PRADEEP CHIMANAJIRAO RANE Vs. CHANDRAKANT RAGHUNATH MORE

JUDGEMENT

(1.) The appellant has filed the second appeal being aggrieved by the judgment and decree passed by the learned 6th Additional District Judge, Thane in Civil Appeal No. 193 of 1999 on 10.2.2004. This second appeal was admitted on 16.08.2012 and following is the substantial question of law framed at the time of admission of the second appeal.

(2.) The appellant, though succeeded in getting an order in his favour as regards the order of injunction still filed this appeal being aggrieved by the judgment and decree dated 17.9.1999 passed by the learned Civil Judge, Senior Division, Thane as also the judgment and decree dated 10.2.2004 passed in Civil Appeal No. 193 of 1999 by the learned District Judge at Thane on the ground that the prayer made by the appellant for restoration of possession in respect of the suit premises has been rejected by both the courts.

(3.) I have extensively heard learned Advocates on both sides. The appellant, after the service of the suit summons on the appellant appeared before the court and filed written statement. In the written statement the appellant took up a positive stand that the appellant was in possession of the suit premises on 15.10.1994 and that between the night of 16.10.1994 and 17.10.1994 at about 1.00 a.m. to 2.00 a.m. respondent dispossessed the appellant and took the possession in respect of the suit premises. On the strength of this stand, the appellant filed an application in the trial Court under Section 151 of the Code of Civil Procedure r/w. Section 39 of the Specific Relief Act. In the said application the appellant prayed that the order of status quo granted on 15.10.1994 in favour of the respondent be set aside. By prayer clause (b) it was prayed that the possession of the suit premises be restored to the appellant. It is required to be mentioned that the respondent instituted the suit on 15.10.1994 and applied for interim relief and order of status quo was granted so as to direct the parties to maintain status quo. The appellant claims that between the night of 16.10.1994 and 17.10.1994 the appellant was dispossessed. Possibly on account of this contention an application was filed as mentioned aforesaid. At the same time, the appellant did not file any counter claim for getting back the possession by making a specific prayer that the possession be restored.