R.S.A.No. 336 of 1996(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 336 of 1996(O&M) Date of decision: 23.11.2009 Harbans Lal and others ......Appellants Versus Devinder Kumar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.M.L.Sarin, Sr. Advocate with Mr.Vikas Suri, Advocate, for the appellants. Mr.Mukul Aggarwal, Advocate, for the respondents. **** SABINA, J. Plaintiffs-respondents No.1 and 2 filed a suit for possession, which was decreed by the Sub Judge Ist Class, Ludhiana, vide judgment and decree dated 24.02.1994. Aggrieved by the same, defendants No. 1 to 3 and 11 preferred an appeal, the same was dismissed by the learned District Judge, Ludhiana, vide judgment and decree dated 22.09.1995. Hence, the present appeal R.S.A.No. 336 of 1996(O&M) 2 by the defendants. Brief facts of the case, as noticed by the lower Appellate Court in paras 1 to 5 of its judgment read as under: “1. Rajinder Kumar son of Shri Faqir Chand, instituted suit for the possession of shop No.B.I.X.1719, situated in Saban Bazar, Ludhiana, shown as red in plan attached to the plaint against, Harbans Lal and others. It is alleged in the plaint that Faqir Chand was the owner of this property. He was father of Rajinder Kumar plaintiff. Earlier this building was bearing no.B.VII.1384. Shri Faqir Chand had purchased this property vide sale deed dated 14.1.1971. Shri Faqir Chand died on 22.7.1978. Shri Rajinder Kumar, plaintiff, is the owner of this property(shop) as late Shri Faqir Chand had executed a legal and valid will in favour of Rajinder Kumar. Rajinder Kumar was residing in England. He had asked his sister Shrimati Amra Wati to manage to this property on his behalf. She was allowed to use the shop, but she had no right to let out the property or to transfer its possession to anybody. Naresh Kumar is the son of Shrimati Amra Wati. Naresh Kumar alleges that he had put Harbans Lal and his two sons in possession of the R.S.A.No. 336 of 1996(O&M) 3 shop. It is a double storeyed building. Madan Lal, Brij and Kewal are the sons of Parduman Lal, who was a tenant on the first floor. Madan Lal, Brij and Kewal, were in occupation of the first floor. Building was an old construction and was in dilapidated condition. In the month of Sept.1988, the property fell down during rains. Shrimati Darshana D/o Parduman Lal died as a result of the collapse of the first floor during rains in Sept.1988. Whole of first floor caved in. Roof of the ground floor also gave way and there does not exist any first floor now and the ground floor is also in a dilapidated condition. Sons of Parduman Lal are thus not in possession of the first floor as there is no first floor in existence. Parduman Lal's sons have been impleaded as defendants so that no complication arose at later stage. Harish Kumar was also impleaded as defnedant as a measure of caution as he is the son of Harbans Lal. He might set up that he is in possession of the shop. 2. Harbans Lal and his sons Ashok Kumar and Amarjit took possession of the terrace and stairs after the first floor had caved in. It is alleged in the plaint that he(Rajinder Kumar) is entitled to R.S.A.No. 336 of 1996(O&M) 4 possession as he is owner. Harbans Lal and his sons are in unauthorized possession of the shop. Amra Wati had been authorized only to manage and use the property. She had not been authorized to let out the shop. If she or her sons had let out the shop-, the tenancy created by them was illegal. If Naresh kumar had created any tenancy in favour of Harbans Lal and his sons that is of no consequence and is not binding upon him(Rajinder Kumar). Tenancy of the first floor has come to an end with the collapse of the first floor. Rajinder Kumar is residing in England. Harbans Lal and his sons are trying to take advantage of his absence and are threatening to raise construction. It is alleged in the plaint that he has appointed Shri Pawan Kumar Puri as his attorney vide power of attorney dated 20.12.88 to take possession and to file suit. Amra Wati and Kanta are his sisters. Sarswati is his mother. They have been impleaded being proper parties. In nut-shell Rajinder Kumar claimed possession of the shop on account of his being owner and on account of Harbans Lal and his sons, being in unauthorized possession theref having been inducted by one, whose authority did not R.S.A.No. 336 of 1996(O&M) 5 extend to the creation of tenancy. 3. During the pendency of he suit property was purchased by Devinder Kumar and Sawitri Devi, as such they were substituted in place of Rajinder Kumar. 4. Harbans Lal and his sons contested the suit of the plaintiffs urging that Ashok Kumar and Amarjit sons of Harbans Lal are in possession of the shop as tenants inducted by Rajinder Kumar. Harbans Lal had nothing to do with the shop. It was denied that Rajinder Kumar was the owner of the shop. Factum of Will set up by Rajinder Kumar was denied. Its validity was also denied. It was denied that Shrimati Amra Wati was managing the property on behalf of Rajinder Kumar. It was denied that she was allowed to use the shop. It was urged that they were not aware if Naresh Kumar Amravati had no right to let out the property or to transfer its possession or that defendant no.3 was the son of defendant no.7 i.e. Naresh Kumar was the son of Shrimati Amra Wati. Parduman Lal was a tenant of the first floor. After his death, his sons are tenants, qua the first floor. It was denied that Amra Wati was allowed to use the shop as a licensee or that R.S.A.No. 336 of 1996(O&M) 6 she or her son had no right or interest in the property or that they could not create any right or interest in the person inducted by them to the property. It was denied that the plaintiff had every right to take possession of the shop stairs and terrace. It was denied that portion of the first floor had fallen and had ceased to exist or that the right of tenancy of the heirs of Parduman Lal in the first floor had come to an end. It was denied that Pawan Kumar was appointed as attorney by Rajinder Kumar to take possession or to file the suit. Alleged power of attorney is illegal. Pawan Kumar had no right to sign and verify the plaint. It was admitted that Rajinder Kumar has sold the property to the plaintiffs vide registered sale deed. 5. Harish Kumar, defendant, also contested the suit. Shrimati Amra Wati was one of the co-owners of the property. She was managing the property in her own right and so was Shri Naresh Kumar who was letting out the property some times on behalf of his mother and some times on behalf of Shri Rajinder Kumar. He is in possession of the property as of right along with his brothers Ashok Kumar and Amarjit who are tenants. Terrace and stairs form part of tenancy premises and as such there could be no question of possession R.S.A.No. 336 of 1996(O&M) 7 having been taken by them on the collapse of the first floor. On the pleadings of the parties, the following issues were framed by the trial court: 1.Whether the plaintiffs are owners of the property in dispute?OPP. 2. Whether the defendant nos.1 to 3 and 11 are tenants and are in possession of ground floor as alleged, if so, its effect?OPD. 3. Whether the suit is not maintainable in the present form?OPD. 4. Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD. 5. Whether the plaintiffs have no locus standi to file the present suit?OPD. 6. Whether the plaintiff is estopped by his act and conduct from filing the present suit?OPD. 7. Relief." The following additional issue was framed later on :- “1-A Whether the total first floor of the disputed property has fallen down ? If so its effect ? OPP Learned senior counsel for the appellants has submitted that the Will dated 29.3.1971 had not been duly proved on record. The original Will had not seen the light of the day. Hence, Amra Wati was also a co-owner of the suit property. Amra Wati or her heirs could rent out the property in dispute to the appellants. Hence, the R.S.A.No. 336 of 1996(O&M) 8 Rent Controller was the appropriate authority to decide the dispute. The present suit had been filed by a person, who was not having a valid power of attorney in his favour. The suit had been filed with a view to circumvent the jurisdiction of the Rent Controller. The litigation was mala fide. The effort of the plaintiffs was to evict the appellants by bypassing the provisions of the Rent Act. Assuming that Naresh Kumar and Amra Wati had been allowed to maintain the property, the same had been rightly let out to the appellants. The application filed by the appellants under Order 41 Rule 27 of the Code of Civil Procedure had been dismissed without giving any reason. It was established on record that the appellants were in possession of the suit property. In support of his arguments, learned senior counsel has placed reliance on the decision of the Apex Court in Yadarao Dajiba Shrawane Vs. Nanilal Harakchand Shah (dead) and others (2002)6 Supreme Court Cases 404, wherein, it has been held as under: " 31. From the discussions in the judgment, it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final court of fact is based on misinterpretation of documentary evidence or on consideration of R.S.A.No. 336 of 1996(O&M) 9 inadmissible evidence or ignoring material evidence the High Court in second appeal is entitled to interfere wit the judgment. The position is also well settled that admission of parties or their witesses are relevant pieces of evidence and should be given due weightage by courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades, the records are voluminous. The High Court as it appears from the judgment, has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance." Learned senior counsel for the appellants has also placed reliance on the decision of the Apex Court in Ghanshyamdas Badrilal Vs. State of M.P. & another AIR 1969 Madhya Pradesh 186, wherein, it was held as under: "9. In regard to the contention that the Market Committee is under an obligation to carry out only those directions of the State Government which deal with the matter of providing reasonable facilities in the market yard and consequently the Government could not issue an order to the R.S.A.No. 336 of 1996(O&M) 10 Committee saying that transactions in sale and purchase of cotton shall be effected only in the Laxmibai Nagar principal market yard, it is no doubt true that sub-section(2) of Section 15 lays down that the Committee shall carry out any directions of the Government for providing reasonable facilities in the market area and restricting of trading in a particular commodity at a particular market area is not making a provision for reasonable facilities in the market area. But the sub-section (1) of Section 15 of the Market Committee is enjoined to enforce the provisions of the Act and the Rules and bye-laws made thereunder in the market area. Now,Rule 54 gives to the Market Committee absolute control over the market yard or yards. But this control of the Committee over the market yard or yards has been made subject to the Rules and to the general or special orders of the State Government. With these limitations a Market Committee is required to manage the market yard in the best interests of the trade having regard to the convenience of the trade in the notified agricultural produce and the purposes for which the control is vested in the Market Committee. R.S.A.No. 336 of 1996(O&M) 11 In the management of the market yard, the Market Committee has to carry out the general or special orders of the State Government, for it is one of the duties of the Market Committee to enforce the provisions of the Rules. Now, management of the market yard does not mean merely the administrative management or superintendence of the market yard. It includes directing and controlling in a particular manner the use of the market yard. It has been stated in Browne's Judicial Interpretation of Common Words and Phrases that "management means administration, control etc., and one of the synonyms of 'management is' government', which means control so that under a power to provide for the management of slaughter-houses a city has power to prohibit the operation of slaughter-houses within the city." If then the Market Committee has the power of controlling and managing a market yard and this power of management is subject to any general or special orders of the State Government, then it is clear that where there is one principal market yard and several sub-market yards in a market area, the Market Committee has the power to prohibit trading R.S.A.No. 336 of 1996(O&M) 12 operations in a notified agricultural produce at the sub-market yards and to restrict them at the principal market yard. Likewise, the Government has overriding power of asking the Market Committee to impose such a restriction. That the power of management includes the power to impose such restriction is clear also from the fact that under Rule 54 the Market Committee is required to manage the market yard in the best interests of the trade, having regard always to the convenience of the trade in a notified agricultural produce. The power of management of the Market Committee is, therefore, not confined merely to administrative matters but extends to the regulation of trade in a notified agricultural produce keeping in mind the best interests of the trade and the convenience of the trade in the produce. The State Government, therefore, acted within its rights in issuing the order to the Market Committee directing that transaction in the sale and purchase." Learned counsel for the respondents, on the other hand, has submitted that the suit filed by the plaintiffs had been rightly decreed by the trial Court. Rajinder Kumar had become owner of the suit land on the basis of Will dated 29.3.1971 executed by Faqir R.S.A.No. 336 of 1996(O&M) 13 Chand in his favour. The said Will had not been challenged by the sisters and mother of Rajinder Kumar. The Will had been duly acted upon. The suit filed by Amra Wati was got dismissed as withdrawn on her coming to know about the execution of the Will. The sale deed executed by Rajinder Kumar had been witnessed by Amra Wati. The property in dispute had been given to Amra Wati for her use. Amra Wati or her sons could not let out the property in dispute to any person. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Faqir Chand was owner of the property in dispute. He died on 22.7.1978. He was survived by his wife Saraswati, son Rajinder Kumar and daughters Amra Wati and Kanta. Initially the suit was filed by Rajinder kumar and later on Devinder Kumar and Savitri Rani were substituted as plaintiffs being purchasers from Rajinder Kumar. The case of Rajinder Kumar was that he was owner of the property in dispute on the basis of registered Will executed in his favour by his father Faqir Chand on 29.3.1971. The Will in question was never challenged by the other legal heirs of Faqir Chand. The Will in question was proved by leading secondary evidence. Kashmiri Lal and Harnam Singh, attesting witnesses of the Will, were examined by the plaintiffs to prove the due execution of the Will. Thus, in the facts and circumstances of the present case, the Courts below rightly held that Rajinder Kumar had become owner R.S.A.No. 336 of 1996(O&M) 14 of the property in dispute on the basis of the Will executed by Faqir Chand as the Will in question was a registered Will and the same had not been challenged by the other legal heirs of Faqir Chand and its execution was proved by examining the attesting witnesses . The suit property was purchased by Devinder Kumar and Savitri Rani from Rajinder Kumar vide sale deed dated 20.3.1990 through his attorney Pawan Kumar. A perusal of the sale deed Ex.PW-1/1-B shows that Amra Wati was one of the attesting witness of the sale deed. Hence, this also shows that Amra Wati had no objection to the Will executed by Faqir Chand in favour of her brother Rajinder Kumar. The sale deed was duly proved by examining the attesting witness Sudarshan Pal and Mukand Lal by the plaintiffs. The argument raised by learned counsel for the appellants that Pawan Kumar had no authority to file the suit is also without any basis. The power of attorney had been executed by Rajinder Kumar in favour of Pawan Kumar to maintain the suit property and to rent out the same to secure eviction or secure possession from tress passers and from forcible occupants Naresh Kumar and Harbans Lal . The said power of attorneys are Ex.PW4/1 and PW4/3. Thus, Rajinder Kumar had authorised Pawan Kumar to evict persons who were in an unauthorised possession of the property in dispute. In these circumstances, it cannot be said that Pawan Kumar was not authorised to file the suit in question as Pawan Kumar being special power of attorney holder of Rajinder R.S.A.No. 336 of 1996(O&M) 15 Kumar could do all the acts necessary for securing possession for trespassers and forcible occupants. Amra Wati had filed a suit for permanent injunction against Harbans Lal and others claiming herself to be co-owner of the property in dispute. It was averred by the learned counsel for the appellants that in case the Will dated 29.3.1971 had been a genuine Will, then Amra Wati would not have filed the suit. However, a perusal of the statement made by counsel for Amra Wati in the suit filed by her Ex.PX-2 reveals that the said suit was got dismissed as withdrawn as applicant Amra Wati, after filing of the suit, had come to know that Faqir Chand had executed a Will in favour of Rajinder Kumar on 29.3.1971. Plaintiff Amra Wati did not want to challenge the Will and did not want to claim any interest in the property. At the time of filing of the suit she was not aware of the existence of the Will. In these circumstances, it cannot be said that Amra Wati was co-owner of the property in dispute as Amra Wati herself had admitted the due execution of the Will by Faqir Chand in favour of her brother. Amra Wati had been allowed to use the shop in dispute. However, Naresh Kumar, son of Amra Wati, rented out the property in dispute to the appellants. Naresh Kumar had no authority to rent out the property in dispute to the appellants as he was not owner of the property in dispute nor had been authorised by the owner to rent out the same to the appellants. So long as the property was being R.S.A.No. 336 of 1996(O&M) 16 managed by Naresh Kumar on behalf of his mother, apparently Rajinder Kumar had no grievance but on coming to know the fact that Naresh Kumar had rented out the premises in dispute to the appellants, he filed the present suit through his attorney. Learned senior counsel for the appellants has failed to point out any material on record that Rajinder Kumar had created the tenancy in favour of the appellants. Before Amra Wati, Ditt Ram, her husband was in possession of the property and after his death, Amra Wati came in possession of the suit property. Learned senior counsel for the appellants has also failed to point out any material on record that Amra Wati or her son Naresh Kumar had any authority to create tenancy. There is also no force in the submission made by learned senior counsel for the appellants that since the appellants were in possession of the suit property since long, their possession was liable to be protected. Since the possession of the plaintiffs was not legal, the same could not be protected. The receipts placed on record to substantiate the plea by the appellants that they were in possession of the suit property on the basis of tenancy and had been paying rent @ Rs.500/- per month fail to advance the case of the appellants. Since the appellants had been put in possession by the persons, who were not authorised to do so, the receipts regarding payment of rent also fail to advance the case of the appellants. Moreover, from the receipts, it cannot be said that the rent had been received by Rajinder Kumar. As per the R.S.A.No. 336 of 1996(O&M) 17 receipts, the rent had been paid to Naresh Kumar, who had no authority to rent out the premises in dispute. In these circumstances, the learned District Judge had rightly dismissed the application for additional evidence. Thus, the Courts below had rightly decreed the suit of the plaintiffs for possession. The property in dispute had merely been given to Ditt Ram and then Amrawati/Naresh Kumar for their personal use and not for letting out the same to anybody else. The judgments relied upon by the learned senior counsel for the appellants fail to advance the case of the appellants as these are on different facts. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 23, 2009 anita