Punjab-Haryana High Court
Som Nath & Ors vs Om Parkash on 13 November, 2014
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
RSA No. 1641 of 2011 1
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 13.11.2014
1. RSA No. 1641 of 2011
SOM NATH & ORS ......appellants
V/S
OM PARKASH ......respondent
2. RSA No. 1642 of 2011
SOM NATH & ORS ......appellants
V/S
SANJAY KUMAR AND ANR. ......respondent
3. RSA No.1643 of 2011
SOM NATH AND ORS ......appellants
V/S
SAT PAL .....respondent
4. RSA No.1647 of 2011
SOM NATH AND ORS ......appellants
V/S
SURINDER KUMAR .....respondent
5. RSA No.1648 of 2011
SOM NATH &ORS ......appellants
V/S
KAILASH CHAND .....respondent
6. RSA of 1664 of 2011
SOM NATH AND ORS ......appellants
V/S
ANITA DEVI
HARISH KUMAR .....respondent
2014.11.19 11:04
I attest to the accuracy and
integrity of this document
Chandigarh
RSA No. 1641 of 2011 2
7. RSA No.1665 of 2011
SOM NATH AND ORS ......appellants
V/S
KEHAR CHAND .....respondent
8. RSA No.1667 of 2011
SOM NATH AND ORS ......appellants
V/S
.....respondent
RANJIT SINGH
RSA No. 1668 of 2011
9.
SOM NATH AND ORS ......appellants
V/S
RAJ KUMAR .....respondent
10. RSA No. 1669 of 2011
SOM NATH AND ORS ......appellants
V/S
SURINDER KUMAR .....respondent
11. RSA No.1720 of 2011
SOM NATH & ORS ......appellants
V/S
MAM CHAND .....respondent
12. RSA No.1729 of 2011
SOM NATH AND ORS ......appellants
V/S
RAM KARAN .....respondent
ANITA DEVI
2014.11.19 11:04
I attest to the accuracy and
integrity of this document
Chandigarh
RSA No. 1641 of 2011 3
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr.C.B.Goel, Advocate,
for the appellants.
Mr.S.S.Dinarpur, Advocate
for the respondents.
****
Raj Mohan Singh, J.
Vide this order, above mentioned twelve appeals would be disposed of. Both the learned counsel for the parties are one on aforesaid aspect. The facts are being taken from RSA No. 1641 of 2011.
The plaintiffs-appellants have come in regular second appeal against the concurrent judgments and decrees passed by the Courts below, vide which a suit, for possession of one shop by way of ejectment of the defendant as well as for recovery of damages for illegal and authorised use and for recovery of mesne profits, has been dismissed.
Plaintiff Som Nath for himself as well as for plaintiffs No.2 to 5, being attorney, filed a suit for possession of one shop, as shown in the plaint, by way of ejectment of the tenant/ defendant on account of non payment of rent from 1.4.2002 to 31.8.2002 @ ` 1,300/- per month along with mesne profit. It has been claimed by the plaintiffs that they are owners of 16 shops including the disputed shop, which was let out to the defendant for running a goldsmith shop. The defendant is in arrears of rent w.e.f.1.4.2002 to 31.8.2002, total amounting to ` 6,500/- and the defendant has failed to pay the same ANITA DEVI 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 4 despite repeated demand. In this way, the tenancy stood terminated in terms of registered notice dated 22.8.2002, issued to the defendant under Section 106 of the Transfer of Property Act (for short 'the Act') and thus, the possession of the defendant is claimed to be unauthorised. The plaintiffs, being sons of Sada Ram, are owners of 16 shops situated on Mustafabad Road, Mouza Sabalpur District Yamuna Nagar, out of which, one shop, as shown in the head note of the plaint, was rented out to the defendant about 10 years ago. With the aforesaid pleadings, plaintiffs have claimed the possession of the shop as well as for the recovery of arrears and mesne profits @ ` 50/- per day for illegal use and occupation of the shop in question.
On being issued notice, defendant took up the plea that there is no relationship of landlord and tenant between the parties as according to him, the plaintiffs have already sold the shop in question to Pardeep Kumar and Sandeep Kumar before filing of the suit. While denying the title of the landlord, it has been pleaded by the defendant that earlier a civil suit was preferred by the defendant and the tenants of other shops against the plaintiffs and the factum of arrears of rent has been denied altogether. It has been claimed that the tenant has been paying rent regularly to the vendees. Besides challenging the notice under Section 106 of the Act being defective, it has been further pleaded that a criminal case was registered by the plaintiffs against the aforesaid vendees namely Pardeep Kumar and Sandeep Kumar claiming the sale deeds to be forged and fabricated ANITA DEVI and the said criminal case has been cancelled by the police. Rather 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 5 proceedings under Section 182 IPC have been initiated against the plaintiffs themselves. It has been pleaded that the plaintiffs have also sold the suit property along with other shops, vide two sale deeds dated 6.5.2002 and 7.5.2002 in favour of Pardeep Kumar and Sandeep Kumar and thereafter, on 8.5.2002, Neetu, son of plaintiff No.3, intimated the defendant about the sale in question and advised him to make payment of rent to the vendees after April, 2002. Accordingly, the defendant made the payment of rent to Pardeep Kumar and Sandeep Kumar after April, 2002. Even a rent note dated 16.8.2002 is shown to have been executed by the defendant in respect of disputed shop in favour of Pardeep Kumar, one of the vendees of the shop in question, and in this way, it had been claimed that the suit for possession by way of ejectment of the defendant is not maintainable and the suit is liable to be stayed under Section 10 CPC as the civil suit filed by the defendant for permanent injunction restraining the plaintiffs from interfering in the possession is pending.
From the pleadings of the parties, following issues were framed:-
"1.Whether the plaintiffs are owners of the suit property, as alleged ? OPP
2. Whether there is relationship of landlord and tenant between the parties ? OPP
3. If the above issues are proved in affirmative, whether the plaintiffs are entitled for the relief of injunction as prayed for ? OPP ANITA DEVI
4. Whether the plaintiffs are entitled for recovery of ` 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 6 6,500/- as rent and for mesne profit, if so at what rate ? OPP
5. Whether the suit is not maintainable ? OPD
6. Whether the suit is liable to be stayed under Section 10 CPC ?
7. Whether the suit is liable to be dismissed with special costs ? OPD
8. Relief."
Plaintiff Som Nath got himself examined as PW-1 and tendered a copy of power of attorney as Ex.P-1 and copy of notice as Ex.P-2.
On the other hand, the defendant examined himself as DW-1, Shamsher Singh, Advocate as DW-2 and Balbir Singh, Clerk as DW-3, besides tendering numerous documents ranging from Ex.D-1 to D-65.
Learned trial Court discussed issues No.1 to 4 jointly and after deliberating upon other issues, dismissed the suit with costs vide judgment and decree dated 28.2.2009. Plaintiffs remained unsuccessful in the appeal before the learned lower Appellate Court, which dismissed the same vide judgment and decree dated 11.10.2010, that is how the plaintiffs have come in second appeal before this Court.
This Court has considered the arguments and material available on record. The relationship of landlord and tenant is the basic issue involved in the present appeal. Admittedly, the ANITA DEVI relationship between the defendant-tenant and plaintiffs-landlord was 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 7 created about 10 years ago. The basic argument of the learned counsel for the appellant is that the tenant cannot deny title of landlord in view of Section 116 of the Evidence Act. The sale deeds Ex.D-1 and Ex.D-2, relied upon by the defendant, are claimed to have not advanced the case of the defendant and the same do not defeat the right of the plaintiffs, inasmuch as that in the aforesaid sale deeds, there is no reference of the shop in question. It has been claimed that these sale deeds do not relate to the tenanted premises in question. A perusal of sale deeds Ex.D-1 and Ex.D-2 shows that these sale deeds include the shop in question as well as other properties. The location of the property has been shown as situated on the Eastern side of Mustafabad Road. Apparently, the plaintiffs have already sold total land measuring 20 marlas along with the shops constructed thereupon to the vendees namely Pardeep Kumar and Sandeep Kumar. At the time of issuance of notice under Section 106 of the Act, neither the plaintiffs were owners of the property in question nor were in possession. Plaintiffs themselves had mortgaged the entire property including the shop in question with the State Bank of Patiala before alienating some part to the vendees Pardeep Kumar and Sandeep Kumar. Application was moved by the plaintiffs to the bank for taking necessary permission and after due communication between the bank and the plaintiffs, permission was accorded by the bank and the property in question was released. The bank record and communication thereof show that the tenanted shop was also involved in the bank proceedings. A rent note was ANITA DEVI also executed in favour of Pardeep Kumar and Sandeep Kumar by 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 8 the defendant and, therefore, the relationship of landlord and tenant between the plaintiffs and the defendant stood demolished by virtue of creation of new relationship after the sale deeds Ex.D-1 and Ex.D-
2. The correspondence between the bank and the plaintiffs is apparent in view of testimony of DW-3 Balbir Singh, who is a clerk from State Bank of Patiala and he brought the relevant record of loan file, which shows that the loan was taken from the bank in the year 1997 and the firm had taken a loan by mortgaging 32 shops comprised in khasra No. 39//3/2, 8//2/1 and 4//1/1 along with the vacant land. Plaintiff Som Nath is shown to have moved an application Ex.DW-3/A to the bank on 17.4.2002 with a prayer to release 32 shops along with 20 marlas of land, where the shops have been constructed. Later on Ex.DW-3/B was accordingly sent by the bank to the Assistant General Manager, Panchkula for approval, highlighting that the plaintiffs had entered into an agreement of sale in respect of 32 shops, measuring 10' x 30" i.e. 300 square feet, for a sum of ` 32 lacs and had requested to the bank for the release of the land measuring 20 marlas out of the property, so mortgaged with the bank.
The sale deeds Ex.D-1 and D-2 are undisputed documents. Sale deed Ex.D-1 was executed by the plaintiffs, vide which 10 marlas of land, being 10/34 share of the total land measuring 1 kanal 14 marla, comprised in Khatuni No.279/ 348 khasra No. 39//3/2, 8//2/1 and 4//1/1, was sold in favour of Pardeep Kumar and this property was mortgaged with State Bank of Patiala ANITA DEVI earlier. The possession was handed over to the vendees at the spot 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 9 and this sale deed was executed on 6.5.2002. Similarly, in another sale deed Ex.D-2, the plaintiffs sold 10 marlas in the same khasra numbers with dimension of East (Mustafabad Road) and West (shops and houses of the vendors). Possession of the property is also shown to have been delivered as per recital in the sale deed Ex.D-2. Recital of this sale deed Ex.D-2 shows the existence of shops as well. Therefore, in view of this apparent and categoric evidence on record, the plaintiffs cannot deny that the shop in question was not the subject matter of the shops shown in the sale deeds.
The plaintiffs have not adduced any evidence in respect of their contention and it is the defendant's evidence, which is being sought to be nullified without there being any evidence in affirmation by the plaintiffs themselves. Plaintiffs are to stand on the strength of their own case. What to talk of weakness in the case of the defendant, even the defendant evidence is proved to be sound and trustworthy. Yet another document, which clinches the issue in addition to aforesaid sale deeds Ex.D-1 and D-2, is a rent note, which is Ex.D-3 on record. This rent note has been executed between the defendant and vendee Pardeep Kumar. Except the self serving statement of the plaintiffs, there is no denial of overwhelming evidence of the defendant on the issue of factum of sale in respect of shop in question also. The receipts Ex.C-4 to C-58, if read, in conjunction with Ex.D-3 (rent note), it squarely demolishes the case of the plaintiffs and it shows that the rent was being regularly paid by ANITA DEVI the tenant in favour of new owners i.e. vendees under the plaintiffs. 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 10
The factum of mortgage was duly recorded in the revenue record in the jamabandi and khasra girdawari for the year 2003-04, which are Ex.D-59 and Ex.D-62 on record. The bank record in the context of redemption of mortgage also proves the factum of agreement to sell in favour of Pardeep Kumar and Sandeep Kumar. The bank documents viz. Ex.DW-3/A to Ex.DW-3/H concerning the communication between the plaintiffs and the bank. Ex.DW-3/A, is a letter written by the plaintiffs to the bank having reference of the shops for seeking release; letter Ex.DW-3/B is the approval granted by the bank for the release of the land; Ex.DW-3/D is the letter issued by the bank to the plaintiffs in respect of their liability in accordance with left out property with the bank; Ex.DW-3/H is the letter acknowledging their liability against the charges of the bank and finally Ex.DW-3/H is the letter showing signatures of the plaintiffs being one of the partners and Mohinder Pal and Hari Chand as guarantors therein. If all these aforesaid documents are taken together in the context of statement made by the plaintiffs, then it would come out that the plaintiffs have admitted that the land in total (wherein the shops are constructed plus vacant land) is 34 marlas and the same is bounded on East by road, North by street, South by street and one 'khera' and the plaintiffs have mortgaged the entire property with the bank and have sold the vacant land for construction of rooms thereupon, vide two sale deeds Ex.D-1 and D-2 in favour of Pardeep Kumar and the factum of filing an application to the bank for permission to release the land has also come to the fore. The factum ANITA DEVI of sale deed having been executed, has also been admitted. There 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 11 are total 16 shops under the possession of the tenants and all the shops are abutting the road and factum of filing the criminal case against Pardeep Kumar and Sandeep Kumar has also been admitted by the plaintiffs. The cancellation of that criminal case and other proceedings are also admitted.
The sale deeds are apparently in respect of land bearing khasra No. 39//3/2, 8//2/1 and 4//1/1. This land was also subject matter of inter-pleader suit, wherein, the plaintiffs had admitted the construction of the shops. From this overwhelming evidence on record, the factum of sale deeds having been executed in favour of Pardeep Kumar and Sandeep Kumar including the shop in question stands proved. Out of total 32 shops on Mustafabad Thana Chhappar Road, front row consists of 16 shops, lying towards Eastern side of the Mustafabad Chhappar road and 16 shops were in the back of these shops facing towards vacant space. Two passages towards North and South are in existence, providing access to the shops on the backside. The bank transaction in the context of release of the mortgaged property after making payment to the tune of ` 32 lacs in the bank for redemption of the land alongwith the shops is conclusively proved by the bank authorities by way of adducing evidence of first instalment paid on 17.4.2002 then on 23.4.2002 and, thereafter, on 24.4.2002, vide receipts Ex.DW-3/E, DW-3/F and DW-3/G respectively. 20 marla of land is having construction thereon i.e. 32 shops out of 1 kanal 14 marla of land, which was mortgaged with the bank. The plaintiffs have not disputed ANITA DEVI the signatures in the bank record as well as on the papers of 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 12 redemption of mortgage, therefore, it cannot be disputed that the plaintiffs entered into an agreement to sell in respect of 20 marlas of land in respect of construction of shops thereupon for a total sale consideration of ` 32 lacs in favour of Pardeep Kumar and Sandeep Kumar. The recital is clear inasmuch as that the existence of the shops is proved therein and total amount of ` 32 lacs was deposited by the plaintiffs and the bank, ultimately, released 20 marlas of land having construction of 32 shops on 24.4.2002 and accordingly, sale deeds Ex.D-1 and Ex.D-2 were executed on 6.5.2002 and 7.5.2002 respectively, after getting the land and shops redeemed from the bank.
Further, it is proved that the description and nomenclature of the boundaries of the shop in question is in conformity with the location as it falls on the Mustafabad Road in the Eastern side and the vacant land of Pardeep Kumar and Sandeep Kumar in the Western side, which also coincides with the site plan shown by the bank in their letter Ex.DW-3/C. The bald statement of denial by the plaintiffs does not advance their case on any front. The location of the land bearing khasra Nos. 39//3/2, 8//2/1 and 4//1/1 existing in the Eastern side of Mustafabad Road is conclusively proved with the revenue Aks shajra on record and the admission made by the plaintiffs themselves in the inter-pleader suit leaves no corner of doubt that the location of the land is proved as depicted above. Therefore, it is conclusively proved that 20 marlas of land having 16 shops of the plaintiffs, comprised in aforesaid khasra numbers, were ANITA DEVI duly redeemed by the plaintiffs against a sum of ` 32 lacs and the 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 13 shop in question is also one of the properties included therein.
The plea of the plaintiffs that the sale deeds Ex.D-1 and D-2 are the result of forgery, has not been supplemented by any cogent evidence. Rather the police investigated the case and found it to be false and accordingly, proceedings under Section 182 IPC have been initiated against the plaintiffs themselves. It has also come on record that the property, which was purchased by Pardeep Kumar and Sandeep Kumar have again been transferred back vide sale deeds Ex.D-58 and D-59 under a compromise. This fact, itself is sufficient to prove the execution of sale deed Ex.D-1 and D-2, which took place prior to filing of the suit and it demolishes the relationship of landlord and tenant between the parties.
Learned counsel for the appellants relies upon un- reported judgment of Civil Revision No.5383 of 1999, decided on 30.8.2012 titled as National Flour Mills Pvt. Ltd. vs. Ram Sarup to contend that once a tenancy has been created, the same can only be terminated by way of legal mechanism either by way of lawful ejectment or by way of relinquishment by the tenant. In the afore- cited case, controversy was in respect of lessor having 20 years of lease and, thereafter, he inducted the sub-tenant. The sub-tenant having purchased some part of the property, improved his status as that of co-sharer in the total land. The tenancy in respect of which the sub tenant became co-owner of the property by virtue of subsequent purchase, was claimed to be an extinguishment of the status as a tenant. Since 1/3rd share of the land was purchased by the tenant ANITA DEVI from the owner, therefore, he sought partition of the land between co- 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 14 owners and on such partition, status of the tenant became as that of co-owner and the status was found to have been extinguished. The issue involved in that case is that the tenant bought the fractional share in the property and attained higher status as that of a landlord himself. The controversy arose whether the tenant after having acquired the fractional share could defy the jural relationship of landlord and tenant and the Court in that context held that Section 116 of the Evidence Act bars the tenant from denying the title of the landlord and the tenant cannot be permitted to deny the status of the landlord. The landlord may not be the owner of the property and the ownership in land is not a sine qua non for creating a tenancy. The tenant, without surrendering possession of the property to his own landlord, will be estopped from contending by operation of Section 116 of the Evidence Act that he had acquired improved right and therefore, he cannot be evicted. In that context it was held in the aforesaid case that the duty of the tenant is to surrender possession and, thereafter, search for his remedies to get the share partitioned on the basis of his plea of ownership. The facts of the aforesaid case are not applicable in the context of the present subject matter.
It is a settled principle that no tenant of immovable property, or a person claiming through him, shall be permitted to deny the title of the landlord during the continuation of the tenancy and he shall not be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel so long it binds the tenant, excludes the tenant from raising ANITA DEVI a plea, disputing the title of his landlord at the commencement of 2014.11.19 11:04 I attest to the accuracy and integrity of this document Chandigarh RSA No. 1641 of 2011 15 the tenancy. Though a situation is somewhat different in a case of bonafide requirement in which owner/ landlord can maintain the suit for eviction on the ground of bona fide requirement after pleading and proving the ownership . The tenant can ask the landlord to prove his title. In that strict sense, it does not amount to the denial of the title. In the given case since the owner is somebody else, the tenant is justified in demanding proof of plaintiff being owner. Whether such denial can be taken to be a denial of title or it is the requirement in a given case.
On the other hand, learned counsel for the respondents, has cited 1990 (1) RCR Rent 645 titled Subhash Chandra vs. Mohd. Sharif to submit that the tenant is not forbidden to plead subsequently that landlord has lost his title. The tenant can challenge the subsequent transferee on the ground that he did not receive the good title from the original landlord.
Looking to the facts, as involved in the present case, it is apparent that by virtue of sale deeds having been executed in favour of vendees, vide Ex.D-1 and Ex.D-2, the plaintiffs lost title to the suit property as well as the status being that of landlord, before filing of the suit and both the Courts have rightly decided the case, thereby dismissing the suit of the plaintiffs concurrently. Nothing has been shown with reference to record that the findings recorded by the Courts below are suffered with any perversity or are the result of misreading of evidence in any manner. Therefore, finding no merit in the appeals, the same are dismissed.
(RAJ MOHAN SINGH)
November 13, 2014 JUDGE
anita
ANITA DEVI
2014.11.19 11:04
I attest to the accuracy and
integrity of this document
Chandigarh