Regular Second Appeal No. 2514 of 2009 -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 2514 of 2009 Date of Decision:September 22, 2010 Bal Kishan Gupta ---Appellant versus Veena Gupta and others ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Tushar Sharma, Advocate, for the appellant *** GURDEV SINGH, J. The appellant-defendant, Bal Kishan Gupta, having lost in the first appeal preferred against the judgment and decree dated 30.3.2007 passed by Civil Judge (Junior Division), Chandigarh, has filed this second appeal against the judgment and decree dated 2.6.2009 passed by Additional District Judge, Chandigarh. The suit was filed by Jai Kishan Gupta, deceased, predecessor- in-interest of Veena Gupta, Ashok Kumar and Kishore Kumar-respondents, for mandatory injunction and for the recovery of arrears of licence fee and damages to the tune of Rs. 1,48,750/-. Jai Kishan Gupta died during the Regular Second Appeal No. 2514 of 2009 -2- pendency of the suit and the present respondents were brought on the record as his legal representatives. It was pleaded in the plaint that the house in dispute bearing No. 233, situated in Sector-20A, Chandigarh, was originally owned by Jamna Devi, mother of Jai Kishan Gupta, and the same was bequeathed in his favour vide Will dated 18.4.1996, duly executed by Jamna Devi and the same was transferred in his favour and his brother Hari Kishan Gupta by the Chandigarh Administration, vide letter dated 1.4.2003. During the life time of Jamna Devi, Jai Kishan Gupta allowed the defendant to live in this house and he continued to live in the same even after the death of Jamna Devi as licencee. He failed to pay the license fee at the rate of Rs. 2500/- per month for the use and occupation of this house w.e.f. 1.2.1999 up to 15.10.2002, when his licence was cancelled vide legal notice dated 30.9.2002. The arrears of licence fee during that period comes to Rs. 1.11.250/-. In addition to that, he is liable to pay Rs. 37,5000/- as damages for the use and occupation of this house from 16.10.2002 to 31.5.2003. The defendant also constructed a shed on the open space, forming part of this house, without his consent and converted that into a kitchen. It was prayed in the suit that physical possession of the house be delivered to the plaintiff and the defendant be asked to pay the licence fee and damages. The suit was contested by the defendant. In his written statement, he admitted that Jamna Devi was the owner of the house in dispute but denied the other contentions made in the plaint. He pleaded that after the death of Jamna Devi, he inherited this house, along with Jai Kishan Gupta and his other brother in equal shares, and thus, got 1/3rd share thereof. The transfer of the house is the subject matter of the previous Regular Second Appeal No. 2514 of 2009 -3- litigation, which has not been finally decided. Jai Kishan Gupta got executed the Will in his favour fraudulently and is illegally occupying the portion of this house which had fallen to his(defendant)share. The plaintiff is not entitled to any licence fee or damages. On the pleadings of the parties, following issues were framed by the trial Court:- (1)Whether the plaintiff has not come to the Court with clean hands, if so its effect? OPD (2)Whether the plaintiff is owner of the Ist and IInd floor of the house in question?OPP (3)Whether the defendant is residing in the house in question as licencee ? OPP (4)Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP (5)Whether the plaintiff is entitled to recover arrears of licence fee and damages, if so at what rate?OPP (6)Relief To succeed in the suit plaintiff examined Davinder Kumar, PW- 2 and Kishore Kumar, one of the legal representative of the plaintiff, appeared in the witness box as PW-1. On the other hand, the defendant did not produce any evidence. After going through the evidence, so produced on the record and hearing counsel for both the sides, the learned trial court decided all the issues in favour of the plaintiff and resultantly decreed the suit, vide the aforesaid judgment and decree. Defendant preferred first appeal against that judgment and decree in which the judgment and decree of the trial court was Regular Second Appeal No. 2514 of 2009 -4- modified to the effect that the plaintiff was not entitled to any licence fee or damages and the defendant was directed to hand over the vacant possession of the demised premises after demolition of the construction raised by him unauthorisedly, within a period of three months of the passing the judgment. I have heard learned counsel for the appellant-defendant. It has been submitted by learned counsel for the appellant- defendant that the Will propounded by the plaintiff was the subject matter of previous litigation and that Will has been upheld up to the Apex Court. In view of that it cannot be said that there is any substantial question of law involved in the present appeal In view of that statement, this appeal is hereby dismissed. (GURDEV SINGH) JUDGE September 22, 2010 PARAMJIT