner of the suit property by way of adverse possession? OPD
8. Whether the suit is bad for non-joinder of necessary parties? OPD
9. Whether the plaintiffs are estopped from filing this suit by their act and conduct? OPD
10. Whether the defendant is the sole owner of the suit property by way of family partition, as alleged? OPD
11. Relief.
The trial Court after taking into consideration the evidence on record, decided issues No. 1, 7 and 10 in favour of the plaintiffs holding them to be the owners of the suit property. Issue No. 2 as to whether the properties were given to defendant/lessee was also decided in favour of the plaintiffs. Accordingly, the suit of the plaintiff was decreed by granting mandatory injunction in their favour and defendant/respondent was directed to handover the possession of the suit property to the plaintiffs.
4. On appeal filed by the defendant, the 1st Appellate Court affirmed the findings of the trial Court on issues No. 1, 7 and 10 holding that the plaintiffs are owners of the suit property and defendant did not become owner by way of alleged family partition. Learned 1st Appellate Court, however, reversed the findings of the trial Court on issues No. 2, 4 and 5 and thereby dismissed the suit being not maintainable as also not properly valued for the purposes of Courts fee and jurisdiction. Learned lower appellate Court observed that the evidence produced by the plaintiffs in support of their plea that property was given to the defendant as a licencee, is not reliable as there is no documentary evidence to support the alleged licence. It was further observed that there appears to be no legal obligation on the part of the defendant to. perform any act and, therefore, the suit for mandatory injunction was not maintainable. It was further held that suit for mandatory injunction could not be filed without suing for possession of the suit property and, therefore, the suit was not maintainable in the present form.
5. Since aggrieved the plaintiffs have filed the present regular second appeal challenging the findings of the 1st Appellate Court on issues No. 4 and 5 while defendant/respondent has filed cross-objections challenging the findings of the 1st Appellate Court on issues No. 1, 7 and 10.
6. i have heard learned Counsel for the parties and perused the evidence on record.
7. Learned counsel for the appellant has argued that it is well proved from the documentary as well as oral evidence on record that plaintiffs are owners in possession of the suit property even prior to the year 1971. The parties are close relatives. The defendant was only allowed to use the suit property as a licencee. It is further argued that no family partition as alleged by the defendant, had ever taken place qua the property in dispute. Learned counsel argued that in view of the relationship of the parties, there is every possibility of allowing permissive possession to the defendant and suit brought by the plaintiffs for mandatory injunction for vacating the premises is maintainable. In support of his arguments, learned Counsel for the appellants relied upon Delhi Gate Service Private Ltd. v. Caltex (India) Ltd.} (1962)69 P.L.R. 559, Pooran Chand and Anr. v. Malik Mukhbain Singh (1963) 65 P.L.R. 490 and Prabindra Nath Nan-day v. Narendra Nath Nanday .
8. On the other hand, learned Counsel for the respondent/defendant argued that appellants were members of the joint Hindu family at the time of purchase of suit property. The suit property had fallen to the share of the defendant in a family settlement. It is the defendant who had been depositing the house and property taxes qua the demised premises. The appellants never remained in possession of the suit property, whereas, the respondent has been in continuous possession over the suit property for the last more than 21 years prior to filing of the suit and hence, he has become the owner of the property by way of adverse possession.
9. In order to prove their ownership, the plaintiffs have produced sale-deed dated 20.4.1959, Ex.PW5/1 vide which the suit property was sold by Teji Mai in favour of both the plaintiffs. Since the plaintiffs were minor, the sale deed was got executed through their mother Dulari Devi and uncle Amolak Chand. Satya Dev, PW5 proved the handwriting of his father Sham Dutt Sharma, who had scribed the sale deed. He proved entry at serial No. 145 dated 20.4.1959 made in the Petition Writer’s register maintained by his father. Ram Saran, vendor, son of Teji Mal appeared as PW6 and stated that sale deed, Ex.PW5/A bears the thumb-impression of his father. PW2-Khem Chand proved copies of house tax assessment registers, Ex.P4 and P5 as well as house tax receipts Ex.P-8 to P-15. PW3-Bir Bhan, property-tax Clerk proved the copies of challan, Ex.P5 to Ex.P7. Plaintiff-Harish Chand appeared as PW1 and stated that property was purchased by them out of their own funds about 20 years ago. In cross-examination, he denied that any family partition took place in the year 1971 or property having fallen to the share of the defendants. He also denied that property in dispute was purchased from the joint Hindu family funds on behalf of the firm Gian Chand, Trilok Chand Hazari Lal-Babu Lal.
10. On the other hand, Rameshwar Dayal himself appeared as a witness and also produced Ram Gopal, DW2. According to defendant, he is owner of the property in dispute which fell to his share in the family partition in the year 1971.
11. From the copies of house tax assessment registers, Ex.P4 and P5, house tax receipts, Ex.P8 to Ex. PI5 which were produced by PW2-Khem Chand and challan forms, Ex.P-5 to P-7 produced by PW3-Bir Bhan, property-tax Clerk, it is clearly established that the property in dispute is owned by the plaintiffs. According to defendant, the house and property taxes were deposited by him in the name and property taxes were deposited by him in the name of the plaintiffs. However, the receipts were not in his possession and the same were produced by the plaintiffs. The defendant could not even disclose as to what was the amount of tax deposited.
12. There is also no evidence that any family partition took place between the parties. As per defendant, the family partition took place in the month of August 1971 and a writing to this effect was executed in the Bahi. However, neither the said Bahi was produced nor any of the family members or relative was examined to prove the alleged family partition. The testimony of Ram Gopal, DW2 also does not inspire confidence. He did not utter even a single word if the family partition was ever recorded in the Bahi. It was further admitted that the alleged family partition was not written in his presence. Another circumstance which proves the absence of family partition with regard to immovable property is agreement, Ex. PA. The said agreement between the parties relates to movable properties. In case there was any family settlement or partition between the parties, they would have certainly got the same reduced in writing.
13. The defendant had taken the plea of adverse possession also. However, the said plea was given up by the defendant before the 1st Appellate Court. The 1st Appellate Court in para-11 of its judgment has mentioned that during the course of argument on additional evidence, learned Counsel for the appellate (defendant herein) had given up the plea of adverse possession and did not press issue No. 7 framed in this regard. As such, the said issue was decided against the defendant. In para-12 of the cross-objection, the defendant has raised the following questions of law.
a) Whether the findings of the Ld. Courts below on issues No. 1, 2 and 10 can be sustained, especially in the light of the conceded factum that the appellants were members of joint Hindu family, at the time of purchase of the suit property?
b) Whether the evidence on. the record has been mis-read and misinterpreted by both the ld. Courts below?” In prayer clause also, it is stated that findings of both the Courts below on issues Nos. 1, 2 and 10 may be set aside. It is evident from the questions of law raised by the defendant/cross-objector, that he has not challenged the findings of the 1st Appellate Court with regard to adverse possession for which issue No. 7 was settled by the trial Court.
14. In view of the documentary as well as oral evidence on record, it is well proved that the plaintiffs are the owners of the suit property and it never fell to the share of the defendants. The defendant has not been able to prove any family partition, on the basis of which it could be inferred that the suit property had fallen to his share.
15. Now, the only question that remains to be considered is, – Whether the suit property was given to the defendant as a licencee and there was a relationship of licencee and licenser between the parties? In view of the discussion made in the earlier part of the judgment, it can safely be concluded that the plaintiffs have successfully proved their ownership over the suit property. They purchased the property in the year 1959. The defendant approached the plaintiffs for providing some accommodation, therefore, the suit property was given to the defendant as a licencee. As discussed above, the defendant has failed to prove has adverse possession, rather the plea of adverse possession was given up by him before the 1st/Appellate Court, therefore, the defendant did not become the owner of the suit property
16. The defendant has not been able to prove as to how he came in possession of the suit property, whereas, the plaintiffs have produced ‘ Lakhan Pal, PW4 and Kala Ram, PW7, who have categorically stated that earlier Smt. Dulari, mother of the plaintiffs was residing in the suit property and thereafter defendant has been in occupation of the same. Though there is no writing with regard to the property having been given to the defendant, however, permissive possession is proved from the fact that house tax and property tax receipts are in the name of the plaintiffs, which is also admitted by the defendants. According to defendant, he had been depositing the house and property taxes on behalf of the plaintiffs. When defendant was confronted with the proposition that receipts were in possession of the plaintiffs, he deposed that plaintiffs used to take money from his wife and keep the receipts with them. The explanation given by the defendant does not inspire confidence. Keeping in view the strained relations between the parties, the defendant would not make payment to the plaintiffs. Moreover, his wife has also not been produced to prove that she had been giving money to the plaintiffs for payment of taxes. The defendant has, thus, miserably failed to prove that the property in dispute had fallen to his share in any family partition or by any other means.
17. It is well established that permissive possession cannot become hostile by long lapse of time and it does not entitle the licencee to claim adverse possession. For this reason only, it appears that the defendant had given up the plea of adverse possession. An owner of immovable property on termination of licence, can of course, file a suit against the licencee for mandatory injunction. The plaintiffs being owner of the suit property had served a notice on the defendant on 16.8.1978 for termination of the licence, which was received by him on 28.8.1978. However, no reply thereto was submitted by the defendant, and therefore, the plaintiffs filed the suit for mandatory injunction. The findings of the 1st Appellate Court that suit of the plaintiffs for mandatory injunction is not maintainable is, thus, not at all based in proper appreciation of evidence on record. Learned 1st Appellate Court has held the suit to be not maintainable simply on the ground that there is no documentary evidence on record to support the alleged licence. There is no dispute to the proposition that licence can be oral also depending upon the relations of the parties and subsistence thereof can be gathered from the facts and circumstances of the case. ‘Licence’ has been defined in Section 52 of the Indian Easements Act, 1882, 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 the property, the right is called a licence.
18. The grant of licence may be express or implied which can be inferred from the conduct of the grantor. In the present case, the parties are closely related being first cousins. According to defendant, all the receipts of house and property taxes are with the plaintiffs, though money was paid by his wife for depositing the said taxes. This assertion of the defendant, if presumed to be correct, would show that the possession was permission and for that reason, money for payment of taxes was paid by the defendant to the plaintiffs. Had it not been so, the defendant/would not have given the money to the plaintiffs. In such circumstances, there can be no hesitation to hold that possession of the defendant is permissive in the nature of licence and their suit seeking mandatory injunction against the defendant is fully maintainable.
19. In view of the above discussion, there can be no other conclusion than to hold that defendant was in occupation of the demised premises as a licencee. Since he had refused to vacate the premises on termination of licence, a suit under the Specific Relief Act for grant of mandatory injunction could be instituted against him. It was not necessary for the licenser to file a regular suit for possession by paying court fee on the market value of the property.
20. Resultantly, the appeal filed by the plaintiffs is allowed and cross objections filed by the defendant stand dismissed.