RSA No.329 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 329 of 2009 (O&M) Date of Decision: July 20, 2009 Rajni Sood and others ...... Appellants Versus Smt. Shanta and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. Kanwaljit Singh, Senior Advocate with Mr. Rahul Chaudhary, Advocate for the appellants. Mr. Ashish Aggarwal, Advocate for the caveator-respondent No. 4. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment of the learned lower Appellate Court reversing that of the trial court and thereby decreeing the suit of the respondent for mandatory injunction directing the appellant to vacate that portion of the house which fell to the share of the plaintiff-respondent by virtue of will of Bhagat Ram dated 26.8.1975. The following questions have been proposed by the learned counsel:- A) Whether the suit for mandatory injunction can be filed at any point of time even after a delay of 18 years? B) Whether in a case of Will probate is necessary to be obtained under the Succession Act and whether a suit RSA No.329 of 2009 2 for injunction would be maintainable? C) Whether Will can be executed in whole or in parts and the Court can grant decree with respect to one property leaving aside all other properties given in the Will? D) Whether provisions of Indian Succession Act would prevail over the general provisions for mandatory injunction? E) Whether the suit for partial partition is maintainable? F) Whether assessment register, form TS-1, house tax receipts of the Municipal Council would corroborate family settlement and the claim of the appellants- defendants? It deserves to be mentioned that both the Courts have accepted the validity of the will and, to that extent there is a common finding of fact against the appellant and further thereof once that is held, the evidence sought to be pressed to corroborate the claim of family settlement ( as enumerated in question No. 'F') pales into insignificance. Learned counsel has argued that the will is not proved and has taken me through the evidence of the courts below and further the fact that no action was taken by the respondents is a pointer to the version of the appellant that in fact, the house in dispute had fallen to their share. However, I have not been able to persuade myself that these findings of fact are either based on no evidence or based on such a misreading of the evidence so as to render them perverse. As far as question No. (A) is concerned the learned lower Appellate Court has considered this in para 11 of his judgment and has relied upon Surjit Kaur v. Balwinder Kaur reported as 2006(1) Civil Court Cases 118(P&H), Harish Chand and another v. Rameshwar Dayal RSA No.329 of 2009 3 Mangla alias Ramesh Chand reported as 2008(3) PLR 411 and Joseph Severance and others v. Benny Mathew and others reported as 2005(4) RCR (Civil) 559 (S.C.) to hold that suit for mandatory injunction is indeed maintainable. In Surjit Kaur's case (supra), this Court held as under:- “13. It is also well settled that suit for mandatory injunction would be maintainable after the termination of licence by issuing a notice when the licensee has refused to hand over vacant possession. The law imposes an obligation on a licensee to hand over vacant possession to the licensor, failing which a suit for mandatory injunction is maintainable. For the aforesaid proposition, reliance could be placed on a judgment of the Supreme Court in the case of Sant Lal Jain (supra). In this case, the observations of the Division Bench in Milkha Singh v. Diana, AIR 1964 J&K 99 were approved by the Supreme Court by observing as under:- “Now the parties are bound by the following factual findings recorded by the learned Additional District Judge in the first appeal, namely ; (1) that the appellant who had become the sole proprietor of M/s Jain Motors in 1967 though at the time of the lease of property by the original owner Lt.Col. Sadan Singh to M/s Jain Motors in 1963 he was only one of its partners was the lessee of the property: (2) that the respondent had become a licensee of the suit shed under the appellant when the appellant was in possession of the whole of the demised premises including the suit shed as tenant under the original owner; (3) that the licence in favour of the respondent had been revoked before the institution of the present suit and (4) that subsequent to the decision in the first appeal on RSA No.329 of 2009 4 7.12.1978, the respondent had purchased the entire property from the original owner by a sale deed dated 27.8.1979. In these circumstances, there is no merger of the lease of the whole property by its original owner in favour of the appellant by reason of the sale of the entire property by the original owner in favour of the appellant by reason of the sale of the entire property by the original owner in favour of the respondent or of the licence given by the appellant to the respondent which had been revoked prior to the date of the suit. xxxx xxxxx xxxxx xxxxxx “In Milkha Singh V. Diana, AIR 1964 J&K 99, it has been observed that the principle that once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Mirtaza Fazal Ali, J. as he then was)n speaking for the Division Bench has observed :- “After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under S. 55 of the Specific Relief Act. We might further mention that even under English law a suit for injunction to evict a licensee has always been held to be maintainable, within a reasonable time after the licence is terminated, he is entitled to the injunction. On the other hand, if the licensor causes huge delay the court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent, and in that case the licensor will have to bring a suit for possession RSA No.329 of 2009 5 which will be governed by S.7(v) of the Court fees Act.” In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay,we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driver to file another round of suit with all the attendant delay,trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds in possession of the property to which he may be found to be entitled. Therefore,we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.” (emphasis added) With regard to question no. (B) no law has been cited to show that unless the Will is probated a suit for mandatory injunction thereunder cannot be filed. As regards questions No.(C ) and (E), it is the admitted case of the parties that before the death of Ram Bhagat the other properties which were owned by him had been sold. Thus, it cannot be held that the suit of the plaintiff with regard to part of the property was not maintainable. In the circumstances I hold that the Appellate Court has rightly considered this question. In my opinion question No. D does not arise. In view of my findings on the above questions, this appeal as well as the stay application are dismissed. No costs. (AJAY TEWARI) JUDGE July 20, 2009 sunita