Ajit Singh vs Harmeet Singh

V.K. Jhanji, J.—This is plaintiffs appeal directed against the judgment and decree of the Additional District Judge whereby judgment and decree passed by the trial court passed in favour of the plaintiff has been set aside and in consequence thereof, suit of the plaintiff has been dismissed.

The dispute is between father and his son, Harmeet Singh. The case of the father is that he is the absolute and exclusive owner of House No. 11, Sector 27-A, Chandigarh and since its construction he is residing on the ground floor of the said house. Defendant is his youngest child who after having resided in Canada for eight years returned to India in the year 1982 when he got married to Kamaljit Kaur. He and his wife started living with the plaintiff who had retired as Food and Supplies Inspector from the Haryana State and was leading his retired life. Plaintiff has alleged that after the marriage, his son started misbehaving with his father (Plaintiff) and his mother, Smt. Ajit Kaur. He on 24.11.1983 not only abused the plaintiff but also physically assaulted him. Due to his conduct and behaviour plaintiff disowned and disinherited the defendant through a public notice in the Daily Tribune. A criminal complaint was also filed with the police. Since the defendant was residing with the plaintiff as a licensee with the explicit will and permission of the plaintiff, he served various notices on him terminating his licence but these notices were received back unserved. Therefore, the plaintiff gave a public notice in the Daily Tribune asking the defendant to vacate the premises. After the termination of the licence, defendant left and vacated a part of the premises except one room on which he has put a lock and has refused to remove the lock or vacate the room.

In the written statement, defendant denied the averments made in the plaint and took up the plea that the house was constructed with his funds which he had sent from Canada before coming back to India and therefore, he is living in the room in his own right and not with the permission from his father as a licensee. He alleged that the house in dispute was one part of the coparcenary property consisting of his father, himself and his brother, Amrinder Singh and in partition it has fallen to his share and he is living there as a owner and not as licensee.

On the pleadings of the parties, following is sues were framed by the trial Court:-

"1. Whether the plaintiff is owner of the property in question ? OPP.

Whether the defendant is owner of the property in question ? OPD.

Whether the disputed premises are exempted from the provisions of the East Punjab Urban Rent Restriction Act ? OPD.

If issue No. 1 is proved, whether the tenancy was validly terminated before the institution of the suit ? OPP.

4-A. Whether the defendant is in use and occupation of the premises as licensee ? OPP.

4-B. If issue No. 4-A is proved whether the plaintiff is entitled to mandatory injunction as prayed for ? OPP.

Relief."

The learned trial Court on the appreciation of evidence led by the parties found that the house in dispute is sell-acquired property of the plaintiff who constructed the house with his own funds and by raising loan from the Estate Office. The plea of the defendant that the house is coparcenary -property and has fallen to his share in partition did not find favour with the trial Court. The trial Court on finding that the defendant is a licensee, decreed the suit and directed the defendant to vacate one room on the ground floor by removing the lock. In appeal, the learned Additional District Judge has set aside the judgment and decree of the trial Court only on the ground that in his examination-in-chief plaintiff never stated that he permitted the defendant to stay in his house, rather in his cross-examination he deposed that he never allowed the defendant to live in his house at all and that he had occupied it forcibly in the month of June/July, 1983 and therefore, the status of the defendant is of a trespasser and not that of a licensee. As a result of this finding, judgment and decree of the trial Court has been set aside by the Additional District Judge. Plaintiff has now come in this second appeal.

Having heard the learned counsel for the parties at some length, I am of the view that the appeal deserves to succeed. The statement of the plaintiff on the basis of which judgment of the trial Court has been set aside cannot be read for holding that the defendant is a trespasser. In his written statement the defendant never laid the foundation that he occupied the premises forcibly or his status is that of a trespasser. On the contrary, the case of the defendant has been that he is co-owner being coparcener or the property has fallen to his share in partition. Defendant never alleged that he occupied the premises forcibly. The question whether there is a trespass or licence in a particular case depends upon the quality of occupation. Mere occupation is not sufficient to infer that a person in possession is a trespasser. "A licencee is a person who has been permitted to do or continue to do in or upon the immovable property of the grantor, something which would in the absence of such permission, be unlawful." (Mitra''s Legal and Commercial Dictionary). In this case, the plaintiff only permitted the defendant to stay in the house being his son. Occupation with permission does not create any right in property in favour of the occupier. If two persons live together in a house as father and son and one of them who owns the house allows the other to stay in a part of it, it will be in the absence of any other evidence a rash inference to draw that the other has a legal right to remain in possession despite the termination of his licence by the owner.

In the result, the appeal is allowed, judgment and decree of the first appellate Court is set aside and that of the trial Court is restored. Consequently, suit of the plaintiff shall stand decreed. There shall be no order as to costs.