SAHBAN KHAN Vs. RAJENDRA PRASAD SRIVASTAVA

JUDGEMENT

(1.) Impugned herein in the judgment dated 25th May 2004 passed by Addl. District Judge (Varanasi (Court No. 1). By means of the impugned order passed in Civil Misc. Appeal No. 29 of 2004, the appellate Court, set aside the order of the trial Court i.e. Civil Judge (J.D.) City Varanasi, granting interim injunction in favour of the plaintiff.

(2.) The factual matrix in its essentials may be stated. The plaintiff instituted a suit for the relief of permanent injunction seeking to restraint the defendants from interfering with the possession of the house in question i.e. House No. S-18/205 situated in Mohalla Raja Bazar in the City of Varanasi. The grounds set out in the plaint were that the plaintiff was a joint tenant along with one Mustafa but the rent was paid in the name of Mustafa for the last 60 years. Mustafa breathed his last and his sons subsequently vacated the portions of premises in their possession and the entire house including vacated portions of the premises was taken possession of by the plaintiff and his family. It has been set out in the plaint that the plaintiff cannot be ejected otherwise than in accordance with law. It is also stated in the plaint that the plaintiff is willing and ready to pay rent or in the alternative, to purchase the premises in question.

(3.) While instituting suit, the plaintiff also filed application for injunction attended with an affidavit, which embodies self-same allegations as contained in the plaint. In the counter-affidavit to the affidavit filed in support of injunction application, it was specifically pleaded by the defendants that Mustafa alone was tenant and plaintiff was merely caretaker/servant of Mustafa and that Mustafa and his family have already vacated the premises. It was further stated that after the death of Mustafa, his son became tenant who paid rent but thereafter they vacated the premises on 21-2-2003. It was further stated that the plaintiff who was a mere caretaker/servant in the said house, refused to hand-over possession and instead instituted the suit for permanent injunction. It was further stated that the house in question was being used by the tenant and plaintiff for residential purposes and the grandsons of the plaintiff started a venture dealing in batteries which has resulted in corrosion and substantial damage to the house in question. It was further stated that the plaintiff w^s neither tenant nor he paid any rent and he was occupying the premises as trespasser. It was also stated that on vacation of the premises by original tenant, he began occupying those portions vacated by the sons of Mustafa which he had no right to retain with him as trespasser.