BAL RAJ SAHNI Vs. KRISHAN KUMAR & OTHERS

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 16.9.2003 rendered by the learned District Judge, Una in Civil Appeal No.43 of 1999.

(2.) Material facts necessary for the adjudication of this Regular Second Appeal are that plaintiff-respondent (hereinafter referred to as ''plaintiff'' for convenience sake) instituted a suit for permanent injunction against Krishan Gopal Khazanchi and Raj Kumar, defendants No.1 and 2 (hereinafter referred to as ''defendants No.1 and 2'' for convenience sake) as mentioned in the trial court. According to the averments contained in the plaint, Krishan Gopal Khazanchi, defendant No.1, was owner of the shop and the plaintiff was in possession as tenant in the disputed shop on monthly rent of Rs.150/- since 1975. He had been running the business of iron merchant and hardware goods. He had paid rent upto July, 1988, but defendant No.1 did not issue the receipt from March, 1988 to July, 1988. According to the averments contained in the plaint, defendants No.1 and 2, Krishan Gopal Khazanchi and Raj Kumar had joined hands with each other with the sole aim to eject the plaintiff forcibly from the disputed shop and were also threatening to cut the locks put by the plaintiff. During the pendency of the suit, the shop was leased out by Krishan Gopal Khazanchi to defendant No.3 Bal Raj Sahni, who was subsequently added as party by moving an application under order 1 rule 10 of the Code of Civil Procedure on 19.2.1993. This application was allowed on 14.5.1993. According to the plaintiff, goods lying in the shop were also removed by defendant No.1 in connivance with defendant No.3, namely, Bal Raj Sahni. In these circumstances, the plaintiff has prayed for injunction restraining the defendants from ousting him and taking forcible possession of the suit property and to grant any such relief as court may deem fit.

(3.) Defendant No.1 contested the suit. According to him, the shop remained closed for 7 years. The plaintiff and his father came to him and told that they have closed their business for the last 1 years and they no more require the demised premises and in case the defendants pay Rs.20,000/- as Pagari'' and give up the rent from March, 1988 to May, 1988, the plaintiff was ready to relinquish the tenancy and to give up the vacant possession of the premises. Defendant No.1 paid a sum of Rs.20,000/- in cash to the plaintiff and also gave up rent of three months without getting any receipt. Plaintiff and his father on the same day sold the iron articles to Kawaries and wooden fittings to Achhar Singh, who appeared as DW-4. Thereafter, defendant No.1 rented out the premises in dispute to Harmail Singh on 8.1.1988 @ Rs. 600/- per month and the rent deed Ex. D-1 was executed on 8.8.1988. Harmail Singh remained in possession of the shop in dispute for a period of six months and thereafter handed over the vacant possession to defendant No.1. Thereafter Bal Raj Sahni came in possession of the shop and was running his business. Initially, the issues were framed on 27.8.1992 and thereafter more issues were framed on 10.5.1995.