MANOHAR LAL Vs. DEV PAUL

JUDGEMENT

(1.) This is defandant's second appeal against whom the suit for possession of the shop, in dispute, and for the recovery of damages by way of mense profits was dismissed by the trial Court, but decreed in appeal.

(2.) According to the plaintiff respondent Dev Pal, he was the owner of the shop, in dispute. It was leased out to Janki Dass an Bal Krishan, defendants, in January, 1965, at the rate of Rs. 62.50 per month including the property and other taxes. The said defendants sublet the shop, in question, to Manohar Lal, defendant-appellants, without his consent. He brought the ejectment application in the Court of the Rent controller, Moga, against the defendants and the eviction order dated June 8, 1985, was passed therein. In execution of the said order, he got vacant possession thereof on October 9,1969. Manohar Lal, defendant, took forcible possession after the said date and was in possession thereof as a trespasser; hence the present suit on December 20, 1976, for the re-covery of the possession and Rs. 5,000/- as the damage/mense profits fro the use and occupation of the shop from May 25, 1971to December 28, 1976. The defendant filed the written statement along with Madan Lal, defendant (now deceased) and contested the suit. It was denied that Bal Krishan ad Janki das, defendants, had taken the shop on rent as alleged in the plaint. Accoding to them Madan Lal, defendant, had been in occupation of the shop for more than 30 years as a tenant. He never vacated the shop. He entered into a deed of partnership with Manohar Lal, defendant, on February 16, 1985. Since then, the partnership business was being carried out in the shop. The version put up by the plaintiff that Bal Krishan and Janki Dass, defendants had sublet the premises to Manohar Lal, defendant, was also denied. It was also pleaded that the ejectment order obtained against Bal Krishan and Janki Dass, defendants, by the plaintiff was of no consequence as regards their rights, Bal Krishan and Janki Dall, defendants, filed separate written statements, admitting the ownership of the shop of the plaintiff, According to them, a false suit had been filed against them when they were never in possession of the shop. According to the findings of the trial Court, the plaintiff had failed to prove that the defendants or any of them had taken illegal possession of the shop or they were liable to pay any damages to the plaintiff. It was further held that Madan Lal, defendant, was a tenant it under the plaintiff on the shop in dispute during his life time. When he died during the pendency of the suit, his name was delerced vide order dated March 17, 1981. With these findings, the plaintiff's suit was dismissed I may, however, be pointed out that after the death of Madan Lal, defendant, no one came forward to be impleaded as his legal representative in the suit. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that in view if the judgment and decree of this Court dated February 21, 1973, Exhibit P 6, in Regular Second Appeal No. 674 of 1973, (Dev Pal v. Janke Dass) decided on February 21, 1973, there was no escape from the conclusion that Manohar Lal,appellant, was in forcible possession of the shop, in dispute and that the plaintiff had rightly claimed possession and the compensation for the use and occupation thereof Consequently, his suit was decreed. Dissatisfied with the same, Manohar Lal, defendant, has filed this second appeal in this Court.

(3.) The learned counsel for the appellant contended that Madan Lal, deceased, defendant, was inducted as a tenant by the plaintiff. He never vacated the premises in December, 1985, as alleged by the plaintiff. The ejectment order obtained by him was a collusive one and in any case did not effect the rights of the defendant. According to the learned counsel, since Manohar Lal, defendant, had entered into the partnership with Madan Lal deceased, he was in occupation thereof as such and therefore, he could not be a trespasser. It was also argued that after the death of Madan Lal, defendant, he had entered into a new partnership with his legal represent atives. Thus, argued the learned counsel, the finding of the trial Court in this behalf has been reversed in appeal arbitrarily on surmises and conjectures.