R.S.A NO. 2179 OF 1998 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A NO. 2179 OF 1998 (O&M) DECIDED ON : 30.05.2012 Ramesh Kumar ...Appellant versus Raman Chand ...Respondent CORAM : HON'BLE MR. JUSTICE K. C. PURI Present : Mr. Y. K. Sharma, Advocate, for the appellant. Mr. Ravinder Malik, Advocate, for the respondent. K. C. PURI, J. (ORAL)
Challenge in this appeal is to the judgment and decree dated 19.05.1998 passed by Shri C.B.Jaglian, Additional District Judge, Yamunanagar at Jagadhari vide which appeal preferred by the appellant-defendant against the judgment and decree dated 30.05.1995 passed by Shri M. C. Mehra, Additional Senior Sub Judge, Jagadhari, was dismissed.
Briefly stated, Raman Chand-plaintiff now defendant filed a suit for possession by way of ejectment against Ramesh Kumar with the allegations that shop in dispute was owned by one Rajinder Singh son of Ishar Singh. He let out the same on monthly rent of `250/- to the defendant. The plaintiff purchased R.S.A NO. 2179 OF 1998 (O&M) -2- the shop in dispute from Rajinder Singh-previous owner by way of registered Sale Deed dated 01.05.1987 and as such he stepped into the shoes of Rajinder Singh previous owner of the shop in dispute. It was alleged that defendant has not paid the rent from 01.05.1987 to 31.07.1987. Notice dated 06.08.1987 was also served upon the defendant but he did not clear the arrears of rent. It was further alleged that plaintiff require the premises for his own use and occupation. It was further pleaded that construction of the shop in dispute was completed in the year 1980 and therefore, it is exempted from the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as "the Haryana Rent Act"). The tenancy of defendant was terminated vide notice dated 06.08.1987 under Section 106 of the Transfer of Property Act. Hence the suit for ejectment as well as recovery of `1443.75 was filed.
The suit was hotly contested by defendant. It was pleaded that Rajinder Singh-previous owner of the shop in dispute let out the shop @ `225/- plus house tax of `25/- per month. It was further pleaded that the said amount was offered to Rajinder Singh but he refused to accept the same. The defendant is ready to pay the rent. It was further pleaded that the shop in dispute is quite old and provisions of the Haryana Rent Act are applicable. It was further pleaded that in case the shop in dispute is proved to be newly constructed in the year 1980, in that eventuality, the right for possession by filing the R.S.A NO. 2179 OF 1998 (O&M) -3- present suit has legally been waived of by its previous owner Rajinder Singh, in whose shoes the plaintiff stepped into by filing eviction petition under the Haryana Rent Act.
The plaintiff filed replication wherein he denied the contents of written statement and reiterated the stand taken by him in the plaint.
From the pleadings of parties, following issues were framed :-
1. Whether the plaintiff is owner of the shop in dispute ? OPP
2. Whether the defendant is tenant over the suit property at a monthly rent of Rs.250/- plus taxes ? OPP
3. Whether the defendant is in arrears of rent since 1.5.1987 to 31.7.1987 amounting to Rs.750/- and in arrears of house tax amounting to `93-75 paise ? OPP
4. Whether the plaintiff is entitled to recover the compensation for the use and occupation at the rate of `300/- per month ? OPP
5. Whether the shop in dispute is covered under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 ? OPD
6. Whether the suit is not maintainable in the present form ? OPD R.S.A NO. 2179 OF 1998 (O&M) -4-
7. Whether the plaintiff has no locus standi to file the present suit ? OPD
8. Whether the defendant is entitled to special costs under Section 35-A CPC, if so to what amount? OPD
The plaintiff examined Prem Chand attesting witness of the sale deed as PW-1 and himself appeared as PW-2 and produced certain documents on record.
On the other hand, defendant himself appeared as DW-1 and tendered certain documents.
The learned trial Court, after appraisal of the evidence, decreed the suit of plaintiff holding that the construction has been raised within ten years of filing the suit and as such, the Haryana Rent Act is not attracted and the defendant was directed to hand over the vacant possession of the shop in dispute within one month from the passing of judgment and decree dated 30.05.1995.
Feeling dissatisfied with the judgment and decree dated 30.05.1995, the defendant-appellant preferred first appeal. The learned Additional District Judge, Yamunanagar at Jagadhari vide judgment and decree dated 19.05.1998 dismissed the appeal.R.S.A NO. 2179 OF 1998 (O&M) -5-
Still feeling dissatisfied with the judgment and decree dated 30.05.1995 passed by Additional Senior Sub Judge, Jagadhari and judgment and decree dated 19.05.1998 passed by Additional District Judge, Yamunanagar at Jagadhari, the defendant-appellant has preferred the present regular second appeal.
Learned counsel for the appellant has submitted that following substantial questions of law are involved in the present appeal :
1. Whether under the provisions of Haryana Urban (Control of Rent and Eviction) Rent, 1973, a landlord files ejectment applications against the tenant seeking his ejectment from a particular building derives benefits under the provisions of the Rent act, then whether later on, the landlord can be allowed to raise a plea that provisions of the Rent Act are not applicable to the said building and can the landlord be allowed to file a civil suit against the tenant for possession of the said building under the provisions of the Transfer of Property Act ?
2. Where a landlord files ejectment application under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973, against a tenant for seeking his ejectment from a building, then whether it does not mean that advantages and benefits given to a landlord under Section 1 (3) of the said Act are waived/given up by the landlord ?R.S.A NO. 2179 OF 1998 (O&M) -6-
3. Whether misreading, non reading and misinterpreting by the courts below documents produced on the record do not make the impugned judgments and decrees vitiated and liable to be set aside ?
4. Whether an adverse inference is not to be drawn against the subsequent landlord for non examining of previous landlord as a witness for establishing the factum of date of completion of the building and giving no explanation therefore ?
5. Whether issuance of legal notice under Section 106 of Transfer of Property Act to one Dinesh Kumar and not to Ramesh Kumar tenant-appellant determining the tenancy, can be considered to be a legal and valid notice to the tenant-appellant ?
I have heard learned counsel for the parties and have gone through the case file carefully.
Learned counsel for the appellant has submitted that previous owner Rajinder Singh had been filing eviction petition under the Haryana Rent Act and had been receiving rent. The plaintiff now respondent at the most stepped into the shoes of said Rajinder Singh. So he is estopped from taking the plea that Rent Act is not applicable in view of the exemption of construction within ten years. It is further contended that the previous site plan was got sanctioned on 03.01.1977 and the present petition was filed on 13.10.1987 and as such, the period R.S.A NO. 2179 OF 1998 (O&M) -7- of ten years has elapsed. So, the exemption of applicability of Rent Act in respect of ten years is not applicable to the facts of present case. To fortify his argument, learned counsel for the appellant has relied upon authority "Lachoo Mal vs. Radhye Shyam" AIR 1971 SUPREME COURT 2213. Learned counsel for the appellant has further contended that notice was issued to one Dinesh Kumar and not to appellant Ramesh Kumar.
In reply to the above noted submissions, learned counsel for the respondent has submitted that there is no estoppel against law. It is further contended that sanction for the map was obtained on 20.10.1978 (Exhibit P-6). The construction was made thereafter and as such, the construction was raised within ten years of filing the suit. So, in these circumstances, the judgment passed by both the Courts below does not call for any interference. The receipt of notice under Section 106 of the Transfer of Property Act has been admitted by the appellant.
There is concurrent finding of fact recorded by both the Courts below that the present suit has been filed within ten years of the construction in respect of demised shop. That being a finding of fact cannot be interfered in the regular second appeal. The Appellate Court has discussed the implication of Exhibit P-6 and Exhibit D-6 while appreciating the evidence. From the perusal of Exhibit P-6, it is revealed that sanction for construction of three shops was accorded by the Municipal Council, Jagadhari on 20.10.1978. Although, in Exhibit D-6, there R.S.A NO. 2179 OF 1998 (O&M) -8- is mention of three shops but the explanation given by the plaintiff to the effect that shops could not be constructed in pursuance to the map Exhibit D6 and thereafter again sanction was obtained on 20.10.1978 vide Exhibit P6 seems to be correct and rightly accepted by both the Courts below. Otherwise also, this Court can interfere in regular second appeal only if there is misreading or misinterpreting the evidence on file. There is nothing on file that both the Courts below have misread or misinterpreted the evidence available on file.
So far as submissions made by learned counsel for the appellant that notice was issued to one Dinesh Kumar and not to present appellant Ramesh Kumar is concerned, the factum of receipt of notice has not been denied. In the written statement itself in para no.7, it is mentioned that notice under Section 106 of the Transfer of Property Act was received but that notice was factually wrong and legally invalid which was duly replied. So notice was duly received by the appellant and it does not lie in the mouth of appellant that notice was issued to Dinesh Kumar and not to the present appellant.
So far as submissions made by learned counsel for the appellant that previous owner Rajinder Singh has filed eviction petition and as such, the present suit is not maintainable is concerned, both the Courts below have rightly held that there cannot be estoppel against statute. So far as authority Lachoo Mal's case (supra) is concerned, the same is distinguishable R.S.A NO. 2179 OF 1998 (O&M) -9- from the facts of present case as in that case the tenant was in possession of the premises much prior to ten years. The property was given to the landlord for reconstruction and thereafter the agreement was executed between the parties. It is not the case of appellant that appellant was in possession of the premises in dispute prior to ten years of construction.
In view of above discussion, all the substantial questions of law stand determined against the appellant. Consequently, the appeal is without any merit and the same stands dismissed.
MAY 30, 2012 (K. C. PURI) shalini JUDGE