Jai Lal vs Brijender Lal

Indermeet Kaur, J.—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.

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.

In the appeal vide impugned judgment dated 14.11.2000 the findings of the trial judge were reversed; the suit of the plaintiff was decreed; the defendant was asked to vacate and deliver peaceful possession of the suit property to the plaintiff.

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 u/s 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?

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.

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.