Delhi High Court
Jai Lal vs Brijender Lal on 18 October, 2010
Author: Indermeet Kaur
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 18.10.2010
+ R.S.A.No.01/2001 & C.M.Appl.3/2001
JAI LAL ...........Appellant
Through: None.
Versus
BRIJENDER LAL ..........Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.(Oral)
1. None has appeared for the appellant. Matter is on board and has
been called. None had appeared for the appellant on the last date i.e. on
4.10.2010 as well. On 9.9.2009 the appellant had put in appearance
through counsel.
2. This is a dispute between a sister and a brother. The suit had been
filed by Brijendra Lal, brother of the defendant Smt.Jai Vij. Both were
the children of Late Banarsi Lal Handa who had died on 21.1.1988. A
Will had been executed by Banarsi Lal Handa dated 11.4.1986
whereupon he had bequeathed the first floor of property no.F-7/8, Model
Town, Delhi to the plaintiff; defendant along with her family had been
permitted to stay by late Banarsi Lal in the first floor of the property only
as a licensee. On 26.7.1988 the plaintiff had requested his defendant
sister to vacate the suit property but to no avail. Suit was filed by the
plaintiff. The trial judge had dismissed the suit of the plaintiff.
3. In the appeal vide impugned judgment dated 14.11.2000 the
findings of the trial judge were reversed; the suit of the plaintiff was
RSA No.01/2001 Page 1 of 2
decreed; the defendant was asked to vacate and deliver peaceful
possession of the suit property to the plaintiff.
4. This is the second appeal. After its admission on 19.12.2005, the
following substantial questions of law were formulated which inter alia
read as follows:
(a) Whether in a suit of mandatory injunction the civil court
can direct the restoration of the possession to the
petitioner and that too without payment of court fees in
terms of Section 5 of the Court Fees Act, 1870?
(b) Whether a suit for mandatory injunction is maintainable
for seeking possession when there is an alternative
efficacious remedy available in terms of Section 41 of
Specific Relief Act by filing a suit for possession?
c) Whether in case where the entire claim of the petitioner
is based on WILL which is a document attesting
witnesses and the said document can be said to be
proved without examination of either of the attesting
witnesses as required by law under Section 68 of the
Evidence Act, 1872?
(d) Whether in a WILL where one of the parties is given the
license to continue in the part of the premises which
licence is alleged to be revoked or comes to an end on
happening on certain contingency, can be said to have
come to an end without existence of such a contingency
or not?
(e) Whether the intention of the testator is to be seen after
reading the document as a whole or whether one
paragraph of the WILL is to be taken out of its context
and is to be made as a basis of the adjudication of the
dispute between the parties?
5. The intention of the testator Late Banarsi Lal had been gone into in
an in-depth detail in the impugned judgment. Defendant was held to be a
mere licensee.
6. None has appeared before this court to assist it. The findings of
the two courts below call for no interference. Appeal as also the pending
application is dismissed on merit as also for non prosecution.
INDERMEET KAUR, J.
OCTOBER 18, 2010
rb
