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TMI Blog2014 (3) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... MR. JUSTICE JAYANT NATH For the Appellant : Mr.Saurabh Tiwari, Advocate For the Respondent : Mr. Raman Gandhi, Advocate ORDER JAYANT NATH, J. 1. The plaintiffs have filed the present suit for possession, damages and mesne profits. Plaintiff No.2 is the mother and plaintiff No.1 is her son. They claim to be the absolute owners of property being plot No.323/1-A, Block-D (Old No. 229/1-A), Sangam Vihar, New Delhi-110062 measuring 200 sq.yards. The said suit property was purchased by plaintiff No.1 along with his late brother Bhagat Ram whereby each was owner of 100 square yards respectively. It is stated that the seller executed a general power of attorney dated 12.04.1985, an agreement to sell dated 12.04.1985 and a receipt for consideration of ₹ 40,000/-. The property is said to be built up having eight rooms, a store room and two wash rooms. 2. The brother of plaintiff No.1 late Bhagat Ram is said to have died a bachelor and issueless about 20 years ago. Hence, it is submitted that his mother, plaintiff No.2 inherited his share to the said property and accordingly, the plaintiffs are the absolute owners. 3. It is stated that about 14 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty. The defendants also claim that they were taking care of the day to day needs of Late Sh.Ganpat Ram and looking after all aspects of his life. 5. On 25.04.2013 the present suit came up for framing of issues. The court on the said date passed the following order. 1. The suit is ripe for framing of issues. 2. The counsel for the defendants has handed over proposed issues which are taken on record. 3. The counsel for the plaintiffs states that no issue arises since there are no material pleas in the written statement and the suit insofar as for the relief of possession is liable to be decreed forthwith. It is argued that some of the pleas in the written statement in this suit are contrary to the pleadings by the defendant no.2 who is the wife of the defendant no.1 in the earlier suit and the orders and the proceedings therein. 4. The counsels have been heard for some time. 5. It is deemed expedient to record the statement of both the defendants under Order 10 read with Section 165 of the Evidence Act. 6. On enquiry, it is informed that neither of the defendants are present in the Court today. 7. Both the defendants are directed to personally appear bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the defendants had exclusive possession of the property with their father and they are also entitled to claim adverse possession. They have also relied upon a Will of Late Sh.Ganpat Ram, according to which they claim that the property has been bequeathed to defendant No.2. The last submission that is made is that the suit land is a Government land and the plaintiffs and Late Ganpat Ram had no title to the same. 10. The first aspect is the status of the defendants vis- -vis the suit property. It is admitted by the defendants in the written statement that they were in occupation with the permission of Ganpat Ram. Relevant portion of the written statement reads as follows:- 3. As aforesaid, the defendants were in exclusive possession of the entire suit property though in occupation with the permission of the said Ganpat Ram. It was the said late Shri Ganpat Ram who had permitted or inducted the defendants to reside with him in the suit property. The defendants were also taking care of not only the day to day needs of the said late Ganpat Ram but also looking after him in all other aspects of life. ... 11. As far as the rights of the plaintiff to the suit property are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see‟ as follows: 43. As opposed to this, the expression license , as defined under Section 52 of the Indian Easement Act, provides that 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 easement or an interest in the property, the right is called a license. Section 52 does not require any consideration, material or non-material, to be an element of the definition of license, nor does it require that the right under the license must arise by way of contract or as a result of a mutual promise. Thus, license as defined in Section 52 of the Indian Easement Act can be a unilateral grant and unsupported by any consideration. The Supreme Court in State of Punjab v. Brig. Sukhjit Singh MANU/SC/0540/1993: [1993]3SCR944 has observed that, payment of license fee is not an essential attribute for subsistence of license . 44. Let us see as to how the expressions license and licensee are understood, used and spoken in common parlance. It is often said that a word, apar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted by the father of the plaintiffs who permitted them to enter/use the premises for a limited period, the defendants were using the premises as Licensee as elaborated above. 16. I now deal with the argument about title of the plaintiff to the suit property. Section 116 of the Evidence Act reads as follows:- 116. Estoppel of tenant; and of license of person in possession No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when license was given. 17. In Bansraj Laltaprasad Mishra v. Stanley Parker Jones AIR 2006 SC 3569, the Hon‟ble Supreme Court in paragraphs 14 and 15 held as under:- 14. The possession in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who comes upon any immoveable property by the license of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said portion of the suit property measuring 100 sq.yds and that the testator has now become the absolute owner of the said 100 sq.yds of the suit property. The said will allegedly bequeaths the half share of the suit property to defendant No.2. 19. Even if for the sake of arguments it is presumed that the will was genuinely executed by the testator late Shri Ganpat Ram who excluded his natural heirs from the will, on the face of it no title flows to defendant No.2. The will itself accepts that the property was originally owned by the said late son of Shri Ganpat Ram, namely, Mr.Bhagat who died. Admittedly, the mother of Mr.Bhagat, namely, plaintiff No.2 is alive. Under Section 8 of the Hindu Succession Act, 1956 the mother is a Class-I heir. Being the only surviving Class-I heir she would succeed to the properties left behind by Mr.Bhagat on his death. Father is not a Class-I heir. It is obvious that the propounders of the Will forgot the provisions of the Hindu Succession Act. Hence no title, as claimed, can pass to defendant No.2. 20. The rights of a licencee to stay in possession of the property have been dealt by the Division Bench of this High Court in the case of Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iffs herein is a deemed revocation of the license and hence the defendants herein cannot seek protection of their possession by permanent injunction. The suit was dismissed under Order VII Rule 11 CPC. Against the said order the defendant had filed an appeal in the Court of ADJ, Saket, alongwith an application under Section 5 of the Limitation Act. On 18.10.2012 the application under Section 5 of the Limitation Act was dismissed alongwith the appeal. 23. A perusal of the plaint filed in the Saket Court would show that in the said plaint there is no averment made regarding execution of any will by late Mr.Ganpat Ram in favour of defendant No.2. The plaint there stated that late Ganpat Ram donated mutually, expressly and openly and in the knowledge of his family members half share in the said property in favour of the defendants. 24. It is but obvious that the defendants are taking up frivolous and vexatious defence for the purpose of prolonging their illegal possession of the suit property. They cannot be permitted to misuse the process of law in this manner. 25. It may also be noted that on 25.4.2013 the defendants were directed to personally appear before the Court on 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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