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2012 DIGILAW 775 (HP)

Achhar Kumar Verma v. Kuldeep Chand Lakhanpal

2012-11-01

SURINDER SINGH

body2012
Judgment Surinder Singh, J. This judgment shall dispose of the present appeal as well as Cross-Objections filed by the respondents. The appellant has filed the instant appeal feeling aggrieved and dissatisfied by the judgment and decree passed by the learned District Judge in Civil Suit No.7-S/1 of 1999 decided on 12.10.2001 whereby the suit filed by the respondent for possession qua Flat No.63/2, Lower Bazaar, Shimla, consisting of two rooms, glazed verandah, store, kitchen and a latrine, hereinafter to be referred as “the suit property” as delineated in the red ink in the plan annexed with the plaint was decreed also for the recovery of Rs.1240/- as mesne profit and also future mesne profit calculated @ Rs.40/- per day from the date of passing the judgment till the date of delivery of possession by the defendant-appellant with proportionate costs, against the claim of Rs.6200/- and Rs.200/- per day for future mesne profits till its vacation. The value of the suit property for the purpose of court fee and jurisdiction for seeking possession was assessed at Rs.2,50,000/-. 2. In short, the facts giving rise to the present appeal can be stated thus. The respondents hereinafter to be referred as “the plaintiffs” had filed a suit against the appellant to be called as “the defendant” as he was before the learned trial Court, on the basis of their title and having been allotted to them on partition between co-owners. Shri Ram Chander Verma was a statutory tenant under the predecessor’s in-interest of the plaintiffs. On 15.6.1981, he died leaving behind his widow Smt. Bhagwanti Devi, who was issueless and had inherited the tenancy rights of the suit property. (ii) According to the case of the plaintiffs, their predecessor’s in-interest was managing the suit property and had been taking rent against receipts from the tenants. Smt. Bhagwanti Devi was resident of Lalru, District Patiala. The premises remained locked and she failed to occupy the suit property for about 12 years, therefore the electricity connection was got disconnected. Thus, the plaintiffs had filed eviction petition under Section 14 of the H.P. Rent Control Act, 1987 in the month of June, 1996 against Smt. Bhagwanti Devi on the grounds of non-payment of rent and having ceased to occupy the premises and also for bonafide requirement. The process was issued. It was reported that she had died on 12.2.1999. Thus, the plaintiffs had filed eviction petition under Section 14 of the H.P. Rent Control Act, 1987 in the month of June, 1996 against Smt. Bhagwanti Devi on the grounds of non-payment of rent and having ceased to occupy the premises and also for bonafide requirement. The process was issued. It was reported that she had died on 12.2.1999. It was thereafter, the defendant is alleged to have broke open the locks of the disputed premises and took its illegal possession claiming himself to be the adopted son of the deceased. (ii) The defendant had also filed a suit against said Kuldeep Chand seeking injunction taking a baseless plea that he was trying to take forcible possession of the suit property, probably to protect his illegal possession and wrongly claimed tenancy rights under Smt. Bhagwanti Devi. Since he was a trespasser having no right, title or interest and was liable to hand over the vacant possession of the suit property and to pay damages of Rs.200/-per day w.e.f. 13.2.1999 for unlawful use and occupation of the suit property which is located in the heart of the town, thus claimed a decree for possession as well as recovery of Rs.6200/- as mesne profit till the date from filing the suit and future damages @ Rs.200/- per day, as aforesaid. 3. The defendant offered strong resistance to the suit, filed his written statement and raised preliminary objections with respect to the maintainability of the suit and claimed himself to be the tenant in possession inter-alia took up the points of mis-joinder of necessary parties but admitted Kuldeep Chand as Landlord of the disputed property who was allegedly dealing with Shri Ram Chander Verma and his wife Smt. Bhagwanti Devi including him. He also took up the objection qua valuation and jurisdiction and claimed himself to be a co-tenant with Smt. Bhagwanti Devi. Further averred that the plaintiffs with an intention to make a ground for filing the present suit had stated in the Court in the previous suit filed by him that they would not dispossess him from the disputed property except in due course of law, accordingly, he did not pursue his suit. 4. Further averred that the plaintiffs with an intention to make a ground for filing the present suit had stated in the Court in the previous suit filed by him that they would not dispossess him from the disputed property except in due course of law, accordingly, he did not pursue his suit. 4. On merits, the defendant contended that he was residing with Smt. Bhagwanti Devi being the adopted son of late Shri Ram Chander Verma who was a retiree from the office of Deputy Commissioner, Shimla and after the death of Smt. Bhagwanti Devi, he had inherited the tenancy rights qua the disputed property. It was his case that rent was being paid by the defendant to said Shri Kuldeep Chand. He also denied that Smt. Bhagwanti Devi had ceased to occupy the premises which remained locked as alleged. It was his case that he had performed the last rites of Shri Ram Chander Verma as well as Smt. Bhagwanti Devi after their death. According to him, she being an old lady used to sleep for the night and take food in the other residential portion of the defendant in building No.57 in Lower Bazaar, Shimla. He claimed himself to be the joint tenant with Smt. Bhagwanti Devi after the death of Shri Ram Chander Verma. He denied the forcible possession of the disputed property, as alleged and disputed the claim of the plaintiffs as prayed for. 5. The plaintiffs in their replication denied the preliminary objections and reiterated the even paras of the plaint while refuting the plea taken by the defendant. 6. The learned trial Court, on the pleadings of the parties, framed the following issues:- “ 1. Whether the possession of the defendant is unauthorized? ...OPP. 2. If issue No.1 is proved, whether the plaintiffs are entitled to the relief of possession and are also entitled to mesne profit. If so to what rate? ...OPP. 3. Whether the defendant is a tenant under the plaintiffs? …OPD. 4. Whether the suit is bad for mis-joinder of parties? ...OPD. 5. Whether the suit has been over valued for the purposes of court fee and jurisdiction. If so, its effect? ..OPD. 6. Whether the plaintiffs have not come to the Court with clean hands? ...OPD. 7.Whether the plaintiffs have no cause of action? ..OPD. 8. Whether the suit is not maintainable? ..OPD. 9. Relief. 7. ...OPD. 5. Whether the suit has been over valued for the purposes of court fee and jurisdiction. If so, its effect? ..OPD. 6. Whether the plaintiffs have not come to the Court with clean hands? ...OPD. 7.Whether the plaintiffs have no cause of action? ..OPD. 8. Whether the suit is not maintainable? ..OPD. 9. Relief. 7. The plaintiffs led their evidence. To prove their case, they had examined Kuldeep Chand (PW4), PW1 Hari Chand Rohan, Superintendent posted in the Estate Branch of the Municipal Corporation, Shimla, PW2 Nek Ram, proved the installation of the electricity meter in the disputed premises and PW3 Megh Ram, Senior Assistant in the Zonal Office, State Bank of Patiala, Shimla produced the service record of the defendant who was an employee of the said Bank. 8. The evidence in affirmative was closed by the plaintiffs on 13.9.2000. Thereafter, the matter was listed for the evidence of the defendant on various date, but despite the repeated and reasonable opportunities, he failed to lead evidence, thus vide order dated 13.6.2001, the learned District Judge on the application of the defendant for adjournment observed that despite seven opportunities accorded to him, he failed to take steps and lead evidence, but however, final opportunity was accorded to lead the evidence and the case was fixed for 12.10.2001. Even on that date, neither the defendant nor his witnesses were present, steps were also not taken, however, an application was moved under Order 6 Rule 17 of the Code of Civil Procedure on behalf of the defendant seeking amendment in the written statement to add one more preliminary objection of estoppel, which was declined with cost quantified at Rs.1000/-, as the proposed amendment was not essential for the just and proper decision of the case. Thereafter another application under Order 17 Rule 1 read with Section 151 of the Code of Civil Procedure was moved by his counsel seeking adjournment on the ground that the defendant was suffering from Asthma and could not appear in the Court, but the learned trial Court found that the medical certificate appended with the application did not show that he was unable to move or confined to bed, as such adjournment request was also rejected and the learned District Judge decreed the suit by returning the findings on issues No. 3 to 8 in negative and other issues in affirmative as aforesaid. 9. 9. Feeling dissatisfied by the impugned judgment and decree, the defendant filed the present appeal, alleging that the evidence of the plaintiffs was misread and mis-applied. The defendant was a full-fledged tenant under plaintiff Kuldeep Chand after the death of Smt. Bhagwanti Devi and prayed for setting aside the impugned judgment and decree and in alternative, prayed to remand the case to decide it afresh after allowing him an opportunity to lead evidence in support of his contention. 10. Shri Anuj Gupta, learned counsel for the defendant did not press any other points raised in appeal, but for according an opportunity to the defendant to lead the evidence to prove the contention raised in the written statement. 11. On the other hand, Shri Ajay Kumar, learned Senior Advocate duly assisted by Shri Dheeraj Vashisth, Advocate forcefully argued that the defendant is in possession of the disputed property and had been playing the delaying tactics on one pretext or the other by which he was able to keep the plaintiffs out of possession for more than two decades. The learned District Judge had accorded various opportunities to lead the evidence, w.e.f. 28.11.2000 till 12.10.2001, nearly for about one year and the defendant had played even with the Court to gain time on frivolous grounds. Therefore, defendant cannot be allowed to play another inning and again delay it without no fault of the plaintiffs, more specifically, when the defendant has failed to produce any document of adoption. It is also ventilated that the suit property is located in the heart of the town having the commercial activity and the plaintiffs are at loss to earn from their property and the defendant is enjoying while being in possession of a meagre amount of Rs.2,000/- per month as use and occupation charges, as ordered and increased by this Court vide order dated 26.3.2004 w.e.f. 1.4.2004. The learned counsel also drew my attention to the Cross-Objections No.49 of 2002 whereby he has claimed a sum of Rs.200/- per day instead of Rs.40/- per day awarded by the learned District Judge and also took me through the evidence on record, then submitted that the defendant has failed to produce any document qua his adoption till date and his plea with respect to the tenancy is also wrong and malicious. He also pointed out that the defendant has forcibly occupied the demised premises after the death of Smt. Bhagwanti Devi with whom he had no relations and was never inducted as a tenant nor recognized by the plaintiffs, therefore, the appeal merits dismissal with exemplary costs and prayed to allow the Cross-Objections. 12. I have given my thoughtful consideration to the rival contentions raised by the parties and have carefully gone through the record. 13. There is no dispute with respect to the ownership of the plaintiffs qua the suit property. PW1 Hari Chand Rohan stated that the suit property is totally commercial place, located in the Municipal Corporation area. PW2 Nek Ram proved from Municipal Corporation record, the disconnection of the electricity supply meter about 10-12 years back, thus there was no electric consumption during this time, subsequently, on 13.8.1999, a new meter was installed in the name of the defendant. 14. Admittedly, the defendant is a retiree and was an employee of the State Bank of Patiala. PW3 Megh Ram, Senior Assistant of the aforesaid Bank deposed on the basis of service record of the defendant that his permanent address was recorded C/o Shri Lachhman Dass Verma, 57, Lower Bazaar, Shimla and his parentage was not given in the record brought by him. In fact the number of the demised premises is 63/2 and building No.57 is separate and situated in the close vicinity. 15. PW4 Kuldeep Chand is the one of the plaintiffs. He has substantiated the case as propounded by him to the extent of tenancy of Shri Ram Chander Verma qua the suit property as per the plan Ext.PW4/A. According to him, said Ram Chander Verma was paying Rs.175/- plus taxes as annual rent. He had died on 15.6.1981, thereafter his wife Bhagwanti Devi was residing in the said premises. She too died in February, 1999. He categorically stated that Ram Chander Verma and his wife have no issue. He further deposed that before her death, she had shifted to her parental place in Lalru, District Patiala and the disputed property remained closed for about 10 years. The electricity supply to the premises was disconnected some time in the year 1984, thus he had also filed a petition for ejectment of Bhagwanti Devi under Rent Control Act, but on her death, the petition was abated because she was not having any legal heir. The electricity supply to the premises was disconnected some time in the year 1984, thus he had also filed a petition for ejectment of Bhagwanti Devi under Rent Control Act, but on her death, the petition was abated because she was not having any legal heir. He further testified that after the death of Bhagwanti Devi, defendant forcibly took possession of the suit property by breaking open the locks. Further stated that the market value of the disputed property in question was less than `.2-3 lacs which could fetch the monthly rent between `. 5,000 to `.6,000 easily. He stated that other accommodation in the said building on the second floor consisting of two shops. The defendant has his residence in the building No.57/2, Lower Bazaar, Shimla from the very beginning where he had been residing with his family. He tendered in evidence copy of voters list Ext.PW4/B, H, J and K. He was meticulously cross-examined on behalf of the defendant. He admitted that Ram Chander Verma was in occupation of the suit property for the last 55 years as a tenant, but denied that Achhar Singh defendant was residing with him and also that after his death, the tenancy rights were inherited by his wife and the defendant. He further denied having received the rent through Achhar Singh, but according to him, the rent was being paid by Bhagwanti Devi after the death of her husband and he had issued the receipts. He also admitted having received the rent upto 28.2.1985. He denied the case of the defendant that the electricity supply was snapped during the life time of Ram Chander Verma when he suffered the electric shock. Pertinently, this defence was not pleaded in the written statement. He admitted that the building No.57 is situated at a short distance from building No.63. He also admitted that the defendant had filed a suit for injunction wherein interim stay was granted. He denied that the present suit against the defendant was a counter blast. He also denied that the value of the suit property is not more than `.45,000/-, however, according to him, he did not lodge report of forcible possession by the defendant for the reason because the belongings of Smt. Bhagwanti Devi were lying inside the house and the defendant had claimed himself to be her nephew. 16. He also denied that the value of the suit property is not more than `.45,000/-, however, according to him, he did not lodge report of forcible possession by the defendant for the reason because the belongings of Smt. Bhagwanti Devi were lying inside the house and the defendant had claimed himself to be her nephew. 16. The critical reappraisal of the above evidence goes to show that only Ram Chander Verma was a contractual tenant under the predecessors-in-interest of the plaintiffs. After his death, his wife had inherited the tenancy. It appears that she resided in the said premises for some time, thereafter she shifted to her parental place and did not return. Thus, the electricity supply was disconnected. It was not restituted continuously for more than a decade, but later it was restored after her death by the defendant in his own name in the year 1999. It is apparent that the fact of death came to the notice of the plaintiffs during eviction proceedings and the petition got abated. Finding the defendant in possession of the property, the plaintiffs filed the present suit and they have given a reasonable explanation that they did not lodge any FIR against the defendant for illegal trespass because the belongings of the deceased Bhagwanti Devi were lying inside and he had claimed himself to be the nephew of her, therefore, the fact of non-lodging of FIR cannot be weighed against the plaintiffs. 17. Further the defendant has failed to prove that he was an adopted son of Shri Ram Chander Verma. There is neither any public record nor any other documentary or oral evidence to this effect. Neither his educational nor service record has shown him the adopted son of Shri Ram Chander Verma. In these circumstances, the learned trial Court rightly held that in absence of it, it is difficult to hold that the defendant was the adopted son as alleged and ever remained in possession of the disputed property as a co-tenant with Bhagwanti Devi as alleged. 18. It is pertinently noticed that even in the present suit filed against the defendant, he has been shown to be a son of Lachhman Dass to which he never objected. Even in appeal, he himself has been shown to be the son of said Lachhman Dass, but not an adopted son of Shri Ram Chander Verma. 18. It is pertinently noticed that even in the present suit filed against the defendant, he has been shown to be a son of Lachhman Dass to which he never objected. Even in appeal, he himself has been shown to be the son of said Lachhman Dass, but not an adopted son of Shri Ram Chander Verma. Otherwise also, he has been continuously shown to be the son of said Shri Lachhman Dass in public record produced in evidence by the plaintiffs. On the contrary there is enough evidence on record to show that the defendant has been residing with his family members in the adjoining building No.57/2 situated in Lower Bazaar, Shimla, which is admittedly located at a short distance from the suit property. Thus, the defendant was rightly held to be in unauthorized occupation of the suit property, he being a rank trespasser and the plaintiffs are entitled to get the possession of the demised premises and claim mesne profits for unauthorized use and occupation. 19. The learned trial Court rightly sifted the evidence qua mesne profits for the use and occupation by the defendant and made a global estimation of the punitive damages, payable by the trespassers and having regard to then inflationary trend, rightly fixed `. 40/- per day as unauthorized use and occupation charges to be paid by the defendant. Therefore, no fault can be found holding him liable to pay `.1240/- per month damages on and w.e.f. 13.2.1999 till the filing of the suit being 1/5th of the amount claimed by the plaintiffs and further @ Rs.40/- per day till the date of delivery of the vacant possession of the disputed property to the plaintiffs by the defendant. 20. The defendant was accorded repeated and reasonable opportunities nearly for about one year to rebut the evidence of the plaintiffs, but he failed to grab the opportunity. Rather, it transpired that he did not have anything with him to shatter the above discussed evidence, but gain time on one pretext or the other to retain possession. 20. The defendant was accorded repeated and reasonable opportunities nearly for about one year to rebut the evidence of the plaintiffs, but he failed to grab the opportunity. Rather, it transpired that he did not have anything with him to shatter the above discussed evidence, but gain time on one pretext or the other to retain possession. I also do not find any case worth defending as projected by him in absence of any document of adoption to which he neither filed with the written statement nor there is any proof that he was ever recorded as the adopted son of late Shri Ram Chander Verma in any public record, thus, there is no question of inheriting the tenancy nor as a cotenant as averred by him. 21. In view of the above stated position, there is no merit in appeal of the defendant, as such, it is dismissed with costs. There is also no reason to differ from the findings of the learned trial Court to enhance the use and occupation charges, till it was further enhanced by the Court w.e.f. 1.4.2004 as per order dated 26.3.2004 passed by this Court. Thus, the defendant shall keep on paying the same as ordered by this Court on 26.3.2004 @ `.2000/- per month till he hands over the possession or is evicted from the suit property in execution of decree pursuant to the warrants of possession. The cross-objections are partly allowed to this extent. 22. The matter stands disposed of, so also the pending application(s), if any.