Subodh v. Veena

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Ashish Aggarwal, Advocate, for the appellant Mr. Yogesh Chaudhary, Advocate, for the respondent L.N. Mittal, J. (Oral) Subodh Chand Nayyar defendant has preferred instant second appeal after being unsuccessful in both the courts below. Suit was filed by respondent Dr. Vinod Veena alias Veena against appellant for mandatory injunction. Plaintiff's case is that plaintiff's father was owner in possession of house No. 52-A (52-R) situated in Model Town, Karnal vide conveyance deed dated 20.4.1962/12.5.1962. Defendant's father who was real brother of plaintiff's father was allowed to occupy the said house as licencee in the year 1980 by the plaintiff's father. After death of defendant's father, defendant continued to reside in the suit house as licencee and undertook to vacate the same as and when asked. The defendant gave different writings stating that he was occupying the suit Regular Second Appeal No. 4120 of 2007 -2- house as licencee and shall vacate the same as and when asked. After the death of plaintiff's father, plaintiff has become owner of the suit house in view of registered Will dated 31.3.1993. The plaintiff asked the defendant to vacate the suit house by revoking the defendant's licence but the defendant refused to do so. Accordingly, the plaintiff sought mandatory injunction directing defendant to vacate the suit house and hand over its vacant possession to the plaintiff. The defendant, inter-alia, pleaded that house No. EK-184 at Jalandhar was purchased for Rs 16,500/- from the Rehabilitation Department by plaintiff's father, defendant's father and their cousin Kundan Lal. Then defendant's father out of his claim amount got adjusted Rs 5800/- towards price of the house at Jalandhar for 1/3rd share of defendant's father in the said house. Plaintiff's father purchased the disputed house at Karnal. The defendant's father started residing in half portion (suit property) of the said house in the year 1967 as tenant and paid Rs 70/- per month as rent to plaintiff's father for some period. However, in 1985-86, plaintiff's father and defendant's father exchanged their properties and accordingly defendant's father relinquished his 1/3rd share in house at Jalandhar in lieu of half portion of the house of plaintiff's father at Karnal. Thereafter defendant's father spent huge amount on the suit house. The plaintiff has no right, title or interest in the suit house. Learned Civil Judge (Junior Division), Karnal vide judgment and decree dated 25.9.2006 decreed plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 12.9.2007. Feeling still aggrieved, Regular Second Appeal No. 4120 of 2007 -3- the defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset it has to be noticed that along with appeal, appellant moved application bearing CM No. 11629.C of 2007 under Order 41 Rule 27 read with section 151 of the Code of Civil Procedure (in short, CPC) for placing on record documents Annexures A/1 and A/2 as additional evidence. It is alleged in the application that the appellant has now been able to find out a letter written by plaintiff's father to defendant's father specifically stating therein that in lieu of relinquishment of 1/3rd share by defendant's father in house at Jalandhar, plaintiff's father declared defendant's father to be full owner in possession of half share of the house at Karnal i.e. of the suit property. The said letter Annexure A/1 was received in envelope Annexure A/2 which are sought to be produced as additional evidence. Learned counsel for the appellant contended that in view of judgments of Hon'ble Supreme Court in Haryana State Industrial Development Corporation versus M/s Cork Manufacturing Co., 2008(1) RCR (Civil) 78 and North Eastern Railway Administration, Gorakhpur versus Bhagwan Das (D) By Lrs., 2008(3) RCR (Civil) 165, proposed additional evidence should be allowed. The prayer has, however, been opposed by counsel for the respondent. In so far as judgment in the case of HSIDC versus M/s Cork Manufacturing Co. (supra) is concerned, the same referred the matter to a Larger Bench and therefore, no principle of law or precedent has been laid down in the said judgment. On the other hand, in that case two Judges of the Supreme Court constituting Regular Second Appeal No. 4120 of 2007 -4- the Bench had difference of opinion on the issue of additional evidence in second appeal. In the case of North Eastern Railway Administration versus Bhagwan Das (D) by Lrs (supra) additional evidence was allowed in the facts of that case as it depicted that the decree was obtained by the plaintiff by playing fraud on the court. This judgment is also not applicable to the facts of the case in hand. In addition thereto even if documents Annexures A/1 and A/2 sought to be produced by additional evidence are taken into consideration, the same would not advance the case of the defendant-appellant as would be discussed herein after. It is undisputed that the plaintiff's father was owner of the suit house and after his death, the plaintiff has inherited the same in view of registered Will Ex. P/6. The defendant's claim is that the plaintiff's father had given the suit property to defendant's father in exchange of 1/3rd share of defendant's father in the house at Jalandhar. However, this version of the defendant has been rightly negatived by both the courts below. Perusal of conveyance deed Ex. P/7 dated 24.4.1960 