N.K. Gilani vs Vinod Ahuja
1996 Latest Caselaw 9 Del

JUDGMENT

N.G. Nandi, J.

(1) In the suit for perpetual injunction, seeking to restrain the defendants from taking forcible possession of the tenancy premises of the plaintiff in respect of the property bearing No. B-228, Naraina Industrial Area, Phase-1, Nuraina. New Delhi and also from interfering in the peaceful enjoyment of the property by the plaintiff, in any manner, and also from disconnecting the electricity connection of the plaintiff from where the plaintiff is getting electricity for carrying on business in the tenancy premises of the plaintiff in the aforesaid property by Ia No. 2326/95 under Order 39 Rule 1 & 2 Civil Procedure Code, the plaintiff seeks to restraint the defendant in identical terms pending the hearing and disposal of the suit and by I.A. 3751/95 under Order 39 Rule 4 Cpc, the defendant prays for discharge/modification of the order dated 14.3.1995, granted by this court in Ia 2326/95.

(2) The say of the plaintiff is that the plaintiff is the sole proprietor of the business M/s. Poly Pads Industries and is running his business in premises bearing No. B-228, Naraina Industrial Area, Phase-I, Naraina, New Delhi as the tenant at the monthly rent of RS.1000.00 in respect of the portion of the said property since 1985; that the suit premises consists of two portions, inter-connecting each other and. in between the same, there is a door which gives the ingress and egress to each of the portion in the tenancy of the plaintiff, besides the open space, as shown Red in the site plan. Thus, according to the plaintiff, as the tenant of the suit premises, he is in lawful possession occupation of the same at the monthly rent of RS.1000.00 .

(3) The defendant, in the written statement, has contended that the plaintiff approached the defendant for letting out Room No.6, which is a L-shape room in 1986 and the defendant agreed to let nut the premises to him at a monthly rent of RS.1000.00 . The defendant has also produced the sketch showing various rooms/structure in the suit premises. It is the say of the defendant that plaintiff is in occupation in respect of Room No.6 as the tenant thereof and not in occupation of Room No.5, shown in the plan produced along with the written statement whereas, as pointed out above, the plaintiff also claims to be in possession of the open piece of land as the tenant thereof besides Room No.5 & 6.

(4) The plaintiff is admittedly in possession of Room No.5, according to the defendant from 1986 whereas according to the plaintiff from 1985. Admittedly, no rent receipts are passed by the defendant for the rent of RS.1000.00 per month, admittedly paid by the plaintiff. There is no rent note/lease deed suggesting the premises having been let by the defendant to the plaintiff. Thus, the question for prima-facie consideration is whether the plaintiff as tenant is in possession of one room or two rooms and the open space, as alleged by the plaintiff?

(5) It may be noted that the defendant got the local commissioner appointed for making the notes of the things existing at the suit premises. It may be seen that the Local Commissioner's report also contains his opinion with regard to the things found existing at the suit premises at the time of his visit. It is needless to say that the Local Commissioner appointed under Order 26 Civil Procedure Code, has not to express his own opinion relating to the things existing at the situ and that part of the Local Commissioner's report has to be excluded from consideration. The Local Commissioner, as suggested from his report, has also taken the photographs of the disputed premises,

(6) According to the notes made at page 23, photograph No. 1 is said to be the photograph of shutter of Room No.5 from passage/outside; photograph No.3 suggests the inventory of Room No.5; photographs 4 to 6 pertain to walls A and b of Room No.5; photograph No.7 is the door view from Room No.5 whereas photograph No.8 is the door view from Room No.6. It may be noted that the suit was filed on l0,3, 95, exparte orders passed on 14.3.95 and the local commissioner visited the disputed premises on 7.4.1995. Photographs No. 12 and 13 refer to the upper half of wall C and Wall E respectively of Room No.6 whereas photograph No.l4 is the view of Wall E of Room No.6, lower half.

(7) According to the defendant, during the night of 15/16-3-1995, i.e. after obtaining the orders on 14.3.1995, the plaintiff broke open the connecting wall between Rooms 5 & 6 and provided a door in the broken portions of the wall so as to connect Rooms 5 & 6 with each other. The plaintiff has produced the photocopy of the complaint alleged to have been filed by him in the police on 19.2.1994. It is submitted by Mr. Vinod Kumar, counsel for the defendant that the defendant is not aware of this complaint as the police did not inform the defendant about the same, in any manner. Perusal of the copy of aforesaid complaint suggests that the same is purported to have been filed by the tenants of the defendant, occupying different portions of the property at No.B-228, Naraina Industrial Area, Phase-1, Naraina, New Delhi. It is alleged in the complaint that the landlord Mr. Ahuja (the defendant) has been bringing persons of bad. elements, Gunddas for the last 15-20 days with weapons and have been extending threats to the tenants to vacate the premises and on 18.2.1994 also he brought Gunddas and threatened the tenants to vacate the premises within 8 days. The plaintiff has also produced the copy of the complaint dated 12.3.1994 purported to have been jointly filed by the plaintiff and other tenants to the S.H.O., Naraina, New Delhi alleging that they have been paying rent and electricity charges regularly to the landlord; that the landlord has been demanding the eviction since last 2-3 months, of the factory premises and has also threatened the tenants with dire consequences. It may be seen that as far as copies of the complaints dated 19.2.94 and 12.3.94 are concerned, they do not indicate as far as this suit is concerned, two rooms and the open space to be in possession of the plaintiff as the tenants thereof, as averred in the plaint.

(8) All that could be said, from these complaints, is that the defendant-landlord allegedly threatened the tenants and nothing further. It is pertinent to note that it is not the say of the plaintiff that the police took any action against the defendant on the basis of any of these complaints.

(9) The defendant has also produced the copies of the complaints dated 26.2.95, 6.3.95 and 16.3.95. In the complaint dated 26.2.95, the defendant has alleged threat to his life and kidnapping. In the complaint dated 6.3.95 the defendant alleged that after the assurance by the S.H.O. Naraina police station, the defendant resumed going to his factory and on 1.3.95 at 4 p.m. the plaintiff snatched away the keys of the car from the defendant and hit him hard. The copy of the complaint dt. 16.3.95, Annexure E, addressed to Sho, P.S. Naraina, alleges trespassing and theft of machinery, almirah, important documents by the plaintiff, and also that on 16.3.95 the defendant came to know that Mr. Narain Gilani (plaintiff), who is sharing the premises of the defendant, has broken the common wall between the two premises and has installed a door yesterday night. It is also suggested that the Fir has been lodged on 16.3.95 for the said offence against Mr, Narain Gilani by the defendant. Page 21 is the copy of Fir under Section 154 Criminal Procedure Code ., perusal of which suggests that the offence is registered at C R No. 78/95 on the basis of the accusation under Section 448, 380 and 506 Indian Penal Code and the place of occurrance shown is No.B-228, Naraina Industrial Area, Phase-1, Naraina, New Delhi. The date of incident is shown to be 16.3.1995. The defendant has produced the copy of the report of the Central Forensic Scientific Laboratory (CFSL), Perusal of the same suggests that two sealed parcels in connection with Fir No. 78/95 were sent by Narain Police Station, Delhi. All that could be said from this report of Cfsl is that the samples marked Ex. 1 & 2 were not found similar to each other in respect of their general physical characteristics and density grediants distribution of articles. In the submission of Mr. Vinod Kumar, counsel for the defendant, mortar was collected from the suit premises by the police in course of investigation of the complaint filed by the defendant against the plaintiff for the incident of breaking open the connecting wall and providing door therein. The above report does not suggest as to what was sent as sample to the Cfsl but it can certainly be said that some material must have been collected by the investigating agency in connection with the office registered vide Fir No. 78/95 and the same sent for analysis and report.

(10) It would be appreciated that the other tenants in the premises sworn in the affidavits on or about 20.5.95 supporting the defendant, thereafter they filed affidavits on or about 17.7.95 supporting the plaintiff and lastly they filed affidavits on or about 29.7.95 again supporting the defendant. All these affidavits filed by other tenants supporting defendant as well as the plaintiff, in my opinion, deserve to be discarded since the deponents thereof car- not be said to be reliable since they have been filing affidavits one after another to please the defendant and the plaintiff. I am, prima-facie, for the present limited purpose, not inclined to accept the say of Mr. Anand, counsel for the plaintiff that the other tenants filed affidavits supporting the defendant because defendant threatened the tenants as sought to be suggested from the complaint dated 19.2.94 and 12.3.94 for the reason that the deponents of all these affidavits are business people and ordinarily would not succumb to the threats given to them. On the contrary, it any, by the defendent, would antagonize the tenants and such tenants would file affidavits only supporting the plaintiff and not the defendant. I do not express any opinion at this stage with regard to the aforesaid affidavits and exclude the same from consideration for the present purpose.

(11) Some of the aforesaid photographs taken by the Lc during his visit to disputed premises suggest that the rear portion of the wall and the upper portion of the wall distinct from each other as visible from these phtographs. Copy of the complaint dated 16.3.95 on the basis of which offence has been registered at C.R. N0.78/95 and the investigation having commenced on that basis and the plaintiff having not been able to show prima-facie that he is in possession/occupation of the suit premises on the date of the suit, much less lawful occupation of the disputed premises, i.e. Room No.5, would dispel, prima-facie, the assertion of the plaintiff that he is in lawful occupation of the disputed premises, viz. Room No.5 and open piece of land in absence of any documentary evidence prima-facie establishing plaintiffs possession/occupation of disputed room as well as open piece of land.

(12) The copy of the complaint dated 16.3.95 prima facie suggests that the plaintiff was not in possession/enjoyment of the disputed premises at least on the date of the suit and prior thereto. It need hardly be said that the physical possession and enjoyment of the property by the trespasser unauthorised occupant would be required to be protected by suitable orders provided such unauthorised occupation/possession is of a long standing duration. In order to be entitled to the relief of injunction, the possession of the property must be referable to a lawful title provided the unauthorised possession is of long duration. In the instant case, the plaintiff has not been able to show prima facie his possession/occupation of the suit property referrable to possessory title of long standing duration though he may not be in lawful occupation of disputed premises/property. Looking to the facts and circumstances, as aforestated, in my opinion, the plaintiff would not be entitled to the equitable relief of injunction since he has not been able to substantiate his possession prima facie of the suit premises on the date of the suit or thereabout, and therefore, I.A. 2326/95 is liable to be dismissed and order dated 14.3.95 vacated. Consequently, Ia 3751/95 deserves to be granted.

(13) In the result, I.A. 2326/95 is dismissed, order dated 14.3.1995 is vacated and I.A. 3751/95 under Order 39 Rule 4 Civil Procedure Code is granted.