POORAN CHAND AND ANOTHER Vs. MALIK MUKHBAIN SINGH

JUDGEMENT

(1.) THIS is Defendants second appeal from the decree passed in Plaintiff's favour by the trial Court for mandatory injunction requiring the Defendant to vacate the premises in suit and never to interfere with the possession of the Plaintiff on the ground that their possession was merely that of licensee and not that of a tenant. The Senior Subordinate Judge dismissed the Defendant's appeal.

(2.) THE facts giving rise to this case are that prior to the partition of the country a house situated at 43, Rajpur Road, Civil Lines, Delhi, belonged to one Jafri Begum, an evacuee. A portion ' of the servants' quarters attached to this house was in the occupation of Puran Chand Defendant allegedly as a tenant of Mst. Jafri Begum. On 13th of September, 1946 a deed of exchange was executed (Exhibit P.6) by which Mst. Jafri Begum exchanged this house with the Plaintiff's house in Rawalpindi. The deed was registered on 6th of September 1948. The Custodian declared this to be evacuee property on 28th of January 1948. After exchange the Respondent had actually entered into possession of the premises and had been receiving rent from the Appellants upto December 1949, A number of receipts executed by or on behalf of the Plaintiff have been placed on record and his learned Counsel has not denied the fact that his client was the landlord of the Appellants upto that date. According to the survey effected by the Custodian, after the property was notified as evacuee property on 28th of January 1948, the Defendant was shown as "old occupant" vide Exhibit P.W. 1/3. The Defendant made a statement before the Assistant Custodian on 5th of January 1950 in which he said that he had been paying rent to Mst. Jafri Begum upto 11th of September 1947 and after that he had been paying rent to Malik Mukhbain Singh Plaintiff upto December 1949. He claimed himself as an old tenant of a portion of the house at No. 43, Rajpur Road, Civil Lines, Delhi. On 6th of January 1951 the Defendant addressed a communication to the Custodian of Evacuee Property which runs as under:

(3.) THE Defendant denied the Plaintiff's claim, and on the parties' pleadings the following preliminary issue was framed: