RAMESH NARU Vs. GULSHAN RAI MALIK

JUDGEMENT

(1.) The plaintiff-appellants filed this suit against defendant-respondents for mandatory injunction on the ground that the house in dispute was owned by defendant-respondent Nos. 7 to 12 who sold the same to the plaintiff-appellants for a consideration of Rs. 30,000/- vide registered sale deed dated 9th February, 1983. It is further stated in the plaint that Hans Raj father of defendant-respondents Nos. 1 to 6 was Munim of defendant-respondents Nos. 7 to 12 and used to maintain their property and in lieu thereof the house in dispute was given to Hans Raj as a licensee for his residence. Defendant-respondents Nos. 1 to 6 are therefore, in possession as licensee after the death of Hans Raj as 'they were' allowed to retain possession as such on transfer of the house to the plaintiff-appellants, the licence was terminated and, therefore, this suit for mandatory injunction for vacating the house.

(2.) The defendant-respondents Nos. 1 to 6 contested the suit and pleaded that Hans Raj, their father, was the owner and they are in possession as his successors. Sale deed, if any, was said to be a fictitious document, the same being without consideration and any authority. They also denied their knowledge of their father being a Munin of defendant-respondent Nos. 7 to 12 there were eight issues and issue No. 2 was as to whether defendant-respondents Nos. 1 to 6 were in possession as licensees. The trial Court held the plaintiff-appellants to be the owners and defendant-respondents Nos. 1 to 6 to be the licensees and on these findings the suit was decreed. The defendant-respondents Nos. 1 to 6 filed an appeal before the first appellate Court and vide judgment and decree of the first appellate Court the finding of defendant-respondents Nos. 1 to 6 being licensees were reversed. On that finding the first appellate Court held that the suit for mandatory injunction was not maintainable.

(3.) Learned counsel for the appellants has not been able to point out any infirmity in the finding given by the first appellate Court. The first appellate Court also reversed the finding given on issue No. 1 and held that plaintiff-appellants were not proved to be owners of the house in dispute in as much as the evidence adduced on record could not link the house in dispute with the property unit, mention of which was made in documents Exhibit P.A. to P. C. and the oral evidence of the parties on record was evenly set up on the question of title of ownership of the suit house. The lower appellate Court also held that in order to succeed in the suit claim, it was imperative for the plaintiff-appellants to establish the ownership of the defendant-respondents Nos. 7 to 12 in respect of the house in dispute. I have gone through the record and the judgment of the first appellate Court. The reasoning given by the first appellate Court is that one of the vendors, namely, Kewal Krishan D.W.1. admitted that Hans Raj had died about 16 years ago and evidently by virtue of Section 62(f) and (g) Indian Easement Act, 1882 licence qua the suit house in favour of licensee Hans Raj must be deemed to stand revoked on his death. The evidence of the contesting defendant respondent Nos. 1 to 6 was that they had always held out themselves to be owners of the suit house and that the inhabitants of the village too had treated them as such. The 1st Appellate Court further held that to this end there was preponderance of evidence brought on record and that notice worthy point was that there was no probable evidence to prove that after the death of Hans Raj defendant-respondents Nos. 7 to 12 allowed the successors-in-interest of Hans Raj for some consideration as licensees to continue in occupation of the suit house. As such, the first appellate Court ultimately found that the defendant-respondents Nos. 1 to 6 were in possession in their own right, since nothing to the contrary was established from the evidence adduced and in such a situation suit for mandatory injunction was not maintainable.