# Sadare Alam & Ors v. Ram Awadh & Ors

- **Citation:** (2022) 9 ILRA 744
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-25
- **Case number:** Matters Under Article 227 No. 636 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sadare-alam-ors-v-ram-awadh-ors-49271
- **Pages:** 9

## Headnote

Civil Law- Transfer of Property Act, 1882 -
Sections 105 & 106- Whether permission
granted by the petitioners-plaintiffs to
respondents-defendants
(first
set)
on
Rs.100/- on non-judicial stamp is a lease
or not- Said permission lacks essential
ingredients of lease since there is no
recitation in the said permission as to
what is the premium or rent to be paid by
the respondents-defendants (first set) to
the petitioners-plaintiffs and respondentsdefendants (second set) in lieu of transfer
of suit property.The permission dated
28.11.2019 being termed as 'lease' by the
respondents-defendants (first set) is not a
lease- The question of giving notice
contemplated under Section 106 of the
Act, 1882 arises only when a valid lease
was executed between the parties- the
appellate court has erred in holding that
notice under Section 106 of the Act, 1882
was mandatory before the institution of
the suit by the petitioners-plaintiffs.

In order to be termed as a lease, rent or
premium is one of the essential ingredients and
mere permission without any rent or premium
cannot be termed as a lease. Hence, in absence
of a lease no notice u/s 106 of the TPA was
required.

Code of Civil Procedure, 1908- Section 94-
Order XXXIX Rule 1- Where the nature of
possession of the defendant is that of
trespasser or unlawful, the plaintiff is not
supposed
to
pray
for
the
relief
of
possession, and suit for injunction is
sufficient- The instant case is not one
where respondents-defendants (first set)
have been evicted forcefully by the
petitioner-plaintiff
and
are
claiming
possession of the property in dispute-The
possession of the respondent-defendant
(first set) on the strength of said lease
deed prima facie cannot be said to be
lawful for the reason that the property
being joint property, it has to be leased
out by all co-sharer and the description of
the property has to be given in the lease
deed specifying which portion of the
property
has
been
leased
out
to
respondents-defendants (first set).

Where the alleged lease does not mention any
rent or premium and being a joint property is
not leased out by all the co-sharers then a suit
for injunction would be maintainable as the
possession of the defendant would be unlawful.
(Para 25, 27, 29, 30, 31, 36, 38, 44)

Petition Allowed. (E-3)

Judgement/ Case law cited :-

## Text

744 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned orders dated 01.12.2021 and
11.07.2013.

22. Writ petition lacks merit and is,
accordingly dismissed.

23. No order as to costs.
----------
(2022) 9 ILRA 744
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No. 636 of 2021
(CIVIL)

Sadare Alam & Ors. ...Petitioners
Versus
Ram Awadh & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prem Narayan Tiwari, Sri Anil Bhushan
(Sr. Advocate)

Counsel for the Respondents:
Sri Brajesh Kumar Dwivedi, Sri Vishnu
Gupta, Sri Shiv Om Vikram Singh Chauhan
(Sr. Advocate)

Civil Law- Transfer of Property Act, 1882 -
Sections 105 & 106- Whether permission
granted by the petitioners-plaintiffs to
respondents-defendants
(first
set)
on
Rs.100/- on non-judicial stamp is a lease
or not- Said permission lacks essential
ingredients of lease since there is no
recitation in the said permission as to
what is the premium or rent to be paid by
the respondents-defendants (first set) to
the petitioners-plaintiffs and respondentsdefendants (second set) in lieu of transfer
of suit property.The permission dated
28.11.2019 being termed as 'lease' by the
respondents-defendants (first set) is not a
lease- The question of giving notice
contemplated under Section 106 of the
Act, 1882 arises only when a valid lease
was executed between the parties- the
appellate court has erred in holding that
notice under Section 106 of the Act, 1882
was mandatory before the institution of
the suit by the petitioners-plaintiffs.

In order to be termed as a lease, rent or
premium is one of the essential ingredients and
mere permission without any rent or premium
cannot be termed as a lease. Hence, in absence
of a lease no notice u/s 106 of the TPA was
required.

Code of Civil Procedure, 1908- Section 94-
Order XXXIX Rule 1- Where the nature of
possession of the defendant is that of
trespasser or unlawful, the plaintiff is not
supposed
to
pray
for
the
relief
of
possession, and suit for injunction is
sufficient- The instant case is not one
where respondents-defendants (first set)
have been evicted forcefully by the
petitioner-plaintiff
and
are
claiming
possession of the property in dispute-The
possession of the respondent-defendant
(first set) on the strength of said lease
deed prima facie cannot be said to be
lawful for the reason that the property
being joint property, it has to be leased
out by all co-sharer and the description of
the property has to be given in the lease
deed specifying which portion of the
property
has
been
leased
out
to
respondents-defendants (first set).

Where the alleged lease does not mention any
rent or premium and being a joint property is
not leased out by all the co-sharers then a suit
for injunction would be maintainable as the
possession of the defendant would be unlawful.
(Para 25, 27, 29, 30, 31, 36, 38, 44)

Petition Allowed. (E-3)

Judgement/ Case law cited :-

1. Rahul Dixit & anr. Vs Chandra Kumar Agarwal
2019(1) ADJ 593(cited)

2. Sant Lal Jain Vs Avtar Singh AIR 1985 SC 857
(relied)
9 All. Sadare Alam & Ors. Vs. Ram Awadh & Ors.
745
3. Lalli Yeshwant Singh (Dead) Vs Rao Jagdish
Singh 1968 AIR SC 620 (cited)

4. East India Hotels Ltd. Vs Syndicate Bank
1992 (Suppl. 2) SCC 29 (cited)

5. M/s. Anamallai Club Vs The Govt. of T.N &
ors.1997 (3) SCC 159 (cited)

6. Biswabani (P.) Ltd. Vs Santosh Kumar Dutta
& ors. 1980 AIR 226 (cited)

7. Leela Dhar Gera & anr. Vs Special Judge
(SC/ST) Act/Additional District Judge, Bareilly &
ors.,Writ Petition No.166 of 2010 (cited)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Anil Bhushan, learned
Senior Advocate assisted by Sri P.N.
Tiwari, learned counsel for the petitioners,
and Sri Shiv Om Vikram Singh Chauhan,
learned Senior Advocate assisted by Sri
Vishnu Gupta, learned counsel for the
respondents.

2. The petitioners are plaintiffs in
Original Suit No.2314 of 2020 and have
assailed the order dated 20.01.2021 passed
by the District Judge, Azamgarh, allowing
the appeal of respondents-defendants (first
set) by which appellate court has set aside
the order dated 22.12.2020 passed by the
trial
court
granting
the
temporary
injunction to the petitioners-plaintiffs.

3. The petitioners-plaintiffs instituted
Original Suit No.2314 of 2020 restraining
respondents-defendants
(first
set)
(respondent nos.1 & 2 in the writ petition)
not to interfere in the possession of the
petitioners-plaintiffs,
and
further
respondents-defendants
(first
set)
be
restrained from raising any construction
over the suit property and not to excavate
mud from the suit property i.e. Arazi
no.606 area 1.5440 hectare shown as
''ABCDEFGH' in the map at the foot of the
plaint.

4. The suit has been instituted on the
ground
that
petitioners-plaintiffs
and
respondents-defendants (second set) are the
joint owners of the suit property, and the
suit property has not been partitioned
between
the
petitioners-plaintiffs
and
respondents-defendants (second set) by
metes and bounds. It is stated that on the
north side of the suit property, a brick kiln
(Bhatta) was being run by the respondentsdefendants (first set). It is further pleaded
that respondents-defendants (first set) have
no concern with the suit property. The
respondents-defendants (first set) are Bhumafias and have been threatening the
petitioners-plaintiffs since 14.11.2020 to
excavate mud from the suit property and
dispossess them. The said action of the
respondents-defendants (first set) gave the
cause of action to the petitioners-plaintiffs
to institute the aforesaid suit. In the said
suit, petitioners-plaintiffs also filed 6C-2
application
praying
for
a
temporary
injunction.

5. The respondents-defendants (first
set) filed an objection to the temporary
injunction application stating therein that
they are in possession of the suit property.
It is stated that on account of the Pandemic
of COVID-19, the raw material of the
respondents-defendants (first set) namely,
coal, mud, sand, etc. were lying on the suit
property. It is further stated that petitionersplaintiffs have issued a licence in favour of
the respondents-defendants (first set) to run
a brick kiln which is still in existence. It is
further stated that on account of closure of
brick-kiln, respondents-defendants (first
set) are suffering a loss of Rs.1 lakh per
day. It is further pleaded that no prima facie
case and balance of convenience are in
746 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of the petitioners-plaintiffs and it is
respondents-defendants (first set) who shall
suffer irreparable loss if they are not
allowed to run brick-kiln.

6. The trial court vide order dated
20.11.2020 granted an ex-parte order of
status quo restraining the respondentsdefendants (first set) not to interfere in the
possession of the petitioners-plaintiffs. The
trial court in granting the temporary
injunction considered three ingredients
namely, prima facie case, the balance of
convenience, and irreparable loss. In
recording the finding, the trial court found
that the suit property is jointly owned by
the petitioners-plaintiffs and respondentsdefendants (second set). It further found
that petitioners-plaintiffs granted lease in
favour of the respondents-defendants (first
set) to run brick-kiln which has expired on
28.11.2020, and after the expiry of the
lease, the possession of respondentsdefendants (first set) is illegal because suit
property has not yet been partitioned and
fresh lease deed has been issued by the
respondents-defendants (second set) on
20.11.2020, but no lease has been executed
by the petitioners-plaintiffs, therefore,
possession of the respondents-defendants
(first set) over the suit property is illegal
after the expiry of alleged lease dated
28.11.2019. Accordingly, the trial court
found that petitioners-plaintiffs have been
able to make out a prima facie case.

7. The trial court found that
petitioners-plaintiffs are doing agriculture
and cultivation over the suit property,
therefore, the balance of convenience lay in
favour of petitioners-plaintiff. It further
held that if respondents-defendants (first
set) are permitted to excavate mud from the
suit property, that will cause irreparable
injury
to
the
petitioners-plaintiffs.
Accordingly, it passed the order granting
the temporary injunction in favour of
petitioners-plaintiffs.

8. Against the order of the trial court,
respondents-defendants (first set) preferred
Misc. Appeal No.23 of 2020 which was
allowed by the appellate court vide order
dated
20.01.2021
holding
that
as
admittedly, a lease was executed by
petitioners-plaintiffs for a period from
28.11.2019 to 28.11.2020, and respondentsdefendants (first set) was in possession on
account of lease granted in their favour,
therefore, a six-month notice under Section
106 of Transfer of Property Act, 1882
(hereinafter referred to as 'Act, 1882') is
necessary
to
evict
the
respondentsdefendants (first set), and since no notice
has been given by the petitioners-plaintiffs
as required under Section 106 of the Act,
1882, therefore, no cause of action arose to
the petitioners-plaintiffs to institute the
present suit.

9. The appellate court further found
that the balance of convenience also lay in
favour of the respondents-defendants (first
set) and they shall suffer irreparable loss if
the temporary injunction is allowed to be
continued. Accordingly, it allowed the
appeal and set aside the order passed by the
trial court vide impugned order.

10. Challenging the aforesaid order,
learned Senior Counsel for the petitionersplaintiffs has contended that the order of
the appellate court allowing the appeal is
per se illegal since no notice under Section
106 of the Act, 1882 is required to be given
before the institution of the suit. He
submits that the finding returned by the
appellate court is illegal and based upon the
misinterpretation of the law. He further
submits that the trial court has given
9 All. Sadare Alam & Ors. Vs. Ram Awadh & Ors.
747
elaborate reason in recording a finding that
petitioners-plaintiffs have prima facie case
and balance of convenience lay in favour of
petitioners-plaintiffs, and if the temporary
injunction is not granted, that shall cause
irreparable
injury
to
the
petitionersplaintiffs.

11. It is further contended that
without upsetting the finding returned by
the trial court, the appellate court has acted
illegally in setting aside the order of the
trial court.

12. Per contra, learned Senior
Counsel for the respondents has contended
that evidence on record establishes that
respondents-defendants (first set) are in
possession of the suit property, therefore, in
the absence of any prayer for a decree of
possession, suit for injunction is not
maintainable. He further contends that an
unregistered lease deed shall be treated as
the lease from month to month and the
status of the lessee is that of a tenant by
holding over, in such view of the fact, the
status of respondents-defendants (first set)
is that of the tenant by holding over and
they are entitled to protect their possession.

13. Lastly, it is urged that final relief
cannot be granted by way of the temporary
injunction, therefore, it is submitted that the
order of the appellate court does not require
any interference by this Court under its
supervisory jurisdiction.

14. I have considered the rival
submission of the parties and perused the
record.

15. The facts emanating from the record
are that admittedly, suit property belongs to
petitioners-plaintiffs
and
respondentsdefendants (second set). It is also not in
dispute that suit property is jointly owned by
petitioners-plaintiffs
and
respondentsdefendants (second set), and partition of the
suit property has not taken place by metes
and bounds. The petitioners-plaintiffs to
succeed in obtaining the temporary injunction
have to establish that they have a prima facie
case in their favour, the balance of
convenience lay in their favour, and if the
temporary injunction is not granted, that shall
cause irreparable injury to the petitionersplaintiffs.

16. In the instant case, respondentsdefendants (first set) state that they are in
possession of the suit property since 1996.
The
petitioners-plaintiffs
and
the
respondents-defendants
(second
set)
permitted the respondents-defendants (first
set) to run the brick-kiln business on the suit
property for one year from 28.11.2019. Each
petitioners-plaintiffs, as well as respondentsdefendants
(second
set),
permitted
respondents-defendants (first set) on Rs.100/-
stamp
separately
on
28.11.2019.
The
language and contents of the document
granting right to use property are written on
Rs.100/- non-judicial stamp and the contents
of the said document are identical. It is
pertinent to note that the permissive right
granted by petitioners-plaintiffs by document
dated 28.11.2019 is termed by respondentsdefendants (second set) as the lease.

17. To consider the nature of right over
the property given by the petitioners-plaintiffs
on Rs.100/- stamp appearing on page no.29
of the supplementary counter affidavit of the
respondent nos.1 & 2, it would be relevant to
reproduce the contents of document herein
below:-

"हम की सदरे आलम पुत्र सुलेमान
अंसारी ग्रा० पो० ससकरौर सहबरी सिला-आिमगढ़
के सनवासी है। हम अपनी िमीन को िो ससकरौर
748 INDIAN LAW REPORTS ALLAHABAD SERIES
बािार से पूरब नहर माईनर के पास सड़क से उत्तर
स्थित है। उस िमीन (606) को हम श्री सुनील यादव
पुत्र श्री राम अवध यादव ग्राम ससकरौर सहबरी सिला-
आिमगढ़ को भट्ठा चलाने के सलए आि सदनााँक28.11.2019 से एक वर्ष के सलए िमीन भट्ठा चलाने
हेतु दे सदए। आि सिस हालत में िमीन है, हम उस
हालत मे िमीन वासपस देगें। इसी सलए यह एकरार
नामा सलख सदया ताकी समय पर काम आवे।"

18. The recitation in the said
document is clear that permission has been
granted to the respondents-defendants (first
set) for one year from 28.11.2019. It further
recites that respondents-defendants (first
set) shall return the land in the same
condition in which the land was on the date
of grant of rights to the respondentsdefendants (first set).

19. According to the respondentsdefendants (first set), after the expiry of the
aforesaid
period,
the
respondentsdefendants (second set) have separately
granted fresh permission on Rs.50/- nonjudicial stamp on 28.10.2020 appearing on
page 35 of the supplementary counter
affidavit which is reproduced herein
below:-

"हम सक गुफरान अहमद व इरफान
अहमद व ररिवान अहमद सुल्तान अहमद पुत्र गण
पुत्रगण शमतुदीन व अन्िुम आरा पत्नी सुसफयान
अहमद व वसीम अनवर व असद मो० अकरम
पुत्रगण सुसफयान उफष उिमा व सासफया पुत्रीगण
सुसफयान अहमद ग्राम व पो० ससकरौर सहबरी,
परगना माहुल, तहसील मार्टीनगंि, सिला आिमगढ़
के सनवासी है। प्रिम पक्ष

सुनील यादव पुत्र राम अवध यादव ग्राम
ससकरौर सहबरी, पर० माहुल, तहसील मार्टीनगंि,
सिला आिमगढ़-सितीय पक्ष

हम प्रिम पक्ष सितीय पक्ष को स्टार
स्वास्िक स्टार ईर्ट भट्ठा उद्योग लगाने हेतु अपनी
सनम्नसलस्खत गार्टा सं० 606 रकवा-1.544 हे० मैं अपने
सहस्से से 1/3 भाग पर सकराये पर सदया है सिस पर
सितीय पक्ष अपनी सचमनी व आसपस लगाकर उद्योग
चला रहे है सिसकी सकरायेनामा की अवसध समाप्त
हो रही है। इससलए हम प्रिमपक्ष सितीयपक्ष को एक
वर्ष के सलए एकरारनामा कर रहे है। सितीय पक्ष से
एक लाख रूपया िररया चेक सं०55943 बैक सलाना
के तौर पर ले रहे है। सितीय पक्ष अपना ईर्ट भट्ठा
उद्योग करके एक वर्ष तक चलायेगे। इसमे हम प्रिम
पक्ष की कोई आपसत्त न है न ही भसवष्य में होगी। यह
एकरार नामा ससफष माह 12 हेतु ही है। अतः यह खूब
सोच समझ कर स्वेच्छा से यह एग्रीमेण्ट तहरीर कर
सदया गया सक प्रमाण रहे और समय पर काम आवे।

सदनांक 28-10-2020"

20. The perusal of the alleged
permission granted by the respondentsdefendants (second set) dated 28.10.2020
reveals
that
respondents-defendants
(second set) have granted the right to use
the suit property to the extent of their 1/3rd
share in the suit property.

21. In such a factual backdrop, it is to
be seen as to what is the nature of
possession of respondents-defendants (first
set) after the expiry of permission granted
by petitioners-plaintiffs on 28.11.2019
extracted above.

22.

learned
counsel
for
the
respondents contends that conditional lease
was granted by petitioners-plaintiffs and
respondents-defendants (second set) in
favour of the respondents-defendants (first
set), and even if the document is
unregistered, that shall be treated as lease
month to month and status of respondentsdefendants (first set) is that of the tenant by
holding over and in such view of the fact,
they are entitled to protect their possession.

23. To test the legality of the said
argument
of
learned
counsel
for
respondents-defendants (first set), Court
has to be prima facie satisfy at this stage
9 All. Sadare Alam & Ors. Vs. Ram Awadh & Ors.
749
that said contention of respondents has
substance in law.

24. To test the bona fides of the
argument of learned counsel for the
respondents, it would be useful to have a
glance at Section 105 of the Act, 1882
which defines the lease which is being
extracted herein below:-

"105. Lease defined.--A lease of
immoveable property is a transfer of a right
to enjoy such property, made for a certain
time, express or implied, or in perpetuity,
in consideration of a price paid or
promised, or of money, a share of crops,
service or any other thing of value, to be
rendered periodically or on specified
occasions
to
the
transferor
by
the
transferee, who accepts the transfer on
such terms.

Lessor, lessee, premium and rent
defined.--The transferor is called the
lessor, the transferee is called the lessee,
the price is called the premium, and the
money, share, service, or other thing to be
so rendered is called the rent."

25. Perusal of Section 105 of the Act,
1882 clearly shows that one of the
ingredients for a document to be termed as
a lease is that transfer of right by lesser to
the lessee to enjoy immovable property
must be in consideration of a price paid or
promised, or of money, a share of crops,
service or any other thing of value, to be
rendered periodically or on specified
occasions to the lesser by the lessee to
accept the transfer of such permission.
Premium and rent are also defined in
Section 105 of the Act, 1882 which
provides that price is called 'premium' and
money, share, service, or other thing to be
so rendered is called 'rent'.

26. Now, in the light of the above,
this Court proceeds to consider the question
as to whether permission granted by the
petitioners-plaintiffs
to
respondentsdefendants (first set) on Rs.100/- on nonjudicial stamp on 28.11.2019, extracted
above, is a lease or not.

27. Perusal of the said permission
dated 28.11.2019, extracted above, reveals
that petitioners-plaintiffs have granted
permission to respondents-defendants (first
set) to run the brick-kiln business on the
suit property for one year w.e.f 28.11.2019,
but
said
permission
lacks
essential
ingredients of lease since there is no
recitation in the said permission as to what
is the premium or rent to be paid by the
respondents-defendants (first set) to the
petitioners-plaintiffs
and
respondentsdefendants (second set) in lieu of transfer
of suit property.

28. At this stage, it is also pertinent to
point out that in the objection filed by the
respondents-defendants (first set) to the 6-C
application, there is no pleading by the
respondents-defendants (first set) that they
were paying any premium or rent.

29. In such view of the fact, this Court
prima facie find that the permission dated
28.11.2019 being termed as 'lease' by the
respondents-defendants (first set) is not a
lease, hence, the contention of learned
counsel
for
the
respondents
that
respondents became tenant by holding over
lacks substance.

