Prasenjit Mandal, J. - (1.) THIS application is at the instance of the defendant and is directed against the order dated December 18, 2010 passed by the learned Additional District Judge, 11th Court, Alipore in Misc. Appeal No.78 of 2010 arising out of the Title Suit No.860 of 2008.
(2.) THE plaintiff / opposite party herein instituted a suit for a decree of declaration that the defendant does not have any right, title and interest of whatsoever nature in any part or portion of the suit premises, save and except, the suit property, perpetual injunction restraining the defendant from encroaching upon any part or premises of the suit premises other than the suit property, that is, common areas, passage or compound of the suit premises by parking his car or allowing any third party to park cars in any other manner, mandatory injunction and other reliefs. THE defendant / petitioner herein is contesting the said suit. THE plaintiff / petitioner filed an application for temporary injunction and by Order No.29 dated January 5, 2010, the learned Trial Judge allowed the application under Order 39 Rules 1 and 2 of the C.P.C. on contest. Being aggrieved, the defendant filed the misc. appeal being Misc. Appeal No.78 of 2010 and the said misc. appeal was dismissed on contest with cost. Being aggrieved, the defendant has preferred this revisional application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that both the Courts below have given reasons in details in support of their respective conclusions with regard to the same matter. Under the circumstances, when reasons have been given in details in support of the concurrent findings by the Courts below and the same is not perverse at all, according to the decisions of State of Haryana and ors. v. Manoj Kumar reported in AIR 2010 SC 1779, the decision of Dipali Dey (Baxi) v. Mira Das reported in (2009)11 SCC 495 and the decision of Jamnabai Ramchandra Vadekar v. Modern Auto and Machinery Agency reported in (2000)10 SCC 573, the revisional Court in exercising the jurisdiction under Article 227 of the Constitution of India should not set aside such orders. Therefore, the impugned order should not be set aside and the revisional application should be dismissed. The matter in dispute involved in the suit is over the extent of tenancy. There is no dispute that the petitioner herein is a tenant under the plaintiff / opposite party in respect of the suit property as described in the schedule of the plaint measuring 900 square feet on the first floor of the premises. The question is whether the tenancy extends to the passage and the servants? quarter situated at the ground floor of the premises. Admittedly, the plaintiff company became the owner of the suit premises by purchase from the previous owner. The erstwhile owner issued the letter of attornment upon the tenant and the tenant received the said letter of attornment. So, there is no dispute as to the relationship of landlord and tenant between the parties. The defendant could not show any scrap of paper that his tenancy includes the servants? room and the passage on the ground floor to keep his vehicle etc. It may be pointed out that there are many other occupants in the suit premises and they are to use the said passage. So, if the vehicle of the petitioner is kept on the passage, it will certainly create inconvenience to all the occupants of the suit premises. Since, there is a claim on one side and a denial on the other side, a triable issue has been formed and such triable issue has to be decided at the time of trial. But, at present, I find that the tenant has failed to show any paper for which his stand with regard to the suit premises could be considered.
(3.) MR. S.P. Mukherjee appearing on behalf of the petitioner has referred to the decision of Dorab Cawasji Warden v. Coomi Sorab Warden and ors. reported in (1990) 2 SCC 117 particularly the paragraph nos.19 and 24, the decision of Metro Marins and anr. v. Bonus Watch Co. (P) Ltd. and ors. reported in (2004) 7 SCC 478 particularly paragraph no.9 on mandatory injunction and thus, he submits that the learned Lower Appellate Court should have rejected the prayer of the plaintiff for temporary injunction. On the other hand, Mr. Abhrajit Mitra, learned Advocate appearing on behalf of the opposite party has referred to the decision of Morarji Goculdas Deoji Trust and ors. v. Madhav Vithal Kudwa reported in AIR 1983 Bombay 68 and thus, he submits that the open space on the ground floor of the compound of the building cannot be said to be the appurtenant to the leased room as to constitute premises. Hence, the tenant could not claim any statutory right under Section 5(8) of the Bombay Rents, Hotel and Lodging Housing Rates Control Act, 1947 to park his car in the building compound.;