RAKESH KUMAR Vs. RAJ KUMAR

JUDGEMENT

(1.) HEARD learned Counsel for the parties and perused the record. This appeal if directed against the judgment and decree dated 29.10.2009 passed by Civil Judge (Senior Division) Rishikesh, District Dehradun, whereby the suit of the plaintiff-respondent has been decreed against the defendant-appellant and the appellant has been directed to va­cate the disputed property within a period of one month and so deliver its va­cant possession to the plaintiff-respondent. The defendant-appellant has also been directed to pay damages @ Rs. 250/- per day from 21.3.2009 till the actual date of delivery of possession along with 2% interest as mentioned in the im­pugned judgment.

(2.) RELEVANT facts giving rise to the present appeal in brief are that the plaintiff-respondent filed a suit for permanent injunction against his real brother/defendant-appellant in the Court of Civil Judge (Senior Division) Rishikesh, Dehradun, alleging therein that the respondent is the owner-in-interest of the Abadi land measuring 0.289 Acre of plot No. 126 situate at Shyampur Bypass Rishikesh, District Dehradun. The said property tame to the share of the plaintiff in the family partition. In Suit No. 194 of 2007, Rakesh Kumar v. Rajkumar, the plaintiff was declared sole owner of the dis­puted property. The defendant is the younger brother of the plaintiff and the defendant was temporarily permitted to install petrol pump in the disputed property. The plaintiff had requested the defendant to remove the structures and to deliver the possession of the disputed property but the defendant adopted dilatory tactics. The plaintiff determined the tenancy of the defendant by registered notice dated 9.3.2009 and asked him to vacate the disputed properly and deliver its possession to the plaintiff within a period of seven days from the date of receipt of notice, else the plaintiff would proceed against the defendant in the competent Court. The notice was not complied with by the defendant. The occupation of the defendant over the disputed property is per­missive, which stood determined, therefore, the plaintiff is entitled to gel the possession of the property in question. Ultimately the suit has been filed for possession and for recovery of damages as mentioned in the relief clause of the plaint.

(3.) ON the pleadings of the parties, the learned Trial Court framed the following issues;- ISSUES