Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
st
% Date of decision: 31 May, 2016
+ RFA No.528/2004 & CM No.9903/2015 (of the respondent under
Order 39 R-1&2 CPC)
SANGEETA CHAUHAN ..... Appellant
Through: Mr. Sanjeev Narula, Mr. Ajay Kalra
and Mr. Adrija Thakur, Advs.
versus
RUMALI DEVI ..... Respondent
Through: Mr. Pawan Kr. Behl and Mr.Veeresh
Kr. Sharma, Advs.
CORAM:-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This first appeal under Section 96 of the Code of Civil Procedure (1908)
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impugns the judgment and decree dated 26 August, 2004 of the Court of Shri
H.S. Sharma, Additional District Judge (ADJ), Delhi in Suit No.662/2001; a) of
recovery of possession of the first floor (with mezzanine floor) of property
no.C-217, Gali No.1, Majlis Park, Delhi; b) of recovery of mesne
profits/damages for use and occupation at the rate of Rs.5,000/- per month
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w.e.f. 16 October, 2004 till the date of delivery of possession; and, c) of
injunction restraining the appellant/defendant from creating any third party
interest in the said portion of the property and from handing over possession
thereof to any other person.
RFA No.528/2004 Page 1 of 23
2. The appeal was filed as an indigent person and finding that the appellant
has no immovable property and no source of livelihood except Rs.4,000/- per
month which the appellant is getting as maintenance from her husband, was
entertained and notice thereof issued and the operation of the impugned
judgment and decree stayed. Considering that the appellant is the daughter-in-
law of the respondent, attempts at settlement were made and the parties referred
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to mediation, but without any success. Ultimately on 13 May, 2008 the appeal
was admitted for hearing and the interim order earlier granted made absolute.
CM No.8488/2010 was filed by the appellant to bring on record subsequent
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events inter alia of demise of her husband on 22 January, 2010 and the
appellant/defendant during the illness of her husband preceding his death
having set aside disputes and differences and having started living with him. In
the said application, an understanding of the husband of the appellant/defendant
with his parents, to buy the whole property was also pleaded.
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3. Vide judgment/order dated 26 July, 2011 the appeal was dismissed with
the clarification that the said dismissal will not come in the way of the
daughters of the appellant asserting the right which according to the appellant
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they had in the property. Review Petition No.494/2011 preferred was on 9
September, 2011 dismissed as not pressed.
RFA No.528/2004 Page 2 of 23
4. The appellant preferred SLP (C) No.35044/2011 to the Supreme Court
against the order of dismissal of her appeal and which was granted and
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converted into Civil Appeal No.6602/2011 and vide order dated 21 July, 2014,
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the order dated 26 July, 2011 of dismissal of appeal was set aside only on the
ground of not containing any discussion of facts or on the findings recorded by
the Trial Court and this appeal restored for re-hearing and decision in
accordance with law.
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5. The appeal, on 2 December, 2014 was dismissed in default of
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appearance of the appellant or her counsel but was vide order dated 11
August, 2015 restored to its original position.
6. CM No.9903/2015 was filed by the respondent to restrain the appellant
from entering into the ground and second floors of the property aforesaid
contending that though the respondent was earlier residing therein but owing to
the disputes with the appellant had been forced to shift to another premises and
taking advantage whereof the appellant was trying to enter into the ground and
second floors of the property which were earlier in possession of the
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respondent. The said application also came up before the Court on 11 August,
2015 when the counsel for the appellant though admitted that it was not the
RFA No.528/2004 Page 3 of 23
plea of the appellant in the written statement to the suit or in the appeal till then
but the appellant as per understanding arrived at with her husband and with the
respondent and her husband had been given the possession of the ground and
second floors also. Needless to state that this was controverted by the counsel
for the respondent. In this view of the controversy, the Station House Officer
(SHO), Police Station-Adarsh Nagar was directed to visit/have visited the
property to find out as to who was in occupation, possession and habitation of
the ground and second floors of the property and if none was found in the
possession and occupation thereof, to lock the said floors. The SHO in his
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Report dated 13 October, 2015 reported that the ground and second floors
were locked but the appellant opened the locks thereof and the same were in a
very bad condition and seemed to be not in use for a very long time. CM
No.23635/2015 was filed by the appellant for amendment of the written
statement and CM No.23632/2015 has been filed by Ms. Akansha and Ms.
Shivanshi daughters of the appellant for impleadment in the appeal. The said
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applications came up before this Court on 16 October, 2015 when the
following order was passed:
1. This appeal under Section 96 of the Code of Civil Procedure, 1908
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(CPC) impugns the judgment and decree dated 26 August, 2004 of the
Additional District Judge (ADJ), Delhi decreeing the suit filed by the
respondent against the appellant for recovery of possession of the first and
RFA No.528/2004 Page 4 of 23
mezzanine floors of property No.C-217, Gali No.1, Majlis Park, Delhi
along with mesne profits.
2. The appeal was entertained and there is a stay not only of
dispossession of the appellant in pursuance to the decree but also of the
decree for payment of mesne profits.
3. After this appeal has remained pending in this Court since 2004,
these applications have been filed. It is stated by the counsel for the
appellant and applicants that the respondent / defendant, who is mother-in-
law of the appellant, had during the pendency of the suit from which this
appeal arises agreed to sell the entire aforesaid property i.e. including the
ground and the second floors to the husband of the appellant, with the
purchase being in the name of the appellant and her two daughters i.e.
applicants herein, for a consideration of Rs.77,65,142/- and which entire
money was paid by making Fixed Deposit Receipt (FDR) for the said
amount, till then in the exclusive name of the husband of the appellant,
into the joint name of the husband of the appellant and the husband of the
respondent and in pursuance to which the possession of the remaining two
floors i.e. ground and the second were also handed over by the respondent
to the husband of the appellant and the father of the applicants.
4. The appellant and the applicants want to amend the written
statement filed in the suit from which this appeal arises to take the said
pleas and since the said pleas inter alia are of the purchase to be made
besides in the name of the appellant also in the name of the applicants, to
implead the applicants as appellants to this appeal as well as the
defendants to the suit from which this appeal arises.
5. It is also disclosed that the appellant and the applicants have already
filed a suit for specific performance being CS(OS) No.3089/2015, which
is pending consideration in this Court.
6. The counsel for the appellant and applicants has argued that it is a
settled principle of law that amendment of pleadings in the suit can be
allowed in appeal also and the pleas sought to be taken being by way of
subsequent events ought to be allowed to be taken by way of amendments.
It is further argued that since the respondent is denying all the said pleas,
after allowing these applications, the appeal be disposed of by remanding
the matter to the Trial Court for adjudication of the said controversy.
RFA No.528/2004 Page 5 of 23
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7. On enquiry, it is told that the husband of the appellant died on 22
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January, 2010 and the FDR aforesaid was changed on 4 January, 2010.
It is further told on enquiry that the agreement aforesaid was arrived orally
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on 2 December, 2009 and the possession was delivered on 3 December,
2009.
8. The counsel for the appellant and applicants further states that after
the death of the husband of the appellant, the money of the FDR aforesaid
was transferred in the joint name of the husband of the respondent and the
respondent.
9. On enquiry as to the date on which the Sale Deed was to be
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executed, it is stated that the time for execution of the Sale Deed on 2
December, 2009 was agreed of five years. On further enquiry, whether
there are separate electricity meters for the ground and second floors and
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who has been paying the bills thereof, since 2 December, 2009, it is
stated that there is only one electricity meter of the property supplying
electricity to all the floors of the house. On enquiry, as to who has been
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paying the property tax of the property, after 2 December, 2009, it is
informed that the appellant or the applicants have not been paying the
property tax. On enquiry, whether the appellant and / or the applicants
have declared themselves as the owners or agreement purchasers of the
said property before any authority, the answer is in the negative.
10. As far as the contention of the counsel for the appellant and
applicants, that after allowing these applications, the appeal be remanded
for adjudication of the factual matrix pursuant to the said amendment, it
has been enquired from the counsel, how the said factual matrix can be the
subject matter of the suit for specific performance admittedly filed before
filing of these applications as well as the subject matter of decision in
these proceedings, post these applications.
11. The counsel for the appellant and applicants states that since grant of
the relief of specific performance is a discretionary relief, the appellant
and applicants may or may not be granted the relief of specific
performance in the suit but if they succeed in proving the pleas sought to
be taken by way of amendment, they would have a defense to the subject
suit for possession.
12. Though the counsel has made the aforesaid contention but is himself
unable to support the same.
RFA No.528/2004 Page 6 of 23
13. There cannot possibly be a denial of the relief of specific
performance but an order allowing the appellant and the applicants to
continue in possession, without being entitled to specific performance.
The only exception thereto is in Section 53A of the Transfer of Property
Act, 1881 but the benefit thereunder of the doctrine of part performance is
also not available in the present case inasmuch as the alleged agreement to
sell is not in writing as is mandatorily required thereunder. Moreover,
with effect from September, 2002, the benefit of part performance is
available only when the agreement to sell is registered. Attention of the
counsel in this regard is drawn to Cement Corporation of India Ltd. Vs.
Life Insurance Corporation of India Ltd. 2014 Indlaw Del 2550 (DB)
and Ravinder Nath Sahni Vs. Poddar Construction Company Pvt. Ltd.
2014 (211) DLT 561 where it has been unequivocally held that pendency
of a claim for specific performance of an agreement to sell is not a defense
to a claim for possession on the basis of title. The appellant and the
applicants by pleading an agreement to sell by the respondent, have in fact
admitted to the title of the respondent.”
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7. The counsels were heard on 5 November, 2015 and judgment reserved.
After the judgment was reserved, Mr. Jaspreet Singh Rai, Advocate mentioned
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the matter on 16 November, 2015 and handed over an application on behalf of
Ms. Akansha and Ms. Shivanshi daughters of the appellant/defendant informing
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that the respondent/plaintiff died on 9 November, 2015 and seeking
substitution in her place along with another son, daughter and husband of the
respondent. The trial court record requisitioned has been perused.
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8. The respondent, on 11 September, 2001 instituted the suit for recovery
of possession and mesne profits and injunction from which this appeal arises
pleading (i) that she was the lawful owner in possession of the property no.C-
RFA No.528/2004 Page 7 of 23
217, Gali No.1, Majlis Park, Delhi comprising of 2 ½ floors; (ii) that the elder
son of the respondent namely Shri Anil Pratap Singh Chauhan married the
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appellant on 12 July, 1989 and the respondent permitted her son and the
appellant, being her daughter-in-law to live with her on the first floor and
mezzanine floor of the said property; (iii) that disputes and differences arose
between the appellant and her husband resulting in police complaints being
lodged and legal proceedings being initiated against each other; and (iv) that
owing to the said disputes the respondent had been forced to change her
residence from the ground and second floors of the property to the residence of
her another son.
9. The appellant/defendant contested the suit pleading (i) that the said
property was her matrimonial home; (ii) that the suit was not properly valued
for Court Fees and jurisdiction; (iii) that the suit was filed in collusion with her
estranged husband, to compel the appellant to agree to divorce; (iv) that her
minor daughters Ms. Akansha and Ms. Shivanshi also had a right of residence
in the said property; (v) that the appellant/defendant had been left destitute by
her husband; (vi) denying that the respondent/plaintiff was the owner of the
house and pleading that the first floor had been got constructed by her husband
RFA No.528/2004 Page 8 of 23
just a few months before the marriage and thus the property was a joint family
property.
10. Though the respondent/plaintiff also filed replication but need to refer
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thereto is not felt. On 4 March, 2002, the following issues were framed in the
suit:-
“1. Whether the plaintiff is entitled for a decree of
possession as prayed? OPP
2. Whether the plaintiff is entitled for recovery of
damages amounting to Rs.65,000/- from 1.7.2000
to 31.3.2001? OPP
3. Whether the plaintiff is entitled for permanent
injunction as prayed? OPP
4. Whether the suit has not been properly valued for
the purposes of court fee and jurisdiction? OPD
5. Whether the suit of the plaintiff is bad for
misjoinder of the necessary parties? OPD
6. Whether the suit of the plaintiff is maintainable in
the present form? OPD
7. Relief.”
The respondent/plaintiff examined her husband as her attorney and one
other witness. The appellant/defendant besides herself examined four other
witnesses.
RFA No.528/2004 Page 9 of 23
11. The learned ADJ, in the impugned judgment;
(a) has decided Issue no.4 in favour of the respondent/plaintiff and
against the appellant/defendant reasoning:-
(i) that the appellant/defendant on whom the onus of the issue
rested had not proved that the value of the property for
recovery of possession whereof the suit was filed was higher
than what had been pleaded by the respondent/plaintiff;
(ii) on the contrary the respondent/plaintiff had proved the Sale
Deed of purchase of the land ad measuring 100 sq. yds.
underneath property;
(iii) that the appellant/defendant in the cross examination of the
husband of the respondent/plaintiff had also not even
suggested that the value of the property at the time of
institution of the suit was as pleaded by her or beyond the
pecuniary jurisdiction of the Court; and,
(b) has held that the challenge by the appellant/defendant to the
Special Power of Attorney executed by the respondent/plaintiff in
RFA No.528/2004 Page 10 of 23
favour of her husband on the ground of the signatures of the
respondent/plaintiff thereon having not been made before the
Notary Public who had attested the same, was without any merit.
