DURGA SINGH THAKUR Vs. SAT PAL

JUDGEMENT

(1.) This appeal is directed against the judgement and decree dated 1.6.2000 passed by learned District Judge, Shimla in Civil Appeal No. 128-S/13 of 1998 modifying the judgement and decree dated 29.5.1998 passed by learned Sub Jude Ist Class, Court No. II, Shimla in case No. 217/1 of 95/90.

(2.) The appellant was plaintiff and he filed a suit for recovery of Rs. 5616/- on account of use and occupation charges against respondents Sat Pal, Parkash Chand, Ishwar Dass, Lal Singh and Sukh Dev on the grounds that property known as upper floor, Ram Singh House, Cart Road, Shimla is owned by appellant, Sukh Dev respondent was statutory tenant in the premises on payment of Whether the reporters of the local papers may be allowed to see the Judgment? yes Rs.1400/- per month excluding taxes. Respondent Sukh Dev left Shimla in the year 1982 and sublet the premises to Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh. The appellant had filed ejectment petition against respondent No. 6 Sukh Dev, which was allowed on the grounds of subletting and arrears of rent on 8.12.1996 for the period 1.4.1982 to 31.8.1985. The respondent Sukh Dev did not deposit the arrears of rent. The appellant had filed execution for recovery of possession, Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh filed an application for stay of proceedings. They also filed civil suit and took the plea that they are tenants in their own capacity. It has been proved in the eviction order that Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh are sub-tenants and have no right to retain the possession of the premises. It was alleged that Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh had not paid any amount since 1982, they are in possession of the premises and are liable to pay use and occupation charges. In view of limitation, the appellant had restricted his claim from 1.6.1987 to 31.5.1990 at the rate of Rs.1600/- per annum alongwith 9% interest and taxes total Rs.5616/-. The appellant has prayed 18% per annum future interest from the date of filing of the suit till realization of the suit amount.

(3.) The suit was contested by Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh, in which preliminary objections of maintainability, mis-joinder of parties, cause of action, jurisdiction, there is a relationship of landlord and tenant and therefore, only rent is payable, stay of suit under Section 10 CPC as similar question between the parties is involved in an earlier suit, which is in appeal and pending, estoppel and better particulars of the premises have been taken. On merits, the claim of the appellant was denied. On 10.9.1991, name of Sukh Dev was deleted from the array of the parties by learned Sub Judge. The defendant No. 3 Ishwar Dass died on 15.10.1993 and his legal representatives respondents No. 3 and 4 were brought on record. The replication was filed. On the pleadings of the parties the following issues were framed:-