Himachal Pradesh High Court
Rsa No. 288/2 vs Khem Raj (Since Deceased) Through Lrs on 15 September, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA Nos.288 of 2001 alongwith RSA .
Nos.340 of 2007 and 59 of 2009
Reserved on: 08.09.2015
Date of Decision: 15.09.2015
1. RSA No. 288/2001
of
Kartar Chand ..Appellant
Versus
Khem Raj (since deceased) through LRs rt ..Respondent
2. RSA No.340/2007 Kartar Chand ..Appellant Versus Sanjay Kumar (since deceased) through LRs ..Respondents
3. RSA No.59 of 2009 Kartar Chand ..Appellant Versus Sanjay Kumar (since deceased) through LRs ..Respondents Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes. For the Appellant: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate.
For the Respondents: Mr. Bhupinder Gupta, Senior
Advocate with Ms. Charu Gupta,
Advocate.
____________________________________________ Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:55:39 :::HCHP ...2...
Dharam Chand Chaudhary, Judge .
This judgment shall dispose of the present appeal and also RSA No.340/2007 and 59/2009, involving common questions of law and facts for adjudication and pertaining to the same subject matter of dispute, i.e the land belonging to of respondents in this appeal, defendants in the trial Court.
2. The subject matter of dispute in all the three appeals, are two Dharas (wooden structures) in existence rt over the land measuring 0-01-15 hectares, entered in Khata No.27/5, bearing Khasra No.2597/402, situate at village Sangla, Tehsil Sangla, District Kinnaur, Himachal Pradesh.
Appellant in this appeal filed Civil Suit No.10-1 of 1997 against the respondents for specific performance of agreement dated 3.12.1995. The respondents in the present appeal are admittedly the owners of the suit land. A portion thereof was allegedly rented out by sole defendant Khem Raj (since dead) to appellant-plaintiff. He raised construction of two Dharas over that portion of the suit land rented out by said Shri Khem Raj to him. Later on, said Shri Khem Raj proposed to construct a pucca building over the suit land on demolition of one of the Dharas constructed by the appellant-
plaintiff. As per mutual understanding, in the another Dhara ::: Downloaded on - 15/04/2017 18:55:39 :::HCHP ...3...
the appellant-plaintiff had to run his business and as and .
when the construction of the RCC building is complete, to rent out two shops at monthly rent of Rs.7000/- per shop to the appellant-plaintiff in the said building. It was agreed upon that on the failure of said Shri Khem Raj, the deceased of defendant, to rent out two shops, the appellant-plaintiff entitled to claim damages at the rate of Rs.5000/- per month from him from the date of refusal to induct him as tenant in rt two shops. An agreement Ext.PW1/A to this effect came to be executed between the parties on 3.12.1995. The deceased defendant allegedly refused to induct the appellant-
plaintiff as tenant in two shops in the newly constructed building on the completion of construction work, hence suit for the decree of specific performance of the agreement and in the alternative for recovery of damages at the rate of Rs.5000/- per month w.e.f. January, 1997 onwards, firstly for a period of five years and thereafter till possession of two shops in the newly constructed building is handed over to the appellant-plaintiff.
3. Deceased defendant contested the suit and denied the execution of agreement Ext.PW1/A on the grounds that the same is result of fraud, coercion and undue influence and ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...4...
without his consent. Also that the suit land is joint property .
with his brothers S/Shri Vidya Singh and Sanjay Kumar and as they were not impleaded as party in the suit, hence the suit was said to be bad for non-joinder of necessary parties.
While admitting that the appellant-plaintiff was inducted as a of tenant in two Dharas, it is submitted that the same were constructed by the defendant and his brothers and he was tenant of all of them.
rt The tenancy was stated to be determined by issuing notice under Section 106 of the Transfer of Property Act to the appellant-plaintiff and a suit for his eviction was also filed. It is also pleaded in the written statement that the deceased defendant Khem Raj was not constructing RCC building over the suit land alone, but the same was being raised by all the co-sharers.
4. Learned trial Court framed the following issues in the suit:
1. Whether defendant No.1 is liable to specifically perform the terms of the agreement dated 3.12.1995 and whether defendant is liable to restore possession of two shops situated over Khasra No.2597/402 at village Sangla to the plaintiff on annual rent of Rs.7,000/- per shop for a period of five years, as alleged?
OPP
2. Whether plaintiff is entitled in the alternative for penalty/damage at the rate ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...5...
of Rs.5,000/- per month, per shop w.e.f. January, 1997 onwards, as alleged? OPP.
.
3. Whether suit is not maintainable in the present form? OPD
4. Whether this suit is bad for non-joinder of necessary parties? OPD.
5. Whether defendant is not competent to enter into any agreement exclusively in this of disputed property, as alleged? OPD.
6. Whether plaintiff is estopped from filing the suit on account of his act and conduct, as alleged? OPD.
rt
7. Relief.
5. After holding full trial, the suit was decreed for specific performance of the agreement with a direction to the respondents-defendants to hand over the possession of two shops in the newly constructed building on monthly rent of Rs.7000/- per shop for a period of five years, failing which damages at the rate of Rs.5000/- per month w.e.f. January, 1997 for a period of five years or till possession of two shops is restored to the appellant-plaintiff.
6. In appeal, learned District Judge has, however, reversed the judgment and decree passed by learned trial Court and dismissed the suit, hence, the present appeal with a prayer to set aside and quash the impugned judgment and decree being legally and factually unsustainable.
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7. This appeal has been admitted on the following .
substantial questions of law:
1. Whether the first Appellate Court was wrong in concluding that the execution of agreement Ext.PW1/A was a result of fraud though the particulars of fraud has neither been pleaded nor proved by the opposing side?
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2. Whether the findings of the first Appellate court on the alleged violation of the provisions of H.P. Transfer of Land (Regulations) Act, 1968, are wrong in the rt absence of any issue being pleaded or settled by the Courts below and as such the said findings have caused miscarriage of justice to the appellant?
3. Whether the finding recorded by the first Appellate Court is vitiated on account of misreading and misconstruction of pleadings led by the parties?2. RSA No.340/2007
8. This appeal is directed against the judgment and decree dated 18.4.2007, passed by learned District Judge, Kinnaur at Rampur in Civil Appeal No.44 of 2004. The appellant, hereinafter is again Shri Kartar Chand, appellant in RSA No.288 of 2001, supra. As a matter of fact, he filed Civil Suit No.55-1 of 2003 in the Court of Civil Judge (Senior Division), Kinnaur, at Recong Peo, for a decree of permanent prohibitory and mandatory injunction, seeking thereby a direction to the respondents (defendants in the trial Court) ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...7...
not to evict him from the Dharas situated over the suit land .
same as in Civil Suit No.10-1 of 1997 and to restrain them from roofing the building allegedly constructed by respondent-defendant No.4, in connivance with respondents-
defendants No.1 to 3 with GI sheets vertically and to roof the of same horizontally by laying slab so that during winter season snow does not collect thereon and fall on the Dharas in his possession. He has also pressed into service the same rt agreement, i.e. dated 3.12.1995 having been executed by Khem Raj defendant No.1 (since dead), agreeing thereby to put him in possession of two shops in the newly constructed building over the suit land by demolition of one of the Dharas, he had constructed from his own funds, after the suit land was rented out to him by said Khem Raj. As per his further case new RCC building though was constructed, however he has not been given possession of two shops as agreed upon and appeal qua enforcement of agreement (RSA No.288/2001) is pending in the High Court.
9. It is seen from the facts of this case that the property in dispute is the same as in RSA No.288/2001. The support has also been drawn by the appellant-plaintiff from ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...8...
that very agreement, the execution whereof is in dispute in .
the above appeal. The parties are also the same.
10. On the other hand, defence of the respondents-
defendants is that the tenancy in favour of the appellant-
plaintiff stands determined under Section 106 of the Transfer of of Property Act and as such they are legally entitled to evict him from the wooden Dharas in his possession under the due process of law. Also that a separate suit filed for his eviction rt is pending disposal in the trial Court. According to respondents-defendants, they have not raised any construction over the suit land and rather it is the wife of defendant No.4, who has constructed a building over a portion of the suit land, alienated in her favour by way of oral sale. The roof of that building is already thatched with GI sheets, however, not vertically, as it is not possible to lay vertical roof. The allegation qua accumulation of snow on the roof of the building so constructed and thereby likelihood to cause damage to the life and property is denied being wrong.
In the suit so filed, the following issues were framed:
1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...9...
2. Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for?
.
OPP.
3. Whether the plaintiff has no cause of action to file the present suit? OPD
4. Whether the plaintiff is estopped from filing the present suit by his act and conduct?
OPD.
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5. Whether the plaintiff has no locus standi to file the present suit? OPD
6. Whether the suit is bad for min-joinder and rt non-joinder of parties, as alleged? OPD.
7. Relief.
11. Learned trial Court after holding full trial, dismissed the suit and Civil Appeal No.44 of 2005, filed against the judgment and decree passed by learned trial Court also met the same fate, hence the present appeal for quashing the judgment and decree so passed by learned lower appellate Court.
12. This appeal has been admitted on the following substantial question of law:
"Whether appellant being a tenant under the defendants No.1 to 3 is entitled to relief of injunction against defendants so that he was not dispossessed from the tenanted premises except through due process of law?"::: Downloaded on - 15/04/2017 18:55:40 :::HCHP
...10...
3. RSA No.59 of 2009.
13. This is third appeal, having arisen from the judgment and decree dated 20.4.2007, passed by learned District Judge, Kinnaur in Civil Appeal No. 13 of 2004. As a matter of fact, Shri Khem Raj (since dead), the predecessor-
of in-interest of the respondents, herein had filed a Civil Suit No.21-1 of 2001 against the appellant-defendant in the trial rt Court for his eviction from the wooden Dharas, subject matter of dispute in the present lis. It is thus seen that in this case also, the suit land is the same and the Dharas are also the same, the subject matter of dispute in aforesaid two appeals.
The suit herein was filed by deceased plaintiff Khem Raj for eviction of the appellant herein from the Dhara and also for recovery of Rs.9750/- towards arrears of rent from April, 1997 to 31.7.2001 at the rate of Rs.250/- per month. The tenancy was determined on and w.e.f. 31.7.2001 by serving the appellant-defendant with 15 days notice, issued on 3.7.2001 under Section 106 of the Transfer of Property Act.
He, however, failed to hand over the vacant possession of the Dhara even after the receipt of the notice. His possession has been claimed to be unauthorized, hence the suit was filed for his eviction from the Dhara and a sum of Rs.950/- per month ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...11...
was claimed towards use and occupation charges w.e.f.
.
1.8.2001, the date when tenancy stood determined till 21.8.2001, when the suit was instituted.
14. The appellant-defendant had contested the suit on those very grounds as in Civil Suits No.10-1 of 1997 and 55-1 of of 2003, he filed for specific performance of the agreement dated 3.12.1995 and permanent prohibitory as well as mandatory injunction respectively, as according to him rt deceased plaintiff Khem Raj had rented out the suit land to him and he thereafter raised construction of Dharas thereon.
It is denied that he is in arrears of rent as according to appellant-defendant, the rent was being paid regularly to the plaintiff upto March, 1997, however, thereafter from April, 1997, he refused to accept the same. In the suit, following issues were framed:
1. Whether the plaintiff is entitled to decree of eviction, as alleged? OPP.
2. Whether the plaintiff is entitled to arrears of rent and charges of unauthorized use and occupation of demised premises, as alleged?
OPP.
3. Whether the suit is not maintainable? OPD
4. Whether the suit is bad for non-joinder of necessary parties? OPD.
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5. Whether the plaintiff has no locus-standi to file present suit? OPD.
.
6. Whether the suit is within limitation? OPD
7. Whether this suit is liable to be dismissed for want of legal and proper notice? OPD
8. Whether no proper court fee has been affixed for the purposes of jurisdiction and of valuation of suit? OPD.
9. Whether plaintiff has no cause of action? OPD
10. Whether the plaintiff is estopped from filing rt the present suit by his act and conduct?
OPD.
11. Relief."
15. After taking on record the evidence, as produced by the parties on both sides, only a decree for recovery of Rs.9750/- towards arrears of rent w.e.f. August, 1998 to July, 2001, was passed by learned trial Court and the relief qua eviction of appellant-defendant from the Dhara was declined vide judgment and decree dated 20.11.2003.
16. The judgment and decree passed by learned trial Court was assailed in the Court of learned District Judge, Kinnaur at Rampur, by filing Civil Appeal No.13 of 2004.
Learned lower Appellate Court has allowed the appeal and decreed the suit of the plaintiff for vacant possession of the suit land alongwith arrears of rent to the tune of Rs.9750/-
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and use and occupation charges amounting to Rs.17,000/-.
.
Meaning thereby that the suit was decreed, as a whole against the appellant-defendant.
17. The appellant-defendant has challenged the judgment and decree passed by learned lower appellate Court of on several grounds before this Court in the present appeal.
18. This appeal has been admitted on the following substantial questions of law:
rt
1. Whether for want of legal and valid notice under Section 106 of the Transfer of Property Act, decree for possession could not be passed by the learned District Judge because tenancy was claimed to have been terminated w.e.f. 31.7.2001, whereas 15 days period was required to be given?
2. Whether agreement Ext. DW-1/A has wrongly been ignored from consideration by learned District Judge below, though the same was relied upon by the learned trial Court and thus, jurisdiction has not been exercised by learned district Judge lawfully?
3. Whether the Ext.DW1/A, agreement, has been set up by the appellant and the same has been duly proved by DW-1 Kartar chand and DW-2 Sh. Harish Chander and therefore, same cannot be lawfully ignored from consideration as has been done by the learned District Judge below?
4. Whether in view of Ext. DW-1/A the duration of tenancy was for 5 years and therefore, plaintiff could not claim eviction keeping in view the agreement Ext.DW1/A whereby plaintiff had agreed to give 2 RCC ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...14...
shops on rent to the plaintiff and also provisions of Section 53 A of Transfer of .
5. Whether in view of agreement Ext.DW1/A appellant is entitled to retain possession and he cannot be dispossessed from the property in suit?"
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19. When this appeal came to be listed for final hearing, keeping in view the subject matter of dispute common in the remaining two appeals, i.e. 340/2007 and rt 59/2009, aforesaid, the same were also ordered to be tagged therewith for hearing.
20. Before coming to merits of the case, it is worth while to mention here that in an application registered as CMP No.334/2008 in RSA No.340 of 2007 for appointment of guardian ad litem to look after the interest of Shri Vidya Singh, respondent No.2, allegedly minor, learned Civil Judge (Senior Division), was directed to ascertain the fact as to whether respondent No.2 is in a fit mental condition to look after his affairs or not. Also that if the said respondent is suffering from mental ailment, since when and the extent thereof. Learned Civil Judge (Senior Division) had conducted inquiry and submitted the report which came to be considered on 14.5.2009, when the following order came to be passed:::: Downloaded on - 15/04/2017 18:55:40 :::HCHP
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"RSA 340 of 2007 .
Pursuant to the order passed by this Court on 2nd March, 2009, report of the Civil Judge (Senior Division), Reckongpeo has been received. The learned Judge has personally examined respondent No.2 Vidya Singh and found that he is unable to look after his of interests. He has reported that according to the information imparted to him by those looking after Vidya Singh, with whom he rt interacted, the respondent after failing in matriculation examination in the year 1987- 88, lost his mental balance and at present he is not in a position to look after his affairs.
From the record of the trial Court and appellate Court, I find that respondent No.2 Vidya Singh has been represented in his individual capacity by learned counsel. Surely if the report submitted by the leaned Civil Judge (Senior Division) is correct and I have no reason to doubt it, the very maintainability of the suit would be doubtful because the basic question for determination is as to how and in what capacity did the counsel represent respondent vidya Singh n the suit when he was unable to look after his affairs and understand his welfare etc. This question will be determined and decided at the time of hearing of this appeal.::: Downloaded on - 15/04/2017 18:55:40 :::HCHP
...16...CMP No.334 of 2008
Let notice of this application be issued .
to the proposed guardian(s) ad litem as named in paragraph 3 of this application."
21. The application CMP No.334 of 2008, came to be disposed of vide order passed on 3.5.2012, appointing of thereby Smt. Raj Bhagti, the wife of respondent No.2 Vidya Singh, to act as his next friend.
22. rt Since the question of maintainability of the suit on account of minority of one of the defendants-respondents Vidya Singh aforesaid was left open to be decided at the time of hearing of the appeal, therefore, the following order came to be passed in this appeal on 5.5.2015:
"While going through the record, particularly that of connected appeal RSA No.340 of 2007, it transpired that respondent No.2 Vidya Singh being of unsound mind is minor. On a report made by Postman on the registered AD cover carrying notice to the said respondent it transpired that he is mentally unfit. This has led in issuance of a direction to Civil Judge (Senior Division), Kinnaur at Reckong Peo vide order dated 2nd March, 2009 passed in RSA No.340 of 2007 to ascertain the fact as to whether ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...17...
respondent No.2 is in a fit mental condition to look after his affairs or not. The report so .
sought was received and examined on the next date, i.e., 14th May, 2009 and on the basis thereof it has been noticed that after having failed in matriculation examination in the year 1987-88, the said respondent lost of mental balance. The observations of this Court in the order passed on that day read as follows:
rt "xxxx xxx xxx xxx From the record of the trial Court and appellant Court, I find that respondent No.2 Vidya Singh has been represented in his individual capacity by learned counsel. Surely if the report submitted by the learned Civil Judge (Senior Division) is correct and I have no reason to doubt it, the very maintainability of the suit would be doubtful because the basic question for determination is as to how and in what capacity did the counsel represent Vidya Singh in the suit when he was unable to look-after his affairs and understand his welfare etc. This question will be determined and decided at the time of hearing of this appeal."
Subsequently, vide order passed on 3rd May, 2012 in CMP No.334 of 2008 (RSA No.340 of 2007), after taking note of the report submitted by learned Civil Judge (Senior Division), one Smt. Raj Bhagti has been ordered to act as his next friend. To the contrary in the ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...18...
order passed on 22nd May, 2012 in connected appeal RSA No.59 of 2009 after noticing that .
respondent Vidya Singh has filed Execution Petition, he is to be treated to be of sound mind and deemed to have been served personally in the said appeal. Although in this appeal (RSA No.288 of 2001) Vidya Singh is not a party, yet of the fact remains that the property in dispute in this appeal is the same as in the connected appeals. All these questions need to be looked rt into during the course of arguments.
Learned Counsel on both sides seek time to go through the record. Allowed.
List on 23rd June, 2015.
Copy Dasti."
23. Learned counsel, on both sides, have addressed this Court on the question of maintainability of the suit in view of the minority of respondent-defendant Vidya Singh.
Analyzing the rival submissions and also the record, it is seen that said Shri Vidya Singh was not a party in Civil Suit No.10- 1 of 1997 filed by Shri Kartar Chand for specific performance of agreement dated 3.12.1995 nor in Civil Suit No.21-1 of 2001 filed by Khem Raj (since dead), brother of said Shri Vidya Singh for eviction of the appellant herein. Therefore, the minority of respondent-defendant Vidya Singh has ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...19...
nothing to do with the above said two Civil Suits. No doubt .
he was one of the defendants in Civil Suit No.55-1 of 2003 filed by Shri Kartar Chand, appellant against Khem Raj (since dead), Sanjay Kumar and Ravinder Singh for a decree of permanent prohibitory and mandatory injunction. However, of the suit and the appeal both have been dismissed by learned trial Court and learned lower Appellate and as such even in this suit also, no adverse order has been passed against said rt Shri Vidya Singh. So far as this appeal is concerned, Smt. Raj Bhagti, his wife has been appointed as his next friend to protect his interest. Therefore, there being no impact of the minority of respondent-defendant Vidya Singh in all the three suits, the same are maintainable.
24. While Shri G.D. Verma, learned Senior Advocate, appearing on behalf of the appellant contends that the execution of the agreement dated 3.12.1995 is duly proved and as such the suit for specific performance of the agreement filed by the appellant should have been decreed with direction to the respondents to put the appellant in possession of two shops in the newly constructed RCC building, as agreed upon and also that neither the tenancy of the plaintiff is determined in accordance with law nor he is ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...20...
liable to pay arrears towards rent or use and occupation .
charges in respect of the wooden Dhara in his possession, Mr. Bhupender Gupta, learned Senior Advocate, representing the respondents has urged that the agreement has never been executed by deceased Khem Raj and rather it is result of of fraud, coercion and mis-representation. Also that the execution of agreement is not at all proved, hence the same is not legally admissible.
rt Mr. Gupta has further urged that the tenancy of the appellant having already been determined in accordance with law, he has rightly been ordered to be evicted from the Dharas in dispute on payment of arrears towards rent and use and occupation charges vide judgment and decree dated 20.4.2007, passed by learned lower Appellate Court in Civil Appeal No.13/2004 under challenge in RSA No.59/2009. It has also been urged that the appellant is not entitled to the relief of specific performance of agreement nor permanent prohibitory injunction and rather liable to hand over the vacant possession of the Dhara in existence over the suit land under his use and occupation and also the payment of arrears of rent as well as use and occupation charges.
25. On analyzing the rival submissions and also the material on record, it is seen that the 1st substantial question ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...21...
of law in this appeal and substantial questions of law at Sl.
.
Nos.2, 3, 4 and 5 in connected appeal RSA No.59 of 2009, pertain to the execution of agreement which in this case is Ext. PW1/A whereas in RSA No.59 of 2009 Ext. DW1/A and admissibility thereof in evidence.
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26. The suit land admittedly is in the joint ownership and possession of the respondents herein. The execution agreement even if stands proved in accordance with law, the rt same having been only executed by Khem Raj (since dead) in exclusion of his two brothers/co-sharers S/Shri Vidya Singh and Sanjay Kumar, the predecessors-in-interest of respondents No.1(a) to 1(c) herein, cannot be enforced against the remaining co-owners. Therefore, there is no question of agreement Ext.PW1/A having been acted upon, as is argued on behalf of the appellant. Otherwise also, the execution of the agreement is not at all proved, as the evidence produced by the appellant-plaintiff in Civil Suit No.10-1 of 1997, out of which this appeal has arisen, no doubt is consisting of oral as well as documentary, however, not worthy of credence nor it is proved from the perusal thereof that deceased Khem Raj had executed an agreement in favour of appellant Kartar Chand voluntarily.
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27. PW-2 Anmol Singh is the scribe of Ext.PW1/A. .
According to him, the agreement is in his hand and bears his signature. If his cross-examination is seen, interestingly enough, no one, including deceased Khem Raj, the executant, was present at the time when he reduced the agreement into of writing. Marginal witnesses were also not present. PW-3 Harish Chander is a marginal witness to this document. As per his examination-in-chief the agreement in question was rt executed between the parties on 3.12.1995 and the same was reduced into writing by Anmol Singh (PW2) in his presence and also in that of another marginal witness Shri Raj Gopal. Deceased Khem Raj and appellant Kartar Chand were also present. The agreement was reduced into writing at the instance of deceased Khem Raj. The scribe Shri Anmol Singh had read over the same and it was firstly signed by deceased Khem Raj and thereafter by Kartar Chand. According to this witness, the agreement was signed by him in the last. His testimony in cross-examination, however, demolishes his statement in examination-in-chief because in cross-
examination he tells us that when he reached in the house of the scribe, the agreement was being reduced into writing.
Although it was read over by the scribe, however, he did not ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...23...
pay much heed to the contents thereof. His testimony to this .
effect at the most is suggestive of that the document was being reduced into writing, when he reached there. He cannot also be said to be conversant with the contents of the agreement as he did not pay much heed, when the same was of being read over by the scribe. In such a situation, the version of scribe Anmol Singh, seems to be nearer to the factual position. Meaning thereby that the agreement had not rt been reduced into writing in the manner as claimed by the appellant-plaintiff.
28. The plaintiff no doubt has supported his case while in the witness box as PW-1 qua execution of the agreement Ext.PW1/A, however, in view of the statement of the scribe, who has neither been declared hostile nor cross-
examined, it is clear that the agreement was reduced into writing in the absence of defendant Khem Raj and also the witnesses. Therefore, it would not be improper to conclude that the agreement is the result of fraud and misrepresentation. No doubt the deceased defendant Khem Raj while in the witness box as DW-1 has admitted his signature over agreement Ext.DW1/A, however, the same is not sufficient to conclude that he executed the agreement ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...24...
voluntarily. Otherwise also, he had no authority to execute .
the agreement making thereby some commitment qua the property, which does not belong alone to him, but other co-
sharers also. Therefore, the agreement even if believed to be executed by deceased defendant Khem Raj could have not of been enforced against his brother Sanjay Kumar and Vidya Singh.
29. I am also not in agreement with the arguments rt addressed on behalf of the appellant-plaintiff that there is neither pleading nor proof qua fraud or misrepresentation for the reason that in the written statement it has specifically been pleaded that the agreement is the result of fraud, coercion and undue influence etc. It has even been so proved from own evidence produced by the plaintiff himself.
30. Agreement Ext.PW1/A is even hit by the provisions contained under Section 3 of the H.P. Land (Regulation) Act, 1968, because the suit land being situated in tribal area could have not been mortgaged, leased out or gifted to any person not belonging to tribal area, except for the previous permission, in writing, of the Deputy Commissioner. The provisions ibid read as follows:
"3. Regulation of transfer of land.- (1) No person belonging to a Scheduled Tribe transfer his interest in ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...25...
any land by way of sole mortgage lease, gift or otherwise to any person not belonging to such tribe except with the .
previous permission in writing of the Deputy Commission.
Provided that nothing in this sub-section shall apply to any transfer-
(a) by way of lease of a building on rent;
(b) by way of mortgage, for securing loan, to any Co-operative Land Mortgage Bank or Co-operative society, all or a majority of the members of which of are persons belonging to any Scheduled Tribe;
(c) by acquisition by the State Government under the Land Acquisition Act, 1894.(1 of 1894). rt (2) Every transfer of interest in land made in contravention of the provisions of sub-section (1) shall be void."
31. True it is that consequent upon order dated 8.3.2013 passed in this appeal, an additional issue, which reads as follows, was framed and the report of lower Appellate Court sought thereon:
"Whether the agreement Ext.PW1/A is contrary to and prohibited by the provisions of Section 3 of the Himachal Pradesh Transfer of Land (Regulation) Act, 1968, if so, its effect? Onus on the parties"
32. In the report submitted on the additional issue, learned District Judge has arrived at a conclusion that the lease being of a built up structure was not barred under Section 3 of the Act ibid. The respondents-defendant, however, have filed objections to the report so submitted by learned lower Appellate Court. I find force in the objections so ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...26...
raised for the reason that in the present case as per own case .
of the plaintiff wooden structures (Dharas) were constructed by him over a portion of the suit land rented out by deceased defendant Khem Raj, out of his own funds. Therefore, the present is not a case where some built up structure had been of rented out to the appellant-plaintiff, but as a matter of fact, it is the land which was rented out to him and admittedly, the Dharas thereon were constructed by him out of his own rt funds. In terms of Section 3 of the Act ibid, the land situated in tribal area cannot be mortgaged, leased out or gifted to any person not belonging to such area. The appellant-plaintiff is not the resident of District Kinnaur and rather resident of village Ghanal, Tehsil and District Hamirpur, H.P., of course was running a Dhaba at Sangla. Therefore, on this score also, agreement Ext.PW1/A being hit by the provisions contained under Section 3 of the Act ibid cannot be treated to be a document executed legally and validly.
33. As already pointed out, deceased defendant Khem Raj could not bind the other co-sharers viz.,, his real brothers S/Shri Sanjay Kumar and Vidya Singh, by executing such agreement. The appellant-plaintiff, therefore, is not entitled to seek the enforcement of agreement Ext.PW1/A and ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...27...
his claim has rightly been discarded by learned lower .
appellate Court in this case, by dismissing the suit, he field for the decree of specific performance of contract and also in Civil Suit No. 21-1 of 2001, whereby decree for his eviction from the Dharas in question has been passed, while of discarding his claim qua commitment made by the deceased defendant Khem Raj to put him in possession of two shops in the newly constructed RCC building. Therefore, learned lower rt appellate Court has rightly concluded that the agreement Ext.PW1/A is result of fraud.
34. On behalf of the appellant-plaintiff reliance has been placed on the judgment of this Court in Mt. Basanti Vs. Pholo, AIR 1955 HIM 37 and that of Punjab and Haryana High court in The Oriental Fire and General Insurance Co.
Ltd. Chandigarh Vs. Smt. Chandrawali and others, AIR 1989 Punjab and Haryana 300. With due regard to the propositions of law involved and settled therein, the same have no application in the given facts and circumstances of this case. The judgment of Hon'ble Apex Court in K.B. Saha and Sons Pvt. Limited Vs. Development Consultant Limited, (2008) 8 SCC 564, is also not applicable to the present case.
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35. Therefore, no legal question i.e, first Substantial .
question of law in this appeal and substantial questions of law No.2 to 5 in connected appeal RSA No.59/2009 arise for adjudication.
36. Now if coming to 2nd substantial question of law in of this appeal, in view of the findings recorded hereinabove, the agreement Ext.PW1/A, even if believed to be executed by deceased Khem Raj, the same is violative of the provisions rt contained under Section 3 of the H.P. Transfer of Land (Regulations) Act, 1968, because in tribal area no land can be rented out to a person not belonging to tribal area.
Therefore, on this score also, the appellant-plaintiff cannot be said to be aggrieved in any manner whatsoever.
37. If coming to 3rd substantial question of law in this appeal, there is no question of misreading and mis-
appreciation of the pleadings and evidence available on record and rather learned lower appellate Court has appreciated the pleadings of the parties and evidence available on record in its right perspective. In view of the testimony of PW-2 and PW-3, the material witnesses in this case, no other and further view of the matter, except for the one taken by learned lower appellate Court, could have been taken.
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38. Therefore, the judgment and decree under .
challenge in this appeal cannot be said to be legally or factually unsustainable nor the findings recorded can be said to be perverse and as such, the impugned judgment and decree deserve to be upheld.
of
39. Now if coming to 1st substantial question of law in connected appeal RSA No.59 of 2009, the provisions contained under Section 106 of the Transfer of Property Act, rt provide that in absence of contract to the contrary, tenancy has to be treated from month to month basis and can be determined either by the lesser or lessee by serving with 15 days notice. The period of 15 days, of course, will commence from the date of receipt of the notice, as provided under sub-
section (2) of Section 106 of the Transfer of Property Act. In Civil Suit No.21-1 of 2001, deceased Khem Raj had issued notice Ext.PW5/B under Section 106 of the Transfer of Property Act in June, 2001, to determine the tenancy in respect of the Dhara rented out by him to appellant Kartar Chand. The notice has been booked by the Post Office for its destination on 29.6.2001 as is apparent from the postal receipt Ext.PW5/C. As per notice Ext.PW5/B, the tenancy was determined/terminated w.e.f. 31.7.2001. There is no dispute ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...30...
qua receipt thereof because as per own testimony of Kartar .
Chand, plaintiff herein, defendant in that suit and stepped into the witness box as DW-1, notice was received by him on 3.7.2001. Meaning thereby that between 3.7.2001 to 31.7.2001, he had clear cut 15 days notice, as required for of determination/termination of the tenancy. The complaint is that he has failed to pay the rent on and after April, 1997. It is stated so by PW-1 Smt. Raj Bhakti, who is co-wife of all the rt three brothers, i.e. deceased Khem Raj, Vidya Singh and Sanjay Kumar, the owners of the suit property. Even deceased plaintiff Khem Raj has also stated so while in the witness box as PW-5. As per further case set out by the plaintiffs-owners (respondents herein), they were no more interested to rent out the Dhara in question any further to the appellant. The appellant, defendant in that suit while in the witness box has ruled out the averments qua non-payment of rent, as according to him it is the respondents-plaintiffs, who failed to accept the rent from April, 1997 onward. Meaning thereby that he has admitted the non-payment of rent from April, 1997 onwards. Otherwise also, the payment or non-
payment of rent is immaterial because the tenancy was on month to month basis and either side could have terminated/ ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...31...
determined the same by serving with 15 days prior notice.
.
Therefore, the appellant has no legal right to remain in possession of the Dhara in question on and w.e.f. 31.7.2001, the date when the tenancy stood terminated vide notice Ext.PW5/B. Learned trial Court, therefore, has not committed of any illegality while decreeing the suit for possession of the Dhara in question, in favour of the respondents herein, together with the decree for recovery of arrears of rent and rt use and occupation charges.
40. There is no question of applicability of Section 53A of the Transfer of Property Act in this case, because in view of the findings recorded in this judgment hereinabove, the execution of agreement Ext.DW1/A is not at all proved nor the same can be acted upon and as such, the appellant cannot press in service the provisions contained under Section 53 A of the Act to protect his possession over the Dharas in question.
41. Therefore, the question that the eviction of appellant from the Dhara in question is illegal for want of legal and valid notice, does not arise for determination.
42. Now there remains the only substantial question of law formulated in connected appeal RSA No.340/2007. As ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...32...
noticed supra, this appeal has been admitted on the legal .
question that the appellant being a tenant under the respondents-defendants is entitled to the relief of injunction against them so that he is not dispossessed from the Dharas, save and except through due process of law. In view of the of findings hereinabove, recorded in this judgment while deciding the 1st substantial question of law in RSA No.59 of 2009, it has been held that the tenancy in favour of the rt appellant qua the Dhara in dispute stands terminated by issuance of a legal and valid notice under Section 106 of the Transfer of Property Act. In that case the decree for possession of Dhara on termination of the tenancy has been passed in favour of the respondents by learned lower appellate Court. This Court does not find any illegality or irregularity with the findings so recorded by learned lower appellate Court. Therefore, the appellant is not entitled to the relief of permanent prohibitory injunction against the respondents, as the suit filed by the defendants for possession of the Dhara in question has been decreed against him and in the Appeal RSA No.59 of 2009, no legal question has been found to be involved and as such the decree so passed deserves to be upheld. Consequently, no interference ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...33...
is warranted so far as dismissal of the suit filed by appellant .
for the relief of permanent prohibitory injunction by both Courts below is concerned. The appellant having already been ordered to be evicted from the Dhara in question under due process of law is not entitled to the relief of permanent of prohibitory injunction. Therefore, the decree under challenge in RSA No.340 of 2007 also calls for no interference by this Court. rt
43. In view of what has been said hereinabove, the judgment and decree under challenge in this appeal and also in RSA No.340 of 2007 and 59 of 2009 do not suffer from any illegality or irregularity and the same rather have been passed on proper appreciation of the given facts and circumstances, evidence available on record and the law applicable in its right perspective. No question of law, much less substantial questions of law, formulated in these appeals, therefore, arise for adjudication. On the other hand, the findings recorded by learned lower appellate Court being not vitiated or perverse deserve to be upheld.
44. For all the reasons hereinabove, this appeal and also the connected appeals, i.e. RSA Nos.340 of 2007 and 59 ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP ...34...
of 2009 fail and are accordingly dismissed. There is, .
however, no order so as to costs.
An authenticated copy of this judgment be placed on the record of RSA Nos. 340 of 2007 and 59 of 2009.
All the appeals stand disposed of accordingly.
of September 15, 2015. (Dharam Chand Chaudhary), (ss) Judge rt ::: Downloaded on - 15/04/2017 18:55:40 :::HCHP