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2004 DIGILAW 222 (PNJ)

Ram Kishan v. Kalu Alias Karam Singh

2004-02-25

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. The defendant is in appeal against the judgment and decree passed by the learned first appellate Court whereby the suit filed by the plaintiff for declaration to the effect that the plaintiff is owner in possession of the house constructed on the land bearing khasra No. 36/23/1 and that the defendant has no right, title or interest of any kind whatsoever in the said property was decreed. 2. The plaintiff-respondent has filed a suit for declaration to the effect that he is owner in possession of the house constructed on the land bearing khasra No. 36/23/1 situated within the revenue estate of village Uplana and that the defendant has no right, title or interest of any kind whatsoever in the above said property. The defendant mar- ried the daughter of plaintiff. The plaintiff provided him shelter in his house and also gave him land measuring 1 kanal out of the total land bearing khasra No. 36/23/2. Sale deed was also executed of the said land in favour of the defendant on 28.5.1993. The defendant has assured the plaintiff that he will construct his house on the land given to him but the defendant did not construct the house on the land sold to him and threatened to transfer the house constructed on khasra No. 36/23/1. 3. In the written statement, the defendant pleaded that he is owner in possession of the land and house which was constructed on khewat/Khatauni No. 183/287 min bearing khasra No. 36/23/2 (1 kanal) by virtue of registered sale deed dated 28.5.1993. The plaintiff is estopped by his own act and conduct to file the present suit. 4. The trial Court found that the plaintiff has sold one kanal of land in favour of the defendant wherein the defendant was to construct his house. The defendant being his son-in-law was permitted to stay in the house owned by the plaintiff but he has no right over the house of the plaintiff. The plaintiff produced the revenue record to prove that khasra No. 36/23/1 was owned by the plaintiff. On the other hand, the defendant led evidence to the effect that the land was given to him after proper demarcation. He has got electricity connection as well as water connection. He also gave the name of the worker who had constructed his house. 5. On the other hand, the defendant led evidence to the effect that the land was given to him after proper demarcation. He has got electricity connection as well as water connection. He also gave the name of the worker who had constructed his house. 5. Learned trial court dismissed the suit holding that the plaintiff and defendant are owners in possession of separate khasra Nos. But there is no threat to the plaintiff that the defendant is encroaching upon the disputed property. It was also held that the plaintiff has not been able to prove that the defendant is still living in his house and, thus, the suit was dismissed. 6. In appeal, learned first appellate Court found that though sweeping denial to allegations of the plaintiff has been made by the defendant, he is owner of 1 kanal of land in khasra No. 36//23/2 but repeated suggestions were given to the plaintiff that there is no difference between khasra No. 36//23/l and 36//23/1. It was, thus, held that the plaintiff is not disputing the ownership of the defendant in respect of khasra No. 36//23/2 (min) to the extent of one kanal but the defendant has no right to interfere in the possession of the plaintiff in respect of khasra No. 36//23/l to the extent of 1 kanal of land including the house constructed thereon which is in his possession. 7. Learned counsel for the appellant has argued that simplicitor suit for declaration is not maintainable against the defendant-appellant. Reliance was placed upon the decision of the Supreme Court in the case reported as Vinay Krishna V/s. Keshav Chandra and Anr., A.I.R. 1993 S.C. 957 as well as decision of the Single Bench of Himachal Pradesh High Court reported as Sita Ram V/s. Hari Krishan, 1999(1) R.C.R. (Civil) 602 (H.P.). It was also argued that the defendant is in possession of the house of the plaintiff and he can be dispossessed by the plaintiff in accordance with law only and not by force. 8. I am unable to agree with the contention raised by the learned counsel for the appellant. The plaintiff has claimed that he is owner of Khasra No. 36//23/l where he has already constructed a house. The plaintiff has claimed injunction against the defendant from interfering in his possession over the said land and house constructed thereon. 8. I am unable to agree with the contention raised by the learned counsel for the appellant. The plaintiff has claimed that he is owner of Khasra No. 36//23/l where he has already constructed a house. The plaintiff has claimed injunction against the defendant from interfering in his possession over the said land and house constructed thereon. It is not shown that what further relief the plaintiff could claim which he has omitted to claim in the present suit. Thus, the judgments referred to by the learned counsel for the appellant are not applicable to the facts of the present case. 9. The argument that the appellant is in possession of the house of the plaintiff and the plaintiff has to seek possession in accordance with law is again without any merit. The defendant has not alleged any right in the house of the plaintiff. The plaintiff is the father-in-law of the defendant. Thus, the possession of the defendant in the house of his father-in-law at best can be that of a licensee. He can remain in possession of the house owned by the plaintiff with the permission of the plaintiff alone. His possession is that of a licensee. The possession of a licensee is not a possession having any legal recognition. The plaintiff is entitled to restraining order against the defendant from interfering in his possession. It was held by this Court in the case of Ram Murti V/s. Smt. Sarla Devi, (1998-3)120 Punjab Law Reporter 346 that a suit for mandatory injunction is maintainable against the licensee. The argument that the plaintiff could file a suit for possession was negatived. It was held to the following effect- "Mr. Bhag Singh, the learned counsel appearing on behalf of the petitioner has submitted that the suit for mandatory injunction filed by the respondent-plaintiff was not maintainable and in the facts and circumstances of the case the plaintiff could file a suit for possession. This contention is, however, without any force in view of the judgment of the Supreme Court in Sant Lal Jain V/s. Avtar Singh, AIR 1985 SC 857. In that case it was held that the suit in fact was one for possession though couched in the form of suit for mandatory injunction. This contention is, however, without any force in view of the judgment of the Supreme Court in Sant Lal Jain V/s. Avtar Singh, AIR 1985 SC 857. In that case it was held that the suit in fact was one for possession though couched in the form of suit for mandatory injunction. In the present case also it is the similar case as the suit in the present case is also in fact for possession though couched in the form of a suit for mandatory injunction." In the present case, the plaintiff has sought declaration and a decree for permanent injunction to restrain the defendant from interfering in his possession over the house in dispute. Since plaintiff is owner of the house and the defendant is claiming himself to be a licensee, the defendant has no legal right to remain in possession of the suit property. 10 In view of the above, I do not find any illegality in the findings recorded by the learned first appellate Court. No Substantial question of law arises in this appeal for consideration by this Court.