Amitava Lala, J. - (1.) -Being aggrieved by the order dated 26.2.2008, passed by the learned Civil Judge (Senior Division), Bareilly, appellants preferred this appeal.
(2.) THE plaintiffs instituted a suit in the court below praying inter alia as follows : (a) that by passing decree of prohibitory injunction, defendant No. 1 be restrained from causing any interference in the peaceful use and enjoyment of the plaintiffs over shop No. E-19, situated at ground floor of Butler Plaza Shopping Complex at 95, Civil Lines, Bareilly in any manner, either by pressurising them to make payment of rent or their forcible dispossession or alienation of the property on the strength of impugned sale-deed dated 8.2.2007, either by himself or through his agents, servants etc. Valued at Rs. 5,700 (being one years' rental) (b) That it be adjudged and declared that the sale-deed dated 8.2.2007 executed by defendant Nos. 3 and 4, after flouting the special P.O.A. executed by defendant No. 2 in their favour, in favour of defendant No. 1 (Prashant Arora) in respect of property situated at 95, Civil Lines, Bareilly popularly known as BUTLER PLAZA SHOPPING COMPLEX, registered in the office of S.R. Bareilly in book No. 1, Vol. 1779 on pages 205-1812 at Sl. No. 877 is null and void and inoperative and copy of the order be sent to S.R. Bareilly for appropriate notings in their records. Valued at Rs. 19,85,95,710 Court fee paid-Rs. 200 (c) Costs of suit be awarded to plaintiffs against defendants. (d) Such other relief in addition or in alternative as may be deemed proper and necessary may also be granted to the plaintiffs against the defendants. The grievance of the plaintiffs-appellants is that the court below has rejected the plaint in terms of prayer (b) under Order VII, Rule 11 (a) and returned the plaint in terms of prayer (a) to be heard by the appropriate Court under Order VII, Rule 10 of the Code of Civil Procedure (hereinafter called as 'C.P.C.'). Mr. Amit Saxena learned counsel appearing in support of the appellants, contended that neither any application for rejection or return of the plaint is made by the defendants/ respondents nor the rejection or return of the plaint can be made partial.
(3.) IT appears from the plaint that the plaintiffs/appellants have claimed to be the tenants under registered lease deed dated 11th April, 1991 in respect of a shop situated at the ground floor of Shopping Complex at Bareilly. The landlord is a society registered under Societies Registration Act, 1860, and a public trust registered under Bombay Public Trust Act, 1950, having its registered office at Mumbai. The shopping complex belongs to society and the trust, as such any sale or transfer cannot be made without obtaining permission from the Charity Commissioner, Bombay under Bombay Public Trust Act, 1950. IT has been done by the defendant/respondent Nos. 3 and 4 by misconstruing the special power-of-attorney dated 27th November, 2006, by executing sale deed in favour of defendant No. 1. On inquiry, the Charity Commissioner, Bombay, has informed in writing that no permission has been obtained by the defendant Nos. 3 and 4/respondents. Consequently, a charge-sheet in a case crime has been filed against them for such unlawful acts. On the strength of such void transfer dated 8.2.2007, the defendant No. 1/ respondent has pressurised and still pressurising and threatening the plaintiffs-appellants for forcible dispossession, which gives cause of action to institute the suit. According to us it is necessary to quote Section 116 of the Indian Evidence Act, 1872 at first hereunder to understand the legal right of the plaintiffs : "Estoppel of tenant and of licensee of person in possession.-No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property ; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had title to such possession at the time when such licence was given.";