Ram Piari vs Shakuntla Devi (deceased) through L.Rs.

Vinod K. Sharma, J.—By way of this regular second appeal plaintiff appellant has challenged the judgments and decrees passed by the learned Courts below dismissing the suit filed by the plaintiff appellant for mandatory injunction directing the defendant respondent to stop the user of the house in dispute.

The plaintiff brought a suit on the plea that she was owner in possession of the house in dispute and the defendant being of her close relation was allowed to live in the said house as a licencee.

It was the case of the plaintiff that the defendant was allowed the permissive use of the said house out of love and affection. While the control and management of the said house was retained by the plaintiff. It was also the case of the plaintiff that defendant was not to pay any licence fee but was to stop user as and when asked by the plaintiff appellant even orally.

The plaintiff claimed that that licence of the defendant was revoked by issuing a notice on 16.10.1996 and it was after the expiry of period of notice, that the present suit for mandatory injunction was filed.

The suit was contested by the defendant beside taking number of preliminary objections claimed that the plaintiff was not owner or in possession of the suit property. It was claimed that there were two ancestral houses in which the plaintiff had share through her late husband Prithvi Raj. It was also the case of the defendant that the plaintiff has failed to mention the property number, dimension or its area. She denied being in possession of the property as licencee. The defendant claimed that she was in exclusively possession of the property along with her son and nobody else was sharing the possession of the suit property. She claimed that she was occupying the suit property as co-owner.

The sale deed which was alleged to have been executed in favour of Prithvi Raj i.e. the husband of the plaintiff on 24.1.1960 by Mansa Devi, was also disputed. It was claimed that Mansa Devi had no right or title to execute the alleged sale deed as she was not absolute owner of the suit property.

The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact that the plaintiff has failed to prove that she was owner of the property in dispute. The plea of licence was also rejected. The Court accepted the plea of the defendant he had perfected his title by way of adverse possession.

The learned Counsel appearing on behalf of the appellant has challenged the findings of the learned Courts below in declaring the defendant to be owner of the property in dispute by way of adverse possession. The contention of the learned Counsel for the appellant was that possession of the defendant respondent was permissive and, therefore, she has no right to claim title by way of adverse possession.

The contention raised by the learned Counsel for the appellant has force as the defendant in the written statement claimed that the property was ancestral in the hands of the plaintiff. She claimed to be having share in the said property. Once title to the property was claimed it was not open to the defendant to claim ownership by way of adverse possession.

Once it was not disputed that the original owner of the property was Ram Chand and the plaintiff was widow of Prithvi Raj one of the son of Ram Chand. The defendant, therefore, was one of the co-owner by way of inheritance. The claim of Prithvi Raj that he has purchased the suit property from his mother i.e. widow of Ram Chand, therefore, could not pass a valid title as she was not absolute owner and merely one of the cosharer in the property. However, even if the finding of adverse possession are reversed then this appeal deserves to be dismissed as plaintiff appellant failed to prove that the defendant was licencee under her. Rather the evidence and the pleadings brought on record showed that the defendant respondent was one of the co-owner in possession of the property in dispute.

The learned Courts below rightly came to the conclusion that the plaintiff has failed to prove her ownership as even the original sale deed was not placed on record and the application moved by the plaintiff for secondary evidence was also dismissed.

In view of what has been stated above, the sale claimed to be in favour of Prithi Raj son of the plaintiff could not give any absolute right in the property to claim mandatory injunction. The learned Courts below therefore, were right in dismissing the suit for mandatory injunction filed by the plaintiff against the defendant, who also had right of inheritance and was occupying the property in her own right.

No ground is made out to interfere with the concurrent findings of fact recorded by the learned Courts below in this regular second appeal. The appeal does not raises any substantial question of law for consideration in this Court.

Accordingly this appeal is dismissed in limine.