Punjab-Haryana High Court
Gian Singh vs Kartar Singh And Others on 19 March, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
RSA No.1490 of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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RSA No.1490 of 2014 (O&M)
Date of Decision:19.03.2014
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Gian Singh
. . . .Appellant
Versus
Kartar Singh and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Premjit Kalia, Advocate,
for the appellant.
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RAKESH KUMAR JAIN, J.
The defendant is in second appeal.
The Plaintiffs filed suit for possession by way of ejectment of the defendant from the shop forming part of Haveli Phula Singh situated at village Verpal, Tehsil and District Amritsar and also for recovery of arrears of rent to the tune of `2400/- per month along with interest @ 18% per annum.
The case of the plaintiffs is that they are the owners of the demised premises in which defendant has been inducted as tenant @ `300/- per month to run a ration depot since October, 1993. The tenancy was oral accompanied by delivery of possession. They terminated the tenancy by serving upon a notice under Section 106 of the Transfer of Property Act, 1882 [for short 'the Act'] on 9.2.1994 but as the RSA No.1490 of 2014 -2- defendant failed to handover the vacant possession and pay arrears of rent, the present suit has been filed.
The stand of the defendant is that there is no relationship of landlord and tenant between the parties and no legal and valid notice was under Section 106 of the Act was ever served. It was also alleged that the property in dispute is in the ownership of Gurudwara Parbhandhak Committee, Verpal headed by Jagir Singh as its President.
The shop in dispute along with other shops is in ownership of the said committee which was rented out to the defendant @ `150/- per month and he is paying rent regularly to the committee. It is alleged that relationship of landlord and tenant is between Gurudwara Parbhandhak Committee, Verpal and defendant and plaintiffs have no concern.
Plaintiffs filed replication and on the pleadings of the parties, following issues were framed on 27.11.1995: -
"1. Whether plaintiff is entitled for possession by ejectment of defendant from the shop in dispute? OPP
2. Whether suit is not maintainable?
OPD
3. Whether plaintiff has no locus standi to file present suit? OPD
4. Whether plaintiffs are estopped by their own act and conduct?
OPD RSA No.1490 of 2014 -3-
5. Whether there does not exist relationship of landlord and tenant between the parites? OPD
6. Whether legal and valid notice under Section 106 of the Transfer of Property Act was served? OPD
7. Whether suit is bad for non-joinder of necessary parties? OPD
8. Relief."
The plaintiffs examined Arvinder Singh (PW1), Buta Singh (PW2), Kartar Singh (PW3), Jagjit Singh, Record Clerk, Judicial Record Room (PW4) and Niranjan Singh (PW5) whereas defendant examined Joginder Singh (DW1), Avtar Singh (DW2), himself as (DW3) and Joginder (DW4). DW3 and DW4 were wrongly repeated. The plaintiffs also tendered documents in rebuttal evidence.
Both the Courts below on the appreciation of evidence decreed the suit of the plaintiffs.
Learned counsel for the appellant has submitted that the shop in dispute was owned by Gurudwara Parbhandhak Committee, Verpal, who had inducted him as a tenant, therefore, he had no relationship of landlord and tenant with the plaintiffs.
I have heard learned counsel for the appellant and pursued the record.
RSA No.1490 of 2014 -4-The detailed finding has been recorded, after appreciation of evidence, by the lower Appellate Court, which requires reference and reads as under: -
"I have heard learned counsel for the parties besides going through the record and I find that there is absolutely no merit in the appeal. The plaintiffs have successfully proved their title to the property in question by bringing on record enough cogent and convincing evidence. Ex.P6 is the certified copy of the order passed in civil suit No.148 of 1994 titled "Kartar Singh etc. versus Buta Singh" decided on 11.11.1994 by the court of Shri K.C. Garg, the then Sub Judge IInd Class, Amritsar, a suit for possession by ejectment of defendant from the shop forming part of Haveli Phula Singh, situated at village Verpal, Tehsil and District Amritsar and suit for recovery of arrears of rent to the tune of `2,400/- along with interest at the rate of 18% p.a. In terms of this order, the suit of the plaintiffs was decreed. The arrears of rent for three months from November, 1993 to December, 1993 @ `500/- per month, amounting to `900/- were ordered to be paid in instalments. That point out towards the rate of rent of the shop nearby to be `300/- per month in the year 1993, and neighbouring shopkeeper Buta Singh son of Shri Baj Singh to be tenant under Kartar Singh and others, who, are present plaintiffs. Ex.P7 is the copy of decree sheet passed in that case. Ex.P10 is the copy of judgment passed by the Hon'ble High Court in regular second appeal filed by Nirmal Singh, since dead, RSA No.1490 of 2014 -5- through his LRs against Kartar Singh, since dead, through his LRs, challenging judgment passed by Smt. Bakshish Kaur, the then Additional District Judge, Amritsar, dated 02.03.1990, reversing judgment of Shri Dhian Singh, PCS, the then Additional Senior Sub Judge, Amritsar dated 14.10.1987 and granting a decree for declaration in favour of plaintiff (Kartar Singh) that he is co-sharer to the extent of ½ share subject to the right of partition with the orders that he is not entitled to decree for joint possession. Ex.P5 is the copy of judgment passed by Smt. Bakshish Kaur, the then Additional District Judge, Amritsar, in Civil Appeal No.147 of 1987 titled "Kartar Singh versus Pal Singh and others". Vide this judgment, plaintiff (Kartar Singh) was found to be in possession as co-sharer.
Ex.P11 is the copy of judgment passed by Shri Rajesh Bhagat, Civil Judge (Junior Division), Amritsar on 30.05.2011 vide which suit filed by plaintiff Kartar Singh (since dead) through his LRs against Jarnail Singh, Mohinder Singh and Jagir Singh, seeking permanent injunction restraining the defendants from making any construction on the roof of five shops shown as red in the site plan mark ABCD situated in bazaar village Verpal, Patti Dhirde Ke Tehsil and district Amritsar was decree, finding the title of the plaintiff on those shops which includes the shop in question. Ex.P12 is the copy of decree sheet passed in that suit. Ex.P13 is the copy of judgment passed in civil suit No.402 of 1994 decided on 31.03.2004 filed by plaintiff Gurdwara RSA No.1490 of 2014 -6- Parbandhk Committee, Verpal, through its Vice President Shri Shamsher Singh, against Buta Singh, Kartar Singh, Ranbir Singh, Kawaljit Singh and others, a suit for possession by way of ejectment of defendants from the shop for the reason that plaintiff had let out the shop to defendant at the rate of `150/- per month vide resolution on 24.05.1984. However, its tenancy had been cancelled. Therefore, plaintiff was entitled to get the possession. In that suit only defendant No.1, Buta Singh had appeared and offered a contest stating that plaintiff had no concern with the shop in question, and he had taken it on rent from Kartar Singh son Shri Chanan Singh. After the contest the suit of the plaintiff was dismissed holding that plaintiff committee had failed to prove any right or title on the shop in question. It was further observed in para No.24 of the judgment that matter has already been adjudicated that Kartar Singh and others are owners of the shop in question. Ex.P14 is the copy of the decree sheet in that suit. Ex.P15 is the copy of judgment passed by Shri Satvinder Singh, the then Additional District Judge, Amritsar, in Civil Appeal No.17 of 2004 decided on 25.04.2005 vide which he had dismissed the appeal filed by Gurdwara Prabandhak Committee against Buta Singh, Kartar Singh and others, confirming the judgement passed by Shri Ram Kumar Singla, the then Civil Judge (Junior Division), Amritsar. Ex.PX is the copy of judgment passed by Shri Ajaib Singh, the then Civil Judge (Junior Division), Amritsar, in civil suit RSA No.1490 of 2014 -7- No.148 of 02.05.1994 decided on 10.11.2007 filed by Kartar Singh and others, against Gian Singh which was a suit for possession by ejectment of defendant from shop forming part of Haveli Phula Singh, situated at village Varpal, Tehsil and District Amritsar and suit for recovery of arrears of rent to the tune of `4800/- along with interest. In that suit also, both the parties had taken almost the same pleas as taken by them in the present suit. Issues on merits were framed and after elaborate discussion of evidence, facts and circumstances of the case, the trial court came to the conclusion that there is relationship of landlord and tenant in between the plaintiffs and defendant and tenancy of defendant stood terminated, as a result of service of legal and valid notice dated 09.02.1994 under section 106 of Transfer of Property Act by plaintiffs upon the defendant, and after termination of this tenancy, his possession was unauthorized. He was also found to be in arrears of rent at the rate of `400/- per month and as a result, the suit of the plaintiffs was decreed for possession of the shop by way of ejectment of defendant as well as for recovery of arrears of rent to the tune of `4800/- along with interest. Ex.P2 is the copy of judgment passed by Dr. Rakesh Kumar, the then Additional District Judge (Ad hoc)/fast track court, Amritsar in civil appeal No.146 of 2007/2010 decided on 17.10.2011, vide which the appeal filed against the judgment and decree of Shri Ajaib Singh, the then Civil Judge (Junior RSA No.1490 of 2014 -8- Division), Amritsar, has been dismissed. Thus, it becomes abundantly clear that relationship of landlord and tenant happened to be there between the parties as regards the shop in dispute. Since the shop is not located in an urban area, the tenancy thereof could be terminated by service of notice under section 106 of Transfer of Property Act by the landlord by conveying the intention to terminate the tenancy. Copy of such notice has been proved in evidence by the plaintiff as Ex.P2 and postal receipt as Ex.P3. Ex.P2 is the notice dated 09.02.1994. It clearly conveys the intention to terminate the tenancy by plaintiffs, and the defendant has been called upon to quit, vacate and deliver the vacant possession of the shop within fifteen days of receipt of such notice and to pay arrears of rent. The presumption under section 114 of Indian Evidence Act is that it was duly received by defendant, addressee. The suit was filed on 03.05.1994 much after a period of 15 days of sending the notice. Therefore, the trail court was justified in deciding issues No.1,3 and 6 in favour of plaintiffs against defendant holding that plaintiff is entitled for possession by ejectment of defendant from the shop in dispute and that plaintiffs have got locus standi to bring the suit and a legal and valid notice under section 106 of transfer of property act has been served by the plaintiffs under the defendant thereby terminating the tenancy. Findings of trial court on issues No.1,3 & 6 are correct and are affirmed."
RSA No.1490 of 2014 -9-I have not found any error in the aforesaid finding of fact recorded by the Appellate Court and in view thereof, no question of law much less substantial is found involved in the present appeal for the purpose of interference. Hence, the present appeal is hereby dismissed.
(RAKESH KUMAR JAIN) 19.03.2014 JUDGE Vivek Pahwa Vivek 2014.03.25 11:14 I attest to the accuracy and integrity of this document