R.S.A. No. 3123 of 2007 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S.A. No. 3123 of 2007 (O&M)
Date of decision: 02.02.2009
Jiwa Singh S/o Bhagwana
....Appellant
Versus
Ram Pal S/o Tulsi Ram
....Respondent
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. B.S. Thind, Advocate,
for the appellant.
Mr. Vijay Lath, Advocate,
for the respondent.
*****
VINOD K. SHARMA, J (ORAL)
This regular second appeal is directed against the judgments
and decree dated 4.5.2005 and 15.5.2007 passed by the learned Courts
below decreeing the suit for possession and recovery of rent filed by the
plaintiff/respondent.
The plaintiff being owner of the property in dispute brought a
suit for possession on the plea that the tenancy of the defendant stood
terminated by issuing notice under Section 106 of the Transfer of
Property Act. The plaintiff also claimed recovery of rent for the last 17
months on the plea that the rent has not been paid.
The suit was contested by the appellant/defendant on the plea
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that the suit was not maintainable, as the plaintiff/respondent was not
landlord and owner of the property in dispute. The plea was also raised
that the suit was vague, as the property was not properly described.
The learned Courts below have recorded a concurrent finding
of fact that the plaintiff/respondent being owner and landlord of the
property in dispute was entitled to maintain the suit. The learned Courts
below further held that once the appellant had admitted the plaintiff to be
his landlord, he has no right to deny his title.
The learned counsel for the appellant raises following
substantial question of law for consideration in this appeal: –
“Whether the judgments and decree passed by the
learned Courts below are outcome of misreading
of pleadings and evidence brought on record, thus
perverse?”
In support of substantial question of law, the learned counsel
for the appellant contends that the reading of the plant would show that
the plaintiff was not sure of the period for which the rent was claimed
and, therefore, the learned Courts below could not have decreed the suit
for recovery of rent.
The learned counsel for the appellant also contends that the
judgments and decree passed by the learned Courts below cannot be
sustained, as no proper issues have been framed, which resulted in
prejudice to the defendant/appellant.
However, on consideration of matter, I find no force in the
contentions raised by the learned counsel for the appellant. The
appellant/defendant had admitted that the rent was being paid by him to
the plaintiff/respondent and thus, the learned Courts below were right in
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coming to conclusion that the appellant/defendant could not deny the
title of his landlord and that he was liable to be evicted. The learned
Courts also held that notice under Section 106 of the Transfer of
Property Act was validly issued terminating the tenancy.
No fault can be found with the finding recorded by the learned
Courts below that the rent was due, as claimed by the
plaintiff/respondent as it was pleaded that the rent for 17 months was
due and statement in support of pleading was also made. It was for the
appellant/defendant to show the payment of rent for the period claimed
to deny the said rent.
As regards the contention of the learned counsel for the
appellant that the issues have not been framed properly and thus
prejudice has been caused, also cannot be sustained, as the parties were
aware of the lis and led evidence in support thereof.
Once the parties are aware of the case set up, and evidence is
led, merely because there is some typographical error in the issue as
framed, cannot be a ground to challenge the judgments and decree, nor it
can be said to be substantial question of law specially when no such plea
was raised before the learned Courts below.
The appeal raises no substantial question of law for
consideration by this Court.
No merit.
Dismissed.
(Vinod K. Sharma)
Judge
February 02, 2009
R.S.