Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: November 26, 2014 + RSA3602014 & C.M. Nos.19463-64-65/2014 DR MANOJ KUMAR VIMAL & ANR. ..... Appellants Through: Mr. S.P. Kalra, Senior Advocate with Mr. Baldev Singh, Advocate versus MUKHTYARI DEVI & ANR. ..... Respondents Through: Mr. Krishan Kumar, Advocate CORAM: HON'BLE MR. JUSTICE SUNIL GAUR JUDGMENT
(ORAL) % Caveat No.1046/2014 Respondents are represented through counsel. Caveat stands discharged. C.M. No.19464/2014 Allowed subject to all just exceptions. RSA3602014 & C.M. Nos.19463/2014 (for stay) & C.M. No.19465/2014 (for directions) Appellants are the son and daughter-in-law of respondents and are stated to be mere licensee in the suit property, whose absolute owners are respondents. Whether the suit for mandatory injunction would lie to compel appellants to vacate the suit property or a regular suit for possession has to be filed after paying the court fee at the market value of RSA NO.360/2014 Page 1 the property?. Trial court has answered this question while relying upon a decision in Harish Chand & anr. Vs. Rameshwar Dyal Mangla @ Ramesh Chand 2008 (2) RCR103 The factual narration of this case finds mention in the impugned judgment and needs no reiteration. Suffice it would be note that at trial only two issues were framed i.e. whether respondents-plaintiffs are entitled to mandatory injunction and the other issue was whether respondents-plaintiffs are entitled to permanent injunction?. At the hearing, learned senior counsel for appellants contended that mere suit for mandatory injunction would not lie and suit to evict appellants from the suit property is to be filed. However, on merits it is submitted that appellants are not the licensee but are in legal possession of the suit property, which is ancestral and as per the family settlement, appellants are residing on the ground floor of the suit property. It was vehemently contended by learned senior counsel for appellants that no opportunity was given to appellants to lead their evidence on the issue of ownership of the property and trial court ought to have framed an issue regarding the suit property being ancestral. It was contended on behalf of appellants that suit for possession in the garb of an injunction suit is not maintainable, as the requisite court fee for obtaining possession of the suit premises has not been paid. Thus, setting aside of the judgments of the courts below is sought. Upon hearing and on perusal of the impugned judgment, trial court judgment and the material on record, I find that due to non-payment of cost, right of appellants-defendants to cross-examine respondentsplaintiffs and their witnesses was closed and their defence was struck off. RSA NO.360/2014 Page 2 It is a matter of record that the order vide which defence of appellantsdefendants was struck off has not been challenged by appellants and has attained finality. No issue of ownership of the suit property was claimed by the appellants. However, trial court on the basis of evidence on record has rightly concluded that respondents are the absolute owners of the suit property. The status of appellants in the suit property is that of a licensee and the license stood terminated vide Notice (EX. PW-1/5-9). The question regarding maintainability of suit for mandatory injunction stands answered by the trial court while relying upon decision in Harish Chand (Supra). No decision to the contrary has been cited before this Court. A party who sleeps over its rights, loses it. Appellants had remained contented while their defence was struck off and so, in view of the unrebutted evidence on record, the suit of respondents stands decreed and is affirmed by the First Appellate Court. The concurrent findings of the courts below do not suffer from any perversity. No substantial question of law arises in this second appeal. Consequentially, this appeal and applications are dismissed with no order as to costs. (SUNIL GAUR) JUDGE NOVEMBER26 2014 r RSA NO.360/2014 Page 3