VIJAY KUMAR Vs. RAM LAL AND SONS

JUDGEMENT

(1.) This appeal has been filed by the appellant-defendant against the judgment and decree dated 29.09.2006, passed by the learned District Judge, Shimla, District Shimla, H.P., affirming the judgment and decree dated 29.04.2002, passed by the learned Sub Judge, Court No.5, Shimla, whereby the suit filed by the respondent-plaintiff has been partly decreed.

(2.) Briefly stated facts, as emerged from the record, are that the respondent-plaintiff (hereinafter referred to as the 'plaintiff'), filed a suit for permanent prohibitory injunction as well as for mandatory injunction against the defendant-appellant (hereinafter referred to as the 'defendant'). It is averred in the plaint that the plaintiff-firm is tenant qua the top floor, 70, The Mall, Shimla since 1948-49 and the accommodation is in its possession. It is the case of the plaintiff that the defendant was running shop on the second floor of the said building in the name and style of M/s.Ganpati House. It is averred in the plaint that the defendant has illegally and un-authorisedly affixed some boards of his shop without the consent of the plaintiff on the outer wall and one board over the roof of the plaintiff, when the Managing Partner of the firm Anju Mehta was away from Shimla. It is also averred in the plaint that aforesaid Anju Mehta, objected the same through her attorney and asked the defendant to remove the board from the roof and outer wall, but the defendant flatly refused to do the same. It is further averred by the plaintiff that instead of removing those boards, the defendant threatened the plaintiff through its partner to affix more boards on the roof top of the tenanted premises, to which he has no right. In this background, the plaintiff filed a suit for permanent prohibitory injunction against the defendant from affixing any board as well as for mandatory injunction to remove all such boards.

(3.) Defendant, by way of filing written statement, raised preliminary objections on the grounds of maintainability, estoppel, limitation and cause of action etc. On merits, the defendant has denied that the plaintiff was tenant on the top storey since 1948-49. It is averred that the plaintiff-firm is in possession of only two third area of the top floor and the rest of the area is in possession of Kashmir Emporium. It is also denied that the defendant was running any shop, rather it is pleaded that he was serving in Urban Co-operative Bank as a Branch Manager and cannot do any business. It is also denied that the defendant has affixed any sign boards on the outer wall or roof in occupation of the plaintiff. It is averred in the written statement that the sign boards of M/s.Ganpati House were affixed there for about 2 to 3 years and prior to this, there were boards in the name and style of Star Land, which were affixed there for about 20 to 25 years back, which were affixed by the brother of defendant, who was running business there. It is further averred that the defendant had purchased the attic with roof top of the premises in occupation of the plaintiff and as such he has every right title and interest to deal with the same in any manner.