Baljinder Singh and Others vs Dalip Singh and Others

N.K. Kapoor, J.—This is defendant''s Regular Second Appeal against the judgments of the Courts below whereby the appeal filed against the judgment and decree of the trial Court was dismissed.

Briefly stated, Dalip Singh filed a suit for possession and recovery of a sum of Rs. 7200/- as damages for use and occupation of the shop, against the defendants. As per allegations in the plaint, the shop in dispute was owned by a Muslim till 1947 and the same became an evacuee property on account of migration of Muslims to Pakistan. It is further the case of the plaintiff that he purchased this property vide Sale-deed 19.6.1964. The plaintiff further averred that though the defendant claim to be the tenant of the shop under the Custodian but he never was so. His case is that the shop in dispute was let out to him on 1.8.1962 and when eviction application was filed against the defendant, he denied his relationship and claimed himself to be tenant under the Custodian.

The defendants put in appearance and controverted the various averments made in the plaint. They asserted that Kehar Singh, defendant No. 1, was the tenant under the Custodian.

On the pleadings of the parties, the following issues were framed :-

(1) Whether the plaintiff is owner of the property in dispute ? O. P. P.

(2) Whether there is relationship of landlord and tenant between the plaintiff and defendant No. 1, if so, to what effect ? OPD.

(3) Whether the defendant No. 1 is estopped to plead the relationship of landlord and tenant ? O.P.D.

(4) Whether the plaintiff is entitled to any amount on account of mesne profit ? If so at what rate ? O. P. P.

(5) Relief.

The trial Court held the plaintiff to be the owner of the shop in dispute which he purchased from the Custodian. It further held that there was no relationship of landlord and tenant between the plaintiff and Kehar Singh, defendant. Issue No. 3 with regard to estoppel was decided in favour of the defendant. Under issue No. 4, the trial Court came to the conclusion that the plaintiff is entitled to recover compensation at the rate of Rs. 60/- per month for use and occupation and as such, decreed the suit for possession and also for recovery of Rs. 2,160/-.

Before the lower appellate Court, the matter was once again examined on facts as well as law. However, the lower appellate Court did not find any merit in the appeal and so dismissed the same.

The learned counsel for the appellant has challenged the conclusion of the lower appellate Court terming these to be wholly illegal and unwarranted. According to the learned counsel, the lower appellate Court has not properly comprehended the matter in controversy and so. the same is amenable to the jurisdiction of this Court u/s 100, Code of Civil Procedure.

According to the learned counsel, the plaintiff in fact had no locus standi to initiate the present proceedings, that is to say, the Court erred in law in earning to the conclusion that he is owner of the shop in dispute having purchased the same from the Custodian. Elaborating further, the learned counsel contended that the plaintiff did not produce the original Conveyance-deed and the secondary evidence adduced by the plaintiff should not have been looked into until and unless the plaintiff succeeded in proving the loss of the original. Since no cogent evidence was led by the plaintiff to prove the loss of the original, the Courts below erred in allowing the applicant to adduce secondary evidence with regard to Conveyance-deed. I am afraid this objection has been raised solely to stall the examination of the matter in dispute on its merits. Certified copy of the Conveyance-deed has been placed on record. The plaintiff has stated that the original has been lost and he has not been able to trace out the same despite best efforts. In view of this sworn testimony, the Courts below rightly allowed the reception of secondary evidence with regard to Conveyance-deed. No fault can be found with regard to the finding of the Courts below in this regard. Even otherwise, it is not the case of the defendant that some other person and not the plaintiff intact is the owner of the suit property. The defendant otherwise has also not taken any step to examine any person from the office of the Custodian to rebut the evidence led by the plaintiff to prove the ownership of the suit property. Even the related objection that certified copy of Conveyance deed dated 19.6 1964 is in fact copy of a copy, is quite baseless. The plaintiff examined Ramesh Chander, PW-2, Clerk of the office of Sub Registrar, who brought the original summoned record of Registration and deposed that Mark ''A'' is the certified copy of the original. (Ordered to be exhibited by the trial Court in view of statement of the witness). Certified copies otherwise, are admissible u/s 57, sub-clause (5) of the Registration Act. Counsel next contended that the Courts below erred in not relying upon the receipts, Exh. DW-7/I to Exh. DW-7/8, regarding payment of rent. On the basis of these receipts, it was contended that even if Dalip Singh is held to be owner of the shop in dispute, the defendant continues to be tenant in the premises in dispute and is not liable to be ejected by the Civil Court. On the basis of these receipts, it has been contended that Kehar Singh was an allottee of the shop in dispute and even when the shop has been purchased by the plaintiff, his rights to remain in occupation of the same stand protected.

There is neither a Rent-note nor a lease-deed in favour of Kehar Singh. Nobody has been examined from the Department of the Custodian to prove his possession as an allottee. How and in what manner, his name was included along with the plaintiff in some of the receipts issued by the Department, was for the defendant to explain. In any case, this cannot be construed holding him to be an allottee or tenant. The oral evidence adduced clearly falls short of the proof that he was in possession of the property as tenant. Each of the witnesses have merely stated that Kehar Singh was found to be in possession and nothing beyond. Merely for the reason that some amount was paid by him and the plaintiff to the Custodian cannot be taken to be as rent. Even otherwise, an allottee under the Administration of Evacuee Property Act is only a licensee of the Custodian. Therefore, when the premises are disposed of under the Displaced Persons (Compensation and Rehabilitation) Act, by auction or otherwise, the allottee of the Custodian cannot be deemed to have become tenant of the transferee. However, as per the facts of the present case, the defendant has failed to adduce any evidence so as to confer upon him the status of ''an allottee'' in terms of Administration of Evacuee Property Act.

The appellant is otherwise guilty of repudiating the title of the plaintiff. It is the admitted case of the parties that in the rent application filed by the plaintiff, the defendant No. 1 took up a plea denying the relationship of landlord and tenant, and rather set up that he is a tenant of the Custodian. In any case, points raised by counsel for the appellant are essentially question of facts may be disputed and in view of often quoted dictum of Apex Court in Deity Fatiabhiramaswamy v. S. Hanymayya and Ors. AIR 1959 S.C. 57, are not amenable to any interference u/s 100 of Code of Civil Procedure.

No other point has been pressed by the learned counsel for the appellant.

Resultantly, I find no merit in the appeal and dismiss the same. No costs