Smt. Bano vs Smt. Aziso and Others

Hemant Gupta, J.—The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for permanent injunction for restraining the defendant-appellant to encroach any part of the suit land was decreed. The defendant is the daughter of the plaintiff. The plaintiff filed a suit for injunction to restraining the defendants i.e. daughter, her husband and her son, as they are adamant to dispossess the plaintiff without any right, title or interest in the suit property. It is only defendant Nos. 2 & 3 i.e. daughter and her husband, who contested the suit by filing joint written statement. But the present second appeal has been filed only by the daughter of the plaintiff.

The defendant in the written statement relied upon a registered Will of the plaintiff dated 07.02.1980 in her favour and in favour of her sister''s sons namely Basta Singh and Mahboob. It is alleged that the plaintiff is not in possession of the suit property and is residing in another property. The plaintiff filed rejoinder and on the basis of pleadings, the trial Court framed the following issues:

Whether the plaintiff is the owner in possession of the property in dispute? OPP

Whether the plaintiff is stopped from filing this suit by his own acts and conduct? OPD

Whether the defendants are in possession of the suit property with the consent of the plaintiff, if so to what effect? OPD

Relief.

The learned trial Court on issue Nos. 1 & 2 returned a finding that the plaintiff is owner of the suit property on the basis of order dated 30.06.1961 Ex. A-3. Even the reliance of the defendant on the Will proves that the plaintiff is owner of the property. Thus, the trial Court returned a finding that the suit land is owned and possessed by the plaintiff. Consequently, the trial Court decreed the suit. The appeal was also dismissed.

Learned counsel for the appellant has argued that the defendant-appellant is in possession of the suit property as a daughter of the plaintiff and, thus, entitled to protect her possession. Therefore, the suit for injunction filed by the plaintiff is not maintainable.

I do not find any merit in the argument raised. Once the plaintiff is proved to be owner of the suit property, the defendant as a daughter of the plaintiff is a licensee. Even if the daughter is staying in the house of owned by the plaintiff, her possession is a permissive possession with no interest or right in the property. In a judgment reported as B.M. Lall (Dead) by Lrs. Vs. Dunlop Rubber and Co. Ltd. and Others, the Supreme Court examined the nature of possession of a tenant and test to determine, as to whether it is lease or licensee. The Court held as under:

The question is whether the occupier under this agreement is a tenant or a licensee. The distinction between a lease and a license is well known. Section 105 of the Transfer of Property Act defines a lease. Section 52 of the Indian Easements Act defines a license. A lease is the transfer of a right to enjoy the premises; whereas a license is a privilege to do something on the premises which otherwise would be unlawful. If the agreement is in writing, it is a question of construction of the agreement having regard to its terms and where its language is ambiguous, having regard to its object, and the circumstances under which it was executed whether the rights of the occupier are those of a lessee or a licensee. The transaction is a lease, if it grants an interest in the land; it is a license if it gives a personal privilege with no interest in the land. The question is not of words but of substance and the label which the parties choose to put upon the transaction, though relevant, is not decisive. The test of exclusive possession is not conclusive, see Errington v. Errington and Woods (1952) 1 KB 290, Associated Hotels of India Ltd. Vs. R.N. Kapoor, , though it is a very important indication in favour of tenancy. See Addiscombe Garden Estates Ltd. v. Crabbe 1958-1 QB 513. A servant in occupation of premises belonging to his master may be a tenant or a licensee, see Halsbury''s Laws of England, Third Edn. Vol. 23, Article 990, p. 411. A service occupation is a particular kind of license whereby a servant is required to live in the premises for the better performance of his duties....

In A.S. Vidyasagar v. S. Karunanandam, 1995 Supp (4) SCC 570 , the Hon''ble Supreme Court observed as under:

Adverse possession is sought to be established on the supposition that Kanthimathi got possession of the premises as a licensee and on her death in 1948, the appellant who was 4 years of age, must be presumed to have become a trespasser. And if he had remained in trespass for 12 years, the title stood perfected and in any case, a suit to recovery of possession would by then be time-barred. We are unable to appreciate this line of reasoning for it appears to us that there is no occasion to term the possession of Kanthimathi as that of a licensee. The possession was permissive in her hands and remained permissive in the hands of the appellant on his birth, as well as in the hands of his father living then with Kanthimathi. There was no occasion for any such licence to have been terminated. For the view we are taking there was no licence at all. Permissive possession of the appellant could rightfully be terminated at any moment by the rightful owners. The present contesting respondents thus had a right to institute the suit for possession against the appellant.

In Kamlesh and Others Vs. Jasbir Singh, this court held that the possession can be claimed from a licensee in a suit for mandatory injunction. It was observed as:

Once it is held that the appellant was inducted as licensee on behalf of Kishan Singh, the suit for possession by way of mandatory injunction could be filed by Jasbir Singh, the successor in interest of Kishan Singh. The learned counsel for the respondent relied upon the Division Bench Judgment reported in Ram Murti Vs. Smt. Sarla Devi, , Ram Murti v. Smt. Sarla Devi, which reads as under:-

Mr. Bhag Singh, the learned counsel appearing on behalf of the petitioner has submitted that the suit for mandatory injunction filed by the respondent-plaintiff was not maintainable and in the facts and circumstances of the case the plaintiff could file a suit for possession. The contention is, however, without any force in view of the judgment of the Supreme Court in Sant Lal Jain Vs. Avtar Singh, . In that case it was held that the suit in fact was one for possession though couched in the form of suit for mandatory injunction. In the present case also it is the similar case as the suit in the present case is also in fact for possession though couched in the form of a suit for mandatory injunction.

In view thereof, the defendant, daughter of the plaintiff is a licensee and cannot claim any interest in the suit property and to resist the decree for injunction. Both the courts have recorded concurrent finding of fact regarding ownership and nature of possession of the defendants as that of licensee.

Consequently, I do not find that any substantial question of law arises for consideration of this Court in the present second appeal. Dismissed.