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2016 DIGILAW 8 (PNJ)

Krishan Gopal v. Ramesh Kumar Jain

2016-01-05

AUGUSTINE GEORGE MASIH

body2016
JUDGMENT Mr. Augustine George Masih, J.: (Oral) - C.M No.15330 of 2015 The present application is for pre-ponement of hearing of the case and since the main case is listed for hearing today the same has been rendered infructuous. Disposed of as such. CR No.4414 of 2015 2. Challenge in this revision petition is to the order dated 18.05.2015 passed by the Rent Controller, Karnal vide which the eviction petition for ejectment under Section 13 (A) (1-A) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (hereinafter referred to as 1973 Act) has been allowed in the light of the fact that the leave to defend was not granted by the Rent Controller which order has attained finality up to this Court. 3. It is the contention of the learned counsel for the petitioner that the petition for ejectment was not maintainable as one petition is not maintainable against two separate tenants having separate tenancy and for separate purposes. He contends that even if leave to defend has been declined but still the landlord has to stand on his own legs with regard to the petition being maintainable. If the petition itself is not maintainable, ejectment order could not have been passed by the Rent Controller. He accordingly states that the impugned order cannot sustain, specially in the light of the fact that the tenancy is different, in support of which he has placed reliance upon the judgment of this Court in Surinder Singh and another Vs. Rup Kaur and others, 1986 Volume (I) RCR 483 as also Manohar Singh Sarhadi Vs. Ramji Dass and another, 1989, Vol (2) PLR 444. He thus contends that the present petition may be allowed and the impugned order be set aside. 4. On the other hand, learned counsel for the respondent has referred to the provisions of the 1975 Act to contend that one petition is maintainable even against different tenants if the premises is one and the cause is common. That apart, he asserts that once a leave to defend has been declined, eviction of the tenant has to be ordered as an automatic consequence. In support of this, he has placed reliance upon the Full Bench judgment of this Court in Anwar Ali Vs. Gian Kaur, [2011(4) Law Herald (P&H) (FB) 3427 : 2012(3) Land L.R. 309 (P&H) (FB)] : 2012, Volume (I) HLR 142. In support of this, he has placed reliance upon the Full Bench judgment of this Court in Anwar Ali Vs. Gian Kaur, [2011(4) Law Herald (P&H) (FB) 3427 : 2012(3) Land L.R. 309 (P&H) (FB)] : 2012, Volume (I) HLR 142. Reference has also been made to the eviction petition which has been filed to contend that the premises in question is one integral building although there are two tenants in the premises. He accordingly prays that the present revision petition be dismissed. 5. I have heard the counsel for the parties and have gone through the impugned order. 6. The contention of the learned counsel for the petitioners that the petition for ejectment is not maintainable against two different tenants, who have been given different premises on rent for different purposes, is not acceptable in the light of the judgment passed by this Court in Anita Sood and others Vs. Manjit Singh 2011 (I) HLR 498 where it has specifically been held that single eviction petition against two tenants of same building occupying adjacent premises would be maintainable against both the tenants. This has also been held in Raman Mittal Vs. Mangal Singh 2011 Volume (2) HLR 270, where in a similar case the plea so raised that landlord’s application was contested by the tenant contending that single petition against the tenants was not maintainable, was rejected. 7. A perusal of the eviction petition which has been filed, copy of which has been placed on record, would clearly indicate that it has been specifically mentioned that these two shops are integral part of one building and, therefore, the contention of the counsel for the petitioners that the petition against two tenants would not be maintainable, cannot be accepted as Section 13 (3) of the Act talks about ‘a building.’ The contention, thus, of the counsel for the petitioner, stands rejected. 8. As regards the reliance of the counsel for the petitioners on the judgments of this Court in Surender Singh’s case (Supra) is concerned, that was a case where the ownership has fallen into different hands because of the succession where the landlords were different after the partition and had been collecting rent separately in their individual capacity as landlord from the tenants. Present is a case where there is no dispute that the landlord is one and also the owner of the premises. 9. Present is a case where there is no dispute that the landlord is one and also the owner of the premises. 9. In Manohar Singh’s case (Supra) the plea which was taken was that one petition cannot not be maintainable against two separate tenancies. Suffice it is to say that in the said case the premises had been sought to be evicted on the ground of sub-letting by taking a plea that the chabutra portion had been sub-let which was constructed later which led to the building being divided into two portions, one for commercial purpose and another for the residential. Further the Court observed that there was no sub-letting of the premises as the person who was residing there was related to the tenant and was only in his absence residing to take care of the goods which were lying in the premises on the ground floor. The said judgment also, therefore, would not be of any help to the petitioners. 10. I have perused the order passed by the Rent Controller and do not find any illegality in the same as it is not in dispute that the leave to defend had been declined and the said order has attained finality after the dismissal of the revision petition by this Court preferred by the petitioner-tenants. In these circumstances, the Rent Controller had no option but to pass an order of ejectment in the light of the Full Bench judgment of this Court passed in Anwar Ali’s case (Supra), where it has been held that where under Section 13 (B) of the Act, leave is refused to a tenant to defend the proceedings brought by the landlord, eviction of the tenant has to be ordered as an automatic consequence. 11. In view of the above, finding no merit in the present petition, the same stands dismissed. 12. In the light of the dismissal of the petition, all pending applications stand disposed of as infructuous. —————————— 2016(1) Law Herald (P&H) 371 : 2016 LawHerald.Org 550 IN THE HIGH COURT OF PUNJAB & HARYANA Before The Hon’ble Mr. Justice Augustine George Masih RSA No. 843 of 2015 & C.M. Nos. 2509-10-C of 2015 Mukesh Kumar & Anr. v. Gulab Singh & Anr. {Decided on 29/01/2016} For the Appellant: Mr. Vinod Gupta, Advocate. —————————— 2016(1) Law Herald (P&H) 371 : 2016 LawHerald.Org 550 IN THE HIGH COURT OF PUNJAB & HARYANA Before The Hon’ble Mr. Justice Augustine George Masih RSA No. 843 of 2015 & C.M. Nos. 2509-10-C of 2015 Mukesh Kumar & Anr. v. Gulab Singh & Anr. {Decided on 29/01/2016} For the Appellant: Mr. Vinod Gupta, Advocate. Joint Family Property--Ancestral Property was partitioned between four sons of owner--Once the land has been received by the defendants through a Court decree, the same no more continues to be an ancestral one. (Para 3) JUDGMENT Mr. Augustine George Masih, J.: (Oral) - C.M. No. 2509-C of 2015 Prayer in this application is for condonation of delay of 38 days in re-filing the appeal. For the reasons mentioned in the application, which is duly supported by the clerk of the counsel for the appellants, the same is allowed. Delay of 38 days in re-filing the appeal is condoned. RSA No. 843 of 2015 Challenge in this appeal is to the judgment and decree passed by the Civil Judge (Junior Division), Hisar dated 23.09.2013, whereby the suit filed by the appellants-plaintiffs to the effect that they are co-owners in possession of land measuring 197 Kanal 10 Marlas comprised in Khewat No. 254/237, Khatoni No. 484 to 488 situated at Village Moda Khera, Tehsil Adampur, District Hisar, detailed in Jamabandi for the year 2004-05 along with their father Gulab Singh-respondent No. 1-defendant No. 1 as coparceners and members of Joint Hindu Family and that the execution and registration of sale deed No. 1610 dated 29.07.2010 by Gulab Singhrespondent No. 1-defendant No. 1 in favour of respondent No. 2-defendant No. 2 in respect of 320/3965 share i.e. land measuring 16 Kanal situated at Village Moda Khera, Tehsil and District Hisar out of the joint land is null and void ab-initio, without legal necessity and without consideration and for permanent injunction has been dismissed, appeal against which preferred by the appellants-plaintiffs has also been dismissed by the Additional District Judge, Hisar on 20.09.2014. 2. It is the contention of the learned counsel for the appellants that the land, mentioned above, is an ancestral property and, therefore, the same could not have been sold by respondent No. 1-defendant No. 1 unless there was a legal necessity. That aspect having not been proved on the part of the respondents-defendants, the sale of an ancestral property cannot sustain. That aspect having not been proved on the part of the respondents-defendants, the sale of an ancestral property cannot sustain. His further contention is that the sale deed No. 1610 dated 29.07.2010 is a result of fraud having been played upon respondent No. 1 by respondent No. 2-defendant No. 2 for no consideration and, therefore, the appellantsplaintiffs and respondent No. 1-defendant No. 1 are not bound by the said sale deed nor does it confer any right upon respondent No. 2-defendant No. 2. He, thus, contends that the judgments and decree passed by the Courts below cannot sustain and deserves to be set aside. 3. This contention of the learned counsel for the appellants cannot be accepted in the light of the admitted fact and that too, in the pleadings that the father of respondent No. 1-defendant No. 1 suffered a decree dated 22.04.1972, whereby the ancestral land was partioned between his four sons. Once the land has been received by the respondents-defendants through a Court decree, the same no more continues to be an ancestral one and, therefore, the findings recorded by the Courts below, on this aspect, cannot be faulted with. 4. As regards the contention of the learned counsel for the appellants that a fraud has been played upon respondent No. 1-defendant No. 1 by respondent No. 2-defendant No. 2 and, therefore, the sale deed dated 29.07.2010 is not binding upon the appellants-plaintiffs as also respondent No. 1-defendant No. 1, suffice it to say that respondent No. 1- defendant No. 1 was a right person to take such a plea. Admittedly, no steps have been taken by respondent No. 1-defendant No. 1 for annulment of the said sale deed. That being so, this plea falls apart on the first ground as the suit property is not an ancestral property and, therefore, the appellantsplaintiffs have no right in the said property, which was claimed in the present suit being a co-sharer. 5. There being concurrent findings recorded by the Courts below on the facts of the case, which have been found to be based on proper appreciation of the pleadings and the evidence produced by the parties, there is no illegality in the impugned judgments passed by the Courts below. Further, there is no substantial question of law in the present appeal, which requires consideration of this Court. 6. Further, there is no substantial question of law in the present appeal, which requires consideration of this Court. 6. In view of the above, finding no merit in the present appeal, the same stands dismissed. C.M. No. 2510-C of 2015 In the light of the dismissal of the main appeal, no separate orders are required to be passed in this application for stay and, therefore, the same stands dismissed.