BAHADUR ALI JAWAHIR Vs. SAYED MAIRUDDIN SAYED HABIB

JUDGEMENT

(1.) THE defendant, who is directed to deliver vacant possession of the suit premises to the plaintiff, by the learned 2nd Additional District Judge, Thane in Regular Civil Appeal No.372 of 1984. has filed this Second Appeal, taking exception to said judgment and decree.

(2.) THE Respondent plaintiff had filed Regular Civil Suit No.573 of 1981, before the learned Civil Judge, J.D., Bhiwandi, District Thane, against the defendant, for recovery of possession of Gram-panchayat House No.1568 at village Nagaon Pada, under group Gram-panchayat Chavindre. The contention of the plaintiff in this suit is that one room i.e. room no. 2 admeasuring 16' x 12', was let out to the defendant for the period of 11 months by agreement dated 12th August 1980. The possession of the suit room was given to the defendant on 9th August 1980 and period of the said agreement had expired on 8th July 1981. The defendant was served with the notice dated 20th June 1981, directing him to hand over possession of the suit property on 8-7-1981. The plaintiff has also stated in the suit that at the time of agreement between the parties the defendant has agreed to pay amount of Rs.50/- towards monthly rent of the suit property regularly. The defendant has also undertaken that he shall not cause nuisance to the plaintiff. The defendant had paid an amount of Rs.1000/- (Rupees one thousand only) towards deposit without any interest and has accepted that the said amount will be returned to him at the time of vacating the premises. The term of the agreement also makes it clear that the defendant was to remain in possession and/or occupation of the said property till 8-7-1981. It also appears from the record that prior to this agreement, another agreement Exh. 59 dated 10-9-1979 had been executed by the defendant in favour of the plaintiff virtually on the same terms and conditions and the said agreement was also for a period of 11 months commencing from 7-9-1979 till 8-8-1980. Thus the plaintiff claims in the suit that the defendant had not paid the amount of damages for a period of 5 months and in spite of service of notice had not vacated and/or handed over the possession of the suit property. The plaintiff therefore filed the said suit i.e. Regular Civil Suit No. 573 of 1981 for possession of the suit property against the defendant on 28-12-1981.

(3.) AFTER perusing the terms of the agreement, record and the evidence of the parties the learned trial Court recorded the finding that plaintiff is not entitled to recover possession of the suit premises from the defendant and the suit as it is filed by the plaintiff is also not maintainable. The learned Civil Judge, J.D., Bhiwandi therefore dismissed the suit filed by the plaintiff by judgment and decree dated 31-8-1984.