JAI BHAGWAN Vs. SUMER CHAND

JUDGEMENT

(1.) The plaintiff filed an application for amendment of plaint seeking permission to claim the relief of possession in the alternative. The suit was filed for mandatory injunction on the basis of title alleging that the defendant-respondent was a licensee under the plaintiff. Defendant contested the suit on the ground that the sale-deed in favour of the plaintiff was benami and the defendant-respondent was the real owner. The trial Court agreed with the argument of the defendant-respondent's counsel and has declined the amendment. The argument of the defendant-respondent's counsel was that a suit for injunction against the defendant as a licensee cannot be converted into a suit for possession against the defendant as a trespasser. According to the trial Court both these pleas are contradictory.

(2.) I have heard the arguments of the counsel for the parties and have gone through the photostat copy of the original plant.

(3.) In the original plaint the plaintiff claims to be the owner vide sale-deed dated 31.7.1981. The defendant being the nephew of the plaintiff-petitioner was said to have been residing and allowed to use the premises as a licensee. It is further averred that the defendant did not pay the licence fee and had rather started some construction on the first floor of the house without the consent of the plaintiff. The defendant-respondent contested the suit and denied his character as licensee. Plaintiff's title was also denied. Rather the title in the property claimed by the respondent-defendant himself. Vide his application for amendment the suit for mandatory injunction is tried to be converted into a suit for possession. The main relief in the original suit as also now the suit in the amended form is for possession. The nature of the suit is the same, relief is the same and only the form is different. Earlier it was a suit for mandatory injunction directing the defendant-respondent to vacate possession. Now after amendment it will be a suit directly for possession. The trial Court dismissed the application distinguishing the present suit from the original suit and has held that the plaintiff desires to seek possession on the basis of title and thus, taking a contradictory plea. The trial Court is wrong when it says that now a contradictory plea is being sought to be raised. As a matter of fact earlier suit was also filed on the basis of title. The licence of the defendant-respondent having been revoked by his own act and now this suit is also based on title seeking directly possession of the property the defendant-respondent being in possession without any right or title.