N. G. NANDI ( 1 ) IN a suit alleging the defendant No. 1 - the son to be the licensee of the ground floor portion of immovable property bearing No. 63, Uday Park (formerly known as Masjid Moth extension), New Delhi, the mother - plaintiff for a decree of possession of the suit immovable property and also decree of mandatory injunction restraining the defendants, their assignees or servants from coming to the portion of the suit premises and for a decree of permanent injunction restraining the defendants from coming to the suit property shown in blue in the site plan or in other portion of the said property, the plaintiff by this IA under Order 39 Rules 1 and 2 Code of Civil Procedure seeks to restrain the defendants from entering the portion of the suit property delineated in blue or to any other portion of the suit property except the portion mentioned in red in the site plan annexed with the plaint and also seeks to restrain the defendants the defendants from disturbing, intimidating, harassing or creating obstruction in the peaceful possession and enjoyment of the suit property by the plaintiff In other words, the plaintiff by this application prays for a temporary injunction requiring the defendant to leave the suit property and hand over the physical possession of the suit property. ( 2 ) THE say of the plaintiff is that the plaintiff is the exclusive. owner of the property bearing no. 63, Uday Park, New Delhi (formerly known as Masjid Moth Extension); that the suit property was purchased by the plaintiff from the Government of India on payment of consideration out of her own funds; that the said property was allotted to the plaintiff by government of India on the demise of her youngest son Lt. Devinder Kumar Sharma (Indian navy) who was a bachelor during the 1971 Indo-Pak war when the INS Khukri was sunk; that the conversion charges for getting the suit property converted from leasehold to freehold have been paid by the plaintiff; that defendant No. 1 is the eldest son of the plaintiff, defendant No. 2 is the wife and defendants 3 and 4 are the sons respectively of defendant no. 1; that the defendants are occupying the suit property as trespassers and have no legal right in the said property; that during the period 1973-75, the plaintiff got the ground floor of the suit property constructed with her own funds with contribution from her husband Jai Dev sharma; that the plaintiff and her husband have been residing in the suit property since 1976; that her other son Sq. Ldr. Nirmal Kumar Sharma has also been living with his family in the suit property; that in 1988, defendant No. 1 retired and shifted to his house in Chandigarh; that in May/june 1990, the plaintiff allowed the, defendants to stay on the ground floor of the suit property as a temporary measure as defendant No. 1 waited to have a temporary shelter due totunrest in Punjab; that the stay of the defendants in the suit property was as a licensee and only on compassionate ground; that no use and occupation charges have been demanded or paid by defendants to the plaintiff as the defendant No. 1 as a son was allowed to use the premises as a licensee; that defendant No. 1 soon after shifting from Chandigarh started threatening the plaintiff and harassing her to transfer the property in his name; that defendants forcibly tried to occupy to the exclusion of the plaintiff two of the three bed-rooms and also cause harassment; that defendant No. 1 wants to fulfil his evil design of illegally taking over the suit property to oust the plaintiff. ( 3 ) THE say of the defendants No. 1 to 4 is that the defendant No. 1 is the son of the plaintiff and is a co-owner of property No. 63, Uday Park, New Delhi; that the present suit has been filed at the instance of defendant, No. 1 s brother namely Sh. Nirmal Kumar Sharma; that said sh. Nirmal Kumar Sharma has the intention to grab the said property; that the plaintiff has concealed material facts inasmuch as the notice dated 4. 6. 1998 by Sh. R. P. Sharma, advocate served by the plaintiff to defendant No. 1 has been suppressed; that the stand taken by the plaintiff in the notice dated 4. 6. Nirmal Kumar Sharma has the intention to grab the said property; that the plaintiff has concealed material facts inasmuch as the notice dated 4. 6. 1998 by Sh. R. P. Sharma, advocate served by the plaintiff to defendant No. 1 has been suppressed; that the stand taken by the plaintiff in the notice dated 4. 6. 