VIJAY KUMAR Vs. B K THAPPER

JUDGEMENT

(1.) THIS judgment will govern the disposal of two applications: one dated 19 -5 -1975 and the other dated 20 -5 -1975 made by defendants 2 &1 respectively.

(2.) IT will be necessary to give a few facts in order to appreciate the questions that have to be determined in these applications. The plaintiffs, Vijay Kumar and Dharmath Trust, have brought a suit for declaration with a consequential relief for injunction and, in the alternative, for eviction of the defendants from the suit property. The suit property consists of a theatre known as Hari Talkies including its talkie equipment. Plaintiff No. 2. Dhiirmarth Trust had leased it out to the defendants for a fixed term which expired on 30 -9 -1974. By a lease deed dated 27 -9 -1974 Dharmarth Trust leased out the suit property to Mr. Vijay Kumar, plaintiff No .1, for period of ten years commencing from 2 -10 -1974. There was a dispute about possession between the parties, the plaintiffs asserting that the defendants had once voluntarily surrendered the possession and then staged come back forcibly and the defendants denying the same. The dispute became the subject of proceedings under section 145 Cr. P.C. The proceedings terminated in favor of the defendants. During the pendency of the said proceedings the plaintiffs brought the present suit. Their case was that the plaintiff No. 1, Vijay Kumar, was in possession as a lease under plaintiff No. 2, Dharmarth Trust, after the possession was surrendered by the defendants and that he was entitled to continue in possession without any disturbance by the defendants or their employees or servants. Their alternative case was that in the event of the possession being deemed to be that of the defendants, they were still entitled to the relief for ejectment of -the defendants, as the defendants had ceased to have any right or title to retain the possession, the reason being that the period of the lease in favor of the defendants having expired, they were not entitled to continue in possession unless their tenancy was protected by the Rent Control Law, which it was not, as they did not fulfill the requirements of such law for such protection. In reply the defendants denied that they had ever surrendered the possession and added that they were entitled to continue in possession by virtue of the Rent Control Law. They also raised some technical pleas, one of them being that the suit for declaration and injunction was not maintainable in view of the judgment of the Sub -Registrar, Judicial Magistrate, Jammu, under section 145 Cr. P.C. and, the second being that the lease deed in favor of plaintiff No. 1 was not valid as it violated the constitution of the Dhar -marth and was also not duly stamped according to the Stamp Act and the Rules made there under.

(3.) ON the pleadings a number of issues were joined between the parties by order dated April 1, 1975 and the defendants were asked to lead their evidence. On 18 -4 -1975 the defendants made an application praying that issues 1 to 4 be tried as preliminary issues. These issues are as under: -