RSA No.4035 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.11408-C of 2007 and RSA No.4035 of 2007 Date of Decision:29.09.2008 State of Haryana & Ors. ....appellants Versus Thakur Dass .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Bhupinder Beniwal, AAG Haryana for the appellants Mr.Munish Mittal, Advocate for the respondent **** RAKESH KUMAR GARG J. CM No.11408-C of 2007 For the reasons recorded in the application, delay of 18 days in filing the appeal is condoned. C.M. disposed of. RSA No.4035 of 2007 This is defendants' second appeal challenging the judgment and decrees of the Courts below, whereby the suit of the plaintiff- respondent for possession of the premises in question and mesne profits to the tune of Rs.100/-per day for illegal use and unauthorized possession of the shop in question from the date of filing of the suit till the delivery of possession with further direction to the defendants to hand over the vacant possession to the plaintiff within two months from the date of order, has been decreed. As per the averments made in the suit, the disputed property is located in a rural area and as such the provisions of Haryana RSA No.4035 of 2007 2 Urban(Control of Rent and Eviction)Act, 1973, do not apply to the demised premises. It is the case of the respondent that he is one of the owners of the property in dispute which was rented out in the year 1992 on monthly rent of Rs.1159/- only, which was subsequently enhanced to Rs.1449/- and finally to Rs.1669/- per month. The tenancy of respondent was terminated by issuing a valid notice under Section 106 of the Transfer of Property Act, but the defendants did not vacate the premises. Hence this suit for possession of property along with arrears of rent @ 1689/- per month plus interest and mesne profits to be calculated @ 5000/- per month plus interest @18% per annum. On notice, the defendants appeared and filed reply taking legal objections that there is no power of attorney on behalf of the remaining legal heirs of Bhagwat Parshad and as such the plaintiff has no right or authority to file the suit. It was also submitted that the alleged building was rented out by the father of the plaintiff during the year 1983 for the purpose of establishing Police Post Jathlana @ 633/- per month, after getting the rent arrears from the PWD which was later on enhanced w.e.f.01.03.1989 to Rs.1159/- per month and further enhanced to Rs. 1689/- per month. It is further averred that the defendants are regularly paying the electricity and water charges and in addition to this, white wash and necessary minor repair of the building are also being paid by the police department. It is admitted that the police post had been converted into Police Station and the factum regarding additional construction is also admitted. However, it is alleged that the entire rent till date has been paid to the plaintiff. Thus, the petition has become infructuous. The plaintiff is regularly accepting the rent without any protest. Moreover, the defendants have taken steps to acquire the land at village Jathlana for construction of Police Station. Dismissal of the petition was prayed for. RSA No.4035 of 2007 3 After considering the evidence on record and the arguments raised by the counsel for the parties, the suit of the plaintiff-respondent was decreed by the trial Court. Feeling aggrieved, the defendants filed an appeal in the Court of District Judge, Yamunanagar, who, vide his judgment and decree dated 24.08.2007 modified the judgment and decree of the trial Court to the extent that defendants shall be liable to pay mesne profit equal to agreed monthly rent from the day of filing of the suit till 30.01.2007, whereafter, they shall be liable to pay mesne profits at the rate allowed by the learned Trial Judge i.e. Rs.100/- per day. With the aforesaid modification in the relief clause, the appeal filed by the defendants was dismissed. Still not satisfied, the defendants have filed the present appeal. Challenging the judgment and decrees of the Courts below , the learned Assistant Advocate General, Haryana, appearing for the appellants has argued that the appellants-defendants had been paying the rent regularly after getting its arrears from the PWD and the same is being accepted by the plaintiff-respondent without any protest till date and therefore the respondent has no cause of action to file the present suit. It has further been argued that the plaintiff-respondent has not led any evidence in support of his case and the findings of the Courts below are the result of misinterpretation and misreading of the evidence on the record and therefore the appeal is liable to be accepted. I have heard learned counsel for the appellants. However, I find no force in the contention of the learned counsel for the appellants. After going through the pleadings and appreciating the evidence on record, the Courts below have recorded a finding of fact that the provisions of Haryana Urban(Control of Rent and Eviction)Act, 1973, do not apply as the property in question is not situated within the municipal limits of any town and it has been established on record that the tenancy rights have been RSA No.4035 of 2007 4 determined by the landlord in accordance with the law by issuing a notice under Section 106 of the Transfer of Property Act. The other contention raised by the learned counsel for the appellants that the plaintiff- respondent has no locus standi to bring the suit as the other close legal heirs of Bhagwat Parshad, are alive, is also without any basis. Mr. Anant Narain, PW1 has specifically stated that all the co-owners have authorized the plaintiff to file the suit and seek eviction of tenant. Even otherwise, it is settled law that one of the co-owners can claim possession for the benefit of all the co-owners as has been held by this Court in ' Ilam Chand versus Ved Parkash 2003(2)267 For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 29.09.2008 neenu