KUSUM SAXENA Vs. I N KHANNA

JUDGEMENT

(1.) This second appeal under Section 100 of the Code of Civil Procedure (hereinafter called 'the code') by Miss Kusam Saxena, defendant No. 2 in a suit for possession and for recovery of damages for use and occupation filed by I.N. Khanna, plaintiff respondent No. 1, is directed against the judgement and decree dated 4th November, 1978 of the Additional District Judge, Delhi whereby a decree for possession and recovery of Rs. 1,237.50 was passed in favour of the plaintiff against the defendants i.e. appellant and respondents 2 and 3. The plaintiff is the owner of the building at 9, Babar Road, New Dpihi. Miss Shakuntala Rulhao, defendant No. 1/respondent No, 2 was a tenant under him in the rear portion of the gound floor of the said property on a monthly rent of Rs. 600. On 2nd January, 1971 she wrote a letter to the plaintiff to permit her the use of the room above the garage and the loft attached thereto in the said building temporarily as a licensee for her guests which portion was then lying vacant. The plaintiff permitted ber to use the said room and the loft as his lioensee on temporary basis for the residence other guests i.e. defendants 2 and 3. Defendant No. 1 vacated the demised premises on or about 10th February, 1972 but she did not hand over the possession of the said room and the loft given to her as a licencee. The plaintiff served a notice dated 1st February, 1973 upon defendant No. 1 revoking her licence and calling upon her to deliver possession. Finding no response, the plaintiff on 6th June, 1973 filed the suit out of which this appeal arises. Defendant No. 1 in her written statement dated 28th March, 1974 submitted that she was the tenant in a portion of the ground floor of the said building and vacant possession whereof was handed over to the plaintiff. As regards the premises in suit she stated that Miss Kusum Saxena, defendant No. 2 had occupied the same as a tenant under the plaintiff. She also denied that she was over a licensee of the premises in suit. Defendants 2 and 3 in their separate written statement dated 25th February, 1974 denied the various allegations contained in the plaint and pleaded that defendant No. 2 had taken the suit premises With amenity of W.C./bath from the plaintiff at a monthly rent of Rs. 82.50 and that the plaintiff and defendant No. 1 had colluded to oust them. The plaintiff in his replications controverted the pleas raised by the defendants and reiterated that defendant No. I was a licensee and that defendant No. 2 was never a tenant under him. The trial court framed the following issues :

(2.) The trial court dismissed the suit. On appeal, the Additional District Judge by judgement and decree dated 4th November, 1978, as already stated, granted a decree for possession and recovery of damages to the plaintiff against the defendants. Hence this second appeal by Miss Kusum Saxena, defendant No. 2 only.

(3.) The first appellate court after reviewing' the entire oral and documentary evidence on record concluded that defendant No. I was a licensee under the plaintiff which was revoked and that defendant No. 2 is not a tenant under the plaintiff as alleged by her. The plaintiff was also held entitled to damages for use and occupation. The two findings by the first appellate court to the effect that defendant No. 1 is a licensee and that defendant No. 2 is not a tenant and findings of fact not liable to be reversed under section 100 of the Code as amended by Act 104 of 1976. This section reads as under :