BHUPINDER SINGH Vs. MANPREET SINGH

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution challenges order dated 23.4.2003 passed by the learned Additional District Judge, Patiala concurring with the order dated 9.9.2003 passed by the Civil Judge (Sr. Division), Patiala partly dismissing the application of the plaintiff-petitioner for grant of ad interim injunction wherein prayer was made for restraining the defendant-respondent from interfering in his peaceful and exclusive possession of the staircase and the roof of the first floor or from using the same during the pendency of the suit.

(2.) FEW facts necessary for deciding the controversy raised are that the plaintiff-petitioner filed Civil Suit No. 273 dated 31.8.2002 seeking permanent injunction restraining the defendant-respondent or any one else on his behalf from interfering in his peaceful possession as a tenant of the shop in dispute or dispossessing the plaintiff-petitioner illegally and forcibly or from causing any damage to the aforementioned premises by effecting additions or alterations. An application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') was also filed praying that the plaintiff-petitioner has been running his business in the shop in dispute under the name and style of 'Mani Musico' and regularly paying the rent against the receipt. The rent for the month of July, 2002 had been paid by him at the rate of Rs. 1500/- and a photostat copy of the receipt was produced on the record. The defendant-respondent, has been running his business under the name and style of 'Handloom Palace' on the ground floor only without any basement. The staircase and the upper floors are in exclusive possession of the plaintiff-petitioner. It has further been alleged that the defendant- respondent has no approach to the upper floors in any manner because the only access to the upper floor was through the staircase which was built inside the rented premises and in possession of the plaintiff-petitioner. The defendant-respondent claimed that he had purchased the entire property and on the basis of the same became owner of the disputed premises.

(3.) MR . Vijay Sharma, learned counsel for the plaintiff-petitioner has argued that the plaintiff-petitioner is in exclusive possession of the staircase since December, 1994 as tenant under the previous owner Shri Dalip Singh and he continued to be so under the new owner i.e. the defendant-respondent. The learned counsel has invited my attention to the grounds of appeal wherein it is asserted that he has using the staircase 2-1/2' x 5' in front of the staircase on the ground floor as a sale counter for music cassettes and C.Ds. It has further been asserted that he has been paying the house tax of that premises since 1996 and a notice of house tax dated 2.1.1996 issued by the Municipal Council, Patiala has been placed on the record. Learned counsel has argued that the Additional District Judge has failed to advert to the argument of the plaintiff-petitioner showing that the vacant portion of the ground floor is part and parcel fo the rented premises under the plaintiff-petitioner because there is no other door for entrance to the first floor except the rolling shutter affixed on the staircase which is separate from the rolling shutter affixed on the shop of the defendant-respondent. It has further been mentioned that there is no other stipulation in the sale deed executed by the previous owner of the premises in favour of the defendant-respondent. The learned counsel has also placed reliance on various photographs which highlight the above mentioned factual position.