Smt. Veena Singh Vs M/S Mankameshwar Developers (P) Limited, Lko. Thru. Director Shri Karunesh Kumar Shukla and Others

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Neutral Citation No. - 2025:AHC-LKO:16803

Court No. - 5

1 . Case :- SECOND APPEAL No. - 12 of 2025 Appellant :- Smt. Veena Singh Respondent :- M/S Mankameshwar Developers (P) Limited, Lko. Thru. Director Shri Karunesh Kumar Shukla And Others Counsel for Appellant :- Mohd.Altaf Mansoor,Piyush Kumar Agarwal,Tanay Chaudhary

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Counsel for Respondent :- Pritish Kumar

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&

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2. Case :- SECOND APPEAL No. - 20 of 2025 Appellant :- Smt. Veena Singh Respondent :- M/S Mankameshwar Developers (P) Limited, Lko. Thru. Director Shri Karunesh Kumar Shukla And Others Counsel for Appellant :- Mohd.Altaf Mansoor,Piyush Kumar Agarwal,Tanay Chaudhary

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Counsel for Respondent :- Pritish Kumar

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Hon'ble Abdul Moin,J.

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1 . Heard Shri J.N.Mathur, learned Senior Advocate assisted by Shri Mohd.Altaf Mansoor and Shri Piyush Kumar Agarwal, learned counsels for the appellant and Shri Pritish Kumar, learned counsel for the respondent No.1.

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2 . Second Appeals No.12 of 2025 and 20 of 2025 have been filed praying for setting aside the judgment and decree dated 29.03.2014 passed by the learned Additional Civil Judge (Senior Division), Court No.22, Lucknow dismissing the suit for permanent injunction and declaration and decreeing the defendants' counter claim for mandatory injunction, arrears and damages in Regular Suit No.1270 of 2009 In Re Jaya Prasad Singh & Anr vs M/S Mankameshwar Developers (P) Ltd & Ors as well as judgment and decree dated 05.10.2024 passed by learned Additional District Judge, Lucknow dismissing the appellants Appeal No.110 of 2014 and 109 of

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2014 In Re Jaya Prasad Singh & Anr vs M/s Mankameshwar Developer (P) Ltd & Ors.

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3 . It has been contended that the issue involved in both the second appeals is same. For the sake of convenience, the facts of the Second Appeal No.12 of 2025 are being taken up.

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4 . At the very outset, learned Senior Advocate states that although 17 substantial questions of law have been framed in the appeal, yet only grounds 16 & 17 are being pressed which are as follows:-

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"(16) Whether a person found to be a licensee (rightly or wrongly) can be evicted from the premises without revoking the license?

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(17) Whether the license granted to the appellant could be deemed to be revoked without any of the contingencies having existed mentioned in Section 62 of the Easement Act?"

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5 . Learned Senior Advocate argues that the matter in dispute pertains to a property constructed over a old nazul land bearing Plot No.4 Butlerganj, Lucknow now numbered as Corporation No.27-11, Way road Lucknow.

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6 . The property belonged to Maharaja Vibhuti Narayan Singh who had given it to Shri Aparajita Pratap Singh for the sole purpose of providing residential accommodation Shri Aparajita Pratap Singh resided in the said property till his death on 02.12.1972 (described as 04.12.1972 in another part of plaint) and thereafter the appellant in the capacity of being his daughter-in-law continued to enjoy the peaceful possession and is still in possession of the said property.

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7 . Maharaja Vibhuti Narayan Singh formed the Maharaja Banaras Vidya Mandir Trust and gifted the aforesaid property to the Trust in the year 1972. The Trust is defendant No.3 in the suit.

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8 . In the year 2008, respondent No.1 i.e. M/S Mankameshwar Developers (P) Limited was incorporated. On 03.09.2009, a registered sale deed was executed by the respondent No.3 in favour of respondent No.1 for transfer of the entire property.

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9 . Upon execution of the sale deed, it is alleged that threats were extended to the appellant of being dispossessed from the property with the result that the appellant-plaintiff along with Shri Jaya Prasad Singh instituted a suit namely Regular Suit No.1270 of 2009 before the learned Trial Court praying for (a) permanent injunction; and (b) the plaintiffs being declared as owners. By means of an amendment, the sale-deed dated 03.09.2009 was also challenged.

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10 . During pendency of the suit, the respondents filed their counter claim, which has been allowed. Thereafter the suit was dismissed by the learned trial court vide judgment and decree dated 29.03.2014 and the plaintiff-appellant was directed to deliver the vacant possession of the property in dispute to the respondents No.1 & 2 herein.

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11 . Being aggrieved the appellant filed two appeals which have also been dismissed by the learned appellate court vide judgment dated 05.10.2024.

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12 . Being aggrieved, the instant appeal has been filed on the questions of law as enumerated above.

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13 . So far as question of law is concerned, i.e. whether a person found to be a licencee (rightly or wrongly) can be evicted from the premises without revoking the licence, learned Senior Advocate has placed reliance on the provisions of Sections 61 and 62 of the Easement Act, 1882 (hereinafter referred to as 'Act, 1882') to argue that as per Section 61 of the Act, 1882 revocation of the licence may be expressed or implied. As per Section 62 of the Act, 1882 licence can be deemed revoked in certain circumstances as enumerated in Sub section (a) to sub-section (i) of Section 62 of the Act, 1882 yet none of which conditions are attracted in the facts of the instant case.

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14 . Elaborating the same, learned Senior Advocate has argued that a perusal of the judgment passed by the learned trial court would indicate that the learned trial court has indicated that as the plaintiff/appellant was acting as a caretaker consequently

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there would be deemed cancellation on account of conduct of the plaintiff. Placing reliance on the alleged contrary findings recorded by the learned appellate court in its judgment and order dated 05.10.2024, learned Senior Advocate has argued that the learned appellate court in para 45 of its judgment has observed that the licence was revoked prior to the sale deed dated 03.09.2009 which finding would be in contradiction to the findings recorded by the learned trial court; in para 58 of its judgment learned appellate court has observed that the licence came to an end after execution of the sale deed and then in para 62 of the judgment the learned appellate court has indicated that the licence was ended in the year 2009.

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15 . The argument is that contradictory findings have been recorded by the learned trial court vis a vis learned appellate court to the extent that the appellate court has also recorded contradictory findings in its own judgment and thus once none of the conditions stipulated in Sections 61 and 62 of the Act, 1882 have been considered consequently the judgment of the learned trial court and the appellate court merits to be set aside. 16 . Reliance has also been placed on the statement of the defendants (Page 452 of the Second Appeal) to contend that the defendants have themselves indicated in their examination that they were not aware as to in what capacity of Shri Aparajita Pratap Singh was residing in the said property and thus in absence of any such information there could not have been any revocation of the licence prior to the execution of the sale deed.

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17 . Learned Senior Advocate has also argued that the learned trial court patently erred in rejecting the suit filed by the plaintiff/appellant raising a challenge to the sale deed dated 03.09.2009 on the ground that the plaintiffs had no locus to challenge the sale deed. Although no substantial question of law has been framed in this regard yet the Court has permitted the learned Senior Advocate to argue on the said question also.

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18 . Learned Senior Advocate has argued that as the plaintiff is the resident of the property in dispute and in case any sale deed has been executed for the said property in violation of the terms and conditions governing the Trust as such she would have locus to raise a challenge to the said sale deed which in fact was correctly done by her in the original suit and the learned trial court patently erred in law in rejecting the said challenge on the ground of the plaintiffs/appellants have no locus.

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19 . However, upon a query being put to the learned Senior Advocate to argue the said question on the basis of some judgments or case law to indicate as to how the plaintiffs would have locus to raise a challenge to the sale deed, despite it being in violation of the conditions governing a Trust learned Senior Advocate failed to show any case law or show any provision of law in this regard.

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20 . Learned Senior Advocate argues that considering the contrary findings as recorded by the learned trial court vis a vis learned appellate court and the learned appellate court having contradicted itself pertaining to cancellation of the licence, whether before execution of the sale deed or subsequent thereto, as such it is prayed that both the judgments merit to be set aside and the second appeal merits to be allowed.

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21 . On the other hand, Shri Pritish Kumar who has put in appearance on behalf of respondent No.1 has argued that a perusal of the averments made in the original suit by the plaintiff-appellant more particularly para 8 would indicate that the said property was given for the sole purpose of providing residential accommodation to Shri Aparajita Pratap Singh i.e. Maharaja Dr Vibhuti Narayan Singh had given the said property for the purposes of residence to Shri Aparajita Pratap Singh who lived in the property till his death in December, 1972 and after his death the plaintiff is in possession of the premises which itself indicates that the plaintiff has got no title in law over the aforesaid proper rather admittedly Shri

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Aparajita Pratap Singh had been given the said property only for the purpose of his residence.

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22 . It is also argued that once the plaintiff has got no right or title over the property in dispute and utmost she along with Shri Jaya Prasad Singh can be considered to be a licencee consequently their licence would be governed by the provisions of Section 61of Act, 1882 as such upon execution of the sale deed by the rightful owner i.e. on 03.09.2009 in favour of respondent No.1 herein the said licence would be impliedly revoked and as such even if for the sake of argument it is accepted that any contradictory finding may have been recorded by the learned trial court and the learned appellate court, the same will not and cannot depart from the fact of the plaintiffs being only licence holders utmost and the said licence has been revoked with the execution of the sale deed on 03.09.2009. In this regard, reliance has been placed on the judgment of this Court in the case of Sahab Ram vs Banarsi

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(Since Deceased) : AIR 1997 Allahabad 222 .

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23 . It is argued that this Court in the case of Sahab Ram (supra ) has considered the concept of deemed revocation as provided under the provisions of Act, 1882.

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24 . Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Maria Margarida Sequeria Fernandes & Ors vs Erasmo Jack De Sequeria : AIR 2012 SC 1727 to contend that admittedly the plaintiffs were occupying the property at the instance of owner and that no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

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25. As regards the locus of the plaintiffs to raise a challenge to the sale deed dated 03.09.2009 Shri Pritish Kumar argues that the learned trial court has correctly held that the plaintiffs had no locus to raise a challenge to the sale deed particularly when they had no right or title to the property in dispute and also did

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not have any interest in the property irrespective of their long possession.

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26 . Heard learned counsel for the parties and perused the record.

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27 . From the argument as raised by the learned counsel for the parties and perusal of the record, it emerges that one Shri Maharaja Vibhuti Narayan Singh was the owner of the property in dispute. He had given the said property to Shri Aparajita Pratap Singh for the sole purpose of providing residential accommodation to him. Shri Aparajita Pratap Singh resided in the said property till his death on 02.12.1972 and thereafter the appellant in the capacity of being his daughterin-law is in possession of the property. In the year, 1964, the Shri Maharaja Vibhuti Narayan Singh had formed the Maharaja Banaras Vidya Mandir Trust and gifted the aforesaid property to the Trust. On 03.09.2009 the registered sale-deed was executed by the Trust of the aforesaid property in favour of respondent No.1 herein for the entire property.

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28 . Being threatened with eviction, the appellant-plaintiff filed a regular suit in the year 2009 before the learned trial court praying for permanent injunction and for the plaintiff to be declared as owner. By means of an amendment, the sale deed dated 03.09.2009 was also challenged. The respondents herein filed their counter claim in the said suit.

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29 . Learned trial court vide judgment and decree dated 29.03.2014 dismissed the suit filed by the plaintiff-appellant, counter claim was allowed and the plaintiff-appellant was directed to deliver the vacant possession of the property in dispute.

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30 . Appeals filed by the appellant have been dismissed vide judgment and order dated 05.10.2024. Grounds raised in order to challenge the aforesaid judgments have been enumerated in para 4 above.

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31 . Reliance has been placed on Section 62 of the Act, 1882 to argue that as the appellant is a licencee consequently his

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licence would only be deemed revoked in certain circumstances as enumerated in sub section (a) to sub section (i) of Section 62 of the Act, 1882 yet none of the conditions are attracted in the facts of the instant case.

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32 . It has also been argued that contradictory findings have been recorded by the learned trial court in its judgment wherein it has considered deemed cancellation on account of conduct of the plaintiff vis a vis the judgment of the learned appellate court wherein in one part of the judgment, it has been observed that the licence was revoked prior to the sale deed dated 03.09.2009 and in some parts, it has been indicated that the licence would come to an end after execution of the sale deed.

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33 . Thus controversy is as to when the licence of a licencee can be said to be revoked.

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34 . This aspect of the matter has been considered by this Court in the case of Sahab Ram (supra) wherein this Court after considering the provisions of Section 61 and 62 of the Act, 1882 has held as under:-

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" 12 . In my opinion, the contention raised by Sri Singhal on the basis of clause (c) of Section 62 of the Act is totally misconceived. A licence, which is given for a limited period, is to stand revoked as provided by clause (c) of Section 62 as soon as the period for which licence was granted comes to an end. That does not, however, debar revocation of the licence under any other provisions, i.e., under Section 61, by an express revocation. Even if a licensor has granted a licence, it is open under Section 61 of the Act to revoke the licence by express words. Similarly, the licence for a fixed period shall also stand revoked automatically as soon as property which is subject matter of licence is transferred by the licensor to a third person. Clause (c) of Section 62 will be attracted where provisions of Sections 59 and 61 of the Act are not attracted, at all, i.e. except for express or implied revocation of licence, or revocation of licence on account of sale of property under licence to a third person, the licence shall continue to be in operation and valid

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and shall remain valid till the period for which it was granted expires. Therefore, Sections 59 and 61 of the Act are exceptions to the situations provided under Section 62 for deemed revocation of the licence. In my opinion, the lower appellate court was not correct in holding that since the licence was for the lifetime of the defendant-respondent, it could not be said to have been revoked on account of transfer of the property in suit in favour of the plaintiff-appellant. The lower appellate court has thus committed grave illegality in deciding the question against express provisions of law."

