SHASTRA Vs. KIMTU

JUDGEMENT

(1.) The instant appeal, is, directed against the impugned concurrently recorded verdicts, by both, the learned Courts below, (a) wherethrough(s) the plaintiffs' suit, for rendition, of decree, of, possession, vis ? ?-vis, the suit property, and against the defendants, and also, for recovery, of, mesne and profits, stood hence decreed. However, the verdict(s) rendered by the learned first appellate Court, made some modification, in the verdict(s), and, decree, pronounced rather by the learned trial Judge, inasmuch as, the decree, for, realization of Rs. 18,26,000/-,and appertaining to mesne profits, being modified, to a declaration, being pronounced, vis ? ?-vis, the plaintiff, being entitled, for recovery of Rs. 1, 25,000- w.e.f. April, 2006 to September, 2006, alongwith interest @ 9% per annum, till its realization.

(2.) Briefly stated the facts of the case are that the plaintiff filed a suit for recovery of Rs. 3,25,000/- i.e. a sum of Rs. 1,25, 000/- being arrears of rent at the rate of Rs. 20,833.33 paise per month, w.e.f. 1.4.2006, till 30.9.2006 and Rs. 2,00,000/- as mesne profit at the rate of Rs. 50,000/-per month, w.e.f. 1.10.2006 till January, 2007, alongwith interest at the rate of Rs. 12% per annum till possession of the premises is handed over to the plaintiff. It transpires from the averments as projected in the plaint that plaintiff is recorded as owner in possession of land comprising Khasra No. 56 and 55/2, situated in UP Muhal Ghordour, Phati Nathan, Kothi Naggar, Tehsil and District Kullu, upon which the plaintiff has construced a building shown in the site plan and adjacent to the said building, vacant land of the plaintiff also exists. The aforesaid building with vacant site (hereinafter referred to be the suit premises) was leased out in favour of defendant vide lease agreement dated 4.11.1999 at the rate of Rs. 20,833.33 paise per month to be paid annually as an advance. The plaintiff had handed over the possession of the suit premises in favour of the defendant as per the terms and conditions of the lease agreement and the defendant is in possession of the same as lessee. As the defendants failed to make the payment of aforesaid monthly rent to the plaintiff, the arrears of rent w.e.f April, 2006 to 31.7.2006 came to Rs. 83,333, hence on 11.8.2006, plaintiff issued notice under Section 106 of the Transfer of Proper Act to the defendant informing the defendant being in arrears of rent as per the terms and conditions of the lease agreement and also about the termination and determination of tenancy w.e.f. mid night of end of September, 2006 but the defendant despite of the aforesaid notice failed to make the payment of aforesaid arrears of rent and also failed to vacate the suit premises. The defendant after termination and determination of the tenancy w.e.f. October 2006 at the rate of Rs. 50,000/- per month till January 2007 and the plaintiff is entitled to recover the said arrears of mesne profit till the defendant has actually handed over the possession of the suit premises to the plaintiff. The defendant was requested to admit the claim of plaintiff several times but the defendant failed to do so, hence the suit. The defendant resisted the suit, filed written statement inter-alia taking preliminary objections of maintainability, estoppel, bad for mis-joinder of cause of action and suppression of facts. On merits, admitted that the suit premises was rented out to the defendant vide agreement dated 1.7.1999. It is further alleged that lateron another agreement was executed between the parties under which the defendant society was to construct an entirely new, additional and independent portion on the first floor of the building at its own cost and expenses and as per its need and requirements and the plaintiff had agreed not to change any rent qua this additional portion for a period of eight years w.e.f 1.7.2006 to 30.6.2008 and after that rent for this portion was fixed at Rs. 7,333 per month for the next two years ending on 30.6.2010. The defendant society constructed this portion in good faith and spent more than Rs. 20,00,000/- on it. This new portion has also been made subject matter of the present suit wrongly despite of the fact that it was not part of the aforesaid lease involved in the suit qua this portion which has been constructed by the defendant an independent and separate lease agreement was arrived at between the parties and in part performance of the contract, the defendant society was put in possession. It is further alleged that in fact even major portion of the old building of the suit premises was constructed by the defendant society. The possession of the suit premises was not handed over to the defendant society under aforesaid lease agreement dated 4.11.1999. An advance of Rs. 4,50,000 was already paid by the defendant society to the plaintiff for carrying out the construction on the spot as per its requirement. The possession of the suit premises alongwith the building was agreed to be given on lease by 1.7.1999 and on the same day the parties executed documents styled as Lease Deed MOU for lease of the suit land alongwith building thereon as well as building to be raised later on for a period of five years w.e.f. 1.5.1999 till 30.4.2004 at the annual rent of Rs. 2,10,000/-. Vide agreement dated 4.2.1999 which was wrongly dated 4.1.1999, the basement of the building on the suit land was also agreed to be given on rent to the defendant society w.e.f. 1.4.2000 till 30.4.2004. The suit premises was given on lease to the defendant society for a period of ten years on a monthly rent of Rs. 20,833.33 and the handing over the possession of basement was deferred till 1.10.1999. On 4.2.1999 Lease Deed MOU was executed with respect to basement qua which tenancy was stipulated to commence w.e.f. 1,4.2000 at an annual rent of Rs. 35,000/. In case this Court holds that aforesaid lease deeds are not valid in that even plaintiff is estopped by her act and conduct from claiming possession of suit premises unless she pays damages to the tune of Rs. 1,00,00,000/- to the defendant society for improvement of thel suit premises made by it. It is further alleged that the parties were negotiating for 99 years lease of the suit premises for running hospital therein and to this effect document dated 16.4.2002 was prepared whereby the plaintiff agreed to lease out the suit premises for hospital purposes only for a period of 99 years in favour of defendant society on payment of consolidated amount of Rs. 40,00,000/-. A requisite application was made by the parties to the Governmentof H.P. for grant of necessary permission under Section 118 of the H.P. Tenancy and Land Reforms Act but the plaintiff has been delaying the matter on one pretext or the other. In good faith, the defendant society constructed an operation theatre for gynecology work and had furnished eight bed rooms and further purchased machinery worth Rs. 25,00,000/- so that maternity home-cum-hospital could be made functional. All the aforesaid work could have not been done by the defendant society, had the plaintiff not agreed to lease out the suit premises for 99 years to the defendant. Vide undertaking dated 4.4.2008 the plaintiff had agreed to lease out the suit premises for 99 years subject to the alteration in the consolidated lease amount from Rs. 40,00,000 to Rs. 50,00,000. The defendant society filed an inter pleader suit bearing No. 43 of 2009 against the plaintiff and others in the Hon'ble High Court inter-alia seeking determination the adverse claims and rights of the defendant but the same was dismissed vide order dated 26.10.2010 and against the said order the defendant has filed appeal before the Division Bench of the Hon'ble High Court which has been admitted and the parties have been directed to maintain status-quo. In these manners, the present suit is liable to be stayed. However, during the pendency of the suit the Hon'ble High Court has passed a decree in RSA No. 127 of 1994 and RSA No. 269 of 1993, whereby it has been held that plaintiff Kimtu Devi is not daughter of Gehru and Gehru was a sane person. In replication the plaintiff re-asserted the claim put forth in the plaint by denying the defence taken in written statement by the defendants.

(3.) On the pleadings of the parties, the learned trial Court framed the following issues, on 25.2.2008 and, also an additional issue 9-A, stood framed, on 5.3.2013