Full Judgment Text
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PETITIONER:
SANT LAL JAIN
Vs.
RESPONDENT:
AVTAR SINGH
DATE OF JUDGMENT12/03/1985
BENCH:
VARADARAJAN, A. (J)
BENCH:
VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA
CITATION:
1985 AIR 857 1985 SCR (3) 184
1985 SCC (2) 332 1985 SCALE (1)423
ACT:
East Punjab Rent Restriction Act 1949: Section 13,
Grant of licence for one year-on expiry of period licence
revoked-Suit for mandatory injunction filed-Delay in filian
of-Whether excusable-Such Suit in effect one for possession-
Suit should be decreed-On termination of licence-Licencee’s
possession that of a tres-passer.
Indian Evidence Act, Section 16.
Licensee purchased property during pendency of suit-It
could set up title to property-eviction from property-
Whether permissible.
HEADNOTE:
The appellant had taken a plot of land on lease under a
lease-deed for a term of 10 years for M/s Jain Motors. At
that time he was only a partner of M/s Jain Motors but later
he became its sole owner. The respondent took from the
appellant on licence for one year under a deed the suitshed
for carrying on work shop business Since he did not vacate
the she dafter the expiry of the period the appellant
terminated the licence and filed the suit for a mandatory
injunction directing the respondent to vacate the premises.
The respondent opposed the suit contending that the
appellant sub-let to him a plot of land and he had raised a
new construction thereon and is carrying on workshop
business, and that the relationship between the parties was
that of landlord and tenant and the suit for mandatory
injunction was not maintainable.
The trial court dismissed the suit, for mandatory
injunction as not maintainable.
On appeal, the Additional District Judge held that the
relationship between the parties was only one of licensee
and that suit for mandatory injunction was maintainable,
allowed the appeal decreed the suit and directed the
respondent to deliver vacant possession of the shed.
In the second appeal, the respondent filed an
application for receiving as additional evidence a sale-deed
dated 27.8.1979 whereby he claimed to have
purchased the entire property from its original owner. On a
finding called for
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by the High Court, the trial court found that the respondent
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had purchased the property from its original owner by that
sale-deed. The High Court held that after the commencement
of the tenancy or the license a tenant or licensee who has
purchased the property from its original owner cannot be
evicted from that property on the basis of the lease or
laciness. The Second appeal was allowed, the judgment and
decree of the additional District Judge was set aside and
the trial court-s decree dismissing the suit was restored.
Allowing the Appeal,
^
HELD: 1. There is no merger of the whole property by it
original owner in favor of the appellant by reason of the
sale of the entire property by too original owner in favor
of the respondent or of the license given by the appellant
to the respondent which had been revoked prior to the date
of the suit. The lease in favor of the appellant continues
and under the East Punjab Rent Restrictions Act 1949 even
the tenant of a vacant land cannot be evicted therefrom
except in accordance with the provisions of that Act. [188F
G]
K.K Verma & Anr. v. Union of India & Anr., AIR 1954
Bombay 358, Milka Singh v. Diana & Ors., AIR 1964 Jammu &
Kashmir 99, relied upon.
2. In the instant case, it has not been shown that the
appellant had filed the suit for mandatory injunction after
considerable delay which will disentitle him to the
discretionary relief. Even if there was some delay, in a
case of this kind attempt should be made to avoid
multiplicity of suits and the licensor should not be driven
to file another suit with all the attendant delay trouble
and expense. [189E-F]
3. The suit is in effect one for possession though
couched in the form of a suit for mandatory injunction as
what would be given to the plaintiff in case he succeeds in
possession of the property to which he may found to be
entitled. Therefore, the appellant should not be denied
relief merely because he had couched the plaint in the form
of a suit for mandatory injunction.
[189G ]
4. The respondent was a licensee and he must be deemed
to be always a licensee. It is not open to him, during the
subsistence of the licence or in the licence or in the suit
for recovery of possession of the property instituted after
revocation of the licence to set up title to the property in
himself or anyone else. It is his plain duty to surrender
possession of the property as a licensee and seek his remedy
separately in case he has acquired title to the property
subsequently through some other person. He need not do so if
he has acquired title to the property from the licensor or
from some one else lawfully claiming under him, in which
case there would be clear merger. The respondent had not
surrendered the possession of the property to the appellant
even after the termination of the licence and the
institution of the suit. The appellant is, therefore,
entitled to recover possession of the property. The
respondent is directed to deliver possession of the property
to the appellant forthwith failing which it will be open to
the appellant to execute the decree and obtain possession.
