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2025 DIGILAW 643 (HP)

Nirdosh Chauhan v. Sanotosh Sharma

2025-04-04

BIPIN CHANDER NEGI

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JUDGMENT : Bipin Chander Negi, J. 1. The suit in the case at hand was filed by the present respondents. The suit filed was for possession of a residential flat bearing No. 7, Block H, Knolls Wood, Chotta Shimla consisting of two bed rooms, one kitchen, one drawing room, lobby-cum-dinning Balcony, one store, one toilet (suit property) and for recovery of use and occupation charges thereof. The respondents in the suit filed claimed that their predecessor-in-interest had been allotted the flat/suit property by the Himachal Pradesh, Housing Board, Urban Development authority in the year 1981. The respondents claimed that they are permanent residents of Punjab. On the other hand, it was averred in the plaint that the present appellant is an employee of the Himachal Pradesh, Housing Board, Urban Development authority and is also an owner of a flat adjoining the suit premises. Taking advantage of the fact that the present respondents do not reside in Himachal, appellant herein is alleged to have occupied the suit premises. The illegal occupation of the flat was noticed on 03.08.2010, when they visited the suit premises and found carpenters working therein. On questioning the carpenters, it was divulged that the present appellant claimed herself to be the owner of the suit property. When the appellant was shown documentary proof with respect to ownership of the respondents qua the suit premises, then the appellant claimed herself to be a tenant inducted by Bal Bushan i.e. brother of the predecessor-in-interest of the respondent to whom the flat had been allotted. In the plaint, it is averred that on 7.8.2010, the matter inter-se the parties was amicably settled. Possession was handed over to the present respondents. Thereafter the respondents had locked the premises and left for their native place in Punjab. On 11.08.2010, the neighbours of the respondents had telephonically informed the respondents that the present appellant had re-possessed the flat in question. Thereafter once again, the respondents came to Shimla. Where in after with respect to the illegal possession, a police report was lodged in the concerned police station. At the behest of the police, the matter was compromised. However even thereafter since possession of the flat was not handed over, therefore, in the aforesaid backdrop, a suit seeking the relief of possession, use and occupation charges was filed. 2. Where in after with respect to the illegal possession, a police report was lodged in the concerned police station. At the behest of the police, the matter was compromised. However even thereafter since possession of the flat was not handed over, therefore, in the aforesaid backdrop, a suit seeking the relief of possession, use and occupation charges was filed. 2. Per contra in the written statement filed, the present appellant denied that the suit premises had been inherited by the present respondents. She claimed herself to be a tenant inducted by Bal Bushan. The occurrences as were narrated in the plaint were categorically denied by the plaintiff. Rather to the contrary, the appellant submitted that from the suit premises, the respondents had forcibly tried to evict her by use of force on 03.08.2010. The said use of force was brought to the notice of the concerned police. In order to protect her possession, she had filed a civil suit for injunction against the present respondents. 3. In the aforesaid backdrop, the following issues were framed on 05.07.2014:- 1. Whether plaintiff is entitled for the possession of Flat No. 7, Block H, Knolls Wood, Chotta Shimla consisting of two bed rooms, one kitchen, one drawing room, lobby-cum-dinning Balcony, one store, one toilet? …… OPP 2. Whether the defendant is in illegal possession of demised premises? ……. OPP 3. Whether the plaintiff is entitled to the use and occupation charges Rs. 4500/- per month? ...........OPP 4. Whether the present suit is not maintainable in the present form? ..........OPD 5. Whether plaintiff has not come to the Court with clean hands, if so, its consequences? ........OPD 6. Whether the plaintiff is estopped from filing the present suit on account of his acts, deeds, conduct etc? ...........OPD 7. Whether this Court has no jurisdiction to try the present suit? ..........OPD 8. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? .........OPD 9. Whether the plaintiff has no cause of action to file the present suit? ........OPD 10. Relief? 4. Both the Courts have concurrently held that the flat in question had been allotted to the predecessor-in-interest of the present respondents i.e. Sudesh Kumar Sharma. On the death of Sudesh Kumar Sharma being the legal heirs of the aforesaid individual, the flat in question had been inherited by the present respondents. ........OPD 10. Relief? 4. Both the Courts have concurrently held that the flat in question had been allotted to the predecessor-in-interest of the present respondents i.e. Sudesh Kumar Sharma. On the death of Sudesh Kumar Sharma being the legal heirs of the aforesaid individual, the flat in question had been inherited by the present respondents. Insofar the tenancy of the appellant qua the suit premises is concerned, the same has been denied for want of evidence. Since the occupation of the appellant in the suit premises has been found to be a wrongful, illegal, therefore, use and occupation charges have been fastened at the rate of Rs.4500/- per month from 09.08.2010 on the present appellant. 5. Heard counsel for the appellant. Perused the impugned judgments. 6. It is contended on behalf of the learned counsel appearing on behalf of the appellant that on the basis of order dated 28.1.2011 i.e. Exhibit PW5/A, a decree of possession could not have been passed in favour of the present respondents as the aforesaid Exhibit was not a legal document of title. In this respect suffice it to state the flat in question had been allotted by the Himachal Pradesh Housing Board, Urban Development Property vide allotment letter dated 16.6.1981. The same had been allotted in favour of Sudesh Kumar Sharma i.e. predecessor-in-interest of the present respondents. In terms of the allotment letter, the cost of the suit premises was Rs.1.38 lacs. The entire sale consideration had been paid by Sudesh Kumar Sharma to the Himachal Pradesh Housing Board, Urban Development Property. Vide letter dated 9.11.2010, respondent No.2 i.e. son of late Sudesh Kumar Sharma had informed Himachal Pradesh Housing Board, Urban Development Property that his father i.e. Sh. Sudesh Kumar Sharma had died on 06.05.1988. Alongwith the letter, a legal heir certificate obtained from the competent authority had been furnished. Based on the aforesaid, transfer of the suit property was sought in the name of the legal heirs. The aforesaid is stated in the order dated 28.1.2011 i.e. PW5/A. In terms of Section 114(e) of the Indian Evidence Act, there is a presumption of a regularity attached to order dated 28.01.2011 (Exhibit PW-5/A). The aforesaid presumption with respect to the office order dated 28.1.2011 (Exhibit PW5/A) has not been rebutted by leading cogent evidence. The aforesaid is stated in the order dated 28.1.2011 i.e. PW5/A. In terms of Section 114(e) of the Indian Evidence Act, there is a presumption of a regularity attached to order dated 28.01.2011 (Exhibit PW-5/A). The aforesaid presumption with respect to the office order dated 28.1.2011 (Exhibit PW5/A) has not been rebutted by leading cogent evidence. Even otherwise in terms of Section 35 of the Evidence Act, order dated 28.01.2011 (Exhibit PW5/A is a relevant fact. In view thereof, I see no infirmity in the order passed by the trial court as well as the 1 st Appellate Court, whereby based on the same, the respondents have been held to be owners of the suit property. 7. Other than the aforesaid, it is urged that the application filed for leading additional evidence under Order 41 Rule 27 CPC before the 1 st Appellate Court has been illegally dismissed. The documents sought to be placed on record are documents which have been obtained from the Himachal Pradesh, Housing Board, Urban Development Property qua the fact that the suit premises, had been allotted in favour of the predecessor-in-interest of the present respondents and his brother i.e. Bal Bhushan Sharma. 8. The 1 st Appellate Court by a well reasoned judgement has refused to take additional evidence as was sought to be produced. According to the learned counsel appearing on behalf of the present appellant, the same was necessary in order to enable the appellate Court to pronounce judgment. Assuming even if the evidence is taken on record, it is found that the predecessor-in-interest of the present respondents alongwith his brother Sh. Bal Bushan Shama were the owners of the suit property even then no evidence has been placed on record to show that the present appellant had been inducted as a tenant by Bal Bushan Sharma. 9. In view of the aforesaid, I see no reason to interfere with the well reasoned judgments of the courts below. No other points urged. I see no merit in the instant appeal, therefore, the same is dismissed. Pending miscellaneous applications, if any also stand disposed of.