SATYA SINDHU PANDEY Vs. MOHAMMAD SHUAL ISLAM

JUDGEMENT

(1.) This appeal arises from a suit for possession and recovery of mesne profits and damages. The suit arose in the circumstances indicated hereinafter. Respondents 1 and 2 Mohammad Shuaul Islam and Smt. S.K. Islam are the owners of a house situate at Rana Pratap Marg. This house was allotted in favour of the appellant Satya Sindhu Pande on 21-10-1963. In pursuance of this allotment order he entered into possession of the property in dispute. This allotment order related to the entire house. On a writ petition filed by the owners this allotment order was quashed by this court on 2-11-1965. Thereafter another allotment order was passed on 20-1-1966 in respect, of a portion of the house. This order was also quashed by this Court on 3-11-1970 on a writ petition filed by the owners. The owners thereafter filed suit for possession and recovery of mesne profits and damages. The allegation of the owners was 1 hat the accommodation in question was never vacant so as to be available for allotment under the provisions of Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act No. 3 of 1947 and therefore from the inception the occupation of Satya Sindhu Pande who entered into possession in pursuance of the allotment order was illegal and he was therefore liable to pay mesne profits to them. These mesne profits were claimed at the rate of Rs. 525/- per mensem. Pendente lite and future mesne profits were claimed at the rate of Rs. 1000/-per mensem. In paragraph 17 of the plaint it was stated that the damages on account of illegal use and occupation of the premises by the appellant was not less than Rs. 725/- per mensem. Thereafter in paragraph 18 it was stated that on account of their inability to pay court fee on higher amount the plaintiffs were claiming mesne profits at the rate of Rs. 525/-only. It was also pleaded that during his occupation of the property in dispute the appellant caused damage to the building, trees and gardens and also removed seven fans costing Rs. 1200/-. The total amount for which money decree was claimed under the various heads was Rs. 22,000/-. Decree for possession was also claimed over the property in dispute.

(2.) In the above suit respondents 3 and 4 had also been impleaded on the allegation that they had admitted their liability for payment of rent and damages arising out of the occupation of the building by the appellant.

(3.) The above suit was contested and it was pleaded that respondents 3 and 4 were not liable for any of the reliefs claimed by respondents 1 and 2. The rate at which the mesne profits were claimed was also challenged. It was asserted in paragraph 17 of the written statement dated 12-1-1971 that the property in dispute had been constructed prior to the year 1940 and was subject to the provisions of U. P. (Temporary) Control of Rent and Eviction Act No. 3 of 1947 and, therefore, plaintiffs-respondents could at the most get reasonable rent as defined under the Act. The damage to property, trees and gardens was denied and it was asserted that the fans had not been taken away by the appellant but were still in tact in the building.