RSA NO.2214 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2214 of 2008 (O&M) Date of Decision:October 27, 2009 Ved Parkash ...........Appellant Versus Narender Kumar and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sanjay Mittal, Advocate for the appellant. Mr.Jai Veer Yadav, Advocate for respondents ** Sabina, J. Plaintiffs filed a suit for Ejectment and Recovery of Rs.2500/-. The suit of the plaintiff was decreed by the Additional Civil Judge (Senior Division) Kosli vide judgment and decree dated 20.2.2006. Aggrieved by the same, the defendant-Ved Parkash filed an appeal which was dismissed by the District Judge Rewari vide judgment and decree dated 14.2.2008. Hence, the present appeal by the defendant. The facts of the case, as noticed by the Additional District Judge in paras 2 and 3 of its judgment, read as under:- “ 2. The plaintiffs are owners of the shop in dispute. The defendant took the shop in dispute on rent from Shri Ram Swaroop, grand father of the plaintiffs. Ram Swaroop transferred his ownership rights in the shop in dispute in his life time in RSA NO.2214 of 2008 (O&M) 2 favour of his son Shiv Kumar and Shiv Kumar started managing the shop after being clothed with ownership rights in the same. He used to collect the rent from the defendant. The shop in dispute has been constructed on Killa No.163/4. A family settlement took place between Shiv Kumar and his brothers as also the other co-sharers. The shop in dispute constructed in Killa No.163/4 fell to the share of Shiv Kumar in that family settlement also. The said family settlement has been recognized by the civil court in civil suit No.81 of 1999, decided on 29.1.2000. Mutation No.4556 was entered and sanctioned in this regard on 1.3.2001. Shiv Kumar transferred his rights in the shop to the plaintiffs vide release deed dated 22.8.2001. On the said release deed, mutation No.4725 was entered and sanctioned on 10.9.2001 in favour of the plaintiffs. On behalf of the plaintiffs, Narender Kumar was managing the shop in dispute. He was collecting the rent at the rate of Rs.1250/- per month and was issuing receipts to the defendant on behalf of his brothers. The defendant is, therefore, a tenant of the plaintiffs in the shop in dispute on payment of Rs.1250/- per month. The plaintiffs require the shop in dispute for their own use and occupation. Therefore, they did not want the defendant to continue as tenant over the shop in dispute. Narender Kumar had sent a notice under Section 106 of the Transfer of property Act to the defendant on behalf of the plaintiffs terminating the tenancy of the defendant over the shop in dispute from the mid night of 31.7.2003 and 1.8.2003. After the aforesaid date, the possession of the RSA NO.2214 of 2008 (O&M) 3 defendant over the shop in dispute is that of a trespasser. Hence, the plaintiffs are entitled to a decree of ejectment. The defendant was requested several times to handover the vacant possession of the shop in dispute to the plaintiffs but to no effect and hence the suit for ejectment of the defendant from the shop in dispute and for recovery of Rs.2500/- as amount of rent for the months of July and August, 2003. 3.The suit is resisted by Ved Parkash defendant. He has taken a number of preliminary objections. According to him, the suit is not maintainable in the present form, the plaintiffs have no cause of action or locus standi to file the present suit, the plaintiffs have concealed the true and material facts from the court and so, their suit is not maintainable and is liable to be dismissed, the suit is based on false and fabricated documents as well as on false pleadings, the court has no jurisdiction to try the present suit, the suit is bad for non-joinder of necessary parties i.e. all the legal heirs of Ram Swaroop, the suit is not properly valued which required payment of ad-volerm court fee, the suit is barred under Order 7 Rule 11 CPC also and lastly, the suit is time barred. In reply on merits, the plaintiffs are denied to be owners of the shop in dispute. According to him the description of the property appearing in para No.1 of the plaint is wrong and against the factual situation. The site plan annexed with the plaint is also claimed to be incomplete and incorrect. It is added that the defendant had been tenant of the shop situated near Railway Station Kosli within the revenue estate of village Bhakli under RSA NO.2214 of 2008 (O&M) 4 late Ram Swaroop and after his death, the answering defendant has become tenant under all the legal heirs of said Ram Swaroop. It is denied that Ram Swaroop had transferred his ownership rights in the shop in dispute in his life time in favour of Shiv Kumar. It is also denied that Shiv Kumar started managing the shop in dispute after being clothed with the rights of ownership in the same. It is denied that the shop in dispute has been constructed on any part of killa No. 163/4. The fact of family settlement between Shiv Kumar, his brothers and other co-sharers in respect of the shop in dispute on Killa No.163/4 or any other property is denied. It is also denied that the shop in dispute on Killa No.163/4 or a part of the same fell to the share of Shiv Kumar in the alleged family settlement. Recognition of the said family settlement by the civil court by way of decree dated 29.1.2000 is also denied. The civil court decree dated 29.1.2000 and mutation No.4556 sanctioned on 1.3.2001 are claimed to be illegal, null and void and having no binding force on the rights of the answering defendant. It is claimed that the answering defendant was not a party to the proceedings in the civil suit or to mutation in question. It is also claimed that no notice was given to the answering defendant in this regard even till the institution of the present suit. Shiv Kumar is also denied to have transferred his rights in the shop in dispute in favour of the plaintiffs. The release deed No.762 and mutation No.4725 sanctioned on 10.9.2001 in favour of the plaintiffs are also claimed to be illegal, null and void, collusive and ineffective on the rights of the RSA NO.2214 of 2008 (O&M) 5 answering defendant. They are denied to confer any right in the shop in dispute in favour of the plaintiffs. It is again pleaded that the answering defendant was not made party to the said documents. It is further denied that the shop in dispute was being managed by Narender Kumar plaintiff alone. It is also denied that Narender Kumar alone used to collect rent and issue receipts on behalf of his brothers. Entrustment of management of the shop in dispute by plaintiffs No.2 and 3 to plaintiff No.1 is also denied. The plaintiffs are denied to require the shop in dispute for their own use and occupation. It is claimed that they are trying to get the shop vacated with a view to let it out at a higher rate. They are said to have no right to get the shop vacated from the defendant. The termination of the tenancy of the defendant from the mid night of 31.7.2003 and 1.8.2003 is also denied. The notice dated 11.7.2003 is claimed to be illegal, unauthorized, incomplete, ineffective vague, baseless and unjust. It is also claimed to be contrary to the provisions of the Transfer of Property Act. He has denied his possession over the shop in dispute after 1.8.2003 as that of a trespasser. He has claimed that he had been ready to pay the rent for the months of July and August,2003. According to him, the landlords did not receive the amount from him against proper receipt. The other averments of the plaintiffs are denied. It is claimed that the plaintiffs have concealed the fact of pendency of civil suit titled as Ved Parkash Vs. Narender Kumar and others in the court of Shri A.K.Singal, the then learned Additional Civil Judge (Senior Division) Rewari RSA NO.2214 of 2008 (O&M) 6 for 30.4.2004. As such, the suit is claimed as liable to be dismissed under Order 7 rule 11 CPC On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners-landlords of the shop as detailed in para No.1 of the plaint and shown in red colour in the site plan attached therewith?OPP 2. Whether the tenancy of the defendant has been validly terminated by the plaintiffs under the provisions of Section 106 of T.P.Act, as alleged?OPP 3. Whether the plaintiffs are legally entitled for recovery of Rs.2500/- as an arrears of rent for the months of July and August, 2003 from the defendant?OPP 4.Whether the plaintiffs have no locus standi to file the present suit?OPD 5.Whether the suit is not maintainable in the present form?OPD 6. Whether the plaintiffs have suppressed the true and material facts from this court, if so its effect ?OPD 7.Whether the suit is bad for non-joinder of necessary parties?OPD 8. Whether the suit is barred by limitation?OPD 9. Whether the suit is barred under order 7 rule 11 CPC?OPD 10.Whether the plaintiffs have no cause of action to file the present suit?OPD 11. Relief.” After hearing the learned counsel for the parties, I am of the RSA NO.2214 of 2008 (O&M) 7 opinion that the present appeal deserves to be dismissed. Ram Swaroop, grand father of the plaintiffs was, admittedly, owner of the shop in dispute. He had given the shop-in-dispute on rent to the defendant. Admittedly, Ram Swaroop has expired. The case of the plaintiff is that in a family settlement and Civil Court decree dated 29.1.2000, Shiv Kumar got the shop in the dispute alongwith other property. Shiv Kumar is father of the plaintiffs and he transferred the ownership of the shop-in-dispute in favour of the plaintiffs by release deed dated 22.8.2001. It has been observed by the learned trial Court that the rent receipts Exhibit DW2/1 to Exhibit DW2/17 revealed that the rent had been paid by the defendant to Shiv Kumar (father of the plaintiffs) and his wife Tara Wati. It has been further observed by the trial Court that as per the rent receipts Exhibit PX/1 to Exhibit PX/5, defendant used to pay rent to plaintiff No.1- Narender Kumar. It has further been noticed that rent had also been paid to Narender Kumar by the defendant through money order. Hence, the learned trial Court rightly held that the plaintiffs were owners of the shop-in-dispute and, consequently, relationship of landlord and tenant existed between the parties. A notice under Section 106 of the Transfer of Property Act, 1882 regarding termination of tenancy was sent to the appellant-defendant. The case of the appellant-defendant is that the said notice was not issued by all the owners of the shop, whereas, it had only been issued by plaintiff No.1. Receipt of notice by defendant is, thus, not in dispute. Admittedly, appellant did not give any reply to the notice served on him regarding termination of tenancy. Since all the owners have filed the present suit for ejectment and recovery against the appellant-defendant, it leads to the RSA NO.2214 of 2008 (O&M) 8 inference that plaintiff No.1 had issued the notice on behalf of all the owners. Hence, there is no force in this argument. Learned counsel for the appellant has also raised an argument that since after the passing of the order of the ejectment, rent had been received by the owners, it lead to the inference that a fresh tenancy had been created. There is no force in the argument raised by the learned counsel for the appellant. Since the appellant was in possession of the shop, he was required to pay the rent till the period he remained in possession. In these circumstances, the Courts below rightly held that the plaintiffs had locus standi to file the suit. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge October 27, 2009 arya