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Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  8008  OF 2015  (Arising out of S.L.P. (Civil) No. 25427 of 2014)

Delhi Diocesan Trust Association              … Appellant

Versus

Ashwani Kumar           …Respondent

J U D G M E N T

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

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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.

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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

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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

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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

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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

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question within a period of two months from today.  Appeal

accordingly stands disposed of.  No order as to costs.

……………….....…………J. [Dipak Misra]

     .……………….……………J.         [Prafulla C. Pant]

New Delhi; September 28, 2015.