Supreme Court of India
Delhi Diocesan Trust Association vs Ashwani Kumar on 28 September, 2015Author: P C Pant

Bench: Dipak Misra, Prafulla C. Pant



(Arising out of S.L.P. (Civil) No. 25427 of 2014)

Delhi Diocesan Trust Association … Appellant


Ashwani Kumar …Respondent


Prafulla C. Pant, J.

Leave granted.

2. This appeal is directed against the order dated 01.04.2014, passed by
High Court of Punjab and Haryana at Chandigarh in regular Second Appeal No.
1282 of 2011 (O & M), whereby said court has dismissed the second appeal.

3. We have heard learned counsel for the parties and perused the papers
on record.

4. Brief facts of the case are that plaintiff/appellant Delhi Diocesan
Trust Association, instituted suit (No.264 of 2004) for mandatory
injunction against the defendant/respondent with the pleading that the
plaintiff is the owner of the land in question. The land was given to one
Anjana Devi (grandmother of the respondent) in 1971, on license, on payment
of Rs. 5,000/- per annum. When Anjana Devi failed to surrender the
possession after the expiry of license, a deed was executed on 06.03.1997,
extending the period of license for one more year. She was using the land
as Nursery. When Anjana Devi failed to deliver possession of the land to
the plaintiff, license in her favour was terminated by getting served a
notice on her. The occupation of the land thereafter, by the respondent
(grand son of Anjana Devi), is unauthorized. As such, the suit was filed
against him by the plaintiff.

5. Defendant/respondent contested the suit, and filed his written
statement. In his written statement, the defendant pleaded that he is
tenant over the land in question. He further pleaded that suit in the
present form is not maintainable as the property lies in urban area and he
can be evicted only under Haryana Urban (Control of Rent and Eviction) Act,
1973. He further denied the title of the appellant.

6. The trial court framed necessary issues, recorded the evidence and
after hearing the parties, decreed the suit vide judgment and order dated
30.07.2008. Aggrieved by said judgment and decree passed by Additional
Civil Judge (Senior Division), Karnal, the defendant preferred Civil Appeal
No. 233 of 2008 before the first appellate court. Said court, vide judgment
and order dated 06.10.2010, allowed the civil appeal, and reversed the
decree passed by the trial court. On this, second appeal was filed by the
plaintiff before the High Court which was dismissed by the order challenged
before us.

7. Learned counsel for the plaintiff/appellant argued before us that the
first appellate court has reversed findings of the trial court on the
conjectures and surmises holding that the plaintiff failed to prove his
title, and the High Court has erred in law in upholding the same. It is
contended that Anjana Devi had admitted the title of plaintiff and, as
such, the defendant who is in unauthorized occupation in her place, cannot
escape from dispossession merely by denying the title. It is also submitted
that once the suit is filed by the plaintiff against the defendant, license
if any, automatically stood terminated.

8. In reply to the above, learned counsel for the respondent pleaded
that the respondent is tenant of the land, and his tenancy cannot be
terminated without following the procedure prescribed under the law. But
the defendant failed to show us any document supporting his case, that he
was lessee in the property. He further failed to show the payment of rent
to the lessor. The Managing Committee to whom he pleads to have paid the
rent, its Manager (PW6) has categorically denied it.

9. Relation between Anjana Devi and the defendant are not disputed in
the pleadings. Papers on record show that Anjana Devi, when apprehended
dispossession, filed a suit for permanent injunction but later withdrew the
same, and appears to have executed a deed on 06.03.1997, whereby one more
year was allowed to her to run nursery of plants on payment of Rs. 5,000/-.
Defendant has not pleaded that lease was created independently in his
favour. The trial court after going through the evidence on record found
that PW-6 Edwin Jacob to whom the defendant claims to have paid rent has
supported the case of the plaintiff. He (PW-6 Edwin Jacob) has stated that
he had letter of authority (Exhibit P-10) from the plaintiff/church. He (PW-
6) has further stated that defendant was a licensee in open piece of land,
adjoining to residential complex of the Church and said piece was part of
land of the Church. This witness has further clarified that in the first
round of litigation initiated by grandmother of defendant, after it was
agreed between parties that license shall be renewed for one more year for
Rs.5,000/-, the suit was withdrawn by her. Not only this, DW-1 Ashwani
Kumar himself in cross-examination admitted that local committee of the
Church stood merged with the plaintiff. As such, plaintiff clearly failed
to prove that he was a tenant in the open land as pleaded by him.

10. On going through the judgment (Annexure P-15) passed by first
appellate court, it reflects that in paragraph 16, said court has also
found that the defendant failed to prove himself to be statutory tenant as
pleaded by him. In the circumstances, we are of the opinion that the first
appellate court has erred in not accepting the finding of the trial court,
and reversing the same. The High Court has also erred in ignoring the title
of the plaintiff, based on judgment (Exhibit P-9) passed in Civil Suit No.
66 of 1978 between Haryana Church Welfare Association and the defendant’s
grandmother, particularly in view of the fact that DW-1 Ashwani Kumar
(defendant) has admitted in the cross examination that the local church
merged with the plaintiff/church.

11. For the reasons as discussed above, we set aside the judgment and
decree passed by the first appellate court and that of the High Court. The
decree passed by the trial court is restored. The defendant is directed to
vacate the land in question within a period of two months from today.
Appeal accordingly stands disposed of. No order as to costs.

[Dipak Misra]

[Prafulla C. Pant]

New Delhi;
September 28, 2015.


Leave a Reply

Sign In


Reset Password

Please enter your username or email address, you will receive a link to create a new password via email.