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2012 DIGILAW 1815 (RAJ)

Banshi Lal v. Sohan Lal

2012-08-22

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The aforesaid two connected appeals being SBCSA No.381/2005 – Banshi Lal vs. Sohan Lal and Ors. and SBCFA No.307/2010 – Banshi Lal vs. Sohan Lal and ors. are being disposed of by the common order and judgment since parties are common and the suit premises are also common. 2. The aforesaid second appeal of the appellant – plaintiff is directed against the judgment dtd.21.3.2005 passed by the learned Additional Dist. Judge No.2, Jodhpur in Civil Appeal No.24/2004 whereby the learned Additional Dist Judge allowed the appeal filed by the respondents – defendants Sohan Lal and Gauri Shankar and set aside the judgment and decree dtd.27.10.2004 of learned trial Court passed by the learned Additional Civil Judge (J.D.) No.1, Jodhpur in Civil Original Suit No.7/2002 whereby the suit filed by the appellant – plaintiff Banshi Lal for permanent injunction was partly allowed. 3. The aforesaid first appeal of the appellant – defendant Banshi Lal is directed against the judgment and decree dtd.3.8.2010 passed by the learned Additional District Judge No.3, Jodhpur in civil original Suit No.146/2007 Sohan Lal and anr. vs. Banshi Lal whereby the suit filed by the plaintiffs Sohan Lal and Gauri Shankar, his son for permanent and mandatory injunction and eviction and mesne profit was decreed by the learned trial Court below, which according to them was due process of law for evicting their licensee Banshi Lal, upon termination of licence. 4. The suit premises, a plot of land measuring 60 x 90 ft. situated at C-25, Kamla Nehru Nagar, Extension -I, Jodhpur was allotted in favour of one Mohd. Rafiq by the Urban Improvement Trust, Jodhpur in the year 2001 and through power of attorney executed by said Mohd. Rafiq in favour of wife of present plaintiff Sohan Lal who in turn sold the said plot of land to Gauri Shankar S/o Sohan Lal and Kishan Lal by registered sale-deed dtd.28.3.1997 and Kishan Lal executed a Will in favour of Sohan Lal on 21.8.1997 in respect of his part of plot of land in question. 5. Rafiq in favour of wife of present plaintiff Sohan Lal who in turn sold the said plot of land to Gauri Shankar S/o Sohan Lal and Kishan Lal by registered sale-deed dtd.28.3.1997 and Kishan Lal executed a Will in favour of Sohan Lal on 21.8.1997 in respect of his part of plot of land in question. 5. The plaintiff Banshi Lal S/O Heera Lal Acharya initiated the litigation in respect of said plot of land by filing a suit for injuntion in the year 2002, namely, Civil Suit No.7/2002 that the defendant Sohan Lal S/o Kishan Lal and Gauri Shankar S/o Sohan Lal may not forcibly evict him from the suit plot of land without due process of law. The plaintiff Banshi Lal Acharya came with the case that he was in long possession of the plot of land in question since the year 1985 and when the UIT allotted the said plot to Mohd. Rafiq, he started paying rent of Rs.1,000/- per month to said Mohd. Rafiq and thereafter when said Mohd. Rafiq sold the said plot of land to defendant Sohan Lal S/o Kishan Lal through power of attorney executed by Mohd. Rafiq in favour of wife of Sohan Lal, upon change of ownership, the plaintiff Banshi Lal started paying rent of Rs.1500/-per month from January,2001 to defendant Sohan Lal. However, when in December, 2001, said defendant Sohan Lal asked the plaintiff Banshi Lal to double the rent to Rs.3000/- per month, otherwise to vacate the plot of land in question, he refused to do so and filed the suit for injunction apprehending forcible eviction by the defendants. 6. The learned trial Court of Additional Civil Judge (J.D.) No.1, Jodhpur partly decreed the suit of the plaintiff Banshi Lal and directed the defendants Sohan Lal and Gauri Shankar not to forcibly dispossess the plaintiff Banshi Lal without adopting the due process of law. The learned trial Court however decided issue No.2 against the plaintiff Banshi Lal on the basis of evidence led by him that he has failed to establish that he was in possession of suit premises, plot of land, as a tenant of defendants Sohan Lal or Gauri Shankar. The learned trial Court however decided issue No.2 against the plaintiff Banshi Lal on the basis of evidence led by him that he has failed to establish that he was in possession of suit premises, plot of land, as a tenant of defendants Sohan Lal or Gauri Shankar. The defendant Sohan Lal submitted that in the year 2001, the plaintiff Banshi Lal who was residing in a building constructed just opposite the road in front of the suit plot of land and he was carrying on business of selling building material and giving on hire building material like wooden and iron Ghodi, Patiya etc. which he was keeping on the road side and since UIT started the removal of encroachment drive, at the request of plaintiff Banshi Lal, the defendants – owners of the suit plot of land had merely given a licence for 10-15 days to put his belongings for 10-15 days only inside on the plot of land, but the plaintiff Banshi Lal did not mischievously hand over back the vacant possession to the defendant Sohan Lal and consequently upon revocation of the licence, the plaintiff was not entitled to remain on the said land. The learned trial Court therefore, partly decreed the suit to the aforesaid extent only of not forcibly dispossessing the plaintiff without adopting the due process of law. 7. The first appeal filed by the defendants Sohan Lal and Gauri Shankar being Civil Appeal No.24/2004 – Sohan Lal and anr. vs. Banshi Lal against the said decree dtd.27.10.2004 came to be allowed by the learned Additional District Judge No.2, Jodhpur vide judgment dtd.21.3.2005 and setting aside the judgment and decree of the learned trial Court dtd.27.10.2004, the suit of the plaintiff Banshi Lal was dismissed by the learned appellate Court. The plaintiff, Banshi Lal had however, not filed any appeal and cross-objections against the findings on issue No.2 decided against him by the learned trial Court in the judgment dtd.27.10.2004 of the learned trial Court that he has failed to establish any relationship of landlord and tenant. 8. The plaintiff, Banshi Lal had however, not filed any appeal and cross-objections against the findings on issue No.2 decided against him by the learned trial Court in the judgment dtd.27.10.2004 of the learned trial Court that he has failed to establish any relationship of landlord and tenant. 8. Being aggrieved by the said appellate decision dtd.21.3.2005, the plaintiff Banshi Lal has preferred the present second appeal No.381/2005, which was filed in this Court on 26.5.2005 and while admitting the present second appeal, the coordinate Bench of this Court framed the following substantial question of law on 15.11.2006 for consideration: “Whether despite finding the defendant to be in possession as a licensee, and not as a tenant, the Court below was in error in setting aside the decree of the learned trial Court, which had only directed that it will be open to the defendant to dispossess the plaintiff by due process of law?” The operation of the impugned judgment of the appellate Court was also stayed by this Court on 15.11.2006. 9. The present second appeal No.381/2005 as well as connected first appeal No.307/2010 of appellant Banshi Lal both were dismissed in default of appearance by a coordinate Bench of this Court on 26.9.2011. However, upon separate restoration applications No.183/2011 and 184/2011 filed by the plaintiff Banshi Lal through his counsel Mr. M.L. Chhangani, which were allowed vide order dtd.9.12.2011, both the appeals were restored to their original number and position and as per the orders of the Hon'ble Supreme Court in SLP No.15118/2011 filed by plaintiff Banshi Lal against the order dtd.10.5.2011 passed by this Court in CFA No.307/2011 dismissing the stay application filed by the said plaintiff – appellant Banshi Lal in the first appeal, the Hon'ble Supreme Court has directed this Court to dispose of these appeals as early as possible. Accordingly, the arguments of learned counsels on both the sides were heard today at length and both these appeals are being disposed of by common judgment. 10. Mr. M.L. Chhangani, learned counsel for the plaintiff Banshi Lal (defendant in connected first appeal No.307/2010) raised the following contentions before this Court: i) That Banshi Lal was tenant originally of Mohd. Rafiq even though he had entered into the possession of said plot of land being Government land way back in the year 1985 and upon allotment of said plot of land to Mohd. Rafiq even though he had entered into the possession of said plot of land being Government land way back in the year 1985 and upon allotment of said plot of land to Mohd. Rafiq, he started paying rent to him since February, 1996 and therefore, the learned appellate Court below has erred in holding that the plaintiff Banshi Lal was merely a licensee of defendant Sohan Lal and upon revocation of the said licence, he became trespasser over the said plot of land. ii) Mr. M.L. Chhangani also urged that since the plaintiff Banshi Lal had proved his possession over the said land on the basis of documentary evidence like letters received by him from some political leaders at this address, even prior to defendant Sohan Lal claiming to have given licence to him for a short period of 10 to 15 days in the year 2001, the claim of defendant Sohan Lal that plaintiff Banshi Lal was only a licensee, could not be accepted, as no specific deed of licence for any period was produced by him nor it was disclosed whether such licence was revocable or irrevocable and consequently, the learned trial Court was justified in partly decreeing the suit in favour of the plaintiff Banshi Lal restraining the defendants Sohan Lal and his son Gauri Shankar not to forcibly dispossess the plaintiff Banshilal without adopting the due process of law. iii) The learned counsel for the appellant Mr. M.L. Chhangani relying upon the various case laws, which will be discussed in brief hereinafter, urged that substantial question of law, therefore, deserves to be answered in favour of the plaintiff – appellant Banshi Lal and other additional substantial questions of law which arise in the matter may also be framed even now and may be decided in favour of the plaintiff – appellant Banshi Lal. iv) Mr. M.L. Chhangani also submitted that the plaintiff Banshi Lal had also filed earlier suit against the UIT, Jodhpur in suit No.224/2004 when the UIT served a notice on 21.10.2002 upon him to remove encroachment on the said plot of land, which suit was also decreed by the learned trial Court of Additional Civil Judge (Junior Division) No.4, Jodhpur on 28.4.2006. v) About connected First Appeal No.307/2010 – Banshi Lal vs. Sohan Lal and anr. v) About connected First Appeal No.307/2010 – Banshi Lal vs. Sohan Lal and anr. which has been filed by the defendant Banshi Lal in a suit filed for mandatory injunction by the plaintiff Sohan Lal and anr., being the suit No.146/2007 – Sohan Lal and anr. vs. Banshi Lal, came to be decreed by the learned Additional Dist. Judge No.3, Jodhpur on 3.8.2010 against which the said defendant Banshi Lal has preferred the said first appeal No.307/2010, Mr. M.L. Chhangani submitted that the learned trial Court simply following the appellate Court decision dtd.21.3.2005, which is assailed by him in connected second appeal No.381/2005 has decreed the said suit filed by Sohan Lal and his son without considering the evidence led by him and therefore, the present first appeal filed by him also deserves to be allowed and decree of possession and eviction in the suit filed for mandatory injunction deserves to be set aside. 11. On the other hand, Mr. O.P. Boob and Rajesh Joshi. learned counsels appearing for the plaintiff Sohan Lal and Gauri Shankar in CFA No.307/2010 and the defendants in CSA No.381/2005 vehemently submitted that the said Banshi Lal is a cantankerous litigant and having been given short term licence by the owners of the suit property Sohan Lal and Gauri Shankar in the year 2001 as he belongs to their community and to avoid any loss to him in encroachment removal drive of UIT in December, 2001, he was given this licence to keep his building materials and articles in the suit plot of land and he not only is an encroachee or trespasser over the suit land, but abusing the process of law, he had filed the suit against the UIT No.224/2004 – Banshi Lal vs. UIT, and without impleading the owners Sohan Lal and Gauri Shankar in the said suit obtained the exparte decree on 28.4.2006 that he may not be dispossessed from the suit land without due process of law impleading only the UIT, Jodhpur in that suit. The said Banshi Lal also filed similar suit against true owners Sohan Lal and Gauri Shankar in the year 2002 and obtained similar relief from the learned trial Court on 27.10.2004 against which the owners appeal No.24/2004 was allowed by the learned appellate Court of Additional District Judge No.2, Jodhpur on 21.3.2005. The said Banshi Lal also filed similar suit against true owners Sohan Lal and Gauri Shankar in the year 2002 and obtained similar relief from the learned trial Court on 27.10.2004 against which the owners appeal No.24/2004 was allowed by the learned appellate Court of Additional District Judge No.2, Jodhpur on 21.3.2005. The learned counsel for the respondents Mr.O.P. Boob also