( 1 ) PLAINTIFF is the appellant, feeling aggrieved by the judgment and decree of the trial court dismissing his suit for recovery of vacant possession of premises bearing No. 1203, Chah Rahat, Bazar Gulian, Delhi-110006 and for recovery of arrears of rent and mesne profits.

( 2 ). The suit was based on landlord-tenant relationship. The plaintiff and defendant No. 1 are real brothers. Defendants 2 and 3 are respectively the wife and the son of defendant No. 1.

2. 1 On 7. 7. 1959, the plaintiff and defendant No. 1 had purchased properties No. 1158 to 1212 situated at Chah Rahat Bazar Guliyan Delhi-110006. The suit property is one out of those several properties. It is a garrage. It was held on rent of Rs. 11. 50 per month by one M. M. Khanna. The plaintiff and defendant No. 1 being the co-owners had filed an eviction petition against the tenant. On 20. 3. 1962, a family partition took place wherein the joint properties were partitioned and the suit premises fell to the share of the plaintiff. With effect from 20. 3. 1962 defendant No. 1 ceased to have any right in the said premises. In the proceedings for eviction there was a compromise whereunder the tenant M. M. Khanna had agreed to suffer ejectment and then possession was secured by defendant No. 1.

2. 2. The eviction petition was disposed of as compromised on 11. 9. 1962 on which date the plaintiff was not present before the Rent Controller Delhi though a counsel duly authorised by the two co -owners was present. Rent in arrears was also recovered from the tenant Mr Khanna by defendant No. 1. On 22. 6. 1963, defendant No. 1 sent a money order in an amount of Rs. 115. 00 to the plaintiff. This money order was followed by two money orders for the months of July and August, both being in an amount of Rs. 11. 50 each. In September, 1963 there was again a money order in an amount of Rs. 11. 50 sent by defendant No. 1 to the plaintiff which was refused by the plaintiff.

2. 3 On 14. 7. 64, disputes between the parties were referred to arbitration of Shri J. P. Jain, brother -in-law of the parties. The arbitrator gave an award. He awarded an amount of Rs. 6412. 00 to be paid by defendant No. 1 to the plaintiff. As to garrage (property No. 1203 which is the suit property ) defendant No. 1 was held to be a trespasser. However the civil court made the award on the former claim a rule of the court while the award on the latter claim was refused to be made a rule on the ground that it was beyond the scope of arbitration.

( 3 ). According to the plaintiff, defendant No. 1 had taken possession from the tenant M. M. Khanna unauthorisedly. Inasmuch as the property belonged to the plaintiff, the defendants were liable to deliver vacant possession thereof to the plaintiff. An amount of Rs. 2160. 00 as damages for three years prior to the institution of the suit and future mesne profits were also claimed.

( 4 ). The defendants contested the suit pleading that the defendant No. 1 was holding the suit premises ( garrage) as a tenant of the plaintiff at a monthly rent of Rs. 11. 50. It will be useful to extract and reproduce the following part of para 4 of the written statement :-

" On the delivery of possession of the said godown by the said Shri Man Mohan Khanna to the plaintiff and defendant No. 1, the plaintiff made defendant No. 1 as his tenant in respect thereof with effect from 1. 9. 1962 on a monthly rent of Rs. 11. 50 paise. The defendant No. 1 on 22. 6. 1963 remitted rent in respect to the said godown for 10 months from 1. 9. 1962 to 30. 6. 1963 amounting to Rs. 115. 00 at the said rate of Rs. 11. 50 paise by money order under postal receipt No. 4015 dated 22. 6. 1963 which was duly received by the plaintiff under his signatures on 26. 6. 1963. Thereafter rent for the month of July, 1963 was again remitted by defendant No to the plaintiff in respect to the said godown in the amount of Rs. 11. 450 paise on 1. 8. 1963 by money order under postal receipt No. 704 dated 1. 8.