HASAN ALI Vs. AKBARI BEGUM ALIAS AKBARI HAJJAN

JUDGEMENT

(1.) This Civil Revision Petition under Section 115 of the Code of Civil Procedure is directed against order dated 18.10.2004 passed by the Civil Judge, Delhi.

(2.) I have heard Mr. V.L.Madan, Advocate learned counsel for the petitioner and Mr. Subodh K. Pathak, Advocate learned counsel for the respondent on the point of admission and have gone through the impugned order and copies of the documents filed with the petition. Briefly the facts are that the respondent-plaintiff (hereinafter referred to as the plaintiff) "purchased" a property situated at Joga Bai extension by means of GPA, agreement to sell, etc. The plaintiff was residing in Meerut and never personally occupied the said property. It is the case of the plaintiff that she permitted her younger brother (petitioner-defendant, hereinafter referred to as the defendant), who was in financial difficulties, to use the said property as a licencee. The defendant after taking permissive possession started a milk dairy. Later on she wanted to sell the property. The defendant then became dishonest and wanted to grab her property. She terminated the license but the defendant refused to quit. To get back the possession a suit for mandatory injunction and occupation charges was filed. The prayer clause is as under :-

(3.) The learned civil judge held the suit to be maintainable. Hence this petition. Learned counsel for the petitioner has submitted that admittedly the petitioner-defendant was in exclusive possession of the suit property, therefore, only a suit for possession was maintainable and not a suit for mandatory injunction and that the judgments cited at the Bar had not been properly interpreted and applied by the learned civil judge. Learned counsel has submitted that the substance of the plaint ought to have been seen and not the prayer only. As against this learned counsel for the plaintiff has submitted that the defendant is real younger brother of the plaintiff. He was passing through pitiable financial crisis and had no source of livelihood. Being elder sister the plaintiff allowed him to run a milk dairy in her land so that he could pass his difficult days. This happened in the year 1997. The possession was permissive and no license fee was charged but in due course the defendant's intentions changed and he wanted to usurp her property. He also fabricated some documents and procured electricity connection in his own name without disclosing this to the plaintiff. In the year 2003 the respondent-plaintiff wanted to sell the property because she was in dire need of money and had also received earnest money in the presence of the defendant. The defendant was a witness to the said deed. The defendant had assured her that he would vacate the land but instead he filed a suit for perpetual injunction against the plaintiff on the allegation that he himself was the rightful owner. The said suit is still pending. In these facts and circumstances she terminated his license. Therefore a suit for mandatory injunction for directing the defendant to remove his belongings and handing over the peaceful possession was maintainable.