NIHAL CHAND AGRAWAL Vs. GOPAL SAHAIBHARTIA

JUDGEMENT

(1.) Late Shri Gopal Sahai and his two minor sons became the owners of property No. VII/558, Zer Fasil, G. B. Road Shardhanand Marg, Delhi after the partition between the heirs of Smt. Sarti Devi who was the original owner of the property. A suit for recovery of possession and damages for wrongful use and occupation of a Kothri and one garage situated on the ground floor of this property was filed against the defendants i.e. the present appellants, in the court of Sub Judge, 1st Class, Delhi. During the pendency of the suit Shri Gopal Sahai died and his name was deleted from the array of parties and the suit was prosecuted by the mother who was the natural guardian of the two other plaintiffs. On the pleading of the parties, the following issues were framed :

(2.) The learned Sub Judge, 1st Class, Delhi decided issues Nos. 1 and 2 together and held that relationship of landlord and tenant between defendant No. 1 and Shri Gopal Sahai had not been established and, therefore, be was a trespasser. On issue No. 3 and additional issue No. 1 the trial court held that the suit was not bad for non-joinder of parties and held that Shri Gopal Sahai had become exclusive owner of the property in dispute and as such there was no other necessary party to be joined. On issue No. 4, the trial court held that the defendants were liable to pay damages for wrongful use and occupation of the property in dispute. On additional issue No. 2 the trial court held that the suit was properly valued and accordingly decided this issue in favour of the plaintiff. Accordingly, a decree for possession of the property was passed in favour of the plaintiff. An appeal was filed by the defendants against this order before the Court of Additional District Judge, Delhi being RCA No. 28 of 1978. Before the First Appellate Court though in the grounds of appeal the finding of the trial court on all the issues was challenged, at the hearing, only two issues were pressed. One was regarding the ownership of Shri Gopal Sahai and the second was regarding issue No. 2 namely whether defendant No. 1 was a tenant in the disputed premises. On both these issues the First Appellate Court held against the defendants and in favour of the plaintiff and dismissed the appeal. This Regular Second Appeal is filed against this judgment of the Additional District Judge, Delhi dated 8th February, 1983.

(3.) At the time of the admission of the second appeal, following two questions of law were framed :