Important PointA person who comes upon any immovable property by license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at time when such license was given.

Headnote:Evidence Act, 1872—Section 116 —Estoppel—A person who comes upon any immoveable property by license of person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such license was given—Stress is on the possession— Suit for possession by appellant-plaintiff on plea that respondent defendant was inducted as licensee in suit property and an agreement was entered into on 1.5.1971 to that effect—Defendant raised plea that prior to date of agreement another person had put defendant in possession and therefore subsequent agreement with plaintiff was of no consequence—Trial Court dismissed suit—Single Judge in 1st appeal decreed suit holding that concept of constructive possession was applicable even if defendant’s case of a third person having put him in possession was accepted—Division Bench set aside judgment decree in appeal—Appeal— Division Bench erroneously laid stress on title which was of no relevance in view of Section 116 of Evidence Act—Impugned judgment was liable to be set aside and matter needed to be remanded for fresh decision by Division Bench.
       Held : It is not in dispute that on 1.5.1971 an agreement was entered into. What the defendant tried to establish was that prior to the date of agreement one Shamsher Khan had put the defendant in possession and therefore the subsequent agreement with the plaintiff-appellant was really of no consequence. This aspect was dealt by the learned Single Judge in detail. It was held that the concept of constructive possession was clearly applicable even if the defendants’ case of Shamsher Khan having put him in possession is accepted. Illustrations were given to buttress the interpretation given. The learned Single Judge was of the view that the word "possession" in Section 116 also includes constructive possession. Unfortunately the Division Bench has not dealt with this aspect. (Para 12)
       The "possession" in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who comes upon any immovable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such license was given. (Para 13)
       Obviously, the stress is on the possession of the person who is in possession of the immovable property. Unfortunately, the Division Bench has not addressed itself to this question which according to us was the core question. The Division Bench erroneously laid stress on title as indicated above which has no relevance in the background of what is stated in Section 116 of the Evidence Act. The Division Bench disposed of the matter without even discussing as to why the learned Single Judge was not justified in the conclusions arrived at. Therefore, we remand the matter to the Division Bench for fresh hearing and disposal. However, we make it clear that we have not expressed any final opinion on the merits of the case. As the matter is pending since long, we request the High Court to dispose of the matter within three months. The interim order passed in this appeal shall continue till the disposal of the matter by the High Court. (Paras 18 & 19)

Judgment

Arijit Pasayat, J.—This appeal is directed against the judgment of a Division Bench of the Bombay High Court in a Letters Patent Appeal. Brief reference to the factual aspects would be necessary :

2. The appellant filed Suit No. 6954/72 in the Bombay City Civil Court against the respondent inter alia with the following prayers:

(a) for possession of suit premises of Plots Nos. 81, 82 with shed at Gandhinagar, Bharat Bazar, Worli, Bombay.

(b) for recovery of an amount of Rs. 6,175/- on account of compensation, and

3. Certain interim reliefs were also claimed in this suit. The broad allegations made by the plaintiff in the plaint were as follows :

(a) on request of the Defendant, the Plaintiff allowed the Defendant to use the suit premises on the terms recorded in the Agreement dated 01.05.1091, which was an Agreement for leave and license for 11 months from that date;

(b) the compensation agreed between the parties was Rs. 475/- per month;

(c) the Defendant was to carry on the business of motor repairing in the suit premises and was not to change the user of the premises;

(d) that 2 months’ arrears of compensation would entitle the Plaintiff to terminate the Agreement by giving one month’s notice in writing and to enter upon the suit premises;

(e) the license could be renewed at the option of the Defendant by one month’s prior notice to the Plaintiff;

(f) that though the Agreement provided that the Defendant would deposit Rs. 6,000/- by way of security, the Defendant in fact paid only Rs. 5,000/-;

(g) that, the Defendant had issued 2 cheques respectively for Rs.950/- and Rs. 793/- towards compensation, which were dishonoured;

(h) the Plaintiff by his Advocate’s letter dated 02.10.1971 informed the Defendant that, from May, 1971 to September, 1971 the Defendant had not paid compensation amount of Rs. 2,375/- and that, he had committed several breaches of the said license, that the license granted to the Defendant was revoked and that, the Defendant should pay the arrears and hand-over the vacant possession of the suit premises;

(i) the Plaintiff by his Advocate’s letter dated 13.04.1972 demanded the arrears of compensation of Rs. 5,225/- upto April, 1972, but the Defendant issued a cheque of Rs. 2,850/- towards compensation, which was also dishonoured.

4. The defendant-respondent filed Written Statement in which originally the following stands were taken :

(a) That the Civil Court had no jurisdiction to try the suit as the Defendant was the tenant or the sub-tenant of the suit premises and not a licensee as alleged, and that, "the landlord had agreed to this arrangement arrived at between the Plaintiff and the Defendant."

(b) That the Defendant had constructed a shed on a portion of the suit premises by spending Rs. 4,000/-.

(c) That the Defendant had not committed any breached of the Agreement and gave explanations for the same in para 9 of his written statement.

(d) That, there was no cause of action for the suit.

5. Subsequently, both appellant and respondent took out Notices of Motion in the Civil Suit in respect of interim orders passed in the suit, and orders were passed on said Notices of Notion by the Civil Court.

6. On 10.01.1976, the defendant took out Chamber Summons for amendment of the Written Statement in the following terms :

(a) to amend the Written Statement to contend that the Agreement dated 01.05.1971 was void on account of fraud and

misrepresentation made by the Plaintiff that, he was the legal tenant of the suit premises;

(b) to delete from the original Written Statement the averment that the Agreement of sub-tenancy between the Plaintiff and the Defendant was consented to by the landlord.

7. The trial court allowed the said amendment. Subsequently, in 1976 the defendant took out another Chamber Summons praying for amendments in his Written Statement in the following terms :

(a) that, the Defendant was not inducted in the suit premises on 1.5.1971 but that, he was already in possession of the plots wit

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2006 Supreme(SC) 135

Important PointA person who comes upon any immovable property by license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at time when such license was given.

Cases Referred (1)