IMPORTANT POINT
Injunction--Mere ownership, if any, could not entitle to seek decree for mandatory injunction from party in possession.

Vinod K. Sharma, J. (Oral).:-

C.M. No. 4620-C of 2009

This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 76 days in refiling the present appeal.

For the reasons stated in the application, C.M. is allowed and the delay of 76 days in refiling the appeal is ordered to be condoned.

R.S.A. No. 1534 of 2009

This order shall dispose of R.S.A. No. 1534 of 2009 and R.S.A. No. 1535 of 2009 both titled as Budh Ram Vs. Mam Chand, as common questions of law and fact are involved.

2. For brevity sake, facts are being taken from R.S.A. No. 1534 of 2009 titled Budh Ram Vs. Mam Chand and others.

3. This regular second appeal is directed against the judgment and decree dated 16.10.2008 passed by the learned Courts below, dismissing the suit filed by the plaintiff/appellant for mandatory injunction, seeking possession of the property from the defendant/respondents.

4. The plaintiff/appellant claimed, that he was the owner of property in dispute and defendant/respondents were licencees under him, whose licence stood revoked by way of legal notice, therefore, he was entitled to decree for mandatory injunction to seek possession.

5. The suit was contested by raising a preliminary objection, that the suit for mandatory injunction was not competent, as the plaintiff/appellant could have filed a suit for possession after affixing ad valorem court fee. Plea was also taken, that the defendant/respondents were not licencees under the plaintiff/appellant, but were owners in possession of the property in dispute, having inherited the same from Bhool Chand, who was the original onwer of the property. It was for the first time in the replication, that the plaintiff/appellant set up a ‘Will’ said to have been executed by Bhool Chand in his favour. In support of the ‘Will’, the plaintiff/appellant did not lead any evidence but relied upon the decree passed by the civil Court, obtained by him against the general public in a suit for declaration.

6. The learned Courts below have been pleased to observe that the decree relied upon is under challenge in the civil Court. The defendant/respondents by way of documentary evidence also placed on record the judgment and decree passed by the civil Courts in the suits filed by the plaintiff/appellant claiming himself to be successor of Bhool Chand on the basis of ‘Will’, which stood dismissed.

7. Be that as it may, in view of the pending suit filed by Mam Chand to challenge the decree, in which the defendant/respondents were not party, the learned Courts below have not gone into the genuineness of the ‘Will’. The plaintiff/appellant was non-suited by recording a finding that he has failed to prove, that the defendants were his licencees so as to maintain a suit for mandatory injunction. The learned Courts below also held that the evidence showed that the defendants were legal heirs of Bhool Chand. A concurrent finding of relationship has been recorded by the learned Courts below on the basis of oral and documentary evidence.

8. The learned counsel for the appellant contends that the appeal raises the following substantial questions of law:-

“1. Whether the learned Courts below erred in holding the defendant/respondents to be legal heirs of Bhool Chand, even though no evidence in terms of Section 50 of the Evidence Act was led, though the relationship was disputed?

2. Whether the judgment and decree passed by the learned Courts below is outcome of mis-reading of Ex. P-20, vide which the plainitff/appellant was shown to be owner in possession in a suit filed by him for redemption?”

9. In support of the substantial questions of law, the learned counsel for the appellant contends, that the defendant/respondents had failed to prove the case set up, as no evidence in terms of Section 50 of the Evidence Act was produced to prove the relationship of defendant/respondents with Bhool Chand. The learned Courts below committed an error in holding the defendant/respondents to be le