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2018 DIGILAW 385 (HP)

Shubdesh Singh v. Daljit Singh

2018-03-19

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiffs' suit for possession of the suit premises, was, hence decreed. 2. Briefly stated the facts of the case are that the plaintiff has filed a suit for possession by way of ejectment of the defendant from shop existing over the land comprised in Khata No.3 in, Khatauni No.4 min, Khasra No.1545, measuring 0-1-35 HM, situated in Mohal and Muaza Bari, on the main road Jassur to Jawali on right side of Market of Raja-ka-Talab, Tehsil Nurpur, District Kangra, H.P.(hereinafter referred as the suit premises). The suit premises is situated between the shops of Surinder Cloth House and Pinku Hardware Sachedev at Raja-ka-Talab. On account of cordial relations, the plaintiff rented out the suit premises to defendant on monthly rent of Rs.2000/- as per their oral agreement. The defendant promised to vacate the suit premises on the completion of construction of his own shop at Rajaka- talab. Despite having sufficient land on the road side, the defendant did not construct his own shop as promised and also stopped paying rent from January, 2010. The plaintiff is unemployed and as such, he intends to run his own business in the suit premises. The tenancy stood terminated vide legal notice dated 18.3.2011. Even after termination of tenancy, the defendant, did not handover the vacant possession of the suit premises, hence the suit. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia locus standi, estoppel and maintainability etc. On merits, while denying the tenancy, the defendant contended that Subhash Singh, the brother of the plaintiff is owner of the suit premises and he rented out the same to the defendant on monthly rent of Rs.500/- in February, 1996, with the condition that tenancy is irrevocable subject to increase of rent from time to time. The rent has been increased with mutual consent of the parties and at present the rent of the suit premises is Rs.1500/- per month. The plaintiff has not constructed the suit premises and the same was construed by his brother Subhash Singh and as such, electricity connection was also existing in his name. The rent has been increased with mutual consent of the parties and at present the rent of the suit premises is Rs.1500/- per month. The plaintiff has not constructed the suit premises and the same was construed by his brother Subhash Singh and as such, electricity connection was also existing in his name. The plaintiff has connived with his brother Subhash Singh, in order to harass the defendant and moved an application to the electricity department in April, 2011 to disconnect the electricity connection of the suit premises. The defendant to moved an application to the electricity department on 5.4.2011 with request not to disconnect the said electricity connection, however, electricity connection was disconnected on 6.4.2011. The defendant denied that the plaintiff rented out the suit premises to him on monthly rent of Rs.2000/-. The defendant is regularly paying the rent to Subhash Singh. The defendant has invested huge amount and is running business of hardware and it is not possible for him to shift the business from the suit premises. The plaintiff has no legitimate right to terminate the tenancy and the alleged legal notice is frivolous. The suit premises is partly constructed on the Government Land and about 3/4th of the same is within the controlled width of the road and is liable to be demolished by State. The defendant denied the remaining averments and prayed for dismissal of the suit. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for possession of the shop as prayed? OPP 2. Whether the plaintiff is entitled for arrear of rent of Rs.24,000/-?OPP. 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Whether there is no relationship of owner and tenant between the parties? OPD. 5. Whether the owner of the premises rented out by Sh. Subhash Singh son of Jaswant Singh being owner, on the monthly rent of Rs.500/- per month, since February, 1996, as alleged? OPD. 6. Whether the rent was increased with mutual consent between the parties @ Rs.1500/- per month including additional premises, as alleged? OPD. 7. Whether the plaintiff has no cause of action to file the present suit? OPD. 8. Whether the plaintiff is estopped by is act and conduct to file the present suit? OPD. 9. OPD. 6. Whether the rent was increased with mutual consent between the parties @ Rs.1500/- per month including additional premises, as alleged? OPD. 7. Whether the plaintiff has no cause of action to file the present suit? OPD. 8. Whether the plaintiff is estopped by is act and conduct to file the present suit? OPD. 9. Whether plaintiff has suppressed the material facts, if so, its effect? OPD. 10. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendant/appellant herein before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 6. Ex. P-1 is the jamabandi appertaining to the suit property, jamabandi whereof, carries reflections of plaintiff Daljit Singh, and, his brother Subhash Singh being co-owners thereof. The termination of the tenancy of the defendant vis-a-vis the suit premises occurred under legal notice, borne in Ex.P-2. The defendant contested the validity of rendition of a decree of possession, with respect to the suit premises on anvil, (i) of his attorning rent qua it vis-a-vis the brother of the plaintiff, one Subhash Singh, (ii) and, with the latter not being joined as co-plaintiff in the civil suit, thereupon, the judgment and decree, as concurrently pronounced by both the learned Courts below being rather vitiated. However, the plaintiff has omitted to adduce evidence in respect of his attorning, rent with respect to the suit premises vis-a-vis one Subhash Singh, (iii) thereupon, besides with the plaintiff/respondent herein being reflected in Ex.P-1, to be, co-owner in the suit premises along with Subhash Singh, rather renders him fully competent, to institute a suit (iv) unless, evidence surged forth, in support of hence prejudice being caused vis-a-vis the rights therein of one Subhash Singh or evidence surged forth of plaintiff Daljit Singh not hence protecting the interests, in the suit premises, of his brother Subash Singh. However, the aforesaid evidence is amiss, and, with a catena of judgments of various courts of law, making a clear pronouncements, qua with the aforesaid evidence being amiss, thereupon, a co-owner holding, a right to institute a suit, in respect of the suit property concerned, for himself besides for other co-owners, (v) thereupon, the suit is neither mis-constituted nor it can be construed of plaintiff Daljit Singh, not, holding the apposite capacity, to individually institute the extant suit. 7. For the foregoing reason, no substantial question of law, much less a substantial question of law arise for determination in the instant appeal. Consequently, there is no merit, in the instant appeal and it is dismissed. In sequel, the judgments and decrees rendered by the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.