Punjab-Haryana High Court
Suresh Kumar vs Punjab Wakf Board And Another on 16 January, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.237 of 2012 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.237 of 2012 (O&M)
Date of decision: 16.1.2012
Suresh Kumar ....Appellant
Vs.
Punjab Wakf Board and another ....Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Harkesh Manuja, Advocate for the appellant.
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G. S. SANDHAWALIA, J. (Oral)
1. The present appeal has been filed by the defendant, who is aggrieved against the judgment and decree passed by the Lower Appellate Court whereby suit for recovery and ejectment filed by the respondent Board has been allowed by the Addl. District Judge, Kurukshetra dated 17.10.2011 and the plaintiff has been held entitled to take possession of the suit property and the defendant-appellant herein has been directed to hand over the vacant possession within a period of two months failing which the plainiff shall be entitled to recover the same by filing execution petition. The plaintiff-respondent has also been held entitled to recover a sum of Rs.7200/- and if the said amount is not paid within a period of two months then the plaintiff shall be entitled to interest at the rate of 6% per annum on this amount till the date of realisation.
2. The suit for recovery of Rs.17,800/- and ejectment from plot bearing No.B-5/258-A measuring 240 sq. yards situated at Subhash Nagar, Shahabad, District Kurukshetra was filed on the ground that RSA No.237 of 2012 -2- **** defendant was lesssee on a monthly rent of Rs.200/- from 1.5.1989 for a period of 11 months and the rent note was executed by the defendant in favour of the plaintiff for the use and occupation of the property for domestic purposes and as per the lease deed, the defendant was bound to deliver the vacant possession of the plot in case of default of payment of lease money. It was pleaded that defendant was in arrears of rent upto 31.5.2001 to the tune of Rs.17,800/- and had committed default in terms and conditions of the rent deed and was liable to be ejected. It was pleaded that the defendant had changed the nature of the property by constructing a shop and some portion was commercially used without the permission of the plaintiff and had violated the terms and conditions of the rent deed executed by the defendant in favour of the plaintiff which resulted into serving of a legal notice dated 11.1.2001 but inspite of that neither arrears of rent were paid nor the vacant possession was handed over.
3. The suit was challenged on various grounds including jurisdiction, limitation, locus standi and it was alleged that defendant was in occupation of the property in question after the partition of the country and had paid Rs.5000/- on the ground of donation and the plaintiff had permitted the defendant to raise construction after approval of the site plan. The property was used for residential purpose and there was no default and that defendant had spent huge amount on the construction of the house. It was also alleged that rent was being collected by the employee of the plaintiff Board and the receipt was never delivered by post. It was hard to believe that rent of 89 months had not been paid.
4. On the pleadings of the parties, the following issues were framed by the Trial Court:-
1. Whether plaintiff is entitled to a decree for possession RSA No.237 of 2012 -3- **** regarding the suit property by way of ejectment of the defendant?OPD
2. Whether the plaintiff is entitled to a decree for recovery of Rs.17,800/- as rent?OPP
3. Whether civil court has no jurisdiction to entertain and try the present suit?OPD
4. Whether plaintiff has no locus standi to file and maintain the present suit?OPD
5. Whether suit has not been filed by a duly authorised person?OPD
6. Relief."
5, The plaintiff produced documents and examined Khalil Ahmad as PW-1. The defendant examined Sunder Lal and Yash Pal as DW-1 and DW-2 respectively. The trial Court came to the conclusion that since the relationship of landlord and tenant existed and rent could only be claimed for three years, the Civil Court had no jurisdiction and the case should have been filed before the Rent Controller and also held that suit was time barred for claiming rent for 89 months. Accordingly, it decided the suit against the plaintiff Board.
6. The Lower Appellate Court took into account the fact that the property had earlier been in possession of one Sunita Devi by virtue of allotment order Ex. P11 and it was only thereafter possession had been handed over to the defendant. The property had been leased out from 1.5.1989. The official of the Punjab Wakf Board had never been given any suggestion that the property was in occupation of the defendant since time of partition and it was accordingly held that defendant was a tenant by virtue of rent deed Ex. P3 and the allotment letter Ex.P12. On the RSA No.237 of 2012 -4- **** jurisdiction of the Civil Court, the Lower Appellate Court noticed that notification had been published on 7.5.1976 by the Commissioner and Secretary to Government of Haryana to the effect that the provisions of the Rent Act was not applicable to the buildings and rented land which are the property of wakf as defined in clause (I) of Section 3 of the Wakf Act and accordingly, went on to hold that the trial Court was in error in holding that an ejectment petition should have been filed before the Rent Controller. The argument of the counsel for the defendant regarding that earlier ejectment petition had also been filed against the respondent regarding some other wakf property was also rejected as it did not stop the wakf from filing the present suit if a mistake had been committed by the appellant earlier and the appellant was not expected to commit the same again. However, on the issue of arrears of rent, the Lower Appellate Court noticed that the recovery of lease money could not be sought for more than a period of three years, therefore, rent for use and occupation for a period of 89 months was not maintainable and restricted the amount from May, 1998 till May, 2001 three years prior to filing of the civil suit and granted a decree for recovery of Rs.7200/-. The fact that the defendant had also raised construction without prior permission of the plaintiff was also taken into consideration but it was noticed that the plaintiff had failed to bring any convincing evidence on record to prove that construction had been raised by the defendant and that the user had been changed. Reference was also made to the notice Ex.P4 dated 11.1.2001 wherein the defendant was asked to hand over the vacant possession and pay arrears of rent. Accordingly, it was noticed that the tenancy was deemed to have expired on 1.2.2001 and the suit had been filed on 17.5.2001 and once the lease deed had been terminated after the period of 15 days of serving the notice RSA No.237 of 2012 -5- **** and expiring with the end of the month of tenancy the plaintiff was held entitled to the possession of the property alongwith Rs.7200/- as arrears of rent.
7. Counsel for the appellant has contended that notification of the Haryana Government was not on record and, therefore, the Lower Appellate Court was in error by placing reliance upon it and taking judicial notice of the same. The said contention is without any merit. Section 57 of the Indian Evidence Act, 1872 provides that the Courts must take judicial notice of all laws in force, all public Acts passed or Regulations having force of law in the territory of India. Copy of the notification published in the Haryana Government Gazette dated 18.5.1976 reads as under:-
"COMMITTEES) The 7th May, 1976.
No.4813 4 CII-76/15445-In exercise of the powers conferred by section 3 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, the Governor of Haryana hereby directs that the provisions of the aforesaid Act shall not apply to the buildings and rented lands which are the properties of any Wakf as defined in clause (I) of section 3 of the Wakf Act, 1954."
8. The Lower Appellate Court was, thus, correct in rectifying the error which the trial Court had fallen into by holding that the Civil Court had no jurisdiction to entertain the ejectment application of the property belonging to the Wakf Board once it had been specifically taken out of purview of the rent Act by notification dated 7.5.1976 issued by the Commissioner and Secretary to Government of Haryana.
9. Counsel for the appellant thereafter contended that there was RSA No.237 of 2012 -6- **** no proof of construction and, therefore, ejectment was bad on that ground. This submission is without any basis as the Lower Appellate Court has only noticed that the appellant herein was a lessee for 11 months with effect from 1.5.1989 and held in arrears of monthly rent. Thereafter notice had been served upon him on 11.1.2011 Ex. P4 wherein the rent had been claimed upto 31.12.2001 at the rate of Rs.200/- per month and the appellant was further directed to hand over the vacant possession of the aforesaid property to the wakf Board within 15 days from the receipt of the notice and, therefore, the provisions of Section 106 of the Transfer of Property Act were duly complied with and the tenancy was terminated by giving due notice.
10. That the findings of the Lower Appellate Court do not suffer from any legal infirmity or error of law which would raise a substantial question of law for consideration by this Court in Regular Second Appeal and the same is upheld. Accordingly, the present appeal is dismissed in limine.
(G.S.SANDHAWALIA) JUDGE 16.1.2012 Pka