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2012 DIGILAW 299 (PNJ)

Kulwinder Singh v. Khem Lal Bansal

2012-02-22

M.M.S.BEDI

body2012
JUDGMENT Mr. M.M.S. Bedi, J.: - The plaintiff has preferred this appeal against the judgment and decree passed by the Courts below by virtue of which the suit for permanent injunction filed by the plaintiff-appellant to restrain the defendants-respondents from interfering, in any manner, in the peaceful use and occupation of the tenanted premises i.e. Plot No.136-140/17, Industrial Area, Phase-I, Chandigarh, or from dispossessing the plaintiff-appellant from the said premises except by due process of law stands dismissed. 2. The claim of the plaintiff regarding his exclusive possession and user of the premises in dispute was based upon the documents EX.P1 and EX.P59, which are in the shape of water and electricity bills and the receipts produced to establish that he had been using the necessary amenities of water and electricity consumed by him. He also relied upon documents EX.P61 to EX.P128 which are in the shape of invoice of the bills issued by one M/s Kamal Motors in favour of M/s Kulwinder Motors. Though these documents were not relied upon, but somehow were permitted to be taken on record by the Courts below. The defendant-respondent had taken up a plea that the plaintiff had been a mere trespasser in the suit property who was an employee of the defendant who had been running their concern in the name and style of M/s Modern Auto Engineering Works in the suit property which was duly registered in the Industrial Sector, Chandigarh. In order to establish their case, the defendants had examined DW1 Rohit, DW.2 Hem Raj, DW.3 Ranbir Singh, DW.4 Ouseph and DW.5 Deepak Kumar Malik. Defendant No.1 had been running his business in the suit property in the name and style of M/s Modern Auto Engineering Works in the property in dispute where the plaintiff used to do mechanic jobs being their employee. Strong reliance was placed on one document EX.D3, which is an application given by the plaintiff to defendant No.1 for seeking the job of mechanic. On appreciation of evidence produced by both the parties, the Courts below have given a finding of fact that the plaintiff-appellant has failed to establish that he had been a tenant under the defendant-respondent Hem Lal Bansal running his business as M/s Kulwinder Motors at a monthly rent of Rs.2,000/- as claimed by him. On appreciation of evidence produced by both the parties, the Courts below have given a finding of fact that the plaintiff-appellant has failed to establish that he had been a tenant under the defendant-respondent Hem Lal Bansal running his business as M/s Kulwinder Motors at a monthly rent of Rs.2,000/- as claimed by him. The Courts below observed that the entire building is three storeyed and the plaintiff-appellant had admitted that he was in possession of only small portion on the ground floor. 3. Mr. Munish Jolly, learned counsel for the plaintiffappellant has vehemently contended that the judgment of the Courts below is based upon mis-appreciation of evidence and that the possession of the plaintiff-appellant stands established. Though the plaintiff had taken up the plea that he was a tenant but he was at least able to establish that he was a licencee being a mechanic on the appreciation of evidence, as such, it was claimed that he is entitled to injunction to the effect that the defendants will not dispossess him except by due process of law relying upon Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs, (2001) 3 Supreme Court Cases 179, that substantial question of law would mean having substance, essential, real, of sound worth, important or considerable and such question need not be one of general importance. He submitted that the High Court may hear the appeal on any other question so long as it is satisfied that the case involves the question and records its reasons for such satisfaction. 4. I have heard Mr.Munish Jolly, learned counsel for the plaintiff-appellant, at length and I am of the opinion that there is no dispute regarding the established principle of law that the High Court can interfere in second appeal only if a substantial question of law is involved. It is also not disputed that the High Court is required to formulate the substantial question of law framed by it and that the High Court may hear the appeal on any other such question if it arises from the record after recording its satisfaction. Whether a question is a substantial question of law depends upon the facts and circumstances of each case. He has relied upon AIR 2004 Supreme Court 4609, Rame Gowda (D) by Lrs Vs. Whether a question is a substantial question of law depends upon the facts and circumstances of each case. He has relied upon AIR 2004 Supreme Court 4609, Rame Gowda (D) by Lrs Vs. M. Varadappa Naidu (D) by LRs and another, in support of his contention that if the plaintiff is established to be in settled possession, he is entitled to protect his possession by a decree of injunction. 5. I have considered all the contentions of the learned counsel for the plaintiff-appellant. Whether the plaintiff-appellant has been able to establish that he is in settled possession, the tests which are required to be adopted as a working rule for determining the attributes of settled possession are (i) that the trespasser must be in actual physical possession of the property over a sufficiently long duration; (ii) that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. 6. The relevant portion of the judgment is reproduced as under:- “The Court laid down the following tests which may be adopted as a working rule for determining the attributes of settled possession : - i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession. Therefore, when title of either party was not proved and plaintiff was found to be in settled possession he would be entitled to relief of injunction restraining defendant from interfering with his possession.” 7. Counsel for the plaintiff-appellant has also submitted that if the plaintiff is considered to be a trespasser, he would be entitled to decree for permanent injunction. 8. The plaintiff-appellant had approached the Court with a specific plea that he is a tenant running his business under the name and style of M/s Kulwinder Motors on the plot in dispute. The Courts below have arrived at a conclusion that plaintiff-appellant is merely a mechanic working with M/s Modern Automobiles. He has failed to establish his exclusive possession as a tenant as claimed by him. He is not established to be in settled possession as a trespasser. If seen in the light of judgment in case Rame Gowda (D) by LRs (supra), he has failed to establish that he was in exclusive control of the premises in dispute. At the most on appreciation of evidence and agreeing with the contentions of learned counsel for the plaintiff-appellant, it can be held that the plaintiff-appellant had been permitted to use the premises as an employee of defendant No.1. I have also considered the contention of learned counsel for the plaintiff-appellant that as a licencee and being a retired worker, he was entitled to the share of profits to the extent of ¾th earnings. Even if the said contention is agreed, the plaintiff-appellant at the most can be held to be entitled to the rendition of accounts and claim his right of his proprietary share in accordance with law but having failed to establish his tenancy and settled possession, he cannot be granted the concession of permanent injunction. 9. No substantial question of law or perversity could be pointed out by the learned counsel for the appellant as such, no ground is made out for interference in the second appeal under Section 100 CPC. Dismissed. --------------