(c) has decided Issue No.5 against the appellant/defendant and in
favour of the respondent/plaintiff observing that since the minor
daughters of the appellant/defendant were admittedly residing with
their father as per the orders in another proceedings and the
appellant/defendant had only been granted permission to meet
them on two days in a week, they were not a necessary party to the
suit and the suit was not bad for their mis-joinder;
(d) has held that the ownership of the respondent/plaintiff of the
property stood proved from the Sale Deed of the land underneath
the property in her favour;
(e) has held that the appellant/defendant was not claiming ownership
of the property but was claiming only the right to occupy the
property being the daughter-in-law of the respondent/plaintiff;
(f) has held that the appellant/defendant could not claim any right in
the property independently of her husband;
RFA No.528/2004 Page 11 of 23
(g) has held that it was for the husband of the appellant/defendant to
state that the first floor had been constructed by him from his own
funds and claim ownership thereof and which he had not done;
(h) has held that the claim of the appellant/defendant for a
matrimonial home could be only against her husband;
(i) has held that if the husband of the appellant/defendant is not
claiming any right to possession the property, the question of the
appellant/defendant claiming any such right did not arise;
(j) has held that the appellant/defendant was not claiming that the
portion in her occupation had been constructed by her;
(k) held that merely because the documents proved by the
appellant/defendant indicated that the portion of the first floor had
been constructed sometime in 1985 or 1986 and not in 1972-73 as
claimed by the respondent/plaintiff did not mean that the
respondent/plaintiff was not entitled to the relief claimed in the
suit;
RFA No.528/2004 Page 12 of 23
(l) has found that in fact the claim of the appellant/defendant was that
the first floor had been constructed in 1988-89;
(m) held that the claim of the appellant/defendant that at one time her
husband had claimed to be the owner of the property was devoid
of any merit;
(n) has found that in the suit for permanent injunction earlier filed by
the appellant/defendant to protect her possession, the
respondent/plaintiff had merely given a statement not to forcibly
dispossess the appellant/defendant and the same did not prevent
the respondent/plaintiff from filing the suit for recovery of
possession;
(o) has accordingly decided Issues no.1&6 against the
appellant/defendant and in favour of the respondent/plaintiff; and,
(p) has however under Issue no.2 not awarded arrears of mesne
profits/damages for use and occupation claimed but awarded
future mesne profits/damages for use and occupation at the rate of
Rs.5,000/- per month if the appellant/defendant failed to vacate the
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property on or before 15 October, 2004.
RFA No.528/2004 Page 13 of 23
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12. The counsel for the appellant/defendant during the hearing on 15
November, 2015 fairly stated that he was not challenging the findings of the
learned ADJ on Issue no.4 with respect to the valuation of the suit for the
purposes of Court Fee and jurisdiction and that in view of the earlier order
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dated 16 October, 2015 (reproduced hereinabove) of dismissal of application
filed by the appellant/defendant for amendment of the written statement and the
application filed by the daughters of the appellant/defendant for impleadment
he was not challenging the findings of the learned ADJ on Issue no.5 with
respect to the mis-joinder of necessary parties. The arguments thus confined to
the findings of the learned ADJ in the impugned judgment on Issues no.1&6
supra in the suit.
13. It was the contention of the counsel for the appellant/defendant (i) that
the respondent/plaintiff did not depose herself in the suit; (ii) that under Section
60 (b) of the Indian Easement Act, 1882, a licence cannot be revoked by the
grantor if the licencee, acting upon the licence, has executed a work of
permanent character and incurred expenses in the execution; and (iii) that the
licence granted by the respondent/plaintiff to her son i.e. the husband of the
appellant/defendant to construct the first and mezzanine floors of the property
is thus irrevocable. Attention in this regard was invited to the evidence of DW-
RFA No.528/2004 Page 14 of 23
5 Upper Division Clerk (UDC) from the office of Municipal Corporation of
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Delhi (MCD) who proved the office orders dated 27 October, 1986 and 29
August, 1986 of the MCD and to the document proved as Ex.DW-4/1, 4/2 and
4/3 to contend that they establish that the first floor and mezzanine floor was
not constructed by the respondent/plaintiff in the year 1972-73 as claimed by
her but subsequently and it was argued that the husband of the
appellant/defendant having constructed the first floor and mezzanine floor, it is
the matrimonial home of the appellant/defendant.
14. Per contra, the counsel for the respondent/plaintiff argued (i) that in the
earlier application filed by the appellant/defendant in this Court for taking
subsequent events on record there was no plea of any agreement to sell in
favour of the husband of the appellant/defendant or in favour of the
appellant/defendant and her daughters; that on the date of which the Agreement
to Sell is alleged, cross examination of witnesses was recorded in the divorce
proceedings and which continued between the appellant/defendant and her
husband till the death of the husband of the appellant/defendant; (ii) that the
criminal proceedings between the appellant/defendant and her husband also
continued till the death of the husband of the appellant/defendant and the
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husband of the respondent/plaintiff was acquitted therein on 13 October, 2015;
RFA No.528/2004 Page 15 of 23
(iii) that as per the valuation reports filed, the construction of the property was
partly in the year 1972-73 and remaining in the year 1980-81; (iv) that even in
the SLP aforesaid earlier filed by the appellant/defendant there was no mention
of the Agreement to Sell; and, (v) that the appellant/defendant continued to
claim maintenance even after the date of the alleged Agreement to Sell.
15. I have carefully perused the pleadings, issues and the evidence recorded,
on the trial court record and am unable to find any merit in the only argument
urged before me, of the husband of the appellant/defendant having an
irrevocable licence in terms of Section 60(b) supra under the
respondent/plaintiff with respect to the first floor and mezzanine floor of the
property to which the suit and this appeal pertain and the appellant/defendant
thus having a right to continue in possession thereof. I may in this regard notice
(i) that though the appellant/defendant in the written statement denied
ownership of the respondent/plaintiff of the property but in CM No.23635/2015
for amendment of the written statement pleaded “the appellant‟s husband (late
Shri Anil Pratap Singh Chauhan) agreed to purchase the entire suit property
being property bearing no. C-217, Gali No.1, Majlis Park, Delhi (comprising of
ground floor, first floor, mezzanine floor and second floor) from defendant
no.1, in the name of the appellant and her daughters for a total sale
RFA No.528/2004 Page 16 of 23
consideration of Rs.77,65,142”; (ii) that in the written statement filed it was not
the plea of the appellant/defendant that the respondent/plaintiff had granted
licence to her son i.e. the husband of the appellant/defendant with respect to
terrace above the ground floor of the property or that her husband, acting upon
the licence granted by the respondent/plaintiff, had executed a work of
permanent character and incurred expenses in the execution i.e. construction of
the first floor and the mezzanine floor; rather, the plea was “in fact, first floor
of property no.C-217, Gali No.1, Majlis Park, Delhi, which is the property in
dispute was got constructed by Shri Anil Pratap Singh Chauhan husband of the
appellant/defendant just a few months before his marriage with the defendant.
