IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 190 of 1999 Date of Decision : September 3, 2010 Budhi Singh …Appellant Versus: Vishanu Dev & Ors. …Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? No For the appellant: Mr. Dushyant Dadwal, Advocate For respondent No.1 : Mr. Ashwani K. Sharma, Advocate. Sanjay Karol, J. (Oral) Sh. Vishanu Dev, respondent No.1 (plaintiff) filed Civil Suit No. 161 of 1994 against Sh. Budhi Singh, appellant (defendant No.3 therein), Chairman (Deputy Commissioner) Mandi District and The Sub Divisional Magistrate-cum-Secretary, Mandi, defendants No.1 & 2 respectively before the Court of Senior Sub Judge, Mandi, Distt. Mandi. In effect plaintiff pleaded that he was an allottee of Shop No. 27. Plaintiff paid the amount for allotment and the possession of the shop was delivered to him. However, sometime in September, 1992 due to heavy rains the shop which was actually a ‘Khokha’ collapsed. On 10.11.1994 defendants No.1 & 2 re-allotted the shop to 2 defendant No.3. Later on plaintiff admits that he is not in possession of the shop and had a right to get the possession and raise construction on the land underneath. Plaintiff thus prayed that defendants No.1 & 2 be restrained from physically handing over possession of the shop in Madhav and Keshav Market at Aut to defendant No.3 and in the alternative direct the defendants to re-allot the shop to the plaintiff. 2. Defendants No.1 & 2 opposed the suit by inter alia pleading that even though shop in question was initially allotted to the plaintiff on 30.6.1992 but since he did not take possession of the same nor did he start any kind of business activity there from, therefore, he had no right, title or interest in the same. No formal agreement was executed between the parties and also the plaintiff did not pay any rent or fulfill the obligations pursuant to the terms of allotment. Later on the shop in question stood allotted to defendant No.3 on 4.10.1994 when possession was also handed over to him. The defence taken by defendant No.3 is more or less on similar lines. 3. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiff is entitled to relief of permanent prohibitory injunction? ……OPP 2. Whether the plaintiff is entitled to relief of mandatory injunction in alternative? …OPP 3. Whether the plaintiff is estopped to file this suit by his act and conduct? …OPD 3 4 Whether the plaintiff has no locus standi to file this suit and suit is not maintainable? .OPD-3 5. Relief.” 4. Appreciating the material on record, trial Court dismissed the plaintiff’s suit by holding that plaintiff had failed to prove that he was put in possession of the shop or that he had complied with the terms of the allotment initially made in his favour in the year 1992. Plaintiff’s suit was dismissed in terms of judgment and decree dated 29.5.1998 passed by Senior Sub Judge, Mandi, Distt. Mandi. 5. In the plaintiff’s appeal, lower Appellate Court set aside the judgment and decree dated 29.5.1998 and decreed the plaintiff’s suit in the following terms:- “In result, I accept the appeal. The judgment and decree of learned trial Court is set aside. The suit of the plaintiff is decreed. Plaintiff shall be put in possession of shop No.27 within two months from today after evicting defendant No.3 from this shop. The plaintiff shall be liable to pay the stipulated rent from the date of its initial allotment till the shop collapsed and from the date when he is put in possession of this shop. He shall also be entitled to the costs of the suit. Decree sheet be prepared. File after completion be consigned to Record Room.” 6. It is this judgment and decree dated 23.3.1999 passed by District Judge, Mandi, in Civil Appeal No. 63/1998 which is under challenge in the appeal filed by defendant No.3. 4 7. Now while arriving at its conclusion lower appellate Court, without adverting to the evidence on record has held that plaintiff remained in possession of the shop and that since the appropriate authorities had not issued any notice of cancellation of the allotment made in favour of the plaintiff in the year 1992, consequently defendants No.1 & 2 had no right to allot the same in favour of defendant No.3. 8. The findings returned by the lower appellate Court, to say the least are perverse. From the plaintiff’s own statement (PW-1), it is evident that he had not taken any steps for depositing the rent in terms of the allotment. Further he could not show as to who was in actual possession of the shop between the years 1992 & 1994. It was for the plaintiff to have shown that the shop in question was in his possession prior to the allotment made in favour of defendant No.3. The fact that he sought alternative relief itself establishes that he was not in possession of the shop in question. 9. In any event of the matter, plaintiff did not specifically challenge the allotment made by defendants No.1 & 2 in favour of defendant No.3. 10. Further from the statement of Sh. Dole Ram (DW-1), it is apparent that even though plaintiff had deposited Rs.6000/- as security and Rs.1000/- as advance rent but however other than this no steps were taken by him to take possession, raise any construction or carry out any business from this shop. 5 11. From the statements of DW-1 and Sh. Budhi Singh (DW-2), it is apparent that not only the shop was allotted to defendant No.3 on 4.10.1994 but even the possession was handed over to him. Defendant No.3 is carrying his business there from. 12. Substantial questions of law No.1 & 2 do not arise for consideration. Insofar as the substantial questions of law No.3 is concerned, relationship of landlord and tenant had not come into existence as no formal agreement was ever entered into between the parties. 13. In view of the same, the findings recorded by the lower appellate Court are contrary to the record. Consequently the impugned judgment and Decree dated 23.3.1999 passed by the Appellate Court is reversed and that of the trial Court is affirmed. Appeal stands disposed of. ( Sanjay Karol ), Judge. September 3, 2010 (rana)