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2013 DIGILAW 549 (HP)

Prem Masih v. Usha Devi

2013-06-17

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the order, dated 25.06.2010, passed by the learned District Judge, Solan, District Solan, H.P., in Civil Miscellaneous Appeal No. 3-S/14 of 2010. Key facts necessary for the adjudication of this Regular Second Appeal are that the appellant-applicant (hereinafter referred to as 'the applicant' for the sake of convenience) has filed an application u/s 144 of the CPC read with Section 151 of the Code of Civil Procedure, stating therein that in execution proceedings bearing No. 42/10 of 1997, the respondent No. 1, in connivance with Yunah Masih and by suppressing the material facts, has taken the possession of the shop of the applicant wrongfully under the guise of execution of warrants of possession of the shop of Yunah Masih (respondent No. 2 in CMA No. 38/6 of 06/05/97). According to the applicant, he had gone out of station and the respondent No. 1 in connivance with the bailiff of the Court, wrongfully dispossessed him. According to him, his dispossession was wrong and illegal. He was coming in possession of the shop for more than 30 years and has obtained licence from the authorities. According to him, he has been wrongly dispossessed. 2. The application was resisted by the respondents. According to respondent No. 1, the possession of the shop has been taken under a decree from Yunah Masih on 16.09.1998. According to respondent No. 1, the applicant was not in possession of the shop and he has no right, title or interest thereof. According to her, the applicant is the real brother of the judgment debtor, i.e. Yunah Masih, predecessor-in-interest of respondents No. 2 and 3. The shop was let out to Yunah Masih and the decree was also executed against him. 3. A separate reply was filed by Yunah Masih, the predecessor-in-interest of respondents No. 2 and 3. He has supported the version of respondent No. 1. According to him, the shop in question was in his possession and he was evicted by respondent No. 1 on the basis of a decree. It is also stated in the reply that the applicant was not at all in possession of the shop nor he was dispossessed from the same. 4. The learned Civil Judge (Junior Division) Kasauli, District Solan, H.P. has framed the issues on 17.11.2003. He dismissed the application on 16.01.2009. It is also stated in the reply that the applicant was not at all in possession of the shop nor he was dispossessed from the same. 4. The learned Civil Judge (Junior Division) Kasauli, District Solan, H.P. has framed the issues on 17.11.2003. He dismissed the application on 16.01.2009. The applicant has filed an appeal before the learned District Judge, Solan, District Solan, H.P. The same was dismissed on 25.06.2010. Hence this appeal. 5. Mr. V.D. Khidta, learned counsel for the appellant, on the basis of the substantial questions of law framed at page No. 8 of the paper-book, has vehemently argued that the Courts below have mis-construed the statements of PW-1, PW-2, PW-3 and PW-4. He has also stated that the Courts below have mis-appreciated Ex. PA, i.e. electricity bill. He lastly contended that the Courts below have mis-appreciated the report of Local Commissioner, dated 31.03.1999. 6. Mr. Neeraj Gupta, learned counsel for respondent No. 1 has supported the orders passed by both the Courts below. 7. Shri Yunah Masih has died during the pendency of appeal before the learned District Judge, Solan, District Solan, H.P. and his legal representatives were brought on record. 8. The respondent No. 1 has instituted a case bearing No. 238/1 of 1983 against Sh. Yunah Masih for possession of one shop, situate at Dharampur. According to the averments contained in the suit, the shop was let out to Sh. Yunah Masih by the husband of plaintiff No. 1, namely Usha Devi at a monthly rent of Rs. 30/-. The predecessor-in-interest of respondents No. 2 and 3, Sh. Yunah Masih stopped to pay the rent. A notice was issued to him u/s 106 of the Transfer of Property Act. The learned Senior Sub Judge, Solan, District Solan, H.P. has passed a decree on 28.05.1986. Thereafter, an execution petition bearing No. 42/10 of 1997 was instituted in the Court of learned Senior Sub Judge, Solan, District Solan, H.P. He issued a warrant of possession, pursuant to which, the possession of the shop was taken from Yunah Masih. 9. The applicant has appeared as PW-2. He has led his evidence by way of affidavit Ex. PW2/A. He has given the dimensions of the shop. He was selling meat. However, the respondent No. 1 in connivance with Yunah Masih, has got a warrant of possession executed against him in Execution Petition No. 42/10 of 1997. 9. The applicant has appeared as PW-2. He has led his evidence by way of affidavit Ex. PW2/A. He has given the dimensions of the shop. He was selling meat. However, the respondent No. 1 in connivance with Yunah Masih, has got a warrant of possession executed against him in Execution Petition No. 42/10 of 1997. The shop was vacated forcibly. According to him, the bailiff has prepared a false report. He was running the shop for the last 30 years. He has obtained the licence from health department. The electricity meter bearing No. DRC-77 has been installed in the shop in his name. He has constructed shop in the shape of kiosk 35 years back. He was in possession of the same. In his cross-examination, he has admitted that Yunah Masih was his real brother. He did not know what was his occupation. He further deposed that Yunah Masih used to stay at Dagshai. He was also staying at Dagshai. His brother was living separately from him. He has not purchased the land. According to him, he has constructed the shop on the Government land. He was not owner of the land. His brother has died one year back. 10. PW-3 is Sh. Nathu @ Hem Raj. He has also led his evidence by way of affidavit Ex. PW3/A. According to him, the shop was constructed by the applicant in the shape of kiosk about 35 years back. The applicant used to sell meat from the kiosk. He has obtained electricity connection in his presence. He has not seen the possession of either respondents or Yunah Masih. In his cross-examination, he has deposed that applicant and respondent Yunah Masih were brothers. He did not know what was the occupation of respondent No. 2. 11. PW-4, Sh. Charan Prasad, has also tendered his evidence by way of affidavit Ex. PW4/A. He has deposed that the shop was constructed by the applicant. It was situated on National Highway No. 22. He was selling meat for the last 35 years. He has neither seen the possession of respondent No. 1 nor Yunah Masih. The electricity meter was installed in the name of applicant. In his cross-examination, he has admitted that he knew respondent No. 2 Yunah Masih. The applicant is real brother of Yunah Masih and they used to work in the same shop. 12. PW-1, Sh. He has neither seen the possession of respondent No. 1 nor Yunah Masih. The electricity meter was installed in the name of applicant. In his cross-examination, he has admitted that he knew respondent No. 2 Yunah Masih. The applicant is real brother of Yunah Masih and they used to work in the same shop. 12. PW-1, Sh. Jai Kishan, Clerk from the office of S.D.O., HPSEB, Dharampur has produced the record. According to him, the meter account No. DRC-77 was in the name of applicant. In his cross-examination, he has deposed that it was installed on 19.06.1990. According to him, the consumer has been given direct connection. He did not know who was the owner of the shop. 13. RW-1, Sh. Kishori Lal, has also tendered his evidence by way of affidavit Ex. RW1/A. In the affidavit, it is stated that the shop was given on rent to Yunah Masih. However, Yunah Masih was not paying the rent. A case was filed against him. The eviction orders were passed by the learned Senior Sub Judge, Solan and thereafter, on the basis of the execution, the possession was taken on 16.09.1998. A suggestion was also put to him that Yunah Masih was not paying the rent. Thus, the tenancy of Yunah Masih was admitted. He has also denied the suggestion in cross-examination that the decree was wrongly got executed. 14. The Court has also appointed a Local Commissioner. He submitted his report on 31.03.1999. There is some variance in the report submitted by the Local Commissioner vis--vis the details given in the plaint. The applicant has not given the number or dimensions of his shop. It was in the shape of kiosk. The length and width of kiosk could easily be altered. The applicant has not disclosed under which capacity he has occupied the shop. He has admitted that he was not the owner of the land. There is ample evidence on record to establish that the applicant and Yunah Masih were real brothers. It is not believable that the applicant would not know the occupation of his real brother. Yunah Masih has supported the case of respondent No. 1. He has admitted that he was in possession of the shop and the possession was recovered from him. There was no privy of contract between the applicant and respondent No. 1. It is not believable that the applicant would not know the occupation of his real brother. Yunah Masih has supported the case of respondent No. 1. He has admitted that he was in possession of the shop and the possession was recovered from him. There was no privy of contract between the applicant and respondent No. 1. The original tenant was Yunah Masih, who has been evicted on the basis of a decree passed by the learned Senior Sub Judge, Solan. It has also come on record that the adjoining shops and khokhas were also owned by respondent No. 1. The applicant has no locus standi to file the application u/s 144 read with Section 151 of the Code of Civil Procedure. 15. Mr. V.D. Khidta, learned counsel for the applicant has also argued that the electricity meter was in the name of applicant. However, it has come in the statement of PW-1, Sh. Jai Kishan that the direct connection of electricity meter has been given and he did not know who was the true owner of the shop. The learned Courts below have correctly appreciated the oral as well as documentary evidence led by the parties. Consequently, there is no substantial question of law involved in this Regular Second Appeal. 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.