The house no. C-217, Gali No.8, Majlis Park, Delhi is a joint family property
and the plaintiff is not the exclusive owner”; (iii) thus the appellant/defendant
in the written statement was not claiming any licence lest an irrevocable
licence with respect to the portion of the property qua which the suit was filed
but was denying the ownership of the respondent/plaintiff of the entire property
and was claiming the entire property to be a joint family property; (iv) no issue
also on the argument now urged by the counsel with his own ingenuity was
raised and the argument is thus de hors any foundation in pleadings or
evidence; (v) that in the cross examination of the husband and attorney of the
RFA No.528/2004 Page 17 of 23
respondent/plaintiff also, the suggestion given was that the daughters of the
appellant/defendant also had an interest in the property being members of joint
Hindu family and that the first floor was built by the husband of the
appellant/defendant with his own funds and not that it was so constructed in
accordance with any licence granted by the respondent/plaintiff; (vi) that the
appellant/defendant in her own affidavit by way of evidence also merely
deposed that she was living in the house as a daughter-in-law, the said house
being her matrimonial home and that the first floor was built by her husband by
his own funds and the property was thus a joint family property and not that the
respondent/plaintiff had granted any licence to the husband of the
appellant/defendant with respect to the first floor or that the husband of the
appellant/defendant in accordance with the said licence had carried out
construction of permanent nature over the property; (vii) even if it were to be
believed that the expenses of construction of the first floor were borne by the
husband of the appellant/defendant (though not proved), the said fact would not
ipso facto invoke Section 60(b) supra particularly on account of the relationship
of the mother and son between the respondent/plaintiff and the husband of the
appellant/defendant; (viii) the appellant/defendant in her cross examination
stated that she did not know as to who got the ground floor and the second floor
RFA No.528/2004 Page 18 of 23
of the property constructed and, (ix) the appellant/defendant did not lead any
evidence of the funds for construction of the first floor and mezzanine floor
having flown from her husband.
16. The documents referred to by the counsel for the appellant/defendant
during his arguments also are not indicative of the husband of the
appellant/defendant having any role in the construction of the first floor and the
mezzanine floor. The same relate to assessment of property for house tax and
only show that the building plan originally got sanctioned for construction of
the subject property was with respect to ground floor and half constructed first
floor only and till the year 1983-84 there were only two rooms on the first floor
and construction of upto two and a half floor was permitted vide general orders
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dated 29 August, 1986 and 27 October, 1986 Ex DW5/P-1 and DW5/P-2
only. The learned ADJ is correct in holding that merely because the remaining
construction on first floor was done on a date subsequent to the date of
construction of ground floor and half first floor did not mean that the same was
got constructed by husband of the appellant/defendant. It is not the case of
appellant/defendant that second floor was constructed subsequent to remaining
construction on the first floor. However no rights with respect to second floor
are claimed. In the ordinary course of human behaviour, the construction on
RFA No.528/2004 Page 19 of 23
second floor would be done simultaneously with construction of unconstructed
portion of second floor. Moreover, from the evidence of appellant/defendant
herself it stands established that two rooms of the first floor were constructed
from the time of construction of ground floor which the appellant/defendant
does not dispute was constructed in 1972-73 by the respondent/plaintiff. This
alone, in my view, falsifies the claim of irrevocable licence of entire first floor.
17. Supreme Court, in Ram Sarup Gupta Vs. Bishun Narain Inter College
(1987) 2 SCC 555 noticed judgments holding that a) three conditions are
required to be fulfilled under Section 60(b) supra to prove that the licence is
irrevocable and those are i) that the licencee executed work of a permanent
character; ii) that he did so acting upon the licence; iii) that he incurred
expenses in doing so; and, b) that the onus of proving these facts is upon the
licencee and in the absence of any evidence on these, the question of licence
being irrevocable does not arise. It thus follows that a licencee is not entitled to
prove irrevocability merely because has carried out work of permanent
character/nature by incurring expenses and has to also show that he has done so
pursuant to a right granted to do so.
RFA No.528/2004 Page 20 of 23
18. The appellant/defendant fails on all the aforesaid counts. There is thus
no merit in the said argument.
19. The argument of the counsel for the appellant/defendant, of the husband
of the respondent/plaintiff who appeared as a witness on behalf of the
respondent/plaintiff having no authority to do so, is also without any merit
when tested on the law laid down in Janki Vashdeo Bhojwani Vs. IndusInd
Bank Ltd (2005) 2 SCC 217 and A.C. Narayanan Vs. State of Maharashtra
(2014) 11 SCC 790. The husband of the respondent/plaintiff is fully in the
know of the facts of the case and is competent to depose about the facts in
dispute on his own behalf and his evidence cannot be rejected even if the Power
of Attorney in his favour is not proved. It is only if the facts of the case are such
which the party to the litigation himself/herself only could have deposed of, can
the evidence of the attorney be rejected. In the present case the facts were such
which the husband of the respondent/plaintiff, who is the father-in-law of the
appellant/defendant was competent to depose on his own behalf.
RFA No.528/2004 Page 21 of 23
20. No other argument has been urged.
21. There is thus no merit in the appeal the same is dismissed.
22. In the aforesaid facts and the respondent/plaintiff having died after the
arguments were heard and judgment reserved, need to formally deal with the
application handed over as aforesaid for substitution of LRs of
respondent/plaintiff is not felt.
23. However taking a compassionate view of the matter it is directed that if
the appellant/defendant vacates the property within three months, she will be
relieved from decree insofar as of recovery of mesne profit from her. However
if the appellant/defendant does not so vacate the premises, the
respondent/plaintiff shall be entitled to execute the decree in entirety.
24. Though it was the contention of the counsel for the respondent/plaintiff
that this Court should also pass a decree for recovery of possession of the
ground floor and the second floor unauthorisedly occupied by the
appellant/defendant during the pendency of this appeal and though their
contention appears to be prima facie correct but it is not deemed appropriate to
grant the said relief in this appeal.
RFA No.528/2004 Page 22 of 23
No costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J
May 31, 2016
„pp‟..
RFA No.528/2004 Page 23 of 23
st
% Date of decision: 31 May, 2016
+ RFA No.528/2004 & CM No.9903/2015 (of the respondent under
Order 39 R-1&2 CPC)
SANGEETA CHAUHAN ..... Appellant
Through: Mr. Sanjeev Narula, Mr. Ajay Kalra
and Mr. Adrija Thakur, Advs.
versus
RUMALI DEVI ..... Respondent
Through: Mr. Pawan Kr. Behl and Mr.Veeresh
Kr. Sharma, Advs.
CORAM:-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This first appeal under Section 96 of the Code of Civil Procedure (1908)
th
impugns the judgment and decree dated 26 August, 2004 of the Court of Shri
H.S. Sharma, Additional District Judge (ADJ), Delhi in Suit No.662/2001; a) of
recovery of possession of the first floor (with mezzanine floor) of property
no.C-217, Gali No.1, Majlis Park, Delhi; b) of recovery of mesne
profits/damages for use and occupation at the rate of Rs.5,000/- per month
th
w.e.f. 16 October, 2004 till the date of delivery of possession; and, c) of
injunction restraining the appellant/defendant from creating any third party
interest in the said portion of the property and from handing over possession
thereof to any other person.
RFA No.528/2004 Page 1 of 23
2. The appeal was filed as an indigent person and finding that the appellant
has no immovable property and no source of livelihood except Rs.4,000/- per
month which the appellant is getting as maintenance from her husband, was
entertained and notice thereof issued and the operation of the impugned
judgment and decree stayed. Considering that the appellant is the daughter-in-
law of the respondent, attempts at settlement were made and the parties referred
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to mediation, but without any success. Ultimately on 13 May, 2008 the appeal
was admitted for hearing and the interim order earlier granted made absolute.
CM No.8488/2010 was filed by the appellant to bring on record subsequent
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events inter alia of demise of her husband on 22 January, 2010 and the
appellant/defendant during the illness of her husband preceding his death
having set aside disputes and differences and having started living with him. In
the said application, an understanding of the husband of the appellant/defendant
with his parents, to buy the whole property was also pleaded.
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3. Vide judgment/order dated 26 July, 2011 the appeal was dismissed with
the clarification that the said dismissal will not come in the way of the
daughters of the appellant asserting the right which according to the appellant
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they had in the property. Review Petition No.494/2011 preferred was on 9
September, 2011 dismissed as not pressed.
RFA No.528/2004 Page 2 of 23
4. The appellant preferred SLP (C) No.35044/2011 to the Supreme Court
against the order of dismissal of her appeal and which was granted and
st
converted into Civil Appeal No.6602/2011 and vide order dated 21 July, 2014,
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the order dated 26 July, 2011 of dismissal of appeal was set aside only on the
ground of not containing any discussion of facts or on the findings recorded by
the Trial Court and this appeal restored for re-hearing and decision in
accordance with law.
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5. The appeal, on 2 December, 2014 was dismissed in default of
th
appearance of the appellant or her counsel but was vide order dated 11
August, 2015 restored to its original position.
6. CM No.9903/2015 was filed by the respondent to restrain the appellant
from entering into the ground and second floors of the property aforesaid
contending that though the respondent was earlier residing therein but owing to
the disputes with the appellant had been forced to shift to another premises and
taking advantage whereof the appellant was trying to enter into the ground and
second floors of the property which were earlier in possession of the
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respondent. The said application also came up before the Court on 11 August,
2015 when the counsel for the appellant though admitted that it was not the
RFA No.528/2004 Page 3 of 23
plea of the appellant in the written statement to the suit or in the appeal till then
but the appellant as per understanding arrived at with her husband and with the
respondent and her husband had been given the possession of the ground and
second floors also. Needless to state that this was controverted by the counsel
for the respondent. In this view of the controversy, the Station House Officer
(SHO), Police Station-Adarsh Nagar was directed to visit/have visited the
property to find out as to who was in occupation, possession and habitation of
the ground and second floors of the property and if none was found in the
possession and occupation thereof, to lock the said floors. The SHO in his
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Report dated 13 October, 2015 reported that the ground and second floors
were locked but the appellant opened the locks thereof and the same were in a
very bad condition and seemed to be not in use for a very long time. CM
No.23635/2015 was filed by the appellant for amendment of the written
statement and CM No.23632/2015 has been filed by Ms. Akansha and Ms.
Shivanshi daughters of the appellant for impleadment in the appeal. The said
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applications came up before this Court on 16 October, 2015 when the
following order was passed:
1. This appeal under Section 96 of the Code of Civil Procedure, 1908
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(CPC) impugns the judgment and decree dated 26 August, 2004 of the
Additional District Judge (ADJ), Delhi decreeing the suit filed by the
respondent against the appellant for recovery of possession of the first and
RFA No.528/2004 Page 4 of 23
mezzanine floors of property No.C-217, Gali No.1, Majlis Park, Delhi
along with mesne profits.
2. The appeal was entertained and there is a stay not only of
dispossession of the appellant in pursuance to the decree but also of the
decree for payment of mesne profits.
3. After this appeal has remained pending in this Court since 2004,
these applications have been filed. It is stated by the counsel for the
appellant and applicants that the respondent / defendant, who is mother-in-
law of the appellant, had during the pendency of the suit from which this
appeal arises agreed to sell the entire aforesaid property i.e. including the
ground and the second floors to the husband of the appellant, with the
purchase being in the name of the appellant and her two daughters i.e.
applicants herein, for a consideration of Rs.77,65,142/- and which entire
money was paid by making Fixed Deposit Receipt (FDR) for the said
amount, till then in the exclusive name of the husband of the appellant,
into the joint name of the husband of the appellant and the husband of the
respondent and in pursuance to which the possession of the remaining two
floors i.e. ground and the second were also handed over by the respondent
to the husband of the appellant and the father of the applicants.
4. The appellant and the applicants want to amend the written
statement filed in the suit from which this appeal arises to take the said
pleas and since the said pleas inter alia are of the purchase to be made
besides in the name of the appellant also in the name of the applicants, to
implead the applicants as appellants to this appeal as well as the
defendants to the suit from which this appeal arises.
5. It is also disclosed that the appellant and the applicants have already
filed a suit for specific performance being CS(OS) No.3089/2015, which
is pending consideration in this Court.
6. The counsel for the appellant and applicants has argued that it is a
settled principle of law that amendment of pleadings in the suit can be
allowed in appeal also and the pleas sought to be taken being by way of
subsequent events ought to be allowed to be taken by way of amendments.
It is further argued that since the respondent is denying all the said pleas,
after allowing these applications, the appeal be disposed of by remanding
the matter to the Trial Court for adjudication of the said controversy.
RFA No.528/2004 Page 5 of 23
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7. On enquiry, it is told that the husband of the appellant died on 22
th
January, 2010 and the FDR aforesaid was changed on 4 January, 2010.
It is further told on enquiry that the agreement aforesaid was arrived orally
nd rd
on 2 December, 2009 and the possession was delivered on 3 December,
2009.
8. The counsel for the appellant and applicants further states that after
the death of the husband of the appellant, the money of the FDR aforesaid
was transferred in the joint name of the husband of the respondent and the
respondent.
9. On enquiry as to the date on which the Sale Deed was to be
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executed, it is stated that the time for execution of the Sale Deed on 2
December, 2009 was agreed of five years. On further enquiry, whether
there are separate electricity meters for the ground and second floors and
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who has been paying the bills thereof, since 2 December, 2009, it is
stated that there is only one electricity meter of the property supplying
electricity to all the floors of the house. On enquiry, as to who has been
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paying the property tax of the property, after 2 December, 2009, it is
informed that the appellant or the applicants have not been paying the
property tax. On enquiry, whether the appellant and / or the applicants
have declared themselves as the owners or agreement purchasers of the
said property before any authority, the answer is in the negative.
10. As far as the contention of the counsel for the appellant and
applicants, that after allowing these applications, the appeal be remanded
for adjudication of the factual matrix pursuant to the said amendment, it
has been enquired from the counsel, how the said factual matrix can be the
subject matter of the suit for specific performance admittedly filed before
filing of these applications as well as the subject matter of decision in
these proceedings, post these applications.
11. The counsel for the appellant and applicants states that since grant of
the relief of specific performance is a discretionary relief, the appellant
and applicants may or may not be granted the relief of specific
performance in the suit but if they succeed in proving the pleas sought to
be taken by way of amendment, they would have a defense to the subject
suit for possession.
12. Though the counsel has made the aforesaid contention but is himself
unable to support the same.
RFA No.528/2004 Page 6 of 23
13. There cannot possibly be a denial of the relief of specific
performance but an order allowing the appellant and the applicants to
continue in possession, without being entitled to specific performance.
The only exception thereto is in Section 53A of the Transfer of Property
Act, 1881 but the benefit thereunder of the doctrine of part performance is
also not available in the present case inasmuch as the alleged agreement to
sell is not in writing as is mandatorily required thereunder. Moreover,
with effect from September, 2002, the benefit of part performance is
available only when the agreement to sell is registered. Attention of the
counsel in this regard is drawn to Cement Corporation of India Ltd. Vs.
Life Insurance Corporation of India Ltd. 2014 Indlaw Del 2550 (DB)
and Ravinder Nath Sahni Vs. Poddar Construction Company Pvt. Ltd.
2014 (211) DLT 561 where it has been unequivocally held that pendency
of a claim for specific performance of an agreement to sell is not a defense
to a claim for possession on the basis of title. The appellant and the
applicants by pleading an agreement to sell by the respondent, have in fact
admitted to the title of the respondent.”
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7. The counsels were heard on 5 November, 2015 and judgment reserved.
After the judgment was reserved, Mr. Jaspreet Singh Rai, Advocate mentioned
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the matter on 16 November, 2015 and handed over an application on behalf of
Ms. Akansha and Ms. Shivanshi daughters of the appellant/defendant informing
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that the respondent/plaintiff died on 9 November, 2015 and seeking
substitution in her place along with another son, daughter and husband of the
respondent. The trial court record requisitioned has been perused.
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8. The respondent, on 11 September, 2001 instituted the suit for recovery
of possession and mesne profits and injunction from which this appeal arises
pleading (i) that she was the lawful owner in possession of the property no.C-
RFA No.528/2004 Page 7 of 23
217, Gali No.1, Majlis Park, Delhi comprising of 2 ½ floors; (ii) that the elder
son of the respondent namely Shri Anil Pratap Singh Chauhan married the
th
appellant on 12 July, 1989 and the respondent permitted her son and the
appellant, being her daughter-in-law to live with her on the first floor and
mezzanine floor of the said property; (iii) that disputes and differences arose
between the appellant and her husband resulting in police complaints being
lodged and legal proceedings being initiated against each other; and (iv) that
owing to the said disputes the respondent had been forced to change her
residence from the ground and second floors of the property to the residence of
her another son.
9. The appellant/defendant contested the suit pleading (i) that the said
property was her matrimonial home; (ii) that the suit was not properly valued
for Court Fees and jurisdiction; (iii) that the suit was filed in collusion with her
estranged husband, to compel the appellant to agree to divorce; (iv) that her
minor daughters Ms. Akansha and Ms. Shivanshi also had a right of residence
in the said property; (v) that the appellant/defendant had been left destitute by
her husband; (vi) denying that the respondent/plaintiff was the owner of the
house and pleading that the first floor had been got constructed by her husband
RFA No.528/2004 Page 8 of 23
just a few months before the marriage and thus the property was a joint family
property.
10. Though the respondent/plaintiff also filed replication but need to refer
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thereto is not felt. On 4 March, 2002, the following issues were framed in the
suit:-
“1. Whether the plaintiff is entitled for a decree of
possession as prayed? OPP
2. Whether the plaintiff is entitled for recovery of
damages amounting to Rs.65,000/- from 1.7.2000
to 31.3.2001? OPP
3. Whether the plaintiff is entitled for permanent
injunction as prayed? OPP
4. Whether the suit has not been properly valued for
the purposes of court fee and jurisdiction? OPD
5. Whether the suit of the plaintiff is bad for
misjoinder of the necessary parties? OPD
6. Whether the suit of the plaintiff is maintainable in
the present form? OPD
7. Relief.”
The respondent/plaintiff examined her husband as her attorney and one
other witness. The appellant/defendant besides herself examined four other
witnesses.
RFA No.528/2004 Page 9 of 23
11. The learned ADJ, in the impugned judgment;
(a) has decided Issue no.4 in favour of the respondent/plaintiff and
against the appellant/defendant reasoning:-
(i) that the appellant/defendant on whom the onus of the issue
rested had not proved that the value of the property for
recovery of possession whereof the suit was filed was higher
than what had been pleaded by the respondent/plaintiff;
(ii) on the contrary the respondent/plaintiff had proved the Sale
Deed of purchase of the land ad measuring 100 sq. yds.
underneath property;
(iii) that the appellant/defendant in the cross examination of the
husband of the respondent/plaintiff had also not even
suggested that the value of the property at the time of
institution of the suit was as pleaded by her or beyond the
pecuniary jurisdiction of the Court; and,
(b) has held that the challenge by the appellant/defendant to the
Special Power of Attorney executed by the respondent/plaintiff in
RFA No.528/2004 Page 10 of 23
favour of her husband on the ground of the signatures of the
respondent/plaintiff thereon having not been made before the
Notary Public who had attested the same, was without any merit.
