IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3031 of 2009 Date of Decision : August 25, 2009 Ram Nath Khurana .....Appellant Versus Baby Malika Manchanda and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. Hari Om Sharma, Advocate T.P.S. MANN, J. Suit filed by the plaintiffs-respondents No.1 to 3, seeking eviction of the defendant-appellant from the suit property, was decreed with costs by learned Additional Civil Judge (Senior Division), Panchkula on 12.11.2007. The defendant-appellant was directed to vacate the premises in question within one month from the date of the decree. He was also directed to pay rent to the plaintiffs-respondents w.e.f. November 2000 till July 2002 at the rate of Rs.2000/- per month and mesne profits from September 2002 till the time the possession of the premises in question was actually handed over to the plaintiffs at the rate of Rs.4,000/- per month. The entire outstanding amount was to attract interest at the rate of 6% per annum from the date of accrual. The judgment and decree passed by the learned trial Court R.S.A. No. 3031 of 2009 -2- was challenged by the defendant-appellant by filing the first appeal under Section 96 of the Code of Civil Procedure but the same was dismissed by learned Additional District Judge (Ad hoc)/Fast Track Court, Panchkula on 4.9.2008. He is now before this Court in the second appeal filed under Section 100 of the Code of Civil Procedure. According to the plaintiffs, Sanjay Manchanda, father of plaintiffs No.1 and 2 and husband of plaintiff No.3, had inducted Ram Nath Khurana-defendant No.1 as a tenant on the entire ground floor of House No.613-P, Sector-9, Panchkula at monthly rent of Rs.4,000/- in the year 1996. Sanjay Manchanda died on 24.10.2000 and the plaintiffs and proforma defendant No.2, who was mother of late Sanjay Manchanda, became the owner of the suit property in equal shares. Defendant No.1 was duly informed about the death of Sanjay Manchanda. However, since the death of Sanjay Manchanda, said defendant did not pay any rent to the plaintiffs and was in arrears since November 2000. The tenancy of defendant No.1 was on monthly basis, starting from first day of the calendar month and ending with the last day of the same. On failure of defendant No.1 to pay the rent, a legal notice under Section 106 of the Transfer of Property Act was issued by the plaintiffs through their counsel under registered cover as well as postal certificate, which was received by defendant No.1 on 19.6.2002. Vide aforementioned notice, the tenancy of defendant No.1 was terminated w.e.f. 31.7.2002. It was also asserted that the premises in question was constructed in the year 1995 and, therefore, the building was exempted from the provisions of the Haryana Urban (Control of Rent and Eviction) R.S.A. No. 3031 of 2009 -3- Act, 1973. When defendant No.1 did not vacate the premises in question, the plaintiffs filed the suit. While opposing the suit, defendant No.1 claimed that he had taken the premises on rent from defendant No.2 at a monthly rent of Rs.2,000/-. Defendant No.2 was the absolute owner of the house in question. The share of the plaintiffs in the suit property was denied. He also claimed to have been paying the rent regularly to defendant No.2. He admitted the tenancy on monthly basis. He denied the receipt of any legal notice. According to him, the plaintiffs had no right to file the suit for ejectment and recovery against him as litigation qua the ownership of the house was going on between the plaintiffs and defendant No.2. Accordingly, he prayed for dismissal of the suit. The mother of Sanjay Manchanda, who had been impleaded as defendant No.2 in the suit, appeared at the initial stage but subsequently did not put in appearance. Accordingly, she was proceeded against ex parte on 19.12.2002. After hearing learned counsel for the parties and going through the case file, learned trial Court held that the plaintiffs, being co- owners of the suit property had a right to file the suit without joining defendant No.2 as a plaintiff. The defendant-appellant failed to prove that he had taken the suit property on rent from defendant No.2 and there was also nothing on record to show that the rent was being shared R.S.A. No. 3031 of 2009 -4- by the plaintiffs alongwith defendant No.2. Defendant No.1 was found to be in arrears of rent from November 2000 till July 2002. Though the plaintiffs claimed the rent of the premises in question to be Rs.4,000/- per month yet defendant No.1 admitted that the same was Rs.2000/- per month and on account of the plaintiffs not producing any cogent evidence to establish the rate of rent of the premises in question, the admitted rate of rent was taken as the rent of the premises in question. The tenancy of defendant No.1 was found to have been terminated by a valid legal notice issued under Section 106 of the Transfer of Property Act and after the said termination of the tenancy, the status of defendant No.1 was that of a trespasser and not