NIRMAL YADAV,J. - (1.) THIS is plaintiff's regular second appeal directed against the judgment and decree dated 9.9.1985 passed by additional District Judge (I), Faridabad whereby the judgment and decree dated 30.4.1981 passed by Sub Judge Ist Class, Palwal decreeing the suit of the plaintiff for mandatory injunction, has been reversed and suit of the plaintiff has been dismissed being not maintainable. The defendant has also filed Cross-Objection No. 25-C of 2006 impugning the findings of the Ist Appellate Court whereby verdict of the trial Court on issues No. 1, 2, 7 and 10 has been affirmed. Hence, both RSA No. 3067 of 1985 and Cross-Objection No. 25-C of 2006 are being decided by this common judgment.
(2.) THE bone of contention between the parties is a three-storied house, as depicted in site-plan, Ex. P3. Appellants/Plaintiff's filed a suit for mandatory injunction with a direction to respondent/defendant to vacate and handover the possession of the suit property. According to plaintiffs they were owners in possession of the suit property. In the year 1971, defendant- Rameshwar Dayal Mangla alias Ramesh Chand, who is their first cousin, approached them to allow him to occupy the suit property as a licencee as he needed some accommodation. Out of love and affection, the plaintiffs allowed him to use the property as a licencee on the express condition that he would vacate and handover the vacant possession of the premises as and when required by them. The suit was resisted by the defendant stating that plaintiffs are not the owners in possession of the suit property. They have no locus standi to file the suit. The suit is not maintainable in the present form and it is not properly valued for the purposes of Court fee and jurisdiction. It was further stated that since the plaintiffs never remained in possession of the suit property for the last more than 21 years prior to filing of the suit, therefore, the defendant had become its owner by adverse possession. It was further stated that defendant is exclusive owner in possession of the suit property as it fell to his share in a family partition, which took place in the year 1971. On the basis of pleadings of the parties, the following issues were struck : "1. Whether the plaintiffs are the owner in possession of the property shown with letters A B C D on the ground floor and with letters H I J K on the first floor and letter L M N O on the second floor, as described in para No. 1 of the plaintiff ? OPP 2. Whether the aforesaid properties were given to the defendants/lessees ? If so, its effect ? OPP 3. Whether the plaintiff is entitled to ad interim injunction as prayed ? OPP 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the suit is valued properly for the purposes of court fees and jurisdiction ? OPP 6. Whether the suit is within time ? OPP 7. Whether the defendant has become the owner of the suit property by way of adverse possession ? OPD 8. Whether the suit is bad for non-joinder of necessary parties ? OPD 9. Whether the plaintiffs are estopped from filing this suit by their act and conduct ? OPD 10. Whether the defendant is the sole owner of the suit property by way of family partition, as alleged ? OPD 11. Relief". The trial Court after taking into consideration the evidence on record, decided issues No. 1, 7 and 10 in favour of the plaintiffs holding them to be the owners of the suit property. Issue No. 2 as to whether the properties were given to defendant/lessee was also decided in favour to the plaintiffs. Accordingly, the suit of the plaintiff was decreed by granting mandatory injunction in their favour and defendant/respondent was directed to handover the possession of the suit property to the plaintiffs.
(3.) ON appeal filed by the defendant, the Ist Appellate Court affirmed the findings of the trial Court on issues No. 1, 7 and 10 holding that the plaintiffs are owners of the suit property and defendant did not become owner by way alleged family partition. Learned Ist Appellate Court, however, reversed the findings of the trial Court on issues No. 2, 4 and 5 and thereby dismissed the suit being not maintainable as also not properly valued for the purposes of Courts fee and jurisdiction. Learned lower appellate Court observed that the evidence produced by the plaintiffs in support of their plea that property was given to the defendant as a licencee, is not reliable as there is no documentary evidence to support the alleged licence. It was further observed that there appears to be no legal obligation on the part of the defendant to perform any act and, therefore, the suit for mandatory injunction was not maintainable. It was further held that suit for mandatory injunction could not be filed without suing for possession of the suit property an, therefore, the suit was not maintainable in the present form.;