Chander Bhusan Barowalia, J.
1.By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned District Judge, Sirmaur District at Nahan,
(H.P), in Civil Appeal No.12-CA/13 of 2014, dated 28.5.2014, vide which, the learned lower Appellate Court, has set aside the judgment and decree
passed by the learned Civil Judge (Junior Division), Nahan, District Sirmaur, in Civil Suit No.45/1 of 2010, dated 20.10.2012.
2. Material facts necessary for adjudication of this Regular Second Appeal are that respondents/plaintiffs (hereinafter referred to as ‘plaintiffs’)
maintained a suit for declaration against the appellant/defendant (hereinafter referred to as ‘defendant’) alleging therein that plaintiffs are co-
owners of the land bearing Khata/Khatauni No.334/463 and 464, Khasra No.2609, measuring 142-15 square meters and 2293 to 2596, kitas 4,
measuring 12-56 square meters, total 154.71 square meters, situated in Mohal Haripur, Nahan, District Sirmaur, H.P. (hereinafter referred to as
‘suit land’) Plaintiffs had built a small room, bathroom, latrine and courtyard in the land bearing No.2593, 2594, 2595 and 2596, whereas Khasra
No.2609 remained a vacant land. The suit land was lying unused and since, defendant No.1 (mother-in-law of defendant No.2) had been living with
her family adjoining to the suit property and was in need of the same for better use and enjoyment of her own property, she approached plaintiff No.2
to allow her to occupy the suit property, as a licensee in the year 1985-86. The family of plaintiff No.2 had good relations with defendant No.1 and her
family, plaintiff No.2 accepted the request of defendant No.1 and permitted her to occupy the suit property, as a licensee without any fee. In the year,
2010, the defendant made an attempt to change the nature of suit property by dismantling the same and making additions or alterations without consent
of the plaintiffs taking undue advantage of absence of plaintiff No.2, who was in Goa in Military service. When, plaintiff No.2 came to know about the
illegal acts committed by defendants, he came to Nahan and requested the defendants to desist from causing any mischief with respect to the suit
property and also directed to handover its vacant possession to him.
3. Defendants contested the suit and filed joint written statement whereby preliminary objections qua, non-maintainability, non-joinder of necessary
parties, suppression of material facts, no proper valuation and no cause of action were taken. On merits, defendants pleaded that Municipal Council,
Nahan, had granted patta No.3/70, dated 11.8.1970 of land denoted by Khasra No.2162/3, measuring 144 square yards in Mohalla Hathi-Ki-Kabar,
Nahan, adjacent to the suit land and charged `1152/-. Thereafter, defendants raised construction over Khasra No.2162/3, adjacent to Khasra No.2597,
measuring 16.57 square meters. The defendants purchased Khasra No.2597 metres through registered sale deed and were owner-in-possession of
Khasra No.2597 and 2162/3 measuring 16.57 square metres and 100.72 square metres, respectively. The construction was raised on the suit land
owned by them.
4. From the pleadings of parties, the learned trial Court framed following issues :
“1. Whether defendants are licensees, as alleged? OPP.
2. If Issue No.1 is proved in affirmative, whether plaintiff is entitled to mandatory injunction against them, as prayed for? OPP.
3. Whether the suit of the plaintiffs is not maintainable? OPD.
4. Whether the suit of the plaintiffs is bad for non-joinder of necessary parties? OPD.
5. Whether suit of the plaintiffs is not properly valued for the purposes of Court fee and jurisdiction and its effect? OPD.
6. Relief.â€
5. The learned trial Court after deciding Issues No.1 to 5 in negative, dismissed the suit.
6. Feeling aggrieved thereby the plaintiff maintained first appeal before the learned District Judge, Sirmaur District at Nahan, H.P, assailing the
findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective.
