IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.282 of 2001. Judgment Reserved on: 29.06.2011. Date of decision: 21.07.2011. Mehar Chand … …Appellant Versus Dharamvir Sethi … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.K.S. Kanwar, Advocate. For the Respondent: Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. This is the defendant’s appeal against the concurrent findings of the two Courts below decreeing the suit of the plaintiff for possession of the suit premises subject matter of the suit before the learned trial Court. 2. The plaintiff filed the suit on the basis of title claiming possession alleging that the defendant, appellant herein, was in illegal possession of the property since 1979 and being a trespasser is liable to be dispossessed from the disputed shop. The defence of the appellant herein was that he was a tenant in the 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 shop which was at one point of time jointly owned by two brothers; namely; Pritam Singh and Balwant Singh. In the litigation interse between the two sons, the shop was inherited by Balwant Singh on the basis of a will executed by their father. 3. The vital and important point for decision is as to whether the respondent was a tenant in the suit premises and if so he could only be evicted in accordance with the provisions of the H.P. Urban Rent Control Act. He had claimed tenancy in the disputed premises from 1977. While discarding his evidence, the learned trial Court holds that the defendant is not a truthful witness as when he was confronted with his statement Ex.PW-4/A which was made by him on oath in proceedings between the two brothers, he had denied portion of the statement as having not been stated by him in Court. In other words he was a person who was shifting his stand as would suit his need. 4. The learned Court also holds that Ex.PW-6/A is a rent note executed between Balwant Singh and one Faquir Chand Dhiman which note has been witnessed by the appellant himself on 8.5.1978. In these circumstances, the question of creation of tenancy in his favour as claimed did not arise. Decree, as prayed for, was granted. 5. The learned District Judge affirmed the findings that the appellant herein had not been inducted as a tenant. The undisputed facts are that in 3 the litigation between two brothers Pritam Singh and Balwant Singh, the property came to the ownership of Balwant Singh by way of testamentary succession. The sale deed executed in favour of the respondent herein (Ex.PW-1/A) was unchallenged and accepted. In that suit, the statement of the appellant herein (Ex.PW-4/A) was unequivocal that he had entered the shop premises as a tenant of Pritam Singh. The learned District Judge reiterates that the appellant is not speaking the truth as he questions the veracity of his evidence. 6. The defence of the appellant was three receipts Ex.D-1, dated 2.5.1977, Ex.D-2, dated 4.1.1988 and Ex.D-3, dated 3.5.1987, purportedly issued by Balwant Singh. The learned Court holds that the signatures of Balwant Singh on these receipts are shrouded by suspicious circumstances as the receipts have been executed in a devious manner. For instance, on Ex.D-2, the signatures are on the bottom and the revenue stamp has been affixed somewhere in the middle. This receipt was issued by Balwant Singh on 4.1.1988 when there was a dispute pending interse between Balwant Singh and Pritam Singh and at that time there was no occasion for Balwant Singh to induct the appellant as a tenant. The suit was partly dismissed and the judgment and decree of the Court below was affirmed. 7. This appeal was admitted on 4.10.2001 on the following two substantial questions of law:- 4 “1. Whether learned District Judge in the facts and circumstances of the case has misconstrued, misinterpreted and misapplied Ext.P6 Judgment dated 6.8.1983, Ext.P8 District Judge Judgment dated 2.9.1986 and Ext.P11 High Court Judgment dated 24.12.1986 as well as Ext.PW4/A statement dated 16.12.1980, rent receipts Ext.D1 to Ext.D9? 2. Whether learned District Judge in the facts and circumstances of the case has committed an error of law in decreeing the suit of the plaintiff for use and occupation charges till the vacation of the premises by the defendant even tough learned Sub Judge in the judgment dated 9.11.1994 had decreed the suit of the plaintiff for use and occupation charges at the rate of Rs.1000/- per month with effect from 1.12.1985 to 31.10.1988 only and the plaintiff accepted the judgment and did not file any appeal or cross objections against the judgment dated 9.11.1994?” Question No.1: 8. Adverting to the first question, it is only a reiteration of what has been stated before the Courts below and urged before them. Two hurdles stand in the way of the appellant herein, firstly both the Courts have disbelieved his evidence and rightly so on the ground that his statement is not worthy of credence as 5 he disowned even the previous statement which has been made by him in the suit between the two co-owners. He then says that he does not remember having made some portion of the statement. This conduct cannot but be deprecated because a statement made in the Court of law on oath cannot be retracted. This is a clear manipulation of the judicial system. Consequently, there is no explanation whatsoever on the record as to why he had witnessed rent note Ex.PW-6/A admittedly on 8.5.1978 which has been signed by him. This totally negatives his plea so far as his case for tenancy from 1977 is concerned. These are findings of fact as affirmed by the learned trial Court. Three receipts Ex.D-1, Ex.D-2 and Ex.D-3 are incompatible and cannot survive independently of Ex.PW-6/A, which is a rent note, proved on record signed by him as a witness. The learned Courts below have discarded these receipts as being suspicious. Ex.D-1 is supposed to be issued on 2.5.1977 and in these circumstances it is not clear as to how Ex.PW-6/A creates a fresh tenancy which was witnessed by him in 1978. On Ex.D-2, the Court says that the receipts are forged and fabricated. Ex.D-2 has also been discarded as being a fabricated document and Ex.D-3 rent receipt dealing with the period January, 1987 to April, 1987 when both the brothers were litigating and there was no occasion for Balwant Singh to issue it. I concur with the findings of the two Courts below. I do not find any error in the 6 appreciation of the evidence. This question is, therefore, decided against the appellant. Question No.2: 9. Adverting now to the second question where it is urged by the learned counsel that the award of mesne profits for use and occupation of the premises, the grievance of the appellant herein is that the learned appellate Court was in error in awarding such charges till the appellant vacated the premises. Learned counsel urges that once the relief granted by learned trial Court to the plaintiff had not been challenged, where was the occasion to have granted the charges up to the date of vacation. 10. I do not find any illegality in the judgment of the learned District Judge as there are ample powers vested under Order 41 Rule 33 to grant relief in appeal, even though it may not have been claimed. In any event, I cannot but better quote the Supreme Court judgment in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd., (2005)1 SCC 705, holding:- “4. Ordinarily this Court does not interfere with discretionary orders, more so when they are of interim nature, passed by the High Court or subordinate Courts/Tribunals. However, this appeal raises an issue of frequent recurrence and, therefore, we have heard the learned counsel for the parties at length. Landlord-tenant litigation constitutes a large chunk of litigation pending in the Courts and Tribunals. The 7 litigation goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises. If the plea raised by the learned senior counsel for the respondent was to be accepted, the tenant, in spite of having lost at the end, does not loose anything and rather stands to gain as he has enjoyed the use and occupation of the premises, earned as well a lot from the premises if they are non-residential in nature and all that he is held liable to pay is damages for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally insignificant.” (p-711) 11. Though in this case it is not the tenant who is litigating, but as a trespasser, there is no reason as to why he should not be burdened with costs for the period he has been in unauthorized occupation without any right. This question is also decided against the appellant. 12. There is, thus, no merit in this appeal which is accordingly dismissed. All the interim orders are vacated. All the miscellaneous applications are disposed of. July 21, 2011. (Dev Darshan Sud) (aks) Judge.