In the High Court for the States of Punjab and Haryana, at Chandigarh. RSA No.1114 of 1989 Decided on February 27,2008. Chunni Lal -- Appellant vs. Gobind Ram and others --Respondents. Present: Mr.RS.Sihota,Senior Advocate, with Mr.HPS Ishar, Advocate,for the appellant. Mr.Amit Jain,Advocate,for the respondents. Rakesh Kumar Jain,J : This appeal is directed by the plaintiff against the judgment and decree of the Courts below whereby his suit for possession by way of ejectment of the defendants has been dismissed. Briefly stated the facts of the case are that the plaintiff filed a suit for possession on 19.3.1984 alleging himself to be the owner/landlord of the shop with a verandah and stair case built on plot No. 106, situated in New Sabzi Mandi Palwal. It was alleged in the plaint that the said shop was taken on rent by defendant No.1 on a monthly rent of Rs.300/- including house tax about five years back but defendant No.1 has ceased to occupy the shop and has placed defendant Nos. 2 and 3 in possession as sub tenants. The plaintiff alleged that he requires the shop in dispute for his personal use and occupation and does not want to keep defendant No.1 as his tenant and for that purposes,he has terminated the tenancy of RSA No.1114 of 1989 -2- defendant No.1 by a registered notice dated 26.12.1983 giving him one month's time to vacate the shop and the said notice was served upon defendant No.1 on 27.12.1983. It was alleged that defendant Nos.2 and 3 were also issued registered notices to vacate the shop which was illegally and unauthorisedly occupied by them. The said notice was given on 26.12.1983, which was received by the sub tenants defendant Nos.2 and 3 on 28.12.1983 and on 2.1. 1984 respectively. Plaintiff also alleged that since the construction of the shop had been completed in the year 1977-78, therefore, the provisions of the Haryana Urban (Control of Rent &Eviction) Act,1973 (for short,'the Act') are not applicable to the tenancy of defendant No.1 in respect of the shop in dispute, therefore, only Civil Court has got the jurisdiction to try the suit. Defendant Nos.1 to 3 filed the written statement in which it was alleged that the building in question was constructed and completed on 07.9.1972 in view of notice dated 6.6.1972 issued to Arhu Ram son of Chela Ram of Palwal by Market Committee,Palwal, therefore, the provisions of the Act, are applicable to this case and the Civil Court has no jurisdiction to try the present suit. It was further alleged that defendant No.1 has not ceased to occupy the shop in question and denied that defendant Nos. 2 and 3 are in possession as sub tenants. It was categorically denied that the shop in question was constructed and completed in the year 1977-78 as alleged in the plaint. Rather, it was averred that the shop was constructed and completed by the previous owner Arhu Ram on or before 07.9.1972 and the sale deed or agreement regarding mentioning of plot No.106 is false, frivolous and in-admissible RSA No.1114 of 1989 -3- as the same has been created in order to save stamp and to deceive the government. Notice dated 26.12.1983 was also denied to be false,frivolous and illegal. In the replication,the preliminary objections raised by the defendants were denied. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the provisions of Haryana Urban (Control of Rent &Eviction)Act, 1973 are not applicable ? OPP 2. Whether defendant No.1. has ceased to occupy the shop in dispute and whether he has handed over the possession to defendant No.2 and 3 as sub tenants without the consent of the plaintiff ? OPP 3. Whether the plaintiff requires the shop in question for his personal use ? OPP 4. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction ? OPD 5. Whether the plaintiff has no cause of action ? OPD 6. Whether the suit is bad for mis-joinder of parties ? OPD Additional Issue was also framed which is as under:- 1-AWhether the notice has been waived, if so to what effect? OPD 7. Relief Both the parties led oral as well as documentary evidence in support of their respective pleas. RSA No.1114 of 1989 -4- The trial Court decided issue Nos. 1 to 3 and 1-A in favour of the defendants and against the plaintiff and issue Nos. 4 to 6 in favour of the plaintiff and against the defendants. Ultimately,while deciding issue No.7, the suit of the plaintiff was dismissed. Before the lower Appellate Court, only issue No.1 was agitated to the effect as to whether the construction of the shop in question was completed in the year 1972 as stated by the defendants or in the year 1977- 78 as stated by the plaintiff. The first Appellate Court after taking into consideration the entire evidence returned a firm finding of fact that the plaintiff has failed to prove that the construction has been raised in the year 1977-78/1978-79, and, therefore, the appeal was dismissed. Mr.R.S.Sihota, learned Senior Counsel appearing for the appellant has vehemently argued that the entire evidence has been misread by the Courts below which has resulted into miscarriage of justice and has submitted that the question of law that involves in this appeal is pertaining to the misreading and misinterpretation of oral as well as documentary evidence. He has cited a judgment of the Hon'ble Apex Court in the case of P.Chandrasekharan and others v. S.Kanakarajan and others (2007) 5 Supreme Court Cases 669 to urge that misreading of evidence also falls within the ambit of substantial question of law. In order to demonstrate misreading, Mr.Sihota,has drawn attention of this Court to the documentary evidence i.e Exs. DA and DB to state that these two documents which have been followed by the Courts below in giving the finding that the construction in question was RSA No.1114 of 1989 -5- completed on 07.9.1972, has no probative value because firstly the document is undated and secondly, there is no file number. He has further brought to the notice of this Court documents Ex.PA to Ex.PD in order to show that these documents clearly bear the date and the same only refer 'plot' and not 'shop'. Arguing further, he has submitted that in the document Ex.PD, which is a notice issued by the Market