Heard Sri M.K. Gupta, learned counsel for the appellant and Sri Nitin Sharma learned counsel for the respondent who has appeared through caveat.
This is defendant's second appeal arising out of O.S. No.232 of 2005, which was decreed on 27.07.2010 by Additional Civil Judge, Senior Division, Court No.3, Meerut. Against the said decree defendant appellant filed Civil Appeal No.147 of 2010 which was dismissed on 30.08.2011, hence this second appeal.
Both the parties are real brothers. Property in dispute is a shop. The joint properties of both the parties and other co-sharers were partitioned and partition was recognised through a decree dated 01.11.1976 passed in O.S. No.679 of 1976. In the said partition, shop in dispute came in the share of the plaintiff and another shop came in the share of the defendant. Defendant sold his shop. The shop in dispute which in the partition had come in the plaintiff's share was vacated by its tenant Sriniwas in or around 1980. At that time plaintiff was doing business from some other place hence on the request of defendant, plaintiff agreed to give the shop in dispute on licence to the defendant, his real brother. The licence was cancelled through notice dated 21.02.2005. Immediately thereafter suit was filed i.e. on 16.03.2005.
The defendant took up the plea that he was tenant in the shop in dispute at rate of Rs.150/- per month and not a licenceee. It was further pleaded by the defendant that rent had been paid until January, 2005 but without any receipt as both were real brothers. Partition was admitted by the defendant.
The courts below held that defendant could not give any date or period of start of tenancy. At one place he stated that it was in the year 1981. At another place, he stated that it was in the year 1977-78. The courts below further held that previous tenant Sriniwas had vacated the shop in dispute in the year 1980, hence there was no question of taking the shop by the defendant at rent in the year 1977-78. The courts below further held that the plaintiff was giving receipt to the previous tenant Sriniwas hence there was no question of not giving receipt to the defendant in case defendant was tenant. The suit was filed in March, 2005. Courts below further held that after January, 2005 regarding payment of rent there was no statement of the defendant.
In the oral evidence (examination in chief on affidavit) defendant stated that on the direction of the plaintiff he had paid Rs.25,000/- to the previous tenant Sriniwas, however in the written statement no such thing was stated.
Ultimately the courts below held that the defendant was not the tenant but only licencee. I do not find least error in the said findings, which are findings of fact. The suit was decreed for eviction and damages for use and occupation from 16.03.2005 when the suit was filed till eviction at the rate of Rs.1000/- per month were also awarded.
As far as rate of damages is concerned in my opinion it was on the lower side. It is a shop situate in Meerut City. Cognizance may be taken of the fact that rent of such shop may be several thousand rupees per month. Meerut city is situate in national capital region and is very near to Delhi.
The main argument of learned counsel for the appellant in this second appeal is that in the suit possession had not been prayed for and only decree for mandatory injunction was sought, hence suit could not be decreed. This point is concluded by an authority of this Court reported in Ajab Singh Vs. Shital Puri, AIR 1993 All 138 in which it has been held that if there is not much delay in terminating the licence and filing the suit then suit for mandatory injunction is maintainable and it is not necessary to specifically seek possession and pay court fees thereupon. In this regard reference may be made to the following authorities also.
1.AIR 1958 Calcutta 179
2.AIR 1962 Panjab 370
3.AIR 1964 JK 99
4.AIR 1969 Rent Control Reporter 764
5.AIR 1982 Gujrat 340 Accordingly, there is no merit in the second appeal hence it is dismissed under Order XLI Rule 11, C.P.C.
Order Date :- 23.2.2012 NLY