RSA No.4139 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4139 of 2008(O&M) Date of decision: 23.12.2008 Sudesh Kumari ......Appellant Versus Krishan Lal and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.D. Bansal, Advocate for the appellant. * * * Rakesh Kumar Garg, J. CM No.12347-C of 2008 For the reasons recorded in the application, delay of 128 days in refiling the appeal is condoned. CM stands disposed of. RSA No.4139 of 2008(O&M) The plaintiff-respondents filed Civil Suit No.467 of 2000 for mandatory injunction directing the defendants-appellant to vacate and deliver back the possession of the portion of the Kothi No.456, New Jawahar Nagar, Jalandhar as detailed in the head note of the suit and for mandatory injunction directing the defendants to demolish the unauthorized construction of bathroom and shed on the second floor over the property and for recovery of Rs.6,000/- for use and occupation. It was averred in the plaint that plaintiff No.1 along with his brother Kashmiri Lal (defendant No.5) purchased the plot No.456 New Jawahar Nagar, Jalandhar Improvement Trust vide registered sale deed dated 31.12.1973 and thereafter raised the construction over the said plot. Kashmiri Lal sold his half share in favour of plaintiff No.2 vide sale deed RSA No.4139 of 2008(O&M) 2 dated 7.6.1985. It was further averred that another brother of plaintiff No.1 namely, Raj Kumar who was settled in USA and was married to one Saroj Bala and was blessed with one daughter and two sons (i.e. defendants No.2 to 4). During the life time of Saroj Bala, Raj Kumar married defendant No.1 for looking after his children as Saroj Bala had deserted him in USA. Raj Kumar fell seriously ill as he was suffering from cancer. He returned to India along with his family members and stayed with defendant No.1. Subsequently, he took another house on rent and shifted there. Raj Kumar died in the said house on 30.8.1983. Out of love and affection for the minor children of Raj Kumar, plaintiff No.1 allowed defendants No.1 to 4 to live in a portion of the house in dispute in July, 1983 as licensees without any payment of rent. Plaintiff No.1 was even helping defendants No.1 to 4 by paying money to them to meet their requirements. Subsequently, defendant No.1 started receiving compensation from USA Government in the name of the minors as pension of their father. Since defendant No.1 was misusing the said amount, the plaintiff filed petition under the Guardian and Wards Act for appointing him as guardian of the minor. It is further averred in the plaint that in May, 1994, defendant No.1 illegally constructed a bathroom and shed on the second floor over the property in her possession without the consent of the plaintiff, who even received notice from the Municipal Corporation for demolishing the same. During pendency of the petition under the Guardian and Wards Act, relations between plaintiff No.1 and defendant No.1 became strained as she had misappropriated the huge amount received in the name of the minor. Defendant No.1 even started wrongly claiming that the defendant were licensees under Kashmiri Lal. Defendants No.1 to 4 were asked in September, 1994 that their licence had been terminated and that they should vacate the premises, but they refused to do so. The defendants RSA No.4139 of 2008(O&M) 3 were also liable to pay for the use and occupation of the premises in question @ Rs.1000/- per month from 1.10.1994 to 31.3.1995. Hence, the suit. The suit was resisted by the defendants by filing written statement. It was averred that the suit is not maintainable in the present form and plaintiff No.2 has got no right to file the present suit. There exists no relationship of licensor or licensees between the parties. According to the defendants, they were inducted as tenants in the portion in question by Kashmiri Lal, who is the owner of the house in dispute to the extent of half share. It was further pleaded that Kashmiri Lal never sold his half share in favour of the second plaintiff and the alleged sale deed in favour of plaintiff No.1 is illegal being forged and fabricated. It was denied that they have raised any construction in the house. According to the defendants, Kashmiri Lal rented out the portion in question of house No.456 to Raj Kumar. Raj Kumar had to take another house on rent as the plaintiffs used to create trouble for him. The defendants did not shift to the other rented house because Kashmiri Lal did not want them to do so and after the death of Raj Kumar, the defendants have inherited the tenancy rights and they are in possession as tenants and not as licensees. The other averments made in the plaint were denied as wrong and in the end a prayer for dismissal of the suit was made. It is pertinent to mention here that suit was filed against defendants No.1 to 4 only but later on, defendant No.5 was impleaded as a party with the orders of the Court after his application under Order 1 Rule 10 CPC was allowed. In the written statement filed on behalf of defendant No.5 i.e Kashmiri Lal, it was admitted that the property was jointly purchased by the plaintiff and defendant No.5 and was constructed jointly but it was denied that defendant No.5 sold his share in the suit property in RSA No.4139 of 2008(O&M) 4 favour of plaintiff No.1 vide registered sale deed 7.6.1985. The alleged sale deed was described as forged and fabricated. It was further pleaded that marriage between Raj Kumar and Sudesh Kumari was perfectly valid. When Raj Kumar returned to India and was suffering from cancer, he took half share of the property on rent from defendant No.5 and after his death defendants No.1 to 4 became tenants in the suit property. It was denied that Raj Kumar and his family members were allowed to live in a portion of the house in question as licensees by the plaintiffs. It was also stated that relations between plaintiff and defendant No.1 became strained. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. In the replication, the plaintiffs have reiterated the averments made in the plaint and controverted those made in the written statement. The pleadings of the parties gave rise to the following issues:- “1.Whether the plaintiff is owner of the plot No.456 vide registered sale deed dated 24.12.1973?OPPC 2. Whether there is no relationship of licensor and licence between the parties?OPD 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff has no locus standi to file the present case?OPD 5. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP 6. Relief.” It is pertinent to mention that during the pendency of the suit, Kashmiri Lal defendant No.5 died and his LRs were brought on the record. Parties to the suit were thereafter called upon to lead evidence in support RSA No.4139 of 2008(O&M) 5 of their respective cases. In response thereof both sides led oral as well as documentary evidence. After hearing learned counsel for both the sides and appreciating the evidence led on the file by both sides, learned trial Court vide impugned judgment dated 15.6.2005 returned all the five substantive issues in favour of the plaintiffs and decreed the suit. Aggrieved by the aforesaid judgment and decree of the trial Court, the defendants No.1 and 5 filed separate appeals before the Lower Appellate Court. The Additional District Judge, Jalandhar vide impugned judgment and decree dated 25.1.2008 dismissed both the appeals. While dismissing the appeals, the Lower Appellate Court observed that the appellant Sudesh Kumari has failed to prove that she was a tenant in the property in dispute. Still not satisfied, defendant No.1 has filed the present appeal in this Court challenging the judgment and decrees of the Courts below. Krishan Lal being co-owner of the house in suit to the extent of half share is not a fact in dispute. It is also not denied that the other half share of house in suit was of Kashmiri Lal, defendant No.5. As against plaintiff No.2 claiming to have purchased half share of Kashmiri Lal vide sale deed dated 7.6.1985 Kashmiri Lal asserted still being co-owner thereof and denied the execution of sale deed dated 7.6.1985. It is relevant to note that PW4 Kehar Singh, one of the attesting witnesses of Ex.P1 and PW2 Ramesh Kumar scribe of Ex.P4 (i.e. GPA in favour of one Surinder Kumar PW-3) have both testified in favour of the plaintiffs with regard to execution of Ex.P4 by Kashmiri Lal. PW4 Kehar Singh has testified that he knows Kashmiri Lal, Krishan Lal and Banarsi Dass sons of Maghi Mal and power of attorney Ex.P4 was executed in his presence by Kashmiri Lal in favour of Surinder Kumar and was attested by him and Naranjan Singh whereafter RSA No.4139 of 2008(O&M) 6 it was got registered with the Sub Registrar, Ferozepur where also Kashmiri Lal also admitted contents of Ex.P4. PW1 Surinder Kumar Chawla also stated of having sold half share of Kashmiri Lal in house in dispute vide sale deed EX.PW8/1. PW10 Buta Ram is one of the attesting witnesses of the sale deed Ex.PW8/1. The execution of the sale deed stood proved from the evidence on record. In fact, the factual aspect of execution of Ex.PW8/1 is not in dispute and it is only competence of Surinder Kumar Chawla-PW1 to execute the sale deed on the basis of power of attorney Ex.P4 which is in dispute. It has been argued by the counsel for the appellant that in the power of attorney Ex.P4 there was no specific mention of the house in dispute. However, the Courts below found that there was unambiguous recital in Ex.P4 to authorise Surinder Kumar to sell share of Kashmiri Lal as a whole. The Courts below also observed that as long as Kashmiri Lal remained alive he did not challenge either the power of attorney or the sale deed executed by Surinder Kumar Chawla on the basis of PW4. Kashmiri Lal also did not appear in the witness box to deny the execution of the power of attorney given by him. The instant suit was filed on 30.5.1995 and the factum of the death of Kashmiri Lal was brought to the notice of the trial Court on 3.1.2004. After his death, Des Raj son of Kashmiri Lal appeared in the witness box as DW4 but he did not say anything about the sale deed. He was also unable to deny that power of attorney Ex.P4 carries signatures of his father or not and in fact Kashmiri Lal or his LRs have not challenged alienation of agricultural land of kashmiri Lal by Surinder Kumar made on the basis of same power of attorney Ex.P4. Thus, the Courts below on appreciation of evidence on record held that the share of Kashmiri Lal stood sold to plaintiff No.1 vide sale deed dated 7.6.1985 and no fault can be found with these findings. RSA No.4139 of 2008(O&M) 7 The only defence taken up by the appellant in this case is that she is the tenant and not the licensee as claimed by the plaintiffs and for this purpose they have placed on record rent receipts dated 4.12.1982 (Ex.R1) and 7.1.1983 (Ex.R2) and 30.1.1983 (Ex.R3) and the report Ex.DW3/1 which was proved by the Sukhjinder Singh-DW3. However, there was a heavy onus upon the defendant-appellant to prove her plea being in possession of the suit property as tenant. It is not in dispute that Raj Kumar had returned to India when he was suffering from cancer. Sudesh Kumari-appellant was confronted with the previous statement Ex.PX. made by her on 8.12.1989 before the Guardian Judge, Jalandhar wherein she admitted of having been asked by Kashmiri Lal to reside in the house in suit. She also asserted in Ex.PX of not paying rent to anybody. She also admitted in Ex.PX that Krishan Lal used to pay her Rs.1,000/- per month for her expenses and those of children. On the basis of this evidence, the Courts below recorded a finding of fact that Sudesh Kumari- appellant along with defendants No.2 to 4 were permitted to reside in the house in suit as licensees due to love and affection or sympathy and not as a tenant as it was highly improbable that a lady in distress who was paid Rs.1,000/- per month by the plaintiffs to meet her necessary expenses would have been paying same amount of Rs.1,000/- per month to Kashmiri Lal, another brother of her husband as rent. Once it has been established that Raj Kumar did not occupy the house in dispute as a tenant receipts Ex.R1 to R3 are bound to be rejected being pieces of created evidence. Once Sudesh Kumari herself admitted in Ex.PX dated 8.12.1989 that she was not paying rent qua suit property one just cannot accept receipts Ex.R- 2 and R-3 to be genuine pieces of evidence. From the facts on the file, it is clear that Kashmiri Lal-defendant No.5 has colluded with defendants No.1 to 4 for all practical purposes. The defendants are unable to explain as to RSA No.4139 of 2008(O&M) 8 how and when they returned to house in suit after the death of Raj Kumar in another house which he had taken on rent. Plea of defendants that even if Raj Kumar has taken another house on rent he did shift thereinto is altogether unconvincing more especially when it is not denied that Raj Kumar breathed his last in the other house. The Courts below on appreciation of evidence have recorded a concurrent finding of fact that the plaintiffs are absolute owners of the suit property and the defendants have failed to prove the tenancy in their favour. Thus, no fault can be found with the findings recorded by the Courts below. Thus, I find no merit in this appeal No substantial question of law arises. Dismissed. December 23, 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.4139 of 2008(O&M) 9 RSA No.4139 of 2008(O&M) 10