Ravinder Tyagi vs Anand Swaroop Tyagi & Ors
2011 Latest Caselaw 338 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 20.01.2011

+                       RSA No.246/2004

RAVINDER TYAGI                                ...........Appellant
                        Through: Mr. S.K. Tyagi, Advocate.

                  Versus

ANAND SWAROOP TYAGI & ORS           ..........Respondent
                 Through: Mr.Vikram Nandrajog, Adv.


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)

This appeal has been directed against the judgment and

decree dated 18.09.2004 which had reversed the findings of the

trial Judge dated 25.03.1992. In the judgment and decree dated

25.03.1992, the suit filed by the plaintiff Anand Swaroop Tyagi

seeking mandatory injunction to the effect that the defendants

(who are brothers of the plaintiff) be directed to remove their

belongings and leave the premises in dispute (bearing No. S-433,

Greater Kailash-I, New Delhi) had been dismissed. Vide the

impugned judgment, the suit of the plaintiff stood decreed.

The plaintiff had filed a suit for mandatory injunction. He had

claimed himself to be the sole and exclusive owner of the

aforenoted suit property. He had a registered sale deed dated

25.08.1964 in his favour. He had constructed the said residential

premises from his own earning. Defendants No. 1 to 3 who are the

real brothers of the plaintiff had been given permission to occupy

one room on the first floor of the premises as licencee. The plaintiff

had control over the remaining portion of the premises. Even after

marriage, defendants No. 2 & 3 i.e Ravinder Tyagi and Vijender

Tyagi were continuing to occupy the suit property. All the three

defendant brothers had a common mess. The defendants being

licencees were directed to vacate the suit property in terms of the

legal notice dated 04.07.1984 and thereafter a subsequent notice

dated 03.08.84. They, however, failed to adhere to the said

request. Suit was accordingly filed.

In the written statement, the defendants have disputed the

claim of the plaintiff. It was stated that the suit in the present form

is not maintainable; the premises in dispute have been constructed

by their late father Shri Shivcharan Tyagi from his funds; being the

eldest son, the property was purchased in his name; it is benami.

On the pleadings of the parties, following nine issues were

framed:-

1 Whether the suit is maintainable as framed? OPP.

2 Whether the suit is bad for non-joinder of necessary party? OPD

3 Whether the plaintiff is owner of the suit premises?

OPP.

4 Whether the father of parties is the owner of the suit premises? OPD

5 Whether the defendants are licencees of the plaintiff? If so, whether the licence has been validly terminated by the plaintiff? OPP

6 Whether the defendant No. 3 is tenant in a room on the first floor? OPD

7 Whether the suit is correctly valued for the purposes of court fee and jurisdiction? If not so its effect? OPP

8 Whether the suit for mandatory injunction is maintainable? OPP

9 Relief.

On the basis of oral and documentary evidence led before the

court, all the issues were decided in favour of the plaintiff. It was

held that the suit was maintainable in the present form. It was

admitted that the plaintiff is the registered owner of the suit

property. However, the relief was not granted to the plaintiff on

the ground that the defendants being the brothers of the plaintiff

were living in the suit property since 1966; over the years they had

got married and had their own families; it would be unfair to evict

them at this stage and disturb their married life. It was largely on

this premise that the relief was not granted to the plaintiff. The

trial court had also recorded that there is a huge delay on the part

of the plaintiff in seeking this relief of mandatory injunction. Suit

was accordingly dismissed.

In appeal, the judgment of the trail Judge was reversed. Suit

of the plaintiff was decreed.

This is a second appeal. It is yet at the admission stage. On

behalf of the appellant it has been urged that a substantial

question of law has arisen in as much as the suit in the present

form is not maintainable; the relief that the plaintiff is seeking is a

relief of possession; it has been couched as a suit for mandatory

injunction; it could not have been maintainable in the present form.

This has raised a substantial question of law. Learned counsel for

the appellant has placed reliance upon the judgment reported in

1998 IV AD (Delhi) 917 titled Ashok Chaudhary Vs. Dr. (Mrs.)

Inderjit Sandhu & another; AIR 1963 PATNA 308 titled Jagdish

Chandra Ghose and Others Vs. Basant Kumar Bose & another as

also a third judgment of the Bench of Calcutta High Court reported

in AIR 1961 Calcutta 229 titled Sisir Kumar Dutta & others Vs.

Susil Kumar Dutta to support his submission.

Arguments have been countered.

Issue No. 1 has been specifically framed about the

maintainability of the suit. Arguments had been addressed before

the two courts below and both the courts had returned a positive

finding that suit in the present form is maintainable. The body of

the plaint has been perused. It has been titled as a suit for

mandatory injunction. The plaintiff has claimed himself to be the

absolute owner of the suit property. The defendants who were

brothers were permitted to occupy the suit property; they were

using the said property since 1966; the status of the defendants is

always that of a licencee; vide notices dated 04.07.1984 and a

subsequent notice dated 03.08.1984, the license of the defendants

was validly terminated. The prayer was that a decree of mandatory

injunction be passed directing the defendants to remove their

belongings and to leave the premises in dispute.

There is no bar for maintainability of such a suit. Section 9 of

the Code of Civil Procedure permits the Civil Court to try all such

suits except those suits of which cognizance is either expressly or

impliedly barred. The judgments relied upon by the counsel for the

appellant do not come to his aid; they all relate to the valuation of

the suit for the purpose of Court fee and the amount to be affixed

on such a plaint. Court fee is not in issue before this Court. In this

context, in the judgment of Ashok Chaudhary (Supra), it was held

that the relief of recovery of possession was not the consequential

relief to the relief of mandatory injunction and the court fees had to

be affixed under Section 7 (v)(e) of the Court Fees Act, 1870. The

prayer clause as aforenoted in the instant case has primarily

sought the defendants to remove their belongings from the suit

premises and to leave the said premises. Mandatory injunction was

the principal relief. The judgments aforenoted would not apply in

this case.

Admittedly the plaintiff is the registered legal owner of the

suit property. The title of the plaintiff/respondent is not in dispute.

The respondent has categorically stated that the disputed premises

has since been left by the appellants voluntarily; in fact the

respondent did not have to resort to execution proceedings. He had

filed written reply to the said effect. Appellants namely Ravinder

Tyagi and Vijender Tyagi are present in Court today. On a specific

query put to them, Ravinder Tyagi has stated that he has shifted

with his family to his house at Rohini; Vijender Tyagi has stated

that he has shifted with his family to his house at Vasundra

Enclave. The third brother Mr. Virender Tyagi is missing.

Admittedly the suit property is not in occupation of any of the

appellants. It is pointed out by the learned counsel for the

appellants that the present exercise has even of course become an

academic exercise as the suit property admittedly stands vacated.

That apart this court while dealing with a second appeal will

admit second appeal for hearing only if a substantial question of

law arises and on no other count. Substantial questions of law have

been mentioned in the body of the appeal at page 4; they read as

under:-

A Whether a suit for mandatory injunction is maintainable for recovery of possession of the suit property?

B Whether in a suit for possession amount of court fees liable to be paid is according to the value of the premises or not?

C Whether the relief of recovery of possession of suit premises is a surplusage in a suit for mandatory injunction or it is a substantive relief?

D Whether the person (s) who are not the party in the suit and are living in the suit premises in their own rights can be directed to leave the suit premises?.

No such substantial question of law has arisen either from

the pleadings or in terms of the oral arguments addressed before

this Court.

This appeal is dismissed in limine.

CM No. 12260/2007 (under Order 5 Rule 20 CPC)

This application has become infructuous in terms of order

dated 17.01.2008.

CM No.15967/2004 (for stay) In view of the order passed in main appeal, this application

has also become infructuous.

INDERMEET KAUR, J.

JANUARY 20, 2011 A