R.S.A. No. 1926 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1926 of 2010 (O&M) Date of decision: 19.05.2010 Romesh Kumar alias Mesha ....Appellant versus Rama Kumari alias Rama Kundra ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Tejinder K. Joshi, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) CM No.5990-C of 2010 This application under Section 149 of the Code of Civil Procedure, has been moved for condoning the delay in making good the deficiency in court fee. For the reasons stated in the application, CM is allowed, delay in making good the deficiency in court fee is condoned. RSA No.1926 of 2010 This regular second appeal, by the defendant/appellant, is directed against the judgment and decree dated 24.12.2009, passed by the learned Courts below, decreeing the suit for possession filed by the plaintiff/respondent. The plaintiff/respondent filed a suit for possession by way of ejectment, by pleading therein, that she was the owner of the shop under the tenancy of the defendant/appellant, in pursuance to the sale deed dated 8.8.1995, executed by Sh. Ashok Kumar in her favour. The R.S.A. No. 1926 of 2010 (O&M) -2- defendant/appellant was in occupation of the shop in dispute, as tenant at Will, on payment of Rs.250/- (Rupees two hundred and fifty only) as monthly rent, under the previous owner Ashok Kumar. The case of the plaintiff/respondent was, that in pursuance to the purchase, defendant/appellant became tenant under the plaintiff/respondent on the same terms and conditions. The ejectment was sought by pleading, that the tenancy of the defendant/appellant was terminated by way of valid notice. It was also the case set up by the plaintiff/respondent, that the defendant/appellant had not paid the rent since 1995, to the plaintiff, therefore, was in arrears of rent. That the premises were required by the plaintiff/respondent for her own use and occupation, and the plaintiff/respondent did not want to keep the defendant/appellant, in the shop in dispute. The eviction was also sought on the ground, that the defendant/appellant repudiated the title of the landlord, therefore, he was liable to be evicted. The suit was contested by raising number of preliminary objections, regarding maintainability, cause of action, locus standi and estoppel. The defendant/appellant denied the relationship of landlord and tenant between the parties. It was claimed that the description of the property was not correct. On merits, it was denied that the plaintiff/respondent, had purchased the property in dispute. The case of the defendant/appellant was, that Ashok Kumar, vendor, in the previous suit admitted, that he was not the owner of the property in dispute. The sale deed, therefore, R.S.A. No. 1926 of 2010 (O&M) -3- did not confer any title on the plaintiff/respondent. It was also the case of the defendant/appellant, that the rent stood already paid and no rent was due. As already mentioned above, the stand taken was that Ashok Kumar, the vendor of the plaintiff/respondent, did not have any concern with the shop in dispute. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiff is owner of the shop in dispute? OPP 2. Whether there exists relationship of landlord and tenant between the parties to the suit? OPP 3. Issue No.1 and 2 proved, whether the plaintiff is entitled to possession by way of ejectment of the defendant from the shop in dispute? OPP 4. Whether the legal and valid notice under Section 106 of the Transfer of Properties Act has been served upon the defendant? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has got no locus standi to file the present suit? OPD 7. Whether the plaintiff is estopped to file the present suit by her act and conduct? OPD 8. Relief.” The learned trial Court recorded a finding of fact, that the plaintiff/respondent, was owner of the shop in dispute and there existed relationship of landlord and tenant between the parties. In view of the denial of title, as also for the reason that the tenancy of defendant/appellant stood terminated, on issue No.3, it was held that the R.S.A. No. 1926 of 2010 (O&M) -4- plaintiff/respondent was entitled to possession by way of ejectment. It was proved that valid notice under Section 106 of the Transfer of Property Act was issued. Issues No.5 to 7 were decided against the defendant/appellant as not pressed. The findings of the learned trial Court were affirmed by the learned lower appellate Court. Learned counsel for the appellant contends that this appeal raises the following substantial questions of law: - “1. Whether the learned Courts below committed an error in decreeing the suit by ignoring the settled principles of law that the plaintiff had to stand on her own legs and could not take benefit of the weakness of the case of the defendant/appellant? 2. Whether the judgment and decree passed by the learned Courts below is outcome of misreading of documentary and oral evidence on record, therefore, perverse?” In support of the substantial questions of law, the learned counsel for the appellant, vehemently contended, that the learned Courts below, have failed to notice, that the plaintiff/respondent had failed to prove the case set up by her i.e. her ownership. Therefore, the grounds for eviction taken by the plaintiff/respondent seeking his eviction were not available to her. It was also the contention of the learned counsel for the appellant that in absence of proof of ownership of Ashok Kumar, it was not possible for the learned Courts below, to record a finding that plaintiff/respondent was the owner of the property, so as to seek eviction of the defendant/appellant. The findings recorded by the learned Courts R.S.A. No. 1926 of 2010 (O&M) -5- below were outcome of misreading of evidence, thus, perverse. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The plaintiff/respondent had proved her ownership by producing on record, the registered sale deed executed in her favour by Ashok Kumar, who was son of Satya Devi and was admittedly receiving rent from the defendant/appellant. Though, stand of the defendant/appellant was that rent was being paid to him on behalf of Satya Devi, but this was not proved. In any case, other legal heirs of Satya Devi appeared in the witness box, and made a statement, that under the family settlement the property was given to Ashok Kumar as absolute owner. Even if for the sake of arguments, the contention of the learned counsel for the appellant is accepted, that Ashok Kumar was not proved to be absolute owner, even then he was to inherit his share by inheritance from Satya Devi. In that event also, in pursuance to the sale deed the plaintiff/respondent would have become co-owner of the property (though this is not the case), still, in that eventuality, being a co-owner, she was entitled to seek eviction of the defendant/appellant. It cannot, therefore, be said that the learned Courts below, recorded a finding, on the basis of weakness of the defendant/appellant, and not according to the case proved by the plaintiff/respondent. The first substantial question of law is answered against the appellant. On the second substantial question of law, the learned counsel for the appellant contended, that there was ample evidence showing, that no ownership was transferred to Ashok Kumar, nor there was any relationship of landlord and tenant between the parties, which could R.S.A. No. 1926 of 2010 (O&M) -6- entitle the plaintiff/respondent to seek eviction. This plea again is mis-conceived. Once, the plaintiff/respondent was proved to be owner/co-owner of the property in dispute, she would be landlord of the property, as it is well settled law that owner is always the landlord, even if he/she fails to prove the relationship of landlord and tenant between the parties. The suit was filed under the civil law and not under the tenancy law. The owner of property, after issuing valid notice under Section 106 of the Transfer of Property Act, could always seek possession, from the person in occupation. It, therefore, cannot be said that the finding recorded by the learned Courts below is outcome of mis-reading of evidence or perverse. No merit. Dismissed. (Vinod K. Sharma) Judge May 19, 2010 R.S.