(c) has decided Issue No.5 against the appellant/defendant and in
favour of the respondent/plaintiff observing that since the minor
daughters of the appellant/defendant were admittedly residing with
their father as per the orders in another proceedings and the
appellant/defendant had only been granted permission to meet
them on two days in a week, they were not a necessary party to the
suit and the suit was not bad for their mis-joinder;
(d) has held that the ownership of the respondent/plaintiff of the
property stood proved from the Sale Deed of the land underneath
the property in her favour;
(e) has held that the appellant/defendant was not claiming ownership
of the property but was claiming only the right to occupy the
property being the daughter-in-law of the respondent/plaintiff;
(f) has held that the appellant/defendant could not claim any right in
the property independently of her husband;
RFA No.528/2004 Page 11 of 23
(g) has held that it was for the husband of the appellant/defendant to
state that the first floor had been constructed by him from his own
funds and claim ownership thereof and which he had not done;
(h) has held that the claim of the appellant/defendant for a
matrimonial home could be only against her husband;
(i) has held that if the husband of the appellant/defendant is not
claiming any right to possession the property, the question of the
appellant/defendant claiming any such right did not arise;
(j) has held that the appellant/defendant was not claiming that the
portion in her occupation had been constructed by her;
(k) held that merely because the documents proved by the
appellant/defendant indicated that the portion of the first floor had
been constructed sometime in 1985 or 1986 and not in 1972-73 as
claimed by the respondent/plaintiff did not mean that the
respondent/plaintiff was not entitled to the relief claimed in the
suit;
RFA No.528/2004 Page 12 of 23
(l) has found that in fact the claim of the appellant/defendant was that
the first floor had been constructed in 1988-89;
(m) held that the claim of the appellant/defendant that at one time her
husband had claimed to be the owner of the property was devoid
of any merit;
(n) has found that in the suit for permanent injunction earlier filed by
the appellant/defendant to protect her possession, the
respondent/plaintiff had merely given a statement not to forcibly
dispossess the appellant/defendant and the same did not prevent
the respondent/plaintiff from filing the suit for recovery of
possession;
(o) has accordingly decided Issues no.1&6 against the
appellant/defendant and in favour of the respondent/plaintiff; and,
(p) has however under Issue no.2 not awarded arrears of mesne
profits/damages for use and occupation claimed but awarded
future mesne profits/damages for use and occupation at the rate of
Rs.5,000/- per month if the appellant/defendant failed to vacate the
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property on or before 15 October, 2004.
RFA No.528/2004 Page 13 of 23
th
12. The counsel for the appellant/defendant during the hearing on 15
November, 2015 fairly stated that he was not challenging the findings of the
learned ADJ on Issue no.4 with respect to the valuation of the suit for the
purposes of Court Fee and jurisdiction and that in view of the earlier order
th
dated 16 October, 2015 (reproduced hereinabove) of dismissal of application
filed by the appellant/defendant for amendment of the written statement and the
application filed by the daughters of the appellant/defendant for impleadment
he was not challenging the findings of the learned ADJ on Issue no.5 with
respect to the mis-joinder of necessary parties. The arguments thus confined to
the findings of the learned ADJ in the impugned judgment on Issues no.1&6
supra in the suit.
13. It was the contention of the counsel for the appellant/defendant (i) that
the respondent/plaintiff did not depose herself in the suit; (ii) that under Section
60 (b) of the Indian Easement Act, 1882, a licence cannot be revoked by the
grantor if the licencee, acting upon the licence, has executed a work of
permanent character and incurred expenses in the execution; and (iii) that the
licence granted by the respondent/plaintiff to her son i.e. the husband of the
appellant/defendant to construct the first and mezzanine floors of the property
is thus irrevocable. Attention in this regard was invited to the evidence of DW-
RFA No.528/2004 Page 14 of 23
5 Upper Division Clerk (UDC) from the office of Municipal Corporation of
th th
Delhi (MCD) who proved the office orders dated 27 October, 1986 and 29
August, 1986 of the MCD and to the document proved as Ex.DW-4/1, 4/2 and
4/3 to contend that they establish that the first floor and mezzanine floor was
not constructed by the respondent/plaintiff in the year 1972-73 as claimed by
her but subsequently and it was argued that the husband of the
appellant/defendant having constructed the first floor and mezzanine floor, it is
the matrimonial home of the appellant/defendant.
14. Per contra, the counsel for the respondent/plaintiff argued (i) that in the
earlier application filed by the appellant/defendant in this Court for taking
subsequent events on record there was no plea of any agreement to sell in
favour of the husband of the appellant/defendant or in favour of the
appellant/defendant and her daughters; that on the date of which the Agreement
to Sell is alleged, cross examination of witnesses was recorded in the divorce
proceedings and which continued between the appellant/defendant and her
husband till the death of the husband of the appellant/defendant; (ii) that the
criminal proceedings between the appellant/defendant and her husband also
continued till the death of the husband of the appellant/defendant and the
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husband of the respondent/plaintiff was acquitted therein on 13 October, 2015;
RFA No.528/2004 Page 15 of 23
(iii) that as per the valuation reports filed, the construction of the property was
partly in the year 1972-73 and remaining in the year 1980-81; (iv) that even in
the SLP aforesaid earlier filed by the appellant/defendant there was no mention
of the Agreement to Sell; and, (v) that the appellant/defendant continued to
claim maintenance even after the date of the alleged Agreement to Sell.
15. I have carefully perused the pleadings, issues and the evidence recorded,
on the trial court record and am unable to find any merit in the only argument
urged before me, of the husband of the appellant/defendant having an
irrevocable licence in terms of Section 60(b) supra under the
respondent/plaintiff with respect to the first floor and mezzanine floor of the
property to which the suit and this appeal pertain and the appellant/defendant
thus having a right to continue in possession thereof. I may in this regard notice
(i) that though the appellant/defendant in the written statement denied
ownership of the respondent/plaintiff of the property but in CM No.23635/2015
for amendment of the written statement pleaded “the appellant‟s husband (late
Shri Anil Pratap Singh Chauhan) agreed to purchase the entire suit property
being property bearing no. C-217, Gali No.1, Majlis Park, Delhi (comprising of
ground floor, first floor, mezzanine floor and second floor) from defendant
no.1, in the name of the appellant and her daughters for a total sale
RFA No.528/2004 Page 16 of 23
consideration of Rs.77,65,142”; (ii) that in the written statement filed it was not
the plea of the appellant/defendant that the respondent/plaintiff had granted
licence to her son i.e. the husband of the appellant/defendant with respect to
terrace above the ground floor of the property or that her husband, acting upon
the licence granted by the respondent/plaintiff, had executed a work of
permanent character and incurred expenses in the execution i.e. construction of
the first floor and the mezzanine floor; rather, the plea was “in fact, first floor
of property no.C-217, Gali No.1, Majlis Park, Delhi, which is the property in
dispute was got constructed by Shri Anil Pratap Singh Chauhan husband of the
appellant/defendant just a few months before his marriage with the defendant.
