SHEKHAR CHAND JOSHI Vs. MAHENDRA SINGH

JUDGEMENT

(1.) RAJESH Tandon, J. Heard Shri Sudhir Kumar and Shri Sarvesh Agarwal, counsel for the appel lant.

(2.) BY the present second appeal filed under Section 100 of Code of Civil Pro cedure, the appellant has prayed for set ting aside the judgment and decree dated 15. 4. 2006 passed by the District Judge, Nainital in civil appeal no. 18 of 2004 and the judgment and decree dated 23. 8. 2004 passed by the Civil Judge (Junior Division), Nainital in civil suit no. 03 of 2000 whereby the suit of the plaintiff has been partly decreed.

(3.) A written statement was filed by the defendants, whereby the plaintiff was admitted as a tenant on the ground floor. It was stated that according to the will of Prakash Chandra Chaterji, the property has vested in Sankat Mochan Hanuman Mandir Trust, Hanuman Garh, Nainital and, therefore, appeal no. 31 of 1990 was filed in collusion with Ashok Kumar Chaterji and the plaintiff, who was the de fendant in that suit. The compromise be tween them is wholly illegal. In paragraph 13 of the written statement, following averment has been made : Hindi 6. In paragraph 14 of the written statement, the defendants have stated as under. Hindi 7. The defendants have stated that the defendant no. 1 is authorized for the management of the trust and the defend ant no. 2 is authorized for legal function ing. Prakash Chandra Chaterji was resid ing in the temple as a pilgrim. The own ership of the property vested in the trust but Prakash Chandra Chaterji has given on rent four rooms of ground floor to the plaintiff. It has been alleged that the plain tiff has concealed the facts while filing the suit. Plaintiff is not entitled for any relief and he had no right to get the injunction against the true owner. 8. On the pleading of both the parties following issues were framed 9. While deciding issues no. 1, the trial court has recorded the finding that the plaintiff is not in possession of the first floor. 10. So far as issue nos. 2 and 3 are concerned, the trial court has recorded the finding that the plaintiff has failed to prove that the defendants have tried to dis possess him illegally and forcibly. 11. So far as issue no. 4 is con cerned, the trial court has recorded that on the ground of the will executed by the owner, Sankat Mochan Hanuman Mandir has become the owner of the property and Prakash Chandra Chaterji has no right in respect of property in dispute. 12. While deciding issue no. 6, it was held that the plaintiff was not the tenant of the entire premises. 13. On the basis of the aforesaid find ings, the suit was dismissed by the trial court so far as first floor is concerned. However, the plaintiff was safeguarded for eviction from the ground floor alone. 14. The plaintiff went in appeal. The appellate court has also recorded the find ing that the plaintiff was only the tenant of ground floor and the property has now been vested with Sankat Mochan Hanuman Mandir Trust and the compro mise between Ashok Kumar Chaterji and the plaintiff was null and void. 15. Both the courts below, therefore, have recorded the findings that plaintiff was the tenant only on the ground floor portion and not the first floor portion. 16. Counsel for the appellant has re ferred the judgment of Manomati Chethia and others u. Naren Pathak and others re ported in (2004) to Supreme Court Cases 146, where it has been held as under. "1. Though the matter has come up to this Court for the second time, yet, after hearing the learned counsel for the parties, we find yet another remand to the High Court unavoidably warranted. It is not disputed that the land form ing the subject-matter of these proceedings is governed by the provisions of the Assam Non-Ag ricultural Urban Areas Tenancy Act, 1955 (hereinafter "the Act" for short ). The respondent land lords initiated proceedings for ejectment which travelled up to the High Court. By order dated 31. 3. 1997, the High Court al lowed the appeal preferred by the landlords and directed the tenant to be evicted. The tenant pre ferred an appeal by special leave, which was disposed of by order dated 12. 1. 1998 by this Court; This Court held that inasmuch as the tenancy is governed by special enactment, a notice under Sec tion 106 of the Transfer of Prop erty Act was not required to be served before initiating the pro ceedings for ejectment. Having decided this controversy, this Court set aside the judgment of the High court and sent it back for decision on other points. This time again, the High Court has allowed the second appeal and set aside the judgment of the first appellate court, restoring the judgment of the trial court. 2. Having perused the judgment of the High Court dated 5. 5. 1998, we are satisfied that all the issues arising for decision between the parties have not received the at tention of the High Court and dealt with and disposed of in the impugned judgment. Even the questions of law framed by the High Court vide para 5 of its im pugned judgment do not specifi cally cover and set out those sub stantial questions of law on which the parties are litigating and this has occasioned a failure of jus tice. " 17. Aforesaid case law is not appli cable to the facts of the present case in asmuch as the appellate court has decided the appeal after considering the entire documents on the record. 18. In Mahadeo S. Dauhram Shelke and others v. Pune Municipal Corporation and another reported in (1995) 3 SCC 33, it has been held as under : "9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. " "their possession is unlawful and that therefore, they cannot seek any injunc tion against the rightful owner for evic tion them. There is thus neither bal ance of convenience nor irreparable in jury would be caused to the appel lants. " 10. In Woodroff s Law Relating to in junctions, 2nd revised and enlarged Edn. , 1992, at page 56 in para 30. 01, it is stated as under : "an injunction will only be granted to prevent the breach of an obligation (that is a duty enforceable by law) existing in favour of the applicant who must have a personal interest in the matter. In the first place, therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prina fade case in support of the title which he asserts. " 19. In view of the aforesaid decision of the Apex Court, no interference is re quired in the orders passed by the courts below while refusing to grant the injunc tion for the entire premises. 20. In view of the above, I find no substantial questions of law involved in the second appeal so as to interfere under Sec tion 100 of Code of Civil Procedure. Sec ond appeal, therefore, is dismissed under Order 41 Rule 11 of Code of Civil Proce dure. .