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Judgment
K.N. Phaneendra, J.—This Regular Second Appeal is preferred challenging the judgment and decree passed in R.A. No. 4/2003 dated 03.08.2004, wherein the First Appellate Court allowed the appeal and set aside the judgment and decree passed by the Trial Court in O.S. No. 60/1985 dated 16.06.1993.
The pleadings of the parties briefly stated in the following manner:--
The ranks of the parties as per their ranks before the trial Court is retained for convenience.
The records disclose that one Shankarayya (appellant herein) filed a suit against the defendants (respondents herein) for delivery of possession.
It is pleaded by the plaintiff that the suit property bearing No. TMC No. 1764 (CTS No. 2569) situated at Basavana Bagewadi is the ancestral property of the plaintiff In the year 1968 the said property was given to the defendant on the basis of leave and license and from the year 1968 the defendant has been in possession and enjoyment of the said property by putting a flour mill. The consideration for the said leave and license was that the defendant has to flour the grains pertaining to the family of the plaintiff full of cost. It is alleged that the plaintiffs name has been incorporated in the municipal records and city survey records etc. The defendant has agreed to give vacant possession of the suit schedule property as and when required by the plaintiff In the year 1984 the plaintiff demanded for the suit schedule property and issued a legal notice to the defendant. The defendant in fact replied to the said legal notice denying the ownership as well as leave and license as pleaded by the plaintiffs. Therefore, the cause of action for filing of the suit arose in the month of December 1984. On these pleadings the plaintiff filed a suit on 09.07.1985.
In pursuance of the summons the defendant appeared before the Court and contested the proceedings by filing his written statement. Apart from denying the entire allegations made in the plaint, the defendant has taken-up a special plea that the suit schedule property belonged to one Shivanagouda @ Gurugouda and the said property bearing CTS No. 2569 was purchased by the defendant in the year 1961. Even prior to 1961 he was in possession of the said property since 1958, as he had been running a flour mill in the said area. In fact earlier i.e., up to 1961 he was paying a sum of Rs. 3/- as rent to one Shivanagouda and he constructed some walls in the said area and also took electric connection in the year 1968. It is contended that in the year 1968 he installed an Electric Flour Machine and he has taken electricity connection to the electric mill and he continued in possession and enjoyment of the property. It is the further contention of the defendant that he purchased the said property for a sum of Rs. 90/- from Shivanagouda and subsequently he became the owner in possession and enjoyment of the suit property. He denied emphatically that he never been possession of the property by way of leave or license as alleged by the plaintiff in his plaint. On the above said rival contentions of the parties the trial Court has framed the following issues.
"i) Whether the plaintiff proves that the defendant was allowed to run a flour mill in the suit open site bearing TMC No. 1764 (CTS No. 2569) at B. Bagewadi by his father on leave and license basis?
ii) Whether the defendant proves that he is the owner in possession of the suit property bearing TMC No. 1764 (CTS No. 2569)?
iii) Whether the defendant further proves that the suit site bearing TMC No. 1764 (CTS No. 2569) originally belonged to Shivanagouda alias Guragouda Patil and he allowed the defendant to run a flour mill as contended in Para-3 of his written statement?
iv) Whether the Court fee paid is proper and correct?
v) Whether the suit of the plaintiff is barred by limitation?
vi) Whether the suit of the plaintiff is bad for non-joinder of unnecessary party?
vii) Whether the suit of the plaintiff is maintainable without the relief of declaration?
viii) Whether the plaintiff is entitled for the relief sought for?
ix) What order or decree?"
The plaintiff-Shankarayya Sangayya Narasalgimath, in order to prove his case, examined himself as PW.1 and got examined one witness by name K.R. Dhanakshirur as PW.2 and got marked Ex. P1 to P.33. The defendant No. 1-Basappa M. Muddebihal examined himself as DW.1 and got examined another witness by name Shivanagouda Channabasappagouda Patil, as DW.2 and got marked Exs. D1 to D4.
On analysis of the entire oral and documentary evidence the trial Court has answered the issued Nos. 1, 4, 7 and 8 in the affirmative and issue Nos. 2, 3, 5 and 6 in the negative and ultimately decreed the suit of the plaintiff holding that the plaintiff has established the ''leave and license'' as pleaded by him and defendant has not delivered the vacant possession of the property in favour of the plaintiff.
Being aggrieved by the said judgment and decree the defendant has preferred appeal in R.A. No. 17/1993 before the I Addl. Civil Judge, Bijapur. By judgment and decree dated 20.11.1998, the said appeal was allowed and judgment and decree passed by the trial Court was set aside and consequently the suit filed by the plaintiff before the trial Court was dismissed with cost.
The plaintiff aggrieved by the said judgment and decree of the First Appellate Court preferred the second appeal before this Court in RSA No. 292/1996 and the said RSA was allowed and the matter was remitted to the Lower Appellate Court with a direction to give an opportunity to the plaintiff to produce documents and to lead evidence, if any. It appears, in that context, both the parties produced some documents, which are marked at Ex. P.34 to 37 before the First Appellate Court. In the meantime the Court of Civil Judge (Sr.Dn) was established at B. Bagewadi and the said appeal was transferred to the said Court and renumbered as R.A. No. 4/2003. Thereafter the learned Civil Judge (Sr.Dn.) at B. Bagewadi, heard the appeal on merits and formulated the following points for consideration:-.
"(a) Whether the plaintiff proves his title over the suit schedule property?
(b) Whether the plaintiff proves that the defendant is in possession of the suit property on leave and license basis?
(c) Whether the judgment and decree of the Lower Appellate Court requires any interference by this Court answering the point Nos. 1 and 2 in the negative and 3 in the affirmative."
Finally the First Appellate Court has allowed the appeal and consequently dismissed the suit of the plaintiff Being aggrieved by the said judgment and decree passed by the First Appellate Court, the plaintiff is before this Court challenging the judgment of the First Appellate Court.
After hearing both the parties this Court has framed the following substantial question of law:
"Whether the judgment and decree passed by the First Appellate Court referring the judgment and decree passed by the Trial Court and dismissing the suit of the plaintiff is contrary to law and direction issued by this Court in RSA No. 292 and connected cases and for non consideration of the reasons assigned by the Trial Court in decreeing the suit of the plaintiff?
I have perused of the substantial question of law framed by this Court comprising of three aspects i.e.--
"i) Whether the First Appellate Court without referring or appreciating the judgment of the Trial Court, dismissed the suit is contrary to law;
ii) Whether the direction issued by this Court in RSA Nos. 292 and 296/1996 has been followed by the First Appellate Court or not;
iii) Whether the First Appellate Court has considered the reasons assigned by the Trial Court or not, while decreeing the suit of the plaintiffs."
Before adverting to the above said substantial question of law framed by this Court, it is just and necessary to ascertain as to what was the direction issued by this Court while disposing of RSA No. 292/1996 c/w. 296/1996, which portion is extracted below.
"No doubt, prima facie the records show the name of the plaintiff, as against whom the defendant relied upon the oral say, prima facie the plaintiffs title cannot be questioned. However, as the documents are filed by the plaintiff in support of his title, to give an opportunity to the defendants, the matter is remitted to the First Appellate Court. The First Appellate Court was directed to afford opportunity to both the parties to file documents, if any, and to produce the evidence and dispose of the same in accordance with law".
Learned counsel for the appellant contended that this Court has already held that, prima facie the plaintiffs possession cannot be questioned by the defendants. After remand, it appears, with consent, the certain documents are marked as Exs. P 34 to 37. Apart from that, the substantial questions of law also refers to whether the judgment of the First Appellate Court is contrary to law in any manner. This in fact takes to me to ascertain the judgment of both the courts below and also the materials available on record to ascertain whether the judgment of the First Appellate Court is erroneous compared to the judgment of the Trial Court. For that it is just and necessary for this Court to go through the materials on record.
On a careful perusal of the judgment of the Trial Court it is noticed that the Trial Court in fact considered the documents-Exs. P1-Extract of CTC No. 2569 and Ex. P2-Map, Ex. P5- Certified copy of the map, Exs. P6 to P33- Tax receipts and on appreciation of the same, the trial Court held that the said documents coupled with the pleadings of the plaintiff established the ownership over the suit schedule property. Hence, the vacant possession of the suit property belonged to the plaintiff and it mainly relied upon the defendant''s case holding that the defendant has taken-up the contention that his father entered into the suit property by means of running a flour mill on a monthly rent of Rs. 3.00. He paid the rent to DW.2 and thereafter purchased the property for a sum of Rs. 90/-. But the Trial Court has in detail observed that the defendant has not produced even iota of material to show the existence of any transaction with regard to purchase of the property for Rs. 90/-, because he has not made any efforts to get his name mutated in the municipal records. He has also not produced any material to show that he has paid any taxes towards the said property subsequent to the purchase, in order to show that he is the absolute owner of the property from the date of purchase. Mainly relying upon the defendants'' plea and the documents, the Trial Court has come to the conclusion that comparatively the plaintiff has established his title over the property and as such, the defendants have not proved their case. Therefore, the plaintiffs case has been believed by the original Court and decreed the suit in favour of the plaintiff.
The First Appellate Court, in fact has also in detail dealt with the oral evidence well as the documents produced by the plaintiff and also the defendants including the documents marked subsequently before the Court at Exs. P34 to 37. The First Appellate Court though has relied upon those documents, has come to a different conclusion that mere entries in the mutation extract or CTC extract or kandayam receipts, in any manner will not confer any title on the plaintiff On the other hand, even these documents as the documents pertaining the plaintiffs suit schedule property are accepted, but those documents themselves will not create any title and the plaintiff has not produced any title deed to show that the said property was in the name of the ancestors of the plaintiff so that he acquired the property from his ancestors. Therefore, the First Appellate Court has held that the plaintiff has not proved his title and therefore, he is not entitled for the decree. On the other hand, the First Appellate Court has also observed that the defendants'' possession over the suit schedule property has been admitted by the plaintiff himself and from 1968 the defendants'' possession has been proved to the satisfaction and the plaintiff has not shown to the Court with regard to the relationship as that of ''Licensor'' and ''Licensee'', therefore, the plaintiff is not entitled for the remedy sought for. It is also stated by the First Appellate Court that the defendant after entering into possession of the property, in the year 1968, the flour mill was started by him by taking electricity connection. If the defendant was in possession of the property by way of licence, then the plaintiff would have exercised his power by giving consent for taking such electricity connection. Therefore, looking to the circumstances existing between the parties, the possession of the defendants has been considered as a strong point in favour of the defendant and holding that the plaintiff has not proved his title over the suit schedule property, therefore, holding that the plaintiffs suit is liable to be dismissed. Accordingly, the First Appellate Court has dismissed the suit.
As could be seen from the issues framed by the Trial Court and also the points for consideration framed by the First Appellate Court, the entire case revolves around, whether the plaintiff established that the defendants were allowed to run the flour mill in the suit open site at Basavana Bagewadi by their father on the basis of ''Leave and License''. In my opinion, rest of the issues framed, in fact defendant around this particular fact in issue. This particular issue in fact is the decisive issue, which decides the entire case between the parties to the suit irrespective of title to the property.
Sri. Ameet Kumar Deshpande, learned counsel appearing for the respondents/defendants has categorically contended that, when the title of the plaintiff is denied during the course of the pleadings before the Trial Court and also evidence, when he sought for possession of the property, it is his bounden duty to prove his title to the property. He also contends that even much prior to filing of suit by exchange of notice also the title of the plaintiff is denied.
Per contra, Sri. S.S. Mamadapur, learned counsel appearing for the plaintiff submits that, there need not be any proof of title to the property, because the plaintiff has not sought for declaration of his tide and he has only sought for possession of the property on the basis of ''leave and licence''. In such circumstances, whether the title has to be proved by the plaintiff, is the question that is to be looked into by this Court. In this background, in order to prove ''leave and licence'', whether any person is obliged to prove title, is to be looked into.
The term ''Licence'' is defined under Section 52 of the Indian Easement Act, wherein it enunciates 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 an easement or an interest in the property, the right is called a license."
Therefore, it goes without saying that, for the purpose of granting licence, a person need not be an absolute owner of the property, if he has got possession over the property or he has got some right or interest over the property, he can give the property by way of licence.
On a plain reading of this provision, it clearly indicates that grant of licence need not be by way of any document and it need not be in writing Licence can also be presumed from the facts of the case and conduct of the parties to the proceedings.
Section-53 of the Indian Easement Act also further clarifies, ''who may grant licence'' by directing that,-
"A License may be granted by any one in the circumstances and to the extent in and to which he may transfer his interests in the property affected by the license."
Therefore, if the plaintiff is able to show that he has got some interest over the property irrespective of his title over the property, on the basis of such interest in the property which is affected by the license, then, it will comply with the requirement of Sections 52 and 53 of the Indian Easement Act. Therefore, according to the plaintiff, he acquired the possession of property and he paid taxes to the Government and he has produced the tax paid receipts before this Court. Though some discrepancies are there in mentioning CTC Number or the property number in the receipts, but the learned counsel for the plaintiff has drawn my attention to the defendant''s written statement, wherein virtually there is no dispute with regard to the existence of the property and dispute between the parties with respect to the same property. Therefore, I do not want to discuss more so far as documentary evidence is concerned. However, the documents produced before the Court by the plaintiff clearly establishes that they are pertaining to the disputed property, because, the number mentioned in the tax paid receipts tally with the CTC extract and old numbers to some extent. They show that the plaintiff was in possession of the property prior to 1968 and that too prior to the alleged license transactions alleged to have been entered into between the parties to the proceedings.
Learned counsel for the plaintiff drawn my attention to a decision of this Court reported in Banashankari Temple v. Vishwanath and Another [1893 (1) KLJ 69], wherein at Para 5, this Court has observed that,--
"In a case like this what should be the interference? Parties, in whose favour is a prima facie title, will have to win, though this is not a suit claiming any declaration of title. It is on record that the temple''s name is shown as the kathedar in respect of this area in the village Panchayat records. This, in the circumstances, is prima facie evidence of its title. The presumption that possession goes with title apply to a case like this where neither party has been able to prove or establish possession, But, one of the parties is able to show its title."
Though this ruling is not in a straitjacket manner applicable to the case of the plaintiff, nevertheless to some extent show that the Municipal records were standing in the name of the plaintiff That according to the learned counsel is the prima facie title in favour of the plaintiff
Wherein the Apex Court relied on its earlier decision and affirmed the following paragraph No. 8 in the case reported in Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, (2003) 10 SCALE 950 : (2004) 1 SCC 769 : (2003) 6 SCR 850 Supp : (2004) AIRSCW 4205 : (2003) 8 Supreme 928 are as follows
"8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration _ Puran Singh and Ors. v. The State of Punjab _ and Ram Rattan and Ors. v. State of Uttar Pradesh. The authorities need not be multiplied. In Munshi Ram and Ors.''s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re- instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.''s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The ''settled possession'' must be (i) effective, (ii) undisturbed, and (Hi) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase ''settled possession'' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court hid down the following tests which may be adopted as a working rule for determining the attributes of ''settled possession'' (SCCp.527, para 12):
i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession."
This ruling in my opinion is also not in straitjacket manner applicable to the present facts and circumstances of the case. Here it is not the suit for recovery of possession on the basis of unlawful possession of the defendant, but, of course it is on the basis of prior possession of the plaintiff The plaintiff has filed a suit on the basis of prior possession based on the municipal records. But subsequently, in this particular case, he pleaded some relationship between him and defendant with regard to ''leave and license''. Therefore, applying this principle to this case, though the plaintiff need not to prove the title over the suit schedule property and he can recovery the possession of the suit schedule property on the basis of the prior possession, but that is only subject to the condition that he should establish ''leave and license'' relationship between himself and the defendant. If he fails to prove the relationship as pleaded, the settled admitted possession of the defendant can''t be disturbed. The above said decision in fact not only partially in favour of the plaintiff but also in favour of the defendant.
Though few rival contentions have been placed before this Court, but in view of the above said rulings and also on the basis of the pleadings of the parties, the plaintiff though not sought for declaration of his title, but he only concentrates on the case for recovery of possession on the basis of ''leave and license'' in favour of the defendant. In this background, I am of the considered opinion that, even if he fail to establish the title over the suit schedule property, it does not convert his suit into declaratory nature and he would not be barred from recovering possession of the property, if he able to establish the relationship between himself and the defendant as that of ''Grantor and Licensee'', because there is no limitation to recover possession from a license, but from the date of denial of relationship.
The contention of Sri. Ameet Kumar Deshpande, learned counsel for the defendants is that the entire burden is on the plaintiff to prove the relationship admittedly when there is absolutely no documents between the parties with regard to ''leave or license'' and only oral evidence was produced before the Court by both the parties. Therefore, it is the bounden duty of the plaintiff to establish that in the year 1968 or prior to that he or his father actually gave license to defendant to start a flour mill on a condition that the grains of the plaintiff have to be floured by the defendant without any consideration. This particular factum requires to be proved at least by means of preponderance of probabilities before the Court by producing acceptable convincing evidence. In support of his contention, the learned counsel for the defendants relied upon the ruling reported in Union of India (UOI) and Others Vs. Vasavi Co-op. Housing Society Ltd. and Others, (2014) 2 AD 44 : AIR 2014 SC 937 : (2014) AIRSCW 580 : (2014) 1 SCALE 126 : (2014) 2 SCC 269 , wherein the Apex Court has observed that,-
"Revenue records-Entries in - Evidentiary Value of - Supreme Court in several judgments has held that the revenue records do not confer title and are not documents of title - Question of interpretation of document not being a document of title is not a question of law-Entries in jamabandi are not proof of title - Entries in the revenue records, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff."
The above said ruling indicate that the entries in the revenue or municipal record neither prove any title nor any relationship between the rival claimants therefore such plea of title or relationship have to be proved independent of such entries.
Coupled with the above said judgment, Section 101 of the Indian Evidence Act imposes responsibility on the person who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, he must prove that those facts exist. When a person is bound to prove existence of any fact, it is said that the burden of proof lies on that person. Section 102 of the Evidence Act should be read in consonance with Section 101 i.e., to say the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. To some extent Section-110 is also relevant so far as this case is concerned, which says that,- When a question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.'' Therefore, looking to the above three provisions, the burden is on the plaintiff first and primarily to establish by means of preponderance of probabilities that he was in possession of the suit schedule property and consequently, the plaintiff has actually gave license to the defendant to run a flour mill and if he give such proof to the satisfaction of the Court, then only the burden of onus shifts to the defendant to prove that the plaintiff was not the owner in possession of the property nor the defendant is in possession of the property as a licensee and that he acquired an independent right, title or possession over the suit schedule property. Therefore, it goes without saying that initially the burden is on the plaintiff It also a recognized principle of civil jurisprudence that, when once the parties have led evidence, the onus of proof oscillates like a pan between the plaintiff and defendant. If some materials placed before the Court are sufficient to come to the conclusion that the plaintiff has placed materials in order to shift the onus of proof to the defendant, then the defendant has to establish his case and if he failed to establish his case, then the Court has to consider that, the plaintiffs case is proved. On the contrary, it should be understood in such a manner that if the plaintiff himself has not placed sufficient materials to the Court, in order to come to the conclusion that the plaintiff was in possession and enjoyment of the property primarily, then on the basis of such possessory title or right or interest, he gave the property in favour of the defendant and consequently, put the defendant in possession of the property, by virtue of ''leave or license''. If such elucidation of facts and proof is not primarily produced before the Court, whatever may the defence taken by the defendant creating title upon himself or plea regarding entering into the possession in any other manner, even if he failed to prove such facts, it will not affect the case of the defendant, because in view of the above said ruling of the Apex Court, the plaintiff has to stand or fall upon his own case and he cannot rely upon the defects of the defendant''s case and at any stretch of imagination, the Court can say that non-proof of his case by the defendant amounts to proof in favour of the plaintiff, so as to decree the suit of the plaintiff
Bearing in mind the above said principles, the Court has to ascertain that in what manner the license alleged to have been granted in favour of the defendant in this case, attempted to be proved by the plaintiff The oral evidence and also the pleadings disclose that in the year 1968 the license was granted in favour of the defendant in order to run the flour mill. The defendant has also admitted that he entered into the suit schedule property even prior to 1968, but he admits that he entered into the suit schedule property as a tenant under DW.2 and he paid some rent for a period of two or three years and thereafter, he purchased the suit schedule property for a sum of Rs. 90/- and thereafter he continued in possession of the property as if the absolute owner, by running the flour mill. This is the sum and substance of the case of the plaintiff and defendant. Therefore, it goes without saying that no documentary evidence is available in favour of either of the parties with reference to the relationship of ''Grantor and Licensee''.
