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Himachal Pradesh High Court · body

2012 DIGILAW 762 (HP)

Pandit Jwala Dutt v. Amar Nath Sharma

2012-10-30

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, Judge: 1. This Regular Second Appeal is directed against the judgment and decree, dated 23.05.2012, passed by the learned District Judge, Shimla, H.P. in Civil Appeal No. 57-S/13 of 2010. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondents-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for the sake of convenience), has filed a suit for possession, permanent injunction and recovery of `36,000/-against the appellant-defendant (hereinafter referred to as ‘the defendant’ for the sake of convenience), on the averments that they had purchased one residential set in building in basement of Khasra No. 1016, 1017, 1018, revenue estate Vikas Nagar, as per Jamabandi for the year 2003-04. One Shri Rajan Rai and Shri Ajay Vohra (DW-3) had floated three companies under the name and style of M/s. Blue Peaks Floriculture Ltd. DW-3, Sh. Ajay Vohra and Shri Rajan Rai had collected funds from the public at large. Plaintiff No. 1, Shri Amar Nath also invested a sum of `4,23,800/- with DW-3, Shri Ajay Vohra and Shri Rajan Rai. The fixed deposits matured in the beginning of 2000. The plaintiffs requested DW-3, Shri Ajay Vohra to make the payment. The plaintiffs had instituted a complaint bearing No. 10 of 2000 under Section 12 of the Consumer Protection Act against DW-3, Sh. Ajay Vohra, Sh. Rajan Rai and the companies floated by them before H.P. State Consumer Disputes Redressal Commission. The H.P. State Consumer Disputes Redressal Commission vide order, dated 26.07.2001, had directed DW-3, Sh. Ajay Vohra and Sh. Rajan Rai to refund the amount of `4,23,800/- with costs, interest and compensation to the plaintiffs. But, the same was not complied with by DW-3, Sh. Ajay Vohra and Shri Rajan Rai. The plaintiffs filed an Execution Petition before the learned H.P. State Consumer Disputes Redressal Commission for implementation of order, dated 26.07.2001. The premises in dispute were attached by the orders of the Hon’ble Commission. Thereafter, the property was put to sale. The plaintiffs purchased the suit property for `5,30,000/-. The plaintiffs wanted to take possession of the suit property. The defendant had started claiming his possession and tenancy under DW-3 on rental charge of `400/- per month. According to the plaintiffs, the rental value of the property was not less than 3,000/- per month. Thereafter, the property was put to sale. The plaintiffs purchased the suit property for `5,30,000/-. The plaintiffs wanted to take possession of the suit property. The defendant had started claiming his possession and tenancy under DW-3 on rental charge of `400/- per month. According to the plaintiffs, the rental value of the property was not less than 3,000/- per month. DW-3 and Shri Rajan Rai were stated to have handed over possession of suit property to the defendant with a view to frustrate the claim of the plaintiffs. The defendant had also threatened to alienate the suit property. 3. The suit was resisted by the defendant. The defendant has shown his ignorance of payment of `4,23,800/- by the plaintiffs to DW-3 and Sh. Rajan Rai. The defendant has also expressed ignorance of purchase of the suit property by the plaintiffs under the orders of learned H.P. State Consumer Disputes Redressal Commission. According to the defendant, he was a retired Government servant and had taken possession of the suit property. He has paid a sum of ` 1 lac to DW-3 in 1998-99. He has completed his construction and has furnished the same by paying a sum of `6 lacs. DW-3, Sh. Ajay Vohra has rented out the suit property to the defendant on rental charges of `400/- per month. He had been regularly paying the rent to DW-3. The suit property was within the Municipal limits. According to the defendant, since he had been tenant, he could not be evicted except under the provisions of H.P. Urban Rent Control Act, 1987. According to him, he had not in any way colluded with DW-3 and Sh. Rajan Rai. 4. The learned Civil Judge (Junior Division), Court No. 3, Shimla, H.P. framed the issues on 25.07.2008. He partly decreed the suit and the defendant was directed to pay an amount of `2553/- as arrears of rent alongwith 9% interest per annum from the date of filing of the suit till realization. However, the learned trial Court declined the relief of injunction and possession claimed by the plaintiffs. The plaintiffs preferred an appeal before the learned District Judge, Shimla, H.P. He allowed the same on 23.05.2012. The plaintiffs were held entitled to possession of the suit property by dispossession of the defendant. However, the learned trial Court declined the relief of injunction and possession claimed by the plaintiffs. The plaintiffs preferred an appeal before the learned District Judge, Shimla, H.P. He allowed the same on 23.05.2012. The plaintiffs were held entitled to possession of the suit property by dispossession of the defendant. The plaintiffs were also held entitled to use and occupation charges at the rate of `3,000/-per month w.e.f. the date of institution till dispossession of the defendant with interest at the rate of 6% per annum w.e.f. 08.04.2008. The defendant was also permanently restrained from transferring possession of the suit property to a rd party till his dispossession. It is in these circumstances, the present Regular Second Appeal has been filed. 5. Mr. Manish Gupta, learned counsel for the appellant has vehemently argued that the learned 1st appellate Court has misread the oral as well as documentary evidence. 6. I have heard Mr. Manish Gupta, learned counsel for the appellant at length and gone through the judgments and decrees carefully. 7. Plaintiff No. 1, Amar Nath has appeared as PW-3. According to him, he has deposited funds with DW-3, Sh. Ajay Vohra and Shri Rajan Rai. He had been requesting them to pay the amount of fixed deposit receipts of `4,23,800/-, but to no avail. He had instituted a complaint before the H.P. State Consumer Disputes Redressal Commission. The same was contested by the complainant. The H.P. State Consumer Disputes Redressal Commission vide order, dated 26.07.2001, has allowed the complaint. DW-3 and Sh. Rajan Rai were ordered to pay the amount of `4,23,800/- alongwith interest and costs. However, the order of the learned Commission was not complied with. The suit property under the ownership and possession of DW-3 was attached and sold for `5,30,000/-. DW-3 and Sh. Rajan Rai, in collusion with defendant, had transferred possession of the suit property with a view to frustrate the claim of the plaintiffs. The plaintiffs were entitled to possession by dispossession of the defendant. They were also entitled to use and occupation charges at the rate of `3,000/- per month from the date of institution till dispossession of the defendant, with interest. 8. PW-1, Sh. Chander Mohan has produced the record of complaint No. 10 of 2000 and various orders passed towards execution of the main order, dated 26.07.2001. The plaintiffs were stated to have purchased the suit property for `5,30,000/-. PW-2, Sh. 8. PW-1, Sh. Chander Mohan has produced the record of complaint No. 10 of 2000 and various orders passed towards execution of the main order, dated 26.07.2001. The plaintiffs were stated to have purchased the suit property for `5,30,000/-. PW-2, Sh. Ashwak Ahmad has deposed that he was residing in the area of Vikas Nagar and paying rent of `3,100/- per month for two room set. 9. DW-1, Sh. Devinder Kumar has testified that he had sold equipments to the defendant as per bills Ex. D-1 to Ex. D-3. DW-2, Sh. Usman has deposed that he was employed by the defendant for undertaking wood work. He has paid a sum of `66,320/- to DW-2 vide Ex. DW-2/A. DW-2A, Sh. Padam Dev has deposed that he has undertaken the welding work in the area of Vikas Nagar. He had fixed grills and railing etc. to the suit property. He had been paid a sum of `26,533/- vide bill, Ex. DW-2/A-1 by the defendant. 10. DW-3, Sh. Ajay Vohra has deposed that the defendant has paid a sum of `1 lac to him. He has completed the construction at his own cost. The defendant had been paying the agreed rent of `400/- per month to him. DW-4, Sh. Jawala Dutt, defendant has supported his case, as stated in the written statement. 11. What emerges from the evidence discussed hereinabove is that DW-3, Sh. Ajay Vohra and Sh. Rajan Rai had floated three companies. The plaintiffs have also invested a sum of `4,23,800/- with the companies floated by them. The plaintiffs requested for payment of the amount after the fix deposits were matured. However, the payments were not made to the plaintiffs. The plaintiffs approached the H.P. State Consumer Disputes Redressal Commission for the redressal of their grievance by filing a complaint No. 10 of 2000. The Hon’ble Commission passed the order on 26.07.2001 directing DW-3, Sh. Ajay Vohra and Sh. Rajan Rai to make the payments to the plaintiffs. This order was not complied with by DW-3, Sh. Ajay Vohra and Sh. Rajan Rai. Thereafter, the plaintiffs were constraint to file an Execution Petition. The suit property was attached. However, the fact of the matter is that the suit property was put to auction and the plaintiffs have purchased the same for a sum of `5,30,000/-. However, DW-3, Sh. Ajay Vohra and Sh. Ajay Vohra and Sh. Rajan Rai. Thereafter, the plaintiffs were constraint to file an Execution Petition. The suit property was attached. However, the fact of the matter is that the suit property was put to auction and the plaintiffs have purchased the same for a sum of `5,30,000/-. However, DW-3, Sh. Ajay Vohra and Sh. Rajan Rai, in a clandestine manner have parted with the suit property in favour of defendant. The defendant, in these circumstances, cannot be termed as tenant of the suit premises. He has been put in possession only to frustrate the order, dated 26.07.2001 and to deprive the plaintiffs from taking over the present possession of the suit property. Thus, the relationship of landlord and the tenant never came into existence. The H.P. Urban Rent Control Act, 1987 applies only to the dispute between the landlord and the tenant and not to a trespasser. The plaintiffs have been recorded owner in possession of the suit property as per remarks column in jamabandi for the year 2003-04 as per the orders of the H.P. State Consumer Disputes Redressal Commission, dated 07.12.2007. DW-3, in his cross-examination, has admitted that he has never reported the possession and tenancy of the defendant to the H.P. State Consumer Disputes Redressal Commission and the Collector. 12. Now, as far as the payment of `1 lakh by the defendant to DW-3 is concerned, no tangible evidence has been placed on record to establish this fact. There is no proof that a sum of `6 lakhs was spent by the defendant for completing the building. DW-3 was owner in possession of the suit property when complaint bearing No. 10 of 2000 was instituted by the plaintiffs. 13. PW-1, Chander Mohan, Junior Assistant of H.P. State Consumer Disputes Redressal Commission has produced the original case file of O.C. No. 10/2000. He has proved the copy of order, dated 20.10.2003, Ex. PW-1/A, copy of order of Hon’ble Commission, dated 29.09.2006, Ex. PW-1/B, copy of warrant of sale issued by the Commission, Ex. PW-1/C, copy of order, dated 02.07.2004, passed by the H.P. State Consumer Disputes Redressal Commission, Shimla, Ex. PW-1/D, copy of order, dated 26.07.2001, passed by the H.P. State Consumer Disputes Redressal Commission, Shimla in complaint No. 10/2000, Ex. PW-1/E and copy of order, dated 08.06.2006, Ex. PW-1/B, copy of warrant of sale issued by the Commission, Ex. PW-1/C, copy of order, dated 02.07.2004, passed by the H.P. State Consumer Disputes Redressal Commission, Shimla, Ex. PW-1/D, copy of order, dated 26.07.2001, passed by the H.P. State Consumer Disputes Redressal Commission, Shimla in complaint No. 10/2000, Ex. PW-1/E and copy of order, dated 08.06.2006, Ex. PW-1/F. Plaintiff No. 1, Amar Singh has also proved on record certified copy of Misal Hakiat of the year 2003-04, Ex. PW-3/A. According to Ex. PW-3/A, after confirmation of sale by the Hon’ble Commission on 17.12.2007, the mutation has also been sanctioned vide rapat No. 367, dated 16.03.2008. It is also apparent from the statement of the defendant that he was present at the time when suit property was purchased by the plaintiff in auction on 29.09.2007. 14. The learned 1st appellate Court has come to the right conclusion that the prevalent rent in the area was `3,000/- and not `400/- as claimed by the defendant. Thus, the plaintiffs have rightly claimed use and occupation charges @`3,000/- per month. The defendant has been illegally put in possession of the suit property by Sh. Ajay Vohra. In these circumstances, the learned st appellate Court has rightly held that the plaintiffs were right in claiming permanent injunction against the defendant by restraining him from transferring possession of the suit property to a 3rd party till his dispossession. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.