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2021 DIGILAW 393 (HP)

Anjana Kumari v. Jhina Ram

2021-07-12

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Instant regular second appeal filed under Section 100 of the CPC, lays challenge to the judgment and decree dated 31.10.2018, passed by the learned Additional District Judge-II Solan, District Solan, H.P., in CA No. 34 ADJ- II/13 of 2017, affirming the judgment and decree dated 7.7.2017, passed by the learned Civil Judge-II( Jr. Div.), Solan, District Solan, H.P., whereby civil suit bearing case No. 313/1 of 2014/10 having been filed by the respondent/plaintiff (herein after referred to as "the plaintiff") came to be decreed. 2. Precisely, facts of the case, as emerge from the record are that, plaintiff filed a suit for possession averring therein that plaintiff is absolute owner in possession of the land comprised in Khata/Khatauni No.84/267, Khasra No.1192/1074/890 and 1080/902, kitas 2, measuring 549 Sq. meters, situated in Mauza Dehun, Pargana Bharoli Khurd, Tehsil and District Una, alongwith building existing thereupon known as Geeta Bhawan. Plaintiff averred in the suit that appellant/defendant (herein after referred to as "the defendant") has no right, title or interest being absolute stranger over the suit property, which is the self acquired property of the plaintiff. Perusal of plaint reveals that defendant is daughter-in-law of the plaintiff, however on account of some differences, plaintiff had disowned and disinherited the defendant and her husband from his property and to this effect, advertisement was published in daily newspaper on 3.3.2010. Plaintiff alleged that defendant has forcibly kept one room, one kitchen and toilet having an area of 14.81 Sq.meters in the aforesaid building and is not vacating the premises despite repeated requests. As per the plaintiff, defendant had also given undertaking to vacate the premises before police, but she instead of honouring her commitment has misbehaved and threatened the plaintiff with dire consequences and as such, plaintiff served the defendant with legal notice. Plaintiff also averred in the plaint that defendant is Trained Graduate Teacher in GSSS at Kanda and she has illegally locked the premises in dispute with a view to harass him. Plaintiff claimed that since he being owner of the premises is legally entitled for its possession and defendant has no right, title or interest over the suit property, defendant is liable to pay mesne profits @ Rs.2000/- per month alongwith interest @ 12 per annum to the plaintiff from the date of filing the suit. 3. Plaintiff claimed that since he being owner of the premises is legally entitled for its possession and defendant has no right, title or interest over the suit property, defendant is liable to pay mesne profits @ Rs.2000/- per month alongwith interest @ 12 per annum to the plaintiff from the date of filing the suit. 3. Defendant by way of written statement refuted the aforesaid claim put forth by the plaintiff in his plaint and claimed before the court below that she is TGT in Education Department Since 2001. She claimed before the court below that her father in law i.e. plaintiff had provided her two room set on the first floor of the building to live alongwith her husband and daughter, and in this regard, he used to take Rs. 1500 per month as rent. Since Month of July, 1999, she had been residing in the said premises as a tenant, however, in the month of March, 2010, plaintiff wrongly dispossessed her from one room out of the two room set and as such, she is in possession of the one room set since March, 2010 and had been paying Rs. 750/- p.m. as rent. Besides above, defendant also claimed before the court below that she provided funds to the plaintiff for construction of the second floor in the building by withdrawing money from GPF and as such, she has right in the building as owner of the second floor. On the basis of aforesaid pleadings adduced on record by the respective parties, court below framed following issues: "1. Whether the defendant is entitled to a decree for possession, as prayed for? ..OPP 2. Whether the plaintiff is also entitled for decree of mesne profits at the rate of Rs.2000/- per month, as prayed for? OPP. 3. Whether the suit of the plaintiff is not maintainable in the present form?....OPD 4. Whetherthe plaintiff has not come to the Court with clean hands? OPD 5. Whether the plaintiff has no cause of action to file and maintain the present suit? OPD. 6. Whether the suit of the plaintiff is not properly valued for the purpose of Court fee and jurisdiction?.. OPD 7. Whether the plaintiff is estopped from filing the present suit due to own acts, conduct and acquiescences? OPD. 8. Relief." 4. OPD 5. Whether the plaintiff has no cause of action to file and maintain the present suit? OPD. 6. Whether the suit of the plaintiff is not properly valued for the purpose of Court fee and jurisdiction?.. OPD 7. Whether the plaintiff is estopped from filing the present suit due to own acts, conduct and acquiescences? OPD. 8. Relief." 4. Subsequently, on the basis of pleadings as well as evidence led on record by the respective parties, learned trial Court, decreed the aforesaid suit filed by the plaintiff vide judgment dated 7.7.2017 to the effect that he is entitled to the decree of possession of one room, one kitchen and toilet having an area of 14.81 Sq.meters situate in the first floor of the building known as Geeta Bhawan existing over a portion of the land comprised in Khata/Khatauni No.84/267, Khasra No.1192/1074/890 and 1080/902, kitas 2, measuring 549 Sq. meters, situated in Mauza Dehun, Pargana Bharoli Khurd, Tehsil and District Una. 5. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial Court, defendant filed an appeal under Section 96 of CPC in the court of learned Additional District Judge-II, Solan, which came to be dismissed vide judgment dated 31.10.2018. In the aforesaid background, plaintiff has approached this Court in the instant proceedings, laying therein challenge to the impugned judgments and decrees passed by the courts below. 6. On 4.11.2020, aforesaid appeal having been filed by the defendant came to be admitted by this Court on following substantial questions of law: 1. Whether the Ld. Appellate Court is legally right in affirming the judgment and decree dated 07.07.2017 passed by the Ld. Trial Court when the Ld. Trial Court's judgment is not based on the actual disputed premises involved in the dispute, and thus the observations and findings so recorded and returned by the Ld. Trial Court were required to be accepted, upheld and affirmed by the Ld. Appellate Court? 2. Whether the suit filed by the plaintiff is maintainable as the disputed premises so occupied by the defendants, as tenant, falling within the jurisdiction of Municipal Council, Solan, where the provisions of the H.P. Urban Rent control Act, 1987 are applicable? 3. Trial Court were required to be accepted, upheld and affirmed by the Ld. Appellate Court? 2. Whether the suit filed by the plaintiff is maintainable as the disputed premises so occupied by the defendants, as tenant, falling within the jurisdiction of Municipal Council, Solan, where the provisions of the H.P. Urban Rent control Act, 1987 are applicable? 3. Whether under two sets of rival pleadings of the parties to the suit where on one hand the plaintiff is pleading the possession of the defendant as permissive one, and on the other hand the defendant is pleading as tenant of the plaintiff in the disputed premises where the provisions of the H.P. Urban Rent Control Act, 1987 are applicable, the specific issue with respect to the relationship of landlord and tenant was required to be framed and decided? 4. Whether, in view of the pleadings and subsequent evidence surfacing and brought on record by both the parties, the issue was required to be framed by the Ld. Trial Court with respect to the existence of tenancy between the parties, and, further in appeal the Ld. Appellate Court was required to remand the case to the Ld. Trial Court by framing proper issues? 5. Whether on account of filing of affidavit Ex.PW-3/A by the plaintiff, in evidence, of Sh. Virender Singh (PW-3) who is the son of the plaintiff and whom he has disowned and disinherited and who has further not been produced for his cross- examination in the court an adverse inference is required to be drawn against the plaintiff? 7. Mr. Aditya Thakur, learned counsel appearing for the appellant while making this Court peruse the impugned judgments and decrees passed by the courts below vis- -vis evidence adduced on record by the respective parties vehemently argued that judgments and decrees passed by the courts below are not sustainable in the eye of law as same are not based upon proper appreciation of evidence and as such, appeal having been filed by the defendant deserves to be accepted. While referring to the judgment passed by the learned Additional District and Sessions Judge, Solan, Mr. Thakur, argued that since PW3 Virender never appeared in the witness box, learned first Appellate Court ought not have placed reliance on the affidavits having been tendered on record by him by way of evidence. While referring to the judgment passed by the learned Additional District and Sessions Judge, Solan, Mr. Thakur, argued that since PW3 Virender never appeared in the witness box, learned first Appellate Court ought not have placed reliance on the affidavits having been tendered on record by him by way of evidence. Learned counsel for the appellant defendant further contended that both the courts below have given altogether different description of the property because subject matter of the suit having been filed by the respondent-plaintiff is /was one room, one kitchen and toilet having an area of 14.81 Sq.meters situate at a place known as Geeta Bhawan, whereas courts below have wrongly referred to the entire building as well as land adjacent thereto, to be suit property and as such, on this sole count, judgments and decrees passed by the courts below deserve to be quashed and set-aside. Lastly, Mr. Thakur, contended that since defendants successfully proved on record by leading cogent and convincing evidence that she was inducted as a tenant in the premises in question and had been paying rent regarding the same, court below ought not have decreed the suit of the plaintiff. He further argued that since suit property falls within the municipal limits, plaintiff ought to have filed eviction proceedings under the Rent Control Act and not suit for possession. 8. Mr. H.S. Rana, learned counsel representing the respondent- plaintiff, while supporting the impugned judgments and decrees passed by the courts below vehemently argued that there is no illegality and infirmity in the impugned judgments, rather they are based upon proper appreciation of evidence and as such, no interference is called for. Mr. Rana, contended that otherwise also, this court while exercising powers under Section 100 CPC has very limited powers to interfere with the concurrent findings of the fact and law recorded by the courts below. He argued that since learned counsel for the appellant have not been able to point out any perversity in the impugned judgments and decrees passed by the courts below and there is no question of law, much less substantial, involved in the case, appeal having been filed by the appellant deserves outright rejection. 9. He argued that since learned counsel for the appellant have not been able to point out any perversity in the impugned judgments and decrees passed by the courts below and there is no question of law, much less substantial, involved in the case, appeal having been filed by the appellant deserves outright rejection. 9. Since all the substantial questions of law are interlinked and answer to them can be explored on the basis of evidence led on record by the respective parties, this Court deems it fit to consider and decide the same together. 10. Having heard learned counsel for the parties and perused material available on record, this court finds that respondent-plaintiff claiming himself to be owner of the premises in question filed a suit for possession and mandatory injunction in the court of Civil Judge (Jr. Div.), Solan District Solan, H.P., averring therein that defendant, who otherwise happens to be daughter in law of the plaintiff, has unauthorizedly put lock in one room, one kitchen and toilet having an area of 14.81 Sq.meters situate in the first floor of the building known as Geeta Bhawan existing over a portion of the land comprised in Khata/Khatauni No.84/267, Khasra No.1192/1074/890 and 1080/902, kitas 2, measuring 549 Sq. meters, situated in Mauza Dehun, Pargana Bharoli Khurd, Tehsil and District Una. Careful perusal of the impugned judgments and decrees reveal that courts below have not given wrong details of the property rather, with a view to bring more clarity, have given complete details of the property, especially of Geeta Bhawan, which exists over the portion of the land comprised in Khata/Khatauni No.84/267, Khasra No.1192/1074/890 and 1080/902, kitas 2, measuring 549 Sq. meters, situated in Mauza Dehun, Pargana Bharoli Khurd, Tehsil and District Una and as such, no illegality can be said to have been committed by the court on this count. Similarly, this Court finds that plaintiff filed suit for possession and mandatory injunction on the premise that defendant has unauthorizedly put lock on the suit property, details whereof, is given herein above. Similarly, this Court finds that plaintiff filed suit for possession and mandatory injunction on the premise that defendant has unauthorizedly put lock on the suit property, details whereof, is given herein above. Pleadings adduced on record by the plaintiff nowhere suggest that plaintiff filed suit claiming therein that he had inducted the defendant Smt. Anjana Kumari as a tenant in the premises in question, rather his precise case is that defendant is his daughter in law, but on account of acts and conduct of his son as well as of defendant, he disowned and disinherited them from his property and to this effect had also issued advertisement in daily newspaper dated 3.3.1010 (Divya Himachal). 11. Precise case, as has been set up by the plaintiff, is that defendant has forcibly kept one room, one kitchen and toilet having an area of 14.81 Sq.meters in the building in question. Since despite repeated requests, defendant failed to vacate the premises in question, plaintiff filed suit for possessions. Since defendant never came to be inducted as a tenant in the premises in question, there was no occasion, if any, for the plaintiff to file eviction proceedings under the Rent Control Act. Though in the case at hand, defendant with a view to resist the suit of the plaintiff, attempted to carve out a case that she was inducted as a tenant in the premises in question, but she failed to lead cogent and convincing evidence on record to that effect. Defendant claimed that plaintiff, who happened to be her father in law, provided her two room set on the first floor of the building to live alongwith her husband and daughter and he used to take Rs. 1500 as rent from her, but she failed to place on record any receipt of rent. Defendant also set up a case that in the month of March 2010, plaintiff wrongly dispossessed her from one room out of two room set and, thereafter, she is in possession of one room and in this regard, plaintiff has been charging Rs. 750 per month as rent, however, aforesaid plea having been taken by the defendant could not be proved on record by the defendant by leading cogent and convincing evidence. 12. 750 per month as rent, however, aforesaid plea having been taken by the defendant could not be proved on record by the defendant by leading cogent and convincing evidence. 12. Plaintiff with a view to prove his absolute ownership placed on record jamabandi for the year, 2007-08 (Ext.P1/B), perusal whereof reveals that plaintiff is owner in possession of the suit land bearing khweat /Khatauni No. 84/267, khasra No. 1192/1074/890 and 1080/902, kitas 2, measuring 549 Sq.meters land. Jamabandi further reveals that building namely Geeta Bhawan, stands constructed on 279 square meter, whereas remaining land is vacant. Plaintiff with a view to prove the rental value of the one room set examined PW2 Anil Bhatt, who happened to be a tenant in the premises. This witness also examined Virender Singh as PW3 , but since he failed to appear in the witness box, evidence, if any, led by way of affidavit, was rightly not read by the learned trial court. Admittedly, learned first appellate Court while upholding the decree passed by the learned trial court, has referred to the evidence led on record by PW3, but same has definitely not weighed with the court while upholding the judgment of learned trial Court. PW4 Mohinder Lal, who is an official of Divya Himachal Newspaper also proved the news item Ext.PW1/C issued by the plaintiff for disowning his son and daughter in law. PW5 Suresh Sharma, while proving the site plan of the set Ext.PW5/A admitted that he had prepared the site plan. PW6 Lenin Chandel, who was one of the tenant, came to be examined to prove the rental value of the one room set. Defendant besides examining herself as DW1 also examined Smt. Suman as DW2 to prove the factum that she is tenant and in this capacity, was paying Rs. 750 per month to the plaintiff. DW1 Anjana kumari deposed before the court below that she is TGT in the Education Department since October, 2001. She deposed that till July, 2008, she remained posted in GSSS Gaggal, Tehsil Pachhad, District Sirmour and since then, she is residing in the disputed premises. Careful perusal of the aforesaid version put forth by the defendant itself suggests that prior to July, 2008, she was not residing in the building rather, she started residing in the same after July, 2008. Careful perusal of the aforesaid version put forth by the defendant itself suggests that prior to July, 2008, she was not residing in the building rather, she started residing in the same after July, 2008. She also deposed that she took two room set on rent from her father-in-law for a monthly rent of Rs. 1500 in the month of July, 2008 but thereafter she was dispossessed by the plaintiff from one room in the month of March, 2010. Since plaintiff categorically denied that defendant was inducted by him as a tenant in the premises in question, onus was upon the defendant to prove that she was in occupation of the premises in dispute in the capacity of tenant and she had been paying regular rent to the owner i.e. Plaintiff. Interestingly, neither any rent agreement nor any receipt, if any, issued by the plaintiff, ever came to be exhibited. 13. By now it is well settled that tenancy is a bilateral contract and the factum of tenancy is not only required to be pleaded, but it is required to be proved in accordance with law. Defendant while deposing before the court below has categorically admitted that she is having no receipt of the rent. Though defendant with a view to prove that she was regularly paying the rent to the plaintiff examined DW2 Ms. Suman, who otherwise happens to be her sister, but if statement of this witness is perused in its entirety, it nowhere suggests that the defendant was residing in the premises in question as tenant and she was regularly paying the rent. 14. Interestingly, in the case at hand, defendant while claiming herself to be tenant has taken two contradictory pleas. On the one hand, defendant claimed herself to be tenant in the premises in question, on the other hand, has pleaded that she provided funds to the plaintiff for the construction of the second floor in the premises in question by taking withdrawals from her GPF account and as such, she has every right in the building as a owner of the second floor. Aforesaid two contradictory pleas taken by the defendant falsify the claim of the plaintiff in toto. Plea of tenancy as well as ownership of the defendant is defeated on the concept of ipse dixit. Aforesaid two contradictory pleas taken by the defendant falsify the claim of the plaintiff in toto. Plea of tenancy as well as ownership of the defendant is defeated on the concept of ipse dixit. Court below after having scanned evidence rightly concluded that at best status of the defendant can be termed to be gratuitous licensee being the relative of the plaintiff. No one can acquire title to the property if he or she is/was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. In this regard, reliance is placed on judgment passed by Hon'ble Supreme Court in Maria Margarida Sequeira Fernandes and Ors v. Erasmo Jack De Sequeira (dead) through LRs., (2012) 5 SCC 370 , wherein it has been held that possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts. Pleadings and documents establish title to a particular property and to prove possession, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession. "97. Principles of law which emerge in this case are crystallized as under:- 1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. 2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. 4. The caretaker or servant has to give possession forthwith on demand. 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. 4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. 5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession." 15. No doubt in order to protect the possession, a person has to be in a settled possession, but a person occupying the premises as gratuitous licensee or agent at the instance of the owner will not amount to having actual physical possession. Reliance is placed on judgment passed by the Hon'ble Supreme Court in case titled Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769 , wherein it has been held that "the 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt of concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession." 16. In the case at hand, pleadings adduced on record clearly reveal that at no point of time, defendant ever came to be inducted as a tenant in the premises in question, rather she being daughter-in-law of the plaintiff, was given two room set in the premises in question. Since defendant as well as her husband came to be disowned by the plaintiff, he rightly filed suit for possession qua the property in occupation/possession of the defendant, not in the capacity of tenant against the defendant, who, otherwise, at no point of time, was inducted as a tenant. Since defendant as well as her husband came to be disowned by the plaintiff, he rightly filed suit for possession qua the property in occupation/possession of the defendant, not in the capacity of tenant against the defendant, who, otherwise, at no point of time, was inducted as a tenant. A person holding premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In this regard, reliance is placed upon Judgment passed by the Hon'bel Apex Court in case titled as Behram Tejani v. Azeem jagani, (2017) 2 SCC 759 . 17. Since it stands established on record that at no point of time, defendant was inducted as tenant, in the premises in question, there was no occasion, if any, for the plaintiff to file eviction proceedings under the Rent Control Act. Similarly, there is no evidence worth credence available on record that defendant was paying rent qua the property in question, rather evidence adduced on record clearly indicate that defendant was in possession of the premises in question on account of her relationship i.e. daughter in law of the plaintiff and as such, she otherwise being in possession, if any, cannot claim to have acquired status of tenant with the passage of time. The substantial questions of law are answered accordingly. 18. Moreover, this court has very limited jurisdiction to re-appreciate the evidence in the instant proceedings, especially in view of the concurrent findings recorded by the courts below. In this regard, reliance is placed upon the judgment passed by the Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 , relevant para whereof reads as under:- "16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." 19. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned courts below cannot be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by the learned courts below, rather same are based upon correct appreciation of evidence and as such, same deserves to be upheld. 20. In the facts and circumstances discussed above, this Court is of the view that findings returned by the trial Court below, which were further upheld by the first appellate Court, do not warrant any interference of this Court as findings given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appear to be based on correct appreciation of oral as well as documentary evidence. Hence, the appeal fails and dismissed accordingly. There shall be no order as to costs.