C.M. No.3116-CII of 2009 and
Civil Revision No.6797 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.M. No.3116-CII of 2009 and
Civil Revision No.6797 of 2008.
Date of decision:- 06.02.2009.
Phulwant Kaur ...Applicant-Petitioner.
Versus
Raj Kumar and another ...Respondents
CORAM: HON’BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. Y.P. Singla, Advocate
for the applicant-petitioner.
JASWANT SINGH J.
C.M. No.3116-CII of 2009
This is an application under Section 151 of the Code of Civil
Procedure for exemption from filing the certified copy of Annexure P-10.
For the reasons mentioned in the application, the same is
allowed and the document Annexure P-10 is taken on record.
Civil Revision No.6797 of 2008
Petitioner-objector-Phulwant Kaur has filed the present
revision petition under Article 227 of the Constitution of India for setting
aside the impugned order dated 06.11.2008 (Annexure P-7) vide which the
objections filed under Order 21 Rule 97 of the Code of Civil Procedure as
well as the application for amendment of objection petition under Order 6
Rule 17 of CPC have been dismissed, further to quash and setting aside the
impugned order dated 06.11.2008 (Annexure P-8) vide which the warrant of
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possession of the shop in dispute has been issued in favour of respondent
No.1-landlord. The facts giving rise to the matter in controversy are as
under:-
One Niranjan Singh, husband of petitioner and father of
respondent No.2-Jagjit Singh, was the tenant in a bigger shop having 14′
front abutting the main road situated at railway road, Banga, District Nawan
Shahr including the shop in dispute being the part of that bigger shop and
one Sumitra Devi wife of Shri Ram and mother of respondent No.1 was the
land-lady. It is alleged that after the death of Niranjan Singh, his son i.e.
Respondent No.2 got a half share in the rented shop and took possession of
his share qua the Eastern side and raised partition in the bigger shop, which
was converted into smaller shop and the shop in dispute was converted into
smaller shop having about 7′ width abutting the main road. It is further
pleaded that later on Jagjit Singh-respondent No.2 vacated his share in the
adjoining portion, which was part and parcel of the bigger shop and handed
over the possession to the land-lady and the remaining part of the shop in
question remained in the possession of petitioner right from the death of her
husband Niranjan Singh and petitioner never handed over her shop in
question to respondent No.2-Jagjit Singh at any point of time. It is further
pleaded that the petitioner is doing the work of selling small bakery and
confectionary items in the shop in dispute and Joginder Singh-respondent
No.2 is living separately and having no concern with the petitioner. It is
further pleaded that petitioner-objector has inherited the tenancy right of
Niranjan Singh and the Objector never consented her son-respondent No.2
to execute any rent note in favour of respondent No.1 at any point of time
with regard to the shop in dispute and it is also alleged that respondent No.2
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has in connivance with respondent No.1 under hand and at the back of the
objector and without her knowledge executed a fake rent note in favour of
Raj Kumar-respondent No.1 with regard to the shop in dispute with
malafide intention. The respondent No.1 filed reply to the objection
petitions and inter alia submitted that respondent No.1 filed an ejectment
petition against respondent No.2 and the same was allowed vide judgment
and decree dated 27.01.2001 (Annexure P-1) passed by learned Rent
Controller, Nawan Shahar vide which the respondent No.2 was ordered to
deliver the vacant possession of the demised premises (shop) to the
petitioners-respondent No.1 within 60 days from the date of decree i.e.
27.01.2001.
Thereafter, present petitioner filed a civil suit No.517 of 2005
dated 05.06.2002 for declaration to the effect that the plaintiff is tenant
under the defendant No.1 at the rate of Rs.12.50 paisa per month, of the
shop, shown in the site plan with consequential relief of permanent
injunction restraining the defendants permanently from interfering in her
possession and not to dispossess the plaintiff forcibly or illegally. The civil
suit has been dismissed by learned Civil Judge (Junior Division) Nawan
Shahr vide judgment and decree dated 9th January, 2007 (annexure P-2) on
the ground that the suit is not maintainable and the plaintiff may avail the
remedy to approach the Executing Court for filing objections in view of the
decision of Hon’ble Supreme Court in the case reported as N.S.S. Narayana
Sarma and others v. M/s Goldstone Exports(P) Ltd. and others, 2002(1)
Civil Court Cases 241.
