Civil Revision No.3657 of 1994 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3657 of 1994 (O&M) Date of Decision 21.07.2009 Smt.Sudha Gupta and another Petitioners VERSUS Ram Mohan Sharma and others Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Amit Jain, Advocate, for the petitioners. Mr.V.K.Jain, Senior Advocate, with Mr.Prashant Vashisth & Mr.Jaswant Jain, Advocates, for the respondents.
A.N.JINDAL, J(ORAL):
This revision petition is directed against the judgment dated 04.08.1994, passed by Sub Judge Ist Class, Ambala Cantt, whereby suit for possession filed under Section 6 of the Specific Relief Act filed by the petitioners-plaintiffs (herein after referred as 'the plaintiffs') was dismissed.
However, the parties were left to bear their own costs.
In nutshell, the brief resume of facts is that the plaintiffs claimed themselves to be a tenants in the house bearing No.6260/18 B.D. Compound, Idgah Road, Ambala Cantt consisting of two rooms, two stores, kitchen, latrine, bathroom, court yard and a stair case under Rai Bahadur Lal Banarsi Dass Trust Society (Registered) Ambala Cantt. On 14.07.1985, defendant-respondent Ram Mohan Sharma (herein referred as 'defendant No.1') accompanied by Rajeev, Surjit, Ramesh Chand and Bhanu Mal came to their house; threw away their household articles and turned them out. Prior to this occurrence, the plaintiffs had filed a suit for permanent injunction against defendant No.1 as well as the Trust. However, after they were dispossessed during the pendency of the suit, it was converted into suit for possession under Section 6 of the Specific Relief Act. The suit was contested by the defendants stating that plaintiffs were neither their tenants nor in possession of the suit property in any other capacity whereas defendant Sadhu Ram was a tenant in the premises since the year 1942 under the Trust i.e. defendant No.4 and he remained in possession, as such, the plaintiffs neither came in possession nor they were dispossessed from the premises in dispute. From pleadings of the parties, the trial Court framed the following issues:-
1. Whether the plaintiffs were forcibly dispossessed by the defendant ? OPP
2. Whether the plaintiffs were in peaceful possession over the property in their capacity as tenants at otherwise ? OPP
3. Whether the goods of the plaintiffs as mentioned in para No.4-C of the plaint are still lying in the disputed property and as such, whether the plaintiffs are entitled to regain the goods also ? OPP
4. Whether the plaintiffs have no locus-standi to file the suit ?
5. Whether the plaintiffs have no cause of action ? OPD
6. Whether the suit is bad for non-joinder of necessary parties ? OPD
7. Whether the suit is not properly valued for the purposes of court fees and jurisdiction ? OPD
8. Whether the defendant is entitled for special costs ? OPD
9. Relief.
It may further be noticed that earlier Sadhu Ram was the defendant and on his death Ram Mohan Sharma was impleaded as his legal representative. It also needs to be noticed that earlier defendants No.2 and 3 were not the party to the suit but lateron having found that they were also the necessary parties, they were impleaded as such. Defendant No.3 appeared and pleaded that they were the tenants under defendant No.4 i.e. Rai Bahadur Lal Banarsi Dass Trust Society (Registered) Ambala Cantt and they were constructing a private nursing home in place of the old building which has already been demolished by them. The said Trust had also filed a written statement in which it was pleaded that since Sh.Ram Mohan Sharma, was the tenant in the building, therefore, he delivered the possession of the building to defendant No.3 on a monthly rent of Rs.250/- per month and defendant No.3 was in possession over the property in dispute.
In his written statement, defendant No.3 stated that the building in dispute was in a dilapidated condition and he after taking permission of the Trust started raising construction over the hospital. Replication was filed to the written statement filed by defendants No.2 to 4 and following issues were framed:-
1-A Whether the suit of the plaintiff is not maintainable against the defendant No.4 in the present form ? OPD] 2-A Whether the suit is hopelessly time barred under the law of limitation against the answering defendants ? OPD 3-A Whether the suit is bad for mis-joinder of defendant No.2 ? OPD 4-A Whether the plaintiffs have no locus-standi to file the suit ? OPD Needless to peep back to the earlier litigation by way of suit for permanent injunction, it deserves to be mentioned that in order to be successful in a suit under Section 6 of the Specific Relief Act, the plaintiffs must prove as under:-
1. The plaintiffs were in possession of the premises at any time.
2. They must have been dispossessed.
3. Dispossession must be within 6 months from the filing of the suit and without their consent
4. They must have been dispossessed without any due process of law In order to support her case, Sudha Gupta, while appearing as PW1 stated that she alongwith Mamta Rani her sister were in possession of half portion of the house at a monthly rent of Rs.50/- under Sadhu Ram Sharma since the year 1980 when she apprehend dispossession, they filed a suit for permanent perpetual injunction against Sadhu Ram Sharma.
However, during the pendency of the suit, the defendants dispossessed them without de-course of law on 14.07.1985. Resultantly, they converted the suit for permanent injunction into a suit for possession under Section 6 of the Specific Relief Act. The earlier suit for injunction was instituted on 27.06.1985 and the alleged date of dispossession is 14.07.1985. Admitted case of the plaintiffs is that they remained in possession of the house in question since 1980 to 1985 but the plaintiffs have no document in their possession to strengthen their possession over the house. They took specific plea that they were the tenants under Sadhu Ram on a monthly rent of Rs.50/- but no such receipt has been placed on record in order to prove their tenancy. No ration card, voter list, voter identity card has been putforth to affirm their possession in portion of the house in dispute. No rent receipts have also been proved in order to show that they were the tenants under Sadhu Ram. Sudha Gupta-plaintiff is contradictory in her statement with regard to the possession over the property. Factually, there is one kitchen and one latrine and one bathroom regarding which the possession has been claimed. However, while appearing in the witness box, Sudha Gupta in her statement has stated that she was using latrine, bathroom, kitchen and joint courtyard. The only document, in order to prove their possession has brought into evidence rent receipt Ex.P1 dated 18.06.1985, allegedly issued by the officials of the Trust, draft rent note dated 29.11.1993 Ex.P2, a letter written by Ram Mohan to his father dated 27.08.1984 Ex.DX/1, and another letter written by him on 20.10.1985 Ex.DXY/3. So far as rent receipt and draft rent note are concerned, both are stated to be executed by the officials of the Trust in favour of the plaintiffs. Since it is not a case of the plaintiffs that they were ever the tenants under the Trust and they cannot deny their relationship with the defendant or his father Sadhu Ram, therefore, these documents issued by the officials of the Trust are of no consequence. Rather, these documents indicate that they wanted to execute a rent note in favour of the Trust i.e. respondent No.4 for creating a tenancy in respect of the house that also goes a long way to show that they were not in possession of the premises in question on the date when the draft note was prepared and it never took the shop on contract. In any case, assuming that the plaintiffs were already in possession of the suit property under Sadhu Ram and thereafter under Ram Mohan than the question of executing these rent receipt in favour of respondent No.4 did not arise. Similarly, as regards the letters Ex.DX, DX/1 and Ex.DXY/3, these are not in any way connected with the property in dispute. It may further be observed that a temporary possession cannot be termed as a permissive possession in the house if one allows a person to stay with him for sometime then that cannot be termed as his legal possession over the property. Temporary possession is no possession in the eyes of law. Thus, if the contents of the letters are taken as correct, even then those letters would not be sufficient to hold the possession of the plaintiffs. Once the plaintiffs are not proved to be in possession of the property then the question of dispossessing them does not arise.
In any case, no evidence has been led by the plaintiffs to prove their dispossession under the defendant No.1. Even otherwise, defendant No.1 was already in possession as tenant under defendant No.4 and he was not competent to introduce another tenant. As such, question of introducing the plaintiffs as tenants over the property by defendant No.1 does not arise. While going to the worst, even if the plaintiffs were in possession of the property as licencees then they could stay only till the wish is extended by the owner. It may further be observed that no evidence has been led to prove their dispossession during the pendency of the suit, therefore, the suit filed by them was not maintainable. The impugned judgment is well founded and well reasoned and does not suggest of any illegality much less irregularity suggesting interference at my end. Finding no merit in the present revision petition, the same is dismissed.
(A.N.Jindal) Judge 21.07.2009 mamta-II