IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 402 of 1998. Judgment reserved on 5th March, 2010. Date of Decision: 8th March, 2010. Smt. Sheela Rani and another .. Appellants. Versus Smt. Reeta Roy .. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the appellants: Mr. Anuj Nag, Advocate. For the respondent: Mr. B.N. Misra, Advocate. Surinder Singh, J . This appeal was admitted on 12th November, 1998 on the following substantial questions of law: 1) Whether Shri N.L. Pandey was authorized to let out the premises in question on behalf of the plaintiff as held by the learned first appellate Court? 2) Whether the alleged interpolations in the power of attorney mark X show/imply any authorization to let out the premises in question by Shri N.L. Pandey? 3) Whether the discrepancy if any in the statement of the plaintiff and notice given on his behalf by his counsel regarding breaking open the lock prove the legal occupation of the premises in question by the respondent? 4) Whether the learned trial Court has wrongly drawn an adverse inference against the defendant for not producing 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - Nand Lal Pandey witness to prove her plea of inducting her husband as tenant in the premises? 5) Whether it was the duty of the plaintiff to produce Shri Nand Lal Pandeyh DW to prove the alleged tenancy rights of the defendant, onus of which was on the defendant as held by the learned appellate Court? This Second Appeal under Section 100 of the Code of Civil Procedure is against the judgment and decree passed by the learned District Judge, Shimla, in Civil Appeal No.110-S/13 of 1994, decided on 28th July, 1997, whereby the first appellate Court, while allowing the appeal of the defendant/respondent set aside the judgment and decree passed by the learned trial Court and dismissed the suit of the plaintiff/appellant. During the pendency of this appeal, original plaintiff/ appellant had died. Vide order dated 7th December, 2007, passed in CMPs(M) No.835 and 836 of 2007, his legal heirs were brought on record. In short the facts giving rise to the present appeal can be stated thus. Admittedly, Rajinder Kumar Singh Kasliwal, the original plaintiff now deceased, was the owner of Kalyan Lodge Estate, Lakkar Bazar, Shimla. This property was inherited by him from his father Hira Lal in the year 1983. It was his case before the learned trial Court that the premises in question were previously occupied by one Puran Chand Sood. The husband of the defendant/respondent was an Armed Personnel and she is alleged to have forcibly occupied one set in the Upper Storey of Kalyan Lodge, consisting of one big hall, kitchen, bath room latrine and glazed Verandha, hereinafter to be referred as “suit premises” in the month of August, 1988 in the absence of the plaintiff/ - 3 - appellant and he came to know in the month of October, 1988 about the illegal possession of the suit premises. He requested the defendant/ respondent to vacate the suit premises, but she sought time upto March, 1989 as her children were studying in the school and their studies would be adversely affected. Despite this assurance, she did not vacate the suit premises. It was alleged that the defendant/respondent was a tress-passer. He has also sent a notice dated 25th September, 1990 asking her to vacate the premises, but of no avail, hence this suit. The defendant/respondent resisted the claim of the plaintiff. She alleged that there was relationship of landlord and tenant between the parties and specifically contended that Nand Lal Pandy was the agent of the plaintiff/appellant. He inducted her husband as a tenant of the suit premises in August, 1988 on a monthly rent of Rs.100/- and she had been in possession of the suit premises in her capacity as a tenant. The plaintiff/appellant also filed the replication in which he reiterated even paras of his plaint and denied that Nand Lal Pandey was his agent as alleged and he also disputed the fact of her or her husband’s induction as a tenant in the suit premises. From the rival contentions, the parties were at issues on the following points:- 1) Whether the plaintiff is entitled for the relief of possession, as alleged? OPP. 2) Whether the defendant is trespasser as alleged if so, then what is its effect? OPP. 3) Whether there exist relationship of landlord and tenant between the parties? OPD. - 4 - 4) Whether the plaintiff is estopped from filing the present suit and due to his own acts, deeds, conduct etc? OPD. 5) Relief. The parties led their evidence and at the end of the trial, the plea of the defendant/respondent was held to be wrong, as such decreed the suit for possession in favour of the plaintiff/appellant. The defendant/ respondent challenged the judgment and decree passed by the learned trial Court before the learned District Judge. The learned first appellate Court accepted the plea of tenancy propounded by the defendant/ respondent and reversed the findings of the learned trial Court and dismissed the suit, which is under challenge in this appeal. I have heard learned Counsel for the parties