RAJENDRA KUMAR BANSAL Vs. DES RAJ BATRA

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 13.7.2006 which had endorsed the finding of the trial judge dated 15.12.2005 whereby the suit filed by the plaintiffs seeking mandatory and perpetual injunction against the defendants that they should be restrained from interfering in their possession qua the suit property had been decreed.

(2.) THERE are three plaintiffs in the present case. Plaintiff nos.1 and 2 claimed to be joint tenants in respect of two rooms on the first floor above shop No.4707 and 4849 on the eastern side staircase and one room and one kitchen on the first floor above shop No.4748 on the eastern side and common toilet on the ground floor. Plaintiff no.3 claimed himself to be tenant in respect of two rooms on the first floor on the western side of the stair case and common toilet and common staircase. Plaintiffs had taken on rent the aforenoted suit property from defendant no.1 w.e.f. 16.5.1991; rent receipts had been executed by defendant no.1. Plaintiffs were regularly paying the rent to the said defendant. On 01.5.1991 one Kailash Chand Jain an erstwhile tenant had surrendered the portions of his tenancy to defendant no.1. On 16.5.1991 defendant no.1 created a new tenancy in favour of the plaintiffs in respect of the portions which had fallen vacant pursuant to the vacation of the property by Kailash Chand Jain in addition to the portion already in the tenancy of the plaintiffs. On 16.9.1991, defendants no.2 and 3 contacted the plaintiff and told him to stop paying rent to defendant no.1 as interse disputes had arisen between defendant no.1 on the one hand and defendants no.2 and 3 on the other hand. Plaintiffs apprehended threats of dispossession; present suit was filed.

(3.) ORAL and documentary evidence was led. Plaintiff has examined himself as PW-1 and proved site plan of the portion which was under his tenancy as Ex.PW-1/1. His contention was that there was an oral tenancy between the parties. Suit property had been handed over to him on 16.5.1991. PW-2 has proved the rent receipts which have been executed in favour of the plaintiff which are Ex.PW-2/1 and Ex.PW-2/2; in spite of opportunity PW-2 was not cross-examined. The plaintiff had moved an application seeking permission to recall PW-2 which was dismissed. This was vide order dated 30.3.2005. This order has since become final as no appeal has been filed against the said order. The oral and documentary evidence was scrutinized by both the courts below. The impugned judgment had clearly noted that these rent receipts Ex.PW-2/1 and Ex.PW-2/2 had been issued by Vimlesh Bansal (defendant no.1) and showed the extent of the tenancy of Naresh Chand Jain i.e. the plaintiff no.3. Ex.PW-2/4 was the receipt of possession of the portion which was under the erstwhile tenant Kailash Chand Jain; Ex.PW-2/7 evidenced that Kailash Chand Jain had handed over the portions of his tenancy to defendant no.1. Ex.PW-1/2 to Ex.PW-1/12 evidenced that plaintiffs no.1 and 2 (namely Des Raj Batra and Baljit Kumar Batra) are tenants of one room on the first floor along with a kitchen; these receipts bear the signature of defendant no.1; court drew a categorical finding that there was no evidence to show that the aforenoted documents i.e. the rent receipts Ex.PW-1/2 to Ex.PW-1/12 and Ex.PW-2/1 and Ex.PW-2/2 were either forged or fabricated. Vimlesh Bansal is admittedly the daughter of Ram Bhagat Bansal. She was claiming her right in this suit property in terms of a will dated 30.11.1984. It has been admitted by the parties that this will has since been probated although appellants have filed an appeal against the said probate.