RSA No.28 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.28 of 2010(O&M) Date of decision: 11.1.2010 Ram Kishan ......Appellant(s) Versus Smt. Sarswati Devi ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Akshay Bhan, Advocate for the appellant. Rakesh Kumar Garg, J. This is defendant's regular second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondent for possession of the shop in question and for recovery of arrears of rent etc. has been decreed with costs. In brief, the plaintiff-respondent, who admittedly is the owner of the shop in dispute, filed a suit for possession against the defendant- appellant alleging that the aforesaid shop was rented out to him but he proved not to be a good tenant for want of payment of rent regularly and thus, his tenancy was terminated by serving a legal notice under Section 106 of the Transfer of Property Act for handing over the vacant possession of the shop in dispute as the provisions of the Rent Act were not applicable. The arrears of rent and further compensation for use and occupation of the shop was also claimed. Upon notice, the defendant-appellant contested the suit raising various legal objections. On merits, the ownership of the plaintiff- respondent was admitted. However, it was further admitted that a rent RSA No.28 of 2010(O&M) 2 note dated 28.9.1990 was executed by the appellant. However, it was submitted that the same was not acted upon as the appellant was never handed over the possession of the shop in dispute and the aforesaid rent note was a Sham and paper transaction and in fact, the plaintiff-respondent had rented out the shop in dispute to the son of the appellant and since then, he is in possession thereof as a tenant. On appreciation of evidence and hearing learned counsel for the parties, the trial Court decreed the suit of the plaintiff-respondent and directed the appellant to hand over the vacant possession of the shop in dispute and make the payment of arrears of rent and compensation for use and occupation of the shop within a period of one month. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellant filed an appeal. The plaintiff-respondent also filed cross-objections with regard to rate of rent and grant of mesne profits. The Additional District Judge, Narnaul vide impugned judgment and decree dated 28.8.2009 dismissed the appeal filed by the appellant and allowed the cross-objections with the direction that the appellant is liable to pay the damages at the rate of Rs.1000/- per month from 27.3.1998 to the period till vacation of shop, in addition to arrears of rent amounting to Rs.9,000/- already granted by the trial Court for the period from 28.6.1997 to 27.3.1998 . Still not satisfied, the defendant-appellant has filed this appeal challenging the judgment and decrees of the Courts below. Learned counsel appearing on behalf of the appellant has vehemently argued that it has been proved from the voluminous evidence on record that the son of the appellant is in possession of the shop and is running his separate business and there is no relationship of landlord and RSA No.28 of 2010(O&M) 3 tenant between the appellant and respondent and the alleged rent note dated 28.9.1990 was never acted upon and the possession of the shop was never handed over to him. Thus, the impugned judgment and decrees of the Courts below are not sustainable. On the basis of the aforesaid arguments, learned counsel for the appellant has stated that the following substantial questions of law arises in this appeal for consideration of this Court: “i) Whether in the facts and circumstances of the present case the impugned judgments and decrees passed by both the Courts below are legally sustainable in the eyes of law? ii) Whether in the facts and circumstances of the present case the Courts below have rightly held that tenancy existed without transfer of possession?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. There is no dispute with regard to the ownership of the plaintiff-respondent of the shop in dispute. The appellant has also admitted that rent note dated 28.9.1990 was executed by him. However, the stand taken by the appellant is that the aforesaid rent note was merely a paper transaction and the same was never acted upon between the parties as possession of the premises in dispute was never handed over to him. To substantiate the aforesaid stand taken by the appellant, reliance has been placed upon the evidence Ex.D1 to D42 (i.e. the documents showing the running of business by the son of the appellant in the premises in dispute). However, there is no evidence on record to support the contention of the appellant that son of the appellant had taken the shop on rent from the plaintiff-respondent and the appellant was never the tenant. RSA No.28 of 2010(O&M) 4 On one hand, the plaintiff-respondent has clearly proved the execution of the rent deed between her and the appellant and on the other hand, there is no documentary evidence in support of the contention of the appellant therefore, the same cannot be accepted. Further after appreciating the evidence on record and the rent note Ex.P-2, the Courts below have observed that the said rent note clearly shows the large number of endorsement regarding tendering of rent from time to time in the handwriting and signatures of the appellant. No suggestion was put to PW- 8 Gujjar Mal, husband of plaintiff-respondent, regarding the endorsement being false and fabricated. Thus, the stand taken by the appellant that he was never a tenant has rightly been held to be incorrect. Faced with this situation, learned counsel for the appellant further argued that since the plaintiff-respondent herself failed to come into the witness box to prove her case and therefore, the same could not be decreed in her favour. The argument raised by the learned counsel for the appellant is again without any merit. To prove the case of the plaintiff- respondent, PW-8 Gujjar Mal, husband of the landlady, who was also an attorney of the plaintiff, has stepped into the witness box. He was personally aware of all the facts regarding the creation of tenancy/tendering of rent etc. and deposed on behalf of the plaintiff. Thus, the Courts below rightly relied upon his deposition. In view of the aforesaid discussion, I find that no substantial question of law as argued by the learned counsel for the appellant arises in this appeal. No merit. Dismissed. January 11, 2010 (RAKESH KUMAR GARG) ps JUDGE