Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 58 of 2003 Ummed Singh Gusain @ Ummed Giri Son of Shri Tara Giri Resident of Tara Yatri Niwas, Barkot, District Uttarkashi. ...…………. Plaintiff / Appellant Versus 1. Registrar Cooperative Societies, Uttaranchal, Dehradun. 2. Uttarkashi District Cooperative Bank Uttarkashi through its Secretary 3. Uttarkashi District Cooperative Bank Branch Barkot through its Manager 4. Shri Inder Singh (since deceased) Son of Shri Devi Sahai Resident of Main Market, Tehri District Tehri Garhwal. 4A. Smt. Devki Rani W/o late Inder Singh 4B. Manjeet Arora S/o late Inder Singh 4C. Harish Arora S/o late Inder Singh 4D. Kewal Kishore S/o late Inder Singh 4E. Pradeep Arora S/o late Inder Singh 4F. Vinod Arora S/o late Inder Singh 4G. Smt. Mala Sandhu D/o late Inder Singh W/o Shri A.J. Sandhu 4H. Smt. Anita D/o late Inder Singh W/o Shri Ravi Malhotra. 4I. Smt. Mamta Arora D/o late Inder Singh W/o Shri Ravindra Arora 4J. Smt. Babita Rajpal D/o late Inder Singh W/o Shri Anil Rajpal, 2 Nos. 4 to 4J are residents of 98, Railway Road, Rishikesh, District Dehradun. ...…………. Defendants / O.Ps. Mr. Rajendra Dobhal, Advocate for the plaintiff / appellant. Mr. Ramji Srivastava, Advocate for defendant / respondent No. 4C. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 96 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 21.10.2003, passed by learned District Judge, Uttarkashi, in Suit No. 33 of 1998, whereby said court has dismissed the suit for recovery of Rs. 6,376.45 and for the possession of the property in suit. 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts giving rise to this appeal are that one Ram Chandra Ramola was owner of land, measuring 6 Nali 5 Mutthi, bearing Khasra Nos. 3843, 3844, 3858, 3859, 3860, 3861 and 3862, situated in Barkot (Uttarkashi). Vide registered sale deed dated 24.02.1971, Ram Chandra Ramola transferred the land along with buildings standing thereon to defendant No. 4 Inder Singh (since deceased). Defendants No. 4A to 4J are the legal representatives of the deceased defendant No. 4. Defendant No. 4 Inder Singh had a dispute with Ram Chandra Ramola over the property in 3 suit, on which Suit No. 40 of 1970 was instituted, and the parties to said suit (i.e. Ram Chandra Ramola and Inder Singh) entered into compromise on 17.09.1977, and defendant No. 4 got full possession of the aforesaid property transferred to him in Execution Case No. 14 of 1978. Thereafter, Inder Singh (defendant No. 4), during his lifetime executed a registered sale deed in favour of plaintiff Ummed Singh Gosain @ Ummed Giri on 07.12.1988. Where after on 09.12.1988, possession of the property in suit was delivered to the plaintiff. In the two rooms situated in the buildings, District Cooperative Bank, Branch Barkot was tenant on rent at the rate of Rs. 165/- per month from the period of original owner Ram Chandra Ramola. After the property was transferred to Inder Singh, the Branch started making payment of rent to the defendant No. 4. The plaintiff’s case is that after defendant No. 4 transferred the property to the plaintiff, the Branch did not pay rent to the transferee (plaintiff). On this, the plaintiff instituted Small Cause Suit No. 01 of 1995 against the defendants No. 2 and 3 (i.e. the District Cooperative Bank and its Barkot Branch) for recovery of arrears of rent and eviction. However, a title dispute was raised in said suit, and plaintiff was compelled to file the present suit before the District Judge, Uttarkashi. 4) The suit was contested by defendant No. 2, defendant No. 3 and defendant No. 4. In their written 4 statements defendant No. 2 and defendant no. 3 stated that they are making payment of rent to defendant No. 4 and the plaintiff is not entitled to the rent claimed by him. In his separate written statement filed by defendant No. 4 it is stated that only land was sold by him to the plaintiff not the building standing thereon, as such, the answering defendant No. 4 continued as a landlord of the premises and the plaintiff is not entitled to the relief claimed. 5) On the basis of the pleadings of the parties, the trial court framed following issue: 1. Whether, the plaintiff is owner of the property in suit? 2. whether, the property in suit is situated in Khasra No. 3858 of Village Barkot, Tehsil Barkot, District Uttarkashi, as alleged in para 7 of the plaint? 3. Whether, the defendant No. 4 has transferred only one building out of the two buildings situated on the land in suit? 4. Whether, the suit is barred for mis- joinder of parties? 5. Whether, the notice dated 23.03.1998, is illegal? 6. Whether, the rent from 07.12.1988 to 06.03.1995 has become time barred, as alleged in para 15 of the plaint? 5 7. To what relief, if any, the plaintiff is entitled? 6) The trial court after recording the evidence and hearing the parties, gave the finding that while defendant No. 4 sold the land in suit to the plaintiff, he did not transfer the building standing thereon on which the District Cooperative Bank is the tenant. On its basis the suit filed by the plaintiff is dismissed by the trial court. Hence, this appeal. 7) Admittedly, land measuring 6 Nali 5 Mutthi of Khasra (plot) Nos. 3843, 3844, 3858, 3859, 3860, 3861 and 3862 situated in Barkot was owned by Ram Chandra Ramola. It is also not disputed between the parties that Ram Chandra Ramola transferred the aforesaid land vide registered sale deed dated 24.02.1971 to defendant No. 4 Inder Singh. It is also not disputed between the parties that the defendant No. 4 (Inder Singh) executed registered sale deed dated 07.12.1988 in respect of aforesaid land. The only dispute is whether, the building situated over the land stood purchased by the plaintiff, or not? The trial court accepted the plea of the defendant No. 4 that the sale deed by which the plaintiff purchased the land from the defendant contains Schedule I showing the properties transferred by the defendant No. 4 and in said Schedule there is no mention of the building in which tenant District Cooperative Bank is in occupation, as such, it 6 cannot be said that the defendant No. 4 transferred the building standing on the land purchased by the plaintiff. 8) Learned counsel for the plaintiff / appellant argued that total area of the land of the aforesaid plots is 6 Nali 5 Mutthi which was purchased by defendant No. 4 from Ram Chandra Ramola in 1971, and the same area i.e. 6 Nali 5 Mutthi was sold by the defendant No. 4 to the plaintiff. In this connection, it is contended that the District Cooperative Bank, a tenant, was not inducted by defendant No. 4 in the house, but the bank was housed there from the period of Ram Chandra Ramola. It is further submitted that it was not necessary for the parties to specifically mention the building in the Schedule. 9) I have gone through the entire oral and documentary evidence on record, and from the sale deed executed by defendant No. 4 in favour of the plaintiff it is clear that entire land purchased by the defendant No. 4 from Ram Chandra Ramola is transferred by him to plaintiff through the registered sale deed dated 07.12.1988. Had there been intention on the part of the defendant No. 4 to retain the building and only to transfer the land beneath it, there would have been a specific mention of this fact in the sale deed. Merely for the reason that only the plot (Khasra) numbers and area is mentioned in the Schedule, does not mean that the defendant No. 4 intended not to 7 transfer the building standing thereon, particularly, in view of the fact that in page 4 of the certified copy of the sale deed it is specifically mentioned that two rooms and a veranda over an area of 12 X 8 meters in plot No. 3844 are in the tenancy of the District Cooperative Bank, Barkot. Had there been no intention to transfer the accommodation it would have been clearly mentioned in said para that the transferee would continue to own the building. From the record it appears that defendant No. 4 Inder Singh, after the bank, on demand of rent by the plaintiff, asked him (plaintiff) to get written authority from Inder Singh to pay rent to him (plaintiff), took an undue advantage and started taking the plea that he had not transferred the tenanted portion of the property. 10) Having heard learned counsel for the parties and after going through the evidence on record, for the reasons as discussed above, I find that the trial court has not correctly appreciated the evidence on record, and the finding that the two rooms and a veranda in occupation of the tenant (District Cooperative Bank, Barkot) were not transferred by defendant No. 4 to the plaintiff (while he had transferred all other property including the land beneath the disputed accommodation to him), is erroneous. The facts and circumstances and the evidence discussed above clearly proves that the defendant No. 4 had transferred entire property in suit to the plaintiff, including the accommodation in 8 occupation of the tenant. Therefore, the finding recorded by the trial court is set aside and all the issues framed by the trial court are decided in favour of the plaintiff. 11) Accordingly, the appeal deserves to the allowed. The same is allowed. The impugned judgment and decree dated 21.10.2003, passed by the District Judge, Uttarkashi, in Suit No. 33 of 1998, is set aside. The suit is decreed as prayed by the plaintiff. But it is clarified that the tenancy of District Cooperative Bank (defendant No. 3) would continue until termination by the plaintiff, in accordance with law. However, no order as to costs. (Prafulla C. Pant, J.) [ Dt.: April 23, 2009 H.Negi