IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 130 of 2009 Sri Rakesh Kumar, son of Late Sri Bhagwat Prasad, R/O Bharat Mandir Road, Rishikesh, District Dehradun Versus … Appellant. Sri Rajkumar, Son of Late Sri Bhagwat Prasad, R/O Bharat Mandir Road, Rishikesh, District Dehradun. … Respondent. Mr. Ramji Srivastava, Advocate, learned counsel for the appellant. Mr. S.S.Chauhan, Advocate, learned counsel for the respondent. Date May 04, 2010. Hon’ble B.S.Verma, J. record. Heard learned counsel for the parties and perused the This appeal is directed against the judgment and decree dated 29-10-2009 passed by Civil Judge (Senior Division) Rishikesh, District Dehradun, whereby the suit of the plaintiff- respondent has been decreed against the defendant-appellant and the appellant has been directed to vacate the disputed property within a period of one month and to deliver its vacant possession to the plaintiff-respondent. The defendant-appellant has also been directed to pay damages @ Rs. 250/- per day from 21-3-2009 till the actual date of delivery of possession along with 2% interest as mentioned in the impugned judgment. Relevant facts giving rise to the present appeal in brief are that the plaintiff-respondent filed a suit for permanent injunction against his real brother/defendant-appellant in the court of Civil Judge (Senior Division) Rishikesh, Dehradun, alleging therein that the respondent is the owner-in-interest of the Abadi land measuring 0.289 Acre of plot No. 126 situate at Shyampur Bypass Rishikesh, district Dehradun. The said property came to the share of the plaintiff in the family partition. In Suit No. 194 of 2 2007, Rakesh Kumar Vs. Rajkumar, the plaintiff was declared sole owner of the disputed property. The defendant is the younger brother of the plaintiff and the defendant was temporarily permitted to install petrol pump in the disputed property. The plaintiff had requested the defendant to remove the structures and to deliver the possession of the disputed property but the defendant adopted dilatory tactics. The plaintiff determined the tenancy of the defendant by registered notice dated 9-3-2009 and asked him to vacate the disputed property and deliver its possession to the plaintiff within a period of seven days from the date of receipt of notice, else the plaintiff would proceed against the defendant in the competent court. The notice was not complied with by the defendant. The occupation of the defendant over the disputed property is permissive, which stood determined, therefore, the plaintiff is entitled to get the possession of the property in question. Ultimately, the suit has been filed for possession and for recovery of damages as mentioned in the relief clause of the plaint. The defendant-appellant resisted the suit by filing his written statement. He admitted that there is a petrol pump installed in the disputed property. He also admitted the receipt of the registered notice dated 9-3-2009, but he questioned the authority of the plaintiff for obtaining possession of the disputed property from the defendant. The ownership of the plaintiff over the disputed property has been admitted. No cause of action arose to the plaintiff to determine the permission of the defendant. In additional pleas, it has been asserted by the defendant that the plaintiff is not entitled to get the disputed property vacated from the defendant. The defendant shall handover possession of the said property when an alternate arrangement is made by the defendant. In the last it has been asserted that if the defendant is ordered to vacate the disputed property, his established business would be ruined and the defendant would suffer irreparable loss. 3 On the pleadings of the parties, the learned trial court framed the following issues:- ISSUES 1. Whether the plaintiff is the owner in possession of the disputed property and whether he is entitled to get the possession of the same from the defendant for the reasons stated in the plaint. 2. Whether the plaintiff is entitled to get damages @ Rs. 250/- per day along with interest @ 2% from 21-3-2009 till the date of delivery of possession to the plaintiff? 3. Whether the plaintiff has any cause of action? 4. To what relief is the plaintiff entitled to get? In support of his claim, the plaintiff filed documentary evidence in the suit and has also filed his affidavit in evidence, which he testified in his oral evidence as P.W.1 Rajkumar. The plaintiff was put to cross-examination by the defendant. On the other hand, the defendant-appellant did not file any documentary evidence, but in oral evidence the defendant as D.W.1 Rakesh Kumar has stated that the affidavit filed by him (paper no. 21A2) be read as his examination-in-chief. The D.W.1-defendant was put to cross-examination before the trial court. The learned trial court after hearing the learned counsel for the parties took Issue no. 1 for decision. The learned Civil Judge (Senior Division) Rishikesh, Dehradun came to the conclusion that the plaintiff is entitled to get back the possession of the disputed property from the defendant. On Issue No.2, the learned Judge found that the plaintiff is entitled to get damages @ Rs. 250/- per days from 21-3-2009 along with interest @ 2% from the defendant till the date of possession. On Issue No.3, the learned Judge has held that the plaintiff is the owner of the disputed property while the defendant was given the disputed property on lease. Since the defendant did not deliver possession, therefore, cause of action has arisen to the plaintiff for the suit. Ultimately, the learned Judge came to the conclusion that the plaintiff is entitled to the relief as claimed in the suit. Consequently, the suit 4 of the plaintiff was decreed by judgment and decree dated 29-10- 2009, as mentioned above. Aggrieved by the said judgment and decree, the defendant has preferred the present appeal mainly on the ground that the judgment and decree passed by the court below is against the fact of the case and the law. The findings recorded by the court below on Issue Nos. 1, 2, 3 and 4 are perverse and against the law. I have heard learned counsel for the parties and perused the record including the impugned judgment and decree passed by the court below. The plaintiff has alleged that the disputed property came to his share in a family partition. The plaintiff-respondent filed copy of the judgment and decree passed in Civil Suit No. 194 of 2007 Rakesh Kumar Vs. Raj Kumar whereby the plaintiff was declared to be the sole owner of the disputed property. Admittedly, there exists a petrol pump of the defendant over the disputed property and the defendant was permitted temporarily to install a petrol pump thereon. There is oral lease in favour of the defendant- appellant, which stood determined by the registered notice dated 9- 3-2009, which was duly served upon the appellant-defendant. The ownership of the disputed property is admitted to the defendant. The learned court below has rightly held that the plaintiff- respondent is entitled to get the possession of the disputed property from the defendant-appellant. As regards the claim of the plaintiff for damages @ Rs. 250/- per day along with 2% interest, undisputedly, the notice dated 9-3-2009 was served upon the defendant-appellant wherein the plaintiff had claimed damages for illegal use and occupation of the disputed property @ 250/- per day. It is also admitted to the defendant that in case the disputed property is given on rent, it may fetch an amount of Rs. 25000-30000 to the plaintiff. In such circumstances, the finding of the learned trial court appears to be 5 correct that the plaintiff is entitled to damages at the rate of Rs. 250/- per day along with interest @ 2%. So far as the finding of the trial court on Issue No. 3 pertaining to cause of action for the suit is concerned, it is established that the disputed property had come to the share of the plaintiff-respondent in family partition and it is also established that the plaintiff has been declared to be the owner of the disputed property by a compromise decree of the competent court. It is admitted case that despite registered notice duly served on the defendant-appellant, the defendant had not vacated the disputed property, therefore, it has been rightly held by the learned trial court that a cause of action has arisen to the plaintiff to file the suit against the defendant-appellant. Issue No. 3 has been rightly decided in favour of the plaintiff as against the defendant. In these circumstances, the suit of the plaintiff has been rightly decreed. The findings recorded by the court below are fully based on proper appraisal of the evidence on record. I do not find any ground to take a different view in appeal from that of the trial court, so as to warrant any interference in this appeal. In the result, the impugned judgment and decree dated 29-1-2009 passed by the learned Civil Judge (Senior Division) Rishikesh, Dehradun is liable to be upheld. The appeal deserves to be dismissed outright. The appeal is dismissed. The judgment and decree dated 29-1-2009 under appeal is upheld. Costs easy. However, in the circumstances of the case, the defendant-appellant is granted three months’ time from today to vacate the disputed property and to deliver its vacant and peaceful possession to the plaintiff- respondent before expiry of the said period, provided the appellant pays the damages etc. as directed by the judgment and decree dated 29-1-2009 passed by the court below. ( B.S.Verma, J.) RCP 6