RSA No.846 of 2010 (O & M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.846 of 2010 (O & M) Date of decision: 11.05.2010 Ram Chand and another ..Appellants Versus Nardev and another .. Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI a). Whether Reporters of Local Papers may be allowed to see the judgment ? b). To be referred to the Reporters or not ? c). Whether the judgment should be reported in the Digest ? Present:- Mr.Sanjay Vij, Advocate for the appellants. Mr.Avnish Mittal, Advocate for the respondents. AJAY TEWARI J. (ORAL) This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondents for possession of the house in dispute. As narrated, the case of the respondents was that they were co-owners of the house in dispute. Earlier, since the respondent No.2 was a Government servant and was posted out of Ferozepur Jhirka, the respondent No.1 had on behalf of both the brothers, let out the property in dispute to the appellants. Thereafter, the respondent No.1 had filed an eviction petition under the Haryana Urban Rent Restriction Act against the appellants. The appellants resisted that petition by averring that in fact, there had been a partition between the two brothers and the portion in their occupation had come in exclusive ownership of the respondent No.2 and further that it was the respondent No.2, who had rented out the premises in dispute to the appellants. In these circumstances, they denied the relationship of landlord and tenant between the respondent No.1 and themselves. Their objection was upheld RSA No.846 of 2010 (O & M) ::2:: and the Court held that the respondent No.1 was not the landlord of the appellants. The petition was dismissed. The appeal filed by the respondent No.1 was also dismissed. It was further pleaded in the plaint that neither there was any partition between the two brothers nor had the respondent No.2 ever let out the premises to the appellants. Both the Courts below found as a fact that the appellants had not been able to prove either the partition or that respondent No.2 had let out the premises in dispute to them. Consequently, as mentioned above, the suit was decreed. The following questions have been proposed:- (i) Whether the civil court had the jurisdiction to entertain the present suit for possession when admittedly the property in dispute is situated within the municipal limits where Rent Act is applicable and the appellants being tenant could have been evicted only by filing the ejectment petition under the Rent Act ? (ii) Whether the earlier decision rendered between the parties by the Ld.Rent Controller and affirmed by the Ld. Lower Appellate Authority amounts res-judicata ? (iii) Whether a tenant can be termed as trespasser or licensee particularly when the tenancy is governed by the provisions of Rent Act ? (iv) Whether the judgments and the decrees passed by the courts below are perverse on account of misreading and misconstruing the oral as well as documentary evidence ? (v) Whether the authorities under the Rent Act have got the jurisdiction to determine the relationship of landlord and tenant ? It would be seen that question Nos.(i), (iii) and (v) are RSA No.846 of 2010 (O & M) ::3:: related questions. In this regard, it cannot be lost sight of that in the earlier petition, appellants had taken the specific stand on fact regarding the partition and letting out by respondent No.2. Had they been able to prove this, no doubt, the civil suit would have had to be dismissed on the ground of non-maintainability. It must be remembered that the present case was a civil suit filed after the dismissal of the eviction petition on a particular ground taken by the appellants. If the present suit only had been filed, the respondents would have to prove that the appellants were not tenants. In the earlier petition, it was the appellants, who not only pleaded tenancy but also the peculiar circumstances in which it was allegedly created viz. partition between the two respondents and thereafter specific letting out by respondent No.2 to them. Thus, in the instant suit onus was rightly placed on them to prove these assertions. In this regard, both the Courts below have found that the appellants led no evidence at all to prove the partition except over the bald statement of appellant No.2. Further, they failed to produce any rent-note, lease deed or receipt of payment of rent. Learned counsel has urged that one document Ex.D-85 has not been considered at all by the Courts below. With regard to this document, the same is an order of the District Consumer Forum. Apparently, the electricity connection of the portion of the premises in possession of the appellants was disconnected due to non-payment of dues. The appellants had filed that complaint against the respondents as well as the Haryana State Electricity Board protesting against that disconnection. In that case, the stand of the respondent No.2 (as borne out from Para 4 of the order Ex.D-85) was that he had given permission to the appellants to stay in the premises in dispute for a short while till they constructed their own house in the locality. As per learned counsel, this stand of the respondent No.2 is proof of the assertion that the respondent No.2 had inducted the appellants as tenants. In my RSA No.846 of 2010 (O & M) ::4:: opinion, this document by itself would not be sufficient to discharge the onus which was cast upon the appellants to prove tenancy. Thus, even if this document has not been referred to by the Courts below, it cannot be said that the finding of fact recorded by the Courts below is either based on no evidence or on such a perverted misreading of the evidence so as to be liable for interference under Section 100 CPC . Once questions No.(i), (iii) and (v) are decided against the appellants, questions No.(ii) and (iv) recede into the back ground. Consequently, the present appeal stands dismissed. No costs. Since the main case has been decided, the civil miscellaneous application, if any, shall stand disposed of accordingly. (AJAY TEWARI) JUDGE May 11, 2010 sukhpreet