GIRDHARI LAL DHARA Vs. AMIN CHAND

JUDGEMENT

(1.) Plaintiff filed this suit alleging that he is the Owner of land measuring about 4000 sq.yds comprised in Khasra No.742, situated in the revenue estate of Village Mandawali, Fazalpur, Shahdara. He got constructed a Cinema hall having an area of 450 sq.yds, two rooms of 24' x 24' each on North west corner and three rooms on the back side thereon. On being approached on 15/11/971, the plaintiff granted licence to use the said land and cinema hall etc on licence fee of Rs.2000.00 per month exclusive of all other charges to defendants 1 & 2. As these defendants were unable to obtain requisite licence for running Cinema, they handedover possession of the said land and construction to the plaintiff in the month of February 1973 It is further alleged that in the last week of April 1972 the defendants 1 & 2 wanted to take forcible possession of the said land and construction. Therefore, plaintiff filed suit being No. 362/72 for permanent injunction against them on 3/5/1972 which was made over to Sh.O.P.Dwivedi, Sub Judge 1st Class for disposal. In the suit a compromise was arrived at between the parties on 7/6/1972. The terms of the compromise as set out in Para No.11 of the plaint, are reproduced below :-

(2.) The licence granted to defendants 1 & 2 in terms of compromise which was for a period of 5 months and not textended further, came to an end on 6/11/1972. Plaintiff issued a notice in November 1972 requiring the said defendants to handover possession of the said land and construction but they refused to do so. Defendants 1 & 2 also unauthorisedly started using the portion of land and construction in possession of the plaintiff. It is further alleged that the plaintiff on receipt of summons of the suit filed by defendants came to know on or about the first week of December 1973 that the licensed land and construction were being used by the defendants as partners. Plaintiff had not allowed defendants 3 and 4 to use the said land and construction. In the suit mesne profits amounting to Rs. 90,000.00 has been claimed @ Rs. 2500.00 per month for three years. It was prayed that decree for possession of the said land and construction as also Rs. 90,000.00 towards arrears of mesne profits be passed in favour of the plaintiff and against defendants.

(3.) Defendant No .1 was proceeded ex parte on 16/11/1977 while defendant No.2 on 12/4/1979. Defendants 3 & 4 contested the suit by filing a Joint written statement. By way of preliminary objections, it is alleged that suit against answering defendants is bad for mis-Joinder both of parties and causes of action. On merits, it is alleged that plaintiff being unable to construct cinema hail due to lack of finance, asked the defendants to construct cinema hall and he undertook to reimburse or pay the costs thereof. Defendants 1 & 2 who were let out the land and construction to be raised on a monthly rental of Rs.1500.00 per month Joined the answering defendants for making investment on construction and running the cinema. It is emphatically denied that cinema hall etc were constructed by the plaintiff, as alleged. Construction of cinema hall was completed by October 1972 and cinema business started on 2/12/1973. Plaintiff was not entitled to charge any rent from defendants 1 & 2 till construction of cinema hall was completed. Filing of Suit No. 362/72 by the plaintiff against defendants 1 & 2 and of compromise therein on 7/6/1972 on the terms Set out in Para 11 of the suit are denied for want of knowledge. It is alleged that it was with the consent of plaintiff that answering defendants Joined hands with defendants 1 & 2 in running cinema venture end spent the amount in construction of cinema hall. It is emphatically denied that answering defendants alongwith defendants 1 & 2 are in unauthorised occupation of suit land and construction built thereon and liable to pay mesne profits as alleged. It is claimed that the relief of possession is barred by Order If Rule 2 Civil Procedure Code as in the previous suit the plaintiff had intentionally relinquished it. Suit is stated to be barred by Section 50 of Delhi. Rent Control Act.