R.S.A NO. 2307 OF 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A NO. 2307 OF 2006 DECIDED ON : 10.09.2009 Tarlok Singh ...Appellant versus Punjab Wakf Board ...Respondent CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. Puneet Bali, Advocate, for the appellant. Mr. Dinesh Goyal, Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the First Appellate Court, whereby suit for ejectment of the defendant from the property consisting of 5 rooms, one kitchen, two baths, one toilet along with stairs and sitting lounge and poultry shed was decreed. It is the case of the plaintiff that the property underneath the suit property is a Gair Mumkin Public Muslim Graveyard. The plot measuring 950 square yards forming part of land bearing Khasra No.1780 min 5 kanals 15 marlas was allotted R.S.A NO. 2307 OF 2006 -2- to the defendant vide letter dated 16.01.1990 and leased to the defendant @ Rs.250/- per month vide Rent Note dated 16.02.1990 commencing from 01.01.1990. The defendant has not paid or tendered the arrears of rent w.e.f 01.03.1992 and the tenancy stands terminated vide notice dated 14.02.1995 under Section 106 of the Transfer of Property Act, 1887. Therefore, the plaintiff is entitled to possession and also arrears of rent amounting to Rs.11,750/-. In the written statement, the defendant denied the ownership of the plaintiff and also asserted that the property in dispute is situated in Khasra No. 1781. The defendant, however, admitted that he applied for allotment of plot on or about 16.02.1990 and paid a sum of Rs.20,500/- against different receipts dated 16.02.1990. However, it was asserted that the plaintiff never delivered the possession of the property to the defendant but infact delivered the same to one Rachhpal Singh and Sharanjit Kaur. The notice was served to seek possession from the plaintiff but still the possession was not delivered, therefore, the plaintiff's suit is not maintainable. The plaintiff has produced documents Exhibit P-5 to P- 11 to prove the allotment of the property to the defendant. Exhibit P-10 is the letter of allotment, allotting the land @ Rs.250/- per month from 01.01.1990. Exhibit P-11 Rent Note shows that the defendant has taken possession of the aforesaid premises. Exhibit P-6 is the affidavit of defendant that he will R.S.A NO. 2307 OF 2006 -3- take possession in due course of law and even if he is not able to get the possession, he will not claim any refund from the plaintiff. The defendant has also produced affidavit of Avtar Singh Exhibit PW5/1 to the effect that he has received the consideration of superstructure from the defendant raised by him on the plot comprising Khasra No. 1780 and has delivered the possession of the said plot to Tarlok Singh. He has given 'no objection' in the aforesaid affidavit for leasing the said plot to Tarlok Singh. In view of said evidence, the suit was decreed and the appeal dismissed. Learned counsel for the appellant has vehemently argued that the Local Commissioner was appointed to demarcate plot No.1780. The said report was to the effect that the appellant is in possession of Khasra No.1781. The said report has been rejected by the Courts below on the basis of revenue record which was found to be not disputed by the appellant. It is also argued that the First Appellate Court has held that onus of proof that the plaintiff is owner of plot No. 1781, has been placed on the appellant which is not permissible in law. I have heard learned counsel for the parties at some length but do not find any illegality or irregularity in the judgment and decree passed by the Courts below. Prior to the appellant being inducted as a tenant, one Avtar Singh was in possession under the plaintiff. He has given an affidavit Exhibit PW-5/1 to the effect that he has no objection R.S.A NO. 2307 OF 2006 -4- if the premises are leased to the appellant and also he has received consideration for the superstructure constructed by him. Exhibit P-11 shows that the possession was delivered to the appellant. The documents Exhibit P-5 to P-10 shows that the deposit of Rs.20,500/- was at the request of the appellant for allotment of the said plot. Therefore, the identity of the plot and the fact that the possession was delivered to the appellant, is beyond any dispute. With a view to avoid the decree for possession, the appellant has sought to raise an issue of being in possession of Khasra No.1781. Such a plea is to divert the claim of the plaintiff in respect of plot in dispute. Similarly, the finding of learned First Appellate Court is in the context of the stand of the defendant that he is in possession of Khasra No.1781. Since the defendant is claiming possession over Khasra No.1781, it was for the defendant alone to prove his possession over the said plot. Both the Courts have discussed the entire evidence and returned a finding of fact that the appellant was inducted as a tenant by the plaintiff and that the plaintiff is entitled to seek possession from the defendant. Such finding of fact is sought to be disputed in the second appeal by appreciation of evidence. Consequently, I do not find any patent illegality or irregularity in the judgment and decree passed by the Courts below, which may give rise to any substantial question of law arises for consideration by this Court. R.S.A NO. 2307 OF 2006 -5- Dismissed. September 10, 2009 (HEMANT GUPTA) shalini JUDGE