IMPORTANT POINT
Mandatory injunction – If father allows his son or daughter to continue in possession of his house or property or its portion, same does not, by itself, create any legal right in favour of the child to claim that property as his own, unless property is ancestral or of HUF.

JUDGMENT

Reportable

Instant Civil Second Appeal u/s. 100 of Code of Civil Procedure is directed against the judgment dated 21.02.2025 passed in Civil First Appeal No.64/2024, by the Additional District Judge, Sawai Madhopur, dismissing the appellant-defendant’s First Appeal and affirming the judgment and decree dated 19.10.2024 passed in Civil Suit No.8/2019 by the Additional Civil Judge No.2, Sawai Madhopur, whereby and whereunder, while decreeing the Civil Suit for mandatory and permanent injunction filed by the respondent-plaintiff, appellant-defendant has been directed to vacate and handover actual possession of suit property to respondent-plaintiff. The prayer of the plaintiff to award mesne profit against defendant has been disallowed. The counter-claim submitted by the appellant-defendant seeking to restrain respondent-plaintiff by way of permanent injunction has also been disallowed.

2. This is an unfortunate litigation, in respect of immovable property between father and son, continuing since half decade, which shows a notable decadence of ethics and moral values in the society. Appellant-defendant is son and respondent-plaintiff is his father.

3. The relevant facts, in nutshell, as culled out from the record can be recapitulated as under and parties shall be referred as were called before trial Court:-

3.1 A plot measuring 90x112 square feet bearing Plot No.1, situated at Indra Colony, in Sawai Madhopur District, was stated to be jointly purchased by plaintiff and his brother Radheshyam in an auction, conducted by Nagar Palika, Mantown, Sawai Madhopur on 21.08.1974 and the sale deed of plot in question was registered before the Sub Registrar, Sawai Madhopur, in their joint name on 19.09.2003.

3.2 It has been pleaded by the plaintiff in the plaint that plot in question was divided between both brothers with mutual consent and west side portion of the plot measuring 45x112 square feet came in the share of plaintiff and a written document, in conformity with the mutual division of plot came to be executed on 25.08.2003. It was also pleaded therein that plaintiff raised construction of his residential house over his portion of plot and he is sole owner and possession holder of his house.

3.3 It has further been pleaded in the plaint that defendant is son of plaintiff and after his marriage, he was permitted to use two bedrooms, two storerooms, kitchen & let-bath in the house, situated towards southern side, for living along with his wife. It was averred that defendant is residing in the portion of the plaintiff house with his permission and as a licensee.

3.4 It has further been pleaded that defendant’s behaviour has become quite bad with the plaintiff, due to which, plaintiff is continuously facing mental distress. Plaintiff asked his son –defendant, to vacate the portion of his house, but defendant, deliberately evaded his request and has been mistreating the plaintiff, hence, plaintiff has to send a legal notice dated 26.11.2018 to the defendant through Registered Post, revoking permission and license of appellant to live in the house in question and demanded to vacate and handover possession of the portion of his house to the plaintiff. Plaintiff also claimed from defendant to pay Rs.15,000/- per month as mesne profit for use and occupation of the portion in his house until delivery of actual possession of same to the plaintiff.

3.5 It has been pleaded in the plaint that legal notice dated 26.11.2018, sent by the plaintiff, was served upon defendant, who sent a reply notice dated 03.12.2018 through his Advocate narrating untrue and wrong facts. Defendant in reply notice asserted his possession over the portion of house as owner and not as licensee.

3.6 Thereafter, the plaintiff led present Civil Suit on 16.01.2019, for issuance of a mandatory injunction against defendant, directing him to handover actual and vacate possession of the portion of house of plaintiff to him. Plaintiff also prayed to award mesne profit @ R