R.S.A. No. 3093 of 2004 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3093 of 2004 (O&M) Date of Decision : 12.1.2009 Chhajju Ram & others .......... Appellants Versus Basant Nath ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Kuldeep Sanwal, Advocate for the appellants. Mr. A.P. Singh, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 3.4.2004 passed by the learned lower appellate Court decreeing the suit partly by holding that plaintiff-appellant was in possession of the property in dispute but not as a tenant. The plaintiff-appellant filed a suit for declaration and permanent injunction claiming that he was tenant over the property in dispute and, therefore, was entitled to injunction against the defendant from dispossessing him, except in due process of law. The suit was contested. On the pleadings of the parties, the learned trial Court was R.S.A. No. 3093 of 2004 2 pleased to frame the following issues :- R.S.A. No. 3093 of 2004 (O&M) -2- “1. Whether plaintiff is in possession as tenant over the suit property as alleged ? OPP 2. Whether the plaintiff is entitled to injunction as prayed for ? OPP 3. Whether suit is not maintainable in the present form ? OPD 4. Whether plaintiff has not come to court with clean hands. If so its effect ? OPD 5. Whether site plan produced on file is not correct ? OPD 6. Whether the plaintiff is estopped by his act and conduct ? OPD 7. Whether the plaintiff has got no locus standi to file the present suit ? OPD 8. Relief.” Issues No. 1 & 2 wee decided in favour of the plaintiff- appellant and consequently the following relief was granted :- “Consequent upon my findings on the aforesaid issues, the suit filed by the plaintiff is partly decreed with costs. The defendant is permanently restrained from demolishing the roof of the shops marked ABCD as shown in the site plan. He is also permanently restrained from dispossessing the plaintiff from the said shops R.S.A. No. 3093 of 2004 3 illegally and forcibly except through due process of law. Decree-sheet be prepared accordingly. File be consigned to judicial record room.” R.S.A. No. 3093 of 2004 (O&M) -3- The judgment and decree passed by the learned trial Court was challenged by the respondent-defendant before the Additional District Judge (Adhoc) Fast Track Court, Gurdaspur. The appeal was accepted and the finding of the learned trial Court holding plaintiff-appellant to be tenant of the property in dispute was ordered to be set aside. However, the learned lower appellate Court found that plaintiff-appellant was in possession of the property in dispute and, therefore, partly decreed the suit holding that he could not be dispossessed except with due process of law. The relief granted by the learned lower appellate Court reads as under :- “In view of the aforesaid discussion appeal filed by the defendant Mahant Shankar Nath is partly allowed to the effect that plaintiff Om Parkash is not entitled to be granted declaration that he is a tenant of the disputed shop at a monthly rent of Rs. 6/- per month since 1960. However, his prayer for permanent injunction restraining the defendant from demolishing the roof of disputed shop and the second prayer of restraining the defendant from dispossessing the plaintiff from disputed shop illegally and without due course of law, is allowed. Appeal filed by the defendant Mahant Shankar Nath is accordingly disposed of with the above observations. Parties are left to bear their own costs. Decree-sheet be R.S.A. No. 3093 of 2004 4 prepared. Lower court record be sent back. Record of the appellate court be consigned to record-room.” The learned counsel for the appellant has challenged the finding of the learned lower appellate Court primarily on the plea that the learned lower appellate Court was in error in reversing the finding of the R.S.A. No. 3093 of 2004 (O&M) -4- learned trial Court by misreading documentary evidence i.e. Ex. P-8. The previous judgment by the Civil Court wherein the plaintiff-appellant was showing him to be the tenant over the suit property. It is also claimed by him that plaintiff-appellant had proved on record the receipt of payment of rent and the rent note. On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant-plaintiff. Ex. P-8 is not a judgment inter se between the parties, therefore, could not be binding on the defendant-respondents in absence of independent evidence. The plaintiff failed to prove on record the rent note and the receipt which was said to have been executed in favour of the plaintiff. The learned lower appellate Court, thus, on appreciation of evidence has rightly come to the conclusion that the plaintiff has failed to prove that he is tenant over the property in dispute, however, possession of the plaintiff stood proved on record. The learned lower appellate Court thus held that he could be dispossessed with due process of law. The findings recorded by the learned lower appellate Court are R.S.A. No. 3093 of 2004 5 based on appreciation of evidence which cannot be said to be perverse. This appeal, therefore, raises no substantial question of law for consideration by this Court. No merit. Dismissed. 12.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE