Jasvinder Singh Son Of Shri Pritam Singh ... vs Kedar Nath Son Of Late Shri Khushi Ram & ... on 5 October, 2016

[Cites 8, Cited by 4]

Himachal Pradesh High Court

Jasvinder Singh Son Of Shri Pritam Singh ... vs Kedar Nath Son Of Late Shri Khushi Ram & ... on 5 October, 2016

rt __________________________________________________________ For the Revisionists: Mr. Bhupinder Gupta Sr. Advocate with Mr.Janesh Gupta Advocate For the Non-Revisionists: Mr. Ajay Kumar Sr. Advocate with Mr.Dheeraj K.Vashishat Advocate.

P.S. Rana, Judge.

Order of limited remand:-

Present civil revision petition is filed under Section 24(5) of H.P. Urban Rent Control Act 1987 against the order passed by learned Appellate Authority Shimla in Civil Miscellaneous Appeal No. 90-S/14 of 2005 dated 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.

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2.4.2007 whereby learned Appellate Authority affirmed order of learned Rent Controller (2) Shimla.

Brief facts of the case .

2. Shri Onkar Chand and others filed eviction petition under Section 14 of H.P. Urban Rent Control Act 1987 for eviction of tenants pleaded therein that premises is non-residential and water and electricity connections are provided in premises. It is pleaded that premises is of situated in 5-5/1 Upper Kaithu Shimla and it is pleaded that monthly rent is Rs.350/- per annum. It is pleaded that rt premises let out to Shri Pritam Singh in the year 1959. It is pleaded that after death of Shri Pritam Singh his widow Smt. Mohinder Kaur became tenant in premises and she used to pay rent. It is pleaded that Smt. Mohinder Kaur died on 10.8.1984 and tenants who were residing with her became tenants. It is pleaded that tenants are in arrears of rent along with interest to the tune of Rs.10373/-. It is pleaded that tenants have impaired the value and utility of premises and have unauthorisedly and illegally constructed new rooms on vacant land and have also installed saw machine. It is pleaded that tenants have converted the premises into residential purpose whereas premises given to them only for commercial purpose. It is ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 3 pleaded that landlords intend to raise new structure and new construction could not be carried out without eviction of tenants. Prayer for acceptance of petition sought.

3. Per contra response filed on behalf of tenants pleaded therein that present petition is bad for non-

joinder of necessary parties. It is pleaded that tenancy rights have been inherited along with four sisters and they have not been impleaded as co-party. It is pleaded that of petition is also barred on principle of resjudicata. It is pleaded that predecessors-in-interest of tenants have filed rt the eviction petition on same ground which was dismissed on merits and it is pleaded that present petition is not maintainable. It is also pleaded that landlords are estopped by their act, conduct and acquiescence to file the present petition. It is pleaded that present petition is barred under Order 9 Rule 9 CPC. It is pleaded that nature of premises from inception is non-residential. It is pleaded that from inception of tenancy one family member of tenants used to stay in premises during night just to keep watch and ward of furniture business. It is pleaded that manufactured furniture is kept in open sheds and it is necessary to keep one family member or servant at night in premises for keeping watch and ward on goods and ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 4 material lying therein. It is pleaded that no part of business has been converted into residence permanently.

Prayer for dismissal of eviction petition sought.

4. Landlords filed rejoinder and re-asserted the allegations mentioned in petition. As per pleadings of parties following issues framed by learned Rent Controller on 5.1.1996:-

1. Whether respondents have committed of such act which has impaired the value and utility of the rented premises in question? ....OPP rt

2. Whether respondents have changed the user in the rented premises in question?

.....OPP

3. Whether petitioners require the suit premises for bonafide requirement?

....OPP

4. Whether petition is bad for non-joinder of necessary parties? ....OPR

5. Whether there is no relationship of landlord and tenants between the landlords and tenants as alleged?

...OPR

6. Whether petition is barred by principle of resjudicata? .....OPR

7. Whether petition is barred under Order 9 Rule 9 CPC? ....OPR ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 5

8. Whether landlords are estopped from filing the present petition by their act, deed,commission and acquiescence?......OPR

9. Relief.

5. Learned Rent Controller decided issues Nos. 1, 2, 4, 5,6,7 and 8 in negative and learned Rent Controller decided issue No. 3 in affirmative. Learned Rent Controller partly allowed the eviction petition. Learned Rent of Controller evicted the tenants from premises on the basis of bonafide requirement of landlords for the purpose of rt rebuilding which could not be carried out without eviction of tenants. Learned Rent Controller also directed the tenants to deliver possession of premises to landlords within one month w.e.f. 15.6.2005. Learned Rent Controller dismissed rest of claim of landlords.

6. Feeling aggrieved against order of learned Rent Controller Shimla tenants filed appeal before learned Appellate Authority Shimla and landlords also filed cross objections against issues Nos. 1 and 2. Learned Appellate Authority on 2.4.2007 dismissed appeal and cross objections.

7. Feeling aggrieved against order of learned Appellate Authority tenants filed present revision petition.

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8. Court heard learned Advocate appearing on behalf of parties and Court also perused entire record carefuly.

9. Following points arise for determination in civil revision petition:-

1. Whether learned Rent Controller and learned first Appellate Authority have committed material irregularity by way of non-

impleading other owners of land recorded in of Misal Hakiyat settlement Ext. DX placed on record comprised in Khata No. 1 min, Khatauni No. 8, Khasra No. 96 min old, 67 new rt measuring 24-67 upon which structure of premises in dispute bearing No. 5-5/1 upper Kaithu Shimla is situated when relief of reconstruction of premises was granted and whether owners mentioned in Ext. DX are necessary parties under order 1 Rule 10 (2) Code of Civil Procedure 1908 in order to enable Court effectively and completely to adjudicate upon and to settle all questions involved in eviction petition?

2. Relief.

10. Findings upon point No.1 with reasons 10.1. PW1 Onkar Chand has stated that landlords are owners of premises. He has stated that premises was given upon tenancy in the year 1959-60 to Partap Singh.

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He has stated that total area of premises is five biswas and landlords are paying tax to municipal corporation. He has stated that Pritam Singh died in the year 1970 and .

thereafter his wife namely Mohinder Kaur remained as tenant. He has stated that Mohinder Kaur died in the year 1984 and after death of Mohinder Kaur her legal representatives acquired the tenancy rights. He has stated that he is general attorney of other owners and of copy is Ext.PA. He has stated that tenants have changed the nature of premises without consent of landlords and rt sale deed of premises is Ext.PQ and Hindi translation is Ext.PQ/T. He has stated that he also filed civil suit against tenants and Local Commissioner was appointed who visited the spot and prepared site plan. He has stated that landlords intend to raise new construction over the premises and site plan has also been prepared. He has denied suggestion that landlords of structure have no legal right to raise new construction. He has denied suggestion that landlords have simply purchased structure rights and did not purchase ownership rights of land over which demised premises is situated. He has denied suggestion that tenants have not altered the nature of premises. He has denied suggestion that ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 8 landlords are only owners of structure and are not owners of land over which premises in dispute is situated.

10.2 PW2 Vishaw Nath has stated that he has seen .

the disputed premises. He has stated that tenancy was inducted in the year 1959-60. He has stated that tenants are also residing in premises. He has denied suggestion that tenants have not altered the nature of premises. He has admitted that petitioners are his relatives.

of 10.3 PW3 Inder Singh Jr. Assistant has stated that he has brought record of case file No. 174/1 of 1995/90 rt title Onkar Chand vs. Hardev decided on 8.12.1995 by learned Civil Judge Shimla (H.P.).

10.4 PW4 Deepak Advocate has stated that he was appointed as Local Commissioner in civil suit No. 174/1 of 1995/90 on 27.11.1995. He has stated that he visited the spot on 28.11.1995 and submitted his report on 1.12.1995. He has stated that certified copy of local commissioner report is Ext.PW4/A. He has stated that site plan is Ext.PW4/B which is correct as per original record.

He has admitted that at the spot there was no permanent structure. He has stated that there was no new construction at the spot.

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10.5 PW5 Balbir Singh Kanwar has stated that he retired as Executive Engineer in the year 1994 from IPH department. He has stated that he has obtained the civil .

engineering diploma and he visited the spot at the instance of Onkar Chand etc. and submitted technical report Ext.PW5/A. He has stated that he also submitted site plan Ext.PW5/B. He has stated that report was prepared by him as per factual position. He has stated of that suit premises is situated in core area. He has denied suggestion that construction is banned in core area. He rt has stated that he does not know the name of owner of premises. He has denied suggestion that he has prepared report Ext.PW5/A as per instance of landlords. He has denied suggestion that he did not prepare report Ext.PW5/A as per factual position.

10.6 PW6 B.K. Tanganu has stated that he retired in the year 1992 after serving thirty years. He has stated that site plan Ext.PW6/A has been prepared by him which is correct as per original record. He has stated that he also received letter Ext.PW6/B from committee. He has stated that he has prepared site plan at the instance of landlords. He has stated that he has also perused revenue record. He has stated that he could not state that there ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 10 are other co-owners also. He has stated that he could not state that Onkar Chand has only possessory rights and did not own ownership rights. He has admitted that premises .

is situated in core area. He has admitted that above cart road construction is banned.

10.7 RW1 Kalyan Singh Civil Ahlmad has stated that there is no entry of case No. 242/2 of 1976 and case No. 473/2 of 1976 in register. He has stated that he has of brought the rent register for the year 1974-1976.

10.8 RW2 Ram Singh Criminal Clerk GRR Shimla rt has stated that civil suit No. 242/2 of 1976 title Geeta Devi s. Mohinder Kaur was decided on 12.6.1978 and original record of case was destroyed on 22.2.1988. He has stated that certificate of destruction is Ext.RW2/A. He has produced file No. 174/1 of 1995/90 title Onkar Chand vs. Hardev decided on 8.12.1995. He has stated that file No. 473/2 of 1976 decided on 30.7.1977 title Geeta Devi and Mohinder Kaur and file of case No. 189 of 1976 title Geeta Devi vs. Mohinder Kaur decided on 13.6.1977 and file of civil suit No. 24/1 of 1986 title Geeta Devi vs. Jasbinder Singh decided on 7.12.1990 could not be traced.

10.9 RW3 Jasvinder Singh has stated that his father Pritam Singh was inducted as tenant in premises ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 11 and premises is used for commercial purpose for sale of furniture. He has stated that premises was given upon tenancy in the year 1959 at the rate of Rs.375/- per .

annum. He has stated that after death of Pritam Singh his mother became tenant. He has stated that condition of premises is not bad. He has stated that no addition or alteration was conducted in premises. He has stated that there are about 25-30 owners of premises as per of jamabandi Ext.DX. He has stated that eviction petition was filed earlier also. He has stated that partition did not rt take place between owners relating to premises. He has stated that landlords are not in need of premises because landlords also owned other premises in city. He has stated that eviction petition has been filed just to harass the tenants. He has stated that landlords have not approved site plan of construction. He has stated that tenants have deposited the rent in Court of Rent Controller vide receipt Ext.DX-2. He has stated that his father expired in the year 1970. He has stated that rent was paid to Khushi Ram and his successors. He has stated that Ext.PB, Ext.PC, Ext.PD and Ext.PH are photographs. He has stated that landlords are not owners of premises in dispute.

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10.10 RW4 Sunil Khera JE MC Shimla has stated that he has not brought summoned record because same is not traceable and certificate is Ext.RW4/A. .

10.11 RW5 Gurcharan Singh has stated that Hardev Singh and his brothers are known to him and they remained as tenants w.e.f. 1984.1994. He has stated that tenants were evicted.

10.12 RW6 Daljeet Singh has stated that he has of obtained civil engineering diploma and retired from IPH department as Engineer. He has stated that at the spot he rt did not observe any new construction, addition or alteration in premises and his spot inspection report is Ext.RW6/A. He has stated that construction is possible without eviction of tenants. He has stated that his report Ext.RW6/B is correct as per factual position. He has stated that he did not give any notice prior to inspection. He has stated that he did not check the record of Municipal Corporation. He has admitted that new buildings have been constructed nearby the premises in dispute and further admitted that age of structure of premises in dispute is 50-60 years. He has denied suggestion that new construction is not possible without eviction of tenants.

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11. Following documentries evidence placed on record by parties. (1) Ext.RW4/A is certificate issued by Architecture Planner MC Shimla. (2) Ext.RW2/A is the .

certificate that file No. 242/2 of 1976 title Geeta Devi vs. Mohinder Kaur decided on 12.6.1978 has been destroyed on 22.2.1988 as per Rules. (3) Ext.DX-2 is receipt relating to Rs.11760/- given by Onkar Chand. There is recital that Onkar Chand has received Rs.11760/- from Sh. Hardev of Singh and Jaswinder Singh son of late Shri Pritam Singh on account of tax and interest @ 9% per annum w.e.f.

rt 1.5.1978 to 31.12.1995 relating to premises qua which eviction petition filed. (4) Ext.DX is copy of Missal Hakiyat settlement relating to khata No.1 min khatauni No. 08 khasra No. 96 min old 67 new over which premises in dispute is situated. (5) Ext.DX-1 is copy of jambandi for the year 1982-83 relating to land upon which premises in dispute is situated. (6) Ext.R-1 is notice issued to Smt. Mohinder Kaur by learned Rent Controller Shimla in case title Geeta Devi vs. Mohinder Kaur. (7) Ext.PW6/B is letter issued by Town and Country Planning to Onkar Chand. (8) Ext.PW4/A is Local Commissioner report submitted by Deepak Bhasin Advocate in case No. 174/1 of 95/90. (9) Ext.DX-5 is spot inspection site plan filed in case title ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 14 Onkar Chand vs. Hardev Singh. (10) Ext.PW5/A is technical inspection report submitted by Balbir Singh Kanwar. (11) Ext.PW5/B is site plan. (12) Ext.PS is .

document submitted by Stock Holding Corporation of India Limited. (13) Ext.PB, PC, PO, PH, PJ, PL are photographs (14) Ext. PA is general power of attorney. (15) Ext.PQ is sale deed in Urdu language dated 19.12.1941. (16) Ext.PQ/T is Hindi translation of sale deed dated of 19.12.1941. (17) Ext.RW6/A is inspection report submitted by Daljit Singh Kalsi. (18) Ext.RW6/B is site plan. (19) rt Ext.PA/1 is copy of jamabandi for the year 1998-99.

12. Submission of learned Advocate appearing on behalf of revisionists that learned Rent Controller and learned first Appellate Authority have committed material irregularity by way of non-impleading other owners of land comprised in Khata No.1 min, Khatauni No. 8 Khasra No. 96 old min new 67 as mentioned in copy of Misal Hakiyat settlement Ext.DX placed on record in new construction case is accepted for the reasons hereinafter mentioned. It is proved on record that premises in dispute is situated upon khata No. 1 min Khatauni 8 Khasra No. 96 old min new 67 situated at Kaithu Tehsil and District Shimla (H.P.) as per copy of Misal Hakiyat settlement Ext.DX placed on ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 15 record. Court has carefully perused the copy of Misal Hakiyat settlement Ext.DX placed on record. Copy of Misal Hakiyat settlement placed on record has been prepared .

by public servant in discharge of his official duty and is relevant fact under Section 35 of Indian Evidence Act 1872. Copy of Misal Hakiyat settlement Ext.DX has been prepared by revenue official under H.P. Land Revenue Act 1954.

13. As per copy of Misal hakiyat Ext. DX placed on record Onkar Chand, Kedar Nath, Kuldeep, Sudesh rt Kumari, smt. Sudhir Kumari, Smt. Brij Bala, Smt. Sushma, Smt. Madhu Kumari are LRs of Khushi Ram. Court has also carefully perused sale deed Ext. PQ in Urdu language placed on record and also carefully perused Hindi translation of sale deed Ext. PQ/T. It is proved on record that predecessor-in-interest of Onkar Chand etc. namely Khushi Ram had purchased ½ (Half) share of premises in dispute from Padam Pal Singh by way of registered sale deed in the month of December 1941 in sale consideration amount of Rs. 500/- (Five hundred). Khushi Ram predecessor-in-interest of Onkar etc. did not purchase entire premises in dispute No. 5-5/1 by way of sale deed executed in the month of December 1941 in ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 16 consideration amount of Rs. 500/- (Five hundred) but only purchased ½ (Half share) of premises in dispute from Padam Pal Singh. Court is of opinion that other co-owners .

of premises No. 5 and 5/1 are necessary parties for effectual and complete adjudication of eviction petition in reconstruction case. It is held that in reconstruction of premises case other co-owners of premises No. 5 and 5/1 are necessary parties.

14. It is well settled law that Court can implead necessary parties at any stage of case despite the fact rt that non-revisionists are dominus litis of their case.

15. As per copy of Misal Hakiyat settlement Ext.DX placed on record following persons are other co-

owners of land relating to Khata No. 1 min Khatauni No. 8 Khasra No. 96 old min new 67 over which demised premises bearing No.5-5/1 is situated. (i) Smt. Pushpa Devi, Smt. Sneh Lata Devi, Smt. Prem Lata Devi, Susham Lata Devi, Savita Rani, Vijay Kumar, Ajay Kumar sons of Rattan Lal son of Lachhi Ram. (ii) Maksudan Lal, Karam Chand sons of Lachhi Ram son of Jodhu Mal.(iii) Gurcharan Dass son of Roshan Lal son of Beli Ram.(iv) Narender Kumar son, Smt. Parveen Kumari, Neena Kumari, Anita Kumari daughters and Smt. Shanti Devi widow of Shri ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 17 Kishori Lal son of Shri Beli Ram. (v) Sunil Kumar, Arvind Kumar sons and Smt. Nisha Kumari, Sawrsa Kumari daughters and Smt. Sarla Devi widow, Banwari Lal.(vi) .

Smt. Champa Devi widow and Jaisi Ram son of Shri Shiv Ram. (vii) Kailash Chand Kapil and Smt. Neelam Kumari, Ranjana daughters of Fakir Chand son and Raghu.(viii)Raj Kumar son of Sown Chand.(ix) Krishan lal son of Prabhu Dayal son of Pala. Above stated persons are not LRs of of Khushi Ram. Khushi Ram only purchased ½ (Half share) of premises in dispute from Padam Pal Singh vendor in the rt year 1941 by way of sale deed Ext.PQ in consideration amount of Rs.500/- (Five hundred). If LRs of Khushi Ram are allowed to raise new constrcution without consent of other co-owners by way of judicial order then legal rights of other co-owners of premises in dispute will be adversely effected. It is well settled law that no co-owner can raise new construction in joint property without consent of other co-owners. See AIR 1961 Punjab 528 title Sant Ram Nagina Ram vs. Daya Ram and others.

16. Submission of learned Advocate appearing on behalf of non-revisionists that learned Rent Controller and learned first Appellate Authority did not commit material irregularity in present case and other owners of land ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 18 comprised in Khata No. 1, Khatauni No. 8 Khasra No. 96 old min new 67 over which demised premises bearing No.5-5/1 is situated are not necessary parties in eviction .

petition of reconstruction is rejected being devoid of any force for the reasons hereinafter mentioned. Learned Rent Controller and learned first Appellate Authority have given the relief of reconstruction upon land comprised in Khata No. 1 min Khatauni No. 8 Khasra No. 96 old min new 67 of over which demised premises bearing No.5-5/1 is situated by way of demolition of old premises. Predecssor-in-

rt interest of Onkar Chand etc. namely Khushi Ram did not purchase entire premises No. 5 and 5/1 which is in dispute for reconstruction purpose by way of demolition but purchased only ½ (Half) share of premises in dispute by way of sale deed Ext.PQ persons who are co-owners of half premises No.5-5/1 cannot be allowed to demolish entire premises No. 5 and 5/1 for reconstruction purpose without consent of other co-owners of demised premises.

There is no evidence on record that partition of demised premises took place inter se all co-owners of demised premises in accordance with law. It is well settled law that Court can implead necessary parties at any stage of case suo moto under Order 1 Rule 10(2) of Code of Civil ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 19 Procedure 1908. It is held that other co-owners of premises No. 5-5/1 ought to have been joined as co-party.

It is held that presence of other co-owners of premises No. .

5 and 5/1 is necessary in order to decide eviction petition effectively and completely and to adjudicate upon and settle all questions involved in eviction petition. See AIR 1997 SC 64 title M/s Aliji Monoji & company vs. Lalji Mavji and others. See (1992)2 SCC 524 title Ramesh Hirachand Kundanmal of vs. Municipal Corporation of Greater Bombay and others. See (1994)1 SCC 402 title New Redbank Tea Co.Pvt. Ltd. vs. Kumkum Mittal and others. In view of above stated facts point No.1 is rt answered accordingly.

Point No. 2 (Relief)

17. In view of findings upon point No.1 order passed by learned Rent Controller dated 15.6.2005 and order passed by learned first Appellate Authority dated 2.4.2007 are set aside and present case is remitted back to learned Rent Controller for limited purpose only.

Learned Rent Controller will implead owners of land mentioned in Misal Hakiyat Ext.DX placed on record and mentioned in paras Nos. 15(i) to (15(ix) of this order as co-respondents in eviction petition being necessary parties as co-owners of premises No.5 and 5/1 of demised ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 20 premises as per Order 1 Rule 10(2) CPC suo motu.

Thereafter notices will be issued to newly added respondents by learned Rent Controller and thereafter .

learned Rent Controller will give opportunity to newly added co-party to file response. Thereafter learned Rent Controller will frame additional issues as per pleadings of parties. Thereafter learned Rent Controller will give opportunity to both parties to lead oral and documentary of evidence in accordance with law upon additional issues framed by learned Rent Controller as per pleadings of rt parties. Evidence already recorded will form part and parcel of record inter se original parties subject to right of cross examination of witnesses by newly added respondents. Thereafter learned Rent Controller will pass fresh order on eviction petition. As eviction petition is pending since 1994 learned Rent Controller will dispose of rent petition within three months. Sale deed Ext.PQ and Hindi translation of sale deed Ext.PQ/T and copy of Misal Hakiyat settlement Ext.PX placed on record would form part and parcel of order. Parties are directed to appear before learned Rent Controller on 24.10.2016. Parties are left to bear their own costs. Observations will not effect the merits of case in any manner. Record of learned Rent ::: Downloaded on - 15/04/2017 21:21:32 :::HCHP 21 Controller and learned first Appellate Authority be sent back forthwith along with certified copy of order. Revision petition is disposed of. All pending miscellaneous .

application(s) if any also stands disposed of.






                                                     (P.S.Rana),





    October 05,2016(ms)                                 Judge.




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