LAWS(MPH)-1995-6-4

SARDAR PARAMJEET SINGH Vs. PRABHAT KUMAR SHRIVASTAVA

Decided On June 22, 1995
SARDAR PARAMJEET SINGH Appellant
V/S
PRABHAT KUMAR SHRIVASTAVA Respondents

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 18-3-1994 passed in Civil Suit No. 2-A of 1991, by the learned Sixth Additional Judge to the Court of the District Judge, Jabalpur, decreeing the plaintiffs' suit, the defendants have filed the present appeal under Section 96 of the Code of Civil Procedure. The brief facts leading to the case are that the plaintiffs filed a suit alleging that the suit property was purchased by them on 23-10-1986. Defendant No. 1 was in occupation of the ground floor as licensee of Smt. Kripawatibai. The plaintiffs further allege that one Usha Rani was the niece of Kripawati, the said Usha Rani was kept as a licensee in the premises so that she could look after Smt. Kripawati. After the death of Usha Rani, defendant No. 1, with his sons, namely, Arjun Singh and Ajit Singh, was in occupation of the premises. The plaintiffs further contended that on 14-7-1983, defendant No. 1 informed Smt. Kripawati that contrary to the wishes of Smt. Kripawati, defendant No. 1 would not live or reside in the house. The plaintiffs contended that after the sale of the premises, the licence stood revoked. Defendant No. 1 assured vacation of the premises but continued to remain in the premises. The plaintiffs, therefore, by their notice, dated 27-1-1987 asked defendant No. 1 to remove his occupation. The plaintiffs further submitted that they were entitled to a decree for a mandatory injunction, so also, a decree for mesne profits.

(2.) DEFENDANT No. 1 contended that the plaintiffs are not the owners of the property but, in fact, the property belonged to Smt. Usha Rani, who was the wife of defendant No. 1. It was further alleged that up to her death on 2-11-1982, Usha Rani resided in the premises as an absolute owner and in view of the Will executed by Usha Rani defendants Nos. 2 and 3 are in occupation of the premises as absolute owners, it was also contended that Usha Rani was residing in the premises as licensee. It was also submitted that the original Will executed by Devi Prasad Shrivastava, husband of Smt. Kripawati, is in possession of Kripawati, the same be summoned and the suit, otherwise, be dismissed, as Smt. Kripawati, the alleged owner was not joined as a party. After hearing the parties, the learned trial Court held that the plaintiffs are the owners of the house in suit and have acquired title by virtue of the sale deed, dated 23-10-1986. It also held that defendant No. 1 was a licensee on the ground floor. It also held that defendants Nos. 2 and 3 are not occupying the premises in their independent rights. Holding that the licence has been properly terminated, the defendants are liable to vacate the premises, the trial Court held that the plaintiffs are entitled to mesne profits at the rate of Rs. 3,000/- per month. It also held that Barrister Devi Prasad did not bequeath the property in favour of Usha Rani, nor Usha Rani bequeathed the property in favour of defendants Nos. 2 and 3. Being aggrieved by the said judgment and decree, the defendants have preferred this appeal.

(3.) IN the appeal, an application under Order 6, Rule 17, Civil Procedure Code, for amendment of the written statement has been filed by the appellants seeking various amendments. By the application for amendment, the defendants want to contend (a) that no decree for payment of future mesne profits can be granted in view of the provisions of Order 20, Rule 12 of the Code of Civil Procedure, (b) that the plaintiffs have neither valued the suit properly and legally nor have paid proper court fee. According to the allegations made in the plaint, the suit property is worth Rs. 4,50,000/- and the plaintiffs have not valued the suit properly, (c) that Smt. Kripawati never executed the power of attorney dated 21-3-1985 or 10-7-1990. The documents are forged and fabricated and have been manufactured by Vijay Kumar in collusion with the plaintiffs. Smt. Kripawati never appeared before the Sub-Registrar and Vijay Kumar was neither legally competent to sign the sale deed, nor to present the same for registration. The said sale deed is hit by the. provisions of Sections 32 and 33 of the Indian Registration Act, (d) that the suit as framed for relief of mandatory injunction is not tenable in the eyes of law because the defendants are in exclusive possession of the property and the suit for possession alone is maintainable and the Court below was wrong in granting a decree for possession under the garb of relief of mandatory injunction.