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2019 DIGILAW 968 (HP)

Siri Ram v. Rakesh Kumar

2019-07-17

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan. J. The defendants are the appellants, who aggrieved by the judgment and decree passed by the learned first appellate Court on 17.09.2008 whereby he reversed the judgment and decree passed by the learned trial Court on 15.02.2001, have filed the instant appeal. 2. The parties shall be referred to as the 'plaintiff' and the 'defendants'. 3. The plaintiff filed a suit for injunction on the ground that the defendants out of the land comprised of Khata No. 253 min, Khatauni No. 285 min, Khasra No. 1903/1212, measuring 19 Kanals 15 Marias, situated in Tika Barsar, Tappa Panjgran, Tehsil Barsar, District Hamirpur, H.P. had leased out 3 Kanals 1 Marias comprised of its original No. 1006/698/2/1, in favour of the plaintiff vide lease deed dated 15.02.1986 for 15 years. After taking possession of the suit land, the plaintiff was running a petrol pump there. It was averred that in the month of October, 1993, when the lease was still in operation and had not expired, the defendants started interfering with the possession of the plaintiff over the suit land and threatened to raise construction thereupon, hence, the suit. 4. The defendants contested the suit by filing written statement wherein they claimed that the lease deed dated 15.02.1986 though executed between the parties, but the same was not read over and explained to the defendants at the time of its execution. It was, however, agreed by the plaintiff that the defendants would be given 50% share in the profit of the petrol pump. 5. On the basis of the pleadings of the parties, the learned trial Court on 07.04.1994, framed the following issues:- "1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? OPP. 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the plaintiff is estopped by his act and conduct from filing this suit? OPD. 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, what is its value for this purpose? O.P. Parties. 5. Whether the terms and conditions of the lease deed dated 15.02.1986 were not read over and explained to the defendants No.1 & 2, if so to what effect? OPD. 6. Relief." 6. 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, what is its value for this purpose? O.P. Parties. 5. Whether the terms and conditions of the lease deed dated 15.02.1986 were not read over and explained to the defendants No.1 & 2, if so to what effect? OPD. 6. Relief." 6. After recording evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiff, who in turn filed an appeal before the learned first appellate Court which came to be allowed vide judgment and decree dated 17.09.2008, constraining the defendants to file the instant appeal. 7. On 04.12.2008, the appeal came to be admitted on the following substantial questions of law:- "1 Whether the Learned Fast Track Court was right in allowing the appeal of the respondent without looking into the grounds of the appeal & without appreciating the terms & conditions of the lease deed exhibit PW-1/A? 2. Whether the Fast Track Court below was right in holding that the appellants how, when & in what manner has interfered with the possession of the respondent, when nothing to that effect has been placed on the record of the case? 3. Whether the findings of the court below are vitiated on account of wrong & illegal approach, and in not appreciating the oral and documentary evidence brought on record? 4. Whether the court below was right in law in not taking into consideration various circumstances proved on record which suggests that no ground constituting the grant of injunction was pleaded or proved? 5. Whether the findings of the Fast Track Court below are perverse and illegal? 6. Whether the judgment & decree of the trial Court, which has considered the entire aspect of the case is vitiated or is perfect & legal & warranted any interference?" 8. Since all the substantial questions of law are intrinsically interlinked and interconnected, therefore, they are taken up together for consideration and have been disposed of by common reasoning. Substantial Questions of Law No. 1 to 6. 9. At the outset, it needs to be observed that the suit is simpliciter for injunction and, therefore, what is required to be seen is only whether the plaintiff is in possession of the suit land. Substantial Questions of Law No. 1 to 6. 9. At the outset, it needs to be observed that the suit is simpliciter for injunction and, therefore, what is required to be seen is only whether the plaintiff is in possession of the suit land. Once, it is proved that the plaintiff is in possession, then regardless of the title of the property or the capacity in which the plaintiff is holding the property, he would normally be entitled to an injunction. This decision has to be arrived at on the basis of the pleadings and evidence of the parties. 10. In the suit filed by the plaintiff, it has been specifically stated that at the time of filing of the suit he was in possession of the suit land and this fact is not denied in the written statement and further this fact has also not even been denied by the learned counsel for the defendants at the time of arguments. Thus, once it stands established that the possession of the suit land is with the plaintiff, then I really see no reason why a decree of injunction should not be passed in his favour. 11. However, Shri Dushyant Dadwal, Advocate, would vehemently argue that as there are no pleadings and even evidence to substantiate the plea that the defendants had ever caused any interference, therefore, the suit was only a gross abuse of the process of the Court and a clever device of the plaintiff to linger on the litigation and continue in possession of the suit land even after the expiry of the term of the lease deed. 12. I find no merit in the said contention as the plaintiff in para-9 of the plaint has specifically stated about interference being caused by the defendants in the following words:- "9. That the cause of action arose to the plaintiff in the last week of October, 1993 when the defendants started threatening to raise construction and started interference with the possession of the plaintiff over the suit land in Tika Barsar, Tappa Panjgran, Tehsil Barsar, District Hamirpur (H.P.) within the civil jurisdiction of this Honourable court, hence this Court has jurisdiction to try the present suit." 13. Surprisingly, the corresponding para of the written statement only states "Para No.9 is incorrect, hence denied". 14. Surprisingly, the corresponding para of the written statement only states "Para No.9 is incorrect, hence denied". 14. Now, adverting to the evidence, it would be noticed that the plaintiff while appearing as PW-2 has specifically stated that the defendants in the year 1993 had tried to interfere in his possession and tried to forcibly raise shops over the suit land and this statement has gone unrebutted as the defendants have not even chosen to cross examine the plaintiff. 15. As regards the further contention of the defendants that the plaintiff under the garb of the instant suit was only trying to linger on his possession, again I really see no force in such contention as the defendants were always at liberty to have terminated the lease after its expiry and obtain possession. But, there is nothing on record to even remotely suggest that such course was ever adopted by the defendants and, therefore, in the given circumstances, the defendants have no one else to blame except themselves. 16. The terms and conditions of the lease deed have no role to play in the instant appeal as this Court is only required to see as to which party is in possession so as to entitle it to a decree of injunction. Once, the position is conceded by the defendants themselves that it is the plaintiff, who is in possession of the suit land, then obviously, no fault can be found with the judgment and decree passed by the learned first appellate Court whereby a decree of injunction has been granted in his favour. The further questions as to the consequences of the expiry of term of the lease deed etc. cannot be made subject matter of the suit out of which the present appeal arises. 17. The substantial questions of law, referred supra, are answered accordingly. 18. In view of the aforesaid discussion and for the reasons stated above, I find no merit in this appeal and accordingly the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.