Regular Second Appeal No.2583 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2583 of 2011 Date of Decision:-12.7.2011 Harbans Singh ...Appellant Versus Harmail Singh ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Harkirat Singh Ghuman, Advocate for the appellant. M ehinder S ingh S ullar , J . (Oral) The epitome of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant appeal and emanating from the record, is that Harmail Singh son of Harchand Singh respondent-plaintiff (for brevity “the plaintiff”) filed the suit against Harbans Singh son of Jangir Singh appellant-defendant (for short “the defendant”) seeking a decree for possession by way of ejectment from the shop in dispute, inter-alia pleading that the defendant was tenant in the shop in question on monthly basis rent at the rate of ` 1500/-. The tenancy was month to month expiring on the end of every month. The defendant was in default of rent from the month of January, 1997. Consequently, his tenancy was terminated by the plaintiff through the medium of registered notice dated 3.9.2004 under section 106 of the Transfer of Property Act, 1882 (hereinafter to be referred as “the T.P.Act”). After the termination of the tenancy, his (defendant) possession is that of a trespasser. Plaintiff asked him to hand over the vacant possession of the shop in dispute, but in vain, which necessitated him to file the suit against him. On the basis of aforesaid allegations, plaintiff filed the suit against the defendant for possession by way of ejectment from the shop in question in the manner described hereinbefore. Regular Second Appeal No.2583 of 2011 -2- 2. The defendant contested the suit and filed his written statement, inter-alia pleading certain preliminary objections of, maintainability, the suit is barred by the principle of res-judicata, mis-joinder and non-joinder of necessary parties, cause of action and locus standi of the plaintiff. It was claimed that plaintiff is not the owner of the entire suit property. The validity of the notice under section 106 of the T.P.Act was also questioned. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 3. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the essential issues depicted in its judgment for proper adjudication. 4. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 5. The trial Court, after taking into consideration the entire material on record and in view of findings on various issues, decreed the suit of the plaintiff, by virtue of impugned judgment and decree dated 23.7.2008. 6. Aggrieved by the judgment and decree of the trial Court, the defendant filed the appeal, which was dismissed with costs as well, by the Ist Appellate Court, by way of impugned judgment and decree dated 1.4.2011. 7. The appellant-defendant still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 8. Having heard the learned counsel for the appellant-defendant, having gone through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the present appeal in this context. 9. Ex-facie the solitary argument of learned counsel that since the earlier suit filed by the plaintiff was dismissed, so, the instant suit was not Regular Second Appeal No.2583 of 2011 -3- maintainable on the basis of principle of res-judicata, is not only devoid of merit but misplaced as well. 10. As is evident from the record that earlier suit for ejectment filed by the plaintiff was dismissed, because the notice for determining the tenancy and for ejectment was held short of time i.e. the period of 15 days and suit was dismissed on technical ground. It has been so mentioned by the plaintiff in his plaint. 11. It is not a matter of dispute that plaintiff again terminated the tenancy of the defendant, by way of legal notice dated 3.9.2004 under section 106 of the T.P.Act. Once the notice is duly served determining the tenancy, then the tenancy as such has come to an end, unless and until either on consent or otherwise, it is established that the tenancy was agreed to be treated as subsisting by the plaintiff, which is totally lacking in the instant case. 12. Moreover, the trial Court has rightly passed the ejectment order, by virtue of impugned judgment and decree dated 23.7.2008. Not only that, the decision of the trial Court was affirmed by the first appellate Court, by means of impugned judgment dated 1.4.2011, the operative part of which is (para 11) as under:- “The learned Lower Court while adjudicating on issues No.1, 2 and 3 has rightly come to a justifiable conclusion that the plaintiff is the landlord/owner of the shop in dispute under tenancy of defendant Harbans Singh at a monthly rent of Rs.600/- and that from October, 2004 the defendant has failed to pay due rent and was entitled to recovery of this amount and, therefore, the findings of the learned Lower Court on issues No.1, 2, 3 and 4 are upheld and has been discussed above there is no bar to the filing of the subsequent suit for ejectment being a tenancy on month to month basis. In view of the foregoing discussions and the findings arrived and from the evidence and the stand of the defendant, Harmail Singh plaintiff is duly established to be the owner of the property under sole occupation of the defendant and that a legal and valid notice has been served upon the defendant and, as such, the findings recorded by the learned Lower Court on issues No.05, 06 and 07 are also upheld. No arguments were advanced on issues No.08 and 09 at the time of arguments and, therefore, the findings recorded by the learned lower Court on these issues also stand reaffirmed.” 13. Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the Regular Second Appeal No.2583 of 2011 -4- right perspective. Having analyzed the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the plaintiff is the owner and defendant was the tenant in the suit property and his tenancy stands terminated. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this respect. 14. No other meaningful argument has been raised by the learned counsel for the appellant to assail the findings of the Courts below in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, in this relevant connection, have already been duly considered and dealt with by the Courts below. 15. Sequelly, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 in the obtaining circumstances of the present case. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 17. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 12.7.2011 Judge AS Whether to be referred to reporter?Yes/No