Punjab-Haryana High Court
Gurdip Singh And Another vs Shivala Ji Maharaj Kalanaur on 11 February, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
RSA No.798 of 2014
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.798 of 2014 (O&M)
Date of decision: 10.02.2014
Gurdip Singh and another
....Appellants
Versus
Shivala Ji Maharaj Kalanaur
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. D.S. Bali, Sr. Advocate, with
Mr. Salil Bali, Advocate, for the appellants.
*****
PARAMJEET SINGH, J.
This regular second appeal is directed against the judgment and decree dated 26.11.2013 passed by learned Additional District Judge, Gurdaspur, whereby the appeal preferred by the respondent/plaintiff against the judgment and decree dated 20.07.2010 passed by learned Civil Judge (Junior Division), Gurdaspur, whereby the suit for possession by way of ejectment filed by the respondent/plaintiff was dismissed, has been allowed and the suit of the respondent/plaintiff has been decreed.
The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced in Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -2- RSA No.798 of 2014 detail. However, the facts relevant for disposal of this second appeal are to the effect that plaintiff through its Mohitmim Krishan Nath filed a suit for possession by way of ejectment against the defendants on the averments that the suit property fully described in the headnote of the plaint was owned by the plaintiff and it was let out to defendants - Gurdip Singh Goraya and Sain Dass - for running business of commission agent. The suit property was located in khasra No.670 min within the revenue estate of village Kalanaur and provisions of East Punjab Urban Rent Restriction Act, 1949 are not applicable. Defendants were permitted to raise construction of only one room in the rented property for running their business. The rent was settled at `150/- per month. The defendants violated the terms and conditions of the rent note and are in arrears of rent. Defendants also changed the user of the plot. The property was let out to the defendants for running business of commission agent but the defendants have made the construction of residential house in the plot in dispute. Defendants have raised construction of one extra room and a cattle shed. Notice under Section 106 of the Transfer of Property Act was served upon the defendants to vacate the rented property but defendants failed to deliver the possession. The tenancy in favour of the defendants stood terminated after 15 days of the receipt of notice by the defendants. Plaintiff wants to raise construction in the suit land for the convenience of the worshipers but the defendants are threatening to raise further Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -3- RSA No.798 of 2014 construction in the suit property. Defendant No.1 - Gurdip Singh has colluded with defendant No.2 - Sain Dass, who is one of the Pujaris in the temple Shivalaji Maharaj. The plaintiff asked the defendants to deliver the vacant possession of the suit plot by removing malba but the defendants did not pay any heed.
Upon notice defendant No.1 appeared and filed separate written statement taking preliminary objections that plaint lacks locus standi, cause of action, suit is bad for non-joinder of necessary parties, site plan is termed to be incorrect, Krishan Nath is not entitled to file the present suit and the suit is not properly valued. On merits it was admitted that Shivala Ji Maharaj Temple is the owner of the property in dispute. It was denied that Krishan Nath is the Mohitmim of the Mandir. Further it was averred that defendant No.1 is not the tenant of Krishan Nath nor he is in possession of the alleged portion of the property of Shivala Ji Maharaj Mandir. Defendant No.1 denied that he was only permitted to do the business of commission agent in the plot in dispute. In fact defendant No.1 is in possession of the plot measuring 2 kanals wherein he has constructed his residential house, which he has taken on rent from Mohant Om Nath son of Lehri Nath vide rent note dated 23.04.1986. The plot in question is in possession of Sain Dass defendant No.2 who is Mohitmim of Shivala Ji Maharaj Mandir.
Defendant No.2 filed separate written statement taking preliminary objections that suit lacks maintainability, locus standi and Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -4- RSA No.798 of 2014 that the plaintiff has not come to the Court with clean hands. On merits, defendant No.2 admitted that the property in dispute is the ownership of Shivala Ji Maharaj, Kalanaur. It was also admitted that plot in dispute is located in khasra No.670. It was denied that defendant No.2 was permitted to raise construction of one room in the plot for running his business. It is further averred that question of rent note does not arise as defendant No.2 is the owner as Mohitmim of the suit property. Defendant No.1 is in possession of the portion situated towards the eastern side of the house of defendant No.2. Defendant No.2 denied that he is only Pujari in temple Shivala Ji Maharaj.
Court of first instance, on the basis of pleadings of the parties, framed following issues: -
"1. Whether plaintiff is entitled to decree of possession by way of ejectment as prayed for? OPP
2. Whether the present suit is not maintainable? OPD
3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Whether the plaintiff has concealed the material facts from the Court? If so, its effect? OPD
5. Whether plaintiff has got no cause of action to file the present suit? OPD
6. Whether the suit is bad for non-joinder of necessary parties? OPD
7. Whether suit is not properly valued? OPD
8. Relief."
Parties led their respective evidence. The Court of first Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -5- RSA No.798 of 2014 instance, after appreciating evidence on record dismissed the suit of the plaintiff. Against the judgment and decree of the Court of first instance, appeal preferred by the respondent/plaintiff has been accepted, the judgment and decree of the Court of first instance has been set aside and the suit of the plaintiff has been decreed with costs. Hence, this regular second appeal.
I have heard learned senior counsel for the appellants and perused the record.
Learned senior counsel for the appellant referred to the substantial questions of law framed in para No.6 of the grounds of appeal, which read as under: -
"1. Whether the learned lower appellate Court while passing the impugned judgment and decree dated 26.11.2013, which is under challenge in this appeal, has misread, misconstrued and misappreciated the evidence on the record which reflects that it is not Krishan Nath who was the Mohatmim of the deity but was the appellant- defendant No.2 Sain Dass and further especially when there has ensued misreading of the cross- examination of appellant-defendant No.2 Sain Dass?
2. Whether the suit was filed by a proper person and further whether Krishan Nath, who projected himself to be the Mohatmim falsely has locus standi to file the suit?
3. Whether the learned lower appellate Court has Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -6- RSA No.798 of 2014 deviated from the facts and controversy and constituted the theory of its own while observing that though Krishan Nath was able to prove himself to be Mohatmim yet suit was filed by a proper person who had no adverse interests towards deity?"
Learned senior counsel for the appellants vehemently contended that Krishan Nath is not the Mohatmim of the temple; as such the suit has not been validly filed. Lower appellate Court has misconstrued the facts on record and had wrongly recorded that Krishan Nath has been able to prove Mohatmimship with regard to temple in question.
I have considered the contentions raised by learned senior counsel for the appellants.
Admittedly, rent note Ex.P1 between Gurdip Singh and Shivalaji Maharaj Mandir was executed through Krishan Nath son of Brij Nath, through whom present suit was filed. In view of the categorical averment in the rent note whereby defendant No.1 - Gurdip Singh entered into agreement with regard to property in question, appellants are estopped by their act and conduct claiming that Krishan Nath was not the Mohatmim of the temple in question; as such the contention of the learned counsel for the appellants is not sustainable. Admitted facts on record are to the effect that the property in question is the ownership of the Shivalaji Maharaj Mandir and it was given on rent to appellants/defendants. Once notice under Section 106 of the Transfer Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -7- RSA No.798 of 2014 of Property Act has been given, after the expiry of the notice period, appellants/defendants were bound to vacate the premises in question. In para No.17 lower appellate Court has referred to statements of various witnesses, including Gurdip Singh appellant/defendant wherein he has admitted that he is in possession of plot measuring 2 kanals as tenant on the basis of rent note dated 23.04.1986 under Mohant Om Nath. Ex.P1 which was shown to this Court during the course of arguments, in fact, is through Krishan Nath son of Brij Nath. Lower appellate Court has also made reference to statement of DW2 Sain Dass appellant and recorded a finding that Sain Dass has admitted that neither he is Mahant of Shivalaji Maharaj Mandir Kalanaur nor he could produce any document to prove that he is Mohitmim of the temple. Gurdip Singh, who appeared as DW1 has admitted in his written statement that he is not in possession of the suit property and admitted his signatures on rent note dated 18.03.1987 (Ex.P1). He has not produced the rent receipts, rather he admitted that he has stopped paying rent. In view of this, findings of the Court of first instance have been rightly reversed by the lower appellate Court and eviction has been ordered.
Learned senior counsel for the appellants has failed to show that the findings recorded by lower appellate Court are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record.
Keeping in view finding with regard to ownership and Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -8- RSA No.798 of 2014 relationship of the parties and status of Krishan Nath as Mohatmim of the temple in question, no question of law, muchless substantial question of law, as alleged, arises in the present appeal.
No other point has been raised.
Dismissed in limine.
(Paramjeet Singh) Judge February 10, 2014 R.S. Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh