REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   258           OF 2009 (Arising out of SLP(C) 14865 OF 2006)

Bhagwan Sarup Nagar (D)       ...Appellants By Lrs.

Versus

Ram Kishan ... Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of  the  Punjab  and Haryana High  Court  allowing the  appeal  filed  by the

respondent.  The appeal was filed under Section 100 of the Code of Civil

Procedure, 1908 (in short the ‘CPC’).  Appellant as plaintiff has filed a suit

for  mandatory injunction  with  a  prayer  that  the  defendant-respondent  be

directed to ensure possession to him of the demised premises description of

which was given in the plaint.  He also claimed Rs.3,900/- towards mesne

profit for use and occupation of the property by the respondent.  It was the

case of the plaintiff that he was the owner of the house and the defendant

was  his  cousin  and  he  had  inducted  him  as  a  licensee  in  two  rooms.

Thereafter, when the defendants started misbehaving, he issued a notice to

him on 27.9.1991 revoking his licence.  Since he failed to vacate the portion

of the house in dispute, mesne profit was claimed and the occupation of the

demised property was also claimed.  The defendant took the plea that the

property was exclusively in continuous peaceful possession of the defendant

for last more than 50 years as its owners without paying rent to anybody

including the plaintiff.  It was also denied that he was ever inducted as a

licencee.  Five issues were framed by the trial court.  It is to be noted that

replication  was  filed  by  the  plaintiff.   After  considering  the  evidence

brought  on  record  it  was  held  that  the  plaintiff  was  the  owner  of  the

property in dispute but all the issues were decided against him.  The issues

were as follows:

1. Whether  the  plaintiff  is  entitled  for  the  relief  of

injunction as alleged in the plaint? OPP.

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2. Whether the plaintiffs  entitled to recover Rs.3,900/-  as

mesne profits as alleged in the plaintiff? OPP.

3. Whether  the  plaintiff  has  no  locus  standi  to  file  the

present suit? OPD.

4. Whether the suit of the plaintiffs not maintainable? OPD.

5. Whether the plaintiff has no cause of action to file the

present suit? OPD.

3. The finding of the trial court was reversed by the First appellate court

and the suit filed by the plaintiff was decreed. When the second appeal was

admitted, the following question was formulated:

“Whether  the  learned  lower  Appellate  Court  could reverse the findings without considering the documents Ex.D1, D2 and D3.”

4. The High Court came to hold that the appeal was bound to succeed as

the  plaintiff  has  failed  to  prove  his  ownership.   Mere  fact  that  adverse

possession has been claimed by the defendant paled into insignificance and

no benefit of the same can be given to the plaintiff.

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5. In support of the appeal learned counsel for the appellant submitted

that the approach of the High Court was clearly erroneous.  It is not a fact

that Exh. D1 to D7 were not considered.  In fact the trial court observed as

follows:

“Now coming to with regard of creation of relationship of  Plaintiff  and  Defendant  as  licensor  and  licensee between the parties, nothing is stated by the Plaintiff in his pleadings when Defendant was inducted as a licensee in the portion of the House No. 5912-13 whereas in his statement as PW-1 he has stated in the cross examination that Defendant was inducted into the Property as licensee about six years earlier. Whereas from the perusal of the oral as well  as documentary evidence produced by the Defendant on the file it goes to show that portion of the house has been coming in possession initially of Ghasi Ram  father  of  the  Defendant  and  after  his  death  in possession  of  the  Defendant  since  1931.  These  facts stand  proved  from  the  copy  of  the  resolution  of  the committee dated 19-8-31 Ex. D-1 vide which application of  the  Defendant  for  opening  the  slaughter  house  in House N0.5912-13 was rejected. Thus it shows that on 19.8.31 father of he Defendant was in possession of the house on 19.8.31.  Similarly Defendant has filed a loan application Ex. D-2 before the secretary Punjab Khadi & Village Industries  Board, Chandigarh for carrying on a business under the Tanners production Co. Op. Society Ltd.  In  this  house.  Central  Sales  tax  receipt  Ex.  D-3, electricity bills since 1984 on wards in the name of Ghasi Ram Show the continuous possession of the Defendant in portion of the house. It  is  pertinent  to mention here that apart form the bar statement of Plaintiff there is not an iota of  supporting evidence of any person from the locality in order to prove that Defendant was inducted as a licenses about 5/6 years earlier. Neither any suggestion

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was put to the Defendant in cross-examination regarding the creation of the license about 5/6 years earlier.  It  is well settled that suggestion not put up on any point to the Defendant regarding the matter in dispute. The claim of the Defendant regarding the denial of the relationship as licensor and licensee is deemed to be admitted.”

6. Further  it  appears  that  the  High Court  proceeded  on an  erroneous

impression as if the First appellate court has reversed the finding regarding

ownership.  As a matter of fact the First Appellate Court had concurred with

the finding.

7. It is  to be noted that the High Court’s observations regarding non-

consideration of Exh.D1 to D7 by the trial court, are as follows:

“Similarly  while  deciding  question  of  title,  trial court has not said a word about the documents Ex.D1 to D7, though D1 and D2 were earlier to the filing of the suit by the respondent in favour of the appellant was not proved on record.”

8. The  quoted  portion  of  the  trial  court’s  judgment  shows  that  the

conclusions of the High Court are erroneous.

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9. As  noted  above  the  First  Appellate  Court  also  held  that  it  was

established that the plaintiff is the owner of the property in dispute.  The

First Appellate Court observed as follows:

“The  defendant  in  the  written  statement  claimed  his continuous long possession over the house for the last 56 years  without  paying  any  rent.   Meaning  thereby,  the defendant  has  taken  a  plea  of  adverse  possession.   In other  words  the  ownership  of  the  plaintiff  stands admitted by the defendant.  So from every angle it stands proved that the plaintiff is the owner of the property in dispute.”

10. Above being the position the High Court has fallen into grave error

by overlooking the aforesaid conclusions and in allowing the second appeal.

In the aforesaid background we are of the view that the second appeal needs

to be heard afresh by the High Court.  The matter is, therefore, remanded to

the High Court for a fresh consideration in accordance with law.

11. Appeal is allowed.  No costs.

...…………...................................J.      (Dr. ARIJIT PASAYAT)              

…..................................................J.               (Dr. MUKUNDAKAM SHARMA)  

New Delhi,

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January 13, 2009   

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