1998 and the present suit are contradictory; that defendant No. 1 is the absolute owner of the ground floor portion and co-owner of the leasehold rights of the plot and co-owner in respect of the second floor and that the defendant No. 1 has valuable vested rights in the property; that the property No. 63, Uday park, New Delhi was allotted in the name of plaintiff on account of compassionate ground as the other brother of defendant No. 1 and son of plaintiff namely Lt. Devinder Kumar Sharma expired during 1971 Indo-Pak war; that the allotment of the suit property was made to the family and for all legal purposes the allotment of the suit property by Delhi Development authority in the name of the plaintiff is liable to be considered as allotment for the family; that property No. 63 when allotted was a open plot and thereafter the same was constructed by the common funds and the defendant No. 1 made substantial contribution towards the construction and even thereafter also has paid substantial amount to the plaintiff; that as defendant No. 1 was contributing substantially towards the suit property and by virtue of said contribution, defendant No. 1 has become the absolute owner in respect of the ground floor portion of the suit property and co-owner in respect of leasehold rights of the property; that the plaintiff could not have filed the present suit against the co-owner/defendant No. 1 as defendant No. 1 has contributed substantially towards the purchase of the plot as well as towards the construction thereon and by virtue of such family arrangement, defendant No. 1 has become the absolute owner in respect of the ground floor portion of the suit property and co-owner in respect of leasehold rights of the property; that the defendants have -been residing on the ground floor; that the plaintiff as well as Sh. Jai Dev Sharma, father of defendant No. 1, have been residing on the second floor and the second floor; that there is no barsati floor in the property in question; that defendant No. 1 is in possession of the ground floor portion as being the co-owner; that it is denied that the defendants have been creating any harassment and obstruction to the plaintiff; that it is denied that the defendants are occupying the suit property as trespassers; that it is also denied that they have no legal right in the suit property; that even the notice dated 4. 6. 1998 does not suggest the defendants occupying the suit property as the trespassers; that the property in question has been constructed in parts and initially in 1974-75, the ground floor portion was constructed and as defendant No. 1 was serving in the Indian Air Force and more or less was posted out of Delhi and after retirement in 1988, defendant No. 1 was to stay permanently in Delhi and at that stage, it was felt/realised that additional construction is required in the property in question and family decision was taken to add the first and second floor at the said property by contributing the funds for the said construction; that some loans were also raised from the financial institutions/banks in the name of the plaintiff and that amount has been taken as a contribution towards such construction for and on behalf of the plaintiff and father Sh. Jai dev Sharma and Sh. Nirmal Kumar Sharma and remainingcontribution was made by defendant No. 1 and the said amount has been paid in installments subsequently to the plaintiff; that it is denied that the defendants have been staying in the suit property as licensee and on compassionate grounds. By raising the counter claim, the defendants pray for a declaration that defendant No. 1 is the absolute owner of the ground floor portion of the property No. 63, Uday Park, New Delhi and co-owner of the second floor portion of the premises No. 63, Uday Park, New Delhi and co-owner of underneath plot of the said property in question and in the alternative decree for the recovery of Rs. 12 lakhs alleging the payment of Rs. 7 lakhs as averred in para 47 of the written statement-cum-counter claim. ( 4 ) IT is submitted by Mr. 12 lakhs alleging the payment of Rs. 7 lakhs as averred in para 47 of the written statement-cum-counter claim. ( 4 ) IT is submitted by Mr. Kapoor, learned senior counsel for the plaintiff that notice dated 4. 6. 1998 (page 63) is not sent by plaintiff s lawyer; that reply dated 1. 9. 1998 (page 38) to the plaintiff s notice is concocted and back-dated; that there is no evidence to show that defendant No. 1 made payment of Rs. 5,000. 00 per month; that defendant No. 1 did not contribute for the construction of the property and there is no prima facie evidence for the same; that defendant No. 1 being a son was accommodated in one room on the ground floor on compassionate grounds as the licensee; that property No. 63 (plot then) has been allotted to the plaintiff by-Delhi Development Authority because of the death of one of her sons who laid down his life for the nation in 1971 Indo-Pak war; that there is nothing; except the oral say of defendant No. 1; that no court fee has been paid on the counter claim by defendant No. 1; that the intention of the defendants is to delay as the trial takes long time and the plaintiff is an old lady aged about 85 years and her husband Sh. Jai Dev Sharma is aged 90 years; that the defendants are no more than the trespassers in the suit property; that there is no title in favour of defendant No. 1; that there is evidence of record to suggest that the title deed issued by Delhi Development Authority is in favour of the plaintiff and the money has been paid by the plaintiff and that the loan agreement is also executed by the plaintiff and the other son that defendant No. 1 s license is terminated and thereafter the defendants would be trespassers in the property. ( 5 ) IT is submitted by Mr. Girdhar Govind, learned counsel for defendants that property no. ( 5 ) IT is submitted by Mr. Girdhar Govind, learned counsel for defendants that property no. 63, Uday Park, New Delhi when allotted was an open plot of land given by Delhi development Authority; that at that time defendant No. 1 was in Air Force service; that the by Delhi Development Authority was to the family but in the name of the mother; that thereafter the construction has been put up by the family with major share therein by defendant No. 1; that the defendants have been staying on the ground floor, the plaintiff and the father of "defendant No. 1 have been staying oh the second floor whereas ie first floor is with Mr. Nirmal Kumar Sharma, brother of defendant No. 1; that defendant No. 1 is not in Illegal occupation of the ground floor but he has been paying Rs. 5,000. 00 per month by way of license fee as per plaintiff s own notice dated 4. 6. 1998; that in the said notice, the entire ground floor has been referred to; that defendant No. 1 has paid Rs. 5,000. 00 per month for 10 years amounting to Rs. 6 lakhs; that the stand taken in the notice dated 4. 6. 1998 and the present suit is contradictory; that in the plaint, giving of notice dated 4. 6. 1998 by the plaintiff through her Advocate Mr. R. P. Sharma is suppressed; that defendant No. 1 is a co-owner; that from 1993 onwards, the plaintiff has been staying on the second floor and Sh. 6. 1998 and the present suit is contradictory; that in the plaint, giving of notice dated 4. 6. 1998 by the plaintiff through her Advocate Mr. R. P. Sharma is suppressed; that defendant No. 1 is a co-owner; that from 1993 onwards, the plaintiff has been staying on the second floor and Sh. Nirmal kumar Sharma, the brother of defendant No. 1, wants to usurp the property by ousting the defendants from the property; that the defendants cannot be thrown out of the property at this stage; that trie defendants ownership/co-ownership right has to be decided at the trial; that the defendants have been staying in the suit property for the last 10 to 12 years and there can be no mandatory injunction dispossessing the defendants of the suit property at this stage; that the grant of mandatory injunction dispossessing the plaintiff at this stage would tantamount to decreeing the suit without trial; that even taking the plaintiff s say, at the best the grant of alleged license in favour of defendant No. 1 is for consideration; that defendant No. 1 contributed for the construction of the property on the open plot of land and the evidence be seen in totality; that there is no relief of possession claimed in this IA; that between father and son, there would be no question of giving and taking of receipt for the amount paid. ( 6 ) IT is not disputed that the plaintiff is the mother of defendant No. 1. It is also not disputed that property No. 63, Uday Park, New Delhi, when allotted in the name of the plaintiff, was an open piece of land and the subject plot of land was allotted by Delhi Development Authority as one of the sons of the plaintiff Lt. Devinder Kumar Sharma (Indian Navy) laid down. his life for the country in 1971 Indo-Pak war. It is also not in dispute that defendant No. 1 retired from air Force service and thereafter came to occupy the suit premises some time in 1990. It is not in dispute that since then defendant No. 1 and his family have been residing on the ground floor portion of property No. 63, Uday Park, New Delhi. What is disputed is the status and nature of defendants occupation in the suit premises. According to the plaintiff, the defendant no. It is not in dispute that since then defendant No. 1 and his family have been residing on the ground floor portion of property