MANISH SEHGAL Vs. SURINDER KUMAR ARORA

JUDGEMENT

(1.) Present appeal, at the instance of defendant, is directed against the impugned judgment passed by the learned first appellate court, whereby though appeal of the plaintiff was dismissed, however, findings recorded by the learned trial court on issue Nos. 1 to 5, while dismissing the suit for mandatory injunction, were modified.

(2.) Briefly put, facts of the case, as noticed by the learned first appellate court in para 2 and 3 of the impugned judgment, are that plaintiff was owner of barsati floor i.e. 20% share of House No.5, Sector 15-A, Chandigarh which was purchased vide registered sale deed and to that effect requisite transfer of ownership of said house in favour of plaintiff had already been effected in the record of Estate Office, U.T., Chandigarh. It was pleaded that defendant was in occupation of premises in question as licensee. Defendant was inducted as licensee by the previous owners namely Rakesh Mohan Sehgal, Surinder mohan Sehgal and Somesh Mohan Sehgal. Previously, defendant had instituted civil suit seeking relief of permanent injunction against the previous owners not to dispossess him forcibly from the premises in question and, thus, on the statement of previous owners that they will not dispossess him forcibly from the said premises, consequently, above said civil suit was dismissed as withdrawn. It was pleaded that in fact immediately on purchase of premises in question, licence qua said premises in favour of defendant stood terminated. Since factum of purchase of premises in question was brought to the notice of defendant, thus, he had no right, title or interest to retain possession of the premises in question. However, defendant had failed to vacate the premises. It was pleaded that on 19.3.2007, legal notice was served upon the defendant at the instance of plaintiff calling upon him to handover the vacant possession of the premises in question on or before 30.4.2007 but despite service of said notice, defendant had failed to handover the vacant possession of the premises in question in favour of plaintiff. It was pleaded that similarly located accommodation can fetch minimum rent of Rs.10,000/- per month. Thus, plaintiff was entitled to seek damages qua unauthorized use and occupation of the premises in question w.e.f. 1.5.2007 from the defendant till the possession is restored in favour of plaintiff. Since, defendant had failed to comply with the above said aspects, which led to the institution of instant suit seeking relief of mandatory injunction and recovery of damages against the defendant.

(3.) On notice, defendant put in appearance and filed written statement wherein preliminary objection of maintainability had been taken. On merits, it was contended that as a matter of fact, there was no relationship of licensor and licensee between plaintiff and defendant whereas latter was co-owner of House No.5, Sector 15-A, Chandigarh and he was in actual possession of barsati (2 nd) floor of said house. As a matter of fact, house in question was owned by Milkhi Ram Sehgal, who died intestate on 28.5.1982. Milkhi was Sehgal had six sons and two daughters, whereas his wife had expired on 7.1.1983. It was contended that defendant being grandson of said Milkhi Ram Sehgal is co-owner of the house in question. It was contended that Estate Officer, Chandigarh had no jurisdiction to transfer the ownership of the house in question in favour of Rakesh Mohan Sehgal, Surinder Mohan Sehgal and Umesh Mohan Sehgal and the said persons did not induct the defendant as licenseequa barsati floor of the house in question. Even otherwise, the Will on the basis of which Estate Officer, Chandigarh transferred the house in the name of Surinder Mohan Sehgal, Rakesh Mohan Sehgal and Somesh Mohan Sehgal, said Will is a forged and fabricated document which was made on the basis of application for mutation after 20 years of death of Milkhi Ram Sehgal. In fact, father of defendant along with defendant as co-owners started living in the second floor of the house in question w.e.f. April, 1978. It was wrong to plead by the plaintiff that defendant was licensee qua barsati floor of house in question or that he was so inducted by Surinder Mohan Sehgal, Rakesh Mohan Sehgal and Somesh Mohan Sehgal in the said petition. It was contended that defendant had filed a civil suit as co-owner against Surinder Mohan Sehgal, Rakesh Mohan Sehgal and Somesh Mohan Sehgal and in the said case, above said persons made statement to the effect that they will not dispossess him (defendant) forcibly and, thus, on that statement, said civil suit was got dismissed as withdrawn. It was contended that Surinder Mohan Sehgal, Rakesh Mohan Sehgal and Somesh Mohan Sehgal had 1/8th share (12.5%) each in the house in question. Even prior to execution of sale deed of 20% share of the house in favour of the plaintiff, above said Surinder Mohan Sehgal, Rakesh Mohan Sehgal and Somesh Mohan Sehgal had already sold 50% share in the house i.e. more than their share of 37.50 to Smt. Janki Dulari wife of Nand Kishore vide registered sale deed dated 31.5.2004. Thus, above said vendors were left with no right, title or interest in the house, therefore, sale deed dated 8.2.2007 executed in favour of plaintiff is null and void and does not confer any title upon him. It was contended that even as per sale deed dated 8.2.2007, plaintiff was owner to the extent of 20% share in the house but he cannot claim ownership of barsati portion and, thus, he cannot seek possession of Barsati floor or claim damages. It was contended that once defendant is in occupation of barsati floor as co-owner, question of any licence being automatically terminated does not arise at all. It was contended that since no partition of house in question had taken place amongst co-owners, therefore, question of payment of any damages does not arise at all. Even though defendant had already received notice dated 19.3.2007 but there was no reason to give reply to the said notice. In this manner, defendant had categorically denied the claim of plaintiff and prayed for dismissal of suit with compensatory costs.