- (1.) The plaintiff-appellant of Suit No. 437 of 1981, Devesh Chandra Gupta, claimed the following reliefs in the suit :- "(A) That by a decree of possession against the defendants and in favour of the plaintiff, the defendants be evicted from the property as detailed at the foot of the plaint in Schedule A and B and the plaintiff be put in actual and physical possession thereof after total eviction of defendants therefrom. (B) That a decree for recovery of Rs. 2,705.00 as rent and damages for use and occupation since 1-1-1980 to 20-10-1981 be passed in favour of the plaintiff against the defendants first set; (C) That a decree for recovery of pendente lite and future damages for use and occupation at the rate of Rs. 300.00 P.M. viz. at the present rental value of the suit property be passed in favour of the plaintiff against the defendants first set on payment of additional court-fee in execution side; (D) That the costs of the suit be also awarded to the plaintiff against the defendants; (E) Any other relief/ reliefs which may be found suitable and proper in the opinion of the Court may also be awarded to the plaintiff."
(2.) The suit was decreed by the trial court on 21-10-1982, in particular, granting relief (A) directing the defendants for handing over the vacant possession of the suit property within a period of three months failing which the plaintiff was entitled to have possession through the agency of the court at the costs of the defendants, and also the relief (C) decreeing the claim relating to pendente lite and future damages at the rate of Rs. 125-00 per month, subject to the adjustment of the amount deposited by the defendants, and the liability was to continue till the suit property was vacated by the defendants. The lower appellate court on 24-12-1985 set aside the said decree of the trial court where against the present second appeal, filed in this Court, was admitted on the following substantial question of law. "Whether the suit of the plaintiff was maintainable against the defendants."
(3.) The brief facts relating to the controversy under the substantial question are - (i) That the plaintiff, the owner of the property in suit, let out to the defendant Nos. 1 and 2 the northern portion of building, as contained in Schedule A to the plaint, at the rate of Rs. 65-00 per month, and the southern portion of the same building, as contained in Schedule B, at the rate of Rs. 60.00 per month, which contains a Kothari appurtenant thereto and the same was not let out. The defendant Nos. 1 and 2, illegally and without his consent, sub-let the property in question to one Hari Shanker, defendant No. 3, who illegally placed a wooden structure on the property described in Schedule B. On 19-8-1981 a composite notice, as required by S. 106 of the Transfer of Property Act, 1882, terminating the tenancy and requiring them to handover vacant possession of the suit property, was given. Consequent upon the notice, the vacant possession of the property was not handedover and, accordingly, the plaintiff filed the suit for the reliefs, as quoted earlier :- (ii) That the defence, as set up by the defendant Nos. 1 and 2, was that they never sublet the property in suit but, in fact, they gave the saw machine, which was installed thereon, for running it to the defendant No. 3 on Rs. 225-00 per month.;