R.S.A. No. 1779 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1779 of 2009 (O&M) Date of decision: 28.04.2009 Ramesh Kumar and another ....appellants versus Brij Bhushan Dhall ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Chetan Mittal, Sr. Advocate, with Mr. Vishal Garg, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) This order shall dispose of R.S.A. No. 1779 of 2009 titled Ramesh Kumar and another Vs. Brij Bhushan Dhall and R.S.A. No. 1780 of 2009 titled Parvesh Kumar and another Vs. Om Parkash Dhall, as common questions of law and fact are involved. For brevity sake, facts are being taken from R.S.A. No. 1779 of 2009. The plaintiff/respondent brought a suit for possession of shop being owner and landlord, on the ground that the shop was rented out to the appellant/defendants for a period of 11 months, and on expiry R.S.A. No. 1779 of 2009 (O&M) -2- thereof, they have failed to vacate the same and hand over the vacant possession. The tenancy was terminated by issuing notice under Section 106 of the Transfer of Property Act, by claiming that the shop was constructed in the year 1988, and being a new construction, provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 were not applicable to the premises in dispute. The suit was contested, wherein the jurisdiction of the civil Court to entertain and try the suit was challenged. It was claimed that the defendant/appellants continue to be tenants over the property and not trespassers, as claimed. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - "1. Whether the plaintiff is owner in possession of the shop in question? OPP 2. Whether the defendant No. 1 is a tenant under the plaintiff? OPP 3. Whether the plaintiff is entitled for possession of the shop in dispute on the grounds mentioned in the plaint? OPP 4. Whether this court has got no jurisdiction to entertain and try the present suit? OPD 5. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD 6. Whether the defendants are entitled to special costs? OPD 7. Relief." The learned Courts below, on apprection of evidence, have recorded a concurrent finding of fact that the plaintiff/respondent was owner of the shop in question, and that the defendants were inducted as R.S.A. No. 1779 of 2009 (O&M) -3- tenants for a period of 11 months, and their tenancy stood terminated by way of valid notice. The learned Courts below also held that in view of the building being newly constructed, the civil Court had the jurisdiction to entertain and try the suit. Other issues, onus to proof of which was on the appellant/defendants, were decided against the appellants. Mr. Chetan Mittal, learned senior counsel, appearing on behalf of the appellants contends that the appeal raises the following substantial questions of law: - "1. Whether the judgment and decree passed by the learned Courts below is perverse, having been based on inadmissible evidence?" 2. Whether by renovation, the old building could be treated to be a new one, to grant/claim benefit of exemption under the Rent Act for a period of 10 years? 3. Whether the plaintiff could file two suits, though it was a case of single tenancy?" In support of the substantial questions of law, the learned senior counsel for the appellants contends that the learned Courts below have taken into consideration the rent note, to draw inference against the defendant/appellants, to hold that the building was new wherein the defendant/appellants had admitted the building to be newly constructed. The contention of the learned senior counsel was that in order to prove the construction to be new, the only evidence, admissible, is the record of the municipal committee, and not the evidence relied upon by the learned Courts below. The judgment and decree is based, thus, on inadmissble evidence, therefore, perverse. In support of the contention, R.S.A. No. 1779 of 2009 (O&M) -4- the learned senior counsel has placed reliance on the judgment of the Hon'ble Supreme Court in Ram Saroop Rai Vs. Smt. Lilavati, AIR 1982 Supreme Court 945, wherein the Hon'ble Supreme Court has been pleased to observe as under: - "8. Unfortunately, it is not possible for the purchaser-respondent or the tenant-appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and if so, when exactly the completion took effect. The municipal assessment record produced in the court merely states "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment , therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being secondhand testimony. Even the recital in the rent deed that there was a new construction in 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute." On consideration, I find no force in the contentions raised by R.S.A. No. 1779 of 2009 (O&M) -5- the learned senior counsel. The reliance on the judgment of the Hon'ble Supreme Court is mis-conceived. It was on the facts and circumstances of the said case, that the Hon'ble Supreme Court was pleased to hold that where the parties did not have original knowledge, then municipal record was the best evidence to know about the date of construction of the building. In the present case, the plaintiff/respondent was owner and landlord of the premises, who had got the building constructed himself. Besides admission by the defendant/appellants in the rent note, admitting the building to be new, the plaintiff also produced Mohammed Irfan, mason, who had plastered and laid down floor as well as shutter to complete the building in the year 1988. Thus, direct evidence produced to show the construction could not be rejected for want of municipal record, when no such record is maintained. The learned senior counsel contends that the evidence of Mohammed Irfan has been mis-read by the learned Courts below, as it showed that some repairs were carried out, and no new building was constructed, as held by the learned Courts below. This contention of the learned senior counsel again is mis- conceived. There is categorical statement of the mason that he has plastered the walls, laid floor and also put shutter on the shop to complete the building. Thus, the contention of the learned senior counsel for the appellants, that inadmissble evidence has been taken into consideration or that evidence has been mis-read in order to record the finding, deserves to be rejected. The learned senior counsel, therefore, by placing reliance on R.S.A. No. 1779 of 2009 (O&M) -6- Ex. D-1 and D-2 contends that the reading of these documents would show that it was an old building, which was renovated and was not new building. In Ex. D-1, the property was shown to be 255 A/5+H+H i.e. five shops and two halls, in which the defendant/appellants were not the tenants. This assessment is for the year 1984-85. Whereas assessment for the year 1989-90 shows two shops and a hall, in which the appellants are shown to be tenants of the premises. It may be mentioned here that the inference drawn by the appellants that the building was old, cannot be accepted, for the reason that in the second assessment, the number of the building has not been given, nor there is any evidence led to connect Ex. D-1 with Ex. D-2. The findings recorded, on admission of the appellant/defendants and also the evidence of the landlord as well as the mason, no error can be found with the judgment and decree. It is not open for this Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure to re-appraise the evidence to form a different opinion from the one that is formed by the learned Courts below. Finally, it is contended by the learned senior counsel for the appellants that the suit was not competent, as there was single tenancy between the father and the son and, therefore, two suits were not competent, the judgment and decree passed, therefore, suffers from error apparent This plea also deserves to be rejected. Admittedly, both tenants had executed separate rent deeds with the plaintiff/respondent. In view of the fact that separate rent deeds, showing independent tenancy were executed, no fault can be found with the filing of two suits. R.S.A. No. 1779 of 2009 (O&M) -7- The substantial questions of law raised are answered against the appellants. Thus, no ground for interference is made out. Dismissed. Keeping in view, that the appellants are running commercial business in the property in dispute, they are granted two months' time from today to vacate the shop, as prayed. (Vinod K. Sharma) Judge April 28, 2009 R.S.