Civil Revision No.3550 of 2011 (O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3550 of 2011 (O & M) Date of Decision:26.08.2011 Narinder Kumar ....petitioner Versus Rajinder Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.H.K.Aurora, Advocate for the petitioner Mr.Vikas Bahl, Advocate for the respondent *** RAKESH KUMAR GARG, J. This is tenant's revision petition challenging the impugned judgement passed by the Appellate Authority, Roopnagar, whereby eviction of the petitioner-tenant has been ordered while accepting the appeal filed by the respondent-landlord against the dismissal of the ejectment application by the Rent Controller, Roopnagar. As per the averments made in the ejectment application, the respondent is the owner of demised premises. The petitioner had taken the premises in dispute on rent from 29.12.1979 @ ` 300/- per month. Earlier, the demised premises were owned by Jit Singh @ Ajit Singh, father of the respondent and after his death, the same is owned by the respondent. A rent deed was also executed by the petitioner in favour of Civil Revision No.3550 of 2011 (O & M) 2 the father of the respondent on 29.12.1979. It was specifically mentioned in the rent deed that the petitioner will pay the electricity bills of the shop in question and he will also pay the taxes. It was further averred that the petitioner was liable to be ejected from the shop in dispute on the ground that he had not paid the rent w.e.f 02.03.2007 up to August 2007 and, the shop in question was required by the respondent for his personal necessity. Upon notice, the petitioner appeared and filed reply raising preliminary objection that the ejectment application was not maintainable as the relationship of landlord and tenant does not exist between the parties. It was the specific stand of the petitioner that he never took the property in dispute on rent from the petitioner or any other person at any time and he never paid rent to the respondent. The respondent was not the owner of the property in dispute and had no locus standi to file the ejectment application. On merits, it was submitted that petitioner has not taken the property in dispute on rent from the respondent or any other person on 28.12.1979 @ ` 300/- per month. The property was not possessed by Jit Singh @ Ajit Singh and he had no right, title or interest in the property in dispute. Since the relationship of landlord and tenant does not exist, the petitioner has never paid any rent to the respondent or Jit Singh @ Ajit Singh and the question of arrears of rent does not arise. Personal necessity of the petitioner was also denied. Other averments of the ejectment application were denied and dismissal of the petition was prayed for. From the pleadings of the parties, the following issues were framed by the Rent Controller, Roopnagar: 1. Whether the respondent is tenant in demised premises under the petitioner?OPA 2. If issue No.1 is proved in affirmative then what is the Civil Revision No.3550 of 2011 (O & M) 3 rate of rent?OPA 3. Whether the respondent is in arrears of rent as alleged?OPA 4. Whether the petitioner requires demised premises for his bonafide personal necessity?OPA 5. Whether the respondent is in arrears of rent if so its effect?OPA 6. Whether the petition is not maintainable in the present form?OPR 7. Relief. While dismissing the ejectment application, the Rent Controller, Roopnagar, vide order dated 31.07.2010, held that relationship of landlord and tenant does not exist between the parties. Aggrieved from the aforesaid order of the Rent Controller, respondent-landlord filed an appeal before the Appellate Authority, Roopnagar, which was accepted vide impugned judgement dated 23.04.2011 and eviction of the petitioner was ordered from the premises in dispute. While allowing the appeal, the Appellate Authority, held that the respondent-landlord has successfully discharged his initial burden to prove that he is landlord of the demised property and the petitioner was in possession of the same as a tenant. A further finding was recorded by the Appellate Authority to the effect that the petitioner has failed to prove on record in what capacity he was coming to possession of the demised shop, if not in the capacity of a tenant under the respondent-landlord as asserted by him, specifically in his written statement , wherein he has taken the defence that he is not tenant of the respondent or any other person and his father had purchased 1/3rd share of the property from Ved Parkash, original owner of the suit property. Civil Revision No.3550 of 2011 (O & M) 4 Aggrieved from the aforesaid judgement of the Appellate Authority, the tenant has approached this Court by way of instant revision petition. Learned counsel appearing on behalf of the petitioner has vehemently argued that findings of the Appellate Authority are unsustainable in the eye of law as there is no legal evidence to support the aforesaid findings. Elaborating his argument further, learned counsel for the petitioner has pointed out that the respondent-landlord has not proved the sale deed Ex.P-16 in accordance with law and therefore the same cannot be relied. Similarly, Will Ex.P-17, allegedly executed by Ajit Singh s/o Shoba Singh in favour of the respondent was also not proved and therefore, it cannot be held that respondent is the owner-landlord of the suit property. Not only this, even the petitioner has denied his signatures on the rent deed in his cross-examination and thus the said rent deed cannot be taken to be proved against him. Learned counsel for the petitioner has further relied upon statement of the respondent-landlord, wherein, he has clearly admitted that Jit Singh, his father, was not owner of 1/3rd share of the suit property and his father had constructed only 8 shops, whereas, admittedly, there were 11 shops in existence and thus it cannot be held that respondent was owner of the shop in dispute and the petitioner has also referred to the fact that in his statement respondent-landlord has admitted that the rent receipts do not bear his signatures. According to the learned counsel for the petitioner, in view of the aforesaid admission and the evidence as discussed above, it cannot be held that there exist a relationship of landlord and tenant between the parties. On the other hand, learned counsel appearing on behalf of the respondent has supported the impugned judgement and has argued that the findings of the Appellate Authority are based on re-appreciation of evidence and need not be interfered with in the revisional jurisdiction of this Civil Revision No.3550 of 2011 (O & M) 5 Court. I have heard learned counsel for the parties and perused the impugned judgement and the pleadings and evidence of the case with the help of the counsel for the parties. It is useful to refer to the findings of the Appellate Authority, which read thus: I have considered the rival contentionS of both the learned counsel for the parties and at the outset, it can be stated that so far as relationship of landlord and tenant is concerned, the petitioner/applicant has placed on record Ex.P1 i.e. the rent note dated 29.12.1979. As per this rent note, shop No.10 which is under the ownership of Jit Singh alias Ajit Singh son of Shobha Singh son of Rattan Chand has been rented out to Narinder Kumar respondent on a monthly rent of Rs. 300/-. The rent note has been scribed by one Ram Parkash deed writer and the same has been witnessed by Rattan Singh son of Jal Singh and Man Singh son of Bhagwant Singh. The petitioner/appellant has also placed on record some rent receipts from 02.07.2006 to 21.01.2007. Further, there is certified copy of T.S.I assessment register of Municipal Council, Rupnagar placed on record as Ex. P2 which shows that property bearing No. 2930-A, 2930-A/1 is owned by Rajinder Singh son of Jit Singh and the same is occupied by Narinder Kumar Sikka at the annual rate of Rs. 6,000/-. In case titled as Mahant Sarover Nath Vs. Amar Nath Pardesi 2007 (4) Civil Revision No.3550 of 2011 (O & M) 6 Punjab Law Reporter 23 our own Hon'ble High Court has laid down as under:- “It further deserves to be noticed that the copy of assessment register of Municipal Committee for the year 1967-68 has been proved on the file as Ex. A-10, Mahant Sarowar Nath is shown to be the owner of the property in dispute and Amar Nath Pardesi is shown as a tenant. This document in the context of admission made by the respondent-tenant becomes very material. The assessment register is a public record and therefore its authenticity is to be examined in the context of other evidence on the record. Therefore, his entry corroborates the admission made by the respondent-tenant himself that he was a tenant in the demised property under Mahant Sarovar Nath.” In the instant case also, the entries in Municipal Council record showing Rajinder Singh as owner of the demised property and Narinder Kumar Sikka in possession of the same would lead to an inference that there exists a relationship of landlord and tenant between the parties in the present appeal. It is not disputed at all that the entries of the Municipal Council record do not confer or extinguish any title in the property, yet, the same can be looked into for collateral purposes such as for ascertaining the relationship between the parties to the appeal and the nature of possession of respondent in the disputed property. Civil Revision No.3550 of 2011 (O & M) 7 This fact further gains significance in view of the fact that the respondent has totally denied the title of the petitioner in the case property and has rather asserted his ownership rights in the demised property. Therefore, this denial of land lord and tenant relationship on the ground that the appellant is not owner of the suit property would lead to rising of two questions. Firstly, if the petitioner is not the rightful owner of the property and the respondent has not taken the said property on rent from the petitioner/appellant, then, onus is casted upon the respondent/tenant to prove the nature of his possession over the demised property. Secondly, in view of the fact that the respondent/tenant is disputing even the ownership of appellant in the suit property on the ground that the same is owned by the tenant himself, it becomes necessary for the respondent/tenant to prove that he is in possession of the property as owner of the same. In the above stated matrix of questions on law and fact of the case in hand, now the evidence adduced by both the parties is required to be assessed. Petitioner/appellant has proved on record Ex. P16, i.e. the certified copy of the sale deed in favour of Jit Singh alias Ajit Singh son of Shoba Singh son of Rattan Chand for 2/3 share in the property bearing No. 2930 bounded as under:- East Well and road Civil Revision No.3550 of 2011 (O & M) 8 West Remaining property of vendors North Road South Plot of Amrit Lal Further Ex. P17 is the Will executed by Ajit Singh son of Shoba Singh son of Rattan Singh whereby the shop No. 4 & 5 was given to Rajinder Singh petitioner/appellant. Even otherwise being legal heir of Ajit Singh he would inherit some share in the property left behind by Ajit singh which would make him a co-owner. In case titled as Surinder Mohan Aggarwal Vs. Krishan Mohan Madhok 2001 (1) PLR 57, it has been held that: “(iii) East Punjab Urban Rent Restriction Act (III of 1949) Section 2 (c) – Assuming that he is not the only owner – He is one of several co-owners being one of the heirs – As co-owner also he could maintain that ejectment application for the benefit of has own self and for the benefit of the after co- owners/landlords.” Furthermore these documents show that the property in dispute was purchased by Jit Singh @ Ajit Singh s/o Shobha Singh vide registered sale deed dated 18.12.1978 registered with the Sub Registrar, Rupnagar and the same was inherited by the petitioner/appellant, vide registered Will dated 17.02.1999 executed by Ajit Singh alias Jit Singh registered with the Sub Registrar at Rupnagar, vide Vasika No. 285. Further as already discussed in the preceding para, the entries in the Civil Revision No.3550 of 2011 (O & M) 9 Municipal Council record in T.S.I. Register also corroborated the fact that the property was previously owned by Jit Singh son of Shoba Singh and was subsequently inherited by his sons Savinder Singh and Rajinder Singh present petitioner/appellant. The respondent/tenant Narinder Kumar is shown to be occupier of the property bearing No. 2930-A/1 for a rent of Rs. 6000/- per annum. In case titled as Bharat Bhushan Vs. Dr. K.K. Saini 2005 (2) Civil Court Cases – 370 (P&H) our own Hon'ble High Court has laid down that “relationship of land lord and tenant – sale deed in favour of petitioner produced which categorically shows that he had purchased the property – merely because mother used to collect rent on behalf of the landlord, it cannot be held that petitioner is not the landlord. “Further, in case titled as Surinder Mohan Aggarwal Vs. Krishan Mohan Madhok (supra), it was laid down by our own Hon'ble High Court that” house tax record is not meaningless, only he is liable to pay house tax who is owner of the property. Liability to pay the house tax is that of the owner. Entry in house tax record is not evidence of title stricto- sensu but it can be taken into account to find out who is owner coupled with the other evidence.” In the instant case also the petitioner has placed on record the sale deed as well as the Will vide which, he has inherited the property in question which Civil Revision No.3550 of 2011 (O & M) 10 prima-facie establishes that the petitioner/appellant is the landlord of the demised property. Accordingly, in the considered opinion of this Appellate Authority, the petitioner/appellant has been successful in discharging his initial burden to prove that he is land lord of the demised property and the respondent/tenant is in possession of the same as a tenant. So far as the contention of learned counsel for respondent with regard to the title to respondent over the demised property is concerned, the statement of respondent as RW-2 would be of great significance. In his cross- examination, this witness has stated that his father had purchased the property in dispute from Ved Parkash son of Maghi Ram. He has also stated that his father constructed the shop in dispute in the year 1980. However, under the stress of cross- examination, this witness has stated that he do not know the name the mason and the labours who had constructed the shop in dispute in the year 1980. Surprisingly enough he has also stated that he never took the record of property in dispute from Municipal Council, Ropar till today. Not only this, when the respondent was further zeroed down on the question of title, he has stated that the title deed is misplaced and further that he do not know whether it was registered or unregistered. The matter does not end here as he has gone to the Civil Revision No.3550 of 2011 (O & M) 11 extent of stating that he do now know Ved Parkash son of Magha Ram who is none-else but the previous owner of the property in dispute. These admissions made on part of the respondent/tenant himself would go a long way in establishing that the respondent/tenant is trying to wriggle out of the situation by giving evasive replies and has rather failed to establish his case by leading cogent and convincing evidence on record. In fact, what to talk of cogent and convincing evidence, his own testimony was badly shaken in cross examination. So far as the point raised by the learned counsel for the respondent/tenant with regard to municipal council number of property is concerned, the respondent has not led any evidence in this regard to show that property in dispute bear some other number and not 2930/A/1. In fact he has shown his ignorance by stating that he do not know whether the shop in dispute bears municipal number 2930/A/1. Further, the respondent/tenant has not placed on record any site plan to rebut the site plan produced by the petitioner/appellant on record. He has also failed to prove on record as if not in the capacity of a tenant under the petitioner/appellant, then, in what capacity he is coming into possession of the demised shop. In Inder Mohan Singh Versus Surjit Singh 2010 (3) Law Herald (P&H) 2112 wherein the tenant had denied the existence of relationship of landlord and tenant between the Civil Revision No.3550 of 2011 (O & M) 12 parties, it was laid down by our own Hon'ble High Court that: “Tenant placed that he was in possession of tenanted premises only as a licensee on account of his close relationship with respondent landlord. Relationship between parties not proved by tenant, therefore petitioner tenant had been put into possession in premises under respondent-landlord as a tenant. As petitioner-tenant did not pay up arrears of rent, he is liable to be evicted from premises under his tenancy.” The respondent is claiming to be owner of the property and therefore, the onus to prove this fact was very heavy upon him. But, unfortunately, he is unable to give reply to some very fundamental questions relating to the property and has not even brought on record any document of title in his name or in the name of any other person under whom he claims to be in possession of the property. Not only this the respondent/tenant has also gone to the extent of stating that he does not know whether the suit property is assessed by the M.C. and Rajinder Singh is regularly paying the House Tax of the same to the M.C. This fact would also lead to an inference that at least respondent/tenant is not paying any house tax of the property in dispute to the MC and therefore the averment of the petitioner/appellant that he being owner of the Civil Revision No.3550 of 2011 (O & M) 13 property in dispute and is also paying the House Tax of the same appears to be more probable. It would be in the fitness of the things to state here that this Appellate Authority is not giving any finding on the title of the disputed property, the question which can be decided by the Civil Court only and as such is kept open. However, the probative value of the documents on record, would be sufficiently establishing the relationship of landlord and tenant between the parties. For this view of mine I am fortified with the law laid down by the Hon'ble Apex Court in Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane, AIR 1979 SC 1534, wherein the Hon'ble Apex Court has held that “The normal rule which governs civil proceedings is that a fact is said to be established if it is proved by preponderance of probabilities. Under Section 3 of the Evidence Act, a fact is said to be proved when the court either believes it to exist or it considers its existence so probable that a prudent man ought in the circumstances to act upon the supposition that it exists. The belief regarding the existence of a fact may thus, be founded on a balance of probabilities. The first step in this process is to fix the probabilities the second to weight them, though the two may often intermingle. The impossible to weeded out in the first stage has often a difficult choice to make but it is this choice which ultimately Civil Revision No.3550 of 2011 (O & M) 14 determines where the preponderance of probabilities lies.” Accordingly, in the instant case the preponderance of probabilities tilt in favour of the petitioner/appellant in establishing the landlord- tenant relationship between the parties to the present appeal. So far as the report of hand writing expert on comparison of the signatures of respondent/tenant on the rent note and the admitted signatures is concerned the same is not of much significant. In case titled as Mohan Sarup Singh Versus Rajeshwar Sarup, 1997 (1) ICC (P & H) 671 also reported at 1997(1) PLR 336, it was observed that “Expert examined by the plaintiff opined that the signatures do not tally with the standard signatures of deceased. More often than not a hand writing expert toes the line of the party who has summoned him. Science of hand-writing is not an exact science.” Further Section 73 of the Indian Evidence Act gives an authority to the court to use its own eyes for deciding the question. In case titled as Dr. Narayan Mukherjee Vs. Krishna Dev (Mukherjee) 1996 (3) ICC (Calcultta) DB 319 it was held that: “Section 73 of the Evidence Act gives an express authority to the court to compare hand writing when a case depends upon the comparison of handwriting, the court is competent to use its own eyes for deciding the question. In Civil Revision No.3550 of 2011 (O & M) 15 such a matter, the Court cannot accept the evidence of an expert like automation.” Harking back to the facts of the present case the disputed signatures on the rent note pertain to the year 1979 whereas the comparison has been done with the signatures taken in the year 2008 and 2009 i.e. to say after a lapse of about 29 years. Even the expert being conscious about the huge time gap between both the signatures had asked the respondents to provide him with the standard signatures in proximity of time to that of the disputed signatures but the same were not made available. This would give rise to an inference that due to his huge time gap some variations in the handwriting are bound to occur. The expert while facing cross examine as RW-1 have also admitted that he had not mentioned the natural variations in standard and specimen signatures. It is a well settled law that handwriting comparison is not a definitive science and opinion of handwriting expert cannot be made conclusive proof for forming any opinion about the signatures in question on documents. Further, the testimony of RW-1 cannot be held to be reliable as she had given evasive replies to some very fundamental questions relating to the handwriting opinion. For example she has stated that time-gap between the two sets of signatures under comparison has nothing to do with the natural variations present between them. Civil Revision No.3550 of 2011 (O & M) 16 She has gone to the extent of stating that she does not agree that comparison of signatures means examining and mentioning both similarities as well as dissimilarities in the report and the demonstrative marking on the photographic chart. She has also stated that there were no similarities between the disputed and the standard signatures so it was not marked whereas there are visible similarities. Therefore, the report rendered by RW- 1 is not reliable and trustworthy and is accordingly rejected. Even otherwise it was for the respondent/tenant to show the nature of his possession over the disputed property and he has failed to bring on record any document of title etc. Accordingly, it is held that there exists a landlord- tenant relationship between the parties and respondent has failed to substantiate his case by leading any cogent and convincing evidence. It is well settled law that once the tenant/respondent denies the relationship