No. 63, Uday Park, New Delhi. What is disputed is the status and nature of defendants occupation in the suit premises. According to the plaintiff, the defendant no. 1 was brought in the suit premises on compassionate ground as a mere licensee whereas according to defendant No. 1, as far as ground floor is concerned, he is the exclusive owner and co-owner in the second floor and the co-owner in the leasehold rights in the plot on account of the alleged contributions made by him from time to time for the construction of the property pursuant to the alleged family arrangement. ( 7 ) IN the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden and Others, (1990) 2 supreme Court Cases page 117, "a land was purchased by the appellant s parents as joint owners and a double storied building was constructed thereon. By a registered deed of declaration, it was declared that the. appellant had an undivided share in the property as joint tenant and that the declarants had right to sever the joint tenancy at any time. After the death of the appellant s mother, by an agreement between the appellant and his father they agreed to hence forth hold the property as tenants-in-common instead of joint tenants, each having an equal undivided share therein so as to be able to dispose of his undivided share. Thereafter, the appellant s father transferred his undivided half share in the property in favour of his another son s on his attaining majority. Thus the appellant and his brother s came to hold an equal undivided one half share each as tenants-in-common in respect of the said property. s was living with his father and brother and it was only after the marriage of s that the two brothers occupied different portions of the house with separate mess. s died intestate leaving behind his widow respondent 1 and his two minor sons respondents 2 and 3 The respondents 1 to 3 sold their undivided half share in the property to respondent 4 and his wife. s died intestate leaving behind his widow respondent 1 and his two minor sons respondents 2 and 3 The respondents 1 to 3 sold their undivided half share in the property to respondent 4 and his wife. A clause in the agreement to sell provided that in case pending the completion of the sale any suit be filed by the appellant against the vendors and an injunction obtained restraining the vendors from selling the property, then the vendors shall have the option to keep the sale in abeyance or to cancel and rescind the agreement. The purchasers took possession of the property pursuant to the sale deed. Within two days of the. sale, the appellant filed a suit praying for a perpetual injunction restraining respondents 1 to 3 from parting with possession of the property and/or inducting any third party into it and also restraining the purchasers from entering into or taking possession and/or remaining in possession of the property from respondents 1 to 3. The appellant also prayed for grant of an ad interim injunction pending the suit. " In light of the above facts, while considering section 44 Second para of Transfer of Property Act 1982 and Order 39 Rules 1 and 2civil Procedure Code, the hon ble Supreme Court held "it is but just and necessary that a direction should go to the respondents to undo whatthey have done with knowledge of the appellant s rights to compel the purchaser or to deny joint possession". It has been further held that "the relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. " thus, it would be seen from the above that relief of interlocutory mandatory injunction can be granted to restore status-quo ante i. e. to compel the undoing of those acts which have been illegally done or the restoration of that what was wrongfully taken from the party complaining. In the instant case, the defendant No. 1 is in physicall occupation of the suit premises since 1990 and he has been enjoying the property in question with his family members. In the instant case, the defendant No. 1 is in physicall occupation of the suit premises since 1990 and he has been enjoying the property in question with his family members. There is no question of compelling the defendants to undo acts that have been illegally done or the restoration of that which was wrongfully taken from the plaintiff. ( 8 ) IN the case of Mrs. Vijay Srivastava Vs. M/s. Mirahul Enterprises, AIR 1988 Delhi page 140, it has been held by the learned Single Judge that "it cannot be said that no mandatory injunction can be granted by the court on an interlocutory application in any circumstances. There is no bar to the court s granting interlocutory relief in the mandatory form though in doing so, the court should act with