1. Suit for declaration of ownership and possession of land — construction of structure by defendants — subsequent sale of land to plaintiff. (Para 1 )
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2000 Supreme(SC) 575
2000(7) Supreme 596
SUPREME COURT OF INDIA
V.N. Khare & A.P. Misra, JJ.
Tmt. P. Vijaya & Anr. -Appellants
versus
M. Santhanaraj -Respondent
Civil Appeal No. 5648 of 1998
Decided on 14-3-2000
Important Points
Parties cannot raise new pleas, such as licensee status or promissory estoppel, for the first time before the Supreme Court if such pleas were not raised in the written statement, no issues were framed, and no evidence was led in the lower courts.
Subject
Property Law - Landlord and Tenant
Act Referred
Headnote
Title suit-Suit for declaration and possession-Decreed by trial Court-1st appellate Court found structure raised on suit land was constructed by appellant defendant-They were permitted to remove it or plaintiff to pay compensation in respect thereof-Appeal-Contention that appellants had became licencee-No such plea was raised and no issue framed during trial, it could not be entertained when appellant themselves had raised a plea of title by adverse possession-Promisory estoppel plea also could not be allowed-No relief deserved to be granted to respondent under Order 41 Rule 33 CPC in given facts. (Paras 4 to 7)
Legal Category Hierarchy
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2. Defendants claimed status as licensees and invoked promissory estoppel to prevent eviction, contradicting previous pleas of title via gift or adverse possession. (Para 2 , 6 )
3. Claims of license and promissory estoppel were unsupported by pleadings or evidence and were contradicted by the parties' conduct and prior claims of ownership. (Para 4 , 5 , 6 )
4. A party cannot raise a new plea of license or promissory estoppel in appeal if it was not pleaded, no issue was framed, and no evidence led. (Para 4 , 6 )
5. Appeal dismissed; decree of the lower courts affirmed, including the right to compensation or removal of structures. (Para 7 , 8 )
6. Can a party raise a plea of license for the first time in a higher court?
No, a plea of license cannot be raised for the first time in a higher court if no such plea was taken in the written statement, no issue was framed by the trial court, and no evidence was led to establish that status. (Para 4 )
7. How does the conduct of parties affect a claim of license?
If parties have previously denied the owner's title or claimed ownership through a gift deed or adverse possession, such conduct is inconsistent with and defeats a subsequent claim of being a licensee. (Para 5 )
8. Can promissory estoppel be invoked if it was not pleaded in the original written statement?
No, a plea of promissory estoppel cannot be raised for the first time in appeal if it was not included in the written statement and no evidence was led to support the representation. (Para 6 )
ORDER
The Appellants are the Defendants in a suit filed by Plaintiff-Respondent. Appellant No. 1 is the daughter of one B. Parathasarthy Naidu and Appellant No. 2 is the husband of Appellant No. 1. In the year 1959, Appellants were married. On 30th July, 1968 the father of Appellant No. 1 purchased the land. In the year 1973, the Appellants made certain construction on the land purchased by father of Appellant No. 1 wherein they are residing. In the year 1979. B. Parathasarthy Naidu filed a petition for eviction under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act) for eviction of the Appellants on the ground of wilful default in payment of rent and also on the ground of denial of title. The said petition was dismissed on the ground that the petition involved decision on the question of title. It appears that, subsequently, the father of the Appellant No. 1 sold the property in dispute in favour of the Plaintiff-Respondent by means of a sale deed. The Plaintiff-Respondent thereafter filed a suit for declaration that he is the owner of the property in dispute as well as for possession. A written statement was filed by the Defendants-Appellants wherein the plea taken was that the father of Appellant No. 1 had gifted the property to her and, alternatively, it was pleaded that they have acquired title by virtue of adverse possession. The trial Court decreed the suit. The Defendants-Appellants filed an appeal before the first appellate court. The first appellate court found that the structure on the land was constructed by the Defendants-Appellants and, therefore, they are entitled to compensation. The first appellate court directed that either the Defendants may be permitted to remove the structure standing on the land or alternatively the plaintiff may be required to pay compensation in respect thereof. To this extent the decree of the trial Court was modified and the appeal was dismissed in the aforesaid terms. The Defendants-Appellants thereafter filed a Second Appeal before the High Court. However, the Plaintiff-Respondent did not prefer any appeal against that part of judgment and order of the High Court modifying the decree of the trial Court. To that extent the judgment of the first appellate court became final against Plaintiff-Respondent. The High Court dismissed the Second Appeal affirming the decision of the first appellate court. It is against the said decision the Defendants-Appellants are in appeal before us.
2. Learned counsel appearing for the Appellants urged that the father of Appellant No. 1 having permitted the Appellants to put up construction on the land in dispute for the purpose of their residence, in law, it amounted to a licence and the status of the Appellants became one of licensee. Therefore, the Appellants could not be dispossessed from the property in dispute.
3. The first appellate court no doubt has observed as under :
"If we delve into the question as to how the first Defendant and her husband are living in the property some facts will be clear. It can be taken that Parathasarthy has permitted the first Defendant to put up a structure in the property as she is his daughter."
4. In fact, the argument is sought to be built up on the said observation of the firstappellate court extracted above. We have gone through the pleadings of the parties and find that neither any plea in this regard was taken in the written statement nor any issue in respect thereof was struck. Not only that no evidence was led by the Defendants-Appellants to establish that they are licensee. It appears, it is because of the relationship B. Parathasarthy Naidu with Appellant No. 1, the first appellate court drew inference of according permission to set up construction on the land in dispute. In the absence of any plea or issue on the question of Appellant s status being of a licensee, the Appellants are not entitled to raise this question for the first time in this Court. We are, therefor
