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2013 DIGILAW 797 (HP)

Vidya Sagar Gupta v. Ramesh Kumar Sharma

2013-09-05

RAJIV SHARMA

body2013
JUDGMENT Rajiv Sharma, J: This Regular Second Appeal is directed against the judgment and decree, dated 16.5.2013, passed by the learned Additional District Judge (II), Shimla in Civil Appeal No. 25-S/13 of 2012. 2. ‘Key facts’ necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as “the plaintiffs” for the sake of convenience) filed a suit against the appellant/defendant (hereinafter referred to as the “defendant” for the sake of convenience) for possession of one room/shop measuring 5 x 20 feet, situated at main Junga Bazaar, Sub Tehsil Junga, District Shimla, H.P.. According to the plaintiffs, late Sh. Budh Ram was owner in possession of single storeyed building consisting of three shops in front of main Junga Road situated in Khata No. 9, Khatauni No. 10, Khasras No.86, 579 and 42. He died in the month of May 2006. He executed a Will dated 1.7.1988 in favour of the plaintiffs. Mutation No.912 was attested in this regard. Late Budh Ram inducted the defendant as tenant in one room accommodation measuring 5 x 20 feet at the monthly rent of Rs.100/-. The plaintiff after the death of Budh Ram requested the defendant to vacate the premises. The defendant agreed to vacate the premises by 30.6.2008. In this regard, an agreement, Ext.PW1/A was executed in the presence of the parties. However, despite undertaking having been given by the defendant, he did not vacate the premises. A legal notice dated 29.9.2008 was served upon the defendant by the plaintiffs regarding termination of his tenancy. He was again requested to vacate the premises on or before 31.10.2008, but the defendant failed to do so. According to the plaintiffs, the defendant is also in arrears of rent w.e.f. 1.8.2006 to 30.9.2008. 3. The suit was contested by the defendant. The defendant denied that Budh Ram executed any will in favour of the plaintiff on 1.7.1988. According to him, the will was forged. It was denied that the tenancy was created on month to month basis. It was also denied that Budh Ram intended to reconstruct the building and that the condition of the building had become dilapidated. According to him, the plaintiffs, their sons along with President, Vice President and Pankaj Sen came to his shop in the month of May 2008 and threatened him to vacate the premises and forcibly got his signatures on blank papers. According to him, the plaintiffs, their sons along with President, Vice President and Pankaj Sen came to his shop in the month of May 2008 and threatened him to vacate the premises and forcibly got his signatures on blank papers. 4 The replication was filed by the plaintiffs. The issues were framed by the learned trial court on 10.9.2009 and decreed the suit vide judgment and decree dated 14.3.2012, directing the defendant to hand over the vacant possession of the shop measuring 5 x 20 feet situated in Khasras No.86, 579 and 42, at Junga Bazaar, Shimla. The defendant was further directed to pay Rs.2600/- along with interest at the rate of 12% per annum as rent w.e.f. 1.8.2006 to 30.9.2008. He was also directed to pay use and occupation charges at the rate of Rs.100/- per month w.e.f. 1.11.2008 till the date of passing of the judgment along with interest at the rate of 12% per annum. 5. Defendant feeling aggrieved by judgment and decree dated 14.3.2012 filed an appeal before learned first appellate court, who vide judgment and decree dated 16.5.2013 dismissed the appeal. Hence, this Regular Second Appeal. 6. Mr. Mahesh Sharma, Advocate, on the basis of substantial questions of law framed, vehemently argued that the learned courts below have not correctly appreciated the agreement, Ext. PW1/A. He also contended that the notice, Ext. PW1/B was illegal and invalid. 7. Mr. B. C. Verma, Advocate, supported the judgments and decrees passed by the learned courts below. 8. I have heard learned counsel for the parties and have also gone through the impugned judgments carefully. 9. The plaintiff appeared as PW1. According to him, he and his brother are the owners of the shop on the basis of a Will executed by its previous owner late Budh Ram. The plaintiff also paced on record agreement Ext.PW1/A. According to the recital contained in Ext. PW1/A, the defendant took a shop from the plaintiffs at Junga Bazaar on a monthly rent of Rs.100/- and undertook to vacate the shop on or before 30.6.2008. PW2 Madan Lal and PW3 Bansi Lal are the marginal witnesses to the agreement, Ext. PW1/A. Both these witnesses have admitted their signatures on agreement, Ext.PW1/A. Both the parties have executed the agreement without any pressure. Though the defendant has not denied his signature on Ext. PW2 Madan Lal and PW3 Bansi Lal are the marginal witnesses to the agreement, Ext. PW1/A. Both these witnesses have admitted their signatures on agreement, Ext.PW1/A. Both the parties have executed the agreement without any pressure. Though the defendant has not denied his signature on Ext. PW1/A, but has taken a specific stand that the President and Vice President of Gram Panchayat Junga had obtained his signatures on blank papers by pressurizing him. 10. The defendant appeared as DW1. In his cross-examination, he admitted that the agreement, Ext. PW1/A was executed. He also admitted his signature on Ext. PW1/A. According to him, his signatures were obtained forcibly on Ext. PW1/A. However, fact of the matter is that the defendant has not led any tangible evidence to establish that his signatures were obtained forcibly on Ext. PW1/A. He has not made any complaint to the police against the plaintiffs to this effect. He has failed to prove that he has not put his signatures voluntarily on Ext.PW1/A. According to Ext.PW1/A, the defendant undertook to hand over the vacant possession of the shop for re-building and reconstruction on 30.6.2008. Thus, he has admitted the plaintiffs to be owners of the shop in question. The defendant has failed to prove that Ext. PW1/A was illegal. The plaintiff has duly proved the execution of Ext.PW1/A on the basis of statements of marginal witnesses PW2 and PW3. Notice was issued to defendant on 29.9.2008 vide Ext. PW1/B, whereby tenancy of the defendant was terminated. The plaintiffs have also proved the postal receipts, Ext.PW1/C, whereby notice was sent to the defendant vide registered post on 29.9.2008. PW4, Madan Lal Sharma, has deposed that registered letter No.2452 dated 29.9.2008 was booked at GPO in the name of Vidya Sagar. He has further deposed that in case the addressee does not receive the letter, it is received back undelivered. He has categorically stated there is no record in the office indicating that the addressee has not received the letter. The address given on Ext.PW1/B is the same address, which has been given by the defendant before the learned trial court. The defendant was also served before the learned trial court on the same address. It is not the case of the defendant that he was not available on the given address in Ext.PW1/B during a period of one week from 29.9.2008. The defendant was also served before the learned trial court on the same address. It is not the case of the defendant that he was not available on the given address in Ext.PW1/B during a period of one week from 29.9.2008. Thus, notice of termination of tenancy issued by the plaintiffs to the defendant has been duly proved. The tenancy of the defendant has rightly been terminated on the basis of legal notice dated 29.9.2008, Ext.PW1/B and the learned first appellate court has rightly relied on section 27 of the General Clauses Act. 11. In view of the discussions and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.