Punjab-Haryana High Court
Om Parkash Kataria vs Kanwar Singh Kataria And Others on 3 March, 2011
Author: L. N. Mittal
Bench: L. N. Mittal
R. S. A. No. 4038 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 4038 of 2009
Date of Decision : March 03, 2011
Om Parkash Kataria .... Appellant
Vs.
Kanwar Singh Kataria and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Sachin Mittal, Advocate
for the appellant.
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L. N. MITTAL, J. (Oral) :
Defendant no.1 Om Parkash Kataria, having lost in both the courts below, is in second appeal.
Suit was filed by respondent no.1-plaintiff Kanwar Singh Kataria against defendant no.1-appellant and proforma respondents no.2 and
3. Judgment of the lower appellate court reveals that defendant no.2 had since died and first appeal was preferred by legal representatives of defendant no.2 along with defendant no.1, but in the instant second appeal, defendant no.2 himself has been impleaded as proforma respondent no.2, although as is apparent from the judgment of the lower appellate court, R. S. A. No. 4038 of 2009 2 defendant-respondent no.2 has already died.
Plaintiff's case is that he is tenant in the two disputed shops no.13 and 14 under defendant no.3 - Sri Gurgaon Gaushala Sabha. Plaintiff had purchased some other land from Chand Kaur etc. Defendant no.1 is son-in-law of said Chand Kaur, whereas defendant no.2 is friend of defendant no.1. Accordingly, on request of defendants no.1 and 2, the plaintiff allowed defendants no.1 and 2 to use the plaintiff's office in the disputed shops without creating any obstruction in the business of the plaintiff himself as Property Dealer. Later on, the plaintiff being old and physically handicapped, could not go to the disputed shops on account of illness. Defendants no.1 and 2 claimed to have agreement dated 04.04.1994 allegedly executed by the plaintiff, but in fact, the said agreement is forged one. The plaintiff never executed the said agreement. Accordingly, the plaintiff sought mandatory injunction directing defendants no.1 and 2 to stop using the disputed shops and to deliver vacant possession thereof to the plaintiff and also directing defendant no.3 to treat the plaintiff as its tenant.
Defendants no.1 and 2 broadly controverted the plaint allegations and inter alia pleaded that defendants no.1 and 2 were tenants in the disputed shops under defendant no.3 and were using the same since the year 1986. They sublet the disputed shops to plaintiff in the year 1986. Plaintiff, vide agreement dated 04.04.1994, gave possession of the disputed R. S. A. No. 4038 of 2009 3 shops to defendants no.1 and 2. The said agreement has been executed by the plaintiff. It was denied that the plaintiff gave the disputed shops to defendants no.1 and 2 on license. Various other pleas were also raised.
Defendant no.3 admitted that plaintiff was tenant under defendant no.3 in the disputed shops since the year 1982. Defendant no.3, however, pleaded that the plaintiff executed agreement dated 04.04.1994 and on his request, the disputed shops were rented out to defendants no.1 and 2 by defendant no.3 and now, defendants no.1 and 2 are tenants under defendant no.3 in the disputed shops. License by plaintiff in favour of defendants no.1 and 2 qua the disputed shops was denied. Various other pleas were also raised.
Learned Civil Judge (Junior Division), Gurgaon, vide judgment and decree dated 13.06.2006, decreed the plaintiff's suit. First appeal preferred by defendant no.1 and legal representatives of defendant no.2 has been dismissed by learned Additional District Judge, Gurgaon, vide judgment and decree dated 11.05.2009. Feeling aggrieved, defendant no.1 only has preferred the instant second appeal.
I have heard learned counsel for the appellant and perused the case file.
Both parties have examined handwriting experts regarding signatures of plaintiff on the impugned agreement. Expert witness R. S. A. No. 4038 of 2009 4 examined by the plaintiff has stated that the said signatures are not of the plaintiff, whereas expert witness examined by defendants has opined that the said signatures are of the plaintiff. However, science of comparison of handwriting/signatures is weak science. Ordinarily, handwriting expert engaged by a party gives opinion in favour of said party. In the instant case also, same thing has happened. Both the expert witnesses have given contradictory reports. Consequently, not much weight can be attached to the said reports, as also done by the courts below.
There is a very significant circumstance to depict that the impugned agreement is forged one. The agreement is dated 04.04.1994. Shamsher Singh (DW-1) is one of the attesting witnesses of the said agreement. In address of the said witness in the agreement, number of his house has also been mentioned. However, the said house number was admittedly allotted by the Municipal Authorities after September 1994. Mentioning of the said house number in the agreement dated 04.04.1994, therefore, manifestly demonstrates that the said agreement has been forged. Learned counsel for the appellant is unable to explain as to how the said house number allotted after September 1994 could be mentioned in the agreement dated 04.04.1994.
Shamsher Singh stated that stamp paper for the agreement was purchased on 04.04.1994. However, in fact, the stamp paper for the R. S. A. No. 4038 of 2009 5 agreement was purchased on 04.03.1994. This circumstance again demonstrates that the impugned agreement is not genuine. It is also not explained as to why the stamp paper was purchased one month in advance before the execution of the agreement.
Defendants no.1 and 2 pleaded that they were direct tenants under defendant no.3 since inception and they had sublet the disputed shops to the plaintiff. However, even defendant no.3 pleaded that plaintiff was direct tenant under defendant no.3 and tenancy in favour of defendants no.1 and 2 was created pursuant to agreement dated 04.04.1994. The plaintiff was tenant in the disputed shop since the year 1982, whereas defendants no.1 and 2 pleaded that they sublet the disputed shops to the plaintiff in the year 1986.
The defendants also alleged that they are running partnership firm in the disputed shops since the year 1986-87. However, their partnership deed is dated 22.10.1992. This circumstance again falsifies the version of defendants no.1 and 2. They have also withheld their account books and other documents, and therefore, adverse inference has been rightly raised against them.
In addition to the aforesaid, the impugned agreement is completely without consideration. No consideration is recited to have been paid to the plaintiff in lieu of relinquishment of tenancy. Agreement without R. S. A. No. 4038 of 2009 6 consideration is obviously null and void. Faced with this situation, defendants no.1 and 2 came out with version that they have paid Rs.40,000/- as consideration to the plaintiff for the impugned agreement. However, there is no recital, about any consideration settled or paid, in the impugned agreement. Consequently, oral stand of defendants no.1 and 2 in this regard, being contradictory to the contents of the agreement, cannot be accepted. The agreement is also unregistered one. If the tenancy had been relinquished by the plaintiff for consideration of Rs.40,000/-, then it required compulsory registration.
For the reasons aforesaid, I have no hesitation in affirming the concurrent finding recorded by both the courts below that the impugned agreement dated 04.04.1994 is not genuine. Admittedly, the plaintiff was in possession of the disputed shops. Consequently, defendants no.1 and 2 have no right to continue to occupy the disputed shops. The same had been given to them on license by the plaintiff, as also mentioned in alleged agreement dated 04.04.1994. Therefore, plaintiff is entitled to take possession of the disputed shops. The suit has been rightly decreed by the courts below. Concurrent finding recorded by the courts below is fully justified by the evidence on record and is supported by cogent reasons. No illegality or perversity is shown in the said finding nor it is based on misreading or misappreciation of evidence, so as to warrant interference in second R. S. A. No. 4038 of 2009 7 appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is accordingly dismissed in limine being devoid of any merit.
March 03, 2011 ( L. N. MITTAL ) monika JUDGE