Inder Lal Khanna vs Krishan Lal Malhotra and others

This judgment will also dispose of Regular Second Appeal No. 3924 of 1987 as both these appeals arise out of the same judgment of the Additional District Judge, Rohtak dated 12-9-1987.

The plaintiff-appellant filed a suit for permanent injunction alleging that the defendants are the owners of a dairy/plot bearing No. 107/118, whereas he is the tenant under defendant No. 1 Krishan Lal Malhotra. According to the plaintiff he is in possession thereof as a tenant for the last 7 years on monthly rent of Rs. 50/- which he is regularly paying to the landlord. He further alleged that he is running the business of a milk dairy and is tethering the buffaloes at the said site. There are cattle shed, khor, one incomplete shop, another room and a dairy room, chaff store, hand-pump, water tank etc. at the site and all those things are in existence at the spot and they are in occupation of the plaintiff. Since the defendants without any right or concern are threatening to dispossess the plaintiff from the property in dispute by force, he filed the present suit on 26-9-1983.

In the written statement filed on behalf of the defendants, the plea taken was that the plaintiff is not a tenant under them and on the other hand, they are owners in possession of the plot. It was further pleaded that the defendants along with Nihal Chand, Harish Chand and Jagdish Chand had purchased 1/3rd share of a plot measuring 718 sq. yards oil 13-4-1972 through a registered sale-deed dated 14-4-1972 and then the said area was divided into four portions. There was private partition between the co-sharers in the year 1973-74 and thereafter Harish Chand had raised construction over a portion of his plot. The portion which had fallen to the share of Nihal Chand was purchased by the defendants from him through registered sale deed dated 12-2-1981. As alleged, Nihal Chand had started construction on his portion, but it was left incomplete by him which is still lying as such, they further pleaded that the plaintiff obtained only the portion of the plot, fallen to the share of defendant No. 1 as a licencee. The residential plot which was purchased by the defendants in the year 1981 was not in possession of the plaintiff and there was no question of the plaintiff being inducted as a tenant or licencee in that portion in the year 1977-78 because the defendants were not the owners of the same prior to 1981. The defendants also alleged that there was no cattle shed etc. on the area in dispute and that there is construction up to plinth level on the commercial plot adjoining the road. Thus, according to the defendants, the plaintiff is in permissive use of the residential plot shown by letters A, B, C and D in the site plan attached with the written statement Exhibit D3. It was explained that the plaintiff is the son of maternal uncle of the defendants. He was married and was residing in village Lahil where he developed relations with Santosh working as A. N. M. in the Health Centre. Thus, the plaintiff was involved in a criminal case. The defendant No. 1 at the request of the mother of the plaintiff helped him and in order to enable the plaintiff to stand on his legs, defendant No. 1 arranged an amount of Rs. 8000/- as loan from the Bank on the guarantee of Ram Kishan Chawla, for the purchase of buffaloes and he also permitted him to tether his buffaloes on his plot. It was denied that there was any relationship of landlord and tenant between the parties. It was further alleged that Inder Lal plaintiff agreed to sell his agricultural land to defendant No. 4 but some dispute arose and an arbitrator was appointed to decide the dispute, who imposed a penalty of Rs. 10,000/-on the plaintiff and his brother Krishan Lal and defendant No. 4 was directed to leave the land by 21-4-1983 and to demolish his tube-well etc. Accordingly defendant No. 4 acted on the award and removed his tubewell. In these circumstances, the defendants also made counter-claim in their written statement for mandatory/permanent injunction against the plaintiff and also claimed mesne profits for the use and occupation of the site in dispute.

On the pleadings of the parties, the trial Court framed the following issues :--

Whether the plaintiff is in possession of the property in disputes a tenant under defendant No. 1 on payment of monthly rent of Rs. 50/-? OPP.

Whether the plaintiff was settled on the plot in dispute as a mere licencee ? OPD

If issue No. 2 is proved whether licence has been revoked, if so, its effect ? OPD

Whether the plaintiff is not in possession of the suit property and on that account suit in the present form is not maintainable ? OPD

Whether defendants are entitled to mesne profits? If 40, at what rate and how much? OPD

Whether the application for counterclaim and mesne profits is not maintainable ? OPP

Relief.

Issues Nos. 1 and 2 were discussed together by the trial Court and it was found that the plaintiff has failed to prove that he is a tenant over the property in dispute whereas the defendant have succeeded in proving that the plaintiff is a licencee over the area in dispute viz. A. B. C. D. shown in the site plan. Under issue No. 3, the trial Court found that there was nothing on the record to suggest that any notice of revocation or any such intention of the defendants was ever intimated to the plaintiff. As regards issue No. 4, the trial Court concluded that the suit for permanent injunction with regard to one portion of the area is maintainable but it was not maintainable with regard to the remaining portion. Issues Nos. 5 and 6 were discussed together and it was held that the defendants have failed to prove both these issues and hence the same were decided against them. Consequently, both the suit of the plaintiff as well as the counter-claim laid by the defendants, has dismissed.

Dissatisfied with the same, both the parties filed two separate appeals. In appeals, the learned Additional District Judge, affirmed the findings of the trial Court under issues Nos. 1 and 2. The findings under issues Nos. 5 and 6 of the trial Court were reversed and it was held that since the plaintiff himself alleged in the plaint that the defendants with the help of their persons tried to take forcible possession and so he has filed a suit, it was apparent that the licence was revoked and the plaintiff was asked to vacate the plot. So, it was enough rvocation of the licence. The learned appellate Court also found that the defendants were entitled to the mesne profits since the plaintiff had already furnished the Bank guarantee on 11-10-1984 to the tune of Rs. 20,000/- for this purpose and, therefore, this relief could be granted to the defendants in this suit. In view of these findings, the decree of the trial Court dismissing the plaintiffs suit was maintained whereas a decree for mandatory injunction was passed in favour of the defendants directing Inder Lal plaintiff to deliver vacant possession of the site in dispute to the defendants and also to pay mesne profits at the rate of Rs. 100/- per month the date of the filing of the suit till the vacation of the site.

Dissatisfied with the same Regular Second Appeal No. 3019 of 1987 has been filed on behalf of the plaintiff whereas Regular Second Appeal No. 3924 of 1987 has been filed on behalf of the defendants.

The learned counsel for the plaintiff-appellant submitted that there was no proper counter-claim filed by the defendants as provided under Order 8, Rule 6-A of the Code of Civil Procedure. According to the learned counsel, the counter-claim was to be treated as plaint and governed by the rules applicable to the plaint and the same should have been filed before filing the written statement. Since no such counter-claim was filed, hence no relief could be granted to the defendants in the suit filed by the plaintiff. In support of his contention, he referred to Bank of Baroda Vs. Gurcharan Singh, ).

As regards this contention, I do not find any merit therein. The judgment referred to above has no applicability to the facts of the present case. The plaintiff never objected as such, to the filing of the counter-claim. Rather the necessary issues arising out of the counter-claim were framed and the parties were allowed to lead evidence. No prejudice has been alleged to have been caused to the plaintiff on account of irregularity, if any in filing the counter-claim. That being so, the plaintiff cannot be allowed to agitate in the second appeal that there was no proper counter-claim. In the case referred to above, it was held that the defendant could not be allowed to file counter-claim by amending the written statement, which is not the proposition in the present case. Admittedly, the defendants while making the counter-claim in the written statement also paid the requisite court-fee thereon and it was duly entertained by the trial Court.

