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2004 DIGILAW 922 (DEL)

PRABHU DAYAL v. ROOP KUMAR

2004-10-12

G.C.MITTAL, MUKUNDAKAM SHARMA

body2004
GITA MITTAL, J. ( 1 ) THIS APPEAL IS DIRECTED AGAINST THE JUDGMENT AND DECREE DATED 6th FEBRUARY, 1991 PASSED BY THE LEARNED ADDITIONAL DISTRICT JUDGE, DELHI IN SUIT NO. 60/2001 ( OLD SUIT NO. 19/1991) DECREEING THE SUIT FILED BY THE RESPONDENT NO. 1. 2. ONE ROOP KUMAR (RESPONDENT NO. 1 herein) BROUGHT A SUIT FOR PERMANENT AND MANDATORY INJUNCTION against PRABHU DAYAL (APPELLANT HEREIN ). THE APPELLANT AND RESPONDENT nos. 2 TO 7 (ARRAYED AS DEFENDANT NOS. 2 TO 7 IN THE SUIT) were SONS AND DAUGHTERS OF LATE SHRI KAPOOR CHAND. PLAINTIFF averred THAT HIS FATHER KAPOOR CHAND WAS A TENANT IN SHOP NO. 7707-07, dharam PURA LODGE, CLOCK TOWER, SUBJI MANDI, DELHI (HEREINAFTER referred TO AS THE suit PROPERTY ) FOR THE LAST 40 TO 55 YEARS. THEY carried ON BUSINESS ORIGINALLY OF CYCLE TYRES AND REPAIRS AND laterly SOLD JUICE. ( 2 ) THEY WERE LASTLY DOING THE BUSINESS OF COTTON IN THE NAME OF SHARMA COTTON CORDING AND FLOUR MILLS. SHRI KAPOOR CHAND DIED INTER STATE ON 12th NOVEMBER, 1990 AND HIS BROTHER VASUDEV DIED A ACHELOR ON 25th NOVEMBER, 1990. ACCORDING TO THE PLAINTIFF SHRI VASUDEV SOME TIME LIVED IN THE SHOP AND SOMETIMES WITH THE PLAINTIFF. ( 3 ) THE PLAINTIFF CLAIMED THAT HE HAD EXECUTED A WILL DATED 22nd november, 1990 BEQUEATHING HIS ENTIRE MOVABLE AND IMMOVABLE PROPERTIES in FAVOUR OF THE PLAINTIFF. 3. ACCORDING TO THE PLAINTIFF, DEFENDANT no. 1-PRABHU dayal WAS AN EMPLOYEE OF SHRI VASUDEV IN THE BUSINESS carried ON IN the SHOPS IN DISPUTE. SINCE THE BUSINESS OF MAKING quilts ETC. WAS carried OUT LATE INTO THE NIGHT THE DEFENDANT no. 1 (APPELLANT HERE IN) sometimes WAS PERMITTED TO RESIDE IN THE SHOPS. ON demise OF BOTH shri KAPOOR CHAND AND SHRI VASUDEV THE PLAINTIFF HAD requested TO SHRI prabhu DAYAL, DEFENDANT NO. 1 THAT HIS SERVICES WERE NO longer REQUIRED and ASKED HIM TO LEAVE THE SHOP IN DISPUT. DEFENDANT no. 1 REQUESTED for PERMISSION TO STAY TILL HE MADE ALTERNATIVE arrangements BUT LATER turned DISHONEST. 4. AS THE LICENCE OF THE DEFENDANT no. 1 HAD BEEN terminated, THE PLAINTIFF BROUGHT THE SUIT SEEKING the FOLLOWING prayers:- "the PLAINTIFF PRAYS THAT THIS HON ble COURT be PLEASED TO pass A DECREE IN FAVOR OF THE PLAINTIFF AND AGAINST THE defendant NO. 1. I)FOR PERMANENT INJUNCTION RESTRAINING THE DEFENDANT no. 1 FROM entering THE SHOPS NO. 4. AS THE LICENCE OF THE DEFENDANT no. 1 HAD BEEN terminated, THE PLAINTIFF BROUGHT THE SUIT SEEKING the FOLLOWING prayers:- "the PLAINTIFF PRAYS THAT THIS HON ble COURT be PLEASED TO pass A DECREE IN FAVOR OF THE PLAINTIFF AND AGAINST THE defendant NO. 1. I)FOR PERMANENT INJUNCTION RESTRAINING THE DEFENDANT no. 1 FROM entering THE SHOPS NO. 7706-07, DHARAM PURA LODGE CLOCK tower, SUBJZI mandi, DELHI; OR IN THE ALTERNATIVE FOR mandatory INJUNCTION commanding AND DIRECTING THE DEFENDANT NO. 1 TO VACATE the SAID SHOPS no. 7706-07 DHARAM PURA LODGE CLOCK TOWER, SUBZI MANDI delhi, AND/or ii) FOR PERMANENT INJUNCTION RESTRAINING THE DEFENDANT no. 1 FROM dealing IN ANY MANNER WHATSOEVER OR DISPOSING OFF OR appropriating TO himself ANY OF THE ASSETS OR PROPERTIES OF SHRI VASU dev ALIAS VASU dev DETAILED IN PARA 5 OF THE PLAINT; AND/or iii) GRANT PERMISSION TO THE PLAINTIFF UNDER ORDER 2 RULE 2 C. P. C. AS per PARA 14 HEREINABOVE. IV) AWARD COSTS OF THE SUIT TO THE PLAINTIFF AGAINST THE defendant NO. 1; AND/or v) GRANT SUCH OTHER AND FURTHER RELIEF AS MAY BE DEEMED fit AND PROPER in THE FACTS AND CIRCUMSTANCES OF THE CASE. " 5. DEFENDANTS 2 TO 7, brothers AND SISTERS OF THE PLAINTIFF ADMITTED THE claim OF THE plaintiff. THEY SOUGHT PERMISSION TO VISIT THE SHOPS IN dispute AND to SAFEGUARD THEIR INTEREST IN THE BUSINESS AND MAKE inspections. DEFENDANT NO. 8 I. E. THE WAKF BOA RD ALSO FILED A written STATEMENT setting UP A CASE THAT ONLY SHRI VASUDEV SHARMA WAS A tenant IN THE shops IN DISPUTE AND THAT THE TENANCY RIGHTS COULD not HAVE BEEN willed AWAY BY ANY PERSON. 6. IN THE INSTANT MATTER WE are CONCERNED only WITH THE RIGHTS OF THE DEFENDANT NO. 1 TO OCCUPY the SHOP IN question. THE DEFENDANT NO. 1 IN ITS WRITTEN statement SET UP following CLAIM:- "preliminary OBJECTIONS THAT THE defendant NO. 1 HAS been SERVING LATE SHRI VASUDEV SHARMA AND USED TO TAKE care OF HIM during HIS LIFETIME. IN ADDITION TO THIS, THE DEFENDANT no. 1 HAS BEEN doing BUSINESS IN PARTNERSHIP WITH LATE SHRI VASUDEV sharma UNDER THE name AND STYLE OF IS SHARMA PRABHU DAYAL and CO. VIDE DEED OF partnership DATED 12. 11. 1 HAS been SERVING LATE SHRI VASUDEV SHARMA AND USED TO TAKE care OF HIM during HIS LIFETIME. IN ADDITION TO THIS, THE DEFENDANT no. 1 HAS BEEN doing BUSINESS IN PARTNERSHIP WITH LATE SHRI VASUDEV sharma UNDER THE name AND STYLE OF IS SHARMA PRABHU DAYAL and CO. VIDE DEED OF partnership DATED 12. 11. 1990 COMMENCED ORALLY IN THE year 1980 BY investing CAPITAL OF ABOUT RUPEES ONE LAKH IN EQUAL shares WHICH WAS subsequently REDUCED IN WRITING. THE ANSWERING defendant WAS authorised TO CERATE THE BANK ACCOUNT OF THE partnership BUSINESS. THE ACTUAL BUSINESS WAS BEING RUN BY THE ANSWERING defendant WHILE late SHRI VASUDEV SHARMA WAS A SLEEPING PARTNER AND USED to SUPERVISE the WORK AS PER CONVENIENCE OF HIS HEALTH. HE HAD NO issue THE death OF LATE SHRI VASUDEV SHARMA, THE ANSWERING defendant IS THE SOLE proprietor OF THE BUSINESS KNOWN AS SHARMA PRABHU DAYAL and co. EARLIER it WAS UNDER THE NAME OF SHARMA FLOUR MILLS and COTTON cording MACHINE in THE PREMISES IN DISPUTE COMPRISING OF SHOP NO. 7706- 07 DHARAMPUR lodge, GHANTA GHAR, SUBZI MANDI, DELHI. THE DEFENDANTS no. 2 TO 7 LATE kapoor CHAND, FATHER OF THE PLAINTIFF OR THE PLAINTIFF never REMAINED in POSSESSION NOR HAS ANY RIGHT, TITLE OR INTEREST OR concern EITHER in THE PREEMIES IN DISPUTE OR IN THE BUSINESS OR IN THE assets. THE plaintiff HAS OBTAINED EX-PARTE INJUNCTION ORDER BY making WILLFUL false STATEMENTS IN THE PLAINT AND SUPPRESSING THE truth FROM THIS hon ble COURT. ON MERITS PARA 4 IS WRONG AND DENIED. THE DEFENDANT no. 4 HAS BEEN doing BUSINESS IN PARTNERSHIP SINCE 1980 WHICH TERMS were REDUCED IN writing VIDE PARTNERSHIP DEED DATED 26. 10. 90 BY INVESTING a CAPITAL OF about RS. ONE LAKH IN EQUAL SHARES ON THE MACHINERY, tool AND OTHER assets. AFTER THE DEATH OF LATE VASUDEV SHARMA THE entire ASSETS AND liabilities HAVE DEVOLVED UPON THE ANSWERING DEFENDANT who HAS BECOME defendant NO. 1 HAD, THEREFORE, SET UP A PLEA OF BEING an HEIR BY testamentary DISPOSITION AS WELL AS THE SURVIVING PARTNER of LATE SHRI vasudev AND CLAIMED EXCLUSIVE POSSESSION OF THE SUIT property. HE pleaded THAT THE SUIT FOR MANDATORY INJUNCTION THE SOLE proprietor OF the CONCERN M/s SHARMA PRABHUDAYAL and CO. " 7. THE N OF the PLAINTIFF were INCOMPETENT. THE PARTNERSHIP DATED 26th OCTOBER, 1990 WAS SET UP by THE DEFENDANT NO. HE pleaded THAT THE SUIT FOR MANDATORY INJUNCTION THE SOLE proprietor OF the CONCERN M/s SHARMA PRABHUDAYAL and CO. " 7. THE N OF the PLAINTIFF were INCOMPETENT. THE PARTNERSHIP DATED 26th OCTOBER, 1990 WAS SET UP by THE DEFENDANT NO. 1 BESIDES THE WILL DATED 31st august, 1989 IN HIS favour. 8. THE MATTER PROCEEDED TO TRIAL ON THE following ISSUES framed ON 24th MARCH, 2003:- "1. WHETHER THE DECEASED vasu DEV HAD executed ANY WILL DATED 22. 11. 1990, AS PROPOUNDED BY the PLAINTIFF? if SO, WHETHER THE SAID WILL WAS VALIDLY EXECUTED IN sound DISPOSING state OF MIND? ( 4 ) WHETHER THE PLAINTIFF HAS NO LOCUS STANDI TO FILE the PRESENT SUIT? ( 5 ) WHETHER THE SUIT HAS NOT BEEN PROPERLY VALUED FOR the PURPOSE OF COURT FEE AND JURISDICTION? ( 6 ) WHETHER THE DEFENDANT NO. 1 HAS INHERITED THE tenancy RIGHT AS ALLEGED IN PARA 8 OF THE WRITTEN STATEMENT? ( 7 ) WHETHER THE PLAINTIFF IS ENTITLED TO THE RELIEF AS claimed?" 9. THE PLAINTIFF APPEARED IN THE WITNESS BOX HIMSELF AND examined TWO WITNESSES IN SUPPORT OF THE WILL DATED 22nd NOVEMBER, 1990. THE DEFENDANT HAD FILED HIS AFFIDAVIT WHICH WAS TENDERED IN evidence BY HIM. THE DEFENDANT WAS SUBJECTED TO AN EXTENSIVE cross-EXAMINATION ON HIS DEPOSITION ON AFFIDAVIT. 10. AFTER EXAMINATION of THE ENTIRE EVIDENCE ON RECORD, THE LEARNED TRIAL JUDGE RETURNED findings ON ALL ISSUES IN FAVOUR OF THE RESPONDENT NO. 1 AND DECREED THE suit OF THE PLAINTIFF VIDE JUDGMENT AND DECREE DATED 27th JULY, 2004. THIS JUDGMENT HAS BEEN IMPUGNED BEFORE US PRINCIPALLY ON TWO contentions WHICH ARE AS FOLLOWS:- (I) THE PLAINTIFF s PLEA OF THE DEFENDANT NO. 1 BEING AN EMPLOYEE OF LATE SHRI VASUDEV WAS BASED ON NO EVIDENCE. (II) IRRESPECTIVE OF THE PLEA SET UP BY THE DEFENDANT no. 1 AS TO THE NATURE OF HIS POSSESSION I. E. EITHER AS THE SURVIVING partner OF THE PARTNERSHIP FIRM OR AS HEIR OF LATE SHRI VASUDEV UNDER the WILL IN HIS FAVOUR WHICH WAS EXHIBIT DW-1/da DATED 26th O tober, 1990,the DEFENDANT NO. 1 WAS IN SETTLED POSSESSION OF THE SUIT property AND COULD BE EVICTED ONLY BY A DECREE OF THE COURT ONLY IN a SUIT FOR POSSESSION. NO SUIT FOR MANDATORY INJUNCTION DIRECTING the DEFENDANT NO. 1 TO VACATE THE SUIT PROPERTY COU D LIE. 1 WAS IN SETTLED POSSESSION OF THE SUIT property AND COULD BE EVICTED ONLY BY A DECREE OF THE COURT ONLY IN a SUIT FOR POSSESSION. NO SUIT FOR MANDATORY INJUNCTION DIRECTING the DEFENDANT NO. 1 TO VACATE THE SUIT PROPERTY COU D LIE. THE judgment AND DECREE WAS LIABLE TO BE SET ASIDE FOR THIS GROUND ALONE. 11. WE HAVE HEARD learned COUNSEL FOR THE PARTIES AND HAVE BEEN TAKEN through THE ENTIRE record. WE MAY RIGHT AT THE INCEPTION DEAL WITH THE TWO wills SET UP respectively BY THE PLAINTIFF AND DEFENDANT NO. 1. DURING THE COURSE of ARGUMENTS WE WERE INFORM AND THAT BOTH THE parties HAD FILED petitions SEEKING PROBATES OF THE RESPECTIVE WILLS (PLAINTIFF s WILL dated 20th FEBRUARY, 1990 AND DEFENDANT s WILL DATED 31st AUGUST, 1989) IN THEIR FAVOUR. BOTH THE WILLS WERE DISBELIEVED by THE PROBATE court AND THE PROBATE PETITIONS DISMISSED. THESE adjudications WERE not FURTHER IMPUGNED AND HAVE ATTAINED FINALITY. AS such WE ARE NOT required TO RETURN A FINDING ON THE TESTAMENTARY dispositions allegedly MADE BY LATE SHRI VASUDEV. 12. WE MAY NOW deal WITH THE two CONTENTIONS AFORESTATED, THE FIRST RELATING TO the NATURE OF relationship OF DEFENDANT NO. 1 TO LATE SHRI VASUDEV. 13. WE FIND THAT the LEARNED TRIAL JUDGE HAS FOUND THATTHE DEFENDANT no. 1 WAS AN employee OF LATE SHRI VASUDEV SHARMA AT THE SHOP. IT HAS been BROUGHT on RECORD THAT DEFENDANT NO. 1. WAS RUNNING THE SHOP during THE LIFE time OF SHRI VASUDEV SHARMA WITH H IS PERMISSION. ON the DEATH OF shri VASUDEV SHARMA THE PERMISSION TO RUN THE SHOP CAME to AN END. THE DEFENDANT NO. 1 IN PARA 3 OF HIS WRITTEN statement REPRODUCED hereinabove HAS ADMITTED THAT HE WAS SERVING LATE SHRI vasudev SHARMA and USED TO TAKE CA E OF HIM DURING HIS LIFE time. IN HIS cross-EXAMINATION, THE DEFENDANT NO. 1 HAD STATED THAT when HE CAME TO the SHOP INITIALLY HE WAS ONLY 12 YEARS OF AGE. IT IS the ADMITTED case OF THE DEFENDANT NO. 1 THAT HE OBTAINED ACCESS to THE SUIT property ONLY B VIRTUE OF HIS SERVICE WITH LATE SHRI vasudev SHRMA. IT IS IN ANSWER TO THE CASE OF THE PLAINTIFF THAT defendant NO. 1 TRIED to SET UP A CASE OF TITLE UNDER THE WILL DATED 31st august, 1989. IT IS the ADMITTED case OF THE DEFENDANT NO. 1 THAT HE OBTAINED ACCESS to THE SUIT property ONLY B VIRTUE OF HIS SERVICE WITH LATE SHRI vasudev SHRMA. IT IS IN ANSWER TO THE CASE OF THE PLAINTIFF THAT defendant NO. 1 TRIED to SET UP A CASE OF TITLE UNDER THE WILL DATED 31st august, 1989. THE defendant TOOK UP A FURTHER PLEA THAT HE WAS OCCUPYING the PREMISES AS a PARTNER OF LATE SHRI VASUDEV SHARMA UNDER AN ORAL partnership IN THE year 1980 WHICH WAS ADDUCED INTO WRITING ON 26th october, 1980. THE defendant NO. 1 CLAIMED THAT THIS PARTNERSHIP DEED WAS attested BY THE notary PUBLIC ON 12th NOVEMBER, 990. 14. THIS partnership DEED IN original WAS PRODUCED ON RECORD BEFORE THE LEARNED trial JUDGE AS exhibit DW-1/a. WE HAVE SCRUTINISED THIS DOCUMENT AS the SAME IS contended TO BE A FORGED AND FABRICATED DOCUMENT ON THE part OF THE defendant NO. 1 EXAMINATION OF THIS DOCUMENT WOULD SHOW that IT DOES not BEAR THE SIGNATURES OF LATE SHRI VASUDEV SHARMA ON all THE PAGES. THE STAMP PAPER DOES NOT APPEAR TO HAVE BEEN PURCHASED in THE NAME OF either OF THE PARTNERS. THE DEFENDANT NO. 1 APPEARS TO have SIGNED ONLY the LAST PAGE OF THE DEED. PAGES 1 AND 2 ARE NOT SIGNED by HIM. PAGE no. 2 OF THE DEED IS NOT SIGNED BY EITHER VASUDEV sharma OR BY THE defendant NO. 1. FURTHERMORE THERE IS NO EXPLANATION forthcoming FROM the SIDE OF THE DEFENDANT NO. 1 AS TO THE DELAY N attestation AND notarisation OF THE PARTNERSHIP DEED. IT HAS come IN THE cross-EXAMINATION OF THE DEFENDANT NO. 1 THAT KAPOOR CHAND who WAS REAL brother OF VASUDEV SHARMA HAD EXPIRED ON 12th november, 1990 AND further THAT SHRI VASUDEV SHARMA HIMSELF H D BEEN IN and OUT OF hospitals ON ACCOUNT OF ILL HEALTH SINCE 14thnovember, 1990. THE typing APPEARING AT PAGES 1 AND 2 OF THE partnership DEED WAS different FROM EACH OTHER. THE PARTNERSHIP DEED APPEARS to HAVE BEAR the SIGNATURES OF TWO ATTESTING WIT ESSES. NEITHER OF these WITNESSES nor THE NOTARY PUBLIC WAS PRODUCED IN EVIDENCE. FROM THE cross-EXAMINATION OF THE DEFENDANT NO. 1, IT APPEARS THAT shri MAHAVIR prasad WAS A WITNESS TO BOTH THE ALLEGED PARTNERSHIP deed AS WELL AS to THE WILL DATED 31st AUGUST, 1989 PROPOUNDED BY THE defendant NO. 1. NEITHER OF these WITNESSES nor THE NOTARY PUBLIC WAS PRODUCED IN EVIDENCE. FROM THE cross-EXAMINATION OF THE DEFENDANT NO. 1, IT APPEARS THAT shri MAHAVIR prasad WAS A WITNESS TO BOTH THE ALLEGED PARTNERSHIP deed AS WELL AS to THE WILL DATED 31st AUGUST, 1989 PROPOUNDED BY THE defendant NO. 1. THIS WITNESS WAS DISBELIEVED BY THE PROBATE COURT AND perhaps FOR THIS reason HE WAS NOT PRODUCED IN THE WITNESS BOX. 15. THE partnership SET up BY THE DEFENDANT NO. 1 IS TO BE DISBELIEVED ALSO FOR the REASON THAT he SET UP A FALSE PLEA OF HAVING INVESTED CAPITAL OF RS. ONE LAC IN equal SHARES ALONGWITH SHRI VASUDEV SHARMA IN THE partnership BUSINESS in THE YEAR 1980. UP ON CROSS EXAMINATION THE defendant NO. 1 retracted AND ADMITTED THAT HE HAD NOT INVESTED ANY amount WHATSOEVER. THE DEFENDANT NO. 1 ATTEMPTED TO SET UP A CASE THAT HE HAD been TOLD BY shri VASUDEV THAT THE DEFENDANT NO. 1 HAD CAPITAL IN THE business ON account OF HIS WORKING AT THE SHOPS. THE DEFENDANT no. 1 COULD NOT produce AN IOTA OF EVIDENCE IN SUPPORT OF HAVING ANY aspect OF THE partnership HAVING BEEN GIVEN EFFECT TO. WE HAVE, therefore, NO hesitation IN AGREEING WITH THE TRIAL COURT THAT the ALLEGE partnership DESERVED TO BE DISBELIEVED. 16. IN ANY CASE, the MATERIAL fact IN THE INSTANT CASE IS THE FACT THAT THE DEFENDANT no. 1 DID NOT set UP ANY PLEA THAT HE CAME INTO THE POSSESSION OF THE suit PROPERTY by VIRTUE OF THE PARTNERSHIP DEED. WE MAY APPROPRIATELY set OUT THE defendant NO. 1, WHICH ARE AS UNDER:- FEW MATERIAL TERM S of EVEN THE partnership DEED AS SET UP BY THE "1. THAT THE PARTY of THE FIRST part SH. VASDEV SHARMA IS THE TENANT IN THE PREMISES shop NO. 7706 AND 7707, DHARAMPURA LODGE, GHANTA GHAR CHOWK, SUBZI MANDI, delhi AND THE rent OF RS. 26. 24 P. ONLY THAT IS AT THE RATE OF rs. 13. 12p. ONLY PER shop RESPECTIVELY FOR THE LAST MORE THAN 40 YEARS AND THE tenancy WILL continue WILL THE PARTY OF FIRST PART AND THE PARTY OF the SECOND PART will HAVE TO DO NOTHING WITH THE TENANCY. HOWEVER THE possession WILL be A JOINED POSSESSION. 26. 24 P. ONLY THAT IS AT THE RATE OF rs. 13. 