MEGH RAM Vs. ONKAR CHAND

JUDGEMENT

(1.) This second appeal has been preferred by the defendant -appellant (hereinafter referred to as the defendant) against the judgment and decree dated 28.5.1993 passed by the learned Addl. District Judge (I), Shimla, thereby affirming the judgment and decree passed by the learned Sub Judge, Rampur Bushahar, Distt. Shimla, decreeing the suit of the plaintiff -respondent (hereinafter referred to as the plaintiff") for mandatory injunction.

(2.) The facts of die matter, in brief, are that the plaintiff instituted a suit for mandatory injunction against the defendant directing him to withdraw himself alongwith his belongings and malva of the shed built on land comprising khewat No. l, khatauni No. l, Khasra No. 1326/191/1 measuring 5 biswas situate in village Khaneti Shilli Sadhoch, Teh. Kumarsain, Distt. Shimla (hereinafter referred to as the suit land) and to pay Rs.2000/ - on account of losses and damages suffered form plaintiff. Case of the plaintiff, as made out in the plaint, is mat on being approached, the plaintiff granted licence to the defendant over the suit land permitting him to install sawing machine by providing a shed thereon for a period of 5 years. In lieu thereof, the defendant undertook to manage the entire adjoining land, house and orchard owned and possessed by the plaintiff situate in Bara Khaneti. It was agreed to between the parties that in case of defendant being negligent in the management of the plaintiffs aforesaid property, he would be liable to pay damages and losses suffered by the plaintiff and that the defendant would not get any adverse entries made regarding ownership and possession of the suit property. In the event of the defendants failure to perform his part of the contract, the plaintiff was entitled to revoke the licence after giving 15 days notice. In violation of the terms of the agreement, the defendant built two stalls over the suit land and also failed to look after the property of the plaintiff as agreed to, resulting in - damage to the grass and plants thereon. Consequently, plaintiff served the defendant with a notice terminating the licence and to pay damages. In reply, the defendant admitted the lapses on his part and promised to remit the amount of losses and damages suffered by the plaintiff and also agreed to vacate the suit property by 31.12.1983. However, the defendant failed to surrender the possession and to pay a sum of Rs.2000/ - by way of damages as claimed, hence the present suit.

(3.) The defendant contested the suit In the written statement, he took preliminary objections that the suit for more mandatory injunction is not competent and that the suit is not properly valued for purposes of court fee and jurisdiction. On merits, it has been claimed that during the 5 years terms of licence, the defendant had been making improvements and development in the land and orchard of the plaintiff and has installed a sawing machinery and a shed after incurring huge expenses and that no damage has been caused to the plaintiff by the imputed negligence of the defendant. The claim of the plaintiff to get the possession of that suit property has been denied, as not being genuine. Liability to pay the damages has also - been denied.