RSA No.3735 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3735 of 2008 (O&M) Date of decision : 20-1-2009 Anchal Kumar and others ....Appellants VERSUS Punjab Wakf Board ....Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Diwan S. Adlakha, Advocate, for the appellants. RAKESH KUMAR GARG J. C.M.A. No.11130-C of 2008 This is an application for condonation of delay of 92 days in refiling the appeal. For the reasons mentioned in the application, the delay of 92 days in refiling the appeal is condoned. RSA No.3735 of 2008 This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff – Punjab Wakf Board has been decreed and the plaintiff-respondent has been held entitled for possession of the demised premises and the defendants have been directed to hand over the vacant possession of the property within 2 months and further the plaintiff-respondent has been held entitled to RSA No.3735 of 2008 (O&M) -2- Rs.1000/- per month as mesne profit. It is the case of the plaintiff-respondent that it is owner of the piece of land in dispute comprised in Khasra No.26, situated within the revenue estate of Farakpur, Jagadhri road, Yamuna Nagar. A piece of land measuring 600 sq. yards comprised in the aforesaid Khasra No.26 was given on lease to late Banarsi Dass at the rate of Rs.12/- per month on January 1, 1973. As per the agreement between the parties, the defendants No.1 to 3 agreed that they will not raise any construction on the property without approval of the Board and they will not sublet or transfer the possession of any part of the property. On the basis of the agreement, the defendants No.1 to 3 are in possession of the property in dispute but they failed to make the payment of rent after January, 1992 and at present, the rent from 1-3-1992 to 31-7-2001 is due against the defendants and they have also raised construction without seeking approval of the Board in violation of the terms and conditions of the agreement. It has been further averred that the Punjab Wakf Board/plaintiff then determined the lessee rights by issuing a notice under Section 106 of the Transfer of Property Act on August 7, 2001. The notice was duly served upon the appellants on August 14, 2001 but they did not vacate the premises or pay the outstanding rent. The Board then sought possession of the property and damages to the tune of Rs.2000/- per month for illegal use and occupation of the premises after determination of the lessee rights. It is the case of the appellants/defendants that the land comprised in Khasra No.26 concededly vests in the Punjab Wakf Board. However, the disputed piece of land was leased out to late Banarsi Dass @Rs.12/- per month in the year 1947 and not in the year 1973 as has been alleged by the plaintiff. It was further stated that the construction was RSA No.3735 of 2008 (O&M) -3- raised at the spot with the consent of the Punjab Wakf Board. The Estate Officer had conceded to their request to raise construction a few years ago and as such the Punjab Wakf Board is estopped from seeking their eviction on that ground. They have already spent a sum of Rs.5,00,000/- on the construction. It was further stated on behalf of the appellants/defendants that they have regularly paid the rent to the Board. They are still ready and willing to pay the entire outstanding lease amount. They had in fact tendered the outstanding amount of Rs.1344/- along with interest in the court. They have further stated that they have not sublet the property to any person. After considering the evidence on record and hearing the learned counsel for the parties, the trial Court decreed the suit. Feeling aggrieved therefrom the judgment and decree of the trial Court, the defendants filed an appeal which was also dismissed by the District Judge, Yamuna Nagar vide impugned judgment and decree dated 4-4-2008. While dismissing the appeal, the Lower Appellate Court held that from the pleadings and the evidence of the parties, it is established on record that the property in question was under the possession of the appellants from January 1, 1973 and the tenancy rights were determined in the month of August, 2001 vide notice Ex.P-5 and the appellants are liable to hand over the possession of the property to the respondent. Still not satisfied, the defendants have filed the instant appeal challenging the judgment and decrees of the Courts below. The learned counsel for the appellants has vehemently argued that it has been proved on record that the property in question was taken on rent in the year 1947 @Rs.12 per month by the appellants and since then they have been regularly paying the rent of lease amount but the respondent is intentionally avoiding to receive the rent and therefore it RSA No.3735 of 2008 (O&M) -4- cannot be said that appellants did not pay the rent and violated the terms and conditions of the lease. It has been further argued by the learned counsel that the Courts below have failed to appreciate the facts of the case properly and has decided issue No.1 erroneously in favour of the plaintiff-respondent. It is submitted that the construction was raised by the appellants over the suit property with the permission/consent of the Estate Office of the Board/respondent and the same was in his knowledge. It is also pertinent to mention here that Estate Officer of the Board had duly inspected the spot and the appellants were duly allowed to raise the construction. As such the appellants with due consent of the Board, spent Rs.5 lacs on the construction and now at this stage the respondent Board cannot be allowed to get the land vacated on the ground of raising the construction over the land in question. It is further argued that the Ld. Courts below have further gravely erred in awarding Rs.1000/- per month as mesne profit for wrongful use and occupation of the suit land without any basis. It is submitted that there is no evidence on record to substantiate the existing right of rent of such property, hence, awarding of Rs.1000/- per month as mesne profit is highly excessive. On the basis of the aforesaid arguments, the learned counsel has stated that the following substantial questions of law arises in this appeal:- 1. Whether the courts below have misread the evidence adduced by the appellants? 2. Whether the Ld. Lower Court was justified in awarding the use and occupation charges @Rs.1000/- per month in the absence of any legal evidence on the record? RSA No.3735 of 2008 (O&M) -5- Lastly the learned counsel has prayed that appeal be accepted and suit of the plaintiff-respondent be dismissed. I have heard the learned counsel for the appellants and perused the record of the case. In nutshell, the Board has sought the possession of the property along with damages for the unauthorized use and occupation of the property after determination of the lease rights @Rs.2000/- per month. On the other hand, the appellants' case is that no violation was ever made by them and the Board is not legally entitled to seek possession of the premises in question. Undisputedly the land in dispute is a part of khasra No.26, situated within the revenue estate of Farakpur, Jagadhri Road, Yamuna Nagar which vests in the Punjab Wakf Board. It is also a conceded fact that the Punjab Wakf Board leased out the property to late Sh. Banarsi Dass @Rs.12 per month although the Board insists that it was leased out on January 1, 1973 whereas the appellants have maintained that it was leased out in the year 1947. A notice under Section 106 of the Transfer of Property Act was duly issued and served upon the appellants in the month of August, 2001 and the lease rights were determined. Copy of the legal notice issued under Section 106 of the Transfer of Property Act is Ex.P-5 on the record and postal receipt is Ex.P-6. The acknowledgement in respect of the delivery of the notice is Ex.P-7. Thus from the evidence on record, it is established that property in question was under the possession of the appellants from January 1, 1973 which was leased out @Rs.12 per month. However the tenancy rights were determined in the month of August 2001 and the appellants are liable to hand over the possession of the property to the plaintiff-respondent. No fault can be found with the aforesaid findings of the Courts below. In fact contention of the appellants before the Lower Appellate Court was that since the appellants have raised RSA No.3735 of 2008 (O&M) -6- construction upon the tenanted premises by investing a huge amount with the consent of the plaintiff-respondent. The tenancy of the defendants/appellants could not be legally terminated and the plaintiff- respondent was not entitled to the damages as claimed in the plaint. However the aforesaid contention of the appellants was rightly rejected by the trial Court as there is no evidence on record to prove that the plaintiff- respondent has given its consent to the appellants before raising construction on the area under lease with them. Sh. Mohammad Yakub Sirolvi while appearing as PW-1 has testified that after the determination of the tenancy, the appellants are liable to pay damages to the tune of Rs.2000/- per month for unauthorized use and occupation of the property. The statement of the PW-1 was not assailed by the appellants as he was not cross-examined by the appellants on this point. Sh. Raj Kumar DW-1 has not deposed even a single word about the quantum of mesne profit after determination of the lease rights. In fact, the appellants have neither pleaded nor led any evidence about the quantum of the damages to which the Board may be entitled to after determination of the lease rights. Thus, on the basis of the evidence on record, the Courts below assessed the damages @Rs.1000/- per month for illegal use and occupation of the property in dispute. The finding of the trial Court in this regard reads as under:- "Since, there is no evidence on record to substantiate the existing right of rent of such property, in the similar area, except for the self serving statement of the Estate Officer, Punjab Wakf Board has not bothered to examine any other tenant from the some locality. However, keeping in view the existing market value of the building, prevalent in town of Jagadhri, the Punjab Wakf Board is entitled for Rs.1,000/- RSA No.3735 of 2008 (O&M) -7- per month, for illegal use and occupation of the suit land." Thus no fault can be found with the finding of fact as recorded above. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) 20-1-2009 JUDGE manju