RSA No.2598 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.2598 of 2009 (O&M) DATE OF DECISION: 2 nd MAY, 2011 Rajbala Mour & others .... Appellants Versus Rajesh .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Chetan Mittal, Senior Advocate with Mr. Kunal Mulwani, Advocate for the appellants. Mr. Sanjeev Gupta, Advocate for respondent. * * * * L.N. MITTAL, J. (ORAL) CM No.7679-C of 2009 For reasons mentioned in the application, which is accompanied by affidavit, delay of 13 days in filing the appeal is condoned. Main Case: This is second appeal by defendants which has arisen in the circumstances being mentioned hereinafter. Rajesh-respondent/plaintiff filed suit against defendants/appellants for permanent injunction alleging that plaintiff is tenant in possession of disputed premises No.125/1, Shanti Nagar, Manimajra, UT Chandigarh, under defendant No.1. However, defendants threatened to dispossess him from the tenancy premises illegally and forcibly. The plaintiff sought permanent injunction restraining defendants from doing so. Defendant No.2 is husband of defendant No.1. Defendant No.3 was RSA No.2598 of 2009 (O&M) -2- allegedly previous tenant in the demised premises under defendant No.1. All the three defendants filed separate but similar written statements alleging that initially defendant No.3 was inducted as tenant by defendant No.1, but defendant No.1 could not continue the business started by him. He let out his furnishings to the plaintiff. Defendant No.1 let out the premises to the plaintiff w.e.f. 01.05.2000. Defendant No.1 filed counter claim seeking possession of the demised premises by ejectment of the plaintiff alleging that it is a newly constructed property for which sewerage connection was obtained on 08.01.1999 and, therefore, provisions of the East Punjab Urban Rent Restriction Act, 1949 (in short, the Rent Act) are not applicable to the premises. Tenancy of the plaintiff has been terminated by serving notice dated 01.02.2001. The plaintiff also sought relief of recovery of arrears of rent/mesne profits. Various other pleas were also raised. Plaintiff by filing replications repudiated the version taken by the defendants and also repudiated the counter-claim of defendant No.1. It was pleaded that Rent Act is applicable to the premises. Learned Civil Judge (Junior Division), Chandigarh vide judgment and decree dated 30.11.2007 decreed the plaintiff's suit for permanent injunction restraining the defendants from dispossessing the plaintiff from the demised premises except in due course of law and also at the same time decreed the counter claim of defendant No.1 directing the plaintiff to hand over vacant possession of the demised premises to defendant No.1 within two months. First appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Chandigarh vide judgment and decree dated RSA No.2598 of 2009 (O&M) -3- 30.10.2008 and thereby counter-claim preferred by defendant No.1 has been dismissed. Feeling aggrieved, defendants have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Since it is undisputed that plaintiff was tenant in possession of the disputed property, he could not be dispossessed therefrom except in due course of law and consequently his suit to this extent has been rightly decreed. Counsel for the appellants has nothing to say about it. The dispute remains regarding counter-claim of defendant No.1. Regarding the same, it has to be adjudicated upon whether provisions of the Rent Act are applicable to the disputed property or not ? Provisions of the Rent Act are not applicable to a newly constructed building for five years. According to defendant No.1, sewerage connection for the disputed property was taken on 08.01.1999 and it is newly constructed building and, therefore, Rent Act was not applicable when the counter-claim was filed on 14.03.2001. Learned counsel for the appellants vehemently contended that defendant No.1 purchased the disputed property from Milkhi Ram vide sale deed dated 09.10.1998. Till then, this property was part of property No.125, but after its purchase by defendant No.1, the disputed property was assigned separate number i.e. No.125/1. It was contended that after purchase, defendant No.1 reconstructed the building and obtained sewerage connection on 08.01.1999 as proved by documentary evidence on record and, therefore, the trial court had rightly decreed the counter-claim of defendant No.1. Learned counsel for the appellants also referred to cross- examination of PW-1 Ravi Kant Sharma, who in his cross-examination, stated that the disputed property is a newly constructed shop. RSA No.2598 of 2009 (O&M) -4- Per contra learned counsel for respondent/plaintiff contended that mere obtaining of sewerage connection on 08.01.1999 would not depict that it was a newly constructed building. I have carefully considered the rival contentions. As submitted by counsel for the appellants himself, the disputed property was part of building No.125, but after this portion was purchased by defendant No.1, it was assigned separate No.125/1. For this reason, defendant No.1 obtained separate sewerage connection for this portion on 08.01.1999. Mere obtaining of said separate sewerage connection is not sufficient to conclude that it was a newly constructed building. On the contrary, defendant No.1 had purchased constructed room measuring 9 feet X 20 feet vide sale deed dated 09.10.1998. There is practically no evidence to depict that thereafter defendant No.1 demolished the existing construction and raised new construction. Obtaining of sewerage connection on 08.01.1999 would not depict that it was a newly constructed building. On the contrary, necessity for separate sewerage connection for this property arose because earlier it was part of property No.125 and, therefore, separate sewerage connection was not required. But when this property was purchased by defendant No.1, it became separate from the remaining property bearing No.125 and, therefore, defendant No.1 had to obtain separate sewerage connection for this property. As regards casual statement of PW-1 Ravi Kant Sharma in cross- examination that the shop of Rajesh is newly constructed shop, the same would not depict that it was constructed within five years preceding the filing of the counter-claim. No question was put to him as to when the shop was constructed or when its construction was completed. The expression 'newly RSA No.2598 of 2009 (O&M) -5- constructed shop' is a very vague expression. Aforesaid cross-examination of Ravi Kant Sharma, PW-1 was recorded on 08.10.2005 i.e. six years nine months after defendant No.1 had obtained sewerage connection. Consequently from the aforesaid casual statement of Ravi Kant Sharma, it cannot be said that the disputed shop had been constructed within five years preceding the filing of counter claim on 14.03.2001. Moreover, aforesaid casual admission of Ravi Kant Sharma is neither binding on the plaintiff nor it is conclusive regarding the fact to be proved. For the reasons aforesaid, finding recorded by the lower appellate court that the disputed property is not proved to be newly constructed property i.e. constructed within five years preceding the filing of the counter-claim, and, is, therefore, not exempted from the provisions of the Rent Act, cannot be said to be perverse or illegal nor it is based on misreading or mis-appreciation of the evidence. Consequently, the said finding does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly, the appeal is dismissed, being devoid of merit. (L. N. MITTAL) JUDGE 2nd May, 2011 'raj'