and have carefully gone through the record. It is pertinent to note that in this case the original plaintiff did not examine himself, but his son Jayant Kasliwal appeared and examined himself as PW-1 claiming himself to be the attorney of his father. He admitted that Nand Lal Pandey was given the Power of Attorney (mark X) only for 12 months by his father on 15th October, 1986 for a period of one year by which he was authorized to create any charge or encumbrance or tenancy with respect to the property named “Kalyan Lodge” of which the suit premises is a part thereof and thereafter it was never renewed. The copy of the aforesaid document was placed on record by the plaintiff himself. Learned first appellate Court examined it thoroughly. Its date of execution and period for which it has been executed, was found to have been tampered with and rightly so because the stamp paper has been shown to have been purchased on 15th October, 1986, which was attested by the Notary Public on 18th October, 1986, but in the body of the Power of Attorney the date of - 5 - execution is initially typed as “15th day of October, 1986”, which was scored out and shown to be as “2nd day of November, 1987”. Not only this, the period of appointment of the attorney which was initially typed as “twelve months” was scored out and was substituted by “twenty four months” by pencil. By this, it could be inferred that after expiry of the Power of Attorney a fresh document was executed in favour of Nand Lal Pandey for 24 months. Although, in para No.1 of the replication the plaintiff has denied that Nand Lal Pandey was the House Agent of the plaintiff/appellant to collect and receive the rent from the tenants, but it stands falsified by this document, as the copy of Attorney contains averments to the contrary. Nand Lal Pandey was not examined by the plaintiff to substantiate his plea. Therefore, the adverse inference was rightly dawn by the learned first appellate Court. The next question comes whether the defendant/ respondent had forcibly occupied the premises as alleged. The plaintiff stated that he has sent the notice to vacate the premises and hand over its vacant possession to him. The notice sought to be served by registered post, was returned as “undelivered”, to the Advocate of the plaintiff/appellant. PW-1 proved its envelope, which was opened by the first appellate Court and notice dated 25th September, 1990 was taken note of. Vide this notice the plaintiff claimed himself to be the owner of Kalyan Lodge building. There is only a reference that the defendant/ respondent had been in illegal and unauthorized possession of the suit premises since August, 1988 and she was required to vacate the suit premises lest the legal action would follow. There was no mention that the defendant/respondent had broken upon the lock and occupied the - 6 - suit premises in the month of August, 1988, as alleged in her cross- examination. The positive case of the defendant/ respondent was that it was Nand Lal Pandey, who was an Agent of the plaintiff, inducted her as tenant, but it appears that lateron some dispute arose between them and the husband of the respondent had also made communication which is evident from his representations Ex.DX and DY. Further Ex.DW-6/A, a letter was issued by Shri V.C. Guleria, Advocate to the Commanding Officer of the husband of the respondent on 22nd October, 1988 with respect to the tenancy of the defendant/respondent in the suit premises inducted by Shri Nand Lal Pandey. This letter specifically makes the reference that the husband of the defendant/ respondent shifted to the premises in question alongwith his family at the instance of Nand Lal Pandey and paid some amount to him, besides spending considerable amount on the repair of the premises. There is also a reference with respect to the charging of amount of Rs.100/- per month as tenant from the husband of the defendant/respondent for the occupation of the suit premises and this letter is an explanation to the complaint of Nand Lal Pandey. Thus, in the aforesaid circumstances the defendant/respondent has proved that her husband was inducted as tenant in the suit premises. The non-production of Nand Lal Pandey to substantiate this fact by defendant cannot be taken adverse to her because he had been filing the complaint against her husband to the Commanding Officer. Had he been produced, he would not have supported her case against the aforesaid background. Rather, it was necessary for the plaintiff to produce Nand Lal Pandy to substantiate his version. Therefore, the findings of the learned first appellate Court cannot be faulted with as they are based upon factual aspect of the - 7 - case proved on the record. The above questions stand accordingly answered, For the reasons aforesaid, I do not find any merit in this second appeal, as such, it calls for no interference. Accordingly, the same is dismissed. The judgment and decree passed by the learned first appellate Court is affirmed. The parties are left to bear their own costs. Send down the records. March 8, 2010. (Surinder Singh), (rc) Judge.