HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 6 OF 2008 Smt. Rajenswari Devi, W/o late Sri Dhave Singh, R/o Village Malli Rai (Danda Pani), Patti Nandalsyun, District- Pauri Garhwal. .........Appellant. Vs. 1. Alam Singh Rawat (since deceased) 1/1 Praveen Kumar, 1/2. Sraveen Kumar, Both S/o late Sri Alam Singh Rawat, R/o Village Kandai Pandulsyun, Pauri Garhwal, At Present R/o Owners Hotel, Bhargvi Bhawan, Laxmi Narain Road, Pauri Garhwal. …….Respondents Dated : 11.1.2008 Hon’ble Rajesh Tandon, J. Heard Sri P. C. Bisht, counsel for the appellant. This is an appeal filed by the defendant. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 2.11.2007 passed in Civil Appeal No. 6 of 1991 Smt. Rajeshwari Vs. Sri Alam Singh (since deceased) arising out of the judgment and decree passed by the Munsif Court, Pauri in Civil Suit No. 1 of 1989 Alam Singh Rawat (since deceased) Vs. Smt. Rajeshwari Devi. 3. Briefly stated, a suit was filed by the plaintiff/ respondents being Civil Suit No. 1 of 1989 Alam Singh Rawat (since, deceased) Vs. Smt. Rajeshwari Devi praying for the ejectment of the defendant from the House situate at Village Mali Rai Patti Naddsyun, District Pauri Garhwal. Accordiong to the plaintiff, provisions of the U.P. Act No. XIII of 1972 are not applicable to the building in dispute. On the request of the defendant, the plaintiff/ respondents had given one room to the defendant three to four years back on the condition that she will look after his house and whenever the plaintiff will require the house, she will vacate the premises in question, but the defendant did not discharge his duties and illegally constructed a toilet without the consent of the plaintiff. In the rest rooms of the house in question, there were twenty beams of woods and 20 wooden plates were kept, which were sold out by the defendant seven to eight months back without taking the consent of the plaintiff. Thus, the plaintiff has suffered a loss of 6,000/-. Thus the plaintiff has sent a registered notice on 21.1.1988 to the defendant through his advocate. The notice was served upon the defendant on 2.12.1988. Thus, the tenancy having been terminated, the defendant has failed to vacate the room in question. Plaintiff has stated in the plaint that the room in question is valued at Rs. 120/- per month, which is 1/3rd of the rental value. 4. The appellant/ defendant has contested the suit by filing a written statement stating therein that it has not been disputed that U.P. Act No. XIII of 1972 is not applicable to the building in dispute and further the status of the defendant was not of a licencee of the room in question. However, the defendant has submitted that he has paid the entire amount of consideration to the plaintiff, but the registered sale deed could not be executed in his favour. 5. On the pleadings of the parties, the trial Court has framed following issues: ^^1& D;k oknh iz”uxr lEifRr dk Lokeh gS \ 2& vuqrks’k A** 6. On behalf of the plaintiff, plaintiff himself, one Pratap Singh and one Prem Singh have been examined as P.W.1, P.W.2 and P.W.3 respectively. Towards the documentary evidence, the plaintiff has filed Paper Nos. 7 Ga, 8 Ga, 19 Ga Exhibit-2, 20 Ga Exhibit-1, 21 GA, 22 Ga Exhibit- 4, 23 Ga 26 GA Exhibit- 3. 7. On behalf of the defendant, she herself, one Basantu Mistri, Budhu Mistri and Sri Thakur Singh have been examined as D.W.- 1, D.W.2, D.W.2, D.W.4 respectively. 8. While deciding the issue no. 1, the trial Court has recorded a finding to the following effect: ^^izfrokfnuh dh vksj ls bl lEcU/k esa ,0vkbZ0vkj0 1976 ist 50 ,u0vks0lh0 103 ¼bykgkckn½ dh vksj esjk /;ku vkdf’kZr djk;k x;kA ftlesa fuf.kZr fd;k x;k gS fd uxj ikfydk esa LokfeRo ds bUnzkt gksus ds ckotwn Hkh izfrokfnuh dCtk gksus ds ckn dk;Z dj ldrh gS A mDr fu.kZ; izLrqr okn dh ifjfLFkfr;ksa esa ykxw gks tkrk gS pwafd tgka oknh dk LokfeRo izfrokfnuh dks Lo;a gh Lohdkj gks ,slh ifjfLFkr;ksa esa uxj ikfydk esa bUnzkt tks fd oknh ds vU; lkf{k;ksa dh iqf’V djrk gSA blds vfrfjDr ;g rF; cgqr egRoiw.kz gS fd oknh }kjk izfrokfnuh dks csn[kyh dk uksfVl fn;k x;k exj mlus dksbZ tokcnkok ¼izfrokfnuh dh vksj ls½ ugha fn;k x;kA uksfVl dkxt la0 7x izfrokfnuh dks rLyhe gSA ysfdu mldk dFku gS fd mlus uksfVl dks etkd le>kk FkkA blfy;s tokc ugha fn;kA izfrokfnuh dk ;g dFku fd mlus uksfVl dks etkd le>kA og viuh izfrizs{kk esa igyh ckj ;g dguk fd mlus iz”uxr lEifRr :0 18000@& esa [kjhnh FkhA ;g cMk gh gkL;in rFkk vof”oluh; gS tcfd iz”uxr lEifRr o’kZ 1981 esa dsoy 500@& :Ik;s esa [kjhnh x;h FkhA izfrokfnuh ds }kjk oknh ds LokfeRo ls tks bUdkj fd;k x;k gS og cnfu;fr ij vk/kkfjr gSA blds vfrfjDr oknh }kjk vius LokfeRo dks ekSf[kd rFkk nLrkostksa ls lkfcr fd;k x;k gSA mijksDr rF;ksa ds vk/kkj ij ;g fu’d’kZ fudyrk gS fd iz”uxr lEifRr dk Lokeh oknh gSA vr% okn fcUnq la[;k 1 ldkjkRed :Ik esa r; fd;k tkrk gSA** 9. As will appear from the above, the trial Court has recorded a finding that the plaintiff has proved his ownership by producing oral and documentary evidence and has decided this issue in favour of the plaintiff. 10. While deciding the issue no. 2 with regard to relief, the trial court has recorded a finding that the plaintiff is the owner of the property in dispute and the status of the defendant is of the licencee of the said property. It has further been stated that the defendant was served with Notice Paper No. 7 Ga. The issue was decided in favour of the plaintiff observing that plaintiff is entitled to get the possession of the property in dispute. 11. The trial Court has decreed the suit on 22.4.1991 and the defendant was treated to be a licensee of the room in question after taking into consideration the evidence adduced by both the parties. 12. Aggrieved by the said order, an appeal was preferred by the defendant being Civil Appeal No. 6 of 1991 Smt. Rajeshwari Devi Vs Sri Alam Singh (since deceased). 13. The appellate Court has disposed of the appeal on 29th June, 1992 only on the ground that the suit for possession of a room cannot be decreed as the possession cannot be delivered without asking for the demolition. 14. Aggrieved by the said order, the plaintiff had preferred a second appeal being Second Appeal No. 837 of 2001, which was allowed on 24.5.2007 by recording a finding that the defendant cannot be the owner of the disputed property unless a registered sale deed is executed in his favour, therefore, the defendant was treated to be a trespasser on the land of the plaintiff. However, the appeal was remanded to the appellate Court for recording the findings as stated in paragraph 11 of the Second Appellate Court judgment. 15. After the remand of the matter, the appellate Court has decided the point no. (a) by observing that the defendant occupied the said premises on 1st January, 1986 and the annual assessment of the premises being Rs. 360/-, which is the 5% of the annual rental value as per municipal by Laws is calculated 100 X 360 /5 = 7200. Now for the occupation of 22 years, the damages can be calculated 7200 X 22 – 1,58,000 in round figure 1,60,000/-. 16. So far as the point No. (b) is concerned, a sum of Rs. 80,000/- has been awarded towards damages to the plaintiff to be payable by the defendant. The defendant therefore, has been directed to vacate the premises after paying the sum of Rs. 80,000/- towards damages. 16. So far as the decree for vacating the premises in question is concerned, no interference is required as the findings recorded by the trial Court as well as this Court in Second Appeal No. 837 of 2001 are findings of fact. 17. So far as the damages part is concerned, as the plaintiff has stated that the rent was Rs. 120/- per month and taking into consideration the rental value as a licence fees being of a sum of Rs. 120/- per month, defendants is directed to pay the same from the date of occupation i.e. from 1.1.1986 upto the date of passing of the decree. In the event the appellant deposits a sum of Rs. 120/- per month towards damages from 1.1.1986 upto the date of vacation of the premises, the appellant shall not be evicted from the premises in question till 30th June, 2008. The amount shall be deposited along with an undertaking by 15th March, 2008 before the executing Court. 18. In case of non compliance of the aforesaid condition, it will be open for the plaintiff to execute the decree passed by this appellate Court as well as by the trial Court forthwith. 19. In view of the aforesaid, no substantial question of law arises so as to interfere under Section 100 of the Code of Civil Procedure and the Second Appeal deserves to be dismissed under Order 41 Rule 11 of the Code of Civil Procedure. 20. Consequently, Second Appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 11.1.2008 Rathour