Randhir Singh And Another vs Suresh Kumar on 2 September, 2009

R.S.A.No. 3344 of 2008 (O&M)                                     1



      In the High Court of Punjab and Haryana at Chandigarh

                       R.S.A.No. 3344 of 2008 (O&M)
                       Date of decision: 2.9.2009


Randhir Singh and another
                                                       ......Appellants

                        Versus

Suresh Kumar
                                                     .......Respondent


CORAM: HON'BLE MRS. JUSTICE SABINA


Present:   Mr. Roopak Bansal, Advocate,
           for the appellants.

           Mr.B.R.Mahajan, Advocate,
           for the respondent.
                 ****

SABINA, J.

Plaintiff Suresh Kumar filed a suit for possession by way

of eviction and for recovery of mesne profits, which was decreed by

the Civil Judge (Jr.Divn.) Sonepat vide judgment and decree dated

20.12.2007. In appeal, the said judgment and decree were upheld

by the Additional District Judge, Sonepat vide judgment and decree

dated 25.8.2008. Hence, the present appeal by the legal

representatives of the defendant (since deceased).

Brief facts of the case, as noticed by the lower appellate

Court in para Nos. 2 to 4 of its judgment, are as under:-

“2. The plaintiff-respondent filed suit for
R.S.A.No. 3344 of 2008 (O&M) 2

possession of the disputed property measuring 3 kanals 1

marla as detailed in para no.3 of the plaint with further

relief of recovery of Rs.10,000/- as mesne profits for the

period of 10.8.1999 to 9.10.1999 and further mesne

profits at the rate of Rs.5,000 per month from the date of

filing of the suit till delivery of vacant possession.

3. The case of the plaintiff-respondent, in brief, is

that he purchased land measuring 3 kanals 1 marla, as

described in para no.1 of the plaint, from Umrao Singh

for a consideration of Rs.25,500/- vide registered sale

deed dated 7.8.1984. On the basis of the sale deed,

mutation bearing no.3094 was sanctioned in his favour

on 14.9.19085, by carving out Titamma in respect of

the land bearing Rect. & Killa No.56/12/1 (3-1). The

said land was leased out to the defendant for a period

of fifteen years commencing from 10.8.1984. On the

strength of the lease deed, mutation no.3121 was

sanctioned in favour of the defendant. The land was

leased out to the defendant for installation of a petrol

pump and the lease money was fixed Rs.3600/- per

annum payable at the rate of Rs.300/- per month.

Monthly tenancy commenced from 10th of each

calendar month and expired on 9th day of the following

calendar month. It has further been averred that there
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had been litigation between the parties regarding

recovery of lease money, for rendition of accounts and

dissolution of partnership firm constituted by the

parties. The defendant had been taking inconsistent

pleas with regard to the status of the plaintiff as partner

in the partnership firm and with regard to the recovery

of lease money from the defendant on the strength of

the lease deed. In various judgments, the defendant

has been held to be a tenant during the period of lease.

The defendant also admitted his possession as tenant

under the plaintiff. The defendant raised plea that an

amount of Rs.30,000/- was borrowed by him from the

plaintiff and interest at the rate of 10 per cent i.e.

Rs.300/- per month was to be paid on that amount. In

civil suit No.291 of 24.8.1987, the plea raised by the

defendant was not accepted by the Court. The appeal

filed against the said judgment was dismissed on

4.5.1990. The plaintiff further filed a civil suit No.722 of

1990 on 27.8.1990 for recovery of lease money of

Rs.10,800/- for the period of 10.8.1987 to 9.8.1990 and

that suit was also decreed with costs in his favour on

21.1.1994. The appeal filed against the said judgment

was dismissed on 16.2.1997. The plaintiff further filed

suit No.423 of 1993 for recovery of lease money of
R.S.A.No. 3344 of 2008 (O&M) 4

Rs.10,800/- for the period of 10.8.1990 to 9.8.1993,

which was decreed on 27.1.1998. Civil suits for

recovery of lease money for the period of 10.8.1993 to

9.8.1996 and 10.8.1996 to 9.8.1999 were also pending

adjudication. It has further been submitted that the

tenancy of the defendant was for a fixed period, which

ended on 9.8.1999. After expiry of the fixed term, the

tenancy of the defendant stood automatically

determined. Thus, the possession of the defendant

after efflux of time of tenancy originally fixed in the

registered lease-deed dated 10.8.1984 is illegal and

unauthorised, but he failed to hand over possession of

the disputed property to the plaintiff in spite of repeated

requests. Ultimately, a notice was got served by the

plaintiff upon the defendant to hand over the vacant

possession of the suit property and for payment of

mesne profits for illegal occupation, but the same did

not yield any result.

4. The defendant-appellant filed written

statement controverting the claim of the plaintiff on

various pump was issued in favour of the defendant,

being freedom fighter. In the application form, there

was column for nominating financer. Father-in-law of

Tilak Raj was the financer and he was approached
R.S.A.No. 3344 of 2008 (O&M) 5

through Tilak Raj at the instance of some friend and his

name was written in the form. Initially, financial help of

Rs.30,000/- was sought, out of which land for the petrol

pump was purchased. Agreement to that effect was

executed by the defendant, but Tilak Raj became

dishonest and he wanted to take benefit of his position.