reveals that the house at Jalandhar was also exclusively purchased by the plaintiff's father from the Rehabilitation Department. Plaintiff's father was the highest bidder for the said house. It is correct that defendant's father and Kundan Lal had got adjusted some amounts out of their claims (in lieu of property left in Pakistan) towards price of house at Jalandhar. However, by no means it would depict that defendant's father and Kundan Lal were also purchasers of the house at Jalandhar with plaintiff's father. On the contrary, Kundan Lal and defendant's father furnished affidavits dated 5.4.1960 Ex. P/8 and P/9 respectively affirming that some amounts out of their claim be adjusted Regular Second Appeal No. 4120 of 2007 -5- towards price of the house at Jalandhar and the said house be transferred exclusively to the principal purchaser i.e. plaintiff's father. Accordingly vide conveyance deed dated 20.4.1960, Ex. P/7, the house at Jalandhar was transferred in favour of plaintiff's father. In this view of the matter, there was no occasion in the year 1985-86 for alleged exchange of 1/3rd share by defendant's father in the house at Jalandhar with half portion of the house at Karnal when 25 years prior to that, house at Jalandhar had already been transferred exclusively in favour of plaintiff's father. In view of the aforesaid situation, letter Annexure A/1 does not help the defendant. Firstly, this letter is per-se doubtful because it is addressed to defendant's father but the envelope Annexure A/2 is addressed to the defendant himself. Secondly, this letter does not speak of any exchange as pleaded by the defendant. On the other hand, according to this letter defendant's father had got adjusted amount of Rs 5800/- out of his claim amount towards price of the house at Jalandhar. Plaintiff's father stated in this letter that he had not given anything in lieu of the said amount of Rs 5800/- to the defendant's father. Consequently, the plaintiff's father stated in this letter that through the letter he was declaring the defendant's father to be owner in possession of the suit house at Karnal. This letter is un-dated but according to the defendant's version alleged exchange take place in the year 1985-86. However, there could be no such exchange in the year 1985-86 when plaintiff's father had already become exclusive owner of the house at Jalandhar in April, 1960. This letter also does not speak of any exchange of the suit house in lieu of alleged share of defendant's father's share in the Jalandhar house. On the other hand, this Regular Second Appeal No. 4120 of 2007 -6- letter simply states that in lieu of amount of Rs 5800/- which the defendant's father had got adjusted out of his claim amount in the year 1960, plaintiff's father was declaring defendant's father to be owner in possession of the suit house. It would clearly mean that the plaintiff's father was allegedly selling suit house to defendant's father for consideration of Rs 5800/- which had been paid by the defendant's father out of his claim in April, 1960. However, no such sale could take place without registered deed. Moreover, even if this letter is taken to be document of exchange, even then it required compulsory registration notwithstanding that oral exchange with exchange of possession could legally take place. However, when there is document of exchange then it requires compulsory registration. Learned counsel for the appellant next contended that alleged right of defendant's father as licencee was not inheritable and therefore, defendant has not become licencee in the suit house after the death of defendant's father and the plaintiff has to file suit for possession and not for mandatory injunction. Reliance in support of this contention has been placed on judgment in the case of Kaushlya Devi versus Bhola Nath and another, SLJ 87, 489 wherein it was held that licence is not inheritable right. However, learned counsel for the respondent relying on judgment of this Court in the case of Surjit Kaur versus Balwinder Kaur, 2005(3) PLR 846 contended that the defendant being close relative of plaintiff's father became licencee of the suit property after death of his father. I have carefully considered the rival contentions. Even if it is assumed for the sake of argument that the licence is not inheritable right even then defendant was permitted to live in suit house as licencee after the death of his father. Regular Second Appeal No. 4120 of 2007 -7- In this regard, the defendant gave writings Ex. P/4 and P/5 specifically affirming that he was occupying the suit house as licencee without payment of any rent. Consequently, the defendant was occupying the suit house as licencee irrespective of the fact whether he had inherited the licence from his father or not. On the other hand, judgment in the case of Surjit Kaur (supra) is also fully applicable to the facts in the case in hand whereas judgment in the case of Kaushlya Devi (supra) was on a different aspect as in that case licensor had transferred the property in question after grant of licence. There is concurrent finding by both the courts below against the defendant-appellant. The said finding being based on proper appreciation of evidence is not shown to be perverse or illegal and does not require interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. There is no merit in this appeal which is accordingly dismissed. July 08, 2010 'dalbir' ( L.N. Mittal ) Judge