IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 270/1996, RSA No.275/1996 and Civil Revision No. 27/2001 Reserved on:10.4.2009 Decided on:19.6. 2009 1. RSA No. 270/1996 Smt. Savitri Devi and others.. …Appellants. Versus Jag Parkash and another. …Respondents. 2. RSA No. 275/1996 Bihari Lal. …Appellant. Versus Jag Parkash and others. …Respondents. 3. Civil Revision No. 27/2001 Bihari Lal …Appellant. Versus Jag Parkash …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. RSA No. 270/1996 For the Appellants : Mr. Karan Singh Kanwar, Advocate. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 For the Respondents : Mr. T.C. Sharma, Advocate for respondent No.1. : Mr. Bimal Gupta, Advocate for respondent No.2. RSA No. 275/1996 For the Appellants : Mr. Bimal Gupta, Advocate. : Mr. T.C. Sharma, Advocate for respondents. Civil Revision No. 27/2001 For the petitioner : Ms. Salochana Kaundal, Advocate vice Mr. O.P. Thakur, Advocate. For the respodnent. : Mr. T.C. Sharma, Advocate. Rajiv Sharma, J. Since common questions of law and facts are involved in RSA No. 270/1996 and 275/1996 and Civil Revision No. 27 of 2001, the same were heard together and are being disposed of by a common judgment. Brief facts necessary for the adjudication of these two Regular Second Appeals and Civil Revision are that the respondent-plaintiff Jai Prakash (hereinafter referred to as ‘ the plaintiff’ for convenience sake) in RSAs and respondent in Civil Revision No. 27/2001 filed a suit in the Court of Sub Judge 1st Class, Hamirpur for declaration and for permanent prohibitory injunction for restraining the appellants-defendants, predecessor-in-interest of Smt. Savitri Devi, Naranjan Dass, Ram Chand and Bihari Lal (hereinafter referred to as ‘the defendants’ for convenience sake) from forcibly evicting him from the premises described as shop and Thara as comprised in Khasra Nos. 320 and 321 measuring 22-83 square meters situated in Mohalla Shiv Nagar of Hamirpur town, as per copy of jamabandi for the year 1982-83. The plaintiff claimed himself to be the tenant in respect of the shop in dispute under defendants No.1 and 2, Sh. 3 Naranjan Dass and Ram Chand @ Rs. 150/- per month. He disowned the relationship as a tenant under Bihari Lal. He also assailed the decision of the Divisional Commissioner dated 5.4.1996 rendered in revenue appeal No. 182 of 1984. He claimed his possession over the shop in dispute since 1975-76. According to him, the rate of rent was Rs. 80/- per month. It was subsequently increased to Rs. 150/- per month in the year 1979-80. It is further averred that the defendant Sh. Naranjan Dass and Ram Chand to harass him mortgaged the suit property to Sh. Bihari Lal on 19.5.1980. They in collusion with each other fabricated a rent deed dated 1.6.1980 showing the plaintiff as tenant under Bihari Lal. He disowned the signatures on the rent deed dated 1.6.1980. The defendants filed separate written statements. Defendants No.1 and 2 have stated on merit that the disputed shop was mortgaged by them to Sh. Bihari Lal through registered deed dated 19.5.1980 and after the mortgage, the plaintiff took possession from Sh. Bihari Lal as tenant on rent @ of Rs. 150/- per month. They have admitted their relationship with the plaintiff. Defendant No.3 has averred that after the mortgage, the plaintiff approached him to rent out the shop, for which he executed rent deed on 1.6.1980. The trial court decreed the suit on 29.6.1992. Defendants Naranjan Dass and Ram Chand filed separate appeals before the learned District Judge, Hamirpur assailing the judgment and decree dated 29.6.1992 which was registered as Civil Appeal No. 85/1992. Sh. Bihari Lal also assailed the judgment and decree dated 29.6.1992 before the learned District Judge, Hamirpur vide civil appeal No.89/92. The learned District Judge, Hamirpur dismissed both the appeals on 22.6.1996. S/Sh. Naranjan Dass and Ram Chand defendants have filed RSA No. 270/96 assailing the judgment dated 22.6.1996. This Regular Second Appeal was deemed to have been 4 admitted on substantial questions No. 1 to 3 framed with the memorandum of appeal on 8.4.2009, which read thus: 1. “Whether by executing the rent note Ext. DW-4/A dated 1.6.80 there is implied surrender of alleged tenancy of respondent 1 under appellants in favour of respondent No.2.? 2. Whether learned appellate court erred in terming Ext. D- 1 dated 19.5.80 mortgage deed as malafide when it is not even pleaded case of Jag Parkash, plaintiff? 3. Whether the learned lower appellate court misconstrued, misinterpreted letter Ext. DW-8/A dated 4.1.77 and notice Ex.PW-4/A dated 17.1.77 in returning the finding that Jag Parkash is in possession of shop as tenant since 1975-76?” Sh. Bihari Lal filed separate Regular Second Appeal bearing RSA No. 275/1996 assailing the judgment and decree dated 22.6.1996 passed by the learned District Judge, Hamirpur. The same was deemed to have been admitted on the substantial questions of law No.1 and 2 framed with the memorandum of appeal, which read thus: 1. “Whether there is implied surrender of tenancy of respodnent-1 under respondent 2, 3 of the shop after execution of rent note, Ext. DW-4/A dated 1.6.80 in favour of appellant? 2. Whether learned lower appellate court misconstrued the case of respodnent-1 on the creation of mortgage vide mortgage deed, Ext. D.1 dated 19.5.80 and learned lower appellate court has returned the finding on mortgage contrary to plea set up by respodnent-1 on the question of mortgage?” Sh. Bihari Lal had also filed rent petition before the Rent Controller, Hamirpur bearing Rent Petition No. 8 of 1994 under section 14 (2) (i) and 14 (2) (iii) of the Himachal Pradesh Urban Rent Control Act, 1987 for the 5 eviction of the respondent Sh. Jag Parkash. The learned Rent Controller partly allowed the petition on account of arrears of rent on 18.2.1999. The tenant i.e. Sh. Jag Parkash filed an appeal before the learned Appellate Authority, Hamirpur assailing the judgment passed by the learned Rent Controller, Hamirpur whereby Sh. Bihari Lal was not held to be the landlord of the shop in question. However, Sh. Bihari Lal was held entitled to receive the rent of the disputed shop in case the judgment dated 22.6.1996 is set aside. Sh. Bihari Lal has assailed the decision of the Appellate Authority dated 3.10.2000 by way of present petition. It was admitted on 26.2.2001. It was directed to be connected with RSAs No. 270/96 and 275/96. These matters were directed to be heard together by the learned Single Judge. It is in the backdrop of the above enumerated facts that both the Regular Second Appeals and Civil Revision were adjudicated upon together. Mr. Bimal Gupta, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. He has vehemently argued that both the courts below have misconstrued Ex.D-1 dated 19.5.1980 and letters Ex.PW-4/A and Ex.DW- 8/A. Mr. Tek Chand Sharma, Advocate has supported the judgments and decrees passed by both the courts below. According to him there is neither any illegality nor any infirmity in the judgments passed by both the courts below. He further contended that there is no substantial question of law involved in both the appeals. Ms. Sulochana Kaundal, Advocate appearing in civil revision No. 27/2001 has vehemently argued that both the courts below have failed to exercise the jurisdiction vested in them. She further contended that the 6 tenant Sh. Jag Parkash could not dispute the status of Sh. Bihari Lal as landlord. I have heard the learned counsel for the parties and perused the record carefully. The substantial questions of law framed in both the Regular Second Appeals are interconnected and interlinked; therefore, the same were taken up together for determination to avoid repetition of discussion of the evidence. The plaintiff has appeared as PW-1. He has relied upon the letter (Ex.PW-4/A) written and addressed to him by the Secretary, Municipal Committee, Hamirpur. This document was proved through PW-4 Sh. Raj Kishan. The contents of this letter establish that the shop in dispute was under the control of Sh. Jag Parkash. The Municipal Committee had directed him to demolish the structure which was raised without prior approval of the Municipal Committee. PW-2 Narain Dass, PW-3 Brahm Dass, PW-4 Raj Kishan Secretary Municipal Corporation, PW-5 Jaswan Rai, PW-6 Hem Raj and PW-8 Brahm Dass have supported the version of the plaintiff. Sh. Naranjan Dass and Ram Chand have testified that the plaintiff was running the shop in dispute for the last 10-12 years. In Ex.PW-4/A, the status of the plaintiff has been described as a tenant. The defendants have also examined eight witnesses. DW-4 Sh. Ranbir Singh has testified that the rent deed Ex.DW-4/A dated 1.6.1980 was scribed by him at the instance of Sh. Bihari Lal and Jag Parkash. He further deposed that it was read over and explained to both of them. Thereafter they after admitting the contents to be correct signed the document. DW-5 Sh. Duni Chand has deposed that the rent deed Ex.DW- 4/A was signed by him. He has admitted