R.P. SHRIVASTAVA Vs. SMT. SHEELA DEVI AND OTHERS

JUDGEMENT

(1.) THE plaintiff has called in question judgment and decree dated 10 -5 -2001 passed by Second Addl. District Judge, Bhopal in Regular Civil Suit No. 12 -A/2000. The plaintiff/appellant filed a suit for possession and for mesne profit with respect to the ancestral suit house situated at Marwadi Road, Bhopal. The property was owned by late Kunj Manohar Lal and Leeladhar. Their names were recorded as owner till 1923. Kunj Manohar Lal died issueless leaving behind Leeladhar as his only surviving legal representative. Leeladhar had three sons, namely Roshan Lal, Udaybhan and Bhanu Prakash. Bhanu Prakash died issueless sometime in the year 1939. Roshan Lal died in 1941 and Udaybhan also died in the year 1980. The share of Bhanu Prakash devolved upon Roshan Lal and Udaybhan and after their death property devolved on the plaintiffs the sons of Udaybhan and Roshan Lal. The plaintiffs averred that after death of Leeladhar, Roshan Lal and Udaybhan performed marriage of defendant No. 1 Smt. Sheelwati with Master Bhairo Prasad, who was a worker of Hindu Mahasabha, at the relevant time Nawab Hamidullah Khan was the Ruler of Bhopal, as such erstwhile Ruler was not happy due to activities of Bhairo Prasad. He had eight brothers, they wanted Bhairo Prasad to reside separately as they were in the service of erstwhile Ruler and the income of Bhairo Prasad was also insufficient. Considering the aforesaid difficulties faced by Smt. Sheelwati and Master Bhairo Prasad, Smt. Sheelwati was given the licence to reside in the part of disputed portion of the house. After death of Roshan Lal and Udaybhan, the licence was continued. As the defendants required further accommodation, additional two rooms were given on the ground floor to run a Typing Institute. They also constructed a underground water tank. The plaintiff wanted to dismantle the old structure and to reconstruct some of the portion of the house. However, defendants asserted their ownership and filed a Civil Suit in the Court of 7th ADJ, Bhopal for declaration of title, hence a notice was served by the plaintiffs on 1 -1 -1998 terminating the licence. The defendants were required to vacate the accommodation by 1 -2 -1998. The defendants did not reply nor vacated the house in spite of cancellation of licence, hence instant suit for ejectment and mesne profit was filed.

(2.) THE defendants in their written statement denied the averments made in the plaint and contended that the date of death of Kunj Manohar Lal was not disclosed in the plaint. Leeladhar had eight daughters, one of them was defendant No. 1 Smt. Sheelwati. It was denied that Roshan Lal and Udaybhan succeeded to the property left by Leeladhar and Bhanu Prakash. Harish Chandra, an eldest son of Roshan Lal had sold certain portion of house No. 128. It was denied after death of Leeladhar, marriage of defendant No. 1 was performed by Roshan Lal and Udaybhan, in fact the marriage was performed by Banshidhar, elder brother of Leeladhar. Other facts were also denied. It was also specifically denied that Roshan Lal and Udaybhan inducted defendant Smt. Sheelwati as licensee, in fact Laxmi Narayan Agrawal, uncle of defendant No. 1 gave the disputed house "forever" to Shri Bhairo Prasad, husband of defendant No. 1 and thereafter for the last 65 years they have remained in occupation as its owner, their status as licensee was specifically denied. No cause of action arose to the plaintiff. The right in property was given to Bhairo Prasad forever and defendants remained in possession as owner. Bhairo Prasad obtained electricity connection etc. and enjoyed the property as an owner. The parties have adduced, oral and documentary evidence. The trial Court dismissed the suit filed by the appellant/plaintiff as per impugned judgment and decree. The trial Court has found that Roshan Lal and Udaybhan had succeeded to the property left by Leeladhar and Bhanu Prakash. Roshan Lal and Udaybhan had given the licence to defendant No. 1 Smt. Sheelwati and Bhairo Prasad. Their possession has continued for the last 65 years and on death of the grantor Udaybhan in the year 1980, their possession became adverse to the interest of plaintiffs, they perfected their title by adverse possession, consequently this appeal has been preferred by the plaintiffs. Shri Alok Aradhe, learned counsel appearing for appellant/plaintiff has submitted that the Court below erred in law in holding that defendants have remained in adverse possession. There was no pleading of adverse possession and acquisition of title by it as such finding of adverse possession recorded by trial Court is bad in law. The trial Court erred in holding that licence given to the defendant and husband came to an end on death of grantor/licensor. The Trial Judge has not correctly understood the ratio of decision in Ishwarlal vs. District Judge, Indore, : 1990 MPLJ 579 : 1990 MPWN 21. The finding that first floor and ground floor both were let out as licensee to defendant No. 1 is perverse. Only part of premises was given as licensee in 1934, Licensee cannot prescribe adverse possession, thus judgment and decree passed by the trial Court be set aside.

(3.) IT was submitted by Shri R.P. Agrawal, learned Sr. counsel that theory of licence was manufactured by the plaintiffs to seek eviction, no date, month or year of it's creation was pleaded. There was no clinching evidence adduced to prove creation of licence. The property was given to Bhairo Prasad in ownership rights forever, it was a void grant. An electric meter was installed in the premises in the year 1946 by Shri Bhairo Prasad. Smt. Sheelwati was not only born in the suit premises but resided till her death in her own rights. The defendants have perfected their title by virtue of adverse possession. As the case of grant of licence has not been established, suit was liable to be dismissed. He has further submitted that even if it was a case of void grant, right was perfected by remaining in possession for the last 65 years. He has relied upon the decision of Apex Court in State of West Bengal vs. Dalhousie Institute Society, : AIR 1970 SC 1778. He has further submitted that as permanent structure in the shape of water tank was constructed, electricity and water connections were obtained, licence if it was granted became irrevocable, as per section 60(b) of Easement Act, he has submitted that defendants became full owner by virtue of section 14(1) of Hindu Succession Act, 1956, he has emphasized on the words "or any other manner whatsoever" used in section 14 is of wider connotation, hence the defendants by remaining in possession till 1956 perfected the title in the house, in this regard he has also relied upon the decision of Apex Court in Velamuri Venkata Sivaprasad (dead) by LRs vs. Kothuri Venkateswarlu (dead) by LRs and others, : AIR 2000 SC 434 and decision of Kerala High Court in Jose vs. Ramakrishnan Nair Radhakrishnan and others, : AIR 2004 Ker 16. He has also referred to Mulla's Hindu Law to contend that at the relevant time daughter Sheelwati had inherited limited interest in the property left by her father, she was in possession in 1956 when Hindu Succession Act came into force, hence her right was enlarged under section 14 in his submission, it is immaterial for the purpose of section 14(1) whether possession was under the grant or permissive or in the ownership right, even permissive possession under a void grant is included within the ken of section 14(1). The property tax was paid to Municipal Corporation as apparent from receipts (D -1 to D -5). A electricity meter was also installed, hence, plaintiffs were not entitled to seek ejectment or to seek mesne profit. No case for interference in this appeal was thus made out. First coming to the question whether defendant No. 1 Smt. Sheelwati and her husband Bhairo Prasad were inducted as licensee by Roshan Lal and Udaybhan. The trial Court has found that they were inducted as licensee. Shri R. P. Agrawal has submitted that plea of licensee has not been established whereas Shri Alok Aradhe has submitted that the ground floor was not given on license only a part of premises on first floor was given on licence in the year 1934. Other portion was given subsequently, thus it becomes necessary to consider the evidence and whether finding recorded by the trial Court as to Bhairo Prasad being a licensee is correct. It was not in dispute that Bhairo Prasad was a worker of Hindu Mahasabha and erstwhile Ruler of Bhopal was not happy with his activities. Rameshwar Dayal Shrivastava (PW -1) has stated that he knew Smt. Sheelwati since 1930. Bhairo Prasad did not enjoy good relations with his father and brothers. Smt. Sheelwati came back to the house as she was not treated properly by her in -laws and started living with Bhairo Prasad in the house. First floor was given for the purpose of their residence, no separate portion was given. They were living along with other family members. He heard that Kunj Manohar Lal used to live with Leeladhar. Sheelwati and her husband Bhairo Prasad started living in the house in 1930, he did not remember when Bhairo Prasad died. He was not aware who was paying the tax of the house. Defendant No. 1 was born in the house and she lived in the same house after her marriage. Shri Ravindra Prakash Shrivastava (PW -2) has stated that Kunj Manohar Lal died issueless in the year 1921. Leeladhar succeeded to