Ms. Usha Mehra, J. ( 1 ) PLAINTIFF, D. N. Ahluwalia by this suit wants to bedeclared the absolute owner of the annexee portion including land under neathkothi No. 6, Friends Colony (West), New Delhi. His claim is based on the will dated 28/08/1984, executed by late Smt. Rajeshwari, owner of this property. In the alternative, he has claimed ownership of this annexee portion on account ofpeaceful, open and uninterrupted possession and enjoyment of this annexee asowner thereof for a period of more than 12 years. ( 2 ). During the pendency of the suit, present application has been filed seekingrestraining order against the defendants from dispossessing him from the annexeein question. He has based his claim primarily on the ground that he alongwith hisfamily members had been residing in this portion of the house for a considerablelong time as owner/occupier. He has explained how he became owner of thisproperty. According to him he was an employee of a firm M/s. Mohan Brothers (hereinafter called the firm) since 1931. At the relevant time, this firm was aproprietory concern of Pt. Manmohan Dhar. Subsequent thereto this firm becamea partnership firm. Pt. Dhar had a 4 Annas Share in the same. Plaintiff had beenserving Pt. Dhar because Pt. Dhar had no issue of his own. Being issueless, Pt. Dharhad been treating the plaintiff as his son. Somewhere in 1935, plaintiff was allowedto occupy two rooms flat of one of the annexees at 16, Curzon Road, free of rent, bylate Pt. Dhar. Late Smt-Rajeshwari was also living with Pt. Dhar in the mainbuilding at Curzon Road. After Pt. Dhar s death, the plaintiff continued living withsmt. Rajeshwari in the said building at Curzon Road. Smt. Rajeshwari also treatedplaintiff as her son. Pt. Dhar had executed a will in favour of the plaintiff therebybequeathing absolute right of the portion in his occupation in Kothi No. 16, Curzonroad. He was also given two Annas share in the business of M/s. Mohan Brothers. After Pt. Dhar s death all his moveable and immoveable properties except shares inthe firm devolved on Mrs. Rajeshwari. Somewhere in 1960 Smt. Rajeshwari soldthe lease hold rights of the property atl6, Curzon Road. With the sale proceeds, shepurchased the present house at 6, Friends Colony (West) New Delhi. She con-structed servant quarters. One annexee portion was specially constructed for theplaintiff and his family. Rajeshwari. Somewhere in 1960 Smt. Rajeshwari soldthe lease hold rights of the property atl6, Curzon Road. With the sale proceeds, shepurchased the present house at 6, Friends Colony (West) New Delhi. She con-structed servant quarters. One annexee portion was specially constructed for theplaintiff and his family. The plaintiff alongwith his family came and started livingwith late Smt. Rajeshwari, in the annexee portion of this house at 6, Friends Colony (West) New Delhi. Smt. Rajeshwari initially orally gifted this annexee portion to theplaintiff. Subsequently in order to safeguard his interest she executed a will thereby bequeathing the annexee alongwith land underneath it to him. Shedeclared him to be exclusive owner of the annexee and the land underneath it. Defendant No. 4 got a will executed from Smt. Rajeshwari with an ulteriormotive. Smt. Rajeshwari had executed the will in favour of the plaintiff tosafeguard his rights as she sensed the bad and malafide intentions of defendant No. 4 and to ensure that defendant No. 4 may not deprive him and his family theownership rights of the annexee. After her death, the defendant No. 4 startedharassing the plaintiff. Her apprehensions turned out to be true. The defendantsin order to deprive the plaintiff of his right of this property, started disposing andalienating the main building as well as the annexee. In order to sell this annexeeportion, the defendants have started forcibly dispossessing the plaintiff from thesuit property. It is to safeguard this right that the suit has been filed. By thisapplication ad-interim injunction restraining the defendants has been sought. ( 3 ). This application has been contested by defendants, inter alia, on the groundthat neither the gift nor alleged will by Smt. Rajeshwari is valid. The same was notexecuted by her. The said documents have been fabricated and forged. Moreover,the plaintiff cannot claim any other portion of the annexee even on the basis of thealleged documents relied by him. He, at best, can stake claim on the annexee andthe land underneath the same and nothing more. The adjacent land and the openspace in the annexee area shown as red in the plan filed by the plaintiff by nostretch of imagination formed part of the said annexe mentioned in the alleged will . The plaintiff has no right to use the passage meant for the occupiers of themain building. The plaintiff cannot use the main entrance. The adjacent land and the openspace in the annexee area shown as red in the plan filed by the plaintiff by nostretch of imagination formed part of the said annexe mentioned in the alleged will . The plaintiff has no right to use the passage meant for the occupiers of themain building. The plaintiff cannot use the main entrance. Like other neighbours,he can also have egress and ingress from the side road. Plaintiff lived at 16, Curzonroad as licencee, being employee of M/s. Mohan Brothers. In the present premiseshe shifted as licencee only in the same capacity being part time clerk of Smt. Rajeshwari. ( 4 ) -1 have heard Mr. J. K. Seth, Counsel for the plaintiff and Mr. V. P. Singh,sr. Advocate, for the defendant. It is not disputed by the Counsel for the parties thatthe plaintiff is in occupation of the annexee in Kothi No. 6, New Friends Colony. Whether the plaintiff occupied this as a licencee or as owner are the questions to bedetermined on merits after recording evidence. It is well settled principle of lawthat even a trespasser cannot be thrown out without due process of law. Plaintiffis in settled possession of the annexee hence cannot be dispossessed from the samewithout due process of law. To arrive at this conclusion reference can be had to thedecisions as reported in 1989 JT page 489, AIR 1942 Vol. 46 page 690, and 1994 DLTVol. 54 page 552. ( 5 ). The only question, therefore, left for consideration is, what form part ofannexee? Will it mean the superstructure and the land underneath it or will includethe open space in front and adjacent to it. ( 6 ). As per plaintiff s own showing late Smt. Rajeshwari gifted only the annexeein his favour. The will which has been relied by the plaintiff shows that thedeceased by this will of 24/08/1984, bequeathed the land under neath theannexee of the property No. 6, Friends Colony, New Delhi, together with thesuperstructure built over it in favour of the plaintiff. Therefore, by this will shemade it clear as to what portion she was bequeathing in favour of the plaintiff andwhat portion was in her occupation. Therefore, by this will shemade it clear as to what portion she was bequeathing in favour of the plaintiff andwhat portion was in her occupation. Reading of this will leaves no manner ofdoubt that the executor of the will late Smt. Rajeshwari, never stated that theopen space in front or adjacent to the annexee was in occupation of the plaintiff orthat she also bequeathed the same in his favour. Hence the claim of the plaintiff thathe should not be dispossessed from the open space is contrary to the stand takenby him in the plaint. Of course, he cannot be dispossessed without due process oflaw from the superstructure and the land under neath the annexee which wasbequeathed in his favour by Smt. Rajeshwari. Whether this will is forged orgenuine will be considered in due course. But prima facie, on the basis of thedocuments placed on record, it can be said that the plaintiff cannot be dispossessedfrom the annexee portion consisting of the land under neath the annexee togetherwith superstructure built over it. So far as the adjacent lawn and the portion in frontare concerned, the plaintiff has not been able to show any prima fade case. Thewill was executed in August,1984 and the suit has been filed in December,1985. In the suit also he has mentioned that the deceased gifted the annexee in his favourmeaning the superstructure and the land under neath. According to him he haduninterrupted possession and ownership of this annexee. But at the same time healso stated that he planted certain trees in the lawn of the annexee. But he has not,as already observed above, laid any foundation to prove that he has uninterruptedpossession over the lawn of the annexee shown in red colour or any ownershipdocument in this regard. Rather the reading of the will of August, 1984 shows thathe was in occupation of the land under neath the annexee and the superstructurethereon. Even otherwise the facts which have come on record are so glaring thatno stay with regard to dispossession from the lawn area can be granted. Forexample the built up area alleged to be bequeathed in favour of the plaintiff is about100 sq. yd. , whereas the lawn area is 330 sq. yd. Therefore, Mr. V. P. Singh rightlycontended that by Court s order the plaintiff has come in possession of almost 430sq. yd. of area. Forexample the built up area alleged to be bequeathed in favour of the plaintiff is about100 sq. yd. , whereas the lawn area is 330 sq. yd. Therefore, Mr. V. P. Singh rightlycontended that by Court s order the plaintiff has come in possession of almost 430sq. yd. of area. Whereas, as per plaintiff s own showing and on the basis of the will the deceased only bequeathed 100 sq. yd. of land. She made it clear in the will thatthe land under neath the annexee and the superstructure thereon she was bequeathing in his favour. But the land apartenant to the annexee was not bequeathed in his favour by the said will . Hence the plaintiff having failed toproduce any prima facie evidence to the effect that he was in continuous uninterrupted, peaceful, enjoyment of the land apartenant to the annexee for the last 12years or that the ownership of this vested in him, hence the injunction against hisdispossession from the land apartenant to the annexee cannot be granted. He,however, will not be dispossessed from the land under neath the annexee alongwith the superstructure built thereon. ( 7 ). As regards the passage Mr. V. P. Singh, appearing for the defendant hadcontended that the defendant will open a back door entrance for the plaintiff whichroad will be fully carpated from the gate to be built till the main side road. Ithink this suggestion can be considred after the defendant makes such a gate foringress and egress of the plaintiff. Till such time the plaintiff cannot be stopped from using the main entrance for ingress and egress. With these observations the I. A. stands disposed of.