BISHAMBER LAL Vs. RAJINDER PARSHAD AND ORS.

JUDGEMENT

(1.) THIS is a regular second appeal filed by the appellant under Section 100 of the CPC read with Section 20 of the Himachal Courts Act, 1972, against the judgment and decree, dated 4.8.2005, passed by the learned Additional District Judge (Fast Track Court), Shimla, setting aside the judgment and decree of the court of learned Sub Judge, Court No. V dated 27.9.2000, vide which he had decreed the suit of the plaintiff for possession of one room.

(2.) BRIEFLY stated the facts of the case are that the plaintiff filed a suit for possession of one room alleging that he was the owner of the building No. 438 alongwith other property at Kanlog, which he had inherited from his late father Shri Ghungar Mall, who died in the year 1977. It was alleged that after the death of the father of the plaintiff, there was a family settlement between the plaintiff and his brothers Shri Rajinder Prasad, defendant No. 3, and Vijay Kumar, which was effected in between the parties through a memo of partition executed on 25.3.1981. It was alleged that the premises in occupation of defendant No. 1 as tenant on monthly rent of Rs. 30/ - fell in the share of the plaintiff and accordingly defendant No. 1 became the tenant of the plaintiff and had been paying the rent regularly to the plaintiff. Defendant No. 1 vacated the premises i.e. one room in his occupation, as tenant, but failed to hand over the possession to the plaintiff. Defendant No. 1 surrendered the possession of the premises and handed over the keys to defendant No. 3 illegally, without the consent and knowledge of the plaintiff. The plaintiff filed eviction petition under Section 14 of the H.P. Urban Rent Control Act against defendant No. 1 on the ground of non -payment of rent as well as on the ground that defendant No. 1 had shifted to his own residence. A statement was made by defendant No. 1 through his counsel before the Rent Controller that defendant No. 1 had handed over the possession to defendant No. 3 and thereafter defendant No. 3 had inducted defendant No. 2 as a tenant in the premises. It was alleged that defendant No. 1 had no right to hand over the possession of the premises to defendant No. 3 and in view of the family settlement, dated 25.3.1981, the position of defendant No. 2 is that of trespasser. It was alleged that defendant No. 3 has been realizing use and occupation charges from defendant No. 2 at the rate of Rs. 250/ - per month to which he had no right and as defendant No. 2 has failed to hand over the possession to the plaintiff, hence the suit for possession filed by the plaintiff.

(3.) ON the pleadings of the parties the following issues were settled by the learned trial Court: