High Court Punjab-Haryana High Court

Bhajan Singh vs Mohinder Kaur And Others on 24 August, 2009

Punjab-Haryana High Court
Bhajan Singh vs Mohinder Kaur And Others on 24 August, 2009
Civil Revision No. 5215 of 2008 (O&M)
                                                                               -1-

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH


                                 CM No. 19345-46-CII of 2008 and
                                 Civil Revision No. 5215 of 2008
                                 Date of decision: 24.08.2009


Bhajan Singh
                                                                     ....Petitioner


                                     versus


Mohinder Kaur and others
                                                               ....Respondents

CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA

Present: - Mr. B.D. Sharma, Advocate,
           for the petitioner.

                      ***

VINOD K. SHARMA, J. (ORAL)

CM No. 19345-CII of 2008

Allowed. The applicant-petitioner is exempted from filing the

certified copies of Annexures P-1 to P-3 and detailed affidavit, and is

permitted to place on record true typed copies of Annexure P1 to P3 and

permitted to file short affidavit.

CR No. 5215 of 2008 and CM No. 19346-CII of 2008

This revision petition is directed against the order dated

3.9.2008 passed by the learned District Judge, Jalandhar,accepting the

appeal filed by the defendant/respondents, against the order passed by

the learned trial Court, under Order 39 Rules 1 and 2 of the Code of

Civil Procedure.

The plaintiff/petitioner brought a suit for permanent
Civil Revision No. 5215 of 2008 (O&M)
-2-

injunction, restraining the defendant/respondents from dispossessing the

petitioner from one room, latrine and bathroom, which were said to be in

his possession being tenant.

The pleaded case of the petitioner was, that the property in

dispute i.e. house No. 35-A, Shantipura, Jalandhar, was owned by one

Smt. Pritam Kaur, who had rented out the same to Sh. Parkash Singh,

father of the petitioner, and husband of respondent No. 1 and father of

other respondents. The plaintiff/petitioner further pleaded that Parkash

Singh died in the year 1999, and after his death, the petitioner along with

other legal heirs, inherited the tenancy rights.

The suit was contested, wherein factum of tenancy created in

favour of Parkash Singh about 30 years back was not disputed. The

stand taken was, that defendant No. 1 was coming in possession of the

house in her own rights, as the tenancy came to an end when portion of

the building in dispute was transferred to her by Pritam Kaur-

landlord/owner.

The learned trial Court did not accept the plea taken by the

defendants, and found that there was prima facie case in favour of the

plaintiff/petitioner, as he was in possession of one room, latrine and

bathroom and was held entitled to protection of the Court from his

dispossession illegally, except with due process of law.

The learned appellate Court reversed the finding by recording

as under: –

“Before granting an ad-interim injunction, the learned
trial court was required to record its independent findings
on the issues of prima facie case, balance of convenience
and irreparable loss. The finding was recorded, only
Civil Revision No. 5215 of 2008 (O&M)
-3-

regarding irreparable loss and no finding was recorded
on the other two issues. In the absence of findings on
those two issues in favour of the plaintiff, such an ad
interim injunction could not have been granted. In the
first portion of the order, the learned trial court ordered
the learned trial court ordered the parties to maintain
statues quo regarding possession and in the next stroke of
the pen restrained the defendants from dispossessing the
plaintiff from this property. How there can be two such
contradictory orders. It is admitted fact that one
electricity connection is already installed in the house in
dispute. The defendants have been able to show prima
facie that defendant No. 1 was a tenant in this property
and after the same was given to her by the landlord she is
coming in possession therefore as owner. No other
electricity connection can be installed against her consent.
She submitted an affidavit for not giving electric
connection the name of the plaintiff and Photostat copy of
that affidavit is also on the record of the trial court. That
evidence was also ignored by the learned trial court while
deciding the application. The plaintiff has not been able
to show that he is in possession of the house in dispute as
a co tenant. It is defendant No. 1, who is coming in
possession thereof as owner. Therefore, it cannot be said
that there is any prima facie case in favour of the plaintiff
for the grant of ad interim injunction. When the plaintiff
has failed to prove any prima facie case in his favour, it
cannot be held that the absence of convenience is on his
side or that he would suffer irreparable loss in case ad-
interim injunction is not granted.”

The learned counsel for the petitioner has challenged the

impugned order primarily on the ground, that the learned lower appellate

Court mis-read the documents placed on record to come to the
Civil Revision No. 5215 of 2008 (O&M)
-4-

conclusion that the plaintiff had failed to prove the prima facie case, the

balance of convenience and irreparable loss and, therefore, was not

entitled to temporary injunction.

The contention of the learned counsel for the petitioner is, that

once the factum of tenancy in favour of Parkash Singh was admitted, and

it was also admitted that the plaintiff/petitioner was his son, he had right

of inheritance of the tenancy, even in case, the ownership of the property

was acquired by any third party, as he was still to continue as tenant by

way of inheritance.

The learned counsel for the petitioner further contends, that the

learned appellate Court erred in law in coming to the conclusion, that the

defendant/respondents were able to show prima facie, that defendant No.

1 was tenant in the property and after it was transferred to her by the

landlord, she was in possession thereof as owner. The finding of the

learned District Judge is based on Annexure P-2, which reads as under: –

“That Smt. Pritam Kaur wife of S. Harbans Singh is the
owner of the house No. 35 Shantipura, Jalandhar. That
now a new gate has been constructed on the western side
of this plot i.e. on the road side and said Smt. Mohinder
Kaur will use the gate for incoming and outgoing
purposes.”

The second document, on which reliance was placed, is

Annexure P-3, which reads as under: –

“Mohinder Kaur wife of Parkash Singh son of Kishan
Singh aged 42 years, housewife, resident of Shanti Pura,
Ladowali road, Jalandhar on S.A.

State that I tender Rs.910/- being rent from October, 1989
to April, 1990 at the rate of Rs.130/- per month, interest
Civil Revision No. 5215 of 2008 (O&M)
-5-

Rs.70/- and cost assessed by the court Rs.40/- totaling
Rs.1020/- (Rupees one thousand and twenty only)
Sd/- Mohinder Kaur
RO&AC Sd/- 26.7.90
Sd/-

Statement
Sh. B.S. Deol, Advocate counsel for the petitioner/N/o
Stated that I receive the rent under protest as it is
insufficient and invalid.”

The statements cannot be said to be documents of title, under

which the ownership could be transferred to Mohinder Kaur. The

petitioner proved his possession, by leading evidence, i.e. ration card and

electricity connection was also sanctioned in his name by the Punjab

State Electricity Board, in view of his possession.

The judgment of learned appellate Court is, thus, outcome of

mis-reading of documents and the pleading. The learned appellate Court

mis-applied law to reverse the findings recorded by learned trial Court.

For the reasons stated above, the revision is allowed, the

impugned order is set aside and the order passed by the learned trial

Court is restored, but with no order as to costs.

However, it is made clear that nothing stated above be taken to

be an opinion on the merits of the case.

Revision allowed.

(Vinod K. Sharma)
Judge
August 24, 2009
R.S.