JUDGMENT :

S.K. Keshote, J.

Rule. Mr. Amin waives service of Rule on behalf of respondents.

2. This revision application is filed under Section 115 of the Civil Procedure Code, 1908, by the plaintiff challenging therein, the orders passed by the appellate Bench of the Small Causes Court, Ahmedabad, in Appeal From Order No. 76 of 1999 dated 14.10.99 confirming thereunder the order passed by the Small Causes Court, Ahmedabad, below ex.5 in H.R.P. Suit No. 224 of 1999 dated 22nd June 1999.

3. The learned trial court granted temporary injunction in favour of plaintiff restraining thereunder the respondents from taking forcefully the possession of cellar, ground floor and first floor. So far the prayer made for temporary injunction in respect of second floor and third floor of the property is concerned, the injunction was not granted. This order has been confirmed by the appellate court and hence this revision application.

4. The learned counsel for the petitioner contended that once both the courts have found as a fact that the plaintiff is in possession of the second and third floor of the disputed property, during the pendency of the suit, this position should have been maintained. It has next been contended that the plaintiff-petitioner has come up with a case that whole of the property was let out to the plaintiff by respondents-landlords and even if the defendants-landlords are not accepting the tenancy rights of the plaintiff in the second and third floor, when the possession was found of these two floors with the plaintiff, the same should have been protected. Lastly, it is contended that even in a case of rank trespasser, the landlords cannot be permitted to dispossess the trespasser from the disputed property by force. In support of this contention, Mr.Shah placed reliance on the following decisions:

* Ramshree Mahavir v. Girdharilal Bholanath Agarwal - 1970 GLR 971

* B.N. Trivedi & Ors. v. Govt. of Gujarat & Ors. - 1994 GLT 395

* N. Umapathy v. B.V. Muniyappa - AIR 1997 SC 2467

* Prataprai N. Kothari v. John Braganza - AIR 1999 SC 1666

5. Mr. D.F. Amin, learned counsel for defendants-respondents in contra, contended that both the courts have concurrently held that the plaintiff is not the tenant in the portion of the suit property, i.e. second and third floor and his possession was found to be illegal, i.e. as trespasser and rightly, no injunction has been granted. It has next been contended that trespassers have no right to obtain injunction or to protect their possession. The decisions on which reliance is placed by learned counsel for petitioner have been overruled by the of Hon'ble Supreme Court. In support of his contention, he placed reliance on the following decisions of this court as well as of Hon'ble Supreme Court:

Rukhiben w/o. Amarsingh Chaturbhai Parmar v. Kiritkumar Kantilal Patel - 1997(3) SCC 2383

Premji Ratansey Shah & ors. v. Union of India & Ors. - (1994)5 SCC 547

Anupam Rekdi Cabin Association v. Jamnagar Municipal Corporation - 1995(1) GLH 586

Tamil Nadu Housing Board v. A. Viswam - (1996)8 SCC 259

Sukhlal Ramchand & anr. v. Lalji Ranchhod - 8 GLT 48

K.V. Narayan v. S. Sharna Gowda & anr. - AIR 1986 Karnataka 77

State of Jammu & Kashmir & anr. v. Ghulam Rasool & anr., AIR 1979 J&K 53.

6. I have given my thoughtful considerations to the submissions made by learned counsel for the parties.

7. Both the courts have concurrently recorded a finding of fact that the second and third floor were not let out to the plaintiff-petitioner. Cellar, ground floor and first floor were held to be the tenanted premises. Both the courts have further concurrently held that the plaintiff-petitioner has failed to prove, viz. legal possession on the second and third floor of the suit premises. After recording these concurrent findings of facts, the learned trial court as well as the first appellate court have restrained the defendants-respondents from dispossessing forcefully the plaintiff-petitioner from the tenanted premises, namely cellar,