12p. ONLY PER shop RESPECTIVELY FOR THE LAST MORE THAN 40 YEARS AND THE tenancy WILL continue WILL THE PARTY OF FIRST PART AND THE PARTY OF the SECOND PART will HAVE TO DO NOTHING WITH THE TENANCY. HOWEVER THE possession WILL be A JOINED POSSESSION. THE PARTY OF THE FIRST PART WILL being OLD IN firm PERSON AND AGREED TO BE A SLEEPING PARTNER, AND AS agreed TO JUST sitting THE SHOP AND SUPERVISE THE WORK AS PER convenience TO HIS health. ( 8 ) THAT ON THE DEATH OF ANY OF THE PARTNERS/parties the SURVIVED party SHALL CONTINUED THE BUSINESS IN THE NAME OF THE firm. IN CASE OF the DEATH OF FIRST PARTY OF ALL THE CAPITAL, GOODS, machinery AND tools AND EXTRA WITH ALL THE MONEY IN THE ACCOUNT O the FIRM THE second PARTY ARE IS LEGAL HEIRS WILL POSSESSION OWN everything AND CAN the BUSINESS WITH THE CONSENT OF THE LANDLORD. BECAUSE THE FIRST party HAS GOT NO ISSUE AND ALONE. HE HAS BEEN LOOKED after AND SERVED very NICELY BY THE SECOND PARTY AND HIS CHILDREN. " ( 9 ) THEREFORE, EVEN as PER THE CASE SET UP BY THE DEFENDANT NO. 1 HE HAS NO right TO THE tenancy OR TO OCCUPY THE SUIT PROPERTY. IN ANY EVENT, as PER THE document RELIED UPON BY THE DEFENDANT NO. 1, THE partnership STOOD dissolved UPON THE DEATH OF SHRI VASUDEV ON 28th OF november, 1990. ( 10 ) IN THIS BACKGROUND IT IS NECESSARY TO EXAMINE THE NATURE OF possession OF THE DEFENDANT NO. 1 AND PROTECTION, IF ANY, available TO him IN LAW. 19. THE EXPRESSION "possession" FELL FOR consideration in JUDGMENT REPORTED AT 1994 (30) DRJ 597 ENTITLED SHRI sham LAL VS. RAJINDER KUMAR AND OTHERS. IT WAS HELD AS UNDER:- "13. POSSESSION IS flexible TERM AND IS NOT NECESSARILY RESTRICTED TO mere ACTUAL possession OF THE PROPERTY. THE LEGAL CONCEPTION OF possession MAY BE in VARIOUS FORMS. THE TWO ELEMENTS OF POSSESSION ARE the CORPUS AND the ANIMUS. A PERSON THOUGH IN PHYSICAL POSSESSION may NOT BE IN possession IN THE EYE OF LAW, IF THE ANIMUS BE lacking. ON THE contrary, TO BE IN POSSESSION, IT IS NOT NECESSARY THAT one MUST BE IN actual PHYSICAL CONTACT. THE TWO ELEMENTS OF POSSESSION ARE the CORPUS AND the ANIMUS. A PERSON THOUGH IN PHYSICAL POSSESSION may NOT BE IN possession IN THE EYE OF LAW, IF THE ANIMUS BE lacking. ON THE contrary, TO BE IN POSSESSION, IT IS NOT NECESSARY THAT one MUST BE IN actual PHYSICAL CONTACT. TO GAIN THE COMPLETE IDEA OF possession, ONE must CONSIDER (I) THE PERSON POSSESSING, (II) THE things POSSESSED and, (III) THE PERSON EXCLUDED FROM POSSESSION. A MAN may HOLD AN object WITHOUT CLAIMING ANY INTEREST THEREIN FOR himself. A SERVANT though HOLDING AN OBJECT, HOLDS IT FOR HIS MASTER. HE has, THEREFORE, merely CUSTODY OF THE THING AND NOT THE POSSESSION WHICH would ALWAYS be WITH THE MASTER THOUGH THE MASTER MAY NOT BE IN actual CONTACT OF the THING. IT IS IN THIS LIGHT IN WHICH THE CONCEPT OF possession HAS to BE UNDERSTOOD IN THE CONTEXT OF A SERVANT AND A master. " 20. IT IS settled LAW THAT POSSESSION OF A SERVANT IS POSSESSION of THE REAL owner. THE DEFENDANT NO. 1 HAVING BEEN AN EMPLOYEE of LATE SHRI vasudev SHARMA CANNOT BE SAID TO BE HAVING ANY INTEREST in THE SUIT property. SUCH OCCUPATION BY A SERVANT DOES NOT entitle HIM TO exclude HIS MASTER AND THE PERSON HAVING THE RIGHTS IN the PROPERTY from HIS POSSESSION OR EXERCISING RIGHT TO POSSESS THE suit PROPERTY. ( 11 ). WE ARE UNABLE TO HOLD THAT THE DEFENDANT NO. 1 WAS IN such SETTLED possession AS WOULD ENTITLE HIM TO EXCLUDE HIS MASTER from ENJOYING OR claiming POSSESSION OF THE PROPERTY OR AS WOULD ENTITLE to COMPEL THE master FROM SITTING AWAY FROM HIS OWN PROPERTY. THE defendant NO. 1 was PERMTITED ENTRY INTO THE SUIT PROPERTY ONLY because HE WAS A servant OF LATE SHRI VASUDEV WHEN HE WAS 12 YEARS of AGE. THE defendant NO. 1 HAS FAILED TO DISCLOSE THE TIME OR THE manner IN WHICH the LEARNED TRIAL JUDGE THAT THE DEFENDANT WAS MERELY IN unauthorised occupation OF THE PREMISES INASMUCH AS THE LICENCE OF the DEFENDANT no. 1 STOOD TERMINATED UPON THE DEATH OF SHRI VASUDEV ON 25th NOVEMBER, 1990 AND HE CAME INTO EXCLUSIVE POSSESSION EVEN. AS such WE WOULD agree WITH GAIN WHEN THE PLAINTIFF ASKED THE DEFENDANT no. 1 TO VACATE the SUITPREMISES. 22. THE WILL RELIED UPON BY THE defendant NO. 1 STOOD TERMINATED UPON THE DEATH OF SHRI VASUDEV ON 25th NOVEMBER, 1990 AND HE CAME INTO EXCLUSIVE POSSESSION EVEN. AS such WE WOULD agree WITH GAIN WHEN THE PLAINTIFF ASKED THE DEFENDANT no. 1 TO VACATE the SUITPREMISES. 