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2010 DIGILAW 870 (PNJ)

Mohan Lal v. Daya Wanti

2010-02-15

MAHESH GROVER

body2010
Judgment Mahesh Grover, J. 1 This Regular Second Appeal by the defendants is directed against the judgments and decrees dated 25.2.2005 and 3.5.2006 passed respectively by the Civil Judge (Junior Division), Jagraon (referred to hereinafter as `the Trial Court) and the Additional District Judge (Ad hoc), Fast Track Court, Ludhiana, (described as `the first appellate Court), whereby the suit filed by the plaintiff/respondent No. 1 was decreed and the appeal filed by the defendants/appellants was dismissed. 2 The plaintiff-respondent No. 1 pleaded that she is in possession of the suit property upon which a house has also been built and that the appellants are in possession thereof paying Rs. 480/- per month for its use and occupation as rent. It is pleaded that the house is now in a dilapidated condition and that no amount is being paid. Recovery of the amount from 1.4.1995 to 31.1.1998 along with interest @ 18% was prayed for. The appellants denied that they were paying anything to the plaintiff-respondent No. 1. They pleaded adverse possession. The parties thereafter went to trial on the following issues :- 1. Whether the plaintiff is entitled for possession over the property in dispute ? OPP. 2. Whether the plaintiff is entitled to the recovery of Rs. 16,320/- along with interest at the rate of Rs. 18% p.a. as prayed for ? OPP. 3.Whether the suit is not maintainable on account of material defect ? OPD. 4. Whether civil court has no jurisdiction to grant the relief for recovery ? OPD. 5. Whether the suit is bad for mis-joinder of the defendant No. 4 ? OPD. 6. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD. 7.Whether the suit is not properly valued ? OPD. 8. Relief. 3 Both the Courts came to the conclusion that the appellants set up the plea of adverse possession. The plea of tenancy at the rate of Rs. 480/- per month was also disbelieved. Hence, no recovery was awarded in the favour of the respondents, but the suit was decreed by observing that the plaintiff- respondent No. 1 was the owner of the property and thus entitled to possession. 4 Aggrieved by the aforesaid findings, the defendants have filed the instant Regular Second Appeal. 480/- per month was also disbelieved. Hence, no recovery was awarded in the favour of the respondents, but the suit was decreed by observing that the plaintiff- respondent No. 1 was the owner of the property and thus entitled to possession. 4 Aggrieved by the aforesaid findings, the defendants have filed the instant Regular Second Appeal. 5 Learned counsel for the appellants has contended with reference to issue No. 4 to say that the Civil Court had no jurisdiction because of the reason that the property fell within the municipal limits and consequently only the provisions of the East Punjab Rent Restriction Act, 1949 (for short `the Rent Act) were applicable and the Civil Court was clearly barred. He has relied upon the Full Bench judgment passed by this Court in the case of Sawan Ram v. Gobinda Ram and another, 1980(1) R.C.R.(Rent) 21 : AIR 1980 Punjab and Haryana 106. 6 On the other hand, learned counsel for the respondent No. 1 has contended that there was no material or evidence on record to show that the property fell within the municipal limits and as per case of the appellants, they were cultivating the land indicating that it was agricultural property and not subjected to Municipal laws. 7 I have heard learned counsel for the parties and have perused the impugned judgments and also the material on record. 8 In the considered opinion of this Court, the contention of the learned counsel for the appellants cannot be accepted for the simple reason that no such plea was ever raised before the Courts below. No objection was taken regarding the maintainability of the suit on the ground that the property fell within the municipal limits, hence, amenable to Municipal Law and as a consequence thereof subjected to the provisions of Rent Act. In the absence of any pleading to that effect, the appellants are precluded from raising such a plea. The finding regarding issue No. 4 which has been agitated before this Court also does not come to the rescue of the appellants for the reason that the issue No. 4 is "Whether civil court has no jurisdiction to grant the relief for recovery". This issue was obviously to be read in conjunction of issue No. 2, wherein the relief of recovery had been asked for. This issue was obviously to be read in conjunction of issue No. 2, wherein the relief of recovery had been asked for. Therefore, in the absence of any such plea having been raised regarding the maintainability of the suit on the ground that the suit property being in the municipal limits was subjected to rent clause, I am of the opinion that the appellants are precluded from raising such a plea for the first time in the Regular Second Appeal. There is thus no ground to interfere. 9 In the absence of any substantial question of law, the appeal is without any merit and the same is hereby dismissed.