LAWS(DLH)-2002-9-146

RAKESH SHARMA Vs. LAKSHMI SHARMA

Decided On September 03, 2002
RAKESH SHARMA Appellant
V/S
LAKSHMI SHARMA Respondents

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 24th February, 1999 passed by the learned Additional District Judge, Delhi thereby decreeing the suit of the plaintiff-respondent for recovery of possession of the suit premises as shown in the site plan and mesne profits/damages for use and occupation @ Rs. 1.000/- per month w.e.f. 24 September, 1993 till the vacation of the premises.

(2.) . Briefly the relevant facts leading to the present appeal are that the plaintiff-respondent herein filed a suit against the appellant-defendant for recovery of possession of a part of house bearing No. 2167, Chah Indara, Dr. H.C. Sen Road, Delhi and for grant of mesne profits/use and occupation charges with the averments that she had purchased the above numbered house vide a registered sale deed dated 28th June, 1984 and at that time the appellant-defendant, Who is the real brother of the husband of the plaintiff-respondent was in possession of two rooms on the ground floor of the said house. He subsequently constructed a kitchen and bathroom in the absence of the plaintiff. The remaining portion of the house was in occupation of other persons who vacated the same. The previous owner while transferring the house in question had informed the plaintiff that the appellant-defendant was the tenant in respect of two rooms alongwith common W.C. As the plaintiff-respondent required the premises bonafide for the use of her family members, she and her husband asked the defendant to vacate the premises in his tenancy, but the defendant put off the matter on the one pretext or other. The plaintiff accordingly filed an eviction petition as also a suit for permanent injunction against the appellant-defendant. In those proceedings, the appellant-defendant took up a defence plea that he was not a tenant of any portion of the property, but was the co-owner of the same and his possession on a portion of the property was that of a co-owner. In view of the said defence plea, the plaintiff withdrew the eviction petition and the suit on 6th September, 1996 and 9th September, 1996 respectively and filed the present suit alleging that the appellant-defendant was in unauthorised occupation of the premises and was liable to ejectment and pay mesne profits/use and occupation charges.

(3.) . The appellant contested the suit by filing written statement alleging therein that a suit for declaration, partition and rendition of account in respect of the suit property filed by him was pending; that the suit has not been property valued for the purpose of court fee and jurisdiction and the Court had no pecuniary jurisdiction to entertain and try the suit; the plaintiff had no locus standi and cause of action to file the suit and that the suit property was acquired with the sale proceeds of the property belonging to the family. The withdrawal of the eviction petition and the suit was stated to be pursuant to the intervention of the family friends and with the understanding and mutual agreement that the requisite documents acknowledging the rights of the appellant-defendant qua the suit property would be executed and he would continue to be the owner of the suit property, but subsequently the plaintiff and her husband backed out of the said agreement.