RSA No.3930 of 2008 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.3930 of 2008 Date of decision: 17.3.2010 Kanwar Pal .....Appellant vs. Ved Pal (dead) through L.Rs ....,.Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr. Sandeep K.K.Sharma, Advocate, for the appellant. Mr.Mr.Jaivir Yadav, Advocate, for the respondents. -- Rakesh Kumar Garg,J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit for possession by way of ejectment of the appellant, filed by the plaintiff-respondent has been decreed. Briefly stated the facts of the case are that the plaintiff- respondent was owner of a pucca shop comprised in khewat No.917/795 Khata No.1082 Rect No.158 Killa No.1/1/1(0-14) situated within the revenue estate of village Bhakli as per jamabandi for the year 1999-2000. According to the plaintiff-respondent, the shop in dispute as bounded in the site plan attached with the plaint was in possession of the appellant as tenant where he was doing the business of seed store and STD booth. The plaintiff-respondent served a notice under section 106 of the Transfer of Property Act, terminating the tenancy of appellant on 5.4.2006. However, the registered letter was not accepted by the appellant intentionally. Another RSA No.3930 of 2008 2 notice issued by the plaintiff-respondent was received by the appellant on 12.4.2006 and after expiry of the period of notice the defendant was in unauthorised possession of the shop in dispute. Despite repeated requests the defendant refused to hand over the vacant possession of the shop in dispute. Hence the defendant-appellant filed the present suit. The appellant filed written statement controverting the allegations of the plaint pleading that the plaintiff-respondent was neither owner in possession of the shop in dispute nor the shop in dispute was located in Rect. No.158 killa No.1/1/1(0-14) and in fact the shop in dispute was comprised in killa No.1/1/2. The site plan submitted by the plaintiff was incorrect. There was no relationship of landlord and tenant and the question of raising rent and vacation of the shop does not arise. The plaintiff-respondent had got no cause of action to file the present suit and the suit is liable to be dismissed. After appreciating the evidence and hearing the arguments the trial Court decreed the suit of the plaintiff-respondent with costs. While passing the impugned decree, the trial Court observed as under:- “ After hearing the learned counsel for the plaintiff, the learned counsel for the defendant and perusing the evidence placed on the file, it is observed that by way of filing the present suit, the plaintiff has sought a decree for possession of the suit property as mentioned in para no.1 of the plaint by ejecting the defendant from the same. The plaintiff has also sought a decree for compensation damages for use and occupation of shop in dispute at the rate of Rs.2000/- per month from Ist May till the delivery of possession. The plaintiff has claimed that the shop in dispute was given to the defendant on rent @ Rs.700/- per month and the defendant is running the RSA No.3930 of 2008 3 shop of seeds store. The plaintiff has also claimed that in the year 1997, the son of the defendant namely Sunil Kumar had also started running the STD booth in the shop in dispute after taking the connection from the telephone authorities. Admittedly, the plaintiff has to prove that he is owner of the shop in dispute. The defendant has filed the written statement and denied the ownership of the plaintiff. But, in the written statement, the defendant has not mentioned that he is owner in possession of the shop in dispute or he had taken the shop on rent from some other person. The defendant has also admitted in the written statement that he is running Seed Store and STD booth in the shop in dispute. But, when the defendant has appeared into the witness box as DW4, he has categorically stated that he is owner of the shop in dispute. But, the defendant has not produced any copy of the sale deed in order to prove that he had purchased the shop in dispute. The defendant claimed that he had purchased the shop in dispute for a sum of Rs.85,000/- from Heera Lal. But, the defendant has not examined Heera Lal or his legal heirs in order to prove that the shop in dispute was sold to the defendant. The defendant has withheld with the best evidence, therefore, an adverse inference has to be drawn against the defendant. Moreover as the defendant has not mentioned in the written statement that he is owner of the shop in dispute, therefore, the evidence in respect of the ownership of the defendant is beyond pleadings and the same cannot be looked into. The defendant has also claimed that the shop in dispute is situated in khasra no.158/1/1/2, But, the defendant has not produced any report of Halqa Girdawar in order to prove that the shop in dispute is situated in khasra No.158/1/1/2. The defendant has examined Vikram Singh, Halqa Patwari as DW1 in support of his case, but he admitted that he had not demarcated the khasra no.158/1/1/2, therefore, it is not proved on the file that the shop in dispute is situated in khasra no.158/1/1/2. RSA No.3930 of 2008 4 Xx xx xx xx The defendant has claimed in the written statement that he is running Seed Store and STD booth in the shop in dispute. The defendant has taken the license from the agriculture department for running the seed store and Bhoop Singh Dalal, APPO (PW-5) has proved this fact. But, the defendant has not produced any evidence in order to prove that he had taken STD connection from the telephone department in order to run STD booth. The documents placed on the record by the plaintiff i.e.Ex.PW2/A to Ex.PW2/C clearly show that the son of the defendant namely Sunil Kumar is running the STD booth in the shop in dispute after taking the connection from the telephone authorities. At the time of the taking the connection the plaintiff had submitted the affidavit in favour of Sunil and Sunil had also placed the affidavit of the plaintiff on the record of the telephone department at the time of taking the telephone connection. At that time, neither the defendant nor his son had claimed that the plaintiff is not owner of the shop in dispute. As the plaintiff was owner of the shop in dispute, therefore, the son of the defendant had sought the affidavit of the plaintiff. Xx xx xx The copy of jamabandi for the year 1999-2000 i.e.Ex.PW3/B shows that the plaintiff is co-owner of khasra no.158/1/1/1. The plaintiff had terminated the tenancy of defendant by issuing the notice i.e.Ex.PW5/B under section 106 of the Transfer of Property Act. The said notice was not received by the defendant, as he had refused to accept the registered notice. The plaintiff has examined Vishnu Bhagwan, postman in order to prove that the defendant had himself refused to accept the notice. This fact made it clear that the defendant had intentionally not received the notice. The plaintiff is able to prove that he is owner of the shop in dispute and he had given the shop in dispute to the defendant on rent RSA No.3930 of 2008 5 and he has a locus standi to file the present suit and the present suit is maintainable. Feeling aggrieved by the aforesaid judgment and decree of the trial Court, the defendant filed an appeal before the lower Appellate Court which was also dismissed vide judgment and decree dated 3.11.2008. While upholding the findings of the trial Court, the lower Appellate Court found that the appellant had not pleaded in the written statement that he was the owner of the shop in dispute or he had taken the shop on rent from any other person, and the plea taken by him in the written statement was that the plaintiff was not the owner in possession of the shop in dispute and the aforesaid shop in dispute was not located in Khasra No.158/1/1/1(0-14) and the same was located in Killa No.1/1/2, and that despite the aforesaid stand taken, the appellant has failed to prove his defence. The lower Appellate Court on re-appraisal of evidence also found that from the documents placed on record, and on the basis of affidavit Ex.PW2/C in respect of the shop in dispute wherein appellant admitted that the shop belongs to the plaintiff-respondent, the respondent has been proved to be co-owner of Khasra No.1/1/1(0-14) and the son of the appellant has been running the STD booth in the shop in dispute Still not satisfied, the defendant-appellant has filed the instant appeal challenging the judgment and decrees of the Courts below. It is also relevant to mention that along with this appeal the appellant also filed an application under Order 41 rule 27 read with section 151 of the Code of Civil Procedure, for permission to produce demarcation report dated 15.7.2008, as additional evidence. However, at the time of RSA No.3930 of 2008 6 hearing, learned counsel for the appellant was unable to substantiate his case for additional evidence. I have heard the learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. The basic argument raised by the learned counsel for the appellant before this Court is that the plaintiff-respondent has failed to establish the identity of the property and, on the other hand there was ample evidence to prove that the shop in dispute falls in Khasra No.158 Killa No.1/1/2 which does not belong to the plaintiff-respondent and, therefore, the judgment and decrees of the Courts below were liable to be set aside. On the basis of the aforesaid arguments, learned counsel has submitted that the following substantial questions of law arises in this case:- (i)Whether the impugned judgments and decree passed by the learned Courts below are wrong and perverse to the law and facts of the case ? (ii)Whether the findings recorded by the learned Courts below on issue No.1 regarding ownership of the shop in question are perverse to the oral as well as documentary evidence on record ? (iii)Whether the learned Courts below gravely erred in allowing the case of the respondent/plaintiff when the material on record clearly establishes that the shop in possession of the appellant is neither owned by the respondent/plaintiff nor situated in the rect. and killa as alleged in the plaint ? (iv)Whether the findings of the Courts below regarding ownership and identity of the shop in dispute are vitiated on account of wrong appreciation of jamabandis, site plan and Aks Shijras on record ? (v)Whether the impugned judgments and decree are result of RSA No.3930 of 2008 7 non-appreciation and wrong appreciation of oral as well as documentary evidence on record ? (vi) Whether the findings of the learned Courts below on issue Nos. 2,3 and 5 are result of wrong appreciation of the law regarding tenancy and relationship of landlord and tenant ? I have heard the learned counsel for the parties. The arguments raised by the learned counsel for the appellant is without any merit. The Courts below on the basis of evidence on record have recorded a finding of fact that the shop in dispute is situated in Khasra No.158 Killa No.1/1/1 and the respondent is shown to be the owner of said khasra number as per jamabandi for the year 1999-2000 Ex.PW3/B. The Courts below have also noticed the fact that at the time of taking the telephone connection the respondent had submitted an affidavit Ex.PW2/A in favour of Sunil Kumar son of the appellant and the son of the appellant also executed an affidavit Ex.PW2/B in respect of the shop in dispute and appellant executed affidavit Ex.PW2/C which clearly reveals that the shop in dispute belongs to the plaintiff-respondent which was taken on rent by the appellant. On the other hand, on the relationship of landlord and tenant, the appellant has not taken any specific stand with regard to the ownership/tenancy of the shop in dispute in his pleadings yet while leading evidence and appearing as DW4 has submitted that he purchased the shop for a sum of Rs.85,000/- from Heera Lal. The aforesaid evidence being beyond pleadings is not admissible. Even otherwise neither the said Hira Lal has been produced into the witness box nor any sale deed has been placed on record in support of the statement made by the appellant. Even the appellant has failed to prove the stand that the property in dispute falls in Khasra No.158 Killa No.1/1/2 as DW1 Vikram Singh Halqa Patwari who RSA No.3930 of 2008 8 was produced by the appellant had admitted that he had not demarcated Khasra No.158 killa No.1/1/2 upon which the appellant is claiming the shop in dispute. Thus, in the present case the finding of fact has been recorded by the Courts below on the basis of evidence on record. It is not a case wherein it can be argued that the findings of the Courts below are perverse or there is no evidence on record to support the case of the plaintiff- respondent. The Hon'ble Supreme Court has authoritatively laid down that a Regular Second Appeal cannot be converted into a third Court of appeal and it is only where a substantial question of law arises, the findings recorded by the Courts below can be interfered with. In the instant case, no substantial question of law arises which require interference while exercising power under section 100 of the Code of Civil Procedure. No merit. Dismissed. (Rakesh Kumar Garg) Judge March 17, 2010 rk