R.S.A.No. 113 of 1996 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 113 of 1996
Date of decision: 20.7. 2009
Sambhu Ram
......Appellant
Versus
Attam Parkash
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. H.S.Grewal,Advocate,
for the appellant.
Mr.Harkesh Manuja, Advocate,
for the respondent.
****
SABINA, J.
Plaintiff Attam Parkash filed a suit for possession of the
property in dispute and the same was dismissed by the Additional
Senior Sub Judge, Gohana vide judgment and decree dated
24.8.1993. In appeal, the said judgment and decree were set aside
by Additional District Judge, Sonepat vide judgment and decree
dated 30.11.1995 and the suit of the plaintiff was decreed with costs.
Hence, the present appeal by the defendant.
R.S.A.No. 113 of 1996 2
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
“2. Undoubtedly, the plaintiff was a tenant under
the defendant qua the godown at the rental of Rs.55/- per
mensem, which was allegedly put on fire by the defendant
and his son Om Parkash on the night intervening 1/
2.5.1984. As a result thereof, many rafters of the godown
were damaged, which required replacement. The
defendant, after having replaced the same, put his lock
thereon, which he agreed to remove only if he withdraws
his police case.
3. The defendant admitted the factum of fire but
disputed that he had a hand therein. He further admitted
the registration of the case against him which, on enquiry,
was found to be false. He further admitted the factum of
handing over the key by the plaintiff to him which,
according to him, was given in pursuance of a
compromise arrived at with the intervention of the
panchayat. The defendant has accordingly set up the
plea of estoppel and further claimed special damage from
the plaintiff.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is entitled to the
R.S.A.No. 113 of 1996 3possession of the suit property? OPP
2. Whether the suit is barred by limitation? OPD
3. Whether the suit is not maintainable in the
present form? OPD
4. Whether the plaintiff is estopped by his own
act and conduct to file the present suit? OPD
5. Whether the defendant is entitled to special
costs u/s 35A CPC? OPD
6. Relief. “
After hearing learned counsel for the parties, I am of the
opinion that the present appeal deserves to be allowed.
The substantial question of law involved in this case is
” whether the lower Appellate Court has drawn wrong inferences from
the unproved facts and based its findings on mere conjectures and
surmises?”
Plaintiff-Attam Parkash had filed a suit for possession on
the ground that he was a tenant over the property in dispute and had
handed over the keys of the same to the defendant landlord to get
the same repaired. The case of defendant Sambhu Ram, on the
other hand, was that the tenancy had come to an end and due to this
reason, the plaintiff had handed over the keys of the demised
premises to him.
Parties had led oral evidence in support of their case. So
far as the plaintiff is concerned, he himself appeared in the witness
R.S.A.No. 113 of 1996 4
box as PW-1 and closed his evidence. The defendant, on the other
hand, himself appeared in the witness box as DW-1 and examined
DW-2 Sahib Singh and DW-3 Keso Ram. There is no rent deed on
record to establish the terms and conditions of the tenancy.
Admittedly, plaintiff had taken the godown in dispute on rent from the
defendant. A fire broke out in the said premises and the plaintiff
handed over the keys to the defendant. The question that requires
consideration is as to whether on handing over of the keys by the
plaintiff to the defendant, the tenancy had come to an end or whether
the keys had been handed over by the plaintiff to the defendant for
the purposes of repair of the godown in question.
In this regard there is no documentary evidence on
record. Plaintiff, while appearing in the witness box had deposed as
per the contents of the plaint. However, the statement of the plaintiff
is not corroborated by any other evidence. On the other hand, while
appearing in the witness box as DW-1, the defendant had deposed
as per the contents of the written statement. DW-2 Keso Ram
deposed that in the Panchayat it was decided that both the parties
will bear their own loses. A reading of cross-examination of the
plaintiff also reveals that some agreement was entered between the
parties in the panchayat. The matter was also reported to the police.
However, the said proceedings had not been proved on record by the
plaintiff. In the absence of any written terms and conditions
regarding the tenancy and any evidence corroborating the oral
R.S.A.No. 113 of 1996 5
statement of the plaintiff, the lower Appellate Court had based its
findings on mere conjectures and surmises. In fact, the plaintiff had
failed to prove his case. Since the plaintiff had handed over the keys
of the godown in question to the defendant, it raises a presumption
that the same were handed over with a view to put an end to the
tenancy as there are no written terms and conditions of the tenancy
on record to hold otherwise.
It is a settled proposition of law that the plaintiff has to
plead and prove his case and has to stand on his legs and cannot
draw any benefit from the weakness in evidence led by the
defendant. Lower Appellate Court in the facts and circumstances of
the present case had, thus, erred in decreeing the suit of the plaintiff
merely on the basis of uncorroborated oral testimony of the plaintiff
and had, thus, drawn wrong inferences from the facts, which were
never proved on record and had based its findings on mere
conjectures and surmises. Hence, the substantial question of law
arising in this appeal is answered accordingly.
Consequently, this appeal is allowed. The impugned
judgment and decree of the lower Appellate Court are set aside and
the judgment and decree of the trial Court are upheld.
No order as to costs.
(SABINA)
JUDGE
July 20, 2009
anita