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2013 DIGILAW 434 (HP)

Siri Kant v. Dharam Parkash

2013-05-16

RAJIV SHARMA

body2013
JUDGMENT Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree, dated 18.05.20 12, passed by the learned Additional District Judge (II), Kangra at Dharamshala, District Kangra, H.P., in RBT Civil Appeal No. 139-G/ 10/08. 2.‘Key facts’ necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for the sake of convenience) has filed a suit for possession and also for recovery of `900/- against the appellant-defendant (hereinafter referred to as ‘the defendant’ for the sake of convenience), on the grounds that he is owner of a shopping complex consisting of three shops over the land comprised in Khata No. 181 min, Khatauni No. 234, Khasra No. 250, area 0-01-81 hectares, situated at Mohal and Mauza Dhaliara, Tehsil Dehra, District Kangra, H.P. The shop marked as ‘ABCD’ in the site plan was given to defendant on monthly rent of `300/-. The tenancy of the defendant was monthly. He required the shop for his own use. Consequently, the plaintiff served a legal notice, dated 10.08.2005 upon the defendant to terminate the tenancy and the defendant was required to vacate the premises on 30.09.2005. The notice was duly received by the defendant, but he did not vacate the shop. The defendant did not pay rent in the month of July. The plaintiff also prayed for the mesne profits for the months of August and September, 2005 to the tune of Rs.600/- and total recovery amount of Rs.900/- alongwith interest @ 12% per annum. 3. The suit was contested by the defendant. The defendant did not dispute that he was tenant of the shop in dispute. However, he has stated that his tenancy was on permanent lease @ Rs.1200/- per year. It was agreed upon by the parties that the defendant would pay Rs.30,000/- to the plaintiff and then the defendant would not be evicted from the shop in question. Consequently, the defendant paid Rs.30,000/- to the plaintiff. The defendant also paid rent for three years to the tune of Rs.3600/-. An agreement was entered into in 1978 and in 1979. The defendant installed electricity in the shop in question by incurring huge expenditure. 4. The replication was filed by the plaintiff. The issues were framed by the learned Civil Judge (Junior Division), Court No. 2, Dehra, District Kangra, H.P. on 26.02.2007. An agreement was entered into in 1978 and in 1979. The defendant installed electricity in the shop in question by incurring huge expenditure. 4. The replication was filed by the plaintiff. The issues were framed by the learned Civil Judge (Junior Division), Court No. 2, Dehra, District Kangra, H.P. on 26.02.2007. The learned Civil Judge (Junior Division), Court No. 2, Dehra, District Kangra, H.P. decreed the suit on 30.09.2008. The defendant preferred an appeal before the learned Additional District Judge-II, Kangra at Dharamshala, District Kangra, H.P. He dismissed the same on 18.05.20 12. Hence this Regular Second Appeal. 5. Mr. Dheeraj K. Vashishta, learned counsel for the appellant, on the basis of substantial questions of law framed at page No. 4 of the paper-book, has vehemently argued that the Courts below have mis-read and mis-construed the oral as well as documentary evidence, more particularly, Ex.-P1, Ex.-PX and Ex.- PY. 6. Mr. Sanjeev Kuthiala, learned counsel for the respondent has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. Plaintiff has appeared as PW- 1. He has led his evidence by way of affidavit Ex.-PW1/A. He has placed on record documents Ex.-PA, Ex.-PY, Ex.-PZ, Ex.-P1, Ex.-PX, Ex. PZA, rent note Ex.-PX and Mark ‘A”’, ‘B’, ‘C’, ‘D’, ‘E’ and ‘F’. According to the plaintiff, the shop was given to the defendant on rent in the year 1978 for a period of 11 months. He admitted in his cross- examination that the electricity connection was installed in the shop in the name of defendant. He denied that the defendant has spent a sum of Rs.1,50,000/- on the electricity fittings. He denied that in the year 1979, an agreement was arrived at with the defendant that if he would pay a sum of Rs.30,000/- in lump sum to him, then he would not be evicted from the shop. 9. PW-2 Shri Rakesh Kumar has also led his evidence by way of affidavit Ex.-PW2/A. In his cross-examination, he has admitted that he did not reside at Dhaliara. He used to visit Dhaliara in connection with his trade and he used to supply books at ‘Sharma Book Depot’ at Dhaliara. 10. The defendant has appeared as DW-1. 9. PW-2 Shri Rakesh Kumar has also led his evidence by way of affidavit Ex.-PW2/A. In his cross-examination, he has admitted that he did not reside at Dhaliara. He used to visit Dhaliara in connection with his trade and he used to supply books at ‘Sharma Book Depot’ at Dhaliara. 