R.S.A. No. 1683 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1683 of 2005 (O&M) Date of decision: 08.1.2009 Punjab Wakf Board, Ambala Cantt. Now Haryana Wakf Board ....Appellant Versus Jagdev Singh @ Jagdish and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Arun Palii, Sr. Advocate, with Mr. Jai Bhagwan, Advocate, for the appellant. Mr. Amit Jain, Advocate, for respondent No.1. Ms. Monisha Lamba, Advocate, for respondents No. 9 and 10. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decrees dated 13.2.2004 and 31.1.2005 passed by the learned Courts below decreeing the suit filed by the plaintiff/respondent. The plaintiff filed a suit for declaration claiming that the lease deed executed by the appellant/defendant No. 1 in favour of defendants No. 2 to 8 was illegal, null and void and not binding on their right. The case set up by the plaintiff/respondent was that the plaintiff is owner of the suit property and that the suit property was constructed by the plaintiff after seeking necessary sanction from the municipal committee, Sohna, on 1.10.1975 and the house tax thereof is R.S.A. No. 1683 of 2005 (O&M) -2- being paid by the plaintiff to the municipal committee, Sohna, since the date of construction on the suit property. The plaintiff also stands recorded as owner of the suit property in the house tax assessment register of the municipal committee, Sohna since the year 1980-81. The suit property is said to be part and parcel of khasra No. 245/4, 245/6 and 245/15 in the revenue estate of Sohna, which was said to be previously owned by Sh. Dina Nath and Thakar Dass sons of Sh. Chanan Ram R/o Palwal. He claimed right of ownership by prescription on expiry of 30 years meant for redemption of the mortgage. It was the case of the plaintiff/respondent that the land in dispute was purchased from said Dina Nath for a sale consideration of Rs.11,500/- and possession of the same was obtained in the year 1974 after paying the earnest money of Rs.3,500/- on 6.6.1974. The sale deed of the suit land could not be executed as the suit land stands involved in litigation with one Ram Chander etc., which was said to be still pending. Defendants No. 2 to 7 except defendant No. 3 were inducted in the suit property as tenants under the plaintiff, whereas father of defendant No. 3 was inducted as tenant, however, subsequently defendant No. 3 was inducted as tenant by the plaintiff. Defendants No. 2 to 6 are said to be chronic defaulters and had not paid the rent for the last 5-6 years, therefore, an ejectment petition was filed before the learned Rent Controller seeking their eviction on ground of non-payment of rent. In the said petition, defendants No. 2 and 3 challenged the rate of rent after admitting the plaintiff to be landlord and owner. The payment of arrears of rent was also made to the plaintiff in order to save eviction. R.S.A. No. 1683 of 2005 (O&M) -3- However, it was the case set up by the plaintiff that subsequently the defendants colluded with appellant/defendant No. 1 in respect of property in their possession by claiming the suit property to be part of khasra No. 650 instead of khasra No. 245/4, 245/6 and 245/15 and by describing themselves to be unauthorised persons in occupation of suit property. It was further claimed that defendants No. 2 to 7 had not delivered the vacant possession of the property to the plaintiff before denying his title over the suit property in contemplation of Section 116 of the Evidence Act. Thus it was claimed that the lease deed issued by defendant No. 1 in favour of tenants of plaintiff i.e. defendants No. 2 to 8 was illegal, null and void and, therefore, liable to be set aside. Defendants No. 2, 4 to 8 initially contested the suit, however, subsequently they were proceeded ex parte. Defendant No. 1, appellant herein, claimed ownership of the suit property and that the construction was made by defendants No. 2 to 8 out of their own money and funds. It was claimed that khasra No. 650 was owned by the appellant/defendant No. 1 and on an application made by defendants No. 2 to 8, the suit property stands allotted to them as lessee. The learned Courts below have recorded a concurrent finding of fact that the plaintiff has failed to prove his ownerhip of the property mentioned in para No. 1 of the plaint as he could not claim ownership merely on the basis of agreement to sell which is said to have been executed by Dina Nath as mortgagee. However, on issue No. 2, the learned Courts below have held that the lease deed executed by defendant No. 1 in favour of defendants No. 2 to 8 was illegal, null and R.S.A. No. 1683 of 2005 (O&M) -4- void as alleged. Thus, in view of the findings recorded on issue No. 2 and other issues, suit filed by the plaintiff was decreed by declaring lease deed executed by appellant/defendant No. 1 to be illegal, null and void and not binding on the rights of the plaintiff. Primarilty the conclusion arrived at by the learned Courts below is that it was proved on record that the plaintiff/respondents were the landlords of defendants No. 2 to 8 and, therefore, in absence of handing back possession, they were entitled to deny their title. Thus findings cannot be said to be perverse or not being capable of arrived at in view of the positive stand taken by appellant/defendant No. 1 that the shops were constructed by defendants No. 2 to 8 out of their own money and funds. However, they did not contest the case to support the case of the appellant/defendant No. 1. The learned counsel appearing on behalf of the appellant has raised the following substantial questions of law to be arising in present appeal: - i) Whether the respondent No. 1/plaintiff can calim the ownership merely on the basis of agreement to sell dated 12.4.1979 executed by Dina Nath who was only mortgagee? ii) Whether the report of Local Commissioner Ex. P6 which is relied upon by the Ld. Courts below is valid in the eye of law and the respondent can be declared to be owner on the basis of said report of the suit property? iii) Whether the respondent No. 1/plaintiff is entitled for R.S.A. No. 1683 of 2005 (O&M) -5- relief sought in the plaint once the Ld. Trial Court has given the findings that he is not found to be owner of the suit land and the respondent No. 1 has not filed any appeal or cross-objections against these findings and decided the issue No.1 against the respondent No.1/plaintiff? However, I find that no such substantial question of law arises for consideration. The learned Courts below recorded findings not only on the basis of Local Commissioner but also on other evidence on record showing that defendants No. 2 to 8 were, in fact, tenants of plaintiff as per admission made by them in petition for eviction filed by the plaintiff before the learned Rent Controller. No substantial question of law arises for consideration by this Court. Dismissed. (Vinod K. Sharma) Judge January 8, 2009 R.S.