Research › Search › Judgment

Punjab High Court · body

2019 DIGILAW 2653 (PNJ)

Jagdish Parshad v. Loku Ram

2019-09-24

H.S.MADAAN

body2019
Judgment Mr. H.S. Madaan, J.:- Briefly stated, the facts of the case are that plaintiffSh.Loku Ram son of Sh.Gokal Das and his sons S/Sh.Shanti Lal @Shanti Parkash, Bal Kishan, Pawan Kumar @ Partap and RameshKumar, all residents of Narnaul had filed a suit against the defendantJagdish Parshad seeking his ejectment from the shop fully describedin head-note of the plaint besides craving for recovery of Rs.11,200/-on account of arrears of rent w.e.f. 1.9.1987 to 30.6.1990. 2. As per version of the plaintiffs, they being owners of theshop in dispute had let it out to defendant vide rent note dated15.5.1981 on monthly rent of Rs.330/-; the shop is exempt from theprovisions of Haryana Urban (Control of Rent & Eviction) Act, 1973(hereinafter referred to as the Act) since the construction of the shopwas completed in the month of April, 1981; since the plaintiffs didnot want to keep the defendant as tenant, they served a notice underSection 106 of the Transfer of Property Act upon the defendant sentvide registered AD post on 1.6.1990 terminating his tenancy w.e.f.1.7.1990 and as the defendant did not comply with the terms of thenotice, the plaintiff brought the suit in question. 3. On getting notice the defendant appeared and filedwritten statement contesting the suit denying that the shop was let outto him vide rent note dated 15.5.1981. According to him, he had beenin possession of the shop prior to that date. However, he admitted therate of rent. According to him the shop is not exempt from theprovisions of the Act and the tenancy cannot be terminated byservice of notice and notice served is illegal and against theprovisions of Section 106 of the Transfer of Property Act. Refutingthe remaining averments in the plaint, the defendant prayed fordismissal of the suit. 4. The plaintiff had filed replication to the written statementcontroverting the allegations in the written statement whereasreiterating the averments in the plaint. 5. On the pleadings of the parties, following issues wereframed: 1. Whether the plaintiff is entitled to possession of the shop indispute? OPP. 2. Whether the plaintiff is entitled to recover Rs.11,220/- onaccount of rent of the shop from 1.9.1987 to 30.6.1990 as givenin the plaint? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. 5. On the pleadings of the parties, following issues wereframed: 1. Whether the plaintiff is entitled to possession of the shop indispute? OPP. 2. Whether the plaintiff is entitled to recover Rs.11,220/- onaccount of rent of the shop from 1.9.1987 to 30.6.1990 as givenin the plaint? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Relief An additional issue was also framed vide order dated26.4.1993, which is as under: 1A Whether the plaintiffs have terminated the tenancy rightsof defendants qua the suit property as alleged? OPP. 6. The parties were afforded adequate opportunities to leadevidence. 7. After hearing the learned counsel for the parties, the trialCourt decided issues No.1 and 3 in favour of the defendant andagainst the plaintiffs, issue No.1A in favour of the plaintiff, issueNo.2 in favour of the defendant and against the plaintiffs.Resultantly, vide judgment and decree dated 21.2.1997, the suit ofthe plaintiffs was dismissed by the trial Court. 8. Feeling aggrieved by the said judgment and decree, theplaintiffs had filed an appeal before District Judge, Narnaul, whichwas assigned to Additional District Judge, Narnaul, who videjudgment and decree dated 30.7.1999 accepted the appeal partly andset aside the judgment and decree passed by the trial Court anddecreed the suit of the plaintiff passing a decree for possession byeviction of defendant from the shop in dispute directing thedefendant to hand over the vacant possession of the shop to theplaintiffs without delay for the reason that his tenancy has beenterminated, whereas relief with regard to payment of mesne profitswas declined. The cross-objections of the defendant were alsodismissed. 9. Being dissatisfied with the judgment and decree passedby Additional District Judge, Narnaul, the defendant has filed thepresent regular second appeal before this Court, notice of which wasissued and the respondents-plaintiffs have appeared through counsel. 10. I have heard learned counsel for the parties besides goingthrough the record. 11. The first and foremost question to be determined in thiscase is as to whether the shop in question is exempt from theprovisions of the Act. The plaintiffs had led sufficient evidence toshow that the premises had been let within 10 years of completion ofconstruction by them, as such provisions of the Act were notapplicable. However, the trial Court had wrongly disbelieved suchevidence adduced by the plaintiffs. Learned Additional DistrictJudge, Narnaul had properly appreciated the evidence brought on fileby the parties. The plaintiffs had led sufficient evidence toshow that the premises had been let within 10 years of completion ofconstruction by them, as such provisions of the Act were notapplicable. However, the trial Court had wrongly disbelieved suchevidence adduced by the plaintiffs. Learned Additional DistrictJudge, Narnaul had properly appreciated the evidence brought on fileby the parties. Though the defendant in the written statement filed byhim had denied having executed any rent deed dated 15.5.1981 butits execution stood duly proved on record. The rent deed bearssignatures of defendant. The plaintiffs had examined scribe of thatdeed, who had categorically stated that he had scribed the said deedat the instance of defendant. PW2 Madan Lal had proved itsexecution and defendant having thumb marked the same. A perusalof the rent deed Ex.P1 makes it clear that rate of rent was fixed asRs.330/- per month and the tenancy had started from that date. Thedefendant getting his statement recorded in the Court had admitted inhis cross-examination that rent deed was executed and he had put histhumb impressions on it after admitting its correctness. Thedefendant had failed to lead any evidence that he was in possessionof the shop prior to 15.5.1981. As per the case of the plaintiffs, theyhad raised construction over the site after getting it sanctioned fromthe Director Town and Country Planning, Haryana, Chandigarh on1.1.1981. The construction was started and completed in the monthof April, 1981. The document produced in that regard by theplaintiffs was wrongly disbelieved by the trial Court. However,learned Additional District Judge, Narnaul rightly relied upon thesame. Therefore, the provisions of the Act are certainly notapplicable and tenancy could be terminated by service of noticeunder Section 106 of the Transfer of Property Act. The plaintiffs byleading oral as well as documentary evidence had established thatnotice had been served upon the defendant and after receipt of notice,the tenancy stood terminated and possession of the defendant becameunauthorized. 12.Learned counsel for the respondents/plaintiff has arguedthat Section 106 of the Transfer of Property Act has not beenspecifically made applicable in the States of Punjab and Haryana andservice of summons in the suit itself amounts to notice. 12.Learned counsel for the respondents/plaintiff has arguedthat Section 106 of the Transfer of Property Act has not beenspecifically made applicable in the States of Punjab and Haryana andservice of summons in the suit itself amounts to notice. He hasreferred to judgment Surinder Kumar @ Surjan Versus Mahant Gomati Dass,  2016(2) RCR(Rent) 369 wherein it was observed thatSection 106 of the Transfer of Property Act is not applicable in theState of Punjab and service of summons itself amounts to notice andthat suit cannot be dismissed on the ground of non-service of notice.In support of his such contention he has further referred to judgment Smt. Gurkanwal Virk Versus M/s Anand Sweets and Restaurant, 2016(2) RCR(Rent) 72. 13. The judgment and decree passed by First Appellate Courtis well reasoned, based upon proper appraisal and appreciation ofevidence and correct interpretation of law. There is no illegality orinfirmity therein. 14. Therefore, I do not find any merit in the present appealand do not see any reason to disturb the legal, valid and wellreasoned judgment passed by the Additional District Judge, Narnaul. 15.No substantial question of law arises in this appeal. 16. The appeal stands dismissed accordingly.