K HEMCHAND SURANA Vs. MOOLCHAND MAHESWARI

JUDGEMENT

(1.) COMPENDIOUSLY and concisely the relevant facts absolutely necessary and germane for the disposal of A.No.1505 of 2010 application would run thus:

(2.) BEING aggrieved by and dis-satisfied with the order of the learned Master this application has been focussed on various grounds, the gist and kernal, the pith and marrow of them would run thus:(a) The Master, without considering the independent right of the obstructors as tenants in the suit property and without even giving an opportunity of marshalling evidence during the enquiry, which the Master was expected to conduct, the he simply dismissed the application by holding as though the obstructors were having no independent right over it. (b) To the knowledge of the decree holders, the obstructors entered into the property as sub-lessees under one Jothi and her husband Renganathan and they were not aware of the pendency of the suit, namely, C.S.N.435 of 1982. (c) The obstructors spent huge amount in modifying the structure of the property and also in maintaining it. (d) The obstructors are doing business in the premises and if they are summarily thrown away it would cause discomfiture and loss of money to them. (e) The obstructors are ready to pay the rent directly to the decree holders and continue in the premises.

(3.) BY way of torpedoing and pulverising the arguments as put forth on the side of the obstructors, the learned counsel for the decree holders advanced and set forth his arguments, the gist and kernal, the pith and marrow of the same would run thus:(i) Absolutely there is no whisper in the affidavit that there was collusion between the judgement debtors and the decree holders.(ii) It is a trite proposition of law that the presence or absence of knowledge about the pendency of the litigation is not at all germane for attracting the principle of lis pendens.(iii) Admittedly and indubitably during the pendency of the suit alone the obstructors claimed to have entered into the premises as sub-tenants under Jothi and her husband Renganathan. The fact remains that the property remains as the trust property and to that effect the Court gave its finding.(iv) One of the Trustees, namely, deceased Purushotamdas Chandak assuming himself as though he has got the right to lease the trust property, in is capacity as the alleged owner, leased it out in favour of the said Jothi, who allegedly sub-leased it in favour of the obstructors and the Court held that Purushotamdas Chandak himself has no right to lease out the property in favour of Jothi and it was a void one and ultimately whatever alleged right Jothi had to sub-lease, cannot subsist.(v) When Jothi herself had no right over the property, the obstructors claiming right under Jothi during the pendency of the litigation cannot project themselves as obstructors demanding for a regular trial with the meaning of Order 21 Rule 101 of C.P.C.Accordingly the learned counsel prays for the dismissal of the application.