categorically that defendant Ram Chand was serving as a Teacher in Jol Sappar. DW-6 Brahm Dass 7 has also deposed that Ex.DW-4/A was signed by him. He was a labourer. He was working in the house of defendant Ram Chand. The mortgage deed Ex.D-1 according to the defendants was executed on 19.5.1980. There is no mention of the fact that defendants No.1 and 2 were in possession of the disputed shop prior to the creation of the mortgage. There is no recital regarding delivery of possession to Sh. Bihari Lal in sequel to the execution of mortgage deed on 19.5.1980. In mutation (Ex.D-3), there is no mention regarding delivery of possession by the mortgagor in favour of mortgagee. DW-2 Sh. Roshan Lal has tried to prove the mortgage deed. DW-3 Prithi Chand was not examined and after recording few lines, he was discharged. DW-4 Ranbir Singh tried to prove the rent deed Ex.DW-4/A. The statements of DWs 5 and 6 have already been discussed hereinabove. DW-8 Budhi Singh had appeared to prove the contents of letter Ex.DW-8/A. DW-9 Suresh Kumar has only produced the file No. 220 of 1986. It will be apt at this stage to discuss Ex.DW-8/A dated 4.1.1977. This letter is addressed to the President Municipal Committee by Sh. Naranjan Dass and Ram Chand. They have communicated that resolution No. 9 of 1975 dated 30.1.1975 was valid up to 30.1.1976 and due to some reason they could not complete the shop. They have applied for the extension of the period which was extended up to 30.1.1977 vide resolution No. 58 of 76 dated 5.4.1976. They have completed the construction in the year 1976. The version of the defendants that they only permitted the plaintiff to look-after the shop cannot be accepted. The mortgage deed is dated 19.5.1980. The mortgage amount is Rs. 2500/-. The disputed shop is situated at Gandhi Chowk, Hamirpur. The defendants could not prove the necessity for creating mortgage of the disputed shop for a meagre amount of Rs. 2500/-. A perusal of mortgage 8 deed suggests that consideration of Rs. 2000/- was earlier paid and only Rs. 500/- was paid at the time of registration before the Sub-Registrar. The defendants are closely related. There is sufficient force in the submission of Mr. Tek Chand Sharma, Advocate that the mortgage was created to oust the plaintiff from the disputed shop. There is ample evidence on record to prove that the plaintiff was in possession of the shop before 1980. In these circumstances the rent deed Ex.DW-4/A dated 1.6.1980 became redundant. In fact, the plaintiff was in possession of the disputed shop since 1975 as per the statements of PWs coupled with letter Ex.PW-4/A which was issued by the Municipal Committee addressed to the plaintiff treating him as a tenant. Cumulatively, it is held that the plaintiff always remained tenant of defendants, namely, S/Sh. Naranjan Dass and Ram Chand. The mortgage deed dated 19.5.1980 was a ploy to oust the plaintiff from the disputed shop. The plaintiff was in possession of the shop since 1975-76. Sh. Bihari Lal never became landlord qua the disputed shop. The learned courts below have correctly appreciated Ex.D-1, EXPW-4/A and Ex.DW- 8/A. Sh. Bihari Lal, as noticed above, had filed a rent petition before the Rent Controller, Hamirpur seeking eviction of Sh. Jag Parkash. It was partly allowed by the Rent Controller on 18.2.1999. The learned Appellate Authority on the basis of the judgment dated 22.6.1996 has dismissed the rent petition. He has come to a right conclusion that as per the judgment of the District Judge, Hamirpur dated 22.6.1996, Sh. Bihari Lal was not adjudicated as owner or landlord of the premises in question. Since there was categorical finding recorded by the learned Sub Judge which was upheld by the learned District Judge to the effect that Sh. Bihari Lal has not become owner or landlord and in fact the landlords were Sh. Naranjan 9 Dass and Ram Chand, the Appellate Authority has rightly accepted the appeal. This Court has already upheld the judgment and decree passed by the learned District Judge, Hamirpur, as such there is no infirmity in the order passed by the Appellate Authority accepting the appeal of tenant Sh. Jag Parkash. Sh. Bihari Lal could not be treated as owner or landlord to enable him to seek eviction of the tenant. Sh. Jag Parkash was inducted as a tenant by S/Sh. Naranjan Dass and Ram Chand and not by Bihari Lal. In view of the aforesaid reasoning/observations, both the Regular Second Appeals and the Civil Revision are dismissed. No costs. 19.6. 2009 (Rajiv Sharma ), J. *awasthi*