A suit for mandatory injunction can be considered as a suit for possession, and concurrent findings of fact by lower courts are not subject to interference in the second appeal.

Sat Pal, J.

1. This appeal has been directed against the judgment dated 25.10.1996 passed by the learned Additional District Judge, Ambala. By this judgment, the learned lower appellate court has upheld the judgment dated 29.1.1991 by which the learned trial court had decreed the suit filed by the respondent plaintiff for mandatory injunction for directions to the appellant-defendant to hand over the vacant possession of the shop.

2. This appeal came up for hearing on 28.2.1997 and on that date Mr. R.P.S. Ahluwalia, Advocate who appeared on behalf of the appellant stated that the appellant was and is willing to deposit Rs. 5 lacs toward the arrear of rent and he will do so within two months. From the paper-book. I, however, find that this amount of Rs. 5 lacs was never deposited by the appellant and on the contrary the appellant filed an application under Section 151 CPC for withdrawing the statement dated 28.2.1997. In the application it has been stated that the statement made by the counsel was so irresponsible or erroneous that no such amount is involved in this case. Having given a statement before the court to deposit sum of Rs. 5 lac and thereafter making allegations against the counsel itself is a good ground for dismissing this appeal.

3. Even otherwise after hearing the learned counsel of the parties and having perused the judgments of the courts below, I do not find any merit in this appeal.

4. Mr. Bhag Singh, the learned counsel appearing on behalf of the petitioner has submitted that the suit for mandatory injunction filed by the respondent-plaintiff was not maintainable and in the facts and circumstances of the case the plaintiff could file a suit for possession. This contention is, however, without any force in view of the judgment of the Supreme Court in Sant Lal Jain v. Avtar Singh, A.I.R. 1985 S.C. 857. In that case it was held that the suit in fact was one for possession though couched in the form of suit for mandatory injunction. In the present case also it is the similar case as the suit in the present case is also in fact for possession though couched in the form of a suit for mandatory injunction.

5. The learned counsel for the appellant then submitted that the plaintiff had taken a contradictory stand inasmuch as on the one hand it was pleaded that the appellant-defendant was a licensee but on the other hand it was sought to be proved that the appellant was an employee of the plaintiff. I, however, do not find any merit in this contention also as the two courts have given a concurrent finding of fact that the appellant was a licensee on the basis of evidence on record and those findings of fact do not call for any interference in the second appeal. Another point raised by the learned counsel of the appellant is that the appellant had become owner by adverse possession. On this point also there are concurrent findings of fact given by the courts below that he was not owner by way of adverse possession.

6. In view of the above discussion, the appeal being without any merit is dismissed.