10. The defendant has appeared as DW-1. He has led his evidence by way of affidavit Ex.-DW1/A. In his cross-examination, he has admitted that in 1978, he has taken on rent the disputed shop. However, the same was taken from Puran Chand. He has admitted that when the shop was taken by him on rent, then a rent deed Ex.-PX was prepared and at that time, he has taken the shop at the rate of Rs.100/- per month. He also admitted that the rent deed was prepared in the name of plaintiff Dharam Parkash. He also admitted that rent deed Ex.-PX, dated 27.12.2008 was filled up by him in his own handwriting. He also admitted that in 1984, the rent deed was prepared, but he denied his signature on rent deed Mark ‘A’ to Mark ‘E’. However, he admitted that in 1982, the rent of shop was Rs.125/- per month. In 1988, the rent was fixed at ‘Rs.50/- per month, in 1997, it was Rs.250/-per month. He feigned ignorance whether rent was fixed at Rs.300/- per month in the year 2004. However, he admitted that in 1992, the rent was enhanced from Rs.150/- per month to Rs.200/- per month. He admitted that the rent commences on 1st of every calendar year and ends on last date of calendar month. He denied that notice Ex.-P4 was given by the plaintiff before filing the suit. He denied that the notice was received by him and he had not given any reply to the same. He has admitted that he has not paid the mesne profits of using the shops since August, 2005. 11. DW-2 Shri Braham Dass has also led his evidence by filing an affidavit Ex.-DW2/A. According to him, the shop was given on rent to the plaintiff and at that time, it was agreed that if the defendant would pay Rs.30,000/- as advance, the defendant would never be evicted from the demised shop. In his cross- examination, he has deposed that no document was prepared regarding the receipt Rs.30,000/- nor any agreement has taken place. 12. In his cross- examination, he has deposed that no document was prepared regarding the receipt Rs.30,000/- nor any agreement has taken place. 12. Ex.-P1 is the copy of jamabandi, whereby the suit land has been recorded as Shamlat Deh Hasab Rasad Malgujari. According to this jamabandi, the possession of one Puran Chand has been recorded as Mohtamim. Puran Chand is the father of the plaintiff. After the death of Puran Chand, his estate was inherited by the plaintiff and mutation was also attested in his favour bearing mutation No. 251. The defendant has admitted in his cross-examination that rent deed, dated 22.12.1978 was in his handwriting and it also bore his signatures. Ex.-PX is the first rent deed when the shop was given on rent to the defendant by the plaintiff. The rent was fixed at Rs.100/- per month. The rent was increased by the plaintiff in the year 1984 from ‘100/- to Rs.125/-. In 1988, the rent was Rs.150/- per month. In 1992, the rent was Rs.200/- per month. In 1997, the rent was Rs.250/- per month and in 2002, the rent was Rs.300/- per month. The plaintiff has placed on record rent deeds mark-A to Mark-F. The plaintiff has duly proved that the premises were rented out to the defendant on monthly tenancy. The rent was increased from time to time. No registered lease deed was ever executed between the parties. If it was a lease, the same was required to be registered. The rent was also increased on the basis of monthly tenancy. 13. DW-2 Shri Braham Dass is not aware about the execution of Ex.-DX. It was the first rent deed entered between the plaintiff and the defendant. The defendant has not placed on record any receipt or document prepared regarding the payment of Rs.30,000/- by the plaintiff to the defendant. It is not believable that a sum of Rs.30,000/- was paid by the plaintiff to the defendant without obtaining valid receipt. The plaintiff has served a legal notice upon the defendant vide Ex.-PY. The postal receipt has been placed on record vide Ex.-PZ and acknowledgement receipt vide Ex.-PZA. The finding recorded by both the Courts below that it was monthly tenancy, is based on correct appreciation of evidence. The Courts below have correctly appreciated the oral as well as documentary evidence led by the parties. The postal receipt has been placed on record vide Ex.-PZ and acknowledgement receipt vide Ex.-PZA. The finding recorded by both the Courts below that it was monthly tenancy, is based on correct appreciation of evidence. The Courts below have correctly appreciated the oral as well as documentary evidence led by the parties. There is no substantial question of law involved in this Regular Second Appeal. 14.Accordingly, in view of the observations and analysis 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.