Punjab-Haryana High Court
Pawan Kumar vs Brij Bhushan on 30 August, 1996
Equivalent citations: (1996)114PLR575
JUDGMENT N.K. Kapoor, J.
1. This is un-successful defendant's regular second appeal.
2. Plaintiff filed a suit for possession of a shop and for recovery of rent for the period from 15.12.85 to 2.1.1996 at the rate of Rs. 175/- per month and mesne profits at the fate of Rs. 175/- per month from 3.1.1986 to 20.1.1996. As per the averments made in the plaint, plaintiff took the shop in dispute from Siri Kishan Dass, father of the plaintiff, vide rent note dated 19.7.1977 at the rate of Rs. 175/- per month. The shop fell to the share of the plaintiff in a family settlement as decreed by the Civil Court vide judgment and decree dated 16.1.1984. Shop was constructed in the year 1977 and so the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are not applicable. Plaintiff terminated the tenancy of the defendant vide registered notice dated 14.12.1985 and thereafter filed the suit claiming possession as well as the rent due and mesne profits.
3. Defendant contested the suit and took up a preliminary objection i.e. that the Civil Court has no jurisdiction to entertain and decide the suit as the building was constructed in the year 1971.
Secondly, no document of ownership has been shown to the answering defendant. Moreover, a period of ten years has already elapsed and so the suit is barred view of the provision of Haryana Urban (Control of Rent and Eviction) Act, 1973. It was further stated that the tenancy has not been validly terminated.
On the pleadings of the parties, the following issues were framed:-
1) Whether the plaintiff is the owner the property in dispute? OPP.
2) Whether the plaintiff is entitled the possession of the property in dispute?
OPP.
3) Whether the plaintiff is entitled any mesne-profit as alleged? OPP
4) Whether this Court has no jurisdiction to try the suit? OPD.
5) Relief.
Trial Court on the basis of evidence came to the conclusion that in view of judgment and decree dated 16.1.1984, the plaintiff has become owner of the suit property by way of a family settlement. Accordingly, issue No. 1 was decided in favour of the plaintiff. Under issue No. 2, the Court held that the tenancy of the defendant had been rightly terminated vide notice annexure P-3 and so after the termination of tenancy, the status of the defendant is that of trespasser. Accordingly this issue was also decide in favour of the plaintiff and against the defendant Under issue No. 3, the Court held that the plaintiff entitled to recover the rent at the rate of R. 175/- per month for the period prescribed and also is entitled to claim rent for use and occupation of the property at the rate of Rs. 175/- per month from the date of institution of suit till the recovery of the actual possession. This issue was also decided in favour of the plaintiff.
Issue No. 4 was hotly contested between the parties. The trial Court after exhaustively examining the oral as well as documentary evidence adduced by the parties finally came to the conclusion that shop in dispute was infact constructed sometime in the year 1977 and so the suit filed in a civil court was maintainable. The suit was accordingly decreed as prayed for.
Before the lower appellate Court the appellant once again pressed the issue relating to the jurisdiction of the civil Court. The Court once again re-appraised the evidence but found no ground to differ or vary the conclusion arrived at by the trial Court. Thus, appeal too was dismissed.
4. Feeling aggrieved by the aforesaid concurrent findings recorded by the Courts below, appellant has termed these to be wholly un-warranted on proved facts and otherwise legally un-sustainable. Elaborating, the counsel argued that primarily it is the duty of the plaintiff to prove beyond an element of doubt that the building infact was constructed in the year 1977 and so can hardly derive any benefit from such a stipulation in the rent note. Otherwise too, there is ample evidence on record which prove that the building infact was in existence long before its alleged construction in the year 1977. Counsel made reference to documents, exhibits D-3, D-4, D-5 and D-6 and argued that infact there existed 8 different shops prior to the induction of the defendant as a tenant in the shop in dispute. Since it is the case of the plaintiff that the shops were demolished during the emergency and thereafter constructed new, the newly constructed shops at best would relate to the 6 shops only and not 8 shops. Thus, one can infer that shop in occupation of the defendant-appellant infact had not been raised to the ground during the emergency and only some modification in structure was undertaken before letting it out to the defendant. Both the Courts have not examined in light of this factual position which has resulted in failure of justice. The Courts below have also not properly construed the alleged notice issued by the Municipal Committee restraining the plaintiff from raising construction without seeking approval of the site plan.
5. Counsel for the respondent on the other hand argued that the Courts below on appraisal of the documentary and oral evidence have come to the conclusion that shop in dispute was infact constructed in the year 1977 and so the civil Court has the jurisdiction to adjudicate the claim set up by the plaintiff. According to the counsel, there is ample evidence on record (which the Courts have duly appreciated) which clearly prove that shop in dispute was infact constructed in the year 1977. Findings recorded by the Courts below essentially being findings of fact and otherwise not vitiated in any manner does not call for any interference in the second appeal.
6. I have heard the learned counsel for the parties, perused the documents referred and statement of some of the witnesses of both the parties. Defendant was inducted as a tenant on the shop at a monthly rent of Rs. 175/- vide document exhibit P-1 (rent note). Tenancy was for one month only. The rent note contains various stipulations like payment of rent, repairing of the building, restraining the tenant to sub-let the same and not to use the roof of the shop etc. Clause 10 of the rent note when translated reads as:-
"That shop has recently been constructed by the land owner in the year 1977 for which the site plan had been submitted to the Municipal Committee and the period prescribed i.e. two months had already expired. So, the land owner presumes that as per law the site plan of the shop has already been sanctioned. Shop has been constructed new after demolishing the old".
7. Defendant in his written statement, however, has taken a stand that building was constructed in the year 1971 and so the jurisdiction of civil Court is barred. Precisely for this reason the Court afforded opportunity to both the parties to adduce evidence in respect of this material issue. Plaintiff adduced in evidence the rent note exhibit P-1. Site plan exhibit P-9, copy of the plaint 'Siri Kishan Dass v. Notified Area Committee' exhibit P-10 and notices issued by the Municipal Committee restraining him from raising the construction till it is finally determined that no part of the land over which the new construction is intended is of the Municipal Committee. Copy of the plaint exhibit P-10 in the case 'Siri Kishan Dass v. Notified Area Committee' contains a specific averment made by the plaintiff to the effect that the old construction had been demolished by the parties during the emergency and with a view to raise new construction the plaintiff duly submitted an application for approval of the site plan on 21.3.1977 which has not been either approved or dis-approved till this date. Since the prescribed period of 60 days has already expired the plaintiff has built up new shops and so sought an injunction against the authorities restraining them from demolishing the existing structure. This document is prior to the rent note dated 19.7.1977. Precisely for this reason the Courts below had no hesitation in accepting the averments made in exhibit P-10 to be correct and so concluding that building infact had been raised in the year 1977. Even the oral evidence has been led to prove that the old construction was demolished by the authorities during the emergency. Defendant-the appellant with a view to dis-lodge the claim set up by the plaintiff led evidence in the nature of site plan, entries in the house tax registers and the earlier litigation between a tenant named Sadhu Ram and the landlord regarding one of the shops. According to the learned counsel for the appellant there existed 8 shops which were in occupation of various tenants as reflected in the entries in the house tax register, exhibits D-4 and D-5. In the aforesaid two documents as many as 8 different persons are reported to be the occupiers of these shops and since now the evidence led by the plaintiff relates to 6 shops the necessary inference would be that all the shops were not demolished during the emergency. In-fact, Sadhu Ram had been litigating with the landlord and finally the matter was disposed of in terms of the agreement sometime in the year 1984. This un-impeachable evidence dis-prove the case set up by the plaintiff that the shops were demolished by the authorities during the emergency and that the plaintiff constructed the same a new.
8. The evidence adduced by the defendant infact is contrary to his pleading. As per written statement the building is stated to have been constructed in the year 1971 whereas the house tax entries pertain to the years 1963-68 and 1968-73. So this evidence is contrary to the defendant's pleadings. At best the existence of shop in between the period 1964 to 1973 is proved on record as per entries in the house tax register. This indeed is the case of the plaintiff as well. Similarly, the plaintiff has accepted the earlier litigation with Sadhu Ram. But all these documents are infact prior to the year 1975. It is during this crucial year that internal emergency was clamped giving a free hand to the Administration to maintain law and order. It is a , different matter that the authorities without adhering to the Rule of law took certain steps and perhaps demolishing of the existing structure of the plaintiff appears to be one. In view of over whelming evidence led by the plaintiff to prove that the old existing structure was demolished by the authorities indeed appears to be more plausible. The Court below on weighing the evidence led by both the parties has come to a conclusion that the shops were demolished and fresh construction was raised sometime in the year 1977. I find no ground to differ from the conclusion arrived at by the Court below. Case is normally to be decided on the, basis of preponderance of evidence and in the instant case the plaintiff has led sufficient evidence to prove the case set up by him. I find the conclusion arrived at by the Courts below that the shop in dispute was constructed sometime in the year 1977 to be just and legal. Thus, finding no merit in the appeal the same is dismissed.
No order as to costs.