Kamlesh and Others vs Jasbir Singh

Hemant Gupta, J.—This judgment will dispose of RSA No. 3269 of 1985 and RSA No. 3270 of 1985 as common question of law arises but out of separate suits.

Surinder Pal Singh has filed a suit for permanent injunction restraining Jasbir Singh from interfering in his possession by demolishing the roof, latrine and walls of House No. 6212/3, New No. 1202/2, Patel Road, Ambala City. It''was alleged by Surinder Pal Singh that he is residing in the said house for the last more than 15 years. He was inducted as a tenant by a previous owner Shri Kishan Singh who sold this property to Jasbir Singh on 31st May, 1978 and as such he is now tenant under Jasbir Singh. Now Jasbir Singh has threatened to demolish the roof and the walls of the house as he wants to oust the plaintiff by force and hence this suit. RSA No. 3270 of 1985 arises out of such suit for permanent injunction.

Jasbir Singh owner filed a separate suit for mandatory injunction claiming therein that he has purchased this property vide registered sale deed, dated 31st May, 1978 from Kishan Singh for valuable consideration of Rs. 18,000/-. Surinder Pal Singh is in possession of two rooms as a licensee. It has been alleged that the house in question is in very dilapidated condition and has become unfit and unsafe for human habitation. He requested Shri Surinder Pal Singh to surrender and hand over the possession of the same as he was merely a licensee, but the defendant started misbehaving arid have filed a false and frivolous suit. RSA No. 3269 of 1985 arises out of such suit for mandatory injunction.

The controversy between the parties is that whether Surinder Pal Singh is a tenant in the house in dispute or is a licensee. Both the Courts recorded the clear finding of the fact that the possession of Surinder Pal Singh is that of a licensee. Since, licence has been revoked, Jasbir Singh is entitled to a decree of possession. Consequently, the suit for mandatory injunction filed by Jasbir Singh had been decreed.

Surinder Pal Singh has stepped into witnesses box as PW1 and deposed that he is in possession of house in dispute since 1.12.1964 at a monthly rent of Rs. 25/-. Kishan Singh was previously the owner of this house. After purchase, Jasbir Singh has stopped taking rent from him, however, he could not produce any rent receipt issued by Kishan Singh. Surinder Pal Singh has also produced PW2, Harbans Lal, House Tax Clerk, Ambala City. As per the said witness. Surinder Pal Singh has deposited property tax for the assessment year 1973-1974. PW3 is Ishar Singh, Upper Division Clerk of Haryana State Electricity Board, who has produced record in respect of installation of meter in the premises in dispute on 10.1.1962. PW4 is Krishan Lal, who has deposed that Surinder Pal Singh was the tenant under Kishan Singh at the rate of Rs. 25/-. On the other hand, Jasbir Singh has appeared as DW1. He proved his sale deed Exh.Dl and site plan Exh.D2. He admitted possession of Surinder Pal Singh but deposed that he was told by Ram Lal that Surinder Pal Singh is a licensee being his distant relation and that Surinder Pal has assured him that he would vacate the house. He has also produced DW2 Kishan Singh, the previous owner. He has deposed that this house was allotted to him and he had sold the same to Jasbir Singh vide sale deed Exh.Dl. He has stated that he was in Army and he had given the house to Ram Lal his brother-in-law (wife''s brother) to manage the same in his absence. The same was never given on rent. Ram Lal told him that Surinder Pal is his brother being of same caste and he will vacate the house on mere asking. Ram Lal was in occupation of the Upper portion which he vacated in the year 1973 and thereafter he gave the possession of the upper portion to Jasbir Singh. DW3 is Radhe Sham, who has deposed that the disputed house is in front of his house. Ram Lal had given his permission to live in the house because Surinder Pal a relation of Ram Lal. House was never given on rent by Ram Lal. DW4 Bhagwan Dass was alsodeposed that the disputed house is about four paces and that it was not given on rent by Ram Lal.

On the basis of evidence led by the parties both the Court rightly drawn conclusion that the possession of Surinder Pal Singh is not that of a tenant. There is not a single document over the span of 19 years to prove the tenancy. In fact, a perusal of the statement of PW3 an official of Electricity Board shows that initially he got electric connection as owner in the year 1962. The only document relied upon by the appellant to prove his tenancy is the payment of house tax for the assessment year 1973-74, wherein it has been mentioned that the appellant is a tenant. Admittedly, the appellant is in possession. Being a person in possession, if he has paid house tax, it will not make the possession of the appellant as that of a tenant. The payment of house tax is a unilateral act of the appellant. The owner Kishan Singh or Ram Lal is not responsible of such payment of house tax. Therefore, the payment of house tax for assessment year 1973-74 is not enough to hold that the possession of the appellant was that of a tenant.

The appellant has deposed that he was inducted as tenant by Kishan Singh. However when Kishan Singh appeared as a DW2, he has deposed that he was in Army and has given the house to his wife''s brother Ram Lal for management. Said Ram Lal has given the lower portion of his house to Surinder Pal being his Sood brother. The testimony of Kishan Singh is in unequivocal terms that Ram Lal was given charge of the house and Rani Lal had given the lower portion to the Surinder Pal in brotherhood and that house had not been given on rent.He has further stated that Ram Lal has informed him that Surinder Pal will vacate the house on mere asking.

Thus the finding of the fact recorded by the Courts below that the appellant was inducted as a licensee by Ram Lal is based upon proper appreciation of evidence. Such finding is not shown to be perverse or that such finding is not sustainable in law.

However the question which was vehemently argued by the learned counsel for the appellant was that suit for possession by way of mandatory injunction could be filed by Ram Lal alone who inducted appellant as a licensee and by Kishan Singh or his transferee the owner of the properly. The argument is based on the principle that the licence is a personal obligation and therefore after revocation of licence, the possession can be sought only by the licensee. Learned counsel for the appellant relied upon 2002 (1) R.C.R. 614 - The Corporation of Calicut v. K. Sreenivasan. However learned counsel for the respondent submitted that Ram Lal was merely an agent of Kishan Singh the owner. He was managing the property of Kishan Singh in his absence. The actions of Ram Lal were that of an agent and therefore the principal is competent to seek possession by way of a suit for mandatory injunction.

Thus, the following substantial question of law arises for consideration in the present appeal.

(1) Whether right to administer property in the absence of owner shall be an action of the agent so as to bind his principal?

(2) Whether the owner is competent to sue for possession after invoking the licence?

Chapter 10 of the Indian Contract Act 1872 deals with Appointment and Authority of Agents, Section 182 to 187 of the said Act are relevant for consideration which read as under:-

"182. "Agents" and "principal defined-An "agent" is a person employed to do any act for another, or to represent another in dealings with third person, The person for whom such act is done, or who is so represented is called the "principal".

Who may employ agent.- Any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent.

Who may be an agent-As between the principal and third persons any person may become as agent, but no person who is not of the age of majority and of sound mind can become an agent, so as to be responsible to his principal according to the provisions in that behalf herein contained.

Consideration not necessary,- No consideration is necessary to create an agency. ,

Agent''s authority may be expressed or implied- The authority of an agent may be expressed or implied.

Definitions express and Implied authority.- An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case and things spoken or written or the ordinary course of dealing may be accounted circumstances of the case."

A perusal of the above statutory provisions shows that Ram Lal is a person authorised by Kishan Singh to perform the acts to manage his property in his absence. Thus Kishan Singh is a principal and Ram Lal is an agent in terms of Section 182 of the Contract Act. Section 186 contemplates that authority of an agent may be expressed or implied. The authority is said to be expressed when it is given by words spoken or written. It is implied when it is to be inferred from the circumstances of the case.

When Kishan Singh has appeared as witness as DW-2, he has categorically deposed that he has authorized his brother-in-law to manage property in his absence. Thus it is a case of an express authority. Therefore, it was on expressed authority of Kishan Singh, Ram Lal was managing the property and has inducted the appellant as licensee being of same caste i.e. Sood. It was an act of an agent on behalf of principal on the basis of authority given to an agent.

Learned counsel for the appellant submitted that Kishan Singh could appoint Ram Lal only by virtue of a registered power of attorney. The said argument cannot be accepted in view of the express authority given to Ram Lal in terms of Section 187 of the Contract Act, 1872. As a matter of fact, the registered power of attorney, is required only if a document is required to be registered under the Registration Act, 1908. Since, the creation of the licence does not amount to any transfer of right in the property, therefore, the same was not required to be carried out by virtue of a registered power of attorney as contemplated u/s 32 of Registration Act, 1908.

It has been held by the Division Bench of this Court in a judgment reported in Laxmi Ginning and Oil Mills v. Amrit Banaspati Co. Ltd. 1962 P&H 56 that relationship of principal and agent may be constituted either by express appointment by the principal or by implication of law or by subsequent ratification by the principal of acts done on his behalf. The agent within the ambit of his authority deputises for his principal. Law does not require ordinarily a contract of the agency to be created in writing. The agent carrying out his undertaking within the scope of his authority bind his principal as acts of agents deemed to be those of his principal. The following para may be extracted for ready reference:

"The relationship of principal and agent may be constituted either by express appointment by the principal or by implication of law or by subsequent ratification by the principal of the acts done on his behalf. The agent within the ambit of his authority deputises for his principal. Law does not ordinarily require a contract of agency to be created in writing except where the statute specifically requires the authority should be conferred by writing. The agent carrying out his undertaking within the scope of his authority binds his principal as the agent''s acts are deemed to be those of his principal."

In 1989 SC 1269 the question which was being considered was whether a person receiving rent on behalf of the principal can be said to be in possession of the land in his own right. The Court held to the following effect:

"There is no merit in the further argument that the defendant No. 1 must be treated to be in joint possession as he was actually collecting the rent from the tenants. It is well settled that the possession of the agent is the possession of the principal and in view of the fiduciary relationship the defendant No. 1 cannot be permitted to claim his own possession. This aspect was well emphasised in David Lyell v. John Lawson Kennery (1889) 14 App.Cas. 437 where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate earmarked account continued to do so even after the death of the owner. After more than 12 years of the owner''s death his heir''s assignee brought the action against the agent for possession and the agent defendant pleaded adverse possession and limitation. The plaintiff succeeded in the first Court. But the action was dismissed by the Court of Appeal. The House of Lords reversed the decision of the Court of Appeal and remarked: "For whom, and on whose behalf were those rents received after Ann Duncan''s death? Not by the respondent for himself, or on his own behalf, anymore, than during her lifetime". Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney......."

Judgment in K.Sreenivasan''s case (Supra) referred to by learned counsel for the appellant does not deal with the question raised in the present appeal. As a matter of fact, the learned counsel for the appellant only referred to the emphasis added in the definition of Section 52 of the Easement Act. Since, Ram Lal is an agent of Kishan Singh, therefore, the acts of Ram Lal are on behalf of Kishan Singh. Kishan Singh has appeared in witness box and has accepted the actions of Ram Lal. Thus he has ratified the action of Ram Lal inducting appellant as a licensee.

Thus, in respect of first substantial question, it is held that an agency can be created either by express appointment by the principal, or by implication of law or by subsequent ratification by the principal of the acts done on his behalf. There is an express appointment of an agent by Kishan Singh as well as there is ratification by Kishan Singh of the acts of Ram Lal inducting appellant as licensee, therefore, Kishan Singh or his transferee is entitled to sue for mandatory injunction.

Once it is held that the appellant was inducted as licensee on behalf of Kishan Singh, the suit for possession by way of mandatory injunction could be filed by Jasbir Singh, the successor in interest of Kishan Singh. The learned counsel for the respondent relied upon the Division Bench Judgment reported in Ram Murti Vs. Smt. Sarla Devi, which reads as under:

"Mr. Bhag Singh, the learned counsel appearing on behalf of the petitioner has submitted that the suit for mandatory injunction filed by the respondent-plaintiff was not maintainable and in the facts and circumstances of the case the plaintiff could file a suit for possession. The contention is, however, without any force in view of the judgment of the Supreme Court in Sant Lal Jain Vs. Avtar Singh, . In that case it was held that suit in fact was one for possession though couched in the form of suit for mandatory injunction. In the present case also it is the similar case as the suit in the present case is also in fact for possession though couched in the form of a suit for mandatory injunction.

In view of the above, in respect of second, substantial questions of law, it is held that the plaintiff is entitled to decree for possession by way of mandatory injunction.

Thus finding no merit in both these appeals, the same are dismissed with costs.