ORDER : P.S. Rana, Judge Present petition is filed under Article 227 of Constitution of India against order passed by learned Additional District Judge Kullu in Civil Miscellaneous Appeal No. 12 of 2015 decided on 8.9.2015 titled Big Apple Berry Hospitality Pvt. Ltd. vs. Rakesh Kumar and others. Brief facts of the case 2. Big Apple Berry Hospitality Pvt. Ltd. through its director filed civil suit for perpetual and prohibitory injunction restraining the defendants their agents etc. from dispossessing the plaintiffs from suit property comprised Khasra Nos. 251, 252, 253 measuring 0-0-89 Hectares known as Manu Samriti Home situated at Muhal and Phati Manali Tehsil Manali District Kullu H.P. Additional relief also sought that if during the pendency of suit defendants would succeed in dispossessing the plaintiff from suit property and if would succeed in removing the structure from suit property then same be ordered to be restored to its original position and possession be also granted in favour of plaintiff. Additional relief also sought that decree be passed for permanent prohibitory injunction restraining the defendants from leasing out/renting out the suit property to some other person in any other way. Plaintiff also prayed that any other relief which the Court deems fit as per facts and circumstances of case be also granted. 3. It is pleaded by plaintiff that plaintiff Big Apple Berry Hospitality is a private limited company and Shri Gursimaran S. Bhullar is its Director. It is pleaded that plaintiff took on lease the suit property along with building on yearly rent of Rs. 160000/- (Rupees one lac sixty thousand only) from co-defendant No.1 on 6.5.2011. It is pleaded that lease was for a period of twenty years w.e.f. 1.5.2011 to 30.4.2031. It is pleaded that on execution of lease plaintiff paid a sum of Rs. 480000/- (Rupees four lacs eighty thousand only) in advance by way of cheque and also paid Rs. 180000/- (Rupees one lac eighty thousand only) in cash and agreed that in future rent amount would be paid on or before 31st of every month of May when due. It is pleaded that plaintiff did not default in payment of yearly lease amount to defendant and co-defendant No.1 threatened the plaintiff with dire consequences and asked the plaintiff to leave the suit property and threatened the plaintiff that defendants would dispossess the plaintiff from suit property forcibly. 4. It is pleaded that plaintiff did not default in payment of yearly lease amount to defendant and co-defendant No.1 threatened the plaintiff with dire consequences and asked the plaintiff to leave the suit property and threatened the plaintiff that defendants would dispossess the plaintiff from suit property forcibly. 4. It is pleaded that on 23.11.2014 defendants along with some other persons constituted an unlawful assembly and threatened the plaintiff and his servants to vacate the premises otherwise plaintiff would face dire consequences. It is pleaded that plaintiff came in settled possession of suit property on 6.5.2011 and did not default in payment of yearly lease rent and plaintiff has right to protect his settled possession from unlawful aggression. Prayer for decree of civil suit sought. 5. Per contra written statement filed on behalf of codefendant No.1 pleaded therein that plaintiff did not approach the Court with clean hands and supressed the material facts. It is pleaded that suit has not been properly valued for the purpose of Court fee and jurisdiction and plaintiff filed the present suit to grab the property in illegal manner. It is pleaded that codefendant No.1 had leased the premises in dispute to plaintiff for a period of three years w.e.f. May 2010 to May 2013 at the rate of Rs. 160000/- (Rupees one lac sixty thousand only) per annum on oral agreement and no written document was executed. It is pleaded that thereafter plaintiff voluntarily surrendered the premises and handed over the peaceful and vacant possession of premises to co-defendant No.1. It is pleaded that thereafter codefendant No.1 has alienated the suit property to co-defendant No.2 and further pleaded that after execution of sale deed in favour of co-defendant No.2 co-defendant No.2 is in open hostile and peaceful possession of suit property. Prayer for dismissal of civil suit sought. 6. Per contra separate written statement filed on behalf of co-defendant No. 2 pleaded therein that plaintiff has got no title and locus standi to file present suit and suit of plaintiff is not maintainable. It is pleaded that plaintiff has no cause of action to file the suit and plaintiff is estopped to file the present suit by his act and conduct. It is pleaded that plaintiff did not approach the Court with clean hands and suppressed the material facts from Court. It is pleaded that plaintiff has no cause of action to file the suit and plaintiff is estopped to file the present suit by his act and conduct. It is pleaded that plaintiff did not approach the Court with clean hands and suppressed the material facts from Court. It is pleaded that plaintiff is not in possession of suit property and he is not entitled to any relief as sought. It is pleaded that possession of suit property is with co-defendant No.2 and further pleaded that co-defendant No. 2 has purchased the suit property by way of sale deed No. 287 of 2013 dated 15.5.2013 from co-defendant No.1. It is pleaded that plaintiff is not in settled possession of suit property and co-defendant No.2 is in settled possession of suit property. Prayer for dismissal of civil suit sought. 7. Plaintiff filed replication and re-asserted the alelgations mentioned in plaint. During the pendency of civil suit plaintiff filed application under Order 39 Rules 1 and 2 CPC and sought the interim relief till disposal of civil suit to the effect that defendants be restrained from dispossessing the plaintiff from suit property except in due course of law. Plaintiff also sought adinterim relief to restrain co-defendant No.1 from leasing out and renting out the suit property to some other person till disposal of civil suit. 8. Defendants filed response to application filed under Order 39 Rules 1 and 2 CPC pleaded therein that plaintiff is not in settled possession of suit property and suit property is sold by co-defendant No.1 to co-defendant No. 2 by way of registered sale deed No. 287 of 2013 dated 15.5.2013 before the Sub Registrar Manali. It is pleaded that possession was also delivered to co-defendant No. 2 and prayer for dismissal of ad-interim application filed under Order 39 Rules 1 and 2 CPC sought. 9. Learned trial Court dismissed application filed under Order 39 Rules 1 and 2 CPC on 13.8.2015. Thereafter plaintiff filed civil miscellaneous appeal No. 12 of 2015 under Order 43 Rule 1 of Code of Civil Procedure against order dated 13.8.2015 passed by learned Civil Judge (Junior Divison) Manali. On 27.8.2015 learned Additional District Judge Kullu H.P. appointed Mr. 9. Learned trial Court dismissed application filed under Order 39 Rules 1 and 2 CPC on 13.8.2015. Thereafter plaintiff filed civil miscellaneous appeal No. 12 of 2015 under Order 43 Rule 1 of Code of Civil Procedure against order dated 13.8.2015 passed by learned Civil Judge (Junior Divison) Manali. On 27.8.2015 learned Additional District Judge Kullu H.P. appointed Mr. D.S. Thakur Advocate as Local Commissioner under Order 39 Rule 7 CPC with the consent of both the parties and directed the Local Commissioner to visit the spot and report about nature and possession and articles found inside the house in question existing on suit land with details in Court. Thereafter Local Commissioner submitted the report. No objections filed on Local Commissioner’ report by any of the party. Thereafter learned Additional District Judge disposed of CMA No. 12 of 2015 on 8.9.2015. Learned Additional District Judge Kullu allowed the appeal and set aside the order of learned trial Court. Learned first appellant Court restrained the defendants, their agents from interfering and forcibly dispossessing the plaintiff from suit property till disposal of main civil suit. 10. Thereafter Sunil Kumar co-defendant No. 2 filed present petition under Article 227 of Constitution of India. Court heard learned Advocate appearing on behalf of petitioner and learned Advocate appearing on behalf of non-petitioners and Court also perused the entire record carefully. 11. Following points arise for determination in this petition:- 1. Whether petition filed under Article 227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? 2. Relief. Findings upon point No.1 with reasons 12. Submission of learned Advocate appearing on behalf of the petitioner that lease deed dated 6.5.2011 is not registered instrument under Section 107 of Transfer of Property Act 1882 and same cannot be looked into for any purpose is partly answered in yes and is partly answered in no. It is prima facie proved on record that lease deed dated 6.5.2011 was executed for a period of twenty years w.e.f. 1.5.2011 to 30.4.2031. There is recital in lease deed that lease deed would be irrevocable for a period of twenty years. As per Section 107 of Transfer of Property Act 1882 lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent could be made only by a registered instrument. There is recital in lease deed that lease deed would be irrevocable for a period of twenty years. As per Section 107 of Transfer of Property Act 1882 lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent could be made only by a registered instrument. It is well settled law that if the lease for more than one year is not registered then same can be used for collateral purpose only i.e. possession. As per Section 105 of Transfer of Property Act 1882 lease of immovable property is transfer of right to enjoy such property for a certain time express or implied or in perpetuity in consideration of a price. As per Section 105 of Transfer of Property Act the transferor would be called lessor and transferee would be called lessee and price would be called premium and money, share, service or other thing would be called rent. 13. As per proviso of Section 49 of Registration Act 1908 unregistered document affecting immovable property can be looked for collateral purpose. Admittedly alleged lease deed placed on record is dated 6.5.2011 and period of lease is 20 years w.e.f. May 2011 to May 2031. There is recital in lease deed placed on record that possession of demised premises is already handed over to lessee by lessor. 14. Plea of co-defendant No.1 that lessee handed over the peaceful vacant possession of premises to co-defendant No. 1 is disputed by plaintiff. The fact whether possession of demised premises was handed over by lessee to lessor is conflicting issue of facts inter se the parties which cannot be decided at this stage of case. Same fact will be decided by learned trial Court after giving due opportunities to both the parties to lead evidence in support of their case by way of affirmative evidence and rebuttal evidence. 15. Submission of learned Advocate appearing on behalf of petitioner that after registration of sale deed No. 287 dated 15.5.2013 in consideration of Rs. 10 lacs (Rupees ten lacs only) codefendant No. 2 namely Sunil Kumar is in settled possession of suit property and on this ground petition be accepted as a whole is partly answered in yes and partly in no. In written statement co-defendant No. 1 has admitted that lease was given to plaintiff for three years. 10 lacs (Rupees ten lacs only) codefendant No. 2 namely Sunil Kumar is in settled possession of suit property and on this ground petition be accepted as a whole is partly answered in yes and partly in no. In written statement co-defendant No. 1 has admitted that lease was given to plaintiff for three years. There is no document placed on record in order to prove that plaintiff/lessee has voluntarily surrendered the possession of demised premises in favour of co-defendant No.1/lessor. There is no prima facie evidence on record that lessor had issued quit notice to the plaintiff/lessee relating to demised premises. On contrary lessee has pleaded that he is in settled possession of demised premises as of today in pleadings as well as affidavit filed by lessee. Alleged unregistered lease deed was executed on 6.5.2011 prior to sale deed in favour of co-defendant No.2. 16. Submission of learned Advocate appearing on behalf of petitioner that learned first Appellate Court has committed illegality by appointing the local commissioner under Order 39 Rule 7 CPC is also rejected being devoid of any force for the reasons hereinafter mentioned. There is recital in order sheet of learned first Appellate Court dated 27.8.2015 that local commissioner was appointed with consent of Advocates appeared on behalf of both parties. It is not expedient in the ends of justice to allow the petitioner to raise the objection before High Court for the first time contrary to consent given by learned Advocate appeared on behalf of petitioner before first appellate Court. 17. Even as per Order 39 Rule 7 CPC the Court may on application of any party to suit may appoint local commissioner for inspection in the ends of justice as Court thinks fit. 18. Submission of learned Advocate appearing on behalf of petitioner that lessee is not resident of Himachal Pradesh and he did not obtain prior permission under Section 118 of H.P. Tenancy and Land Reforms Act 1972 for execution of lease situated in Himachal Pradesh and on this ground this petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. As per proviso of Section 118(3) of H.P. Tenancy and Land Reforms Act 1972 lease can be executed in relation to part or whole of building without previous sanction of State Government. As per proviso of Section 118(3) of H.P. Tenancy and Land Reforms Act 1972 lease can be executed in relation to part or whole of building without previous sanction of State Government. In the present case dispute inter se parties is relating to building only and dispute inter se parties is not relating to agricultural immovable property. 19. Submission of learned Advocate appearing on behalf of petitioner that there is no prima facie evidence on record in order to prove that lessee/plaintiff namely Big Apple Berry Hospitality is in settled possession of suit property and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is prima facie proved on record that with consent of parties learned first Appellate Court appointed local commissioner under Order 39 Rule 7 CPC on 27.8.2015. It is also proved on record that thereafter Local Commissioner submitted report placed on record. Court has carefully perused report of Local Commissioner placed on record which is quoted:- Report of Local Commissioner A. Articles found in the premises: 1. The Main Gate by the side of road was locked from inside and it was opened by Sunil Kumar. 2. The house in question is single storied concrete structure having four rooms and over the slab there is about 12 feet x 10 feet wooden open structure covered with metal sheets. Photo Mark(A) 3. The first Room was opened by Sunil Kumar and inside this first room there was a double bed with pair of mattresses, bed sheet and pair of pillows on it. There is attached bath room and a geyser was installed therein (Mark-B) 4. The second Room was opened by Sunil Kumar and inside this second room there was also a double bed with pair of mattresses, bed sheet and pair of pillows on it and six shirts were on the hanger. There is also an almirah wherein the lady purse and traveling bag were kept. There is attached bath room and a geyser was installed therein. (Mark C & D) 5. The third Room was opened by Sunil Kumar and inside this third room there was a sofa set and Tandur (Chimani) fixed with wall. There is attached bath room and a geyser was installed therein. (Mark E) 6. There is attached bath room and a geyser was installed therein. (Mark C & D) 5. The third Room was opened by Sunil Kumar and inside this third room there was a sofa set and