JUDGMENT :

Vikram Aggarwal, J.

1. This is defendant's appeal against the judgment and decree dated 06.10.1992 passed by the Court of Additional District Judge, Sirsa dismissing the appeal filed by the defendant against the judgment and decree dated 21.05.1991 passed by the Court of Sub-Judge, First Class, Sirsa vide which the suit for mandatory injunction filed by the plaintiff was decreed.

2. For the sake of convenience, the parties shall be referred as per their original status.

3. Parties to the lis are real brothers, both being sons of one Nand Lal. The plaintiff (Sita Ram) instituted a suit for mandatory injunction to direct the defendant (Jagan Nath) to vacate and deliver possession of the first floor of a house (fully described in the plaint) situated in Gali Khaiwali inside Rania Gate, Sirsa (hereinafter referred to as the disputed property). The plaintiff claimed to be the owner of one big house which was earlier under the ownership of his father Nand Lal. The plaintiff acquired ownership of the said house by way of judgment and decree dated 14.08.1974 passed by the Court of Sub-Judge, Sirsa in Civil Suit No. 544 of 1974 titled as Sita Ram Vs. Nand Lal. The defendant, who was the real brother of the plaintiff and was earlier a Government employee was stated to have been residing with his family members in portion ABCD in the said house. He had been occupying the disputed property with the consent of Nand Lal as his licensee. It was averred that since Nand Lal had transferred the land to the plaintiff, the defendant became a licensee under him.

3.1 The defendant started picking up quarrels with the plaintiff, his other brothers and even with his father Nand Lal. The defendant got the plaintiff and his brother Madan Lal challaned under Section 107/151 of the Code of Criminal Procedure (for short Cr.P.C.) on account of the differences which had cropped up between the brothers. The defendant was requested to vacate the disputed property. However, he kept on putting off the matter.

3.2 In February 1982, when the defendant was requested to vacate the disputed property, he got enraged and even threatened the plaintiff and his family members. The license was revoked in 1982, after which the suit was filed.

4. The suit was opposed by the defendant. In the written statement, certain preliminary objections as regards maintainability, the suit being bad for non-joinder of necessary parties, limitation, locus standi, cause of action, the plaintiff having concealed true facts etc. were raised. It was also averred that since the contents of the plaint were those of a suit for possession, Court fee on the market value should have been affixed.

4.1 On merits, it was admitted that Nand Lal was the owner of the house. It was denied that plaintiff had become owner of the same by way of judgment and decree dated 14.8.1974 (Ex.P3), which was stated to be a result of fraud and misrepresentation. It was averred that during the lifetime of Nand Lal, he had given the disputed property to the defendant and the remaining portion to Chiranji Lal, who was the other brother of the parties. It was also averred that permanent construction had been raised by the defendant in his portion as a result of which, the plaintiff had no right to claim the disputed property. Otherwise, the relationship between the parties was admitted. All other averments were denied.

5. In the replication filed to the written statement, the averments made in the written statement were denied and those made in the plaint were reiterated.

6. From the pleadings of the parties, following issues were framed:-

'1. Whether the plaintiff is owner of the property in dispute, if so, to what effect? OPP

2. If issue No.1 is proved, whether the defendant is a licencee in the disputed house? OPP

3. Whether the suit is not maintainable in the present form? OPD

4. Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? OPD

5. Whether the suit is time barred? OPD

6. Whether th