RSA No.156 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.156 of 2010(O&M) Date of decision: 19.1.2010 Badrinath ......Appellant(s) Versus Gaushala Trust Society ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sagar Deswal, Advocate for the appellant. Rakesh Kumar Garg, J.(Oral) CM No.467-C of 2010 For the reasons mentioned in the application, delay of 24 days in filing this appeal is condoned. CM stands disposed of. CM No.468-C of 2010 For the reasons mentioned in the application, delay of 124 days in refiling this appeal is condoned. CM stands disposed of. CM No.469-C of 2010 CM is allowed. The applicant is permitted to make good the deficiency in Court fee. RSA No.156 of 2010 This is defendant's regular second appeal challenging the judgment and decrees of the Courts below whereby the plaintiff's suit for possession by way of ejectment and recovery of rent has been decreed with costs. As per averments made in the suit, the plaintiff-respondent filed a suit for ejectment of the appellant from the property in dispute i.e. shop bearing No.56 forming part of a big building situated at Gaushala RSA No.156 of 2010(O&M) 2 Spatu Road, Ambala City along with other property. It was further alleged that the appellant was a tenant at a monthly rent of Rs.230/- per month and the tenancy was monthly and commencing from 1st of each calendar month. A rent note was executed by the defendant-appellant in favour of the plaintiff-respondent. He stopped paying rent from April, 1999 and a sum of Rs.8,280/- was due from him on account of arrears of rent which he failed to pay. Thereafter, a notice dated 9.8.2002 under Section 106 of the Transfer of Property Act (for short the “Act”) terminating the tenancy of the appellant was served upon him and he was asked to hand over the vacant possession of the shop in dispute. Hence, this suit. Upon notice, the defendant-appellant appeared and filed written statement raising various preliminary objections. Ownership of the plaintiff-respondent was denied. It was further submitted by him that the plaintiff-respondent had filed a petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, which is pending. On merits, it was stated that defendant-appellant was not a tenant under the plaintiff- respondent and the rent note, if any, was a forged document. The relationship of landlord and tenant between the parties was denied. Receipt of notice regarding termination of tenancy was admitted. It was further submitted that in view of the pendency of petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, the suit was not maintainable. Thus, denying the other allegations, dismissal of the suit was prayed for. The plaintiff-respondent filed replication denying the averments made in the written statement and reiterating those of the plaint. It was further submitted that the defendant was estopped by his own act and conduct to raise any plea of title between the parties. It was further submitted that in the reply filed to the petition under Section 13 of the RSA No.156 of 2010(O&M) 3 Haryana Urban (Control of Rent and Eviction) Act, the defendant-appellant had taken a plea of jurisdiction of the Authorities under the Rent Act, the building being newly constructed and had admitted the relationship of landlord and tenant between the parties. On appreciation of the evidence and hearing learned counsel for the parties, the trial Court held that there was relationship of landlord and tenant between the parties. It was further held that tenancy was terminated validly. It was further held that the plaintiff-respondent was entitled to recover a sum of Rs.8,280/- along with interest at the rate of 6% per annum and the suit of the plaintiff-respondent was decreed with costs and pendente lite and future interest at the rate of 6% per annum and mesne profits at the rate of Rs.230/- per month till its vacation were also granted. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the appellant filed an appeal. It may be relevant to mention at this stage that when the case was posted for orders after arguments were heard by the Lower Appellate Court, the appellant had filed an application for additional evidence to place on record certain documents of title and also allowing him to appear as his own witness to prove that there was no relationship of landlord and tenant between the parties. However, the said application was dismissed by the Lower Appellate Court along with appeal holding that the application does not fulfill the ingredients of Order 41 Rule 27 of the Code of Civil Procedure and therefore, he cannot be permitted to lead additional evidence at the aforesaid stage vide impugned judgment and decree dated 10.4.2009. Still not satisfied, the defendant-appellant has filed the instant appeal challenging the aforesaid judgment and decrees of the Courts RSA No.156 of 2010(O&M) 4 below. Learned counsel for the appellant has vehemently argued that both the Courts below have erred in law and facts while deciding the relationship of landlord and tenant between the parties. Elaborating further, learned counsel for the appellant has argued that it has been proved on record that the appellant was not a tenant under the respondent but Thakur Dwara Nohria was the real and actual owner of the disputed shop and thus, the judgment and decree of the Courts below are liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial question of law arises in this appeal:- “Whether the relationship of landlord and tenant exists between the parties?