- (1.) R. K. Mahajan, J. This is an appeal against the judgment and decree of Shri B. D. Agarwal, District Judge, Kanpur in Civil Appeal No. 335 of 1982 Satya Narain Mehrotra v. Smt. Shakuntala Kapoor. It is very interesting case.
(2.) THE following facts are undisputed. THE dispute relates to a portion on the ground floor comprising of one room, verandah, latrine and bath-room in premises No. 15/291-A, Civil Lines, Kanpur. Admittedly, Shri Surendra Nath Mehra was a tenant in this premises as per the finding of the two lower Courts. He left for Calcutta on 30th May, 1979 without the permission of the plaintiff with all bag and baggage as he wanted to start new evocation in his life there. Admittedly, the first floor portion of the building was under the tenan cy of the appellant-tenant since 1955 at the rate of Rs. 87. 50 per month. THE portion of the ground floor was left out in July, 1965 at the rate of Rs. 58. 50 per month. The case of the plaintiff is that after leaving, Shri Satya Narain Mehrotra, his brother with bad intention and to grab the portion of tenancy which were in possession of his brother and which he left after leaving for Calcutta started to get clean with an intent to get it occupied. The suit was filed on 31- 5- 1979 for perpetual injunction for entering and using the portion referred to above. The lower Court decreed the suit. The defendant appellant filed an appeal against the order of the Munsif, Havali dated 3-5-1982. The appellate Court dis missed the appeal vide order dated 6-8-1982. Being aggrieved the appellant filed the present Second Appeal. During the course of arguments the substantial ques tion Nos. 2, 4 and 5 mentioned in the memo of appeal have been framed as substantial questions of law, which are quoted as under:- "2. Whether the plaintiff-respondent being admittedly out of possession, the suit for mere injunction was maintainable? 4. Whether the theory of surrender of tenancy by Sri Surendra Nath Mehra as concocted by the plaintiff- respondent having been found to be incorrect and the tenancy of Sri Surendra Nath Mehra having been found to be continuing, a decree for injunction could have been legally granted against the defendant- appellant from entering into premises in any manner whatsoever even though there is no allegation or grievance on the part of the tenant Sri Surendra Nath Mehra ?
(3.) WHETHER the defendant-appellant being the joint tenant of the premises in dispute or in the alternative being in possession of the premises in dispute, a mere suit for injunction was main tainable or not? 5. The plea of the appellant is that he was a co-tenant with his brother which was repelled by both the Courts below by sound reasonings. Since this finding of fact is by two Courts and I find no illegality in the appraisal of evidence or discussing of some important documents while arriving on a conclusion regarding this finding. So this finding is not disturbed and is maintained. Shri Ranjeet Saxena, learned coun sel for the respondent has argued that both the Courts have given finding in favour of the respondent-plaintiff and the High Court should be reluctant to interfere.;