[189H; 190A-C]
186
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 216 of 1984
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From the Judgment and Order dated 11.9.80 of the High
Court of Punjab & Haryana at Chandigarh in R.S.A. No.
126/76.
Harbans Lal A.K Goel for the Appellant
A.K Gauguli and A.D. Sikri for the Respondent.
The Judgment of the Court was delivered by
VRADARAJAN, J. This appeal by special leave is by the
plaintiff against the reversing judgment of the Punjab and
Haryana High Court in R.S.A. No. 126 of 1979. The trial
court had dismissed the suit but the learned Additional
District Judge, Patiala allowed the plaintiff’s appeal and
decreed the suit.
The plaintiff/appellant’s case was that he had taken on
lease under a lease-deed dated 26.8.1963 for a term of 10
years a plot! of land measuring 51’ x 118’ situate near the
Army Headquarters, Lower Mall, Patiala for M/s Jain Motor
from its owner Lt. Col. Sadan Singh. He was only a partner
of M/s Jain Motors in 1963, but later became its sole owner
in 1967. The defendant/respondent took from the appellant on
licence for one year under a deed dated 10.12.1969 the suit
shed for carrying on the work of repair of motors, tractors,
etc. But since he did not vacate the shed after the expiry
of the period he terminated the licence and filed the suit
on 15.2.1973 for a mandory injunction directing him to
vacate the premises. The respondent opposed the suit
contending that the appellant sub-let to him a plot of land
in 1966-67 and he has raised a new construction thereon and
is carrying on workshop business therein since then. He
further contended that the relationship between the parties
was that of landlord and tenant and that the suit for
mandatory injunction was not maintainable.
The trial court found that M/s Jain Motors were the
lessees and that the respondent become a sub-tenant of a
piece of land and constructed the suit shed thereon and that
the suit for mandory injunction is not maintainable and
dismissed the suit. In the appeal the learned Additional
District Judge set aside the trial court’s findings recorded
in favour of the respondent and found that no rent is
mentioned either in the document executed by the respon-
187
dent in favour of the appellant or in the written statement
and no rent receipt was produced by the respondent, and
that the relationship between the parries was only one of
licensor and licensee. On the question of delay in filing
the suit the learned Additional District Judge found that
the partie remained busy in fighting out criminal cases till
the end and that the present suit had been filed thereafter
and there had been no undue delay and also that there was no
challenge to the trial court’s finding that the respondent
had not put any construction of his own and held that the
suit for mandatory injunction against the licensee is
maintainable. On these findings he allowed the appeal and
decreed the suit, directing the respondent to deliver vacant
possession of the shed in dispute to the appellant.
In the second appeal the respondent filed an
application for receiving as additional evidence a sale-deed
dated 27.8 1979 whereby he claimed to have purchased the
entire property from its original owner. The High Court
called for finding in that regard from the trial court which
thereupon found that the respondent has purchased the
property from its original owner by that sale deed. It was
contended in the High Court that in view of that sales, it
is not open to the appellant to contend that the respondent
in whom the title to the property has come to be vested
after the date of the suit, is liable to be ejected on the
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revocation of the license granted to him by the appellant.
On the other hand, it was contended for the appellant that
the fact that the respondent had purchased the property from
its owner subsequent to the grant of the licence in favour
of the respondent does not make any difference to the
appellant’s claim for recovering possession of the suit shed
and that it is obligatory on the respondent to first
surrender possession of the property after the licence had
been revoked and hen seek his remedy, according to law, on
the basis of the title claimed by him. It was further
contended that in view of the provisions ofs. 13 of the East
Punjab Rent Restrictions Act, 1949, the appellant who was
the tenant of the property under its original owner cannot
be dispossessed except in accordance with the provisions of
that Act.
The learned Single Judge of the High Court rejected the
appellant’s contention that his rights under the lease by
the original owner cannot be interfered with the provisions
of the said Act, observing that from the decisions referred
to by him H
188
and the provisions of s. 116 of the Indian Evidence Act, it
is clear that after the commencement of the tenancy or the
licence a tenant or licensee who has purchased the property
from its original owner cannot be evicted from that property
on the lease or licence. He rejected the contention that the
present suit for a mandatory injunction directing the
respondent to vacate and hand over possession of the suit
shed is in effect a suit for possession and he allowed the
second appeal and set aside the judgment and decree of the
learned Additional District Judge and restored the trial
court’s decree dismissing the suit.
Now the parties are bound by the following factual
findings recorded by the learned Additional District Judge
in the first appeal namely: (1) that the appellant who had
become the sole proprietor of M/s Jain Motors in 1967
through at the time of the lease of the property by the
original owner Lt. Col. Sadan Singh to M/s Jain Motors in
1963 he was only one of its partners, was the lessee of the
property; (2) that the respondent had become a licensee of
the suit shed under the appellant when the appellant was in
possession of the whole of the demised premises including
the suit shed as tenant under the original owner; (3) that
the licence in favour of the respondent had been revoked
before the institution of the present suit and (4) that
subsequent to the decision in the first appeal on 7.12.1978,
the respondent had purchased the entire property from the
original owner by a sale-deed dated 27.8.1979. In these
circumstances, there, is no merger of the lease of the whole
property by its original owner in favour of the appellant by
reason of the sale of the entire property by the original
owner in favour of the respondent or of the licence given
by the appellant to the respondent which had been revoked
prior to the date of the suit. The lease in favour of the
appellant continues, and it is not disputed that under the
Act of 1949 referred to above, even the tenant of a vacant
land in Patiala town cannot be evicted therefrom except in
accordance with the provisions of that Act. In K.K. Verma &
Anr. v. Union of India & Anr.,(13 Chagla, C.J. presiding
over a Division Bench has observed that in India a landlord
can only eject his erstwhile tenant by recourse to law and
by obtaining a decree for ejectment. In Milkha Singh v. Dvna
& Ors.,(2) it has
(1) AIR 1954 Bombay 358
(2) AIR 1964 Jammu & Kashmir 99.
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189
been observed that the principle once a licensee always a
licensee would apply to all kinds of licences and that it
cannot be said that the moment the licence it terminated,
the licensee-s possession becomes that of a trespasser. In
that case, one of us (Murtaza Fazal Ali, J.) as he then was
speaking for the Division Bench has observed:
"After the termination of licence, the licensee is
under clear obligation to surrender his possession to
the owner and if he fails to do so, we do not see any
reason why the licensee cannot be compelled to
discharge this obligation by way of a mandatory
injunction under s. 55 of the Specific Relief Act. We
might further mention that even under English law a
suit for injunction to evict a licensee has always been
held to be maintainable.
Where a licensor approaches the court for an
injunction within a reasonable time after the licence
is terminated, he is entitled to the injunction. On the
other hand, if the licensor causes huge delay the court
may refuse the discretion to grant an injunction on the
ground that the licensor had not been diligent and is
that case the licensor will have to bring a suit for
possession which will be governed by s.7 (v ) of the
Court Fees Act."
In the present case it has not been shown to us that
the appellant had come to the court with the suit for
mandatory injunction after any considerable delay which will
disentitle him to the discretionary relief. Even if there
was some delay, we think that in a case of this kind attempt
should be made to avoid multiplicity of suits and the
licensor should not be driven to file another round of suit
with all the attendant delay, trouble and expense. 1 he suit
is in effect one for possession though couched in the form
of a suit for mandatory injunction as what would be given to
the plaintiff in case he succeeds is possession of the
property to which he may be found to be entitled. therefore,
we are of the opinion that the appellant should not be
denied relief merely because he had couched the plaint in
the form of a suit for mandatory injunction.
The respondent was a licensee, and he must be deemed to
be always a licensee. It is not open to him? during the
subsistence of
190
the licence or in the suit for recovery of possession of the
property instituted after the revocation of the licence to
set up title to the property in himself or anyone else. It
is his plain duty to surrender possession of the property as
a licence and seek his remedy separately in case he has
acquired title to property subsequently through some other
person. He need not do so if he has acquired title to the
property from the licensor or from some one else lawfully
claiming under him, in which case there would be clear
merger. The respondent has not surrendered possession of
property to the appellant even after the termination of the
licence and the institution Or the suit. The appellant is,
therefore, entitled to recover possession of the property.
We accordingly allow the appeal with
costs throughout and direct the respondent to deliver
possession of the property to the appellant forthwith
failing which it will be open to the appellant to execute
the decree and obtain possession.
A.P.J. Appeal allowed.
191
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