RAJESH MISHRA Vs. RAM VILAS SINGH KUSHWAHA

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution takes exception to the order passed by the trial Court dated 20.12.2013 whereby the application of the present petitioner/defendant preferred under Order 39 Rule 1 & 2 was rejected by the trial Court. The order passed in Miscellaneous Appeal No. 4/14 and 9/14is also called in question whereby the Lower Appellate Court in exercise of power under Order 43 Rule 1CPC passed injunction in favour of the respondent/plaintiff.

(2.) The necessary facts for adjudication of this order are that the respondent/plaintiff filed a suit for declaration and permanent injunction (Annexure P-3). Along with the said suit, he filed an application under Order 39 Rule 1 & 2 CPC (Annexure P-4). The present petitioner therein filed his counter claim and application under order 39 Rule 1 & 2 (Annexure P-5). In the said counter claim, he also prayed for grant of injunction. The trial Court heard the parties and passed the order dated 20.12.2013 (Annexure P-2).

(3.) Shri H.K.Shukla, learned counsel for the petitioner, submits that the property in question is situated at survey No. 1976, Gram Gospura. The said property is recorded in the revenue records in the name of petitioner's father, late Prem Narayan Mishra, who was a freedom fighter. It is the case of the petitioner that a rent agreement (Annexure P-10) was entered into between the petitioner and one Shri Sudhir Singh Parihar. As per the said agreement, the land in question was manned by said Sudhir Singh Parihar for some time. However, the said rent agreement came to an end on 31.3.2013. It is contended by Shri Shukla that on 2.10.2013 the respondent/defendant forcibly entered into the property and took possession of it. A complaint was lodged in police station Thatipur on 3.10.2013 (Annexure P-7). It was followed by other complaints seeking protection from the police authorities. These complaints dated 10.10.2013 (Annexure P-8) and 21.10.2013 (Annexure P-9) are placed on record. It is the case of the petitioner that the respondent/defendant was never engaged as a tenant and he had forcibly taken possession of the property. The same stand is taken in the counter claim and the counter application. Shri Shukla referred para 3 of the plaint filed by the plaintiff, wherein it is averred that the rent was regularly paid by him to the present petitioner and entry in this regard is mentioned in the diary kept by the plaintiff in the handwriting of the present petitioner. He submits that this best evidence was not produced before the courts below which shows that the whole story of plaintiff is concocted and like house of cards.