KAILASH CHANDRA Vs. RAM BABU

JUDGEMENT

(1.) The instant Second Appeal has been preferred by the defendant/appellant being aggrieved against the judgment dtd. 29/11/2018 as passed by IInd Additional District Judge, Kashipur District Udham Singh Nagar in Civil Appeal No.05 of 2015, which arises from the proceedings in the Suit No. 12 of 2006, Banarsi Dass Vs. Kailash Chandra and others, by virtue of the suit in question, the plaintiff has sought a decree in the nature of permanent mandatory injunction seeking a decree in the nature mandatory injunction commanding the defendant/appellant herein to be evicted from the property lying on the first floor and had also prayed for the payment of damages for the user of the property @ Rs.300.00 per month w.e.f. 12/1/2006, till the time of eviction.

(2.) In the suit thus filed on 8/1/2006, in a nutshell, the plaintiff's case was that the property in dispute which constitute to be on the first floor has got two rooms, a latrine, a kitchen and a bathroom situated at Mohalla Pakkakote which has bounded by description as given in the body of the Plaint.

(3.) The plaintiff's case was that late Mr. Banarsi Dass (i.e. Principal Plaintiff) out of his own income had constructed a house which was a two storied building, situated at the aforesaid address given in the plaint. However, during the pendency of the suit, the principal plaintiff died and plaintiff Nos. 1/1,1/2 and 1/3, namely Ram Babu, Anil Kumar and Sanjeev Kumar i.e. the present respondent Nos.1 to 3 were substituted as the party on the basis of the WILL executed by Late Banarsi Dass in their favour on 1/4/2006. It was the case of the plaintiff that land on which the construction was raised was purchased by Late Banarsi Dass (i.e. the Plantiff) through a registered sale deed executed in his favour in the year 1980, from his predecessor owner and on which he got residential accommodation constructed upto the first floor as per law. His case was that his younger daughter Rama Devi i.e. defendant No.6 was married in the year 1996, with one of the defendant No.1 namely Kailash Chandra S/o Mt. Choukhe Lal. Since after the marriage and as a consequent thereto he became the family member, an offer was extended by the son-in-law who is defendant No.I, herein seeking the permission from the plaintiff to permit him to reside on the first floor of the accommodation-in-question and consequently, the plaintiff- i.e. late Mr. Banarsi Dass who was father-in-law, considering the delicacy of relationship Defendant No.I of being son-in-law, had granted permission to his younger daughter and the son-in-law i.e. Kailash Chandra i.e. Defendant No.I to reside on the first floor of the disputed accommodation.