RAM CHANDER SHARMA Vs. SUSHIL KUMAR JAIN

JUDGEMENT

(1.) The main controversy in this appeal centres around the question who was in possession of shop No.1408, Gali Mandir Jhajjar Wala, Chandni Chowk, Delhi, at the relevant time, whether the appellants w.e.f. 25th March 1996, the day they purchased the shop, vide sale deed of even date, or the respondents who were tenants under the then landlord and were dispossessed by the appellants. The genesis and sequence of this case is as follows. Shri Surender Kumar Jain was a tenant in respect of the above said shop under the Vishnu Exchange Charitable Trust. On 19th November, 1994, the appellants filed a suit against him for possession claiming themselves to be the owners (idols plaintiffs 4 and 5 through their Priests/plaintiffs 1 to 3) of the shop. Appellants No. 1 to 3 were the plaintiffs No. 1 to 3 in that case. In April, 1995, the above said Surender Kumar Jain surrendered his possession. On 1st May, 1995, the Vishnu Exchange Charitable Trust inducted both the plaintiffs/respondents " Sushil Kumar Jain and Dinesh Kumar Jain " as tenants in the said shop at the rental of Rs.1000/- per month. In the meantime, the Vishnu Exchange Charitable Trust sold the said property vide sale deed dated 30th January, 1996 in favour of Smt. Babita Jain, who in turn sold the property in favour of the present appellants vide sale deed dated 25th March, 1996. On 4th January, 1999, the plaintiffs/respondents in this case sent a notice to the Vishnu Exchange Charitable Trust through an advocate which is proved on record as Ex.PW 2/3. The said notice was received vide AD card Ex.PW 2/5 and was responded through an advocate by the Vishnu Exchange Charitable Trust, vide reply Ex.PW2/6, wherein the Vishnu Exchange Charitable Trust had admitted the relationship of landlord and tenant between itself and the present respondents.

(2.) Now the suit filed by the present appellants on 19th November, 1994 deserves a look. It is interesting to note that the present appellants stated that they had acquired the possession of the shop since 25.03.1996/31.03.1996, yet, they continued with the Suit till the year 1999, meaning thereby they had not received the possession till the year 1999. The proceedings of the said Suit further reveal that on 4th January, 1999, Sushil Kumar Jain and Dinesh Kumar Jain moved an application for impleadment under Order 1 Rule 10 CPC. On 20th April, 1999, an application for withdrawal of the suit was filed by the present appellants. The case was then adjourned to 6th May, 1999, 14th July, 1999 and 6th August, 1999. It is surprising to note that on 6th August, 1999, counsel for the present appellants, Shri Prem Bihari Lal, made the following statement : "I am counsel for plaintiff in this case and I have instructions from his clients to make the present statement. My client does not want to pursue with the present suit, the same may kindly be dismissed as withdrawn." It is interesting to note that they did not state that the application moved by the respondents requires adjudication or that they had acquired the possession and therefore, they were withdrawing the suit.

(3.) The respondents used the said shop as godown. During the rainy season, the roof of the shop started leaking and the goods were removed from the shop. However, the shop remained in possession of the respondents and it was kept under lock and key. On 05.07.1999, when the respondents visited their shop, it transpired that the appellants had removed the locks of the respondents and in turn they put their own locks in the shop and dispossessed the respondents. The appellants wanted to dispossess the plaintiffs/respondents while working in cahoots with the local police. The false complaint was moved to the Commissioner of Police by defendants/ appellants on 02.07.1999. Under these circumstances, the instant suit for possession and permanent injunction restraining Smt. Babita Jain and present appellants from demolishing, making any structural changes and from transferring the possession of the shop to any other person was instituted on 14.07.1999.