Regular Second Appeal No. 4756 of 2010 (O&M) -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 4756 of 2010 (O&M) Date of Decision: December 09, 2010 Mukesh Kumar and another ---Appellants versus Parmanand ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Sameer Sachdev, Advocate, for the appellants *** GURDEV SINGH, J. The appellants-defendants have preferred this second appeal against the judgment and decree dated 1.10.2010 passed by Additional District Judge, Ambala, vide which their appeal against the judgment and decree dated 1.12.2009 passed by Civil Judge(Senior Division), Ambala, decreeing the suit of the respondent-plaintiff for mandatory injunction directing them to hand over the vacant possession of the property in dispute, within a period of two months of the passing of the judgment, and to pay the mesne profits at the rate of ` 200/- per month, from the date of filing of the suit till the delivery of the vacant possession of the property, was Regular Second Appeal No. 4756 of 2010 (O&M) -2- dismissed. The case of the plaintiff is that he is the owner of the property in dispute which had been given to defendant No. 1, who is his son, as a licensee for running his business but later on he started misbehaving with him and as a result thereof, he turned him out from his house. Defendant No. 1 closed his independent business and started business in the name and style of M/s EMM EMM Garments and forcibly dispossessed him from his other shop, in which he was carrying on his business. Feeling aggrieved by the misbahaviour of defendant No. 1, he terminated his license by serving notice dated 12.5.2002 through registered post and called upon him to hand over the vacant possession of the shop within 15 days from the receipt of that notice. The suit was contested by the defendants. It has been pleaded in the written statement that the suit property is owned by defendant No. 1 and the plaintiff has no concern therewith and is unnecessarily harassing the defendants by creating hurdles in their way. It is the plaintiff, who is misbehaving with them as he did not join the marriage of his own brother. When they are in possession of the property in dispute as owner, there is no question of payment of mesne profits. In replication to the written statement, plaintiff denied the contentions made therein and reiterated his averments made in the plaint. On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether the plaintiff is owner in possession of the disputed property?OPP 2. If first issue is proved, whether the plaintiff is entitled for Regular Second Appeal No. 4756 of 2010 (O&M) -3- mandatory injunction as prayed for?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 6. Relief To succeed in the suit, the plaintiff examined himself as PW-4, Mohinder Singh Bagga, PW-1, Pawan Kumar, PW-2 and Som Nath Clerk, PW-3. On the other hand, defendants examined Krishna Rani, DW-2, Kimti Rai Aggarwal, DW-3. Defendant No. 1 himself entered the witness box as DW-1. After going through the evidence, so produced on the record and hearing counsel for both the sides, learned trial court decided all the issues in favour of the plaintiff and resultantly decreed his suit. I have heard learned counsel for the defendants. It has been submitted by counsel for the defendants that the defendants were tenants in the shop in dispute and the plaintiff miserably failed to prove that he inducted them as licensee. Wrong findings were recorded by the lower courts without taking into consideration the fact that the possession of the defendants over the shop in dispute was as tenants and they have produced evidence also to that effect, which was over looked by those courts. He has also submitted that the application has been filed along with the present appeal for additional evidence, which will help the Court to decide the controversy between the parties. Regular Second Appeal No. 4756 of 2010 (O&M) -4- The arguments so raised, run counter to the stand of the defendants taken by them in the written statement. It was never their case that they were in possession of that shop as tenants. Defendant No. 1 claimed himself to be the owner of the property. In the absence of any pleadings, the evidence produced by the defendants that they were coming in possession as tenants was not to be looked into by the lower courts. It cannot be said that any substantial question of law is involved, in view of the concurrent findings of facts recorded by both the courts below. Additional evidence, which the defendants want to adduce, is regarding their tenancy and in the absence of any plea to that effect, no additional evidence can be allowed. There is no merit in this appeal and the same is hereby dismissed. The appellants-defendants are to vacate the demised shop and to deliver the vacant possession thereof to the respondent-plaintiff within one month from the passing of this order. (GURDEV SINGH) JUDGE December 09, 2010 PARAMJIT