The house no. C-217, Gali No.8, Majlis Park, Delhi is a joint family property
and the plaintiff is not the exclusive owner”; (iii) thus the appellant/defendant
in the written statement was not claiming any licence lest an irrevocable
licence with respect to the portion of the property qua which the suit was filed
but was denying the ownership of the respondent/plaintiff of the entire property
and was claiming the entire property to be a joint family property; (iv) no issue
also on the argument now urged by the counsel with his own ingenuity was
raised and the argument is thus de hors any foundation in pleadings or
evidence; (v) that in the cross examination of the husband and attorney of the
RFA No.528/2004 Page 17 of 23
respondent/plaintiff also, the suggestion given was that the daughters of the
appellant/defendant also had an interest in the property being members of joint
Hindu family and that the first floor was built by the husband of the
appellant/defendant with his own funds and not that it was so constructed in
accordance with any licence granted by the respondent/plaintiff; (vi) that the
appellant/defendant in her own affidavit by way of evidence also merely
deposed that she was living in the house as a daughter-in-law, the said house
being her matrimonial home and that the first floor was built by her husband by
his own funds and the property was thus a joint family property and not that the
respondent/plaintiff had granted any licence to the husband of the
appellant/defendant with respect to the first floor or that the husband of the
appellant/defendant in accordance with the said licence had carried out
construction of permanent nature over the property; (vii) even if it were to be
believed that the expenses of construction of the first floor were borne by the
husband of the appellant/defendant (though not proved), the said fact would not
ipso facto invoke Section 60(b) supra particularly on account of the relationship
of the mother and son between the respondent/plaintiff and the husband of the
appellant/defendant; (viii) the appellant/defendant in her cross examination
stated that she did not know as to who got the ground floor and the second floor
RFA No.528/2004 Page 18 of 23
of the property constructed and, (ix) the appellant/defendant did not lead any
evidence of the funds for construction of the first floor and mezzanine floor
having flown from her husband.
16. The documents referred to by the counsel for the appellant/defendant
during his arguments also are not indicative of the husband of the
appellant/defendant having any role in the construction of the first floor and the
mezzanine floor. The same relate to assessment of property for house tax and
only show that the building plan originally got sanctioned for construction of
the subject property was with respect to ground floor and half constructed first
floor only and till the year 1983-84 there were only two rooms on the first floor
and construction of upto two and a half floor was permitted vide general orders
th th
dated 29 August, 1986 and 27 October, 1986 Ex DW5/P-1 and DW5/P-2
only. The learned ADJ is correct in holding that merely because the remaining
construction on first floor was done on a date subsequent to the date of
construction of ground floor and half first floor did not mean that the same was
got constructed by husband of the appellant/defendant. It is not the case of
appellant/defendant that second floor was constructed subsequent to remaining
construction on the first floor. However no rights with respect to second floor
are claimed. In the ordinary course of human behaviour, the construction on
RFA No.528/2004 Page 19 of 23
second floor would be done simultaneously with construction of unconstructed
portion of second floor. Moreover, from the evidence of appellant/defendant
herself it stands established that two rooms of the first floor were constructed
from the time of construction of ground floor which the appellant/defendant
does not dispute was constructed in 1972-73 by the respondent/plaintiff. This
alone, in my view, falsifies the claim of irrevocable licence of entire first floor.
17. Supreme Court, in Ram Sarup Gupta Vs. Bishun Narain Inter College
(1987) 2 SCC 555 noticed judgments holding that a) three conditions are
required to be fulfilled under Section 60(b) supra to prove that the licence is
irrevocable and those are i) that the licencee executed work of a permanent
character; ii) that he did so acting upon the licence; iii) that he incurred
expenses in doing so; and, b) that the onus of proving these facts is upon the
licencee and in the absence of any evidence on these, the question of licence
being irrevocable does not arise. It thus follows that a licencee is not entitled to
prove irrevocability merely because has carried out work of permanent
character/nature by incurring expenses and has to also show that he has done so
pursuant to a right granted to do so.
RFA No.528/2004 Page 20 of 23
18. The appellant/defendant fails on all the aforesaid counts. There is thus
no merit in the said argument.
19. The argument of the counsel for the appellant/defendant, of the husband
of the respondent/plaintiff who appeared as a witness on behalf of the
respondent/plaintiff having no authority to do so, is also without any merit
when tested on the law laid down in Janki Vashdeo Bhojwani Vs. IndusInd
Bank Ltd (2005) 2 SCC 217 and A.C. Narayanan Vs. State of Maharashtra
(2014) 11 SCC 790. The husband of the respondent/plaintiff is fully in the
know of the facts of the case and is competent to depose about the facts in
dispute on his own behalf and his evidence cannot be rejected even if the Power
of Attorney in his favour is not proved. It is only if the facts of the case are such
which the party to the litigation himself/herself only could have deposed of, can
the evidence of the attorney be rejected. In the present case the facts were such
which the husband of the respondent/plaintiff, who is the father-in-law of the
appellant/defendant was competent to depose on his own behalf.
RFA No.528/2004 Page 21 of 23
20. No other argument has been urged.
21. There is thus no merit in the appeal the same is dismissed.
22. In the aforesaid facts and the respondent/plaintiff having died after the
arguments were heard and judgment reserved, need to formally deal with the
application handed over as aforesaid for substitution of LRs of
respondent/plaintiff is not felt.
23. However taking a compassionate view of the matter it is directed that if
the appellant/defendant vacates the property within three months, she will be
relieved from decree insofar as of recovery of mesne profit from her. However
if the appellant/defendant does not so vacate the premises, the
respondent/plaintiff shall be entitled to execute the decree in entirety.
24. Though it was the contention of the counsel for the respondent/plaintiff
that this Court should also pass a decree for recovery of possession of the
ground floor and the second floor unauthorisedly occupied by the
appellant/defendant during the pendency of this appeal and though their
contention appears to be prima facie correct but it is not deemed appropriate to
grant the said relief in this appeal.
RFA No.528/2004 Page 22 of 23
No costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J
May 31, 2016
„pp‟..
RFA No.528/2004 Page 23 of 23