The defendant was humiliated on account of the

depressed condition of his mind. Tilak Raj managed to

get the sale deed executed and registered in the name

of his son i.e. the present plaintiff Suresh Kumar and

also got written the other document, which is said to be

alleged lease deed. The same were without the

intention of the parties and as a result of fraud and

undue influence exercised upon the defendant,

therefore, such documents are void ab-initio and not

binding upon the right and title of the defendant. It has

further been submitted that Tilak Raj previously

instituted a suit for declaration to get declared his son

Sujresh Kumar as partner in the business of the petrol

pump being run by the defendant. The said suit was

got dismissed on 16.3.1998. Since the year 1985, Tilak

Raj had been pursuing one litigation after the other.

One similar suit was decided by the court of

Sh.P.L.Ahuja, and that judgment was reversed by the
R.S.A.No. 3344 of 2008 (O&M) 6

learned appellate court, which kept the status of the

parties as per dictum of the civil suit for declaration

pending at that time, which was got dismissed on

16.3.1998. After dismissal of the said suit, the plaintiff

was left with no such status, therefore, he is not entitled

to recover Rs.300/- per month as lease money. The

plaintiff has no concern with the suit land whereas the

defendant is owner in possession thereof. Therefore,

the defendant is not bound to make payment of any

amount and deliver possession of the disputed property

to the plaintiff. Other averments made in the plaint

have been denied.”

On the pleadings of the parties, following issues were

framed by the trial Court on 26.2.2001:-

“1. Whether the tenancy of the defendant stands

automatically determined on the expiry of period of lease

on 9.8.1999, if so, to what effect? OPP

2. Whether the notice of termination of tenancy is

illegal and not binding on the defendant? OPD

3. Whether the plaintiff is entitled to recover

damages of Rs.10,000/- for use and occupation of the

premises in dispute for the period from 10.8.1999 to

9.10.1999? OPD

4. Whether the plaintiff is entitled to decree for
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possession of the suit property? OPD

5. Whether the Court has no jurisdiction to try

the present suit? OPD

6. Relief. “

On the basis of amended pleadings of the parties, the

following issues were also framed on 4.5.2006:-

“1. Whether the plaintiff is entitled for possession

of the suit property, as alleged, if so to what effect? OPP

2. Whether the plaintiff is entitled for recovery of

Rs.10,000/- as mesne profits of the property for the

period from 10.8.1999 to 9.10.1999 and future mesne

profit at the rate of Rs.5,000/- per month as alleged, if

so to what effect? OPP

3. Relief.”

After hearing learned counsel for the parties, I am of the

opinion that the present appeal deserves to be dismissed.

The plaintiff filed a suit for possession by way of eviction

of the defendant from the suit property and also for recovery of

mesne profits. Parties led their evidence in support of their case.

The Suit bearing No.496 of 1984 was filed by the plaintiff for

declaration. During the pendency of that suit another suit was filed

by the plaintiff bearing No.291 of 24.8.1987 for recovery of

Rs.10,800/- as rent. It was alleged that the defendant was a tenant

over the property in dispute and was running a petrol pump on
R.S.A.No. 3344 of 2008 (O&M) 8

payment of yearly rent of Rs.3,600/-. The said suit was decreed by

the trial Court on 7.8.1989 and the appeal filed against the said

judgment and decree was disposed of with a direction that the

amount realized from the defendant be adjusted according to the

terms of the decree of already pending suit. However, suit No.496 of

1984 was dismissed in default vide order dated 16.3.1998.

The case of the plaintiff is that he had purchased the suit

land vide registered sale deed dated 7.8.1984 for a consideration of

Rs.25,500/-. The defendant had set up a petrol pump on the said

land in dispute. The sale deed in question was signed by the

defendant as an attesting witness. He never challenged the said

sale deed. Ex.P-6 is the copy of the lease deed. The said lease

deed is a registered document. As per the same, the land in dispute

was given on lease to the defendant for fifteen years i.e. from

10.8.1984 to 9.8.1999. After expiry of the said lease deed, the

possession of the land was liable to be handed over to the plaintiff by

the defendant. It has been observed by the learned Additional

District Judge in the impugned judgment that in the suit filed by the

plaintiff bearing No.496 of 1984, the plaintiff had pleaded that the

land was exclusively purchased by him vide sale deed dated

7.8.1984 and thereafter, he entered into a partnership with the

defendant on 8.2.1985 and the shares of the parties in business were

to the extent of 50% each. Hence, he was entitled to get share in the

property made by the defendant while running the petrol pump.
R.S.A.No. 3344 of 2008 (O&M) 9

Written statement was filed by the defendant in the said

suit and execution of the partnership deed was denied. It was

averred that the land was, in fact, purchased by the defendant by

taking a loan of Rs.30,000/- from Tilak Raj and the partnership deed

might have been got fraudulently scribed by Tilak Raj as defendant

had signed certain documents for security purposes. During the

pendency of the said suit, another suit was filed by plaintiff bearing

No.291 dated 24.8.1989 for recovery. The amount of Rs.10,800/-

was held to be recoverable by the plaintiff by the trial Court but in

appeal, it was held that the same would be subject to the decision of

suit No.496 of 1984. However, the present suit has been filed for

eviction after the expiry of the lease period. Hence, both the Courts

below rightly held that the present suit was maintainable. The suit of

the plaintiff regarding recovery of mesne profits was also rightly

decreed by the Courts below from the date of filing of the suit till

actual delivery of possession of the land in dispute as the defendant

has remained in possession of the suit land after the expiry of the

lease period.

No substantial question of law arises in this regular

second appeal. Accordingly, the same is dismissed.

(SABINA)
JUDGE
September 02, 2009
anita