The learned lower Appellate Court set aside the findings of the learned Court below. Now, the appellant has maintained the present Regular Second
Appeal, which was admitted for hearing on 7.10.2015 on the following substantial question of law: “Whether on account of misreading,
misappreciation and misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment and decree
under challenge in the main appeal being perverse and vitiated is not legally sustainable?â€
7. Learned counsel appearing on behalf of the appellant has argued that the learned Trial Court passed the judgment and decree is without
appreciating the facts, which have come on record to its true perspective and so, the present appeal is required to be allowed. He has further argued
that the learned Court below has failed to take into consideration that the land was with the appellant, as licensee and so, the decree could not have
been passed. In support of his arguments, he has relied upon the judgment, as cited by Hon’ble Apex Court in Civil Appeal No.2585 of 1980 titled
Shri Tulsi vs. Smt. Paro (dead) by Lr. Smt. Ghunno Devi, on this aspect.
8. On the other hand, learned counsel appearing on behalf of respondents No.1 and 2 has vehemently argued that the judgment and decree passed by
the learned lower Appellate Court is just and reasoned, after appreciating the facts, which have come on record to its true perspective and calls for no
interference.
9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail.
10. In order to prove its case, plaintiff Mohd. Ahmed, PW-1, tendered copy of jamabandi Ex.PW1/B, demarcation report Ex.PW1/C, copy of Musavi
Ex.PW1/D, legal notice Ex.PW1/E and postal receipt Ex.PW1/F. He has deposed that the defendants were in illegal possession of land measuring
12.96 square metres owned by the plaintiffs. Defendant, Amarjeet Kaur (DW-1), deposed that the defendants were owners of the land comprised in
Khata/Khatauni No.268/509, Khasra No.2163/3, Kittas 8, total measuring 96.07 square metres, situated in Mauza Haripur, Nahan and land comprised
in Khasra No.268/510 measuring 4.65 square metres. She has further deposed that she is owner-in-possession of land comprised in Khata/Khatauni
No.417/655, measuring 16.57 square metres, situated in Mauza Haripur, Nahan and had raised construction. The plaintiffs had raised objection at the
time of construction of outer wall of the defendant. She has denied that the plaintiffs never granted the land to them as licensee.
11. From the above, it is clear that the license is denied by the defendants. It is evident from the document that defendant No.1 is recorded as owner-
in-possession of land comprised in Khasra No.2162/3 and 2597. Further, the name of defendant No.1 mentioned in the column of possession though
plaintiffs and their sister are owners of the suit property. The plaintiffs have claimed that the suit land was given to defendant No.1, in the year 1985-
86, in the capacity of licensee, but the same fact has been totally denied by defendant No.1. However, PW-1 asserted that defendant No.1 is in
possession of the land in the capacity of licensee. The demarcation report has also been proved on record by PW-1 showing that the suit land is in
possession of defendant No.1 on the spot, but since the said demarcation report has not been proved in accordance with law, the same cannot be
relied upon. Amarjeet Kaur (DW-1) admitted in her cross-examination that area measuring 12.56 square meters was in their possession, but she
asserted that the same had been purchased by defendant No.1 from the plaintiffs in lieu of consideration amount of `40,000/-. However, the said fact
is not true, rather, it appears that DW-1, has made a statement in respect of Khasra No.2597 allotted to defendant No.1, vide sale deed Ex.DW1/B in
lieu of consideration amount of `40,000/- paid by vendee defendant No.1. The plaintiff has failed to prove by leading cogent and convincing evidence
that he has given the suit land to the defendants as licensee. The matter in controversy between the parties is whether suit property was given to
defendant No.1-Mahinder Kaur by plaintiff No.2-Salim Ahmed in the year 1985-86, who occupied the same in the capacity of licensee. The license
was granted in favour of defendant No.1 on account of her good relations with the plaintiffs. On the other hand, defendants have denied the grant of
license and taken the plea that they have covered their entire land by raising construction and plaintiffs have also covered their entire land. The
plaintiff has failed to establish that the defendants are licensee.
12. Applying the judgment (supra) in Shri Tulsi vs. Smt. Paro (dead) by Lr. Smt. Ghunno Devi, wherein it has been held that the suit is not
maintainable and the judgment and decree passed by the learned lower Appellate Court is not in accordance with law.
13. Hon’ble Apex Court in case titled Indira vs. Arumugam and another, AIR 1999, Supreme Court 1549, wherein it has been held that as the
defendants have failed to prove adverse possession, therefore, no interference is called for, as the facts of the present case is totally different, as cited
by the learned counsel appearing on behalf of the respondents, as the plaintiff has failed to establish that he is owner of the suit land and the defendant
was licensee, so the aforesaid judgment (supra) is not applicable to the facts and circumstances of the present case.
14. Similarly, in case titled Sant Lal Jain vs. Avtar Singh, AIR 1985 Supreme Court 857, wherein it has been held in para-7 of the judgment, which is
as under : “7. In the present case it has not been shown to us that the appellant had come to the court with the suit for mandatory injunction after
any considerable delay which will disentitled him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt
should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and
expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff
in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should
not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.†The aforesaid judgment is also not
applicable to the facts of the present case, as the plaintiff has failed to prove the licence.
15. Learned counsel appearing on behalf of the respondent has also relied upon the judgment, as cited by this Hon’ble High Court in RSA No.22
of 2015, titled Bansi Lal Thakur vs. Ram Saran Thakur, decided on 18th June, 2015, wherein it has been held in para-10 of the judgment, as under :
“10. Their lordships of the Hon’ble Supreme Court in the case of Shanti Prasad Devi and another vrs. Shankar Mahto and others, reported in
AIR 2005 SC 2905 have held that mere acceptance of rent for the subsequent months in which the lessee continued to occupy the leased premises
cannot be said to be conduct signifying assent to the continuance of the lessee even after expiry of lease period. Their lordships have held as under:
“17. We fully agree with the High Court and the first appellate court below that on expiry of period of lease, mere acceptance of rent for the
subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying 'assent' to the continuance of
the lessee even after expiry of lease period. To the legal notice seeking renewal of lease, the lessor gave no reply. The agreement of renewal
contained in clause (7) read with clause (9) required fulfillment of two conditions; first the exercise of option of renewal by the lessee before the
expiry of original period of lease and second, fixation of terms and conditions for the renewed period of lease by mutual consent and in absence
thereof through the mediation of local Mukhia or Panchas of the village. The aforesaid renewal clauses (7) & (9) in the agreement of lease clearly fell
within the expression agreement to the contrary' used in Section 116 of the Transfer of Property Act Under the aforesaid clauses option to seek
renewal was to be exercised before expiry of the lease and on specified conditions.
18. The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was
required to be obtained by following a specified procedure i.e. on mutually agreed terms or in the alternative through the mediation of Mukhias and
Panchas. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was 'an agreement
to the contrary' within the meaning of Section 116 of the Transfer of Property Act. In the face of specific clauses (7) & (9) for seeking renewal there
could be no implied renewal by 'holding over' on mere acceptance of the rent offered by the lessee . In the instant case, option of renewal was
exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee
continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on
the leased premises. The lessee, in the above circumstances, could not claim that he was 'holding over' as a lessee within the meaning of Section 116
of the Transfer of Property Act.
22. As the leased premises were in use for running a petrol pump, we grant the appellant a reasonable period of two months from the date of this
order to deliver possession of the leased premises after removing her installations and other movables.†Applying the ratio of law to the facts and
circumstances of the present case, the said judgment is also not applicable to the facts of the present case, as no license has been proved on record.
16. The net result of the aforesaid discussion is that the learned lower Appellate Court has failed to appreciate the evidence and facts, which have
come on record to its true perspective and so, substantial question of law, as framed by this Court is answered holding that the learned lower
Appellate Court has not appreciated the pleadings, oral as well as documentary evidence and the findings are perverse to its true perspective and also
misreading, misappreciated and misconstrued the evidence available on record and so, the findings recorded by the learned lower Appellate Court is
required to be set aside.
17. In view of the above discussion, the appeal of the appellant is allowed and the impugned judgment and decree passed by the learned lower
Appellate Court is set aside and the judgment and decree passed by the learned Court below is affirmed. However, in the peculiar facts and
circumstances of this case, parties are left to bear their own cost (s). Pending application (s), if any, shall also stands disposed of.
