- (1.) THIS is a defendant's appeal directed against the judgment and decree dated 9-2-1974 by Sri R. P. Pandey, learned Additional Civil Judge, Ghaziabad who allowed Civil Appeal No. 195 of 1973 arising out of suit No. 688 of 1970; plaintiff's claim was decreed with costs throughout. The judgment of learned Munsif dismissing the suit was reversed.
(2.) DISPUTE relates to a shop, staircase and Balakhana situate in Khekra town, Pargana-Baghpat. Relief sought was for recovery of possession and mesne profits to the extent of Rs. 320/- for the period from 25-9-1969 to 28-5-1970. Along with costs of the suit, future and pendente lite mesne profits were also claimed at the rate of Rs. 40/- per month. Plaintiff Smt. Chameli who is dead now, was wife of Nem Chand Jain, who purchased the disputed property from appellant for a sum of Rs. 2000/- on 25-9-1969. She could not get possession over the vended property despite demands and service of registered notice on defendant dated 13-4-1970. Hence this suit was filed on 29-5-1970. Defendant contested the claim on the ground that plaintiff is the wife of Nem Chand Jain; Sri Nem Chand was the owner of the shop and Balakhana in dispute; defendant was tenant in the shop on ground floor on annual rent of Rs. 335/- before 7-12-1959.
(3.) NEM Chand needed money, so he borrowed a sum of Rs. 3300/- from defendant. NEM Chand executed a sale deed on 7-12-1959 in favour of defendant as a security for that loan. The tenancy of defendant over the shop continued; Balakhana also passed in his tenancy from 7-12-1959 and the total rent payable for the entire accommodation was increased to Rs. 396/ -. It was further agreed that rent of disputed accommodation shall be adjusted towards the interest of the loan advanced by defendant to NEM Chand. Thus the defendant continued to be tenant of the accommodation in suit and never became owner of vended property. It was after ten years that on the request of husband, of plaintiff, defendant executed a sale deed in favour of his wife for a sum of Rs. 2000/- only. Rs. 1300/- were adjustable towards further rent for four years. So even after the execution of the sale deed by defendant in favour of plaintiff the tenancy of defendant in the shop and Balakhana continued. Thus the plaintiff was not entitled to get possession over the disputed shop and Balakhana without terminating the tenancy of defendant over the disputed accommodation. Plaintiff was not entitled to recover any mesne profits.;