HUKUMCHAND Vs. GAJENDRA SINGH

JUDGEMENT

(1.) This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 5.3.2001 passed by Fourth Additional District Judge, Morena in Civil Appeal No.13-A/2000 thereby affirming the judgment and decree dated 29.2.2000 passed by First Civil Judge Class-II, Morena in Civil Suit No.115-A/1999 by which the suit filed by the respondent No.1 for declaration of title and permanent injunction has been decreed and it was held that the judgment and decree passed in favour of the appellants in Civil Suit No.88/1974 is not binding on the plaintiff/respondent No.1 and he cannot be evicted in execution of the said decree as well as the appellants have been permanently restrained from interfering with the peaceful possession of the property in dispute.

(2.) The necessary facts for the disposal of the present appeal in short are that the plaintiff Gajendra Singh-respondent No.1 and Brijnandan - respondent No.2 had filed a suit for declaration that they are in possession of the shop No.24 being the tenant of defendant No.4 Municipal Council, Morena and the judgment and decree of eviction passed in favour of defendants No.1 and 2/appellants, in Civil Suit No.88/1974 is not binding and they cannot be evicted on the basis of the said decree and it was also prayed that the appellants/defendants No.1 and 2 may be permanently restrained from executing the decree passed in Civil Suit No.88/1974 and from interfering with the peaceful possession of the plaintiff.

(3.) The necessary facts for the disposal of the present appeal in short are that the defendant No.4 had let out a shop to one Ramcharan. It was one of the condition that Ramcharan would not sublet the shop and since the same was violated and the shop was sublet to one Murarilal, therefore, the tenancy in favour of Ramcharan automatically stood cancelled and, accordingly, notice dated 10.10.1974 was sent to Ramcharan Lal which was refused by him and accordingly, the notice was affixed on the shop of Ramcharan Lal. Thereafter, Murarilal filed an application before the Municipal Council thereby pleading that the shop may be let out to him and since he was already in possession of the shop being the sub tenant of Ramcharan therefore, by resolution dated 2.9.1977 the shop in question was let out to Murarilal. Accordingly, an agreement was executed and Murarilal continued in possession of the shop. On 12.11.1980, said Murarilal filed an application before the Municipal Council, Morena expressing his intention to leave the shop and accordingly the tenancy of Murarilal was cancelled and thereafter the plaintiff No.1/respondent No.1 filed an application for grant of shop which was accepted by defendant No.4 by resolution dated 13.11.1980 and the plaintiff No.1/respondent No.1 was inducted as a tenant w.e.f. 13.11.1980. However in the meanwhile the appellants had filed a Civil Suit No.88/1974 against Murarilal for eviction without impleading the Municipal Council as defendant and obtained a decree. Since the Municipal Council was not party to the said civil suit, therefore, it is not binding on the Municipal Council, Morena. The appellants have also filed a suit against Municipal Council, Morena as well as Murarilal for declaration of title and permanent injunction which has been registered an Civil Suit No.182/1977 and is pending before the Court of Civil Judge Class-II, Morena by which the relief for declaration has been sought to the effect that the appellants/defendants No.1 and 2 are the tenants of the defendant No.4 Municipal Council, Morena. It was further pleaded that since the said suit is pending, therefore, the defendants No.1 and 2/appellants cannot execute the decree of eviction passed against Murarilal in Civil Suit No.88/1974. Thus the suit was filed for declaration that the defendants No.1 and 2/appellants are not entitled to execute the decree passed in Civil Suit No.88/1974 and a permanent injunction may be issued against the defendants No.1 and 2 that they should not proceed further with the execution and not to interfere with the peaceful possession of the property in dispute.