RSA No.3715 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3715 of 2009 Decided on: December 23, 2009. Pardeep Kumar .. Appellant VERSUS Manjinder Singh and others .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.A.S.Gill, Advocate, for the appellant. M.M.S. BEDI, J. (ORAL) Defendant has preferred this second appeal against the decree for mandatory injunction passed by the Courts below against him directing him to hand over the vacant portion of the courtyard, office room and shed of factory of plaintiff-respondent installed in the plot in dispute mentioned in the heading of the plaint. ...1 RSA No.3715 of 2009 The plea of the plaintiff-respondent is that the property in dispute had been handed over in April 1993 to the defendant-appellant on account of friendly relations for a short duration when plaintiff (Tarlok Singh) suffered a heart attack. Defendant had installed furnace in the shed without the permission of the plaintiff and had not vacated on the request made by the plaintiff. The defendant had contested the suit mainly on the ground that the property in dispute had been rented out by Manjinder Singh son of Tarlok Singh at a monthly rent of Rs.1000/- in April 1993. Manjinder Singh used to receive the rent every month and once he took rent by cheque. Since the inception of the tenancy, M/s Palta Enterprises had been using the property in question as godown and for preparing oil. M/s Palta Enterprises is a partnership concern and that earlier a suit for injunction had been filed by said partnership firm in which the plaintiff and his son had made a statement that they would not interfere in the possession of the plaintiff implying thereby that plaintiff had admitted the defendant as a tenant. The property was never taken by Pardeep Kumar defendant but was taken on rent by firm M/s Palta Enterprises from the son of plaintiff and it was being used by by M/s Palta Enterprises. The Courts below on appreciation of evidence arrived at a finding of fact that the defendant was not a tenant but was licensee. A solitary cheque dated 21.09.1993 (EX.DW1/X), produced was an act of manipulation by incorporating words 'rent for two months' with an objective to give an impression regarding tenancy. ...2 RSA No.3715 of 2009 Learned counsel for the appellant has contended that in view of the fact that plaintiff enterprises being in possession of the property as tenant having been negated by son of Tarlok Singh, suit could not have been decreed against the defendant Pardeep Kumar as partner of said firm; tenancy of firm stands proved by statement of DW Naval Kishore; relationship of landlord and tenant of the said firm with son of plaintiff stands established; the Courts below have wrongly held that the entry in the cheque has been falsely incorporated. He also argued that suit should have been for possession for seeking recovery of the property and suit for mandatory injunction is not maintainable. I have heard counsel for the appellant, at length and even considered to some extent the evidence produced. The defendant-appellant no doubt had filed a suit for firm Palta Enterprises seeking injunction against the plaintiff and it was pleaded therein that firm was a tenant under Manjinder Singh but a written statement EX.P2 had been filed in the said case by the plaintiff. A statement was made by the plaintiff in the said case admitting the possession. With the assistance of counsel for the appellant, I have gone through the copy of the written statement filed on behalf of Tarlok Singh son of Manjinder Singh in the said case. In the written statement a specific plea has been raised denying the tenancy of M/s Palta Enterprises. It is pleaded therein that Pardeep Kukmar partner of said firm was a licensee. As possession of appellant was admitted, ...3 RSA No.3715 of 2009 the suit was decreed by order EX.DW3/10. The said decision will not, in any manner, create a relationship of landlord and tenant. The plea regarding the status of defendant not being a tenant was not adjudicated in the case. It was not held in the said case on merits that it was defendant who was tenant. When the rights have not been adjudicated, the earlier judgment cannot be read as a document indicating the relationship of defendant to the plaintiff as tenant. Courts below have considered the said fact and rightly held that there is no relationship of landlord and tenant between the defendant and plaintiff Tarlok Singh (now represented through his LRs). I have also considered the contention of learned counsel for the appellant that there has been misreading of the evidence as cheque dated 21.09.1993, cannot be fabricated as it came from the custody of the Bank. I do not find any force in the said contention. There is also no legal force in the contention of learned counsel for the appellant that instead of filing of suit for mandatory injunction, the plaintiff-respondent should have filed a suit for possession. A concurrent finding of fact by both the Courts below have been arrived at, on appreciation of evidence to the effect that the defendant-appellant is a licensee and that he has not been able to prove his tenancy. The relationship of Manjinder Singh and M/s Palta Enterprises, as landlord and tenant, has also not been proved by producing cogent evidence. The cheque dated ...4 RSA No.3715 of 2009 21.09.1993, has been held to be a tampered document. No substantial question of law arises in the present second appeal warranting interference. Dismissed. (M.M.S.BEDI) JUDGE December 23, 2009. rka ...5