him. Leeladhar died in the year 1932, he had three sons namely Roshan Lal, Udaybhan and Bhanu Prakash. Bhanu Prakash died unmarried at the age of 16 -17 years in the year 1939. Roshan Lal died in the year 1941 and later on Udaybhan died in the year 1980. Sheelwati's marriage was performed in the year 1939 after death of Leeladhar with Master Bhairo Prasad. Considering various difficulties faced by Sheelwati, his father Leeladhar, Roshan Lal and Udaybhan brought her to the parental house and gave first floor towards North -West side for the purpose of their residence as licensee. The house was not given to them forever. Sheelwati later on asked for permission to start the Typing Institute, consequently permission was given to start it on the ground floor in the red marked portion. For blue marked portion a license was given in 1934. With their permission underground water tank was constructed by the defendants. They paid the Municipal taxes. His father told to him about licence. Sheelwati after 3 -4 years of marriage came back to the house in the year 1937 -38. They had not taken any steps for ejectment of defendants for the last 60 years. A electricity connection was obtained in the name of Bhairo Prasad in the year 1946. He was unable to deny that the tax was deposited in the Corporation by Chandra Mohan son of Bhairo Prasad. He also claimed that in fact plaintiffs paid the Municipal taxes. Tribhuvan Lal Shrivastava (PW -3) has stated that he resided in the house w.e.f 1944 till 1948, thereafter from 1955 to 1957. Plaintiffs are related to him, he is son of maternal aunt. When his sister Sheela died, her body was kept in the ground floor of disputed premises. He attended the marriages which were performed in the plaintiff's family. He was not aware for how many years Sheelwati was residing in house. Marriage of Bhairo Prasad with Sheelwati was performed before 17 years and they resided in the suit house after their marriage with the permission of Roshan Lal and Udaybhan but permission to reside as licensee was not given in his presence, his aforesaid statement, was based on information given by Udaybhan. Ravishankar Khare (PW -4) yet another relative claimed that, he resided in the house for some time in the year 1965 at the time of marriage of Maya, daughter of Udaybhan, house was big, Sheelwati told that Roshan Lal and Udaybhan had given the house to her for the purpose of residence. He was informed by his father that house was owned by Kunj Manohar Lal and Leeladhar. Earlier he came to the suit house in the year 1957 along with his father and went back after one or two days. He was not aware for how many years Sheelwati was residing in the suit house. He was not aware of the position before 1964 -65. He was not aware whether house was given to Bhairo Prasad. He was also not aware whether property tax was deposited by the family of Bhairo Prasad. Rameshwar Prasad (PW. -5) has stated that he came to Bhopal on transfer in the year 1966, he knew plaintiff Ravi Prakash and obtained one of the rooms on rent for the period of one year, Udaybhan was managing the property, Udaybhan was in possession of the disputed ground floor portion and died in the year 1980, he had participated in his last rites, as Udaybhan treated him as his son, the defendants were residing in the house owned by Udaybhan, he was not aware who had how much share in the house, he was not aware how many electricity meters were fitted in the house, he was not aware of the Typing Institute, the defendants had separate water connection. Smt. Buddhimati Devi (PW -6) daughter of Leeladhar and sister of Sheelwati has stated that she was born in the year 1921. Her marriage was performed in the year 1943. At that time Bhanu Prakash and Roshan Lal were not alive. Marriage of Sheelwati was performed with Bhairo Prasad by Roshan Lal and Udaybhan. Sheelwati was given permission to reside on the first floor along with Bhairo Prasad. Laxmi Narayan was not alive at that time. Laxmi Narayan did not give the house to Sheelwati to reside. Bhairo Prasad had obtained electricity and water connection. She was not aware whether Bhairo Prasad had also paid the municipal taxes. She was not aware if the property was given forever to Master Bhairo Prasad.