R.S.A. No. 3436 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3436 of 2007 (O&M) Date of decision : 26.8.2010 ... Ravi Gupta ................Appellant vs. Smt. Usha Arora and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Amit Jain, Advocate for the appellant Sh. Avnish Mittal, Advocate for the respondents ... K.C. Puri, J. This is a regular second appeal directed by the defendant- appellant against the judgment dated 13.8.2007 passed by Sh. L.N. Jindal, Additional District Judge, Ambala, vide which the appeal preferred by the defendant-appellant against the judgment dated 10.2.2007 passed by Sh. Lal Chand, Additional Civil Judge (Senior Division), Ambala Cantt., was partly allowed. Plaintiffs- Smt. Usha Arora and Mohinder Pal Garg filed a suit for mandatory injunction and mesne profits for use and occupation with the averments that plaintiff No.1 is the owner of R.S.A. No. 3436 of 2007 -2- house bearing No. 6347, situated at Park Road, Near Congress Bhawan Punjabi Mohalla, Ambala Cantt. and plaintiff No.2 is her attorney. According to the plaintiffs, defendant was having friendly relations with plaintiff No.2 and as such, he inducted the defendant as a licensee on the Ist floor of the aforesaid house comprising of four rooms, kitchen, open terrace, projection on the southern side and latrine and bathroom, in March 1999 for a short period as he was in need of accommodation for marriage of his daughter and for reconstructing his own house No. 6341/18 situated at Ahluwalia Building, Ambala Cantt. The further case of the plaintiffs is that licence of the defendant was revoked by way of legal notice dated 13.2.2004, but despite the same, the defendant has failed to vacate the house in dispute. It is further pleaded in the plaint that earlier defendant has filed civil suit No. 137 of 8.9.2003 for permanent injunction against plaintiff No.2 but the same was withdrawn by him on 15.9.2003. According to the plaintiffs, such accommodation in the locality concerned could fetch Rs.18,000/- to Rs.20,000/- per month and thus they claimed mesne profits for use and occupation for 15 days i.e. from 16.2.2004 to 2.3.2004, amounting to Rs.9,000/- besides further mesne profits at the rate of Rs.18,000/- per month till delivery of possession. The plaintiffs also paid court fee on the said amount which represented the mesne profits for the period after terminating of tenancy till the date of filing of the suit. Since the defendant failed to do the needful, hence the suit for mandatory injunction was filed directing the defendant to hand over the vacant possession of the house in dispute to the plaintiffs as well as for recovery of mesne R.S.A. No. 3436 of 2007 -3- profits and future mesne profits, as aforesaid. The suit was contested by the defendant by filing the written statement pleading that defendant is a tenant since September 2003 under the plaintiffs at a monthly rent of Rs.500/-. It was further pleaded that provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are applicable to the house in dispute and hence the present suit for injunction was not maintainable. It was denied that plaintiff No.2 inducted the defendant as a licensee in house No. 6347, Park Road, Near Congress Bhawan, Ambala Cantt., as alleged. It was also denied that plaintiff no.2 is the attorney of plaintiff No.1. It was pleaded that the real fact is that plaintiff No.2 is a dishonest and crooked person and he has cheated and deceived the defendant. It was further pleaded that defendant was first made a partner in the business by plaintiff No.2 in the firm M/s Ravi Frost and then in year 1999, the defendant was put in possession of portion of the Ist floor of the house bearing House Tax No. 6345 (which the plaintiffs have wrongly alleged as 6347) as owner in lieu of said partnership. It was further pleaded that plaintiff no.2 started claiming his ownership over the portion in dispute in July 2003 and threatening to dispossess the defendant therefrom and hence defendant had filed a suit for permanent injunction against forcible dispossession. It was further pleaded that after filing of the said suit, plaintiff No.2 came to the defendant and told that it was plaintiff No.1 who was the owner of the house in dispute and then an oral compromise was arrived at in the month of September 2003, and defendant was admitted as a tenant over the portion in dispute on payment of Rs.500/- as rent under R.S.A. No. 3436 of 2007 -4- plaintiff No.1. Since then, the defendant has been paying the rent but plaintiff no.1 did not issue any receipt. Now, both plaintiffs had colluded to dispossess the defendant from the portion in dispute. It was denied that prevailing market rent of the said portion was Rs.18,000/- per month. Defendant further prayed for dismissal of the suit. Replication was filed reiterating the averments made in the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether plaintiff is entitled for relief of mandatory injunction as prayed for? OPP. 2. Whether plaintiff is entitled for recovery of Rs.9,000/- as prayed for? OPP. 3. Whether suit is not maintainable in its present form? OPD 4. Whether plaintiffs have no cause of action to file the present suit? OPD 5. Whether suit is bad for mis-joinder and non-joinder of necessary parties? OPD 6. Relief. In order to prove their case plaintiff No.2 himself appeared as PW-1 and closed the evidence. In rebuttal, defendant Ravi Gupta himself appeared as DW-7 and also examined DW-1 Jai Parkash Aggarwal, DW-2 Atul Kumar Sharma, DW-3 Devinder Kumar Jain, DW-4 Vijay Kumar, DW-5 Rajnish Kumar, DW-6 Ghasita Singh and closed the evidence. R.S.A. No. 3436 of 2007 -5- Learned trial Court has taken up issues No. 1 and 2 together and returned the finding on both these issues in favour of the plaintiffs. Issues No. 3, 4 and 5 were decided against the defendant. So, in view of the findings on the issues, the suit of the plaintiffs was decreed, vide judgment dated 10.2.2007 passed by Sh. Lal Chand, Additional Civil Judge (Senior Division), Ambala Cantt. The defendant was directed to hand over the vacant possession of the house in dispute to the plaintiffs within three months. The suit of the plaintiffs for recovery of mesne profits to the extent of Rs.9,000/- from 16.2.2004 to 2.3.2004 and future use and occupation charges at the rate of Rs.18,000/- per month from the date of institution of the suit till delivery of the possession was decreed. Feeling dissatisfied with the above said judgment, the defendant-appellant filed the Ist appeal and the same was partly allowed vide judgment 13.8.2007 passed by Sh. L.N. Jindal, Additional District Judge, Ambala and judgment and decree of the trial Court was modified to the extent that plaintiffs were entitled to mesne profits @ Rs.1,000/- per month w.e.f. 16.2.2004 till the date of delivery of possession. The defendants were allowed two months time to vacate the premises. Still feeling dissatisfied with the judgments dated 13.8.2007 and 10.2.2007, referred to above, the defendant-appellant has preferred the present regular second appeal. The defendant-appellant in paragraph No. 16 of the grounds of appeal has mentioned that following substantial questions of law are involved in the present appeal:- R.S.A. No. 3436 of 2007 -6- a) Whether in the facts and circumstances of the instant case the approach of the learned courts below in decreeing the suit for mandatory injunction against the appellant can be sustained in law particularly when respondent No.1 had failed to appear into the witness box to lead affirmative evidence? b) Whether in the facts and circumstances of the instant case and in the background that the partnership existed between the parties and subsequent compromise, the appellant could be said to be a licencee? c) Whether the appellant who have led affirmative evidence to show that he was tenant in the suit property, the suit for mandatory injunction was maintainable? d) Whether in the facts and circumstances of the instant case the approach of the learned Courts below in granting damages/mesne profits, without there being any material to support such a finding, is not illegal and unsustainable in law? Learned counsel for the appellant has submitted that although at initial stage plaintiff No.2 has given the possession of the disputed house as business partner, but in the year 2003, the possession was handed over to the defendant-appellant as tenant and not licensee. There is a relationship of landlord and tenant between the parties. So, in these circumstances, the defendant-appellant can be evicted by passing an ejectment order and suit for possession is not maintainable. The defendant-appellant is not in possession of the suit R.S.A. No. 3436 of 2007 -7- property as licensee but as a tenant and both the Courts below have misread and misinterpreted the evidence in this regard on the file. It is further submitted that plaintiff No.1 herself has not come into the witness box. The fact of licensee or tenancy was within the knowledge of Plaintiff No.1. Since plaintiff No.1 has not come into the witness box and as such plaintiff No.1 has failed to prove the fact that defendant is in possession of the suit property as licensee. So, suit for possession is not maintainable. To support this contention, learned counsel for the appellant has relied upon authority reported as Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. 2005 (1) RCR (Civil) 240. Learned counsel for the appellant has further submitted that attending circumstances has to be looked into to find out whether the property in dispute is in possession of the defendant as a licensee or as a tenant. To support this contention, learned counsel for the appellant has relied upon judgment reported as C.M. Beena and another vs. P.N. Ramachandra Rao 2004 (1) HRR 550. Learned counsel for the respondents has supported the judgments of the Courts below. I have given my thoughtful consideration to the rival submissions made by counsel for both the parties and have also gone through the file of the case. The simple controversy in the present lis is whether the defendant is in possession of the suit property as a licensee or that of a tenant. Both the Courts below have given a concurrent finding of fact that the defendant is in possession of the suit property as a R.S.A. No. 3436 of 2007 -8- licensee and not as a tenant. That being a finding of fact cannot be interfered in the regular second appeal, in view of Section 100 CPC. There is nothing on the file that both the Courts below have misinterpreted and misread the evidence on the file to arrive at the conclusion that defendant came into possession of the suit property as licensee. The case of the defendant in the written statement is that the possession was given to him being a partner of the firm. So, impliedly, the defendant – appellant has admitted that possession of the suit property is that of licensee. In the previous suit for injunction, it was not pleaded that defendant is in possession of the suit property as tenant. That suit was ultimately, withdrawn in the year 2003. Having realized that previously the stand of tenancy has not been taken, now the defendant has taken a stand that he was given possession as tenant in the year 2003.That being a gospel truth, cannot be relied upon. Both the Courts below after appreciating and re-appreciating the evidence reached to the conclusion that factum of tenancy is not proved. Mere fact that plaintiff No.1 has not appeared in the witness box does not disprove the case of the plaintiffs. The cases are decided on the basis of evidence on the file. So, the finding of fact recorded by both the Courts below that defendant-appellant is in possession of the suit property as licensee and not as tenant, does not call for any interference. So far as authority in Janki Vashdeo Bhojwani 's case (Supra), is concerned, in that case it has been held by the Apex Court that a fact in personal knowledge of the plaintiff can only be R.S.A. No. 3436 of 2007 -9- deposed by the party and not by the power of attorney holder. In the present case, the defendant in the written statement has impliedly admitted the relationship as licensee. The other evidence on the file is sufficient to prove that defendant is in possession of the suit property as licensee and not as tenant. So, the above said authority does not help the case of the appellant. So far as authority in C.M. Beena's case (Supra), is concerned, there is no dispute to the proposition of law laid down in that ruling. The attending circumstances are to be seen for arriving at the conclusion, whether the relationship of landlord and tenant exists or not. The attending circumstances in the present case leans towards the case of the plaintiffs, rather than the case of the defendant- appellant. So, in view of the above discussion, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed. All the miscellaneous applications also stand disposed of. ( K.C. Puri ) 26.8.2010 Judge chugh