greatest circumspection an such powers can be exercised only in rare and exceptional cases. Therefore, where on the evidence on record it was found that the plaintiff had paid more than 95% of the cost fixed in the agreement in respect of the flats and besides the aforesaid amount, the plaintiff had advanced the interest free loans so that the construction can be completed by the defendants and each one of them can get possession of the flat booked by them, it was held to be a fit case to issue mandatory injunction directing the defendants to hand over the possession of flats to plaintiffs without any delay. " It is further observed that "interim injunction prohibitory in nature against the defendants, the position would be that whereas the plaintiffs would be deprived of getting possession of the flats and would continue paying rent for the premises in their occupation to their present landlords, the defendants should have received much more than what could be expected by them form the plaintiffs would enjoy the possessory benefits of the flats. " ( 9 ) IN the case of Chandu Lal Vs. Municipal Corporation of Delhi, AIR 1978 Delhi page 174, the Full Bench held that when the license is validly revoked, the licensee has no right to retain possession and, therefore, would not be entitled to temporary injunction against his eviction. ( 10 ) PAGE 63 is the notice dated 4. 6. 1998 by Mr. R. P. Sharma, Advocate. Municipal Corporation of Delhi, AIR 1978 Delhi page 174, the Full Bench held that when the license is validly revoked, the licensee has no right to retain possession and, therefore, would not be entitled to temporary injunction against his eviction. ( 10 ) PAGE 63 is the notice dated 4. 6. 1998 by Mr. R. P. Sharma, Advocate. Perusal of the same suggests that the said notice has been issued by the advocate concerned for and on behalf of and on instructions of the present plaintiff. Learned senior counsel for the plaintiff has submitted that this notice is not given under the instructions of the plaintiff. Unless rebutted by necessary evidence, the presumption would be that the notice dated 4. 6. 1998 is issued by the advocate concerned for and on behalf of the client mentioned therein. It prima facie appears from the contents of the notice dated 4. 6. 1998 that the defendant no. 1 was inducted as the license by the plaintiff and defendant No. 1 has been paying license fee of Rs. 5,0007- per month to the plaintiff. It is further suggested that of late. defendant No. 1 stopped paying ,,cense fee of Rs. 5. 000. 00 per month and also prevented the landlady (plaintiff), her husband and other family members from entering into the ground floor; that the ground floor of the premises, if re-let today, would fetch minimum rent of Rs. 15,000. 00 per month and defendant No. 1 is alleged to be in arrears of license fee for the last over three years. By the said notice, the alleged license in favour of defendant No. 1 is also terminated with effect from 30. 6. 1998. The notice further suggests that if defendant No. 1 considered himself to be a tenant at a rent of Rs. 5,000. 00 per month, even then his tenancy is terminated by the said notice with effect from 30. 6. 1998 or on such subsequent date license/ tenancy expires according to defendants calculation. By the said notice, defendant No. 1 has been called upon to pay license fee at Rs. 5,000. 00 per month for the last three years and also to hand over the possession of the premises to the plaintiff by the said date failing which the defendant would be liable to pay damages @ Rs. 15. 000. 00 per month with effect from 1. 7. 1998. 5,000. 00 per month for the last three years and also to hand over the possession of the premises to the plaintiff by the said date failing which the defendant would be liable to pay damages @ Rs. 15. 000. 00 per month with effect from 1. 7. 1998. ( 11 ) THE defendant replied to the said notice vide reply dated 1. 9. 1998 (page 38 of reply by defendants to plaintiff s application under Sections 151 and 152civil Procedure Code ). It would be seen therefrom that defendant No. 1 in the said reply asserted his ownership over the ground floor portion of property No. 63, Uday Park, New Delhi and co-ownership in the second floor of the premises and also disputed the right of the plaintiff to interfere in the peaceful enjoyment of the said property in any manner. The defendant No. 1 by the said reply also stated that he retired from Indian Air Force in 1988 and thereafter shifted to Delhi in the suit property as being the owner and even otherwise also when defendant No. 1 was in service, the rights of ground floor remained intact as defendant No. 1 contributed substantially for the purchase and construction of the said property. In the said reply, defendant No. 1 has also asserted that it was mutually understood between the plaintiff and defendant No. 1 that defendant No. 1 will have the absolute ownership rights in respect of the ground floor and will be the co-owner of the second floor and leasehold rights of the said property and with the said understanding, defendant No. 1 contributed substantially towards the said property. Defendant No. 1 has also denied the payment of Rs. 5,000. 