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IN THE HIGH COURT OF ALLAHABAD
A. N. DIKSHITA
ALI HASAN - Appellant
Versus
MATIULLAH - Respondents
Second Appeal 1750 Of 1976
Decided On : 09/11/1987
LICENSEE - POSSESSION - ACT-SECTION REFERRED : S. 90, 90-A OF THE INDIAN EVIDENCE ACT - SUMMARY: Plaintiff filed a suit for possession and ejectment of defendants from the suit premises, alleging that the defendants were licensees and had refused to vacate the premises. The defendants claimed ownership of the premises and denied being licensees. The trial court decreed the suit, finding that the defendants were licensees and that the plaintiff was the owner of the premises. The lower appellate court reversed the trial court's decision, holding that the plaintiff had not proved ownership of the premises and that the defendants were not licensees. The plaintiff appealed to the High Court.
Fact of the Case:
Plaintiff filed a suit for possession and ejectment of defendants from the suit premises, alleging that the defendants were licensees and had refused to vacate the premises. The defendants claimed ownership of the premises and denied being licensees. The trial court decreed the suit, finding that the defendants were licensees and that the plaintiff was the owner of the premises. The lower appellate court reversed the trial court's decision, holding that the plaintiff had not proved ownership of the premises and that the defendants were not licensees. The plaintiff appealed to the High Court.
Finding of the Court:
The High Court held that the lower appellate court erred in rejecting the plaintiff's evidence of ownership and in finding that the defendants were not licensees. The High Court found that the plaintiff had proved ownership of the premises and that the defendants were licensees. The High Court allowed the appeal and remanded the case back to the trial court for disposal according to law.
Issues: 1. Whether the plaintiff had proved ownership of the premises? 2. Whether the defendants were licensees?
Ratio Decidendi: 1. The High Court held that the lower appellate court erred in rejecting the plaintiff's evidence of ownership. The High Court found that the plaintiff had filed registered sale deeds and other documents to prove ownership, and that the defendants had not produced any evidence to rebut the plaintiff's evidence. 2. The High Court held that the lower appellate court erred in finding that the defendants were not licensees. The High Court found that the defendants had admitted in their written statement that they were licensees, and that they had not produced any evidence to show that they were owners of the premises.
Final Decision: The High Court allowed the appeal and remanded the case back to the trial court for disposal according to law.
( 1 ) THIS second appeal has been preferred against the judgement and decree dated 18-7-85 passed by IV Addl. Civil Judge, Varanasi in Civil Appeal No. 156 of 1975 by which the judgement and decree dated 9-1-75 passed by III Addl. Munsif, Varanasi in Original Suit No. 17 of 1971 decreeing the suit of the plaintiff with costs for ejectment and possession was set aside.
( 2 ) PLAINTIFF-APPELLANT Ali Nasan later on substituted by his heir Nurul Haq filed a suit (No. 17 of 1971) for possession and ejectment of the defendant-respondents on the allegations that premises bearing Municipal No. J-28/55, Agaganj, Jaitpur, Varanasi was the sole property of Abdul Gafoor, Abdul Shakoor, Smt. Fatima Bibi, Shami Ullah and Smt. Nabbubat Bibi. The defendants who were near relations of the plaintiff were permitted to live in the south eastern portion of the said premises as licensees. All the above owners executed a gift-deed in favour of Smt. Saira Bibi daughter of Abdul Gafoor. The defendants thus became licensee of Smt. Saira Bibi. On 12-5-1970 Smt. Saira Bibi sold the above premises inclusive of the portion in possession of the defendants to the plaintiff. A sale deed was executed. The licence in favour of the defendants was renewed. The defendants had agreed to vacate the portion in their possession as and when required by the plaintiff. However when the plaintiff called upon the defendant to vacate the suit portion, the defendants did not do so and ultimately a notice dated 6-11-70 was sent by the plaintiff. This notice was served on the defendants on 7-11-1970. On the failure of the compliance of the requirements of the notice calling upon the defendants to vacate the suit portion, the plaintiff filed a suit claiming possession and ejectment of the defendants from the suit portion.
( 3 ) INITIALLY defendants 1 and 2 (Mati Ullah and Shami Ullah sons of Fateh Mohammad) filed a joint written-statement denying the allegations as set out in the plaint. At the foot of the written-statement a pedigree was given on which reliance was placed. The plea of the plaintiff that they are licensees was denied and the defendants came forward with an allegation that they are in possession since the time of their ancestors in their own right as owners. It was further alleged that Kalloo Mian was their common ancestor and Abdul Gafoor had only one anna share in the suit premises. The genuineness and validity of the gift deed executed in favour of Smt. Saira Bibi was denied. It was further alleged that Smt. Saira Bibi had no right to transfer the suit premises in favour of the plaintiff and in any case the sale deed is void and ineffective.
( 4 ) DURING the pendency of the suit Shami Ullah died and was substituted by his heirs Smt. Hazra Bibi, Qamruddin, Badruddin and Shamsunissa. The above heirs who were brought on record as legal representatives of the deceased defendant 2 were arrayed as defendants 2/1 to 2/4. They filed a joint written statement raising similar pleas. But no pedigree was set forth in their written statement except that Kalloo was termed as their common ancestor. On 4-11-1971 the learned Munsif on the pleadings of the parties framed the following issues : 1. Whether the plaintiff is the owner of the house in suit and is entitled to sue ? 2. Whether the defendants are in possession of the house in suit as licensees ? 3. Whether Sayara Bibi was the donee in possession of the whole house in suit and as such executed the sale deed in favour of the plaintiff and passed valid title in him ? 4. Whether the plaintiffs suit is barred by time ? 5. Whether the details of the house in dispute as given in the plaint is incorrect ? 6. Whether the plaintiff is entitled to any mesne profits ? If so, to what amount ? 7. To what relief, if any, is the plaintiff entitled ?
( 5 ) THE documents relied upon by the parties were also filed in the suit. The plaintiff filed the document per list 13/c. 4 documents being registered documents and be
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