RSA No.909 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.909 of 2008 Date of Decision:19.02.2009 Jasmer Boora ....appellant Versus Maman Ram & others .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.K.S.Dhaliwal,Advocate for the appellant Mr.Akshay Bhan, Advocate for the respondents **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for possession of the suit property and for recovery of Rs.43,494/- excluding house tax of Rs.8,094/- as arrears of rent along with interest @12% per annum from the date of filing of the suit till realization and a decree for mesne profits for a sum of Rs.5100/- per month w.e.f. termination of the tenancy and further holding that defendants are liable to pay Rs.10,000/- annually regarding use of the articles lying in the premises in dispute till vacation of the same, has been decreed. In brief, the facts of case as set up in the plaint are that plaintiff No.1 got constructed the property in dispute in the year 1996 over a plot measuring 1 kanal situated in the revenue estate and municipal area of Jind. On 21.03.2000, defendant No.1/appellant took the ground floor of the building on rent @ 5000/- per month payable in advance of every month besides house tax for running a school from plaintiff No.2 who is son RSA No.909 of 2008 2 of plaintiff No.1 and is looking after the properties of plaintiff No.1. Besides this, the plaintiff also provided some articles and the rent of these articles was fixed at Rs.10,000/- per annum. It was also agreed between plaintiff No.2 and defendant No.1 that there would be increase of rent at the rate of Rs.500/- per month every year. All the conditions were reduced into writing on 06.10.2000 which were read over to the plaintiff No.2 and defendant No.1 who after admitting the same as correct put their signatures. The original agreement was handed over to defendant No.1. After that rent of the building was reduced from Rs.5000/- to Rs.4600/- per month w.e.f. April 2000 and an amount of Rs.2000/- was adjusted in the rent for the month of September 2000 but on 09.05.2001 defendant No.1 again agreed to raise the rent of building and fixed at Rs.5100/- w.e.f. April 2001. It is further the stand of the plaintiff that defendant No.1 approached the plaintiff No.2 that with the change of the policy of the Government the private schools were required to be managed by some society so defendant No.1 made a society i.e.defendant No.2.and plaintiff No.2 issued receipts regarding payment of rent in the name of defendants. However, the defendants failed to make the payment of rent since April 2002. Thus, a total sum of Rs.43,494/- on account of rent at the rate of Rs.5600/- per month besides house tax of Rs.8,094/- for the year 2000-01 was due. Plaintiff served a legal notice under Section 106 of the Transfer of Property Act,1882 and terminated the tenancy and asked the defendants to vacate the premises in dispute but they did not bother. Hence this suit. The suit was contested by the defendants by raising various preliminary issues. It was stated by the defendants that they are the tenants under the plaintiff and building is old one, so the plaintiff should have filed the ejectment petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 and Civil Court has no jurisdiction to entertain the present suit. On merits, it was submitted that the premises RSA No.909 of 2008 3 in dispute were taken on rent at the rate of Rs.4600/- per month including the house tax etc. and there was no such agreement that defendant No.2 will make the payment of Rs.10,000/- per annum regarding the use of the articles mentioned in the plaint. Defendants have paid the rent upto March 2002 and further they have paid another sum of Rs.15,000/-. In this way, the defendants controverted the stand of the plaintiff and requested for dismissal of the suit. After hearing learned counsel for the parties and perusing the evidence on record the trial Court decreed the suit of the plaintiff for possession directing the defendant to hand over the possession of the property in dispute and also passed a decree of recovery of Rs.43,494/- on account of arrears of rent excluding house tax Rs.8,094/- with interest at the rate of 12% per annum and also passed the decree of mesne profit at the rate of Rs.10,000/- per month from the date of termination of the tenancy till delivery of the vacant possession and directed the defendants to hand over the vacant possession of the premises in dispute within three months failing which the plaintiff was at liberty to get the possession of the building in execution of the decree. Aggrieved from the findings of the trial Court, defendants preferred an appeal which was partly allowed to the extent that judgment and decree dated 21.11.2005 passed by the trial court was modified to the effect that the defendant shall make the payment of arrears of rent at Rs.32,900/- and the plaintiffs were not entitled to recover the house tax of Rs.8,094/-. The defendants shall pay the mesne profits at the rate of Rs.5100/- per month with effect from termination of the tenancy. Further defendants were also liable to pay Rs.10,000/- annually regarding use of the articles lying in the premises till the vacation of the same. All other findings of the trial Court were affirmed and upheld vide impugned judgment and decree dated 01.10.2007. RSA No.909 of 2008 4 Still not satisifed, the defendant has filed the present appeal challenging the findings of the Courts below. Mr.K.S.Dhaliwal, Advocate, learned counsel for the appellant has vehemently argued that suit of the plaintiff-respondent was not maintainable because the building in question was more than 12 years old when it was taken on rent by the appellant and the provisions of Haryana Urban(Control of Rent and Eviction) Act are applicable in the present case and thus the suit of the plaintiff-respondent was not maintainable and the same is liable to be dismissed and therefore a substantial question of law arises in this appeal: “ As to whether the present suit was not maintainable?” On the other hand, learned counsel appearing on behalf of the plaintiff-respondent has supported the findings of the Courts below and has argued that a concurrent finding of fact has been recorded in favour of the plaintiff-respondent to the effect that the Civil Court has the jurisdiction to decide the present suit. It was further argued by him that on appreciation of evidence a finding of fact has been recorded that the plaintiff-respondent constructed the premises in dispute in the year 1996 and therefore in view of this finding the disputed property does not fall within the ambit of Haryana Urban(Control of Rent and Eviction) Act, 1973 and the suit of the plaintiff-respondent was decreed in accordance with law. I have heard learned counsel for the parties and perused the record of the appeal. The only question which arises in this appeal is as to whether the provision of Rent Act are applicable to the facts of the case. In order to establish this fact, the plaintiff/respondent had taken the plea that the construction of the building in question was completed in the year 1996 and to prove the factum of completion of the building in the year 1996 the plaintiff examined Dalbir Singh PW3 who was the mason, who RSA No.909 of 2008 5 categorically stated that Maman got constructed the disputed building in the year 1996. Besides this, PW4 Anand Parkash and PW5 Jaivir also supported the case of the plaintiff-respondent. The case of the plaintiff respondent was further supported by Ex.PW5/1 to PW5/3 which proved the fact that during the course of construction of the building in question the cement were purchased by the plaintiff from M/s Bharat Cement Distributors. Furthermore, PW6 Rajinder Kumar, clerk also proved the fact that property in question was issued a notice by the Office of District Town Planner on 21.03.1996 to stop the ongoing construction. On the other hand the appellant has not placed on record any evidence to controvert the aforesaid evidence except his own statement. Thus, after appreciating the entire oral as well as documentary evidence adduced by the parties, the courts below recorded a finding of fact that construction of building in question was done in the year 1996 and the said fact could not be rebutted by the appellant in any way. From the above discussion, it is clearly made out that on appreciation of evidence the courts below recorded a finding of fact with regard to the construction of the building. It is well settled that if the judgment is based on proper appreciation of evidence then in the Regular Second appeal the High Court will not interfere. There is no dispute of the fact that if the construction is made in the year 1996 then the suit was maintainable. No other point was urged. For the reasons recorded above I find this appeal without any merit. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 19.02.2009 neenu