JUDGMENT
R.S. Sodhi, J.
1. R.S.A. 177/2003 is directed against the judgment and order of the Additional District Judge dated 14.7.2003 in R.C.A. 6/2003 whereby the learned Judge has allowed the appeal and set aside the judgment and decree of the trial court while directing the appellant herein to hand over vacant and peaceful possession of the suit premises shown in red in the site plan, Ex.PW-1/1.
2. The facts of the case, as noted by the First Appellate Court, are as under :
“The respondent No. 1 herein married two wives, namely, Smt. Dhani Devi and Smt. Dhapa Devi @ Smt. Dhaba Devi. The respondent No. 1’s first wife, Dhani Devi, expired in 1967 and after her death the respondent No. 1 married second wife, Smt. Dhapa Devi on 14.2.1969. She died on 16.11.1993. Prior to her death she had purchased the suit property in her name in 1978. The appellant is respondent No. 1’s son from his first wife Dhani Devi. He got married in the year 1982-83. Prior to his marriage he had a joint mass with the respondent No. 1 and his second wife Dhapa Devi. Subsequent to appellant’s marriage, disputes cropped up between his wife and the deceased, Dhapa Devi, and on account of temperamental incompatibility between them, the deceased, Dhapa Devi, being influenced by the fact that the appellant is the respondent No. 1’s son from his first wife allowed him and his wife to reside in one room with kitchen and a varandah in the suit property and this arrangement was done sometime in the year 1985 which continued till the deceased, Dhapa Devi, died in 1993. After the death of Dhapa Devi, it is alleged that the appellant started quarreling even with respondent No. 1 and completely fed up with his day to day behavior, the respondent NO. 1 disowned the appellant by getting a citation to that effect published in Jansatta of 17.4.1994 edition and thereby snapped his all ties with him. Later on, the respondent No. 1 gave legal notice through his counsel, Mr. S.R.Raghvan, Advocate, to the appellant on 22.12.1994 terminating his license to reside in the suit property and asked him to vacate the same. Since the request made in the said notice was not complied with, the respondent No. 1 gave yet another notice terminating the license of the appellant vide notice dated 8.3.1995, the respondent No. 1 filed a suit for mandatory injunction against the appellant and prayed for a decree directing the appellant to hand over the possession of portion of suit property to his possession. The said suit of the respondent No. 1 was contested by the appellant inter alia on the ground that the suit property was purchased in the name of respondent No. 1’s deceased wife, Dhapa Devi, only is a benamidar but for all practical purposes, the said property was acquired and built up by joint family funds. In the alternative, it was pleaded that the respondent became owner of the suit property by survivorship having inherited the same from the deceased, Dhapa Devi, as per legal heir.
The respondent No. 1 filed one more suit against the appellant and that suit was for recovery of damages and mesne profits for unauthorised use and occupation of the suit premises after termination of his license vide second legal notice dated 8.5.1995. This suit was also contested by the appellant on same ground as taken in the aforementioned suit for mandatory injunction.
In suit for mandatory injunction following issues were framed by the learned trial court on 1.5.2001 :
1. Whether the defendant is the licensee of the plaintiff in the suit premises? OPP
2.Whether the suit for mandatory injunction for relief of possession is not maintainable in the present form? OPD.
3.Whether ;the plaintiff is entitled for equitable relief of mandatory injunction against the defendant, as prayed for?
4.Relief.
In suit for damages and mesne profits, the following issues were framed by the learned trial court on 13.10.1999 :
1. Whether the plaintiffs are legally entitled to recover the suit amount from the defendant, as prayed for? OPP.
2.Whether the plaintiffs are legally entitled for the interest on the suit amount, as prayed for? OPP.
3.Relief.
Vide order dated 1.5.2001 passed in suit for mandatory injunction, both the abovementioned suits were consolidated and evidence was taken only in one suit i.e. Suit No. 164/95, suit for mandatory injunction. The parties except examining themselves in their respective evidence have not produced any other evidence.
Although both the suits were consolidated by the learned trial court vide its order dated 1.5.2001 and evidence was also taken in both these suits only at one place, i.e. in Suit No. 164/95, but the learned trial court chose to write separate judgments in the said two suits. On an analysis of evidence of the parties, the learned trial court vide its impugned judgment and decree became owner of the suit property by survivorship, being her legal heir. The learned trial court also accepted appellant’s plea that deceased, Dhapa Devi, was holding the suit property as a benamidar of her husband (respondent No. 1 herein) because the respondent No. 1 failed to produce evidence to show the source of investment for acquiring the suit property by deceased, Dhapa Devi. The learned trial court also held in its impugned judgment that the respondent No. 1 has colluded with respondent No. 2 to oust the appellant from suit property. A finding has been given by th learned trial court that respondent No. 1 could not be believed to have sold the suit property to respondent No. 2 for an amount which was less than the amount spent by the deceased in acquiring and constructing the said property. The trial court has held that the respondent No. 1 has failed to establish that the appellant was allowed to occupy the suit premises as a licensee and consequently dismissed respondent No. 1’s suit for mandatory injunction and also for damages.”
3. Being aggrieved thereof, two appeals were filed being R.C.A. Nos. 6/2003 and 32/2002 Both these appeals were heard together and disposed by a common judgment which is now under challenge before this court.
4. It is argued before me that the First Appellate Court was wrong in holding that the provisions of Section 4 of the Benami Transaction (Prohibition) Act 1985 are applicable and, therefore, such a plea could not be raised by the appellant herein. However, in course of arguments, counsel conceded that such a plea would not be available and that the plea of benamidar could not be raised in view of the provisions of Section 4 of the Benami Transaction (Prohibition) Act 1985. Further, it is not disputed that the appellant is the step-son of the deceased, Dhapa Devi, and that the property in issue stood in the name of the deceased.
5. The question of law framed before the First Appellate Court was whether the appellant being step-son of the deceased, Dhapa Devi, is entitled to succeed to the estate as her legal heir? The Appellate Court, with reference to the provisions of Sections 15 and 16 of the Hindu Succession Act, returned a finding that the appellant was not a preferential heir and, therefore, the husband of the deceased, who was alive, inherited the entire property of the deceased by virtue of the scheme contained in the Hindu Succession Act. In this view of the matter, the father of the appellant herein was well within his right to terminate the license of the appellant and upon such termination of license, right to occupancy in suit premises would cease. Counsel has not been able to show me anything that should warrant a contrary finding to that arrived at by the First Appellate Court.
6. In this view of the matter, I find no ground to interfere. R.S.A. 177 of 2003 and C.M. 603 of 2003 are dismissed. No order as to costs.