Hemant Gupta, J.@mdashThis order shall dispose of RSA Nos. 3269 of 2003, 3270 of 2003 and 3276 of 2003 in respect of same property i.e. house No. 369/8, Central Town, Jalandhar.
2. RSA No. 3269 of 2003 arises out of suit for mandatory injunction filed by the respondents claiming possession from the appellant as a licencee; RSA No. 3270 of 2003 arises out of suit for permanent injunction filed by the respondents herein, restraining the defendant-appellants from forcibly and illegally occupying the portion shown red in the site plan; and RSA No. 3276 of 2003 arises out of a suit filed by the appellant for declaration that he is in possession of double storey House No. 369/8, Central Town, Jalandhar as a owner. This suit for declaration filed by the appellant is earliest in point of time, therefore, the facts are taken from the said suit.
3. The plaintiff-appellant has claimed a decree of declaration to the effect that he is owner in possession of the house in dispute. It is alleged that the land in dispute was owned by defendant No. 3. In the year 1963, the plaintiff raised some construction over it by spending funds from his own pocket, when he was posted at Delhi. He authorized one of his relation Mehnga Singh to carry out construction for which the funds flowed from the pocket of the plaintiff. Mehnga Singh raised skelton construction in the year 1963. Mehnga Singh applied for electricity meter in his own name. In the year 1965, the plaintiff moved bag and baggage to Jalandhar. Defendant No. 3 asserted his title over the suit land under-neath the suit property as well as over the moderate construction over it in the year 1965. The plaintiff did not yield to the assertion of title by defendant No. 3. However, the plaintiff asserts that he allowed defendant No. 3 to reside in the suit property as a licencee for few months. In the year 1966, the plaintiff terminated the licenss of defendant No. 3 and ousted him completely from the suit property and at. that time, a very conservative construction was in existence over the plot. After ouster of defendant No. 3, the plaintiff asserted his hostile title over the suit property. In the year 1967, he raised extensive construction over the suit property and converted into a palatial double storey building.
4. The plaintiff thereafter carried out renovation from time to time as well. The plaintiff asserts that he has let out the portion of property from time to time and portion shown in green colour was let out to defendant No. 2 in the year 1990. The plaintiff asserts himself to be in adverse possession to the knowledge of defendant No. 3 openly, peaceful and continuously for the period of more than 12 years and, thus, claimed ownership over the suit property.
5. Defendant No. 2 in the present suit, is the plaintiff in the other two suits. It was asserted that plaintiff is not in possession of the entire property, but is in possession of only two rooms, store and kitchen on the first floor and that his possession is that of licencee under the owner. It was asserted that the house was owned by Hardeep Singh S/o Puran Singh, who sold the same to defendant No. 2 and his wife vide four registered sale deeds dated 25.1.1995. Hardeep Singh delivered the possession of the same to de fendant No. 2 and his wife except two rooms, store and kitchen on the first floor. The plaintiff is a close near relation of previous owner, being maternal uncle. It was defendant No. 3, who permitted the plaintiff to use the said portion i.e. two rooms, store and kitchen as a licencee and to look after the same, as the owner was residing abroad. It was asserted that since the licence/permission granted to the defendant, stands revoked, the plaintiff has no right or interest in the property. It was asserted that defendant No. 2 has already filed a suit for mandatory injunction to claim the vacant possession of the property. It was denied that it was plaintiff, who raised construction in the year 1963 or that the plaintiff authorized Mehnga Singh to raise construction. It was asserted that the entire amount for construction was spent by Hardeep Singh. The assertion of the plaintiff that defendant No. 2 was a tenant of the plaintiff was denied. It was asserted that Subodh Kumar son of defendant No. 2 was the tenant under defendant No. 3.
6. In Civil Suit No. 5 of 1996 i.e. the suit for declaration filed by the appellants, it was stated to the following effect;
2. That the land underneath the house was owned by defendant No. 3. The plaintiff in the year 1963 raised some construction over it by spending funds from his own pocket. As in the year 1963 the plaintiff was posted at Delhi where he was working as Engineer with Ansel Construction Company (formerly known as C. Loyal & Co.) 8-6/6, WEA Karol Bagh, Delhi, therefore, he authorised one of his relations Sh. Mehnga Singh to carry out the construction for which funds flowed from the pocket of the plaintiff. The said Mehnga Singh entrusted with the said task raised a skeletal construction in the year 1963. The plaintiff moved bag and baggage to Jalandhar in the year 1965 where since the period of his relocation, he is enlisted as a contractor in Military Engineering Service, Jalandhar Cantt. As initially construction was raised under the aegis of Mehnga Singh, therefore, Mehnga Singh applied for the electricity meter in his own name.
3. That the defendant No. 3 in the year 1965 tried to assert his title over the land underneath the suit property as well as the moderate construction over it. The plaintiff did not yield to assertion of title by defendant No. 3. However, he allowed the defendant No. 3 to reside in suit property as a licencee for a few months.
4. That the plaintiff in the year 1966 terminated the licence of defendant No. 3 and ousted him completely from the suit property which at that time had. a very conservative construction over it.
5. That after the ouster of defendant No. 3, the plaintiff asserted his hostile title over the suit property. He in the year 1967 raised extensive construction over the suit property and converted it into a palatial double storey building within the full view and sight of defendant No. 3. The plaintiff after that carried out renovations from time to time. He applied for telephone connection in the suit property which stands in the name of Eastern Construction Company headed solely by S. Sarup Singh, plaintiff.
7. The learned trial Court dismissed the suit for declaration filed by the appellant and decreed the other suits filed by the respondents herein. It was held that the origin and possession of the plaintiff over the suit house was with the permission of the original owner in the year 1963. The plaintiff claims adverse possession since the year 1966. It was held that if a person is in permissive possession, he is bound to deliver the possession and thereafter he could claim adverse possession. Permissive possession can never be adverse for howsoever long period, the person may be in possession. It was further found that neither it has been alleged nor proved by the plaintiff that he ever delivered or surrendered possession to defendant No. 3 and thereafter occupied the disputed property claiming his adverse possession. It was also found that the plaintiff was occupying a portion of suit property as licencee under the original owner and since the original owner has transferred title in favour of defendant No. 2 and his wife, therefore, the said vendees are entitled to possession of the entire house, even from the plaintiff after revocation of the licence. With the said findings, the suit filed by the appellant was dismissed.. ''
8. The learned first Appellate Court decided all the three appeals arising from three suits together and dismissed the same. The learned first Appellate Court has examined the respective contentions of the parties and returned a finding that the possession of the appellant was permissive in the beginning and he could not set up adverse possession in himself without surrender of possession to the true owner. It was also found that the appellant has contradicted himself in respect of the timing of construction, which makes him unreliable witness. The Court has taken into consideration letter Ex.PX, which shows concealment of material facts from the Court. The appellant has admitted that he use to reside in Delhi in the year 1963 and was in Delhi in 1964 as well. The appellant has not led any cogent evidence in respect of raising of construction. The appellant could not depose that who had supplied the water supply or whether he got the map approved from the Municipal Corporation. The Court concluded that at the most the possession of the appellant is permissive possession and cannot be considered as adverse.
9. Learned Counsel for the appellants has vehemently argued the house in dispute was constructed by the appellant Sarup Singh on a land, which is owned by defendant No. 3. Once the construction has been raised by the appellant, therefore, even if it is without any title or interest, the appellant cannot be ordered to be dispossessed therefrom without paying compensation for the superstructure. Reliance is placed upon a judgment of this Court in Food Corporation of India and Ors. v. Dayal Singh 1991(2) R.L.R. 10. It is also argued that suit for mandatory injunction is not maintainable as Hardeep Singh is not proved to be owner of the superstructure, in which the appellant is in possession.
10. I have heard learned Counsel for the parties at some length, but do not find any merit in the present appeals.
11. The appellant has claimed declaration setting up adverse possession in himself. It is admitted by him that the land is owned by Hardeep Singh, who is none else, but his sister''s son. It is also admitted that he initially entered into possession of property in dispute on the express permission of the owner. The plaintiff was asserted that he has raised some construction in the year 1963, but extensive construction was raised in the year 1967. However, while appearing as a witness, he has deposed that the construction was raised from the year 1963 to 1965. Thus, he has contradicted himself with his pleadings, which show untruthfulness of the statement of the plaintiff.
12. The relationship of parties and material contradictions in the pleadings and in the evidence are sufficient to infer that the appellant was a licencee. There is no cogent and reliable evidence led by the appellant to prove skelton or extensive construction raised in the year 1963 or 1967. On the other hand, letter Ex.PX written by Harjinder Singh to the appellant on 27.5.1988, shows cordial relations between the appellant and defendant No. 1 as also defendant No. 3. In fact, defendant No. 1 in the aforesaid letter has communicated to the appellant that he has discussed the issue regarding construction of toilet, bathroom, and kitchen downstairs at the house in dispute with Kuldeep and Hardeep-de-fendant No. 3. It was communicated to the appellant that it is agreed that the appellant should get an. Architect to draw out the plans and send them to him with the estimates. It is also communicated that expenditure of any kind is concerned, the appellant should let them know and they will arrange for the finance. There is categorical direction that the rent money is not to be touched. The appellant has admitted the receipt of the said letter. However, he has stated that the original letter has been lost by his Lawyer in Delhi. The said letter shows that the expenses of construction of toilet, bathroom and kitchen was to be met by defendant Nos. 1 and 3. There was clear direction that the rent money is not to be touched. It only means that the appellant was always working on behalf of his nephews defendant Nos. 1 and 3. The plea of adverse possession has been introduced just to defeat the rights of purchaser from Hardeep Singh, which is not only false, but a dishonest plea.
13. The argument that the appellant is entitled to compensation for the superstructure raised is again misconceived. As a matter of fact, the finding recorded by both the Courts below is against the appellant in respect of raising of construction. Letter Ex.PX also supports the finding recorded that the construction was being raised at the direction and at the instance of true owners. Therefore, the argument that the appellant is entitled to compensation of the superstructure is misconceived. Even otherwise, the judgment referred to by the learned Counsel for the appellant is not helpful for the proposition argued. In the aforesaid case, the learned first Appellate Court negated the plea of adverse possession raised by the defendant. The decree for possession was not granted in view of the principles of acquiescence. In the present case, there is no plea of acquiescence raised by the appellant nor the appellant is proved to have raised construction. The appellant has found to be licencee. As licencee, any improvement carried out by licencee even if proved cannot be made basis for defeating the right of possession by the licensor as such construction by the licencee is at his own peril. In view of the said fact, I do not find any merit in the first argument raised by the learned Counsel for the appellant.
14. The argument that the suit for mandatory injunction is not maintainable by the vendee is against not sustainable. The vendee has stepped into the shoes of his vendor Hardeep Singh. As per the findings recorded, the appellant is a licencee'' under Hardeep Singh. Therefore, the rights and interest of Hardeep Singh stand transferred to the plaintiff respondents and, thus, it was open to the plaintiff-respondents to seek possession by filing a suit for mandatory injunction against the licencee.
In view thereof, I do not find that any substantial question of law arises for consideration of this Court in second appeal.
Dismissed.