Tandur (Chimani) fixed with wall. There is attached bath room and a geyser was installed therein. (Mark E) 6. The forth room was opened by Sunil Kumar and inside this forth room there were two sofa chair, steel box and on a almirah there were give boilers and twelve pieces of steel glass and there is also attached kitchen wherein the LPG Gas stand along with gas cylinder with two boilers on it and cooker by the side of the gas stand were found. There was also a refrigerator unlocked and was found empty. There was also an almirah where empty bottles, plates and one baby feed box were placed in the shelf of the almirah. (Mark F, G, H, I & J) 7. Towards outside the forth room the dining table, four chairs and one wooden stand with box at the base filled with badminton racquets, glucose bottles and some medicines were found. On the back of the house there is one washing machine and two Nos of syntax water tank. (Mark K, L, M, N, and O) 8. On the room there is Gym articles i.e. one multipurpose exercise machine and one tread mill. (Mark P & Q) Possession On the date of visit at the spot i.e. on 27.8.2015 Sh. Gursimran S. Bhullar was standing outside the Main Gate by the side of the road and Sh.Sunil Kumar alongwith his family members and twelve Nos of young friends were inside the said main Gate, some of whom were standing, sitting and laying on the lawn. Sunil Kumar had also parked his car in front of the suit premises. Since the keys of all the aforesaid four rooms of the suit premises were with Sunil Kumar who opened all the locks respectively as such it appears that Shri Sunil Kumar is in possession/occupation of the suit premises. Nature : All the locks in all the four rooms in the suit premises seems to have been replaced recently as the fresh marks of empty spaces qua the previous locks were visible at the spot. (Mark R, S, T & U). Nature : All the locks in all the four rooms in the suit premises seems to have been replaced recently as the fresh marks of empty spaces qua the previous locks were visible at the spot. (Mark R, S, T & U). In room No. 3 Sh.Gursimran S Bhullar pointed out and identified where the LCD was installed and where the locker was fixed which were found missing. The stand of LCD on the wall was intact and the mark of locker in the almirah were also found at the spot (Mark V & W) In the kitchen there was no cooking material and Sh. Gursimran S Bhullar told that microwave oven was kept on shelf but the same was found missing. Sh. Gursimran S Bhullar produced the photostat copies of Bills qua the articles purchased and kept in the said house such as geysers, refrigerator, gym articles i.e. multipurpose exercise machine and tread mill, which were got tallied by me on the spot with the said articles and found to be in order. (Mark X, Y and Z). Since all the four locks of said four rooms of suit premises seems to have been replaced recently as submitted above and the fact that articles like geyser, refrigerator, multipurpose exercise machine and tread mill purchased by Sh. Gursimran S Bhullar referred herein above found in the suit premises and the fact that the articles such as badminton racquets, glucose bottles and some medicines were found inside one wooden stand with box at the base adjoining to the dining table were found the same which Sh. Gursimran S Bhullar deposed/told before opening the same and the fact that no cooking material was found in the kitchen and the fact that the stand of LCD was intact in the wall of the room as submitted above and the fact that Sh. Gursimran S Bhullar pointed out and identified the location of articles kept in the suit premises as such in view of the aforesaid facts besides others it appears that Sh. Gursimran S Bhullar has definitely been in occupation/possession of the suit premises. Sd/- Local Commissioner Dt.31/8/2015 (D.S. Thakur) Advocate Distt. Courts Kullu HP 20. Local Commissioner has specifically framed para of possession in local commissioner report. Court has carefully perused para of possession mentioned in local commissioner report. Gursimran S Bhullar has definitely been in occupation/possession of the suit premises. Sd/- Local Commissioner Dt.31/8/2015 (D.S. Thakur) Advocate Distt. Courts Kullu HP 20. Local Commissioner has specifically framed para of possession in local commissioner report. Court has carefully perused para of possession mentioned in local commissioner report. There is recital in the para of possession mentioned in local commissioner report that when local commissioner visited the spot on 27.8.2015 plainitff Big Apple Berry Hospitality through Gursimran S Bhullar was standing outside main gate by side of road and co-defendant No. 2 Sunil Kumar along with his family members and twelve numbers of young friends were inside the main gate. Local Commissioner has specifically mentioned that out of twelve young persons some of them were sitting, standing and some of them were laying on lawn. Local Commissioner has specifically mentioned in report that codefendant No.2 Sunil Kumar also parked his car in front of suit premises. Local Commissioner has further submitted in report that all keys of four rooms of suit premises were in possession of co-defendant No. 2 Sunil Kumar. Local Commissioner has further submitted in report that co-defendant No. 2 Sunil Kumar opened all locks and it appears that co-defendant No. 2 Sunil Kumar is in possession and occupation of suit premises. 