The next contention raised on behalf of the plaintiff-appellant is that the plaintiff was the tenant on the suit land and the inference of the Courts below that he was a licencee was wrong and illegal. It was maintained that where a person is tenant or a licencee is mixed questions of law and fact and, therefore, could be gone into in second appeal. According to the learned counsel, evidence in this behalf has not been properly appreciated. In support of his contention, he referred to Associated Hotels of India Ltd. Vs. R.N. Kapoor, , Board of Revenue and Others Vs. A.M. Ansari and Others, , Kidar Nath Vs. Swami Parshad and Others, , Narinder Nath Saini v. Prem Parkash Kaur (1987) 92 P LR 87. I do not find any merit in this contention. Both the Courts below have discussed the entire evidence and after discussing the same have given a concurrent finding that the plaintiff has miserably failed to prove that he was a tenant under defendant No. 1. Admittedly, no rent as such was paid by him. The case set up by the plaintiff was that he was selling milk to the defendants and the rent was being adjusted towards price of the milk. Both the Courts below have negatived this plea of the plaintiff as there was no cogent evidence to prove this fact. The lower Appellate Court rightly observed that so there is no evidence regarding payment of rent nor any document regarding adjustment of rent as the price of milk has been produced". It was further observed that "so it cannot be suggested that the plaintiff continued selling milk to defendant No. 1 during the long period of seven years. There is no receipt regarding payment of any rent pertaining to the above said period of 7 years. So, keeping in view the near relationship of the parties and the manner in which defendant No. 1 helped him in criminal cases against him and in rehabilitating him at Rohtak, then he earlier resided in village Lahil, the only inference in the circumstances of the case which can be drawn is that the plot in dispute was given to him on licence free of any charges for facilitating his dairy business and for the dairy even defendant No. 1 ar-ranged a loan of Rs. 8000/- for him. He also arranged two further loans for him. So, the. plaintiff was not the tenant and he entered the; possession''of the plot as a mere licencee". It being a pure finding of fact could not be interfered with in the second appeal.

The next contention raised on behalf of the plaintiff-appellant was that even if it be assumed that the plaintiff was a licencee, even then no decree could be passed against him because, according to the learned counsel, the plaintiff has raised construction on the plot in dispute and once the constructions are raised, then in view of Section 60 of the Easements Act the licence could not be revoked. In support of this contention reference was made to Jagat Singh v. District Board Amritsar AIR 1940 Lah 509. He also challenged the finding of the lower appellate Court in this behalf. According to the learned counsel, the construction was raised by the plaintiff. The defendants'' plea in the written statement that there was no construction and that being so, the findings of the Courts below in this behalf was wholly wrong.

On the other hand, the learned counsel for the defendants submitted that the plaintiff is not entitled to the benefit of Section 60 of the Easements Act, in view of the judgment reported in Dhool Singh v. Smt. Bardhu Bai AIR 1974 Raj 90. Moreover, no such plea was taken by the plaintiff in the Courts below to this effect and, therefore, the plaintiff cannot be allowed to take this plea for the first time in the second appeal. In support of his contention he referred to Chavalier I.I. Iyyappan and Another Vs. The Dharmodayam Company, . Section 60 of the Easements Act provides that a licence may be revoked by a grantor unless the licencee acting upon the licence has executed works of permanent character and incurred expenses on its execution. As observed earlier, no such plea was taken by the plaintiff in the Courts below and, therefore, the plaintiff cannot be allowed to take this plea for the first time in second appeal. In Jagat SJngh''s case (AIR 1940 Lah 509) (supra) referred to above, a licensee acting on the licence has built works of permanent character ana it was, therefore, held that it was not open to the licensor to revoke the licence at his option and resume the land even on offer of compensation. In other words, the construction was raised with the consent of the licensor. On the other hand, it was held in Dhool Singh''s case (supra) that where the defendant who was a licencee contested the suit for ejectment by setting up his own title, he did not set up any circumstances showing the existence of conditions making the license irrevocable. In the absence of such a plea or issue, the Courts below were in error in holding that the licence was irrevocable because irrevocability of licence u/s 60 was a mixed question of law and fact.

The next contention raised on behalf of the plaintiff-appellant was that the most, the plaintiff could be held a licencee for half of the plot over which the plaintiff has been found to be in possession, but as regards the other half portion, the plaintiff could not be held to be a licencee. Since he was claiming to be a tenant and even He fails to prove himself a tenant, he will be a trespasser thereon. He further argued that even a trespasser is entitled to maintain possession and he could be ejected in accordance with law and, therefore, he was entitled to a decree to this effect. , Again there is no merit in this contention either because no such plea was ever taken by the plaintiff in the Courts below. The plaintiff claimed himself to be a tenant over the entire plot whereas on trial he was found to be in possession of portion marked A, B, C and D for which he was directed to furnish Bank guarantee for mesne profit to the tune of Rs. 20,000/-. It means that qua remaining portion of the plot, the plaintiff was never found to be in possession. In view of this factual position, this plea is not available to the plaintiff-appellant.

Lastly it was contended that the defendants were not entitled to any decree for mesne profits at the rate of Rs. 100/- per month. There was no evidence to that effect. In the house tax Register of the Municipal Committee where rent was shown to be Rs. 1200/- per annum, the same was reduced subsequently to Rs. 700/- and that being so, the plaintiff was liable to pay for half of the portion and in these circumstances the question of paying mesne profits at the rate of Rs. 100/- per month did not arise,

On the other hand, learned counsel for the defendants-respondents submitted that no Court fee as such was payable for payment of future mesne profits and the Court was competent to grant such relief. In support of his contention he referred to Gopalakrishna Pillai and Others Vs. Meenakshi Ayal and Others, ; Shivaji Vs. Deoji and Others, and Narinder Nath Saini v. Prem Parkash (1987) 92 P LR 87. Reference was also made to Rattan Lal v. Madan Lal Malhotra (1979) 81 P LR 238 to contend that in such circumstances the relief of mesne profits could be granted. According to the learned counsel, the decree passed by the lower appellate Court in favour of the defendants in their counter-claim was perfectly valid. The plaintiff was a licencee and he will be deemed to be always a licencee. It was not open to him during subsistence of licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or any one else. It is his plain duty to surrender possession of the property as a licencee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. Reference may be made to Sant Lal Jain Vs. Avtar Singh, .

It is not disputed that the plaintiff furnished the Bank guarantee for mesne pro-fits to the tune of Rs. 20,000/- for the portion A, B, C and D which was found to be in his occupation. If that was so, the defendants were entitled to the recovery of the mesne profits from the plaintiff in view of that order and the Bank guarantee furnished by him. It was on that account that the defendants moved a separate application on which issue with regard to the mesne profits was framed and the parties were allowed to lead evidence. Thus on the facts and circumstances of the case it could not be successfully argued on behalf of the plaintiff-appellant that if a decree for mesne profits is passed in favour of the defendants and against the plaintiff, any prejudice could be said to have been caused to him particularly in view of the Bank guarantee already furnished by him.

It will not be out of place to observe that provisions of counter-claim were provided by amendment of Order 8, Rule 6, C. P.C. so that in one litigation the dispute between the parties, is settled finally. In a suit, prior to this amendment, if the defendant was entitled to any relief, he was required to file a separate suit for that purpose, but now in a suit filed by the plaintiff, the defendant can plead and set up counter-claim against the plaintiff so that controversy between the parties may be settled in one litigation. In the present case, the controversy between the parties has been rightly settled by the lower appellate Court. The plaintiff-appellant could not be allowed to make any grievance cf the decree passed in favour of the defendants in the counter-claim simply on the ground that it was not in accordance with Order 8, Rule 6-A, C.P.C. The clement of finality in such like litigation is more important than unnecessary technical pleas which only helps in delaying the litigation and does not serve any purpose. Consequently both the appeals fail and are dismissed with no order as to costs.

At the time of motion hearing the dispossession of the plaintiff-appellant was stayed subject to the condition that he will deposit mesne profits at the rate of Rs. 100/-per month in the Court of Subordinate Judge First Class, Rohtak, and the said amount was to be deposited by 15th of each month. In case the plaintiff failed to comply with the said order dated 16-10-1987 he will be liable to pay interest at the rate of 12% per annum on the mesne profits which are found due from the plaintiff by the executing Court.

Order accordingly.