As I have already referred, the provisions under the Indian Easement Act, it does not impose any condition that the license should be in writing It can be by means of oral agreement between the parties for grant of license, in my opinion, the plaintiff also should establish the legal requirements under the Contract Act and the oral contract can be entered into between the parties i.e., to say the contract must be between two sane persons and there should an offer and acceptance by the parties, though it need not be followed by any consideration. By virtue of the license, grantor who was in possession of the property and having some interest in the property should have put the other person (license) i.e., the defendant in possession of the property and he can continue in possession of the property as a ''licensee'' till the grantor wants to recover the possession of the property at his Will. When written agreement is not there between the parties, the parties have to prove to the satisfaction of the Court by means of their conduct that the plaintiff is the ''Grantor'' and defendant is the ''Licensee''. The implied grant of license can be inferred by the conduct of the parties. Therefore, it is incumbent upon the Court to ascertain whether by means of oral evidence between the parties, they have shown to the Court that there existed any license'' or ''leave'' granted by the plaintiff in favour of the defendant.
In the examination-in-chief of the plaintiff, in one sentence, he has stated that the "defendant was put in possession of the property by way of license". Neither in the pleadings nor in the evidence, it is stated actually what has happened after the alleged license being granted in favour of the defendant. At the cost of repetition, I may say that, in the plaint it is only stated that the defendant entered into suit schedule property as a ''licensee'' with an assurance that he would deliver the vacant possession of the property as and when required by the plaintiff Nothing more is pleaded and in the evidence also it is only stated that the property was inherited by the plaintiff from his father. In one sentence it is stated that the property was given to the defendant on a condition that he has to return back the said property as and when requested by the plaintiff and he has to flour the grains of the plaintiffs family without expecting or receiving any kind of consideration. Thereafter, it is stated that when the plaintiff requested the defendant to return the property, he denied, therefore, a suit is filed. Except this one sentence, nothing has been stated by the plaintiff as to what exactly happened prior to and subsequent to granting of the license in favour of the defendant and what is his conduct, as to whether he was floured the grains of the defendant without any kind of consideration and whether any other witnesses are there to show the relationship between the parties. On the other hand, the plaintiff himself has admitted in the course of cross-examination that the defendant has taken electricity connection to the suit schedule property and this statement is also re-affirmed in the evidence of the defendant. Further added to that, in the written statement itself, it is categorically stated that, after the defendant entered into the property, he has put-up temporary walls and created a shed and in that shed, he was running flour mill with diesel engine and subsequently, he has taken electricity connection to that installation. This clearly discloses that the suit schedule property must be a vacant site and after the defendant entered into the property, some construction work was made and electricity connection was also taken. If that being case, though the licence was granted orally, when the construction was made on the suit schedule property, electricity connection was taken, the plaintiff would have done something either to establish his title over the property by means of giving authorization to construct the said temporary shed and also would have authorized the defendant to take electricity connection from the department and also license from the competent authority to run the flour mill. Therefore, that clearly goes to show that the plaintiff has not come up with entire case before the Court to establish that he actually put the defendant in possession of the suit schedule property as license. Therefore, though the plaintiff has produced the said certified plan and other documents pertaining to the property, as I have said, it prima facie establishes that he has got some right, and interest over the property prior to 1968. But, that itself is not sufficient to prove the case of the plaintiff unless the fact in issue is proved that he has put the defendant in possession as ''licensee'' and if such factum is not proved, the plaintiff cannot succeed in the case.
