R.S.A. No. 3301 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3301 of 2006 (O&M) Date of decision: 05.02.2009 Shagan Lal ....Appellant Versus Amin Lal and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Ms. Sonia G. Singh, Advocate, for the appellant. Mr. Ashok Aneja, Adocate, for the respondents. ***** VINOD K. SHARMA, J (ORAL) C.M. No. 8058-C of 2006 This is an application under Section 5 of the Limitation Act for condoning the delay of 226 days in filing the present appeal. It has been averred in the application that the appeal could not be filed, as the appellant was old man, suffering from tuberculosis, COPD, DM and rheemoloa artiris. It was on account of serious illness that he was unable to travel to enquire about his case from his counsel and on this account delay of 226 days occurred. Notice of the application was given. The application is opposed primarily on the plea that no evidence in support of illness has been produced on record. R.S.A. No. 3301 of 2006 (O&M) -2- The application is supported by an affidavit and the appellant died due to his illness, therefore, sufficient cause has been shown for condonation of delay. The application is accordingly allowed and delay of 226 days in filing the appeal is condoned. R.S.A. No. 3301 of 2006 This regular second appeal is directed against the judgment and decree dated 26.7.2006 passed by the learned lower appellate Court vide which the suit filed by the plaintiff/respondents for possession and mesne profit stands decreed. The plaintiffs brought a suit on the plea that they were owners of the property in dispute, wherein the appellant/defendant was tenant under the plaintiffs at monthly rent of Rs.500/- (Rupees five hundred only). It was further the case set up by the plaintiff/respondents that the tenancy was terminated by issuing notice under Section 106 of the Transfer of Property Act, and thereafter the appellant/defendant was unauthorised occupant. They were entitled to mesne profit from appellant for use and occupation of the property, as unauthorised occupant. The suit was contested by the defendant/appellant on the plea that the possession of the appellant was permissive, as a sum of Rs.40,000/- (Rupees fourty thousand only) stood paid to the plaintiff/respondents and in lieu thereto the defendant was to be in possession, subject to adjustment of interest towards rent. The learned trial Court decreed the suit by accepting the version of the defendant/appellant that the possession of Shagan Lal was permissive and, therefore, the plaintiffs were not entitled to decree of possession or mesne profit. R.S.A. No. 3301 of 2006 (O&M) -3- The plaintiff/respondents filed an appeal against the judgment of the learned trial Court. The finding of the learned trial Court that the possession was permissive, was reversed in view of the stand taken by the appellant/defendant in the previous litigation that he was tenant under the plaintiff/respondents. The learned lower appellate Court held that the tenancy stood terminated by notice under Section 106 of the Transfer of Property Act and, therefore, the plaintiff/respondents were entitled to possession, the suit for possession was decreed. The learned Court also granted decree for a sum of Rs.7,500/- (Rupees seven thousand five hundred only) towards mesne profit for use and occupation of the premises, and future damages @ Rs.1,000/- (Rupees one thousand only). The learned counsel for the appellant raises the following substantial question of law for consideration: - “Whether the judgment and decree passed by the learned lower appellate is outcome of mis-reading and mis-interpretation of evidence brought on record thus perverse?” The learned counsel for the appellant, in support of the substantial question of law, as framed, contends that the learned lower appellate Court mis-read the evidence brought on record to hold that there existed the relationship of landlord and tenant between the parties, even though, specific stand in previous litigation taken by the plaintiff/respondents was that defendant/appellant was in unauthorised occupation of the property in dispute. It is also the contention of the learned counsel for the appellant that in view of the stand taken by the plaintiff/respondents, the learned lower appellate Court was not justified in reversing the finding recorded by the learned trial Court, holding the possession of the appellant/defendant to be permissive in law. R.S.A. No. 3301 of 2006 (O&M) -4- The learned counsel for the appellant also contends that the learned lower appellate Court committed an error in law in decreeing the suit for mesne profit in absence of any evidence on record. The contention of the learned counsel for the appellant in this regard is that qua the rate of rent, statements by the witnesses produced by the plaintiff/respondents were in consistent, these coupled with the stand of the plaintiff/respondents in previous suit that the appellant was unauthorised occupant, it was incumbent upon the plaintiff to have proved by evidence the claim of mesne profit. No evidence is brought on record to show, as to what was the rate of rent prevelant, to claim mesne profit. Nor any evidence of rent having been paid was produced on record. The contention of the learned counsel for the appellant is that the decree for mesne profit is based on no evidence. On consideration of matter, I find no force in the first contention raised by the learned counsel for the appellant. The learned lower appellate Court was justified in passing a decree for possession, as in case, the stand of the defendant/appellant is accepted that a sum of Rs.40,000/- (Rupees fourty thousand only) was paid, and in pursuance thereto, he was put in possession by adjusting the interest to be rent, and he could not be evicted till a sum of Rs.40,000/- (Rupees fourty thousand only) was paid back, cannot be accepted, as it would amount to mortgage with possession of the property. The mortgage deed is required to be by way of registered deed as oral mortgage is not permissible, therefore, stand is totally misconceived, and could not give right to defendant/appellant to continue to be in possession of the property. No fault can be found with the decree of possession. R.S.A. No. 3301 of 2006 (O&M) -5- However, there is force in the contention raised by the learned counsel for the appellant that the plaintiff/respondents are not entitled to decree for mesne profit. Admitteldy there is no evidence on record showing rate of rent, or proof of payment of rent ever, nor there is evidence of rent prevelant in market to claim mesne profit. The finding recorded by the learned lower appellate Court is based thus on no evidence thus perverse. The plaintiff/respondents are also not entitled to any rent, in view of stand taken that no rent was payable under the arrangement, which stands rejected as mortgage was to be by registered document. Impugned part of judgment and decree of the learned lower appellate Court, thus, deserves to be set aside. Decree qua possession is, however, upheld. In view of the fact and circumstances of this case, no mesne profit has been assessed for use and occupation, the appellant through learned counsel undertakes to hand over the vacant possession of the premises in dispute to the plaintiff/respondents within two months from today, as after the decree his possession is unauthorised. With modification regarding mesne profit, the decree for possession stands confirmed. Appeal disposed of. (Vinod K. Sharma) Judge February 05, 2009 R.S.