SBCMA No.146/08
Sohan Lal & Anr. Vs. Bansi Lal
1
S.B. Civil Misc. Appeal No.146/2008
Sohan Lal & Anr.
Vs.
Bansi Lal
DATE OF ORDER : - 10.11.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr.M.D. Boob,for the appellants.
Mr.J.P. Chhangani, for the respondent.
Heard learned counsel for the parties.
According to the learned counsel for the appellant, the
appellant-plaintiffs themselves gave the property in
question to the respondent-defendant and that too, for the
purpose of putting on the building materials which can be
used only for giving on rent basis to the others and there
was earlier round of litigation wherein in second appeal, this
Court has already passed the order that the appellant shall
not dispossess the respondent-defendant without following
due process of law.
The appellant contends that the licencee has no right
in the property and Hon’ble Apex Court held that even
SBCMA No.146/08
Sohan Lal & Anr. Vs. Bansi Lal
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force can be used to remove the licensee by the licenser. It
is also submitted that this Court in the case of Smt.
Shakuntala Vs. Union of India & Ors, after considering 27
judgments of Hon’ble Apex Court and few judgments of this
Court held that licence does not create any right in the
property in favour of the grantee.
In view of the above reason, the appellant is entitled
to seek immediate possession by way of interim mandatory
injunction restraining the defendant from doing the business
of the building material from the plot in question and also
take possession with the help of the Court’s order that may
be of interim nature.
I have considered the submissions of the learned
counsel for the appellant and perused the facts of the case.
The appellants’ own case is that there is order passed
in the second appeal between the parties for this very
property that the appellant shall not be entitled to
dispossess the defendant without following due process of
law, then by adopting another mode, the appellant cannot
seek possession from the respondent-defendant and the
SBCMA No.146/08
Sohan Lal & Anr. Vs. Bansi Lal
3
appellant can take possession of the property in dispute
only by following due process of law. The appellant could
not explain how the order passed in second appeal can be
nullified in this way by obtaining the interim mandatory
injunction for the property on the ground that in residential
area, there cannot be commercial activities, which is going
on because of the reason that according to the appellant
himself, the property was given to the defendant for putting
on the building material which can be used for giving on
hire only. The appellants are also seeking interim relief
which can be granted in the suit and in the present facts
and circumstances of the case, granting relief to the
appellant would amount to decreeing the suit itself without
giving opportunity to the respondent-defendant, that too
when the second appeal is pending in this Court with
respect to the claims of the parties involving the same
property.
In view of the above reason, and particularly the
binding order which has not been challenged by the
appellants passed in second appeal that the appellant shall
SBCMA No.146/08
Sohan Lal & Anr. Vs. Bansi Lal
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not dispossess the respondent-defendant without following
due process of law, I do not think it proper that the above
judgments cited by the learned counsel for the appellants
can be any help to the appellants and therefore, there is no
merit in this appeal and the same is hereby dismissed.
(PRAKASH TATIA), J.
Praveen