Punjab-Haryana High Court
Tarlochan Singh vs Sheela Rani & Anr on 12 November, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
ESA 49 of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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ESA No.49 of 2014 (O&M)
Date of Decision:12.11.2014
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Tarlochan Singh
. . . .Appellant
Versus
Sheela Rani and another
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.HPS Ghuman, Advocate,
for the appellant.
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RAKESH KUMAR JAIN, J.
This appeal is directed against the order dated 20.9.2014, accepting the appeal filed by respondent No.1 against the order passed in favour of the appellant by the Executing Court dated 19.5.2014.
The brief facts of the case are that respondent No.1 filed an ejectment application against respondent No.2, who happened to be the son of the appellant, under Section 13 of the East Punjab Urban Rent and Restrictions, Act, 1949 [for short 'the Act'] on the ground of non-payment of rent. The provisional rent was assessed but respondent No.2 did not tender it as a result thereof, he was proceeded against ex parte and an ejectment order was passed on 28.8.2009. The application for setting aside the ex parte decree was also dismissed on 20.10.2012. The decree holder/respondent No.1 VIVEK PAHWA 2014.11.18 10:57 I attest to the accuracy and authenticity of this document ESA 49 of 2014 -2- filed the execution on 17.12.2009 in which the judgment debtor/tenant filed the objections. The objections were dismissed but the appellant filed applications for staying the execution and for amendment of the objections under Order 6 Rule 17 of the Code of Civil Procedure, 1908 [for short 'the CPC'].
The case set up by the appellant is that he is the proprietor of M/s Ideal Spare Industries and is in possession of a part of the demised premises since 1999 and the ejectment order has been obtained by respondent No.1 with the connivance of respondent No.2. It is alleged that the decree-holder had purchased property measuring 197 sq. yards by way of registered sale deed dated 30.6.1997 from Kavita Khosla and others, whereas the appellant entered into possession of the shed in question through Bekunth Lal and Girdhari Lal, husband of respondent No.1, in the month of February 1999 and since then he is in lawful possession of the shed in dispute wherein he is running his factory for manufacturing auto parts. The appellant has also got the telephone connection in the demised premises in 1993. It is also the case of the appellant that the decree-holder had executed a rent note earlier in respect of her shed in favour of respondent No.2 on 12.5.1999 but the tenant vacated the said premises and handed over the possession to her and thereafter, respondent No.1 partitioned the said portion into two parts out of which one part was given to different tenants from time to time and second part to Bhupinder Singh. It is also his case that respondent No.2 is his only son, whom he had disinherited on 31.3.2008 and due to this reason, in VIVEK PAHWA 2014.11.18 10:57 I attest to the accuracy and authenticity of this document ESA 49 of 2014 -3- order to take a sort of revenge, he has connived with respondent No.1 and played the fraud by involving his property intentionally in the present dispute by showing the same as a tenanted premises in the site plan. The decree-holder/respondent No.1 refuted the claim of the objector and alleged that it is a ploy to help his son and to harass her. The Appellate Court had found that when the application for setting aside the ex parte order of eviction was filed by respondent No.2, the appellant supported his case because he appeared as witness for him as AW2, therefore, the story propounded by the appellant that he had disinherited his son is unbelievable. Moreover, it has also been found that the appellant had filed a suit for specific performance of the agreement dated 25.1.2000 in the year 2013 when the application for setting aside the ex parte order and objection filed by respondent No.2 were dismissed. It was also found that the appellant has no title to the property because at present he only alleges an agreement to sell in his favour, which does not confer title. It was also found that the appellant had failed to explain as to how he came into possession of the portion of the property and the document pertaining to telephone bills, electricity bills and income tax assessment etc. cannot be relied upon as he had failed to establish as to how he came into possession. Moreover, the Appellate Court had also found that from the last seven years neither any rent has been deposited nor they had complied with the conditions of compromise, clearly abusing the process of law and frustrating the rights of the decree-holder.
VIVEK PAHWA 2014.11.18 10:57 I attest to the accuracy and authenticity of this document ESA 49 of 2014 -4-
Learned counsel for the appellant has vehemently argued that the order of the Appellate Court suffers from illegality because the impugned order was not appealable and that the property was purchased by the appellant from Bekunth Lal and Girdhari Lal, husband of the decree-holder, through agreement to sell, therefore, he is entitled to retain the possession. In support of his submissions, he has referred to a judgment of the Supreme Court rendered in the case of "Khazan Singh (died) through LRs Vs. Gurbhajan Singh and others" 2007(2) RCR (Civil) 340. However, the said judgment is not applicable to the facts and circumstances of the case because in the said case, the Court was concerned with the interpretation of the decree passed on 14.1.1953 and the question was not decided as to whether the appeal is maintainable or not. In any case, the appellant has not become the owner of the suit property because it is claimed only on the basis of the agreement to sell which does not confer title, in view of the decision of the Supreme Court, in the case of Suraj Lamp and industries Pvt. Ltd. Vs. State of Haryana and another, AIR 2012 SC 206, in which it has been held that immoveable property can be transferred only through the sale deed.
The appellant has also admitted during the course of hearing that he had filed the application for stay in the suit filed by him for seeking specific performance of the agreement to sell but the application was also dismissed and no injunction was granted. Since, the appellant is not the owner and has not come to the Court with clean hands as his consistent stand is that he had no relations VIVEK PAHWA 2014.11.18 10:57 I attest to the accuracy and authenticity of this document ESA 49 of 2014 -5- with his son/respondent No.2, against whom the ejectment order has been passed because he appeared for him when he filed the application for setting aside the ex parte ejectment order, the learned Appellate Court has committed no error in dismissing the objection.
In view of the aforesaid discussion, I do not find any merit in the present appeal and the same is hereby dismissed.
(RAKESH KUMAR JAIN) 12.11.2014 JUDGE Vivek VIVEK PAHWA 2014.11.18 10:57 I attest to the accuracy and authenticity of this document