Decided on February 22,1983



- (1.) This is a second appeal filed by the original defendant of the Regular Civil Suit No. 663 of 1976 dismissed in his favour and against the present respondent by the learned Joint Civil Judge, Junior Division, Jamnagar, whose judgment had come- to be set aside by the learned District Judge in this respondent plaintiff's regular Civil Appeal No. 138 Of 1982 in the District Court at Jamnagar.
(2.) The respondent-plaintiff had filed the suit against the present appellant defendant for a declaration that it was she who was the tenant and occupier of a godown situated in the City of Jamnagar ever since about the year 1955 after the defendant had surrendered Us tenancy of the godown in favour of the landlord, that after her husband's death in the year 1973 she was paying rent to the landlord and was enjoying the property as a tenant and that the defendant, the elder brother of her late husband, was interfering with her possession and she had, therefore, prayed for a declaration of her status as a tenant in respect of the said godown and for An injunction restraining the defendant from interfering with her possession of the godown in question, During the pendency of the suit an injunction restraining the defendant from interfering with the possession of the plaintiff was granted and was operative. The learned trial Judge, however, dismissed the plaintiff's suit holding that the plaintiff had failed to prove that she was the tenant right from the time of her deceased husband Dahyalal. Obviously, with the dismissal of the suit, the interim injunction came to an end. The judgment of the learned trial Judge was pronounced on 30th June. 1982 and the appeal in question had come to be filed on 9th July, 1982. During this interregnum, i.e., period between the dismissal of the suit and the filing of the appeal, the defendant put some articles of his in the godown and applied his own locks on the godown and also fixed some iron stripes across the door, in order to tighten the security. The matter was heard by the learned District judge, who raised t he following two points for determination : "(1) Whether the learned trial Judge has erred in his judgment and decree under appeal. (2) If yes, whether the appellant Plaintiff is entitled to the mandatory injunction against the respondent-defendant as prayed for."
(3.) The learned District Judge held that the plaintiff was proved to be the tenant of the premises since the year 1955, that it was she who was paying the rent after her husband's death and before that her husband was paying the rent and that the defendant had, during the interval of above-mentioned 9 days, created obstruction in the plaintiff's possession. Therefore, the learned District Judge7 granted a mandatory injunction. The operative part of the learned Judge's judgment is reproduced below: "The suit of the plaintiff against the defendant is hereby decreed and it is hereby ordered and declared that the plaintiff is a tenant and in the possession of the premises under dispute. The defendant, is hereby ordered -and directed to remove the locks and the staples applied by him and to hand Over the possession of the premises to the plaintiff lady. The defendant, his servants and agents are hereby permanently restrain-. ed from entering into the above said godown or from interfering in any way in the possession, use and occupation and enjoyment of the above said suit godown by the plaintiff.";

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