R.S.A. No. 1269 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1269 of 2010 (O&M) Date of decision: 26.03.2010 Jaspal Singh Walia and another ....Appellants versus Nirmala Rani and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Vikas Bali, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) CM No. 3814-C of 2010 For the reasons stated in the application, CM is allowed and the delay of 31 days in filing the appeal is condoned. RSA No. 1269 of 2010 This regular second appeal is directed against the judgment and decree dated 31.10.2009, passed by the learned Courts below, vide which the suit for permanent injunction, filed by the plaintiff/appellants, was ordered to be dismissed. The plaintiff/appellants filed a suit for permanent injunction, on the pleadings that they were in peaceful possession of B.T. Model High School, which was being run by them. Defendants No.1 and 2 were said to be the owners of the property, which was let out, through defendants No.3 and 4 on monthly rent of Rs.500/- (Rupees five hundred only) per month. Tenancy was claimed to be oral followed by delivery of possession. The case set up by the plaintiffs was, that the plaintiffs in R.S.A. No. 1269 of 2010 (O&M) -2- addition to Rs.500/- (Rupees five hundred only) per month as rent, were also to pay electricity charges. The case further set up was, that they had renovated the property and had started a school on 1.4.1995, where three teachers were employed, along with one maid servant, one gardener and one rickshaw puller. 60/65 students were studying in the school. According to the plaintiffs, the dispute arose when the rent was demanded at the rate of Rs.1,500/- (Rupees one thousand and five hundred only) per month, instead of Rs.500/- (Rupees five hundred only). The plaintiff/appellants claimed that they could be evicted under the provisions of the East Punjab Urban Rent Restriction Act and not otherwise. The suit was contested, wherein the tenancy in favour of the plaintiffs was denied. Defendants took up a stand that B.T. School was being run by defendants in partnership with the father and mother of the plaintiffs. It was further stand of the defendant/respondents, that as the school was running into heavy losses and was not giving profit, they had decided to close the school, which prompted the father and mother of the plaintiff/appellants get this suit, filed through plaintiffs. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact, that no tenancy was created in favour of the plaintiff/appellants, nor they were running the school. The finding recorded by the learned lower appellate Court reads as under: - “The appellants/plaintiffs have tried to put up a case that respondents no.1 and 2 rented out the school property to them through respondents no.3 and 4 w.e.f. 1.2.1995 on a monthly rent of Rs.500/-. It has been pleaded that the R.S.A. No. 1269 of 2010 (O&M) -3- appellants got the property renovated and started the school in the name and style of B.T. Model High School w.e.f. 1.4.1995, Ld. counsel for the appellants argued that the plaintiffs/appellants employed teacher, made servant and Gardner and a Rickshaw puller and about 60/70 students were enrolled in the school. However on perusal of the documents exhibited and from the statement of appellant no.1 i.e. Jaspal Singh PW1, the case put up by the appellants has totally crumbled. Jaspal Singh who is the most material witness being the alleged prop. of the B.T. Model School has tendered into evidence his affidavit Ex.PW1/1 wherein he has stated that he was the prop. of the school and appellant no.2, his brother was the Manager of the school. He has deposed that he used to maintain the daily attendance register in the regular course since 1995, i.e. Ex.P6 to P44 and that he used to manage the school since 1995. However, in his cross-examination he has stated that his date of birth was 20.07.1976 and the birth date of appellant no.2 was 14.08.1977, which means that in 1995, appellant no.1 was just 18 years of age. PW1 has stated that he was a student in May, 1995, and he passed his 10+2 class in third division. He has stated that he could not complete B.A.III and remained a student upto 2000-2001. This clearly belies the stand taken by the appellants because a person who himself is a student cannot be accepted to run a school at the time when he has just passed his 10+2 class in third division. PW1 has further admitted in his cross-examination that electric connection was in the name of Sudesh Kumar, respondent no.3. He has specifically stated that his father never took charge of the stage of the school during functions which is a clear contradiction of the photograph Ex.D1 in which his father is shown to be R.S.A. No. 1269 of 2010 (O&M) -4- holding a microphone and managing the stage show of the school. PW1 has admitted that the person in the centre of the photograph Ex.D1 of the school, was his own father, PW1 is also admitted photograph Ex.D2 in which his father and mother alongwith other staff of the school were shown to be sitting on the chairs for the year 1992-93. Similar is his reply to the photograph Ex.D3, D4, D5, D6, D7 and D10. All these photographs shows that the parents of appellant no.1 were managing the affairs of the school and they are shown in the annual photographs of different classes i.e. class 9th in Ex.D2, Class 4th in Ex.D3, Class 2 in Ex.D4. PW1 has expressed his ignorance regarding the status of his mother in the school which clearly shows that he knew the truth but was purposely hiding the same. Further in his cross examination he has sated that he was not aware if any advertisement for hiring the teachers was given in the Daily Punjab Kesri. PW1 has admitted the photocopy of the cheque Ex.D9 which was issued by his father in favour of Sudesh Kumar on 7.4.1995. This clearly shows that the father of appellant no.1 was taking active participation in the management of the school and used to give money to the respondents as part of the profits in running the school. Mr. Vikas Bali, learned counsel, appearing on behalf of the appellants, contends that this appeal raises the following substantial questions of law: - “1. Whether the Courts can travel beyond the pleadings? 2. Whether the finding given by the learned Courts below on issue No.1 is not illegal as appellants have well established their possession over the property? R.S.A. No. 1269 of 2010 (O&M) -5- 3. Whether the admission of defendant/respondents is not binding upon them? 4. Whether the Court can decide the case on the basis of presumption beyond the law?” In support of the first substantial question of law, the learned counsel for the appellants merely contended, that the stand of the appellants was, that an oral tenancy was created and once it was proved that B.T. School was being run in the premises in dispute, as was also admitted by the defendant/respondents, the finding recorded holding the plaintiff/appellants not to be the tenant of property, would be beyond pleadings. This contention of the learned counsel for the appellants is totally mis-conceived. It was for the plaintiff/appellants to have proved the stand taken in the suit. Once, they have failed to prove the case set up, the learned Courts below were bound to record a finding against plaintiffs. The finding cannot even by imagination be said to be beyond pleadings, as contended. On the second substantial question of law, the learned counsel for the appellants contended, that finding on issue No.1 by the learned trial Court cannot be sustained, as the plaintiffs were able to prove their established possession over the suit property. In support of this contention, the learned counsel for the appellants placed reliance on Ex.D1, produced on record by the defendant/respondents and contended that the document Ex.D1 showed that the B.T. School was being run, which was proprietary concern of the plaintiffs. It proved the established possession of the plaintiff/appellants. R.S.A. No. 1269 of 2010 (O&M) -6- This contention again is totally mis-conceived, and deserves to be noticed to be rejected. Ex.D1 was merely a site plan, which was produced by the defendant/respondents to show that the school was being run by the defendants in association with the father and mother of the plaintiff/appellants. As the defendant/respondents had decided to close the school, the plaintiffs were put up by their parents to file the suit, though on the date of starting of school they were merely school going children. The established possession was also not proved. Similarly, on third substantial question of law, the learned counsel for the appellants contended, that there was admission by the defendants, that B.T. School was being run in the premises, which was good enough to hold that the case set up by the plaintiff/appellants stood proved and the decree passed by the learned Courts below, therefore, could not be sustained. This again is an imagination of the counsel for the appellants. The plea raised by the defendants was, that the school was being run by them in association with the father and mother of the plaintiff/appellants, this fact was duly proved when the appellants could not stand the test of cross-examination, to show that the school was being run by them. On the forth substantial question of law, the learned counsel for the appellants contended, that the suit could not be decided on the basis of presumption and against law. This substantial question of law again seems to be imagination of the learned counsel for the appellants, as nothing was shown as to how the judgment and decree passed by the learned Courts below is based on presumption or was contrary to law. R.S.A. No. 1269 of 2010 (O&M) -7- The substantial questions of law raised, therefore, are answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge March 26, 2010 R.S.