BRAHAM PRAKASH Vs. MAHABIR PARSHAD GOEL

JUDGEMENT

(1.) THE plaintiff has sued for recovery of possession of a shop admeasuring 14'x20' on the basement floor and 14'x15' on the ground floor of property No. 1047 Gurdwara Road, Kotla Mubarakpur, New Delhi and for recovery of arrears of mesne profits/damages for use and occupation of Rs 15 lacs and for pendente lite and future mesne profits @ Rs 40,000/- per month and for permanent injunction restraining the defendant from parting with possession of the property.

(2.) THE plaintiff, as the owner of the aforesaid premises, claims to have entered into a partnership deed of 1997 with the defendant, proved as exhibit pw1/1 whereunder the parties agreed to carry on a business in the aforesaid premises of general merchandise in the name and style of Shri Shyam Store. The plaintiff claims to have allowed the defendant into the premises in pursuance to the said partnership. The said partnership is stated to have been continued vide another partnership deed of 1998 which has been proved as exhibit PW1/2. It is further the case of the plaintiff that on 16 th February, 1999 the said partnership was dissolved and a dissolution deed dated 16th February, 1999 signed. The said dissolution deed has been proved as exhibit PW1/3. The case of the plaintiff is that the defendant, however, notwithstanding the dissolution of the partnership, as agreed, failed to remove himself from the aforesaid premises.

(3.) IT is further the case of the plaintiff that the defendant instead filed a suit for permanent injunction claiming that the plaintiff had agreed to sell the aforesaid premises to him and that he was in possession thereof under section 53a of the Transfer of Property Act and for restraining the plaintiff herein from dispossessing the defendant from the premises. The plaint in the said suit of the defendant was rejected by the court of the Civil Judge Delhi vide order dated 6th May, 1999 proved as Exhibit PW1/4. It was inter alia held by the Civil Judge that the remedy, if any, of the defendant was for specific performance and the suit for injunction simplicitor did not lie. It was further found that since the plea of the defendant was of an oral agreement to sell, the plea of Section 53a to the Transfer of Property Act also was not available to the defendant. The defendant is proved to have preferred an appeal to the court of the Additional District Judge against the aforesaid rejection of plaint. The said appeal was also dismissed by the court of the Additional district Judge, Delhi vide judgment dated 8th November, 2000 proved as exhibit pw1/5.