Civil Appeal No. 168 of 2019 · High Court · 2025

Judgment

1. Heard Shri Amol Kumar Srivastava, learned counsel for the appellants and Shri Prabhat Kumar, learned counsel for the respondents No.1 to 3 on caveat.

2. This is the defendants' second appeal assailing the judgment and decree dated 13.07.2018 passed by the Civil Judge (Senior Division) Mohanlalganj, Lucknow in R.S. No.2140 of 2014, whereby a suit preferred by the plaintiffs-respondents seeking a decree of mandatory injunction was decreed. The defendants' first appeal under Section 96 CPC bearing Regular Civil Appeal No.168 of 2019 was also dismissed by the Additional District Judge, Court No.9, Lucknow by means of the judgment and decree dated 23.05.2025.

The submission of the learned counsel for the appellants is three fold. (a) It is stated that the property in question was given to the defendants as a gift by the predecessor-in-interest of the plaintiffs-respondents and the defendants have been in continuous possession of the same. This indicates that the property had vested with the defendants and a suit for mandatory injunction could not have been filed to evict the defendants. (b) The other ground raised by the learned counsel for the appellants is that 2 earlier a S.C.C. Suit was filed by the plaintiffs-respondents, which came to be dismissed in the year 1977 and once the said suit had been dismissed, filing another suit in the year 2014 was apparently time barred. (c) The next limb of the submission of the learned counsel for the appellants is that with passage of time even if at all the title of the plaintiffs-respondents, on the basis of possession (relying upon a gift said to have been made in the year 1963 by the predecessor-in-interest of the plaintiffs-respondents in favour of the father of the defendants), had been matured and title was perfected by adverse possession.

4. Elaborating the aforesaid submissions, learned counsel for the appellants has urged that since the plaintiffs-respondents are required to establish their own title and right on the strength of their own pleadings and evidence and the plaintiffs-respondents having failed to do so, a decree of mandatory injunction could not have been granted against the defendants.

5. It is further urged that in the written statement a categorical plea was raised regarding adverse possession and admittedly it was known to the plaintiffs-respondents that the defendants had set up their title in them as shall be evident from the judgment and decree of the S.C.C. Suit No.7 of 1977 which came to be dismissed by means of the judgment and decree dated 15.05.1978 and if at all the plaintiffs-respondents had to file any suit, it should have been within the period of limitation as that would start to run from 1978 and the suit apparently filed in the year 2014 was per se bad and barred by limitation.

6. It is also urged that it is the case of the plaintiffs-respondents that the 3 answering defendants/appellants herein was a licencee. This plea was not established in law and the findings returned by the trial Court while dealing with the Issue No.2 which has been affirmed by the first appellate Court is patently perverse and against the weight of the material on record. Consequently, the judgment and decree passed by the two Courts suffer from the vice of being arbitrary and the same is liable to be set aside after allowing this second appeal.

7. Per contra, Shri Prabhat Kumar, learned counsel for the plaintiffs- respondents while refuting the aforesaid submissions has pointed out that the right of the predecessor-in-interest of the plaintiffs was based on a title emerging from a sale-deed of the year 1958. It is further stated that earlier the predecessor-in-interest of the plaintiffs had filed a suit seeking eviction of the defendants, who were treated to be the tenants and in the S.C.C. Suit even though a finding may have been returned that the tenancy was not proved but that in itself is not going to confer any legal title on the defendants.

8. Once the said S.C.C. Suit had been dismissed, it was open to the plaintiffs to file a suit stating the defendants to be the licencee and this aspect has been considered by both the trial Court and the first appellate Court and as the plaintiffs were the owner of the property on the basis of the sale-deed and in absence of any cogent evidence led by the defendants to establish their right either on the basis of title or as a licencee and even alternatively on the basis of adverse possession, the trial Court as well as the first appellate Court were justified in decreeing the suit and the findings cannot be said to be perverse which may require any interference from this 4 Court in exercise of powers under Section 100 CPC.

9. The Court has heard learned counsel for the parties and also perused the material on record.

10. In order to put the controversy in a perspective, it will be appropriate to examine the background facts leading up to this second appeal.

11. The plaintiffs had filed a Regular Suit No.2140 of 2014 before the trial Court with specific pleadings that the plaintiffs were the owner of the property in question. It was also pleaded that the defendants were the licencee, whose licence was terminated by means of the notice dated

24.07.2014 and since the defendants did not comply with the terms of the notice, hence, the suit for mandatory injunction was filed.

12. The record further indicates that the appellants had filed their written statement wherein in Paragraphs 17 to 19 a plea was raised that the plaintiffs are not the owners inasmuch as reference was made to a S.C.C. Suit No.7 of 1977 which was initiated by the predecessor-in-interest of the plaintiffs-respondents alleging the defendants to be the tenants and the said S.C.C. Suit came to be dismissed. Since, the suit had been dismissed, hence, no right would be conferred on the plaintiffs-respondents to institute the instant regular suit.

13. It was also urged in the written statement that since the S.C.C. Suit was dismissed in the year 1978 and the defendants had been in possession prior thereto and the notice for termination was given in the year 2014, thus, in terms of Article 65 of the Indian Limitation Act, 1963, the suit was time barred and even otherwise the defendants had perfected their rights by 5 adverse possession.

14. Upon exchange of the pleadings, the trial Court framed five issues. However, for the present controversy, the Issues No.1 and 2 as framed by the trial Court are important. The first issue related to the fact as to whether the plaintiffs were the owner of House No.214/16 and the other issue was whether the defendants are in possession of the said property as licencee.

15. The parties led their respective evidences and thereafter the trial Court by means of the judgment and decree dated 13.07.2018 decided both the issues in favour of the plaintiffs-respondents. This judgment and decree dated 13.07.2018 was assailed by the defendants in first appeal bearing Civil Appeal No.168 of 2019, which has also been dismissed, by means of the judgment and decree dated 23.05.2025 and these two judgments and decree are under challenge before this Court.

16. Having considered the aforesaid submissions as well as noticing the facts and the material on record, the issue which is culled out from the respective submissions is that insofar as the title of the plaintiffs is concerned, that is not disputed. The right of the plaintiffs is based on a title deed of the year 1958 and there is no contrary evidence, in this regard. Hence, so far as the ownership of the property is concerned that vests with the plaintiffs.

17. In light of the defence raised by the defendants, the next question that arises as to what is the status of the defendants inasmuch as two divergent pleas regarding title has been advanced by the learned counsel for the appellants that is to say (i) the defendant/appellant claimed right on the 6 basis of a gift (which though not specifically pleaded in the written statement, but in the evidence it was sought to be projected that on the basis of a gift of the year 1963, the defendants had entered into the property). (ii) The other right is claimed on the basis of the possession as a concomitant, a plea of adverse possession has also been raised.

18. To examine this aspect of the matter, it would be seen that insofar as the claim of the defendants based on an alleged gift of the year 1963 is concerned. This emerges from the fact that in the earlier S.C.C. Suit, a plea was raised by the defendants claiming rights on the basis of a gift. However, no gift deed was presented before the Court nor there were any details except that it was suggested that the gift was oral in nature.

19. Be that as it may, in light of Sections 122 to 129 contained in the Transfer of Property Act, 1882 read with Section 17 of the Indian Registration Act, 1908, a gift could not have been made orally rather it was required to be made by a written instrument, duly registered as per Section 17 of the Indian Registration Act, 1908 and since admittedly no such document existed and with no specific pleadings in this regard, hence, the right of the plaintiffs, if claimed on the basis of the gift, pales into insignificance and was rightly ignored by the two Courts.

20. The other right which is raised by the learned counsel for the appellants is on the basis of the adverse possession. It is now well settled to be disputed that the plea of adverse possession if raised amounts to defeating the right of the lawful owner and for the said reason no special equities flow in favour of a person, who raises a plea of adverse possession. 7

21. Law has been equally consistent that in case if a plea of adverse possession is raised, then the pleadings have to be sufficiently clear regarding three facts (i) who is the actual owner (ii) when did a person claiming adverse possession enter into the property and he had a hostile intention which was known to the original/rightful owner and (iii) thereafter 12 years of uninterrupted possession holding out to the word that a person is in adverse possession has to be proved.

22. Unfortunately, in the instant case, the written statement is completely bereft of any detail regarding this plea, and it is for the said reason the trial Court also did not frame any issue in this regard. Neither the defendants made any attempt even before the first appellate Court to move any application to urge that the issue of adverse possession may be framed. In this regard, the trial Court as well as the first appellate Court did not enter into the arena of the aforesaid plea and even the attempt made by the learned counsel for the appellants to tempt to this Court into entering the said foray of adverse possession does not impress this Court.

23. However, what is relevant to notice is during the pendency of the first appeal upon an application moved, the first appellate Court had framed two additional issues. One related to res judicata and the other was relating to the limitation of the suit. In this context, the first appellate Court in exercise of powers under Order XLI Rule 25 CPC had remitted the matter to the trial Court to take evidence on the additional issues and remit the findings to the first appellate Court.

24. In furtherance thereof both the additional issues as referred to hereinabove were decided. Suffice to state that insofar as the plea of res 8 judicata is concerned that was on the basis of the findings and a decision rendered in S.C.C. Suit No.7 of 1977. A S.C.C. Suit is primarily a summary proceedings and any findings returned therein does not operate as a res judicata insofar as the regular proceedings are concerned. Thus, to the aforesaid extent, the findings returned by the first appellate Court on the basis of plea of res judicata has no legs to stand.

25. The other issue relating to the limitation is concerned, it would be seen that limitation has to be seen in context with the pleadings and the evidence of the respective parties. In the instant case, a specific plea was raised that the defendants were the licencee and their licence was terminated on 14.07.2014, whereas the suit came to be filed soon thereafter in the year 2014 itself.

26. The crux of submissions relating to the plea of limitation is based on the fact that once the S.C.C. Suit filed by the predecessor-in-interest of the plaintiffs was dismissed in the year 1978, the period of limitation would commence from that very date and since than more than 12 years have lapsed and no suit was filed, a plea for mandatory injunction could not have been raised in the suit filed in the year 2014 and the suit was patently time barred.

27. This aspect of the matter relating to the limitation can be seen from another angle. It would have been a different case if any specific title would have been claimed by the defendants. As already noticed above, the plea arising out of the S.C.C. Suit which was based on the alleged gift by the predecessor-in-interest of the plaintiffs in favour of the defendants relating to the year 1963 was turned down in absence of any evidence. Once the 9 defendants were not having any papers relating to their title then the necessary consequence is that the possession of the defendants in law can either be that a trespasser or as a licencee or a tenant. The plea of tenancy had already been turned down by the S.C.C. Court, hence, the only aspect which could be seen was either the status of the defendants as a licencee or the trespasser.

28. It is not the case of the defendants that they were the trespassers nor it is the case of the plaintiffs. Thus, this plea is also negatived. Now the only surviving plea relating to status of the defendants can be only of a licencee and there can be no other status of the defendants.

29. That being so, the plaintiffs had a right to terminate the licence which was done. Thereafter, the suit was instituted and both the trial Court as well as the first appellate Court have taken note of the relevant evidence and has returned findings of fact, which cannot be said to be perverse.

30. Until and unless it can, prima-facie, be shown that the findings returned by the trial Court as well as the first appellate Court suffer from any perversity that is to say that it is based on certain evidence which was inadmissible or there was no evidence at all or the findings are based on such a view which no prudent person can arrive at.

31. In view of the aforesaid, this Court is satisfied that the findings returned by the trial Court as well as the first appellate Court do not suffer from any perversity.

32. Accordingly, the instant second appeal sans merits and it is accordingly dismissed at the admission stage as no substantial question of 10 law arises. The judgment and decree dated 13.07.2018 passed by the Civil Judge (Senior Division) Mohanlalganj, Lucknow in R.S. No.2140 of 2014 and the judgment and decree dated 23.05.2025 passed by the Additional District Judge, Court No.9, Lucknow in Regular Civil Appeal No.168 of 2019 are affirmed. Order Date :- 14.08.2025 Rakesh/- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

The submission of the learned counsel for the appellants is three fold. (a) It is stated that the property in question was given to the defendants as a gift by the predecessor-in-interest of the plaintiffs-respondents and the defendants have been in continuous possession of the same. This indicates that the property had vested with the defendants and a suit for mandatory injunction could not have been filed to evict the defendants. (b) The other ground raised by the learned counsel for the appellants is that 2 earlier a S.C.C. Suit was filed by the plaintiffs-respondents, which came to be dismissed in the year 1977 and once the said suit had been dismissed, filing another suit in the year 2014 was apparently time barred. (c) The next limb of the submission of the learned counsel for the appellants is that with passage of time even if at all the title of the plaintiffs-respondents, on the basis of possession (relying upon a gift said to have been made in the year 1963 by the predecessor-in-interest of the plaintiffs-respondents in favour of the father of the defendants), had been matured and title was perfected by adverse possession.

4. Elaborating the aforesaid submissions, learned counsel for the appellants has urged that since the plaintiffs-respondents are required to establish their own title and right on the strength of their own pleadings and evidence and the plaintiffs-respondents having failed to do so, a decree of mandatory injunction could not have been granted against the defendants.

5. It is further urged that in the written statement a categorical plea was raised regarding adverse possession and admittedly it was known to the plaintiffs-respondents that the defendants had set up their title in them as shall be evident from the judgment and decree of the S.C.C. Suit No.7 of 1977 which came to be dismissed by means of the judgment and decree dated 15.05.1978 and if at all the plaintiffs-respondents had to file any suit, it should have been within the period of limitation as that would start to run from 1978 and the suit apparently filed in the year 2014 was per se bad and barred by limitation.

6. It is also urged that it is the case of the plaintiffs-respondents that the 3 answering defendants/appellants herein was a licencee. This plea was not established in law and the findings returned by the trial Court while dealing with the Issue No.2 which has been affirmed by the first appellate Court is patently perverse and against the weight of the material on record. Consequently, the judgment and decree passed by the two Courts suffer from the vice of being arbitrary and the same is liable to be set aside after allowing this second appeal.

7. Per contra, Shri Prabhat Kumar, learned counsel for the plaintiffs- respondents while refuting the aforesaid submissions has pointed out that the right of the predecessor-in-interest of the plaintiffs was based on a title emerging from a sale-deed of the year 1958. It is further stated that earlier the predecessor-in-interest of the plaintiffs had filed a suit seeking eviction of the defendants, who were treated to be the tenants and in the S.C.C. Suit even though a finding may have been returned that the tenancy was not proved but that in itself is not going to confer any legal title on the defendants.

8. Once the said S.C.C. Suit had been dismissed, it was open to the plaintiffs to file a suit stating the defendants to be the licencee and this aspect has been considered by both the trial Court and the first appellate Court and as the plaintiffs were the owner of the property on the basis of the sale-deed and in absence of any cogent evidence led by the defendants to establish their right either on the basis of title or as a licencee and even alternatively on the basis of adverse possession, the trial Court as well as the first appellate Court were justified in decreeing the suit and the findings cannot be said to be perverse which may require any interference from this 4 Court in exercise of powers under Section 100 CPC.

9. The Court has heard learned counsel for the parties and also perused the material on record.

10. In order to put the controversy in a perspective, it will be appropriate to examine the background facts leading up to this second appeal.

11. The plaintiffs had filed a Regular Suit No.2140 of 2014 before the trial Court with specific pleadings that the plaintiffs were the owner of the property in question. It was also pleaded that the defendants were the licencee, whose licence was terminated by means of the notice dated

24.07.2014 and since the defendants did not comply with the terms of the notice, hence, the suit for mandatory injunction was filed.

12. The record further indicates that the appellants had filed their written statement wherein in Paragraphs 17 to 19 a plea was raised that the plaintiffs are not the owners inasmuch as reference was made to a S.C.C. Suit No.7 of 1977 which was initiated by the predecessor-in-interest of the plaintiffs-respondents alleging the defendants to be the tenants and the said S.C.C. Suit came to be dismissed. Since, the suit had been dismissed, hence, no right would be conferred on the plaintiffs-respondents to institute the instant regular suit.

13. It was also urged in the written statement that since the S.C.C. Suit was dismissed in the year 1978 and the defendants had been in possession prior thereto and the notice for termination was given in the year 2014, thus, in terms of Article 65 of the Indian Limitation Act, 1963, the suit was time barred and even otherwise the defendants had perfected their rights by 5 adverse possession.

14. Upon exchange of the pleadings, the trial Court framed five issues. However, for the present controversy, the Issues No.1 and 2 as framed by the trial Court are important. The first issue related to the fact as to whether the plaintiffs were the owner of House No.214/16 and the other issue was whether the defendants are in possession of the said property as licencee.

15. The parties led their respective evidences and thereafter the trial Court by means of the judgment and decree dated 13.07.2018 decided both the issues in favour of the plaintiffs-respondents. This judgment and decree dated 13.07.2018 was assailed by the defendants in first appeal bearing Civil Appeal No.168 of 2019, which has also been dismissed, by means of the judgment and decree dated 23.05.2025 and these two judgments and decree are under challenge before this Court.

16. Having considered the aforesaid submissions as well as noticing the facts and the material on record, the issue which is culled out from the respective submissions is that insofar as the title of the plaintiffs is concerned, that is not disputed. The right of the plaintiffs is based on a title deed of the year 1958 and there is no contrary evidence, in this regard. Hence, so far as the ownership of the property is concerned that vests with the plaintiffs.

17. In light of the defence raised by the defendants, the next question that arises as to what is the status of the defendants inasmuch as two divergent pleas regarding title has been advanced by the learned counsel for the appellants that is to say (i) the defendant/appellant claimed right on the 6 basis of a gift (which though not specifically pleaded in the written statement, but in the evidence it was sought to be projected that on the basis of a gift of the year 1963, the defendants had entered into the property). (ii) The other right is claimed on the basis of the possession as a concomitant, a plea of adverse possession has also been raised.

18. To examine this aspect of the matter, it would be seen that insofar as the claim of the defendants based on an alleged gift of the year 1963 is concerned. This emerges from the fact that in the earlier S.C.C. Suit, a plea was raised by the defendants claiming rights on the basis of a gift. However, no gift deed was presented before the Court nor there were any details except that it was suggested that the gift was oral in nature.

19. Be that as it may, in light of Sections 122 to 129 contained in the Transfer of Property Act, 1882 read with Section 17 of the Indian Registration Act, 1908, a gift could not have been made orally rather it was required to be made by a written instrument, duly registered as per Section 17 of the Indian Registration Act, 1908 and since admittedly no such document existed and with no specific pleadings in this regard, hence, the right of the plaintiffs, if claimed on the basis of the gift, pales into insignificance and was rightly ignored by the two Courts.

20. The other right which is raised by the learned counsel for the appellants is on the basis of the adverse possession. It is now well settled to be disputed that the plea of adverse possession if raised amounts to defeating the right of the lawful owner and for the said reason no special equities flow in favour of a person, who raises a plea of adverse possession. 7

21. Law has been equally consistent that in case if a plea of adverse possession is raised, then the pleadings have to be sufficiently clear regarding three facts (i) who is the actual owner (ii) when did a person claiming adverse possession enter into the property and he had a hostile intention which was known to the original/rightful owner and (iii) thereafter 12 years of uninterrupted possession holding out to the word that a person is in adverse possession has to be proved.

22. Unfortunately, in the instant case, the written statement is completely bereft of any detail regarding this plea, and it is for the said reason the trial Court also did not frame any issue in this regard. Neither the defendants made any attempt even before the first appellate Court to move any application to urge that the issue of adverse possession may be framed. In this regard, the trial Court as well as the first appellate Court did not enter into the arena of the aforesaid plea and even the attempt made by the learned counsel for the appellants to tempt to this Court into entering the said foray of adverse possession does not impress this Court.

23. However, what is relevant to notice is during the pendency of the first appeal upon an application moved, the first appellate Court had framed two additional issues. One related to res judicata and the other was relating to the limitation of the suit. In this context, the first appellate Court in exercise of powers under Order XLI Rule 25 CPC had remitted the matter to the trial Court to take evidence on the additional issues and remit the findings to the first appellate Court.

24. In furtherance thereof both the additional issues as referred to hereinabove were decided. Suffice to state that insofar as the plea of res 8 judicata is concerned that was on the basis of the findings and a decision rendered in S.C.C. Suit No.7 of 1977. A S.C.C. Suit is primarily a summary proceedings and any findings returned therein does not operate as a res judicata insofar as the regular proceedings are concerned. Thus, to the aforesaid extent, the findings returned by the first appellate Court on the basis of plea of res judicata has no legs to stand.

25. The other issue relating to the limitation is concerned, it would be seen that limitation has to be seen in context with the pleadings and the evidence of the respective parties. In the instant case, a specific plea was raised that the defendants were the licencee and their licence was terminated on 14.07.2014, whereas the suit came to be filed soon thereafter in the year 2014 itself.

26. The crux of submissions relating to the plea of limitation is based on the fact that once the S.C.C. Suit filed by the predecessor-in-interest of the plaintiffs was dismissed in the year 1978, the period of limitation would commence from that very date and since than more than 12 years have lapsed and no suit was filed, a plea for mandatory injunction could not have been raised in the suit filed in the year 2014 and the suit was patently time barred.

27. This aspect of the matter relating to the limitation can be seen from another angle. It would have been a different case if any specific title would have been claimed by the defendants. As already noticed above, the plea arising out of the S.C.C. Suit which was based on the alleged gift by the predecessor-in-interest of the plaintiffs in favour of the defendants relating to the year 1963 was turned down in absence of any evidence. Once the 9 defendants were not having any papers relating to their title then the necessary consequence is that the possession of the defendants in law can either be that a trespasser or as a licencee or a tenant. The plea of tenancy had already been turned down by the S.C.C. Court, hence, the only aspect which could be seen was either the status of the defendants as a licencee or the trespasser.

28. It is not the case of the defendants that they were the trespassers nor it is the case of the plaintiffs. Thus, this plea is also negatived. Now the only surviving plea relating to status of the defendants can be only of a licencee and there can be no other status of the defendants.

29. That being so, the plaintiffs had a right to terminate the licence which was done. Thereafter, the suit was instituted and both the trial Court as well as the first appellate Court have taken note of the relevant evidence and has returned findings of fact, which cannot be said to be perverse.

30. Until and unless it can, prima-facie, be shown that the findings returned by the trial Court as well as the first appellate Court suffer from any perversity that is to say that it is based on certain evidence which was inadmissible or there was no evidence at all or the findings are based on such a view which no prudent person can arrive at.

31. In view of the aforesaid, this Court is satisfied that the findings returned by the trial Court as well as the first appellate Court do not suffer from any perversity.

32. Accordingly, the instant second appeal sans merits and it is accordingly dismissed at the admission stage as no substantial question of 10 law arises. The judgment and decree dated 13.07.2018 passed by the Civil Judge (Senior Division) Mohanlalganj, Lucknow in R.S. No.2140 of 2014 and the judgment and decree dated 23.05.2025 passed by the Additional District Judge, Court No.9, Lucknow in Regular Civil Appeal No.168 of 2019 are affirmed. Order Date :- 14.08.2025 Rakesh/- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench