Kaushalya Devi vs Bhola Nath and anr.

J.V. Gupta, J.

This is plaintiff''s second appeal whose suit for injunction was decreed by the trial Court but was dismissed in appeal.

Smt. Kaushalya Devi filed a suit against Bhola Nath, defendant No. 1 and Municipal Committee, Hoshiarpur, defendant No. 2 for mandatory injunction directing Bhola Nath to deliver possession of the property marked ABCD shown in the site plan. It was alleged therein that one Shrimati Saraswati Devi widow of Ram Parkash was the owner of the suit property. She sold it to the plaintiff vide registered sale deed dated 14th September, 1970, Exhibit P.1, for Rs. 15000/. Bhola Nath, defendant No. 1 was occupying the premises in dispute as license under Saraswati Devi and, therefore the licence having been revoked, he was liable to be ejected by way of mandatory injunction.

The suit was contested by Bhola Nathm, defendant, on the ground that Shrimati Saraswati Devi was not the owner of the property in dispute nor she could convey any title of the property to the plaintiff. He was occupying the property in dispute as owner since 1938 and had constructed two chhappars on it and had also acquired the rights of ownership regarding the property in suit by adverse possession.

In the original written statement, his plea was that he was occupying the property in dispute as owner for the last 15 years but in the amended written statement he pleaded that he was occupying it since 1938. THe main controversy between the parties is as to whether th plaintiff is the owner of the suit property and whether the defendant had become its owner by adverse possession. The trial Court found that the plaintiff is the owner of the suit property and that the defendant has failed to prove that he had become the owner by adverse possession. It was further held that the defendant was in possession of the suit property as a licensee under the plaintiff and since the licence has been validly revoked, the plaintiff''s suit was decreed. In appeal the learned District Judge reversed the said finding of the trial Court and came to the conclusion that the plaintiff has failed to prove that she was the owner of the property in dispute. It was further found that since the plaintiff has failed to prove that she is the licensor of he licence, the conclusion would follow that the defendant is in adverse possession of the property. In view of this finding, the plaintiff''s suit was dismissed. Dissatisfied with the same, the plaintiff has filed this second appeal in this Court.

It is not disputed that Basanta Mal was the original owner who allowed Bhola Nath to occupy the premises in dispute as a licensee. Later on, Basanta Mal mortgaged the suit property which was ultimately auctioned and was purchased by one Gajjan Mal. Gajjan Mal died in the year 1960. After the death of Gujjan Mal, the property was inherited by his real brother Babu Ram. Babu Ram also died and on his death, he was succeeded by his son Ram Parkash and his widow Premi 1/2 each. On the death of Ram Parkash and his widow Saraswati Devi suceeded to him, whereas, his 1/2 share went to his mother. Thus, Saraswati Devi had 1/4 share in the suit property. According to the plaintiff, Saraswati Devi transferred the whole of the suit property vide sale deed Exhibit P.1 dated 14th September, 1970 for a sum of Rs. 15000/ in favour of the plaintiff Smt. Kaushalya Devi. On the basis of the said sale deed Kaushalya Devi filed the present suit on 12th August, 1975 alleging that Bhola Nath, defendant, was licensee and since his license had been revoked, she was entitled to the decree for mandatory injunction.

Learned counsel for the plaintiff submitted that the license stands revoked automatically on the transfer of the property or in any case on the filing of the suit and, therefore, when the property was transferred to Smt. Saraswati Devi in the year 1970 or when the suit was filed, this license was revoked and, therefore, the suit as such was competent. In support of this contention, he referred to Chinnan and others v. Ranjithammal, A.I.R. 1931 Madras 216. According to the learned counsel even if Saraswati Devi was the owner of 1/4 share out of the suit property, she was entitled to maintain the suit against the defendant. After his licence was revoked, the question of the defendant being in adverse possession did not arise under the facts and circumstances of the case. In any case, the defendant has failed to show that from which date his adverse possession had begun. Thus argued the learned counsel, the view taken by the trial Court in this behalf was correct but the lower appellate Court has erred in reversing the same. On the other hand, the learned counsel for the defendant Bhola Nath submitted that if, on transfer, the licence stands revoked then it was not in the year 1970 when Saraswati Devi sold the suit property to the plaintiff but it was in the year 1938 when Basanta Mal, the original owner, mortgaged the suit property or in any case when it was purchased by Gajjan Mal who died in the year 1960. Not only that, argued the learned counsel Bhola Nath had been dealing with this property as owner and in the year 1945 he had let out the same to one Bhola Nath D.W. 3 (who is a different person) and therefore since then he was in adverse possession thereof. It was also contended that Saraswati Devi had no title in the suit property which could be validly transferred in favour of the plaintiff. Since Gajjan Mal had not died issueless the question of his brother Bhola Nath succeeding Gajjan Mal did not arise. In any case, the entries in the Municipal record are not conclusive and, therefore, the finding of the lower appellate Court in this behalf could not be interfered with in second appeal.

After hearing the learned counsel for the parties and on going through the relevant evidence on the record, I am of the opinion that the plaintiff has failed to prove the Saraswati Devi was the owner of the suit property and she could validly pass the title in favour of the plaintiff.

Assuming that Saraswati Devi was the owner of 1/4 the share only and not of the whole even then neither she nor her husband nor her father Babu Ram ever made any claim from Bhola Nath with respect to the suit property. Even Gujjan Mal, who purchased the suit property in the Court auction never took any action against Bhola Nath. It is common case of the parties that the moment the licensor parts with the property the licence comes to an end. Once this proposition is accepted and in the absence of any evidence to the contrary that Gajjan Mal or his successor in interest ever allowed Bhola Nath to continue as licencee, the license had come to an end when the property was mortgaged by Basanta Mal or in any case when Gajjan Mal purchased the same in the Court auction in the year 1960, whereas, the suit was filed on 12th Aug, 1975. It was held in Chinnan and others'' case (supra) that if a man gives a license and then parts with the property over which the privilege is to be exercised, the licence is gone. A licence is not annexed to the property in respect of which it is enjoyed, nor is it a heritable right, but is a right purely personal between grantor and licensee. As observed earlier, since there is no cogent evidence that Gajjan Mal or on his death Babu Ram or later on Ram Parkash or Saraswati Devi ever exercised any right over the suit property; the license having come to an end on transfer by Basanta Mal as mortgagor and later on purchased by Gajjan Mal the possession of Bhola Nath was that of trespasser. There is evidence on the record that Bhola Nath claimed himself to be the owner when he rented out the property in the year 194546 to Bhola Nath, D.W. 3. Moreover, the plaintiff came to the Court with the specific plea that he was the owner and the defendant was licensee and, therefore, he was entitled to a decree of mandatory injunction for ejectment. Once it is found that Bhola Nath was no more licensee, the question of granting mandatory injunction did not arise. Not only that, Bhola Nath ceased to be a licensee much earlier and continued to occupy the property in dispute as trespasser and exercised his right as owner by renting it out from time to time. Thus on the facts and circumstances of the case, Bhola Nath has become owner by adverse possession. In this view of the situation I do not find any illegality or impropriety with the findings of the lower appellate Court as to be interfered with in second appeal.

Consequently, the appeal fails and is dismissed with no order as to costs.