IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 330 of 2010 alongwith C.O. No. 396/2010 Reserved on : 7.9.2011 Date of Decision :14th September, 2011 Sanjay Kumar ……Appellant Versus: Narendra Devi …Respondent Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes For the appellant : Mr. Ajay Chandel, Advocate For the respondent : Mr. G. R. Palsra, Advocate Sanjay Karol, J. This is the defendant’s Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, assailing the judgment and decree dated 22.4.2010 passed by learned District Judge, Mandi in Civil Appeal No. 102 of 2007, partly allowing the appeal to the extent that findings qua issue No.6 returned by the trial Court stand set aside but findings qua remaining issues, in terms of the judgment and decree dated 25.8.2007 passed by Civil Judge, Junior Division, Chachiot at Gohar, Distt. Mandi in Civil Suit No. 37 of 2004 stand affirmed. 2. Essentially appellant is aggrieved of the concurrent findings of fact recorded by the Courts 2 below with respect to the respondents’ claims qua possession of the suit premises, recovery of rent and mesne profit. 2. Smt. Narendra Devi (respondent herein) is the plaintiff and Sh. Sanjay Kumar (appellant herein) is the defendant. Hereinafter parties shall be referred to as the plaintiff and the defendant. 3. Defendant’s instant appeal was admitted on the following substantial questions of law:- 1. Whether the Courts below have committed an error by holding the appellant as tenant of the demised premises? 2. Whether the first Appellate Court also committed an error by rejecting the application of the appellant under Order 41 Rule 27 of the Code of Civil Procedure? 4. In the appeal, plaintiff also filed cross- objections (396/2010) which also were admitted on the following substantial questions of law:- 1. Whether the first Appellate Court has gravely fallen into error by setting aside the findings of the ld. trial Court with regard to issue No.6, as the non- objector has miserably failed to prove the genuineness of the alleged gift deed? 3. Whether the ld. first Appellate Court has gravely fallen into error by holding that the gift deed is valid without producing and exhibiting the alleged gift deed, 3 which has materially prejudiced the case of the objector/respondent? 5. Plaintiff claimed herself to be owner of land comprising khasra No. 740 situated in Mohal Gohar, Tehsil Chachiot, Distt. Mandi, H.P.. In the said land share of Sh. Pawan Kumar was purchased by her vide registered sale deed dated 14.4.1987. Prior to 1996, she raised construction on part of the said land. Double storeyed structure comprising of two shops on the ground floor and residential accommodation on the first floor was constructed by her. She put the residence for her use. Shop on the ground floor was given on rent to the defendant where he ran his business of a Chemist. Adjoining to these shops, on the plaintiff’s land was a kiosk, which also she had given on rent to Sh. Jitender (PW-7). Sometime in the year 1996, PW-7 handed over possession of the kiosk to the plaintiff where also she raised additional construction in the year 1996. There she constructed one shop on the ground floor and added one room on the first floor as her residence. Possession of shop, thus admeasuring 10 feet, 3 inches x 15 feet, was handed over by her to the defendant, as tenant w.e.f. 1.1.1997. Prior to the same defendant vacated the adjoining shop taken by him on rent and became tenant only with respect to one shop, which now is the subject matter of the suit and referred to as the suit 4 premises. Defendant continued to be in occupation of the said shop as a tenant till the time his tenancy was determined w.e.f. 31.3.2004 vide legal notice dated 11.3.2004. Defendant also stopped paying rent to the plaintiff w.e.f. 1.9.2001 and as such she claimed the same. Since defendant failed to hand over possession of the suit premises or pay arrears of rent, plaintiff filed a suit praying for appropriate reliefs before the trial Court. Plaintiff also claimed mesne profits. 6. Defendant resisted the suit by pleading that suit land was jointly purchased from the original owner by the plaintiff and the defendant. Even though Sh. Pawan Kumar executed sale deed in favour of the plaintiff but the share of Sh. Khem Chand could not be transferred in the name of the defendant as Sh. Khem Chand was not available for registration of the sale deed, even though entire sale consideration was passed on to him at that time. Share of Sh. Khem Chand was eventually got transferred in the name of the defendant, in the revenue record, on the basis of the gift deed dated 29.7.2002 executed by Sh. Devki Nandan. Sh. Devki Nandan, father of the defendant and god brother of the plaintiff had got the entire transaction effected. Parties, as co-owners, jointly raised construction on the land. Defendant occupied the ground floor i.e. shop in question and plaintiff 5 occupied the first floor as such parties are in joint ownership and possession of the construction. 7. Based on the pleadings of the parties, trial Court framed the following issues:- 1) Whether the plaintiff is land lord of the premises, situated in part of khasra No.740 and the defendant was tenant on the monthly rent of Rs.1500/- per month as alleged? ……OPP 2) Whether the tenancy between the plaintiff and defendant stood terminated on 31.3.04 as alleged? …OPP 3) Whether the defendant is liable to pay an amount of Rs.46,500/- as rent w.e.f. 1.9.01 to 31.3.04 as alleged? …OPP 4) Whether the plaintiff is entitled for mesne profits from the defendant w.e.f. 1.4.04 till the recovery of the possession at rate of Rs.2000/- per month? ...OPP 5) Whether the plaintiff is entitled for vacant possession of the suit premises i.e. shop from the defendant? ...OPP 6) Whether the gift dated 29.7.02 is wrong, illegal and liable to be declared null and void and is not binding upon the right of the plaintiff? …OPP 7) Whether the suit of the plaintiff is not maintainable? …OPD 8) Whether the suit of the plaintiff is bad for non joinder and mis joinder of necessary parties? …OPD 9) Whether the suit of the plaintiff is within period of limitation? …OPP 10) Whether the plaintiff is estopped by her own act, conduct and deeds to file the present suit? …OPD 6 11) Whether the plaintiff has no locus standi to file the present suit? …OPD 12) Whether the defendant is a co-shares of the suit property if so, its effect? …OPD 13) Relief. 8. Issues No. 1, 2, 3, 4, 5, 6 & 9 were decided in affirmative in favour of the plaintiff and issues No. 7, 8, 10, 11 & 12 were decided against the defendant. 9. Trial Court decreed the suit in the following terms:- “54. In view of my findings on the aforesaid issues the suit of the plaintiff succeeds and the same is decreed to the effect that the defendant is liable to hand over the vacant possession of the premises to the plaintiff and the suit is decreed for delivery of vacant possession of the premises against the defendant, that the defendant is directed to pay the rent w.e.f. 1-9-01 to 31-3-04 of the amount of Rs.46,500/- and that the defendant is also directed to pay the mesne profit to the plaintiff w.e.f. 1-4-04 upto the actual delivery of the possession of the premises to the plaintiff at the rate of Rs.2000/- per month with costs. A decree sheet be prepared accordingly.” 10. Aggrieved thereof defendant filed an appeal before the District Judge. In terms of the impugned 7 judgment, the lower Appellate Court has only reversed the findings qua issue No.6 by holding as under:- “15. The gift deed dated 29.7.2002 is there on the record of the lower court, but the same has not been tendered in evidence. The transaction of gift was between Khem Chand and the defendant. It is nowhere the case of the defendant that she has any right over the share of Khem Chand in this land. So, the plaintiff has no locus standi to challenge the gift made by Khem Chand to the defendant. In fact the issue was not required to be framed. Hence, the finding of the court below on issue No.6 to the effect that the gift is null and void, deserves to be set aside and is hereby set aside. To this extent, appeal of the appellant/defendant is accepted.” 11. Rest of the findings returned by the trial Court stand concurrently affirmed by the lower Appellate Court. 12. Having heard learned counsel for the parties as also perused the record, I am of the considered view that judgment and decree passed by the trial Court needs to be affirmed in toto. 13. In my considered view, lower Appellate Court seriously erred in reversing the findings qua issue No.6. Defendant was claiming joint ownership and possession of the suit premises on the basis of the gift deed, which in fact was never placed on record and proved in accordance with law. Document of title in support of the defendant’s claim ought to have been 8 proved by him. Significantly Sh. Devki Nandan (DW-2) and defendant Sanjay Gupta (DW-1) admit that share of Sh. Pawan Kumar stood transferred in favour of the plaintiff vide registered sale deed dated 14.4.1987. They claim to have paid the sale consideration to Sh. Khem Chand with respect to his share at that time, yet no document of title was executed by Sh. Khem Chand in their favour. Now there is nothing on record to prove this fact except for the self serving statements of the father and the son. No other oral or documentary evidence has been placed on record, even as per the defendant, land originally belonged to S/Sh. Pawan Kumar and Khem Chand. With respect to his share, Sh. Pawan Kumar executed a valid sale deed in favour of the plaintiff. Now there is nothing on record to show whether Sh. Khem Chand had executed any sale deed/gift deed, with respect to his share, either in favour of the defendant or his father Devki Nandan. Defendant’s claim is rested upon the gift deed executed by Devki Nandan. No doubt, the same is with respect to the share of Sh. Khem Chand but there is nothing to prove the authority of Devki Nandan in this regard. Original owners have not stepped in the witness box in support of the defendant. It also cannot be said that trial Court erred in either framing issue No.6 or returning findings of fact with regard thereto. Findings to this 9 extent returned by lower Appellate Court needs to be reversed and that of the trial Court affirmed. 14. I am of the considered view that Courts below have not committed any error by holding that the plaintiff had raised construction or that the defendant was the tenant in the suit premises. Plaintiff through her statement as also testimonies of Sh. M.R. Chauhan (PW-3), Sh. Chaman Thakur (PW-4), Sh. Gulab Singh (PW-5), Sh. Jitender (PW-7), Sh. Umesh Kumar (PW-8) and Sh. Jethu Ram(PW-9) has proved that she alone had raised construction of the suit premises. Permission from statutory authorities and also electricity and water connection are only in her name. She alone got the construction raised and paid money for the same. Defendant No.7 has supported the plaintiff by deposing that at the place where the suit premises now stands constructed, there used to be a kiosk, in which he was the plaintiff’s tenant. He handed over possession of the same to the plaintiff in the year 1994. Thereafter she raised construction of the suit premises at the very same place. Defendant has also admitted that he occupied possession of the newly constructed shop i.e. the suit premises in the year 1997. On the contrary, defendant has failed to prove that the land was either jointly owned or possessed by the parties or that the construction was jointly raised thereupon. 10 15. Plaintiff in her testimony has proved that she handed over the shop in question to the defendant as a tenant w.e.f. 1.1.1997 on monthly rental of Rs.1500/-. It is not in dispute that relations between the parties at the relevant point in time were cordial. According to the defendant, Sh. Devki Nandan was god brother of the plaintiff. It is true that neither any registered lease deed nor any rent receipts have been placed on record by the plaintiff to prove tenancy. But however it is equally true that defendant has failed to show as to how in what capacity and in what manner he came in possession of the suit premises. Even DW-1 & DW-2 admit that prior to construction of the suit premises, on the adjoining land, plaintiff had raised construction and the defendant was a tenant of the shop on the ground floor. He admits that from there, even in the year 1995-96 he used to run his business of a Chemist. Presently the same is occupied by someone else where business is run in the name of Bittu General Store. Defendant himself admits to have vacated the said shop in the year 1996. It appears that relations between the parties were cordial till September, 2001 when defendant stopped paying rent to the plaintiff. According to the defendant, he had purchased the share of Sh. Khem Chand in the year 1997 itself but sale deed could not be registered. There is nothing on record to show that Sh. Khem Chand was 11 otherwise not available to get the sale transaction completed in the year 1997 itself. It appears that only when the defendant stopped paying rent and relations between the parties became strained, document by way of gift deed surfaced and entries based there upon, were got effected in the revenue record in favour of the defendant. Why is it that defendant waited for more than 5 years to get the title of his ownership recorded, in accordance with law, is not evident on record. In any event, plaintiff has examined two official witnesses i.e. Sh. Navneet Marwah (RPW-1) & Sh. N.D.Sharma (RPW-1). Both of them have given same version. Testimonies of these witnesses evidently show that at the time of obtaining license for running business as a Chemist, defendant categorically disclosed before the statutory authorities that he was occupying the shop in question, i.e. the suit premises, as a tenant. He also filed an affidavit in support thereof. Original record was also produced by these witnesses before the trial Court to substantiate this fact. Also prior to 1997, defendant was running business of a Chemist from the adjoining shop also taken by him on rent. The same is now being run in the name of Bittu General Store. In view of the same, it would be extremely difficult for the defendant to get out of admission made by him and 12 contend that he is in possession of the suit premises as owner thereof. 16. Concurrent findings of fact with regard to tenancy itself needs to be affirmed. 17. Before the lower Appellate Court, defendant moved an application under Order 41 Rule 27 CPC seeking permission to place on record demarcation report and the spot map prepared by the Tehsildar. Trial Court dismissed the application by passing following order:- “25. The application under Order 41 Rule 27 CPC moved by the appellant also deserves dismissal. I have perused the document sought to be tendered in evidence. The report of Tehsildar would show that khasra No.740/1 measuring 0-0-16 bigha is in possession of Bihnu, khasra No.740/2 measuring 0-0-2 bigha is in possession of Narendra where she has her shops and residential house and on khasra No.743/3 measuring 0-0-5 bigha, the defendant has his shop in the ground floor and Narendra has her house on the first floor. At the most, this evidence would show that construction, (if it is taken to have been done by Narendra only) has been done on more than her share. But how this kind of evidence is going to help the defendant? The evidence already discussed above has established that defendant is a tenant. The defendant cannot now be heard to deny the fact that Narendra is the landlady. For the defendant, it does not matter even if the premises in dispute have been constructed on a portion exceeding her share. The defendant at the most is a co-owner to the extent of 2/37 share. 13 His remedy is by way of partition. It seems that there is no vacant land left on the spot and that appears to be the real problem. The defendant is worried how he can get 0-0-2 bigha by partition when there is no vacant land? But that is something which the authority competent to effect partition would decide.” 18. There is no infirmity with the same. Documents sought to be placed on record were prepared in favour of the defendant during trial and he was fully aware of the same. Existence thereof was totally in his knowledge. At that time, he did not deem it proper or essential to place the same on record. It was only when decree was passed against him, he filed an application before the Appellate Court. Even otherwise, there is no justification in allowing the application. It cannot be said that the report sought to be placed on record, is essential for just decision of the matter in controversy. No valid ground or justification has been pleaded by the defendant in the application, necessitating indulgence of the Court in allowing the same at such a belated stage. 19. Tenancy of the defendant stands validly determined. Courts below have concurrently held that defendant is liable to not only hand over vacant and peaceful possession of the suit premises but also pay arrears of rent and mesne profit. I do not find any infirmity, perversity or error in the same. From the 14 record, it could not be pointed out that findings of fact arrived at by the Courts below are based on erroneous, perverse or wrongful appreciation of material on record or that Courts below have misinterpreted or wrongly applied the correct provisions of law, except to the extent discussed hereinabove. 20. Substantial questions of law stand answered accordingly. Hence the present appeal is dismissed and cross objections filed by the plaintiff allowed. All interim orders stand vacated. ( Sanjay Karol ), Judge. September 14, 2011 (rana)