The determination of ownership, permissive occupation, entitlement to damages, and cause of action are crucial in property dispute cases.

B.S. VERMA, J. –

Heard learned Counsel for the parties and perused the record. This appeal if directed against the judgment and decree dated 29.10.2009 passed by Civil Judge (Senior Division) Rishikesh, District Dehradun, whereby the suit of the plaintiff-respondent has been decreed against the defendant-appellant and the appellant has been directed to vacate the disputed property within a period of one month and to deliver its vacant possession to the plaintiff-respondent. The defendant-appellant has also been directed to pay damages @ Rs. 250/- per day from 21.3.2009 till the actual date of delivery of possession along with 2% interest as mentioned in the impugned judgment.

2. Relevant facts giving rise to the present appeal in brief are that the plaintiff-respondent filed a suit for permanent injunction against his real brother/defendant-appellant in the Court of Civil Judge (Senior Division) Rishikesh, Dehradun, alleging therein that the respondent is the owner-in-interest of the Abadi land measuring 0.289 Acre of plot No. 126 situate at Shyampur Bypass Rishikesh, District Dehradun. The said property came to the share of the plaintiff in the family partition. In Suit No. 194 of 2007, Rakesh Kumar v. Rajkumar, the plaintiff was declared sole owner of the disputed property. The defendant is the younger brother of the plaintiff and the defendant was temporarily permitted to install petrol pump in the disputed property. The plaintiff had requested the defendant to remove the structures and to deliver the possession of the disputed property but the defendant adopted dilatory tactics. The plaintiff determined the tenancy of the defendant by registered notice dated 9.3.2009 and asked him to vacate the disputed property and deliver its possession to the plaintiff within a period of seven days from the date of receipt of notice else the plaintiff would proceed against the defendant in the competent Court. The notice was not complied with by the defendant. The occupation of the defendant over the disputed property is permissive, which stood determined, therefore, the plaintiff is entitled to get the possession of the property in question. Ultimately, the suit has been filed for possession and for recovery of damages as mentioned in the relief clause of the plaint.

3. The defendant-appellant resisted the suit by filing his written statement. He admitted that there is a petrol pump installed in the disputed property. He also admitted the receipt of the registered notice dated 9:3.2009, but he questioned the authority of the plaintiff for obtaining possession of the disputed property from the defendant. The ownership of the plaintiff over the disputed property has been admitted. No cause of action arose to the plaintiff to determine the permission of the defendant. In additional pleas, it has been asserted by the defendant that the plaintiff is not entitled to get the disputed property vacated from the defendant. The defendant shall hand over possession of the said property when an alternate arrangement is made by the defendant. In the last it has been asserted that if the defendant is ordered to vacate the disputed property, his established business would be ruined and the defendant would suffer irreparable loss.

4. On the pleadings of the parties, the learned Trial Court framed the following issues:- .

ISSUES

1. Whether the plaintiff is the owner in possession of the disputed property and whether he is entitled to get the possession of the same from the defendant for the reasons stated in the plaint.

2. Whether the plaintiff is entitled to get damages @ Rs. 250/- per day along with interest @ 2% from 21.3.2009 till the date of delivery of possession to the plaintiff?

3. Whether the plaintiff has any cause of action?

4. To what relief is the plaintiff entitled to get?

5. In support of his claim, the plaintiff filed documentary evidence in the suit and has also filed his affidavit in evidence, which he testified in his oral evidence