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2008 DIGILAW 77 (PNJ)

Surinder Kumar v. Mohan Lal

2008-01-14

PERMOD KOHLI

body2008
JUDGMENT PERMOD KOHLI, J. (Oral): - This is defendant's Regular Second Appeal against the judgment and decree passed by the learned Lower Appellate Court. 2. Respondent Hargopal filed a suit for possession and recovery of arrears of rent against the defendant-appellant herein on the ground that the defendant is a tenant in the shop with effect from 10.07.1985. He has defaulted in payment of arrears as he has not paid the arrears of rent since 10.06.1991 at the rate of Rs.500/-per month. The plaintiff also claimed that the tenancy is governed by the Transfer of Property Act and notice under Section 106 of the Transfer of Property Act was served upon the respondent. The main contention raised in the plaint is that the Haryana Urban (Control of Rent and Eviction) Act, is not applicable to the tenancy in dispute as the construction of the shop was completed in July, 1985. An amount of Rs.18000/-was also claimed as arrears of rent. The defendant-appellant denied the arrears and also the receipt of notice and claimed that the demised shop was constructed prior to 1984 and it was earlier in possession of one Satpal who was tenant in the shop in question. 3. On the basis of the pleadings of the parties, the learned trial Court framed the following issues on 16.10.1985: 1. Whether plaintiff is owner of the shop in dispute? OPP 2. Whether tenancy of defendant has been validly terminated? OPD 3. Whether suit is not maintainable in the present form? OPD 4. Whether plaintiff has no locus-standi to file the suit? OPD 5. Whether civil court has no jurisdiction to entertain the suit? OPD 6. Whether plaintiff is estopped by his own act and conduct from filing the suit? OPD 7. Whether suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD 8. Relief. The following additional issues were also framed by the learned trial Court on 17.10.2003:- 1-A Whether the defendant is in arrears of rent for 36 months as alleged in the plaint? OPP 3-A Whether there is any cause of action to file and maintain the present suit? OPD 3-B Whether the shop in dispute was rented out to one Satpal son of Hira Lal? OPD Issue Nos.1, 1-A, 2 and 3-B were taken up together. 4. OPP 3-A Whether there is any cause of action to file and maintain the present suit? OPD 3-B Whether the shop in dispute was rented out to one Satpal son of Hira Lal? OPD Issue Nos.1, 1-A, 2 and 3-B were taken up together. 4. The main question which came up for consideration was whether the tenancy is governed by the provisions of the Transfer of Property Act and the civil court has the jurisdiction to try the suit. The plaintiff with a view to establish his claim examined Raman Sharma, Parokar as PW-1; Ram Nath Clerk of the Advocate as PW-3 and other witnesses. The plaintiff also placed on record the copy of the site plan dated 16.08.1984 to establish that the shop was constructed after obtaining sanction from the Municipal Authorities in the year 1985. Raman Sharma, PW-1 appeared and proved that the site plan was sanctioned by the Municipality on the basis of the application of the plaintiff dated 09.04.1984. In response to a specific question as to whether the shop was already in existence, this witness denied the suggestion. The learned trial Court, accordingly, held that the shop was constructed within 10 years from the date of the suit and the provisions of the Haryana Urban (Control of Rent and Eviction) Act, are not applicable. However, the learned trial Court while deciding the issue regarding the service of notice under Section 106 of the Transfer of Property Act, came to the conclusion that the tenancy was not validly terminated with the end of the month of the tenancy i.e. 09.08.1994 being the last date, as according to the learned trial Court tenancy commenced with effect from 10.07.1985. On the ground of defective notice, the learned trial Court vide its judgment and decree dated 12.11.2003 dismissed the suit. The plaintiff filed Civil Appeal No.117 of 2003, in the Court of learned Additional District Judge, Kurukshetra, whereas the defendant filed the Cross-objections in the appeal aforesaid. The learned Lower Appellate Court vide its judgment and decree dated 26.10.2004 decreed the suit of the plaintiff and dismissed the Cross-objections. The plaintiff filed Civil Appeal No.117 of 2003, in the Court of learned Additional District Judge, Kurukshetra, whereas the defendant filed the Cross-objections in the appeal aforesaid. The learned Lower Appellate Court vide its judgment and decree dated 26.10.2004 decreed the suit of the plaintiff and dismissed the Cross-objections. The learned Lower Appellate Court on the basis of the site plan sanctioned on 16.08.1984 accepted the contention of the plaintiff that the shop in question was constructed in July, 1985 and, thus, returned a finding that the construction of shop having been constructed within 10 years of the filing of the suit, provisions of the Haryana Urban (Control of Rent and Eviction) Act, are not applicable. The learned Lower Appellate Court also rejected the contention of the appellant-defendant that the shop was constructed somewhere in the year 1971. As a matter of fact, both the sides produced record from the Municipal Committee, Ladwa. The plaintiff's witness Raman Kumar Sharma proved the site plan dated 16.08.1984 from the record of the Municipality which establish that the site plan of the disputed shop was sanctioned by the Municipality on said date, where the defendant-appellant also produced Mian Singh DW-6, who produced record to establish that the site plan dated 18.04.1971 was sanctioned by the Municipal Committee and stated that the disputed shop was constructed much prior to the period of 10 years preceding the date of the filing of the suit. The learned Lower Appellate Court has considered both these site plans. In the earlier site plan, there was no verandah whereas in the second site plan a verandah and stair case are shown to have been constructed. Therefore, on consideration of both these site plans, learned Lower Appellate Court accepted the plea of the plaintiff and rejected the contention of the appellant-defendant that the shop was constructed beyond 10 years preceding the date of the filing of the suit. The learned Lower Appellate Court also reversed the findings of trial Court regarding notice. The learned Lower Appellate Court came to the conclusion that the tenancy has been validly terminated by giving 15 days clear notice. It has been observed that the defendant never challenged the validity of notice and hence, the notice was validly served. 