00 per month to be the license fee and that Rs. 5,000. 00 per month was being paid by defendant No. 1 to the plaintiff on account of arrangement/ agreement/ understanding between the plaintiff and defendant No. 1 to pay off towards the absolute ownership rights of the ground floor and co-ownership of second floor and leasehold rights. of the said property. The defendant No. 1 has disputed the plaintiff s right to demand license fee stating that he is not liable to pay any license fee and that the entire consideration which was agreed has been paid by defendant No. 1 and there is no question of making any further payment. of the said property. The defendant No. 1 has disputed the plaintiff s right to demand license fee stating that he is not liable to pay any license fee and that the entire consideration which was agreed has been paid by defendant No. 1 and there is no question of making any further payment. It is pertinent to note that the plaintiff in the suit has not referred to the notice dated 4. 6. 1998 and reply dated 1. 9. 1998 by defendant No. 1. It is only when notice dated 4. 6. 1998 was referred by the learned counsel for defendants in course of arguments, in reply it has been submitted by learned counsel for the plaintiff that the said notice was not given under the instructions of the plaintiff. Be it as it may, it is sufficiently suggested for the present limited purpose that even according to the plaintiff, defendant No. 1 was inducted in the ground floor premises as the licensee by the plaintiff and defendant No. 1 did pay license fee of Rs. 5,000. 00 per month to the plaintiff at least for some time and defendant No. 1 of late stopped paying the license fee of Rs. 5,000. 00 per month and the arrears of license fee demanded from defendant No. 1 for a period of three years terminating the license/tenancy of defendant No. 1. As pointed out above, defendant No. 1 has asserted right of absolute ownership on the ground floor premises and co-ownership in the second floor premises as well as in the leasehold rights of the suit property stating substantial contributions made by defendant no. 1 form time to time for the purchase of plot and the construction of property thereon. ( 12 ) IT is prima facie suggested that defendant No. 1, even on plaintiff s own say, was inducted as a licensee for the consideration of Rs. 5,000. 00 per month by way of license fee. The payment of licensee fee by defendant No. 1 has been stated by the plaintiff in the notice dated 4. 6. 1998 which would mean that defendant No. 1 has made payments to the plaintiff @ rs. 5,000. 00 per month, whether by way of license fee, as alleged by the plaintiff, or as contribution pursuant to the alleged family agreement/understanding as per defendant No. 1 would be a matter of evidence. 6. 1998 which would mean that defendant No. 1 has made payments to the plaintiff @ rs. 5,000. 00 per month, whether by way of license fee, as alleged by the plaintiff, or as contribution pursuant to the alleged family agreement/understanding as per defendant No. 1 would be a matter of evidence. Whether the defendant is a licensee, as alleged by the plaintiff, in the ground floor or that the defendant No. 1 is the owner of ground floor cannot be decided without the evidence and the trial. Even assuming that defendant No. 1 is a licencee and the license has been terminated, in that case also the defendant cannot be thrown out of the suit premises by this application. ( 13 ) THE principle laid down in the above referred judicial pronouncements, in my opinion, would be of no assistance to the plaintiff for dispossessing the defendants of the suit premises since there is no-question of restoring status quo by undoing acts o1. he defendants, i do not find this to be a fit case for grant of ad interim mandatory injunction against the defendants as prayed in this application in view of the facts, as above, and the evidence so far on record. ( 14 ) IN the result, the plaintiff would not be entitled to the relief claimed in this application and same being devoid of merits is liable to be dismissed. IA dismissed