R.S.A.No. 1993 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1993 of 2009 (O&M) Date of decision: 24.8.2009 Davinder Modgil ......Appellant Versus Amarjit Sharma .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Padam Jain, Advocate, for the appellant. **** SABINA, J. Plaintiff Amarjit Sharma filed a suit for permanent injunction, which was decreed by the Civil Judge (Sr.Divn.) Kapurthala vide judgment and decree dated 26.3.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, Kapurthala vide judgment and decree dated 28.11.2008. Hence, the present appeal. Brief facts of the case, as noticed by the trial Court in para Nos. 1 to 3 of its judgment, are as under:- “ As per averments made in the plaint, plaintiff R.S.A.No. 1993 of 2009 (O&M) 2 Amarjit Sharma is in possession of three rooms, one bath room, one toilet, Deori and Vadhra on ground floor of house bearing No.15/25 situated in Cattigali, Kapurthala as detailed in the head note of the plaint and shown red colour in site plan attached with the same in the capacity of a tenant under Ajay Kumar Modgil since 1980 on payment of rent at the rate of Rs.175/- per month. Out of the four rooms the owner has locked one room on the ground floor, whereas three rooms on first floor of the house, in dispute are in occupation of another tenant Mangat Ram. Sh.Ajay Kumar Modgil son of Shiv Bharat Lal resident of Shahjahapur (U.P) is the owner of the house in dispute. He has been receiving rent from the plaintiff during his visits to the town of Kapurthala against receipts. The plaintiff has also been making payment of rent through money orders. The defendant Davinder Modgil is also claiming himself to be owner of the house, in dispute but neither he has ever visited the house in dispute nor he ever remained in occupation thereof. On 3.5.2003, with the assistance of local police, the defendant tried to evict the plaintiff in occupation of house, in dispute in his possession. His attempt was foiled by the plaintiff with the intervention of respectables living in the vicinity but the defendant is still threatening to R.S.A.No. 1993 of 2009 (O&M) 3 dispossess the plaintiff from portion of disputed premises in his favour as tenant. Hence, the suit . 2. On being put to notice, the defendant filed written statement resisting the suit by taking preliminary objections that the plaintiff with malafide intention has intentionally given the wrong addresses of the parties to the suit. He is residing at lower Mall Road, Kapurthala and not in the house, in dispute whereas the defendant is not residing in Dharam Sabha Kapurthala; that the plaintiff is in possession of only one room which opens towards the street and the said room is being used by him as a godown; that the site plan filed by the plaintiff is not correct; that the parentage of the defendant has been wrongly given in the plaint as Amrit Lal instead of Shiv amrit Lal; that the plaintiff has not approached the court with clean hands, as such, he is not entitled to grant of discretionary relief of injunction and that the plaintiff has no cause of action to file the suit. On merits it is denied that the plaintiff is in possession of portion of house, in dispute as detailed in the head note of the plaint and described in the site plan with red colour attached with the same or that the house, in dispute is the ownership of Ajay Kumar Modgil. It is also denied that the plaintiff was inducted as a tenant by Ajay Kumar Modgil or that he has R.S.A.No. 1993 of 2009 (O&M) 4 been paying him rent since 1980. It is averred that Shiv Bharat Lal was uncle of the defendant and he has died in the year 1991. It is contended that the house, in dispute, was originally owned by Muni Lal who is survived by his sons Shivdarshan Lal, Shiv Bharat Lal and Shiv Amrit Lal the father of the defendant. It is averred that the father of the defendant was a co-sharer to the extent of 1/3rd share in the house, in dispute as his brother Shiv Bharat Lal has four sons namely viz. Arun Kumar, Rajesh Kumar, Ajay Kumar and Anil Kumar. It is submitted that during the life time of Shiv Bharat Lal, the question of creating of tenancy by Ajiy Kumar Modgil in favour of the plaintiff qua the demised premises does not arises. It is reiterated that the plaintiff is only in possession of one room on the ground floor of the house, in dispute situated on the eastern side of bath room and toilet, door of which opens towards the street. It is submitted that the remaining portion of the house, in dispute is in possession of the defendant. The deori of the house, in dispute is being used jointly by the defendant and other tenants but not by the plaintiff. It is submitted that the defendant is also in possession of Bahdrah and two Mianis, it is denied that three rooms on the ground floor of the house, in dispute, are in possession of tenant Mangat Ram. It is submitted R.S.A.No. 1993 of 2009 (O&M) 5 that Mangat Ram has since expired and his son Varinder Kumar is in possession of three rooms on the ground floor of the house, in dispute. He is also using the deori and stair case, common toilet and bath room. Rest of the averments, made in the plaint have been denied and a prayer has been made for dismissal of the suit with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is in possession of portion of the house in dispute, as a tenant @ Rs.175/- p.m.? OPP 2. Whether the plaintiff is in occupation of only one room which is used by him as a godown? OPP 3. Whether the suit is bad for mis-description of the suit property? OPD 4.. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the plaintiff has concealed the material facts as alleged in the written statement? OPD 6. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit. The case of the plaintiff is that he had taken the premises R.S.A.No. 1993 of 2009 (O&M) 6 in dispute on rent from Shiv Bharat Lal, father of Ajay Kumar Modgil. Shiv Bharat Lal has since died. In these circumstances, the plaintiff clarified that earlier he had been inducted as a tenant by Shiv Bharat Lal and thereafter, he had been paying rent to his son Ajay Kumar Modgil. In order to support his plea, the plaintiff has proved on record the assessment register w.e.f. 1993 onwards maintained by Municipal Council, Kapurthala Ex.PW-4/1. As per the same, the plaintiff is recorded in occupation of three rooms whereas Shiv Darshan Lal , Shiv Bharat Lal, Kamla Modgil and Davinder Modgil are recorded as owners of the house in question. It has been noticed by the learned Additional District Judge that in an application moved by the defendant seeking transfer of ownership of 1/3rd share of his father Shiv Amrit Lal in his favour and in favour of his mother Kamla Devi, it was nowhere mentioned that Kamla Devi or he himself were in possession of the house in dispute. As per affidavit Ex.PW-4/A, Kamla Modgil, mother of the defendant, has deposed that she was residing at Faridabad. It has further been noticed by the learned Additional District Judge that the defendant had admitted that he was residing in Gujrat for the last 30 years. The plaintiff also proved on record rent receipt Ex.P-2 issued by Ved Parkash Sharma, father-in-law of Ajay Kumar Modgil under whom the plaintiff is claiming tenancy. The said receipt is dated 20.2.1996. Ex.P-3, rent receipt, was issued by Ajay Kumar Modgil himself. Ex.PW-5/A is a receipt issued by Shiv Bharat Lal on R.S.A.No. 1993 of 2009 (O&M) 7 15.4.1987 In these circumstances, both the Courts below, after appreciating the evidence on record, have given a finding of fact that the plaintiff was in possession of three rooms, kitchen and bathroom situated on the ground floor of the house in dispute (as clarified by the learned Additional District Judge, Kapurthala). The finding of fact arrived at by the Courts below cannot be interfered with in the present appeal by this Court No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 24, 2009 anita