Mst. Hussaini (Deceased) vs Harcharan Singh

J.V. Gupta, J.—This is defendant''s second appeal against whom suit for possession of the house in dispute has been decreed by both the Courts below.

The plaintiff Harcharan Singh filed the suit for possession of a house alleging that this was occupied by Hassan Mohammad, husband of Mst. Hassani, defendant and father of Gulam Mohammad, as an allottee under the Custodian at the rate of Re. 1/-per month as licence fee. Later on, this house was sold by the Custodian in the public auction and he purchased the same. Sale certificate was also issued in his favour. Hassan Mohammad continued to be in possession of the house as a licensee under him during his life time and on his death the licence had come to an end. The defendants were in possession of the house as trespassers. Hence the present suit was filed on the basis of his title.

In the written statement, the defendants admitted that the property was possessed by Hassan Mohammad but contended that he was holding the property as a tenant under the Custodian at the rate of Re. 1/- per month and apart of the house was possessed by one Iqbal Mohammed. They denied that Hassan Mohammad held the property as a licensee. They also did not admit the claim of the plaintiff as the owner of the house and contended that after the death of Hassan Mohammad, they were in possession of the property as tenants and they were not liable to be ejected by the Civil Court. Plea was also taken that they are the owners of the suit property.

The trial Court found that Hassan Mohammad was a tenant of the demised premises. The plaintiff was held to be the owner of the property and it was found that he was entitled to the possession of the same as the tenancy of Hassan Mohammad came to an end on his death. Consequently, the plaintiff''s suit was decreed. In appeal before the Additional District Judge, this finding of the trial Court that Hassan Mohammad was tenant under the Custodian was challenged by the plaintiff and ultimately the learned lower appellate Court reversed the finding of the trial Court and came to the conclusion that Hassan Mohammad was not the tenant as alleged, but was mere licensee of the Custodian. It was further found by the lower appellate Court that the defendants never claimed themselves to be the tenants of the property. Their case was that Hassan Mohammad was occupying the property as an owner and after his death, they were holding the same as owners. Since they failed to prove their ownership, the judgment and decree of the trial Court passed in favour of the plaintiff was upheld. Dissatisfied with the same, the defendants have filed this second appeal in this Court.

The learned counsel for the appellants contended that Hassan Mohammad being the statutory tenant, the defendants are entitled to continue in occupation being the heirs and legal representatives of the deceased-tenant. According to the learned counsel, the occupation of Hassan Mohammad under the Custodian was as a tenant and not as licensee as held by the lower appellate Court. In support of his contention, he referred to Krishan Lal and others v. Manohar Lal 1983 Cur. L.J. 237.

After hearing the learned counsel for the appellants, I do not find any merit in this appeal. Gulam Mohammad, defendant, appeared as DW-7. His statement is that they are the owners of the house in dispute. They never claimed themselves to be the tenants at any stage. That being so, the possession of the defendants will be that of trespassers. The suit was filed by the plaintiff on the basis of his title, i.e. ownership because he had purchased the property from the Custodian. Since the defendants never took up the plea of being tenants nor was there any evidence to that effect, they could not be allowed to agitate in the second appeal that they are entitled to occupy the premises being the legal representatives of the deceased tenant Hassan Mohammad. The plea of tenancy was to be set up in the written statement and then to be proved by the evidence. This the defendants have failed to prove on record. In the case relied upon by the learned counsel for the appellants, the defence set up was that the defendants had taken the said shop on lease from the Custodian and continued to hold the same as such after its sale to the plaintiff by virtue of the provisions of Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. As observed earlier, since in this case this was never set oat by the defendants, the said judgment has no application.

Consequently, the appeal fails and is dismissed with costs.