High Court Punjab-Haryana High Court

Madalsa vs Madan Lal on 25 March, 2009

Punjab-Haryana High Court
Madalsa vs Madan Lal on 25 March, 2009
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.

                   ****

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
R.S.A. No. 1331 of 2009 2

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
R.S.A. No. 1331 of 2009 3

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
R.S.A. No. 1331 of 2009 4

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
R.S.A. No. 1331 of 2009 5

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