Ashwani Kumar vs Santosh Kumari and others

Rajesh Bindal, J.—The third party objections of the petitioner, in execution of a decree of specific performance of agreement to sell passed against respondent No. 2, having been dismissed on 15.5.2012, the order has been impugned before this court. Briefly, the facts, as are evident from record, are that an agreement to sell was executed by respondent No. 2 in favour of respondent No. 1 on 2.7.1994 pertaining to House No. 182, Sector 20-A, Chandigarh. The suit filed for possession by way of specific performance of agreement to sell by respondent No. 1 was dismissed by the trial court on 8.3.2002, however, in appeal, the judgment and decree of the trial court was reversed vide judgment and decree dated 11.11.2004. The judgment debtor even failed before this court as RSA No. 390 of 2005 was dismissed by this court on 20.9.2010. SLP filed by respondent No. 2 was dismissed by Hon''ble the Supreme Court on 29.11.2010. It is the aforesaid decree which is under execution. The objections filed by the judgment debtor have already been dismissed. Sale deed was got executed by appointment of a Local Commissioner. When the warrants of possession were issued, the petitioner filed objections claiming that he being a tenant on the ground floor of the premises in dispute cannot be evicted and only symbolic possession could be delivered to the decree holder. The objections having been dismissed on 15.5.2012, the order is impugned before this court.

Learned counsel for the petitioner submitted that the petitioner was inducted as a tenant on the ground floor of the property in dispute by respondent No. 2 vide Rent Agreement dated 9.12.2009 at a monthly rent of Rs. 2,500/- , for a period of three years. Ever since then he is in possession of the property in dispute. When the petitioner was sought to be dispossessed by respondent No. 2 by using force, he even filed a suit for injunction against her in which respondent No. 2-defendant was restrained from dispossessing the petitioner from the suit property. The learned court below should have framed issues while dealing with the objections raised by the petitioner. The same should not have been dismissed summarily.

Learned counsel for the petitioner was candid in stating that the petitioner is a property dealer and he has no material to show that ever since the tenancy was created, there is any proof for payment of rent to the landlord.

Heard learned counsel for the petitioner and perused the paper book.

It is a case in which an agreement to sell was executed by respondent No. 2 in favour of respondent No. 1 on 2.7.1994 pertaining to House No. 182, Sector 20-A, Chandigarh. The suit filed for possession by way of specific performance of agreement to sell by respondent No. 1 was dismissed by the trial court on 8.3.2002, however, in appeal, the judgment and decree of the trial court was reversed vide judgment and decree dated 11.11.2004. RSA No. 390 of 2005 filed by the judgment debtor was also dismissed by this court on 20.9.2010. SLP filed by her was dismissed by Hon''ble the Supreme Court on 29.11.2010.

The petitioner is claiming tenancy in his favour in terms of Rent Agreement dated 9.12.2009. The tenancy was allegedly created during the pendency of appeal before this court, which was dismissed on 20.9.2010. When the same was dismissed, the petitioner had not pointed out before this court as to whether respondent No. 2 has created any tenancy on the property in dispute. Similar was the position before Hon''ble the Supreme Court. It is evident from the impugned order itself and the learned counsel for the petitioner did not controvert this fact.

Further, it is not disputed that the petitioner is not having any material to show that he ever paid rent for the property in question in terms of the alleged rent agreement dated 9.12.2009. The learned court below has referred to two other agreements executed by the judgment debtor in favour of Deepak Singh and Jagdish Sharma dated 1.1.2007 and 12.12.2009 respectively, vide which first floor and second floor respectively of the property in dispute was also rented out to them. It has further been noticed that though all the three rent agreements were signed on different dates, but still the witness thereon remains the same, namely, one Manjit Singh.

All the three tenants filed identical objections at the same time engaging same counsel. They have not produced any material on record before the court below to show that they ever resided in the premises in dispute. Though the tenancy sought to be claimed is quite old, the evidence could be in the shape of utility bill, voter card, telephone bill or any other material to show that the premises in dispute was declared by them with any authority/office as their place of residence. It has further been noticed by the court below that the judgment debtor even in her affidavit in the review petition filed by her in the year 2011 had mentioned her address as House No. 182, Sector 20-A, Chandigarh, i.e., the premises in dispute, which had allegedly been rented out by her to the petitioner way back in the year 2009. The learned court below has further noticed that a notice sent by post to respondent No. 2-judgment debtor on 18.11.2010 at the same address was duly acknowledged by her even though the house had allegedly been rented out at that time.

From the material, as has been referred to above, it can safely be opined that the objections raised by the petitioner are totally frivolous. These, in fact, have been filed in connivance with the judgment debtor on the basis of a fabricated rent agreement on which only the judgment debtor and the petitioner are the signatories. The fact that the property in dispute was rented out was never disclosed by the judgment debtor at any stage during the pendency of the litigation. Still further, even if she had created third party rights without intimating the court or the decree holder, the same will not have any effect on the rights of the decree holder as she would be entitled to get possession of the property for which she is fighting more than 15-16 years and the judgment debtor having lost upto Hon''ble the Supreme Court.

For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed. A copy of the order be also sent to the court of Mr. S. K. Sharma, Civil Judge (Junior Division), Chandigarh where the civil suit for injunction filed by the petitioner against respondent No. 2-Gurbax Kaur, titled as "Ashwani Kumar v. Smt. Gurbax Kaur" is pending.