R.S.A. No. 1331 of 2009 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 1331 of 2009 (O&M)
Date of Decision : 25.3.2009
Madalsa
.......... Appellant
Versus
Madan Lal
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. R.S. Mamli, Advocate
for the appellant.
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VINOD K. SHARMA, J. (ORAL)
This regular second appeal is directed against the judgment and
decree dated 9.12.2008 passed by the learned Courts below. The learned
trial Court dismissed the suit filed by the plaintiff / appellant for possession,
however, the learned lower appellate Court modified the judgment and
decree of the learned trial Court and partly decreed the suit for recovery of
arrears of rent.
The plaintiff / landlord brought a suit for possession on the plea
that the tenancy of the defendant / respondent stood terminated by way of
legal notice and also for the arrears of rent along with future mesne profit.
The learned trial Court on appreciation of evidence, recorded a
finding of fact that the plaintiff / appellant had failed to prove that the
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building was new and constructed within a period of ten years of filing of
the suit. The learned trial Court dismissed the suit.
The plaintiff / appellant preferred an appeal. The learned lower
appellate Court affirmed the findings recorded by the learned trial Court
holding that the property was not proved to have been constructed within
ten years and, therefore, suit for possession was not competent as provisions
of the Rent Act were applicable to the property in dispute.
However, the learned lower appellate Court held that the
plaintiff was entitled to decree for recovery of rent of three years and
accordingly decreed the suit for recovery of rent for said period.
The learned counsel appearing on behalf of the appellant
contends that this appeal raises the following substantial questions of law
for consideration by this Court :-
1. Whether the judgment and decree passed by the learned
Courts below are outcome of misreading of documents
Ex. P-1 to Ex. P-9 and Mark “A” thus perverse ?
2. Whether the learned Courts below were justified in not
granting decree of mesne profit though it was admitted
case that the rent was not paid by the defendant /
respondent ?
In support of the substantial questions of law the learned
counsel for the appellant contends that the plaintiff / appellant while
appearing as her own witness had made a statement that prior to inducting
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the defendant / respondent as tenant, the property in dispute was under the
tenancy of Jai Parkash who vacated the same on 31.7.1990. The property
was thereafter rented out to the defendant / respondent in January, 1991. It
was the case of the appellant that because of certain dispute with the
previous tenant a suit for recovery was filed which was decreed in April,
1996, the judgment was duly exhibited as Ex.P9.
It is also the contention of the learned counsel for the appellant
that the plaintiff examined official from the Department to prove that the
plan for construction was sanctioned in the year 1987, and also that in the
assessment register Jai Parkash, the previous tenant was shown to be tenant
over the disputed property, thus, the learned counsel for the appellant
contends that it was amply proved on record that the building was
constructed in the year 1988 and the suit having been filed in the year 1997
i.e. within ten years was maintainable. It is contended that the findings
recorded by the learned Courts below are therefore outcome of misreading
of evidence, documentary and oral, brought on record.
It is also the contention that the judgment and decree of the
learned Courts below are perverse.
The learned counsel for the appellant also contends that once it was
proved on record that the tenant had not paid the rent then the learned
Courts were bound to have granted a decree of mesne profit also for the
future period.
On consideration of the matter, I find no force in the
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contentions raised by the learned counsel for the appellant. The learned
Courts below on appreciation of evidence have recorded a concurrent
finding of fact that the plaintiff / appellant has failed to connect the property
in dispute with the alleged sanctioned plan, which was for residential house
and not for the building in dispute.
The learned Courts below have also recorded a finding of fact
that plaintiff has failed to connected the property with the sanctioned plan.
Furthermore she failed to place on record the completion certificate to show
the date of completion of construction. The finding of fact has been
recorded on appreciation of evidence and this Court can not reappreciate the
evidence to record a finding different from the one recorded by the learned
Courts below unless the findings are outcome of misreading of evidence or
perverse.
The contentions raised by the learned counsel for the appellant
cannot be accepted to hold that the judgment and decree passed by the
learned Courts below are outcome of misreading of evidence documentary
and oral as view taken can not be faulted with.
The second contention of the learned counsel for the appellant
cannot be accepted, as in the civil suit the Court can decree, the suit for
amount claimed and could not decree the suit for subsequent claim. It was
open to the plaintiff/appellant to have filed a suit for mesne profit / recovery
of rent for further period. The suit for possession was not competent as
admittedly the defendant / respondent was tenant over the property in
dispute and it was held that the provisions of the Rent Act were applicable
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therefore the tenancy could not be terminated by notice under Section 106
of the Transfer of Property Act. The learned lower appellate Court thus
rightly decreed the suit for recovery of rent for three years.
In view of the above, the substantial questions of law are
answered against the appellant.
No merit.
Dismissed.
25.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE