Sitapur Eye Hospital Trust Nainital vs Sri Om Prakash

Prafulla C. Pant, J.—This appeal, preferred u/s 100 of the of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 06.12.1988, passed by first appellate court (I Addl. District Judge, Nainital), in civil appeal No. 75 of 1987, whereby the judgment and decree dated 23.11.1987, passed by the trial court (Civil Judge (Sr. Division), Nainital), in Suit No. 109 of 1983, is affirmed. The trial court had dismissed the suit of the plaintiff for ejectment of the defendant and recovery of damages and mesne profits. The first appellate court has affirmed said decree.

Heard learned Counsel for the parties and perused the record.

Brief facts giving rise to this appeal are that plaintiff / appellant instituted suit No. 109 of 1983, before the Civil Judge, Nainital, with the pleading that plaintiff, a charitable Trust, is devoted in philanthropic work of eye treatment and carrying on its activities through different hospitals. One of such hospitals is at Nainital. It is further pleaded that the hospital had a large compound at Mall Road, Nainital. In the year 1977, Dr. Harbans Singh, the Medical Officer of the hospital, allowed one Surjeet Singh Oberoi to construct a temporary shed on a piece of land (measuring 34 ft. X 15 ft.) owned by the plaintiff. It is further pleaded that Dr. Harbans Singh had no authority to allow anyone to occupy the property of the Trust. It is further pleaded that after Surjeet Singh Oberoi occupied the land in suit shown by letters A, B, C, D, the services of Dr. Harbans Singh were terminated in the year 1978. The plaintiff has alleged in the plaint that in May 1979, Surjeet Singh Oberoi left the premises, but allowed defendant Om Prakash to take possession of the land, without any authority. The defendant Om Prakash is running a restaurant under the name and style of ''New Shere Punjab'' in the disputed premises. The Municipal Board, Nainital, also served a notice to the defendant as to how he has raised unauthorized constructions in the hospital premises. But, the defendant instituted suit No. 02 of 1982, in which a temporary injunction was granted against the Municipal Board, and the appeal filed by the Municipal Board was also dismissed. Since, the plaintiff was impleaded as a party in said suit, as such, it came to know of the developments and instituted the present suit for ejectment of the defendant from the premises in suit, and also for damages and mesne profits at the rate of Rs. 150/- per month.

The suit was contested by the defendant who filed his written statement. It is pleaded by the defendant that Surjeet Singh Oberoi was tenant of the plaintiff on rent at the rate of Rs. 1,500/- per annum. However, the defendant admitted that Surjeet Singh Oberoi left the premises in the year 1979. The defendant further pleaded that Dr. Harbans Singh was fully authorized to let out the land. It is further pleaded by the defendant Om Prakash that he entered into partnership in business with Surjeet Singh Oberoi, who later transferred all his shares to the defendant. As such, the defendant started paying the rent and became the tenant of the plaintiff. It is further pleaded that the suit is barred by principle of estoppel and acquisence. It is also pleaded that the suit is under valued and court fee paid is insufficient.

On the basis of the pleadings of the parties, the trial court, framed following issues:

Whether, Sri Harbans Singh, the then Medical Officer of the plaintiff, was not competent to allow Sri Surjeet Singh Oberoi to construct a temporary shed on the land in suit, as alleged in the plaint? If so, its effect?

Whether, the defendant illegally occupied the property in suit after its vacation by Surjeet Singh Oberoi, as alleged in para 5 of the plaint?

Whether, the defendant is the tenant of the property in suit, as alleged in para 19 of the written statement?

Whether, the suit is barred by estoppel and acquisence?

Whether, the suit is under valued and court fee paid, is insufficient?

Whether, the plaintiff is entitled to the relief claimed?

After recording the evidence and hearing the parties, the trial court dismissed the suit vide its judgment and decree dated 23.11.1987, with the finding that Dr. Harbans Singh had an authority to let out the premises to Surjeet Singh Oberoi, who became tenant of the plaintiff. It is further held that after Surjeet Singh Oberoi, the defendant Om Prakash became tenant of the plaintiff. As such, the trial court dismissed the suit holding that possession of the defendant is not unauthorized one. Aggrieved by said judgment and decree dated 23.11.1987, passed in Suit No. 109 of 1983, the plaintiff preferred Civil Appeal No. 75 of 1987, before the first appellate court. After hearing the parties, the first appellate court vide its judgment and order dated 06.12.1988, affirmed the judgment and decree passed by the trial court, dismissing the suit. Hence, this second appeal was filed before the Allahabad High Court by the plaintiff on 09.03.1989. The Allahabad High Court admitted the second appeal on 19.05.1989, on following substantial question of law:

Whether, in the absence of any privity of contract, the respondent could have acquired status of a tenant?

The appeal is received by transfer to this Court u/s 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal.

Answer to substantial question of law:

Admittedly, the plaintiff / appellant is the owner of the premises / land in suit. The plaintiff has pleaded that the defendant Om Prakash has occupied the land / premises without any authority from the plaintiff, and as such, the possession of the defendant is illegal. On the other hand, the defendant has pleaded that he is a tenant, after entering into the shoes of Surjeet Singh Oberoi to whom the land was let out on behalf of the plaintiff by Dr. Harbans Singh, Medical Officer of the plaintiff''s Hospital at Nainital. The trial court as well as the first appellate court has taken note of the fact that P.W. 1 R.K. Singh, who was examined on behalf of the plaintiff, in his cross-examination admitted that there were many tenants in the hospital building. It is further admitted by P.W. 1 R.K. Singh, Eye Examiner of the Sitapur Eye Hospital, Nainital, that he accepts rent from the tenants. He has further stated that he succeeded one Dr. Mehrotra. He further admitted that before Dr. Mehrotra, it was Dr. Harbans Singh who was in-charge of the hospital. In the cross-examination he further states that he does not know, whether, Dr. Harbans Singh used to collect rent from the tenants, or not? On the basis of this admission both the courts below have held that plaintiff, who has its Headquarters at Sitapur, used to act through its In-charge Medical Officer, in its Hospital at Nainital. Therefore, both the courts below found that Dr. Harbans Singh had the authority to let out the land / premises to Surjeet Singh Oberoi, who was tenant of the plaintiff. In the opinion of this Court, to this extent the finding recorded by the courts below requires no interference, as the same is based on the evidence on record, as discussed above. But the question before this Court is that merely for the reason that Surjeet Singh Oberoi was the tenant of the plaintiff, how the defendant Om Prakash can be said to be tenant in the premises in dispute.

Mr. Bindesh Kumar Gupta, learned Counsel for the plaintiff / appellant argued that even if the findings of the courts below are accepted as correct with regard to tenancy of Surjeet Singh Oberoi, that does not entitle defendant Om Prakash to occupy the premises, without authority from the plainitff, who is the owner of the land. D.W. 1 Om Prakash has stated that he entered into partnership with Surjeet Singh Oberoi in the business run by him in the premises in the year 1978, and later on the Surjeet Singh Oberoi transferred all his shares in the business to the defendant. Assuming for a moment that what D.W. 1 Om Prakash states is true, it does not entitle Surjeet Singh Oberoi to transfer tenancy in the premises to a third person i.e. defendant Om Prakash without consent from the landlord. Defendant Om Prakash has not filed any receipt of rent showing that he paid rent of the premises either to plaintiff or any of his Medical Officer at Nainital. Even by conduct the plaintiff or its officers have not treated the defendant as their tenant. As such, this Court is of the view that both the courts below have erred in law in holding that the defendant Om Prakash is tenant of the premises in question, after he started running business of Surjeet Singh Oberoi.

Mr. Alok Singh, learned Senior Advocate appearing on behalf of the defendant / respondent argued that Dr. Harbans Singh, the Medical Officer of the plaintiff, had given license to Surjeet Singh Oberoi to construct the tin shed. It is further contended that after the construction is made pucca, under Clause (b) of Section 60 of the Indian Easements Act, 1882, the license has become irrevocable, and as such, the plaintiff is not entitled to the relief claimed by him. In the opinion of this Court, the contention of learned Counsel for the defendant / respondent cannot be accepted for the defendant has pleaded that Surjeet Singh Oberoi was tenant. It is not pleaded by defendant that Surjeet Singh Oberoi was licencee. Apart from this, assuming for a moment that the license was given to Surjeet Singh Oberoi, the irrevocability of license would apply only as against him, not the third person who has occupied the land / premises, without the consent of the owner of the land.

Accordingly, the substantial question of law stands answered in favour of the plaintiff, and it is held that the occupation of the defendant Om Prakash is illegal over the land in suit.

Therefore, the appeal deserves to be allowed and suit deserves to be decreed. Accordingly, the appeal is allowed. The impugned judgment and decree dated 06.12.1988, passed by I Additional District Judge, Nainital, in Civil Appeal No. 75 of 1987, and the one dated 23.11.1987, passed by the Civil Judge, Nainital, in Suit No. 109 of 1983, are hereby set aside. The suit filed by the plaintiff for ejectment of the defendant / respondent from the land shown by letters A, B, C, D in the plaint, and for recovery of damages and mesne profits at the rate of Rs. 150/- per month, as claimed in the suit, is hereby decreed with costs.