SANJAY SOOD Vs. ROSHAN LAL

JUDGEMENT

(1.) This is a petition filed under Article 227 of the Constitution of India by the petitioner -defendant against an order passed on 18th June, 2005 by the learned Civil Judge (Senior Division), Court No.1, Shimla, in Civil Suit No. 55/1 of 2004 filed by respondent No. 1 -plaiintiff. The order dated 18th June, 2005 impugned in this petition has been passed in CMA No. 36/6 of 2004 being an application for grant of temporary injunction filed under Order 39 Rules 1 and 2, read with Section 151, CPC in the aforesaid suit. By the impugned order, the learned Court below directed the parties in the aforesaid suit, being the petitioner -defendant herein, respondent No.1 - plaintiff herein and proforma defendant -respondent No.2 herein to maintain status quo qua the nature and possession of the suit land until the disposal of the suit.

(2.) It appears that between the parties dispute arose with respect to right and title of respondent -plaintiff Roshan Lal Bhardwaj qua the land in question as well as whether at any point of time before the filing of the suit (Suit No. 55/1 of 2004) he had been dispossessed from the land in question by the petitioner -defendant. The contention of the plaintiff -respondent No.1 is that on 28th April, 2004 the petitioner -defendant had dispossessed him from the suit land even though as on that date he was the tenant of the property in question and was in its lawful possession. The plaintiff -respondent No.1s grievance, therefore, was that since he was illegally dispossessed from the property in question on 28th April, 2004 and since he had filed a suit under Section 6 of the Specific Relief Act for claiming back the possession, the defendant -petitioner be restrained from raising any construction on or around the suit land, There are few important facts which deserve to be noticed in this case for their relevance to the issues involved for consideration by this Court.

(3.) Before filing suit No. 55/1 of 2004 from out of which the order impugned in this petition has arisen, plaintiff -respondent No.1 had filed suit No. 14/1 of 2004, which at the relevant time was pending in the Court of learned Civil Judge (Junior Division), Court No.2, Shimla. It is the undisputed case of the parties that this suit also related to the same subject matter, viz., the same piece of land, as formed the subject matter of Suit No. 55/1 of 2004. In this suit also the contention of plaintiff -respondent No.1 was that he was the tenant of the property in question and was in its possession and accordingly he had prayed for a decree of permanent prohibitory injunction against the defendant -petitioner. In this suit also the plaintiff -respondent No.1 had filed an application for temporary injunction. This application, however, was dismissed by the learned trial Court on 22nd May, 2004. While dismissing the temporary injunction application the learned trial Court in Civil Suit No. 14/1 of 2004 clearly held that the plaintiff -respondent No.1 before the purchase of the property in question by defendant -petitioner was neither its tenant nor was in its possession. Actually the Court went as far as to hold that as a result of an eviction petition filed against him earlier the plaintiff -respondent No.1 had been evicted from the property in question. The following observations in the order dated 22nd May, 2004 are apposite and I quote: - "3. The contention of the applicant is that he is a tenant of one Sushil Chand Puri with respect to 1 living room, I bathroom, 1 kitchen, 1 closet and 1 bed room and one balcony in the first floor of Irwin Lodge, Chaura Maidan, Shimla -4 and 1 room in the ground floor of Irwin Lodge, Chaura Maidan since 1974. As apart from the accommodation in the first floor and ground floor the applicant has been a tenant of Sh.Sushil Chand with respect of the Lawn measuring about one and half Biswas i.e. 40 feet x 13 -1/2 adjacent to the first floor of Irwin Lodge, Chaura Maidan, Shimla -4 in Khasra No. 635, Mohal Raj Bhavan, Tehsil and Distt. Shimla. On the other hand, it is a clear cut submission of the respondent that the applicant was the tenant of Sushil Chand occupied - i.e. 1 living room, 1 bed room, kitchen, 1 closet, 1 bathroom and 1 balcony as per the cause instituted by the previous owner Sushil Chand against the applicant in the year 1976. It is argued by the Id. Counsel for the respondent that the petitioner has been evicted by order of Id. Rent Controller (1), Shimla dated 31.3.1978 on the ground of arrears of rent. Therefore, form the cause (sic) perusal of the rent petition filed by Sushil Chand previous owner against the applicant, which is on the record and the order of the Id. Rent Controller, Shimla dated 31.3.1978, which is also on the record shows that the petitioner Roshan Lal Bhardwaj was ejected from the premises as first floor of Irwin Lodge Shimla consisting of 1 living room, 1 bed room, 1 kitchen, 1 closet, 1 bathroom and 1 balcony for arrear of rent. There is no reference that the Lawn adjacent to the Irwin Lodge was in the possession of the petitioner, nor there is any order of the Rent Controller to vacate the same. The applicant has miserably failed to establish at this stage that the lawn adjacent to Irwin Lodge measuring 40 feet x 13 feet in kahsra No. 635 was tenanted to him by the original owner Satish Chand. On the other hand, the sale deed executed by Sushil Chand on 12.4.2004 in favour of the respondent Sanjay Sood about khasra No. 635/4/1 measuring 223.30 sq. mete is on the record. From perusal of the sale deed, it also shows that the possession of the plot has been handed over to the purchaser Sanjay Sood. Secondly, Jamabandi on the record 1999 -2000 - shows that khasra No. 635/4/1 measuring 223.30 sq. meter is in the ownership of Sushil Chand and vide mutation No. 64 he sold to Sanjay Sood and mutation was duly sanctioned.