R.S.A.No. 3132 of 2009(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3132 of 2009(O&M) Date of Decision:August 26, 2009 Palwinder Singh ---Appellant versus Ajit Singh ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Ms.Ravinder Kaur Manaise,Advocate, Mr. G.S.Sandhu, Advocate, for the appellant *** SABINA J. Plaintiff – Ajit Singh had filed a suit for possession. Civil Judge ( Junior Division), Nakodar vide judgment and decree dated 26.10.2006 decreed the suit of the plaintiff. Aggrieved by the same, defendant preferred an appeal and the same was dismissed by Additional District Judge, Jalandhar vide judgment and decree dated 2.2.2009. Hence, the present appeal by the defendant. The facts of the case as noticed by the learned Additional R.S.A.No. 3132 of 2009(O&M) {2} District Judge, in paras 2 and 3 of its judgment read as under:- “The plaintiff filed a suit for possession of shop by way of ejectment of the defendant and for recovery of Rs, 58,500/- as arrears of rent @ Rs. 1500/- per month w.e.f. 01.03. 1999 till upto date, of the above said shop against the defendant by alleging that shop in dispute shown red in the site plan is situated in the abadi of Patti Akalpur, Malsian, is owned by the plaintiff by virtue of registered sale deed dated 09.02.1967 and exchange deed dated 01.07.1967. On 01.07.1998 the defendant took the shop in dispute on rent orally at the rate of Rs. 1500/- per month from the plaintiff and eleven months and the possession of the shop in dispute was given to the defendant on the same day as a tenant under the plaintiff. The defendant agreed to vacate the shop in dispute and handed over the possession of the vacant shop to the plaintiff after expiry of 11 months. The defendant furtherer agreed to pay the rent of the shop in dispute @ Rs. 1500/- per month every month on the first day of the month succeeding to the month for which the rent became due. The defendant had paid the rent of the shop in dispute to the plaintiff on the stipulated date upto 01.02.1999. The defendant did not vacate the shop in dispute after the period of 11 months and did not hand over the possession of the shop in dispute to the plaintiff but continued to occupy the same and has become a statutory tenant under the plaintiff. The defendant paid the rent of the shop in dispute to R.S.A.No. 3132 of 2009(O&M) {3} the plaintiff upto February 1999 and thereafter since 01.03.1999 he has not paid the rent and is in arrears of rent from 01.03,1999 till upto date @ Rs. 1500/- per month. The plaintiff requires the shop in dispute for his own use and occupation and notice terminating the tenancy of the defendant was issued to him on 02.05.2002 which was received by the defendant. By said notice, the. tenancy of the defendant was terminated from the end of the month of May 2002 and he was asked to vacate the shop and hand over its possession to the plaintiff and he was further asked to pay arrears of rent to the plaintiff on the expiry of the said date but in spite of that notice, the defendant has not vacated the shop nor has paid the arrears of rent to the plaintiff. The plaintiff wants the shop in dispute for own use and occupation but the defendant is not handing over its possession to the plaintiff and also not paying the arrears of rent. Hence the suit was filed. 3. Defendant appeared and filed written statement by taking preliminary objections that there exists no relationship of landlord and tenant between the plaintiff and defendant; that the property in dispute has not been properly described; that the plaintiff has no cause of action and locus standi to file the present suit against the defendant; that the plaintiff and defendant stand on the same footing. Both parties have constructed shop on the land of Mushtarka Malkaan. Further pleaded that the plaintiff is not at all owner nor in possession of the suit property; that the plaintiff has no legal right to claim R.S.A.No. 3132 of 2009(O&M) {4} possession of the shop is dispute nor any recovery of arrears as alleged; that the suit is not maintainable in the present form. On merit, it has been pleaded that the site plan and description of the property as given in the plaint and shown in the site plan is wring. The shop in dispute is not situated in the Abadi or Akalpur Patti Malsian, rather it is situated in Patti Malsian just adjacent to Akalpur Patti in Khasra N o. 128 and bearing K/K No. 525/617. This khasra number is measuring 14 kanal 16 marlas. The same is the property of Mushtarka Malkan and was originally a Chappar. The shop in dispute is situated inside Khasra No. 128 and is touching the road bearing Khasra No. 156. the sale deed and exchange deed are wrong. The property of Mushtarka Malkan cannot be sold or exchanged. Unauthorised shops have been constructed by the plaintiff and others and so also the defendant has constructed the shop in dispute and is in possession of the same for the last six years. Rest of the allegations have been denied and prayer for dismissal of the suit was made.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiff is entitled to the suit for possession as prayed for? OPP (2)Whether the plaintiff is entitled to the suit for recovery of Rs. 58,500/- as prayed for ? OPP (3)Whether there exists no relationship of landlord and tenant between the plaintiff and defendant? OPD R.S.A.No. 3132 of 2009(O&M) {5} (4)Whether the property in dispute has not been properly described? OPD (5)Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD (6)Whether the plaintiff is not coming to the court with clean hands? OPD (7)Whether the plaintiff is estopped to file the present suit by his acts and conducts? OPD (8)Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is liable to be dismissed. Plaintiff had filed a suit for possession of the shop in dispute. Plaintiff proved his ownership over the property in dispute on the basis of the sale deed dated 9.2.1967 and exchange deed dated 1.7.1967. It has been observed by the trial court in its judgment that the attorney of defendant had admitted the boundaries of property in dispute and the fact that the plaintiff has owned no other shop except the shop in question. PW-- 4 Swaran Singh proved that the electric connection installed in the shop in dispute was in the name of plaintiff-Ajit Singh, PW-3 -Charanjit Singh deposed that earlier he was a tenant in the shop in dispute owned by the plaintiff. Plaintiff also proved the copy of the registered notice (Ex. P-2) which was served upon the defendant regarding the termination of tenancy as well as the recovery of arrears of rent. Appellant-defendant, on the other hand had failed to rebut the said evidence led by the plaintiff and substantiate his plea that in fact he had constructed the shop in dispute. The finding of fact arrived at by the courts below does not calls for any R.S.A.No. 3132 of 2009(O&M) {6} interference by this Court in this appeal. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 26, 2009 PARAMJIT