RSA No. 1499 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1499 of 2011 (O&M) Date of Decision: 29.03.2011. Bhartu & another .......Appellants Vs. Man Singh ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Dhirinder Chopra, Advocate for the appellants. ..... SABINA, J. Plaintiff had filed a suit for mandatory injunction with consequential relief of permanent injunction. The case of the plaintiff in brief was that he was owner of the suit property bearing Khasra Nos. 502 and 503 marked with letters ABGFCDEH in the site plan. Bullu was earlier a co-sharer qua suit property and had sold his share to Telu Ram vide sale deed dated 17.8.1977. In this regard, mutation No. 1173 was sanctioned. Telu sold his share to Kitab Singh vide sale deed dated 10.1.1985 and mutation no. 1557 was sanctioned in this regard. Now defendants had no right or interest in the suit property. Portion marked ABCD in the site plan was in possession of the plaintiff but on the request, the RSA No. 1499 of 2011 (O&M) -2- defendant was allowed to use the same with the assurance that they will vacate the same as and when desired by the plaintiff. In the month of June 2003, defendants had raised construction over the suit property without the permission of the plaintiff. Hence, suit for mandatory injunction directing the defendants to remove the construction from the suit land marked with letters ABCD in the site plan, was filed. It was further prayed that the defendants be restrained from raising further construction. Defendants, in their written statement, averred that father of defendant No.1 was owner of 10 Marlas of land. Out of the said land, defendant No.1 had sold 7 Marlas of land and the remaining 3 Marlas of land were exchanged by him with the plaintiff. A writing in this regard was executed in the presence of witnesses. After the exchange of property, plaintiff had raised construction over the property belonging to the defendant. Possession of the defendants have ripened into ownership by way of adverse possession. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP 2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP 3. Whether the plaintiff has cause of action and locus standi to file and maintain the present suit? OPP 4. Whether the suit is properly valued for the purposes of Court fee? OPP RSA No. 1499 of 2011 (O&M) -3- 5. Whether the suit of the plaintiff is not maintainable in the present form? OPD 6. Relief.” Vide judgment and decree dated 7.10.2008, Civil Judge (Junior Division) dismissed the suit, filed by the plaintiff. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was allowed by Additional District Judge vide judgment and decree dated 1.2.2011. Consequently, the suit filed by the plaintiff was decreed. Hence, the present appeal by the defendants. Learned counsel for the appellants has submitted that the suit filed by the plaintiff for mandatory injunction was not maintainable. The only remedy available to the appellants was to file a suit for possession. As per Section 41(h) of the Specific Relief Act, 1963 when equally efficacious relief can certainly be obtained by other usual mode, then an injunction cannot be granted. In support of his arguments, learned counsel for the appellants placed reliance on Ram Saran and another versus Smt. Ganga Devi, 1972 AIR (SC) 2685, wherein it was held that suit for declaration, for being owners of the suit property without seeking possession of those properties, was not maintainable. Learned counsel for the appellants next placed reliance on Sri Thimmaiah versus Shabira and others, 2008 (1) RCR (Rent) 252, wherein it was held that in a suit for permanent injunction, plaintiff has to establish that he is in possession in order to be entitled to a decree for permanent injunction. The general proposition is well settled that a plaintiff not in possession is not entitled to the relief without claiming RSA No. 1499 of 2011 (O&M) -4- recovery of possession. After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. In the present case, the only argument raised by learned counsel for the appellants is that the suit of the plaintiff was not maintainable. The case of the plaintiff is that he was owner of the suit property. Admittedly, as per the revenue record, plaintiff is described to be owner of the Khasra Nos. 502 and 503. As per mutation No. 1173, father of defendant No.1 and husband of defendant No.2 had sold his land to Telu Ram vide sale deed dated 17.8.1977 qua his share. Telu Ram further sold his land to Kitab Singh vide sale deed dated 10.1.1985. Thus, the defendants are not the owners of the suit land. The case of the defendants is that the suit land had been given to them in exchange but admittedly the said exchange is not incorporated in the revenue record nor any writing qua exchange has been proved on record. In these circumstances, the learned Additional District Judge rightly held that the plaintiff was owner of the suit land. Defendants also failed to establish that their adverse possession had matured into ownership, by leading any cogent evidence in this regard. The plea of the plaintiff was that he had permitted the defendant to use the property in dispute and hand over the vacant possession of the same to the plaintiff as and when desired. The defendants could not raise construction without the permission of the plaintiff over the suit property. Being owner of the suit property, plaintiff terminated the license orally and had asked the defendants to hand over the possession. In these circumstances, the suit for mandatory RSA No. 1499 of 2011 (O&M) -5- injunction was maintainable. It has been held by this court in Harish Chand and another versus Rameshwar Dayal Mangla alias Ramesh Chand 2008(2) RCR (Rent 103, that an owner of immovable property on termination of license can file a suit against the licensee for mandatory injunction. In these circumstances, there is no force in the arguments raised by the learned counsel for the appellants to the effect that the suit filed by the plaintiff was not maintainable. The judgments relied upon by the learned counsel for the appellants fail to advance the case of the appellants as these are based on different facts. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE March 29, 2011 Gurpreet