RSA No.204 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.204 of 2008 (O&M) Date of Decision: 29.01.2009 Dyal Singh ..Appellant Vs. Faqir Singh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Puneet Jindal, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) CM No.681-C of 2008 This is an application under Section 5 of the Limitation Act for condonation of delay of 3 days in filing the appeal. For the reasons stated in the application, civil misc is allowed and delay of 3 days in filing the appeal is condoned. CM No.682-C of 2008 This is an application for condonation of delay in refiling the appeal. RSA No.204 of 2008 (O&M) 2 For the reasons stated in the application civil misc is allowed and delay of 96 days in refiling the appeal is condoned. RSA No.2578 of 2008 This regular second appeal is directed against the judgment and decree passed by the learned courts below vide which suit filed by the plaintiff for mandatory/permanent injunction stands dismissed. The plaintiff/appellant brought this suit claiming himself to be the owner of the property in dispute and claiming that the defendant was a licencee who has refused to vacate the premises. The suit was contested where a plea was taken that the defendant/respondent is in possession of the suit property under an agreement to sell and therefore, his possession is protected under Section 53-A of Transfer of Property Act. On the pleadings of the parties the learned trial court was pleased to frame the following issues:- 1. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP 2. Whether the plaintiff is entitled to decree of consequential relief of permanent injunction? OPP 3. Whether the suit in the present form is not maintainable? OPD 4. Whether the suit is barred on act and conduct of the plaintiff? OPD 5. Whether the suit is bad for non-joinder and misjoinder RSA No.204 of 2008 (O&M) 3 of necessary parties? OPD 6. Whether the suit is without cause of action and mala fide? OPD 7. Relief. Issues No.1 and 2 were decided against the plaintiff, whereas issues Nos.3 to 6 were decided against the defendant/respondent. Consequently, the suit was dismissed. The findings recorded on appreciation of evidence by the learned trial court stands affirmed by the learned lower appellate court. Learned counsel for the appellant contends that the following substantial question of law arise for consideration in this appeal:- 1. Whether in a suit of such nature when ownership of plaintiff is admitted by the defendant, the onus to show legal possession shifts on the defendant, if so whether the courts have proceeded to decide the present suit correctly? In support of the substantial question of law, the learned counsel for the appellant contends that once it was admitted that the plaintiff was owner of the property in dispute it was for the defendant to have shown in what capacity, he was holding possession. The suit deserved to be decreed as the defendant had failed to discharge the onus. However, the plea of the learned counsel for the appellant is totally misconceived. A specific stand was taken by the defendant that he was in possession of the property under an agreement to sell vide which RSA No.204 of 2008 (O&M) 4 possession was given to him and thus, was entitled to protect his possession. It was for the plaintiff/appellant to prove that he was licencee of the plaintiff/respondent to seek mandatory injunction. The plaintiff failed to lead any evidence in support of the case set up. The learned courts below were thus right in dismissing the suit. No substantial question of law as raised arise in this appeal for consideration. No merit. Dismissed. 29.01.2009 (Vinod K.Sharma) rp Judge