NARAIN DASS Vs. PRITHVI RAJ

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 06.09.2004 which had reversed the findings of the trial Judge dated 08.10.2002. Vide judgment and decree dated 08.10.2002, the suit filed by the plaintiff i.e.<APL> Narain Dass </APL>against his brother<RP> Prithvi Raj</RP> seeking possession of the suit property (i.e. the property on the first floor of quarter No. D-68/B, Madipur, old Slum Quarters, Paschimpuri, New Delhi) was decreed in his favour. The relief of permanent injunction had been denied. The impugned judgment dated 06.09.2004 had reversed this finding. The suit of the plaintiff stood dismissed. The case of the plaintiff as is evident in the pleadings is that he was allotted the first floor of residential quarter No. D-68/B, Madipur, Old Slum Quarters, Paschimpuri, New Delhi vide allotment letter dated 25.05.1983. Possession of the same was delivered to him at the spot on 26.05.1983. The defendant was his brother. He was married in June, 1985. At that time, he was residing on the ground floor along with his father. Since accommodation of the ground floor was not sufficient, at the request of father of the plaintiff, the plaintiff allowed the defendant permissive use of two rooms along with a kitchen (shown in red colour in the site plan) to the defendant. The plaintiff thereafter requested the defendant to vacate the suit property but the defendant threatened him with dire consequences. Notice dated 25.11.1996 was issued to the defendant terminating his license. Inspite of requests, the defendant did not vacate the suit property. Suit was accordingly filed.

(2.) IN the written statement, the defence of the defendant was that there was a joint family of their father Ganpat Rai who was the father of both the plaintiff and the defendant. The property was in the name of Ganpat Rai. There was no specific denial to the averment made by the plaintiff that this allotment of the first floor of the suit property had been effected in the name of the plaintiff. The trial Judge had framed the following two issues:-

(3.) ON behalf of the appellant, it has been urged that the impugned judgment is a perversity. A suit for mandatory injunction in the present form was maintainable; relief of possession could have been sought. For this proposition, reliance has been placed upon a judgment reported in AIR 1985 SC 857 Sant Lal Jain Vs. Avtar Singh as also another judgment reported in AIR 1958 Calcutta 179 Prabirendra Nath Nanday and Another Vs. Narendra Nath Nanday. It is further submitted that there was no documentary evidence with the plaintiff to prove his claim qua the suit property. Arguments have been countered. Record has been perused. Ex. PW-1/A is the allotment letter whereby the plaintiff had been allotted the present suit property in lieu of earlier allotment of quarter No. D-76/B. This document is admitted by the defendant in his written statement; in terms thereof the plaintiff had been allotted this quarter. Specific contention of the plaintiff was that the defendant was a licensee in the suit property; his license stood terminated vide notice dated 25.11.1986. The said notice has been proved as Ex. PW-1/D. The defence of the defendant was that by oral agreement, he and his father were allowed to occupy the suit property was never substantiated because no defence was led on this score.