IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3675 of 2008 (O&M) Date of decision: 14th November, 2008 Savitri Devi and others … Appellants Versus Atma Ram … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. P.R. Yadav, Advocate for the appellants. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Atma Ram had instituted a suit for possession of shop situated at Narnaul Road, Nizampur. It is not disputed and a finding to this effect has been returned by the two courts below that shop in question is outside the municipal limits and therefore, the provisions of Haryana Urban Rent Restriction Act are not attracted. Therefore, two courts below have also upheld the validity of a notice served upon the defendant tenant under Section 106 of Transfer of Property Act, whereby tenancy was terminated. Present appeal has been filed by the legal representatives of Data Ram, who was a tenant and defendant to the suit. Plaintiff stated in the plaint that a shop was rented out to Data Ram vide rent note dated 16th December, 1993 for a period of three months. Tenancy in this regard commenced on 1st December, 1993 and the rate of rent was Rs.300/- per month. It was further stated that since the tenant proved not to be a good tenant, therefore, he stopped paying rent with effect from 1st June, 1995. A notice dated 25th July, 2000 under Section 106 of the Transfer of Property Regular Second Appeal No. 3675 of 2008 Act was sent through registered AD. It is stated that despite termination of the tenancy, possession of the shop was not handed over to the landlord, which necessitated filing of the suit. On notice, tenant caused appearance, filed written statement and it was stated that on 18th April, 1995, Rs.15,000/- were advanced to the landlord with interest at the rate of 2 per cent per month and therefore, the interest amounted to Rs.300/- per month and rent was adjusted in lieu of the interest, which had to accrue to the tenant on the amount advanced. This part of the written statement was not accepted in the replication filed. After conclusion of the pleadings, following issues were formulated by the trial Court: “1. Whether the plaintiff is entitled for possession of the disputed shop & for recovery of rent for its use and occupation by way of ejecting the defendant after termination of his tenancy as alleged? OPP 2. Whether the defendant has paid Rs.15,000/- to the plaintiff & got executed the document dated 18.4.1995 on the terms and conditions as alleged? OPD 3. Whether the defendant has paid out the amount of rent to the plaintiff as alleged? OPD 4. Whether the plaintiff has no cause of action to file the suit? OPD 5. Whether the plaintiff has no locus-standi? OPD 6. Whether the suit is not maintainable? OPD 7. Whether the plaintiff is estopped by his own acts and conduct from filing the present suit? OPD 8. Whether the suit is false & frivolous & defendant is entitled for special costs? OPD 9. Relief.” Witnesses were examined. The controversy revolves around Mark DF, which was on the back of rent note (Ex.D-A). The trial Court held that during the course of arguments, it surfaced that regarding the recovery 2 Regular Second Appeal No. 3675 of 2008 of Rs.15,000/-, a recovery suit has been instituted. The Court held that plaintiff is not entitled to receive use and occupation charges with effect from 1st September, 1997 to 31st August, 2000. It further held that tenancy was terminated w.e.f. 31st August, 2000 after the receipt of notice and lapse of the time of notice, therefore, the rent of Rs.600/- was determined as use and occupation charges w.e.f. 1st September, 2000 till delivery of the possession. Aggrieved against the same, legal representatives of Data Ram filed an appeal. The appeal was also dismissed by the Court of Additional District Judge, Narnaul. After taking into account various arguments raised and the evidence of witnesses, the appellate Court came to the conclusion that it is not in dispute that shop was rented out w.e.f. 1st December, 1993 @ Rs.300/- per month. It also took into account the allegations of the defendant that Rs.15,000/- were borrowed by the respondent-plaintiff on 18th April, 1995. It also held that it is not disputed that notice under Section 106 of the Transfer of Property Act was received by Data Ram and thereafter, tenancy was terminated after 15 days of the receipt of notice (Ex.P-2). It relied upon the note that the plaintiff used to receive the rent and use to make a writing on the back of rent note. It further held that payment of rent is to be proved by the tenant, who alleges the payment, and thereafter, returned the following finding: “15. … … … … Payment of rent is to be proved by the defendant who alleges payment. It is not disputed that the defendant has already filed the suit for recovery of Rs.15000/-, interest on Rs.15,000/- @ 2% p.m. amounts to Rs.300/- per month. Rate of rent was also Rs.300/- per month and as per defendant the interest was to be adjusted towards rent. As per Mark-DF, the plaintiff himself stopped receiving rent. In these circumstances, it has rightly been held that the plaintiff is not entitled to receive the use and occupation charges w.e.f. 3 Regular Second Appeal No. 3675 of 2008 1.9.1997 to 31.3.2000 as claimed under the suit. However, the tenancy has been terminated w.e.f. 31.8.2000 and the defendant has not handed over vacant possession of the shop in question and in these circumstances the plaintiff is entitled to receive mesne profit on account of use and occupation charges. There is increase of rent and huge inflation of immovable property. Mesne profit on account of use and occupation charges @ 600/- per month w.e.f. 1.9.2000 till the date of delivery of possession has rightly been granted by learned Additional Civil Judge (Sr. Divn.) and there is no illegality or infirmity in the same.” Mr. Yadav, during the course of arguments, has referred to ground No.5 of grounds of appeal before this Court. He has reproduced therein, a suggestion given to PW-4 Atma Ram landlord that Rs.15,000/- recovery suit was qua different amount. This suggestion has been denied by Atma Ram, when he stated “it is wrong that in addition to the above mentioned Rs.15,000/-, I have also borrowed Rs.15,000/- from Data Ram.” Once the suggestion was denied, no efforts were made by the appellants to bring on record any document or evidence to show that the suggestion given to the witness was meaningful. Two courts below have given a concurrent finding of fact and have noticed that the recovery suit has been filed and landlord is entitled to use and occupation charges as determined by two courts below. Concurrent findings of fact can only be assailed if meaningful substantial question of law can be formulated. In the facts and circumstances of the present case, no such substantial question of law arise, which should detain the attention of this Court. It has been stated before me that secondary evidence can be taken into consideration. Even if the secondary evidence, on which Mr.Yadav wishes to rely for the sake of arguments, is considered, it is not disputed that on the strength of same, as held by two courts below, a recovery suit has been filed. Even otherwise, once the tenancy was 4 Regular Second Appeal No. 3675 of 2008 terminated, the alleged amount of interest cannot be adjusted qua the rent, as a separate remedy will be available to the tenant. Therefore, there is no merit in the present appeal and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 14, 2008 rps 5