SANKARA PILLAI MADHAVAN PILLAI Vs. INEZ ROSARIO

JUDGEMENT

(1.) The question that arises for determination in this Civil Revision Petition is whether the respondent plaintiff has made out a case for temporary injunction restraining the pctilioner-3rd defendant from entering upon the plaint property and conducting a tutorial college thereon and also restraining the petitioner disturbing the quiet possession of the respondent. The suit out of which the petition for temporary injunction arose was one for recovery of possession of the plaint schedule property and also for a mandatory injunction directing the defendants in the suit to demolish the 4 sheds erected on the property and by removing the same therefrom thereby giving vacant possession of the property to the respondent. Both the courts below granted the temporary injunction as prayed for. The decretal order passed by the Trial Court is couched in the following words: "The defendants are restrained from concluding any tutorial college in the 4 sheds constructed by the 3rd defendant. They arc also restrained from putting up any additional shed or from interfering with the possession of the plaint schedule property by the plaintiff."

(2.) It is admitted case that the petitioner is conducting a tutorial college in the above 4 sheds which were erected on the plaint schedule property. The plaint property belongs to the respondent. The original owner was his father, Peter Rosario, Since 1956, a tutorial college had been conducted in one of the buildings erected upon the properly by one Prabhakaran. While so, the petitioner got an assignment of that shed as per Ext. 134 in 1960. Thereafter, the petitioner executed a lease deed to the 4th defendant, who is the uncle of the respondent. The petitioner has been in possession under the renewed lease deed dated 24-1-60 on payment of Rs. 200 ground rent a year to the 4th defendant. 4th defendant was the agent of Peter Kosario, who left for Penang in 1959. In the meanwhile, he had assigned the property to the respondent who is his son. By that time the respondent and his father came back from Penang, the petitioner had executed Ext. P3 rent deed dated 29-4-66 in favour of the 4th defendant. The petitioner had also erected 3 more sheds for the conduct of the tutorial college. The ground rent under the latest arrangement was to pay Rs. 400 a year. There is no case that rent had not been paid to the 4th defendant. In Ext. P3 rent deed, which is produced by the respondent in court, it is stated that when Peter Rosario came back from Penang, the petitioner would surrender the property on demolition of the sheds erected by him upon the property. It is stated that Peter Rosario and the petitioner came back to this country in 1968 and demanded the petitioner to surrender the property. Since there was no surrender effected, the instant suit had been filed along with the application for temporary injunction. The question for us to consider is whether the respondent has made out a case for temporary injunction to be issued as prayed for against the petitioner.

(3.) A temporary injunction can be issued under O.39 R.1, Civil P. C. which reads as follows: