- (1.) This is an appeal directed by the defendants/appellants against the judgment and decree dated 25.8.2007 passed by Shri Gurbir Singh, learned Additional District Judge Ludhiana vide which the appeal preferred by the defendants against the judgment and decree dated 13.12.2006 passed by Shri K.K.Bansal, PCS, Civil Judge (Junior Division), Ludhiana was dismissed.
(2.) Briefly stated the plaintiffs filed suit for possession for damages for use and occupation of the property. The case set up by the plaintiffs is that Dr.Hira Singh Grewal was the owner of the residential house as described in the heading of the plaint. Dr.Hira Singh Grewal died in the year 1945. He executed a Will dated 16.9.1944, deposited by him in the office of Registrar, Ludhiana in favour of Dr.Shivdev Singh Grewal father of the plaintiff No.1 and grandfather of plaintiff Nos.2 to 4 and appointed him as executor of the Will. Dr.Shivdev Kaur Grewal, who was his widowed daughter was given right to live in the main kothi during her life time. She was also given right to enjoy the usufruct of the main kothi for her livelihood during her life time. She was mere a licencee and could enjoy the usufruct of the property during her life time for her maintenance. The possession of the main kothi was to revert back to Dr.Shivdev Singh Grewal after death of Smt. Shivdev Kaur. After death of Dr.Hira Singh Grewal, the Will was fully acted upon and Dr.Shivdev Singh entered into possession of the entire property left behind by Dr.Hira Singh as owner. Dr.Shivdev Singh died in the year 1968. On his death the ownership right in respect of the property were inherited by the plaintiff No.1, his brother Dr.J.S.Grewal and mother Smt. Dorthy Grewal in equal shares. Proceedings for attachment of the the said house for recovery of wealth tax were initiated by the Income Tax authorities. R.S.Grewal plaintiff No.1 along with his brother and mother filed a civil suit against Union of India and Dr.Shivdev Kaur Grewal for declaration that they are owners in possession of the agriculture land and house as mentioned in the plaint and same were not liable to be attached and sold for recovery of income tax dues from Shivdev Kaur and order of attachment dated 20.1.1986 was illegal, void, ineffective against the rights of the plaintiff.. The ownership of the property was held to be that of plaintiffs. In the said suit, Dr.Shivdev Kaur took plea that she was absolute owner of the property but her that plea was not accepted. However, during the pendency of the suit, Smt.Dorthy Grewal, mother of the plaintiff no.1 died in the year 1986 and she left a Will dated 27.7.1976 in favour of the plaintiffs No.2 to 4 and they are arrayed as legal representations of Smt. Dorthy Grewal, the plaintiffs No.2 to 4 became owners in equal shares to the extent of 1/3rd share in the entire property. Dr.J.S.Grewal, brother of the plaintiff had also died issueless on 9.7.1993. On his death plaintiff No.1 being his real brother and sole legal heir of Dr.J.S.Grewal succeeded to his 1/3rd share in the property. The plaintiff No.1 was also impleaded as legal representative after contest. The petitioner as well as her brother filed appeals against the judgment and decree dated 26.9.1994 passed by Shri G.K.Dhir, Civil Judge (Senior Division), Ludhiana which were dismissed by Shri A.S.Sodhi, the then District Judge, Ludhiana vide judgment and decree dated 29.4.1996 and the ownership of the plaintiffs were held by the Appellate Court. The plaintiffs filed a regular second appeal No.2635 of 1996, which was disposed of vide judgment dated 22.5.1997. It was held by this Court that income tax/wealth tax dues from Dr.Shivdev Kaur Grewal could only be recovered by Income Tax Department from the rental income derived by or accruing to Dr.Shivdev Kaur Grewal from the main kothi and shops in front thereof during her life time. Dr.Shivdev Kaur Grewal died on 15.2.1998 and on her death her right to live in the main kothi along with right to utilise the usufruct of the main kothi along with right to utilise the usufruct of the main house and the shops came to an end. The defendant claims that he has taken the shops in his possession on rent from Dr.Shivdev Kaur Grewal and has refused to vacate the shops and to deliver its vacant possession to the plaintiffs, hence the suit.
(3.) It has been further alleged that the suit property could be leased out on a monthly rent of more than Rs. 2000/- but the plaintiffs are claiming damages for use and occupation of the shop in question at the rate of Rs. 1000/- per month and in this manner total comes to Rs. 36,000/- for the three years and interest at the rate of 12% per annum on the said amount.;