RSA No.683 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.683 of 1987 Date of Decision: 28.01.2010 Surinder Kumar & Ors. ..Appellants Vs. Dhani Ram Bedi (dead) through LRs. ..Respondents CORAM: HON’BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Ashish Bansal, Advocate, for Mr.S.D.Bansal, Advocate, for the appellants. Mr.Vikas Bahl, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) This regular second appeal by the defendant/appellants, is directed against the judgment and decree dated 22.10.1986, passed by the learned courts below vide which suit filed by the deceased plaintiff for possession stood decreed. Dhani Ram, deceased plaintiff filed a suit for possession RSA No.683 of 1987 2 against the defendant-appellants on the pleadings, that he was the owner of the site in dispute as he purchased, the house from Gulshan Rai vide sale deed dated 15.3.1982. The case set up by the plaintiff was that he was in possession of the house as tenant under the vendor. Defendant/appellants taking advantage of the absence of the plaintiff took forcible possession of the site in dispute about 2 months prior to the filing of the suit. Suit was filed on 30.4.1984. The case of the plaintiff was that the defendant/appellants had no right in the suit property. Suit was contested. Certain preliminary objections were taken, that the civil court had no jurisdiction to try the suit, and that the suit was not properly valued for the purpose of court fee and jurisdiction. On merit, allegations made in the plaint were denied and a specific stand was taken that the defendant-appellants were in possession of the property as tenants under Gulshan Rai. In the replication, the plaintiff/respondent reiterated the averments made in the plaint, and denied those made in the written statement. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the plaintiff is owner of the suit property? OPP 2. Whether the defendants are tenants as alleged? OPP 3. Whether this court has no jurisdiction to try the present suit? OPD RSA No.683 of 1987 3 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 5. Relief. On appreciation of evidence, specially keeping in view the sale deed Ex.P.1, issue No.1 was decided in favour of the plaintiff/respondent and he was held to be owner of the suit property. On issue No.2, learned trial court held that the defendants were not the tenants over the suit property as they had failed to prove their tenancy by connecting the receipts with the property to claim tenancy. In view of the fact that the appellant/defendants were held to be in unauthorised possession of the property in dispute, issue No.3 was decided in favour of the plaintiff and against the defendant/appellants. It was held that the civil court had jurisdiction to entertain and try the suit. Issue No.4 was decided against the defendants. Consequently, the suit was ordered to be decreed. In appeal, learned lower appellate court affirmed the findings recorded by the learned trial court and upheld the judgment and decree passed by the learned trial court. Mr.Ashish Bansal, learned counsel for the appellants contended that this appeal raises the following substantial question of law for consideration by this court: 1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading and RSA No.683 of 1987 4 misapplication of pleadings and evidence therefore, perverse? In support of the substantial question of law, learned counsel for the appellants referred to the pleadings. In the plaint the plaintiff/respondent, had pleaded that the plaintiff was owner of the suit property in pursuance to the purchase which was already in his possession as a tenant. That forcible possession was taken by the defendant/appellants two months prior to the filing of the suit. This averment was specifically denied by the defendant/appellants by taking a specific stand that the defendant/appellants were tenants over the property for the last 2-3 years under the vendor of the plaintiff. The contention of the learned counsel for the appellants was, that in support of the pleadings referred to above except for sale deed Ex.P.1 wherein it was mentioned that the plaintiff/respondent was the tenant in the suit property, the only evidence led in support of forcible possession was the statement of PW 3 Ved Parkash whose evidence was also based on hearsay, as he categorically stated in cross-examination that lock was not broken by the defendant/appellants in his presence nor the lock was put in his presence. This information was given by the plaintiff. Except for this no other evidence was led, in support of the pleadings. The defendant/appellants, on the other hand, produced the receipt showing payment of rent, specially Ex.D.11 which was of the year 1959 which showed remittence of rent in the year 1959 to the vendor of the RSA No.683 of 1987 5 plaintiff/respondent. It was also the contention of the learned counsel for the appellants that the case of the plaintiff stood belied from the fact that the defendant/appellants had placed on record letters Ex.D.1 to Ex.D.3 written by the son of the plaintiff/respondent, wherein he had stated that after purchase of the property from the landlord they wanted him to vacate 2/3 rooms on the ground floor, in view of the fact that his father wanted to shift to Nawashahar. He, even, offered monetary consideration for entering into the settlement. The contention of the learned counsel for the appellants, therefore, was that this important documentary evidence and oral evidence, has been totally misread to hold that the defendant/appellants had failed to prove their tenancy. Mr.Vikas Bahl, Learned counsel for the respondent supported the judgment and decree passed by the learned courts below by contending, that this court under section 100 of the Code of Civil Procedure (for short the Code) cannot interfere with the concurrent findings of fact recorded by the learned courts below. The contention of the learned counsel was that both the courts below on appreciation of evidence have recorded a concurrent finding of fact that the defendant-appellants had failed to prove that they were tenants over the property in dispute. The contention of the learned counsel for the respondent was that once the defendant/appellants had failed to prove their tenancy, then on proof of ownership the plaintiff/respondent was entitled to possession of the property as nothing more was required to be proved. The possession of the defendant/appellants in the absence of proof of tenancy RSA No.683 of 1987 6 was to be treated that of unauthorised person and the true owner, therefore, could seek possession. Learned counsel for the respondent also contended that the learned courts below were right in coming to the conclusion that the rent receipt/money order receipt produced on record to prove the payment of rent were not connected with the property in dispute, therefore, it could not be said that tenancy stood proved. It is the contention of the learned counsel for the respondent that even in the letters there was no admission made with regard to the tenancy of the defendant/appellants, and an offer to unauthorised occupant to vacate 2-3 rooms could not itself lead to a conclusion that the defendant/appellants were tenants in the property in dispute. However, on consideration, I find force in the contentions raised by the learned counsel for the appellants. Stand taken by the plaintiff/respondent was that after the purchase, it was about two months prior to the filing of the suit, that the defendant/appellants had entered into unauthorised possession of the suit property. This assertion stood belied, from the letter written by the son of the plaintiff/respondent wherein possession of the defendant/appellants over the suit property was admitted, and appellants were requested to hand over portion of the property to his father, who was said to have purchased the property. It is not understood as to how an offer to vacate in the year 1983 could be made, when as per the averments made in the plaint it was RSA No.683 of 1987 7 the plaintiff/respondent who was in possession of the said property. According to the plaintiff the possession was taken by appellants only in February, 1984. The stand of the plaintiff / respondents was thus patently not wrong. The money order receipt produced on record, which was as old as 1959 when read with the letters Ex.D.1 to Ex.D.3 leaves no manner of doubt that the defendant/appellants were tenants over the property in dispute. The appellants could not be dispossessed without terminating their tenancy/ lease in accordance with law.l In this suit there is no evidence of termination of tenancy. Rather notice was issued by treating the appellants as in unauthorised occupation of the property in dispute. It is proved, that findings recorded by the learned courts below are the outcome of misreading of the pleadings and documentary evidence on record and thus perverse. The contention of the learned counsel for the respondent that this court under section 100 of the Code cannot interfere with the concurrent findings, cannot be sustained as it is well settled law that misreading of evidence which results in a perverse finding is a substantial question of law, and the High Court in exercise of powers under section 100 of the Code can set aside the findings of the learned courts below. The contention of the learned counsel for the respondent that the money order receipt was not connected with the property in dispute also cannot be accepted. This contention deserves to be noticed to be rejected, as it cannot be said that the money order receipt did not connect with the property, as admittedly property in dispute was in possession of the RSA No.683 of 1987 8 defendant/appellants and it has been so mentioned in Ex.D.1, that money order sent to the vendors of plaintiff/respondent was towards the rent for a year. The payment made, thus, stands proved towards the rent. In the letters also it has been clearly mentioned that the property has been purchased, from the landlord and request was made to the occupants for giving portion of property, for use by the father i.e. vendee from the previous landlord, and monetary compensation was offered. It cannot be believed that the offer could be made to a person in unauthorized occupation, but could only be to the tenant for giving up his tenancy right in the premises. In view of what has been stated above, the appellants are held to be tenants over the property in dispute. Suit for possession and in the alternative for permanent injunction was certainly, not competent. The finding on issue No.2 by the learned Courts below is reversed. In view of reversal of finding on issue No.2, this appeal is allowed. The judgment and decree passed by the learned courts below is set aside, and suit for possession filed by the plaintiff is ordered to be dismissed but with no order as to costs. 28.01.2010 (Vinod K.Sharma) rp Judge