SUBHASH CHAND SHARMA Vs. SHAKUNTLA DEVI

JUDGEMENT

(1.) The defendant is the appellant, who is aggrieved by the judgment and decree dated 4.9.2002 passed by learned District Judge, Shimla in Civil Appeal No. 34-S/13 of 2002/2001 whereby he reversed the judgment and decree dated 29.12.2000 passed by learned Sub Judge (3), Shimla in Civil Suit No. 490/1 of 1996/93 dismissing the suit filed by the plaintiff.

(2.) The original plaintiff Smt. Shakuntla Devi filed suit against the appellant/defendant for issuance of mandatory injunction directing the defendant to withdraw from the one room/eastern godown, in the ground floor of building No.2, Alley No. 15, the Mall, Shimla and to hand over the same to the plaintiff and also for recovery of Rs. Nil on account of use and occupation charges. The case set out by the plaintiff is that she is the absolute owner of half (western) portion of the building No.2, Alley No.15, The Mall, Shimla, which is three storeyed structure. First and top floor of the building is in her own occupation. In the ground floor, there are two rooms/godowns. One godown/room, measuring about 3 metres x 5 metres as shown in red colour in the plan attached to the plaint was in occupation of Pandit Jagan Nath, tenant, who died in the month of March, 1991; and consequently his tenancy came to an end. The defendant, who is a major son of deceased Jagan Nath was not ordinarily residing with his father. He is employed as a government servant and had his independent family establishment even during the life time of his father and used to reside in premises, bearing No. 120/2, Lower Bazar, Shimla. It was alleged that the defendant after the death of his father is intermeddling with his estate and being in constructive control of the aforesaid godown is under every legal obligation to withdraw from the same as there exists no right, title or interest in his favour to either control, intermeddle or deal with the said room/godown in any manner. After the death of Sh. Jagan Nath, the defendant was time and again asked to take out all the belongings of his deceased father from the said godown/room but on one pretext or the other he had been avoiding to vacate the premises despite issuance of notice, dated 30.9.1992. It was also alleged that after the death of Sh. Jagan Nath, the defendant, having not withdrawn from the said room is liable to pay Rs. 200/- per month on account of use and occupation charges with effect from April, 1991 as he has kept the said room locked after the death of Sh. Jagan Nath. It was also averred that as the defendant is not withdrawing from the premises, the plaintiff is entitled to the relief of mandatory injunction and that the plaintiff voluntarily foregoes and relinquish her claim qua the past amount of use and occupation charges and reserves her right to recover the same for the future period. It was also averred that if the relief claimed by the plaintiff is not granted, an irreparable loss and injury shall be caused to her and that there is no other efficacious remedy available to the plaintiff, than to file the present suit.

(3.) The defendant/appellant while resisting the suit, raised preliminary objection that suit is not maintainable in view of the provisions laid down in H.P. Urban Rent Control Act, 1987. It was denied that the plaintiff is the absolute owner of the western half portion of the building No.2, Alley No. 15, The Mall, Shimla. It was pointed out that first and top floor of the said building are in occupation of Sh. Chander Shekhar and Sh. Sudarshan Kumar, respectively. It was further pointed out that there are three rooms in the ground floor of the said building, out of which one room was in occupation of Sh. Jagadhar and the other two rooms are in occupation of the defendant and family. It was averred that after the death of Sh. Jagan Nath, his tenancy has been inherited by all his legal heirs, who were ordinarily residing with him. It was a joint family. It was denied that the defendant at the time of death of Sh. Jagan Nath, tenant was not ordinarily residing with him. It was asserted that the defendant is no doubt in government service but was residing jointly with his father. The joint family was sharing both the accommodations i.e. the premises in dispute and the other premises i.e. No. 120/2 (middle flat), Lower Bazar, Shimla, which hardly consists of one small room, one pantry (which is used as passage to room and kitchen) and one small kitchen, bath and latrine. It was averred that the other accommodation was taken due to paucity of accommodation in the disputed set, in view of the large joint family. It was also averred that "the defendant is in constructive and legal possession of the said set and he and other legal heirs have got every legal right to occupy the set". It was denied that the tenanted set is not in physical possession of the defendant. It was clarified that the defendant alongwith other legal heirs of late Sh. Jagan Nath are the joint tenants qua the disputed set and their landlord is Sh. Sudarshan Sood.