that of a tenant. Accordingly, the plaintiffs were held entitled to recover mesne profits also at the rate of Rs.4,000/- per month from September 2002 till the actual handing over of the possession by defendant No.1 to the landlord. Accordingly, the suit was decreed as mentioned above. The findings arrived at by the learned trial Court were upheld in the first appeal filed by the defendant- appellant. Learned counsel for the defendant-appellant has submitted that the impugned judgments and decrees have been passed upon misreading of evidence and are based upon conjectures and surmises only. Even the plaintiffs-respondents have not been able to establish their title to the suit property and, therefore, they could not seek ejectment of the defendant-appellant therefrom. R.S.A. No. 3031 of 2009 -5- The suit property was re-allotted in favour of Sanjay Manchanda on 27.9.1993 and, accordingly, he was recorded as owner of the same. As per official record, Sanjay Manchanda had raised construction over the plot in the year 1996. Till his death, which occurred on 24.10.2000, he continued to be the owner of the suit property. It may also be mentioned here that Smt. Santosh Manchanda-proforma defendant was owner of the suit property prior to its re-allotment in favour of Sanjay Manchanda. The plaintiffs unequivocally stated in their plaint that after the death of Sanjay Manchanda, they alongwith proforma defendant, who was mother of Sanjay Manchanda, became the owner of the suit property in equal shares. This was stated despite the fact that the plaintiffs and defendant 2 were not on good terms. However, the defendant-appellant apparently misused the factum of strained relations between plaintiffs and defendant No.2 by pleading that he was inducted as a tenant on the premises in question on 1.4.2002 by defendant No.2 and a lease of agreement Ex.D1 duly executed in that regard. For sufficient reasons, learned Courts below declined to place any reliance on lease agreement Ex.D1. While appearing as PW1, Smt. Payal Chaudhary, plaintiff-respondent denied the signatures of her mother-in- law on the lease agreement. Instead of either summoning and examining defendant No.2 as a witness or getting the signatures on the so called lease deed compared, the defendant-appellant left the matter there. Defendant No.2 had put in her appearance in the suit but she did not file any written statement so as to deny the contents of the plaint. She was, accordingly, proceeded against ex parte before the learned trial Court. R.S.A. No. 3031 of 2009 -6- From the above, it stands established that the property in question was rented out by Sanjay Manchanda to the defendant- appellant and after his death, his two daughters and the widow stepped into his shoes to become the landladies of the property in question. Even otherwise, non-joining of the mother of Sanjay Manchanda by the plaintiffs as a co-plaintiff was not sufficient to hold that they could not seek ejectment of the defendant-appellant from the suit property. The defendant-appellant failed to establish that he had paid any rent to the plaintiffs from November 2000. As the tenancy was on monthly basis, commencing from the first day of the English calendar month, the plaintiffs served valid legal notice dated 17.6.2002 upon the defendant-appellant while terminating the tenancy w.e.f. 31.7.2002. In the absence of the plaintiffs failing to produce any evidence to establish the settled rate of rent, the stand of the defendant- appellant while admitting the rate of rent to be Rs.2,000/- per month was accepted. Consequently, the plaintiffs were held entitled to receive the rent at the rate of Rs.2,000/- per month from November 2000 till July 2002 when the tenancy was terminated. From September 2002, the status of the defendant-appellant became that of a trespasser. He did not remain a tenant any more. Though the plaintiffs did not produce any evidence to establish the market value of the property in question yet the learned Courts below were justified in presuming the rent of similar properties doubling in about six years time and, accordingly, the plaintiffs R.S.A. No. 3031 of 2009 -7- were held entitled to recover mesne profits at the rate of Rs.4,000/- per month from September 2002 till the actual handing over of the possession by the defendant-appellant. The concurrent findings of facts arrived at by the learned Courts below are neither perverse nor they suffer from any illegality or infirmity. These findings were recorded on the basis of the evidence led by the parties, which was properly appreciated by the learned Courts below. These findings are not liable to be upset in a second appeal, which is maintainable only on some substantial question of law and not otherwise. No question of law, much less any substantial question of law, as formulated by the appellant, arises for determination. Consequentially, the appeal is dismissed in limine. ( T.P.S. MANN ) August 25, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO