Eviction--Forcible dispossession of tenant not permissible-Plaintiff has proved his tenancy right over the property-Relationship of landlord and tenant between the parties proved-Plaintiffs are entitled to seek injunction against their dispossession except by resorting to the provisions under the Rent Act

Vinod K.Sharma, J.

1. This Regular Second Appeal is directed against the judgment and decree dated 12.4.1994 passed by the learned Additional District Judge, Jind, in Civil Appeal No. 240 of 20.10.1993, vide which while reversing the judgment and decree dated 31.8.1993 passed by the learned trial Court, suit filed by the plaintiff-appellant herein was ordered to be dismissed.

2. The appellant-plaintiffs filed a suit for permanent injunction alleging that Ashok Kumar was a partner of M/s. Kali Ram Suresh Kumar, Safidon, and in the said firm, the other partners were Satish Kumar and Veena Gupta, who retired from the said firm on 31st March, 1984. As a result of the said withdrawal, the firm stood dissolved and Ashok Kumar alone took all the assets and liabilities of the said firm and thereafter constituted a new partnership firm under the name and style of M/s. Kali Ram Ashok Kumar after inducting Naresh Kumar and Bimla Devi as its new partners on 2.4.1984. The said new firm was registered with the Registrar of Firms, Haryana, Chandigarh.

3. M/s. Kali Ram Suresh Kumar, Safidon, took the shop bearing No. 102 situated in Ward No. 10, Grain Market, Safidon, on rent from Moti Ram, Prem Chand and Smt. Kailash Devi, widow of Kali Ram, on annual rent of Rs. 900/- (Rs. nine hundred). Moti Ram was said to be owner of 1/4th share in the said shop and Chalti Devi had half share and Smt. Kailash Devi was the owner of the remaining 1/4th share.

4. It was the case of the plaintiffs that they used to pay a sum of Rs. 675/- annually as rent to Moti Ram including share of Chalti Devi, as Moti Ram was her Mukhtiar-e-am and the remaining amount of Rs. 225/- used to be paid to Smt. Kailash Devi. Subsequently Sarvshri Moti Ram and Prem Chand became owners of the entire shop in a partition suit and therefore, they started giving threats of forcible dispossession of the appellant-plaintiffs without resorting to the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the `Act).

5. The suit was contested by raising a preliminary plea that the suit filed by the plaintiffs was mala fide, as Ashok Kumar, plaintiff, is son of Kailash Devi, who had 1/4th share in the shop in dispute and the said 1/4th share was purchased by her from its previous owners-Shri Banarsi Dass and his widow, who had purchased the said share from Indrawati, Rajinder Parshad and Sheela Devi. It was claimed that 3/4th share of the shop was mortgaged by Sarvshri Moti Ram and Prem Chand, defendants, with Giani Ram, who let out the shop in dispute to Banarsi Dass and his wife. The said Banarsi Dass and his wife later on purchased the share of Indrawati, Rajinder Parshad and Sheela Devi and occupied the suit premises as co-owners. Smt. Kailash Devi died and after her demise, her progeny i.e. six sons and two daughters became owners of 1/4th share being heirs of Smt. Kailash Devi and, therefore, the shop in dispute was being occupied by Ashok Kumar, as co-owner along with his brothers and sisters. The shop in dispute was sold in open auction through the Court and the bidders were the co-owners and Sarvshri Moti Ram and Prem Chand being the co-owners purchased the same for a sale consideration of Rs. 1,70,000/- (Rs. one lacs seventy thousand), out of which, a sum of Rs. 42,500/- (Rs. forty two thousand five hundred) being 1/4th share was deposited in the Court for disbursement to the co-owners and therefore, the defendant-respondents became full owners of the shop in dispute and thereby entitled to take possession of the same. It was denied that the shop in dispute was ever let out to the plaintiff-appellants herein.

6. On the pleadings of the parties, following issues were framed :-

"1. Whether M/s. Kali Ram Ashok Kumar is a registered partnership firm with Ashok Kumar as its partner ? OPP

2. Whether the plaintiffs occupied the premises in dispute as tenants and as such the possession of the plaintiffs over the premises is in the capacit