High Court Punjab-Haryana High Court

Sambhu Ram vs Attam Parkash on 20 July, 2009

Punjab-Haryana High Court
Sambhu Ram vs Attam Parkash on 20 July, 2009
R.S.A.No. 113 of 1996                                    1



      In the High Court of Punjab and Haryana at Chandigarh


                        R.S.A.No. 113 of 1996
                        Date of decision: 20.7. 2009


Sambhu Ram

                                                     ......Appellant

                        Versus


Attam Parkash

                                                   .......Respondent


CORAM: HON'BLE MRS. JUSTICE SABINA


Present:   Mr. H.S.Grewal,Advocate,
           for the appellant.

           Mr.Harkesh Manuja, Advocate,
           for the respondent.

                 ****


SABINA, J.

Plaintiff Attam Parkash filed a suit for possession of the

property in dispute and the same was dismissed by the Additional

Senior Sub Judge, Gohana vide judgment and decree dated

24.8.1993. In appeal, the said judgment and decree were set aside

by Additional District Judge, Sonepat vide judgment and decree

dated 30.11.1995 and the suit of the plaintiff was decreed with costs.

Hence, the present appeal by the defendant.

R.S.A.No. 113 of 1996 2

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

Court in para Nos. 2 and 3 of its judgment, are as under:-

“2. Undoubtedly, the plaintiff was a tenant under

the defendant qua the godown at the rental of Rs.55/- per

mensem, which was allegedly put on fire by the defendant

and his son Om Parkash on the night intervening 1/

2.5.1984. As a result thereof, many rafters of the godown

were damaged, which required replacement. The

defendant, after having replaced the same, put his lock

thereon, which he agreed to remove only if he withdraws

his police case.

3. The defendant admitted the factum of fire but

disputed that he had a hand therein. He further admitted

the registration of the case against him which, on enquiry,

was found to be false. He further admitted the factum of

handing over the key by the plaintiff to him which,

according to him, was given in pursuance of a

compromise arrived at with the intervention of the

panchayat. The defendant has accordingly set up the

plea of estoppel and further claimed special damage from

the plaintiff.”

On the pleadings of the parties, following issues were

framed by the trial Court:-

“1. Whether the plaintiff is entitled to the
R.S.A.No. 113 of 1996 3

possession of the suit property? OPP

2. Whether the suit is barred by limitation? OPD

3. Whether the suit is not maintainable in the

present form? OPD

4. Whether the plaintiff is estopped by his own

act and conduct to file the present suit? OPD

5. Whether the defendant is entitled to special

costs u/s 35A CPC? OPD

6. Relief. “

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

opinion that the present appeal deserves to be allowed.

The substantial question of law involved in this case is

” whether the lower Appellate Court has drawn wrong inferences from

the unproved facts and based its findings on mere conjectures and

surmises?”

Plaintiff-Attam Parkash had filed a suit for possession on

the ground that he was a tenant over the property in dispute and had

handed over the keys of the same to the defendant landlord to get

the same repaired. The case of defendant Sambhu Ram, on the

other hand, was that the tenancy had come to an end and due to this

reason, the plaintiff had handed over the keys of the demised

premises to him.

Parties had led oral evidence in support of their case. So

far as the plaintiff is concerned, he himself appeared in the witness
R.S.A.No. 113 of 1996 4

box as PW-1 and closed his evidence. The defendant, on the other

hand, himself appeared in the witness box as DW-1 and examined

DW-2 Sahib Singh and DW-3 Keso Ram. There is no rent deed on

record to establish the terms and conditions of the tenancy.

Admittedly, plaintiff had taken the godown in dispute on rent from the

defendant. A fire broke out in the said premises and the plaintiff

handed over the keys to the defendant. The question that requires

consideration is as to whether on handing over of the keys by the

plaintiff to the defendant, the tenancy had come to an end or whether

the keys had been handed over by the plaintiff to the defendant for

the purposes of repair of the godown in question.

In this regard there is no documentary evidence on

record. Plaintiff, while appearing in the witness box had deposed as

per the contents of the plaint. However, the statement of the plaintiff

is not corroborated by any other evidence. On the other hand, while

appearing in the witness box as DW-1, the defendant had deposed

as per the contents of the written statement. DW-2 Keso Ram

deposed that in the Panchayat it was decided that both the parties

will bear their own loses. A reading of cross-examination of the

plaintiff also reveals that some agreement was entered between the

parties in the panchayat. The matter was also reported to the police.

However, the said proceedings had not been proved on record by the

plaintiff. In the absence of any written terms and conditions

regarding the tenancy and any evidence corroborating the oral
R.S.A.No. 113 of 1996 5

statement of the plaintiff, the lower Appellate Court had based its

findings on mere conjectures and surmises. In fact, the plaintiff had

failed to prove his case. Since the plaintiff had handed over the keys

of the godown in question to the defendant, it raises a presumption

that the same were handed over with a view to put an end to the

tenancy as there are no written terms and conditions of the tenancy

on record to hold otherwise.

It is a settled proposition of law that the plaintiff has to

plead and prove his case and has to stand on his legs and cannot

draw any benefit from the weakness in evidence led by the

defendant. Lower Appellate Court in the facts and circumstances of

the present case had, thus, erred in decreeing the suit of the plaintiff

merely on the basis of uncorroborated oral testimony of the plaintiff

and had, thus, drawn wrong inferences from the facts, which were

never proved on record and had based its findings on mere

conjectures and surmises. Hence, the substantial question of law

arising in this appeal is answered accordingly.

Consequently, this appeal is allowed. The impugned

judgment and decree of the lower Appellate Court are set aside and

the judgment and decree of the trial Court are upheld.

No order as to costs.

(SABINA)
JUDGE
July 20, 2009
anita