RSA No.1381 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1381 of 2010 Date of decision 29.9.2011. Avtar Singh ...... Appellant versus Rajinder Singh ...... Respondent. CORAM :- HON'BLE MR. JUSTICE K.C.PURI. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. M.S.Rakkar, Senior Advocate with Mr. Durgesh Aggarwal, Advocate for the appellant. K.C.PURI . J. Avtar Singh plaintiff-appellant has directed the present regular second appeal against the judgment and decree dated 9.12.2009 passed by Mrs. Archana Puri, Additional District Judge, Barnala vide which the appeal RSA No.1381 of 2010 2 filed by the plaintiff against the judgment and decree dated 2.8.2007 passed by Smt. Ramesh Kumari, Additional Civil Judge (Senior Division), Barnala was dismissed. 2. The case of the plaintiff in brief is that the plaintiff is a tenant in a shop in dispute under Shri Guru Singh Sabha, Barnala for the last about three years (from the date of filing the suit before trial Court ) and has been running the business of lamination and chappel store. Earlier the said shop was in possession of Gurmit Singh. Thereafter, with the consent of Shri Guru Singh Sabha, Barnala said Gurmit Singh delivered possession to the plaintiff and since then he is running the aforesaid business in the shop in question and is paying the bills of the electricity to the PSEB and rent to Shri Guru Singh Sabha, Barnala. The receipts were also handed over to the plaintiff. The defendant has no whatsoever concern with the shop in question but he is interfering in the peaceful possession of the plaintiff. Hence the suit. 3. On put to notice, defendant appeared in the Court and raised legal objections thereby disputing the locus standi and cause of action to the plaintiff and the suit is not maintainable in the present form and that the suit is bad for misjoinder and nonjoinder of the parties. Gurdwara Shri Guru Singh Sabha, Barnala is a necessary party to the suit. Gurmit Singh has also not been made party to the suit. The suit has been filed to cause harassment, as such, the defendant is entitled to special costs under Section 35-A, CPC. 4. On merits, it is admitted that Gurdwara Shri Guru Singh Sabha, Barnala is owner of disputed shop but all other averments are RSA No.1381 of 2010 3 denied. It has been specifically averred by defendant that Gurmit Singh was tenant under Gurdwara Shri Guru Singh Sabha, Barnala vide rent note dated 7.2.2000 at the monthly rent of Rs.800/-. Gurmit Singh vacated the shop on 1.9.2001 and delivered the possession to Manager of Gurdwara Shri Guru Singh Sabha, Barnala. The defendant took the demised shop on rent from 1.9.2001 from the Manager, Gurdwara Shri Guru Singh Sabha, Barnala. Defendant is in possession as tenant under Gurdwara Shri Guru Singh Sabha, Barnala. The note was also executed by the defendant in favour of Shri Guru Singh Sabha, Barnala, which was signed by the defendant and attested by Tara Singh Sewadar of Gurdwara Shri Guru Singh Sabha, Barnala and Gurnam Singh Sewadar along with Manager of Gurdwara Shri Guru Singh Sabha, Barnala. The defendant paid rent on 6.9.2001 for the month of September 2001 to the tune of Rs.1000/- vide receipt No.000003 to Gurdwara Shri Guru Singh Sabha, Barnala and the receipt was issued by Manager of Gurdwara Shri Guru Singh Sabha, Barnala and in this way the defendant is in possession as tenant. The plaintiff has no concern with the shop and he never came in possession neither he carried on any business nor he is carrying on business under the name and style of M/s Avtar Lamination and Chappel Store. Denying other averments, defendant/respondent prayed for dismissal of the suit. 5. Plaintiff filed replication to the written statement preferred by defendant, denying the averments of the written statement and reiterated those of the plaint. 6. From the pleadings of the parties, following issues were framed : - RSA No.1381 of 2010 4 1. Whether the plaintiff is entitled to permanent injunction as prayed for ?OPP 2. Whether the plaintiff has no concern with the property in dispute ? OPD 3. Whether the plaintiff is not in possession over the property in dispute ?OPD 4. Whether the suit of the plaintiff is bad for nonjoinder of necessary parties ? OPD 5. Whether the suit filed by the plaintiff just to harass the defendant, if so, its effect ?OPD 6. Relief. 7. The parties have led their respective evidence on the aforesaid issues. The learned trial Court after hearing the learned counsel for the parties and appraisal of the evidence available on the file, dismissed the suit of the plaintiff vide judgment and decree dated 2.8.2007. 8. Feeling dissatisfied with the aforesaid judgment and decree dated 2.8.2007, the plaintiff-appellant preferred appeal against the judgment and decree dated 2.8.2007. The First Appellate Court after hearing the learned counsel for the parties and re-appraisal of the evidence, dismissed the appeal vide judgment and decree dated 9.12.2009. 9. Feeling dissatisfied with the judgment and decree dated 2.8.2007 dated 2.8.2007 passed by the trial Court and judgment and decree dated 2.8.2007 dated 9.12.2009 passed by the First Appellate Court, the present regular second appeal has been filed before this Court. 10. The appellant in para No.5 of the grounds of appeal has mentioned that following law points are involved in the present appeal for RSA No.1381 of 2010 5 adjudication :- 1) Whether the injunction can be granted to a person who is admittedly in the unauthorized possession of the suit property ? ii) Whether the wrong appreciation of facts and law are sustainable in the eyes of law where admittedly, the plaintiff is in the possession of the suit property and court declined the relief of injunction ? iii) Whether the admission is the best evidence as per the provisions of Section 58 of the Indian Evidence Act ? iv) Whether the title of the parties can be decided in a mere suit for permanent injunction when the title was not in dispute between the parties ? 11. I have heard learned senior counsel for the appellant and have gone through the records of the case with his able assistance. 12. Learned counsel for the appellant has submitted that the trial Court has observed that appellant is licensee whereas the First Appellate Court has observed that appellant is trespasser over the suit property. Even if appellant is trespasser in that case he is entitled to injunction prayed for. The said finding is against the authority Rame Gowda (D) by L.Rs., vs. M.Varadappa Naidu (D) By L.Rs. And another AIR 2004 Supreme Court 4609. 13. Learned counsel for the appellant has further submitted that in a mere suit for injunction, title of the parties is not required to be decided. Admission is best evidence in view of Section 58 of the Evidence Act. The possession of the plaintiff/appellant over the suit property has been admitted by defendant and as such injunction should have been granted in favour of the appellant. RSA No.1381 of 2010 6 14. I have carefully considered the submissions made by learned senior counsel for the appellant and have gone through the file of the case. 15. There is concurrent finding of fact recorded by both the Courts below that shop in question was given on rent to Rajinder Singh. The rent receipt produced by the plaintiff are in favour of Rajinder Singh. Even rent note was executed by defendant in favour of Gurmit Singh on 6.9.1991. So, in view of that finding of fact, no ground for interference in the appeal is made out. The case of the defendant is that plaintiff used to work as helper in the shop of Gurmit Singh and Gurmit Singh used to pay the rent to Gurdwara Shri Guru Singh Sabha, Barnala through the plaintiff. The plaintiff never paid the rent to Gurdwara Shri Guru Singh Sabha, Barnala. It is the definite case of Surinder Kaur wife of defendant that she is running business of chapels in the demised shop. Plaintiff being related to the defendant offered to render his services as helper to the wife of the defendant and in lieu thereof, the wife of the defendant shall be paying some money to the plaintiff. So, that being a finding of fact cannot make out a case for grant of injunction. 16. So far as the authority Rame Gowda (D) by L.Rs' case(supra) is concerned in that case it has been held that a person in established possession is entitled to decree of injunction. There is no dispute to that proposition of law. The facts of the present case are altogether different. It is proved on the file that defendant has taken the shop on rent and the rent is being paid in the name of defendant. The case of the defendant is that wife of defendant is carrying on the business of Chapel Store and the plaintiff was merely helper. So, the helper cannot be said to be in possession of the RSA No.1381 of 2010 7 property. The explanation for having been found in possession of rent receipt has been given by the defendant. 17. Relief of injunction is an equitable relief and a person who is merely helper at the disputed premises is not entitled to injunction against the tenant. The appellant has no legal right to be in possession. The statement of defendant has to be read as a whole. No case is made out for drawing inference of possession in view of Section 58 of the Indian Evidence Act. There is no doubt that in a suit for injunction title of the property is not required to be determined but the plaintiff has to make out a case for grant of injunction. 18. In authority Sri Hanumanthappa vs. Sri Muninaryanappa reported in 1997(1) Civil Court Cases 90 (S.C.), the Hon'ble Apex Court has held that no injunction can be granted against the true owner. 19. In view of the above discussion, all the substantial questions raised above by the learned counsel for the appellant stand determined against the appellant and consequently the regular second appeal is without any merit and the same stands dismissed. 20. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 29, 2011 sv