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2003 DIGILAW 135 (PNJ)

Durga Dass v. Sansar Singh

2003-01-24

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. Appellant Durga Dass has filed this appeal against the judgment and decree passed by both the Courts below vide which the suit of the respondent Sansar Singh (Now deceased) for ejectment was decreed and the appellant was ordered to be ejected from the site in question. However, he was given liberty to remove the material of the construction raised by him on the said site before delivery of possession to the respondent within two months. 2. On 3.10.2002, the arguments were heard in this appeal. When the learned counsel for the appellant could not convince this Court on merits of the appeal and the court was going to dismiss the appeal, the following order was passed on the statement of appellant Durga Dass, who was present in the Court: "Appellant Durga Dass, who is present in the Court, has stated that he is ready to hand-over the vacant possession of the disputed premises to the LRs of Shri Sansar Singh, provided that they pay to him Rs. 75,000/- for the construction which he has raised on the disputed premises. He further states that in that eventuality, he will not press his appeal. Counsel for LRs of Sansar Singh has accepted this statement and his client, who is present in the Court, is willing to pay Rs. 75,000/- to the appellant. He is directed to deposit this amount with the Registry of this Court within 15 days from today. The appellant undertakes to hand-over the vacant possession of the disputed premises to the LRs of Sansar Singh respondent without causing any damage to the building within a period of two months. Adjourned to 12.132.2002." 3. In view of the aforesaid order, the LRs of Sansar Singh-contesting respondent, deposited Rs. 75,000/- with the Registry of this Court on 9.10.2002. Today, counsel for the aforesaid respondent has informed this Court that in spite of this aforesaid undertaking given by the appellant, the vacant possession of the demised premises has not been handed over to his clients. On this, learned counsel for the appellant stated that his client is not willing to accept the aforesaid arrangement, made vide order dated 3.10.2002 and submitted that the appeal may be heard on merits. 4. In view of the above, I have heard learned counsel for the parties on merits of the appeal. 5. On this, learned counsel for the appellant stated that his client is not willing to accept the aforesaid arrangement, made vide order dated 3.10.2002 and submitted that the appeal may be heard on merits. 4. In view of the above, I have heard learned counsel for the parties on merits of the appeal. 5. The brief facts of the case are that Sansar Singh (now deceased through his LRs) (hereinafter referred to as the plaintiff) filed an application for ejectment against the appellant (hereinafter referred to as defendant No. 1) alleging therein that the site in dispute was taken on lease by defendant No. 1 from the father of the plaintiff for a period of 15 years under the terms of registered lease deed dated 1.12.1958 at the rate of Rs. 25/- per month. Defendant No. 1 was authorised to raise construction on the site at this own expenses and he was to remove such construction while handing over possession of the site to the lessor after the expiry of lease period. Defendant No. 1 entered into possession of the site in dispute and raised construction thereon, but he sub-letted the same to Piare Lal and Parkash, respondents-defendants No. 2 and 3, though he was not authorised to sub-let the site in question. Thereupon, the plaintiff filed an application for ejectment of defendant No. 1 on the ground of sub-letting under the provisions of East Punjab Urban Rent Restriction Act. The said application was contested by defendant No. 1 on the ground that the Rent Controller was having no jurisdiction as the disputed site does not fall under the definition of rented land and the only remedy available to the landlord was to file the civil suit. The said objection was accepted by the Rent Controller and the ejectment application filed by the plaintiff was dismissed. Thereafter, he fifed the instant civil suit for ejectment of defendant No. 1 and his alleged sub-tenants respondents-defendants No. 2 and 3 on the ground that after the expiry of the lease period, defendant No. 1 has no legal right to retain possession of the site in dispute. Defendant No. 1 contested the suit on the ground that the same is not maintainable as the civil court has no jurisdiction because the site in question was the rented land and the provisions of East Punjab Urban Rent Restriction Act are applicable. Defendant No. 1 contested the suit on the ground that the same is not maintainable as the civil court has no jurisdiction because the site in question was the rented land and the provisions of East Punjab Urban Rent Restriction Act are applicable. It was also alleged mat the instant suit was bad for non-service of notice under Section 106 of the Transfer of Property Act. The suit was also resisted on other grounds. 6. On the pleadings of the parties, the following issues were framed: 1. Whether the civil court has no jurisdiction to try the suit?OPD 2. Whether the plaintiff has been receiving the rent of the premises in dispute from defendant No. 1 after the expiry of lease on 1.12.73? If so to what effect? OPD 3. Whether no notice under Section 106 of Transfer of Property Act was required to be given to the defendants before instituting the suit? OPP 4. If it be held that notice under Section 106 of Transfer of Property Act was necessary, what is the effect of its non giving? Onus on parties 5. Whether the suit is collusive between the plaintiff and defendants Nos. 2 and 3? OPD 6. Whether the plaintiff is the only heir of Prem Singh deceased under a will in his favour as alleged by him? OPP 7. Is the suit against defendant No. 2 not premature?OPP 8. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP 9. Whether the suit is collusive between he plaintiff and defendant Nos. l and 2? OPD 10. Whether the plaintiff is estopped by his acts and conduct from filing the suit?OPD 11. Whether defendant No. 3 was inducted as tenant by Prem Singh father of the plaintiff, If so its effect? OPD3 12. Whether defendant No. 2 raised any construction over the premises in dispute? If so whether he is entitled to any compensation and to what amount? OPD2 13. Whether defendant No. 2 is a tenant of defendant No. 1? OPDI 14. Whether the plea raised by defendant No. 1 as to the want of jurisdiction is barred by the principle of estoppel? OPP 15. Relief. 7. If so whether he is entitled to any compensation and to what amount? OPD2 13. Whether defendant No. 2 is a tenant of defendant No. 1? OPDI 14. Whether the plea raised by defendant No. 1 as to the want of jurisdiction is barred by the principle of estoppel? OPP 15. Relief. 7. The learned trial court decreed the suit of the plaintiff and defendant No. 1 and his sub-tenants defendants-respondents No. 2 and 3 were ordered to be ejected from the site in dispute with a direction to defendant No. 1 to remove the material of the construction made on the site before delivery of possession to the plaintiff within two months from the passing of the decree. All the material issues were decided against defendant No. 1. 8. Aggrieved against the judgment and decree of the learned trial court, defendant No. 1 filed appeal before the learned first appellate court. In the appeal, he only pressed the finding recorded by the learned trial court on issue No. 1 i.e. whether the civil court has no jurisdiction to try the suit? While affirming the finding of the learned trial court on this issue, the learned first appellate court recorded the following findings: "7. the learned counsel for the defendant-appellant could not assail the findings recorded by the learned trial court on any issue except issue No. 1, in respect of which he submitted that actually civil court has no jurisdiction because the property in dispute fails within the definition of rented land as it finds mention in Section 2(f) of the East Punjab Urban Rent Restriction Act, 1949, and that the proceedings could be initiated under the East Punjab Urban Rent Restriction Act, 1949, and this regular suit was not competent. In this respect, the learned trial court has rightly pointed out that defendant No. 1 is now estopped from pleading that the plaintiff should seek remedy now before the learned Rent Controller by way of ejectment proceedings because no party to the litigation can be allowed to approbate and reprobate and this principle finds support from the law laid down in A.l.R. 1958 Andhra Pradesh page 779 (Indermull Leniya Loniya v. Subordinate Judge, Seconderabad and Ors.), in which it is held as under:- "A party who successfully took a plea and got a judgment in his favour cannot be allowed to take an inconsistent position in any action arising out of the said judgment. This principle has been applied even to cases where a question of jurisdiction is involved." The learned counsel for the appellant could not bring to my notice any other authority in which a different view might have been taken. From the terms of the lease also it can be gathered that the premises in dispute do not appear to have been rented out for the purposes of any business and trade and the premises in dispute does not fall within the definition of rented land as contained in Section 2(f) of the East Punjab Urban Rent Restriction Act, 1949 . So, the findings recorded by the learned trial court on issues Nos. 1 and 14 are correct and are hereby affirmed. No finding recorded on any other issue has been challenged by the learned counsel for the defendant-appellant and no other point has been raised. There being no merit in this appeal, it is hereby dismissed." 9 I find no infirmity or illegality in the aforesaid findings of the learned first appellate court. 10. By his previous act or conduct, defendant No. 1 has been precluded from denying the fact that the civil Court has no jurisdiction. The Courts below have rightly applied the principle of estoppel against defendant No. l, which is a rule of evidence. This principle is based on the maxirn allegans contraror non est andiendns i.e a party is not to be heard to allege the contrary. This rule is enacted in Section 115 of the Indian Evidence Act. The Courts below have rightly applied the principle of estoppel against defendant No. l, which is a rule of evidence. This principle is based on the maxirn allegans contraror non est andiendns i.e a party is not to be heard to allege the contrary. This rule is enacted in Section 115 of the Indian Evidence Act. 1872 which lays down that when one person has by its declaration, act or ommission caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceedings between himself and such person or his representative to deny the truth of that thing. It is well settled principle of law that a person cannot approbate and reprobate. Hence, the first appellate court has rightly dismissed the appeal field by defendant No. 1. 11. In view of the above discussion, there is no merit in the appeal and the same is hereby dismissed with costs which is assessed as Rs. 5000/-. The Registry is directed to return/refund the amount of Rs. 75,000/-, deposited by Gurdial Singh, one of the legal representatives of Sansar Singh vide receipt No. 13 dated 9.10.2002 in view of the order dated 3.10.2002 passed by this Court.