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Bhushan Goswami & Another v. Kalandi Seva Trust & Another - FIRST APPEAL FROM ORDER No. 2729 of 2004 [2004] RD-AH 1249 (29 October 2004)


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(Court No. 10)

First Appeal From Order No. 2729 of 2004

Bhushan Goswami and another Vs. Kalandi Dewa Trust and another

Hon'ble A.K. Yog,J.

Hon'ble S.N.Srivastava,J.

(Delivered by Hon'ble A.K. Yog,J.)

Heard learned counsel for the plaintiffs-appellants and perused the record before us.

This First Appeal From Order arises from the impugned judgement and order dated 7-10-2004 passed by Civil Judge (Senior Division) Mathura in Original Suit No. 680 of 2002- Bhushan Goswami and another Vs. Kalandi Dewa Trust and another whereby the trial court has rejected ad-interim injunction application filed by the plaintiff-appellants.  

Copy of the plaint of the said suit has been filed as Annexure-1 to the affidavit sworn by Bhushan Goswami, appellant No.1  in support of the stay application in the present appeal (hereinafter called 'the affidavit'). Para-9 of the said plaint contains relief clause and translated in English reads:- "The defendants be dispossessed and plaintiffs be handed over possession of the vacant land (described in the plaint) with liberty to the defendants to take away super structure over the land in dispute."

Admittedly, the land in question was leased out in favour of the defendants originally by means of a document, executed on April 5,1986 (Annexure-1A to the affidavit) and subsequently a lease deed was again executed on December 4,1991(Annexure-5A to the affidavit), and  also got  duly registered. Aforesaid facts are evident from perusal of para-7 of the affidavit which reads:

"7.     That objections were filed by the defendants on the interim injunction application of the plaintiffs/appellants, on 21-8-2004 in which for the first time they clarified that registered deed in question was executed on 4-12-1991 and not on 9-12-1991 as stated in written statement. They also filed a certified copy of the registered lease-deed dated 4-12-1991 along with their objections. It was claimed by the defendants/respondents that as per lease deed dated 4-12-1991, they have every right either to demolish or construct any kind of building over the property in question. The true copy of the objection dated 21-8-2004 of the defendants/respondents (paper No. 26-Ga) is being annexed herewith and marked as Annexure No. 5 to this affidavit, the copy of alleged lease-deed dated 4-12-1991 is also being filed as Annexure No. 5-A to this affidavit, for ready reference."

In para-6 of the affidavit Appellant concedes that during pendency of the suit, the defendants/respondents started construction over the property in question on which they had already constructed four storied building and hence the plaintiff/appellants filed an injunction application (paper No. 23 Ga) for restraining the defendants from making such construction. For convenience, para-6 of the said affidavit is reproduced below:

"6.      That during the course of proceedings of the suit and after filing of replica by the plaintiffs, the defendants/ respondents started to make construction of a lift over the property in question on which they have already constructed four storied building and hence the plaintiffs/appellants filed an interim injunction application (paper no. 23-ga) for restraining the defendants from making such construction, by way of an application dated 6-7-2004 supported by an affidavit of the plaintiff no.1, the copies of which are being annexed herewith and marked as Annexure No. 4 and 4-A to this affidavit."

Trial court, after considering the respective contentions of the parties and material on record came to the conclusion that the plaintiffs have no prima facie case, there was no balance of convenience in favour of the plaintiffs and that  no irreparable loss will be suffered by the plaintiffs. On the basis of aforesaid conclusions, the trial court rejected  interim injunction application.

Perusal of  registered deed, dated 4-12-1991/Annexure-5A to the affidavit, shows that Lessee (the defendants) were granted right to  demolish  existing building and to raise  new constructions.

Para-3 of the said registered lease deed (as well as the earlier lease deed dated 5-4-1986/Annexure-1A to the affidavit), translated in English reads- Lessee shall have absolute rights to maintain or demolish existing construction or raise new construction on its site including letting out such building or put the same under their own use to which the lessor shall have no objection.

Perusal of the registered lease deed shows that Lessee has been granted unfettered right to demolish existing building and raise new constructions. There is no embargo or restriction on the power of lessee to construct buildings and to let them out or put to it to personal use. It includes right to install  lift as well. We find no illegality in the finding recorded by the court below to the effect that there is no prima facie case in favour of the plaintiffs.

Learned counsel for the appellants, however, submitted  that the trial court be asked to decide the suit expeditiously. We have presently no reason to doubt that  trial court shall not make all possible endeavour to decide the suit expeditiously.

There is no  merit in the Appeal.

Appeal is accordingly dismissed.  We make no order as to costs.

Dated: 27-10-2004/ALS


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