The main legal point established in the judgment is that the suit for mandatory injunction for possession is maintainable within 3 years from the date of determination of the license, and the relief claimed in the suit was essentially one for recovery of possession.

Pankaj Mithal, J.

Heard Sri A.K. Upadhyay, holding brief of Sri S.C. Pandey, learned counsel for the defendant appellant and Sri Sumit Daga, learned counsel for plaintiff respondent.

2. The plaintiff respondent after terminating the licence of the defendant appellant vide notice dated 10.04.01 instituted a suit on 14.11.2005 for mandatory injunction directing the defendant appellant to handover possession of the demised premises. The suit has been decreed by the courts below.

3. In assailing the judgment, order and decree of the courts below the submission of learned counsel for the appellant is that? the suit for mandatory injunction was barred by limitation. The relief of possession is ancillary and therefore the limitation provided for recovery of possession would not be attracted.

4. On the other hand, learned counsel for the plaintiff respondent submits that after the determination of the licence a suit for possession in the form of mandatory injunction is maintainable and where the suit is not immediately filed then a suit for recovery of possession for which the limitation is 12 years is permissible subject to payment of requisite court fees.

5. The court below has considered the issue of limitation while deciding issue No.6 to the effect as to whether the suit was barred by time. The court of first instance noticing the date of determination of tenancy, the date of filing of the suit and that the suit for mandatory injunction for possession is maintainable, concluded that the relief claimed by the plaintiff respondent in the suit is virtually one for possession and the same is within limitation.

6. The Limitation Act, 1963 (hereinafter referred to as the Limitation Act) does not provide for any limitation for a suit for mandatory injunction. Therefore, the suit for mandatory injunction would be covered by the residuary clause of Article 113 of the Act where limitation for suits is three years. Article 113 of the Limitation Act prescribes limitation of three years from the date when the right to sue accrues for instituting a suit in respect of matters not otherwise provided under the Act.

7. In the instant case, the right to sue for recovery of possession accrued with the determination of the licence vide notice dated 10.4.01. The limitation for instituting a suit for mandatory injunction for direction to recover possession would be 3 years from the said date as provided in Article 113 of the Limitation Act; whereas a suit for recovery of possession? can be filed within 12 years from the said date as provided under Article 66 of the Limitation Act. Therefore, in these circumstances, it is to be seen whether the present suit is to be treated strictly a suit for mandatory injunction or that for recovering of possession.

8. In AIR 1985 Supreme Court 857 Sant Lal Jain, Vs. Avtar Singh, it has been very clearly laid down that once a licence is terminated, the licencee is under an obligation to handover possession of the demised premises to the licensor and in case he fails to do so, the licensor has a right to bring about a suit for mandatory injunction as provided under Section 55 of the Specific Relief Act, 1963. It has further been laid down that where licensor brings about the suit immediately on the termination of the licence, he is entitle to injunction. On the other hand, if the suit is brought a little later, the court in his discretion may refuse the grant of injunction in which case he has to bring a suit for possession and pay court fees accordingly. It further held that though the prayer made in the suit was in the form of a suit for mandatory injunction but in effect the prayer was one for possession of the property and a party should not be denied? the relief of possession merely because he had made a prayer for mandatory injunction.

9. In view of the aforesaid authority it is apparent that the licensor has both the remedies of a suit for mandatory injunction or for recovery of possession. If he brings t