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2007 DIGILAW 361 (UTT)

Shekhar Chand Joshi v. Sri Mahendra Singh

2007-07-04

RAJESH TANDON

body2007
JUDGMENT Hon'ble Rajesh Tandon, J. : Heard Shri Sudhir Kumar and Shri Sarvesh Agarwal counsel for the appellant. 2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 15.4.2006 passed by the District Judge, Nainital in civil appeal no. 18 of 2004 and the judgment and decree dated 23.8.2004 passed by the Civil Judge (Junior Division), Nainital in civil suit no. 03 of 2000 whereby the suit of the plaintiff has been partly decreed. 3. Briefly stated, a suit was filed by the plaintiff Shekhar Chandra Joshi for permanent injunction restraining the defendants from interfering with the possession of the plaintiff and also restraining them from evicting him otherwise than in due course of law. According to the case of the plaintiff, he is a tenant of premises situate at Hanumangarh, Talli Tal, Nainital on a sum of Rs. 300/- per month of which Shri Ashok Chaterji Rio 2/1/2, Civil Lines, Faizabad is the landlord. Earlier to Shri Ashok Chaterji, the plaintiff was the tenant of late Shri Prakash Chandra Chaterji and after the death of late Shri Prakash. Chandra Chaterji, he is the tenant of his sole heir Ashok Kumar Chaterji. On arriving certain disputes between late Prakash Chandra Chaterji and the plaintiff with regard to rent, late Prakash Chandra Chaterji filed a suit being no. 171 of 1988 which was dismissed on 20.08.1990. The appeal being no. 31 of 1990 was preferred against the judgment and decree of the trial court and after the death of late Shri Prakash Chandra Chaterji, Shri Ashok Kumar Chaterji was substituted as sole heir for doing pairwi of the appeal. The appeal was decided by virtue of compromise taken place between Ashok Kumar Chaterji and the plaintiff on 12.12.1992. 4. According to the plaintiff, after the compromise the plaintiff is the tenant of ground floor and upper floor of the premise known as Chaterji Bhawan situate at Hanuman Garh. The plaintiff is running his printing press on the ground floor and on the first floor he is doing composing work. The defendants are trying to dispossess the plaintiff illegally. Hence, the suit. 5. A written statement was filed by the defendants, whereby the plaintiff was admitted as a tenant on the ground floor. The plaintiff is running his printing press on the ground floor and on the first floor he is doing composing work. The defendants are trying to dispossess the plaintiff illegally. Hence, the suit. 5. A written statement was filed by the defendants, whereby the plaintiff was admitted as a tenant on the ground floor. It was stated that according to the will of Prakash Chandra Chaterji, the property has vested in Sankat Mochan Hanuman Mandir Trust, Hanuman Garh, Nainital and, therefore, appeal no. 31 of 1990 was filed in collusion with Ashok Kumar Chaterji and the plaintiff, who was the defendant in that suit. The compromise between them is wholly illegal. In paragraph 13 of the written statement, following averment has been made: 6. In paragraph 14 of the written statement, the defendants have stated as under. 7. The defendants have stated that the defendant no. 1 is authorized for the management of the trust and the defendant no. 2 is authorized for legal functioning. Prakash Chandra Chaterji was residing in the temple as a pilgrim. The ownership of the property vested in the trust but Prakash Chandra Chaterji has given on rent four rooms of ground floor to the plaintiff. It has been alleged that the plaintiff has concealed the facts while filing the suit. Plaintiff is not entitled for any relief and he had no right to get the injunction against the true owner. 8. On the pleadings of both the parties, following issues were framed : 9. While deciding issues no. 1, the trial court has recorded the finding that the plaintiff is not in possession of the first floor, 10. So far as issue nos. 2 and 3 are concerned, the trial court has recorded the finding that the plaintiff has failed to prove that the defendants have tried to dispossess him illegally and forcibly. 11. So far as issue no. 4 is concerned, the trial court has recorded that on the ground of the will executed by the owner, Sankat Machan Hanuman Mandir has become the owner of the property and Prakash Chandra Chaterji has no right in respect of property in dispute. 12. While deciding issue no. 6, it was held that the plaintiff was not the tenant of the entire premises. 13. 12. While deciding issue no. 6, it was held that the plaintiff was not the tenant of the entire premises. 13. On the basis of the aforesaid findings, the suit was dismissed by the trial court so far as first floor is concerned. However, the plaintiff was safeguarded for eviction from the ground floor alone. 14. The plaintiff went in appeal. The appellate court has also recorded the finding that the plaintiff was only the tenant of ground floor and the property has now been vested with Sankat Mochan Hanuman Mandir Trust and the compromise between Ashok Kumar Chaterji and the plaintiff was null and void. 15. Both the courts below, therefore, have recorded the findings that plaintiff was the tenant only on the ground floor portion and not the first floor portion. 16. Counsel for the appellant has referred the judgment of Manomati Chethia and others v. Naren Pathak and others reported in (2004) to Supreme Court Cases 146, where it has been held as under. "I. Though the matter has come up to this Court for the second time, yet. after hearing the learned counsel for the parties, we find yet another remand to the High Court unavoidably warranted. It is not disputed that the land forming the subject-matter of these proceedings is governed by the provisions of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (hereinafter "the Act" for short). The respondent landlords initiated proceedings for ejectement which travelled up to the High Court. By order dated 31.3.1997, the High Court allowed the appeal preferred by the landlords and directed the tenant to be evicted. The tenant preferred an appeal by special leave. which was disposed of by order dated 12.1.1998 by this Court. This Court held that inasmuch as the tenancy is governed by special enactment, a notice under Section 106 of the Transfer of Property Act was not required to be served before initiating the proceedings for ejectment. Having decided this controversy, this Court set aside the judgment of the High court and sent it back for decision on other points. This time again, the High Court has allowed the second appeal and set aside the judgment of the first appellate court, restoring the judgment of the trial court. 2. Having decided this controversy, this Court set aside the judgment of the High court and sent it back for decision on other points. This time again, the High Court has allowed the second appeal and set aside the judgment of the first appellate court, restoring the judgment of the trial court. 2. Having perused the judgment of the High Court dated 5.5.1998, we are satisfied that all the issues arising for decision between the parties have not received the attention of the High Court and dealt with and disposed of in the impugned judgment. Even the questions of law framed by the High Court vide para 5 of its impugned judgment do not specifically cover and set out those substantial questions of law on which the parties are litigating and this has occasioned a failure of justice." 17. Aforesaid case law is not applicable to the facts of the present case inasmuch as the appellate court has decided the appeal after considering the entire documents on the record. 18. In Mahadeo S. Davlaram Shelke and others v. Pune Municipal Corporation and another reported in (1995) 3 see 33, it has been held as under : "9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. " "Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for eviction them. There is thus neither balance of convenience nor irreparable injury would be caused to the appellants." 10. In Woodroffs Law Relating to injunctions, 2nd revised and enlarged Edn., 1992,at page 56 in para 30.01. it is stated as under: "an injunction will only be granted to prevent the breach of an obligation (that is a duty enforceable by law) existing in favour of the applicant who must have a personal interest in the matter. In the first place, therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prima facie case in support of the title which he asserts." 19. In view of the aforesaid decision of the Apex Court, no interference is required in the orders passed by the courts below while refusing to grant the injunction for the entire premises. 20. In view of the aforesaid decision of the Apex Court, no interference is required in the orders passed by the courts below while refusing to grant the injunction for the entire premises. 20. In view of the above, I find no substantial questions of law involved in the second appeal so as to interfere under Section 100 of Code of Civil Procedure. Second appeal, therefore, is dismissed under Order 41 Rule 11 of Code of Civil Procedure.