RAJENDRA SINGH Vs. KUMAR ALIAS KUKKI

JUDGEMENT

(1.) Present second appeal has been preferred by the plaintiff/appellant against the judgment and decree dated 10.06.2009 passed by District Judge, Tehri Garhwal, New Tehri in Civil Appeal No.4 of 2007, whereby said court dismissed the plaintiff's appeal.

(2.) In brief, facts of the case are that plaintiff/appellant filed a suit being Original Suit No.16 of 2002 before Civil Judge (Sr. Div.), Tehri Garhwal, stating therein that on 06.11.1995 a contract was given by him to the defendant for constructing two shops for an amount of ' 45,000/-. A written agreement to this effect was also executed between the plaintiff and the defendnat. The defendant did not complete the work inspite of receiving additional amount and after his leaving the construction, the work was got completed by the plaintiff from some other person. After constructing these two shops, one was given on rent to Gulab Singh @ Rs.800/- per month and the other shop was encroached upon by the defendant. When the dispute arose, then both the shops mentioned in the schedule were attached by the Executive Magistrate on 07.03.2002, but on 09.05.2002, both the shops were released from attachment and possession of shop shown by letter 'A' was given to the plaintiff whereas possession of shop shown by letter 'B' was wrongly given to the defendant. Hence, the original suit was filed by plaintiff against the defendant for possession of the said shop and for grant of mesne profit @ Rs.500 per month until its vacation.

(3.) The defendant contested the suit and filed his written statement. He admitted the fact of giving contract for construction of shops and that shop shown by letter 'A' was given to Gulab Singh by the plaintiff but denied onwerhship of the plaintiff over the shop in dispute. He contended that this shop shown by letter 'B' is actually two shops which are in the joint ownership of the defendant and his brothers. He also contended that the suit is bad for non-joinder of necessary party as the plaintiff has not impleaded brothers of the defendant.