HARI KUMAR Vs. SAT NARAIN MEHRA

JUDGEMENT

(1.) Shri Hari Kumar, in this Second appeal has assailed the order of the First Appellate Court on the ground that the First Appellate Court, ignored the evidence adduced by the appellant herein (defendant before the Trial Court). He ignored the established fact that appellant was the tenant of Shri Shiv Kumar and not of the present respondent (plaintiff before the Trial Court). The Trial Court after detailed discussion came to the finding that the appellant herein was in exclusive possession of the suit property since 1973. And that he had been paying the rent to Shri Shiv Kumar uninterruptedly. This finding has been reversed by the First Appellate Court without assigning any reason. Therefore, the impugned order is liable to be set aside. Moroever, the findings of the First Appellat Court are based on conjuctures and surmises. First Appellate Court presumed without proof that property in dispute may be falling under properties bearing No.812 and partly m property No.813 This fact was not even pleaded by the respondent herein. Plaint being vague with regard to the identity and location of the property in question, the suit on this ground alone ought to have been dismissed. The First Appellate Court fell in error in relying site plan Ex.PW-1/1 which in itself was vague as it does not show any demarcation of the properties nor furnish properties number. Conclusion arrived at by the First Appellate Court that the tea stall was being run at 'Chabutra' which is not enclosed, is based on no evidence at all. Respondent had not been able to show his possession even for a single day on the property in question. The appellant being in exclusive possession of the disputed properly hence a tenant and not a licencee. This fact has not been taken note of in the impugned judgement rather ignored the same. The First Appellate Court ought to have considered the pleadings of the parties and dismissed the suit due to insufficient court fee and lack of jurisdiction. Having failed to do so the First Appellate Court fell in error. The decision with regard to identity of the property is based merely on assumtion hence the findings of the First Appellate Court are liable to be set aside.

(2.) To appreciate the challenge to the impugned order, the relevant facts are that respondent Sh.Sat Narain Mehra filed a suit against the present appellant for mandatory injunction. He sought direction against this appellant not to use the portion in his occupation situated in an open space in Chhatta (Chabutra) between the shop in the tenancy of Shri Om Prakash and the properly known as Lal Mal Sangam Mal shown red in the site plan. He being Karta of M/s Ram Kishan Dass Bal Kishan, HUF, was owner of properties bearing No.813-817, Katra Neel, Chandni Chowk, Delhi. Appellant herein (defendant before the Trial Court) had been given the said open space on licence by the plaintiff (respondent herein) to run the tea stall in April, 1973. The defendant was allowed to use the open space keeping in view his poor conditions. It was the term of the licence that defendant/appellant herein would use the place for running his tea stall untill such time it was not required by (he plaintiff (respondent herein). As soon as the same was required the possession of the premises was to be delivered back without any reservation. The licence was revocable at the discretion of the plaintiff (respondent herein). Since the premises in question was required by the respondent (plaintiff before the Trial Court) hence notice terminating the licence was issued on 26th July,1982. Appellant (defendant before the Trial Court) replied to the same refusing to surrender back the disputed portion.

(3.) Basing on these facts suit for mandatory injunction was filed. Appellant (defendant before the Trial Court) took legal pleas besides setting up his defence on merits. He pleaded that he was the tenant of the said premises under one Shri Shiv Kumar Seth for the last more than 14 years. He further pleaded that he never took the premises on licence from the respondent (plaintiff before the Trial Court). He was in occupation of the disputed premises since 1969 as tenant of Shri Shiv Kumar and that the property in which he was running the tea stall did not belong to the respondent herein (plaintiff before the Trial Court). That he had been regularly paying rent to the owner Shri Shiv Kumar against the receipt. He took legal plea with regard to lack of jurisdiction because according to him suit for possession should have been filed. Property had not been properly valued for the purpose of court fee. Suit suffers from non-joinder of Shri Shiv Kumar a necessary party.