Decided on July 26,2013

Wajid Sons Export Limited Appellant
Uma Sah Respondents


Prafulla C. Pant, J. - (1.) THIS appeal, preferred under section 96 of Code of Civil Procedure, is directed against the judgment and decree dated 18.06.2003, passed by District Judge, Nainital, in Civil Suit No. 54 of 1999, whereby said court has dismissed the suit with costs.
(2.) HEARD learned counsel for the parties, and perused the lower court record. Brief facts of the case are that the plaintiff/appellant instituted suit No. 54 of 1999 with the pleading that plaintiff owns the double storied building known as Waldorf Hotel, (sic) in Mallital, Nainital, which he (sic) vide registered sale deed dated (sic)3.1989 from its erstwhile owners Shri A.K. Goyal and others. The building in suit is an old construction which has completed 90 years. It is further pleaded that Suites No. 2, 17, 18 of the building are in possession of defendant Smt. Uma Sah (wife of Indralal Sah) who has started wrongly claiming herself to be tenant of the aforesaid three suites on annual rent of Rs. 9,000/ - per year, from the time of erstwhile owner A.K. Goyal. After the property was purchased by the plaintiff he asked the defendant to vacate the premises but she filed injunction suit No. 98 of 1989 before Civil Judge, Nainital, and obtained decree of permanent injunction against the present plaintiff directing him not to forcibly dispossess her. She (defendant Uma Sah) instituted another case No. 8 of 1993 before Rent Control and Eviction Officer (District Supply Officer), Nainital, under Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (for short U.P. Act XIII of 1972) seeking allotment of the aforesaid suites No. 2, 17 and 18 in her favour. However, said case was dismissed in default of parties on 18.04.1996, as such the defendant is allegedly occupying the premises in question as an unauthorized occupant. Though, the plaintiff filed Civil Appeal No. 53 of 1996 against the decree dated 19.12.1991, passed by the trial court in Suit No. 98 of 1989, but the same was disposed of vide order dated 03.07.1999, with the observation that the plaintiff can seek remedy of recovery of possession by adopting legal procedure, but the occupant shall not be dispossessed forcibly. Hence the present suit was filed by the plaintiff with the plea that the status of the present defendant was only that of a licensee. It is further pleaded that once the plaintiff after purchasing the property demanded possession of the premises, the license stood terminated and the defendant is bound to deliver the possession of the property in suit. It is also alleged in the plaint by the present plaintiff that the defendant is running her business in the premises in question, and liable to pay mesne profits @ Rs. 600 per day. The plaintiff prayed for decree of mandatory possession directing the defendant to vacate the premises and restore the possession of the plaintiff. The perpetual injunction was also sought directing the defendant not to cause damage to the property in question, and mesne profits were also claimed @ Rs. 600 per day. [Practically the plaintiff has sought relief of possession in the regular suit (without paying proper court fee) under the garb of relief of injunction].
(3.) DEFENDANT Uma Sah contested the suit, and filed her written statement. She did not specifically deny the fact that present plaintiff purchased the property in suit from erstwhile owner A.K. Goyal and others, nor she denied that the building is old one. However, she pleaded that she is tenant of rooms No. 2, 17 and 18 of Waldorf Hotel @ Rs. 9,000/ - per annum since 1979 which fact was known to plaintiff when he purchased the property. She further pleaded that the plaintiff is bound by the relationship agreed between the present defendant and erstwhile owner A.K. Goyal. It is alleged by the defendant that plaintiff made unsuccessful bid to oust the defendant through his musclemen on which she filed a suit for perpetual injunction before Civil Judge, Nainital, and obtained decree against the present plaintiff not to evict her forcibly. Smt. Uma Sah (defendant) further pleaded that though there is no allotment order in her favour under U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, but the principle of Estoppel protects her status as tenant as against Shri A.K. Goyal erstwhile owner and his successor. She claimed her occupation as legal. She admitted that she runs school in the premises in question but pleaded that the same is not meant for business. She further pleaded that the premises in question cannot be said to be vacant nor the defendant is liable to vacate the same, nor liable to pay any mesne profits.;

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