Punjab-Haryana High Court
Sita Rani @ Sita @ Sunita vs Roshan Devi Alias Roshani Devi @ Manjit ... on 6 January, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
R.S.A. No. 1042 of 2008 (O&M)
Date of decision: January 06, 2012
Sita Rani @ Sita @ Sunita
.. Appellant
Vs.
Roshan Devi alias Roshani Devi @ Manjit and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sanjiv Walia, Advocate for the appellant.
Mr. Sandeep Jain, Advocate for the respondent No.1.
Respondents No.2, 4 and 5 ex-parte.
A.N. Jindal, J This is defendant No.1-appellant's (herein referred as, 'the defendant') second appeal against the judgment dated 12.10.2006 passed by the first appellate court affirming the judgment passed by the trial court decreeing the suit of the plaintiff for permanent injunction restraining the defendants from interfering in her possession and declining the counter claim filed by the defendant No.1 for seeking possession over the shop as fully detailed in the heading of the plaint. The main contest is between the defendant No.1 and the plaintiff.
The main grievance of the defendant No.1 is that when the courts below had not held the plaintiff- respondent (herein referred as, 'the plaintiff') as tenant, then her counter claim was bound to be decreed. As such, the prime question to be determined in this case is that "whether plaintiff has failed to prove herself to be as tenant over the suit property, if so, whether the counter claim for seeking possession filed by the defendant was liable to be decreed?"
Briefly stated, the facts of the case are that the plaintiff claimed herself to be a tenant under defendant No.1 and sought permanent injunction against the defendants from interfering in her peaceful possession over the shop in dispute. Her claim is mainly based on electricity, water and telephone bills.
In the written statement filed by the defendant No.1, she raised some preliminary objections, inter alia, that the plaintiff has no locus standi R.S.A. No. 1042 of 2008 -2- to file the suit; suit is not maintainable in the present form; she is trespasser and in illegal possession of the property as such cannot seek possession against the true owner; she is estopped from filing the suit; suit is bad for misjoinder of the defendants No.2 to 5; the plaintiff has no cause of action and has concealed the material facts.
On merits, while pleading the plaintiff to be a trespasser and in illegal possession of the suit land, and that mere electric, water supply and telephone bills do not legalize her possession sought counter claim for seeking decree for possession and also claimed mesne profits to the tune of `19500/-.
Reply to the counter claim as well as replication were also filed. From the pleadings of the parties, the trial court framed the following issues :-
1. Whether the plaintiff is entitled for permanent injunction for restraining the defendants from dispossessing her forcibly from the property marked as ABCD as fully detailed in the heading of the plaint?OPP
2. Whether the plaintiff has no locus standi to file this suit?OPD
3. Whether the suit is not maintainable in the present form, and whether there is no relationship of landlord and tenant between the plaintiff and defendant No.1.?OPD1
4. Whether the plaintiff is trespasser in illegal possession of the property in dispute?OPD
5. Whether the plaintiff is estopped from filing the present suit by her act, conduct, admissions and acquiescence?OPD
6. Whether the suit is bad for misjoinder of defendants No.2 to 5?OPD1
7. Whether the plaintiff has no cause of action and locus standi to sue against defendant No.1?OPD1
8. Whether the plaintiff has concealed the true facts from the court, if so, its effect?OPD R.S.A. No. 1042 of 2008 -3-
9. Whether the counter claim filed by defendant No.1 should be allowed?OPD1
10. Whether the counter claim filed by the defendant No.1 is not maintainable?OPP
11. Relief.
In order to prove her case, the plaintiff appeared in the witness box as PW-1 and closed her evidence. To the contrary, defendant has examined her attorney Gurdev Singh as DW-1 and closed her evidence.
The possession of the plaintiff over the suit property has not been denied by the parties. The case set up by the plaintiff is that she is a tenant under defendant No.1, whereas the plea of the defendant is that she is a trespasser. The issue No.3 and 4 were framed by the trial court with regard to determine the status of the plaintiff over the suit land. Though the trial court has not given any independent findings on these two issues, but while deciding issue No.1, it observed as under :-
"......... So from the pleadings, the possession of the plaintiff stands fully proved over the property in dispute, and defendant is having no right to dispossess the plaintiff forcibly except in due course of law...."
No independent findings have been given regarding issues No.3 and 4 relating to the question with regard to relationship of tenant and landlord between the plaintiff and defendant No.1, but the court observed as under :-
...... of course I have already held that it would not be wise to give any kind of finding regarding the relationship of landlord or tenant in between the plaintiff and defendant No.1. Suffice it is to say that the possession of the plaintiff has been proved and it is also admitted by the defendant. Now coming to the question that whether the plaintiff is a trespasser or she is in illegal possession. The plaintiff entered in possession not as a R.S.A. No. 1042 of 2008 -4- trespasser because has she been a trespasser, then the defendant could have initiated certain moves or action against her/plaintiff till now......"
Ultimately, without recording any specific findings regarding relationship of landlord and tenant, issues No.2 to 8 were decided in favour of the plaintiff and against the defendant. Similarly, the trial court while holding that the plaintiff is not a trespasser also dismissed the counter claim filed by the defendant.
Now coming to the appellate court's judgment, the same is also contradictory as it also avoids holding the plaintiff to be a tenant but has held that she is in peaceful possession of the property in dispute. The first appellate court has observed as under
"The defendant has failed to bring on record any piece of evidence which could prove forcible possession of the plaintiff over the house in question. Non filing of any complaint against the plaintiff topples the plea of the defendant that the possession of the premises was taken in a forcible manner by the plaintiff. The trial court has rightly held and declared the plaintiff to be in peaceful possession of the house in question. Moreover, even a trespasser cannot be dispossessed, except in due course of law."
In the operative part of the judgment also, the first appellate court while holding the plaintiff to be in peaceful possession dismissed the appeal of the defendant- appellant. As such, she is in regular second appeal before this court.
Arguments heard. Record perused.
The ownership of the defendant No.1 over the houses is not in dispute. The specific plea set up by the plaintiff is that she is in possession of the suit property as tenant under the defendant No.1, but to determine whether the plaintiff is a tenant or a trespasser, first of all, I will have to examine the pleadings as set up by the plaintiff. No date of commencement of the tenancy has been pleaded in the plaint. It is also not pleaded as to up to which date, the rent has been paid by her to the defendant No.1. The R.S.A. No. 1042 of 2008 -5- plaintiff has banked his claim regarding possession on the basis of electricity, water and telephone bills, but the mere fact that he had entered into possession of the premises and took the connection and got water supply, electricity meter installed are not sufficient to hold him in permissive possession. The plaintiff himself has pleaded a compromise dated 8.11.2000 Ex.P13 in order to prove his possession. This argument does not help her in any manner. This document Ex.P13 in the shape of a compromise records an understanding by the plaintiff that she would vacate the premises by 5th March, 2001. This document itself proves that the defendant made best efforts for taking possession which compelled the plaintiff to file suit for permanent injunction and counter to that the defendant claimed possession by decreeing the counter claim. The courts below have not properly appreciated the evidence while holding that the defendant remained silent over the possession of the plaintiff, rather case of the plaintiff himself is regarding suit for injunction. Reading of para Nos. 7, 8, 9 and 10 of the plaint, indicate that the defendants were against the forcible possession of the plaintiff over the suit property and they had also moved applications before the police and being the owners of the property wanted to seek possession of the same. It would also not be inappropriate to say that when the plaintiff fails to prove the tenancy, lease, licence or otherwise his permissive possession, then the only inference which would be drawn is that he would be treated in unauthorized possession inviting the owner to seek possession in due process of law.
As regards the tenancy, there is a specific issue, the onus of which is upon the plaintiff and he was to prove that he had taken the premises on rent from the defendant No.1. It would also be pertinent to mention here that the evidence as led by the plaintiff is contrary to the pleadings in the plaint. The plaintiff has stated that he took the premises on rent from the defendant No.1 whereas in her statement, she has stated that she had taken the premises in dispute on rent from the defendants No.1 and
2. She has not stated anything as to what was the rate of rent, but in her statement, she has stated that she had taken the premises on rent @ `800/- per month. Though she has pleaded in the plaint that the electric meter is in her name, but she has admitted during her examination in chief that the R.S.A. No. 1042 of 2008 -6- electric meter is in the name of Lachhman Dass. The ration card and the telephone bills have not been proved in accordance with law and these are not connected with the house in dispute. So far as the electric and water supply bills are concerned, the same are hardly sufficient to establish the factum of tenancy, but these documents could only support the possession of the plaintiff over the suit property. However, she has admitted the compromise Ex.P13 having taken place and she has admitted during cross- examination that she is not in possession of any rent note. She did not state about the rate of rent in the plaint. She has not proved any receipts with regard to payment of rent. No such witness has been examined in whose presence she had taken the premises on rent. The question of tenancy is a result of bilateral agreement which the plaintiff has failed to prove. In the absence of any single receipt or the witness in whose presence, she had taken the premises on rent and in view of the fact that the plaintiff has not stated a word about the rate of rent or as to since when she had been paying the rent and since when she is in arrears, it would be difficult to hold that her status is that of a tenant, rather the only inference from the evidence which could be drawn is that the plaintiff being the employee of the police was in unauthorized possession of the premises in dispute.
When once it is established that there was no relationship of tenant and landlord between the parties, then the court was bound to decide issue Nos. 3 and 4 in favour of the defendant. Both the courts below, though have specifically held the plaintiff to be not a tenant, yet did not grant the decree of possession in favour of the defendant for which she was legally entitled. Consequently, issue No.9 should have been decided in favour of the defendant. Since no argument has been advanced as to how the counter claim is not maintainable, the issue No.10 should have been decided against the plaintiff.
It may further be observed that the courts below have wrongly held the plaintiff to be in peaceful possession of the house in dispute as such these findings are negatived consequently, defendant is automatically entitled to the relief of possession. Even otherwise, the plaintiff being in unauthorized possession and having no right, title or interest in the premises was not entitled to seek any injunction against the true owners. It is settled R.S.A. No. 1042 of 2008 -7- by now that no injunction could be granted against the true owner. As such, the issue No.1 should have been decided against the plaintiff and in view of the fact that the defendant had raised the counter claim, which indicates that the defendant is not forcibly seeking the possession but claiming possession through due process of law, consequently, the counter claim was bound to be decreed.
As regards the issues No.2, 5, 6, 7 and 8 are concerned, since the plaintiff had no right, title or interest to stay in the house, therefore, the issue No.2 should have been decided against the plaintiff.
Nothing has been pointed out: how the plaintiff is estopped from filing the present suit; the suit is bad for misjoinder of the necessary parties; the plaintiff has no cause of action or that he has concealed the material facts, therefore, the issues No.5, 6, 7 and 8 deserve to be decided against the defendants.
Consequently, the substantial questions of law as framed above, is answered in favour of the defendant- appellant. The judgments passed by the courts below do not touch the core questions to be settled in the case. The evidence appears to be misread and mis-appreciated, therefore, the same need to be reversed.
Resultantly, this appeal is accepted, impugned judgments are set aside and the suit filed by the plaintiff is dismissed whereas the counter claim is allowed and decree for possession with regard to the premises as fully detailed in the head note of the plaint is passed in favour of the defendant No.1 and against the plaintiff and she is directed to vacate the premises within three months from to-day. As regards the mesne profits, since the plaintiff is in possession of the premises in dispute since April, 2000, therefore, it would not be inappropriate to award mesne profits as claimed by the defendant i.e. `19,500/- along with interest at the rate of 12% per annum from the date it become due. However, the same would be subject to the calculations at the time of claiming damages on account of the use and occupation of the premises in dispute against the plaintiff. The costs will follow the event.
January 06, 2012 (A.N. Jindal) deepak Judge