R.S.A.No. 2245 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2245 of 2009 (O&M) Date of decision: 8.12. 2009 Moti Lal ......Appellant Versus Bhagwati .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Harsh Aggarwal, Advocate, for the appellant. Mr.B.K.Bagri, Advocate, for the respondent. **** SABINA, J. Plaintiff Bhagwati filed a suit for declaration and recovery, which was decreed by the Additional Civil Judge (Jr.Divn.), Rewari vide judgment and decree dated 6.9.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Rewari vide judgment and decree dated 18.2.2009. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 2245 of 2009 (O&M) 2 Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Brief facts of the case are that the defendant is a tenant in the house No.4616 situated at Apna Bazar, Mata, Mohalla Muktiwara, Rewari in the two rooms on the first floor as shown in red colour in the site plan on rent at the rate of Rs.800/- per month excluding the electricity bill. It is further averred that one Raj Kumar is also a tenant in a room on the first floor on rent at the rate of Rs.400/- per month. It is further averred that for cancellation of tenancy of the defendant, she had issued a legal notice under Section 106 of the Transfer of Property Act on 4.8.1998, whereby 15 days time was granted to defendant to vacate the premises. The notice was even sent at the village address of the defendant. Both these notices have been received by him. It is further averred that even after expiry of the period granted, the defendant has not vacated the premises and prayed that a decree for possession may be passed in her favour. It is further averred that the defendant has not paid the rent from 6.4.1996 till the date of filing which comes to Rs.22,400/- including interest and electricity bill of Rs.755/-. It is further averred that she required the premises in the first floor for her personal use. The first floor was constructed in the year 1994 after sanctioning of R.S.A.No. 2245 of 2009 (O&M) 3 the plan from the Municipal Committee, Rewari and therefore, the provisions of Section 13 of Haryana Urban (Control of Rent and Eviction) Act are not applicable. It is further averred that since the period of 10 years have not been passed after sanctioning of the site plan, therefore, they are entitled for possession. Hence, this suit. 3. Upon notice, defendant appeared and filed written statement, wherein, he raised preliminary objections to the effect that he is a statutory tenant and the provisions of Haryana Urban (Control of Rent and Eviction) Act is applicable and therefore, the present suit is not maintainable. It is further averred that plaintiff has concealed the facts from the Court, therefore, she is not entitled for relief. 4. On merits, it is averred that he is tenant and paying rent at the rate of Rs.400/- per month including electricity as statutory tenant under plaintiff. It has been denied that the rent was at the rate of Rs.800/- per month. He is paying the rent regularly from January 1996. No rent is due from the defendant intentionally. It is further averred that the present suit has been filed just to harass him. The legal notice issued to him under Section 106 of Transfer of Property Act is wrong and illegal. It has been averred that the R.S.A.No. 2245 of 2009 (O&M) 4 legal notices have been issued to him under Section 106 of Transfer of Property Act is wrong and illegal. It has been averred that the legal notices have been issued just to create evidence. It has been further averred that the plaintiff want to evict him forcibly and therefore, he moved an application to Deputy Commissioner, Rewari and also filed a civil suit for permanent injunction. It is also denied that the plaintiff is not in the necessity of the premises as they are having another house in Mohalla Vaidhwara. It is further averred that the plaintiff has constructed the house in the year 1975 and story of sanctioning of site plan in the year 1994 is wrong and illegal. It is further averred that he is paying the rent regularly at the rate of Rs.400/- per month. He has even sent the rent by money order in August, 1998 to which the plaintiff had refused to take. Thereafter, he offered Rs. 2400/- in January 1999 but the plaintiff refused to take the delivery. Therefore, he is paying the rent regularly in the Court and depositing the same in the Treasury, Delhi. At the end, the defendant prayed for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- R.S.A.No. 2245 of 2009 (O&M) 5 1. Whether the plaintiff is entitled to the recovery of Rs. 23,155/- along with interest? OPP 2. Whether the plaintiff is entitled to possession of the house in dispute? OPP 3. Whether this Court has got no jurisdictin to try the present suit ? OPD 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The question that requires consideration is as to whether the suit for possession of the property in dispute, which was admittedly rented out to the appellant in January 1996, was filed within ten years of the construction. Admittedly, the plaintiff purchased the building in question in the year 1974. At that time, only ground floor had been constructed. Two rooms were given on rent to the appellant in January 1996, which were constructed on the first floor. The plaintiff, in order to substantiate his case, proved on record site plan dated 8.3.1994 with regard to the proposed construction on the first floor. It is apparent that after the site plan was sanctioned, the construction was raised by the plaintiff. In the facts and circumstances of the present case, no further proof qua construction was required to be R.S.A.No. 2245 of 2009 (O&M) 6 led by the plaintiff. In these circumstances, the Courts below rightly held that the construction on the first floor had been raised after the site plan was sanctioned on 8.3.1994. Thereafter, the rooms constructed on the first floor were given on rent to the appellant. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the suit for possession had been filed within ten years of the construction raised on the first floor, which was later rented out to the appellant. The said finding of fact arrived at by the Courts below, cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 8, 2009 anita