R.S.A. No. 1257 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1257 of 2009 (O&M) Date of Decision : 30.3.2009 Vinod Kumar & others .......... Appellants Versus Daya Chand Chauhan & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Arun Palli, Sr. Advocate with Mr. Sunil Goyal, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 11.12.2008 passed by the learned lower appellate Court vide which suit filed by the plaintiff / respondents seeking injunction from dispossession except with due process of law stands decreed. The plaintiffs brought a suit for perpetual injunction against the defendants/ appellant from dispossessing from the shop and rented land bearing old Municipal No. 222/2 and new MC No. 539/3, which was said to be under their tenancy. The case set up by the plaintiffs was that the premises in dispute was taken on rent by them initially from Rattan Lal Bhardwaj about 4 ½ years back, and the plaintiffs were running their workshop, in the name of Daya Auto Works and Chauhan Auto Electricals. Where they were R.S.A. No. 1257 of 2009 2 doing the work of denting, painting, mechanical, and electrical work. The rent fixed for the premises was Rs. 700/- per month which was being paid regularly but no rent note or lease deed was executed. The plaintiffs had also telephonic connection at their workshop, and also produced on record the challan by the Municipal Committee. It was also claimed that in 1996 the defendants had tried to dispossess the plaintiffs and the matter was reported to the police wherein defendant No.3 gave in writing that they will not dispossess the plaintiffs / respondents forcibly. It was the case set up by the plaintiffs / respondent that in spite of said undertaking the appellant / defendants took steps to dispossess them. Hence, the suit. The suit was contested on the plea that the plaintiffs had no locus standi, or cause of action to file the suit. On merit, it was denied that the plaintiffs were the tenant under the respondent/ defendants. It was claimed that the site plan was not correct rather no shop was rented out to the plaintiffs either by Sh. Rattan Lal Bhardwaj, or the defendants and that the plaintiffs never remained tenant over the open land. It was claimed that the plaintiffs were challaned by the Municipal Council, Gurgaon as they were working in the open land along with the road which created nuisance. It was claimed that there exist no shop as claimed by the plaintiffs. Thus, the case set up by the plaintiff / appellants was of total denial. The parties led evidence. The learned trial Court was pleased to dismiss the suit by holding that plaintiff / respondents failed to prove their tenancy over the demised premises. However, the learned lower appellate Court was pleased to R.S.A. No. 1257 of 2009 3 reverse the finding of the learned trial Court by holding that photographs Ex. PW 20/2 to Ex.PW20/5 of the demised premises bear the sign board of Daya Auto Works and Chauhan Auto Electrical. On the left side of the demised premises is an auto spare parts shop being run under the name and style of Geet Automobiles, which is also owned by the defendants and was in occupation of Yashwant Yadav as tenant, who appeared as PW-13 and supported the case of the plaintiffs / respondent. The learned lower appellate Court relied upon the evidence led by the plaintiffs / respondent for proving that official vehicles of different departments of the Government were being repaired by the plaintiffs / respondent. The Court also took note of the fact that with regard to the attempt of forcible dispossession the FIR No. 313 dated 22.3.1997 was also registered. The plea of the appellant / defendants that telephonic connection did not prove the case of plaintiff / respondents as the telephone was installed in the premises bearing No. 539/3 whereas the municipal number of demised premises is 222/2, was disbelieved as it was proved on record that the Municipal No. 222/2 was re-numbered as 539/3. Support in this regard was taken from document Ex. DW7/1 attached by the defendants in another suit wherein the Municipal number of demised premises was written as 222/2 and new number as 539/3. On appreciation of evidence on record by respective parties the learned lower appellate Court was pleased to hold that the plaintiffs / respondent were tenant of the premises and therefore entitled to injunction R.S.A. No. 1257 of 2009 4 from dispossession but with due process of law. Mr. Arun Palli, learned senior counsel appearing on behalf of the appellants contended that this appeal raises the following substantial questions of law :- 1. Whether the evidence taken in totality is not reasonably capable of supporting the finding recorded by the learned lower appellate Court, thus, perverse ? 2. Whether the findings of the learned lower appellate Court having been based on assumption and conjectures is, therefore, tainted with perversity and, therefore the same deserves to be set aside ? In support of the substantial questions of law the learned counsel for the appellants contended that in the statement of the plaintiffs they admitted that there was no rent note nor any receipt showing the payment of rent. The plaintiffs / respondent also failed to show electric connection. The learned senior counsel for the appellants also referred to the findings of the learned trial Court wherein it was held that the plaintiffs / respondent failed to prove their tenancy. The learned senior counsel for the appellants also contended that number of witnesses were produced by the defendants / appellant to show that the plaintiffs / respondents were not tenant, as claimed. The contention of the learned senior counsel for the appellants is that the evidence if read as a whole is not reasonably capable of R.S.A. No. 1257 of 2009 5 supporting the tenancy, thus liable to be set aside. In support of the contentions reliance was placed on the judgments of the Hon'ble Supreme Court in the cases of Boodireddy Chandraiah and Ors. Vs. Arigela Laxmi and Anr. 2007(4) RCR (Civil) 353 and Kulwant Kaur andothers Vs. Gurdial Singh Mann (dead) by Lrs. And others (2001) 4 Supreme Court cases 262 to contend that the judgment of the learned lower appellate Court being based on a misreading of evidence or on assumptions and conjectures, was therefore tainted by perversity and thus liable to be set aside. On consideration, I find that the learned lower appellate Court has recorded a finding which is based on appreciation of evidence. The first appellate Court is final Court of fact finding,it cannot be said that the judgment of the learned lower appellate Court suffers from perversity or is outcome of misreading of evidence or the findings are not supported by the evidence as contended. The substantial questions of law are answered against the appellants and finding no merit in the present appeal, the same is ordered to be dismissed in limine. 30.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE