A licensee is estopped from questioning the title of the licensor, and abuse of legal process can lead to dismissal of appeals.

VALMIKI J. MEHTA, J.

Caveat No.673/2016

1. Counsel appears for the caveator and thus the caveat stands discharged.

C.M. No.27672/2016 (exemption)

2. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RSA No.202/2016 and C.M. No.27671/2016 (stay)

3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the legal heir of the original defendant in the suit impugning the concurrent Judgments of the courts below; of the Trial Court dated 17.4.2012 and the First Appellate Court dated 23.4.2016; by which judgments the courts below have decreed the suit of the respondent/plaintiff/temple trust for possession of the suit premises viz quarter no.9, Birla Mandir, Mandir Marg, New Delhi.

4. The facts of the case are that the respondent/plaintiff/temple trust filed the subject suit pleading that with respect to employees who are employed in the temple, the respondent/plaintiff gave them quarters and the original defendant in the suit on account of his services with the respondent/plaintiff was given the subject quarter without charging any license fee. The original defendant had executed an Undertaking dated 20.4.1966 (Ex.PW1/D) whereby it was agreed by the defendant that he will remain in the quarter only till his services with the temple trust/respondent/plaintiff continued. Defendant retired on 1.4.1995 and therefore the respondent/plaintiff sent a Letter dated 5.6.1996 and the Legal Notice dated 17.6.1996, but, defendant failed to vacate the subject quarter, and hence the present suit for mandatory injunction, possession and mesne profits was filed.

5. Suit was contested by the defendant. As already stated above, defendant died during the pendency of the suit and his legal heir being the present appellant was substituted for the original defendant. As per the written statement filed the suit property being in the ownership of the respondent/plaintiff was disputed. Suit was also prayed to be dismissed on the ground that though the suit was filed for mandatory injunction really it was a suit for possession. It was pleaded that the suit was barred under Section 50 of the Delhi Rent Control Act, 1958. It was also pleaded that deceased defendant was kept as a pujari and was donated the suit quarter in the year 1942 on permanent basis and hence the defendant and now his legal heir/appellant is entitled to own and possess the same.

6(i) Both the courts below have held that the deceased defendant was only an employee of the respondent/plaintiff and during the course of his employment, he had executed the Undertaking dated 20.4.1966 (Ex.PW1/D) admitting that the suit property had been allotted to the deceased defendant only till the time he remains under the employment of the respondent/plaintiff. Though counsel for the appellant sought to argue that this undertaking Ex.PW1/D is not proved, however, it is seen that this document was exhibited as per the affidavit of evidence filed on behalf of the respondent/plaintiff of Sh. V.K. Mishra as PW-1. As per para 5 of this affidavit, undertaking is proved and exhibited as Ex.PW1/D. Appellant before commencement of cross-examination did not object to the mode of proof and exhibition of this document and therefore appellant/defendant cannot claim that the undertaking is not duly exhibited in view of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.

(ii) The courts below have further held that once the deceased defendant was only an employee, the relationship between him and the respondent/plaintiff (and after the death of the defendant, his legal heirs), can only be of a licensor and licensee. Once the relationship is of licensor and licensee, a licensee is estopped from questioning the title of the respondent/plaintiff of the suit premises under Section 116 of the Indian Evidence Act, 1872.

(iii) The courts below have also held that the cas