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. In support of his argument, learned counsel for the appellant has argued that the plaintiff-respondent has failed to prove the fact that there exists relationship of landlord and tenant between the parties. It is useful to refer to the observations of the Lower Appellate Court which read as follows:- “In the entire written statement, there was no denial of relationship between the parties. It being not disputed what building was exempt from operation of Rent Act being newly constructed and relationship being not denied, the remedy was only to seek possession under the appropriate laws. Thus, plaintiff served notice for termination of tenancy. Notice has been proved as RSA No.156 of 2010(O&M) 5 Ex.P-3, postal receipt as Ex.P-4 and acknowledgment as Ex.P-5. Not only that in the written statement filed by defendant/appellant in para 4 of written statement on merits, defendant/appellant admitted the issuance of notice and in para 5 on merits admitted receipt of notice, only questioning its validity on the point of plaintiff being not the owner. Thus, besides the fact that notice Ex.P-3 was specifically served terminating tenancy, even receipt of notice has been admitted by defendant in the written statement itself, thus, no proof was required to prove issuance of notice terminating tenancy of the defendant/appellant. Perusal of notice Ex.P-3 shows that defendant/tenant was given clear fifteen days notice for termination of tenancy from the date of its receipt. Even otherwise, the said facts have not been challenged. Rent note has been placed on file as Ex.P1 and a separate agreement containing clause for enhancement of rent as Ex.P-2. Sham Bihari, the scribe of rent note, has been examined as PW-1. Rent note was executed by defendant in favour of plaintiff. There is not given a word of suggestion to PW-1 Sham Bihari, the scribe of rent note, that rent note Ex.P-1 and enhancement agreement Ex.P-2 do not contain signatures of the defendant/appellant. Even Vijay Kumar appearing as PW-2, through whom suit was filed, tendered his affidavit Ex.PW-2/A as his examination-in-chief and specifically deposed about defendants having been let RSA No.156 of 2010(O&M) 6 out the shop at the rent of Rs.230/- per month vide rent note. The entire cross-examination was only aimed at ownership and there is not even a suggestion that the shop was not let out to defendant or that he did not execute rent note Ex.P-1 and enhancement agreement Ex.P-2. Thus, besides the fact that from the admission of defendant in the written statement filed in rent petition, copy Ex.P-7 admitted relationship and not questioning on rent note, copy Ex.P-1, to PW-1 Sham Bihari and there being not even a word of suggestion to PW-2 Vijay Kumar Goel and facts stated by him in examination-in- chief and the witness not cross-examined would certainly be an admission on the part of other party. Thus, the facts stated in examination-in-chief would be deemed to have been admitted by the other side. Relationship of landlord and tenant when no longer is dispute, the tenant could not challenge the title of his landlord on the principle of ‘once a tenant is always a tenant.” Section 116 of the Indian Evidence Act operates as estoppel against a tenant from challenging his ownership. Section 116 of the Indian Evidence Act is reproduced below: “116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy a title to such RSA No.156 of 2010(O&M) 7 immovable property; and no person who came upon any immovable property by the licence of the person in possession therefore, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.” There is another aspect that plaintiff filed an application under Order 11 Rule 1 of the Code of Civil Procedure for service of interrogatories upon defendant. The application was filed on 28.7.2004. After seeking reply, vide orders dated 16.3.2005, the plaintiff was allowed to serve interrogatories upon the defendant, which were served. Defendant did not reply interrogatories and in view of provisions contained in Order 11 Rule 21 of the Code of Civil Procedure, the consequences for non-submission of reply to interrogatories leads to striking of defence. Above all, defendant has not stepped into the witness-box in support of his stand to deny any allegation of plaintiff either with regard to rate of rent or with regard to mesne profits or with regard to termination of tenancy. Thus, viewing from any angle, there does not appear any illegality in the findings returned by learned trial Court on any of the issues. The same are, therefore, affirmed.” From the aforesaid observations of the Lower Appellate Court, it is clearly established that there is no dispute that there exists a relationship of landlord and tenant between the parties. In view of the fact RSA No.156 of 2010(O&M) 8 that the appellant has not disputed the rent note Ex.P-1 and the fact that in the written statement filed in the rent petition, relationship of landlord and tenant was admitted, the appellant is estopped from challenging the title of the respondent. Moreover, except tendering documents Ex.P1 to P-3, the appellant has not led any evidence in support of his case. Neither he nor any other witness appeared to support the pleadings of the appellant. Thus, the allegations of the plaintiff-respondent with regard to relationship of landlord and tenant remained unrebutted. Thus, I find no merit in the argument raised by the learned counsel for the appellant. The Courts below on appreciation of evidence have recorded a finding of fact that there exists a relationship of landlord and tenant between the parties. Learned counsel for the appellant was unable to controvert the aforesaid finding by pointing out any material from the impugned judgment and decrees. It is pertinent to mention here that no other point has been urged before this Court. No substantial question of law arises in this appeal. Dismissed. January 19, 2010 (RAKESH KUMAR GARG) ps JUDGE