RAVINDER KUMAR SHARMA Vs. OM PARKASH

JUDGEMENT

(1.) THIS Second Appeal is by plaintiff Ravirder Kumar Sharma against the judgment and decree of the Additional District Judge, Ludhiana, dated August 6, 1990, dismissing the appeal filed against the judgment and decree of the trial Court dated November 12, 1988. The suit was brought for possession of Shop No. 2, forming part of property unit No. B XIX-732, situated at Rishi Dayanand Road, Ludhiana, and for recovery of Rs. 14,400/- as compensation for use and occupation for the period January 1, 1980, to December 31, 1982, at the rate of Rs. 400/-per mensum. Smt. Manchar Wati, mother of the plaintiff, was originally owner of the shop in dispute. She also owned three other shops. She gifted these shops to the plaitiff on December 29, 1975. In this manner, the plaintiff became owner of three Shops Nos. 1, 2 and 3 of the aforesaid property unit. Manohar Wati bad allowed defendant Om Parkash to use portion of Shop No. 2 as licensee since May, 1969, for carrying on business of drycleaning. The actual possession and control of the shop remained with Manohar Wati. Initially the licence-fee was fixed at Rs. 110 per mensem. A licence-deed was executed between Manohar Wati and Om Parkash on May 1, 1969. Even after execution of the gift-deed aforesaid, Om Parkash defendant was permitted to use portion of the Shop No. 2 as licensee on the licence-fee of Rs. 110/- per month. A licence-deed was executed on January 1, 1976. Again, in April, 1979 Om Parkash was allowed user of the entire Shop No. 2 for a period of eleven months on payment of licence-fee of Rs 400/- per month. A fresh licence-deed was executed. Several terms and conditions of the licence were mentioned in the plaint. Since the dispute occurred on account of non-payment of licence fee, the present suit was filed.

(2.) THE suit was contested by defendant Om Parkash, inter alia, alleging that in fact from the very begining there was a tenancy. He was in actual possession and control of the shop. He denied actual control of the shop with Manohar Wati. According to him, Rs. 110/-per month was the rent fixed. He had placed a show-case for hanging drycleaned clothes, big tables for pressing clothes and a hydro machine for drycleaning the clothes in the shop. He claimed that he was in possession of the entire shop He denied having executed the licence-deeds aforesaid. He also denied execution of the gift-deed in favour of the plaintiff by his mother, Manohar Wati, on the ground that possession could not be delivered under the gift as the defendant was in actual possession. It was the Rent Controller alone, who had the jurisdiction in the matter. Uptil December, 1979, the defendant had been paying rent regularly against receipts. Even after execution of the alleged gift-deed, Manohar Wati continued getting rent against receipts. The plaintiff was living with his mother, having a joint mess and residence and they were residing alongwith Amrit Lal, husband of Manohar Wati. An assertion was made with respect to the occupants of the adjoining shops They were also alleged to be tenants There was no question of any increase in rent from Rs. 110/- to Rs. 400/- per month.

(3.) THE following issues were framed by the trial Court :-