Himachal Pradesh High Court
Jagan Nath vs Hans Raj on 1 January, 1997
Equivalent citations: AIR1998HP20
Author: M. Srinivasan
Bench: M. Srinivasan
JUDGMENT M. Srinivasan, C.J.
1. The second appeal arises out of a suit filed by the respondent herein, who is a tenant, for a declaration that he is a permanent lessee of the piece of land measuring 38-25 Hectres, entered in Khata No. 228 min, Khatauni No. 398 min, Khasra No. 695, situated in Civil Station, Dharamshala, with stipulation that he will build a shop at his own cost and to pay Rs. 70/- per annum as lease money to the defendant for use and occupation of the plot and he is entitled to remain in possession of the same. The second prayer in the suit was for permanent injunction restraining the defendant from interfering with the peaceful possession of the plaintiff by trying to demolish the shop and by digging the foundations and the adjoining area of the shop and also for grant of mandatory injunction directing the defendant to restore the already dug area to its original position.
2. The appellant herein contested the suit on the ground that one Khushal Chand became a tenant of the building belonging to the appellant in 1952 and the respondent became a partner of said Khushal Chand in the tea business in 1956. According to the appellant it was only Khushal Chand who was the tenant and the respondent was never his tenant. It is also the case of the appellant that after the death of Khushal Chand in July 1976, the respondent paid rent for six months and thereafter stopped paying rent. It is the case of the appellant that a sum of Rs. 135/- per mensem was being paid as rent.
3. The trial court held that the case of the appellant was not proved and that there was no evidence to prove the ownership of the building being with the appellant. It is also held that the case of the appellant that respondent became a partner of Khushal Chand and became a tenant only after the death of Khushal Chand was falsified by the fact that admittedly in 1954 the appellant gave consent to the respondent for installing the electricity connection in the building in his own name. The trial Court has also found that the appellant has received rent from the respondent for a period of six months from July, 1976. Therefore, the respondent was himself the tenant of the appellant and not Khushal Chand as contended by the appellant. Ultimately trial court passed a decree declaring the respondent to be a lessee on the suit land who has built a shop at his own costs and has paid the amount of lease money upto 31 -10-1984 at the rate of Rs. 70/- per annum for the use and occupation of the plot and restraining the defendant/appellant from interfering with the peaceful possession of the plaintiff or demolishing the shop by digging further foundation near the shop. The appellant was also directed by the decree to restore the already dug area which came quite near to the shop in question.
4. There was an appeal by the appellant before the Additional District Judge (1), Kangra at Dharamshala. There was no appeal by the respondent before the lower appellate court challenging that portion of the decree in which the trial court had refused to grant the relief prayed for by him, namely, declaration that he was a permanent tenant. The decree declared the respondent only as a tenant and not as a permanent lessee. The respondent did not choose to challenge the decree by way of appeal before the lower appellate court. The appellate court confirmed the findings of the trial court and dismissed the appeal. The aggrieved defendant has preferred this second appeal against those judgments.
5. During the pendency of this appeal, an application has been filed by the appellant for admitting a document as additional evidence. That petition is taken on file as CMP No. 629/ 1996. In the application it is seated that a rent note dated 13-10-1975 signed by Kushal Chand who was the original tenant and witnessed by Narain Dass Chowkidar son of Chatru, R/o Sakoh, Tehsil Dharamshala, and also by Shri Sant Ram Lambardar was available. According to the applicant the rent note was originally filed in the proceedings under the Himachal Pradesh Urban Rent Rent Control Act between the parties but it was not marked in the evidence. It is also stated that during the pendency of the appeal, an application was filed under Order 41, Rule 27 CPC to take notice of the said rent note and admitted as additional evidence. It is alleged that the appellate court has not dealt with the same and proceeded to dispose of the appeal without considering the additional evidence. In such circumstances, the appellant's claim is that the said document which is absolutely necessary, according to him, for just disposal of the appeal to be admitted as additional evience in this appeal. 6, It is better to dispose of CMP No. 629/96 in the first instance. No doubt, the appellant filed an application before the lower appellate court under Order 41, Rule 27, CPC for taking the document on file. The lower appellate court has considered the question in paragraph 24 of its judgment but in that paragraph the court has referred to certain jamabandies for the years 1966-67 and 1979-80 produced by the appellant as additional evidence. The Court observed that the documents did not appear to be material to decide the real controversy. Consequently, the application was rejected. If the appellant had pressed for consideration of the document now sought to be produced as additional evidence the lower appellate Court would have considered the same. Obviously that was not taken note of by the lower appellate Court. However, in this Court the contention of the appellant is that the document is absolutely necessary for a just disposal of the appeal. I am unable to agree with this contention for the following reasons :
i) It is seen from the evidence on record that the appellant had admitted before the trial court that in 1954 he gave consent to the respondent to have electricity connection to the suit property. But the case of the appellant is that the respondent did not become a tenant till the death of Kushal Chand. It is only in support of that case the appellant wants to bring into this Court the additional document. The admission made by the appellant in the trial Court and referred to above will go directly against the genuineness of the document which is sought to be produced now. The admission also destroys the case of the appellant that Kushal Chand was the only tenant and that the respondent was never his tenant. The said admission itself proves that the respondent was a tenant and recognised as such even in 1954.
ii) The other admission made by the appellant that he had been receiving rent from the respondent from six months from 1976 also goes to show that the case of the appellant trial Kushal Chand was the tenant is not true and acceptable. In such circumstances, the document which is now sought to be produced cannot be considered to be absolutely necessary within the meaning of Order 41 Rule 27-G of the CPC.
iii) Further a look at the document shows that it is not stamped or registered document has come into Court for the first lime before the Rent Controller on 30-6-1987. It is not in dispute that Kushai Chand died in July, 1976. If really the appellant had this document which was a very essential for proving his case he would have certainly produced it at the initial stage in the Civil Court itself and proved the same. The very appearance of the document and late production of the same throws considerable suspicion on the case of the appellant. In such a situation, I cannot accept the contention of the appellant that the document is absolutely necessary for deciding the controversy between the parties particularly in view of the admissions made by the appellant himself which are referred to in the judgment of the trial Court.
Hence CMP No. 629/1996 is dismissed.
7. Once the aforesaid document is eschewed from consideration it follows that the evidence already on record is the only material to be considered. Both the Courts have considered the entire evidence on record and taken note of the admission made by the appellant and come to the conclusion that the respondent was a tenant under the appellant and not Kushal Chand as claimed by him. It is significant to note that the appellant has not produced any document whatever to prove that he constructed the building as claimed by him. If really he had spent money for constructing the building he would have produced some document to prove the expenses incurred for the said construction. In the absence of such documents and when the appellant is relying only on the oral evidence, the Courts below are justified in appreciating the oral evidence and coming to the conclusion that the evidence adduced by the respondent is acceptable and the evidence of the appellant is not acceptable Sitting in second appeal, I do not find any question of law much less a substantial one which arises for consideration. Consequently the findings of fact arrived at by both the Courts are confirmed.
8. Learned counsel for the respondent contends that this Court should exercise its powers under Order 41, Rules 22 & 33, CPC and hold that the respondent has acquired permanent tenancy rights as claimed by him. It is also contended that this Court should declare the respondent to be a permanent tenant. I cannot accept this contention in view of the fact that the decree of the trial court which did not grant the declaration of permanent tenancy but confined it to mere ordinary tenancy was not challenged by the respondent before the lower appellate Court. Thus, the decree of the trial court has already become final. In this Court also there is no memorandum of cross objection or cross appeal at the instance of respondent claiming the permanent tenancy rights. In such a situation, this Court will not exercise powers under Order 41, Rules 22 & 33, CPC.
9. Learned counsel for the respondent places reliance on the judgment of the Supreme Court in Sivayogeswara Cotton Press, Devangere v. M. Panchaksharappa, AIR 1962 SC 413. The Court held in that case that where the land is let out for building purposes without a fixed period, the presumption is that it was intended to create a permanent tenancy and the presumption is not weakened by the fact that the lessee has stipulated with the lessor to give up possession if and when the lessee decides to do so. That proposition will not apply in this case, as already pointed out by me that there was no appeal against the decree of the trial Court by the respondents nor was any cross objections filed in this Court. It is not open to the respondent to contend before me that he is entitled to get a declaration that he is a permanent lessee.
10. Learned counsel also places reliance on the judgment of a single Judge of the Madras High Court in M. Manoharan Chetti v. C. Coomaraswamy Naidu and Sons, AIR 1980 Madras 212. The learned Judge has observed as follows :
"13. The respondent had filed cross objections to the second appeal. In the memorandum of cross objections the respondent seeks to canvass the appellate Court's finding that the respondent's tenancy did not include the suit verandah. I think that the procedure adopted for filing the cross objections is based on a misconception of the respondent's forensic rights in this appeal. Under our law of civil procedure, the respondent to an appeal has no need to file a regular cross appeal or even a cross objection, if all that he desires is to support the lower court's decree in his favour on the ground decided against him by that court. For, it is open to him to urge in the other party's very appeal that the finding of the court below against him on any given aspect ought to have been in his favour (see Order 41, Rule 22. CPC). I, therefore, reject the cross objections filed by the respondent in this case as unnecessary and misconceived, but I proceed nevertheless to consider, on the merits, the respondent's contention that the appellate Court was in error in recording a finding that the tenancy in the respondent's favour did not comprehend the suit verandah."
11. The above passage cannot help the respondent in this case. It is very clear from the passage that any finding of the courts below against the respondent can be attacked by him in an appeal but it can be only for the purpose of supporting the lower court's decree. The words "if all that he desires is to support the lower court's decree in his favour" in the above passage, clearly indicate that the respondent can only support a decree passed by the lower court by attacking such findings which are against him. He cannot get anything more than that granted by the decree unless he files a separate appeal or memorandum of cross objections challenging the decree of the lower court. Hence, there is no merit in the contention of the respondent that there should be a declaration that he is a permanent lessee of the land.
12. Consequently, the second appeal is dismissed. The decree of the lower Court as it stands is confirmed. There will be no order as to costs.
Civil Revision No. 6/1991and CMPNo.511/1996
13. This Revision petition arises out of the proceedings under the Himachal Pradesh Urban Rent Control Act, 1987. The landlord is the petitioner herein. He has filed the petition on the footing that he is the owner of the superstructure. He has also alleged arrears of rent and set out other grounds for claiming eviction. The Rent Controller has found that in the civil proceedings between the parties there is a finding that the subject-matter of lease is only a land and the petitioner herein is not the owner of the superstructure. Hence the Rent Controller has held that the petition is not maintainable. However, there is an observation of the Rent Controller that the respondent is permanent lessee of the piece of land over which the shop in dispute is situated. The order of the Rent Controller has been affirmed on appeal by the appellate authority. The aggrieved landlord has preferred this revision petition.
14. During the pendency of the Revision petition an application under Order 41, Rule 27 CPC has been filed for admitting a document as additional evidence.
15. The Civil proceedings referred to by the Rent Controller is Civil Suit No. 170/85 (130/ 91). The decree passed in the suit, declared the respondent herein as a lessee of the land and granted injunction as against the petitioner herein. The said decree was confirmed on appeal (Civil Appeal No. 104/1991)by the Addl. District Judge (1) Kangra at Dharamshala who was also the appellate authority in this case under the Rent Control Act. Against the said civil appeal the petitioner had filed RSA No. 16/1994 which is disposed of as above. In view of my findings in the above second appeal that the appellant is only owner of the land and the subject-matter of the lease was only the land, the present proceedings for eviction before the Rent Controller are not sustainable. On that short ground this petition for eviction has to be dismissed and the Civil Revision has also got to be dismissed.
16. However, it is made clear that the observation of the Rent Controller that the respondent is permanent lessee of the land is erroneous. There is no such decree of the Civil Court. The only decree passed by the Civil Court declares the respondent to be lessee and not a permanent lessee. The said observation is, therefore, not valid and it is held to be ineffective.
17. With the observations, this Civil Revision Petition is dismissed. The CMP No. 511/1990 is also dismissed. There will be no order as to costs.