KULDEEP SINGH Vs. SANTOSH DUTTA AND ORS

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 1.11.2011 passed by learned District Judge, Shimla in Civil Appeal No.28-S/13 of 2011.

(2.) "Key facts" necessary for the adjudication of this Regular Second Appeal are that the predecessor-in-interest of the respondents/plaintiffs (hereinafter referred to as "plaintiffs" for convenience sake) filed a suit for possession and recovery of use and occupation charges by damages against the appellant/defendant (hereinafter referred to as "defendant" for convenience sake). Initially the suit was filed by the predecessor-in-interest of the plaintiff, namely, Sanjay Dutta. He died during the pendency of the suit and was substituted by his legal heirs.

(3.) According to the plaintiffs, Shop No.15 was rented out to a firm named M/s Friends Dyers and Drycleaners on a rental charge of Rs.350/- per annum plus taxes vide agreement dated 1.7.1964 (Ext.PW1/B). The rent/lease deed was entered with the firm, i.e. M/s Friends Dyers and Drycleaners through its partners, namely, Rameshwar Dass Sood, Banarsi Dass Sood and Om Prakash Sood. In the month of August 2008, the plaintiff came to know that all the partners of the firm have expired and the firm stood dissolved. With the dissolution of the firm, the tenancy/lease agreement, entered into by predecessor-in-interest of the plaintiffs with the firm stood terminated. The defendant was running a shop comprised in front portion of Shop No.15 and was residing in the back portion of the shop. The possession of defendant is illegal and unauthorized as the defendant was the trespasser in the said premises. A Legal notice was served upon defendant on 6.10.2008 to hand over the vacant possession of the said premises within fifteen days from the receipt of the notice. However, the defendant refused to hand over the vacant possession of the shop. In view of this, the defendant was liable to pay use and occupation charges of the premises in question from the date of receipt of notice dated 6.10.2008 onwards @ Rs.350/- per day, as the defendant was liable to vacate the premises after the issuance of the notice. In these circumstances, the suit was filed directing the defendant to hand over the vacant possession of the part of Shop No. 15, being run as Dry Cleaner Shop situated towards Shimla/Sanjauli Chowk, comprising of front portion of Shop No. 15 measuring 10X12 feet and a room on the back of Shop No. 15 measuring 10X16 feet comprised in Khasra No. 406 situated at Up Mohal Sanjauli Bazaar, Tehsil and District Shimla and a decree for recovery of Rs.8750/- ( Rs.350/- per day from the issuance of notice i.e. 6.10.2008 till filing of the suit) on account of use and occupation charges and pendente lite and future use and occupation charges from the date of filing of the suit till the date of actual delivery of possession at the rate of Rs.350/- per day was also sought in favour of the plaintiff and against the defendant.