R.S.A. No.762 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.762 of 1985 Date of Decision:15.7.2010 Hans Raj .....Appellant Vs. Dharam Pal and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Amarjit Markan, Advocate for the appellant. Mr. V.K. Jain, Senior Advocate with Mr. J.K. Bhatti, Advocate for the respondents. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 12.2.1985 passed by the Court of learned Additional District Judge II, Jind whereby he dismissed the appeal filed by Hans Raj against the judgment/ decree dated 18.10.1982 rendered by the Court of learned Sub Judge Ist Class, Narwana vide which he decreed the suit of the plaintiffs for possession of the demised premises as described in the heading of the plaint. The factual matrix is that the demised shop owned by Arya Samaj Narwana had been tenanted to Haveli Ram father of Hans Raj defendant at a monthly rent of Rs.45/- on 1.9.1965 vide rent note for one year commencing from 1.9.1965. Haveli Ram became a statutory tenant. He breathed his last on 21.5.1980. With his death, the tenancy being not heritable became extinct, but nonetheless, the defendant Hans Raj son of R.S.A. No.762 of 1985 -2- Haveli Ram is continuing in occupation as a trespasser. By serving a notice, he was called upon to vacate the premises, but to no effect. In his written statement, Hans Raj – defendant has inter-alia pleaded that he and his father were running joint business of cloth in the disputed shop and after his father's death, he is occupying this shop in the same capacity as a tenant and not as a trespasser. That the tenancy being perpetual and contractual, he has a right to continue as such. On the pleadings of the parties, the following issues were framed: 1. Whether Haveli Ram was statutory tenant of the suit property at the time of his death, if so, to what effect? OPP 2. Whether the plaintiffs have locus standi to file the present suit? OPP 3. Whether Hans Raj is direct tenant under the plaintiffs from the time of Haveli Ram as alleged? OPD 4. Whether the suit is bad for non joinder of parties, if so to what effect? OPD 5. Whether the suit is bad for mis-joinder of parties, if so, to what effect? OPD 6. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP 7. Whether the civil court has got no jurisdiction to try the present suit? OPD 8. Relief. The learned trial Court decided issues No.1 and 3 in favour of R.S.A. No.762 of 1985 -3- the plaintiffs holding that Haveli Ram was a statutory tenant and the defendant is not direct tenant under the plaintiffs. Issue No.2 was returned in favour of the plaintiffs holding that they have locus standi to file the suit. Issues No.4, 5, 6 and 7 were held against the defendant. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court decreed the suit for possession of the demised premises. Feeling aggrieved therewith, the defendant went up in appeal, which was met the same fate. Being dissatisfied with the judgments recorded by both the Courts below, the defendant has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The following substantial questions of law arises for determination: “Whether the findings contained in the impugned judgments are perverse by holding that the tenancy rights under section 2 (h) of the Haryana Urban (Control Rent & Eviction) Act, 1973 are not heritable and the findings are liable to be set aside as held in 1986(1) Rent Control Reporter (Rent) 545 (FB).” Mr. Amarjit Markan, Advocate on behalf of the appellant urged with great eloquence that the learned lower appellate court has gravely erred in holding that as Haveli Ram was occupying the shop in dispute as a tenant, where he was doing business of selling cloth, after his death, defendant, who is his son would not inherit the tenancy rights in this shop and thus, it follows that the defendant is occupying the shop in dispute as a trespasser and not as a tenant. These observations run counter to the ratio decidendi laid down by the Full Bench of this Court in Harish Chander R.S.A. No.762 of 1985 -4- and others v. Kirpa Ram (Faridabad), 1986(1) Rent Control Reporter (Rent) 545, wherein it has been held that “The imperative conclusion, therefore, is that the condition and order of inheritance of tenancy which find place in section 2(h) of the Haryana Act read with the schedule appended thereto are limited in their application to a `residential building'. The tenancy in respect of a `non-residential building' in the event of the death of the tenant devolves on the heirs of the deceased tenant in accordance with the general law of succession applicable to the tenant and the heirs who step into shoes of the deceased tenant continue to enjoy the protection aforesaid by the Haryana Act.” Faced with this situation, Mr. V.K. Jain, Senior Advocate on behalf of the plaintiffs - respondents maintained that in execution of the decree passed by the learned trial Court, the respondents had obtained possession of the shop on 2.3.1985 as so recorded in the order dated 14.5.1985 passed by this Court. Subsequently, the appeal was admitted on 23.7.1985. The Arya Samaj Society after taking possession of the shop in dispute rented out the same to Mr. Sat Pal son of Kali Ram on 1.2.1986 at the monthly rent of Rs.700/- whereafter the tenancy was transferred in the name of Prem Chand son of Kali Ram, who is the real brother of Sat Pal and at present Prem Chand is in possession of the demised shop as a tenant at a monthly rent of Rs.1500/-. The Arya Samaj Society, Narwana is running its expenses on the strength of the income received from shop in dispute and 23 other shops, which are on rent with the tenants. In view of these subsequent events, the possession of Prem Chand may be protected. Mr. Jain could not distinguish Harish Chander and others' case (supra), in any manner. Thus, the reasonable and legitimate R.S.A. No.762 of 1985 -5- inference which can be drawn under the circumstances is that in fact, he has agreed to the rule laid down in Harish Chander and others' case (supra). Admittedly, Hans Raj – defendant is the son of original tenant Haveli Ram. The demised premises being a shop is a non-residential building. Haveli Ram has passed away. The Full Bench of this Court in re: Harish Chander and others (supra), has laid down in clear and unambiguous terms that “the tenancy in respect of a non-residential building in the event of the death of the tenant devolves on the heirs of the deceased- tenant in accordance with the general law of succession applicable to the tenant and the heirs who step into shoes of the deceased- tenant continue to enjoy the protection afforded by the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short, `the Haryana Act'). The Schedule appended to the Haryana Act mentions the following heirs of a deceased tenant:- “Son, daughter, widow father, mother, grand-father, grand- mother, son of a pre-deceased son, unmarried daughter of a pre- deceased son, and widow of a pre-deceased son.” The Schedule appended to the Hindu Succession Act, 1956 reads as under:- HEIRS IN CLASS I AND CLASS II Class I Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre- deceased son; son of a pre-deceased son of a pre-deceased son; R.S.A. No.762 of 1985 -6- daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; [son of a pre- deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son]. In the case at hand, Hans Raj being the son of the deceased tenant Haveli Ram is covered by the afore-quoted Schedules. Consequently, in view of Harish Chander and others' case (supra), the tenancy herein devolves on Hans Raj – defendant being son of the deceased- tenant Haveli Ram. The former having stepped into the shoes of the latter is entitled to continue to enjoy the protection afforded by the provisions of The Haryana Act. As a sequel of the above discussion, it is held that the impugned judgments are perverse and are liable to be set aside in view of Harish Chander and others' case (supra) and resultantly, the substantial question stands answered in favour of the appellant and against the respondents. It would be doing violence to the provisions of Section 2(h) ibid as also the ratio decidendi laid down in Harish Chander and others' case (supra), to protect the possession of Prem Chand by giving any weightage to the stated subsequent events. The appeal preferred by Hans Raj in the Court of learned Additional District Judge II, Jind was dismissed on 12.2.1985. Startlingly enough that the plaintiffs- respondents took the possession of the demised shop after 17 days after the dismissal of the said R.S.A. No.762 of 1985 -7- appeal, which gives an inkling that every step in the execution of the decree was completed with undue haste before the present appeal was filed. So- called subsequent events speak for themselves. In the words of Lord Hewart “It is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” In consequence of the preceding discussion, this appeal is accepted setting aside the impugned judgments/ decrees. On being moved an application under Section 144 of the Code of Civil Procedure, the possession of the demised shop shall be got restored to the appellant by the Executing Court preferably within three months. July 15, 2010 ( HARBANS LAL ) renu JUDGE Note: Whether this case is to be referred to the Reporter? Yes/No