MOHINDER KUMAR Vs. YASH PAUL

JUDGEMENT

(1.) This is defendants' revision petition against whom ad interim injunction has been passed by both the Courts below.

(2.) The plaintiff Yash Paul, the sole proprietor of M/s Tirupati's (Mafat Lal Fabrics Show Room) filed the suit for a declaration to the effect that the plaintiff was the tenant in the shop in dispute, and was not liable to be dispossessed from the shop in execution of the decree dated 8.11.1986, obtained by the defendant Nos. 1 to 6, against defendant No. 7. The shop, in dispute, was originally mortgaged with one Hari Saran on 10.11.1957. Later on the same was mortgaged on 14.5.1968 with one Ram Nath. The defendants- mortgagors filed the suit for redemption against the said mortgagee in which a preliminary decree was passed in 1985 and the final decree was passed in November, 1986. When the mortgagors sought execution of the said decree the plaintiff filed the present suit that he was not liable to be ejected in execution of the said decree as he was in occupation of the shop, in dispute, as a tenant under the original mortgagor Brij Lal since 1968 and was continuing as such. It was also alleged that the rent of Rs. 1,000/- per month was being regularly paid up to 1986 but later on the same was not accepted. A receipt, alleged to have been executed by Brij Lal was also produced to prove the tenancy. Along with the suit, he also moved an application for ad interim injunction which was contested on behalf of the defendants on the plea that the plaintiff was never the tenant under the mortgagor Brij Lal and that the above said receipt was a forged one. The trial Court found that the plaintiff had prima facie proved that he was in possession of the shop, in dispute, even prior to 14.5.1968 and as such he had certainly got prima facie case and the balance of convenience also lay in his favour. Consequently, defendants Nos. 1 to 6 were restrained from dispossessing the plaintiff from the shop in dispute, till the decision of the suit. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and thus maintained the ad interim injunction granted by the trial Court.

(3.) The learned counsel for the petitioners submitted that the defendants could not be restrained from taking possession of the shop, in dispute, in execution of the decree. There was absolutely no evidence on the record to prove that the plaintiff was ever inducted as tenant by Brij Lal, mortgagor, who died on 2.11.1981. Only one receipt, dated 30.6.1981, has been produced on the record which according to the learned counsel, was a forged one. Apart from the said receipt, there was no evidence to show that the plaintiff was ever inducted as a tenant by Brij Lal. According to the learned counsel, he may be in occupation of the shop, in dispute, as a tenant under the mortgagee and on the redemption of the mortgage, they were entitled to take possession of the shop, in dispute.