Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1677 (HP)

Manjit Singh v. Col. Kapoor Singh

2019-11-08

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellant has challenged the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Palampur, District Kangra, HP, in Civil Suit No. 37/2008, decided on 02.03.2008, vide which, learned Trial Court decreed the suit filed by the present respondents/ plaintiffs for recovery and possession of the suit premises, as also the judgment and decree passed by the Court of learned Additional District Judge-1, Kangra at Dharamshala, H.P., in Civil Appeal No. 3-P/2009, dated 17.1.2012, whereby learned Appellate Court while dismissing the appeal filed by the present appellant, upheld the judgment and decree passed by the learned trial Court. 2. Brief facts necessary for adjudication of the present appeal are as under:- Respondents herein/plaintiffs (hereinafter referred to as the 'plaintiffs') filed a suit for recovery and possession against the present appellant. The case of the plaintiffs before the learned Trial Court was that they were owners of the shop situated over land measuring 0-03-51 Hectares, bearing Khata No. 95, Khatauni No. 133, Khasra No. 422, situated at Mohal and Mauza Maranda (Kalu-Di-Hatti), Tehsil Palampur, District Kangra, H.P. The shop was rented out to the defendant on a monthly rent of Rs.750/- vide memo dated 06.05.2003. Rent for use and occupation charges of the shop in issue was not paid by the defendant since 01.04.2007. Plaintiffs had requested the defendant several times to vacate the shop in dispute but in vain. Accordingly, plaintiffs served notice dated 09.01.2008 upon the defendant, which was received by the defendant on 11.02.2008, terminating the tenancy of the defendant and asking him to vacate the premises in question. Despite receipt of the said notice, defendant had failed to vacate the premises, hence, the suit was filed by the plaintiffs. 3. The claim of the plaintiffs was resisted by the defendant inter alia on the ground that shop in dispute was rented out by Tirath Ram and his son and not by the plaintiffs and defendant had already paid rent in advance to the said owner. As per defendant, he was never inducted as a tenant by the plaintiffs in the premises in dispute on rent of Rs.750/- per month. He had already paid rent in advance up to 03.02.2008 to Tirath Ram and his son, who had acknowledged the receipt of rent by way of issuance of rent receipts. As per defendant, he was never inducted as a tenant by the plaintiffs in the premises in dispute on rent of Rs.750/- per month. He had already paid rent in advance up to 03.02.2008 to Tirath Ram and his son, who had acknowledged the receipt of rent by way of issuance of rent receipts. On these bases, defendant had contested the suit of the plaintiffs. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- "1.Whether the plaintiff is entitled for possession of the suit premises by way of ejectment as alleged? OPP 2. Whether plaintiff is entitled for recovery of Rs. 9000/- i.e. arrears of rent as prayed? OPP 3. Whether the suit of the plaintiff is not maintainable? OPD. 4. Whether plaintiff is estopped by his act and conduct from filing the present suit? OPD 5. Whether plaintiff has no locus standi to sue? OPD 6. Whether the defendant had taken shop in dispute from Tirath Ram and his son and they have been praying rent to them, if so, its effect? 7. Whether defendants have not served with the notice U/s 106 of the TPA? OPD 8. Whether the suit of the plaintiff is not properly valued? OPD 9. Relief." 5. On the basis of pleadings and evidence led by the parties in support of their respective cases, the Issues so framed were answered by the learned Trial Court as under :- "Issue No.1 : Yes. Issue No. 2 : Yes Issue No. 3 : No. Issue No.4 : No. Issue No. 5 :No. Issue No. 6 :No. Issue No. 7 :No. Issue No. 8 :No. RELIEF : The suit of the plaintiff is decreed, per operative part of judgment." 6. The suit filed by the plaintiffs was decreed by the learned Trial Court in the following terms:- "17. Judged in the light of my findings returned on the following issues above, the suit of the plaintiffs succeed and the same is hereby decreed for possession of shop in dispute as shown in the site plan Ex. P3 marked by letters 'IJKL' bounded as under -by PWD PMK road on the Western side, -shop of landlord on the northern side -Open land of Shri Shakti Rana on the eastern side situated over land measuring 0-03-51 Hects. P3 marked by letters 'IJKL' bounded as under -by PWD PMK road on the Western side, -shop of landlord on the northern side -Open land of Shri Shakti Rana on the eastern side situated over land measuring 0-03-51 Hects. Bearing Khasra No. 95, Khatoni No. 133, Khasra No. 422, situated at Mohal and Mauza Maranda (Kalu-Di-Hati), Tehsil Palampur, Distt. Kangra (H.P.) by way of ejectment of defendant and for recovery of Rs. 9000/- as arrears of rent alongwith future interest @ 7% p.a. from the date of filing of the suit till realisation of the same in favour of the plaintiffs against the defendant with costs. Decree Sheet be drawn up accordingly. File after it due completion consigned to record room." 7. In appeal, the judgment and decree so passed by the learned Trial Court stood affirmed by the learned Appellate Court. 8. Feeling aggrieved, defendant/appellant filed this appeal, which was admitted on 05.11.2012, on the following substantial question of law:- "1. Whether the decree of learned Courts below can be sustained when they ignore Exhibits D-1 and D-2 as also the fact that no notice was served by the plaintiffs after purchasing the suit premises that they had become owners of the property?" 9. I have heard learned Counsel for the parties and gone through the record of the case as well as the judgments and decrees passed by the learned Courts below. 10. A perusal of the judgment and decree passed by learned Trial Court demonstrates that while decreeing the suit of the plaintiffs, learned Trial Court held that earlier the shop in dispute was owned by Narinder Kumar and the same was rented out to the defendant on monthly rent @ Rs.750/-. Learned Trial Court held that evidence on record demonstrated that plaintiffs had purchased the share of Narinder Kumar, who was admitted by the defendant as his landlord, and thus, plaintiffs were now landlords of the shop in dispute who had validly terminated the tenancy of the defendant, and therefore, they are entitled for relief of possession as well as arrears of rent, as prayed for. Learned Trial Court also held that rent receipts, which were on record as marked documents, i.e. Mark D-1 to D-11, were not proved on record as per law by examining the person who issued the same or by any other mode. Learned Trial Court also held that rent receipts, which were on record as marked documents, i.e. Mark D-1 to D-11, were not proved on record as per law by examining the person who issued the same or by any other mode. It also held that the defence of the defendant that he had never accepted the plaintiffs as his landlords would not make any difference on the rights of the plaintiffs as far as their status as landlords was concerned. It held that Ext. D-1 and Ext. D-2, which were cheques issued by the defendant himself in favour of the plaintiffs, in lieu of rent also indicated that he had accepted the plaintiffs to be his landlords and it was just to defeat the right of the plaintiffs qua the shop in issue that defendant had changed his stand qua relationship of landlord and tenant. It also held that the plaintiffs had duly proved by way of notice Ext. P-1, which was issued to defendant on 09.01.2008 and was duly received by the defendant on 11.01.2008, as is evident from acknowledgment Ext. P-2, which was bearing the signatures of the defendant, that tenancy of the defendant was validly terminated by the plaintiffs. Accordingly, the suit of the plaintiffs was decreed by the learned Trial Court in terms already enumerated above. 11. A perusal of the judgment passed by the learned Appellate Court further demonstrates that after scrutinizing the evidence afresh and perusing the judgment passed by the learned Trial Court, it dismissed the appeal filed by the defendant by upholding the findings returned by the learned Trial Court. While doing so, learned Appellate Court held that jamabandi Ext. PX clearly demonstrated that plaintiffs had purchased the suit premises from one of the co-owners and plaintiffs had also filed two cheques Ext. D-1 and Ext. D-2 signed by the defendant, each amounting to Rs.750/-, which demonstrated that the same were issued by the defendant in favour of the plaintiffs admitting them to be his landlords. It held that defendant had failed to demonstrate as to why otherwise these cheques were issued by him in favour of the plaintiffs. D-1 and Ext. D-2 signed by the defendant, each amounting to Rs.750/-, which demonstrated that the same were issued by the defendant in favour of the plaintiffs admitting them to be his landlords. It held that defendant had failed to demonstrate as to why otherwise these cheques were issued by him in favour of the plaintiffs. Learned Appellate Court also held that the termination of the tenancy also stood fortified by the legal notice on record and the findings which were returned by the learned Trial Court while decreeing the suit were duly borne out from the record of the case and plaintiffs were certainly entitled for possession of the suit premises and rent as claimed for. 12. Coming to the substantial question of law as was framed by this Court on 05.11.2012. It is duly borne out from the record that Ext. D-1 and D-2 are two cheques dated 13.08.2007 and 15.06.2007, respectively, issued by the defendant Manjit Singh in favour of the plaintiff Pushpa Rani for an amount of Rs.750/-. During the course of the arguments, issuance of said cheques by the defendant in favour of the plaintiff Pushpa Rani was not seriously disputed. The notice vide which tenancy of the defendant was terminated is also on record as Ext. P-1. Acknowledgment thereof, duly signed by the defendant, is on record as Ext. P-2. This also demonstrates that the tenancy was duly terminated by the plaintiffs vide notice Ext. P-1. In law, there was no necessity for the plaintiffs to have had served notice upon the defendant qua the purchase of the suit premises, especially when the defendant had accepted the plaintiffs to be his landlords by issuance of cheques Ext. D-1 and Ext. D-2. Not only this, as it is clearly borne out from the record that defendant admitted Narinder Kumar to be his landlord, whose share was purchased by the plaintiffs, therefore, plaintiffs, but natural, entered into the footsteps of Narinder Kumar and become landlords of the shop in issue, of which, the defendant was the tenant. Therefore, the judgments and decrees passed by the learned Courts below are sustainable in law as they have not ignored Ext. D-1 and D-2 and have dealt with said Exhibits in the correct perspective and further there was no necessity of issuance of notice by plaintiffs to defendant after purchase of suit premises. Therefore, the judgments and decrees passed by the learned Courts below are sustainable in law as they have not ignored Ext. D-1 and D-2 and have dealt with said Exhibits in the correct perspective and further there was no necessity of issuance of notice by plaintiffs to defendant after purchase of suit premises. Substantial question of law is answered accordingly. In view of above discussion, as there is no merit in the present appeal, the same is accordingly dismissed. Pending miscellaneous applications, if any, also stand disposed of. No orders as to cost.