IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1802 of 2006 Date of decision: 7th July, 2011 Tej Parkash … Appellant Versus Raja Ram … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Jaivir Yadav, Advocate for the appellant. Mr. Sanjay Vashisht, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. Present regular second appeal has been instituted by plaintiff to the suit. The appellant-plaintiff is aggrieved against the judgment dated 18th November, 2005 rendered by the District Judge, Narnaul, who reversed the findings returned in favour of the appellant-plaintiff by the trial Court. Thus, the present appeal has been filed. The crucial question of fact which had arisen for consideration of the courts below, was as to on which date construction of the shop was completed. For evicting the tenant, provisions of Section 106 of the Transfer of Property Act, 1882 are to be invoked or the respondent-defendant-tenant is to be evicted under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 is dependent upon date of construction. In other words what is the date of construction of the shop is the core issue upon which the entire controversy revolves. Briefly stated, Tej Parkash appellant-plaintiff filed a suit for ejectment of the respondent-defendant-tenant from the shop which was Regular Second Appeal No.1802 of 2006 constructed by Daya Nand father of the appellant-plaintiff. Details and description of the shop have been given in the head-note and para No.1 of the plaint. It was stated in the suit that the respondent-defendant was inducted as a tenant on 1st March, 1994 at a rent of Rs.800/- per month. The house tax was to be paid by the tenant. It was further pleaded that after taking permission from the Municipal Council, Narnaul on 16th July, 1984, construction of the shop was completed in the month of October, 1984. The appellant-plaintiff became owner of the demised shop vide a Court decree dated 1st April, 1986. The tenancy was for a period of three months and since the respondent-defendant had overstayed in the demised premises his tenancy was terminated on 21st June, 1994 by issuing a notice under Section 106 of the Transfer of Property Act. The notice was duly received by the respondent-defendant-tenant on 23rd June, 1994. Since possession of the shop was not handed over, after expiry of the period of 15 days given in the notice, the suit was instituted. It was stated that since construction of the shop in dispute was completed in the month of October, 1984, at the time of filing of the suit provisions of Haryana Urban (Control of Rent and Eviction) Act were not applicable. Since the respondent-defendant was asked to hand over vacant possession of the shop in dispute, but on refusal to do the same the suit had been filed. Upon notice, respondent-defendant appeared and denied that he was inducted as a tenant on 1st March, 1994. He stated that the demised property was taken over by him as a tenant in the year 1980 at a monthly rent of Rs.150/- and he is in continuous/uninterrupted possession thereof since then. The respondent-defendant denied that on 2 Regular Second Appeal No.1802 of 2006 16th July, 1984 father of the appellant-plaintiff got the plan sanctioned and constructed the shop in the year 1984. He asserted that he was in possession of the demised property since 1980 as a tenant and he has been running a hotel there for selling ‘Dal Roti’. It was further stated that he has become a regular tenant since the year 1980 and therefore, Haryana Eviction of Rent Restriction Act is applicable. According to the respondent-defendant tenant, he could only be evicted by approaching the Rent Controller. Replication was filed. Contents of the written statement were controverted and that of the plaint were reiterated. After conclusion of the evidence, following issues were drawn by the trial Court: “1. Whether the tenancy of the defendant has validly been terminated? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to the relief of possession? OPP 3. Whether the Civil Court has no jurisdiction to entertain and try the present suit? OPD 4. Whether the plaintiff is estopped from filing this suit by his own act and conduct? OPD 5. Whether the defendant is entitled to special cost to the tune of Rs.5000/- as provided under Section 35 of CPC? OPD 6. Relief.” The appellant-plaintiff examined Singh Raj Yadav, Deed Writer as PW-1, who stated that the rent note dated 1st March, 1994 Ex.P1 was typed by him at the instructions of Raja Ram tenant and Tej Parkash landlord. He had read the same and the parties had understood its contents and thereafter, Raja Ram had signed it. The witnesses had also attested the same in his presence. It was stated that there is an 3 Regular Second Appeal No.1802 of 2006 entry at serial number 74 in the register of 1994. In cross-examination this witness stated that he had not brought the register and that he had no personal knowledge of the document and the witnesses. Pehlad Sharma Draftsman was examined as PW-2. Dev Karan PW-3 stated that the rent note was dictated in his presence. He had signed the same as an attesting witness. Before appending his signatures, the rent note was read over to Raja Ram and he had signed the same in its correctness. In cross-examination this witness stated that the property qua which the rent note was executed was seen by him and there is a hotel situated thereon. He further stated that earlier Raja Ram was not known to him but after the rent note was executed he has been taking tea at his shop. However, he stated that he was not aware as to whether Raja Ram was a tenant in the shop earlier thereto or not. Later- on he stated that Raja Ram was sitting in the shop after the rent note was executed. Mahadev Parshad, Building Clerk, Municipal Council, Narnaul appearing as PW-4 stated that from the record he had brought file No.12 dated 7th May, 1984. He stated that a site plan regarding the existing position was prepared on 16th March, 1984 by Pehlad Sharma PW-2. Pehlad Sharma who was earlier cited as PW-2 and whose examination in chief was conducted, again appeared as PW-5 and stated that he is a licenced Draftsman of Municipal Council, Narnaul. He had prepared the site plan Ex.PW4/A. Nand Lal appeared as PW-6. He is also an attesting witness to the rent note. Daya Nand, father of the appellant-plaintiff appeared as PW-7 and stated that after the site plan Ex.PW4/A was sanctioned on 4 Regular Second Appeal No.1802 of 2006 16th July, 1984 he had completed construction of the shop in October 1984 and in the family settlement the shop has been handed over to his son Tej Parkash. The appellant-plaintiff himself appeared as PW-8 and reiterated the contents of the plaint. In cross-examination, he stated that before 1st March, 1994 the demised premises was lying vacant. He tendered a copy of the judgment Ex.P2 whereby on the basis of a family settlement the appellant-plaintiff had become owner of the shop, along with the decree Ex.P3. Thereafter, defendant examined his witnesses. Murari Lal DW-1 stated that the parties to the litigation are known to him and he had seen the demised shop, which is being run by Raja Ram and his son. He further stated that they are in possession of the same for the last 25 years. In the shop a hotel for selling eatables is being run. Earlier this shop was in possession of Lal Chand alias Lala Saini who remained in its possession for about 7-8 years. He denied the suggestion that Raja Ram did not use to sit on this shop and that he was having a transport business. Babu Lal was examined as DW-2. He stated that he had made furniture of the shop and Raja Ram was in possession of the shop for the last 23-24 years. Earlier Lal Chand was running a tea shop in the premises. This witness stated that Raja Ram was his neighbour but he did not know how many brothers and sisters Raja Ram was having. He denied the suggestion that the shop was built in the year 1984 after taking permission from the Municipal Council, Narnaul. Ram Chander Record Keeper, Municipal Council, Narnaul appeared as DW-3 and stated that he had not brought the record as the 5 Regular Second Appeal No.1802 of 2006 record regarding licence was with Ram Avtar, official of the Council. He had given a note on the summons received from the Court regarding record with Ram Avtar, but the Executive Officer had marked the summons to him for appearance. Ramesh Gaur from the office of Public Health, Narnaul appeared as DW-4 and stated that Raja Ram had obtained water connection from the Municipal Council in the year 1993. He proved the receipts of payment of water charges as Ex.DW4/1 to DW4/8. He further stated that earlier thereto, the payment of bills of water supply was received by Municipal Council, Narnaul. Sushil Kumar, a Consumer Clerk from DHBVNL, City Narnaul appearing as DW-5 stated that he had brought the record. On 12th January, 1981 the electricity connection was issued on the name of Raja Ram son of Nehru Ram. It was a new connection. He proved the bills and receipts of payment of the electricity charges as Ex.DW5/1 to Ex.DW5/17. Singh Raj Deed Writer appeared as DW-6 and proved the rent note dated 27th September, 1990 which was entered into the register at serial number 449. He proved entry regarding the rent note as Ex.DW6/1. The entry has been signed in Hindi by Raja Ram and in English by Tej Parkash. This witness also proved another entry dated 8th December, 1994 regarding the rent note as Ex.DW6/2 and the rent note as Ex.DW6/3. This rent note was executed on 17th September, 1990. He also proved another rent note Ex.DW6/4. Raja Ram respondent-defendant-tenant himself appeared as DW-7. Tarlok Chand from the office of Deputy Commissioner was 6 Regular Second Appeal No.1802 of 2006 examined DW-8. He had not brought the record regarding the sale deed dated 6th December, 1977 bearing No.140. Ram Avtar, Licence Clerk from the office of Municipal Council, Narnaul appeared as DW-9 and stated that in the year 1980 vide serial number 750 Raja Ram was granted licence for running a hotel for sale of eatables. He had deposited the licence fee vide receipt No.G8 13/69 dated 25th August, 1980. The respondent-defendant-tenant had also tendered documents Ex.D1 to Ex.D14. The trial Court held that from the plaintiff’s evidence it is proved that the shop in dispute was constructed in the month of October, 1984. The Court relied upon the evidence of Pehlad Sharma, Draftsman PW-5 who had prepared the map of existing position of the land after visiting the spot and that of the proposed construction of shop. The Court further held that the defendant has miserably failed to prove that the shop was constructed prior to the year 1980. The trial Court further held that bills and the receipts of payment of the electricity and water charges produced by the defendant are not a valid proof and the defendant has failed to connect them with the shop in dispute. It further held that since the shop was newly constructed in the year 1984, Haryana Urban (Control of Rent and Eviction) Act is not applicable and the tenancy was validly terminated vide notice Ex.P1. Thus, issue No.1 was decided in favour of the plaintiff and against the defendant. Issue No.2 was also decided in favour of the plaintiff and he was held entitled to the relief of possession of the shop from the defendant. Qua issue No.3, the trial Court held that the Civil Court has a jurisdiction to try the case and therefore, the same was decided in favour 7 Regular Second Appeal No.1802 of 2006 of the plaintiff and against the defendant. Qua issues No.4 and 5, it was held that they were not pressed by the defendant and thus, they were also decided against him. The trial Court granted relief as prayed for by the plaintiff and directed the defendant to hand over possession of the shop in dispute. Aggrieved against the same, respondent-defendant-tenant filed an appeal, which was decided by the District Judge, Narnaul vide his judgment dated 18th November, 2005. The lower appellate Court being aware of the issue, stated that the plaintiff was claiming that construction of the shop was not more than ten years old so that he could avail exemption from the applicability of Haryana Urban (Control of Rent and Eviction) Act. The defendant’s evidence was rightly crystallized by the lower appellate Court and the same was noted as under: “14. … … … To sustain his pleadings, the appellant-defendant has produced multi-pronged evidence on the following aspects: 1. The shop was earlier under tenancy of one Lal Chand. 2. The defendant then became tenant, electricity and water connection was in his favour. He was running a hotel under licence from the Municipal Committee; and 3. During his running of a hotel in the shop, he was prosecuted for lapses under the Food Adulteration Act, 1954 (Ex.D1).” The lower appellate Court further held that earlier to the decree Ex.P3 dated 1st April, 1986, Daya Nand PW-7 father of the plaintiff was owner of the shop in dispute. The Court further held that from the cross-examination of Daya Nand PW-7 it has not been proved that the 8 Regular Second Appeal No.1802 of 2006 shop was newly constructed. The lower appellate Court observed as under: “18. … … … Dayanand (PW7) has not been able to produce any evidence regarding construction of the shop in the year 1984. When he was questioned specifically on this aspect, he had admitted that he had neither any bills, nor receipts, nor accounts with regard to details of expenditure (made on construction of the shop) at the time when his evidence was recorded on 22.5.2001.” The Court further held that even Tej Parkash plaintiff PW-8 could not produce any supportive cash memo with regard to the purchase of building material, payment of labour, mason or the civil engineer. The lower appellate Court placed reliance upon the evidence led by the respondent-defendant-tenant and observed as under: “20. The appellant-defendant had produced Murari Lal as DW1 and Babu Lal as DW2: they were resident of that area. They had deposed that shop was in existence for the last more than 25 years where the appellant-defendant was running a hotel and further that the shop earlier was in possession of Lal Chand as tenant. Both these witnesses have denied the suggestion that the shop after getting the proposed site plan sanctioned from the Municipal Council, Narnaul, was constructed in the year 1984. Ramesh Gaud (an official of Public Health Department) appearing as DW4 had proved water charges bills (Ex.DW4/1 to Ex.DW4/8) and receipts (Ex.DW4/9 and Ex.DW4/10). Similarly, Sushil Kumar an official of DHBVNL appearing as DW5 has proved that electricity connection bearing No.A-610 CS was released in favour of Raja Ram son of Nirhu Nishar on 12.1.1981. 21. At this stage, it would be relevant to refer to the statement of appellant-defendant Raja Ram (DW7) who 9 Regular Second Appeal No.1802 of 2006 has asserted that the electric connection was taken by him. Whereas the water connection had been got transferred from the name of Lal Chand. He has further deposed that he used to foot the bill of water and electric charges for which some of the receipts have been produced by him. His deposition further is that he used to pay licence fee for running the hotel to the Municipal Council, Narnaul for which also he has produced receipts of good antiquity. The said receipts for payment of licence fee are Ex.DW9/1 to Ex.DW9/12. Ram Avtar, Licence Clerk of Municipal Council, Narnaul, appearing as DW9 has proved these receipts (Ex.DW9/1 to Ex.DW9/12) regarding payment of licence fee. This witness had also brought the licence Register and had specifically stated that the appellant- defendant Raja Ram was granted licence to run the hotel. Version of the appellant-defendant is that he was continuing to be tenant in the premises even earlier to the execution of rent note (Ex.P1). He was sustained and supported from the earlier rent notes. There is rent note dated 8.12.84 (Mark DW6/4) as also of 27.9.1990 (Ex.DW6/3). Even if rent note dated 8.12.1984 being a marked document and not legally exhibited one, is ignored, document dated 27.9.1990 (Ex.DW6/3) when is read in conjunction with rent note dated 1.3.1994 (Ex.P1), does not leave any doubt that both these rent notes are in respect of the same premises. Boundaries are the same. Sandeep Kumar shown as owner of the shop in western side in Ex.DW6/3 is concedingly son of Dayanand (PW7) and brother of respondent-plaintiff.” I have heard Mr. Jaivir Yadav, counsel for the appellant and Mr. Sanjay Vashisht, counsel appearing on behalf of the respondent. Mr.Yadav has submitted that a grave error has been committed by the lower appellate Court in reversing the well reasoned 10 Regular Second Appeal No.1802 of 2006 finding of fact returned by the trial Court. Counsel for the appellant- plaintiff has relied upon sanction of the site plan granted by the Municipal Council, Narnaul to say that construction of the shop was completed in the month of October, 1984 and vide rent note Ex.P1 Raja Ram was inducted as a tenant on 1st March, 1994. I have perused the entire record. From the defence evidence it is apparent that Raja Ram was running a hotel for selling eatables much before 1st March, 1994. He has ventured to examine the officials from the Department of Public Health and Electricity Supplier. He has produced the bills of water and electricity charges and their receipts too. Mr.Yadav has stated that these bills do not relate to the shop in dispute. However, the lower appellate Court has rightly placed reliance upon the testimony of Murari Lal DW-1 and Babu Lal DW-2 and there is no doubt in my mind that the bills of electricity and water charges and receipts of their payment lend corroboration to their testimony. Furthermore, Raja Ram has also examined Ram Avtar, Licence Clerk as DW-9, who stated that Raja Ram had applied and obtained a licence for running a hotel from the Municipal Council, Narnaul in the year 1980. Attesting witness to the rent note Ex.P1 dated 1st March, 1994, Dev Karan appearing as PW-3 also admitted that Raja Ram was running a hotel from the shop in question and he used to go there to take tea. Therefore, it is also proved from the plaintiff’s evidence that Raja Ram was running a business of hotel for selling eatables from the shop in question. Now, to answer the question as to when he commenced his business of hotel from the shop in dispute, the evidence led by defendant is sufficient to hold that he was running the business much prior to 1st March, 1994. Therefore, the following finding given by the lower appellate 11 Regular Second Appeal No.1802 of 2006 Court is well based upon the evidence and this Court has no hesitation to concur with the same: “23. Keeping in view the totality of evidence as discussed above, there is no escape from the conclusion that the shop given on rent vide rent note dated 1.3.1994 (Ex.P1) is the same which was on tenancy with the appellant-defendant earlier and in which he had been running a hotel on payment of licence fee to the Municipal Council, Narnaul vide receipts (Ex.DW9/1 to Ex.DW9/12). The appellant-defendant had also got water and electric connection in his name in these premises. He had been paying charges for the same. Municipal record of House Tax assessment for year 1977-78 (Ex.D2) shows one shop to be in possession of Lala Ram under Satmandan, relationship with whom has been admitted by the respondent-plaintiff. In these premises, a hotel was being run by the appellant-defendant, who had also suffered a prosecution from the period 24.10.1983 to 14.3.1990 (Ex.D1).” Mr. Yadav has further stated that no reliance can be placed upon the judgment Ex.D1 as name of the accused recorded therein is Raj Kumar son of Nehru and it cannot be said that Raja Ram respondent- defendant was prosecuted. A perusal of the judgment Ex.D1 reveals that the Government Food Inspector had taken into possession curd from the hotel from one Mahipal, servant of Raj Kumar. If the evidence of DW-9 Ram Avtar, Licence Clerk is perused, the same when translated into English, reads as under: “Stated that I am posted in Municipal Council, Narnaul since 1980. I have brought the licence register of ten years from 1980 to 1990. In the year 1980 at serial 12 Regular Second Appeal No.1802 of 2006 number 750 Raja Ram, Mahipal, New Bus Stand, Narnaul had deposited licence fee for the year 1980.” Therefore, it is apparent that Mahipal from whose possession the curd was taken was co-licencee with Raja Ram respondent- defendant-tenant. Furthermore, this Court cannot ignore document Ex.DW6/1, an entry of rent note made in the register of Singh Raj, Deed Writer, DW-6. This entry has been signed in Hindi by Raja Ram and in English by Tej Parkash. If the rent note qua the shop in dispute has been executed on 27th September, 1990 between the parties, it is sufficient to infer that Raja Ram respondent-defendant-tenant was in possession of the shop in question before 1994. Therefore, the finding of fact returned by the lower appellate Court is to be affirmed. Hence, no substantial question of law, much less a substantial one, arises for consideration of this Court in the present appeal and same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE July 7, 2011 rps 13