IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.344 of 1998. Judgment Reserved on: 09.04.2009 Date of decision: 19.05.2009. Mrs.Ranbir Bakshi …Appellant Versus Smt.Kamlesh Sood …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.R.K. Gautam, Senior Advocate with Mr.Mehar Chand, Advocate. For the Respondent: Mr.Bhupinder Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the defendant against the judgment and decree of the learned appellate Court reversing the judgment and decree of the learned trial Court declining the relief to the respondent-plaintiff herein for possession of the suit premises and recovery of the amount of use and occupation charges etc. of the suit premises, as prayed for. The respondent-plaintiff herein instituted the suit, out of which the present proceedings arise, 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 pleading that she is the owner of the building known as “Green View”, situated in Mauja Garkhal-Kimmu Ghat, Tehsil Kasauli, District Solan, H.P. consisting of two bed rooms, one drawing room, one dinning room, two kitchens, two bathrooms and one store room in the ground floor of the said building. She pleaded that these premises were let out to the appellant-defendant on a monthly rent of Rs.1200/- and the rent was payable by the 7th of each month in advance which has not been paid to her despite notice having been served the appellant. She claimed possession of the premises on the basis of ownership and a valid notice having been served on the defendant under Section 106 of the Transfer of Property Act (1872) asking her to vacate the demised premises. The suit was resisted by the defendant on the ground that she was not the lessee, but the premises were leased out to M/s.J.S. Tin Fabricators, owned by her husband, who paid rent/lease money through bankers cheque up to the month of October, 1992, but receipt was not acknowledged by the plaintiff. The learned trial Court settled seven issues. The crucial issue being issue No.1, namely, whether appellant-defendant was the tenant/lessee of the plaintiff. This issue was decided against her on the evidence on record and therefore, the findings on the other issues had become redundant. The suit was accordingly dismissed. 3 In appeal preferred, the learned appellate Court re-considered the entire factual matrix and granted a decree for possession and recovery of the suit amount as prayed for. The learned District Judge did not accept the contention of the appellant herein that the premises had been taken on rent by M/s.J.S. Tin Fabricators whose manufacturing Unit was located in Industrial Area, Barotiwala as the Garkhal is a central point between Barotiwala and Shimla. The Court rightly held that Barotiwala is at a distance of about 50 kilometers from Garkhal which is in one corner and is not a mid point between Shimla and Baddi, as alleged. The Court relied upon a decision of the Supreme Court in Hiralal Kapoor vs.Shri Prabhu Choudury, 1988(1) Rent Control Reporter 240 holding that it is not unusual to come across cases where a tenant pays the rent not by a cheque drawn by himself but by a cheque drawn by some other person. The defendant is now in appeal. The case was considered and was admitted on the following substantial questions of law:- “1. Whether the lower appellate Court has failed to appreciate properly and legally Section 106 of the Transfer of Property Act in the present case? 2. Whether the lower appellate Court has wrongly appreciated the evidence on record? 4 3. Whether the lower appellate Court has failed to decide issue No.1 i.e. “Whether the defendant is the tenant under the plaintiff in r/o suit premises as alleged”? 4. Whether the lower appellate Court has wrongly put onus on the defendant while deciding the issue No.1?” Question No.1: This question is decided against the appellant for the reasons that there is no evidence on the record to show or establish that there has been any breach of the provisions of Section 106 of the Transfer of the Property Act. Issue No.2 was settled by the learned trial Court which was held to be redundant in view of the fact that the Court held that the appellant herein was not the tenant/lessee. The appellate Court considered this question independently and held in the evidence that there was compliance of this provision and there is no evidence to the contrary, I do not find that there is any evidence on the record to show or any factual foundation proved that the notice issued is against the provisions of law. Ex.PW-1/A meets the requirement of Section 106 as rightly held by the Court below. Questions No.2,3 and 4: These questions are taken up for determination together as they are interdependent. Question No.5 is 5 not being decided as it is not a question of law but a mere statement that other questions of law require adjudication by the Court. The question for determination is whether the appellant was a lessee of the suit premises. Learned counsel appearing for the appellant urges that the payment of rent/lease money has been made by her husband vide banker cheques Ex.DW- 2/B, Ex.DW-2/A dated 16.8.1992 and 15.8.1992. The evidence of the Bank Clerk Naresh Kumar DW-1 and DW-2 Lajja Ram when considered with the evidence of the husband of the appellant DW-3 Shri Bakshi Ram leaves no doubt that the suit premises had actually been leased to the Firm and not to the appellant herein. He has also placed reliance on Ex.DW-4/A, Ex.DW-4/B and Ex.DW- 4/C, which are the ledger extracts of account books of the business maintained by the husband of the appellant showing the payment of rent to the plaintiff. I cannot persuade myself to hold that these writings/receipts constitute sufficient proof to hold that the husband of the appellant had taken the premises on lease for the business Concern. What the learned trial Court lost sight of the evidence of the witnesses from the Income Tax Department and the Industries Department. Considering the evidence of PW- 2 Om Parkash, who is from the Income Tax Department, Solan, he states that no Income Tax Return has been filed by husband of the appellant after 1981. PW-4 Vineet Kumar, who is Senior Assistant from the 6 Industries Department, proved the registration of M/s.J.S. Tin Fabricators, Barotiwala and has stated that there is no record to show that this Firm ever operated from the premises at Garkhal. The evidence of the Bank officials also does not establish that it was the husband of the appellant who had the lease hold rights. The so called account books maintained by the husband of the appellant do not advance the case of the appellant any further to show that there is anything on the record to show that some reliance could have been placed on the books of account had they been the matter of scrutiny by the Income Tax Department etc. or any other statutory authorities. The two loose sheets produced in the Court cannot establish lease hold rights as now is being sought to be urged by the appellant. Learned District Judge has considered the entire factual matrix and rightly holds that the findings of the learned trial Court that the appellant herein was seeking injunction merely to avoid eviction by pleading tenancy of the suit premises in the name of the business concern but in fact she had taken the demises premises on lease since she was in employment in a school in Kasauli which is only about 2-3 kilometers from the suit property. The learned Court rightly holds that the defence put forth that Garkhal is midway between Barotiwala and Shimla is nothing but a concoction of facts. The Court correctly concludes 7 that the books of account are not being regularly maintained in due course of business by the husband of the defendant. A bare look at the two loose ledger sheets Ext.DW4/A and Ext.DW4/C does not establish the authenticity of the accounts. So far as the Income Tax and Industries Department officials are concerned, their evidence also does not advance the case of the appellant. In fact this evidence is not partisan and only corroborates the case of the plaintiff/appellate. These questions are accordingly decided against the appellant. Consequently, I do not find any merit in this appeal which is accordingly dismissed. There shall be no order as to costs. May 19, 2009. (Dev Darshan Sud) (aks) Judge.