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35 . Likewise, the Hon'ble Supreme Court in the case of Maria Margarida Sequeria Fernandes (supra) has held as under:-

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"94. This Court in Puran Singh v. State of Punjab [(1975) 4 SCC 518 : 1975 SCC (Cri) 608] held that: (SCC p. 527, para 12)

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“12. … an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession.”

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95. This Court in Mahabir Prasad Jain [(1999) 8 SCC 274] has held that the possession of a servant or agent is that of his master or principal as the case may be for all purposes and the former cannot maintain a suit against the latter on the basis of such possession.

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96. In Sham Lal v. Rajinder Kumar [(1994) 30 DRJ 596] the High Court of Delhi held thus: (DRJ p. 600, paras 12-13)

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“12. On the basis of the material available on record, it will be a misnomer to say that the plaintiff has been in ‘possession’ of the suit property. The plaintiff is neither a tenant, nor a licensee, nor a person even in unlawful possession of the suit property. Possession of servant is possession of the real owner. A servant cannot be said to be having any interest in the suit property. It cannot be said that a servant or a chowkidar can exercise such a possession or right to possession over the property as to exclude the master and the real owner of the property from his

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possession or exercising right to possession over the property.

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13. Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of the law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact. To gain the complete idea of possession, one must consider:

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(i) the person possessing, (ii) the things possessed and, (iii) the persons excluded from possession.

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A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and a master.”

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The ratio of this judgment in Sham Lal [(1994) 30 DRJ 596] is that merely because the plaintiff was employed as a servant or chowkidar to look after the property, it cannot be said that he had entered into such possession of the property as would entitle him to exclude even the master from enjoying or claiming possession of the property or as would entitle him to compel the master from staying away from his own property

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. 97. Principles of law which emerge in this case are crystallised as under:

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(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

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(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The

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caretaker or servant has to give possession forthwith on demand.

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(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

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(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.

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(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."

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36 . From perusal of the judgment of this Court in the case of Sahab Ram (supra) , it emerges that this Court has held that a licence which is given for a limited period is to stand revoked as provided by Clause (c) of Section 62 as soon as the period for which the licence was granted comes to an end. However, the same would not debar revocation of the licence under any other provision i.e. under Section 61 of the Act, 1882 by an express revocation inasmuch as if a licensor has granted a licence, it is open under Section 61 of the Act, 1882 to revoke the licence by express words. Similarly, the licence for a fixed period shall stand revoked automatically as soon as the property which is subject matter of licence is transferred by the licensor to a third party.

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37 . In the instant case, the property belonging to Shri Maharaja Vibhuti Narayan Singh was gifted to the Trust, which in turn was sold by the Trust by means of a registered sale deed to the respondents No.1 & 2. Admittedly, Shri Aparajita Pratap Singh had only been given the said property in order to reside therein and consequently as soon as the property was transferred by the licensor, (in this case the trust) to a 3rd person the licence stood revoked.

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38 . The Hon'ble Supreme Court in the case of Maria Margarida Sequeria Fernandes (supra) has held that no one acquires title to the property if he or she was allowed to stay in the premises gratuitously and that even by long possession of years or decades such person would not acquire any right or interest in the said property. Protection of court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour. The Caretaker or agent holds the property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.

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39 . In the instant case, admittedly, Shri Aparajita Pratap Singh was only given the said property to reside and that too gratuitously consequently Shri Aparajita Pratap Singh and his heirs were required to give possession of the said property on demand, in this case, the trust, to whom the property had been gifted by the Shri Maharaja Vibhuti Narayan Singh upon having executed the sale deed in favour of respondents No.1 & 2, consequently, the plaintiffs were required to give possession of the said property.

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40 . Keeping in view the aforesaid discussion, even if certain contradictions pertaining to the revocation of the licence prior to sale deed or subsequent to the sale deed may have crept in the said judgment, the same cannot or will not resile from the fact and the question of law as laid down by this Court in the case of Sahab Ram (supra) and the Hon'ble Supreme Court in the case of Maria Margarida Sequeria Fernandes (supra) of the appellant having no right or title over the property in dispute and the said licence coming to an end automatically as soon as the property is transferred to a 3rd party.

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41 . So far as the ground taken by the learned Senior Advocate of the appellant-plaintiff having locus to raise a challenge to the sale deed, as no case law or any provision of law has been

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shown in this regard, thus, even the said ground is also rejected.

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42 . Keeping in view the aforesaid discussion, no case for interference is made out. The Appeal is dismissed . All pending applications are disposed of.

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Order Date :- 21.3.2025

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prateek

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Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Smt. Veena Singh v. M/S Mankameshwar Developers (P) Limited, Lko. Thru. Director Shri Karunesh Kumar Shukla and Others

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Smt. Veena Singh v. M/S Mankameshwar Developers (P) Limited, Lko. Thru. Director Shri Karunesh Kumar Shukla and Others

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