- (1.) U. S. Tripathi, J. This second appeal has been directed against the judgment and decree dated 18-3-2004, passed by Additional District Judge (Fast Tract Court No. 1), Bareilly in Civil Appeal No. 33 of 2002, arising out of judgment and decree, dated 26-3-2002, passed by Civil Judge (Senior Division), Court No. 4, Bareilly in Original Suit No. 121 of 1995.
(2.) RESPONDENT Virendra Govind Upadhya hereinafter called the plaintiff filed suit No. 121 of 1995 against Smt. Reeta Chauhan, hereinafter called the defendant for mandatory injunction directing the defendant to vacate the house in suit and to surrender the said house in his favour. The case of the plaintiff in brief was that he was owner of the house in suit. In the month of October, 1991, on the request of the defendant and on the recommendation of one Dr. S. K. Tripathi, the plaintiff allowed the defendant to stay for few days in the house in suit as temporary licensee, because she was taking medical treatment at Bareilly and wanted to stay there for the said purpose. Thereafter the defendant did not vacate the premises and continued to live in it and refused to vacate her possession. When he insisted the defendant to vacate the possession she filed Original Suit No. 81 of 1984 against the plaintiff wrongly alleging that she was tenant of the plaintiff, though she was never admitted as tenant and no relationship of landlord and tenant existed between the parties. The defendant contested the above suit mainly on the ground that she was occupying the premises in suit for last eight years as tenant of the plaintiff on payment of rent at the rate of Rs. 200 per month and that she had already filed a suit for permanent injunction against the plaintiff, restraining him to evict her forcibly from the premises in suit. She further contended that she was not a licensee of the house in suit and was its tenant. The defendant earlier filed suit No. 81 of 1994 against the plaintiff for permanent injunction, restraining him from evicting him from the house in suit on the ground that she was occupying the house in suit as tenant on monthly rental of Rs. 200.
(3.) BOTH the suits were consolidated by the trial Court. The trial Court framed necessary issues arising out of pleadings of the parties in both the suits and decided both the suits by a common judgment holding that Smt. Reeta Chauhan had not obtained any allotment order and there was no written contract of tenancy and, therefore, she was not the tenant of the premises in suit in view of Full Bench decision of this Court in Nutan Kumar's case, 1993 (2) ARC 204. It further held that Virendra Govind Upadhya also failed to establish that Smt. Reeta Chauhan was his licensee. With these findings the trial Court dismissed both the suits. Aggrieved with the above judgment and decree Smt. Reeta Chauhan filed Civil Appeal No. 32 of 2002 and Virendra Govind Upadhya filed Civil Appeal No. 33 of 2002. The Lower Appellate Court consolidated both the appeals and disposed of by a common judgment holding that there was no allotment in favour of Smt. Reeta Chauhan and, therefore, she cannot be treated as tenant of the premises in suit and plaintiff Virendra Govind Upadhya had successfully proved that Smt. Reeta Chauhan was occupying the premises in suit as licensee. The owner of the house had revoked the licence and, therefore, the possession of Smt. Reeta Chauhan was unauthorized and the owner was entitled to the relief sought. With these findings the Lower Appellate Court dismissed Civil Appeal No. 32 of 2002 filed by Smt. Reeta Chauhan and allowed Civil Appeal No. 33 of 2002 filed by Virendra Govind Upadhya, set aside the judgment and decree of the trial Court in O. S. No. 121 of 1995 and directed Smt. Reeta Chauhan to deliver vacant possession of the premises in suit to the owner of the house and to pay damages at the rate of Rs. 25/- per day.;