DEV KANT Vs. HARBANS SINGH

JUDGEMENT

(1.) The petitioner, Dev kant, being dissatisfied with the orders passes by Sub Judge Ist Class, Faridkot dated 6.4.1990 vide which respondent Harbans Singh, was granted injunction against him during the pendency of the suit, and order passed by District Judge, confirming the one passed by the Sub Judge Ist Class dated 21.11.1990, has come to this Court by way of present revision petition.

(2.) The facts, which have been brought on the record of the case, may first be noticed.

(3.) The main contention of Mr. K.S. Brar, the learned counsel appearing for the petitioner, is that the present suit on the ground that the orders passed by Judicial Magistrate Ist Class, in maintenance proceeding were without jurisdiction, could not be gone into for simple reason that till such time plaintiff was able to make out prima facie case in favour of his tenancy, he would have no right whatsoever to challenge the said orders. The learned counsel further contends that prima facie finding with regard to tenancy of plaintiff has been returned by completely ignoring the facts and circumstances of the present case as also the most material documentary evidence that had come on the record of the case. A perusal of the orders impugned in the present revision petition would reveal that the Courts below relied upon receipts dated 8.9.1986, 8.10.1988 and 15.5.1989 which are said to have been executed by original owner in favour of the plaintiff evidencing tenancy of the plaintiff at the rate of Rs. 50/- per month with regard to shop in dispute. The Court below has also relied upon photostat copy of the agreement which said to have created tenancy in favour of the plaintiff and which is of 30.6.1986. The electricity bills which were still continuing in the name of original owner i.e, Pardeep Singh, were ignored in presence of the documentary, evidence aforesaid. The sale-deed dated 4.4.1988 vide which Pardeep Singh had sold the very shop in question to Sadhu Singh although on the record of the case was totally ignored and was not even mentioned in the entire orders. The learned counsel for the petitioner contends and rightly so that in so far as receipts dated 10.10.1988 and 15.5.1989 are concerned the same having come into existence after petitioner had purchased the shop in open auction, could not be relied upon inasmuch as the same were simply created with a view to prop up a case of tenancy. The other receipt dated 8.9.1986 and the alleged agreement dated 30.6.1986 were to be totally ignored in view of contents of sale-deed dated 4.4.1988, wherein Pardeep Singh clearly admitted that he was, as a matter of fact, in possession of the shop in dispute and had handed over the possession of the shop to Sadhu Singh to whom he admittedly sold the shop after the same was attached on 2.3.1988. It may be reiterated that the learned Courts did not consider the sale-deed dated 4.4.1988. or the contents thereafter. If, as per contents of the sale-deed dated 4.4.1988, Pardeep Singh himself was in possession, the receipt dated 8.9.1986, and agreement dated 30.6.1986 had necessarily to be held a made up affair. In the back-ground of the litigation, such a presumption had necessarily to be drawn. It is apparent on the face of the record that Pardeep Singh made all efforts to frustrate the orders passed by Judicial Magistrate Ist class in proceedings under Section 125 of the Code of Criminal Procedure. Admittedly, he sold the shop in dispute to Sadhu Singh even when the same was under attachment and when Sadhu Singh remained unsuccessful in obtaining any kind of relief and when his suit was dismissed, it was only thereafter that the present suit by plaintiff was filed and for the first time a plea of tenancy was raised. In case the plaintiff was actually a tenant and that too since 30.6.1986, as is his case, there was no question for him not to have agitated the matter, particularly when the said shop was put under attachment on 2.3.1988 and when the same was sold in open auction on 4. 4.1988. It is obvious that he must have derived knowledge of Court proceedings atleast when the shop was attached or at least when the same was sold on 4.4.1988. The very fact that the present suit came into being after Pardeep Singh sold it to Sadhu Singh and when Sadhu Singh also lost the litigation, points towards the facts that this is not an honest litigation. The learned Courts below completely lost sight of all the facts that have been narrated above and prima facie held in favour of tenancy and while doing so even ignored the main documentary evidence i,e. sale - deed dated 4.4.1988. The learned counsel appearing for respondent - plaintiff has been at pains to convince me that the receipt and the agreement reference of which has been given above, should be enough to conclude that the plaintiff is a tenant on the shop in dispute and that the recital in the sale-deed is only formal one. In the facts and circumstances of the present case, I am unable to persuade myself to hold that the recital in the sale-deed is a formal one. It is not only stated in the sale - deed aforesaid that Pardeep Singh is in possession but it is also stated that the possession of the same is being handed over to Sadhu Singh, vendee. In case there was a tenant sitting and that too about two years prior to the sale in question it ought to have been mentioned that only symbolic possessions being given for the reasons that the shop is already in occupation of tenant. Further the tenancy is of a shop located in a prosperous and developing town and the rent of the shop is stated to be only Rs. 50/-. This fact in itself militates against the creation of tenancy in 1988 for it is a matter of common knowledge that a shop located in a place like Faridkot could be easily rented out for atleast Rs. 500/- to Rs. 600/- in the year 1986. In so far as receipts and the agreement are concerned, I am convinced that the same were created with a view to prop-up a case of tenancy and to keep away the petitioner form obtaining possession.