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2004 DIGILAW 826 (PNJ)

Santosh Kumari v. Didar Singh (Dead)

2004-08-04

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby her suit for declaration with consequential relief of possession and for mesne profits was dismissed. 2. The plaintiff has sought the intervention of the Court on the averment that she is widow of Hari Lal s/o Sant Lal. Darbari Lal was the owner of the suit property who has two sons, namely, Chhedi and Sant Lal. The house in question was demolished due to floods in the year 1947 and only one verandah remained erect and rest of the building was in dilapidated condition. After the death of Chhedi his son Narain left Ferozepur and the house remained in control of the plaintiff. It is alleged that the defendant has been paying Rs. 10/- per month as rent to the husband of the plaintiff and the defendant used to collect the bills from Cantonment Board and pay house tax and water tax of the said house. The husband of the plaintiff died in April, 1982 and thereafter the defendant did not pay rent till March, 1985. The plaintiff reconstructed the fallen room and created a new tenancy at the rate of Rs. 50/- per month. The defendant paid the rent up to 31.3.1986 and did not pay thereafter. Earlier, the plaintiff (had filed an) ejectment petition under Section 13 of the East Punjab Rent Restriction Act, 1949 and also filed a suit for permanent injunction. The defendant denied the relationship of the landlord and tenant and, thus, the plaintiff withdrew the said ejectment petition. It is further alleged that the defendant was inducted as a tenant but since he is denying the relationship of landlord and tenant and, therefore, he is in unauthorized occupation and liable to pay compensation in the shape of mesne profit after 1.4.1986 till delivery of actual possession at the rate of Rs. 100/- per month. 3. The defendant contested the suit and alleged that the plaintiff had withdrawn ejectment petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 as well as suit for permanent injunction and, therefore, present suit is an abuse of the process of the Court. It was admitted that the plaintiff is the widow of Hari Lal but the pedigree table reproduced in the plaint was stated to be incorrect. It was admitted that the plaintiff is the widow of Hari Lal but the pedigree table reproduced in the plaint was stated to be incorrect. It was, thus, stated that the properly in dispute came in possession of defendant when it was vacant and the construction was raised by the defendant by spending huge amount. It was denied that he was ever inducted as a tenant by the plaintiff and plaintiff was relation of Chhedi or Narain Dass. 4. The learned trial Court framed the following issues arising out of the pleadings of the parties:- 1. Whether the pedigree table is correct? OPP 2. Whether the plaintiff has no locus standi to file the suit? OPD 3. Whether the suit has been properly valued for the purposes of Court fee and jurisdiction? OPP 4. Whether the plaint has been properly verified? OPD 5. Whether no cause of action accrued to the plaintiff? OPP 6. Whether this suit is an abuse of the process of the Court? OPD 7. Whether the plaintiff is entitled to the declaration prayed for? OPP 8. Relief. 5. In evidence, the plaintiff appeared as his own witness as PW1 and produced Bhagwant Singh as PW2 who deposed regarding the assessment register for the period from 1974 to 1977 wherein in the column of ownership, Narain Dass and Chhedi are recorded as owners and in the column of occupier word demolition has been written but in the register for the years 1976 to 1980 in the column of occupier, the name of defendant is mentioned. The plaintiff has also examined the service book Exhibit PW1/X of her husband as well as produced PW3 Shankar Dayal, her brother, who deposed about the relationship of the appellant with deceased Darbari Lal and others. 6. In rebuttal, the defendant examined DW1 Raj Kumar, DW2 Baldev Raj and himself appeared as his own witness. 7. The learned trial Court decreed the suit land holding that the plaintiff being one of the legal representatives is entitled to seek possession from the trespasser. The learned trial Court also held that the relationship of plaintiff with Narain Dass and Chhedi is supported by PW3 Shankar Dayal. On the basis of such finding, the learned trial Court decreed the suit and passed a decree for mesne profits at the rate of Rs. 20/- per month from the date of the suit till actual recovery. The learned trial Court also held that the relationship of plaintiff with Narain Dass and Chhedi is supported by PW3 Shankar Dayal. On the basis of such finding, the learned trial Court decreed the suit and passed a decree for mesne profits at the rate of Rs. 20/- per month from the date of the suit till actual recovery. However, the learned first Appellate Court reversed the finding in respect of Issue Nos. 1 and 2 and held that the plaintiff has failed to prove her relationship with the deceased and, thus, she is not entitled to file the present suit. It was held that the statements of Shankar Dayal PW3 as well as that of the plaintiff are not sufficient to prove the relationship. 8. Before this Court learned counsel for the appellant has vehemently argued that the appellant has proved that she is at least one of the co-owners of the property in dispute and, therefore, she is entitled to seek possession from the defendant who has denied the relationship of landlord and tenant not only in the previous proceedings but also in the present proceedings. It is contended that since the defendant-respondent has set up his title in himself, therefore, the appellant" is entitled to possession from the respondent herein. 9. Attention was drawn to the statement of the plaintiff as well as her brother Shankar Dayal (PW3) who has deposed that the plaintiff is the wife of Hari Lal who is son of Sant Lal and Sant Lal was son of Darbari Lal. Darbari Lal had another son Chhedi Ram. Narain was son from Chhedi Ram. Such evidence about the relationship has not been controverted in any manner by the defendant. In the absence of any other evidence regarding relationship, the testimony of the witnesses of the appellant could not be discarded. Still further, it is contended that the appellant derives her title in the suit property as wife of Hari Lal, grand-son of Darbari Lal. She is, thus, co-owner along with children of Chhedi Ram/Narain. Therefore, as a co-owner, the appellant is entitled to seek possession from the trespasser even in absence of Chhedi Ram/Narain or their children. 10. To controvert such argument, learned counsel for the respondent argued that the relationship of the appellant with Darbari Lal or with the property in dispute is not proved. Therefore, as a co-owner, the appellant is entitled to seek possession from the trespasser even in absence of Chhedi Ram/Narain or their children. 10. To controvert such argument, learned counsel for the respondent argued that the relationship of the appellant with Darbari Lal or with the property in dispute is not proved. In the absence of proof of title of the appellant, decree for possession against the respondent cant be passed. 11. After hearing learned counsel for the parties, I am of the opinion that following substantial questions of law arise for consideration by this Court:- 1. Whether the appellant is proved to be relation of Darbari Lal being widow of Hari Lal son of Sant Lal son of Darbari Lal? 2. Whether the appellant who is one of the co-owner is entitled to seek possession from the defendant? 12. The learned trial Court has recorded a finding on the basis of appreciation of evidence that the plaintiff has a locus standi to file the suit inasmuch as she is proved to be relation of Sant Lal on the basis of death certificate Exhibit PW-1/Y. Apart from such death certificate, there is a statement of plaintiff herself as well as of her brother deposing about her relationship with deceased Darbari Lal and Sant Lal. There is no evidence to dispute such statement of the plaintiff and her witness to the effect that the statement is incorrect in any particular manner. Still further, the defendant is not claiming any right in the estate of Darbari Lal. Although in the written statement he has stated that he has been and still paying house tax to the Cantonment Board but during the course of his evidence he has stated that he has purchased the property in the year 1956. The purchase of the property is not even the stand of the defendant in the written statement, as per evidence on record, Darbari Lal is proved to be owner of the disputed property and the plaintiff as successor to his estate at least as co-sharer. The defendant, on the other hand, has not been able to prove his title in the said property in any way. There is no evidence of purchase of the property and he has denied the relationship of landlord and tenant and, thus, he is a trespasser and, therefore, the plaintiff-appellant has proved that she is entitled to seek possession. The defendant, on the other hand, has not been able to prove his title in the said property in any way. There is no evidence of purchase of the property and he has denied the relationship of landlord and tenant and, thus, he is a trespasser and, therefore, the plaintiff-appellant has proved that she is entitled to seek possession. The finding recorded by the learned first Appellant Court that the statement of the appellant and her brother Shankar Dayal (PW3) does not satisfy the requirement of Section 50 of the Evidence Act is not supported by any discussion. It is not shown as to how such statement is not relevant. It is her brother who has been the conduct of the appellant with her father-in-law and has seen the relationship of the parties. Merely because he is related to the parties is not a ground to discard his testimony as argued by learned counsel for the respondent. The learned first Appellate Court has taken into consideration the previous statement Exhibit DA in ejectment petition under Section 13 of the East Punjab Urban Rent Restriction Act wherein she has stated that she does not know the name of the father of Narain and Chhedi Ram but they have two sisters, namely, Laxmi and Mona. As has been deposed. Chhedi Ram is another son of Darbari Lal whereas the appellant is claiming the right through Sant Lal another son of Darbari Lal. Merely on the basis of previous statement, the testimony of the appellant could not be discarded. Thus, the appellant is a co-owner and entitled to seek possession. If Chhedi Ram or his son Narain Dass or any of other legal heirs of Chhedi Ram has a right in the property, it is open to him to establish the claim but as against the plaintiff. In view of the above, both the questions are answered in favour of the plaintiff-appellant. Since the suit of the plaintiff has been dismissed only on the ground that she has no better title than the defendant which findings is found to be not sustainable, the judgment and decree passed by the learned first Appellate Court is hereby set aside and that of the learned trial Court is restored with no orders as to costs.