IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Regular Second Appeal No. 3076 of 2007 Date of decision: 11.3.2008 Ashwani Kesar --- Appellant Versus Baldev Raj and others --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Premjit Kalia, Advocate for the appellant. --- AJAY KUMAR MITTAL, J. This is plaintiff’s second appeal whose suit for permanent injunction was decreed by the courts below but the finding regarding rate of rent of the property in dispute recorded by the first appellate court has given him a cause of grievance. The suit of the plaintiff-Ashwani was decreed by the trial court vide judgment and decree dated 24.10.2005. Appeal preferred by the defendants was partly allowed vide judgment and decree dated 23.10.2006 whereby, though the decree for permanent injunction passed by the trial court was upheld but a finding was recorded by the first appellate court that it did not stand proved on record that the rate of rent of the property in dispute was Rs. 250/- per month. The facts of the case are that the plaintiff filed a suit for permanent injunction on the averments that he was in possession of a RSA 3076 of 2007 shop bearing M.C. No. 4/188, situated at Tarn Taran, District Amritsar, as tenant which he had taken on rent from defendant No.1 in the year 1998 and he had been regularly paying the rent at the rate of Rs. 250/- per month. The tenancy was oral and as such defendant No.1 did not give any receipt of the rent received from the plaintiff. Apprehending threat of dispossession at the instance of the defendants, the plaintiff prayed for decree for permanent injunction restraining the defendants from interfering and dispossessing him from his peaceful possession as tenant of the shop in question. The defendants denied that any kind of threat was extended to the plaintiff to dispossess him from the shop in dispute. Relationship of landlord and tenant between the parties was not disputed. It was, however stated that the plaintiff has never paid rent of the shop in dispute to the answering defendant No.1. It was specifically denied that the rate of rent of the shop in question was Rs. 250/- per month and it was rather stated that the rent of the shop was Rs. 1100/- per month. Suit was tried on various issues framed in the suit. The trial court on appreciation of the oral as well as the documentary evidence available on record returned a finding that admittedly the plaintiff was in possession of the shop in question and even if the plaintiff had not paid the rent, he was entitled to protect his possession against forcible and illegal interference by the defendants who can take possession of the property by resorting to the remedies recognized by law. On the basis of these findings, the suit for permanent injunction was decreed. Appeal, as noticed above, was also dismissed and the present appeal has been filed by the plaintiff challenging an observation of the first appellate court 2 RSA 3076 of 2007 regarding rate of rent of the property in dispute which has been noticed above. I have heard learned counsel for the appellant and have perused the record. Learned counsel for the appellant argued that though the trial court held in specific terms that the plaintiff was in possession of the shop in question as a tenant under defendant No.1 at the rate of Rs. 250/- per month, but the first appellate court which otherwise concurred with the findings of the trial court on other aspects, had wrongly observed that the plaintiff had failed to establish the rate of rent to be Rs. 250/- per month. The submission of the counsel has no merit. Firstly, it may be noticed that the plaintiff-appellant had filed a suit for permanent injunction, wherein the court is only required to give a finding, whether the party seeking injunction is in legal and authorized possession of the property or not. What was the rate of rent of such property, is a question ancillary to the primary question that the court is required to determine while adjudicating the controversy, whether the plaintiff before it, is entitled to the injunction prayed for or not. Notwithstanding the above, in so far as the contention of the learned counsel for the appellant is concerned, suffice it to say that in any case, the onus to prove the rate of rent, was on the plaintiff and no cogent and convincing evidence has been led by the plaintiff in support of the plea that the rate of rent of the property in question was Rs. 250/- per month. The finding of the trial court in this regard was based on conjectures and has been rightly reversed by the first appellate court which has itself observed that the controversy qua the rate of rent is not 3 RSA 3076 of 2007 to be adjudicated in the injunction suit simplicitor and it has to be decided before appropriate forum and not in the present suit. The observations of the first appellate court which have impelled the plaintiff to appeal to this Court thereagainst can be noticed with advantage here: “Otherwise also, as alleged by the respondent/plaintiff, he has failed to establish the rate of rent to be Rs. 250/- p.m. There is sole statement of the respondent/plaintiff to that effect. Even though, PW2 Raman Kumar has been examined to substantiate the plea of rate of rent to be Rs. 250/- but however, it is significant to note that the said witness, while facing cross-examination has very specifically stated that he has not witnessed any payment by the plaintiff to the defendant but he has watched the same while sitting in his shop. Even otherwise, his testimony, qua the payment of rent by Ashwani Kesar to Baldev Raj, in his presence is contrary to the testimony of the plaintiff, himself, as the plaintiff while facing cross-examination, has admitted that no other person used to be present, when he had been paying the rent of the disputed shop, to the defendant. Even though DW-3 Dalbir Singh, Clerk, Municipal Committee, Tarn Taran, has been examined, who proved the assessment record, but however, it is significant to note that the said witness, in his cross-examination, admitted that he has not brought the record pertaining to the notice having issued to Baldev Raj, before making the assessment, qua the shop in question. Rather, he further stated that the rate of rent to be Rs. 250/- 4 RSA 3076 of 2007 was written in the assessment record, at the instance of tenant Ashwani Kesar. In the light of such evidence, it does not stand proved that the rate of rent was Rs. 250/- p.m. In view of the same, the finding qua the issue No.1 relating to rate of rent, as given by the lower court, set aside.” In the light of the above, there is no illegality in the finding of the first appellate court as on the basis of evidence i.e. the oral evidence of two witnesses and the entries in the assessment register made on the basis of statement of the plaintiff, no finding could be recorded that the rate of rent of the property in dispute was Rs. 250/- per month. For what has been observed above, there is no merit in the appeal and the same is accordingly dismissed. (AJAY KUMAR MITTAL) March 11, 2008 JUDGE *RKMALIK* 5