The ruling cited with reference to Section 53A
of the Transfer of Property Act in respect of right of the
proposed transferee claiming that his possession ought not
to be disturbed cannot be attracted in this case as licensee
is always deemed to be a licensee. It is not open for a
licensee to set up title in himself or any other person once
license is revoked by the licensor. It is the duty of the
licensee to hand over possession or surrender possession of
the property occupied by him as a licensee and seek his
remedy separately if, according to him, he has acquired
title to the property qua the licensor. Licensor is always
entitled to proceed for recovery of possession when
licensee fails to deliver possession of the property in
question after termination of the licence. Only in
exceptional cases wherein licensee may have claimed
merger of his title with licensor's title, his possession may
be protected.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.399 OF 1999
Vatsala wd/o. Bhikaji Kale,
// VERSUS //
Divisional Railway Manager (Works),
CORAM : A.P.BHANGALE, J.
DATE : 21.2.2014.
Citation;2014(5) ALLMR 137,2014(2)ABR725, 2014(4)MhLj864
This Second Appeal was admitted on
30.10.2001 on the substantial question of law as stated
below :
“ Whether the Courts below failed to consider
the admission in view of Order VIII, Rules 3,
4 and 5 of the Code of Civil Procedure ? “
2.
This appeal arises out of the Judgment and
Order dt.12.7.1999 passed by the learned 6th Additional
District Judge, Nagpur in Regular Civil Appeal No.192 of
1992, which was dismissed. The Regular Civil Appeal
arose out of the Judgment and Order dt.24.2.1992 passed
in Regular Civil Suit No.996 of 1987 whereby the suit was
partly decreed granting refund of a sum of Rs.50,050/
along with interest @ 18 % p.a. from the date of deposit
till realisation of the whole amount.
The facts, briefly stated, are as under :
3.
The original plaintiff namely Bhika s/o. Antu
Kale had filed Regular Civil Suit No.996 of 1987 against
the Railways for possession and perpetual injunction and
costs of the suit. According to the plaintiff, he is a retired
Railway servant. In the year 1981, he came across a
proposal from the Divisional Railway Manager (Works),
Central Railway, Nagpur for giving plots on licence. The
plots were belonging to the Railways at various places and
the Railways had invited applications from the members of
public desirous of taking such plots on licence. The
plaintiff, since he is a retired servant of Railways and as,
according to him, he belongs to the Scheduled Caste
community, he applied for grant of a plot on the basis of
licence for yearly charges of Rs.7512.50, which were to be
deposited before taking possession of the plot in question.
According to the plaintiff, he had deposited a sum of
Rs.15,025/ plus Rs.25/ towards the process fee to the
Railways and an agreement dt.31.1.1982 was entered into.
The plaintiff requested the defendant/Divisional Railways
Manager (Works), Central Railway, Nagpur to hand over
possession of plot no.8 to the plaintiff for running a hotel
pursuant to the agreement. But, defendant no.1 did not do
so despite issuance of letters to the defendant to give
vacant possession of plot no.8 to the plaintiff for running
hotel business. According to the plaintiff, after retirement
from the Railways, the plaintiff was in a most difficult
situation, but the defendant did not give possession of the
plot to him, though the plaintiff had made payment.
Thereafter, the plaintiff came to know that plot no.8 was
unlawfully occupied by defendant no.4 Ramesh Shinde to
the extent of its 3/4th portion and defendant no.4 refused
to give possession of plot no.8 to the plaintiff, though the
plaintiff had signed the agreement for licence and paid the
sum of Rs.15,000/ to the defendant. However, defendant
no.2Estate Officer, Central Railway, Nagpur issued a
notice to the plaintiff on 14.9.1982 to vacate plot no.8 on
the ground that it was illegal occupation of the plaintiff
although the whole of plot no.8 was not given to the
plaintiff. The plaintiff who claimed possession
alternatively, had prayed for return of the sum of
Rs.15,050/ with interest from the defendant till the
amount of realised.
4.
The defendants/Railways resisted the suit
claim by filing Written Statement (Exh.25). According to
the plaintiff, though he was not delivered vacant
possession of the entire plot, he had constructed temporary
shed of 10 x 8 ft. on that plot. On the pretext of
encroachment detected, the plaintiff was served with
notice by the Railways for eviction of the plaintiff from the
piece of land which he had occupied on the ground that he
was an unauthorised occupant. Notice was served by the
Estate Officer of the Railways. The Railways had
contended that the Civil Court has no jurisdiction to
entertain the suit on the ground that the Estate Officer was
authorised to evict the plaintiff.
The trial Court found that there was an
5.
agreement of license between the plaintiff and the
defendant on 24.1.1982 and the plaintiff had already
encroached upon the open plot of land admeasuring 10 x 8
ft. adjacent to plot no.8 in the year 1976. Thus, the trial
Court found that possession of suit plot no.8 was not
handed over to the plaintiff, but he had encroached upon it
to the extent of 10 x 8 ft. and by notice dt.26.11.1982,
defendant no.2/Estate Officer, Central Railway, Nagpur
had directed the plaintiff to remove himself from the
encroached portion of the land or otherwise eviction
proceedings will have to follow. Thus, on the finding that
the plaintiff did not vacate the encroached portion of plot
no.8, the suit of the plaintiff for recovery of possession was
dismissed. However, the suit for refund of amount in the
sum of Rs.15,050/ was decreed with interest @ 18 % p.a.
from the date of deposit till realisation of the whole
amount.
The unsuccessful plaintiff approached the first
6.
Appellate Court. But, the 6th Additional District Judge,
Nagpur by Judgment and Order dt.12.7.1999 was pleased
to dismiss the appeal finding that the plaintiff, who
continued the suit through his legal representatives and
heirs, was not entitled to possession of plot no.8 or
perpetual injunction, as prayed for. Thus, R.C.A. No.192 of
7.
1992 came to be dismissed.
The learned Counsel for the appellants has
made a reference to the ruling in the case of Piru Charan
Pal and another .vs. Minor Sunilmoy Nemo and another
reported in AIR 1973 Calcutta 1 (Full Bench) in order to
rely upon the principle under Section 53A of the Transfer
of Property Act, 1882 to argue that possession of the
plaintiff over the suit plot of land needs to be protected on
the ground that it was given pursuant to the agreement
between the plaintiff and the Railway Administration.
Reference is also made to the case of Krishna
8.
Kishore Firm .vs. Government of A.P. and Others
reported in (1991) SCC 184 to argue that where lessee
purchases interest of a colessor in undivided property in
lessee's possession prior to expiry of the lease, possession
by the lessee after expiry of the lease is held to be lawful.
He made a reference to para 4 to argue that, in view of the
provisions of Specific Relief Act, possession of a person
The learned Counsel also made a reference to
9.
over the suit property needs to be protected.
the case of Sambhaji Laxmanrao Pawar .vs. Abdul Wahed
s/o. Rahmatullah reported in 1995(1) Mh.L.J. 22 to argue
that, in the case of specific performance, presumption that
damages are not adequate relief for breach of contract in
respect of immovable property is not absolute. He also
argued that when in a suit denial of a fact by the defendant
in the Written Statement is not specific but evasive, said
fact shall be taken to be admitted. In such cases, admission
10.
VIII, Rules 3, 4 and 5 of the Code of Civil Procedure.
itself being proof, no other proof is necessary under Order
As against these submissions, the learned
Counsel Mr.N.P.Lambat has submitted that, since the year
1971, the appellant is in possession of adjacent land to plot
no.8. According to the learned Counsel Mr.Lambat, the
appellant as a formal Railway employee has prayed for
allotment of land on licence basis and at the time of
agreement dt.21.1.1982, the appellant knew that
defendant no.4 was in actual physical possession of plot
no.8. My attention is invited to Exh.44 which is an order
under subsection 1 of Section 5 of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971 from the
Office of Estate Officer, Central Railway, Nagpur holding
the original plaintiff Bhiku Antu as an unauthorised
occupant and calling upon him by order under Section
5(1) of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 and all persons who may be in
occupation of suit land or any part thereof to vacate the
said land within 45 days from the date of publication of the
order dt.8.12.1982 indicating that original plaintiff Bhikaji
Antu Kale by reply dt.8.10.l1982 to the notice dt.14.9.1982
received from the Estate Officer refused to vacate the suit
land in question till he gets certificate from the Railways to
hand over plot no.8. Under these circumstances, it appears
that the plaintiff chose to file Civil Suit. In the Written
Statement, which was filed on behalf of defendant nos. 1
to 3, it was contended that, in the year 1981, the Divisional
Railway Manager (Works) proposed to him to have license
of plots belonging to Railways at various sites in Nagpur
and invited applications for the same and the plaintiff
being a retired Railway servant, had applied for plot no.8
near S.T. stand at Nagpur. The application of the plaintiff
for plot no.8 along with the license fee of Rs.7512.50 and
water charges separately was decided by defendant no.1,
but possession of plot no.8 could not be delivered to the
plaintiff. Agreement of license was dt.24.1.1982. Though
plaintiff was not delivered possession of the plot; however,
the plaintiff encroached upon the area of 10 x 8 ft. which
was open land belonging to the Railways in the year 1976
and for which notices were served upon him since
February, 1979 which the plaintiff did not reply. Thus, the
Estate Officer was approached by the first defendant to
recover possession of the plaintiff and notices were served
by the Estate Officer accordingly in respect of encroached
portion in the neighbouring land of plot no.8. It is under
these circumstances that the trial Court dismissed the main
relief of possession and injunction and instead directed
refund of amount to the plaintiff which was lying with the
Railway Administration.
11.
The proposed license at Exh.39 in the trial
Court would indicate that it was to be granted on yearly
basis along with security deposit with restriction as to
nature of articles to be sold from the licensed premises and
permission to be obtained by the licensee for his business
under local laws. The proposed agreement (Exh.39)
requires licensee to execute the necessary agreement for
one year and requires the licensee to abide by all the
conditions mentioned in the said agreement with
reservation of the Railways to either accept or reject the
same. The yearly rent or license fee was not paid by the
licensee and he was given notice dt.1.10.1981 to deposit
the same within 85 days or else informing the plaintiff
Coming to the substantial question of law
12.
that the plot allotted will be treated as cancelled.
raised by the appellant as to whether the Courts below
failed to consider the admission in the Written Statement,
this Court cannot ignore the findings recorded by both the
Courts below and the legal position in respect of the
license. The agreement which was contemplated for grant
of license on behalf of the Railways in favour of the
original plaintiff must be read in its entirety to gather
intention of the parties thereof.
13.
The ruling cited with reference to Section 53A
of the Transfer of Property Act in respect of right of the
proposed transferee claiming that his possession ought not
to be disturbed cannot be attracted in this case as licensee
is always deemed to be a licensee. It is not open for a
licensee to set up title in himself or any other person once
license is revoked by the licensor. It is the duty of the
licensee to hand over possession or surrender possession of
the property occupied by him as a licensee and seek his
remedy separately if, according to him, he has acquired
title to the property qua the licensor. Licensor is always
entitled to proceed for recovery of possession when
licensee fails to deliver possession of the property in
question after termination of the licence. Only in
exceptional cases wherein licensee may have claimed
merger of his title with licensor's title, his possession may
be protected. It is not the case here as the licensee here
cannot have right to claim possession to the Railways
premises. Merely because the original plaintiff had
occupied 10 x 8 ft. portion of plot no.8 or adjacent to it, it
cannot be inferred that the act was done acting upon the
licence with the Railway Administration or within
permissible terms of licence. Protection, as claimed by the
appellant, therefore, cannot be available to him merely on
the basis of stray admission here or there in the Written
Statement filed by the Railway Administration. Having
considered the evidence led, the trial Court as well as the
first Appellate Court by concurrent findings of facts
decided to return the amount deposited by the original
plaintiff along with interest. The original licensee (original
plaintiff) expired during pendency of this proceedings.
Under these circumstances, considering that the right of
Second Appeal is neither natural nor inherent, but is a
substantive statutory right regulated by law and when
conclusion by both the Courts below appear in conformity
with the legal position as to leave and license discussed
above, I do not see any reason to consider the admission
in the Written Statement so as to overturn the findings of
facts recorded by both the Courts below in the facts and
circumstances of the case in favour of legal heirs of
licensee expired long back. Hence, I do not find any merit
in the appeal. The appeal is, therefore, dismissed. No order
as to costs.
16
Mr.M.R.Joharapurkar, learned Counsel for the
14.
appellants states that an interim order of status quo is
existing and that may be continued for a period of eight
weeks since the appellants are desirous to have their
remedy according to law.
The parties shall maintain statusquo
accordingly for a period of eight weeks from today.
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