Punjab-Haryana High Court
Maina Devi (Now Represented Thru Lrs) vs Ram Kumar Lakhera And Ors on 8 January, 2025
Neutral Citation No:=2025:PHHC:001357
RSA-141-2019 (O&M) - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
104 RSA-141-2019 (O&M)
Date of decision: 08.01.2025
Smt. Maina Devi deceased through LRs ...Appellant.
Versus
Ram Kumar Lakhera and others ...Respondents.
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CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
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Present: Mr. Gurinder Pal Singh, Advocate for the appellant.
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Sukhvinder Kaur, J.
The instant Regular Second Appeal has been filed by appellant/
plaintiff against the concurrent findings recorded by both the Courts below
vide which the suit of the plaintiff for declaration, permanent injunction and
mandatory injunction was dismissed.
2. Brief facts of the case as per plaint are that plaintiff Maina Devi
(since deceased and now being represented by her LRs) filed present suit
alleging that the plaintiff was tenant and in possession of suit property being
one of first class legal heirs of her father Chiranji Lal and was entitled to
protect her tenancy rights. Originally her grandfather Neki Ram was a
tenant under the landlords of suit property and after his demise, his three
sons Devi Sahai, Chiranji Lal and Bhawani Sahai became tenants of the
disputed property. After death of Devi Sahai and Bhawani Sahai, who died
issueless during the life time of Chiranji Lal, father of plaintiff became
tenant of said property. After demise of plaintiff's father, she along with her
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brothers became the tenants under the landlords Jugal Kishore and Gauri
Shankar, who used to issue the rent receipts. It was alleged that rent of
disputed property was Rs.10/- per month and tenancy was 50 years old. It
was submitted that the plaintiff was bed ridden old age lady of 80 years and
defendants were bent upon to interfere in the peaceful possession and
enjoyment in the disputed property and they want to change its nature by
raising illegal construction after dispossessing her from the suit property, so
decree for declaration was sought to the effect that plaintiff was tenant and
was in possession of the suit property. Permanent injunction was also sought
for restraining the defendants from dispossessing her from the suit property
and from changing nature of the disputed property by raising construction
and mandatory injunction was also sought for restoring the boundary wall of
six feet height and the western gate of suit property to its original condition.
Despite repeated request of the plaintiff, defendants denied to accept her
claim and hence, the instant suit was filed by the plaintiff.
3. Upon notice, defendant No.1 appeared and filed written
statement by taking preliminary objections of maintainability; suppression
of true and material facts from the Court; misrepresentation; cheating; locus
standi; wrong local commissioner's report etc. On merits, it was alleged that
plot No.7081 was got vacated by the defendants on payment of
Rs.2,50,000/- on 11.03.2005 as per the compromise dated 10.03.2005 in
case titled 'Om Parkash Vs. Anil Lohiya'. Maina Devi and her two sons
committed contempt of Court order dated 11.03.2005, thereafter ventilators,
doors and windows of plot No.7081 falling in the suit property were closed.
Anil Lohiya sold the property to defendant No.1 on 09.04.2002. Various
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criminal cases are pending against the plaintiff and her sons in various
Courts and recovery suit has also been filed by him against them. Local
Commissioner also demarcated the suit property. It was alleged that actually
Phoosamal was owner of the suit property and after his death, Baijnath and
thereafter Anil Lohiya became owner and it was denied that the plaintiff
ever remained their tenant. There was no question of handing over the
possession to the plaintiff when she was not in possession and defendant
No.1 alleged his possession as owner over the suit property plot No.7081.
4. Defendant No.2 appeared and filed separate written statement
by taking preliminary objection regarding maintainability; estoppel, non
existence of relationship of landlord and tenant; plaintiff not being in
possession; suit being liable to be dismissed under Order 7 Rule 11 CPC for
not filing ad-valorem court fee and for suppressing true and material facts
from the Court. On merits, it was alleged that defendants are in joint actual
and physical possession without any interruption from the plaintiff, being
owner in possession over the suit property and plaintiff has no concern
whatsoever with the suit property. It was also alleged that Jugal Kishore and
Gauri Shankar have no concern with the suit property and they never issued
any rent receipt in favour of late Devi Sahai and other. Such rent receipts are
forged and fabricated one. It was alleged that defendant No.2 purchased the
suit property by virtue of sale deed bearing No.189 dated 19.04.2002 for a
valuable consideration and vendor of defendant No.2 delivered the actual,
physical possession of the suit property to defendants. It was further alleged
that the property in dispute had been purchased in the shape of plot, so no
question of tenancy arises at all. Plaintiff purchased the house vide sale deed
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bearing No.7080 and in that sale deed plaintiff has rightly shown
description of the suit property as a vacant plot and she is estopped by her
own act and conduct from alleging tenancy, upon wrong and fabricated
facts. Under the guise of the present suit, plaintiff and her sons want to take
illegal possession of the suit property. Plaintiff failed to produce on record
any rent receipt issued by the defendant and their vendors. Earlier Om
Parkash and others have filed a suit for injunction titled as 'Om Parkash Vs.
Anil Lohiya and others' and in that suit, Om Parkash and others admitted
ownership and possession in the disputed property and ultimately said suit
was decided on the basis of compromise Ex.C1, vide order dated
11.03.2005. Regarding the suit property, plaintiff filed an application
against defendant No.1 on 17.03.2013 along with her sons, which was
withdrawn. The matter was investigated by PP Bharawas Gate, Rewari,
where they failed to produce any document pertaining to suit property and
in that application, they never claimed tenancy rights over the suit property.
It was alleged that creation of tenancy is an afterthought version of plaintiff
and prayer for dismissal of the suit was made.
5. From the pleadings of the parties, the following issues were
framed:-
(i) Whether the plaintiff is entitled to the decree as prayed for?
OPP
(ii) Whether the plaintiff is entitled to permanent injunction as
prayed for? OPP
(iii) Whether the plaintiff is entitled to a decree for mandatory
injunction as prayed for? OPP
(iv) Whether the suit is not maintainable in the present form?
OPD
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(v) Whether the plaintiff is estopped by own act and conduct to
file the suit? OPD
(vi) Whether the suit is liable to be dismissed for want of
possession of the plaintiff? OPD
(vii) Whether the plaintiff lacks locus standi and cause of action
in this case? OPD
(viii) Whether the plaintiff has misrepresented to the Court?
OPD
(ix) Relief.
6. Thereafter, both the parties led their respective evidence. In
order to prove her case, plaintiff Nawal Singh son of Maina Devi himself
stepped into witness box as PW4 and also examined Naresh other son of
Maina Devi as PW6, Manoj Kumar, Draftsman as PW1, Sh. Swayember
Advocate as PW2, Ramesh Chand son of Kanhaya Lal as PW3 and
Gajender Yadav, Photographer as PW5.
7. To rebut the evidence of the plaintiff, defendant Ram Kumar
Lakhera himself stepped into witness box as DW17 and also examined
Manoj Kumar son of Radhey Shyam as DW1, Manoj Kumar Draftsman as
DW2, Ajit Singh, Criminal Ahlmad as DW3, Pardeep Kumar as DW4,
Sudhir Kumar DRK as DW5, Prem Parkash as DW6, Dinesh Kumar
Vashisth as DW7, Pardeep Kumar, Civil Ahlmad as DW8, Krishan Kumar,
JE as DW9, Surender Kumar Architect as DW10, ASI Bishan Kumar as
DW11, Sh. Sunil Kumar Gupta Advocate as DW12, Sh. Anil Kumar Gupta,
Advocate as DW13, Vikram Singh, Patwari as DW14, Anil Lohiya as
DW15, Narender Kumar Gupta, deed writer as DW16.
8. The suit of plaintiff was dismissed by the trial Court, vide
judgment and decree dated 30.11.2016. The appeal preferred by the
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appellant/ plaintiff before the First Appellate Court was also dismissed, vide
judgment and decree dated 10.01.2018. Hence, the present Regular Second
Appeal has been filed by the appellant/ plaintiff, before this Court.
9. Learned counsel for the appellant/ plaintiff has contended that
earlier father of the plaintiff Chiranji Lal was tenant over the suit property
under landlords Jugal Kishore and Gauri Shankar, which is clearly proved
from municipal house tax record and rent receipts Ex.P6 to Ex.P18. Learned
trial Court has ignored the fact that after death of Chiranji Lal in the year
1980, his tenancy rights devolved upon Maina Devi and her brothers and
Gindori Devi. He has argued that tenancy of brothers of Maina Devi namely,
Om Parkash, Parmanand, Shyam Sunder and Ghanshyam was admitted by
defendants in eviction petition filed by them under Section 13 of Haryana
Urban (Control of Rent and Eviction) Act, 1973, on the ground of non-
payment of rent from 22.01.1995 in which Maina Devi and her mother
Gindori were not impleaded as party in a malafide manner. Courts below
have erred in law while ignoring the fact that the said petition was dismissed
as withdrawn after accepting the rent, meaning thereby that respondent
admitted that Late Chiranji Lal and prior to that, Late Neki Ram as their
tenants over the suit property. Once tenancy rights of the father and
grandfather of the plaintiff stood admitted, same would devolve upon her
being Class-1 legal heir along with the other heirs. Tenancy of aforesaid
persons was also admitted in another suit for permanent injunction. Learned
Courts below erroneously held that there was no proof that Jugal Kishore
and Gauri Shankar were owners of the suit property. Once respondent
categorically admitted the tenancy rights of Om Parkash and others in the
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above mentioned two suits, steming from their forefather, the question of
ownership pales into insignificance and under the Rent Act, it is not
necessary that landlord should be landowner. The rent receipts have been
misappreciated by the Courts below. He prayed that impugned judgments be
set aside and suit of plaintiff be decreed while allowing the appeal.
10. I have heard learned counsel for the appellant and have gone
through the record thoroughly.
11. As per plea of plaintiff Maina Devi, she along with other legal
heirs of Chiranji Lal came into possession of the suit property as a tenant ,
but when from the evidence on record, it is proved that the disputed
property No.7081 is a vacant plot, then her this plea stands nowhere. Cross-
examination of PW6 Naresh reveals that he has admitted in his cross-
examination that house No.7080 was purchased by Maina Devi vide sale
deed No.5500 dated 29.09.2006 from Anil Lohiya. From his cross-
examination, it also transpires that vendors of defendant No.1 and Maina
Devi were successors-in-interest of Phoosamal. He also stated that he had
not seen any sale deed pertaining to ownership of Jugal Kishore and Gauri
Shankar.
12. DW15 Anil Lohiya son of late Baijnath has also supported case
of defendant No.1 on all the material particulars. He proved sale deed dated
29.09.2006 in favour of Maina Devi of House No.7080 and also proved sale
deed No.189 dated 19.04.2002 executed in favour of both the defendants
pertaining to the properties No.7081 i.e. suit property and 7082. He
categorically stated that before execution of sale deed in favour of Maina
Devi, defendant No.1 Ram Kumar was already in possession of property
No.7081.
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13. DW17 Ram Kumar, defendant No.1 proved the compromise
dated 10.03.2005 as per which matter was settled between defendant No.1
and legal heirs of Chiranji Lal. Vide compromise Ex.DW8/3 dated
10.03.2005 in ejectment petition they had mutually resolved the dispute and
possession of disputed property was handed over to vendors of both the
defendants.
14. There is not even iota of evidence on record, that Maina Devi
remained in possession of the disputed property. It was in the year 2005
when four brothers of the plaintiff entered into compromise with owner Anil
Lohiya by surrendering/relinquishing possession of Ram Kumar Lakhera.
But she never raised any objection, rather after eight years, she filed the
instant suit based upon rent receipts, which appears to be an afterthought
version. Suit property is a plot situated within the municipal limit of Rewari
and photographs and other evidence show that it remained vacant.
Obviously upon the vacant plot, tenancy cannot be exist. There is no
evidence of ownership of Jugal Kishore and Gauri Shankar. There is no
proof of existence of tenancy between Late Neki Ram, grandfather of the
plaintiff and real owner.
15. Perusal of cross-examinations of plaintiff PW4 and PW6 reveal
that they admitted ownership of defendant Ram Kumar Lakhera but they
denied his possession and factum of compromise dated 10.03.2005.
Documents Ex.DW7/2, Ex.DW8/1 to Ex.DW8/5, show that compromise
took place between the parties on 10.03.2005. Statement of plaintiff's
brother Shyam Sunder shows that the plaintiff handed over possession of
house tax No.7081 situated in Baluwada, Rewari to defendants No.5 and 6,
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namely Ram Kumar and Geeta Gupta and thereafter, brothers of the plaintiff
are not having any right, title or interest in the suit property No.7081.
Keeping in view the compromise Ex.C1 and joint statements, compromise
decree dated 11.03.2005 was passed which has attained finality and has not
been challenged till date. As such, the same is binding upon both the parties.
It has been rightly held by learned Courts below that now plaintiff, who is
sister of Om Parkash etc., cannot file this suit claiming tenancy rights,
merely on the ground that she was not a party to compromise and she was
not bound by it, till she proves existence of tenancy and title of the
landlords Jugal Kishore and Gauri Shankar over the suit property. Both
witnesses PW4 and PW6 admitted in their cross-examinations that they are
only paying rent to Jugal Kishore and Gauri Shankar and had never seen
their sale deed or document of title. Only on the basis of rent receipts Ex.P6
to Ex.P18, it is not proved that Jugal Kishore and Gauri Shankar were
owners of the said property and were competent to further let out the same
in favour of Late Neki Ram. They themselves have admitted that Phoosamal
purchased this house No.7081 vide sale deed No.382 dated 13.10.1942 from
Anil Lohiya as grandson of Phoosamal. Plaintiff has also failed to lead any
positive and concrete evidence regarding her possession over the suit
property. Report of Local Commissioner Ex.P5 and photographs attached
with the Local Commissioner's report show that it was a vacant plot and
material is lying there. It is trite law that title follows possession over a
vacant plot, so when Anil Lohiya sold the suit property to Ram Kumar
Lakhera to whom possession had been handed over by the brothers of
plaintiff during the court proceedings by entering into compromise dated
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10.03.2005, then no interest of the plaintiff was left in the suit property. It is
also to be noted that for more than eight years, plaintiff did not challenge
the said compromise in the rent petition and present suit was filed by the
plaintiff after lapse of more than eight years from date of passing of said
order by Rent Controller. Once plaintiff has not been able to prove that
Jugal Kishore and Gauri Shankar had any right, title and interest in
properties No.7080 and 7081, then the receipts Ex.P6 to Ex.P18 cannot be
relied upon to prove possession of the plaintiff especially when their
authenticity could not be proved. Plaintiff has also failed to prove as to how
and in what manner, she was in possession of vacant plot. It has rightly been
held by learned trial Court that once brothers of plaintiff have already parted
with possession of the disputed property in favour of Anil Lohiya etc, who
are vendors of property No.7080 of plaintiff and are also vendors of
disputed property of defendants, therefore, plaintiff cannot take any
advantage of the situation, if she was not impleaded as a party in the
ejectment petition.
16. For the reasons recorded above, the present Regular Second
Appeal fails and is dismissed as it does not raise any question of law much
less substantial question of law.
17. All pending applications, if any, also stand disposed of
accordingly.
(SUKHVINDER KAUR)
JUDGE
08.01.2025
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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