Manohar Singh v. Baldev Singh & Ors.

Mr.Vikas Bahl, Advocate, for the appellant. ---

1. Whether Reporters of Local Newspapers may be allowed to see the judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal by the plaintiff/appellant, is directed against the judgment and decree dated 26.8.2009, passed by the learned courts below, vide which the suit filed by the plaintiff/appellant for mandatory injunction, directing the defendants to cease to use and occupy RSA No.521 of 2009 2 the property as shown in the site plan, stands dismissed. The plaintiff filed a suit for mandatory injunction on the pleadings that the plaintiff/appellant was the owner of the house in dispute and was given, to the defendants as licencee, for use and occupation without any consideration. The suit was filed against his brother, defendant No.1, his nephew defendant No.2 and his sister-in-law, defendant No.3 i.e. wife of defendant No.1. It was pleaded case of the plaintiff, that at the time of giving the property on licence to the defendants, it was agreed that the defendants would stop to use and occupy the house in question on demand, but they refused to accede to the request of the plaintiff. The suit was contested by raising preliminary objections qua locus standi, maintainability, estoppel and non joinder of necessary parties etc. On merit, it was asserted that the property belongs to Hukam Singh, father of defendant No.1, and that the plaintiff is residing in Canada along with his wife and children. Other averments made were denied. Defendant No.2 was proceeded against ex parte. Learned courts below, on appreciation of evidence have recorded a concurrent finding of fact, that the plaintiff was not entitled to decree for mandatory injunction, as the plaintiff failed to produce any document, showing his ownership or right in the property. No document was produced to prove the licence. The sale deeds produced by the defendants were objected to by the plaintiff for want of pleadings. RSA No.521 of 2009 3 Learned trial court recorded a positive finding, that the plaintiff/appellant is residing at Canada along with his family. It was also proved that the property was not purchased by the plaintiff, as he failed to produce any title deed in this regard. It was further recorded that even if the plaintiff is taken to be co-owner, still his plea that the property was given on licence could not be accepted. Concurrent finding was also recorded that the plaintiff failed to prove that the property was given on licence. Other issues framed on the basis of preliminary objections were decided against the defendants, as these were not pressed. Similarly issues regarding maintainability of the suit, and whether site plan produced by the plaintiff was correct, were also decided against the defendant/respondents. The suit was dismissed. Findings were affirmed by the learned lower appellate court. Learned counsel for the appellant, contends that this appeal raises the following substantial questions of law, for consideration by this court:

1. Whether the findings recorded by the learned courts below are the outcome of misreading of Ex.P.7 dated

31.3.1997 under which title of the property was transferred in favour of the plaintiff?

2. Whether the licencee being gratuitous is estopped from denying the ownership of the licencer? In support of the substantial questions of law, referred to above, learned counsel appearing on behalf of the appellant, referred to document RSA No.521 of 2009 4 Ex.P.7 which was said to be an agreement, under which property was transferred to the plaintiff, as an absolute owner. It was also the contention of the learned counsel for the appellant that the defendants being licencee were bound to stop the use of the property on demand. In support of the contention the learned counsel for the appellant, placed reliance on the judgment of Hon'ble Supreme Court in the case of Amteshwar Anand Vs. Virender Mohan Singh and Ors. 2006 (1) PLR 214 to contend that Ex.P.7, did not require registration and the courts should lean in favour of upholding a family arrangement instead of disturbing the same, on technical or trivial grounds, particularly when the parties have mutually received benefits under the arrangement. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. Reading of the plaint itself shows, that no case of ownership was set up in the plaint, nor reliance was placed on Ex.P.7, this being beyond pleadings, could not be read into evidence to hold that the judgment passed by the learned courts below was the outcome of misreading of evidence or misreading of Ex.P.7, as contended by the learned counsel for the appellant. It is also not understood, as to how owner of the property could maintain suit for mandatory injunction against a licencee/person in possession restraining him from using the property. Thus, the suit filed was not competent, specially when plaintiff failed to prove that respondents/defendants were licencees under him. Learned counsel for the appellant, referred to stand taken by the RSA No.521 of 2009 5 defendants to assert that their case was not proved. This plea again is misconceived, it is well settled law that the plaintiff has to stand on his own legs and cannot take any benefit from the weakness of the defendants' case. It also cannot be said that the defendants were required to stop use of the property, on his asking as the learned courts below have recorded a concurrent finding of fact, holding that the plaintiff failed to prove that the defendants were his licencee, nor he was able to prove his ownership. The substantial questions of law therefore are decided against the the appellant. The appeal is accompanied by an application under Order 41 Rule 27 read with section 151 of the Code of Civil Procedure for producing on record certain documents by way of additional evidence Annexures AX- 1, AX-2 and AX-6. The documents are said to be necessary for adjudication of the case. This application is totally misconceived, as by way of additional evidence plaintiff/appellant, cannot be allowed to set up new case and the documents sought to be produced otherwise will not be relevant as these are beyond pleading, thus, not admissible. Consequently, the application for additional evidence is also dismissed. For the reasons stated above, finding no merit in the appeal it is dismissed in limine.

11.03.2010 (Vinod K.Sharma) Judge