5. Mr. The learned Lower Appellate Court also reversed the findings of trial Court regarding notice. The learned Lower Appellate Court came to the conclusion that the tenancy has been validly terminated by giving 15 days clear notice. It has been observed that the defendant never challenged the validity of notice and hence, the notice was validly served. 5. Mr. Arun Jain, learned counsel appearing for the appellant has raised the following contentions:- (i) That the learned Lower Appellate Court has not considered the statement of Satpal who was a tenant in the shop in dispute prior to the defendant. He has also referred to paragraphs 3 and 8 of the written statement wherein a necessary plea has been raised by the defendant that the Shop in dispute was under the tenancy of Satpal before the defendant was inducted as tenant. He has also referred to the replication filed by the plaintiff wherein these allegations were simply denied without saying anything about Satpal, the alleged tenant. It is, accordingly, argued that the allegations having not been denied specifically, it is deemed to be admitted and it should be held that Satpal was a tenant in the shop in dispute before the defendant was inducted as a tenant. (ii) That the onus lies upon the plaintiff to establish that the premises was constructed in the year 1985 and the construction was within 10 years from the date of the filing of the suit. (iii) That the learned Lower Appellate Court has created a new case for the plaintiff to pass a decree for eviction/possession. It is contended that it is not the case of the plaintiff that the existing shops were demolished and new shops were constructed as has been held by the learned Lower Appellate Court. 6. I have heard the learned counsel for the parties at length and perused the record of the trial Court. 7. It is not a case where the Court was required to pass a judgment on the admission of the parties alone. The defendant chose to produce Satpal, the alleged tenant as a witness in the case. During cross-examination this witness categorically stated that he has not brought any record relating to his tenancy in the disputed shop before the defendant's induction nor he is in possession of any such evidence. The defendant chose to produce Satpal, the alleged tenant as a witness in the case. During cross-examination this witness categorically stated that he has not brought any record relating to his tenancy in the disputed shop before the defendant's induction nor he is in possession of any such evidence. On the basis of the direct evidence available on record, the learned Lower Appellate Court returned a finding that Satpal was never inducted as a tenant in the shop in dispute and disbelieved his statement and arrived at a conclusion that the shop was constructed in the year 1985. Though admission is the best evidence, however, it is for the Court to consider whether the admission alone should be relied upon or it should be corroborated by necessary evidence. In the present case, the admission sought to be pressed into service is regarding the tenancy of Satpal, but the Court has disbelieved Satpal and held that he was not a tenant in the shop in dispute. Under the above circumstances, there is no question of relying upon the so-called admission in the pleadings of the parties. I do not find any substance in the contention of the learned counsel for the appellant. 8. It is not in dispute that the onus lies upon the plaintiff to establish that the construction of the shop was raised within 10 years preceding the filing of the suit. Both the sides led evidence and produced two sanctioned site plans from the Municipal Authorities; one site plan was sanctioned in the year 1971 and the other was sanctioned on 16.08.1984. There is nothing on record to establish that after the sanction of the plan dated 18.04.1971 any construction was raised and this was the specific plea of the defendant. To the contrary, the plaintiff has not only produced sanctioned plan dated 16.08.1984 but also claimed that the shop was constructed in July, 1985 and that is why even though the rent note was executed on 22.06.1985 but the effective date of the commencement of the tenancy was fixed as 10.07.1985. On the basis of the material on record, both the learned Courts below believed the contention of the plaintiff. On the basis of the material on record, both the learned Courts below believed the contention of the plaintiff. It is settled proposition of law that when two views are possible and the Courts have adopted one view, which cannot be said to be perverse on the basis of the evidence on record, it is not appropriate for the appellate Court to interfere in the second appeal in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. Even if I accept the contention of the learned counsel for the appellant that there was some application in the year 1971 for the sanction of the site plan, the learned Courts below have taken a specific view that the sop in dispute was constructed subsequent to 16.08.1984. I find no reason to interfere with such a finding of fact. 9. The last contention of the learned counsel for the appellant is that the learned Lower Appellate Court has made out a new case in favour of the plaintiff-respondent for the eviction of the appellant. He further argued that from the judgment of the learned Lower Appellate Court, it is apparent that the learned Lower Appellate Court has observed that the shop was constructed after 1971 and seems to have been demolished and new construction was raised. I am in agreement with the learned counsel for the appellant as these findings are not based upon any material on record. Be that as it may, even if these observations are ignored, there was enough material on record to establish that the shop in dispute was constructed on the basis of the sanction granted on 16.08.1984. It cannot be imagined that a person will obtain sanction if the property is already constructed and pay the fee to the concerned Municipal Authorities particularly when the suit was filed in the year 1994 i.e. about 10 years after the sanction. Thus, it cannot be said that sanction was managed to carve out a ground for eviction. Under the above circumstances, though the findings recorded by the learned Lower Appellate Court may not be appropriate, but in the absence of such observations also, the conclusion of the learned Lower Appellate Court that the shop was constructed within 10 years preceding the filing of the suit, cannot be interfered with. No substantial question of law arises in this appeal. 10. No substantial question of law arises in this appeal. 10. For the reasons recorded above, I find no merit in this appeal and the same is hereby dismissed with no order as to costs.