22. THE WILL RELIED UPON BY THE defendant NO. 1 stands DISBELIEVED AND REJECTED BY THE PROBATE COURT. WE are BOUND BY the FINDINGS RECORDED BY THE PROBATE COURT WHICH have ATTAINED finality. IT IS THUS APPARENT THAT THE DEFENDANT NO. 1 had NO RIGHT OR entitlement TO OCCUPY THE SUIT PREMISES ON ACCOUNT of SUCCESSION under A TESTAMENTARY DISPOSSESSION BY LATE SHRI VASUDEV sharma. WE have ALREADY FOUND THAT THE DEFENDANT NO. 1 HAD NO RIGHT whatsoever TO occupy THE PREMISES BY VIRTUE OF THE PARTNERSHIP DATE 26th OCTOBER, 1990. 23. IN SUPPORT OF THE OBJECTION TO THE maintainability OF THE plea DEFENDANT NO. 1 HAS RELIED UPON A JUDGMENT REPORTED at AIR 1964 jandk 99 ENTITLED MILKA SINGH AND OTHERS VS. DIANA TO contend THAT THE suit WAS NOT MAINTAINABLE. COUNSEL FOR THE APPELLANT contended THAT even IF THE PLEA OF TERMINATION OF LICENCE OF THE defendant NO. 1 WAS accepted, THE DEFENDANT NO. 1 DID NOT BECOME AN unauthorised OCCUPANT and THE PLAINTIFF WAS BOUND TO HAVE FILED A SUIT FOR possession WHICH would BE COVERED UNDER SECTION 7 (1) OF THE COURT FEE act, 1870. THE suit IN THE INSTANT CASE BEING A SUIT FOR MANDATORY injunction ON which COURT FEE HAD BEEN AFFIXED IN ACCORDANCE WITH section 7 (IV) (D) of THE COURT FEE ACT, 1870 WAS NOT COMPETENT AND WAS liable TO BE dismissed. 24. IN ORDER TO TEST THIS PLEA, WHICH IS TO be EXAMINED IN the LIGHT OF OUR FINDING THAT THE DEFENDANT NO. 1 WAS A mere LICENCEE which STOOD TERMINATED ON THE DEATH OF SHRI VASUDEV sharma WE MAY advert TO THE VALUATION GIVEN BY THE PLAINTIFF IN THE plaint: - "13. THAT THE VALUATION OF THE SUIT FOR THE PURPOSES OF court FEE AND jurisdiction IS AS UNDER : relief VALUE FOR VALUE FOR COURT C/fee JURISDICTION FEE paid 1. FOR the RELIEF OF PERMANENT INJUNCTION RESTRAINING THE defendant NO. 1 FROM entering THE SAID SHOPS 130/- 130/- RS. 13/- in THE ALTERNATIVE FOR MANDATORY INJUNCTION DIRECTING the DEFENDANT no. 1 TO VACATE THE SAID SHOPS 25000/- 25000/- RS. 2100/- 2. FOR PERMANENT INJUNCTION RESTRAINING THE defendant NO. FOR the RELIEF OF PERMANENT INJUNCTION RESTRAINING THE defendant NO. 1 FROM entering THE SAID SHOPS 130/- 130/- RS. 13/- in THE ALTERNATIVE FOR MANDATORY INJUNCTION DIRECTING the DEFENDANT no. 1 TO VACATE THE SAID SHOPS 25000/- 25000/- RS. 2100/- 2. FOR PERMANENT INJUNCTION RESTRAINING THE defendant NO. 1 FROM dealing WITH OR APPROPRIATING ANY OF THE ASSETS PROPERTY of SHRI VASU dev INCLUDING THE GOODS LYING IN THE SAID SHOPS AND FDRS in THE SUBZI mandi BRANCH OF PUNJAB NATIONAL BANK, DELHI 130/- 130/- RS. 13/- _____________ RS. 2126/-" 25. IN ITS WRITTEN STATEMENT the DEFENDANT no. 1had SET UP A VAGUE PLEA THAT THE SUIT WAS NOT VALUED appropriately for THE PURPOSE OF COURT FEE AND JURISDICTION AND IN reply TO PARA 13 stated AS UNDER:- "13. PARA 13 IS INCORRECT AND DENIED. THE SUIT IS not PROPERTY VALUED FOR THE PURPOSES OF THE court FEE AND jurisdiction. " 26. IT WAS ALSO HELD BY THE DIVISION BENCH of THE JAMMU and KASHMIR HIGH COURT IN MILKA SINGH s CASE (SUPRA) THAT A mere LICENSE does NOT CREATE ANY ESTATE OR INTEREST IN THE PROPERTY to WHICH IT relates; IT ONLY MAKES AN ACT LAWFUL WHICH WITHOUT it WOULD BE unlawful AND THUS THE STATUS OF A LICENSEE IS essentially DIFFERENT from THAT OF A TRESPASSER OR A TENANT. IT WAS further HELD THAT possession OF A LICENSEE IS NOT A JUDICIAL POSSESSION but ONLY AN occupation WITH THE PERMISSION OF THE LICENSER AND HILE the ACTUAL occupation REMAINS WITH THE LICENSEE, THE CONTROL OR possession OF THE property IS WITH THE LICENSER THROUGH HIS LICENSEE. ( 12 ) COUNSEL FOR the RESPONDENT HAS PLACED RELIANCE ON THE JUDGMENT reported AT AIR 1985 SC 857 ENTITLED SANT LAL JAIN VS. AVTAR SINGH wherein THE supreme COURT AFFIRMED THE PRINCIPLES OF LAW LAID DOWN IN air 1964 Jandk 99. IT WAS HELD THAT THE SUPREME COURT HAS HELD THAT A licensee IS always A LICENSEE AND IT IS NOT OPEN TO HIM, DURING THE subsistence OF the LICENCE OR IN THE SUIT FOR RECOVERY POSSESSION OF the PROPERTY instituted AFTER THE REVOCATION OF THE LICENCE TO SET UP title TO THE property IN HIM ELF OR ANYONE ELSE. IT WAS HELD THAT THE SUPREME COURT HAS HELD THAT A licensee IS always A LICENSEE AND IT IS NOT OPEN TO HIM, DURING THE subsistence OF the LICENCE OR IN THE SUIT FOR RECOVERY POSSESSION OF the PROPERTY instituted AFTER THE REVOCATION OF THE LICENCE TO SET UP title TO THE property IN HIM ELF OR ANYONE ELSE. IT WAS HELD THAT IT is HIS PLAIN duty TO SURRENDER POSSESSION OF THE PROPERTY AS A licensee AND SEEK his REMEDY SEPARATELY IN CASE HE HAS ACQUIRED TITLE TO the PROPERTY subsequently THROUGH SOME OTHER PERSON. THE FACTS OF said CASE ARE similar TO THE FACTS OF THE CASE IN HAND. IN THE said CASE THE defendant/respondent TOOK FROM THE APPELLANT ON LICENCE for ONE YEAR under A DEED DATED 10th DECEMBER, 1969 THE SUIT SHED FOR carrying ON the WORK OF REPAIR OF MOTORS, TRACTORS ETC. AN AS HE did NOT VACATE the SAME AFTER THE EXPIRY OF THE PERIOD HIS LICENCE was TERMINATED after WHICH A SUIT WAS FILED ON 15th FEBRUARY, 1973 for MANDATORY injunction DIRECTING HIM TO VACATE THE PREMISES. THE RESPONDENT opposed THE SUIT CONTENDING T AT THE APPELLANT SUBLET TO him A PLOT OF land IN 1966-67 AND HE HAD RAISED A NEW CONSTRUCTION thereon AND WAS carrying ON WORKSHOP BUSINESS THEREIN SINCE THEN AND THE relationship between THE PARTIES WAS THAT OF LANDLORD AND TENANT AND that THE SUIT for MANDATORY INJUNCTION WAS NOT MAINTAINABLE. THE supreme COURT IN the SAID DECISION REFERRED TO THE DECISION OF THE JAMMU and kashmir HIGH court IN THE CASE OF MILKA SINGH (SUPRA) WHEREIN IT WAS observed THAT the PRINCIPLE THAT ONCE A LICENSEE ALWAYS A LICENSE would APPLY TO all KINDS OF LICENCES AND THAT IT CANNOT BE SAID THAT the MOMENT THE licence IS TERMINATED, THE LICENSEE s POSSESSION becomes THAT OF A trespasser. AFTER HAVING HELD THUS, IN PARA 7 OF THE said JUDGMENT, it WAS HELD BY THE SUPREME COURT AS UNDER:- "7. IN THE present CASE IT has NOT BEEN SHOWN TO US THAT THE APPELLANT HAD COME TO the COURT WITH the SUIT FOR MANDATORY INJUNCTION AFTER ANY CONSIDERABLE delay WHICH will DISENTITLE HIM TO THE DISCRETIONARY RELIEF. AFTER HAVING HELD THUS, IN PARA 7 OF THE said JUDGMENT, it WAS HELD BY THE SUPREME COURT AS UNDER:- "7. IN THE present CASE IT has NOT BEEN SHOWN TO US THAT THE APPELLANT HAD COME TO the COURT WITH the SUIT FOR MANDATORY INJUNCTION AFTER ANY CONSIDERABLE delay WHICH will DISENTITLE HIM TO THE DISCRETIONARY RELIEF. EVEN if THERE WAS some DELAY, WE THINK THAT IN A CASE OF THIS KIND attempt SHOULD BE made TO AVOID MULTIPLICITY OF SUITS AND THE LICENSOR should NOT BE driven TO FILE ANOTHER ROUND OF SUIT WITH ALL THE attendant DELAY, trouble AND EXPENSE. THE SUIT IS IN EFFECT ONE FOR possession THOUGH coached IN THE FORM OF A SUIT FOR MANDATORY INJUNCTION as WHAT WOULD be GIVEN TO THE PLAINTIFF IN CASE HE SUCCEEDS IN possession OF THE property TO WHICH HE MAY BE FOUND TO BE ENTITLED. THEREFORE, WE ARE of THE OPINION THAT THE APPELLANT SHOULD NOT BE DENIED relief MERELY because HE HAD COUCHED THE PLAINT IN THE FORM OF A SUIT for MANDATORY injunction". 28. IN PARA 8 OF THE SAID JUDGMENT THE supreme COURT held THUS: "8. THE RESPONDENT WAS A LICENSEE, AND HE MUST be DEEMED TO be ALWAYS A LICENSEE. IT IS NOT OPEN TO HIM, DURING THE subsistence of THE LICENCE OR IN THE SUIT FOR RECOVERY OF possession OF THE property INSTITUTED AFTER THE REVOCATION OF THE licence TO SET UP title TO THE PROPERTY IN HIMSELF OR ANYONE ELSE. IT IS his PLAINT duty TO SURRENDER POSSESSION OF THE PROPERTY AS A licensee AND SEEK his REMEDY SEPARATELY IN CASE HE HAS ACQUIRED TITLE TO the PROPERTY subsequently THROUGH SOME OTHER PERSON. HE NEE NOT DO so IF HE HAS acquired TITLE TO THE PROPERTY FROM THE LICENSOR OR FROM someone ELSE lawfully CLAIMING UNDER HIM IN WHICH CASE THERE WOULD BE clear MERGER. THE RESPONDENT HAS NOT SURRENDERED POSSESSION OF THE property TO THE appellant EVEN AFTER THE TERMINATION OF THE