30. It is pertinent to note that the
question of giving notice contemplated
under Section 106 of the Act, 1882 arises
only when a valid lease was executed
between the parties.
750 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In view of the aforesaid fact, this
Court finds that the appellate court has
erred in holding that notice under Section
106 of the Act, 1882 was mandatory before
the institution of the suit by the petitionersplaintiffs.

32. In such view of the fact, the
judgement of this Court relied upon by the
learned counsel for the respondents in the
case of Rahul Dixit and Another Vs.
Chandra Kumar Agarwal 2019(1) ADJ
593 is not applicable in the facts of the
present case.

33. This Court finds that it has come
on record that respondents-defendants (first
set) are in possession of the suit property,
therefore, in the absence of any prayer for
the decree of possession by the petitionersplaintiffs, the suit for temporary injunction
is not maintainable.

34. To test the said argument, the
court is to see what is the nature of
possession of respondents-defendants (first
set).

35. This Court has reproduced the
permission which has been granted by the
petitioner-plaintiff on 28.11.2019 which
reveals that it lacks ingredients of a lease as
the said permission does not disclose the
premium or rent which was to be paid by
the respondents-defendants (first set) in lieu
of transfer of possession for the enjoyment
of the suit property.

36. The Apex Court in various
pronouncements has held that where the
nature of possession of the defendant is that
of trespasser or unlawful, the plaintiff is not
supposed to pray for the relief of
possession, and suit for injunction is
sufficient.

37. In this regard, it would be
apposite to reproduce paragraphs 7 & 8 of
the judgement of the Apex Court in the
case of Sant Lal Jain Vs. Avtar Singh AIR
1985 SC 857 which are being reproduced
herein below:-

"7. In the present case it has not
been shown to us that the appellant had
come to the court with the suit for
mandatory
injunction
after
any
considerable delay which will disentitle
him to the discretionary relief. Even if there
was some delay, we think that in a case of
this kind attempt should be made to avoid
multiplicity of suits and the licensor should
not be driven to file another round of suit
with all the attendant delay, trouble and
expense. The suit is in effect one for
possession though couched in the form of a
suit for mandatory injunction as what
would be given to the plaintiff in case he
succeeds is possession of the property to
which he may be found to be entitled.
Therefore, we are of the opinion that the
appellant should not be denied relief
merely because he had couched the plaint
in the form of a suit for mandatory
injunction.

8. The respondent was a licensee,
and he must be deemed to be always a
licensee. It is not open to him, during the
subsistence of the licence or in the suit for
recovery of possession of the property
instituted after the revocation of the licence
to set up title to the property in himself or
anyone else. It is his plain duty to
surrender possession of the property as a
licence and seek his remedy separately in
case he has acquired title to property
subsequently through some other person.
He need not do so if he has acquired title to
the property from the licensor or from some
one else lawfully claiming under him, in
which case there would be clear merger.
9 All. Sadare Alam & Ors. Vs. Ram Awadh & Ors.
751
The respondent has not surrendered
possession of property to the appellant
even after the termination of the licence
and the institution of the suit. The appellant
is, therefore, entitled to recover possession
of the property. We accordingly allow the
appeal with costs throughout and direct the
respondent to deliver possession of the
property to the appellant forthwith failing
which it will be open to the appellant to
execute the decree and obtain possession."

38. Thus, in view of the discussion in
the foregoing paragraphs, this Court prima
facie
believes
that
permission
dated
28.11.2019 can not be termed as lease.
Accordingly,
the
possession
of
respondents-defendants (first set) after the
expiry of one year from 28.11.2020 prima
facie does not appear to be lawful
possession, therefore, in view of the
judgement of the Apex Court in the case of
Sant Lal Jain (supra), this Court prima
facie believes that the suit for injunction is
maintainable.

39. It is further pertinent to mention
that judgement of the Apex Court in the
case of Lalli Yeshwant Singh (Dead) Vs.
Rao Jagdish Singh 1968 AIR SC 620 is
not applicable in the facts of the present
case as in that case, the tenant was
forcefully evicted by the landlord without
taking any recourse to law and in such view
of the fact, the Apex Court held that tenant
can maintain a suit under Section 6 of the
Specific Relief Act.

40. The judgement of Apex Court in the
case of East India Hotels Limited Vs.
Syndicate Bank 1992 (Suppl. 2) SCC 29 is also
not applicable in the facts of the present case for
two reasons; firstly, there was a difference of
opinion between the two Hon'ble Judges of the
Apex Court as to whether the suit instituted by
the bank under Section 6 of the Specific Relief
Act was maintainable or not. Secondly, it was a
case where the respondent bank was alleging
that its eviction was forceful, therefore, the suit
under Section 6 of the Specific Relief Act is
maintainable for possession.

41. The instant case is not one where
respondents-defendants (first set) have been
evicted forcefully by the petitioner-plaintiff and
are claiming possession of the property in
dispute.

42. Similarly, the judgement of the Apex
Court in the case of M/s. Anamallai Club Vs.
The Government of Tamil Nadu and Others
1997 (3) SCC 159 is not applicable in the facts
of the present case.

43. So far as the judgement of Apex
Court in the case of Biswabani (P.) Ltd. Vs.
Santosh Kumar Dutta and Others 1980 AIR
226 is concerned, the same is also not
applicable in the facts of the present case in
view of the finding returned above that the
question as to whether the permission dated
28.11.2019 was a lease or not and respondentsdefendants (first set) can be described as a
lawful tenant can be determined at the final
disposal of the suit.

44. It is pertinent to mention that it is not
in dispute that property was the joint property of
petitioners-plaintiffs
and
respondentsdefendants (second set). The lease which is
alleged to have been executed by the
respondents-defendants (second set) in favour
of
respondents-defendants
(first
set)
on
20.11.2020 also discloses that respondentsdefendants (second set) have granted a lease to
respondents-defendants (first set) to the extent
of their share, but the description of the property
which has been leased out to the respondentsdefendants (first set) by respondents-defendants
(second set) has not been given in the said lease
752 INDIAN LAW REPORTS ALLAHABAD SERIES
deed. In the absence of any description of the
property leased out to the respondent-defendant
(first set) by the respondent-defendant (second
set) and the property being a joint property of
petitioners-plaintiffs and respondent-defendant
(second set), the possession of the respondentdefendant (first set) on the strength of said lease
deed prima facie cannot be said to be lawful for
the reason that the property being joint property,
it has to be leased out by all co-sharer and the
description of the property has to be given in the
lease deed specifying which portion of the
property has been leased out to respondentsdefendants (first set).

45. In such view of the fact, this Court
finds that the petitioner-plaintiff has been able
to establish a prima facie case in his favour, and
in case, the respondents-defendants (first set)
are allowed to run brick-kiln business and
excavate mud from the suit property during the
pendency of the suit, that will change the nature
of the property and reduce the fertility of the
land as well as it shall cause damage to
agriculture which is done by the petitionersplaintiffs over the suit property.

46. It is also pertinent to mention that
excavation of mud and soil from the suit
property and running of the brick-kiln business
on suit property may also seriously damage the
yield of the crop over the suit property and will
make the land non-agricultural land which
cannot be compensated in terms of money.

47. Thus, in such view of the fact, the
contention
of
learned
counsel
for
the
respondents that no final relief at an interim
stage by way of injunction can be granted based
on the judgement of this Court in the case of
Leela Dhar Gera and Another Vs. Special
Judge (SC/ST) Act/Additional District Judge,
Bareilly and Others passed in Writ Petition
No.166 of 2010 is not sustainable. Accordingly,
in the opinion of the Court, the aforesaid
judgment is not applicable in the present case as
the said judgement has been rendered in a
different factual scenario.

48. The perusal of the judgement of the
appellate court reveals that it has not upset the
finding returned by the trial court while granting
the injunction, and accordingly, for this reason
also, the order of the appellate court is not
sustainable.

49. Thus, for the reasons given above, this
Court finds that the order of the appellate court
is not sustainable in law, and accordingly, it is
set aside. The writ petition is allowed and
respondents-defendants (first set) are restrained
from running the brick-kiln business over the
suit property.

50. Considering the nature of the dispute
in the present case, this Court finds that it would
be appropriate to direct the court below in the
interest
of
justice
to
decide
the
suit
expeditiously without granting any unnecessary
adjournment to either of the parties. In case any
adjournment is inevitable, the
authority
concerned may grant the same by imposing a
heavy cost which may not be less than
Rs.1,000/-.
----------
(2022) 9 ILRA 752
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.09.2022

BEFORE

THE HON'BLE JASPREET SINGH, J.

Matters Under Article 227 No. 2841 of 2022

Avadhesh Kumar & Ors. ...Petitioners
Versus
District Magistrate, Lko. & Ors.
 ...Respondents

Counsel for the Petitioners: