R.S.A. No.850 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.850 of 2008 Date of decision : 28.9.2011 Kanwal Thaper (widow) and others. ....... Appellants Versus Dr. R.S.Garewal and others. ....... Respondents CORAM: HON'BLE MR. JUSTICE K.C.PURI. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present :- Shri K.S.Dhillon, Advocate for the appellants. Shri Arun Jain, Senior Advocate with Shri Kushagra Mahajan, Advocate for respondents. K.CPURI, J. R.S.A. No.850 of 2008 2 This is an appeal directed by the defendants/appellants against the judgment and decree dated 25.8.2007 passed by Shri Gurbir Singh, learned Additional District Judge Ludhiana vide which the appeal preferred by the defendants against the judgment and decree dated 13.12.2006 passed by Shri K.K.Bansal, PCS, Civil Judge (Junior Division), Ludhiana was dismissed. Briefly stated the plaintiffs filed suit for possession for damages for use and occupation of the property. The case set up by the plaintiffs is that Dr.Hira Singh Grewal was the owner of the residential house as described in the heading of the plaint. Dr.Hira Singh Grewal died in the year 1945. He executed a Will dated 16.9.1944, deposited by him in the office of Registrar, Ludhiana in favour of Dr.Shivdev Singh Grewal father of the plaintiff No.1 and grandfather of plaintiff Nos.2 to 4 and appointed him as executor of the Will. Dr.Shivdev Kaur Grewal, who was his widowed daughter was given right to live in the main kothi during her life time. She was also given right to enjoy the usufruct of the main kothi for her livelihood during her life time. She was mere a licencee and could enjoy the usufruct of the property during her life time for her maintenance. The possession of the main kothi was to revert back to Dr.Shivdev Singh Grewal after death of Smt. Shivdev Kaur. After death of Dr.Hira Singh Grewal, the Will was fully acted upon and Dr.Shivdev Singh entered into possession of the entire property left behind by Dr.Hira Singh as owner. Dr.Shivdev Singh died in the year 1968. On his death the ownership right in respect of the property were inherited by the plaintiff R.S.A. No.850 of 2008 3 No.1, his brother Dr.J.S.Grewal and mother Smt. Dorthy Grewal in equal shares. Proceedings for attachment of the the said house for recovery of wealth tax were initiated by the Income Tax authorities. R.S.Grewal plaintiff No.1 along with his brother and mother filed a civil suit against Union of India and Dr.Shivdev Kaur Grewal for declaration that they are owners in possession of the agriculture land and house as mentioned in the plaint and same were not liable to be attached and sold for recovery of income tax dues from Shivdev Kaur and order of attachment dated 20.1.1986 was illegal, void, ineffective against the rights of the plaintiff.. The ownership of the property was held to be that of plaintiffs. In the said suit, Dr.Shivdev Kaur took plea that she was absolute owner of the property but her that plea was not accepted. However, during the pendency of the suit, Smt.Dorthy Grewal, mother of the plaintiff no.1 died in the year 1986 and she left a Will dated 27.7.1976 in favour of the plaintiffs No.2 to 4 and they are arrayed as legal representations of Smt. Dorthy Grewal, the plaintiffs No.2 to 4 became owners in equal shares to the extent of 1/3rd share in the entire property. Dr.J.S.Grewal, brother of the plaintiff had also died issueless on 9.7.1993. On his death plaintiff No.1 being his real brother and sole legal heir of Dr.J.S.Grewal succeeded to his 1/3rd share in the property. The plaintiff No.1 was also impleaded as legal representative after contest. The petitioner as well as her brother filed appeals against the judgment and decree dated 26.9.1994 passed by Shri G.K.Dhir, Civil Judge (Senior Division), Ludhiana which were dismissed by Shri A.S.Sodhi, the then District Judge, Ludhiana vide judgment and decree dated 29.4.l996 and R.S.A. No.850 of 2008 4 the ownership of the plaintiffs were held by the Appellate Court. The plaintiffs filed a regular second appeal No.2635 of 1996, which was disposed of vide judgment dated 22.5.1997. It was held by this Court that income tax/wealth tax dues from Dr.Shivdev Kaur Grewal could only be recovered by Income Tax Department from the rental income derived by or accruing to Dr.Shivdev Kaur Grewal from the main kothi and shops in front thereof during her life time. Dr.Shivdev Kaur Grewal died on 15.2.1998 and on her death her right to live in the main kothi along with right to utilize the usufruct of the main kothi along with right to utilize the usufruct of the main house and the shops came to an end. The defendant claims that he has taken the shops in his possession on rent from Dr.Shivdev Kaur Grewal and has refused to vacate the shops and to deliver its vacant possession to the plaintiffs, hence the suit. It has been further alleged that the suit property could be leased out on a monthly rent of more than Rs.2000/- but the plaintiffs are claiming damages for use and occupation of the shop in question at the rate of Rs.1000/- per month and in this manner total comes to Rs.36,000/- for the three years and interest at the rate of 12% per annum on the said amount. On put to notice, defendant filed written statement and controverted the case of the plaintiffs and raised preliminary objection that the suit is not maintainable. On merits, it is pleaded that Dr. Shivdev Kaur Grewal was licencee and could enjoy the usufruct of the property during her lifetime for her maintenance then being a licencee she could have every right to let out R.S.A. No.850 of 2008 5 any part of the property on rent. It has been further pleaded that if no appeal was filed against the judgment of this court then the defendants are deemed to be tenant and the plaintiffs cannot dispossess the defendants by way of the present suit. However, it is admitted that Dr. Shivdev Kaur Grewal died on 15.2.1998. It is also admitted to the extent that defendants claimed themselves to be tenant in the shop in dispute and refused to vacate the shop or return its vacant possession to the plaintiffs. It has also been pleaded that suit of the plaintiff is not maintainable inasmuch as the property falls within the limits of Municipal Corporation and as such he can be evicted under the provisions of East Punjab Urban Rent Restriction Act. If, for the sake of arguments, it is established that defendants are in illegal possession of the property in question, then the defendants are owners by way of adverse possession. Replication was filed, denying the contents of written statement and reiterating the averments made in the plaint. From the pleadings of the parties, following issues were framed. 1. Whether the plaintiff is entitled to possession and recovery? OPP. 2. Whether the defendants are owner by way of adverse possession? OPD 3. Whether the defendants cannot be dispossessed by way of the present suit? OPD 4. Relief. In support of the case Dr. R.S. Grewal, plaintiff No.1 stepped into the witness box as PW-1 and closed the evidence. R.S.A. No.850 of 2008 6 In rebuttal, defendants examined Rohit Thapar as DW-1 and closed the evidence. After hearing arguments, learned trial Court took up issues No. 2 and 3 together and these issues were decided in favour of the plaintiffs. On the basis of finding recorded on the said issues, the suit of the plaintiffs was decreed with costs vide judgment and decree dated 13.12.2006. 7. Feeling dis-satisfied with the aforesaid judgment and decree dated 13.12.2006, the defendants-appellants preferred Ist appeal. The First Appellate Court after hearing the learned counsel for the parties and re- appraisal of the evidence, dismissed the appeal vide judgment and decree dated 25.8.2007. 9. Feeling dissatisfied with the judgment and decree dated 13.12.2006 passed by the trial Court and judgment and decree dated 25.8.2007 passed by the First Appellate Court, the present regular second appeal has been filed before this Court. 10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 11. This court on 20.8.2009 framed the following substantial question of law for consideration :- 1. Whether a tenant inducted by a person with the limited estate ceases to be a tenant upon the demise of the limited owner ? 2. Whether a tenancy created by a limited owner comes to an end on the demise of the limited owner ? 12. Learned counsel for the appellants has submitted that both the R.S.A. No.850 of 2008 7 Courts below have given a finding that Dr.Shiv Dev Kaur has inducted Anil Kumar as tenant and that fact is also borne out from the record. It is contended that although Dr.Shiv Dev Kaur has been held limited owner in respect of the suit property but as per the Will of Hira Singh, the original owner of the suit property, Dr.Shiv Dev Kaur has right to give the property on rent. She has given the property on rent to the appellants. The definition of tenant given under Section 2(i) is as under :- “(i) “tenant” means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cart-stand or slaughter-house or of rents for shops has been farmed out or leased by a municipal, town or notified area committees; “ After the death of Dr.Shiv Dev Kaur the appellant Anil Thaper became the statutory tenant and as such the appellant can be evicted from the premises only under the provisions of East Punjab Urban Rent Restriction Act and the Civil suit for possession is not maintainable. Both the Courts below have not taken into account the above said fact. So, it is contended that both the substantial questions of law should be determined in favour of the appellant on the facts of the present case and suit of the plaintiffs may be dismissed with costs. R.S.A. No.850 of 2008 8 In reply to the above noted submissions, learned counsel for the respondents has submitted that it is admitted case of the parties that Dr.Shiv Dev Kaur was having a limited right in the property in the civil litigation between the plaintiffs and Dr.Shiv Dev Kaur. She has been held to be limited right in the property after the death of Dr.Shiv Dev Kaur, the tenancy created by her stood terminated and appellants became transferee. To support this contention, learned counsel for the respondents has relied upon authorities Raj Kumar and others vs. Sardarni Prem Parkash Kaur and another AIR 1972 Punjab and Haryana 458 and Harbans Lal and others vs. Devinder Kumar and others 2010 (1) RCR 84. It is further contended that defendant Anil Kumar in the written statement has taken up the plea of adverse possession and tenant by taking the plea of adverse possession looses his right to the tenancy as discussed by the trial Court in para No.14 of the judgment. Authority R.N.Dawar vs. Ganga Saran Dhama 1993 RRR (1) page 189 has been relied upon by the trial Court. There is concurrent finding of fact recorded by both the Courts below that Dr.Shiv Dev Kaur was allowed to enjoy the usufruct of the main kothi as per Will. After her death, the tenant who had become trespasser by taking the plea of adverse possession and has no right to be in possession of the property. I have given my thoughtful consideration to the rival submissions made by both the counsel for the parties and have gone through the records of the case. So far as the facts of the case are concerned, those are not in R.S.A. No.850 of 2008 9 much dispute. Shri Heera Singh was the original owner of the suit property. He executed Will dated 16.9.1944 in favour of plaintiff No.1 etc. whereas right to use the property has been given to Dr.Shiv Dev Kaur during her life time. The litigation was there between plaintiff No.1 and Dr.Shiv Dev Kaur vide judgment and decree dated 2.7.2004 Ex.P-6 in regular second appeal No.602 of 1982, this Court held that property reverted to fathers of plaintiff No.1 and another beneficiary of the Wills. The counsel for the appellants has admitted during the course of arguments that Anil Kumar original tenant was inducted as tenant by Dr.Shiv Dev Kaur. It is also not disputed that Dr.Shiv Dev Kaur died on 15.2.1998. Now the question arises whether tenancy created by Dr.Shiv Dev Kaur during her life time comes to an end after her death being a limited owner. The answer to that question is in positive. A person can incur liabilities in the property to the extent it has right in the said property. It is not disputed that Dr.Shiv Dev Kaur has limited right to use the usufruct of the property during her life time. After her death the legal heirs of Hira Singh has the right to get the possession. Anil Kumar became trespasser after the death of Dr.Shiv Dev Kaur. I am fortified by the Division Bench authority of this Court in Raj Kumar and others' case (supra). The observations made in paragraph No.11 of the said judgment are reproduced as under :- “11. The third condition that Smt.Ajmer Kaur was limited owner on the date when the Act came into force cannot at all be said to have been fulfilled, as the ownership vested in R.S.A. No.850 of 2008 10 Jaswant Singh and she had the bare right of any building or part of the building which Jaswant Singh in his discretion considered to be sufficient for her residential purpose and allotted to her for her stay. According to the scope of the above reproduced term of Clause 16 of the will, Jaswant Singh could at any time ask her to vacate the property in dispute and to stay elsewhere in any other item or residential property as desired by him. Thus, her occupation of the property was of transitory licensee without any right to maintain the claim for possession of the property in dispute for the whole of her life. She could not be held to enjoy the status of a limited owner while in occupation of any portion of the property. This type of right of residence, if it can at all be described as such is purely a personal right. It inheres only in the person, who has been assigned that right. This right does not admit the alienation.” 19. In authority Harbans Lal and others' case (supra), the sister of the owner let out the house of her brother without authority from her brother (owner). It was held that tenant is not entitled to protection of Rent Act. 20. Another circumstance which militates against the case of the defendant/appellant is that he has set up the claim of adverse possession in the written statement. By setting up a claim of adverse possession, his right of tenancy in the suit property stands terminated altogether and he became a R.S.A. No.850 of 2008 11 trespasser. The plea of adverse possession has not find favour from both the Courts below. 21. In view of the above discussion, all the substantial questions raised above by the learned counsel for the appellants stand determined against the appellants and consequently the regular second appeal is without any merit and the same stands dismissed. 22. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 28, 2011 sv