licence AND THE institution OF THE SUIT. THE APPELLANT IS, THEREFORE, entitled TO recover POSSESSION OF THE PROPERTY. WE ACCORDINGLY allow THE APPEAL with COSTS THROUGHOUT AND DIRECT THE RESPONDENT TO deliver POSSESSION of THE PROPERTY TO THE APPELLANT FORTHWITH FAILING which IT WILL BE open TO THE APPELLANT TO EXECUTE THE DECREE AND OBTAIN possession". THE APPELLANT IS, THEREFORE, entitled TO recover POSSESSION OF THE PROPERTY. WE ACCORDINGLY allow THE APPEAL with COSTS THROUGHOUT AND DIRECT THE RESPONDENT TO deliver POSSESSION of THE PROPERTY TO THE APPELLANT FORTHWITH FAILING which IT WILL BE open TO THE APPELLANT TO EXECUTE THE DECREE AND OBTAIN possession". ( 13 ) THE SUPREME COURT FURTHER HELD THAT WHERE A LICENSOR APPROACHES THE court FOR INJUNCTION WITHIN A REASONABLE TIME AFTER THE license IS terminated HE IS ENTITLED TO THE INJUNCTION. IT WAS also AFFIRMED that IN THE EVENT THE LICENSOR CAUSES HUGE DELAY, THE court MAY REFUSE the DISCRETION TO GRANT AN INJUNCTION ON THE GROUND THE licensor HAD not BEEN DILIGENT AND IN THAT CASE THE LICENSOR WILL have TO BRING A suit FORPOSSESSION WHICH WILL BE GOVERNED BY SECTION 7 (V) OF THE court FEE ACT. 30. LEARNED COUNSEL FOR THE plaintiff/respondent NO. 1 has ALSO RELIED ON A JUDGMENT OF LEARNED SINGLE JUDGE of THIS COURT reported AT (46) 1992 DLT 173 WHEREIN IT WAS HELD THAT license TO occupy A PROPERTY HAVING BEEN REVOKED THE PLAINTIFF WAS entitled TO file AND MAINTAIN A SUIT FOR MANDATORY INJUNCTION. WE ARE IN respectful AGREEMENT WITH THE VIEWS EXPRESSED BY THE learned SINGLE judge. 31. IT APPEARS SHRI VASUDEV EXPIRED ON THE 28th of NOVEMBER, 1990. THE SUIT WAS ADMITTEDLY FILED ON OR ABOUT 5th february, 1991. IN THE INSTANT CASE THE PLAINTIFF IN ITS PLAINT has STATED AS hereunder:- "that THE CAUSE OF ACTION FOR THE SUIT accrued TO THE plaintiff AGAINST THE DEFENDANT NO. 1 WHEN THE LICENCE OF the DEFENDANT no. 1 STOOD TERMINATED UPON THE DEATH OF SHRI VASU DEV on 25. 11. 1990 and AGAIN ON OR ABOUT THE MONTH OF DECEMBER, 1990 WHEN the PLAINTIFF asked THE DEFENDANT NO. 1 TO VACATE/leave THE SAID SHOPS and ALSO ON 30. 1. 1991, 31. 1. 1991 AND 2. 2. 1991 AS STATED IN PARA 7 hereinabove. THE SUIT IS BEING FILED IMMEDIATELY AND NO RELIEF claimed IN THE SUIT barred BY TIME. NO RELIEF HAS BEEN CLAIM D AGAINST defendants NO. 2 TO 7. " 32. WE DO NOT FIND THAT THERE WAS ANY UNREASONABLE OR undue DELAY in FILING THE SUIT FOR INJUNCTION DIS-ENTITLING THE plaintiff TO maintain THE SUIT AND OR SUCH UNREASONABLE DELAY AFTER termination OF the LICENCE AS WOULD REQUIRE A PLAINTIFF TO BRING A su IT FOR possession. 33. 2 TO 7. " 32. WE DO NOT FIND THAT THERE WAS ANY UNREASONABLE OR undue DELAY in FILING THE SUIT FOR INJUNCTION DIS-ENTITLING THE plaintiff TO maintain THE SUIT AND OR SUCH UNREASONABLE DELAY AFTER termination OF the LICENCE AS WOULD REQUIRE A PLAINTIFF TO BRING A su IT FOR possession. 33. IT IS ALSO SUBMITTED BY LEARNED counsel FOR THE plaintiff THAT THE ONLY DISTINCTION IN BRINGING A SUIT for POSSESSION vis-A-VIS THE SUIT FOR MANDATORY INJUNCTION RELATES TO the COURT FEE payable ON THE PLAINT. SO FAR AS A SUIT FOR INJUNCTION is CONCERNED the PLAINTIFF IS GIVEN LIBERTY TO VALUE THE SUIT UNDER section 7 (IV) (D) OF THE COURT FEES ACT ACCORDING TO THE AMOUNT AT which THE RELIEF sought IS VALUED IN THE PLAINT. 34. IT IS URGED ON behalf OF THE plaintiff THAT IN THE INSTANT CASE THE PLAINTIFF was SEEKING injunction WITH REGARD TO TENANCY RIGHTS. THE PROPERTY was ADMITTEDLY rented PREMISES. THE RENTAL FOR THE SUIT PREMISES WAS merely RS. 24/- per MONTH. ACCORDING TO LEARNED COUNSEL, SUCH A CASE would BE VALUED in ACCORDANCE WITH SECTION 7 (XI) (CC) ACCORDING TO THE amount OR RENT which WOULD BE PAYABLE FOR THE YEAR NEXT BEFORE THE DATE or PRESENTING the PLAINT. WE ARE NOT EXPRESSING ANY OPINION ON THIS aspect AS E have HELD THAT SUIT AS FRAMED WAS COMPETENT. 35. IN this VIEW OF THE aforestated DISCUSSION WE FIND NO MERIT IN THE APPEAL which IS HEREBY dismissed.