V. RAKESHAK v. SURJEET SINGH BHURJI — 1998 DIGILAW 23 (HP)

JUDGMENT A.L. VAIDYA, J.—The premises in dispute consists of residential set situated in the West portion (top floor) of Amin Chand House, Kaithu, Shimla-3. The parties are stated to be closely related. 2. The disputed premises is a part of the building known as Amin Chand House which-was owned by one Amar Singh, who happened to be the father-in-law of the plaintiff-respondent Shri Surjit Singh. The plaintiff has filed a suit for permanent injunction with the prayer that the defendants be restrained from forcibly dispossessing the plaintiff as well as from causing any interference to the possession of the plaintiff in respect of the suit premises and also from causing any disturbance to the staff members of the plaintiffs who have been working in a portion of the suit premises, by passing a decree for prohibitory injunction with costs. The plaintiff in suit claimed to be in occupation of these premises with effect from 1965 and in one portion of these premises he was running his offices for architectural business. The plaintiff claims that he has been registered as an Architect by the Council of Architect of India. According to him, he has obtained power, water and telephone connection to the premises in dispute in his own name and h& has also been drawing essential commodities at the address of the said premises. According to plaintiff, defendants 1 and 2 had been putting up in a portion of Amin Chand House, East Portion (Top Floor) for the last 3-4 years. Defendant No. 3 was alleged to be a foreign citizen and she also started residing with defendants 1 and 2 and they all have been alleged to be interfering with the possession of the Plaintiff. It was also pleaded that defendants, in the absence of the plaintiff, committed house tres-pass by entering into the premises in dispute and tried to remove some of the goods of the plaintiff. As the defendants did not accede to the claim of the plaintiff, hence the suit for injunction was preferred. 3. The defendants, in their written statement, put up a counter-claim also. According to them, husband of defendant No. 3 bad been owner in possession of the premises in dispute and the plaintiff was permitted only to reside in a portion of the suit premises when he had been carrying on a dispute with one Shri Sultan Singh Bakshi. 3. The defendants, in their written statement, put up a counter-claim also. According to them, husband of defendant No. 3 bad been owner in possession of the premises in dispute and the plaintiff was permitted only to reside in a portion of the suit premises when he had been carrying on a dispute with one Shri Sultan Singh Bakshi. According to defendants, the disputed premises was originally owned and possessed by one Shri Amar Singh and defendant No.1 was daughter of Shri Amar Singh. As she became widow at a very young -age, therefore, her father had provided the premises in dispute to her several years back. Plaintiff was admitted to be the son-in-law of Shri Amar Singh, Shri Sultan Singh Bakshi was also started to be the son-in-law of Shri Amar Singh, It was admitted that husband of defendant No, 3 was staying abroad, but he had been visiting the premises in dispute. The interference with the possession of the plaintiff has been denied. According to defendants, plaintiff had been permitted to reside in the premises in dispute as a licensee and the plaintiff had-manipulated water, power and telephone connection in his own name. It was pleaded that initially these connections had been in the name of Shri Amar Singh. The plaintiff, after the revocation of the licence to occupy the premises, was a tres-passer and was not entitled to occupy the said premises. Defendants in the counter-claim prayed that the plaintiff be restrained from interfering with the possession of defendant No. 3 over the premises in dispute by issuance of a decree of perpetual injunction against him and alternatively, it was prayed that decree for mandatory injunction against the plaintiff for restoration of the possession of the premises in dispute be passed. 4. The plaintiff filed written statement-cum-replication to the written statement and counter-claim preferred by defendants 1 to 3. The ownership of Shri Amar Singh was not disputed. The plaintiff pleaded that Amar Singh had left behind sons and daughters and the plaintiff was the son-in-law of Shri Amar Singh. According to him, his wife had died and plaintiff had one son and one daughter from his wife. According to plaintiff, he had been in possession of the premises in dispute as a co-sharer and not as a licensee. The averments made in the plaint have been re-affirmed. 5. According to him, his wife had died and plaintiff had one son and one daughter from his wife. According to plaintiff, he had been in possession of the premises in dispute as a co-sharer and not as a licensee. The averments made in the plaint have been re-affirmed. 5. The plaintiff-respondent filed an application under Order 39, Rules 1 and 2, CPC in the main suit praying for restraining the opposite party from interfering with his possession during the pendency of the suit. The trial Court, after passing the ad-interim order in favour of the plaintiff, later on vacated the same after hearing the same and dismissed the application of the plaintiff. 6. The plaintiff preferred an appeal before the first appellate Court where, after hearing the parties, learned Additional District Judge, allowed the appeal and directed the defendants not to interfere with the possession of the plaintiff over the premises in dispute during the pendency of the suit and the application under Order 39, Rules 1 and 2, CPC was accordingly disposed of. 7. The aforesaid order has been assailed in the present revision petition on various grounds. 8. Learned Counsel for the parties have been heard and the record has also been scrutinised. 9. According to learned Counsel for the petitioners, the plaintiff has not been able to establish a prima facie case in his favour and accordingly, his application under Order 39, Rules 1 and 2, CPC has to be disallowed. It is not so simple a matter as has been urged on behalf of the petitioners. Prima facie case means the prima facie existence of a right and its infringement^ the opposite party. In the present case, on the basis of the pleadings of the parties, prima facie possession of the plaintiff over the disputed property is established. According to learned Counsel for the defendant-respondents, there was no doubt that prima facie the possession of the plaintiff was as a licensee which licence stood revoked, therefore, the plaintiff had no right to remain in occupation without any specific right pleaded in himself. Learned Counsels line of argument in this behalf had been that plaintiff did not claim himself to be right-holder in occupying these premises. Learned Counsels line of argument in this behalf had been that plaintiff did not claim himself to be right-holder in occupying these premises. It may not be out of place to mention here that according to plaintiff, he has been in occupation of the demised premises since 1965, which fact, though denied, has to be decided on merit, but the fact remains that even according to defendants, the plaintiff was inducted as a licensee which fact is being disputed by the plaintiff and that fact has to be disposed of on merit when the suit is to be tried. The pleadings reflected plaintiffs case that he has been occupying the premises since 1965, but after the death of his father-in-law, the property was inherited by his wife and after his wife by his son and daughter and he himself and according to plaintiff, as a co-sharer, he was in occupation of the demised premise and till partition, he was legally permitted to remain in possession of the same. 10. To repel the aforesaid plea, it has been contended that this plea was an afterthought taken in replication by the plaintiff and was not the subject-matter of the plaint originally filed by him. It may not be out of place to mention at this stage that the defendants had filed a counter-claim which was included in the written statement preferred by them. The written statement preferred by them. The written statement preferred by the plaintiff to the counter-claim was filed along with the replication meaning thereby, it was in the counter-claim that the plaintiff elaborated his plea that his possession could not be said to be that of a tres-passer, but of a co-sharer. 11. Thus, taking into consideration the aforesaid factors which are reflected from the record itself, plaintiffs prima facie possession in the premises in dispute otherwise stood established which has been so described even by the defendants by filing a counter-claim for mandatory injunction directing the plaintiff to restore0 the possession. Learned Additional District Judge has been correct in appreciating this aspect of the matter and with that background, the prima facie possession of the plaintiff over the demised premises has to be protected during the pendency of the suit. 12. Learned Additional District Judge has been correct in appreciating this aspect of the matter and with that background, the prima facie possession of the plaintiff over the demised premises has to be protected during the pendency of the suit. 12. The irreparable injury, if the temporary injunction is not granted, would be to the plaintiff and balance of convenience, again, will be in favour of the passing of the temporary injunction asked for. 13. The parties have tried to take some advantage in support of their claim and counter-claim through the precedents cited by them. The petitioners have referred AIR 1978 Delhi 174 (FB) Chandu Lal v. Municipal Corporation of Delhi and (1994) 5 SCC 547 Premji Ratansey Shah and others v. Union of India and others. On the other hand, learned Counsel for the plaintiff-respondent tried to take some support from 1993(2) Sim. L.C. 440 AH Mohammad v. State of H.P. and others, AIR 1995 Karanataka 238 Kallappa Rama Londa v. Shivappa Nagappa Aparaj and others. The principles laid down in the aforesaid citations were not being disputed by the parties. The sole point to be gone into is the applicability of the same to the facts of the present case. 14. There is no doubt that in some cases a tres-passer cannot be granted a temporary injunction against the original owner. There is also no dispute to the proposition that where a licence has been revoked, the licensee may not, in some circumstances, be granted temporary injunction. However, so far as the present case is concerned, it is not the revocation of licence alone but the inheritance of the property which is alleged to have devolved in favour of the plaintiff, his son and daughter also which fact was under dispute. 15. An additional factor brought on record at this stage has been that there was some previous litigation with some Gurdeep Singh, the attested copy of the judgment passed in that suit which is dated 7.8.1993, is on record. That suit was filed by defendant No, 1, the daughter of Amar Singh and in that suit, the defendants had pleaded that the premises in dispute was in possession of Shri Surjeet Singh, brother-in-law of late Shri Harbhajan Singh and he had been residing in the last floor since 1958 and was looking after the property of all the legal heirs. The suit of the present defendant No. 1 was accordingly dismissed. Anyway, the fact remains that as explained above, the prima facie possession of the demised premises was with the plaintiff which is to be protected during the pendency of the suit. 16. Thus, taking into consideration the aforesaid circumstances, the order passed by the learned Additional District Judge does not require any interference as the same does not suffer from any illegality. The present revision petition is accordingly dismissed. Parties to bear their own costs. The observations made hereinabove will not, in any way, affect parties case which is yet to be tried on merit. Parties are directed to appear before the trial Court on 8.4.1998. The record of the Court below be sent back so as to reach there by or before the aforesaid date. Suit dismissed.