The relief of mandatory injunction is in effect a relief of possession as available against a licensee.

Valmiki J. Mehta, J.

1. This Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) is filed against the concurrent judgments of the Courts below; of the trial Court dated 6.8.2011 and the first appellate Court dated 21.7.2012; by which the suit of the respondent/plaintiff has been decreed for possession and mesne profits against the appellant with respect to suit property bearing No.1-B, Block-E, measuring 110 sq yds part of khasra No.466, 467 and 468 situated in the abadi of Jawahar Park, Shakarpur Ext, Village Mandawali Fazalpur, Shahdara, Delhi now known as E-1/B, Jawahar Park, Laxmi Nagar, Delhi-92 shown in red in site plan Ex.PW1/1.

2. The respondent/plaintiff is the step-mother i.e the appellant No.1/defendant No.1 is the step-son. On account of deterioration of their relations, respondent/plaintiff terminated the gratuitous licence of the appellants/defendants in the suit premises by means of the legal notice dated 18.8.2008, Ex.PW1/7, but since the appellant/defendant failed to vacate the suit property, the subject suit for possession came to be filed.

3. Before me, counsel for the appellant has argued the following aspects:-

"(i) The trial Court had no pecuniary jurisdiction and the suit was not properly valued, consequentially, the judgment passed by the Court which does not have jurisdiction is liable to be set aside. Alongwith this aspect, it is also urged that the first appellate Court wrongly converted the suit for possession into a suit for mandatory injunction.

(ii) Respondent/plaintiff failed to prove her ownership of the suit property and therefore was not entitled to the reliefs as claimed.

(iii) Both the Courts below have wrongly allowed the claim of damages / mesne profits inasmuch as no evidence was led with respect to mesne profits."

4. In my opinion, all the arguments urged on behalf of the appellant are misplaced and misconceived and liable to be rejected on account of the reasons as given below.

5. So far as the issue of pecuniary jurisdiction and the form of suit is concerned, I do not think in cases such as the present the same would result in a substantial question of law being raised and which is sine qua non for a second appeal under Section 100 CPC. In any case, even if the arguments are considered on merits the same are meritless and cannot be accepted. A reading of the judgment of the trial court with respect to the issue of pecuniary jurisdiction, and which has been dealt with in issue no.4, shows that onus of this issue was on the appellants/defendants and since there was nothing except the oral statements of the appellants/defendants on the value of the property it was held that this issue no.4 has to be decided in favour of the respondent/plaintiff. Relevant observations of the trial court, in this regard, are contained in para 11 of the judgment and which reads as under:-

“11. The onus of proving this issue was on the defendants. In their WS, defendants have raised the preliminary objections that the plaintiff has not properly valued the suit property for the purpose of court fees and jurisdiction and the market value of the suit is Rs.30 lac and the court fees is insufficient and the suit is liable to be dismissed on this ground alone. The defendants have not examined any witness to establish that the market value of the property on the date of filing of the suit was more than Rs.30 lacs as alleged by them. Mere bald assertion by the defendants regarding the market value of the suit property cannot be taken into consideration. Hence, in my opinion, the defendants have failed to discharged the onus cast on them. The issue is accordingly decided in favour of the plaintiff and against the defendants.”

6. The first appellate Court has dealt with this issue in paras 32 to 34 of the judgment and which read as under:-

“32. In the case of Sant Lal Jain Vs. Avtar Singh reported in (1985) 2 SCC 332 the Hon’ble Supreme Court was pleased to hold the Hon’ble S