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2004 DIGILAW 1223 (PNJ)

Shakuntla Jain v. Amar Kaur (Dead) Through Lrs.

2004-11-03

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the courts below whereby his suit for possession of a house was dismissed in appeal by the first Appellate Court. 2. The plaintiff has sought possession of the house on the ground that heir predecessor-in-interest Gian Chand Jain was allotted the disputed house on 21.7.1969 by the Rehabitation Department. Subsequently, conveyance deed was executed by the Managing Officer (Sales) in favour of Gian Chand Jain on 9.2,1970 After the death of Gian Chahd Jain on 16.4,1974, the plaintiffs filed a suit for possession alleging therein that the defendants are in illegal and unauthorized possession of the house and the plaintiff being the owner of the house is entitled to actual physical possession of the house. 3. In the written statement, it was the stand of the defendants that the defendants have been in possession of the house since the year 1948. They have been paying the rent for this house to the Department of Rehabilitation at the rate of Re. 1 and 14 annas per month since 1948. Previously, Chet Singh, husband of defendant No. 1 had been paying the rent of this house and after his death his widow defendant No. 1 has been paying rent regularly, In 1977, the value of the house was assessed at Rs. 6,827/- and it was transferred in the name of defendant No. 1 and defendant No. 1 deposited a sum of Rs. 1,7107- on 26.5.1977, and 30.5.1977 as part of the purchase money. The house was transferred in the name of defendant No. 1 and the possession of the defendant No. 1 is of a prospective vendee of the house. The sauda in favour of G.C. Jain was said to be illegal and result of fraud. 4. The learned trial Court found that the plaintiff is owner of the suit property having purchased the same by virtue of a conveyance deed Ex.P-1 executed by Managing Director (Sales). However, the payment to the Rehabilitation Department by the defendant vide Ex.D1 to Ex.D26 was found to be inconsequential in view of the registered sale deed in favour of Gian Chand Jain and consequently the suit was decreed. However, the payment to the Rehabilitation Department by the defendant vide Ex.D1 to Ex.D26 was found to be inconsequential in view of the registered sale deed in favour of Gian Chand Jain and consequently the suit was decreed. However, in appeal the First Appellate Court accepted the appeal filed by the defendant and dismissed the suit holding that the possession of the defendant is that as a tenant under the Rehabilitation Department, therefore, the plaintiff is not entitled to seek possession in the civil suit. Reliance was placed upon Shri Gobind Ram v. Takhat Mal Kanungo and Anr., 1962 C.L.J. 471, and Bishan Dass v. Jai Kishan 1972 C.L.J. 490. It was held that the possession of the defendant is that of a tenant and therefore is not illegal and unauthorised. Still aggrieved, the plaintiff is in second appeal. 5. Learned counsel for the appellants have vehemently argued that the defendant has not pleaded tenancy but has set up a case of ownership having purchased the property from the Rehabilitation Department. Once a finding is recorded that the Rehabilitation Department had no saleable interest which could be conveyed in favour of defendant No. 1 in the year 1977, the suit for possession could not be dismissed as the defendant has never claimed tenancy rights. Reference was also made to the order passed by the learned Additional District Judge on July 31, 1980 whereby the application for the amendment of the written statement so as to plead the possession of the defendant as that of tenant was dismissed on the ground that the defendants cannot be permitted to raise inconsistent plea, in view of the said fact, it is alleged that the defendant having failed to plead and prove the tenancy in his favour, the suit for possession should not have been dismissed. It is argued that in the absence of any issue raised, the first Appellate Court has made out a new case for the defendant. 6. However, I am unable to accept the argument raised by the learned counsel for the appellants. The defendants have categorically pleaded in the written statement that their predecessor-in-interest was tenant under the Rehabilitation Department since the year 1948. It has further been pointed out that the defendants have been paying rent at the rate of rupee one and 14 annas since 1948. The defendants have categorically pleaded in the written statement that their predecessor-in-interest was tenant under the Rehabilitation Department since the year 1948. It has further been pointed out that the defendants have been paying rent at the rate of rupee one and 14 annas since 1948. It is pleaded that Chet Singh predecessor-in-interest of the defendant was in possession of the house since 1948 as tenant. The plaintiff has not denied such plea of the defendant in the replication filed. No doubt, the defendant sought to protect the possession of the house as prospective vendee having paid part of the payment to the Rehabilitation Department. But such sale was found to be not binding on the rights of the plaintiff since the Rehabilitation Department has already sold the house to the plaintiff. Even if the appellant has not pleaded tenancy, it would not amount to forfeiture of tenancy in the present suit. 7. It is not disputed that the plaintiff has purchased property in the year 1977 from the Rehabilitation Department whereas the predecessor-in-interest of the defendant was a tenant prior to sale in favour of the plaintiff under the Rehabilitation Department, therefore, the defendant could not be dispossessed in the present suit for possession on the basis of title only. In view of the findings recorded above, I do not find any substantial question of law arise for consideration of this Court in second appeal. The suit is dismissed with liberty to the plaintiff to seek his remedy in accordance with law. No costs.