It is necessary to mention here that petitioner had filed an
appeal against the judgment and decree dated 9th January, 2007 but the same
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has also been dismissed by the learned Additional District Judge, Nawan
Shahr on 6th May, 2008 as disclosed in application under Order 6 Rule 17 of
CPC (Annexure P-5) and on this ground the petitioner is praying for
amendment of the pleadings by alleging that the suit of the petitioner has
been dismissed by learned Trial Court without going into the merits of the
case and even the appeal has also been dismissed by upholding the same. In
view of that para No.3 of the objection petition is sought to be amended by
proposed amendment that right of the parties are to be adjudicated by the
Executing Court by framing proper issues and allowing the parties to lead
evidence in support of their claim.
The learned Executing Court has rejected both the applications
i.e. application for amendment of the objection petition as well as the
objection petition itself by taking note of the fact that the civil suit filed by
Kulwant Kaur has also been dismissed by 9th January, 2007 and appeal their
against has also been dismissed by learned Additional District Judge vide
judgment and decree dated 06.05.2008 on the ground of non-maintainability
of the suit. It is further observed that in fact Niranjan Singh, husband of the
present petitioner was the tenant in the shop in dispute and he had died on
18.07.1980 and there is no material available on record to show that
petitioner is in the possession of the shop in dispute and she has also not
specified the portion of the shop, which is under her possession. No site
plan of the shop has been produced on record.
This case came up for hearing on 08.12.2008 and the following
order were passed:-
“Learned counsel for the petitioner prays for a
week’s time to place on record showing that independent
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tenancy was created in favour of the objector-petitioner
by the landlord.
Adjourned to 16.12.2008.”
In pursuance of order dated 08.12.2008, petitioner has not
placed on record any document to substantiate that any independent tenancy
was created in favour of the objector-petitioner by the landlord rather copy
of one assessment register dated 09.01.2009 for the year 2008-09 (Annexure
P-10) is placed on record in which in column No.5, the name and address of
the occupants are shown, which is as under:-
“Niranjan Singh, Krishan Lal son of Bodh Raj and
Pulwant Kaur widow.”
Therefore, it shows that Niranjan Singh alongwith Krishan Lal
and Phulwant Kaur have been shown in the occupation but undisputedly,
Niranjan singh had died on 18.07.1980, therefore, no reliance can be placed
upon such a document, in which dead man is shown to be in possession,
who has expired 27 years ago, and what is the basis for the assessment
registered (Annexure P-10) is not placed on record. It is the own case of the
petitioner in civil suit dated 5th June, 2002 (Annexure P-2) that she is
claiming herself as a tenant at the rate of Rs.12.50 paisa per month of the
shop in dispute, which is very interesting and beyond comprehension. Still
further there is no documentary evidence available on record to substantiate
the possession of the petitioner. Learned Executing Court has rightly
observed that she has failed to produce any bill regarding sale, purchase of
goods from the alleged shop, which she is selling and she has also not
produced any record of electricity bills and even the description of the shop,
given in the objection petition, is not tallying with the site plan of the shop
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in dispute, prepared on 15.04.1996 and a detailed deliberation has been
given by learned Executing Court in paragraph 6 regarding the site plan, and
relevant portion is reproduced as under:-
“Even the description of the shop given in the objection
petition does not at all tally with the site plan of the shop
in question prepared on 15.04.1996. The said site plan
had not been disputed by any of the main litigants, that is
the parties to the ejectment petition. A perusal of the site
plan (Ex.A1) reveals that the shop was having a frontage
of 7′-3½”. The width of the rear portion of the shop was
20′-3″. The length of the shop was shown to be 42 feet.
The objector has on the other hand claimed that the shop
was having a total width of 14 feet and further that after
effecting a partition, she had constructed a wall in the
middle of the shop. She is thus claiming to be in
possession of a portion having a width of 7 feet. This is
highly improbable because the total width of the shop
was 7′-3½”. The shop is surrounded in the west by stair-
case. As such, the alleged partition of the shop, having a
total width of 7′-3½”, to convert it into a shop having a
width of 7′ is absolutely unlikely. Even if it is assumed
that objector Phulwant Kaur is in possession of the
property situated on the Eastern side of the shop, no
relief qua the said property is being claimed by the
landlord/decree holder. As such, no prejudice is being
caused to her qua her possession over any such Eastern
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portion of the shop.”
The record of the case reveals that the ejectment petition was
allowed way-back on 27.01.2001 (Annexure P-1) in favour of respondent
No.1 but he is still fighting for the possession for the last 8 years despite the
fact that the judgment and decree dated 27.01.2001 has become final and no
appeal is pending against the same.
Keeping in view the facts and circumstances of the case
discussed above, this court does not find any merit in this petition worth any
interference under Article 227 of the Constitution of India and there is no
perversity in the impugned orders dated 06.11.2008 (Annexure P-7 and
Annexure P-8).
No merits.
Dismissed with no order as to costs.
February 6, 2009 (JASWANT SINGH) vj JUDGE