Punjab-Haryana High Court
Hari Singh vs Gayatri Devi And Ors on 31 January, 2024
Neutral Citation No:=2024:PHHC:013539
2024:PHHC:013539
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
107 RSA-2681-2022 (O&M)
Date of Decision: 31.01.2024.
Hari Singh ...Appellant.
Versus
Gayatri Devi and others ....Respondents.
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CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
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Present: Mr. Vinod Kumar, Advocate
for the appellant.
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Sukhvinder Kaur, J.
The instant Regular Second Appeal has been filed by appellant/
defendant against the concurrent findings recorded by both the Courts
below, vide which the suit of the plaintiffs was decreed.
2. Brief facts of the case as per plaint are that originally Jagan
Nath, father of plaintiffs, was owner-in-possession of suit land and after his
death, plaintiffs became absolute owners of the suit property. Jagan Nath
had inducted Milkhi Ram as tenant in the suit property for a period of 11
months from the date of execution of rent note, which had been executed on
28.11.2023 by Milkhi Ram in favour of Jagan Nath. Milkhi Ram had died in
1993 leaving behind the defendant as his successor-in-interest and the
defendant came into possession of suit property as tenant and started paying
rent to the plaintiffs. He had paid the rent regularly till April, 2002 but
thereafter, he stopped paying the rent to the plaintiffs. So notice under
Section 106 of Transfer of Property Act was served upon the defendant
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through his counsel. Thus, tenancy of defendant was terminated. The
defendant is in arrears of rent and is liable to be evicted from the suit land
on the ground of non-payment of arrears of rent. The plaintiffs also requires
the suit land for their own personal use and occupation, so the present suit
for possession was filed by the plaintiffs against the defendant.
3. The suit of respondents/plaintiffs was decreed and the counter
claim of the appellant/ defendant was dismissed by the trial Court, vide
judgment and decree dated 20.01.2011. The appeal preferred by the
appellant/ defendant before the First Appellate Court was dismissed, vide
judgment and decree dated 15.09.2022. Hence, the present Regular Second
Appeal.
4. I have heard learned counsel for the appellant and has also gone
through the records thoroughly.
5. Learned counsel for the appellant/defendant has contended that
the lower Courts have given undue weightage to the untrustworthy and
incredible evidence of the respondents and evidence of the appellant has
been ignored without any cogent reason. He has further contended that it
has been established on record that the suit land is in possession of
defendant as a co-sharer and the respondents are not landlords of the
appellant. The suit land was never let out by Jagan Nath, father of the
respondents, in favour of Milkhi Ram, predecessor-in-interest of the
defendant nor any rent note dated 28.11.1993 was ever executed by Milkhi
Ram, so the respondents have been wrongly considered as landlords. He has
submitted that the appellant is in possession of the suit land in his own right
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as a co-sharer in possession. The suit land used to be the joint property of
three Tarafs of Brahmins, Chang and Rajputtan and father of the defendant,
being Rajput, occupied the suit land as exclusive owner and raised
construction over it and also used it exclusively for commercial purposes
denying the rights of other co-sharers and his possession over the suit
property was hostile, open, uninterrupted and continuous. After the death of
his father, the appellant is occupying the suit land as exclusive owner with
which the respondents have no concern. Even DW-1 Surjit Singh, Kanugo
has proved Local Commissioner's report Ex.D1 to the effect that the shops
were existing in Khasra No.1305 and the same had been purchased by the
defendant, vide sale deed dated 18.12.2009, Ex.D5, which has been duly
proved by DW2-Suresh Kumar, Nambardar, attesting witness and DW3-
Satish Chander Vendor. But the trial Court has wrongly decreed the suit of
the respondents/plaintiffs and has dismissed the counter claim of the
appellant and the First Appellate Court has also wrongly dismissed the
appeal.
6. The perusal of the revenue record i.e. jamabandis Ex.P4 and
Ex.P5 reveals that the name of Jagan Nath has been reflected in the column
of ownership regarding the suit land. As per the site plan Ex.PA, suit land
has been shown in red colour and two shops are existing in the suit land,
which are admittedly in possession of the defendant.
7. As per the plaintiffs, Jagan Nath had inducted Milkhi Ram
predecessor-in-interest of defendant in the suit property as tenant and
Milkhi Ram had executed rent note Ex.P1 in favour of Jagan Nath. To prove
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the rent note Ex.P1, its scribe Puran Chand Sharma was examined as PW3,
who has also proved entry of name of the plaintiffs in his register Ex.P2.
Further, the plaintiffs have examined Balwant Singh as PW1, who had
deposed that Milkhi Ram had executed rent note Ex.P1 in favour of the
deceased Jagan Nath in his presence as well as in the presence of Puran
Chand Sharma, which bears his signatures. Thus, plaintiffs have duly
proved rent note Ex.P1.
8. The appellant/ defendant had also taken the plea of adverse
possession and has alleged that previously Milkhi Ram and after his death
defendant is in open, continuous and hostile possession over the suit land.
But no such specific date has been pointed out when possession of the
defendant turned hostile against the plaintiffs. There is no entry in the
revenue record that Milkhi Ram or the defendant ever remained in hostile
possession, rather as per jamabandi Ex.D3 and Ex.D4 brought on record by
the defendant, possession of Milkhi Ram over the suit land has been
recorded as Gair Marusi under Jagan Nath co-sharer.
9. Though defendant now claims to be in possession over the suit
land being a co-sharer on the strength of sale deed Ex.D5 but the said sale
deed has not been pleaded anywhere in the written statement or the counter
claim. So the evidence of the plaintiff qua the said sale deed is beyond the
pleadings and is not admissible. The said sale deed was executed on
18.12.2009 during the pendency of this suit by one of the co-sharers namely
Subhash Chander in favour of the defendant, so on its basis, defendant
cannot claim to be in possession over the suit property being a co-owner,
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when this sale deed was not in existence at the time of institution of the
present suit.
10. When this plea has been taken by the defendant that he has
become owner of the suit property by purchase vide its sale deed Ex.D1, it
is established that the defendant is in arrears of rent from May, 2002 @
Rs.20/- per month.
11. As per plaintiffs, the tenancy of defendant was terminated by
serving notice Ex.P2 upon the defendant through registered letter Ex.P3
under Section 106 of the Transfer of Property Act as they bonafidely
required the suit land for their own use and occupation and the defendant is
in arrears of rent. Reply dated 29.01.2009 Ex.P2 was sent by the defendant.
Therefore, the tenancy was terminated as the defendant had failed to hand
over the vacant possession of the suit land to the plaintiffs after stipulated
period of 30 days prescribed under notice dated 06.01.2003.
12. For the reasons recorded above, the present Regular Second
Appeal fails as it does not raise any question of law much less substantial
question of law.
13. Appeal stands dismissed.
14. All pending applications, if any, also stand disposed of
accordingly.
(SUKHVINDER KAUR)
JUDGE
31.01.2024.
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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