DURGA CHARAN SINGH Vs. KAMAL THAKUR

JUDGEMENT

(1.) THIS regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Shimla in Civil Appeal No. 14 -S/13 of 2010/2004, dated 30th March, 2010.

(2.) MATERIAL facts necessary for adjudication of this regular second appeal are that the Predecessor - in -Interest of the Respondents, Shri Nand Lal instituted a suit in the court of learned Civil Judge (Junior Division), Shimla alleging in the plaint that he along with Appellants/Defendants (hereinafter referred to as "the Defendants" for convenience sake) was joint owner in possession of the suit property. On 17.1.1998, a family settlement took place between all the co -owners before the Assistant Collector 1st Grade, Shimla. The family settlement was confirmed by Tehsildar, Shimla and mutations were attested by the Revenue Officer qua respective shares of the parties on 29th December, 2000. According to the family settlement, Plaintiff was given 15 biswas land bearing Khasra Nos. 223, 223/1 and 224 to 230 along with built up structure. The built up structure is situate over Khasra Nos. 227 and 230 in Tutikandi, Shimla. The property is known as 'Shanti Bhawan '. Prior to family settlement, one room in Khasra No. 227 and one room with kitchen and bath room at first floor in Khasra No. 230 in Shanti Bhawan were in possession of Defendant No. 1 and two rooms with kitchen and bath at second floor in Khasra No. 230 were in possession of Defendant No. 2 and as per family settlement, it was settled that the Defendants will hand over the vacant possession of the accommodation detailed above to the Plaintiff within three months. According to the family settlement, the Defendants have got their respective shares from the joint land and they are staying in their own houses which are adjacent to Shanti Bhawan and they have not vacated the accommodation. The Plaintiff (Nand Lal) approached the Defendants and requested them to hand over the vacant possession of the accommodation in question. The land/building was mutated in his favour on 29th December, 2000. It was agreed on the basis of writing dated 30th August, 2001 by Defendant No. 1 to hand over the vacant possession of the accommodation in his possession to the Plaintiff within a short period of one or two months. A legal notice was issued by the Plaintiff to Defendants on 11th December, 2001. The Defendants neither filed any reply to the notice nor handed over vacant possession to the Plaintiff. According to the Plaintiff, Defendants were in unauthorized occupation of the premises in question. They were liable to pay the use and occupation charges with effect from 1st February, 2002. It is in these circumstances that the Plaintiff instituted a suit for possession of the premises in question along with a decree for recovery of use and occupation charges from 1st February, 2002 till handing over the vacant possession of the accommodation in question at the rate of Rs. 2,000/ - per month.

(3.) NOTICES were issued to the Respondents on 13th August, 2010. Mr. Romesh Verma, Advocate has put in appearance on behalf of the Respondents.