BRIJ DEI DAUGHTER OF LATE SH. NARAIN DASS AND INDER LAL SON OF LATE SH. NARAIN DASS BOTH RESIDENTS OF FAY LODGE, CART ROAD, SHIMLA, H.P. Vs. AJAY SHARMA SON OF LATE SH. JAGDISH RAM SHARMA, REISENET OF FAY LODGE, CART ROAD, SHIMLA

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 30.9.2002 rendered by the learned District Judge, Shimla in Civil Appeal No. 90 -S/13 of 2000 whereby an appeal preferred by the appellants -defendants (hereinafter referred to as 'defendants' for convenience sake) has been rejected and the Cross -Objections filed by the respondent -plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) have been partly allowed and the judgment and decree passed by the learned Sub Judge dated 27.6.2000 in Civil suit No. 392/1 of 1995 has been affirmed.

(2.) According to the plaintiff, he purchased suit property alongwith a shop with two rooms and a balcony in the first floor of 'Fay Lodge' comprised in Khasra No. 591 vide sale deed dated 4.7.1986 registered in the office of Sub -Registrar, Shimla at Sr. No. 421, Book No.1, Volume -38 dated 5.7.1986 for consideration of Rs. 35,000/ -. It is stated that Brij Lal was statutory tenant in the suit property. He died on 7.5.1995 leaving behind no heir or person, who could inherit the tenancy rights under the provisions of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the 'Act' for brevity sake). Brij Lal used to live all alone in the suit property being residential in nature. Defendants claiming themselves to be sister and brother of Brij Lal have unlawfully entered into the suit property. Plaintiff asked them many times to hand over the possession to him but to no avail. Defendants started threatening to commence commercial activities in the residential property. They were threatening to part with the possession. Brij Lal was tenant at the rate of Rs. 100/ - per month. According to the plaintiff, defendants were in illegal possession of the suit property from 7.5.1995. Plaintiff has claimed Rs. 35,000/ - as damages for illegal use and occupation of the suit property by defendants till the date of filing of the suit. Plaintiff has also claimed mesne profit from the defendants at the rate of Rs. 100/ - per day till the date of possession of the suit property was delivered to him by the defendants.

(3.) REPLICATION was filed by the plaintiff. Issues were framed by the learned Sub Judge 1st Class, Court No.2 on 16.1.1996. Learned Sub Judge 1st Class decreed the suit to the effect that plaintiff was entitled to the relief of possession in respect of the suit property. Suit was also decreed to the effect that plaintiff was entitled for use and occupation charges as mesne profits from the defendants at the rate of Rs. 100/ - per month from the date of filing of the suit till the possession was handed over. Defendants were restrained by way of permanent prohibitory injunction from running bath house in the suit property and any other commercial activities. Defendants feeling aggrieved by the judgment and decree passed by the learned Sub Judge 1st Class (2), Shimla dated 27.6.2000 filed an appeal before the learned District Judge, Shimla. Plaintiff also filed cross -objections against the judgment and decree dated 27.6.2000. Learned District Judge dismissed the Civil No. 90 -S/13 of 2000 preferred by the defendants and partly allowed the Cross -objections No. 94 -S/13 of 2000 vide judgment dated 30.9.2002. Hence, this appeal. It was admitted on the following substantial questions of law: