R.S.A.No. 1723 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1723 of 2009 Date of decision: 14.9.2009 Murari Lal and another ......Appellants Versus Mukesh Kumar and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Suresh Goel, Advocate, for the appellants. **** SABINA, J. Plaintiff Mukesh Kumar filed a suit for permanent injunction and declaration, which was decreed by the Additional Civil Judge (Sr.Divn.), Nabha vide judgment and decree dated 4.2.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Patiala vide judgment and decree dated 16.10.2008. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 of its judgment, are as under:- “2. The factual matrix of this case, as per the averments of the plaintiff is that the plaintiff the shop in dispute on rent at the rate of Rs.300/- per month from R.S.A.No. 1723 of 2009 2 defendant No.1 and that he is regularly paying the rent to defendant No.1, who had been issuing rent receipt to him. After taking the shop on rent, the plaintiff has spent huge amount on furnishing the same and making it suitable for running the business. The plaintiff started his business under the name and style of M/s Puja Trading Company and is still running the same in the shop in dispute, as such, the plaintiff is in possession of the shop in dispute. Now the plaintiff has come to know that the defendant No.2 has obtained ejectment order dated 23.9.1994 in collusion with Mohan Lal by misrepresenting the facts. In fact, Mohan Lal has never been in possession of the suit property for the last 22 years and he has not been heard off. The exparte ejectment order is illegal, null and void and not binding upon the rights of the plaintiff. Now bth the defendants have connived with each other to harass the tenancy rights of the plaintiff. The defendants have been threatening the plaintiff to dispossess him from the shop in dispute illegally and forcibly, for which they have got no right. Hence, the cause of action and the suit. 3. Defendant No.1 appeared, filed the written statement but has not contested the claim of the plaintiff and has admitted the possession of the plaintiff over the shop in dispute. R.S.A.No. 1723 of 2009 3 4. Defendant No.2 contested the suit by filing written statement stating that he has filed an execution application of the order dated 23.9.1994 in the case titled Murti Thakur Jai vs. Mohan Lal. The present suit has been filed only to obstruct the process of the Court and to delay the execution of the ejectment order. The plaintiff and defendant No.1 are real brothers and defendant No.1 has filed the suit in order to defeat the claim of defendant No.2. The defendant No.1 had filed an application under Order 1 Rule 10 CPC in the ejectment petition and the same was dismissed by the learned Rent Controller, Nabha vide order dated 8.4.1994. Civil revision petition against the said order was also dismissed by the Hon'ble High Court. In fact, the shop was under the tenancy of Mohan Lal. The property in dispute is the property of the religious institution and is being managed by the answering defendant in the capacity of Mohatmim. Initially Ram Dass was its Pujari who in his life time executed a Will in favour of his Chela Hari Dass and as such, Hari Dass became the Mohatmim of the said property. Hari Dass appointed Jagan Nath as his power of attorney who executed a registered Will in his favour but the same was cancelled lateron and the registered Will was R.S.A.No. 1723 of 2009 4 executed in favour of the answering defendant. 5. Defendant No.2 has specifically denied the tenancy of the plaintiff. In the premise, prayer was made for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is in possession of the suit property? OPP 2. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 3. Whether the plaintiff has got no locus standi and cause of action to file the suit? OPD 4. Relief. ” On 27.7.1996, additional Issue No.1 A was also framed as under:- 1-A Whether the eviction order dated 23.9.1994 passed by the R.C. Nabha, is illegal, null, void and not operative against the plaintiff? OPP After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The plaintiff had filed a suit for permanent injunction that he was in possession of the shop in dispute and the defendants be restrained from dispossessing him from the shop in dispute illegally R.S.A.No. 1723 of 2009 5 and forcibly. The ejectment order passed against Mohan Lal in ejectment petition filed by defendants No.2 and 3 could not be enforced against the plaintiff as the plaintiff was not a party to the said proceedings. Admittedly, the plaintiff is in possession of the shop in dispute. Both the Courts below, after appreciating the evidence on record, held that since the plaintiff was admittedly in possession of the shop in dispute, he could not be illegally dis- possessed from the same. Defendant No.2, while appearing in the witness box, admitted that the plaintiff was in possession of the shop in dispute. In these circumstances, the ejectment order, which was passed against Mohan Lal, on the basis of ejectment petition filed by defendants No.2 and 3 could not be enforced against the plaintiff. Defendant No.2 further admitted that Ashok Kumar had rented out the shop in dispute to the plaintiff and the plaintiff was running his business of pesticides and fertilizers in the shop. Defendant No.2, had, however, failed to prove the tenancy of Mohan Lal in the shop in dispute. In these circumstances, the judgments and decrees of the Courts below call for no interference. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 14, 2009 anita