21. Local Commissioner has further submitted in his report that all locks of four rooms of suit premises were replaced recently as there were fresh marks of empty spaces qua the previous locks visible at the spot. Local Commissioner has specifically mentioned in report that plaintiff produced photocopy of bill qua the articles against geysers, refrigerator, gym articles i.e. multipurpose exercise machine and tread mill which tallied by him at the spot and found to be in order. 22. Local Commissioner has further submitted in report that locks of four rooms of suit premises were replaced recently and fact that articles like geyser, refrigerator, multipurpose exercise machine and tread mill were found in suit premises. There is further recital in local commissioner report that articles such as badminton racquets, glucose bottles and some medicines were found inside one wooden stand with box adjoining the dining table and fact that no cooking material was found in kitchen and the fact that LCD was intact in wall of room. It appears that plaintiff Gursimran S Bhullar has definitely been in occupation/possession of suit premises. 23. It appears that plaintiff Gursimran S Bhullar has definitely been in occupation/possession of suit premises. 23. As per local commissioner report placed on record it is prima facie proved on record that co-defendant No. 2 Sunil Kumar is in possession/occupation of suit premises because he opened all locks of rooms. As per local commissioner’s report it is also prima facie proved on record that Gursimran S Bhullar plaintiff is in constructive possession of demised premises by way of geysers, refrigerator, gym articles, multiple exercise machines, tread mill, badminton racquets, glucose bottles and medicines etc. 24. No objections filed by any party upon local commissioner’s report and none of the parties challenged the local commissioner’s report by way of filing objections before first appellate Court prior to the disposal of civil miscellaneous appeal No.12 of 2015 by learned first Appellate Court on dated 8.9.2015. Report of Local Commissioner has attained stage of finality. 25. It is well settled law that at the time of disposing of application filed under Order 39 Rules 1 and 2 CPC Court is to decide following factors. (1) Prima facie case. (2) Balance of convenience. (3) Irreparable loss which cannot be compensated in terms of money. In present case both parties have claimed their settled possession over suit premises. As per report of local commissioner it is prima facie proved on record that codefendant No. 2 Sunil Kumar is in possession of suit premises and as per local commissioner’s report it is also prima facie proved on record that Big Apple Berry Hospitality Pvt. Ltd. through its Director Gursimran S Bhullar is also in constructive possession of demised premises by way of articles mentioned in local commissioner report. it is expedient in the ends of justice to direct both the parties to maintain status quo as of today as mentioned in local commissioner’s report till disposal of civil suit by learned trial Court on merits. 26. Judicial findings that locks of room changed by defendant after institution of civil suit in absence of plaintiff cannot be given at this stage because same is issue of fact and it is well settled law that issue of facts cannot be decided in judicial proceedings unless opportunity is not granted to parties to adduce evidence in affirmative and rebuttal. 27. 27. It is well settled law that person who is in settled possession can be evicted only in due course of law. See 1994(1) SLC 238 (HP) titled Neelam Kumari vs. Temple of Devi Ambika. See 1992(1) SLC 320 titled Dalip Singh vs. State of H.P. See JT 1989(3) SC 489 (DB) titled Krishan Ram Mahale vs. Mrs. Shobha Venkat Rao. In view of above stated facts point No.1 is answered partly in yes and partly in no. Point No.2 (Relief) 28. In view of findings on point No. 1 above petition filed under Article 227 of Constitution of India is partly allowed and order of learned first Appellate Court is modified to the extent that both parties will maintain status quo qua nature and possession of suit premises known as Manu Samriti Home comprised in Khata No. 147 Khatauni No. 517 Khasra Nos. 251, 252 and 253 situated in Muhal Manali as per jamabandi for the year 2001-2002 till the disposal of civil suit No. 106 of 2014 titled Big Apple Berry Hospitality Pvt. Ltd. vs. Rakesh Kumar and another by learned trial Court. Local Commissioner’ report placed in CMA No. 12 of 2015 titled Big Apple Berry Hospitality Pvt. Ltd. vs. Rakesh Kumar and another decided on 8.9.2015 will form part and parcel of order. Learned trial Court will dispose of civil suit No. 106 of 2014 expeditiously within three months after receipt of case file. No order as to costs. Files of learned trial Court and learned first Appellate Court be sent back forthwith along with certified copy of order. Parties are directed to appear before learned trial Court on 18.3.2016. Observations will not effect the merits of civil suit in any manner and will be strictly confined for disposal of present petition filed under Article 227 of Constitution of India. CMPMO No. 393 of 2015 stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.