ASHOK BHAN, J. - (1.) THIS judgment of mine shall dispose of the cross appeals No. 1273 and 1575 of 1978 arising out of the order of Senior Sub-Judge, Ludhiana dated 15.6.1978.
(2.) FACTS giving rise to the present appeal are that Sardarni Prem Parkash Kaur filed the present suit for recovery of Rs. 46,240/- against the defendant on account of charges for use and occupation of the godowns which are situated on the back of shop forming part of property No. B.II. 1745, at the rate of Rs. 40/- per day with effect from 1.4.1972 to 31.5.1975 i.e. upto the date of filing of the suit. Plaintiff's case was that the premises have been given on licence to the defendant for a period of two years and if the defendant failed to vacate the same after the expiry of two years then he was to pay Rs. 40/- per day for use and occupation, that is how the present suit has been filed against the defendant on account of charges for use and occupation at the rate of Rs. 40/- per day w.e.f. 1.4.1972 to 31.5.75 i.e upto the date of filing of the present suit. Defendant in his written statement admitted that the plaintiff was owner of the property in dispute. It was averred by him that it was taken on rent by M/s S.B. Saini Brothers, G.T. Road, Ludhiana through Narinder Saini. It was denied that the premises were given under a licence to the defendant and claimed that the same was given to him on lease. It was further denied that the plaintiff is entitled to recover any amount on account of use and occupation. It was also denied that the premises were godown. According to the defendant it was being used for business purpose. It was further asserted that the suit was barred by Order 2 rule 2 of the Code of Civil Procedure. Question of limitation was also raised.
(3.) ON the basis of pleadings of the parties, the trial Court framed the following issues : 1. Whether the defendant is occupying the disputed premises as a licensee ? 2. Whether the suit is barred under Order 2 Rule of the C.P.C. ? 3. Whether the plaintiff is entitled to damages for use and occupation ? If so how much ? 4. Whether the suit is within time ? 5. Relief. The trial Court decided issue No. 1 in favour of the plaintiff and against the defendant and held that the premises were given to the plaintiff as a licensee. Issue No. 2 was decided against the defendant and held that the present suit is not barred by Order 2 rule 2 of the Code of Civil Procedure. Issue No. 3 was decided in favour of the plaintiff partly and it was held that the plaintiff was entitled to recover Rs. 610/- per month instead of Rs. 40/- per day as claimed by the plaintiff. Issue No. 4 was decided against the defendant and it was held that the suit was within limitation and consequently, the suit was partly decreed. Plaintiff and defendant being aggrieved against the judgment and decree of the trial Court have preferred these cross appeals which are being disposed of by this common judgment.;