Himachal Pradesh High Court
Pawan Kumar vs Smt. Sunita Rani And Others on 4 January, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 236 of 2021 Reserved on: 30.12.2022 Decided on: 04.01.2023.
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Pawan Kumar ......Appellant.
Versus
Smt. Sunita Rani and others .....Respondents.
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Coram The Hon'ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting?1 Yes For the appellant: Mr. Navlesh Verma, Advocate. For the respondents: Mr. Ashwani K. Sharma, Senior Advocate, with Mr. Ishan Sharma, Advocate.
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Satyen Vaidya, Judge Heard.
2. By way of instant Regular Second Appeal, the appellant has sought to assail judgment and decree dated 11.11.2021, passed by learned District Judge, Kangra at Dharamshala, (H.P.) in Civil Appeal (RBT) No. 63- D/XIII/2020/2019 affirming judgment and decree dated 28.11.2018 passed by learned Civil Judge Court No.1, Dharamshala, in Civil Suit No. 268 of 2013, whereby the suit of the respondents/plaintiffs for possession and use and occupation charges, has been decreed.
1 Whether reporters of print and electronic media may be allowed to see the order?
::: Downloaded on - 04/01/2023 20:34:48 :::CIS 23. The parties hereinafter shall be referred to by the same status as they held before the learned trial Court. The respondents herein were the plaintiffs and the appellant .
herein was the defendant.
4. Plaintiffs filed a suit against the defendant claiming possession of partly constructed building (ground floor) comprised in Khata No. 392, Khatauni No. 543, Khasra Nos. 2073/1759/1490, 2065/1485, measuring 308-18 Dharamshala, r District to square meters, situated at Mohal Shyam Nagar, Tehsil Kangra, H.P. (for short, 'suit property'). Plaintiffs claimed title of the suit property by way of its purchase from its previous owner Smt. Kiran Kumari vide sale deed dated 22.07.201. The defendant was alleged to be unauthorised occupant of suit property. Accordingly, the reliefs of possession of the suit property and use and occupation charges at the rate of Rs.10,000/- per month from 27.07.2011 till the date of filing of the suit were claimed.
5. The defendant by way of written statement, contested the suit on the ground that his occupation on the suit property was not unauthorised. He claimed to have been ::: Downloaded on - 04/01/2023 20:34:48 :::CIS 3 put in lawful possession of the suit property by previous owner Smt. Kiran Kumari vide agreement dated 27.12.2008.
The defendant specifically pleaded that Smt. Kiran Kumari .
had taken a loan of Rs.4,00,000/- from him to discharge her outstanding liabilities and in order to secure such loan had executed the agreement dated 27.12.2008. Smt. Kiran Kumari had agreed to repay the loan amount within twelve months from the date of execution of agreement, failing which, she had further agreed to transfer the suit property in favour of the defendant in lieu of payment of Rs.4,00,000/-.
The defendant came up with a further plea that he could recover a sum of Rs.2,00,000/- only from Smt. Kiran Kumari and for balance of Rs.2,00,000/- he had instituted a suit of recovery against her.
6. On the pleadings of the parties, learned trial Court had framed the following issues:
1. Whether the plaintiffs are entitled for the decree of possession, as prayed for? OPP
2. Whether the plaintiff is entitled for the use and occupation charges amounting to Rs.2,40,000/-
for the period of two years from 25th July, 2011 to 25th July, 2013 @ 10,000/- per month, as prayed for? OPP ::: Downloaded on - 04/01/2023 20:34:48 :::CIS 4
3. Whether the plaintiffs have no cause of action and locus standi to file the present suit, as alleged? OPD
4. Whether the plaintiffs are estopped by their acts, .
conduct and acquiescence from filing the present suit, as alleged? OPD
5. Whether the suit is misconceived, as alleged?
OPD
6. Relief.
Issues No. 1 and 2 were decided in affirmative and the suit of the plaintiffs was party decreed. The plaintiffs were held entitled for decree of possession of the suit property and also for use and occupation charges @ Rs.3000/- per month from 25.7.2011 till 25.7.2013.
7. The defendant preferred an appeal before the learned District Judge, Kangra at Dharamshala against the judgment and decree dated 28.11.2018 passed by learned trial Court. The appeal of the defendant has been dismissed, vide judgment and decree dated 11.11.2021, hence, the instant appeal.
8. The plaintiffs had sought the possession of suit property on the basis of their title. The defendant had not disputed the title of plaintiffs. He had also not set up any title in himself in respect of the suit property. Once, the ::: Downloaded on - 04/01/2023 20:34:48 :::CIS 5 defendant had not disputed the title of plaintiffs over the suit property, he could avoid the decree for possession only by proving a better title in him, which he failed.
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9. The defendant had tried to protect his possession on the basis of terms of agreement dated 27.12.2008. The defendant himself had set up the plea that by way of agreement dated 27.12.2008, he had lent a sum of Rs.4,00,000/- to Smt. Kiran Kumari and out of the such amount, he had received Rs.2,00,000/- and for balance of Rs.2,00,000/-, he had already instituted the suit for recovery against said Kiran Kumari. Though, the defendant had raised the plea that Smt. Kiran Kumari had agreed to transfer the suit property in his favour, in case of her default in payment of the amount of Rs.4,00,000/- within twelve months, yet there were no pleadings to the effect that defendant had been ready and willing to perform his part under the agreement dated 27.12.2008 executed with Smt. Kiran Kumari. The fact of matter is that defendant had sought to recover the amount due to him under the agreement and had filed a suit for such purpose.
::: Downloaded on - 04/01/2023 20:34:48 :::CIS 610. Defendant had not shown any willingness to get the suit property transferred in his favour in terms of the agreement dated 27.12.2008. It was also not the case of the .
defendant that the agreement dated 27.12.2008 primarily was an agreement to sell, rather his own case was that only by way of default clause, he could be entitled to get the suit property transferred in his favour. It was also not the case of defendant that he was put in possession of the suit property by Smt. Kiran Kumari in part performance of the agreement to sell. That being so, the defendant was not entitled to protect his possession even under Section 53-A of the Transfer of Property Act. Even otherwise also, the said agreement was rightly held to be unenforceable by learned lower appellate court, for the purposes of part performance, in view of its non-registration.
11. Both the learned Courts below have concurrently returned the findings of facts that the plaintiffs were the title holders of the suit property and the defendant had failed to establish any better right to hold the possession thereof. The findings so returned by both the learned Courts cannot be termed to be illegal or perverse as the findings so returned are borne from overall assessment of the material on record.
::: Downloaded on - 04/01/2023 20:34:48 :::CIS 7In absence of any proof of entitlement of defendant to retain the possession of the suit property, the only legal consequence was the grant of decree of possession in favour .
of the plaintiffs.
12. Once there was concurrent findings of facts recorded by both the learned Courts below, this Court in exercise of jurisdiction under Section 100 of the CPC will be loath to interfere unless substantial question of law arises from the controversy. The impugned decree is based simply on the basis of findings of facts.
13. It is more than settled that substantial question of law should have foundation in pleadings, should emerge from substantial findings of facts and should not merely be a proposition of law, but should be a debatable question having bearing on the merits of the case.
14. No question of law much less a substantial question of law has arisen in the instant case. Thus, there is no merit in the appeal and the same is dismissed. Judgment and decree dated 11.11.2021, passed by learned District Judge, Kangra at Dharamshala, (H.P.) in Civil Appeal (RBT) No. 63-D/XIII/2020/2019 affirming judgment and decree ::: Downloaded on - 04/01/2023 20:34:48 :::CIS 8 dated 28.11.2018 passed by learned Civil Judge Court No.1, Dharamshala, in Civil Suit No. 268 of 2013, needs no interference by this Court.
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15. The appeal stands disposed of, so also the pending application(s) if any. Records be sent back forthwith.
4th January, 2023 ( Satyen Vaidya)
(GR) Judge
r to
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