(1) This regular second appeal filed by Mohinder Singh and his wife Narindar Kaur defendants is directed against the judgment and decree of learned Additional District Judge, Delhi, affirming on appeal the decision of the trial Court whereby a decree for recovery of Rs. 1,800/- was passed in favour of Nihal Kaur plaintiff-respondent against the defendant-appellants, and the main question which arises for determination in the appeal is: whether an allottee of an evacuee plot, who has constructed a building on that plot, is entitled to recover damage for use and occupation against persons who take unauthorised possession of that plot along with the building. It arises in the following circumstances.
(2) Plot No. 65/40 situated on Rohtak Road, Delhi was evacuee property and was allotted by the Custodian of Evacuee property to Nihal Kaur plaintiff-respondent. She thereupon constructed upon it a room for residence. According to the allegations of the respondent she went out of Delhi to attend a marriage in the beginning of 1957 and returned in the month of July when she found that the appellants had taken unauthorised possession of that plot and room. She, accordingly, filled the preset suit on July 15, 1960, for recovery of Rs. 1,800/- as damages for use and occupation against the appellants for the period from July 1, 1957 to June 30, 1960. at the rate of Rs. 50/- per mensem. In the alternative the respondent claimed that if the contention of the appellants that they were her tenants was accepted by the Court she should be awarded decree for the aforesaid amount as rent.
(3) The suit was resisted by the appellants and the stand taken by Mohinder Singh appellant in his statement dated March 14, 1961, was that he had taken the property in dispute on rent from Darshan Singh (P. W. 4) son-in-law of the respondent. The Courts below upheld the claim of the respondent with the result that the decree for recovery of Rs. 1,800/- was awarded in her favour against the appellants.
(4) At the hearing of the second appeal Mr. Safeer, learned counsel for the appellants, has referred to the various provisions of the Administration of Evacuee Property Act. 1950 (Act No. XXXI of 1950), and has argued that the position of the plaintiff-respondent as allottee of plot in question was that of a licencee, and as such she could not maintain the suit for recovery of damages for use and occupation, against the defendant-appellants. In this respect I find that allotment has been defined in clause (a) of section 2 of that Act. and the definition reads as under:
'allotment means the grant by a person duly authorised in this behalf of a right of use or occupation of any immovable evacuee property to any other person, but dose not include a grant by way of lease.'
Dealing with the rights of a quasi-permanent allottee of evacuee property it was observed in Amar Singh v. Custodian Evacuee Property Punjab, (S) AIR 1957 SC 599, that such an allottee was more or less in the position of a licensee, and that at best they were analogous to what is called just in re aliena according to the concept of Roman Law and may be some kind of interest in land. Whatever might be the position of the allottee in the strict term of law the fact, in my view, remains that according to the definition of allotment an allottee has a grant in his favour which gives him a right of occupation of evacuee immovable property allotted to him. The respondent in the present case was also permitted to build a temporary construction over the plot allotted to her as is clear from the letter of the Custodian of July 1959 (Exhibit P. 2) and the other letter ( Exhibit P. 1) dated May,11,1950, issued by the Ministry of Rehabilitation. The respondent, accordingly built over the plot and so far as the building is concerned there can be no dispute that it belonged to her. As the appellants took unauthorised possession of that building along with the plot which was in occupation of the respondent and of which she was entitled to remain in occupation the respondent, in my opinion, is entitled to recover damages from the appellants for use and occupation of the said building and the *****
In a Division Bench case (Sulaiman, C. J. and Bajpai, J.) Kanta Tewari v. Sheo Narain Lal AIR 1935 All 123, the plaintiffs were in possession of a piece of land which they were using as their courtyard over which they had cattle troughs and a platform. The defendants unlawfully removed the cattle troughs and the platform and took possession of the land by building upon it. It was held that the plaintiffs had sufficient possessory title to maintain an action for possession of land and removal of buildings against the defendants, even though plaintiffs were only licensees. I am in respectful agreement with the dictum laid down above. I am further of the view that if a plaintiff, on basis of his possessory title, can bring a suit for possession of the property of which he has been unauthorisedly dispossessed, there is no reason why he cannot bring a suit for recovery of damages for use and occupation against the trespasser.
(5) It has next been argued that the position of the respondent being that of a licensee, the licensee in her favour should be deemed to have been revolved because of abandonment when she left Delhi and remained away from his place for a number of months. Reference in this connection has been made to clause (f) of section 62 of the Easements Act according to which a licence is granted for a specified purpose and the purpose is attained or abandoned or becomes impracticable. In this respect I am of the view that the abandonment is essentially a question of fact and cannot be allowed to be raised in second appeal especially when it was not raised in the lower Appellate Court. Apart from that, the respondent cannot be held to have abandoned the plot by her absence from Delhi for a few months. So far as allotment of evacuee property is concerned, there is a specific provision in S. 12 of the Administration of Evacuee Property Act. 1950, which empowers the Custodian to cancel an allotment and even if there be some circumstances justifying cancellation of allotment, the allotment can only be held to be cancelled when it is actually cancelled under the above provision of law.
(6) It has next been argued on behalf of the appellants that because of the auction sale of the plot in question in September 1960 the respondent is not entitled to recover damages for use and occupation. No such argument has, however, advanced before the Court below that the aforesaid plot had been auctioned in September 1960 and as it relates to a question of fact I am of the view that it should not be allowed to be raised in second appeal. Apart from that, even if it may be assumed that the plot in dispute was sold in September 1960, it would not materially affect the present case because it relates to damages for use and occupation for the period from July 1, 1957 to June 30, 1960 which was prior to the alleged auction.
The appeal, accordingly, fails and is dismissed. In the circumstances of the case, I leave the parties to bear their own costs of the appeal.
(7) Appeal dismissed.