Jayant Nath, J.:— The present Suit is filed by the plaintiff seeking the relief of mandatory injunction directing the defendants to remove themselves from suit property bearing Plot No. B-93, Rewari Line Industrial Area, Phase-I, Mayapuri, New Delhi. A decree for permanent injunction and mesne profits and damages is also sought.
2. The plaintiff submits in the Plaint that he is the absolute owner of the suit property. This was allotted to him vide perpetual lease deed executed by Delhi Development Authority on 20.09.1996 At the time of allotment the father of the plaintiff and plaintiff were carrying on business in the name and style of M/s. Rajko Sanitation. The said partnership was dissolved on 31.3.1968 and the assets of the said firm are stated to have been taken over by the plaintiff. It is hence stated that the plaintiff became the sole owner of the entire property measuring 2420 sq. yards. Out of this area, a portion measuring 1570 sq. yds was given to his son and son-in-law to start their business in the name of Defendant No. 3 company. Certain portion was given to the defendants for limited user without charging any rent and no deed was executed. The plaintiff was stated to be one of the Directors of defendant No. 3 company for some time and that recently the property was also converted from leasehold to freehold vide Conveyance Deed executed by DDA dated 7.5.2010 in favour of the plaintiff.
3. It is stated that the defendants tried to break open the locks of certain portions of the suit property because of which the plaintiff was constrained to file various police complaints in the month of February 2010. The defendants have also filed various complaints against the plaintiff. Hence, it is stated that the plaintiff vide legal notice dated 25.6.2011 terminated the license in favour of the defendants and called upon the defendants to remove themselves from the suit property within seven days of receipt of the legal notice. It is stated that the said legal notice was duly served upon defendants on 27.6.2011 No reply has been sent by the defendants to the said legal notice. Hence, the present Suit has been filed.
4. The defendants have filed a common Written Statement. Various technical objections have been raised in the written statement. It is firstly stated that the present plaint is filed seeking relief of mandatory injunction but is actually a suit for recovery of possession on which proper Court Fee on ad-valorem calculation should be paid. It is further stated that the plaintiff has asked for relief of removal of the defendants from the suit property but has not sought relief of possession and hence, the suit is barred under the Specific Relief Act, 1963. It is stated that the plaintiff has wrongly valued the Suit at Rs. 21 lacs and affixed Court Fee accordingly. It is submitted that the market value of the property in possession of the defendant would be around Rs. 14 crores and appropriate Court Fees on the said value has not been affixed by the plaintiff. The title of the plaintiff has also been denied by stating that the mutation was got done by the plaintiff by using forged documents. It is further stated that the conversion from leasehold to freehold is also based on forged and fabricated documents. Title is also claimed stating that at the time of marriage of defendants No. 1 and 2 the plaintiff had entered into an oral partition with his children being his son and defendant No. 2 whereby he gave the suit property to defendant No. 2 and assured her that necessary documentation/mutation will be done after all the ceremonies of the marriage are completed.
5. It may be mentioned that defendant No. 2 filed CS(OS) No. 376/2010 for partition of various properties impleading the plaintiff, her brother and mother as a defendant. CS(OS) 1838/2012 was also filed for various reliefs for the suit property. Both the above suits were disposed of by this Court vide Order dated 23.4.2013 The argument pertaining to the rights of defendants No. 1 and 2 in the suit property as claimed based on oral partition was rejected as being a bald plea without any documentation and contrary to law.
6. Based on the pleadings of the parties in the present suit, following issues were framed:—
(i) Whether on the pleadings in the plaint, a suit for mandatory injunction is maintainable? OPP
(ii) Whether the suit claim is within time? OPP
(iii) Whether the suit has been properly valued for the purpose of Court Fees and jurisdiction and if not, to what effect? OPD
(iv) Whether the plaintiff is entitled to mesne profits/damages for use and occupation and if so, at what rate? OPP
7. It was further directed that issues No. 1 to 3 do not require any evidence and would be heard first and in case the plaintiff is found to be entitled to a relief of mandatory injunction an enquiry into the mesne profits would be ordered.
8. I have heard learned counsel for the parties on the abovenoted three issues i.e, Issue Nos. (i) to (iii).
9. Learned counsel for the plaintiff has submitted that in view of the order dated 23.4.2013 there is no defence of the defendants to the present Suit. He submits that defendant was a licensee. The plaintiffs had terminated the license on 25.6.2011 and immediately thereafter on 1.8.2011 filed the present suit. He relies upon the following judgments
(i) Sant Lal Jain v. Avtar Singh, (1985) 2 SCC 332;
(ii) Joseph Severance v. Benny Mathew, (2005) 7 SCC 667;
(iii) Padmavati Mahajan…Plaintiff; v. Yogender Mahajan & Anr.…Defendants., 152 (2008) DLT 363 and;
to contend that where the term of a license has expired a suit for mandatory injunction would lie for directions to the licensee to move out from the suit property.
10. Regarding limitation he submits that as the license was terminated only in June 2011 and Suit was filed in August, 2011 the Suit is filed within limitation.
11. On the issue of valuation of the Suit he relies upon the judgment of this Court in Padmavati Mahajan…Plaintiff; v. Yogender Mahajan & Anr.…Defendants. (AIR 2008 SC 2011), to contend that the suit for permanent mandatory injunction can be valued by the plaintiff in his/her discretion subject to the said discretion not being whimsical. In that case it is stated that the suit is not required to be valued at the market value of the property.
12. On the other hand, learned counsel appearing for the defendant has relied upon the judgment of the Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy by LRs, (2008) 4 SCC 594 : AIR 2008 SC 2033, to contend that the plaintiff was obliged to file a suit for possession as there is a cloud on the title of the plaintiff to the suit property. It is stated that a partition suit is pending pertaining to the larger family. It is further stated that documents show that the plaintiff has forged documents to get the property allotted to him in his. name and also forged documents to get it converted into freehold. Hence, it is stressed that the plaintiff must seek relief of possession as there is a cloud on his title. On the issue of Court Fee, it is stated that in case it is held that the plaintiff is legally bound to file a suit for possession he will have to pay Court Fee based on the market value of the suit property. On the issue of limitation there has been no submissions made by the learned counsel for the defendants.
13. I would first decide the issue No. 1. the said issues reads as follows: “(i) Whether on the pleadings in the plaint, a suit for mandatory injunction is maintainable? OPP”
14. Reference may be had to the judgment of the Hon'ble Supreme Court in the case of Sant Lal Jain v. Avtar Singh (supra) where the Hon'ble Supreme Court approved the judgment of the High Court in the case of Milka Singh v. Diana, AIR 1964 J&K 99 and held as follows:—
“6. In Milkha Singh v. Diana, it has been observed that the principle once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence it terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed:
“After the termination of licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under s. 55 of the Specific Relief Act. We might further mention that even under English law a suit for injunction to evict a licensee has always been held to be maintainable.
…. where a licenser approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licensor causes huge delay the court may refuse the discretion to grant an injunction on the ground that the licenser had not been diligent and in that case the licenser will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act.”
“8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to property subsequently through some other person.”
The above judgment has been cited with approval by the Supreme Court in the case of Joseph Severance v. Benny Mathew (supra). The Hon'ble Supreme Court in the relevant portion of para 7 of the judgment held as under:
“…Strictly speaking the question is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. The correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the licence. Licensee may have to continue to be in occupation of the premises for some time to wind up the business, if any. In such a case licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the licence the licensor does not take prompt action to evict licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee's occupation does not become hostile possession or the possession of a trespasser the moment the licence comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises the suit will be maintainable.”
15. In Padmavati Mahajan…Plaintiff; v. Yogender Mahajan & Anr.…Defendants. (supra), this Court held as follows:—
“29. I may however note, two objections which were raised in the written statement but with regard to which no issues were framed. The first contention in the written statement is with regard to maintainability of the Suit for mandatory injunction and the second contention is with regard to the court fees. I have quoted in detail the cross examination of the defendant no. 1. In his cross examination he has admitted that he had shifted to the Property in question in his capacity as a son of his parents and then had. voluntarily stated that he was also a partner in the Partnership Firm. His claim as a benami owner has been rejected. Occupation of the defendant no. 1 therefore was a permissive occupation or maximum as that of a gratuitous licensee. The defendant no. 1 does not have any right in law to reside in the Property contrary to the wishes and desire of the plaintiff. The Suit for mandatory injunction is therefore maintainable in view of the decision of the Supreme Court in Joseph Serverence v. Benny Mathew reported in (2005) 7 SCC 667 and decision in Delhi Gate. Services Pvt. Ltd. v. Caltex (India) Ltd. reported in AIR 1962 P&H 370.”
This is also a case where the plaintiff had filed a suit for mandatory injunction against her son the defendant and her daughter-in-law. As the said son and daughter in law were held to be licensees, it was held by this Court that a suit for mandatory injunction was maintainable.
16. The legal position that follows is that where a suit is filed with promptitude against a licensee whose licence is terminated, a Suit for mandatory injunction is maintainable. In the present case there is no submission or argument raised that plaintiff did not file the suit with promptitude or that there was any delay in filing the suit. Admittedly, the license was terminated on 25 June, 2011 and the suit is filed in August 2011.
17. Even otherwise, it was held by the Supreme Court in the case of Sant Lal Jain v. Avtar Singh (supra), that even if there is some delay, to avoid multiplicity of proceedings the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense.
18. The plea of the learned counsel appearing for the defendants that the present suit for mandatory injunction is not maintainable as there is a cloud on the title of the plaintiff and the plaintiff was obliged to sue for declaration of title and possession is clearly without merit. The alleged cloud on the title of the plaintiff is said to be a suit for partition which is allegedly pending for the larger family and also the contention of the defendants that the plaintiff has forged documents to get allotment of this land and thereafter has further forged documents to persuade DDA to convert the property in to free hold property.
19. As far as the plea pertaining the alleged fraud committed by the plaintiff qua DDA, this argument was disposed of by this Court when disposing of the suit being CS(OS) 1838/2012 filed by the plaintiff which suit was disposed of on 23.04.2013 This Court hold that once the defendants herein are found not to have any right title or interest or share in the suit property, the defendants herein would have no locus to make a grievance with respect thereto. It was stated that if the plaintiff herein has committed any illegalities, it is open to the defendants herein as a citizen to complain with respect thereto and which complain is for the authorities to deal with. Hence, the said argument of the defendants has already been dealt with by this Court and has to be rejected.
20. Regarding, the other argument of the learned counsel for the defendants, namely, that some suit is pending for partition of a larger family, no details have been provided by the learned counsel for the defendant. The written statement also contains no details about any such pending litigation. The contention cannot be accepted.
21. Even otherwise, reference may be had to Section 116 of the Evidence Act, which reads as follows:
“116. Estoppel of tenant; and of licensee of person in possession.— No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”
22. This Court in the case of Association for Voluntary Action v. The Child Trust, CS(OS) 1025/2008 decided on 24th September, 2013 has already held that in terms of above provisions, defendant cannot be permitted to deny that the plaintiff had title to the possession at the time when licence was given.
23. Hence, I hold that on the pleadings in the plaint a suit for mandatory injunction is maintainable.
24. Now, I come to issue no. 2 which reads as follows:—
(ii) Whether the suit claim is within time? OPP
25. Learned counsel appearing for the plaintiff has pointed out that the present license was terminated on 25.6.20.11 and the suit was filed on 1.8.2011 There has been no argument raised to show that the suit was not within the period of limitation. Learned counsel appearing for the defendant has made no submissions on this issue. In view of the averments in the plaint it is obvious that the suit was filed within the period of limitation. I hold accordingly.
26. Now I will take up issue No. 3 which reads as follows:—
(iii)” Whether the suit has been properly valued for the purpose of Court Fees and jurisdiction and if not, to what effect?” OPD
27. The onus of this issue has been placed on the defendant. The only submission which has been raised by learned counsel appearing for the defendant is that once this Court holds that a suit for mandatory injunction does not lie then the Suit would be treated as a Suit for possession. In that eventuality, the plaintiff would be obliged to pay Court Fees on the market value of the suit property, which, according to the defendant is Rs. 14 crores.
28. The said contention of the learned counsel for the defendant is obviously futile inasmuch as I have already held that a Suit for mandatory injunction in the facts of the case would lie.
29. Further in any case this Court in the case of Padmavati Mahajan…Plaintiff; v. Yogender Mahajan & Anr.…Defendants. (supra) in paragraph 30 held as follows:—
“30. The second contention of the defendant no. 1 on valuation and payment of Court fee is also liable to be rejected. A suit for permanent and mandatory injunction can be valued by the plaintiff in his/her discretion subject to the discretion not being whimsical. Suit is not required to be valued at the market value of the Property.”
30. There is no argument stating that the plaintiff has not valued the suit for mandatory injunction in any whimsical manner. I hold that the plaintiff has properly valued the suit for the purposes of Court Fee and jurisdiction.
31. In view of the fact that the defendant is a licensee and the term of the licence has come to an end, the defendant have not right to continue in the suit property. This follows from the judgment of the Hon'ble Supreme Court quoted above in the case of Sant Lal Jain v. Avtar Singh, (supra). In view of the above, the plaintiff is entitled to a decree of mandatory injunction. Accordingly, I pass a decree in favour of the plaintiff and against the defendants for mandatory injunction directing the defendants, their agents etc. to remove themselves and their belongings from the suit property Plot No. B-93, Rewari Line Industrial Area, Phase-I, Mayapuri, New Delhi.
32. The only issue that survives for consideration now is regarding mesne profits. As per Order dated 23.4.2013 in case the plaintiff is found to be entitled to mandatory injunction enquiry into mesne profits would be ordered.
33. For appropriate orders regarding enquiry into the mesne profits, list before Court on 07th November, 2013.
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