submitted that the due process of law was taken by the true owners of the plot of land in question by filing the suit for mandatory injunction and the said suit No.146/2007 has been decreed by the learned Additional District Judge No.3,Jodhpur on 3.8.2010 against which the present First Appeal No.307/2010 has been filed by the defendant Banshi Lal in which the stay application filed by him came to be rejected by this Court by a detailed order on 10.5.2011 finding no prima facie case in his favour. However, against that order, the appellant Banshi Lal approached the Hon'ble Supreme Court by way of SLP No.15118/2011 in which the operation of the decree passed by the learned trial Court was stayed and the High Court was reques-ted to make an endeavour to dispose of both these appeals expeditiously. The learned counsels for the respondents also urged that even the alleged claim of plaintiff Banshi Lal that he initially entered the suit land in the year 1985 is not sustainable as admittedly there was no right, title or interest available with him over the said plot of land which was duly allotted in favour of Mohd. Rafiq by the UIT, Jodhpur and through a registered sale-deed Ex.A/4 dtd.28.3.1997 was sold to Kishan lal and Gauri Shankar, father and son of Sohan Lal respectively under an Agreement to sell Ex.A/2 dtd.10.1.1996. They therefore, submitted that said Banshi Lal is merely a trespasser over the said plot of land and in pursuance of previous decree in his favour that he may not be dispossessed without adopting the due process of law, in the present suit for mandatory injunction filed by the plaintiff Sohan Lal and Gauri Shankar in the suit No.146/2007, the decree was passed against him on 3.8.2010 against which he has filed connected First Appeal No.307/2010, which however, deserves to be dismissed as the defendant appellant Banshi Lal has failed to prove any right, title or interest as a tenant or as a licensee over the said plot of land. 12. Having heard the learned counsels for the parties at length and given my thoughtful consideration to the entire evidence on record and case-laws cited at the Bar, this Court is of the considered opinion that the claim of plaintiff – appellant Banshi Lal in CSA No.381/2005 and defendant – appellant in CFA No.307/2010 is based on ill-founded foundation. There is no semblance of evidence on the record to show that he is in possession of suit land since the year 1985. Even if his plaint averment was to be accepted, there is no authority of law with him to show that he was in legal possession of the said plot of land measuring 60 x 90 ft. since the year 1985. How he entered the said land is never explained by him, as if illegal possession is to be approved with sheer lapse of time by courts of law. There is no proper allotment in his favour by the UIT nor surprisingly any rent receipt is produced by him. The explanation given by Mr. M.L. Chhangani to this is that since he was of same community as transferee Sohan Lal was and he had good relations with original allottee Mohd. Rafiq also, no formal written document in the form of rent note was executed, but he produced the witness P.W.4 Jena Ram, his own brother and his servant P.W.3 Mukesh who clearly stated that the rent was paid by Banshi Lal to Sohan Lal in their presence, which evidence without any proper reason was rejected by the courts below. This explanation of Mr. M.L. Chhangani is simply not tenable. The person who is living in his two storied building which is just opposite the road in the same locality cannot be believed to enter into open vacant land admittedly not belonging to him without any right whatsoever way back in the year 1985 and then claims that merely because some letters of political leaders, which are nothing but reply to his Diwali greetings were received by him at this address, therefore, his long possession should be believed brushing aside the case of short term licence given to him by the plaintiffs Sohan Lal and Gauri Shankar, true owners of the said plot of land under a registered sale-deed executed by the allottee from the UIT, Jodhpur Mohd. Rafiq vide Ex.A/4 dtd.28.3.1997. 13. Rafiq vide Ex.A/4 dtd.28.3.1997. 13. It is well settled that the documentary evidence will take precedence over the oral evidence in view of Section 92 of the Evidence Act. The oral evidence produced by Banshi Lal of his interested witnesses like P.W.4 Jena Ram his real brother and P.W.3 Mukesh, his own servant, who stated before the trial Court that they had seen him paying rent to Sohan Lal is not credit worthy at all. Such self-serving evidence can always be procured. It is strange that if he was in possession of the plot of land since 1985, whey he suddenly started paying rent to Mohd. Rafiq in the year 2001 without obtaining any rent receipt and copy of allotment letter by UIT in favour of Mohd. Rafiq, without any rent receipt or rent note agreement. If he can claim payment of rent to Mohd. Rafiq and later on Sohan Lal on flimsy ground of his being in good relations with them and therefore, not entering anything in writing, is hardly a version to be believed and therefore, the Courts below cannot be held in error in rejecting this submission. If the case of the plaintiff Banshi Lal was to be believed, one does not understand how and why he did not challenge the findings of the trial Court in judgment dtd.27.10.2004 on issue No.2 against him not finding any relationship of landlord and tenant in suit no.7/2002 filed by him. The learned counsel for the respondents Mr. O.P. Boob and Mr. Rajesh Joshi, therefore were right in contending that even if in second appeal, the appellate Court decision dtd.21.3.2005 was to be set aside, though it did not deserve to be so done, those findings on issue No.2 of the learned trial Court have become final against the plaintiff Banshi Lal in absence of any further appeal filed by him and in view of those findings, finding no relationship of landlord and tenant, the case set up by the plaintiff in subsequent suit filed by the plaintiff Sohan Lal, namely, Suit No.146/2006 in which the Courts in earlier round of litigation had so held that the defendant Banshi Lal was merely a licensee and upon revocation of the licence, he was in possession of said plot of land as trespassers, deserves to be believed and upheld. 14. 14. The right of property of the true owners who genuinely acquire such title from the Government body like UIT,Jodhpur for consideration cannot be lightly brushed aside on the kinds of pleas raised by the learned counsel for the appellant Mr. M.L. Chhangani. Such valuable property rights acquired upon payment of consideration under registered document viz. sale deed have to be respected and enforced and therefore, the contentions of the learned counsel for the appellant, Mr. M.L. Chhangani that suit filed by plaintiff Sohan Lal is merely for mandatory injunction and not for possession, the court fee on the basis of market value of property, which is very high, having not been paid and therefore, the said subsequent suit being not maintainable, licence deed not having been produced and whether such licence was revocable or irrevocable, cannot be accepted. This Court is satisfied that there is no documentary evidence in support of claim of plaintiff Banshi Lal to retain possession of the suit land in question as against which the plaintiff Sohan Lal and Banshi Lal have their duly registered title through Mohd. Rafiq, who was original allottee of the said plot of land. Accordingly, the question framed by this Court on 15.11.2006 is answered in against the plaintiff Banshi Lal and in favour of defendants – Sohan Lal and Gauri Shankar. 15. Now, reference may be made to case laws relied upon by the learned counsel for the appellant Mr. M.L. Chhangani, but it may be submitted here that without any dispute on the proposition of law laid down in these case laws, these judgments cited at Bar by the learned counsel for the appellant Mr. M.L. Chhangani are of little avail to him as evidence on record in the present appeals before this Court, there is absolutely nothing to support the case of the appellant Banshi Lal. Therefore, these case-laws are found to be clearly distinguishable from the facts of the present case and this Court is of the considered opinion that the appellant Banshi Lal cannot succeed on the strength of proposition of law laid down in these judgments. The learned counsel for the appellant Banshi Lal relied upon the following judgments: (1) Hardeep Kaur vs. Malkiat Kaur - (2012) 4 SCC 344 = 2012(3) RLW 2228 (SC) (2) Phool Pata vs. Vishwanath Singh and ors. The learned counsel for the appellant Banshi Lal relied upon the following judgments: (1) Hardeep Kaur vs. Malkiat Kaur - (2012) 4 SCC 344 = 2012(3) RLW 2228 (SC) (2) Phool Pata vs. Vishwanath Singh and ors. -2005(3) Civil Court Cases 210 (SC) (3) State of H.P. vs. Anant Ram- 2011 AIR CC 304 (H.P) (4) Sonubai Yeshwant Jadhav vs. Bala Govinda Yadav, AIR 1983 Bombay 156. The aforesaid judgments cited above relate to the proposition that at the time of hearing of second appeal, it is open to the High Court to reformulate substantial question of law or formulate fresh question of law or hold that no substantial question of law was involved. There is no quarrel on the aforesaid proposition but as already held, the substantial question of law already framed on 15.11.2006 has been answered against Banshi Lal and this court finds that no other substantial question of law arises in the present matter, therefore, these judgments are of no avail to the appellant Banshi Lal. 16. The learned counsel for the appellant Mr. M.L.Chhangani has also relied upon the following judgments : 1. Mohd. Saiyad vs. LRs. of Dr. Abdul Latif – 2011(1) CDR 309 (Raj.) 2. Mohd. Ashrar Ahmed Shareef Vs.State of A.P. - 2009 (83) AIC 595 (A.P. H.C.) 3. Rame Gowda vs. M. Varadappa Naidu – (2004)1 SCC 769 4. Municipal Committee vs. Punjab State Electricity Board – (2010)13 SCC 216 5. State Bank of India and anr. vs. M/s Emmsons International Ltd. - 2011 AIR SCW 4810 = 2012(1) RLW 93 (SC) 6. Smt. Patu vs. LRs. of Dau Lal - 1997(3) RLW 207 7. Rajmal Jain vs. Smt. Bhanwari Devi & Ors., 2012 WLC (Raj.) UC 271 8. M/s Permanand Gulab Chand vs. Moooligi Visanji – AIR 1990 Kerala 190. 9. Kidar Nath vs. Swami Parshad and ors. - AIR 1978 Punjab and Haryana 204 10. Ajab Singh vs. Shital Puri – AIR 1993 Allahabad 138 18/26 11. Swaran Singh vs. Lakhi Prasad Musaddi - AIR1983 Allahabad 322 12. Smt. Rajeshwari vs. Balchand Jain – AIR 2001 Madhya Pradesh 179 13. Habeeb Khan vs. Valasula Devi & Ors., AIR 1997 Andhra Pradesh 53 14. Kundan vs. State – 1959 RLW 35 15. Smt. Manorama Srivastava vs. Smt. Saroj Srivastava – AIR 1989 Allahabad 17 16. Bijay Kumar Banerjee vs. Smt. Malati Banarjee, AIR 2007 Orissa 155 17. Smt. Rajeshwari vs. Balchand Jain – AIR 2001 Madhya Pradesh 179 13. Habeeb Khan vs. Valasula Devi & Ors., AIR 1997 Andhra Pradesh 53 14. Kundan vs. State – 1959 RLW 35 15. Smt. Manorama Srivastava vs. Smt. Saroj Srivastava – AIR 1989 Allahabad 17 16. Bijay Kumar Banerjee vs. Smt. Malati Banarjee, AIR 2007 Orissa 155 17. Official Assignee vs. Subhkaran – AIR 1974 Rajasthan 49 = 1973 RLW 370. 18. Madhusudan Das vs. Smt. Naranibai – (1983)1 SCC 35 . 19. Ishwar Lal vs. Ashok and anr. - 1998 DNJ (Raj.) 236 = RLW 1999(1) Raj. 185 17. In the connected first appeal, the learned counsel for the appellant Mr. M.L. Chhangani relied upon the following judgments : i) M/s Birla Cement Works vs. State of Rajasthan – AIR 2000 Raj. 251 = RLW 2000(2) Raj. 1152. ii) Dr. Shehla Burney vs. Syed Ali Mossa Raza – 2011 AIR CC 1839 (SC) iii) Abdul Latif vs. Mahadeo Lal – AIR 1976 Patna 229. iv)Arun Khanna andanr. vs. Rajeev Gupta - 2007 (1) Civil Court Cases 639 (Delhi) (DB) v) His Highness Digya Darshan Rajendra Ram Doss vs. Devendra Doss – AIR 1973 SC 268 vi) Puran Mal Modi vs. Rajasthan Investors Pvt. Ltd. 2005(2) CCC 566 (Rajasthan). vii) Shyam Lal vs. Sohan Lal, AIR 1979 Rajasthan 205 = 1979 RLW 240. 18. In the case of Mohd. Saiyad vs. LRs. of Dr. Abdul Latif reported in 2011(1) CDR 309 (Raj.), a coordinate Bench of this Court held that when the settled and proved possession over the immovable property is established, the person cannot be dispossessed without due process of law. In the present case, due process of law was only taken by filing subsequent suit by the owners of the property, namely, Sohan Lal and Gauri Shankar and therefore, this judgment helps the plaintiffs – respondents rather than the defendant – appellant. 19. In the case of Mohd. Ashrar Ahmed Shareef vs. State of A.P. - 2009(83) AIC 595-19, the learned Single Judge of Andhra Pradesh High Court laid down that when the possession is not disputed by the respondent, the possession of person on the strength of certain documents, civil Court cannot deny the relief of permanent injunction to the plaintiff who proves his possession over the suit property. This judgment is also of little avail to the defendant – appellant Banshi Lal since in the present case, his possession is not proved as no evidence except the cover of letters received by him at this address and oral statement of interested witnesses like his own brother and servant has been produced before the Court and therefore, such claim against the true owners under a registered sale-deed cannot be accepted. He himself lives just opposite the road, opposite to the plot in question and photographs produced before the Court shows that he carries on the business in the name of “Acharya Building Material” there, so receipt of letters cannot be identified with the empty plot of land only. 20. The learned counsel for the appellant Mr. M.L. Chhangani also relied upon the decision of Hon'ble Supreme Court in the case of Rame Gowda vs. M. Varadappa Naidu – 2004(1) SCC 769 in which the Hon'ble Supreme Court held that settled possession gives right to possession which can be recovered even by the rightful owner only by adopting due process of law. This judgment is also of help to the respondents – owners of the suit property, who have adopted the due process of law in the present case by filing subsequent suit No.146/2007, which has been decreed on 3.8.2010. 21. The learned counsel for the appellant Mr.M.L.Chhangani also relied upon the judgment in the case of Municipal committee vs. Punjab State Electricity Board – (2010) 13 SCC 16 – Head Note “C”, in which it has been held that under Section 103(3) of the C.P.C. the High Court has power to determine the issues on facts also and gets jurisdiction to invoke Section 103 when core issue involved in a case is decided neither by trial Court nor by lower appellate Court but evidence is available on record to enable High Court to determine such issue. Such being not the facts available in the present case, the said judgment is of no help to the defendant – appellant Banshi Lal. 22. The ratio of decision in the case of State Bank of India vs. M/s Emmsons International Ltd. and anr. Such being not the facts available in the present case, the said judgment is of no help to the defendant – appellant Banshi Lal. 22. The ratio of decision in the case of State Bank of India vs. M/s Emmsons International Ltd. and anr. - 2011 AIR SCW 4810 is that the first appellate Court when it reverses the judgment of trial Court, it is required to consider all issues of law and facts and when it is not so done, the judgment is liable to be set aside. It is well settled legal proposition, but here the lower appellate Court as well as this Court have considered the entire evidence on record and have concurrently found against the defendant – appellant Banshi Lal that he does not have right, title or interest over the suit land and being merely a trespasser and encroachee, under the due process of law adopted by the original owners Sohan Lal and Gauri Shankar, he deserves to be dispossessed from the suit land. 23. The learned counsel for the appellant Mr. M.L. Chhangani also relied upon the judgment in the case of Rajmal Jain vs. Smt. Bhanwari Devi – 2012 WLC (Raj.) UC 271 for the purpose of his seeking to assail finding against him by the trial Court that there was no relationship of landlord and tenant between Banshi Lal and Sohan Lal. In the case of Rajmal Jain (supra) a coordinate Bench of this Court held that the respondent even without filing cross objection can state that finding in respect of particular issue ought to have been recorded in his favour. This judgment is of little help to the defendant Banshi Lal since no evidence worth the name except as discussed and negatived above has been placed on record. Surprisingly no rent receipt or rent note has been produced by him and therefore, his claim of payment of rent to Mohd. Rafiq and then to Sohan Lal are not credit worthy at all. 24. Citation in the case of M/s Peramanand Gulabchand and Co. vs. Mooligi Visanji – AIR 1990 Kerala 190 relied upon by the learned counsel for the appellant Mr. Rafiq and then to Sohan Lal are not credit worthy at all. 24. Citation in the case of M/s Peramanand Gulabchand and Co. vs. Mooligi Visanji – AIR 1990 Kerala 190 relied upon by the learned counsel for the appellant Mr. M.L.Chhangani about difference between lease and licence with reference to Section 52 of the Easement Act, 1882 is also of little help because on the one hand while the defendant Banshi Lal has not produced any rent receipt or document showing his valid possession over the suit land in question on the other hand true owners of properrty, namely, Sohan Lal and Gauri Shankar have produced registered document in suport of their ownership of the suit property and the licence given by them to the defendant Banshi Lal stood revoked. Such revocation should be implied as soon as they started contesting the suit for injunction filed by Banshi Lal and also undertook due process of law by filing subsequent suit for mandatory injunction No.146/2007 in which decree was passed against defendant Banshi Lal on 3.8.2010. There is no case set up by the defendant Banshi Lal in the present case that any lease of fixed period was granted to him. 25. Similarly, the decision of Punjab and Haryana High Court in the case of Kidar Nath vs. Swami Parshad – AIR 1978 Punjab and Haryana 204 is not applicable to the facts of the present case where the exclusive possesison of the premises was given to the transferee and he was required to pay certain sum every month describing it as licence fee and machinery was installed by the transferee and the electric meter was also installed. Therefore, the Punjab and Haryana High Court held that transferee was a tenant as his interest had been created with exclusive possession and no circumstances to negative the intention to create lease were brought on record. Such facts are simply absent in the present case and therefore, the facts of the case of Kidar Nath (supra) are clearly distinguishable. 26. The other judgments cited by the learned counsel for the appellant Banshi Lal on question of interference in the second appeal are also of no help and such cases have already been discussed above. There is very narrow scope for this Court to interfere with the findings of facts in second appeal under Section 100 C.P.C. 27. 26. The other judgments cited by the learned counsel for the appellant Banshi Lal on question of interference in the second appeal are also of no help and such cases have already been discussed above. There is very narrow scope for this Court to interfere with the findings of facts in second appeal under Section 100 C.P.C. 27. The judgment relied upon by the learned counsel for the appellant Mr. M.L. Chhangani in the case of Abdul Latif vs. Mahadeo Lal – AIR 1976 Patna 229 that in the suit filed by the owners Sohan Lal and Gauri Shankar in the present case for injunction, the Court could not grant the decree for possession without payment of court fee on the basis of market value. This judgment is also of little avail to the defendant Banshi Lal as subsequent suit in the present case has been filed for mandatory injunction on prescribed court fee and such objection has been taken before the learned trial Court against the plaintiffs Sohan Lal and Gauri Shankar and rightly decided against Banshi Lal. The mandatory injunction in the nature it has been granted by the learned Court below, could very well be granted. Since second appeal of the defendant Banshi Lal is being dismissed by this Court by the present judgment itself, this objection of Mr. M.L. Chhangani has little force and the same is, therefore, rejected. 28. Mr.M.L. Chhangani has cited some other judgments also on the said issue, but this Court does not consider it necessary to multiply the authorities. On an over all appreciation of case laws submitted by him, this Court does not find any support from the same in favour of the appellant Banshi Lal and therefore, these judgments are of little help to the learned counsel for the appellant. 29. Consequently, both the appeals filed by the appellant Banshi Lal are found to be devoid of any merit and the same deserve to be dismissed with costs and substantial question of law framed in second appeal No.381/2005 is answered against the appellant Banshi lal and in favour of respondents Sohan Lal and Gauri Shankar. 30. 29. Consequently, both the appeals filed by the appellant Banshi Lal are found to be devoid of any merit and the same deserve to be dismissed with costs and substantial question of law framed in second appeal No.381/2005 is answered against the appellant Banshi lal and in favour of respondents Sohan Lal and Gauri Shankar. 30. Accordingly, both the appeals are dismissed with costs of Rs.10,000/- each and the appellant Banshi Lal is directed to hand over the vacant possession of the plot in question to the decree holder Sohan Lal and Gauri Shankar within three months from today and till then to pay mesne profit of Rs.5,000/- per month for use and occupation till the vacant possession is handed over. He will also file an undertaking before the learned trial Court that he will not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The appellant Banshi Lal shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit plot of land is not handed over or mesne profits are not paid to the respondents, besides execution of the decree dtd.3.8.2010 in connected suit No.146/2007 by executing court expeditiously, the respondents shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith.