SECOND APPEAL 7 of 2003 on 20 June 1985

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

RSA No.: 7 of 2003-A.

Reserved on: 05.12.2014.

Decided on: 23.12.2014.

__________________________________________________________

Bimla Kalia and others.

… Appellants.

Versus

Naresh Kumar and others.

… Respondents.

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?[1] No. For the Appellants : Mr. Anand Sharma, Advocate. For the Respondents : Mr. Ajay Sharma, Advocate.

Dharam Chand Chaudhary, J.:

Plaintiffs and proforma defendants are in second appeal. They are aggrieved by the judgment and decree dated 16.11.2002 passed by learned District 1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

Judge, Chamba, modifying thereby the findings recorded by learned Senior Sub Judge, Chamba on issue No.1 in judgment dated 15.10.2001 passed in civil suit No.157 of 1998 to the effect that the plaintiffs and proforma defendants are owners of the land bearing khasra Nos.2526, 2527 and 2528 measuring 61-8 square yards situate in Chowgan Bazaar, Chamba, District Chamba and held that they are only landlords of the suit land. The suit land, admittedly, was property of Gulam Nabi, Saraf Din, Taj Din and Allah Din. The same except for Allah Din was mortgaged with Hari Ram, predecessor-in-interest of the plaintiffs-appellants. After partition of the country, the original mortgagors migrated to Pakistan. The same therefore came to be vested with the Custodian of Evacuee Property.

2. One building was in existence over the suit land. Predecessor-in-interest of the plaintiffs, said Hari Ram had rented out the same at a monthly rental of `35/- somewhere in the year 1948 to Shri Sat Pal, predecessor-in-interest of the respondents-defendants No.1 to 4, hereinafter referred to as ‘the defendants’. Said Sat Pal continued to pay the rent regularly to the mortgagee, i.e. Hari Ram till 1972. He stopped making payment of the rent thereafter. On finding that he sublet the demised premises and also failed to pay the rent, the landlord filed eviction petition for eviction of said Sat Pal. Learned Rent Controller on appreciation of the evidence available on record arrived at a conclusion that the tenant had sublet a portion of the demised premises, however, the plaintiffs were not held entitled to the payment of rent being not owners. The rent petition, therefore, came to be dismissed. In appeal registered as Civil Miscellaneous Appeal No.90 of 1982, learned appellate authority held the plaintiffs to be the landlords and taking into consideration the definition of landlord in its broader sense arrived at a conclusion that the plaintiffs being mortgagees are landlords and ordered eviction of Sat Pal, the predecessor-in-interest of the defendants vide judgment Ex.PB, dated 22.9.1984. The judgment Ex.PB, however, was quashed by this Court in Civil Revision No.207 of 1984 vide order dated June 20, 1985 and appeal remanded to the appellate authority with the following directions, as is apparent from the order dated 18.1.1986 Ex.PZ passed by learned appellate authority on remand of the appeal:- “The case is remanded to the Appellate Authority with a direction to re-admit the appeal on its file and to decide the said issue afresh in accordance with law after affording to the parties an opportunity to establish their rival cases. It is clarified that the petitioners will not be permitted by the Appellate Authority to challenge the findings recorded by the Rent Controller on the issues relating to sub-letting and non-payment of rent and that those issues must be taken to have been decided against them finally.”

3. Order Ex.PZ reveals that on remand also, learned appellate authority has held the plaintiffs to be the landlords, whereas, the respondents having been inducted tenants in the demised premises and ordered

their eviction on the ground of subletting and they being in arrears of rent. The order Ex.PZ was further assailed before this Court in Civil Revision No.52 of 1986. A Co-ordinate Bench of this Court on appreciation of the evidence available on record in judgment Ex.PY has held as under:- “Before examining and answering the key question of relationship of landlord and the tenant between the parties argued by the learned counsel for them, it is necessary to record that this property is a double storey house. It was jointly owned by Gulam Nabi, Saraf Din, Taj Din and Allah Din. The owners, excepting Allah Din had mortgaged their shares to Hari Ram, predecessor-in-interest of the respondents. The original mortgagors migrated to Pakistan after the partition of the country and the property came to be vested in the Custodian of Evacuee Property. Shri Hari Ram rented this building to Satpal at a monthly rent of Rs.35/- somewhere in 1948. Shri Satpal continued in possession of this property even after the death of Hari Ram. He also continued to pay the rent regularly to Shri Hari Ram till 1972. Thereafter, he stopped making the payment. The case of the respondents is that Satpal sub-let the building to second respondent on 1.4.1980 as a result whereof country liquor vent is operating from these premises.

There is a judgment (Ex.RA) passed in C.M.A. No.159-S/14 of 1979, Sat Pal vs. CustodianEvacuee Property and others. It has been held in this decision that the property stood redeemed and was free from all encumbrances of mortgage. It also records that after the departure of original mortgagors from India to Pakistan, this property vested in the Custodian of Evacuee Property. It is also in the judgment that Hari Ram had inducted Satpal as tenant in the premises on monthly rent of Rs.35/- in 1948 and he continued to be I possession of these premises even after the death of Shri Hari Ram to who he had been paying rent regularly till 1972. Thus, it is proved that Satpal was tenant of Hari Ram who has been the predecessor-in-interest of the respondents. Later, Hari Ram applied to the Custodian Department for the sale of the building in his favour. By an order of 20.10.1979, the competent officer sold the property to Hari Ram through sale certificate (AW 6/A) dated 3.3.1980 and mutation thereof was also sanctioned on 31.3.1980 and in place of the Central Government Hari Ram was recorded as the owner of the property. This order was

reversed in CMP No.159-S/14 of 1979 dated 6.1.1982 (Ex.RA). As a matter of fact, the sale of the premises in dispute by the Custodian Department as a sequal to the order of settlement was held to be incomplete and the ownership of the same thus continued to be with the Custodian Department. The additional evidence brought before the Court demonstrates that this property was transferred to the respondents against payment of value thereof within a particular time. The same was paid by the respondents and the transaction stood closed as per the procedure applicable in such like cases. In these circumstances the submission that Hari Ram, predecessor-in-interest of the respondents, did not become the land of the property after the Custodian Department, has not substance more particularly in view of the wide definition of landlord contained under the Rent Act. Even Satpal had admitted that he used to pay rent to Hari Ram, as is clear from the judgment of Appellate Authority (Ex.RA) in CMP No.2159-S/14 of 1979.

After carefully examining the case file, including the documents available therein, there is no manner of doubt that relationship of landlord and tenant exists between the parties. The Appellate Authority has examined this question quite comprehensively and meticulously in the impugned judgment before recording this finding. Since my conclusion is also similar, I proceed to confirm this view of the Appellate Authority.

No other submission was made by the learned counsel for the parties.

The result, therefore, is that there is no merit in this appeal and the same is accordingly dismissed. However, the parties are left to bear their respective costs.”

4. The revision petition, therefore, was

dismissed against the defendants. The matter was taken to the Apex Court in Civil Appeal Nos.7060-7061 of 1994 (arising out of SLP(C) Nos.10723-24/94). The appeal was disposed of by the Apex Court vide judgment Ex.PX dated October 17, 1994. The observations made by the Apex Court in Ex.PX read as follows:- “……….. The premises in dispute was evacuee property and initially stood vested in the custodian. The property in dispute was mortgaged with the processor-in-interest of the present owners. There has been prolonged litigation between the parties and the case has a chequered history. We are of the view that the tenant never intended to deny the title of the respondents but he was misled in doing so.

The appellants are paying Rs.35/- per month as rent of the premises since 1948-49. Apart from residing in the premises the appellants are also running a sort of ‘dhaba’ in the premises. After hearing learned counsel for the parties we are of the view that the ends of justice would be met if the appellants are permitted to continue as tenants in the premises on their paying a sum of Rs.850/- per month as rent of the premises to the respondents with effect from October 1, 1994. We order accordingly. Mr. E.C. Agrawala, learned counsel for the respondents-landlord has also consulted his client who is present in Court. We further direct the tenants to pay all the arrears of rent at the rate of Rs.35 per month till September 30, 1994 within four months from today. Learned counsel for the appellants states that they have deposited the arrears of rent in the High Court/trial court. We give liberty to the appellants to withdraw the amount from the High Court/trial court and make the payment to the landlord directly within the period of four months. We set aside the judgment of the High Court and allow the appeal in the above terms. Needless to say that the landlord will be at liberty to move any fresh application for ejectment on all available grounds including that of subletting. No costs.”

5. It is by virtue of the judgment Ex.PX (supra), the defendants continued to be occupying the demised premises in the capacity of tenant on payment of a sum of `850/- per month as rent to the plaintiffs till the demised premises gutted in an unfortunate incident of fire having broken out during the intervening night of 11/12.10.1998 and turned into debris. On 12[th] October, 1998 around 9.00 p.m. plaintiff Jai Ram noticed the defendants carrying wooden planks and karris to start construction work at the site. When said Shri Jai Ram objected to such act and conduct of the defendants, he however was administered beatings by them and his clothes were also torn. He could manage his escape with the intervention of the police. This has led in filing the suit in the trial court on the grounds that on reducing of the demised premises into ashes after the incident of fire, the defendants have lost their status as tenants and also the tenancy rights, hence not entitled to raise any construction over the site. The plaintiffs, therefore, sought decree for permanent prohibitory injunction restraining the defendants from interfering in the suit land bearing khasra Nos.2526, 2527 and 2528 measuring 61-8 square yards situate in Chowgan Bazaar, Chamba Town and raising construction thereon. 6.The defendants in written statement to the suit have raised preliminary objections that there exists no relationship of landlord and tenant between the parties and that it is only the Rent Controller has the jurisdiction to entertain and try any dispute qua the suit property. Objections qua the maintainability and jurisdiction have also been raised. Deceased Hari Ram was admitted to be their landlord, however, not owner of the suit property. On merits, though the fire having broken out and the premises reduced into ashes, has not been disputed, however, it is stated that vacant land is still available on the spot and walls of the old structure are also intact. The structure can be restored by carrying out ordinary repairs and putting roof or slab over the walls, which they can put to use as hotel as before. It is denied that the defendants have lost their tenancy rights and rather the entries showing the plaintiffs and proforma defendants as owners have been stated to be wrong and incorrect.

7. In replication, the plaintiffs have denied the contentions to the contrary in the written statement being wrong and reiterated that deceased Hari Ram was owner in possession of the property in dispute.

8. On the pleadings of the parties, learned trial Court had framed the following issues:-

1. Whether the plaintiffs and proforma defendants are owners of the shop in dispute as alleged? defendants are owners of the shop in dispute as alleged?

…OPP.

2. If issue No.1 is proved in affirmative, whether they are entitled for the relief as claimed as alleged? ...OPP. they are entitled for the relief as claimed as alleged? ...OPP.

3. Whether this court has no jurisdiction to entertain to try this suit as alleged? …OPD. entertain to try this suit as alleged? …OPD.

4. Whether the suit of the plaintiffs is not maintainable? …OPD. maintainable? …OPD.

5. Whether the suit of the plaintiffs is bad for non joinder or mis-joinder? …OPD. non joinder or mis-joinder? …OPD.

6. Whether the suit of the plaintiffs is under value for the purpose of court fee as alleged? ...OPD. value for the purpose of court fee as alleged? ...OPD.

7. Whether the plaintiffs are debarred from filing the present suit by their act and conduct? .OPD. filing the present suit by their act and conduct? .OPD.

8. Relief.

9. On appreciation of the evidence, more

particularly, the documentary evidence, plaintiffs and proforma defendants were declared owners of the suit land while answering issue No.1. The remaining issues

No.3 to 7 were answered against the defendants and the suit was therefore decreed for the relief of permanent prohibitory injunction vide judgment dated 15.10.2001. Learned lower appellate court in appeal though upheld the judgment and decree passed by learned trial court, however, with the modification that the plaintiffs are landlords and not owners of the property in dispute while placing reliance on the judgment dated 6.1.1982, Ex.DA passed by learned District Judge (Appellate Authority under the Evacuee Property Act), Shimla whereby the property in question was deemed to be vested in the Custodian free from all encumbrances and liabilities instead of the plaintiffs and proforma defendants. 10.The legality and validity of the impugned judgment and decree has been assailed on the grounds, inter alia, that the lower appellate court has ignored the well reasoned judgment passed by the trial court and erroneously concluded that the plaintiffs are not the owners of the suit land and rather only the landlords. A reference has been made to the judgment Ex.PZ passed by learned appellate authority under the Rent Control Act and Ex.PY that of this Court in Civil Revision No.52 of 1986 as well as that of the Apex Court Ex.PX in Civil Appeal Nos.7060-61 of 1994 in which the plaintiffs have been held owners of the property in dispute, whereas the defendants, tenants under them. The statement of DW-3 is completely misread as according to the appellants-plaintiffs, DW-3 in his cross-examination has deposed that after the judgment Ex.DA passed by the appellate authority, the Naib Tehsildar (Sales)-cum-Managing Officer, Kangra called upon Smt. Kamla Devi widow of late Shri Hari Ram, the predecessor-in-interest of the plaintiffs to deposit the sale consideration `22,000/- (after adjustment of the mortgage money `8,260), i.e. `13,740/-, which was duly deposited by her in the treasury. The sale of the suit land, therefore, was confirmed and the plaintiffs became owners of the suit land. The evidence available on record is therefore not appreciated in its right perspective. The judgment and decree under challenge to the extent of the same held the plaintiffs landlord in respect of the suit property and not owners has therefore been sought to be quashed and set aside.

11. The appeal has been admitted on the

following substantial questions of law (1, 2 and 3):-

1. Whether the findings of the learned lower Appellate Court on the question of title can be legally sustained in view of the earlier judgments inter se the parties being Ex.PB, Ex.PY and Ex.PX, wherein the appellant has been held to be the owner of the property right upto the Hon’ble Apex Court? Appellate Court on the question of title can be legally sustained in view of the earlier judgments inter se the parties being Ex.PB, Ex.PY and Ex.PX, wherein the appellant has been held to be the owner of the property right upto the Hon’ble Apex Court?

2. Whether the respondents were estopped from challenging the title of the appellants, more particularly after the judgment of the Hon’ble Apex Court Ex.PX? from challenging the title of the appellants, more particularly after the judgment of the Hon’ble Apex Court Ex.PX?

3. Whether the findings of the various Courts (Ex. PB, PX and PY) in the earlier litigation (Ex. PB, PX and PY) in the earlier litigation inter se the parties would operate as res-judicata on the question of the title?

12. It is seen from the substantial questions of law, supra, that the appraisal of the evidence, particularly, documentary is required for adjudication thereof.

13. True it is that the learned lower appellate court has not appreciated the documentary evidence, i.e. Exs. PB, PY, PX and also PZ in its right perspective. If the evidence available on record is not found to be appreciated by the court below in its right perspective and rather misconstrued or misread, the same renders the findings recorded perverse and on account of that the judgment and decree passed also vitiate, hence, cannot be said to be legally and factually sustainable.

14. As per the facts, which are not in any controversy, the owners of the suit property were Gulam Nabi, Saraf Din, Taj Din and Allah Din. Same was mortgaged by them with Hari Ram, the predecessor-in- interest of the plaintiffs and proforma defendants. After the partition of the country, the above said owners left for Pakistan and the suit property remained in possession of the mortgagee, Shri Hari Ram. He rented out the same to Sat Pal at a monthly rental of `35/- somewhere in the year 1948. Shri Sat Pal continued to be in possession of the demised premises on payment of rent to Shri Hari Ram. Later on, he however stopped making payment of the rent and rather sublet a portion of the demised premises. This has led in filing an eviction petition for his eviction in the court of learned Rent Controller, Chamba. The eviction petition was dismissed. The order passed by learned Rent Controller however was reversed by learned appellate authority vide judgment dated 18.1.1986, Ex.PZ holding Shri Hari Ram, predecessor-in-interest of the plaintiffs as landlord. In revision preferred by Smt. Shakuntla widow of Shri Sat Pal, the same was dismissed vide judgment dated 23[rd] August, 1993, Ex.PY with the observations referred to hereinabove in this judgment. The perusal of the judgment Ex.PZ passed by learned appellate authority (District Judge, Kangra Division at Dharamshala) reveals that on appreciation of the evidence Sat Pal, the predecessor-in-interest of the defendants was held to be the tenant qua the demised premises under Hari Ram, predecessor-in-interest of the plaintiffs. The factum of the property was sold to the predecessor-in-interest of the plaintiffs vide sale certificate Ex.AW-6/A on the record of the rent petition, the plaintiffs were recorded owners of the property in dispute. No doubt, vide judgment Ex.DA in CMA No159-S/14 of 1979 the Appellate Authority under the Evacuee Property Act has held that the plaintiffs having received a sum of `10,080/- by way of rent against the amount due and payable to the mortgagees, i.e. `8,260/- inclusive of interest, the suit property could have not been sold to the plaintiffs. The sale thereof no doubt was set aside, however, during the course of proceedings before

Analysis

learned Rent Controller, the plaintiffs examined Shri Phinu Ram, Naib Tehsildar (Sales)-cum-Managing Officer, Kangra, who has proved the letter dated 6.6.1984 issued by him to Smt. Kamla Devi widow of late Shri Hari Ram asking her to deposit the difference amount, i.e. `13,740/- on adjustment of `8,260/-, the mortgage money in the sale consideration of `22,000/-. The said amount was deposited vide challan No.14 dated 12.6.1984 and the payment thereof was acknowledged by the custodian, in evidence. Such evidence has been produced by the plaintiffs during the course of proceedings in the eviction petition. It is in this backdrop, learned appellate authority under the Rent Control Act reversed the order passed by learned Rent Controller and ordered the eviction of the respondents (tenants) vide judgment Ex.PZ. The judgment Ex.DA dated 6.1.1982 passed by the learned Appellate Authority under the Evacuee Property Act made basis by learned District Judge to reverse the findings of the trial court qua the plaintiffs are owners of the suit land, has been dismissed by learned appellate authority under the Rent Control Act while deciding the appeal vide judgment dated 18.1.1986, Ex.PZ, discussed supra. Not only this, but this Court in judgment rendered on 23[rd] August, 1993 in Civil Revision No.52 of 1986, Ex.PY has taken note of all such facts and evidence and held the plaintiffs to be the landlords of the property in dispute, whereas, the respondents-defendants tenants under them and upheld the judgment Ex.PX passed by learned appellate authority.

15. The Apex Court vide judgment rendered in Civil Appeal Nos.7060-61 of 1994 has went one step further while observing that the demised premises being evacuee property and initially stood vested in the custodian, was mortgaged with the predecessor-in-interest of the present ‘owners’ . The word owners as used by the Apex Court in the judgment, supra, refers to the plaintiffs. Not only this, but as per further observations of the Apex Court, the tenant (predecessor-in-interest of the defendants in the present lis) never intended to deny the title of the respondents (plaintiffs herein) but he was misled in doing so, leads to the only conclusion that the Apex Court has held the plaintiffs to be owners of the demised premises.

16. Above all, defendants herein accepted the plaintiffs to be the owners of the demised premises and it is for this reason they agreed to pay the rent at the rate of `850/- per month to them w.e.f. October 01, 1994.

17. The law laid down by the Apex Court in M.M. Quasim v. Manohar Lal Sharma and others, AIR 1981 SC 1113 and in Gurbaksh Singh v. Nikka Singh and another, AIR 1963 SC 1917, relied upon by learned counsel representing the defendants is not applicable in this case because the defendants have admitted themselves to be the tenants of the property in dispute.

18. There is also no question of elaboration of difference between landlord and land-owner as argued by learned counsel representing the defendants. The law laid down by the Apex Court in National Spiritual Assembly of Bahais of India and others Versus Maharashtra State Khadi and Village Industries Board and another, 1994 Supp.(2) SCC 704 and in Puthukkattil Parangodan Versus Puthukkattil Parameswaran, 2002(2) RCR 215 also need not be discussed here being not applicable in the given facts and circumstances.

19. The evidence as has come on record by way of the testimony of DW-3 has also been misread for the reason that the said witness in his cross-examination has categorically stated that after the judgment Ex.DA passed by learned appellate authority under the Evacuee Property Act, Shri Phinu Ram, Naib Tehsildar (Sales)-cum-Managing Officer had called upon Smt. Kamla Devi, the predecessor-in-interest of the plaintiffs to deposit the difference of amount towards sale

consideration, i.e. on adjustment of the mortgage money consequent upon the sale of the property in dispute in their favour. She deposited the same and the sale was also confirmed. The sale certificate was also issued. It is thereafter, the suit property came to be entered in the revenue record, i.e. Exs. DX and DY in the name of the plaintiffs. Therefore, the order Ex.DA passed by learned appellate authority under the Evacuee Property Act in ignorance of the judgment of the Apex Court, Ex.PX should have not been made basis to arrive at a conclusion that the plaintiffs were not the owners and only landlords of the suit property. The defendants in view of the overwhelming evidence available on record were estopped from raising any objection qua ownership of the plaintiffs over the suit property. Otherwise also, a tenant has no right to question the title of the landlord in the demised premises. It is held so in FGP Ltd. Vs. Saleh Hooseini Doctor & Anr. 2010(1) Civil Court Cases 14 (SC). Similar is the ratio of the judgment of the Apex Court in Amarendra Komalam & Anr. Vs. Usha Sinha & Anr. 2005(3) Civil Court Cases 228 (SC) and that of Karnataka High Court in Bhogadi Kannababu & Ors. Vs Vuggina Pydamma & Ors. 2006(3) Civil Court Cases 348 (SC). 20.In view of the appraisal of the evidence available on record learned appellate court while modifying the findings recorded by learned trial court on issue No.1 holding the plaintiffs to be landlords and not owners on the basis of the judgment Ex.DA passed by learned lower appellate court in ignorance of the judgment of the Apex Court Ex.PX and that of this Court Ex.PY and the appellate authority under the Rent Control Act Ex.PZ, is the result of mis-appreciation of the law so laid down and also contrary to the overwhelming oral as well as documentary evidence showing that the plaintiffs are owners of the property in dispute. The findings so recorded are perverse, hence, not legally sustainable. The judgment and decree passed by learned lower appellate court to that extent is therefore quashed and set aside and the judgment and decree passed by learned trial court upheld.

21. In view of the above discussion, this appeal succeeds and the same is accordingly allowed. Pending application(s), if any, shall also stand disposed of. No order so as to costs.

December 23, 2014 (sck)

(Dharam Chand Chaudhary), Judge.