Now coming to the case of the defendant, as rightly argued by the learned counsel for the plaintiff that the defendant though taken up the contention that he entered into the suit schedule property though DW.2, he enjoyed the property and subsequently, according to him he purchased the same for a sum of Rs. 90/-. But he also not made any efforts to get khatha of the property changed into his name nor he paid a single pai towards kandayam of the said property. If at all he exercised any right over the property as owner, he should have paid kandayam to the said property and made attempts to get the katha transferred into his name. It is nowhere admitted by the defendant, that the said property was given by one Shivanagouda in favour of the plaintiffs ancestors, and that plaintiffs ancestors were bought by Shivanagouda to the village for the purpose of performing pooja in his house. But, as I have said, the plaintiffs title and possession over the property even for a moment is admitted nevertheless, the relationship of ''Grantor'' and ''Licencee'' is the main crux of the matter that has to be established by the plaintiff If the plaintiff failed to establish the same, merely because the defendant has not established his case by proving his title over the property, but, he admittedly in possession of the property since 1968.
As observed in the above said decision of the Supreme Court, even within 12 years, a suit can be filed for recovery of possession of the property. If the plaintiff failed to prove that the ''grant'' or ''license'', but able to prove that he was in possession of the property by means of prima facie title, but his suit should have filed within 12 years from the date of dispossession. Even admitting for a moment that the defendant''s possession as illegal as against the plaintiffs title and earlier possession, the suit should have been filed within 12 years from the year 1968. As admittedly, the defendant came into possession of the property in the year 1968, but the suit is filed in 1985. Therefore, in that context also the plaintiff is not entitled to recover the possession of the property from the defendant.
Looking from any angle, as I have said, the plaintiff has not satisfactorily established the relationship between himself and the defendant and putting the defendant in possession of the property as a ''licensee'', though for the limited purpose the plaintiff can be held to be the person having title over the property.
Looking to the above facts and circumstances of the case, the oral evidence and the documentary evidence placed before the Court, the plaintiffs case falls short of proof regarding the existence of relationship between the plaintiff and the defendant as ''Grantor'' and ''Licensee''. When the first issue framed by the Trial Court on both of the grounds, i.e. the plaintiff is not able to prove the existence of such relationship and even if he proves title and earlier possession, he could not succeed in the suit. Therefore, I am of the opinion that the First Appellate Court has not committed any error in dismissing the suit of the plaintiff considering the above said facts, law and also the evidence on record. Hence, this Regular Second Appeal deserves to be dismissed. Accordingly, this appeal is dismissed. Question of law is answered accordingly.
Before parting with the judgment, I must appreciate the intelligence used by the learned advocates before the trial Court. Perhaps, it may be reason that if a suit is filed for declaration of title and for recovery of possession after a long lapse of time from 1968 to 1985, the plaintiff may not succeed because of the bar of limitation within which the plaintiff ought to have filed the suit. Therefore, they created the relationship between the parties as that of ''Licensor'' and ''Licensee'' so that with this set-up, the plaintiff can successfully avoid the period of limitation if he can succeed in establishing the relationship. But, unfortunately, no document is there to prove the relationship nor sufficient oral evidence has been let-in by the plaintiff to establish the conduct of the parties subsequent to such alleged relationship between the parties. On the other hand, the defendant''s counsel also very intelligently issued a legal notice on behalf of the defendant by means of filing a written statement and leading evidence, created title on himself by pleading that he purchased the same for a sum of Rs. 90/-. However, both the parties knew that, at the time of taking such pleading they may not be in a position to prove such transaction, because the entire transaction have to be proved by means of oral evidence. I must also appreciate the learned counsels appeared for the appellants Sri S.S. Mamadapur and the respondents Sri Ameet Kumar Deshpande, in this case, who have very effectively and efficiently assisted the Court in taking me through the entire pleadings, evidence and documents and as well as citing important relevant rulings to the facts of case and I place on record the valuable assistance rendered by the learned counsel for the parties in this appeal.