Committee, Palwal on 18.11.1977, the plaintiff has been asked to remove back door of the shop as it violates the terms and conditions of the agreement. Learned counsel has further read the statement of PW-3 Ved Parkash, a Clerk of Market Committee, Palwal in order to highlight that documents Ex.PA to Ex.PD are the copies of record. Mr. Sihota has assailed the judgments of the Courts below, in particular, the lower Appellate Court on the ground that once the plaintiff had alleged that the shop was constructed in the year 1977-78, the burden had shifted to the defendants to prove that the shop in dispute was not constructed in the year 1978-79 and has relied upon three judgments reported as Moran Mar Basselios Catholicos v. Thukalan Paulo Avira and others, AIR 1959 Supreme Court 31; Smt. Prem Lata v.Arhant Kumar Jain, AIR 1973 Supreme Court, 626 and Ruldu Ram v. Prabhu Dayal 1982 (2) Current Law Journal (C & Cr.) 106. On the contrary, Mr.Amit Jain, counsel for the defendants has argued that finding recorded by both the Courts below on the basis of appreciation of evidence is a pure finding of fact and cannot be interfered with in second appeal. On merits, he has argued that so far as the question of burden is concerned, it was categorically put by the Courts below upon the plaintiff while framing issue No.1 and in a case where the dispute is RSA No.1114 of 1989 -6- with regard to the new construction seeking exemption from the Rent Act is concerned, the onus is only on the landlord to prove that construction was within 10 years. In this regard, reliance is placed on a decision of the Hon'ble Supreme Court in the case of Ram Saroop Rai v. Smt. Lilawati 1982 (1) R.C.R.(Rent), 637. Mr.Jain has further argued that in none of the documents relied upon by the plaintiff i.e.Exs.PA to PD, date of construction is mentioned,whereas in the document Ex.DB , the date of construction is specifically mentioned by the original owner Arhu Ram as 07.9.1972. He has further argued that reference of plot in the documents Exs. PA to PD has no relevance because in the Market Committee record, it is only the plot number which is identified and not shop number. He has further contended that the best person to depose about the date of construction was Arhu Ram, the original owner, who has not been examined by the transferee/plaintiff for the reasons best known to him and for that purpose, an adverse inference has rightly been drawn against him. He also argued that agreement does not throw any light with regard to the nature of the property . The best document was the sale deed which could have proved the exact nature of the property sold by Arhu Ram to Chunni Lal, plaintiff. I have heard learned counsel for the parties and with their assistance perused the record. Admittedly, the burden to prove issue No.1 was casted upon the plaintiff to prove that the provisions of the Act are not applicable because the property in question was constructed within 10 years. I do not agree with the submissions made by learned counsel RSA No.1114 of 1989 -7- for the appellant that the burden keeps on shifting. The judgments relied upon by him are not applicable to the facts and circumstances of the present case. Rather the judgment relied upon by counsel for the respondents/defendants in Ram Saroop's Case (Supra) is fully applicable to the facts of this case, in which the Hon'ble Apex Court has held as under:- “Therefore, the landlord who seeks exemption must prove that exception. The burden is on him to make out that notwithstanding the rent control legislation his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years, but it is for the landlady to make out that the construction has been completed within ten years of the suit. This is sensible not merely because the statute expressly states so and the setting necessarily implies to,but also because it is a landlady who knows best when the building was completed and not the tenant. As between the two, the owner of the building must tell the Court when the building was constructed, and not the tenant thereof. Speaking generally it is fair that then onus of establishing the date of construction of the building is squarely laid on the landlord although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove”. So far as the appreciation of evidence is concerned, the lower Appellate Court has rightly observed that neither the plaintiff has examined his vendor Arhu Ram nor placed on record the sale deed regarding transfer of the property in question in order to find out the exact nature of the sold property as to whether it was a plot or a shop. No evidence has been led by the plaintiff to prove the date, month or year of completion of construction as the same has not even been pleaded in the plaint. On the contrary, the defendant has placed on record Ex.DB. The vendor of the plaintiff has categorically mentioned the date of completion of the shop as 07.9.1972. RSA No.1114 of 1989 -8- He has categorically stated therein that “my shop has been completed after construction on 07.9,1972” . This document Ex.DB has been accepted to be correct by the plaintiff's own witness i.e. PW-3, who stated in his cross examination that Exs. DA and DB are correct copies of the record brought by him. In the case in hand, the Court is concerned with the exact date of completion of the property in question so as to find out as to whether the Civil Court has got jurisdiction to try the suit for ejectment or the jurisdiction vests with the Rent Controller under the Rent Act. The plaintiff has miserably failed to discharge his burden which was squarely upon him and merely the documents Ex. PA to PD which refers the property in dispute as plot is of no help to the plaintiff because the record with the Market Committee is pertaining to the plot number and not shop number. For the reasons recorded above, I find that the appeal is devoid of any merit. There is no misreading of evidence which could raise the issue of substantial question of law. Rather it is a case of finding of fact. The appeal is thus devoid of any merit and is dismissed though without any order as to costs. February 27,2008 (Rakesh Kumar Jain) RR Judge