Civil Revision No. 5215 of 2008 (O&M)
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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
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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
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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
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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
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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.