KAMLESH DEVI Vs. SURINDER KUMAR AND ORS.

JUDGEMENT

(1.) This Regular Second Appeal has been instituted against common judgment and decree dated 10.4.2009 rendered by learned Additional District Judge, Una, District Una, Himachal Pradesh in Civil Appeal No. 66 of 2008 and Civil Appeal No. 72 of 2008.

(2.) "Key facts" necessary for adjudication of the present appeal are that respondent -plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit against the appellant -defendant No. 1 and respondent No. 1 -defendant No. 2 (hereinafter referred to as 'defendant(s)' for convenience sake). According to the plaintiff, his brothes Jatinder Kumar and Mohinder Kumar constructed shops after purchasing possessory title from Resham Singh in the year 1973. Shop marked by letters 'EFGH' was constructed by the plaintiff towards Southern side of shop of Jatinder Kumar by spending huge amount and land marked by letters ABCDEFRASD' as shown in red colour in the site plan by the plaintiff was kept vacant for further extension for commercial complex by the plaintiff. Plaintiff locked his premises as he was carrying on business at Paragpur. However, defendant No. 1 Kamlesh Devi being a clever and shrewd lady, in connivance with her husband Mohinder Kumar removed the locks of the shop on 27.6.1988 and thereafter, plaintiff enquired about the reasons for removing the locks from the premises by the defendant. Defendant No. 1 Kamlesh Devi filed suit for permanent injunction against the plaintiff in the court of Sub Judge, 1st Class Court No. II, Amb. Suit was decreed by the trial Court. Plaintiff preferred an appeal before District Judge, Una. He modified the judgment and decree of the trial Court vide judgment dated 31.3.2000 and held the plaintiff to be owner of the suit premises. However, plaintiff was restrained from taking forcible possession of the suit premises except in due course of law. Defendant No. 1 about two months in the absence of the plaintiff, raised construction of one room marked by letters 'RASD' in the site plan without any right. She also rented the suit premises to defendant No. 2, Kapil on a monthly rent of Rs. 800/ - without taking consent of the plaintiff, on 1.3.1993. Plaintiff claimed rent of three years, which was received by the defendant illegally from defendant No. 2.

(3.) Suit was contested by the defendant No. 1. It is asserted in the written statement that the plaintiff vide writing dated 27.6.1988 transferred all rights, title and interest over the suit premises described by letters ABCD to the defendant No. 1 for a consideration of Rs. 4,000/ -. Plaintiff is left with no right, title or interest over the disputed shop since the same has been sold. She has improved the property by spending Rs. 18,000/ -. She was constrained to file suit which was decreed vide judgment and decree dated 16.2.1993, however, judgment and decree 16.2.1993 were modified by the learned District Judge. She had filed a Regular Second Appeal in this Court against judgment and decree dated 13.3.2000. It is also asserted that the plaintiff is barred under Sec. 53 -A of the Transport of Property Act to file the suit and take possession from defendant No. 1. She was always ready and willing to perform her part of contract i.e. sale agreement and to bear registration charges.