Balbir Raja Sodhi vs Shivala Damodar Dass and Others

Justice gurdev singh J.—This Execution Second Appeal has been preferred by Balbir Raja Sodhi-Appellant/objector against the order dated 15.9.2010 passed by the Additional District Judge, Kapurthala, vide which he dismissed the first appeal preferred by the objector against the order dated 23.2.2008 passed by the Additional Civil Judge (Sr. Divn.), Phagwara, dismissing the objections filed by him under Order 21 Rules 35, 97, 98, 99 read with Sections 47 and 151 of the CPC.

The facts, in brief, are that:an ejectment application was filed by Shivala Damodar Dass-Respondent No. 1/DH against Shankar Dass-JD, which was dismissed by the Rent Controller, vide order dated 8.11.1991. The decree-holder preferred an appeal against that order, which was dismissed by the appellate authority on 21.12.1992. Thereafter, revision petition was filed before this Court, which was accepted and the judgment debtor was directed to vacate the demised premises within six months and to hand over the vacant possession to the decree-holder and also to pay the arrears of rent. The judgment-debtor failed to comply with that order and the decree-holder filed execution application, in which warrants of possession were issued. The objector filed objection petition stating that the demised premises was, in fact, taken on rent by his father Karam Chand and Shankar Dass, vide rent note dated 19.5.1964. Karam Chand was not intentionally impleaded as party, though he being the tenant had every right to contest the same. From the inception of the tenancy, the demised premises was occupied by him alongwith Shankar Dass where they had been running the business of sale and purchase of buffaloes till 1985 when Shankar Dass left the premises and he continued to carry on the said business in the premises till his death which took place in the year 2001, leaving behind Chano Sodhi and others as his legal heirs. At the time, the ejectment application was filed he was in exclusive possession as tenant. Neither he himself nor his legal heirs were impleaded and, as such, he was not bound by the ejectment order passed against Shankar Dass.

In the reply filed by the decree-holder to that objection petition, he denied that Karam Chand ever occupied the premises as tenant or ever carried on the business of sale and purchase of buffaloes with Shankar Dass in the demised premises.

On the objection petition, the following issues were framed by the executing court:

Whether the judgment and decree dated 8.11.1991 is not executable against the present objector ? If so, its effect ? OPO

Relief.

To succeed in the objection petition, the objector examined himself as OW-3, Raj Sharma (OW-1), Suresh Kumar (OW-2) and Sarwan Singh (OW-4). On the other hand, the decree-holder examined Joginder Kumar (DHW-1), Satpal, Harbans Lal (DHW2), Baldev Raj Sharma (DHW-3) and S.N. Chopra (DHW-4).

After going through the evidence so produced on the record and hearing learned Counsel for both the sides, issue No. 1 was decided against the objector and the objection petition was dismissed by the executing court.

I have heard learned Counsel for the objector.

It has been submitted by the learned Counsel for the objector that it was the case of the landlord/decree-holder himself that it was Shankar Dass and Karam Chand, predecessor-in-interest of the objector, who were inducted as tenants and had executed rent note dated 19.5.1964 in his favour. Both the of them continued to carry on business in that premises till 1985 when Shankar Dass left and Karam Chand continued to occupy this premises. In these circumstances, it was incumbent on the part of the landlord to implead Karam Chand also as a party but as a clever move he filed the ejectment petition against only Shankar Dass and obtained the ejectment order at the back of Karam Chand. Therefore, any order passed in that ejectment petition is not binding on the objector and as such the same is not executable against him. Substantial questions of law arise in the present appeal.

Concurrent findings of facts were recorded by both the courts below. It was the case of the landlord that though the premises was rented out to Shankar Dass and Karam Chand but Karam Chand never occupied the same as tenant and it was Dharampal who occupied the premises with Shankar Dass as a tenant. A specific finding was recorded in favour of the landlord to that effect in the ejectment application. The "tenant" is defined in Section 2(i) of the East Punjab Urban Restriction Act, 1949, which reads as under:

(i) "tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cart-stand or slaughter-house or of rents for shops has been farmed out or leased by a municipal, town or notified area committee; and

As per this definition, it were Shankar Dass and Dharampal,

who were the tenants as they had occupied the premises after the tenancy commenced with the consent of the landlord and it were they who were paying the rent and were liable to pay the rent to the landlord. There is nothing on record to conclude that the findings recorded by the lowers courts are the result of mis-reading of evidence or is perverse. No substantial question of law is involved in this appeal. The same is, therefore, dismissed.