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PETITIONER: MAKHAN LAL

       Vs.

RESPONDENT: ASHARFI LAL & ORS.

DATE OF JUDGMENT:       25/03/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The respondent  Nos.1  and  2  had  filed  a  suit  for permanent injunction,  possession and  damages  against  the appellant and  the proforma  respondent No.3  on the premise that they  were licensees  in respect  of part  of the house belonging to  Baij Nath  and, therefore,  had no  manner  of right whalsoever to be in possession after the revocation of the  licence.   The  appellant  set  up  the  plea  that  he contributed half  of the  amount in  the construction of the house along  with Baij  Nath and  that he  has been residing therein ever  since. The  house also was got mutated in 1957 in the  joint name  of himself and Baij Nath and, therefore, the injunction  sought for  could not  be granted.  Both the trial court  as  well  as  the  first  appellate  court  had negatived the  case of  the respondents  and  dismissed  the suit. In  the second appeal, the learned single Judge of the High Court  framed two  questions for consideration, namely, whether  merely   by  contributing   some   amount   towards construction of  the disputed house, the appellant can claim half share in the house and whether the judgment of the  two courts below are the result of total mis-reading of evidence and of recording the finding while ignoring the oral as well as documentary  evidence on  record Judge, as if he were the First Appellate  Court has  gone into  the questions of fact and recorded  the finding  against the  appellant. Thus,  he reversed the  decree of  the trial  court and  the appellate Court.      It is  contended for the appellant, on the basis of the documentary evidence   adduce  in proof  of the mutation and his enjoyment  ever since  1957 during the life time of Baij Nath who  did not even object to his being in possession and enjoyment of the half share in the house that the view taken by the  High court  is not correct. He also pointed out that the finding of the High court that the material evidence was ignored by  the courts  below is not correct as the evidence has  been  appreciated  and  the  High  court  came  to  the conclusion that  the respondents  had not  established their case.      It is contended  for the respondents/plaintiffs, on the

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other hand,  that   the evidence of Ram Pyari, the mother of the parties  was not  properly considered.  She was the best person to  show how  the property  was enjoyed and the other evidence also  was not  properly considered. On the basis of surmises, the  trial Court  and the appellate Court had come to a  wrong  conclusion.  Therefore,  it  is  a  substantial mistake of law which the High court has rightly corrected.      Having  considered   the  respective  contentions,  the question that  arises for  consideration is whether the High Court is right in disturbing the concurrent findings of fact recorded by  the trial court and the appellate court ? It is not in  dispute that  material documents had been filled, as indicated in  the judgment  of  the  first  appellate  Court itself. It is also not also not in dispute that the mutation proceedings having  taken place during the life-time of Baij Nath of  the municipality  do indicate that the property was mutated in  the joint  names of Baij Nath and the appellant. During the  life time of Baij Nath no demur of the right  to residence and  continuance in half share of the property was controverted nor  ever that  the appellant  is the  son   of first husband  of Ram  Pyari and  the  respondents  are  the children born  to Baij Nath in the  second Marriage. In view of the  fact that  the parties are closely inter-related and having  lived  jointly  at  least  from  1957,  The  obvious inference that  they had  been inducted  into possession  by Baij Nath  even treating  them as  members of the family, is irresistible.  Under   these  circumstances,   the  suit  of injunction etc.  against them  is unsustainable  in law. The trial Court and the appreciated the same came to the finding of fact.  The said  findings cannot  be characterised  to be surmises; nor  can they be said to have ignored the material evidence. Under  these circumstances,  the  High  Court  was wrong in interfering with the concurrent findings.      The  appeal   is  according  accordingly  allowed.  The judgment of  the High Court stands set aside and that of the appellate Court  and the  trial Court  stands confirmed.  No costs.