Mandatory injunction.
shivraj
(Querist) 08 January 2009
This query is : Resolved
In the Mandatory injunction case plaintiff files a suit for possession and restraining defendant for entering in the suit property.
1)In this case defendant in the year 1994 surrender there rights and get consideration from plaintiff.
2)Surrender deed also register in register office and also signed by the defendant.
3)Suit property is in name of defendants husband and all taxes regarding suit property has been paid by the plaintiff himself and under shop act the ownership is in the name of plaintiff?
4)After that defendant denied this document from the year 2000 again entering in suit property and claiming possession.
5)Whether defendant has a right to take possession of suit property?
6)Whether plaintiff can succeed in this case?
7)Any case laws regarding this matter plz.send.
PALNITKAR V.V.
(Expert) 09 January 2009
As stated by you in para 3 if the owner of the suit property is husband of the defendant then the defendant has no right to surrender any right in favour of plaintiff. Plaintiff does not get any right merely by making payment of taxes or merely because his name is there in the Shop Act licence. Entry in Shop Act licence does confer ownership on plaintiff. Apart from that if the defendant has entered in the premises in the year 2000 the plaintiff will not get injunction to restrain the defendant from entering into the suit property since the defendant has already entered therein. Since the husband of the defendant seems to the owner of the property and if they are staying together, the defendant can legally enter into the property so long as the wife does not object to it. In the given circumstances, plaintiff will not be able to succeed unless he is owner of the property or proves his possession on the date of cause of action as well as on the date of the suit.Please See Sections 6, 37,38 of Specific Relief Act,and O.39 of CPC
