R.R.Misra - (1.) -The plaintiff-appellant has filed a civil suit for partition of the properties mentioned in schedules A and B of the plaint on the allegations that the properties mentioned in schedule A were ancestral properties and the properties mentioned in schedule B were self acquired properties of the father of the appellant. Shop No. 24/43, G. T. Road, Chhibramau, District Farrukhabad, was under the tenancy of the father of the plaintiff and the plaintiff inherited the said tenancy along with his brother Ganga Shanker, who is defendant No. 3 in the suit. Along with the suit the plaintiff had also filed an application for an interim injunction. Aforesaid defendant No. 3 filed an objection in the injunction matter without serving a copy on the plaintiff' or his counsel. The trial court, however, rejected the application for injunction vide order dated 10-9-1986 without giving an opportunity of filing any reply to the objection. The said order passed by the trial court forms subject matter of the First Appeal From Order filed in this Court which has been admitted. The plaintiff had also filed in the trial court an application for appointment of a Commissioner which was allowed. Since no objection was filed to the aforesaid report of the Commissioner the same became final.
(2.) GANGA Shanker, defendant No. 3, also moved an application before the trial court for eviction of the plaintiff from the shop in dispute. This application was rejected by the trial court vide order dated 18-9-1986. Since the aforesaid defendant No. 3 was threatening to dispossess the plaintiff from the shop in dispute the plaintiff appellant moved an application for stay of dispossession, as aforesaid. Ultimately, on 29-9-1986 a Division Bench of this Court passed the following order :- " Issue Notice. Meanwhile respondents are restrained from dispossessing the plaintiff appellant from the shop No. 24/43, G. T. Road, Chhibramau, District Farrukhabad. Sd/-N. D. Ojha, A.C.J. Sd/-R. P. Singh, J. " The contention raised before me by the plaintiff-appellant is that the aforesaid injunction order was duly served on the defendant-respondent No. 3 on 1-10-1986. A certified copy of the said order was also filed in the trial court on 3-10-1986. It is, however, submitted that despite the aforesaid injunction order passed against the respondent from dis-possessing the plaintiff from the shop in question on 29-9-1986 the respondent No. 3 and his son Akhileshwar Prasad at about 7 P. M. in the evening attacked the plaintiff-appellant with iron rods, lathis and inflicted heavy blows with the same on the appellant. Thereafter the respondent No. 3 and his son Akhileshwar Prasad took out the keys of the aforesaid shop from the pocket of the appellant and after locking the aforesaid shop ran away from the place of the occurrence, and that the respondent No. 3 is an influential person and is in hand-in-glove with local police. Besides the above, the aforesaid defendant No. 3 lodged a false first information report against the appellant and got the appellant arrested by police. The appellant also tried to lodge a first information report but the same was not registered by the Station Officer of Police Station Chhibramau. The appellant was thereafter released on bail. The appellant, however, made an application dated 31-10-1986 addressed to the Senior Superintendent of Police, Farrukhabad stating about the incident that took place and the fact that the Station Officer, police station Chhibramau had refused to register the first information report in question. A true copy of the aforesaid application dated 31-10-1986 has been filed as Annexure I to the affidavit dated 12-12-1986 filed by the appellant. No action was, however, taken on the aforesaid application of the appellant. The appellant has made an application dated 12-12-1986 in this Court praying for a direction for delivering back the possession of the shop in question which was obtained by force by the respondents after the date of grant of injunction order by this Court and for delivery of one set of keys of the aforesaid shop. This prayer for one set of keys has been made because admittedly in the shop in dispute there are two portions-one portion was occupied by the plaintiff and the other portion is occupied by the defendant No. 3. The entire shop has got a door and common lock and, therefore, the need arises for re-delivery of one set of keys of the aforesaid shop Sri Akhileshwar Prasad son of defendant No. 3 has filed a counter affidavit in the injunction matter in this Court and an application has also been moved for vacating the aforesaid injunction order. Rejoinder affidavits have been filed in regard to the injunction application as well as the aforesaid application dated 12-12-1986.
(3.) I have heard learned counsel for the parties. The application made by the plaintiff appellant for re-delivery of the keys and possession is sought to be opposed by Sri H. S. Nigam, learned counsel for the respondent on two grounds. The first is that the date of dis-possession is not known and secondly the answering respondent had no knowledge of the injunction order in question granted by the High Court and that the plaintiff-appellant has failed to impute knowledge to the respondent. In support of his submission that in the absence of the knowledge of the injunction order passed by this Court neither any liability can be fastened on the respondent nor any action can be taken against him-reliance is placed on the decision of the case of Mulraj v. Murti Raghunath Maharaj Ji, AIR 1967 SC 1386. In reply the learned counsel for the appellant does not dispute the ratio of the aforesaid decision of the Supreme Court. He submits that from the facts of this case it is amply clear that even on the date of the injunction order passed by this Court the plaintiff-appellant was in possession and has been dispossessed by force by the answering respondent on 29-10-1986, as aforesaid. Hence the plaintiff appellant is entitled for re-delivery of possession. "Secondly the defendant respondent had full knowledge of the injunction order granted by this Court as the same was served on him on 1-10-1986 i. e. long before the date of dispossession. Let me now examine the two rival contentions made by the parties. The first point that requires investigation is as to whether the plaintiff appellant was in possession even upto 29-9-1986 the date of passing of the injunction order by this Court. In this connection a perusal of the order dated 18-9-1986 passed by the trial court on the application moved by the defendant respondent No. 3 is relevant. A copy of the said order has been filed as Annexure VI to the affidavit dated 29-9-1986 filed by the appellant. The said order is reproduced below :- " Heard on 29D, 35C. 29-D has been moved by defendant No. 3 for evicting the plaintiff, and police aid as well. It is admitted fact that the rights of the parties have not finally been adjudicated by this Court. Further, no decree or the judgment has been decided by the court finally giving rights to the defendant to eject the plaintiff from the disputed shop. Besides, the present suit, for partition has been filed by the plaintiff hence if any relief regarding the eviction from the shop is required by the defendant No. 3, he should or can only do this after final adjudication of the rights in the suit or by filing fresh suit not otherwise, because it is admitted case of the defendant No. 3 that the plaintiff is still in the possession, it may be illegal as well. So proper stage will only come after final adjudication of the rights of the parties, therefore, 29-D is not maintainable at this stage. It is hereby rejected." ;