JUDGMENT
C.L. Chandhry, J.
(1) This Regular Second Appeal is directed against the judgment and decree of the Additional District Judge, Delhi by which the appeal of the appellant was dismissed. The fact giving arise to this appeal are, that House No.4-A/57, Old Rajinder Nagar, Delhi was allotted to the parties’ father Nihal Chand in 1949. Nihal Chand sold this house to the plaintiff/respondent by sale-deed dated 11-1-1968. The case set up by the plaintiff/respondent was that after the purchase of the house from his father, Nihal Chand, be allowed his brother appellant/defendant to remain in a room and portion of verandah in front, as a licensee. His license have been revoked by notice dated 14th October, 1989, calling upon him to clear off the said portion of the house, but he did not do so.
(2) The defendant/appellant contested the suit and pleaded that the property was purchased by the joint Hindu family consisting of their and two brothers and he was a co-owner and that the property had been allotted to his father, Nihal Chand. on account of property left in the Pakistan. He also pleaded co-ownership of the property. He also claimed adverse possession. The other plea was that the suit in the form of mandatory injunction was not maintainable.
(3) On the pleadings of the parties, the following issues were framed :
1. Whether the occupation of the defendant in the premises in suit is as a licensee ? If so, to what effect ? 2. Whether the defendant has prescribed title to the premises in dispute by adverse possession as alleged in the written statement. If so, to what effect ? 3. Whether the suit is not maintainable in the present form ? 4. Whether father of the parties became owner of the portion in dispute benamidar for the defendant as alleged in paras 4 & 6 of the preliminary objections ? If so, to what effect ? 5. Whether the property in suit was transferred to the plaintiff by his father without consideration ? If so, to what effect ? 6. Whether the plaintiff is entitled to any damages for use and occupation of the portion In dispute ? If so, at what rate and for what period ? 7. Relief.
(4) The suit was decreed by the Trial Court. The appeal field by the appellant was dismissed. Both the Courts below held that the suit was maintainable. The Courts found as a fact that the parties did not constitute a joint Hindu family, and Nihal Chand was the absolute owner of the property. It was held by both the Courts below that the defendant was licensee in a portion of the House No. 4-A/57. Old Rajinder Nagar, Delhi.
(5) The finding of the first appellate Court is that the appellant was occupant of the property before its transfer in favor of the respondent and the respondent allowed the appellant to continue to stay in the house as a licensee and this is in accordance with the relationship between the parties, which would mean grant of such license.
(6) It may be noted that during the pendency of the appeal, the appellant died and his L Rs. were brought on record it was contended on behalf of the appellant that the suit for mandatory injunction was not maintainable. Appellant Hori Lal was already in possession of the house and with the transfer of the property to the respondent, the license granted by the previous owner was revoked and thereafter, the status of the appellant was that of a tresspasser. Respondent should have filed i suit for possession and not for mandatory injunction. The case of the respondent pleaded is, that after the property was transferred to him by his father, Hori Lal who was the brother of the appellant had been allowed to use the room and the verandah in front of that and forming part of the house, as a licensee.
(7) The learned Additional District Judge in para No. 10 of his judgment has observed that even though there was no specific averment in the plaint mentioning residence of defendant/appellant in the house before the purchase of the property by the plaintiff/respondent, the evidence of the plaintiff/respondent, is that he allowed the defendant/appellant to continue to stay in the house as a licensee, and this is in accordance with the relationship between the parties, which could mean grant of such license. Even assuming, that appellant was in possession of the part of the house as a licensee and with the transfer of the property, the license stood revoked plaintiff/respondent had pleaded that he allowed Hori Lal to continue as a licensee. It means he created a fresh license in favor of Hori Lal. As an owner of the property, he could do so, and thereafter, he revoked the license. Hori Lal has not been able to substantiate that he was owner of the property and he acquired title by adverse possession. His position was that of a licensee. After the purchase of the property by the plaintiff, he allowed Hori Lal to continue as licensee in the property giving fresh license. The respondent revoked the license. In view of this, I do not find any infirmity in the finding of the learned Additional District Judge that the suit for mandatory injunction was maintainable. The license was revoked and Hori Lal was asked to clear off the portion, which was not done by him. The plea of the appellant that Hori Lal was tresspasser after purchase of the property is not sustainable because the case of the respondent/plaintiff was that he allowed the appellant to continue as a licensee after he purchased the property. In view of this, I hold that the suit for mandatory injunction is maintainable. No other point was raised before me. In view of the above discussion, the appeal is dismissed. However, the appellants are granted six months’ time to vacate the premises.
(8) Parties are left to bear their own costs.
(9) Appeal dismissed.
