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2015 DIGILAW 500 (RAJ)

Shyamlal v. Shiv Kumar

2015-02-24

NISHU GUPTA

body2015
JUDGMENT : Nishu Gupta, J. The instant civil second appeal has been preferred against the judgment & decree dated 30/08/1995 passed by the court of Additional District Judge, Karauli by which, he dismissed Civil Regular Appeal No.5/1995 filed by the plaintiff-appellant and upheld the judgment & decree dated 10/02/1995 passed by the court of Civil Judge (Junior Division) and Judicial Magistrate, First Class, Karauli by which, Civil Suit No.10/1982 filed by the plaintiff-appellant seeking permanent injunction has been dismissed, whereas counter claim of the defendant-respondents has been decreed. 2. The facts giving rise to this appeal in brief are that the plaintiff-appellant filed a civil suit against defendant-respondents seeking permanent injunction praying therein that defendant No.1 be restrained from evicting the plaintiff-appellant forcibly from the suit premises and not to interfere in his use and occupation in the disputed property. Defendant No.1 contested the suit on the ground that plaintiff-appellant is not a tenant but he is a trespasser and has been inducted in the property by defendant No.2. Defendant No.2 has contested the suit on other ground and defendant No.3-Devasthan Department came with the contention that defendant No.1 is tenant against whom an order of eviction has already been passed hence, he has no right, title and interest in the disputed property. Defendant No.1 has also filed counter claim for eviction of the plaintiff. In spite of the fact that plaintiff was found in permissive possession, court below has allowed the counter claim of defendant No.1 and passed the decree for vacating the disputed shop and suit of the plaintiff has been rejected. Appeal has been filed by the plaintiff-appellant, which was also rejected. Hence, this civil second appeal. 3. The appeal has been admitted on 11/10/1995 on the following substantial question of law:- "Whether the eviction of the appellant can be ordered in this type of cases?" 4. Heard learned counsel for the parties and perused the impugned judgment & decree as well as original record of the case. 5. Issue No.1 has been framed in the matter whether plaintiff-appellant is tenant of defendant No.1 and which has been answered concurrently against the plaintiff-appellant by both the courts below and contention of the respondents is also that plaintiff is not the tenant in the premises. 5. Issue No.1 has been framed in the matter whether plaintiff-appellant is tenant of defendant No.1 and which has been answered concurrently against the plaintiff-appellant by both the courts below and contention of the respondents is also that plaintiff is not the tenant in the premises. Documents Ex.A10 & Ex.A11 are the relevant documents, which have been relied upon by the plaintiff-appellant and signatures have also been admitted by the defendant No.1 on the documents, which clearly shows that on 16/11/1980 when some money transaction took place between defendant No.1 and defendant No.2, at that time, appellant was in possession of the property. Same narration has been stated in Ex.A11. Contention of the respondents is that present appellant has been inducted in the property by respondent No.2 but Ex.A10 & Ex.A11 carry no narration to this effect that the appellant has entered into the premises with the connivance of respondent No.2; per contra, Ex.A10 and Ex.A11 clearly speak that present appellant was in possession of the property before execution of the documents Ex.A10 and Ex.A11, which clearly shows that appellant was in possession of the property with the permission of respondent No.1 and trial court has also held so while deciding Issue No.3 that present appellant is in possession of the property with the permission of respondent No.1. Hence, in view of above, he cannot be stated to be the trespasser in the property. Both the courts below have relied on the judgment of Supreme Court in Sant Lal Jain v. Avtar Singh : AIR 1985 SC 857 and relief of possession has been granted in the suit u/S.39 of the Specific Relief Act, 1963 (shall hereinafter be referred as the "Act of 1963"). 6. In Sant Lal Jain supra, the facts were that a lease has been allowed for a fixed period between the parties and after expiry of the period, suit property has not been vacated and in the facts of the case, suit for mandatory injunction has been allowed and the court was of the opinion that it would not be in the fitness of the things to deny relief merely because the plaint has been filed in the form of a suit for mandatory injunction. It has further been held that possession of the property has not been surrendered after termination of the license and hence, appellant is entitled to recover possession of the property in the suit for mandatory injunction but here in the present case, facts are quite different. The respondents have not come with the contention that the plaintiff-appellant is a licensee and his license has been terminated. Per contra, he has denied the right and interest of the appellant and designated him as the trespasser, inducted in the property by the defendant No.2. Both the counsel have relied on the judgment of Kerala High Court in A.K. Sreedharan Erady v. C.Sreedharan, 1989 (1) All India Rent Control Journal 61, where the court has held that when the license has been revoked, suit for mandatory injunction is the remedy. There is no dispute about the above proposition but facts are not similar in the matter as after expiry of license, a notice has been issued to the respondents and license has been revoked; in spite of this, suit property has not been vacated and looking to all the facts of the case, to arrive at a just solution, court has ordered for equitable relief, which is not the case here. Here, respondents have not come with the case that plaintiff-appellant is a licensee and his license has been revoked. Counsel for the appellant has relied on the judgment of Kerala High Court in E.P. George v. Thomas John : AIR 1984 Kerala 224, where it has been held that judicial dictum must be understood in the context of the facts and it has been held that the suit for mandatory injunction against the licensee lies only after revocation of license and in the facts of the case, termination of the agreement has been made duly by a notice and after termination of the license, suit for mandatory injunction has been held maintainable but here in the present case, respondents have not come with the case that the plaintiff-appellant is a licensee or his license has been revoked; per contra, their contention is that he has been inserted in the property by respondent No.2 only as a trespasser, which is contrary to the proved and admitted case viz. documents Ex.A10 & Ex.A11 hence, in the facts of the case, the court below was not justified in ordering eviction u/S.39 of the Act of 1963, which reads, as under:- "39. Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts". A bare reading of the above provision goes to show that there should be a threatened breach of obligation. Here, there was no obligation on the part of the appellant to vacate the premises as it has not claimed to be licensee of the respondents and furthermore, respondents have not revoked the license. Hence, there was nothing before the court below for enforcing or performance of any act and otherwise also, relief u/S.39 of the Act of 1963 is a discretionary relief and should not be exercised in favour of a person, who has not come with a straight pleading before the courts and admittedly; here, the respondents have not come with the case that the plaintiff-appellant is their licensee and in view of the above, finding of the court below as regards to the mandatory injunction to handover the vacant possession of the property to respondent No.1, is perverse and deserves to be set-aside. 7. In view of above, substantial question of law is answered in favour of the plaintiff-appellant. Impugned judgment & decree passed by the trial court and affirmed by the first appellate court in favour of the defendant-respondents is liable to be set-aside. Consequently, this civil second appeal is allowed. The impugned judgment & decree dated 30/08/1995 passed by the court of learned Additional District Judge, Karauli in Civil Regular Appeal No.5/1995 as well as the judgment & decree dated 10/02/1995 passed by the court of learned Civil Judge (Junior Division) and Judicial Magistrate, First Class, Karauli in Civil Suit No.10/1982 are set-aside. The records be sent back to the courts below forthwith.