SHAM LAL AGGARWAL Vs. RANA SUMESHWAR SINGH

JUDGEMENT

(1.) This is Defendant's second appeal against the judgment and decree dated 21.3.1995 passed by District Judge, Shimla, whereby the judgment and decree dated 19.11.1993 of Senior Sub Judge, Kinnaur Camp at Rampur were affirmed and suit of the Plaintiff for possession of the shop and recovery of Rs. 1705/ - as arrears of rent with interest was decreed.

(2.) The Plaintiff filed suit for recovery of possession and arrears of rent amounting to Rs. 1705/against the Defendant. The Plaintiff said that he is the owner and in possession of various shops in main bazar Kumarsain, District Shimla, which have been rented out to various persons on monthly rent. Out of the aforesaid shops, shop No. 14 single storeyed abutted by the right side of shop occupied by one Tula Ram and from left side by the shop occupied by one Gopi Chand as tenants of the Plaintiff has been rented out to the Defendant on monthly rent of Rs. 155/ -. The tenancy was to commence from 1st November, 1988 for a period of 11 months and thereby the tenancy expired on 30.9.1989. The parties had executed rent -deed to this effect. The Plaintiff asserted that since the monthly tenancy of the Defendant had expired on 30.9.1989 and that the Defendant was liable to hand over the vacant possession of the shop to the Plaintiff, but he failed to hand over the same. A notice was served upon the Defendant whereby his tenancy was determined. The Defendant paid the rent for the month of November, 1988 only and thereafter no rent has been paid to the Plaintiff till 31.10.1989 and therefore, he was liable to pay an amount of Rs. 1705/ - as arrears of rent with Interest at the rate of 18% per annum.

(3.) The Defendant in written statement raised preliminary objections Inter alia, pleaded that Plaintiff has no locus standi, to file the present suit as the vacant land under the 'Dhara' (temporary structure) was given to him by Rajmata Darbar Kumarsain on payment of Rs. 30/ - as fee and subsequently, fee was raised to Rs. 150/ -. The structure has been raised by the Defendant himself on the understanding that he would not be evicted till he would regularly pay the fee or rent for the land, meaning thereby that it was a perpetual lease in his favour. The suit has not been filed by the Plaintiff's attorney with his consent. That the suit is bad for non -joinder of necessary parties and the portion of 'Dhara' No. 14 given to Tula Ram was not taken from him and handed over to Defendant. That no valid notice has been served upon the Defendant. On merits, it has been stated that the Plaintiff is not the owner of the shop but there is dispute between the Plaintiff and Smt. Shashi Prabha the heir of Rajmata Darbar Kumarsain, about the suit property. It is denied that the shop was rented by the Plaintiff to the Defendant. The Defendant constructed the double storeyed 'Dhara' himself on a vacant land given to him on lease by Rajmata Darbar Kumarsain on payment of Rs. 30/ - per month which gradually was raised. It is averred that after the death of Rajmata Darbar Smt. Shashi Prabha served a notice upon the Defendant for the recovery of rent. The payment of monthly rent to the Plaintiff by the Defendant at the rate of Rs. 155/is also denied. Similarly, the tenancy as alleged by the Plaintiff commencing from 1st November, 1988 is also denied. To the written statement the Plaintiff filed his replication wherein the averments made in the plaint were re -asserted and the allegations of the Defendants were controverted and denied. On the pleas, thus, raised the trial court framed the following issues: